SANTI LAL Vs. JOGENDRA NATH GORAIN

JUDGEMENT

(1.) The question that arises in this second appeal is as to the proper construction and effect of two leases, one executed in 1891 by Jairam Lala and the other executed two years later, in 1893, by the entire body of cosharer landlords, of whom Jairam Lala was one. The property demised under the second lease was the entire mauza Patrakuli. Both the surface and underground tights were conveyed, and it was stipulated that, in respect of each, separate rentals should be payable, namely, Rs. 13-4-0 for the surface rights, and Rs. 160 for the underground rights. Under the terms of the lease, the lessees were entitled to surrender the underground rights while retaining the surface rights. The property, demised by the earlier deed executed by Jairam Lala alone was an area of 238 bighas situated in the southern portion of mauza Patrakuli. The rent payable under this lease was Rs. 7-7-0 annually, and both surface and underground rights were granted to the lessee Haradhan Gorain. There was an express provision that the lessee was entitled to "the fruit-bearing and non-fruit-bearing sal, mahul and palas trees etc., which exist at present or which may grow in future on the surface." Now, in the subsequent deed there was an express reservation of "jackfruit, mango, mahul and palas trees." At the commencement of the lease there was, however, a clause, which has been described as a ratification clause, and it is con-tended that, by reason of it, Haradhan Gorain and his successors-in-interest retained a right to all trees situated in the 238 bighas covered by the earlier lease? The lower appellate Court took the view that the subsequent lease should be regarded as a lease of the rest of mauza Patrakuli, excluding the 238 bighas covered by the earlier lease. There are, however, obvious difficulties in putting this construction on the document, for one thing, it purports, on the face of it, to be a demise of the entire mauza and not of a portion of it. Then, the subsequent lease was in favour of two persons, Haradhan Gorain and Jagarnath Gorain, while the earlier lease was in favour of Haradhan Gorain alone. Again, in the subsequent lease it was stated that out of the rent of Rs. 160 reserved in respect of the underground rights, Rs. 50 was to be paid to Jairam Lala, this being in excess of the amount to which he was strictly entitled. It is, I think, clear from this that the intention of the parties was that the earlier lease should cease to be operative and should be replaced by the subsequent lease, and that this was so is shown by the fact that the rent reserved by the earlier lease apparently ceased to be paid. When during the continuance of demise, a lessee accepts a fresh lease, this operates in law as a surrender of the original lease. In law on Landlord and Tenant, Edn. 6, at p. 695, it is stated: The reason why this operates as a surrender is that the lessee, by accepting the new lease, has been party, to an act the validity of which he is by law afterwards estopped from disputing, and which would not be valid if the first lease continued to exist; and as the lessor could not grant the new lease until the prior one had been surrendered, the acceptance of such new lease is of itself a surrender of the former.

(2.) The clause in the subsequent lease which has given rise to the difficulty has been translated thus: That it is a fact that Jairara Lala is the guardian of us, the mukarrari grantors. Previous to this, on taking our consent, he settled with you the surface and sub soil right in the joint property in the said mauza constituting his share therein under 3 Khos kebalas and the said settlement still remains in force on him and us and Jairam Lala and we shall have no right to interfere in the said matter.

(3.) This clause, and, indeed, the whole document, was obviously drawn up by someone who had no real knowledge of conveyancing. When it is remembered that Haradhan Gorain had been in possession of a portion of the mauza for some two years, this clause can be best understood as amounting to a ratification by the cosharer landlords other than Jairam Lala of what Jairam Lala had done. Jairam Lala would seem to have been one of several co-owners and not the managing member of a joint family, and the indications are that in granting the earlier lease he probably exceeded his powers.