Judgment :- 1. Plaintiffs in OS. 1316 of 1986, on the file of First Assistant Judge, City Civil Court, Madras, are the appellants. After the filing of this Second Appeal, second respondent (father of appellants) died, and therefore, appellants 4 and 5 have been impleaded. 2. The suit filed by plaintiffs was to direct the first defendant to deliver vacant possession of the land described in the schedule to them and on behalf of the second defendant, after removing the superstructures put up by the first defendant, for a declaration that the first defendant is not entitled to any renewal of the lease; to direct the first defendant to pay Rs. 750/- for rent upto 31-12-1982 and Rs. 250/- for damages for use and occupation from 1-1-1983 to the date of filing of the suit; for direction to the first defendant to pay damages for use and occupation from the date of suit till date of delivery of possession of the Schedule mentioned property at Rs. 250/- per ground per month; and for other consequential reliefs. 3. In the plaint, it is alleged that the suit property belonged to the paternal great grand father of plaintiffs late A. Ramalingam Pillai. On the death of Ramalingam Pillai, his son Shanmugham was in management of the property as well as other properties of the joint family. Shanmugnam, grandfather of plaintiffs leased out a portion of the land to Burmah Shell Oil Storage and Distributing Company of India Limited as per Ex. B-9 dated 9-4-1958(lease deed). Though the lease deed is dated 9-4-1958, the lease commenced from 1-1-1958, the lessee having agreed to pay a monthly rent of Rs. 200/- and the term of lease was fixed as 20 years. It was specifically provided under the lease deed that the lease was granted for the purpose of erecting one or more pumps together with tanks and fittings and such other buildings as the lessee may choose to erect for the storage of petrol, High Speed Diesel Oil and any other petroleum products and for carrying on business. It was specifically provided under the lease deed that the lease was granted for the purpose of erecting one or more pumps together with tanks and fittings and such other buildings as the lessee may choose to erect for the storage of petrol, High Speed Diesel Oil and any other petroleum products and for carrying on business. There was also a clause in the lease deed which reads thus:— “The lessor will on the written request of the lessee made one month before the expiration of the term hereby created and if there shall not be at the time of such request any existing breach or non-observance of any of the covenants on the part of the lessee hereinbefore contained grant to it a lease of the demised premises on the rental of Rs. 250/- per month for the term of 20 years from the expiration of the said term and containing the like covenant and provisions as are herein contained with the exception of the present covenant for renewal.” 4. When the term was about to expire, the first defendant wrote to plaintiffs grandfather on 29-3-1977 (Ex. A-3) indicating its intention to renew the lease for a further period of 20 years at the enhanced rental of Rs. 250/- per mensem, and calling upon the appellants grandfather to execute a lease deed. A reminder was also sent as evidenced by Ex. B-13 dated 5-12-1977, for which appellants grandfather replied, evidenced by Ex. B-2 dated 23-12-1977, that in view of the partition in the family, the property has been allotted towards the share of the father of appellants (who has been impleaded as second defendant in the suit). On the same date of Ex. B-2, second defendant wrote to the first defendant that he is demanding an increase in the rent at the rate of Rs. 600/-permensem in view of the increase in urban land tax, and he also agrees to renew the same, of course, subject to the payment of enhanced rent. Thereafter, as per Ex. B-12, on 7-3-1978, first defendant again reminded the appellants father about the renewal of lease. For sometime, i.e. , for more than a year, there was no correspondence between the parties. But, on 19-12-1980 as evidenced by Ex. Thereafter, as per Ex. B-12, on 7-3-1978, first defendant again reminded the appellants father about the renewal of lease. For sometime, i.e. , for more than a year, there was no correspondence between the parties. But, on 19-12-1980 as evidenced by Ex. B-3, deceased second defendant asked the first defendant to send a draft lease deed for a period from 1-1-1978 in renewal of the lease deed dated 9-4-1958. In that letter evidenced by Ex. B-3, he asked the first defendant to fence the entire property which was then lying in a damaged condition and also wanted certain thatched sheds constructed in the property to be removed. In that letter, second defendant has said that since the lease has been granted for storage of petroleum products, construction of thatched sheds nearby will be dangerous to the property. Ex. B-3 is replied by first defendant on 22-1-1981 (evidenced by Ex. B-14). They sent a draft of the lease deed which contained different terms from the one stipulated in Ex. B-9. Regarding the construction and also fencing, they replied that they have written to their superiors, and on getting information, the same will be informed to the second defendant. On receipt of Ex. B-14, second defendant replied that there is vast difference between the draft lease and Ex. B-9 lease, and, therefore, he wanted deletion of those clauses. He also wanted a reply regarding the other point which he had raised in Ex. B-3. On 20-2-1981 (evidenced by Ex. A-5), 1st defendant agreed to delete the objectionable clauses in the draft lease deed and wanted a proper lease deed to be executed. On receipt of Ex. A-5, second defendant wrote under Ex. A-6 on 3-3-1981 giving a conditional approval for the grant of renewal. He also wanted income-tax clearance to be obtained since the lease is for a period of 50 years. Again, for some months, there was no improvement in the execution of lease deed. Finally, under Ex. B-5, second defendant wrote to first defendant that his earlier directions to fence the property should be carried out, and encroachments by neighbours should be removed, and property should not be used for some other purpose, and wanted an assurance from first defendant that the land will not be used for any other purpose other than the one mentioned in the lease deed. In Ex. In Ex. B-5, second defendant has informed the first defendant that on an inspection of the property, he found that neighbours of the suit property are making use of the same for easy access to their houses, and that the property was also being used for some other purpose, and wanted the clause which prohibits the first defendant from making use of the land for any other purpose to be included in the lease deed. First defendant did not care to send a reply for the same. Under Ex. B-7 dated 24-8-1982, an advocate notice was issued on behalf of plaintiffs represented by their next friend (mother) informing the first defendant that no renewal could be given to the first defendant since the same is not advantageous to the family and also in view of the fact that the lessee has not acted in accordance with the terms of the lease. In that notice, the various acts and omissions by the first defendant were also informed, and they wanted the first defendant to vacate the premises. Three months notice was given, asking the first defendant to vacate the same as provided under Section 11 of the Madras City Tenants Protection Act. In the meanwhile, second defendant also informed the first defendant, refusing to extend the lease. The advocate notice sent by plaintiffs was replied by first defendant, denying the title of the plaintiffs, stating that they have no locus standi in the matter as the property belonged to second defendant, and not to the plaintiffs. To the letter written by second defendant refusing to extend the lease, a further reply was sent by first defendant as per Ex. A-10. Later, under Ex. B-8, second defendant further issued a notice terminating the tenancy in compliance with the Madras City Tenants Protection Act, dated 27-9-1982. Thereafter, on the expiry of the period, plaintiffs, filed the suit for the reliefs as mentioned above, making their father as second defendant in the suit. 5. After receipt of summons, after the first defendant filed a written statement, a Commissioner was deputed to note the physical features of the property and also to ascertain and report as to how far the allegations in the various correspondence and also in the plaint were true. The Commissioner visited the property on 21-12-1983. 