KAZHUNGUM PARAMBATH PARKUM PUTHIARAKKAL ETAPPARA KUNHI KATHIAH Vs. KUNNUMMA KANDIYAL ITTANPARAMBAN KUNHI SOOPPI

JUDGEMENT

(1.) THE 4th and the 5th defendants were admittedly the co-owners of the Taragu right in the land. THE 1st defendant was the tenant under the 4th defendant. Plaintiff claimed as the assignee of the rights under a melcharth granted by the 4th defendant to the 3rd defendant. THE 1st defendant surrendered her rights to the 5th defendant under Exhibit III and the 2nd defendant was holding as lessee under the 5th defendant. THE suit was for recovery of the property and for arrears of rent; it was dismissed on the finding that the melcharth was not valid. On appeal the Subordinate Judge, without displacing the finding as to the invalidity of the melcharth, which is the foundation of the plaintiff s claim, has given a decree to him for three years arrears of rent not only against the 1st and 2nd defendants but also against the 5th defendant, the co-owner. THE 5th defendant appeals to us but not the other defendants. THE claim against the 5th defendant is rested before us on the ground of his being assignee of the rights of the tenant, the 1st defendant, under Exhibit III. Exhibit III is clearly not an assignment but a surrender-deed by which the lessee gave up her rights to the 5th defendant as one of the owners of the property. This deed, as argued for the respondent, may not be valid against the 4th defendant so that the tenant s liability to pay rent still continued; but it cannot be held to have made the 5th defendant a tenant of the 4th defendant, liable to pay rent to him. THE 4th defendant may be entitled to claim his proper share of the profits of the land from the 5th defendant; but the present suit is not for that, the claim here being based solely on the original lease. As against the 4th defendant the tenant may be bound to return possession of the property to him and the 5th defendant who got possession from him may not be able to resist the 4th defendant s claim for possession under the ruling in Kunhi Mayan v. Muhammad 16 M.L.J. 351. But no question now arises in this case about possession. No liability to pay rent, however, can arise by estoppel. In the view that the 5th defendant who alone has appealed to us is not liable for rent, it is not necessary to have a finding on the validity of the melcharth.

(2.) WE must reverse the decree of the Subordinate Judge, so far as it makes the 5th defendant liable, and dismiss the suit against him. WE do not interfere with the rest of the Subordinate Judge s decree. Plaintiff will pay the 5th defendant s costs throughout.