Raman Nambooripad v. Nanoo — 1952 DIGILAW 57 (KER)

JUDGMENT : 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, Ext. 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, Ext. 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 tarwad 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. 2. The executant of the lease deed died in Vrischikam 1114. On 29.8.1114 there was a partition in his tarwad. Ext. IV is the partition deed. By that partition defendants 1 to 6 constituted one branch, defendants 7 and 8 formed another branch and defendants 9 to 12 a third branch. The verumpattam properties covered by Ext. A were, however, not partitioned under Ext. 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 verumpattam properties covered by Ext. A were, however, not partitioned under Ext. 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. 3. It is admitted by the plaintiff that defendants 9 to 12 are not in possession of any of the leasehold properties. The plaintiff’s 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 Karthavu v. Govindan Nayar (20 Cochin 163). 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 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 Judges followed the decision of the Madras High Court in Kunhappa Nambiar v. Shridevi Kettilamma (I.L.R. 18 Madras 481) in which case the law was 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 karanavan as such prior to the partition.” I do not think that this decision applies to the facts of this case. In the first place the lease deed in question, namely, Ext. A, was for a period of one year. The lease cannot be held to be subsisting after the expiry of that period unless S. 116 of the Transfer of Property Act comes into operation. S. 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, 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 under S. 116 of the Transfer of Property Act so far as defendants 9 to 12 are concerned. 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 under S. 116 of the Transfer of Property 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 hold over without the consent of the others those not holding over cannot be made liable for rent.” The learned author has referred to the decision of the Calcutta High Court in Brijo Lal Roy v. R. Belchambers (9 C.W.N. 340). In that case the suit was upon a lease granted by the plaintiff on the 1st of May 1899 for three years from the 1st of January 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 the 1st of January 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 (15 M. & W. 166 (1846)) it was held that the holding over by one more co-tenants without the consent of the others 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. 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 separate enjoyment of the properties and that they are liable for proportionate pattam. This is what is stated in paragraph 3 of the plaint in O.S. 411 of 1120. "Other Language" In paragraph 6 of that plaint it is further stated thus:- "Other Language" 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, S. 116 of the Transfer of Property Act cannot apply to this case so far as defendants 9 to 12 are concerned. 4. Reference was made by learned counsel for the appellant to the decision of the erstwhile Cochin High Court in Innappan v. Kunjunni Menon (34 Cochin 844). What was held in that case is that the longstanding custom in the Cochin State has been for treating tenants holding over and paying 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 under S. 45 of the 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. 5. Another decision relied on by learned counsel for the appellant is Jyoti Prassad Singh v. Samuel Seddon (A.I.R. 1940 Patna 516). 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. 5. Another decision relied on by learned counsel for the appellant is Jyoti Prassad Singh v. Samuel Seddon (A.I.R. 1940 Patna 516). 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 later 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.” The 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 accured 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 continue to be tenants of plaintiff’ 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. 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 merit in these appeals and they are, therefore, dismissed with costs. Dismissed.