6. 5. After receipt of summons, after the first defendant filed a written statement, a Commissioner was deputed to note the physical features of the property and also to ascertain and report as to how far the allegations in the various correspondence and also in the plaint were true. The Commissioner visited the property on 21-12-1983. 6. In the written statement filed by the first defendant, it admitted in paragraph 2 that the lease deed was taken for the purpose of putting up a petrol bunk in the land. Thereafter, it was contended that on 21-4-1976, the Government of India acquired the assets of the Burmah Shell Oil Storage and Distributing Company of India Limited and vested the same in a Government Company called Burmah Shell Refineries Limited. On 12-2-1976, the name of Burmah Shell Refineries was changed to Bharat Refineries Limited. On 1-3-1977, the name of Bharat Refineries Limited was further changed into Bharat Petroleum Corporation Limited. It is their further case that on 29-9-1977, first defendant exercised their option for renewal of the lease for another term of 20 years on an increased rental of Rs. 250/-, for which a reminder was also sent on 5-12-1977. They also admit the correspondence with the plaintiffs paternal grandfather and also second defendant. They also further admit that there was a demand from second defendant to pay enhanced rent of Rs. 600/- per mensem, which they did not agree. They also admit that a draft lease deed was sent. It is seen from the further averments that the entire correspondence and the allegations in the plaint regarding the process for executing a renewal lease deed were going on, are admitted. They have also admitted about the second defendant asking them to fence the property, and also about the destruction of the fence, and the neighbours making use of the property as easy access to reach their houses, etc. They also admit that the second defendant informed them that 8 1/3 grounds within the City on a monthly rent of Rs. 250/- has caused great loss to the family and, therefore, they were not willing to renew the lease. Thereafter, a lawyers notice was also issued by plaintiffs. It is said that on receipt of the lawyers notice, first defendant informed the plaintiffs about their entitlement on the basis of the contractual rent to have the same renewed. 250/- has caused great loss to the family and, therefore, they were not willing to renew the lease. Thereafter, a lawyers notice was also issued by plaintiffs. It is said that on receipt of the lawyers notice, first defendant informed the plaintiffs about their entitlement on the basis of the contractual rent to have the same renewed. It is their further case that apart from the contract, they have got a statutory right also for renewal under Sec. 5(2) of Act 2 of 1976. In paragraph 6, they have further said that they are entitled to the benefits of S. 53-A of the Transfer of Property Act, and the present suit for recovery of possession is not sustainable. 7. In the written statement filed by second defendant, he admitted about the lease and also his claim for enhanced rent. He has further said that since the first defendant expressed its unwillingness to pay enhanced rent, and also when it was found that if the renewal of lease is granted, that will affect the family, he offered to the first defendant one or two grounds required for installation of its machineries, and wanted the balance area to be surrendered. He supported the case of the plaintiffs. 8. On the above pleadings, trial Court took oral and documentary evidence. On the side of plaintiffs, P.W. 1 (grandfather of plaintiffs) was examined. On the side of first defendant, D.W. 1, one of their Officers was examined. As documentary evidence, Exx. A-1 to A-51 were marked, and Exx. B-1 to B-14 were marked. Exx. C-1 to C-3 were marked as Court Exhibits. 9. Trial Court, after evaluating the entire evidence, came to the conclusion that the grant of renewal, if allowed, will be detrimental to the family of the plaintiffs. It further found that on the basis of Exx. C- 1 to C-3, first defendant was found making use of the property for a different purpose. It also came to the conclusion that the tax liability over this property has increased, and if the first defendant is allowed to have the renewal, plaintiffs family itself will be ruined, and the same will be detrimental to the minors. It also found that the first defendant has not acted in accordance with the lease deed, nor has it observed the terms and conditions contained therein. There was also breach of the agreement on its part. It also found that the first defendant has not acted in accordance with the lease deed, nor has it observed the terms and conditions contained therein. There was also breach of the agreement on its part. So holding, the suit was decreed as prayed for. 10. Against that judgment, first defendant-Corporation preferred A.S. 276 of 1986, on the file of City Civil Court, Madras. The lower appellate Court set aside the judgment and decree of the trial Court. It gave a decree to the plaintiffs directing the first defendant to pay Rs. 1,000/- as arrears of rent upto the date of filing of suit, and also directed the first defendant to pay rent at the rate of Rs. 250/- per mesnsem from February 1983 to the plaintiffs and second defendant. Trial Courts judgment declaring that the first defendant is not entitled to renewal, and the direction given by it to the first defendant to surrender vacant possession of the schedule property was set aside. The lower appellate Court held that the first defendant was ready to get the renewal, and it acted in accordance with the lease deed. Even though the second defendant was initially willing to execute the renewal, due to oblique reasons, he refused to execute the same. It further came to the conclusion that the clause of renewal is part of the contract, and plaintiffs are not entitled to impeach the same since they were born subsequent to the lease. The lower appellate Court also found in paragraph 29 that the lease for a period of 20 years is likely to cause some hardship to the minor plaintiffs monetarily. But it held that P.W. 1 is bound to execute the renewal arid first defendant Corporation is entitled to have the contractual right. The lower appellate Court further came to the conclusion that the various objections raised by second defendant cannot be termed as violation of the covenant in the lease deed, when they were only requests made by second defendant. Further it came to the conclusion that even if the land is used by the first defendant, the same cannot be termed as using the property for a different purpose. It held that it is only the right of the first defendant and, therefore, it is entitled to make use of the same for that purpose. Further it came to the conclusion that even if the land is used by the first defendant, the same cannot be termed as using the property for a different purpose. It held that it is only the right of the first defendant and, therefore, it is entitled to make use of the same for that purpose. The lower appellate Court further came to the conclusion that the first defendant is entitled to the benefit of Section 53-A of the Transfer of property Act, since it acted on the promise and has expressed its willingness to have a renewal, and the second defendant was also receiving rent after the expiry of the earlier period. The lower appellate Court further held that in view of Section 5(2) of the Central Act 2 of 1976, first defendant is entitled to get a statutory renewal. For the above reasons, the recovery part of the decree granted by trial Court was set aside. Regarding the validity of notice, the lower appellate Court held that since the first defendant is entitled to be in possession, the termination of tenancy is not valid. It is against the said judgment, plaintiffs have preferred this Second Appeal. 