Jas. 5, ‘THR WEEKLY LAW REPORTS [court oF arruat.] ea. *BILES ». CAESAR, [Plaint No. 3. 608.] Landlord and Tenant — Act of 1964— Business premises (Security of tenure)—Notice of opporition to new tenaney—Form—Notien by Joint landlords of intention to demolish and reconstruct the whole Mof the” premises—Application to court for new tonaney—Death of one landlord—Hearing of application before grant of probate Bvidener by surviving landlord and named executor of intention to demolish and reconstruct substantial part of premises—Suffcieney ff landlords’ objection — Competence of witnesses — Landlord and Tenant Act, 1994 (2 & 3 Eliz. 2, c, 56), 48. 25 (2) (6), 26 ©), 30.0) (). Practice-—Pleadings—Greater includes lest tor—Eecutor-—Position before probate ‘Two brothers, F. and P., the joint owners of business premises, geve notice in 1955 to their tenant to terminate the lease pursuant to tection 25 (1) of tho Landlord and Tenant Act, 1954, stating, in ‘purported compliance with the terme of section 30 (1) (J),* thet it s their intention “to demolish and reconstract tho whole of the premises compriced in your holding."” On an application by the ‘tenant to the county eourt for the grant of a new tenancy, the land- Jords gave notice pursuant to setion 25 (6) of an objestion expressed in like terms, In February, 1056, P. died, haying appointed his son C. and one W. as excoutors. At the heating in the county court, which took place before tho grant of probate, it was proved by the evidence of F. and C, that the landlords! intention was to demolish and reconstruct not the whole, but a substantial part of the demised promises. Judgment was reserved. On the grant of probate, C. snd W. ‘were added as opponents. ‘The judge gave judgment for ‘the Tandon - => On appeal — Held, dismissing the appeal (2) that, in accordanco with the ordinary raley of pleading, the landlords’ objection was sufficient in form, a% they were clearly referring to paragraph (f) and the greater included the less; (2) that the evidence of F, a@ surviving egal joint owner of the freehold was by itself sufficient to prove intention ; (8) that, if the intention of P.’s executors was material, ‘a the title of C. at executor dated back to the will, he was entitled Iefore grant of probate to give evidence as to such intention. Ohetty v. Chetty [1916] 1 A.C. 605 applied. Beeoutor and Administra: Appear from Judge Rawlins sitting at Aldershot County Court. ‘The facts are stated in the judgment of Denning L.J. 4 Tandlord and Tenant Act, 1954, “of the Act, or, ns the case may be, ‘0: ""(1) The grounds on which a landlord may oppose an application “<[for «new tenanes) under sub- rection (1) of ection 24 of this Act are such of the following ‘grounds as moy be elated in the landionl’e notice under, 95[1957] 1 WLR, L. A. Blundell for the tenant, R. B. Megarry Q.C. and M. G, Polson for the landlords, Case cited in argument not referred to in the judgments: Betty's Cafés Ltd. v. Phillips Furnishing Stores Ltd? Dexwive LJ. Two brothers, Francis George Caesar and Perey Joseph Cassar, owned some premises at 47, Union Street Aldershot. In 1947 they let off a shop on the ground floor with 4 workship behind, to Mr. Biles, a jeweller. Mr. Biles has been there for many years, holding on a tenancy which was at common law determinable by three months’ notice. ‘The premises were, however, business premises coming within the new Landlord and Tenant Act, 1954, so the landlords after that Act had to sive the tenant six months’ notice of termination. ‘They did so On October 4, 1955, the brothers Caesar gave a notice to Mr Biles to terminate his tenaney to expire on April 6, 1958, Ta that notice they gave their reasons for refusing the tenant a new ancy. ‘They said: ‘* We would oppose an application to the “court... for the grant of a new tenancy on the ground that “‘on the termination of your tenancy we intend to demolish and ‘reconstruct the whole of the premises comprised in your ‘‘holding."* ‘Thereupon Mr. Biles took them to court: he made application against the brothers Caesar for a new tenanoy in aeeordanee with the new Act. Unfortunately, before the ease came on for hearing one of the brothers, Perey Joseph Caesar, died he died on February 13, 1956. He had made a will in which he had appointed his son Gpril John Caesar to be one exeeutor of his will and an aceountant, Mr. Waldron, to be the other executor, ‘Those two “gentlemen applied to come into the proceedings as respondents fn placo of their testator. They sought to put in an answer “hich followed the exact words of sub-paragraph (f) of section Q, subsection (1), of the Act. But when the ease came on for hearing on March 27 they were required by the judge to confine answer to the very terms of the notice to Thavo | iamely, that they intended to a whole of the premises. ‘The gasé was.heard on a > i because the not give judgment st t take out j they .were-joined in the suit ives. On: ‘the judge gave judgtont Dihis court, Ho takes two points, ‘The a thatthe landlords didnot prove an intention Fike whole ofthe premises. The tenant says tha, podlords intend to pull down large prt ofthese do not intend to pull down the whole of them, 1 W.1AR, Oe: 0) 2 A BF; reed Da Wek od tty a We 187 aa, 1956 Bras Camsan, | |ass | ‘cantar. esniog La son want Murmerote See Se mar in