Ramachandra Kounder and Another vs Jayarama Kounder

Varadarajan, J.—The Plaintiffs in Original Suit Nos. 829 of 1969 and 194 of 1970 on the file of the District Munsif''s Court, Cuddalore,

who failed in both the Courts below, are the Appellants. Second Appaal No. 694 of 1973 arises out of Appeal Suit No. 367 of 1971 which arose

out of Original Suit No. 194 of 1970 and Second Appeal No. 695 of 1973 arises out of Appeal Suit No. 368 of 1971 which arose out of Original

Suit No. 829 of 1969, The Plaintiff in Original Suit No. 829 of 1969. who has not got herself examined, is one Rajalakshmi Ammal. The Plaintiff in

the other suit is one Ramachandra Gounder, who has been examined as P.W. 3.

The suits were filed for declaration of the title of the Plaintiffs and for recovery of possession of the suit properties with mesne profits of Rs.

87.50 from 20th July 1969 in Original Suit No. 829 of 1969 and Rs. 830 from 17th March 1969 in Original Suit No. 194 of 1970. The suit

properties are 34 cents comprised in S. No. 17/6 forming the subject-matter of Original Suit No. 829 of 1969 and 41 cents comprised in S. No.

15/2 forming the subject-matter of Original Suit No. 194 of 1970. Rajalakshmi, the Plaintiff in Original Suit No. 829 of 1969 had purchased the

34 cents in S. No. 17/6 under exhibit A-4 dated 20th March 1969 from one Perumal Padayachi (P.W. 1) and his wife and children. P.W. 3 the

Plaintiff in the other suit, had purchased 41 cents comprised in S. No. 15/2 from P.W. 1 and his wife and children under exhibit A-5, dated 17th

March 1969.

The case of the Plaintiffs was that P.W. 1''s father Munuswaray Padayachi and his brother Lakshmanan purchased S. Nos. 15/2 and l7/6 from

one Ranjini Gounder and another under exhibit A-1, dated 18th September 1899. Lakshmanan''s sons Subramania and Srinivasa subsequently

sold their father''s half share in both the survey numbers to their paternal uncle Munuswamy Padayachi under exhibit A-2, dated 17th February

1951. Munuswami Padayachi''s son Perumal (P.W. 1) settled S. No. 17/6 on his wife Loganayaki under exhibit A-3, dated 7th February 1966.

Loganayaki had subsequently leased S. No. 17/6 to the first Respondent in December 1966 and at about the same time Perumal (P.W.1) had

leased S. No. 15/2 to the first Respondent. The Plaintiffs in both the suits obtained the release deed, exhibit B-1, dated 2nd April 1969, from

Adilakshmi and Mottayammal, daughters of the two sisters of P.W.1''s father, Kaveri Ammal and Devanayaki Ammal in respect of the suit

properties. The second Respondent had taken the sale deed, exhibit B-2, dated 2nd April 1969 in respect of one-half of S. No. 15/2 from

Mangalakshmi and Krishnammal, the daughters of P.W. 1''s father, sister''s daughter Kaveri Ammal and on the next day they have taken the sale

deed, exhibit B-3, in respect of a half share in S. No. 17/6 from one Ammani Ammal, the daughter of P.W. 1''s father''s other sister Devanayaki.

Subsequently the first Respondent had executed the lease deed, exhibit A-7, dated 7th April 1969 in favour of the second Respondent in repect of

the half shares in S. Nos. 15/2 and 17/6 in regard to which the second Respondent had taken the sale deeds, exhibits B-2 and B-3. The Plaintiffs

thereafter filed the suit for declaration and possession with mesne profits on the ground that the first Respondent had, by taking the lease deed

under exhibit A-7 from the second Respondent in respect of the half share in the suit properties, forfeited the lease. The suit was filed after

exchange of notices, exhibits B-4 and B-8, dated 14th May 1969, and the reply notices, exhibits A-6 and A-8, dated 23rd May 1969.

The Respondents did not deny the lease of the suit properties by Loganayaki and P.W. 1 in favour of the first Respondent. But their defence

was that the suit properties belonged to Munuswamy Padayachi and his sisters daughters Adilakshmi, Mottayammal, Kaveri Ammal and

Devanayaki Ammal, and the Plaintiffs in both the suits had obtained the release deed, exhibit B-1, from Adilakshmi and Mottayammal in respect of

the suit properties and the second Respondent became the purchaser of the half share in the properties under exhibits B-2 and B-3, and that the

first Respondent executed the lease deed, exhibit A-7, because the second Respondent claimed title to a half share in the properties. The

Respondents further contended that there was no denial of the title of the Plaintiffs or forfeiture of the lease in favour of the first Respondent.