11. At the time of admission of the Second Appeal, the following substantial questions of law were raised for consideration:— “1) Whether the first respondent who has committed breach of the terms and conditions of the lease Ex. A-1 or Ex. B-9 was entitled in law to a renewal of the lease for a further term of 20 years, commencing from 1-1-1978. 2) Whether without any pleadings in the trial court the first respondent is entitled in law to raise the pleas of waiver and estoppel for the first time in the appeal A.S. No. 276 of 1986 arising out of the decree for possession. 3) Whether the provisions of Sec. 5(2) of the Burmah Shell Acquisition of Undertaking in India Act, 1976 (Act 2 of 1976) applied to the lease under Ex. A-1 and conferred a statutory right on the first respondent to obtain renewal of the said lease for a further term of 20 years. 4) Whether in the suit for eviction filed on the termination of the lease under Ex. A-1 and conferred a statutory right on the first respondent to obtain renewal of the said lease for a further term of 20 years. 4) Whether in the suit for eviction filed on the termination of the lease under Ex. A-1, the first respondent/tenant who became disentitled to obtain renewal of the lease for a further term on account of its breach of the terms of the lease and who without filing any suit for specific performance to enforce the renewal clause contained in the lease Ex. A-1 could be granted under law the relief of renewal of the lease as claimed by the first respondent? 5) Whether the first respondent whose tenancy stood terminated on the expiry of the period of lease and who has committed breach of the terms of lease under Ex. A-1 was entitled to be granted any relief on the principle of part performance under Sec. 53-A of the Transfer of Property Act? 6) Whether the clause for renewal of the lease contained in the lease deed Ex. A-1, operated as an encumbrance and whether the same will run with the demised property? 7) Whether the clause for renewal of the lease contained in the lease deed Ex. A-1 when it was sought to be enforced and claimed by the first respondent in the suit for eviction is valid and binding on the minor coparceners-the appellants herein and enforceable against them under law? 8) Whether on the facts and in the circumstances of the case the appellants-minor coparceners are entitled in law to refuse to accept the renewal clause in the lease Ex. A-1 as sought for by the first respondent on the ground that the enforcement of the said renewal clause would cause hardship and be prejudicial to their interests in the demised property? 9) Whether the decree for rent, past and future, as granted by the lower Appellate Court is valid in law? 10) Whether the notice of termination of the tenancy was valid in law and whether the appellants are entitled to the reliefs of declaration and recovery of possession in respect of the suit property? and 11. Whether the respondent is entitled to renewal of lease for the nominal rent of Rs. 10) Whether the notice of termination of the tenancy was valid in law and whether the appellants are entitled to the reliefs of declaration and recovery of possession in respect of the suit property? and 11. Whether the respondent is entitled to renewal of lease for the nominal rent of Rs. 250/- per mensem when the appellants are spending for taxes alone far in excess of the rent receivable for the property worth several lakhs, being most unjust, inequitable with absolutely no benefit but only resulting in heavy loss to the appellants?” 12. Even though 11 questions of law have been raised for consideration, I feel that question Nos. 1, 2, 4, 5, 7 and 8 could be considered together, and question No. 3 has to be considered separately, and the remaining questions together. 13. Regarding Question Nos. 1, 2, 4, 5, 7 and 8, it may be stated that the property belonged to the plaintiffs joint family, is the finding entered by both the Courts below. Even though the first defendant under Ex. B-10 disputed the locus standi of the plaintiffs and also their title to the property, no serious argument was put forward by learned counsel for first defendant-Corporation in that regard before this Court. In fact, the finding of both the Courts below is that the property belonged to the plaintiffs family, and that is why the lower appellate Court has granted a decree for arrears of rent and for the rent from 1983 onwards to the plaintiffs and second defendant. 14. The most important question that has to be considered is, whether the first defendant is entitled to get the lease renewed in accordance with the provisions in Ex. B-9. While narrating the facts, I have already extracted the clause for renewal in Ex. B-9. The claim of plaintiffs is that if a renewal is granted, that will seriously affect the plaintiffs family. As against the said contention, the case of the first defendant is that the clause of the renewal cannot be attacked by plaintiffs since it is part of an earlier completed contract, and at that time, plaintiffs were not born and, therefore, they are incompetent to challenge it. It is their further contention that the second defendant, who is the Kartha of the family, has not challenged it and has agreed to have the document renewed. It is their further contention that the second defendant, who is the Kartha of the family, has not challenged it and has agreed to have the document renewed. It is their further case that they are entitled to Sec. 53-A of the Transfer of Property Act and they have done what all could be done from their side for getting the renewal. 15. As narrated above, trial Court upheld the claim of the plaintiffs. But the lower appellate Court gave a different reasoning to discard their case. According to me, the most important point that has to be considered in this case is, whether defendants are entitled to the benefits of Sec. 53-A of the Transfer of Property Act. When we consider that, the other questions relay go to the background. But I will discuss those questions also after arriving at a finding as to whether first defendant-Corporation is entitled to the benefits of Section 53-A of the Transfer of Property Act, which is the fifth substantial question of law in this Appeal. 16. In A.I.R. 1996 S.C. 910 (Mohan Lal v. Mira Abdul Gaffar), their Lordships have considered the legal requirements that will enable the defendant to claim the benefits of Section 53-A of the Transfer of Property Act. In that case, which arose from a suit for recovery of possess on, defendant contended that on the basis of agreement for sale, he has obtained possession of the property and was entitled to Section 53-A of the Transfer of Property Act. While considering the same, their Lordships have said in paragraph 6 thus:— “Except vaguely denying that he is not ready and willing to perform his part, he did not specifically plead it. Under Section 16(c) of Specific Relief Act, 1963, the plaintiff must plead in the plaint, his readiness and willingness from the date of the contract till date of the decree. The plaintiff who seeks enforcement of the agreement is enjoined to establish the same. Equally, when transferee seeks to avail of Section 53-A to retain possession of the property which he had under the contract, it would also be incumbent upon the transferee to plead and prove his readiness and willingness to perform his part of the contract. He who comes to equity must do equity. Equally, when transferee seeks to avail of Section 53-A to retain possession of the property which he had under the contract, it would also be incumbent upon the transferee to plead and prove his readiness and willingness to perform his part of the contract. He who comes to equity must do equity. The doctrine of readiness and willingness is an emphatic way of expression to establish that the transferee always abides by the terms of the agreement and is willing to perform his part of the contract. Part performance, as statutory right is conditioned upon the transferees continuous willingness to perform his part of the contract in terms covenanted thereunder.” (Emphasis) 17. In (1996) 7 SCC 690 =1996-1-L.W. 368 (Patel Natwarlal Rupji v. Kondh Group Kheti Vishayak and another) also, the scope of Sec. 53-A of the Transfer of Property Act was considered. In paragraph 6 of the judgment, their Lordships said thus:— “Though the doctrine of part performance embodied in Section 53-A of the Act is part of equitable doctrine in English law, Section 53-A gives statutory right which is available to the transferee for consideration in possession of the property had under the contract. In terms of the section, so long as the transferee has done and is willing to perform his part of the contract or, in other words, is always ready to abide by the terms of the contract and has performed or is always ready and willing to perform his part of the contract, the transferee is entitled to avail of this statutory right to protect his possession as a shield but not as a sword. The right to retain possession of the property rests on the express provisions of the Act and on his compliance thereof. A person who pleads equity must come to the Court with clear hands and he alone is entitled to the benefit of this section. The section does not create a right or title in the defendant. It merely operates as a bar to the plaintiff to assert his title. The transfer or is barred from enforcing his rights other than those expressly provided by the contract. The section does not create a right or title in the defendant. It merely operates as a bar to the plaintiff to assert his title. The transfer or is barred from enforcing his rights other than those expressly provided by the contract. The section, therefore, imposes a bar on the transferor, when the conditions mentioned in the section are fulfilled by the transferor and the section also bars the transferor to enforce his rights against such transferee or person deriving right, title and interest from such transferee. It would, therefore, be clear that Section 53-A confers a right on the transferee, to the extent it imposes a bar on the transferor, to protect the transferees right to retain possession of the property had under the contract. It would thus be clear that Section 53-A confers no title on the transferee but imposes a statutory bar on the transferor to seek possession of the immovable property from the transferee. Equally, Section 53-A does not confer any title on the defendant in possession nor can he maintain a suit on title.” In that, case, their Lordships have further held that the person who pleads equity must come to Court with clean hands and a defence under Section 53-A of the Transfer of Property Act is an equitable relief. It was further held that the transferee, only on satisfying the conditions mentioned in the said Section, can claim the benefit. 18. How far the first defendant is entitled to the benefits will be considered on the basis of these two decisions. 19. In the written statement of the first defendant, the only pleading regarding Section 53-A of the Transfer of Property Act is as stated in para 6 which reads thus:— “This defendant further states that as it has exercised its option for renewal in time it is entitled to hold its possession as a shield under the doctrine of part performance as set out under Section 53-A of the Transfer of Property Act and hence the present suit for recovery of possession is wholly unsustainable in law.” According to me, the pleading does not satisfy that requirement as stated by their Lordships in the decision reported in AIR 1996 SC 910 (Supra). In that case, their Lordship said that the pleading under Sec. 53-A, T.P. Act must be in accordance with Section 16(c) of the Specific Relief Act. In that case, their Lordship said that the pleading under Sec. 53-A, T.P. Act must be in accordance with Section 16(c) of the Specific Relief Act. When the statutory requirement has not been complied with in that pleading, that itself is sufficient to hold that the first defendant is not entitled to the benefits of that Section. But I am not entering a finding on the basis of the lack of pleading alone. 20. Section 53-A, T.P. Act comes into play on the basis of contract entered into between the parties. Naturally, when the first defendant claims that it is entitled to have renewal, the readiness and willingness should be in terms of the agreement already executed by it. In Ex. B-9 it is admitted that the lease was granted only for the purpose of installing a petrol bunk. In fact, the purpose of the lease is admitted in paragraph 2 of the written statement to which reference has already been made. It is true that long before the expiry of the term under Ex. B-9, they wrote to P.W. 1 about their intention to renew the lease for a further period of 20 years. But, according to me, the subsequent conduct of the first defendant is also a relevant factor to be considered, to show their readiness and willingness. Ex. B-14, letter written by first defendants dated 22-1-1981. It shows that they wanted to incorporate some more clauses in the lease deed which were not provided in Ex. B-9. Along with Ex. B-14 letter, a draft lease deed has been sent by first defendant to the second defendant. A mischievous clause is included therein which reads thus:— “and for carrying on business in such product-through such facilities and other kindred motor accessories or any other trade or business that can conveniently be carried on in the demised premises”. This clause in the draft renewal deed was incorporated after the second defendant informs that there had been violation of the clauses in the lease, viz., the property had been damaged, fence has been destroyed and the neighbours have been allowed to encroach upon the property, thatched huts had been put up near the petrol bunk, and these things are there, even though it is admitted in the earlier lease deed that it is intended only for the purpose of installing petrol bunk. There is also one purpose behind the incorporation of such a clause mentioned above. In fact, the property was used for some other purpose. The Commissioner, after he visited the property found that heap of sand was stored in the property and the same was being sold. The entire property was being used as a lorry stand. More than 30 to 40 lorries were parked in the premises. So, it is with that intention in mind, they have incorporated this clause. It shows that the first defendant did not send a draft renewal lease deed in terms of the earlier lease deed. In fact, even during that time, the property was being used as such. The readiness and willingness must be in terms of the contract and that must be continuous from the date of contract till it is completed. - vide (1967) II S.C.W.R. 147 (Gomathinayagam Pillai and others v. Palaniswami Nadar). Since the principle of Sec. 16(c) of the Specific Relief Act has to be read into Section 53-A. T.P. Act., the willingness must also be the same. The same is absent in this case, and, what the first defendant wanted was not a renewal in terms of the contract, but with a modification. 