Ittappan vs Parangadan Nair and Others

It is argued for the appellant that the whole of the renewal fees were not paid by the defendants. That, however, was not plaintiff''s case in the

Court of First Instance, nor is it a ground of appeal to this Court. The contention of the plaintiff was simply that the money paid was not paid as

renewal fee, but as rent. The Courts found that it was paid as renewal fee. No question was raised as to whether the payment was the full fee or

only a part of it, and we cannot allow the plaintiff''s present contention that it was only part of the fee to be maintained. We find that the full fee was

paid. Then it is argued that a lease of the kind agreed upon between the parties can only be made by a registered instrument, and that as no such

instrument was executed in this case, the plaintiff can maintain the present suit in ejectment. In support of this plea, reliance is placed on a dictum in

the case of Pappi Reddi v. Narasa Reddi ILR 16 M. 464 . That dictum has been doubted by the full Bench of the Allahabad High Court (Begam

v. Muhammad, Yakub, ILR 16 A. 344) and by a Divisional Bench of this Court (S.A. 730 of 1894) . We must also say that we find difficulty in

accepting it as correct, although as pointed out by Edge, C. J., the decision could be supported on the ground that in that case the defendant has

unsuccessfully brought a suit for specific performance and had in it set up a contract which differed from the actual contract. In the present case the

plaintiff brought his suit for ejectment before the expiration of the time within which the defendants might have sued for specific performance of the

contract to renew the lease. In such a case to allow the plaintiff to eject the lessee would, in our opinion, be to give the plaintiff a decree in fraud of

his contract of lease. We, therefore, agree with the lower appellate Court that the plaintiff''s suit was premature, and we dismiss this second appeal

No. 1646 of 1896 with costs.