POTLURI VENKATEWARA RAOI Vs. VENKADATA VENKATAPPA RAO

JUDGEMENT

(1.) This is an application for the issue of a writ of Certiorari to quash the order of the appellate authority acting under the provisions of the Andhra Tenancy Act. The petitioner is the tenant of the respondent An app ication for eviction was filed under Section 13 of the Andhra Tenancy Act, 1935 by the respondents before the Tahsildar, Nuzvid on two grounds (1) default in payment of rent ; and (ii) acts of waste committed by the tenant. The petitioner herein opposed the eviction petition alleging that he regularly paid the rents as evidenced by a receipt and that there was no default. As regards the second ground, the petitioner denied that he committed any acts causing damage to the land. During the course of the trial, the respondents disputed the genuineness of the receipt for rent passed in favour of the petitioner-tenant. The Tahsildar, on a consideration of the entire evidence in the case, held that the receipt in payment of rent Ex. R. 6 was genuine, that the petitioner did not therefore commit default in payment of rent and that there is no pro f of any acts of waste and accordingly dismissed the petition. On appeal by the respondents herein, before the Revenue Divisional Officer, it was held that the petitioner-tenant did not cause any damage to the schedule land and that the receip'. Ex. R. 6 is a genuine one. But the appellant authority held that the payment of rent, though true was not tendered in accordance with the manner and time prescribed in the original deed of lease under which the rent should be delivered in kind at. the time of the harvest, In this Writ petition, the only point argued before me is whether even if the receipt is true, the tenant committed default in payment of rent. The learned counsel for the petitioner Sri Suryanarayana contended that subsequent to the expiry of the written lease in 1960, which no doubt contained a stipulation that the rent should be paid in kind after due intimation to the landlords the parties are not bound by such a stipulation during the period when the petitioner was a tenant holding over, It is argued on behalf of the respondents landlords by the learned Advocate-General that under Section 115 of the Transfer of Property Act, when there is a tenancy by holding over, the previous lease is deemed to be renewed from year to year. But the question is whether the clause stipulating for payment of rent in kind at the time of the harvest after notice to the landlord is also attracted by necessary implications The stipulation concerning the mode of payment of rent contained in the previous written lease is as follows :

(2.) It may be noted that the landlord came to Court with an absolutely false case, namely, that there was default in payment of rent. It was not his contention that the default occurred on the ground that the rent was paid in cash instead of in kind as per the stipulation in the previous written lease. It was found by both the tribunals that rent was paid in cash and accepted by the landlord. It is now argued that under Section 13 (a) of the Andhra Tenancy Act, the tenant incurred default as he failed to pay the rent in the shape of produce at the time of harvest as there was a stipulation to pay rent in the form of share in the produce. In order to bring the case under the provisions of section 13(a) of the Andhra Tenancy Act, it is contended on behalf of the respondents by the learned Advocate general that the tenant held over after the written lease and that by virtue of the provisions of sections 116 of the Transfer of Property Act, the lease is renewed from year to year and by implication all the terms in the previous written lease including the stipulation for payment of rent in kind are applicable to the tenancy by holding over and that there is a violation of the mandatory provisions of section 13 of the Andhra Tenancy Act, It is therefore necessary to consider the scope of Section 116 of the Transfer of Property Act which reads as follows :-

(3.) Though the Section does not provide expressly that all terms of the previous written lease are deemed to continue when the tenant holds over, it has been held that the word "renewed" implies that the lease by holding over is governed by the terms of the previous written lease If there is no fresh agreement fixing the terms of the new lease, the implied tenancy is under English law subject to such terms of the old lease as are applicable to an yearly or monthly tenancy. It was accordingly held in some English cases that where a tenant holds over after the expiration of the term, he impliedly holds subject to all the covenants in the lease which are applicable to his new situation. The rule has been followed in the Indian Cases but a distinction has been drawn between the terms of the lease, meaning thereby the essential or necessary terms of the transaction of lease itself and special covenants or collateral agreements embodied in the written lease which may not be regarded as essential and which make up ths lease. For example, it was held in BAPAYYA V. VENKATARATNAM (1) and R. SARASWATI V. PEDA PAPARAJU (2) that special stipulations as to notice to quit or that possession would be delivered irrespective of notice to quit cannot be imported by implication into the new tenancy created by holding over. In GNANADESIKAM V, ANTONY (3) a Division Bench of the Madras High Court, following an earlier Madras case and a ruling of the Calcutta High Court in DASARATHI KUMAR V, SARAT CHANDRA (4) held that stipulations which are of a collateral nature and which cannot be regarded as part of the lease transaction are not to be imported when the lessee holds over after the expiry of the written lease, In this connection, I may usefully refer to a decision of the Federal Court in KAI KHUSHROO V. BAI JERBAL (5) in which the scope of section 116 of the Transfer of Property Act has been explained. It was held (per majority) that the tenancy which was created by holding over of a lessee or an under-lessee is a new tenancy in law even though many of the terms of the old lease may be Continued in it by implication and it cannot be disputed that to bring a new tenancy in existence there must be bilateral act, Reference was made by the learned Advocate General to the following three rulings : KRISHNA CHARAN V. NITYA SUNDARI (G)GNANADESIKAM V. ANTONY (3) and BADAL V. RAM BHAROSA (7) The first case merely laid down that a condition providing for interest in default of payment of rent cannot be implied as the terms of the lease by holding over when there was no such term in the original lease. The case second cited is the one which I have already referred to above. It does not indeed support the contention of the landlord that all the terms of the previous lease should be imported by implication when the tenant holds over. In the third case it was held that the date of commencement of the original lease may be imported as a term of the lease by holding over. In view of the above authorities, it is clear that only some and not all the stipulations contained in the lease can be imported when the tenant continues as a tenant holding over. As regards the stipus lation for rent, the quantum of rent which represents the consideration for the lease is alone the essential term of the bargain. The mode of payment, namely, whether it is to be in cash or kind, or for instance, by way of cash or by way of a cheque or otherwise, relates to the manner in which the payment is to be made, which is in the nature of a special covenant. The test to determine whether such stipulations are necessary for the formation of a lease is to see whether in the absence of such a stipulation there can be a completed transaction of a lease. The omission of such a clause relating to the mode of payment does not render the lease incomplete. Having regard to the definition of lease, one of the essential terms is the provision for payment of a fixed amount of rent which represents the consideration. I am therefore of the opinion that the special agreement to pay the stipulated rent in kind is not necessarily imported when the tenant holds over after the expiry of the written lease.