one ask wall which i aot gsing © Be Se down. Tere ul ie going to be left standing although © ‘window in eg w be vinied so. Stn Be of the i Bete be left, ‘This point taken by the utes however, shor ie epeal one. Te i quite clea that t N8 ‘andlords hod wren a otis of opposition in comptehensve ‘they would ren oy in order. Section 90 (2) (), sa7® SOHN Tandlord is ars et Nfaay a ewtananig othe ground EMS “on the enti tion of the current tenancy the landlord intends to “termina reconstruc the premises comprised i> i holding demi eae poet of thoee remiss” Although 8 ond soe a eae not intend to récoomiect the whle, ny certainly lore ne? Geonniuch a substantial part. But ‘Blundell sayF ra Tough not to be allowed to aval themes of the hat they naone in. their mice, of opposition, So ‘n_theit sae ging von) tthe wale“ ot Bie and they are not to bellowed, he saps tO rey om 8 ‘substantial part.” ot edgment, tis tenant’ argument om OO point is not sede suielent for tho landlords, im 2h, notice of Spposition to specify the particular paragreph—(a)- (0) ). @s «oth or (Q) of anation 80 (1) pon whith ey rely. Tt is nob vronessary for them to specily ‘subsidiary portions of seeagenpka eo ange eg mah: li eS ‘the paraaraph 2 Panay ely. T seems to mo ase plain hat ‘he land- on irecin their notice and in thelr anawer Wot ‘eying on ‘eond (fy. Although hey did nok ere ‘he full extent of pean Os Diey id nob prove thak the whee to be Fe a namreckclne. De prone 5 mee portion Teoria them 40 refuse o new Tense. Tt © settled rule of eating that it a pleader alleges more (B65 necessary, he 8 {entitled to rely om 90 ‘by. that allegation entitled futons for tho porpose he bas im band. Se here, it whi ee tbat ag Tong as abe Landlords prow (8 they did) struct @ substantial part of the premises, ‘hat is sufficient. sllogation includes the Tes5- vin wa dia, Te was anid that the Lantos bad ok peed The netensry intention beonuse, DONS had not been bat Pro gh the tine ofithg_ eine. The wart brother, Ce op Cian peck ain no TDN ‘and gave i to reconatract « substantial past of ‘the jwothie will) “Mev Cyril Jobn Seas Caesar, oad confirmed thot intention on his park: aigisient evidence of the intention of lords, feasons: firstly, in regard to this sub-paragraph 1, ee Iand= veteed "means the landlord with the Tess) title to the land. At ‘his date the legal landlord was the surviving brother, |Francis George Cacsar. He and his eased brother had beem, joint ‘owners, and when the deceased Rather died the surviving brother dou it evame in law the sole owner. He wis(957) 1 WLR, es ct icing i. pin eg Fat eT a en Be taionwae eaten eee ee Sette et agar let ee ten eee, Be toch Bar, pointed out iz te cone of Chap Chali? Th his ease the encoutor, the soo, was well qualfed ond ented aie tox wits ax ob Sho bearing of tbe nun and give evideoge of the inenton ofthe execute: although probate wes rh daken ont il some tne abrresdn ceejulee't think tl i cadet: Niitone torstostworsdcapteste secearie ttl probate had been obtained, eenuao ul proba bad ee | Ie face geull aon nc ers 1 sors to ie thet the intention of the landlords was aifi- ciently established, and I would therefore dismiss the appeal. Honsox UJ. T agree, I think that the appellant fails on both the grounds which have been raised in this court. ‘The landlords gave notice of their objection to a new tenancy on the ground thet on the termination of the existing tenancy they intended to demolish and reconstruct the whole of the premises comprised in the holding. Tt is submitted that in the evidence. given ab the hearing they fell short of proving that, Although we have not heard the landlords on this point, I am prepared to assume that that is right and that the evidence given at the hearing fell considerably short of proof of an intention to demolish tnd reconstruct the whole of the premises. ‘The tenant argues ‘hat if the landlond has not set out the grounds as directed by ‘section 30 (1) of the Act of 1954, and proved that ground as set ‘out in his notice, he must fail. Section 80 (1) is as follows: “The grounds on which a Iandlord may oppose an application “under subsection (1) of section twenty-four of this Act aro such “of the following grounds as may be stated in the Inndlord’s notice under section twenty-five of the Act": and then there out the grounds (a) to (g). I think that the correct pretation of section 90 (1) is that the grounds are indicated paraicly in the subheadings (a) to (9) and that the landlord is b accordingly bound to sub-divide each ground further. When looks at (f), the ground relied upon here, one finds that the oris are: “that on the termination of the eurront tenaney the 1 intends to demolish or reconstruct the premises com. ised in the holding or « substantial part of those premises or > ekrry out substantial work of eonstruetion on the holding oF thereof.” There is no use of the word “‘ whole” there, though in the notes on the back of the form which is in the ix to the Landlord and Tenant (Notices) Regulations, 1954, whole" appears, No doubt the right construetion to contrast the demolition of the whole of the premises je reconstruction of the whole of the premises with + [m6 1.4.0, ais,HE WEEKLY LAW REPORTS Jax. 95, 1057 ‘ similar operation in the case of a substantial part, and all that the landlords have proved here is an intention to demolish and reconstruct a substantial part as against the whole. In my judgment there is no difficulty in the Inndlords’ way on that ficeount. All that they had to do was to indicate the ground— that is, ground ()—and that they have done. ‘The fact that they did not go the whole way and prove the widest extent to which sub-paragenph (f) went does not mean that they failed because they only sueseeded in proving the “ substantial pact ‘which means that they travelled a lesser distance than the distance which they would cover by their notice. In other words, T agree that the greater includes the less, as it would in the case of an ordinary pleading; and T see no reason why a different argument should apply on the construction of this partioulae section. On the second point T also agree, What happened was this ‘There were joint landlords, and one of the landlords had died before the hearing. When the answer was put in in accordance with the rules, although the executors of the dead landlord! had not obtained probate, the answer was headed as if they were substituted already for the deceased landlord, and when the ‘matter eame on for hearing the surviving landlord and his nephew save evidence as executors of the brother who was one of the original joint landlords, and evidence of intention having been siven by both those persons, the second deposing that he intended to continue the intention which had heen formed by his pre ecossor, the judge loft the matter in this way: he reserved his, judgment and did not deliver his judgment until the executors hind obtained probate and therefore confirmed the position whieh had been taken up by one of the executors in evidenes Fit be right to say that in view of the way in which this case went it is not right to rely solely upon the evidence of the survivor of the joint landlords on whom the legal tenaney devolved beenuse of the answer put in by the one remaining landlord and the two executors, T would say that the executors wore entitled to prove their intention before obtaining probate. Tt is an a fortiori case compared with Chetty’s case,? to whi reforenee has been made, fom which it is elear that an excoutor derives his title and authority feom the will so that he ean institute an action in the chavacter of exeoutor before he proves the will. Tf he ean do that, surely he onn give evidenos of an intention which he has in his eapacity as an executor before probate has been obtained? T agree, therefore, that the appeal must be dismissed Moneis L.J. Tagree. Tk seems to me that by the notice of ‘termination and by the answer, which was amended to accord with the notice of termination, the landlords were cleaely referring 1 (1916) 1 A.C. 6.(B97) 3 W-L.B. to ground (jf) of section 80 (1). I think that paragraph (f) of svetion 80 (1) constitutes one ground of opposition, which ground 954 ‘may be satisfied in a variety of ways. Mr. Blundell submits ———— that a landlord may diseard something, but may not add to what hhe has asserted. Tt does not seem to me that the landlord is Caisar. adding anything in this case. It seems to me that the greater yoru ia, ‘includes the less, and that the landlord here has proved enough to bring him within ground (f) of section 80 (1). On the other part of the ease I do not desire to add anything Tam in agreement with the judgments which my Lords have delivered. Appeal dismissed. Solicitors: Reid, Sharman € Co. for Herrington & Carmichael, Aldershot; Foster, Wells & Coggins, Aldershot. EarEDy [counr op avprat.] “TRUCKELL v. STOCK. [Plaint No. M. 267.] Vendor and Purchaser—Conveyance—Parcels—Projecting footings or Bet ‘eaves—""AUI that land dwelling-howse (ete) situate in Kast Street aut 2 and delineated and coloured pink . . . on the plan attached “hereto —Footings of side wall projecting Beyond coloured boundary—Whether footings included in conveyance. Trespass — Building — Projecting —Building on footings of nevt door house. Injunction—Mandatory injunction. By a conveyance made in 1952 the plainti®’ acquired the fee imple of oortain premises, descritod in the parcols ax “ all that “land dwelling-house office gareges outbuildings and premises “situate in East Street Colchester aforesaid . .. and delineated and “coloured pink and red on the plan attached hereto the dwelling “house and office being known as No, 45 East Street aforesaid.” ‘On tho side where the plaintifl's promises adjoined No. 44, East Street, the edge of the coloured portion on the plan indicated the ‘outsido of tho sido wall of the plaintif's house, No. 45, but that ‘wall rested on certain brick footings which projected some inches beyond tho edge of the coloured portion. Tn 1953 tho defendant acquired No. 48 from the same vendor, and prooeeded to build wall which rested on the said footings and almost touched tho plaintif’s side wall. In an action for trespass, in which the plaintiff claimed damages and a mandatory injunction directing the defendant to pull down his wall, the county court judge held that the footings did not pass to the | plintiff by the conveyance, but indicated that he would otherwise | have beon disposed to grant a mandatory injunction. On appeal :— Held, that the whole structure of No. 45, including the footings and eaves, had been conveyed to the plaintif, so that the defendant's fou n