21. When the second defendant informed the first defendant about the violation of the terms of the lease, as a person in possession, first defendant ought to have immediately informed the second defendant either they are not using it for those purposes as alleged by the second defendant, or that they would refrain from doing so. Instead, they only inform the second defendant, that this is a matter which requires further consideration after hearing from their superiors. The superiors are nowhere near the schedule property. From the way in which replies are sent by first defendant, it is clear that the property was used by the lessees with intent to cause damage and the statutory duties of the lessee were abdicated by them. In fact, the very property was used as a workshop. This was brought to the notice of the first defendant under Ex. A-6. Again they informed that this is also a matter which they could reply after getting instructions from their Divisional Office. In fact, the very property was used as a workshop. This was brought to the notice of the first defendant under Ex. A-6. Again they informed that this is also a matter which they could reply after getting instructions from their Divisional Office. It may also be seen that in the written statement, in paragraph 5 the first defendant has taken a specific contention that they intend filing a suit for specific performance for execution of lease deed in their favour. Till date no such suit is filed. Their conduct also shows that they do not want a specific performance of the agreement, and their claim that they are ready and willing to take a renewal of the lease also falls to the ground. In AIR 1996 SC 910 (supra), defendant therein filed a suit for specific performance, and plaintiff also filed a suit for recovery of property. The suit for specific performance was dismissed. In that case, their Lordships said that since the suit for specific performance stands dismissed, it follows that the willingness to perform his part of the contract also fails. According to me, the same reasoning will apply to this case also, when the first defendant says that he wants to file a suit for specific performance, but in spite of the fact that the plaintiffs have filed the suit for recovery of possession, the first defendant has not taken any steps for filing a suit for specific performance, and from this, it is clear that such an averment is only a delaying tactics to surrender possession. I find that in view of the conduct of the first defendant, and also the previous correspondence between the parties, the first defendant was not willing to perform his part of the contract even though it wrote to the second defendant that it wanted a renewal. The subsequent conduct, which the Court is entitled to consider, conclusively proves that the first defendant had no such intention. 22. It is true that the (deceased) second defendant did write to the first defendant that he is prepared to have the lease renewed, with a condition that he wanted enhanced rent. The said claim of the second defendant can never be said as without bona fides or without any reason. He informed the first defendant about the reason why he demanded enhancement of rent. At the time when Ex. The said claim of the second defendant can never be said as without bona fides or without any reason. He informed the first defendant about the reason why he demanded enhancement of rent. At the time when Ex. B-9 was executed, the Tamil Nadu Urban Land Tax Act was not enacted. Subsequently, the Act came into force in 1966. There is a provision in that Act, namely, Section 25, which enables the landlord to get enhancement of rent. The section says that in respect of any land to which the Act applies, the landlord is entitled to get in excess one half of the amount of the actual rent payable. The reason for making such provision is, a great burden is imposed on the landlord on enforcement of the Act. The legislature itself has taken note of the burden. Making mention of this Act and also the difficulties of the landlord in meeting the daily requirements, second defendant wanted enhanced rent. He wanted Rs. 600/- per mensem, instead of Rs. 250/-. The claim might have been exaggerated. But, there is a statutory recognition which entitles him to get enhanced rent. First defendant sent a reply refusing to pay even a pie more than provided in Ex. B-9. The same is clear from Ex. A-4 dated 26-12-1977. It is also in evidence that the property was properly fenced at the time when it was given on lease. Due to the negligence of the first defendant, the fence was damaged, and the neighbouring property owners had began to make use of the suit property as easy access to their houses. A lessee is bound to protect the interest of the lessor, and he is bound to see that no damage is caused to the same by his negligence. First defendant has failed in that duty. Trial Court has taken into consideration the conduct of the lessee in coming to the conclusion that it is not entitled to get renewal of lease. But the lower appellate Court has held that the various instances pointed out by the second defendant are only requests made by him, and not covenants of the lease. The lower appellate Court, according to me, has not taken into consideration the provisions of S. 108, T.P. Act. 23. But the lower appellate Court has held that the various instances pointed out by the second defendant are only requests made by him, and not covenants of the lease. The lower appellate Court, according to me, has not taken into consideration the provisions of S. 108, T.P. Act. 23. The lower appellate Court has found in paragraph 29 that if a renewal is granted, that will put the plaintiffs to hardship and in paragraph 30, it is repeated that even if the plaintiffs are put to monetary loss or hardship, that cannot be a ground to hold that the first defendant is not entitled to the benefit of Sec. 53-A of the Transfer of Property Act. Of course, the said question may arise in a suit for specific performance by first defendant. But, having found that there will be hardship to the plaintiffs, equity has to be taken into consideration. For my conclusion, I place reliance on the decision reported in 1996-1-L.W. 748= (1996) 4 S.C.C. 593 (Kanshi Ram v. Om Prakash Jawal and others) wherein their Lordships have said that even though it is a suit for specific performance, a subsequent increase in the price of the property is not a relevant consideration. But the Court cannot close its eyes to realities. In paragraph 5 of the judgment, their Lordships said: “It is true that rise in prices of the property during the pendency of the suit may not be the sole consideration for refusing to decree the suit for specific performance. But it is equally settled law that granting decree for specific performance of a contract of immovable property is not automatic. It is one of discretion to be exercised on sound principles. When the Court gets into equity jurisdiction, it would be guided by justice, equity, good conscience and fairness to both the parties. (Emphasis) Their Lordships took into consideration these factors and allowed the Appeal, and the decree for specific performance as granted by the Courts below was found to be inequitable, and instead, their lordships granted only damages. I am relying on this decision only for the purpose of emphasising that when the principles of specific performance are applicable for a claim under Sec. 53-A, T.P. Act, fairness of both parties must be proved. I am relying on this decision only for the purpose of emphasising that when the principles of specific performance are applicable for a claim under Sec. 53-A, T.P. Act, fairness of both parties must be proved. The lower appellate Court itself has come to the conclusion that if the renewal is granted, it will cause hardship to the minor plaintiffs. The discretion should have been exercised in their favour. On facts themselves, as I have said earlier, first defendant is not entitled to the benefits of S. 53-A of the Transfer of Property Act. On Question No. 1, I hold that by making use of the property for a different purpose, first defendant has violated the terms of Section 108, T.P. Act. 24. On question No. 2, the lower appellate Court has found that even if the first defendant has violated the terms or covenants under the lease deed, second defendant has waived the same. In fact, on going by the pleadings in this case, I do not think, the first defendant has any such case at all. On the contrary, on a reading of the written statement of the first defendant, I find that the second defendant was all along refusing to execute a lease deed as put forward by the first defendant. Even though he has expressed his willingness to execute a renewal, that was on the basis of certain conditions. Even when he expressed his readiness to execute a renewal, he wanted an answer from the first defendant regarding violations to the clause in the lease deed. It is settled law that when a waiver or estoppel is argued, that must be based on pleadings. Apart from the lack of pleadings in this case, I do not find anything in this case to show that the second defendant has ever waived his right to question the violation of the provisions in the lease deed. On question No. 4, in view of my findings earlier, I hold that the first defendant is not entitled to get a renewal on the basis of the clause in Ex. B-9. 