K. Arjunan vs Kuppuraj and others

Sethuraman, J.—The Second defendant it the appellant. He is an alience from the first defendant. He is also the father-in-law of the third

defendant. The plaintiff (first respondent here) filed the suit for partition of his one-fourth share in the suit house, which consists of 5 anganams.

There was one Muthayya Udayar who was the original owner of the house. He had two sons by name Ramaswami and Marudachalam.

Ramaswami died long ago and his son Mariappan, first defendant, and Marudachalam entered into a partition on 10th May, 1939 under which

each of them got a half share in the property. The half share of the property allotted to Marudachalam was leased in favour of the first defendant

under Ex. A-2, dated 10th May, 1939, the same date as that of the partition. On 9th April, 1969, the first defendant sold not only his half share in

the property but also the other half share of Marudachalam for a consideration of Rs. 7.200/- in favour of the second defendant. The plaintiff and

the third defendant are sons of Marudachalam. The case of the plaintiff was that the first defendant could not have conveyed more than his share in

the suit property. Therefore, he claimed that he was entitled to a one-fourth share in the suit property, being a half in the half share of

Marudachalam. The first defendant did not contest the suit by filing any written statement. The second defendant claimed that Marudachalam had

during his lifetime sold his half share in the suit property to the first defendant for a sum of Rs. 75/- that the first defendant has thus become an

absolute owner of the whole property and that therefore the first defendant was entitled to execute a conveyance validly in favour of the second

defendant. There was also a plea that the suit was barred by limitation.

The third defendant, who is the brother of the plaintiff and who, as already stated, is the son-in-law of the second defendant, remained ex parte.

The learned District Munsif found that the lease deed in favour of the first defendant by Marudachalam under Ex. A-2 could not be admitted in

evidence, because it was unregistered. He, however, held that it was admissible for proving the nature of possession of the first defendant. He was

not inclined to accept the case of oral sale in favour of first defendant, set up by the second defendant. He did not also accept the plea that the suit

was barred by limitation. He, therefore, granted a preliminary decree for partition and separate possession of the plaintiff''s one-fourth share.

On appeal by the second defended, confirming the finding of the trial court that the oral sale by Marudachala in favour of the first defendant was

not true, the learned appellate Judge held that Ex. A-2 could be looked into for the purpose of finding out the date of expiry of the period of lease.

In his view, though there was no clinching evidence to show that the landlord, i.e., Marudachala accepted rent from the first defendant and

assented to his continuing in possession as a tenant holding over, still, the circumstance that the defendant was allowed to continue in possession for

a long number of years showed that Marudachalam assented to the first defendant occupying the premises as a tenant holding over. The learned

Judge did not accept the contention that the lease had expired by 10th May 1940 and that the tenancy had come to an end by that time, so that the

suit was barred by limitation under Art. 67 of the Limitation Act, which was relied on by the second-defendant-appellant. He held that the first

defendant could convey validly only his half share and that the plaintiff was entitled to a partition and separate possession of his one-fourth share.

In the present second appeal, learned counsel for the appellant, quite fairly, stated that he was not canvassing the truth of the oral sale. The only

point urged by him in his appeal was that the present suit was barred by limitation under Art. 67 of the Limitation Act. Under that Article, a suit by

a landlord to recover possession from a tenant has to be filed within twelve years of the date when the tenancy is determined. The submission of

learned counsel was that the tenancy had come to an end by 10th May 1940 and that subsequently the first defendant was there only as a tenant

by sufferance. As the suit had not been filed within a period of twelve years from 12th May 1940, it was contended that the same was barred by

limitation. A number of authorities were cited in support of this submission.

For the first respondent, the submission was that even in the plaint it had been pleaded that the first defendant was only in permissive occupation

of the property, that the plaintiff had given evidence as P.W. 1 saying that the first defendant was paying rent at the rate of Rs. 0-8-0 per mensem

as contemplated by Ex. A-2 and that the plaintiff had not been cross-examined on this aspect. It was therefore submitted that this was not a case

to which any of the authorities cited by learned counsel for the appellant had any application, and that this was a clear case where the tenancy

continued notwithstanding the expiry of time under Ex. A-2. In effect the submission was that this was a case of the tenant holding over after 10th

May 1940 and that as the tenancy had not been determined the suit was very much within time.

The proposition that the tenancy is ordinarily determined at the end of the expiry of the period of the lease has been laid down in a number of

decisions of this court. See Sudalamuthu Thevan v. Sappani Thevar 48 M.L.J. 135 Sitharamiah v. Ramaswamy AIR 1939 Mad. 73 and

Thailammal v. Bathumalal 1965-I M.L.J. 283:73 L.W. 36.

Under S.116 of the Transfer of property Act, if a lessee or under-lessee of property remains in possession thereof after the determination of the

lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under-lessee or otherwise assents to his

continuing in possession, the lease is renewed from year to year, or from month to month according to the purpose for which the property is

leased, as specified in S.106. In order to find out whether this provision applies, I have to see whether the lessor or his legal representative

accepted rent from the lessee. Excepting the evidence of the plaintiff, there is no other material to support the case of the plaintiff that the first

defendant was paying rent to Marudachala or to the plaintiff after the death of Marudachala.

In Para. 10 of the judgment of the Lower Appellate Court it has been pointed out that there was no clinching evidence in this case to show that

the landlord accepted the rent from the first defendant and thereby assented to his continuing in possession as a tenant holding over. I accept this

part of the finding of the learned Judge. The learned Appellate Judge has however found in favour of the plaintiff only on the ground that the first

defendant was allowed to continue In possession for a long number of years showing that the landlord otherwise assented to the first defendant

continuing to occupy the premises as a tenant holding over. In other words, the inaction on the part of Marudachala or the plaintiff has been relied

on as showing that the first defendant was treated as a tenant holding over.

S. 116 of the Transfer of Property Act contemplates the tenant being treated as one holding over if the landlord accepted rent from the lessee

or if he otherwise assented to his continuing in possession. As I have already pointed out, as far as acceptance of rent is concerned, even the

Lower Appellate Court does not place weight on the oral testimony of the plaintiff. I do not, therefore, think it possible to accept the submission

that there was any acceptance of rent from the first defendant.

The only question that therefore remains to be examined is whether there has been an assent to the first defendant continuing in possession on

the part of Marudachala. The Supreme Court had occasion to consider the implications of S.116 of the Transfer of Property Act in Badrlal v.

Indore Municipality AIR 1973 S.C. 596. In the course of the judgment it has been pointed out by reference to earlier authorities that what the

section contemplates was that on the one side there should be an offer of taking a new lease evidenced by the lessee or sub-lessee remaining in

possession of the property after his term was over and on the other side there must be a definite consent to the continuance of possession by the

landlord expressed by acceptance of rent or otherwise. The mere inaction on the part of the landlord cannot be construed as any manner satisfying

the requirements of S.116. The words ""otherwise ascents to his continuing in possession"" require a positive action on the part of the landlord, and

inaction cannot be taken to be a substitute for positive action for the purpose. It would, therefore, follow that after 10th May, 1940 there was no

continuance of the tenancy. In this view, the suit should have been instituted by May, 1952, and therefore the suit, which has been filed in 1969,

cannot be considered as one filed within time.

As the suit is barred by the provisions of Article 67 of the Limitation Act, the decisions of the courts below accepting the claim of the plaintiff,

cannot be upheld. In the result, the appeal is allowed. The suit is dismissed. No costs. Leave granted.