Vadappalle Narasimham vs Dronamraju Seetharamamurthy and Others

This is a suit to recover certain lands which were held by one Sanyasi, the predecessor of defendants Nos. 2 to 6 under certain inamdars. The

inamdars granted them to the defendants Nos. 8 and 9, the predecessors of the plaintiff. Subsequently to the grant, Sanyasi attorned to the

grantees and on the 7th January 1884 executed a kadappa Exhibit M in their favour by which he undertook to hold the lands under them at a

yearly rental for three years until the close of the year Vijaya, April 1887.

The kadappa further provided that although he should conduct himself properly for three years according to the cowle he should obtain a fresh

cowle at the end of the three years.

In 1887, the Government resumed the inam and Sanyasi then attempted to get Government to grant him a patta for the lands at the full

assessment, but the 8th and 9th defendants put in a petition alleging that he was only a ryot cultivating under them, and ultimately Government

ordered the patta to be issued to defendants Nos. 8 and 9 - Exhibit T, dated the 20th July 1888. Sanyasi, however, did not pay any rent

subsequent to the end of the year Vijaya (April 1887) and died in 1889, when defendants. Nos. 2 to 6 are found to have entered as this

representatives. Nor was any rent paid subsequently down to the institution of the suit in 1903.

In these circumstances, both the lower Courts have held that the suit was barred as at the expiry of the term limited by Exhibit M. Sanyasi

became a tenant by sufferance and defendants Nos. 2 to 6 who are found to have entered on his death cannot be regarded as deriving any interest

from him but must be regarded as mere trespassers holding adversely to the plaintiff and his predecessors. In this Court it has been urged that

Exhibit M not having been executed by the lessor was not a valid lease for three years under the provisions of the Transfer of Property Act, and

that Sanyasi did not in law hold under it, but must be regarded as having become a tenant from year to year. This point was not raised in the lower

Courts and we cannot now assume that there was not a registered counter-part executed in his favour by the defendants Nos8 and 9. Assuming

that 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 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, bat the inconveniences of this tenure to both sides disposed the Courts readily to construe tenancies at will as tenancies from year to

year. In Right v. Darby (1786) T.R. 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."" In England this is apparently a presumption, vide Dougal v. McCarthy

(1893) 1 Q.B.D 736. But in most of the American States it is now held that a tenant, who holds even after his term has expired, may be treated by

the lessor as a tenant from year to year or a trespasser at his option, but the tenant cannot elect in which capacity he should be regarded, vide

American Notes XV Ruling cases at pp. 541 and 594, and the rule appears to have been laid down as broadly in Sayaji Bin Habaji Bhadvalkar v.

Umaji Bin Sadoji Ravut (1866) 3 Bom. H.C.R. 27 before the passing of the Transfer of Property Act. u/s 116, which in our opinion points 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 would 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

without their own consent; and Section 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 by his mere assent to convert the representatives of a tenant by sufferance

into such a tenant"". It is, therefore, unnecessary to consider the evidence of the assent by the lessor after the death of Sanyasi, the alleged tenant by

sufferance which has been relied on by the plaintiff. The statement made Obiter in Adimulam v. Pir Ravuthan ILR (1885) M. 424 that ""if a tenant

by sufference dies and his representative enters and holds on, he holds as a trespasser"" is, in our opinion, in accordance with all the authorities on

the subject, and in the present case the facts negative any implication that a tenancy was subsequently created by consent of both sides. The

decision in Krishnaji Ramachandra v. Antaji Pandurang ILR (1893) B. 256 which has been relied on by the appellant is, in our opinion,

distinguishable, and we may further observe that this decision has been dissented from in Kantheppa v. Shesheppa ILR (1867) 22 Bom. 893 and

in Chandri v. Daji Bkau ILR (1900) 24 Bom. 504 Although the possession of a tenant by sufferance is not at common law adverse to the landlord,

see Notes to Taylor v. Horde (1752) 2 L.C.P. 559 10th Edition till as held in the two cases last mentioned, and according to the view expressed

in Seshamma Shettati v. Chickaya Hegade ILR (1902) M. 507 in a suit by a landlord to recover possession from a tenant for a term of years, time

begins to run under Article 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. Fir Ravuthan ILR (1885) M. 424 can, in our opinion, be no longer

treated as good law. Article 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 Article 139 and a suit against them would appear to fall within Article 144. Even so, the present suit is

barred as the defendants Nos. 2 to 6 entered in 1889, and the present suit was not instituted until 1903.

One more point remains to be considered. In 1896 the suit lands were attached in execution for a decree against defendants Nos. 8 and 9; and

defendants Nos. 2 to 6 put in a claim petition which appears from exhibit D, an extract from the Miscellaneous Petition, to have been dismissed.

Defendants Nos. 2 to 6 did not sue within the year, and on this ground the District Munsif held that they were debarred from asserting their right to

the property in the present suit, but the District Judge overruled this contention, we think rightly on the ground that it is not shown that the

judgment-debtors, defendants Nos. 8 and 9 were parties to the proceedings in which the order (Exhibit D) was passed. It has been held in Guruva

v. Subbarayudu ILR (1890) M. 366 and Moiden Kutti v. Kunhi Kuttiali ILR (1902) M. 721 which was approved by F.B. in Krishnaswami Naidu

v. Somasundaram Chettiar ILR (1906) M. 335 that au order passed u/s z8i is not conclusive as against the judgment-debtor, unless he is a party

to the proceedings in which the order was passed. If, therefore, the order in Exhibit D had been in favour of the defendants Nos. 2 to 6 they could

not have pleaded it successfully in the present suit against the plaintiff as his predecessors, the judgment-debtors, defendants Nos. 8 and 9, were

not parties to the proceedings in which the order was passed. It is contended, however, that though the defendants Nos. 2 to 6 could not under

these circumstances have taken advantage, against the judgment-debtors of an order passed on their claims'' still under the words of Section 283

an order made against them must be held to be conclusive as between them and the judgment-debtors, even though the latter were not parties. No

authority has been cited in support of this contention which is opposed to the decision in Fagan Nath v. Ganesh ILR (1896) A. 413 and was, in

our opinion, rightly rejected. In the result, the second appeal must be dismissed with costs.