Cherooty Alias Kuttappan v. Sarada Amma — 1969 DIGILAW 177 (KER)

JUDGMENT P. Subramonian Poti, J. 1. By efflux of time the tenancy under Ex. A1 is said to have terminated and (later the tenants died. The suit to recover the property leased has been brought more than 12 years after the death of tenants and the action is against the legal representatives of the tenants. The question is whether the suit is barred by limitation. 2. The subject matter of the lease is a fairly substantial building. The "building and the property in Which it stood Was in the possession of one Cherootti, the predecessor in interest of the defendants as a tenant. A suit for recovery of possession with arrears of rent Was filed in the Munsiff's Court of Kozhikode as O.S. 1046 of 1941. and pursuant to the decree in that suit delivery was obtained. After such delivery of the property and the building a rent deed was taken from two of the defendants in that suit for the building alone and they were allowed to continue in occupation of the building. Ex. A1 is the rent deed and that was so taken on 16-1-1943. It provided for a term of three months and the rent payable therein was four annas per mensem. The period of three months expired. Apparently no rent was paid. At any rate, there is no proof of any payment of such rent. The tenants who had executed Ex. A1, Cheriyakkan and Gopalan, both of them died; the former on 2-4-1948 and the latter on 22-6-1948. The suit was instituted on 28-1-1961 for recovering possession. 3. What would be the Article of the Limitation Act which would apply to the suit would be the first question that I have to consider here. It is agreed that it is the Indian Limitation Act, 1908, that applied. The suit is to recover property leased on the allegation that even after the expiry of the period of the lease the lessees and after their death their legal representatives continued as tenants. The question whether the possession of the defendants in the suit was adverse to the plaintiff would arise only if the question of limitation falls to be decided under Art.144 of the Limitation Act. That Article would not be applicable if Art.139 which is the one specifically provided for recovery from lessees applies. The question whether the possession of the defendants in the suit was adverse to the plaintiff would arise only if the question of limitation falls to be decided under Art.144 of the Limitation Act. That Article would not be applicable if Art.139 which is the one specifically provided for recovery from lessees applies. If it is Art.139 which so applies to the suit, there is no necessity to consider whether possession of the defendants was adverse. The question of limitation which falls to be determined under Art.139 of the Indian Limitation Act 1908 does not depend upon the character of the possession of the defendants. Irrespective of the nature of such possession the suit would be barred under Art.139 once it is shown that it is brought beyond 12 years of the date when the tenancy is determined. Therefore the question for consideration would then be as to the date when the tenancy was determined. That is the question with which I am concerned here. 4. Though the reference in Art.139 is to a suit for recovery by a landlord against a tenant, apparently these terms refer to the quandom landlord and the quandom tenant because when once tenancy is determined there is no longer a landlord nor a tenant and to literally construe these terms would yield anomalous results. 5. When a lease for a term is granted, on the expiry of the term the lease determines. S.111 provided for circumstances under which a lease of immovable property would be determined. Sub-s.(a) provides that such lease determines by efflux of time limited by the lease. When a lease is so determined the continuance in possession of the lessee is no longer as a tenant. No doubt the term tenancy at sufferance is a well accepted concept under the English law. But into the scheme of the Transfer of Property Act 1882, it is not necessary to import this term. The plain terms of the Transfer of Property Act make it evident that if the lease be for a term and that term expires and nevertheless the lessee remains in possession thereafter he would continue on the same terms of lease provided the lessor or his legal representative accepts rent from the lessee or under lessee, or otherwise assents to his continuing in possession. In that event the tenancy would continue as if renewed from year to year or from month to month according to the purpose for which property is leased. A tenant holding over with the assent of the landlord would, for all purposes, have the rights of a tenant recognised under the Transfer of Property Act. He will have an alienable and heritable right. Therefore hislegal representatives Would be holding the property as tenants. In the case of a lease for a term if it is shown that the tenant continued to hold over the property after the expiry of the term with the assent of the landlord and subsequently on his death his legal representatives continued to hold such possession the plaintiff can sue to recover the property even beyond the period of 12 years from the date of death of the tenant. It is sufficient if he shows that the tenancy which continued With the legal representatives was determined only within a period of 12 years prior to the date of suit. 6. It is contended by the plaintiff in the suit that though the original tenants confined in possession after the term of the lease that was with the assent of the landlord and therefore they would be tenants holding over within the meaning of S.116 of the Transfer of Property Act. Consequently, according to the plaintiff, on their death their legal representatives would also be persons in possession as lessee. This contention did not succeed in the trial court, but the appellate court found in favour of the plaintiff and gave the plaintiff a decree. This appeal is there fore filed by defendants 1 and 3 to 11 who contend that the suit is barred by limitation. 