Case: P.M.C. Kunhiraman Nair Vs. C.R. Naganatha Iyer

to the relevant-clauses in the agreement (Ex. B3) dated March 22, 1955 and the Deed of Assignment (Ex. B4), December 11, 1956 on which reliance has been placed by Shri Wariyar, In the agreement (Ex. B3) dated March 22, 1955, executed by respondents Nos. 1 to 5 in favour of T. M. Rama Iyer, it is stated: (4) We will not have any responsibility or objection for your paying the amount due to Kunhiraman Nair after the stipulated period and to take up the management by yourself, pay the rent of the building, conduct the business and if necessary to file a suit against Kunhiraman Nair and get the Company vacated; and to do anything as per your will and pleasure. (5) The Company is not charged by any other liability except the loan mentioned above. The gift deed given to us and the copy of the agreement with Kunhiraman Nair are hereby given to you. Either after your taking possession of the Company or whenever you make demand we shall execute sale deed and get the same registered. 12. In the Deed of Assignment (Ex. B4) dated December 11, 1956 executed by T. M. Rama Iyer in favour of the appellant and his younger brother, it is stated: (2) After this for the purpose of clearing of the loan liability to you; the mill etc. started by the abovesaid Naganatha Iyer and others was given to me as per the agreement dated the 22nd of March, 1955. They belong to me and I have on oral agreement taken the building where the mills situate on a monthly rent of Rs. 75 / - for a period of 1 year from the Vettathu Tharavad which is the jenmi of the same. (3) I have decided to assign the Oil Mill and Flour Mill described in the schedule below to you. The sale consideration is fixed at Rs. 8,000/- inclusive of Rs. 100/- given by me as advance to the jenmi. Of this Rupees 8,000/- the sum of Rs. 6,000/- due to you inclusive of interest is adjusted and after deducting the same, the balance amount of Rs. 2,000/- due to me is paid and the entire sale consideration has been paid to me in full satisfaction in the abovesaid 2 counts and I have handed over to you the mills described in the schedule with all the equipments and all the other rights pertaining to the same. You have derived the same and hereafter you are at liberty to manage the mills by yourself; to enter into rental agreements with the Jenmi of the building by paying the rent directly, to effect alienation etc. as per your wishes. I will not have any right, question or liability hereafter. I have made you believe and hereby certify that the properties are not charged by any loan liability or alienation and none except myself have any right over the same. The abovesaid agreement, the gift deed obtained by Naganatha Iyer and others and the rent receipts for having paid rent to the Jenmi are hereby given. 13. From the aforesaid clauses, it would appear that by executing the agreement (Ex. B3) dated March 22, 1955, respondents Nos. 1 to 5 surrendered their interest in favour of T. M. Rama Iyer inasmuch as in clause 4 of the said agreement that they clearly stated that plaintiffs-respondents. will not have any responsibility or objection for T. M. Rama Iyer paying the amount due to the appellant after the stipulated period and take up the management by himself and pay the rent of the building and conduct its business. By empowering T. M. Rama Iyer to pay the rent of the building respondents Nos. I to 5 were impliedly surrendering their leasehold interest in the premises in favour of T. M. Rama lyer. This is borne out by the Deed of Assignment (Ex. B4) dated December 11, 1956 wherein in clause 2, T. M. Rama Iyer had stated I have on oral agreement taken the building where the mills situate on a monthly rent of Rs. 75/- for a period of one year-from Vettathu Tharavad which is the jenmi of the same. The original rent for the property as let out to respondent No. 2 was Rs. 40/- per month. The fact that after execution of the agreement dated March 22, 1955, T. M. Rama Iyer entered into another agreement with the landlord on a higher monthly rent of Rs. 75/- would show that a fresh lease was created by the landlord in favour of T. M. Rama Iyer and the earlier lease in favour of respondent No. 2 stood determined by implied surrender. In clause 3 of the Deed of Assignment (Ex. B4) dated December 11, 1956, T. M. Rama Iyer has empowered the appellant to enter Into rental agreements with the Jenmi of the building by paying, the rent directly to effect alienation. This shows hat T. M. Rama Iyer had impliedly surrendered his leasehold rights by agreeing that the appellant could enter into rental agreements with the landlord by paying the rent directly. The case of the appellant is that ever since the execution of the Deed of Assignment (Ex. B4) dated December 11, 1956, rent is being paid by him to the landlord directly. It is not the case of the plaintiffs-respondents that they had paid the rent for the premises to the landlord after March 22, 1955. In these circumstances, we are of the opinion that the plaintiffs-respondents, by executing the agreement (Ex. B3) dated March 22, 1955, had impliedly surrendered their leasehold rights in the suit property in favour of T. M. Rama Iyer and on the date of the filing of the present suit they had no subsisting leasehold interest in the same. The suit for the recovery of the possession of the suit property filed by them on the basis that the plaintiffs-respondents are the lessees thereof was, therefore, not maintainable and is liable to be dismissed.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]The judgment of the High Court shows that the earlier suit was confined to the oil mill only, treating it as movable property independent of the property. Since the said suit did not relate to the land and building in which the oil mill is installed the said suit and the plea raised by the appellant in that suit can have no bearing in the present suit relating to possession of the land and building. The learned Judge of the High Court, with due respect, was not right in negativing the plea raised by the appellant that he is in possession of the property as a tenant on the view that the appellant did not raise this plea in the earlier suit and he could not be allowed to put forward inconsistent pleas. Since the question with regard to possession of the land and building arises in the present suit only it was permissible for the appellant to raise the plea that the plaintiffs have no subsisting leasehold interest in the suit property and that the appellant is in possession of the same as a tenant of the owner of the said property