A. Ganesa Mudaliar vs Chellammal

Kailasam, J.—The tenant under the Madras City Tenants Protection Act, is the petitioner before me. The respondent filed an ejectment suit

No. 28 of 1958 on the file of the Court of Small Causes, alleging that she leased the land in dispute to the defendant by a lease deed dated 2nd

December 1956 on a monthly rent of Rs. 6, and that the defendant had agreed to vacate the premises and also to remove at his own cost the

temporary zinc shed put up by him. She also pleaded that the provisions of the Madras City Tenants Protection Act would not apply to the

defendant as the lease commenced on 2nd December 1956, that is after the Madras City Tenants Protection (Amendment) Act, 1955 came into

force. The defendant contended that he was protected under the said Act and that he was not liable to be ejected. The lowest Court found that the

lease died Ex. P. 2 (2nd December 1956, was Insisted upon to show that the old tenancy had been terminated and a fresh tenancy had been

created in 1956. The lower Court relied on the fact that the defendant was forced to close his tea shop business for ten days. On the facts, the

lower Court came to the conclusion that the old tenancy had been terminated and a fresh tenancy commenced in 1956, that is, after the Act came

into force and that therefore the tenant was not entitled to the benefits of the Act. The question for consideration in this petition is whether Ex. P. 2

the lease agreement dated 2nd December 1956 started a fresh lease or is a continuation of the old lease. The defendant was running a tea shop in

the plaintiff''s land since 1949. He paid Rs. 200 in 1949 and in 1952 he paid an advance of Rs. 145. From 1952 he was paying a monthly rent of

Rs. 6 continuing the tenancy on the same terms. The land-lord gave a notice Ex. P. 1 to quit the land. On receipt of the notice, the defendant

closed the tea shop for ten days. Afterwards there was some mediation and the tenant executed Ex. P. 2 the present lease deed. On the evidence

there is no material to come to the conclusion that the tenant vacated the premises during these ten days. The tenant kept the shed locked for ten

days till he executed Ex. P. 2. So far as the terms of the lease deed Ex. P. 2 are concerned, the tenant contended that he continued on the same

terms as before. This statement has not been challenged in the cross-examination. The plaintiff has also not let in evidence to show that the terms of

the lease Ex. P. 2were different from those of the original oral lease.

The learned Counsel for the petitioner contends that Ex. P. 2 commenced a fresh tenancy and as such S. 1(3) of the Madras City Tenants

Protection Act, 1921, as amended in 1955 had no application as this does not relate to a tenancy created before the commencement of the said

Act. He relies on a decision of the Privy Council reported in Ranganatha v. Ethirajulu ILR 1940 Mad, 172 = 51 L.W. 96. The facts of the case as

set out in the head note are as follows:-

A tenant whole lease expired on September 30, 1922, and who continued in possession and on February 1, 1923, obtained a new lease for ten

years from October 1, 1922, is not therefore, entitled, on the termination of his tenancy, to the benefit of the provisions of the Act, for though his

physical possession was continuous, his possession after October 1, 1922, is attributable to the new tenancy formality embodied in the lease

executed on February 1, 1923.

Their Lordships of the Privy Council observed at page 176:

the benefit of the remaining sections cannot be of avail to the appellants unless and until they have shown that the tenancy here in question was

created before the commencement of the Act within the meaning of S. 1 (3).

In conclusion their Lordships observed:

But their Lordships are clearly of opinion that, though the physical possession was continuous, the possession from 1st October was attributable to

a new tenancy, which was formally embodied in the lease, dated 1st February 1923, the increased rent thereby provided having been paid by them

from 1st October 1922, in terms of the verbal agreement for a lease. Their Lordships accordingly, concur in the view of both the Courts below,

that the tenancy here in question was not created before the commencement of Act, and that the Act docs not apply.

This decision was referred to by King, J., in Nayar Varada Pillai Vs. Ghulam Dastagir and Others, . There the learned Judge was dealing with a

case in which the tenant had entered into occupation of certain premises prior to the passing of the Madras City Tenants Protection Act, 1922 and

while continuing in such possession executed a rent deed after the Act came into force on the same rent and on practically the same terms as

before. His Lordship observed that in the case of the Privy Council reported in Ranganadham v. Ethirajulu ILR 1940 Mad 172=51 L.W. 96, there

was one significant fact, and that is, that the tenancy created was at an increased rate of rent from that previously paid, whereas in the case before

the learned Judge the rate of rent remained the same before and after the execution of the lease deed. His Lordship was of the view that if there

had been no difference in the terms of the two leases, which were considered by their Lordships of the Privy Council the decision would not have

been that a new tenancy was created by the second lease but that the tenancy originated with the first lease. The learned Judge found that the

tenancy previously begun, before the Act came into force and the execution of the rent deed after the commencement of the Act did not amount to

a creation of a new tenancy. In Kunhilakshmi Ammal and Others Vs. Kizhakke Palat Krishna Menon and Others, their Lordships Horwill and

Bell, JJ., had occasion to refer to the above two decisions namely Ranganatha v. Ethirajulu ILR 1940 Mad 172=51 L.W. 96, and Nayar Varada

Pillai Vs. Ghulam Dastagir and Others, . Referring to the decision of King, J., their Lordships observed :

A case somewhat similar to the present case came before King, J., in Nayar Varada Pillai Vs. Ghulam Dastagir and Others, , in which the learned

Judge distinguished the case before him from that before their Lordships in Ranganadha v. Ethirajulu ILR 1940 Mad 172=51 L.W. 96, on the

ground that in the lease he was considering the terms were substantially the same. It is not necessary for us to consider bow far the distinction

drawn by King, J., was valid.

Thus the Bench did not express any definite opinion on the correctness or otherwise of the decision of King, J., in Nayar Varada Pillai Vs.

Ghulam Dastagir and Others, (reported in 1954 M. W. N. Short notes, page c, i.e., 100) Somasundaram, J., held :

So long as the rent is the same and there was no substantial variation in the terms of the lease, despite the fact that a fresh lease was executed

subsequent to 1922, the tenancy must be deemed to be a continuation of the tenancy prior to the coming into force of the Madras City Tenants

Protection Act. It is for the plaintiff to prove the variation in the terms of the tenancy that existed prior to 1922 and the one that existed after 1922,

the tenancy being admitted by both parties. Where no evidence is let in by the plaintiff, the tenant could be considered to have been paying the

same rent.

From a reading of the decisions of King, J., in Nayar Varada Pillai Vs. Ghulam Dastagir and Others, , and of Somasundaram, J., in C.C.C.A. No.

107 of 1950 it is clear that if the tenancy was on the same terms the tenant would have the benefit of the Act though a fresh lease deed was

executed after the commencement of the Act. If there are any variations, it will be a new tenancy and the tenant will not be entitled to the benefits

of the Act. I respectfully agree with the above two decisions. The Act confers the benefit on tenants holding over at the commencement of the Act,

It could not have been the intention of the legislature to exclude tenants who continue on the land on the same conditions after executing a fresh

lease deed. In this case, as already observed, the statement of the tenant that he was continuing the tenancy on the same terms and as before has

not been challenged. The burden is on the landlord to prove that there has been a variation of the terms of the tenancy, but the landlord has not

discharged that burden. In the circumstances, I hold that the tenant is entitled to the benefit of the Act. The petition is therefore allowed. No costs.