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Judgment
Veeraswami, C. J.
This appeal by defendant 1 and the legal representation of the second defendant is directed against the decree of Ganapatia Pillai J, in so far as it held that the rent in question was not reduced from Rs. 1500 to Rs. 975 and that the plaintiff were entitled to recover exclusive possession of the premises set out in schedule A and the machinery set out in schedule B as well as the furniture in schedule C to the decree. The first plaintiff is the widow of one Natesa Mudaliar who carried on a very prosperous and successful business in the manufacture and sale of Iron safes, mill and mill paris and other hardware implements under the name and style of "P. Natesa Mudaliar and Natarajan Engineering Works" with its Head Office at 59 Broadway, Madras and branches at No. 17 Errabalu Chetti Street, and Nos. 5 and 17 Lawyer Chinnathambi Mudali Street, Madras. He died in August 1942, having behind his widow and two daughters, who are the 3rd defendant and the 2nd plaintiff respectively. He also left a will dated 20th September 1940 and under that will he devised his properties in favor of his wife and two daughters appointing his wife as the sole executrix. The business was, under the terms of the will, given to his widow and two daughters in equal shares. It was contemplated by the testator that the actual conduct of the business should be in the hands of his sons-in-law. But as the business could not be carried on without differences, plaintiff''s and the 3rd defendant took over exclusive possession and control thereof with the entire Stock and assets. By a deed dated 30th September 1946, plaintiff''s 1 and 2 and 3rd defendant leased out the properties and the business set out in the schedule to the lease deed and, for the purpose of this appeal, it is not necessary to refer to the entire terms of the least. The lease was in favor of the first two defendants and was for a period of five years in the first instance with an option for renewal for a further term of five years on the same terms. The monthly rent reserved was a sum of Rs. 1500. The option to renew was exercised and there is no dispute about this. Thereafter in about February 1934, the first two defendants, whom we may hereafter call as the appellants, wrote to the lasers that on account of certain reasons mentioned by them, the rent should be reduced to Rs. 750 per mensem from 1st January 1953. There was further correspondence and eventually by a letter dated 14th November 1954 and written by the first two plaintiff''s and the 3rd defendant, they agreed to have the rent refixed at Rs. 975 per mensem with effect from 1st January 1953. Several sums are claimed to have been remitted by the appellants from time to time including towards the rent so refixed. By a letter dated 13th August 1956, the first plaintiff stated that she was unable to agree with the account sent by the appellants, except with regard to the amount paid to her towards the lease rent. In the circumstances, the plaintiff''s brought the suit for directing the defendants 1 and 2 to deliver possession of the plaint schedule properties comprised in the lease deed and for rendition of a true and correct account of the various amounts received and collected and for payment of such sum as may be found due eventually to the plaintiff''s. There was also a claim for manse profits. The suit was decreed for exclusive possession of the said premises and also in regard to the money claimed, which was referred to a Commissioner with certain directions. The appeal before us is confined, as we mentioned at the outset, to the propriety of not giving effect to the reduced rent of Rs. 975 per month and of granting exclusive possession to the plaintiff and the 3rd defendant. The second aspect of the question is raised because (sic) is claimed by the appellants that pendente lite, they had acquired the share of the 3rd defendant in the suit property and business she was entitled to under the terms of the will of her father.
On the first question Ganapatia Pillai J, was of the view that the appellants could not be permitted to rely on the reduction of the rent because that was not reduced to writing and registered and in the absence of such a writing, they could not plead alteration of the rent fixed in the registered lease deed. The learned Judge also rejected the appellants'' contention that there was acceptance by the plaintiff''s and the 3rd defendant of the accounts rendered by the appellants. He was also of opinion that the claim for reduced rent could not be supported on any doctrine of part performance or promissory estoppel. These aspects are reiterated before us.
It is contended that the lease deed was only for a term of five years. In other words, it is urged that the renewal itself being the subject matter of correspondence and not being part of the registered lease deed, the objection that the rent agreed to in such a renewal could not be relied on because of S. 92 of the Evidence Act, could not be maintained. In support of this contention Mr. Thyagarajan has relied on Hand v. Hall 36 L. T. 765, Boyd v. Kreign 17 Cat. 548 and Khavali v. Hussain Baksh 8 All. 198 In our view, none of these cases is of assistance to the appellants. When a lease deed contains a term for renewal for a further term on the same terms as agreed to for the initial term and the option to renew has been exercised, it seem to us that, although such a lease deed is not far the combined term, the renewal nevertheless forms part and parcel of the deed as the option to renew is exercised. The option to renew is on an agreement which has been reduced to writing and registered and for the operation of the renewal no further document is required. We are unable to accept the contention that when a renewal is made, it is a separate agreement which stands by Itself it hors the original document in which it was expressed. The cases which have been cited to us related to the admissibility of renewals by correspondence or means other than by a separate registered document. It was held in those cases that, if a lease deed was for one year and the option was exercised, the lease deed could not be regarded as one for two years. But that is not the question before us. As we said, the lease deed in this instance can in no sense be regarded as for ten years. But the right view to take, in our opinion, is that the document being initially for a term of five years, by reason of the option contained in the document it was extended for a further period of five years and the terms of the renewal are all these contained in the registered deed itself. We are of the view, therefore, that the term relating to the quantum of rent could only be altered by another writing registered.
