IN THE HIGH COURT OF JUDICATURE OF MADRAS DATED: 22.09.2008 CORAM: THE HONOURABLE MR. JUSTICE G.RAJASURIA A.S.No.861 of 1998 Ramaswamy ...Appellant/Defendant ..Vs.. 1. Palaniandi (died) 2. Vetrivelan 3. Kasinathan 4. Meenakshi 5. P.Kulanthaivelu 6. P.Senthil 7. P.Vijayalakshmi ...Respondents/Plaintiffs (RR4 to 7 brought on record as L.Rs of the deceased first respondent vide order of this Court dated 21.12.2001 made in C.M.P.No.16125 of 2001) Appeal against the judgment and decree passed by the learned Subordinate Judge, Cuddalore in O.S.No.493 of 1992 dated 26.10.1998. For Appellant : Mr.S.K.Rakhunathan For Respondents : Mr.R.Yashod Vardhan for Mr.R.Sunil Kumar JUDGMENT This appeal is focussed by the defendant as against the judgment and decree dated 26.10.1998 passed by the learned Subordinate Judge, Cuddalore in decreeing the suit in O.S.No.493 of 1992, which was filed by the plaintiffs as against the defendants seeking partition and separate possession of the plaintiffs ¾ th share in the suit properties and for mesne profits. For convenience sake, the parties are referred to here under according to their litigative status before the trial Court. https://hcservices.ecourts.gov.in/hcservices/ 2. Quintessentially and briefly, pithily and precisely, the case of the plaintiffs as stood exposited from the averments in the plaint could be portrayed thus: a) The plaintiffs and the defendant are the children of one Dharmalinga Mudaliar and his second wife Thangammal. Dharma Linga Mudaliar's first wife was Soundaram Ammal, who was none but the elder sister of the said Thangammal. Soundaram Ammal had no issues. b) The property described in the schedule of the plaint, which comprised of the plot and the rice mill building over it including machineries, originally belonged to Soundaram Ammal, who bequeathed the same in favour of the plaintiffs and the defendant by virtue of a Will dated 04.03.1966. Upon her death in the year 1968, the said Will came into effect. As per the terms of the Will, the plaintiffs and the defendant are entitled to life estate over the suit property and their respective male issues would take the property absolutely. c) The plaintiffs and the defendant entered into a partnership on 13.09.1980 and were running the said rice mill; subsequently, they entered into a lease agreement on 25.06.1986, which contemplated a lease period of five years, under which the defendant took exclusive possession of the rice mill and he was paying a sum of Rs.450/- per mensem in favour of each of the plaintiffs up to 25.06.1991. d) The plaintiffs did not want the defendant to continue in management of the rice mill beyond 25.06.1991; whereupon the defendant filed O.S.No.746 of 1991 before the District Munsif Court, Cuddalore and it was transferred to Sub Court, Cuddalore and numbered as O.S.No.158 of 1992, for injunction restraining the plaintiffs from disturbing his possession of the suit properties, even though he was not in possession of the suit properties on that date. The rice mill was kept closed. The plaintiffs filed O.S.No.386 of 1991 for partition and for separate possession of their ¾ th share in the suit properties and for other ancillary reliefs. e) The defendant herein contended that the said suit for partition was not maintainable in view of non-determining of the tenancy in his favour by issuance of a notice. By way of abundant caution, the plaintiffs issued notice on 28.06.1992 to the defendant terminating the tenancy ending with the following month. The plaintiffs also had the previous suit withdrawn on 10.11.1992. The said lease deed referred to supra was a void document for want of registration. The defendant cannot be a tenant holding over, as after 25.06.1991, the plaintiffs did not receive any rent from the defendant. In view of the fact that the rice mill cannot be https://hcservices.ecourts.gov.in/hcservices/ divided into four shares, the best course would be for the plaintiffs to run the rice mill for three weeks and the defendant could run it for one week in a month in commensurate and in concinnity with their respective shares in it. Accordingly, they sought for the following main reliefs: (i) for partition and separate possession of the plaintiffs' ¾ ths share in the suit property; (ii) for obtaining past and future mesne profits in favour of the plaintiffs against the defendants from 25.06.1991 till date of suit; 3. Per contra, denying and refuting, challenging and impugning the allegations/averments in the plaint, the defendant filed the written statement setting out various averments, the gist and kernel of it would run thus: a) The relationship and the factum of Will as found set out in the plaint are admitted. The partnership deed dated 04.08.1980, which was superceded by the partnership deed dated 16.09.1980, emerged among the plaintiffs and the defendant for running the suit rice mill. Bad blood started running in the relationship between the plaintiffs and the defendant, whereupon a panchayat was held and the partnership was dissolved on 24.06.1986 and the plaintiffs are yet to settle the account and to pay the dues in favour of the defendant. In the presence of panchayatdars, it was agreed that the suit property should be leased out in favour of the defendant and in consideration of the same, he had to pay a sum of Rs.450/- per month to each of the plaintiffs, by way of recognising the ¾ ths share of the plaintiffs in the suit property as the remaining ¼ th share belongs to the defendant himself. b) The lease deed, which emerged on 25.06.1986 contemplated five years' period of lease and the defendant was paying the rents regularly to the plaintiffs; the plaintiffs were non co-operative in renewing the licence for running the rice mill, which