Thailammal vs Batumalai

Srinivasan, J.—One Sepoy Chidambara Udayar was the last owner of the suit property. He left India for Malaya in 1930. Before leaving he

mortgaged the property in favour of the defendant''s husband. At the same time, he granted a lease in favour of Karuppanna Udayar, who was his

divided paternal uncle. He died in Malaya in 1932, without any issues. The plaintiff claiming to be the son of an undivided brother of Sepoy

Chidambara Udayar came to India in 1958. He ascertained that Muthammal, the widow of Karuppanna Udayar, and her son, had sold the suit

property to the husband of the first defendant, the mortgagee. The sale was in discharge of the mortgage executed by Sepoy Chidambara Udayar.

The plaintiff, claiming that Muthammal was incompetent to sell the property, pleaded that the conveyance was void and not binding upon him. He

alleged further that the sale was in breach of confidence and faith and that he came to know of the fraud only on his return to India, and on such

averments claimed that the suit was not barred by limitation. The defendant contended that the plaintiff is not the son of the brother of Sepoy

Chidambara Udayar. It was alleged that the defendant had prescribed for title to the suit property by virtue of long, undisturbed and open

possession from 1935 onwards when the sale was executed in favour of her husband. The bar of limitation was also set up. It was denied that

there was any entrustment of the property by Sepoy Chidambara Udayar to his uncle, the deceased Karuppanna Udayar.

The trial Court accepted the relationship of the plaintiff to Sepoy Chidambara Udayar. Though it accepted the plea that Sepoy Chidambara

Udayar had entrusted the property with his uncle Karuppanna Udayar to be looked after by him and thereby constituted him a trustee, it held that

the right of the plaintiff could be agitated within 12 years, from the date of the alienation by the trustee or his successor, failing which the title would

be lost. The plaintiff was born only in 1940. Plaintiff''s father, Ramaswami Udayar, the undivided brother of Sepoy Chidambara Udayar, was

however alive on the date of the impugned alienation. Limitation would start to run as against him from the date of the sale. If that should be the

position, then the plaintiff cannot claim that he would under law be entitled to sue for relief within 3 years after attaining majority. He accordingly

found that the plaintiff had no subsisting title and dismissed the suit. On appeal the learned Subordinate Judge took a different view. The principal

questions which the lower appellate Court had to decide were whether the appellant''s suit was in time and whether the respondent had acquired

title by adverse possession. Before the lower appellate Court, the alleged fraud by the heirs of Karuppanna Udayar or entrustment of the property

to that person was apparently given up. The lower appellate Court held that since the heirs of Karuppanna Udayar should be deemed to continue

in possession only on the basis of a lessee''s interest, they could not convey anything more than that interest. It accordingly reached the conclusion

that the tenancy never came to an end until 1958, when the plaintiff returned to India and demanded possession of the property. In the view of the

lower appellate Court, the suit was not barred by Art. 139 of the Limitation Act, and, the respondent did not acquire any title to the property by

adverse possession. The appeal was allowed.

The defendant in the suit prefers this second appeal. Mr. R. Gopalaswami Aiyangar, Learned Counsel for the appellant, urges that on and after

the termination of the lease, the heirs of the lessee Karuppanna Udayar cannot be regarded as lessees and it is open to them to acquire title by

adverse possession. It cannot also be contended that these persons are tenants holding over, for that would require the assent of the landlord. The

lease was granted in the year 1930 and was for a period of five years. Karuppanna Udayar, the lessee, died during that period. There can be no

doubt that the heirs of the lessee are entitled to continue in possession till the lease expired by efflux of time. The lower appellate Court thought that

once they entered into possession as lessees, it was not open to them to set up any title hostile to the lessor until they surrendered possession of the

land to the lessor, or until after the lease was terminated. In its view, such termination of the lease was only in 1958, when the plaintiff, after his

return to India, demanded surrender of the land. It seems to me that this conclusion can hardly be supported in law. That a tenant is prevented

from denying his landlord''s title during the tenancy of the lease and cannot also deny that the landlord had title at the inception of the lease is a well

accepted position. But, when once the lease came to an end by efflux of time, merely because the tenant continues to be in possession of the land,

the relationship of landlord and tenant can no longer subsist, and after the termination of the tenancy, the tenant''s right to set up title hostile to the

landlord does not appear to be negatived by any decided case. In Vadapalli Narasimha v. Dronomraja Seetharamamurthi 31 Mad. 163, it was

clearly laid down that in a suit by a lessor to recover possession from a tenant for a term of years, time begins to run under Art. 139 of the

