KUPPA BAI Vs. A. RAJAGOPAL NADAR AND ANR.

JUDGEMENT

(1.) THE second appeal and civil revision petition are by the plaintiff, for vacant possession of land within the limits of the City, for arrears of rent, damages for use and occupation and incidental reliefs, from the 1st defendant in the suit, whose tenancy has been terminated by a notice to quit, and from the 2nd defendant who claimed under the 1st defendant. The land as a vacant site had been leased by the plaintiff to the 1st defendant's husband in 1953. The 1st defendant's husband had put up a superstructure on the land and was running a firewood business there. The first defendant's husband died during his tenancy and the 1st defendant continued in occupation covenanting with the plaintiff for a lease for a period of three years. This agreement for lease between the plaintiff and the 1st defendant is found recorded in the unregistered, document Exhibit A -8 dated 26th February, 1956. The earlier lease is also by an unregistered rental agreement between the plaintiff and the 1st defendant's husband, Exhibit A -1 dated 25th February, 1953. Under Exhibit A -9 dated 5th May, 1960, the plaintiff issued notice to the 1st defendant terminating her tenancy with the 25th May, 1960. The plaintiff claimed arrears of rent due till then. Under Exhibit B -5 dated 15th June, 1960, Mr. J.S. Vedamanikkam, Advocate as acting under instructions from the 1st defendant intimated the plaintiff that she would be vacating the premises by 30th June, 1960, and would pay the arrears of rent amounting to Rs. 190 deducting the advance with the plaintiff. As the trial, the first defendant attempted to disown Exhibit B -5. But the Additional City Civil Judge, on appeal, has found that Exhibit B -5 had been issued on behalf of the 1st defendant and it would bind her. The learned Judge holds that there was a surrender of the lease and the tenancy of the 1st defendant had been terminated. Before delivery of vacant possession, under Exhibit A -7 dated 22nd June, 1960, the 1st defendant conveyed her leasehold interest in the property along with the superstructure to the 2nd defendant in the. suit. The 2nd defendant, in the circumstances, claimed benefits under the Madras City Tenants' Protection Act III of 1922, (hereinafter referred to as the Act). He filed I.A. No. 1229 of 1960 in the trial Court under Section 9 of the Act for a direction to the plaintiff to sell the suit land to him for a price to be fixed by the Court. The claim of the 2nd defendant to the benefits under the Act is the substantial question for consideration in this case.

(2.) THE trial Court, having regard to the fact that there was variation in the rent when the 1st defendant agreed for a tenancy in February, 1956, held that there was a new tenancy and therefore, the defence under the Madras City Tenants' Protection Act as amended in 1955 was not available. Rejecting the petition under Section 9 of the Act, the trial Court decreed the suit for possession with rent and damages for use and occupation. The second defendant preferred and Appeal, A.S.No. 217 of 1952, against the decree in the suit, and C.M.A. No. 41 of 1962 against the order on the application under Section 9 of the Act. It is important to notice here that the 1st defendant Was not made a party to the appeals. In the appellate Court it was contended for the plaintiff, relying on the decision of this Court in Madhava Rao Naidu v. Sri Gangadareswarar Temple : AIR1947Mad125 , that as the 2nd defendant claimed under the 1st defendant by an assignment for the leasehold right subsequent to the termination of the tenancy under Exhibit A -9 the 2nd defendant was not a tenant within the meaning of the City Tenants' Protection Act and therefore he was not entitled to the benefits of the Act. Rejecting this contention, the learned City Civil Judge observed that, as the leases were by unregistered documents, they could not be looked into even to ascertain the date of commencement of the lease. Therefore, he said, it could not be contended that the tenancy of the 1st defendant which was continued under Exhibit A -8 was validly terminated with 25th May, 1960, by Exhibit A -9. The learned City Civil Judge found that the lease was duly terminated only by Exhibit B -5 whereunder the 1st defendant surrendered the tenancy. In that view, finding further that there was no fresh tenancy after the death of the 1st defendant's husband, the 2nd defendant was held entitled to the benefits of the Act. The appeal against the rejection of the application under Section 9 of the Act was allowed. Following, the appeal against the decree for possession was dismissed. The second appeal has been filed against the decree in the suit and the Civil Revision Petition, against the order on the application under Section 9 of the Act.

(3.) IN this Court, Mr. M.S. Venkatarama Ayyar, learned Counsel for the plaintiff, would contend for application of the decision in Madhava Rao Naidu v. Sri Gangadareswarat Temple : AIR1947Mad125 . It is submitted that the unregistered documents could be looked into for ascertaining the date of commencement of the tenancy. Reference is made to Mulla's Indian Registration Act, 6th Edition, where at page 171, it is stated that an unregistered agreement of lease, though inadmissible as evidence of the lease for want of registration, may be received in evidence to prove the date of taking possession, or to prove the date of termination of the possession of the lease. The proposition is questioned by Mr. Gopalaswami Ayyangar, learned Counsel appearing for the 2nd defendant. There is another aspect of the case to be considered which affects the claim of the 2nd defendant to be a tenant under the Act. It raises a pure question of law on the statute and I shall take that up for consideration first.