DEVAKI AMMA Vs. RAMACHANDRA KAMMATHI

JUDGEMENT

(1.) IN this appeal by the third defendant arising out of the decree of the court below which directed the defendants to deliver possession of the plaint properties with arrears of rent and future profits the only points raised are whether the plaintiff is entitled to the charge given on the immovable properties in respect of the arrears claimed and if not whether rent for more than three years preceding the date of suit should have been decreed.

(2.) ON 17. 3. 1100 the tarwad of defendants 1 to 19 executed a possessory mortgage to Krishna Kammath, now dead, the father of the plaintiff. ON the same day the tarwad took the properties back on lease from the mortgagee and executed a document to him embodying the terms of the lease. The lease was for an year certain on a rent of Rs. 118/ -. Out of this sum Rs. 10/- was agreed to be utilised for payment of land revenue and jenmi's dues and rs. 108 was agreed to be paid in two equal bi-annual instalments. ON default of such payment interest on the overdue amount at the rate of 12 per cent was agreed to be paid. A charge on the equity of redemption was created for the outstanding rent and interest. It was stipulated that the properties should be surrendered at the end of the year. No payment of rent was made nor were the properties surrendered; but the tarwad continued to possess the properties as before on the landlord's assent. In the year 1104 there was a partition in the tarwad. The mortgaged properties as also the mortgage amount and arrears of rent were divided and allotted to certain members and groups stating that the proportionate mortgage amount, overdue rent and interest were a charge on the properties allotted. In the year 1109 there was a sub-partition in one of the branches which got separated at the earlier partition with an allotment of mortgaged property and liabilities. That partition deed dealt with the slice of the mortgaged property that the branch obtained in the same manner as at the tarwad partition, that is to say, the properties were divided with proportionate liabilities regarding mortgage amount, rent and interest all of which were stated to be charged upon the respective slices into which the mortgaged property was divided. The mortgagee landlord was not a party to these documents nor was it proved that he assented to or accepted their terms afterwards. The defence plea that the relief to the plaintiff should be apportioned as against the several divided slices of the property as divided at the aforesaid partitions with proportionate liabilities was, therefore, repelled by the court below and has not been pressed before us.

(3.) IN the earliest Madras case, i. e. , 11 M. L. J. 186, which is seen followed in the aforesaid later cases the observation that the last clause in the lease deed creating the charge is not a term of the lease as a lease which can be deemed to be imported with the terms of which the lessee is allowed to hold over is an obiter dictum because on the facts there was no holding over in that case as is clear from the remaining part of the sentence read above. There is no reason given why security given for rent payable under a lease cannot be a term of the lease as a lease. The rent that is fixed, the time when it is due to be paid, whether in advance, at intervals or at the end of the year or other period of lease, the liability to pay interest on overdue rent, have all been considered to be terms of the lease. The quantum of rent would have a relation to the question whether its payment is secured. It is common knowledge that security of performance tends to lighten the obligation to be performed, for example, a loan fully secured would be available on easier terms regarding interest than one without security. Even so in the case of a lease, if payment is guaranteed the rate of rent would be lower than in a case where there is no such guarantee. As there is this integral connection between the rent and security for its payment, we are not, with respect to the learned judges of the Madras High Court, able to accede to the proposition that security for rent is collateral to and independent of the lease and does not form part of its terms. S. 116 of the Transfer of Property Act which enacts: "116. If a lease or underlessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or underlessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in S. 106". in our judgment, lends support to our view as is clear from the words "renewed from year to year" which indicate that what is excluded from the stipulations contained in the old lease is only the longer period which is incompatible with a lease from year to year or month to month. The terms to be imported from the old into the new lease created by holding over, need not necessarily be appertenant to an yearly or monthly lease. Terms that are not inconsistent with a lease from year to year or month to month can and will be deemed to be imported. The rule deducible from decided cases is that all stipulations contained in the expired lease deed will be deemed to be imported into an implied lease by holding over unless they are altogether unconnected with the transaction of lease, e. g. , a covenant to purchase the reversion, or are inconsistent or incompatible with a yearly or monthly lease, e. g. , a covenant fixing a period of over a year or month as the duration. A stipulation to remove trees planted by a tenant has been held to be a term applicable to a yearly lease of a tenant holding over (3 Bombay High Court reports, page 27, A. C. ). This Court held in A. I. R. 1953 T. C. 299 that a covenant concerning the mode of valuation of improvements entered into before they are made in the Travancore area where there is no prohibition against so doing as in the Cochin Tenancy Act, applies to the value of improvements effected by the tenant after the expiry of the original terms of the lease and during the period of his holding over, that is to say, the covenant would be a term of the lease importable into a yearly tenancy by holding over.