25. Regarding question Nos. 7 and 8, the minor coparceners of the family are entitled to challenge the enforceability of the clause when the same is sought to be enforced. B-9. 25. Regarding question Nos. 7 and 8, the minor coparceners of the family are entitled to challenge the enforceability of the clause when the same is sought to be enforced. The finding of the lower appellate Court that it is a part of the contract and the same was incorporated long before the plaintiffs were born, cannot be correct. Even though the clause for renewal is incorporated in Ex. B-9, a renewal is in the nature of a clause of preemption. It is a new lease that has to be executed even though there is an agreement for execution of the same earlier. Plaintiffs are not really affected by the clause. Plaintiffs will be affected only if a renewal of the lease is executed. Naturally, they can oppose the renewal and prevent the second defendant and also question the right of the first defendant to have the same enforced. A right of renewal is only an executory contract and, therefore, the finding in that regard by the lower appellate Court is not correct. Question No. 8 is also, therefore, to be found in favour of the appellants in view of the findings by the trial Court as well as by the lower appellate Court that if the renewal is granted, it will put the plaintiffs to hardship. 26. Now I come to question No. 3, i.e., regarding the statutory right of the first defendant to have the lease renewed. 27. Argument of learned counsel for the first respondent is that in view of Section 5(2) of the Burmah-Shell (Acquisition of Undertakings in India) Act 1976 (2 of 1976), if a lessee expressed his desire to have the same renewed, there is a statutory renewal, and nothing more has to be done. The argument of learned counsel is that even without a document, by expression of desire, it is statutorily extended. 28. The said contention of learned counsel for the first respondent is seriously disputed by learned Senior Counsel for the appellants. Learned Senior Counsel submitted that when the first defendant wrote under Ex. A-3 dated 29-3-1977 to have the lease renewed, it was exercising the option only under the lease deed, i.e., the contractual right and not a statutory right, and by not expressing its intention to recourse under the Statute, it must be deemed to have been waived. Learned Senior Counsel submitted that when the first defendant wrote under Ex. A-3 dated 29-3-1977 to have the lease renewed, it was exercising the option only under the lease deed, i.e., the contractual right and not a statutory right, and by not expressing its intention to recourse under the Statute, it must be deemed to have been waived. He further contended that the renewal under contract and Statute are inconsistent. I have already held that on the basis of the contract, the first defendant is not entitled to have the same renewed, and it is also not entitled to the benefits of Section 53-A of the Transfer of Property Act. 29. The question that arises for further consideration is, whether a statutory renewal has to be given. Learned counsel for the first respondent relied oh the following decisions:— A.I.R. 1981 Madhya Pradesh 123 (Manoharsingh and another v. Caltex Oil Refining (India) Ltd., Bombay and others), A.I.R. 1985 Bombay 4 (Trade Centre Developers and Builders Pvt. Ltd. and another v. Union of India and another) and A.I.R. 1990 Kerala 5 (P. Sankaranarayanan Nambiar and others v. Union of India and others) to contend that when there is a desire on the part of the lessee to have the same extended, there is an automatic renewal of the lease. 30. I do not think that such conclusion was reached in any of those decisions. 31. Section 5(1) of he Burmah Shell (Acquisition of Undertakings in India) Act, 1976 reads thus:— “Where any property is held in India by Burmah Shell under any lease or under any right of tenancy, the Central Government shall, on and from the appointed day, be deemed to have become the lessee or tenant, as the case may be, in respect of such property as if the lease or tenancy in relation to such property had been granted to the Central Government, and thereupon all the rights under such lease or tenancy shall be deemed to have been transferred to, and vested in, the Central Government.” 31. Sub-section (2) of Section 5 which is relevant for the purpose of our case reads thus:— “On the expiry of the term of any lease or tenancy referred to in sub-section (1), such lease or tenancy shall, if so desired by the Central Government, be renewed on the same terms and conditions on which the lease or tenancy was held by Burmah Shell immediately before the appointed day.” 32. On a reading of sub-section (2) of Section 5 of the Act, referred to above, it is clear that if a desire to renew a lease has to be expressed on the expiry of the term, that means, the expiry of the lease and the desire to have renewal will be intimately connected. The desire to have a renewal cannot be long after the expiry. I do not think till the suit was filed, first defendant-Corporation showed its inclination to have a statutory renewal. 33. When this contention was put forward by learned Senior Counsel for the appellants learned counsel for first respondent contended that when there is a desire, an automatic renewal comes into play. The said contention also cannot be accepted. The desire is an intention on the part of the Government or the Undertaking, and there must be an application of mind that the schedule property is needed for its requirement. Further, the intention or desire also will have to be expressed. Keeping the desire in ones own mind will not amount to desire, for the purpose of sub-section (2) of Section 5 of the Act, referred to above. The decision reported in A.I.R. 1964 S.C. 136 (A. Raghavamma v. Chenchamma is an answer to the said contention. That case arose under the Hindu Law. In a joint family a severance of status was effected, and there was an intention to divide. The question before the Supreme Court was, whether such an intention was declared or communicated. Their Lordships said thus:— “It is settled law that a member of a joint Hindu family can bring about his separation in status by a definite and unequivocal declaration of his intention to separate himself from the family and enjoy his share in severalty. The Hindu law texts support the proposition that severance in status is brought about by unilateral exercise of discretion. One cannot, however declare or manifest his mental state in a vacuum. The Hindu law texts support the proposition that severance in status is brought about by unilateral exercise of discretion. One cannot, however declare or manifest his mental state in a vacuum. To declare is to make known, to assert to others, “Others” means necessarily those affected by the said declaration. Therefore a member of a Joint Hindu family seeking to separate himself from others will have to make known his intention to the other members of the family from whom he seeks to separate. The process of manifestation may vary with circumstances. What form that manifestation should take would depend upon the circumstances of each case. Thus the knowledge of the members of the family of the manifested intention of one of them to separate from them is a necessary condition for bringing about that members severance from the family. It is implicit in the expression “declaration” that it should be to the knowledge of the person affected thereby. An uncommunicated declaration is no better than a mere formation or harbouring of an intention to separate. It becomes effective as a declaration only after its communication to the person or persons who would be affected thereby.” It must be manifested to the knowledge of other persons. The claim that the first defendant wanted a renewal under the Statute was never communicated to the plaintiffs or to the second defendant till the suit was filed. Only in the written statement we find that such a contention is taken. From 1979 to 1983, the so called desire was only in their mind which was never expressed or declared. The decisions relied on by learned counsel for the first defendant also may not have any application since in all those cases, it was the constitutionality or validity of the Statute that was being considered. What is meant by desire and whether that should be expressed or made known to others, was not a matter in issue in any of the decisions cited by learned counsel for first respondent. In this case, we are not concerned about the validity of the Statute. We are concerned only with the question whether on the basis of the Act, first defendant is entitled to claim benefit. 