The first Respondents case in his written statement in Original Suit No. 829 of 1969 regarding the claim of the second Respondent was that it

would not amount to denial of title, and his contention in the other suit was that the Plaintiff had no title to the western 20 1/2 cents and that the

second Respondent had acquired title to the same.

Both the Courts below found that the properties belonged originally to Mumiswamy Padayachi and his brother Lakshmanan and the half share

of Lakshmanan have been sold by his sons Subra-mania and Srinivasa to Munuswami Padayachi under exhibit A-2. They further found that the

second Respondent''s vendors under exhibits B-2 and B-3 had no title and that the lease by the second Respondent in favour of the first

Respondent under exhibit A-7 was true, but there was no wilful denial of the title of the Plaintiffs in both the suits and that there was no forfeiture as

the denial was only in respect of only a half share in the properties. On these findings they dismissed the suits holding that the first Respondent was

a cultivating tenant entitled to the benefits of the Tamil Nadu Cultivating Tenants Protection Act.

Section 3(1) of the Tamil Nadu Cultivating Tenants Protection Act, 1955, lays down:

Subject to the next succeeding Sub-sections, no cultivating tenant shall be evicted from his holding or any part thereof, by or at the instance of his

landlord, whether in execution of a decree or order of a Court or otherwise.

But Sub-section (2)(b) lays down:

Subject to the next succeeding Sub-section (1)shall not apply. to a cultivating tenant who has wilfully denied the title of the landlord to the land.

The Courts below had relied upon the decisions in Neamatulla v. Bajiulla 26 I.C. 619 and Asbakka Shathi v. Seshamma 25 I.C. 944 in coming to

the conclusion that as the lease deed (exhibit A-7) had been executed only in respect of a portion of the property in each of the suits, it would not

amount to denial of title of the landlord.

On the other and, the learned Counsel for the Appellants relies upon the decisions in Hashmat Husain Vs. Saghir Ahmad and Others, and K.

Ramanuja Reddiar and Another Vs. Kamalammal (died) and Others, and submits that the conduct of the first Respondent in executing the lease

deed (exhibit A-7) in favour of the second Respondent in respect of a half share in the properties which had already been leased to him by the

Plaintiffs predccessor-in-title, would amount to denial of tite and that the first Respondent, therefore, is not entitled to the benefits of Section 3 of

the Cultivating Tenants Protection Act. He also submits that the provisions of section iii(g) of the Transfer of Property Act had not been taken note

of in the decisions in Neamatulla v. Bajigulla 26 I.C. 619 and Abbakka Shetthi v. Seshamma 25 I.C. 944.

In K. Ramanuja Reddiar and Another Vs. Kamalammal (died) and Others, when the landlord wanted to put up an electric motor to pump water

from a well situated near the tenants'' lands for the purpose of irrigating not only the tenants'' lands but also the other lands of the landlord lying in

the vicinity, the tenants refused to allow the landlord access to the land to put up a shed to house the motor. Ganapatia Pillai J. had observed in that

decision that what is done inadvertently would not be wilful, but what is done with a consciousness of the intended effect is certainly wilful, and that

a tenant who knows that the land lord is entitled to go upon the land for effecting an improvement and, despite this knowledge, does not allow the

landlord to go upon the land for that purpose is doing a wilful act and this is wilful denial of the title of the landlord. But this decision will not apply

to the facts of the present case.

In Hashmat Husain Vs. Saghir Ahmad and Others, one Abdul Hameed owned the three shops and hall in suit and on his death one Saghir

Ahmad and Fazal Ahmad took those properties on lease from his heirs. The Plaintiff Hasmat Hussain purchased those shops and hall along with

another house from the heirs of Abdul Hameed and informed the two tenants about it and subsequentl included a portion of the hull with their

consent in his house and gave proportionate reduction in the rent. He filed a suit for recovery of rent against the tenants. The tenants contested the

suit and in their written statement stated that one Fayyaz Alam was a co-sharer in the proprietary right on the ground that his father Shaukat

Hussain was the co-sharer of Abdul Hameed in respect of the shops and hall and that the Plaintiff had purchased only the rights of the heirs of

