Raman Namboodiripad vs Nanoo and Others

Vithayathil, J.—The Plaintiff in O.S. No, 411 of 1120 and O.S. No. 12/1122 of the Vadakkancherri Munsiff''s Court is the Appellant in these two second appeals. These suits were instituted by the Plaintiff for recovery of arrears of pattom on the basis of a lease deed. Ex. A, dated 10-8-1112 executed in favour of the Plaintiff''s illom by one Velu, the deceased karnavan of the tarwad of Defendants 1 to 12. O.S. No. 411 of 1120 was instituted for the rent due for the years 1119 and 1120 and O.S. No. 12 of 1122 for the rent due for the year 1121. S.A. No. 70 of. 1125 is from the decision in O.S. No. 12 of 1122 and S.A No. 71 is from the decision in O.S. No. 411 of 1120. The Plaintiff alleged in the plaints that the lease deed, Ex. A, was executed by Velu on behalf of and for the benefit of his tarwad and that, therefore, the tarwad properties were liable for the arrears of rent. The trial Court held that the lease deed was not executed by Velu on behalf of his tarward and, therefore, no relief was granted against the tarwad properties. The Plaintiff appealed from this portion of the decree and the lower appellate Court held that the lease deed was executed on behalf of the tarwad. The learned Judge, however, held that the tarwad properties of Defendants 9 to 12 were not liable for the plaint claim. These second appeals relate to the portion of the decree of the lower appellate Court refusing relief against the tarwad properties belonging to Defendants 9 to 12, and the only question for decision in these appeals is whether these properties can be made liable for the plaint claim.

The executant of the lease deed died in Vrischikam 1114. On 29-8-1114 there was a partition in his tarwad. Ex. IV is the partition deed. By that partition Defendants 1 to 6 constituted one branch, Defendants 7 and 8 formed Anr. branch and Defendants 9 to 12 a third branch. The verurnpattam properties, covered by Ex. A were, however, not partitioned under Ex. IV. By a separate arrangement all the verumpattam properties except two items, namely, items 5 and 6 in the plaint schedule, were divided between the two branches of Defendants 1 to 8. The branch of Defendants 9 to 12 did not take any of these properties and was not in possession of any of them. The leasehold right in respect of items 5 and 6 had already been assigned in favour of the 13th Defendant and he was in possession of the same. Defendants 9 to 12 therefore, contended that the properties they got in partition were in no way liable for arrears of rent that accrued due after the date of the partition. It will be noted that the arrears claimed in the two suits relate to the years 1119, 1120 and 1121.

It is admitted by the Plaintiff that Defendants 9 to 12 are not in possession of any of the leasehold properties. The Plaintiffs case is that even though they are not in possession of the leasehold properties their tarwad properties are still liable for the rent due to the Plaintiff under the lease deed so long as it is found that the lease deed was executed for and on behalf of the tarwad. It is argued for the Plaintiff that the subsequent partition of the tarwad properties cannot affect the right of the Plaintiff to proceed against these properties for the amount due to him under a lease transaction binding on the tarwad. Reliance is placed on the decision in - ''Kesavanunni Kartha v. Govindan Nayar'' 20 Mad 163 (A). In that case the Plaintiff obtained a decree against a thavazhi of a Nayar tarwad. Subsequent to the passing of the decree the thavazhi acquired certain properties and they were partitioned among the members of the thavazhi. The Plaintiff attached those properties in execution of the decree. Objection was taken to the attachment on the ground that at the time of the attachment the properties did not belong to the thavazhi. It was held that the properties were liable to be attached. The learned Judge followed the decision of the Madras High Court in - ''Kunhappa Nambiyar v. Shridevi Kettilamma'' 18 Mad 481 (B), in which case the law laid down thus:

The state of things at the time when the debt was contracted must be looked into and a creditor cannot be affected by any subsequent arrangement in the family to which he was not a party; and consequently subsequent partition in a tarwad is no ground for holding the divided members and their property not liable for the decree obtained against the Karnavan as such prior to the partiton.

I do not think that this decision applies to the facts of this case. In the first place the lease deed in question, namely, Ex. A, was for a period of one year. The lease cannot be held to be subsisting after the expiry of that period unless Section 116, T.P. Act comes into operation. Section 116 reads thus:

If a lessee or underlessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in Section 106.

I do not think that this section will apply to the facts of this case so far as Defendants 9 to 12 are concerned. They did not remain in possession of the properties after the date of the partition and the lessor has not accepted rent from them or otherwise assented to their continuing in possession. The fact that some of the members of the original tarwad who got themselves separated from Defendants 9 to 12 continued to be in possession of the leasehold properties is not sufficient to bring the case u/s 116, T.P. Act, so far as Defendants 9 to 12 are concerned. Reference may be made to the following observation of Mulla in his Commentaries on the Transfer of Property Act (3rd edition) page 737:

If there are several lessees and some only held over without the consent of the Ors. those not holding over cannot be made liable for rent.

