RASAPPA GOUNDER Vs. G. N. RAMASWAMI

JUDGEMENT

(1.) THE plaintiff is the appellant. The suit was filed by him for a permanent injunction restraining the defendant from interfering with his possession on the ground that he is a cultivating tenant in respect of the suit properties entitled to the protection of the Cultivating Tenants Protection Act, hereinafter referred to as the Act. The facts as now found by the courts below simply stated are as follows -

(2.) "Cultivating tenant is defined in the Act as including the heirs of a cultivating tenant. In Venkataswami Reddiar v. Sundaramurthi 1971 -2 Mad LJ 445 : (AIR 1972 Mad 171), a Division Bench of this court to which I was a party held that in order to get the benefits of the Act, the legal representatives also should satisfy the condition of personal cultivation as required in the definition of cultivating tenant. In the decision in Sadalaimuthu v. Palaniyandavan AIR 1966 SC 169 the Supreme Court had held that in the case of a joint family, if one of the members of a joint family contributes his labour that would sufice to hold that the family is entitled to the protection under the Act. Therefore, on the death of Bagavathi Gounden, his legal representatives were entitled to claim the protection of the Act, if any one of them satisfied that he had personally contributed his labour in the cultivation of such land. The plaintiff himself as one of the members of the joint family had claimed that he was contributing his labour in the cultivation of the land and that is not disputed. Therefore, the legal representatives of Bagavathi Gounden are also cultivating tenants within the meaning of the Act.

(3.) BUT the next question for consideration is whether the legal representatives or some of them could surrender their interest in favour of the lessor defendant. In this connection two decisions may be noted. One is the decision in Devu Subhana v. Badruddin Hussain, AIR 1957 Bom 217. In that case the lease was in favour of three persons. One of them surrendered his interest. The lessor filed an application for delivery of joint possession of the leasehold property. The application was ordered. However, by consent of parties, the lands were divided into 2/3rds for the lessee and 1/3rd for the lessors for the purpose of cultivation. On an appeal preferred to the High Court, the question for consideration was whether the surrender in favour of the lessor was valid and what was the effect. The learned Judges referred to Section 5 (3) (b) of the Bombay Tenancy and Agricultural Lands Act, 1948, which provided that a tenant "may terminate the tenancy at any time by surrendering his interest as a tenant in favour of the landlord." The learned Judges considered that the word 'interest' denotes that one of the several tenants can also surrender his share. An argument was advanced that under Section 111 (d) of the Transfer of Property Act, a lease of immovable property is determined in case the interest of the lessee and the lessor in the whole of the property became vested at the same time in one person in the same right and that this showed that the Act contemplated surrender of the entire interest in the lease and not surrender of an interest In other words interest of one of the lessees could not be surrendered. The learned Judges considered this argument and held that though the clause dealt with the surrender of the entire interest, of the lessees, there is no prohibition in that clause that one of the tenants or lessees of a joint tenancy cannot surrender his right. With respect to the learned Judges, I am in entire agreement with this reasoning. It is also quite reasonable and just to permit one of the lessees to surrender his own interest because otherwise it will be putting him under an obligation which he does not want to hold. For instance, in a case where the lease is in favour of two persons and one of them does not want to continue the lease further, the other lessee cannot insist on his being a co -lessee with him. The lessor also is not bound to relieve one of the lessees. Therefore, the tenant must be in a position to surrender his interest in favour of the lessor. A similar view was also taken by the Nagpur High Court in Hindu v. Vithoba AIR 1931 Nag 159. In that case, the lease was in favour of a Rindu joint family and some of the major members of the family executed a deed of surrender of their 2/3rds share. The lessor plaintiff filed the suit for possession of the holding to the extent of the major son's share surrendered to him. It was argued that the surrender of unascertained and undefined portion of the holding by some of the tenants is not valid in law. Following the earlier decision in Shersingh v. Kaluisingh, AIR 1925 Nag 124, the court held that one of two or more co -tenants is at liberty to transfer to the landlord the rights which he holds in the land against the landlord. Ultimately, the decree for partition as claimed in the suit on the basis of the surrender was granted. The learned counsel for the appellant relied on a decision of Ramamurti, J. in Gopaldas Family Trust Estate v. Michalswami 1964 -2 Mad LJ 242 and contended that one of the lessees cannot surrender his interest in favour of the lessor. It is true in that decision, the learned judge has held that in case of plurality of lessees, the surrender must be by all the lessees in favour of the lessor. In support of this view, the learned Judge has relied on Leek and Moorlands Buildings Society v. Clark 1952 -2 QBD 788. In the English case cited, the lease was to favour of the husband and the wife and it was held that one of the joint lessees cannot surrender the rights held jointly before the full period of lease has run out and the lessee who has not joined in the surrender was not estopped from asserting his rights as a joint tenant.