Venkatalakshmi Ammal v. Narayani Ammal — 1979 DIGILAW 410 (MAD)

Judgment :- 1. Since all the three second appeals are connected they are disposed of together. S, A. 1760 of 1976 arises out of O.S. No. 293 of 1973 on the file of the District Munsif, Ami, which was filed by Venkatalakshmi ammal and Vijayaraghavan Pillai for ejectment. S.A. 1761 and 1762 of 1976 arise out of two suits, O.S. No. 130 of 1974 and O.S. 542 of 1972, filed by one Narayani Ammal, who is the widow of the lessee of a plot of land, portions of which are subject matters in all the three suits. Before referring to the rival claims put forward by the parties in the said three suits, it is necessary to set out certain facts which gave rise to the disputes between the parties. 2. One Annamalai Pillai, the predecessor-in-interest of the appellants in S.A. 1760 of 1976 owned an extent of 1 acre, 7 cents in S. No. 321/1 and 1 acre in S. No. 319. On 19th January, 1940 under Ex. A.2 he leased out 80 cents in S. No. 321 and 70 cents in S. No. 319 to the husband of Narayaniammal on a monthly rent of Rs. 5 for a period of 15 years, Subscquently, under Ex. A1, dt. 19th January, 1955 an extent of 45 cents in S. No. 321/1 and 1 acre in S. No. 319 had been leased out for a further period of 5 years and the rent had been raised to Rs. T5. Portions of the said extent have, however, been sold to one Gopu alias Sadagopan and one Kannappa Mudaliar by the lessor The wife of the lessee under Ex. A1 has filed O.S. No. 130 of 1974 against the purchasers Gopu alias Sadagopan and Kannappa Mudaliar for a declaration that she continues to be a lessee of the properties notwithstanding the sale in their favour. The purchasers in turn, filed a suit, O.S. No. 542 of 1972, along with their vendor against Narayani Ammal for recovery of properties purchased by them. The lessor had filed the suit O.S. No. 293 of 1973 for recovery of possession of entire 45 cents on the ground that the lease in favour of Narayani Ammal had been terminated, and therefore, the is bound to deliver possession of the properties. Thus, all the three suits are in respect of portions of the same property. The lessor had filed the suit O.S. No. 293 of 1973 for recovery of possession of entire 45 cents on the ground that the lease in favour of Narayani Ammal had been terminated, and therefore, the is bound to deliver possession of the properties. Thus, all the three suits are in respect of portions of the same property. Therefore, there was a joint trial in all the three suits Since the suit O. S. 293 of 1973 is a comprehensive one, wherein the lessor sues his lessee for ejectment from the properties leased out to him, and the other suits are merely offshoots, I propose to deal with the contentions of the parties in that suit. 3. The plaintiff in that suit, as already stated, is the lessor and he seeks recovery of possession of the properties from his lessee, on the ground that the lease in favour of the defendant had been terminated. It has been alleged in the plaint that though originally, after the expiry of the second lease under Ex.A1, the lease should be taken from month to month, and the lease having been terminated by an issue of notice under the Transfer of Property Act, the lessee is liable to deliver possession of the property to the lessor. The case of the defendant is that as a successor-in-interest of the original lessee, he is in occupation of the land measuring 420 ft -210 ft, that is, an extent of 1.45 cents, that she is willing to buy the entire leasehold lands, that the suit is bad for want of proper notice of termination of tenancy and that in any event, the lessor having agreed to continue as a lessee without any limit of time, she cannot be evicted from the suit premises, 4. Evidence was adduced by the both the parties in support of their respective contentions. After considering the entire evidence, the trial Court held that the notice terminating the tenancy is not proper, and that there should be at least three months notice before termination as required under S. 106, Transfer Property Act, The trial Court, therefore, dismissed the plaintiffs suit on the ground that the lease in favour of the defendant has not been properly terminated. It also dismissed the other suit, O. S. 130 of 1974, holding that the properties sold to Gopu alias Sadagopan and Kannappa Mudaliar are not parts of the leasehold properties covered by lease deed, Ex. A1. However, it decreed the suit, O.S. 542 1972, filed by the purchasers. 5. Aggrieved by the decision of the trial Court, the plaintiffs in O.S 293 of 1973, filed an appeal before the lower appellate Court. In that appeal, they questioned the finding of the trial Court and stated that the notice terminating the tenancy was proper. The lessee also filed appeals against the dismissal of the suit O.S. 130 of 1974, and the decree passed in O. S. 542 of 1972 in favour of the purchasers. In those appeals, the lessee contended that the properties sold in favour of the purchasers are, in fact, included in the property leased out to him under Ex. A1., and therefore, the alienation in favour of the purchasers will not affect his interests as a lessee. All the above three appeals were taken up together by the lower appellate Court and a common judgment was rendered In the appeal A. S. No. 18 of 1976 filed by the lessor for ejectment against the lessee, it took the view that the notice issued by