34. In this case, we are not concerned about the validity of the Statute. We are concerned only with the question whether on the basis of the Act, first defendant is entitled to claim benefit. 34. In A.I.R. 1973 S.C. 2609 (Delhi Development Authority v. Durga Chand Kaushish), the rule laid down was, even if there is an option to renew the lease, and even if the parties have exercised their option, unless proper lease deed is executed, there is no lease. The said decision of the Supreme Court was followed in the decision reported in 1976-I-M.L.J. 115=89 L.W. 19 (R.M. Mehta v. Hindustan Photo Films Mfg. Co.). In that case, M.M. Ismail, J., as he then was, held thus:— “Once an option to renew is exercised by the lessor or lessee, a valid lease as such does not come into existence unless a registered document as such is executed if the renewed lease in question satisfies the requirements of Section 107 of the Transfer of Property Act. The option conferred either on the lessee or on the lessor is more or less in the nature of preemption and neither the conferment of such option itself nor the exercise thereof automatically or of its own force brings into existence a new lease irrespective of other statutory provisions regarding the form, procedure or the modalities by which alone such a lease can be brought into existence. Therefore, once a renewed lease comes within the scope of Section 107 of the Transfer of Property Act, such a lease can be made only by a registered instrument. It is a new lease that comes into existence as a result of the exercise of the option for renewal and that too by the bilateral acts of the parties and consequently the new lease is made within the scope of the expression occurring in Section 107 and therefore, it has to be made only by a registered instrument. When no valid lease for a period of three years is created, no suit could be instituted for recovery of damages for any alleged breach of contract.” The said decision of the learned Judge was approved by a Division Bench of this Court in the decision reported in A.I.R. 1992 Madras 190 =1992-1-L.W. 59 (Hindustan Petroleum Corpn. When no valid lease for a period of three years is created, no suit could be instituted for recovery of damages for any alleged breach of contract.” The said decision of the learned Judge was approved by a Division Bench of this Court in the decision reported in A.I.R. 1992 Madras 190 =1992-1-L.W. 59 (Hindustan Petroleum Corpn. Ltd. v. Vummudi Kannan) wherein their Lordships held thus:— “A covenant for renewal contained in a lease does not ipso facto extend the tenure of the lease, but only entitles the tenure of the lease, but only entitles the lessee to obtain a fresh lease. If there is a clause for renewal in the original lease, and that clause has been taken advantage of and any option pursuant thereto has been properly exercised it only gives a lever for the lessee to obtain a new lease in accordance with and in due satisfaction of the law governing the making leases. If to the renewed lease, the requirements of the first part of S. 107 are attracted as in present case, no valid lease would come into existence unless the said requirements are satisfied. Therefore, though the tenant had exercised his option for renewal, he could not say that there had been a renewed lease, which had enured in his favour, because no document of fresh lease as per requirements of S. 107 had come into existence to bring about a renewed lease valid in the eye of law.” 35. Learned counsel for the first respondent submitted that the document is not necessary for getting the benefit of a lessee, and the decision of the Supreme Court reported in A.I.R. 1973 SC 2609 (supra) and also in the decisions of this Court referred to above, namely, 1976-I-MLJ 115=89 L.W. 19=A.I.R. 1992 Madras 190=1992-1-L.W. 59, the provisions of S. 5(2) of the Act was not taken into consideration, nor the effect of the desire expressed by the lessee were taken note of. The argument is that those cases were in respect of contractual renewal and not statutory renewal. Learned counsel further submitted that when the Statute declares that there will be a renewal on the same terms and conditions, that itself is a lease for all purposes, and it is to avoid unnecessary expenses of the Public Undertaking by taking a lease deed and getting it registered, this clause is introduced. Learned counsel further submitted that when the Statute declares that there will be a renewal on the same terms and conditions, that itself is a lease for all purposes, and it is to avoid unnecessary expenses of the Public Undertaking by taking a lease deed and getting it registered, this clause is introduced. I do not think that such a contention could be accepted. In A.I.R. 1981 Madhya Pradesh 123 (supra), which was followed by the Kerala High Court in A.I.R. 1990 Kerala 5 (supra) and also in A.I.R. 1981 Andhra Pradesh 283 (Mustafa Hussain v. Union of India and another), their Lordships interpreted what is meant by the word ‘if so desired’. In paragraph 6 of the judgment of the Madhya Pradesh High Court (supra), their Lordships only said that the words ‘if so desired’. in their opinion in the context mean ‘if so needed.’ If this is the meaning of the words ‘if so desired’, naturally, the argument of learned counsel for first respondent has to fail. In every case, it is because of the need of the lessee, the lease is renewed, and subsequently the document is registered. If a registered document is avoided, there will be a statutory violation, especially under the Income-tax Act. Court cannot think that an enactment has been passed with an intention to avoid payment of tax. The said contention is, therefore, rejected. Not only for the above reason, but also for the reason that two of the decisions of our High Court have taken a different view in that regard. A similar contention was raised by the very same counsel in the decision reported in A.I.R. 1996 Madras 285 (Bharat Petroleum Corpn. Ltd. v. Ashvinraj), and Abdul Hadi, J. has considered the entire argument of the very same learned counsel in paragraphs 10, 10-A, 10B of the judgment which read thus:— “Now coming to the main question whether there would be automatic renewal of the lease, once the above said option for renewal is validly exercised, even though the defendant has not taken any steps to get the lease deed executed and registered duly and even though such a lease deed has not come into being at all. In this regard, both the trial Court and the appellate Court have held that there would not be any such automatic renewal and for coming to the conclusion the trial Court has relied on Section 5(2) and the lower appellate Court has also relied on the decision in Hindustan Petroleum Corporation Ltd. v. Vummidi Kannan (1992) I L.W. 59: ( AIR 1992 Mad 190 ) (DB). But the contention of learned counsel for the appellant is that in view of Section 5(2) of the Act, the appellant would get automatic renewal of the lease pursuant to its exercise of the option to get renewal, under Ex. B-1. He also submits that (1992-I-L.W. 59= AIR 1992 Mad. 190 ) (supra) would not apply to the present facts since that case only dealt with the exercise of option for renewal of the lease, pursuant to the relevant clause contained in the contract between the parties and not pursuant to statutory provision like Section 5(2) of the Act as in the present case. “10A. In this connection, the relevant observation of this Court in the said decision is as follows: “There is another contention, which, though not vehemently argued, yet has been expressed by the learned senior counsel appearing for the defendant and that is, the renewal of the lease had come into existence