NARAYANA NARASIMH DESHPANDE AND Vs. KASHIRAYA SENGAPPA NISABAT

JUDGEMENT

(1.) The appellants are the plaintiffs, who have lost in both the courts. The appellants claimed to be the representatives of the original lessor and sued the respondents as representatives of the original lessees under a document extibit 57 in the case dated the 22nd of July 1872 for recovery of possession on the ground that they had terminated the tenancy under that document by issuing a notice to the respondents under exhibit 51-A dated the 7th of January 1947. The respondents resisted the suit on the ground that they were not lessees or tenants at all, hut were actual full owners of the property. They asserted that the alleged agreement of 1872 was totally false.

(2.) Both the courts below have disposed of this matter on an interpretation of the document exhibit 57. Both the courts recognise that the property originally belonged to the ancestor of the appellants and that the ancestors or predecessors in interest of the respondents obtained possession thereor from the original owner upon the Conditions set out in exhibit 57. Exhibit 57 is not a document executed Ely the lessor in favour of the lessee. That document is described as a Karar Patra under which three brothers Dadoo, Kashappa and Shidraya ac-knowledge that as from that date they will be tenants under one Narasinga Rao Anna Deshpande, the plaintiffs' predecessor in interest. The material sentences in that document are that on that date a stipulation had been made for payment of a rent of Re. 1/- per year to Deshpande, that although they have been making Vahivat of the property even prior to that day they continue to make Vahivat only as tenants; it is however found stated that "whenever you ask us to vacate the house we will leave the house to you without putting forth objections of any kind." From the use of the terms, description of the nature of the Vahivat of the executants of the document subsequent to the date of the document and from the clear description of the payment as rent there cannot he any doubt that the relationship created between the parties by of wider this document was one of landlord and tenant. That also is the opinion of both the lower courts. There is also no evidence of the lease having been at any time terminated either by the original lessor Narasinga Rao Deshpande or any of his successors until we find the appellants issuing the notice exhibit 51-A dated the 7th January 1947. Prima facie therefore if the lease continued undetermined till exhibit 51-A was issued the suit filed by the plaintiffs in October 1950 was within time and no defence involving; an admission of the tenancy was open. Although the defence originally taken in the written statement was one of repudiation of tenancy and assertion of ownership in themselves, the arguments before the lower courts have been directed on the nature of the tenancy, the possible length of it and whether it was terminated or stood terminated and if so at what time.

(3.) From the fact that the document states that the signatories thereof will vacate the house whenever required by Deshpande, it has been argued that the tenancy under exhibit 57 was a tenancy at will and that according to general principles a tenancy at will normally gets determined on the death of the tenant; a second line of argument was that in any event the tenancy was for an indefinite period which also, according to the general principles, must be treated as one which could enure only for the lifetime of the tenant. In either view of the case the argument was that the tenancy was not a heritable tenancy. On this basis the argument was that the tenancy would have come to an end either on the death of the lessor Deshpande or at any rate on the death of the last of the lessees therein, viz. Shidraya, who died on the 11th of June 1918, and that therefore viewed from any point of view the suit filed in 1950 was hopelessly barred by limitation.