Abdul Hameed. Fayyaz Alam filed another suit for declaration his title to a half share in the properties against Hasmat Hussain the heir of Abdul

Hameed and the tenant Saghir Ahmad and others. The tenants tried to support his claim in that suit which was, however dismissed holding that

Fayyaz Alain''s claim was untenable. Basing his cause of action on the denial of the Plaintiff''s full ownership of the shops and hall, Hasmat Hussain

instituted a suit from which the decision arose, for ejectment and arrears of rent. The Defendants contested that suit on the ground that the Plaintiff

was not the sole owner of the hall in dispute. The trial Court dismissed the suit for ejectment holding that the tenancy had not been determined by

any forfeiture. The question raised before the learned Judges in the Second appeal was whether the allegation in the written statement of the rent

suit to the effect that the Plaintiff was not the sole owner of the property in suit but had only a share in it, the other share being owned by Fayyaz

Alam, did not amount to a denial of the Plaintiff''s title by setting up a title in another. The learned Judge observed.--

The moment the tenant sets up title in a third person, whether to the extent of the whole or to the extent of a part, he does set up a title in a third

person and therefore he becomes liable to ejectment as a result of the determination of the lease by his renouncing his character as a lessee.... We

are therefore of opinion that the lease in favour of the Defendants was determined by forfeiture on account of their renouncing their character as

lessees of the Plaintiff by setting up a title in Fayyaz Alam, a third person.

The learned Judges of the Calcutta High Court observed in Neamatulla v. Bajiulla 26 I.C. 619--

With regard to the question of forfeiture, we think it is settled law that where a tenant does not deny the whole title of his landlord but sets up the

right of a third party as co-sharer, there can be no forfeiture. The case of Srimati Mallika Dassi v. Makhan Lal Chowdhury 9 C.W.N. 928 is

authority for this proposition.

A Bench of this Court has observed in Abbakka Shetthi v. Seshamma 25 I.C. 944:

In Srimati Mallika Dassi v. Makhan Lal Chowdhury 9 C.W.N. 928 it was held that an assertion by a tenant that the person claiming to be his

landlord is not entitled to the whole rent but has co-sharers who must joint an action for rent is not such a disclaimer as would effect a forfeiture of

the tenancy. At page 393 the following passages occur:

It has not been suggested, nor do we think could it be successfully suggested, that the partial denial of the title of the landlord effected a partial

forfeiture of the tenancy and conferred upon the tenant two inconsistent characters, namely, that of a tenant in respect of an undivided share of the

land included in the tenancy and of a trespasser in respect of the remainder. To constitute a disclaimer there must be a distinct and unequivocal

renounciation of the tenancy and we are not prepared to extend the application of the doctrine to a case in which the tenant docs not set up a title

to the whole in himself or a title to the whole in others, but merely questions the extent of the interest of the Plaintiff and his title to receive the entire

rent.

The present case is even stronger for the tenant, as he never denied the landlord''s title to receive the entire rent but only admitted in good faith the

superior title of a third person to a portion of the lands included in the tenancy.

This decision of a Bench of this Court is binding on me. In the present case also the lease deed, exhibit A-7, had been executed only in respect of

a half share in each of the properties in both the suits in favour of the second Respondent and that too only after the second Respondent asked the

first Respondent to do so, after obtaining the sale deeds, exhibit B-2 and B-3, from the ladies mentioned above and after the Appellants

themselves had obtained the release deed, exhibit B-1, on the date of exhibit B-2 and one day prior to the date of exhibit B-3 from Adilakshmi

and Mottayammal, the daughters one of the sisters of Munuswami Padayachi, through when the Appellants claim title to the suit property.

Therefore, it could not be stated that there was no bona fides in the conduct of the first Respondent in executing the lease deed, exhibit A-7,

subsequently in favour of the second Respondent. Therefore, I respectfully share the view, the expressed in the aforesaid decisions in Neamatulla

v. Bajiulla 26 I.C. 618 and Abbakka Shetthi v. Seshamma 25 I.C. 944 and agree with the Courts below that the first Respondent has not wilfully

denied the title of the Appellants to the suit properties by executing the lease deed, exhibit A-7, in respect of a portion of the properties demised in

favour of the second Respondent and that the Appellants are, therefore, not entitled to evict him having regard to the provisions of Section 3(1) of

the Tamil Nadu Cultivating Tenants Protection Act, 1955.

(13) The second appeals, are therefore, dismissed with costs of the first Respondent. No leave.