the lessor terminating the tenancy was valid, but as there was an oral agreement between the lessor and the lessee to allow the lessee to continue in possession without any limitation as to time, the lessee cannot be ejected from the suit properties even though the notice terminated the tenancy properly. In that view, the lower appellate Court dismissed the appeal. The lessor, aggrieved by the order of the lower appellate Court preferred S. A. No. 1760 of 1976. In this second appeal, the learned counsel for the appellant contends that the lower appellate Court having held that the notice terminating the tenancy is proper as the lease in question is from month to month after the expiry of the lease period referred to in Ex. In this second appeal, the learned counsel for the appellant contends that the lower appellate Court having held that the notice terminating the tenancy is proper as the lease in question is from month to month after the expiry of the lease period referred to in Ex. A1., was not correct in holding that there is at oral agreement between the parties to allow the lessee to continue indefinitely, that this view of the learned Judge is based on an utter misconception of the legal position that there cannot be an oral agreement to grant permanent lease, and that, such an oral agreement will be in violation of S. 107, Transfer of Property Act. The learned counsel referred in his support, the decision G. W. C. Ariff v. Jadunath Majumdar Bahadur 1931 P. C. 19=33 L.W. 586 (P.C.) and submitted that the decision in that case applies on all fours to this case. 6. A perusal of the judgment of the lower appellate Court indicates that having held, after the expiry of the lease period referred under Ex. A1., on 18th January, 1960, the lease should be taken from month to month it proceeded on the basis that since the lesser has been receiving the rent without taking any action to evict the lessee from 1960 to 1972. that is, for a period of 12 years, that would indicate that there should have been an oral agreement between the lessor and the lessee to allow the lessee to continue for ever on the same rent as mentioned under Ex. A.1. Thus, the inaction on the part of the lessor without taking eviction proceedings against the lessee for a period of 12 years has been taken as an indication that there should have been an oral permanent tenancy in favour of the lessee as found in Ex. B.7, But a perusal of Ex. B.7 shows that the lessee has been allowed to continue for a period of three more years on the same terms. The lower appellate Court has assumed an oral arrangement to have a permanent tenancy agreement from the mere fact of the tenant continuing after the expiry of the lease for period 12 years. I am inclined to agree with the learned counsel for the appellants that the approach of the lower appellate Court in this regard is quite improper and unsupportable. I am inclined to agree with the learned counsel for the appellants that the approach of the lower appellate Court in this regard is quite improper and unsupportable. Merely because the lessor has not taken steps to evict the lessee, it cannot automatically lead to the inference that there should have been a permanent tenancy agreement. Even assuming that the lessee was allowed to continue on the terms contained in the lease deed Ex. A 1 which had already expired, it cannot be taken to be a positive proof of an oral agreement to give a permanent tenancy between the lessor and the lessee. The conclusion arrived at by the lower appellate Court that there should have been apermanent tenancy agreement after the expiry of the lease under Ex. A1, is perverse and it is not possible to accept such a perverse finding. Even assuming that there was an oral agreement between the lessor and the lessee to give a permanent tenancy, unless such an oral agreement is reduced to writing, the same cannot be enforced. That is the position even if the lessee continued to be in possession of the property in pursuance of such an alleged oral agreement. Even assurming an oral agreement to have a permanent tenancy is established, still that cannot be a defence to the suit for ejectment filed by the lessor. An identical situation arose in Ariff v. Jadhunath Majumdar 1931 P. C. 19=33 L.W. 586 (P.C.). That was also a suit for ejectment by a lessor against his lessee. The tenant pleaded a verbal contract to give a permanent lease. The trial Court held that there was an oral agreement to give a permanent tenancy and by invoking the principle of equitable doctrine of part performance, dismissed the suit for ejectment. Ultimately, when the matter came before the High Court, Calcutta, the Court took the view that though the lessee had not obtained a lease in the form of a registered instrument he could still resist ejectment, that the case fell within the principle of tquity and that the case being one in which an oral agreement and possession on the footing of it has been established, it fell within the principle laid down in Maddison v. Alderson 3 L.E.R. 820. 7. 