It is next urged that the plaintiff''s and the 3rd defendant having accepted the rendition of accounts by the appellants, they were bound by it. The simple answer to this claim is that regard does not establish that there was any such acceptance. All that was said in the letter addressed by the first plaintiff on 12th August 1956, was that she was unable to agree with the account the appellant has sent "except the amount you had paid to me towards the lease rent." No oral evidence had been adduced and from this statement alone in the letter, it is not possible to conclude that the plaintiff''s and the 3rd defendant accepted the reduced rent. The claim for reduced rent is also put on the basis of part performance. We are unable to appreciate this contention. In our opinion payment of reduced rent, even assuming that it has been established which it is not necessary to find for present purposes, is not a step as would furnish the basis for application of the doctrine. Where a transferee has in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being, already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, he may as well have laid the basis for the doctrine. But here we fall to see what act of step the appellants had done or taken in furtherance of the contract when they paid the reduced rent. They were already under an obligation under he terms of renewal to pay the rent and when it is not established that the plaintiff''s and the third defendant accepted the reduced rent, we cannot possibly say that the payment is In furtherance of the contract. They were entitled to continue in possession even under the original terms of the renewal. It was not the case of the appellants that if the rent was not reduced, they would give up possession and terminate the renewed lease. But Mr. Thyagarajan invites our attention to Mulla on Transfer of Property Act, where the learned author observes at page 292 that payment of an increased rent in terms of a new agreement would amount to part performance. That may well be so because such a payment would be to the detriment of the payer and the observations, it should be remembered, was in the context of the lessee''s claim. It Is true a learned single Judge of the Calcutta High Court in Satyaniranjan v. Habibar ILR Cal. 393 applied the doctrine of part performance to a case of payment of reduced rent. But we are unable to accept this view as correct.
Lastly it is submitted on the strength of Satnarain v. Union of India AIR 1961 Punj. 314 and Central London Property Trust Ltd. v. High Tress House Ltd. (1956) 1 A.E.R. 256. that inasmuch as the appellants Law acted upon the acceptance by plaintiff''s and the 3rd defendant of the reduced rent, the latter should on ground of promissory estoppel he prevented from resoling and claiming the original rent. Here again, we fail to see the force of the contention in the context of the facts. The doctrine of promissory estoppel can be invoked, only if there was a representation by someone which another has to his detriment acted upon, so that if the former is allowed to resale, the latter by that means would stand to be prejudiced. That is not the case here. As a matter of fact in Satnarain v. Union of India AIR 1961 Punj. 314 the learned Judge observed that in order to create estoppel, the party asserting it has to show that he had been Induced to act to his detriment or misled to his injury. That has not been established. We therefore agree with Ganapatia Pillai J, that the appellants are liable to pay rent at the rate of Rs. 1500 per mensem.
On the second ground of the appellants, It may appear at first blush that claiming as the appellants do to have purchased pendente lite from the 3rd defendant the share in the properties in question which she was entitled to under her father''s will, they are entitled to joint possession. But we are of the view that the decree of Ganapatia pillai J, in this regard does not call for any Interference. There can be no question that each tenant-in-common could at common law make a lease in respect of his own share alone, the interest of each being separate and distinct, and if tenants-in-common all join in one lease, it operates as a lease by each of his respective share, and a confirmation by each as to the share of the others. Woodfall on Landlord and Tenant makes this quite clear in the 27th Edn. of his book page 62. Also it cannot be disputed that a transferee acquiring a share of the joint interest would be entitled to the transferor''s right to joint possession. S. 44 of the Transfer of Property Act is clearly to that effect. Debendra v. Narendra 29 Cal. L.J. 504 which was cited by Mr. Thyagarajan, does not take as any further. The point is that the suit out of which the appeal arises was to recover possession on the basis of tenancy. The appellants figured in the suit at tenants and possession was sought from then in their capacity as tenants. The nature of the suit as such is not altered by reason of the alleged purchaser by the appellants from the 3rd defendant. Whatever claim they may have on that basis will have to be adjudicated in a separate proceeding. Ganapatia Pillai J. put it on the ground that it was well established that merger did not take place where a part of the landlord''s interest alone was acquired by the tenant. We share this view, especially where the suit itself for possession is based on tenancy. But we may make it clear that by the decree for exclusive possession, the claim of the appellants based on the purchase from the 3rd defendant should not in any way be prejudiced in any independent proceeding to enforce it. The appeal is dismissed with costs. The appellants will have four months from to date for delivery.