necessitated the defendant herein to file a suit; whereupon the plaintiffs herein gave consent for renewal of the licence; the plaintiffs initiated legal action vindictively as against the defendant and tried to take forcible possession of the suit property. The defendant is the Statutory tenant in the suit property. c) The defendant is not liable to render accounts. When the rent for the month ending with 25.07.1991 was tendered to the plaintiffs, they refused to receive it; as such the defendants is https://hcservices.ecourts.gov.in/hcservices/ liable to pay rent only from 26.06.1991 at the rate of Rs.450/- per month to each of the plaintiffs and nothing more. Further more, for the period from 21.09.1991 till 13.02.1992, the plaintiffs are not entitled to claim any rent as they illegally obstructed the defendant from carrying on with the business. Accordingly, he prayed for the dismissal of the suit. 4. The trial Court framed the relevant issues. During the trial, the second plaintiff examined himself as PW1 along with PW2 and Exs.A1 and A2 were marked. The defendant examined himself as D.W.1 and Exs.B1 to B7 were marked on his side. Ultimately, the trial Court decreed the suit by passing a preliminary decree granting the following main reliefs: "(i) it is hereby declared that the plaintiffs together are entitled to possess and enjoy the suit property and to run the rice mill situate therein for 9 months for their ¾ th shares, consecutively and thereafter the defendant is entitled to possess and enjoy the suit property and to run the rice mill therein for 3 months and such arrangement should continue till the life time of the parties; (ii) that the defendant be and hereby is directed to deliver possession of the suit property within one month from this date of the plaintiffs for their turn of 9 months. (iii) that the defendant be and hereby is directed to pay past mesne profits to the plaintiffs for the period from 25.6.91 till date of filing of suit excluding the period from 21.9.91 to 12.2.1992 and future mesne profits from the date of suit till the date on which the plaintiffs are put in possession of the suit property in terms of this decree and the quantum of mesne profits will be determined in a separate proceedings under Order 20 Rule 12 of CPC." 5. Being aggrieved by and dissatisfied with the judgment and decree of the trial Court, the appellant/ defendant preferred this appeal on various grounds, the warp and woof of them would run thus: (i) The suit for partition was not at all maintainable but the said fact was not noted by the trial Court. (ii) The lower Court failed to note that under the Will executed by Soundaram Ammal, the plaintiffs and the https://hcservices.ecourts.gov.in/hcservices/ defendant are only life estate holders and their respective male issues are the absolute owners. (iii) In the Panchayat, auction for leasing out the suit properties was conducted and in that the defendant was the highest bidder to be in occupation of the suit properties for five years as the lease holder and the defendant was also paying the rents regularly. But these facts were not considered by the lower Court. (iv) The lower Court failed to take into account the non-co-operative attitude of the plaintiffs in getting the licence for running the rice mill renewed and also the plaintiffs attempt to get forcible possession of the suit properties. (iv) The defendant's right to remain in possession of the suit properties is protected by the provisions of Transfer of Property Act. (v) The termination notice issued by the plaintiffs was erroneous. (vi) The trial Court erroneously held that after the expiry of the period of five years, the tenancy came to an end and that the possession of the defendant is only that of a trespasser. (vi) The trial Court after holding that the suit properties is incapable of partition, erroneously suggested a method of enjoyment in turn by the parties. (vii) The defendant is not liable to pay mesne profits to the plaintiffs and the preliminary decree ordered by the trial Court in that regard is untenable. Accordingly, the appellant/defendant prayed for setting aside the judgment and decree of the trial Court and for dismissing the original suit. 6. The points for consideration are as to:- (1) Whether the status of the defendant in the suit property is that of a tenant holding over or tenant at sufferance? (2) Whether the defendant is liable to pay mesne profits as that could be ascertained independently during the final decree proceedings under Order 20 Rule 12 of CPC https://hcservices.ecourts.gov.in/hcservices/ or liable to pay only at the rate of Rs.450/- per month in favour of each of the plaintiffs as he was paying earlier? (3) Whether the preliminary decree of the trial Court in ordering enjoyment of the suit properties on turn basis by the plaintiffs and the defendant is tenable and feasible? (4) Whether there is any infirmity in the judgment and decree of the trial Court? 7. Heard the learned counsel appearing for the parties. 8. At the outset itself, the learned counsel for the defendant would come forward with the submission that the defendant is no more interested in running the suit rice mill and he is agreeing for the plaintiffs to run the mill and pay him his share. 9. Per contra, the learned counsel for the plaintiffs would submit that since the defendant after utilising the maximum benefit out of the suit rice mill felt that it is no more lucrative on his part to run the mill, has come forward with such a suggestion. 10. As such it appears there is offer and counter offer and that the parties could not see eye to eye. It is therefore, just and necessary to decide the points for consideration on merits. 