CHETTIYOTAN KANNAN KUTTY Vs. ELAYA VEETTIL VELU ALIAS ELAYA CHETTIAR URALAN AND MANAGER OF KABBACHERI DEVASWAM

JUDGEMENT

(1.) The suit property belongs in jenmam to Kannancheri Devaswam of which the Uralans are the plaintiff and the 3 defendant. Plaintiff's predecessor and the 3 defendant leased it to the 1 defendant for a period of 12 years under Ex. A on 10-8-1897. Plaintiff brought the suit to recover the property on behalf of the Devaswam. The Munsif dismissed the suit. The Subordinate Judge decreed it. The 1 and 3 defendants appeal.

(2.) The first point argued is that the suit filed by the plaintiff (one of the Uralans) without consulting the 3 defendant is not maintainable. It is true that, in any transaction which creates or destroys rights, all the Uralans must be consulted [V. A. Istoop V/s. V. K. Ayappan (1913) 16 IC 435 a case of demise; Chandu V/s. Kuttiyil Rayiru a case of melcharth]. But this principle does not apply to suits, provided the other Uralans are also parties (Mariyil Raman Nair V/s. Narayanan Nambudripad (1902) ILR 26 M 461; Kunhan V/s. Moorthi (1910) ILR 34 M 406 : 20 MLJ 951 ). The decision in Savitri Antarjanttam V/s. Raman Nambudripad (1900) ILR 24 M 226 was distinguished in the former of these cases and has scarcely any authority after the latter. The remarks at page 689 of Angamuthu V/s. Ramalinga Pillai in so far as they refer to suits are obiter. This is conceded by the counsel for appellants in reply. I hold that the suit cannot be dismissed for non-consultation of 3 defendant provided it is otherwise maintainable.

(3.) The second point argued is that the suit is bad for want of notice to quit. Though the 1 defendant's tenancy under Ex. A, was only a tenancy for a term, it was converted into a tenancy from year to year by the payment and acceptance of rent after 1897 [see para. 3 (2) of the plaint which shows that rent was paid after 1897]. This is conceded by the respondent. The first respondent however, contends that the 1 defendant, having accepted by Ex. II, a renewal of the original lease by 3 defendant only, cannot fall back on the tenancy from year to year. The Courts below found that Ex. II is invalid. " That being so, the prior lease was not extinguished by Ex. II. It is true that the 1 defendant insisted on the validity of Ex. II in his written statement but the plaintiff repudiated it and as Ex. II has been proved to be invalid, the rights under the prior tenancy did not cease. Moreover, the 1 defendant's plea in para. 12 of the written statement. " This suit which is brought by the plaintiff alone to recover possession under the prior lease is not maintainable.", shows that he meant to rely on his rights under the prior lease as a defence to the suit. The prior lease has not been surrendered or otherwise legally put an end to (see Ramunni V/s. Kerala Farma Valily Raja ILR 15 M 166 and Kunhuni Panikkar V/s. Raman alias Thiramump 10 LW 427. The respondent also contends that the clause " you must give (me) the value of the Kuzhikoors and Chamayans...when, I am evicted at any time after the expiry of 12 years " in Ex. A dispenses with a notice to quit. I do not agree with this contention. A proper notice to quit is therefore necessary.