Whitmore v Lambert
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE JENKINS,LORD JUSTICE ROMER |
| Judgment Date | 21 March 1955 |
| Judgment citation (vLex) | [1955] EWCA Civ J0321-1 |
| Court | Court of Appeal |
| Date | 21 March 1955 |
[1955] EWCA Civ J0321-1
In The Supreme Court of Judicature
Court of Appeal
The Master of The Rolls
(Sir Raymond Evershed)
Lord Justice Jenkins and
Lord Justice Romer
MR ANTHONY GOODALL (instructed by Messrs. Bird & Bird, agents for Messrs. G. Garrard & Allen, Bedford) appeared as Counsel on behalf of the Appellant (Defendant).
MR T.H.K. BERRY (instructed by Messrs, Field Roscoe & Co agents for Messrs. C.C. Bell & Son, Bedford) appeared as Counsel on behalf of the Respondent (Plaintiff).
From time to time difficult points of an unusual character arise under the Rent Restriction Legislation perhaps because that Legislation has been super-imposed upon and interferes with (sometimes in language which may not have been too closely thought out) therelationship naturally arising under the ordinary law. This case appears to be an example and is found to raise (though not, I think, in the end of all to turn upon) the scope of the words "dying intestate" in Section 12 (1) (g) of the Rent Restriction Act, 1920. The point is one not likely to recur, or recur save very infrequently, for the words "dying intestate have ceased to be, for some 20 years past, a part of the paragraph to which I refer. They were in fact excluded from it by amendment in 1935. It may have been thought that the words "dying intestate" were in any case not very well chosen since the question might arise whether a person died intestate for the purpose of the paragraph if he had made a Will which was duly proved but which did not at all deal with the premises which were the subject of the claim to possession. It is, however, not necessary to consider the reason: the fact is that the words I have mentioned are now no part of the Act of Parliament.
The relevant facts are these: one George Ingram went into occupation of the premises in question known as 14, George Street, Bedford, in or about the year 1920 and he paid a rent of £1. 6. 8d per month. Mr Ingram died on the 29th March, 1922, and thereupon his widow, Mrs Ingram, continued in occupation of the premises. She so continued in fact for over 30 years until she died on the 14th June, 1953. In the year 1924 she adopted the Appellant, Miss Mary Ann Lambert, who was then a young girl aged ten years. I have said "adopted" but this was not a case of adoption subject to the Adoption Act. Mrs Ingram assumed towards Kiss Lambert the obligations as to maintenance and upbringing of a parent to a child. After Mrs Ingram's death in 1953 the Appellant, Miss Lambert, has in turn remained in occupation of the house and she is now over 40 years of age. The Appellant is also, I understand, the legal personal representative of Mrs Ingram whose Will she proved. That might wellhave a bearing upon the conclusion of this case. Thus, if Mrs Ingram had been found to be a contractual tenant at her death then the right of Miss Lambert would have been qua personal representative a successor to Mrs Ingram's contractual right. But I think (and there has been no argument to the contrary) that if Mrs Ingram became, after her husband's death, a contractual tenant, a series of increases of rent made her a statutory tenant at the date of her death. At any rate, Mr Goodall's argument for Miss Lambert has rested solely upon rights which he seeks to derive for her under Section 12 (1) (g) of the 1920 Act: and we have confined ourselves to that submission accordingly.
The present proceedings were brought for possession of these premises by the Respondents who appear to have acquired the premises subject to Mrs Ingram's occupation, somewhere in the early nineteen - thirty's. Prior to bringing the proceedings they duly served notice to quit upon the President of the Probate, Divorce and Admiralty Division of the High Court. Ho grounds have been suggested whereby the Respondents could obtain an order for possession (that is, for example, under one or other of the provisions of the first Schedule to the 1933 Act) if the Appellant is in truth now a tenant within the meaning of the Act. The Respondents say she is not; and the question is, are they correct in so asserting?
If then the Appellant is to succeed upon the case submitted on her behalf she must bring herself within Section 12 (1) (g). I have referred to it many times and it is familiar, but it would be right that I should refer to some of its language with the reminder that although one often speaks of "claiming under Section 12 (1) (g)" it is only so by virtue of the extended definition which that paragraph gives to the word "tenant". Thus: "the expression 'tenant' includes the widow of a tenant dying intestate" - I read the paragraph in its original form - "who wasresiding with him at the time of his death, or, where a tenant dying intestate leaves no widow or is a woman, such member of the tenant's family so residing as aforesaid as may he decided in default of agreement by the County Court". So far as Miss Lambert is concerned she claims under the latter part of what I have read; but when Mrs Ingram died the words "dying intestate" had been excluded so that such a qualification was no longer necessary in Miss Lambert's case.
It may be taken as well settled, as regards any premises and any family, that the paragraph can only operate once, that is without the machine being, as it were, wound up for a new start by the grant or creation of a fresh contractual tenancy. Thus, if A be the tenant, whether contractual or statutory ( Moodie v Hosegood, 1950 Appeal Cases) then on A's death his widow may claim the benefit of the definition under paragraph (g). If she does, then on Mrs A's death no member of her family can invoke the paragraph unless as I have said, 8 new start has been made by the creation of a new contractual relationship with Mrs A. It follows that the Appellant has in the present case two obstacles to surmount. She has first to show that Mrs Ingram was not a mere Section 12 (1) (g) tenant at the date of her death or at any other relevant time; and, second, she must show that she herself qualifies as a "member of the tenant's family so residing as aforesaid". The second point has been conceded in her favour and that obstacle is, therefore, removed.
At the trial on the first matter the Appellant sought to show that Mr Ingram was never a tenant at all. He was, it appears, a meek military musician and Mrs Ingram was the more dominating character, from which it was to be inferred that she herself had always been the tenant. Miss Lambert failed upon that matter of fact. It was held by the learned Judge (and his finding cannot be disturbed) that Mr Ingram was a contractual tenant of these premises at the date of his, death.It follows, therefore, that unless, a new contractual tenancy in favour of Mrs Ingram came into existence, or something equivalent thereto, she was either a mere licensee or owed her rights to the operation of the paragraph. The learned Judge's conclusion was: "Mrs Ingram was no more than a tenant under Section 12 (1) (g)". If that is right it is, of course, an end of the Appellant's case.
In this Court, however, a new point has been raised on her behalf to the effect that she could not be a Section 12 (1) (g) tenant for the simple reason that Mr Ingram did not in fact die intestate. It should be remembered that at the time when he died, paragraph (g) required of a widow who was claiming under (g) that her husband, the tenant, should have died intestate. It is not in doubt that no representation to the estate of Mr Ingram was ever taken out either by way of grant of letters of administration or by way of probate of a...
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