Maragathammal vs Azimunnissa Begum

Rajamannar, C.J.—The petitioner filed a suit for the recovery of arrears of rent due to her under a rent deed executed in her favour on 17-

11-1946 by the two defendants in the suit, father and daughter. Defendant 1, the father, admitted the claim, but defendant 2, the daughter, pleaded

that she was living with her father in the suit house from December 1946, that she was living in Vellore till December 1947, and that she vacated

the house and went to Madras. The learned Small Cause Judge at Vellore held that defendant 2 also joined in the execution of the rental

agreement. The position of defendant 2 was therefore that of a joint tenant along with defendant 1. But he held that defendant 2 was not liable for

the rent, because she vacated the premises on or about 9-10-1947 and had intimated the fact to the plaintiff.

The learned Judge was clearly in error. The fact that defendant 2 purported to vacate the premises on 9-10-1947 would not avail her unless the

plaintiff had been put in possession of the premises. Till that is done, she as a joint lessee would be liable so long as the lessor has not obtained

vacant possession of the premises. The law is thus stated in Mulla''s Commentaries on the Transfer of Property Act, 3rd Edn. (1949) at page 702 :

If one of two joint lessees fails to restore vacant possession to the landlord, both will be liable.

The authority for this proposition is to be found in -- ''Christy v. Tancred'', (1840) 151 ER 706 (A), where Parke B. observed as follows :

It is clear that the original parties to this agreement continued liable for the rent as tenants holding over, unless there was a new agreement by the

landlord to accept other persons as his tenants in their stead.

The civil revision petition is allowed and the decree of the learned Judge in so far as the plaintiff''s claim against defendant 2 was dismissed is

hereby set aside. The plaintiff will have a decree also against defendant 2.