KONIJETI VENKAYYA Vs. THAMMANA PEDA VENKATA SUBBARAO

JUDGEMENT

(1.) The facts that are common to these appeals have been stated in the judgment of my learned brother which I have had the advantage of reading and it is unnecessary for me to repeat them. Suffice it to say that the dispute in four of these appeals encircles a lease, Exhibit B-26 granted by the 1st defendant on 29th January, 1947. The dispute in A.S. No.642/51 relates to the truth and validity of a codicil Exhibit B-21 (a) and of a gift deed Exhibit B-41 purporting to have been executed by the 1st defendant. The general features of the case as well as the contentions of the parties and the findings of the lower Court in the suits which have given rise to these appeals, have been adverted to in the judgment of my brother. In my judgment, I propose to deal with the case of the parties in so far as it relates to the validity of the leases of the Kanaka Durga Groundnut Oil Mill, Exhibits B-2, B-8. B-12 and B-26 the particulars of which have been set out in the judgment just now delivered.

(2.) On the construction of the lease deed Exhibit B-2 dated 12th December, 1943, I am of the opinion that the two lessees, the plaintiff and his father, acquired the leasehold interest as tenants-in-common without any right of survivorship inter se. The lessor had a four annas share in the Kanaka Durga Oil Mill which she leased "for the entire lifetime" of the plaintiff and his father on annual rent of Rs. 300, besides municipal taxes for the payment of which the two lessees held themselves jointly and severally responsible. Exhibit B-2 also provided that " till the end of the lifetime " of both the lessees, the lessor had no right to enter into possession but could only collect the rent at the stipulated rate. A further clause in the lease was to the effect that during the lifetime of the lessees, they had a right to work the mill either jointly or severally at their own expense and take the profits. The municipal and other charges and taxes in respect of the property accruing during the lifetime of either of the lessees had to be paid by them. His father having died pending the suit, the plaintiff claims the entire four annas share in the leasehold interest by survivorship on the ground that Exhibit B-2 created a joint tenancy. In my opinion he plaintiff's claim is untenable.

(3.) The plaintiff and his father had ceased to be members of a joint family and had become divided from each other under Exhibit B-1 dated 16th June, 1943. In the Oil Mill, the plaintiff had a four annas share and his father had an eight annas share at the time when the lease Exhibit B-2 was granted to them. They were doing business on their own account or in partnership but not as members of a joint family. With a view to keep the entire mill under their control and prevent the intrusion of strangers as lessees of a fractional share, the plaintiff and his father took a lease of the four annas share from its owner under Exhibit B-2. It was contended on behalf of the plaintiff that Exhibit B-2 represented a contractual arrangement between the lessor on the one hand and the lessees on the other hand for payment of a certain sum to the former as compensation for the exclusive occupation of common property by the latter. According to him the rights and obligations of the plaintiff's father under Exhibit B-2 ceased with his death and that the only person entitled to enforce the terms of Exhibit B-2 and liable for the discharge of the obligations thereunder, was the plaintiff himself. This argument was again stressed with reference to another portion of the case dealt later in the course of the judgment. A lease is not a mere contract but is a transfer of an interest in immoveable property, that is to say, of a right to enjoy the property for a term in consideration of a payment in money or kind by the transferee to the transferor. The leasehold interest is, like any other interest in immoveable property, capable of being inherited or transferred. Being an estate of inheritance, the interest of the lessee vests on his death, in his heirs, executors or legatees. The period of the lease need not be certain on the date of the lease itself. It is enough if it is fixed with reference to a future event which must happen and on the happening of which the lease will stand determined. The period is "certain" if it can be made certain on a future date, on the principle id certum est quod certum reddi potest. A lease for the lifetime of the lessor or lessee or of any other living person will be valid in law. The term of the lease under Exhibit B-2 is the lifetime of the plaintiff or his father, whoever survives the other. The fact that one of the lessees pre-deceased the other does not entail a cutting down of the term of the lease and in the absence of a specific provision to that effect in the lease the legal representative of the deceased lessee would be entitled to the benefit of the lease along with and during the liefime of the surviving lessee. Exhibit B-2 does not provide either for the devolution of the interest of a deceased lessee on the survivor or for its reverter to the lessor. It is no doubt true that a joint tenancy with a right of survivorship might be created by the use of appropriate words in a grant or a lease, but there is no presumption in its favour. Indeed as early as Jogeswar Narain Deo v. Ram Chandra Datt, (1896) I L R. 23 Cal. 670 : L.R. 23 I.A. 37 : 6 M.L.J. 75 (P.C.), the Judicial Committee held that a joint tenancy was unknown to Hindu Law except in the case of a coparcenary between the members of a Mitakshara family and deprecated the importation of an extremely technical rule of English conveyancing into the construction of Indian documents. As pointed out in the case above cited, even according to English Law a conveyance or agreement to convey his personal interest by one of the joint tenants operates as a severance. In the present case, the plaintiff and his father separately dealt with a two annas share of the leasehold interest acquired by them under Exhibit B-2 when they granted the lease Exhibit B-12, dated 9th October, 1946. It is unnecessary for us to consider the numerous decisions holding that the estate taken by two or more donees or legatees under a grant or a will was tenancy-in-common and not a joint tenancy. Suffice it to say that an estate taken by two brothers who had not become divided, under a grant made in their favour, was held to have been taken by them as tenants-in-common. See Mt. Bahurani v. Thakur Rajendra Baksh Singh, (1933) L.R. 60 I.A.95 : I.L.R.8 Luck.121 : 64 M.L.J.555 : A.I.R. 933 P.C. 72 (P.C.), Bai Diwali v. Patel Bechardas, (1902) I.L.R. 26 Bom. 445. It is an a fortiori case where the grantees are divided members. Having regard to the terms of Exhibit B-2, I must hold that the lessees were tenants-in-common in respect of the leasehold interest and the plaintiff's, claim by survivorship to the two annas share of his father is untenable. The 4th defendant, the minor step-brother of the plaintiff, having remained undivided with his father would be a preferential heir to his father's self-acquired property and would exclude the plaintiff, a divided son. The authorities on this point were recently reviewed in my judgment in S.A. No. 1961 of 1952 and it is unnecessary to refer to them again.