and force by the exercise of option for renewal by the defendant.” But, a bare exercise of option for renewal could not be of any avail to the defendant, because the law is well settled that a covenant for renewal contained in a lease does not ipso facto extend the tenure or term of the lease, but only entitles the lessee to obtain a fresh lease. If there is a clause for renewal in the original lease, and that clause has been taken advantage of and any option pursuant thereto has been properly exercised, it only gives a lever for the lessee to obtain new lease in accordance with and in due satisfaction of the law governing the making of leases. If to the renewal lease, the requirements of the first part of S. 107 of the Transfer of Property Act are attracted, as obviously are in the present case, no valid lease would come into existence unless the said requirements are satisfied. If to the renewal lease, the requirements of the first part of S. 107 of the Transfer of Property Act are attracted, as obviously are in the present case, no valid lease would come into existence unless the said requirements are satisfied. So far as present case is concerned, even if the defendant is stated to have exercised its option for renewal, which position we have accepted, it has not improved the lot of the defendant to say that there had been renewed lease, which had enured in its favour because admittedly the requirements of S. 107 of the Transfer of Property Act, were not satisfied. The proposition of law has been clearly recapitulated by Ismail, J., as he then was, after tracing the authorities on the subject in R.M. Mehta v. Hindustan Photo Films Manufacturing Company (1976-II-M.L.J. 115=89 L.W. 19=( AIR 1976 Mad 194 ).” 10B. In my view, the above said, reasoning would reply to the present case also, even though in the present case, the exercise of the option for the renewal is not based on the contract between the parties, but on the abovesaid statutory provision, viz. Sec. 5(2) of the Act. It has been noted already that Sec. 5(2) only says that the lease “shall if so desired by the Central Government, be renewed on the same terms and conditions”. In other words, it does not say “that the lease shall stand renewed or shall automatically get renewed, but it only says, “shall be renewed”. So, unless the other formalities required under Sec. 107 of the Transfer of Property Act are complied with and a lease deed as such is executed and registered duly, the defendant lessee would not secure leasehold interest in the property in question after the expiry of the prier lease on 31-3-1983. Admittedly, the defendant has not taken any further steps after the abovesaid exercise of option under Ex. B-1. Even though the plaintiff under Ex. A-6 expressed his unwillingness to give a renewal of the tease, the defendant could have worked out remedies open to it under law, for compelling the plaintiff to execute and register a proper lease deed pursuant to the option exercised and pursuant to Section 5(2) of the abovesaid Act. B-1. Even though the plaintiff under Ex. A-6 expressed his unwillingness to give a renewal of the tease, the defendant could have worked out remedies open to it under law, for compelling the plaintiff to execute and register a proper lease deed pursuant to the option exercised and pursuant to Section 5(2) of the abovesaid Act. The defendant, having not taken any such steps so far, cannot at this distance of time, contend that the possession suit initiated by the plaintiff should fail. At least when the suit notice Ex. A-1 dated 8-4-1983 terminating the lease and demanding possession was received by the defendant on 12-4-1983 (as borne out by Ex. A-2), the defendant should have taken necessary steps for working out remedies open to it in the light of Section 5(2) of the Act and the fact that it has exercised its option for renewal. But, nothing has been done by the defendant so far. In such a situation, the plaintiff is bound to succeed.” 36. Their Lordships further distinguished the decision of the Kerala High Court and also the Bombay High Court and held that the Division Bench decision reported in AIR 1992 Madras 190=1992-1-L.W. 59 (supra) still holds the field. The said decision was again followed by another Judge in the decision reported in 1997-1-L.W. 309 (Bharat Petroleum Corpn. Ltd. v. N. Ravi & another). In view of the decision of the Supreme Court and also the Division Bench judgment of this Court, and later followed by other learned Judges, I feel that the contention of learned counsel for first respondent has to be rejected and I do so accordingly. In view of my above finding, question No. 3 is answered in favour of the appellants and I hold that the first defendant has not expressed its desire to have the lease renewed on the expiry of the term, and having failed to take a renewal of the lease, it is not entitled to the benefits of Act 2 of 1976. 37. Question No. 10 :— No serious argument was advanced by learned counsel for first respondent that the notice regarding termination of tenancy is not proper. Learned counsel argued only the contention regarding the right to renew the lease. Ex. B-8 is the notice terminating the tenancy. As per that notice, first defendant was given three months time to vacate the premises. Learned counsel argued only the contention regarding the right to renew the lease. Ex. B-8 is the notice terminating the tenancy. As per that notice, first defendant was given three months time to vacate the premises. The reason for giving such a notice is that the first defendant has put up constructions, and under Sec. 11 of the Madras City Tenants Protection Act, any tenant who has put up any construction on vacant land on the basis of lease, must be given three months lease. It is a local Act, which is contrary to the provisions of Sec. 106 of the Transfer of Property Act. Therefore, the notice issued under Ex. B-8 is proper. At the same time, it may be mentioned that the first defendant has not claimed any right under the City Tenants Protection Act. 38. Learned Senior Counsel for the appellants argued that the first defendant in this case has denied the title of the plaintiffs, and for that reason also, his clients are entitled to get possession of the property. Learned Senior Counsel for the appellants relied on the decisions reported in 1990-1-L.W. 46 (Bhargavakula Nainargal Sangam v. Arunachala Udayar) and 1991-2-L.W. 355 (Subbaroyan & another v. Devadas Nadar), for the said purpose. I do not think that I should consider the applicability of those decisions in this case. For, even otherwise, plaintiffs are entitled to succeed and recover possession of the suit property. Further, I do not find any ground in the Grounds of Appeal that there is forfeiture of lease on the ground of denial of title, but has filed the suit only on the ground of termination of lease under Sec. 106 of the Transfer of Property Act. 39. Questions 9 and 11 :— On these questions of law, I do not think the lower appellate Court was correct in awarding decree for rent, past and future. When there is termination of lease, and when possession of the defendants is not legal, the lower appellate Court should have awarded damages for use and occupation, and not rent. Plaintiffs are entitled to mesne profits and that should be assessed or quantified as per Order 20, Rule 12, C.P.C. and the same will be decided in execution. 40. In the result, I set aside the judgment of the lower appellate Court, and there will be a decree for recovery of possession. Plaintiffs are entitled to mesne profits and that should be assessed or quantified as per Order 20, Rule 12, C.P.C. and the same will be decided in execution. 40. In the result, I set aside the judgment of the lower appellate Court, and there will be a decree for recovery of possession. First defendant is directed to surrender vacant possession of the property within one month from the date of this judgment, failing which the plaintiffs are entitled to recover the same on the basis of this judgment. The question regarding quantum of profits will be decided under Order 20, Rule 12, C.P.C. when an application is moved for that purpose. Second Appeal is allowed with costs.