Limitation Act from the expiry of the term when the tenancy is determined within the meaning of the Article. Dealing with the status of a tenant,

after the expiry of the term, the learned Judges observe:

Assuming than Sanyasi held for three years and on the expiry of the term became a tenant at sufferance, we think the view taken in the lower

Courts is right. There is no evidence of any assent on the part of the landlord during Sanyasi''s life which could have converted him from a tenant at

sufferance into a tenant in the true sense of the term, either at will, or from year to year. At common law, the landlord''s assent converted a tenant

at sufferance into a tenant at will...... In Right v. Darby 1 Term Rep. 159 Lord Mansfield laid it down that ''if there be a lease for a year and by

consent of both parties the tenant continue in possession, the law implies a tacit renovation of the contract''......... Under S. 116, which, in our

opinion, points out the rule which is prima facie applicable even in cases not coming under the Act, where a lessee holds over and the lessor or his

representative accepts rent or otherwise assents to the tenant continuing in possession, the lease is in the absence of a contract to the contrary,

renewed from year to year or month to month as the case may be. But, while at common law the lessor could, by his assent, convert a tenant by

sufferance into a tenant in the true sense of the term, he could not, by his mere assent, convert the representatives of a tenant by sufferance, who

are mere trespassers, into tenants and without their own consent; and S. 116 of the Transfer of Property Act which enables the lessor or his

representative by his assent to convert a tenant by sufferance into a yearly or monthly tenant, does not enable him by his mere assent to convert the

representatives of a tenant by sufferance into such a tenant.........

Dealing with the question of limitation, they observe:

Although, the possession of a tenant by sufferance is not at common law adverse to the landlord, still, as held in the two cases last mentioned, and

according to the view expressed in Seshamma Shettali v. Chikaya Hegde 25 Mad. 507 in a suit by a landlord to recover possession from a tenant

for a term of years, time begins to run under Art. 139 of the Limitation Act from the expiry of the term which must be held to be the time when the

tenancy is determined within the meaning of the Article, and the decision in Adimulam v. Pir Ravuthan 8 Mad. 424 can, in our opinion, be no

longer treated as good law. Art. 139 of the Limitation Act, however, deals with suits to recover possession from a tenant, that is to say, a person

who was a tenant until his tenancy determined. The representatives of a tenant by sufferance who enter after his death cannot, in our opinion, be

said to have ever been tenants within the meaning of Art. 139 and a suit against them would appear to fall within Art. 144.

Two points are made clear by this decision. If Karuppanna Udayar had continued to live for the entire period of five years of the tenancy, a suit

against him or his representative for possession would be governed by Art. 139. It he continued in possession after the expiry of the term and on

his death his representatives came into possession, since those representatives could not be said to have been over tenants, a suit against them

would not be to recover the land from the possession of a tenant, in which event, the proper Article applicable would be Art. 144. But, if the

tenant died during the term, and his successors-in-interest continued in possession, since tenancy of land is a right in immoveable property, they

must be regarded as the tenants during the remainder of the term and a suit to recover possession from them would appear to be governed by Art.

Though the above decision appears to have been doubted in Sabraveti Ramayya v. Gundla Ramanna 33 Mad. 260 that was the case only in

so far as the proper Article that would apply is concerned. The principle laid down by this decision would be clear from the following facts. One

Kondanna became a lessee for a term certain. The lease was determined about the year 1891. Kondanna died sometime afterwards, but he was

succeeded by his sons in the possession of the property. The tenancy having determined in 1891 if Art. 139 is applicable, the suit would be barred.

