KANNAN Vs. KADISA

JUDGEMENT

(1.) THE question in these appeals (arising out of two suits for arrears of rent between the same parties in respect of the same holding but for different periods) is whether, in a suit for recovery of arrears of rent in enforcement of the charge conferred by S.39 of the Malabar Tenancy Act, a decree can be made for the sale of the holding free of the interest of a tenant of the defaulting tenant, in other words, of a sub -tenant, the sub -tenant being party to the suit. The courts below have answered this question in the affirmative rejecting the plea of the defendant sub -tenants that there should be a reservation of their interest. The sub -tenants have come to this Court by way of second appeal, and their appeals have been referred first to a division bench and then to a full bench for answering the question.

(2.) S .39 by which the charge is conferred reads thus:

(3.) WE are also of the view that a sale of a tenant's holding, (unlike the determination of a lease or the redemption of a possessory mortgage) does not involve an extinguishment of his rights within the meaning of S.43. It is only a transfer of those rights as in an assignment of a lease or a mortgage, and, from a sub -tenant's point of view is not the extinguishment of the rights of his landlord but only the substitution of one person for another as the landlord. On a sale in enforcement of a charge against the tenant under S.39 it is the subtenancy and not the tenancy that is extinguished.