11. The point Nos.1 and 2 are taken together for discussion as they are inter-linked and inter-woven with each other. Point Nos.1 & 2:- Indubitably and indisputably as per Ex.A1, the Will executed by Soundaram Ammal, the plaintiffs and the defendant are only life estate holders and their respective male issues only are the absolute owners. Now the litigation is only among the life estate holders for partition. Even though, the defendant in sotto voce in the pleadings raised the point that the suit for partition is not maintainable, nonetheless, it has not been substantiated as to how such a suit for partition among the life estate holders is not tenable. As such, both the sides proceeded with the matter without concentrating much on the maintainability on the suit for partition. 12. I am of the considered opinion that the partition among the life estate holders is legally possible, as such a partition would be effective till their life time only and it is open for the absolute owners to work out their remedies as and when their right https://hcservices.ecourts.gov.in/hcservices/ comes into operation, by initiating appropriate legal proceedings, if they so desire. 13. Both sides without focussing their attention on the broad proposition, as to whether the lease arrangement, which admittedly emerged among the plaintiffs and the defendant is legally valid or not proceeded on the footing, as though, such a lease arrangement is permissible among the life estate holders and in such a case, I am not inclined to suo motu broach on the topic and discuss that. 14. Hence, in this factual matrix, I proceed to discuss on the footing that the plaintiffs and the defendant entered into a lease arrangement admittedly to the effect that the defendant should take on lease the ¾ th undivided share of the plaintiffs in the rice mill and should run the rice mill and pay the lease rent of Rs.450/- per month in favour of each of the plaintiffs. 15. The crucial point to be noted here is that, they virtually entered into a written lease agreement incorporating five years' period as the duration of the lease. But it was not registered. Such an unregistered lease cannot be relied on for any purpose except for the one contemplated under Section 49 of the Registration Act, so to say, to prove the nature of possession and that too, it should have been properly stamped. Here the nature of possession is not in dispute also, in view of their lease arrangement, as set out supra. The parties to some extent proceeded on the footing that even though the said written lease agreement turned out to be not a legal document, yet the five years period stipulated therein was adhered to. 16. In my considered opinion, once the said lease agreement is turned out to be not a legal document, the terms and conditions including the lease rent contemplated there in, cannot be legally taken notice of by the Court and the parties also cannot be justified in persuading the Court to rely on it. However, the admission on both sides are to the effect that the defendant continued to pay a sum of Rs.450/- per month to each of the plaintiffs up to 25.06.1991 presumably for a period of five years and thereafter, the defendant tendered the same rate of rents to the plaintiffs but they refused to receive the same. 17. The crucial point arises as to what is the legal status of the defendant in the suit property relating to the ¾ th undivided share of the plaintiffs after 25.06.1991. 18. The learned counsel for the defendant would advance his argument that as per the Transfer of Property Act, the defendant https://hcservices.ecourts.gov.in/hcservices/ should be treated as tenant holding over and not a trespasser as the plaintiffs would try to project him. Whereas the learned counsel for the plaintiffs would submit that even as per the very admission of the defendant, the plaintiffs did not receive the rent after 25.06.1991 and as such, the concept tenant by holding over cannot be ushered in and the defendant could only be treated as a trespasser, so to say, a tenant by sufferance. 19. At this context, it is just and necessary to refer to the relevant concepts as found set out in the Transfer of Property Act. 20. The distinction between 'tenant by sufferance' and 'tenant holding over' has been found set out in detail in the treatise Sohoni's Transfer of Property Act, 2004 Edition at page Nos.1291 and 1292. "Tenant by sufferance" and "tenant holding over" – distinction – The act of holding over after the expiration of the term does not create a tenancy of any kind. If a tenant remains in possession after the determination of the lease, the common law rule is that he is a tenant on sufferance. A distinction should be drawn between a tenant continuing in possession after the determination of the term with the consent of the landlord and a tenant doing so without his consent. The former is a tenant at sufferance in English Law and the latter a tenant holding over or a tenant at will. In view of the concluding words of Section 116 of the Transfer of Property Act, a lessee holding over is in a better position than a tenant at will. The assent of the landlord to the continuance of possession after the determination of the tenancy will create a new tenancy. What the section contemplated is that on one side there should be an offer of taking a new lease evidenced by the lessee or sub-lessee remaining in possession of the property after his term was over and on the other side there must be a definite consent to the continuance of possession by the landlord expressed by acceptance of rent or otherwise. Mere acceptance of amounts equivalent to rent by a landlord from a tenant in possession after a lease had been determined, either by efflux of time or by notice to quit