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Judgment
Ramamurti, J.—This second appeal arises out of a suit, Original Suit No. 24 of 1958, Sub-Court, Tiruchirappalli, filed by the Appellants for
recovery of possession of the suit properties and for mesne profits. The first Plaintiff is a family trust, represented by the managing trustee, and the
second Plaintiff is a lessee from the first Plaintiff under a lease deed, exhibit. A-1 dated 30th June 1957. Their case is that the first Defendant was
lessee of the suit property for the past several years that exhibit A-2, dated 30th November 1956 was last of the lease deeds, that the first
Defendant surrendered possession of the properties to the first Plaintiff, after making an endorsement to the effect in the lease deed. Their further
case is that even though the second Defendant also joined the first Defendant in the execution of the lease deed, exhibit A-2, he was merely a
surety and that throughout, the first Defendant alone actually cultivated the land and he alone was the sole lessee.
The Defendants contested the suit on the ground inter alia that both of them were lessees, that the surrender by the first Defendant was not true,
that he made the endorsement on the misrepresentation by the first Plaintiff that it was merely an endorsement of the payment of the entire arrears
of rent up to date and that, in any event, as the alleged surrender was only by the first Defendant it was inoperative and that, throughout, both have
been in possession of the property.
The learned Subordinate Judge, who tried the suit, decreed the same holding that the first Defendant alone was the lessee, and that he actually
surrendered the property on 27th June 1957 and also made a written endorsement to that effect on the lease deed. On appeal by the Defendants,
the learned District Judge allowed the appeal and dismissed the suit holding that Defendants 1 and 2 were both joint lessees cultivating the land and
that u/s 92 of the Evidence Act, it was not open to the Plaintiffs to set up an oral agreement contrary to the terms of the lease that the second
Defendant was merely a surety and not a lessee at all. The learned District Judge also held that there was no surrender of the lands by the first
Defendant but that the first Defendant himself continued in possession of the property. The Plaintiffs have preferred the present Second Appeal.
Learned Counsel for the Appellants contends that the first Defendant alone is the lessee actually cultivating the land, second Defendant being
merely a surety and that Section 92 of the Evidence Act is not a bar to such a plea. He also contends that the first Defendant actually surrendered
the lands and that a surrender by one of two lessees is sufficient and operative in law to bring about a termination of the lease.
The learned District Judge in paragraph seven of his Judgment has given his reasons for his finding that both the Defendants were actually
lessees. I am not satisfied that the learned District Judge''s discussion and appreciation of the evidence and the probabilities of the case is vitiated
by any erroneous approach as to justify my interference with that finding in second appeal. It is true that the learned Subordinate Judge came to a
contrary finding but being a question of fact, the finding of the learned District Judge is binding on me, as there is no error of law committed by the
learned District Judge.
Even otherwise, I am of the opinion that Section 92 of the Evidence Act is clearly a bar to the plea that the second Defendant is merely a surety.
In Mulchand v. Madho Ram (1888) ILR 10 All. 421, the scope of the words in Section 92 of the Evidence Act:
No evidence of any oral agreement or statement snail be admitted as between the parties, to any such instrument or their representatives-in-
interest.
came up for consideration. In that case, one Murlidhar executed a sale deed of certain houses and other premises in favour of two brothers, Ganga
Prasad and Mulchand. Several years later Ganga Prasad filed a suit against his brother Mulchand for a declaration that Ganga Prasad alone was
the real purchaser and that Mulchand''s name was only nominally associated with Ganga Prasad in the sale deed. Objection was raised that, in
view of Section 92 of the Evidence Act, it was not open to Ganga Prasad to raise such a plea. The learned Judges held that Section 92 was not a
bar on the ground that Section 92 would not apply to questions raised between the parties on the one side only of a deed regarding their relations
of each other under a contract. At, the same time the learned Judges pointed out that if the dispute arose between the parties ranged in opposite
sides, Section 92 would be clearly a bar. The learned Judges observed thus:
We heard argument and gave careful consideration to this proposition, and we have had the advantage of conferring with the learned Chief Justice
and our brother Straight on the point. We arc of opinion that the answer to the learned Pandit''s contention is to be found in the proper
interpretation of the phrase as between the parties to any such instrument, the words the parties being rightly read to imply the persons who on one
side and on the other came together to make the contract. In the case before us, the parties in this sense would be the vendor on the one part and
the two vendees on the other part. As between the vendor and themselves, neither of the vendees would be heard to plead, or would be allowed
to offer, oral evidence to show that both were not parties to the buying of his house. Neither vendees could resist the vendor''s claim for the price,
or for any other relief properly arising to him cut of the contract, on a plea intended to show that one of the two was a nominal party only to the
contract. Similarly one of the several obligors of a bond or bill of exchange weald not be allowed in answer to the obligor�s action on the joint
instrument to maintain a plea that he was a surety only;
From the above passage it is clear that it is not open to the first Plaintiff, who is ranged in the opposite side as against the second Defendant to
plead that the latter is merely a surety.
In Krishna Char an Barman v. Sanat Kumar Das (1916) ILR 44 Cal. 162, in a suit on a mortgage executed by six persons some of the
Defendants-mortgagors raised a plea that even though the mortgage bond was a joint one there was a contemporaneous oral agreement with the
mortgagee, that each mortgagor should be separately liable for the share of the mortgage amount advanced to him, and that on the payment by any
one of them of the amount due on his share he and his property mortgaged by him would be released from all further liability. The learned, Judges
rejected that plea holding that such a contention would completely evade and nullify the provisions of Section 92 of the Evidence Act.