7. When the matter was ultimately taken to the Privy Council challenging the view taken by the High Court their Lordships of the Privy Council, however, did not accept the approach made by the High Court as proper, and observed— “Their Lordships cannot help feeling that some son fusion of thought has prevailed in the Court con below in regard to the facts of this case, and the application of the authorities to these facts. This is no case of money being expended by the respondant in any mistaken belief as to his legal rights, or of the appellant knowing of the existence of any such mistaken belief, or encouragement of the respondent by abstaining from asserting a right inconsistent with the acts of the respondent: According to the Privy Council, ever if an oral agreement to give a permanent lease is established and the structures had been erected by the lessee, on the basis of such an oral agreement, the lessee cannot get over the statute of frauds, and it is well-settled that the statute of frauds only affect the right to sue on the contract and on the facts of that case, as the acts of the lessee are referable to a verbal contract, the statute disables him from contesting the lessors right to possession, unless there is a document in writing on register, as contemplated by S. 107, Transfer of Property Act. Dealing with the equitable doctrine which was invoked by the High Court in this case, then Lordships observed that they cannot find that the facts in that case raised any equity in favour of the tenant, and that even if any such equity was established, they are of the opinion that it cannot operate to nullify the provisions of the Indian Code relating to transfer of property. In this case, the oral agreement to give a permanent tenancy has not been established by positive evidence, and it is sought to be inferred from the factum of inaction on the part of the lessor to evict the tenant from the leasehold premises even after the lease period expired. As already stated, such an inference is not possible legally and the oral lease of permanent nature cannot be inferred from the inaction on the part of the lessor, without there being any positive evidence to prove the oral agreement. As already stated, such an inference is not possible legally and the oral lease of permanent nature cannot be inferred from the inaction on the part of the lessor, without there being any positive evidence to prove the oral agreement. Even if the oral agreement to give a permanent lease is proved, still the lessee cannot set up such an oral agreement in the face of the statutory provisions under S. 107, Transfer of Property Act, which provides that in cases of lease for one year and more, the lease should be in writing. Therefore, in this case, the lower appellate Court has not correctly invoked the principle of equity. As has been held by the Privy Council in the above case, the equitable doctrine cannot override the statutory provisions. This is on the assumption that there has been an oral agreement to grant a permanent lease; but such an oral agreement has not been proved on the evidence in this case. I am therefore of the view that the decision of the appellate Court holding that the plaintiff is not entitled to a decree of ejectment against the lesee cannot be upheld. The said appeal, is therefore, allowed and there will be a decree in favour of the appellant as prayed for by then in their suit. 8. S.A. 1761 of 1976 is filed against the decision in A.S. No. 120 of 1975 arising out of O. 5.130 of 19 74, The only dispute in that suit was whether the property alienated by the lessor is covered by the lease deed, Ex. A1. The same issue arises in S.A. 1762 of 1976, which arises out of O.S. 542 of 1972 filed for delivery of possession by the purchasers In both those appeals, the lower appellate Court has held that the items sold by the lessor are actually covered by the the lease deed, Ex. A1 and therefore, notwithstanding the alienation, the lessee is entitled to continue in possession until evicted by due process of law. The learned counsel for the lessor vehemently contended that the findings of the lower appellate Court cannot be sustained. A perusal of the documents in this case would indicate that the two items sold to the two purchases Kannappa Mudaliar and Gopu alias Sadagopan are, in fact, included in Ex. A1. The learned counsel for the lessor vehemently contended that the findings of the lower appellate Court cannot be sustained. A perusal of the documents in this case would indicate that the two items sold to the two purchases Kannappa Mudaliar and Gopu alias Sadagopan are, in fact, included in Ex. A1. It is not in dispute that the earlier lease deed contains an extent of 1.5 acres but the later lease deed, Ex. A1, referred to 1.45 aces. According to the lessee, the exact property, which was leased out to him under Ex. A2 is actually in his possession as a lessee. The lessor, on the other hand, would contend that, when he executed the lease deed, Ex. A1, he retained an extent of 25 cents and out of that 25 cents retained by him, he sold 5 cents in favour of Kannappa Mudaliar and Gopu alias Sadagopan. But, there is no evidence that the lessor retained 25 cents of laud and leased out only the balance under Ex. A1. In this view, I have to agree with the finding arrived at by the lower appellate Court that the portions sold by the lessor in favour of Kannappa Mudaliar and Gopu alias Sadagopan form part of the lease, Ex. A.1 in this view, the decision of the lower appellate Court in appeals filed by the lessee in A. S. 120 and 121 of 1925 is upheld. There will be no order as to costs in all the appeals. 9. The lessee will, however, have six months time to remove the superstructure put up by her and surrender vacant possession.