and who enjoys statutory immunity from eviction except on well defined grounds as in the Act, cannot be regarded as evidence of a new agreement of tenancy. Having due regard to the law laid down in various decisions of the Supreme Court and the High Courts on the principle of 'tenant holding over' and its consequential https://hcservices.ecourts.gov.in/hcservices/ effect making the tenant liable to pay damages or mesne profits to the landlord for continuing in possession without any authority of law and similarly in view of principle of 'unjust enrichment' under the provisions of Section 70 of the Indian Contract Act, 1872, the defendant-Bank is liable to pay the plaintiff the entire amount of suit-claim. Lease of Municipal plot expired but was renewable at specified rates. Lessee paid rent at the old rate after efflux of time which was accepted by Municipal Board. Tenant lessee did not become tenant holding over but a tenant at sufferance liable to be evicted without notice. But a person who was lawfully in occupation does not become a trespasser, even if he does not become a tenant holding over but is a tenant by sufferance". 21. The learned counsel for the plaintiffs cited the decision of the Hon'ble Apex Court reported in (1995) 5 SCC 698 (R.V.Bhupal Prasad vs. State of A.P. And others). An excerpt from it would run thus: "7. Section 105 of the Transfer of Property Act (for short, ‘the TP Act’) defines ‘lease’ of immovable property as “a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms”. Therefore, the lessor of immovable property by contract in writing or otherwise can transfer his property to the lessee to enjoy such property. It may be made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money etc. and the lessee accepts the transfer on such terms. Under Section 111 of the TP Act, a lease of immovable property determines, inter alia, by efflux of the time limited. Section 116 envisages the effect of holding over and provides that “if a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal https://hcservices.ecourts.gov.in/hcservices/ representative accepts rent from the lessee or under- lessee, or otherwise assents to his continuing in possession the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in Section 106.” Section 106 of the TP Act deals with the duration of certain leases in the absence of written contract or local usage with which we are not concerned in this case since the appellant and the landlady are governed by the written lease. Since the landlady had not accepted or asserted to the appellant’s continuance in possession, he cannot be treated under Section 116 to be a tenant holding over. 8. Tenant at sufferance is one who comes into possession of land by lawful title, but who holds it by wrong after the termination of the term or expiry of the lease by efflux of time. The tenant at sufferance is, therefore, one who wrongfully continues in possession after the extinction of a lawful title. There is little difference between him and a trespasser. In Mulla’s Transfer of Property Act (7th Edn.) at page 633, the position of tenancy at sufferance has been stated thus: A tenancy at sufferance is merely a fiction to avoid continuance in possession operating as a trespass. It has been described as the least and lowest interest which can subsist in reality. It, therefore, cannot be created by contract and arises only by implication of law when a person who has been in possession under a lawful title continues in possession after that title has been determined, without the consent of the person entitled. A tenancy at sufferance does not create the relationship of landlord and tenant. At page 769, it is stated regarding the right of a tenant holding over thus: The act of holding over after the expiration of the term does not necessarily create a tenancy of any kind. If the lessee remains in possession after the determination of the term, the common law rule is that he is a tenant on sufferance. The expression “holding over” is used in the sense of retaining possession. A distinction should be drawn between a tenant continuing in possession after the determination of the lease, without the consent of the landlord and a tenant doing so with the landlord’s consent. The former is called a tenant by sufferance in the language of the English law and the latter class of tenants is called a tenant holding over or a tenant at https://hcservices.ecourts.gov.in/hcservices/ will. The lessee holding over with the consent of the lessor is in a better position than a mere tenant at will. The tenancy on sufferance is converted into a tenancy at will by the assent of the landlord, but the relationship of the landlord and tenant is not established until the rent was paid and accepted. The assent of the landlord to the continuance of the tenancy after the determination of the tenancy would create a new tenancy. The possession of a tenant who has ceased to be a tenant is protected by law. Although he may not have a right to continue in possession after the termination of the tenancy, his possession is juridical." (emphasis supplied) As such, it is clear from the decision of the Hon'ble Apex Court that in order to constitute a 'tenant holding over', there should be express or implied consent from the lessor. 22. It is the admitted position that after 25.06.1991, there was no acceptance of rent by the plaintiffs from the defendant and that clearly and unambiguously indicates and exemplifies that they never acquiesced or consented for the continuance of the defendant as a lessee in the suit property. In such a case, by no stretch of imagination, it could be stated that the defendant is a 'tenant holding over' in the suit property and he could only be taken as 'tenant