In Muthukumaraswami v. Govinda AIR 1932 Mad. 218 in a suit on a mortgage executed by two persons one of the mortgagors set up an oral
agreement that as between the mortgagee and himself he was to be in fact only a surety. Such a plea was held to be clearly barred u/s 92 of the
Evidence Act. I, therefore, hold that it is not open to the first Plaintiff to contend that t the second Defendant was only a surety and not a lessee.
Learned Counsel for the Appellant drew my attention to a recent Judgment of Kamakrishnan J., in Arumoorthi Chettiar Vs. Secondary
Education Committee of Vallala Sangam of Vadugupatti, . There the question arose whether oral^ evidence was admissible to show that a
document which, on the face of it, purported to be a rectification deed really represented a sale transaction. The learned Judge held that Section 92
did not bar such a plea as it merely relates to the real character of the transaction and not to the contents of the deed nor to the terms therein. In
my opinion, that decision has no application to the facts of the present case and is easily distinguishable.
It was next argued by the learned Counsel for the Appellants that the finding of the learned District Judge that the first Defendant did not
actually surrender the lands is wrong and the question has not been considered from a proper or correct perspective. I thing there is considerable
force in this contention of the learned Counsel. On this portion of the case the learned District Judge, while differing from the learned Subordinate
Judge has simply indulged in speculative and conjectural theories. He has overlooked that the endorsement exhibit A-3, in the lease deed is very
clear and specific and that a mere look at the endorsement shows that the whole of it must have been written at one and the same time and that
there is no scope for any subsequent interpolation. The learned District Judge has reversed the position and has completely overlooked that the
burden is very heavy upon the first Defendant to rebut the (strong) presumption arising against him by reason of the written endorsement. The only
evidence that is adduced is his own interested testimony which is discrepant. The learned Judge has misread the evidence of P.W. 3, the scribe,
whose evidence is to the effect that the first Defendant signed the endorsement only after the whole endorsement was written. It is rather surprising
that, while discussing the evidence and the probabilities, the learned Judge took the view that the burden was upon the Plaintiffs to explain why an
endorsement of surrender was made by the first Defendant overlooking that the burden was clearly upon the Defendants to explain why he made
such an endorsement if he really did not surrender the property. As I mentioned above the entire approach of the learned District Judge to the
problem was erroneous and I am unable to accept this finding. In fact, the learned Judge did not record a finding as to why the first Defendant
subscribed to such an endorsement. The evidence and the probabilities of the case discussed by the learned Subordinate Judge leave no room for
doubt that the first Defendant should have really surrendered and made the endorsement and subsequently trespassed upon the property.
The question, however remains whether such a surrender by one only of the two lessees would terminate a lease. Section 111(e) of the
Transfer of Property Act provides that:
A lease of immovable property determines by express surrender; that is to say in case the lessee yields up his interest under the lease, to the lesser
by mutual agreement between them.
I am of opinion that if there is a plurality of lessees, the surrender must be by all the lessees in favour of the lesser. Under the lease which is an
indivisible joint one, a right to enjoy immovable property has been created in favour of the lessees jointly and a surrender by one of such lessees
cannot prejudice or affect the rights of the other lessees.
In Leek and Moorlands Building Society v. Clark (1952) 2 Q.B. 788, it was held that, in the absence of express words in the lease, one of
two joint lessees cannot surrender rights held jointly before the full period of lease has run out and that the lessee who has not joined in the
surrender was not estopped from asserting his rights as a joint tenant. In that case, it was observed that all the lessees have the right to the full term
and all must concur if this right is to be abandoned. (Vide Hill and Headman''s Law of Landlord and Tenant, thirteenth edition, page 467.)
The learned Counsel relied upon the Judgment of the Bombay High Court in Devu Subhana v. Baduruddin Hussain ILR (1957) Bom. 371,
and the Judgment in Sheikh Kubir Munshi v. Baikunta Chandra Shaha (1911) 15 C.W.N. 680. In the first case, the question arose under the
special provisions of Bombay Tenancy and Agricultural Lands Act, in which there is a specific provision to the effect that tenant may terminate the
tenancy at any time by surrendering his interest as a tenant in favour of the landlord. In view of this specific provisions it was held that the word
interest denoted that one of several tenants could surrender his share. In the Calcutta case, the facts were that the lease itself was granted to two
lessees in equal shares and possessed and enjoyed by them separately even though it was under a single document. Under those circumstances, it
was held that a relinquishment made in favour of the landlord by one of the tenants affecting his share would be valid. Those two decisions relied
upon by the learned Counsel for the Appellants have, therefore, no application to the facts of the present case.
Learned Counsel for the Appellants also relied upon a Judgment of the Nagpur High Court in AIR 1931 159 (Nagpur) ; but in that case, the
tenant, while surrendering, had executed a document and that document was construed as an assignment of the interests of one of the joint tenants,
with the result that the lesser and the other lessee became entitled to joint possession. The position here is completely different. There is no deed
which can be construed as operating as an assignment of the interests of one of the lessees, though not operative as a valid surrender. I am,
therefore, of opinion that the surrender by the first Defendant is inoperative to put an end to the lease with the result that the lessees are entitled to
continue in possession and the first Plaintiff had no authority to grant a lease in favour of the second Plaintiff.
Mr. K.G. Srinivasa Iyer, appearing for the second Defendant, stated at the time of the hearing of the second appeal, that his client has
surrendered whatever rights he had in the lease. It is impossible to take note of this alleged surrender by the second Defendant at this stage which
would prejudice the rights of other parties. I, therefore, decline to take note of the same.
The second appeal fails and is dismissed but, under the circumstances, the parties will bear their own costs. Leave refused.