KARIYA BELCHAPPADA Vs. VISHNU SHANBHOGUE

JUDGEMENT

(1.) THIS second appeal arises out of a suit for recovery of possession of a shop building on the strength of the plaintiff's title with past and future mesne profits. The plaintiff, who is the respondent, alleged that the shop building had been leased under Ext. A-l. dated 217 57 on a monthly rent of Rs. 14/- to one Ayyappa, deceased son of the 1st defendant and the brother of defendants 2 and 3. According to the plaintiff, on the expiry of the lease which was for a period of 11 months, the lessee Ayyappa was holding over till his death in September 1964 and thereafter the appellants without any legal right trespassed into the shop building and had been keeping possession of it. The contention of the appellants was that the lease deed Ext. A-1 had not been executed by Ayyappa and he had not been in possession thereunder. According to them, the lease was in favour of Ayyappa and the 3rd defendant and they were having a joint trade in the shop. The rent agreed to be paid was Rs. 12/ -. After the death of Ayyappa the appellants as legal representatives of ayyappa and the 3rd appellant as a joint lessee continued in possession.

(2.) BOTH the Courts below held that Ayyappa had been in possession under the lease deed Ext. A-1 and that the lease had come to an end on the death of Ayyappa. In that view, the suit was decreed in favour of the respondent for recovery of possession with past mesne profits.

(3.) THE next question for consideration is whether what would happen on the death of Ayyappa regarding his tenancy right if he was a tenant holding over under S. 116 of the Transfer of Property Act. Anwarali v. Jamini Lal Roy, AIR. 1940 Calcutta 89 and Ram Nath v. Neta AIR. 1962 Allahabad 604 are authorities for the proposition that such a lease must be taken to be from month to month under S. 116 of the Transfer of Property Act and that the lease is not extinguished by the death of the lessee and would devolve on his heirs like any other interest in immovable property. That is the essential difference between a tenant holding over and a tenant at will. A tenancy at will is determined by the death of either the tenant or the landlord but in the case of a tenant holding over his interest is heritable and alienable. THE decision in Raman Lal v. Bhagwun Das AIR. 1950 Allahabad 583 also affirms the same position.