The learned author has referred to the decision of the Calcutta High Court in ''Brojo Lal Roy v. Balchembers'' 9 Cal WN 340 (C). In that case the suit was upon a lease granted by the Plaintiff on 1-5-1899 for three years from 1-1-1899. The lease was in favour of three persons. One of them namely, Gopal Lall Seal, died in May 1902. The suit was instituted against the other two lessees and the administrator of the estate of Gopal Lall Seal. There was no dispute as to the liability of all the three parties for the rent that accrued due till 1-1-1902. The two lessees other than Gopal Lall Seal were found to have held over after the expiration of the lease and remained in occupation of the premises up to June 1903 and the Plaintiff sought to recover the rent for that period. It was found by the Court that there was no contract between Gopal Lall Seal and the other two Defendants to hold over the premises from the landlord jointly, and on the authority of the decision in - ''Draper v. Crofts'' (1846) 15 M&W 166 (D), it was held that the holding over by one or more co-tenants without the consent of the Ors. cannot render the persons not so holding over liable for rent. This decision does support the Respondents. It cannot be said that Defendants 1 to 8 and 13 continued in possession of the leasehold properties for and on behalf of Defendants 9 to 12 also. The Plaintiff himself has no such case. It is admitted in the plaint that Defendants 1 to 8 and 13 are in separata enjoyment of the properties and that they are liaable for proportionate pattam. This is what is stated in parapraph 3 of the plaint in O.S. 411 of 1120.

(Original in Malyalam omitted) The 13th Defendant who is the husband of the 9th Defendant and son of the said Velu has been in possession and enjoyment of the properties by paying pattom of the properties Nos. 5 and 6 of the schedule given below, the proportionate pattom of the properties being 315 paras of paddy. Of the remaining properties items 1, 2, 7, 8 and a portion of item No. 9 having a proportionate pattom of 298 paras. 1 Edangayhi and 2 nayhies of paddy are in the possession of Defendants 1 to 6 and item Nos. 3, 4 and the remaining portion of item No. 9 are in the possession of Defendants 7 and 8.

In paragraph 6 of that plaint it is further stated thus:

(Original in Malyalam omitted) The branches of Defendants 1 to 6 and Defendants 7 and 8 and Defendant 13 are in separate possession and enjoyment of the properties. Defendants 1, 2, 3, the branch of Defendants 1 to 6, Defendants 7 and 8, the branch of Defendants 7 and 8 and the 13th Defendant are personally responsible and liable for the pattom yield of the properties on the ground of compensation for use and occupation.

The allegations in the plaint in the other case, namely, O.S. No. 12 of 1122, are also to the same effect. It will thus be seen that after the partition in the tarwad the branch of Defendants 9 to 12 was not in possession of any of the leasehold properties and that the possession of the other Defendants was not for and on behalf of the branch of Defendants 9 to 12. Therefore, Section 116, T.P. Act, cannot apply to this case so far as Defendants 9 to 12 are concerned.

Reference was made by learned Counsel for the Appellant to the decision of the erstwhile Cochin High Court in - ''Innappan v. Kunhinni Menon'' 34 Mad 844 (E). What was held in that case is that the longstanding custom in the Cochin State has been for treating tenants holding over and praying rent as tenants under the original tenancy. In that case, the Court found that after the expiry of the period of the lease the tenant used to pay, and the jenmi used to accept rent. It was, therefore, held that a summary suit for rent would lie u/s 45, Cochin Tenancy Act, against the tenant. This decision has nothing to do with the facts of this case. The Plaintiff has no case that after the partition in the tarwad the branch of Defendants 9 to 12 paid any rent to his illom.

Another decision relied on by learned Counsel for the Appellant is - Raja Sri Jyoti Prasad Singh Deo Bahadur Vs. Samuel Henry Seddon and Others, In that case it was held that according to the doctrine of privity of estate the lessor can hold an assignee of the leasehold right liable for rent even though the latter may not have obtained actual possession of the leasehold property under the assignment. It was also held that in the case of assignment of a portion of the leasehold interest the lessor could sue the assignee for the whole rent, the assignee being jointly and severally liable with the lessee for the entire rent of the holding. The correctness of this latter position was, however, doubted by Fazl Ali J., one of the learned Judges who took part in the decision. This is what His Lordship observed:

Now, if the matter was not covered by authorities, and I was free to express my own opinion untrammelled by the decisions, to which I have referred. I would be inclined to the view that the assignee of a part of demised premises in a case like the present is liable only for proportionate rent.

This decision, however, does not apply to the facts of this case. Admittedly Defendants 9 to 12 are not assignees of any portion of the leasehold interest. Their properties, therefore, cannot be made liable on the principle of privity of estate. As stated above, the suit is for arrears of rent that accrued due from 1119. Defendants 9 to 12 separated themselves from the rest of the tarwad in 1114. The two other branches of the tarwad and a stranger were holding the leasehold properties under the landlord who treated them as his lessee and received from them proportionate rent. In the circumstances, it cannot in any way be said that the branch of Defendants 9 to 12 continued to be tenants of Plaintiff''s illom in respect of the suit properties. The learned District Judge was therefore right in disallowing the claim of the Plaintiff as against the properties which Defendants 9 to 12 got under the partition in their tarwad. There is thus no merits in these appeals and they are, therefore, dismissed with costs.