But, it was contended that the suit was not one to recover possession from a tenant. The argument was that though Kondanna was a tenant and a

suit against him after the termination of the tenancy might be described as a suit against a tenant on account of his former tenancy, the suit against

the sons cannot be described as one to recover possession from a tenant, for they were not tenants at any time. Vadapalli Narasimha v.

Dronamaraju Seetharamamurti 31 Mad. 163. at 167 was cited in support. But the learned Judges observe:

Kondanna remained in possession after the expiry of the term. The tenancy was determined within the meaning of Art. 139......Time began to run

therefore in Kondanna''s favour. He was succeeded by his sons in the possession of the property. They are entitled to back at the time of their

father''s possession after the determination of the tenancy to the period of their own possession. The time that had begun to run in favour of their

father continues to run in favour of the sons. It seems to us therefore difficult to hold that Art. 139, which should be applicable to the suit against

Kondanna, ceases to be applicable because Kondanna is succeeded by his sons in the possession of the property...

They also doubted whether it would make any distinction whether Art. 139 or 144 applied in the circumstances of that case.

Both of these cases were referred to in Sudalaimuthu Thevan v. Suppani Thevar 48 M.L.J. 185 in which the later case was followed and it was

held that Art. 139 applied. To the same effect is the decision in Katam Veerayya Vs. Godela Subbamm,

The learned Subordinate Judge appears to have thought that S. 116 of the Evidence Act estopped the successors of the tenant of Karuppanna

Udayar from questioning the landlord''s right. He observed�

It has been held in some decisions that a person who enters into possession of a particular property as a tenant cannot in any event prescribe for

anything more than a tenancy.

He refers to certain decisions which deal with S. 116 of the Evidence Act.

On a review of the case law in Gurusami Nadar v. Ranganathan (1953) 2 M.L.J. 511 the learned Judges observe that the principle of estoppel

in S. 116 of the Evidence Act does not extend to the derivative title of persons claiming from the landlord. The headnote reads:

Though the section restricts the estoppel to the period during which the tenancy continues, the duration of the estoppel continues so long as the

tenant has not openly restored possession by surrender to his landlord. But the estoppel is restricted to the denial of the title of the landlord at the

commencement of the tenancy. It is therefore open to a tenant even without surrendering possession to show that since the date of the tenancy, the

title of the landlord came to an end, or that he was evicted by a paramount title-holder, or that even though there was no actual eviction or

dispossession from the property, under a threat of eviction he had attorned to the paramount title holder and he can set up such threat of eviction

by way of defence either to an action for rent or to a suit for ejectment.

But the question in the present case is not whether the representatives of the tenant set up a hostile title at all. It is more concerned with the

question whether the plaintiff as the representative of the lessor is barred by the law of limitation from recovering the property. In the light of the

above decisions, there seems to be no doubt that the plaintiff, if he is to succeed, must sue within 12 years after the termination of the tenancy,

which termination was undoubtedly in 1935.

Mr. Sarvabhauman, Learned Counsel for the respondent, urges that Karuppanna Udayar was in permissive possession. He argues that the

circumstances of the case should show that though formally there was a lease deed executed, it was really a case where Karuppanna Udayar was

asked to look after the property during the absence from India of Sepoy Chidambara Udayar. The theory of entrustment has been negatived by

the Courts below. It was set up as a positive case and was not established. It is not therefore open to the Learned Counsel to ask this Court sitting

in second appeal to infer that the possession of Karuppanna Udayar must be construed as permissive in the circumstances alleged. Undoubtedly, in

the light of the decisions that have been referred to, time began to run against the lessor from 1935. The plaintiff''s attempt to plead that he was a

minor and he could bring the action within 3 years after attaining majority must fail, for, in 1935, the plaintiff was not even born. His father,

Ramaswami Udayar, the younger brother of Sepoy Chidambara Udayar, was alive, and if he became entitled to the property by survivorship, time

began to run, against him, and it is common place that when once time begins to run, it will not stop. That being so, the suit brought beyond 12

years from 1935 stands clearly barred. The view taken by the learned Subordinate Judge is erroneous. The appeal is allowed. The suit will stand

dismissed. The defendant will be entitled to his costs throughout. No leave.