7. The term of the lease, Ex. A1, expired on 16-4-1943. The tenants lived nearly for 5 years thereafter: In a case where the landlord sets up a plea that the tenants continued to hold over as tenants with the assent of the landlord, the burden of showing that, notwithstanding the determination of the tenancy by efflux of time, the tenants continued to be so hold over is on the landlord. It is for him to show in such cases that there has been assent by him to the continuance of the tenant under the tenancy. It is for him to show in such cases that there has been assent by him to the continuance of the tenant under the tenancy. Assent may be shown when there is proof of receipt of rent from the tenant for the period subsequent to the expiry of the term. This is only one of the modes of showing assent to the continuance. If such assent could be shown otherwise that too would be sufficient. But mere silence of the landlord cannot be taken as amounting to an assent. What could amount to such assent cannot be attempted to be defined as it would be a matter for inference on the facts and circumstances of each case. If the landlord succeeds in establishing such assent the tenancy will be taken to have continued and it will then be for the tenant to show that such tenancy arising by reason of holding over with the assent of the landlord was terminated later and that beyond 12 years prior to the date of suit. 8. It is not shown in this case that there has been any payment of rent by the tenants after the expiry of the terms. In fact there is no evidence even as to payment of rent for the 3 months Which is the term provided in Ex. A1. Therefore if the burden of showing that there was payment of rent is on the plaintiff he must be taken to have failed to prove it. So is the case With 'assent' of the plaintiff to the continuance of the original tenancy after the expiry of the term under Ex. A1. Therefore on the evidence plaintiff must lose unless it be that plaintiff disputes the contention of the defendants that after the expiry of the term the tenancy would be determined. In fact it is contended that the tenancy did not determine on the expiry of the term. That is because, according to the counsel for the plaintiff the terms of Ex. A1 Would indicate that it Was a tenancy for a fixed term of 3 months and thereafter a tenancy at will and therefore even if it is not shown that rent was paid or the landlord assented to the continuance of the tenant it must be taken that the tenants continued to hold as tenants at will. A1 Would indicate that it Was a tenancy for a fixed term of 3 months and thereafter a tenancy at will and therefore even if it is not shown that rent was paid or the landlord assented to the continuance of the tenant it must be taken that the tenants continued to hold as tenants at will. This Would depend upon construction of the terms of the document. Ex. A1 provides that the tenants who are put in possession of the building should surrender on demand after the expiry of 3 months. It is open to the parties to agree to a term for the tenancy. It is also open to the parties to agree to continuance even after the term until demand for surrender is made by the landlord. In such cases, unless otherwise provided, it must be taken that there will be a corresponding right in the lessee to surrender after the expiry of the term at his opinion. Therefore such a contract of tenancy must be construed as tenancy at will after the expiry of the term. A similar document was construed by this court in the decision in Subramania Iyer v Madhavi Amma ( 1963 KLT 1009 ) and the view taken by this court was in accord with what I have stated here. If this be the rule, then it is no doubt true that the contention for the tenant has to be accepted. The tenants who took Ex. A1 continued to be so even after the term of 3 months expired and that was the case until they died in 1948. But this again will not assist the plaintiff in this case because the suit is not within 12 years from the date of death of tenants. That matter is relevant because unlike a tenancy created under S.116 of the Transfer of Property Act by holding over With the assent of the landlord a tenancy at will is not heritable. That in fact is the essential distinction between a tenant holding over under S.116 of the Transfer of Property Act and a tenant at Will. If that be the case the defendants who continued in possession after the death of the executants of Ex. A1 for more than 12 years could not have been said to have held possession as lessees. If that be the case the defendants who continued in possession after the death of the executants of Ex. A1 for more than 12 years could not have been said to have held possession as lessees. Hence the suit must necessarily be found to have been instituted more than 12 years after the tenancy determined, for, it would be the date of death of these persons which would be the date of determination of the tenancy and that date is more than 12 years prior to the date of suit. 9. There is no necessity, as I said earlier, to consider the question of adverse possession, though my attention has been invited to certain decisions where in cases falling within the scope of Art.139 of the Indian Limitation Act, 1908 the question of adverse character of the possession of defendants has also been considered. But as observed by Privy Council in Mt. Allah Rakhi v Shah Mohammad ( AIR 1934 PC 77 at 80) "Learned counsel for the appellants referred to Art.139 as well as Art.144. It may be noted at once that the appellant's plea of adverse possession is obviously inconsistent with ' the application of Art.139, which relates to the case of a landlord suing to recover possession from a tenant." a plea of adverse possession is not relevant when considering the question of limitation under Art.139. 10. That on the expiry of the term of a lease that lease determines and suits filed beyond 12 years of that date would be barred is a proposition well settled and I do not think that I should refer to the various authorities cited at the bar. Suffice it to refer to the two decisions where this question has been considered, Thailammal v. Batumali (1965 (1) MLJ 883) and Sheogobind v Sajan (AIR 1950 Patna 156). 11. That a tenancy at will does not create a heritable right in the tenant is again well settled. I need only refer to a recent decision of this Court in Kariya Belchappada v. Vishnu Shanbhogue ( 1971 KLT 340 ). 12. Therefore, whatever may be the construction that I place on Ex. A1 plaintiff must fail as the suit is beyond 12 years from the date of Ex. A1. Hence the second appeal is allowed in reversal of the decree of the court below. Suit will stand dismissed. 12. Therefore, whatever may be the construction that I place on Ex. A1 plaintiff must fail as the suit is beyond 12 years from the date of Ex. A1. Hence the second appeal is allowed in reversal of the decree of the court below. Suit will stand dismissed. But in the circumstances of the case parties will suffer costs in this appeal. It goes without saying that the appellants Who are seen to have made some deposit pursuant to an interim order passed in this court in (C. M, P. 10533 of 1969) are entitled to get back the deposit. If it is still in deposit in court they may draw it. If already withdrawn by the respondents or any of them, it goes without saying, that they may seek for restitution in appropriate proceedings.