M GOPALAKRISHNA MENON Vs. K P VELLAKUTTY

JUDGEMENT

(1.) The question raised in the second appeal is one of implied surrender of a lease. The plaint schedule items of property were owned by the kanoor tarwad. In the partition, that was effected between the members of the tarwad, the said items were set apart to the share of Chamukutti Nair. The plaintiff, who was holding the said items under a prior lease, attorned to him. There was an agreement between the plaintiff and Chamukutti Nair, in and by which the plaintiff was allowed to continue in possession of the properties on a rental of 334 paras of paddy from 1940-31. On 16-2-1943, the plaintiff executed a pattomchit, Ex. P. 1, where-under the rent payable was fixed at 264 paras of paddy. Meanwhile, the defendant, who obtained an assignment of the decree obtained against Chamukutti Nair, attached the said properties, brought them to sale and purchased them on 19-3-1945 and took delivery on 30-8-1945. It may bo mentioned that the attachment was prior to the date of Ex. P. 1. The plaintiff filed O. S. No. 236 of 1945 for recovery of possession of the property from the defendant, mainly on the ground that as Ex. P. 1 did not come into effect, he would be in possession under his earlier oral lease. The defendant pleaded, inter alia, that there was an implied surrender of the earlier lease by the execution of Ex. P. 1, and, therefore, the plaintiff would not be entitled to possession. The learned District Munsif held that the implied surrender was not valid, since Ex. P. 1 was not operative, having been created while the attachment was pending over the properties. In appeal, the learned Subordinate judge took the same view and held that, as Ex. p. 1 was inoperative and invalid, the respondent should be deemed to be in possession as lessee under the earlier lease. The defendant preferred the above second appeal.

(2.) The learned counsel for the appellant contended that the execution of Ex. P. 1 operated as an implied surrender and that the fact, that it was executed after the attachment, would not affect the question as, though the lease was void against all claims enforceable under the attachment, it was otherwise valid. He also contended that, if it operated as substitution of the earlier lease, the circumstance that subsequently the leasehold properties were brought to sale and purchased free from the lease deed, would not invalidate the surrender that was already effected.

(3.) A lease of immovable property may be determined in any of the modes prescribed under Section 111, T. P. Act. The relevant provision of Section 111 reads: