dedol-hf/india-case-legal-rag huggingface dataset:
23rd  February, 1938.  For instance in a letter  written  on
behalf  of  the Government on the 25th February,  1938,  the
following statement is made :--
    "I  have  the  honour to inform you that  none  of  your
agents was present at-the Akra brickfield today as previous-
ly arranged to make over the possession of the  brickfields.
You are therefore requested to please inform me about as  to
what  arrangements  are being made by you to make  over  the
possession  of the said brickfield to this  department.  The
term of lease expires on the afternoon of the 23rd February,
1938."
    Apart  from the fact that the appellants did not set  up
in  any of their letters a case of holding over. we have  to
see whether the plea can be said to have been
568
successfully  made out by them.  There is no doubt that  the
appellants have established that the rent was  paid on their
behalf  up to the 31st March, 1938, and  it was accepted  by
the  respondent No. 1.  It has also  been  established  that
this payment was made by a  cheque and that cheque has  been
cashed by  the Government.  Section 1 IS of the Transfer  of
Property Act, on which reliance was placed on behalf of  the
appellants, runs as follows :--
    "If a lessee or underlessee of property remains in  pos-
session thereof after the determination of the lease granted
to  the lessee, and the lessor or his  legal  representative
accepts  rent from the lessee or underlessee,  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  .........  "
     This  section  was construed' by the Federal  Court  in
K.B.  Capadia v. Bai Jerbai Warden and Another (1),  and  it
was held that where rent was accepted by the landlord  after
the expiration of the tenancy by efflux of time, section 116
applied even though the landlord accepted the amount  remit-
ted to him as "part deposit towards his claim for  compensa-
tion  for illegal use and occupation, and without  prejudice
to  his rights".  It is to be noted that in that  case  rent
had  been accepted after the expiry of the tenancy.  In  our
judgment, the present case cannot be governed by that  deci-
sion,  because of the fact, which in our opinion  is  impor-
tant;  that here the payment of rent up to the  31st  March,
1938,  was made not after the date of expiry of  the  lease,
but on the 5th April, 1937, nearly a year before the  expiry
of the lease.  A reference to section 116 of the Transfer of
Property  Act  will show that for the  application  of  that
section,  two things are necessary:(1) the lessee should  be
in  possession after the termination of the lease;  and  (2)
the  lessor  or  his representative should  accept  rent  or
otherwise assent to his continuing in possession. The use of
the word 'otherwise'
(1) [1949] F.C.R. 262.
569
suggests  that acceptance of rent by the landlord  has  been
treated  as  a  form of his giving assent  to  the  tenant's
continuance of possession.  There can be no question of  the
lessee  "continuing in possession" until the lease  has  ex-
pired, and the context in which the provision for acceptance
of rent finds a place clearly shows that what is contemplat-
ed is that the payment of rent and its acceptance should  be
made at such a time and in such a manner as to be equivalent
to  the landlord assenting to the lessee continuing in  pos-
session.   Both  the courts below, after  dealing  with  the
matter  elaborately,  have  concurrently held  that  in  the
circumstances of the case the consent of respondent No. 1 to
the appellants' continuing in possession cannot be inferred,
and we agree with this finding.
    It  was  pointed out to us on behalf of  the  respondent
that the entry relating to this payment in the books of  the
plaintiff  contains the words: "received  without  prejudice
from Karnani Industrial Bank  ......  "The same words howev-
er occur in several earlier entries, and we are not inclined
to attach any special significance to them. But it seems  to
us  that the very fact, that the payment was made at a  time
when  there was no question of the lessor assenting  to  the
lessee's continuing in possession and neither party  treated
the payment as importing such assent, is sufficient to  take
the case out of the mischief of section 116 of the  Transfer
of Property Act.
    There is also another view which we think is possible to
take  upon the facts of the case. As we have seen, the  rent
for  the first year was paid in advance near about the  time
of  the execution of the lease, and nothing turns  upon  it.
When  however the second payment was made, the sum paid  was
Rs.  6,714 and odd, and the payment was made in  respect  of
rent up to the 31st March, 1930. After this, all the  subse-
quent  payments were made up to the 31st March of  the  suc-
ceeding  year, evidently because the financial  year,  which
the  parties  considered themselves to be governed  by,  ran
from the 1st April to the 31st March of the succeeding year.
It was presumably in view of this fact that the
570
plaintiff  filed an application on the 6th  November,  1941,
for  amending  the  plaint so as to  include  the  following
statement :--
"The  plaintiff submits that even assuming that  the  regis-
tered  lease  terminated on the 23rd February, 1938,  by  an
agreement between the plaintiff and the defendant No. 1, the
latter was allowed to hold over up to the 31st March, 1938."
    This  application however was rejected, because  it  was
made at a very late stage, that is to say, after the defend-
ants'  evidence had been closed and an adjournment had  been
granted  to  the  plaintiff to  adduce  rebutting  evidence.
However  that may be, the utmost that can be said  upon  the
evidence as it stands is that by the implied consent of  the
parties the period of the lease was extended up to the  31st
March,  1938.   In this view, the respondent  No.  1  became
entitled  to  re-enter after the 31st March, and  no  notice
under section 106 of the Transfer of Property Act was neces-
sary. In the circumstances, the decree for ejectment  passed
by the courts below must be upheld.
    The next question which arises in the case turns on  the
proper  construction of clause 11 of Part I and clause 1  of
Part  III of the lease, which have already been  quoted.  It
seems  to us that clause 11 should be read as a whole,  and,
when  it is so read, it becomes clear that it was  'intended
to  be applicable only where the Secretary of State  decided
to  exercise his right to terminate the lease "at  any  time
subject  to  6 months' notice, in the event  of  the  lessee
failing to observe and duly perform the conditions mentioned
in  the lease. In such a case, if the lessee did not  remove
the  boilers, engines and all other materials and  yield  up
the premises to the Secretary of State, those articles  were
to  become  the property of the Secretary  of  State.   This
clause is evidently not applicable to the present case.  The
clause  which applies to this case is clause 1 of Part  III,
which is intended to be applicable to the normal case of the
lease  expiring by efflux of time. This clause, as  we  have
seen, provides that the lessee
571
shall  be at liberty to keep on the demised premises  for  a
months after the expiration of the lease any bricks,   boil-
ers, etc., but it also provides that "any bricks and   other
materials  left  in contravention of  this  condition  shall
become  the  absolute  property of the  Secretary  of  State
without  payment."   There can be no doubt that  under  this
clause,  the  bricks  and other materials  have  become  the
absolute property of the plaintiff. The only question is  as
to  the meaning of "other materials." It seems to us  on  an
examination  of the lease as a whole that there must   be  a
distinction  between materials, and machinery and tolos  and
similar  articles, and the words "other materials"  have  no
reference to engines, trucks, railway and tramway lines  and
plant.   They mean building materials such as bricks,  tiles
and  similar articles that might have been  manufactured  by
the  appellants on the demised premises. That being so,  the
decree under appeal should be  modified accordingly.
    The  only  other point which  arises  for  consideration
relates to the plaintiff's prayer for a decree for permanent
injunction  against  the defendants, to restrain  them  from
removing or otherwise disposing of the articles in regard to
which the decree is to be passed. It was contended on behalf
of  the  appellants that the respondent No. 1 not  being  in
possession of these properties could not ask for the  relief
of  injunction  without asking for the  declaration  of  its
title  in respect of them and possession over them,  and  in
support  of  this  proposition,  the  following  cases  were
cited:--Ratnasabhapathi  Pillai  and  Others  v.   Ramaswami
Aiyar(1), Bhramar Lal Banduri and Others v. Nanda Lal Chowd-
huri(2) and Valia Tamburatti v. Parvati and others(3). After
reading  and fully considering those cases, we find them  to
be  wholly inapplicable to the present case. In the  present
case, it has been found that the bricks and other  materials
have become the property of the plaintiff, and there can  be
no  legal  objection  to the granting of  an  injunction  as
prayed.
 (1) I.L.R. 33 Mad. 482.         (a) I.L.R, 13 Mad, 455,
 (2) 24 I.C. 199.
572
The,  appeal therefore substantially fails and it  is   dis-
missed  with  costs.  But it should be made  clear  in   the
decree  that only the building materials such as     bricks,
tiles  and similar articles that might have  been   manufac-
tured by the appellants on the demised premises shall become
the  property of the respondent No. 1. As for  the  boilers,
engines, trucks, kilns, rail-way and tram lines, etc., three
months' time is given from the date of this decree to enable
the appellants to remove them from the demised premises.
Appeal dismissed.
Agent for the appellant: Rajinder Narain. Agent for respond-
ent No. 1: P.K. Bose.
PETITIONER:
MUMMAREDDI NAGI REDDI AND OTHERS
        Vs.
RESPONDENT:
PITTI DURAIRAJA NAIDU AND OTHERS
DATE OF JUDGMENT:
08/05/1951
BENCH:
MUKHERJEA, B.K.
BENCH:
MUKHERJEA, B.K.
MAHAJAN, MEHR CHAND
BOSE, VIVIAN
CITATION:
 1952 AIR  109            1952 SCR  655
 CITATOR INFO :
 R          1952 SC 207  (19)
 R          1954 SC  61  (8)
ACT:
    Hindu Law--Widow--Surrender--Release in favour of daugh-
ter and son-in-law--Validity--Suit by reversioner--Right  to
mesne profits.
HEADNOTE:
    Where  a  Hindu widow who had  inherited  her  husband's
estate  executed a deed, described as a deed of release,  in
favour of her daughter who was the next reversioner and  the
daughter's husband jointly:
   Held,  that though under the Hindu Law it is open  to  a
widow  to surrender the estate to the next reversioner  even
though  the latter is a female heir, a widow cannot  validly
surrender  in favour of the next female heir and a  stranger
jointly.  Such a transaction cannot be treated as a  surren-
der  in  favour  of the female heir and a  transfer  by  the
latter to the stranger, and is not binding upon the ultimate
reversioners.
    Jagrani  v.   Gaya (A.I.R. 1933   All.   8561  approved.
Nobo  Kishore  v. Harinath (I.L.R. 10 Cal.  1102)  commented
upon. Vytla Sitanna v. Marivada (L R. 61 I.A. 200), Rangasa-
mi Goundan v. Nachiappa Goundan (41 I.A. 72) and Debi Prosad
v. Gola Bhagat (I.L.R. 40 Cal. 721) referred to.
    In a suit by the reversioner to set aside an  alienation
made  by a Hindu widow mesne profits can be awarded  to  the
reversioner  from the date of the widow's death even  though
such an alienation is not void.
    Even in cases where the decree for possession in  favour
of  the  reversioner is conditional on  his  depositing  the
amount which has been found to have been used for the  bene-
fit  of  the  estate, mesne profits can be  awarded  to  the
reversioner  if he is ordered to pay interest on the  amount
payable to the alienee.
    Bhagwat Dayal v. Debi Dayal (L.R. 35 I.A. 48)and  Satgur
Prasad  v. Harinarain Singh (L.R. 59 I.A. 147) referred  to.
Banwarilal v. Mahesh (I.L.R. 41 All. 63) distinguished.
JUDGMENT:
    CIVIL  APPELLATE  JURISDICTION.  Civil Appeal No. 51  of
1950.
   Appeal  against the Judgment and Decree dated  the  12th
January,  1948,  of the High Court of Judicature  at  Madras
(Gentle C.J. and Satyanarayana Rao J.) in
85
656
Appeal No. 167 of 1945 arising out of decree dated the  17th
August,  1942, of the Subordinate Judge at Nellore  in  O.S.
No. 3 of 1940.
    K.  Rajah  Aiyar (R. Ganapathi lyer, with him)  for  the
appellants.'
    B.  Somayya (M. Krishna Rao, with him) for the  respond-
ents.
     1951. May 8. The judgment of the Court was delivered by
    MUKHERJEA J.--This appeal is directed against an  appel-
late  judgment of a Division Bench of the Madras High  Court
dated the 12th January, 1948, reversing in part, a  decision
of the Subordinate Judge of Nellore passed in O.S. No. 3  of
1940.
      To appreciate the material facts of the case and  ,the
controversy  that now centres between the parties, it  would
be  convenient to refer to a short genealogy which is  given
below :--
                Udatha Narayanappa
                --Chanchamma (d. 1933)
                      |
                      |
              Venkata Narasamma (d. 1926)
              --Pitti Rangayya (d. 1914)
                      |
                      |
              Venkatadri-Rajakantarama
                      |
                      |
_______________________________________________________
  |                  |           |                     |
  Durairaja    Rajavathi   Balakrishnqa   Krishnababulu
  Plff. 1.     Plff. 2.      Plff. 3.          Plff. 4.
     The properties in dispute which are described in sched-
ule  A to the plaint admittedly belonged to one  Narayanappa
who was the father of the paternal grandmother of the plain-
tiffs.  Narayanappa  died  intestate  sometime  before  1884
leaving  him  surviving his wife Chanchamma and  a  daughter
named Venkata Narasamma. Narasamma was married to one  Pitti
Rangayya  and they had a son named Venkatadri, who  was  the
father of the plaintiffs. Chanchamma died in
   657
March,  1933,  and the plaintiffs aver that they  being  the
heritable  bandhus  of Narayanappa as the  daughter's  son's
sons of the latter and there being no nearer heir in  exist-
ence,  they  became entitled to all the properties  left  by
Narayanappa  on the death of his widow.  It appears that  on
22nd  February,  1894, Chanchamma executed,  what  has  been
described  as a deed of release, in favour of  her  daughter
Narasamma and her son-inlaw Pitti Rangayya, under which  the
entire estate of Narayanappa came into the possession of the
latter.  After the execution of this document, the  daughter
and son-in-law of Chanchamma began to deal with the  proper-
ties  left  by  Narayanappa as their own  and  entered  into
various transactions on that footing. Pitti Rangayya died in
1914 and Narasamma followed him in 1926. There are six items
of property comprised in schedule A to the plaint. Of  these
items,  4 and 5 were sold by Venkata Narasamma.  along  with
her  son, the father of the plaintiffs, on July 9, 1922,  to
the 5th defendant and the father of defendants 6 to 9 for  a
sum  of  Rs. 6,500.  Again, on October 26, 1929,  when  both
Narasamma  and the plaintiffs' father were dead, item  1  of
schedule A was sold by the mother of the plaintiffs as their
guardian  to  the 1st defendant for a consideration  of  Rs.
33,000. Defendants 2 and 3 are the undivided sons of the 1st
defendant.   There  are other transfers in favour  of  other
defendants  in the suit but they are not the  subject-matter
of the appeal before us.
    The plaintiffs' allegations in substance are that  these
alienations are not binding on them as the so-called deed of
release executed by the widow could not and did not  operate
as  a  deed of surrender and any transfer  effected  on  the
strength  of  this  deed by Venkata Narasamma  or  her  son,
Venkatadri,  or  even on behalf of the plaintiffs  by  their
mother  as guardian, could not be operative after the  death
of  the  widow.   As these transfers were  made  during  the
lifetime of Chanchamma and without any legal necessity,  the
plaintiffs as actual reversioners were not bound by them and
they are entitled to recover possession of the properties
658
by  evicting  the transferees. It was for  the  recovery  of
possession  of  these properties that the present  suit  was
brought and there was a claim for mesne profits as well from
the  date  of the widow's death to the date of  delivery  of
possession.
    The defence of the defendants who are interested in  the
properties  mentioned  above,  were really  of  a  threefold
character.   It  was contended in the first place  that  the
plaintiffs  were not the next reversionary heirs of  Naraya-
nappa  and consequently were not entitled to succeed to  the
estate  of the latter on the death of the widow. The  second
contention  was that the deed of release operated as a  sur-
render  of the widow's estate in favour of the daughter  who
was  the next reversioner and although by such  a  surrender
the daughter could get only a limited estate which she would
have been entitled to on the death of the widow, yet as  the
daughter died in 1926, the present suit which was instituted
more  than 12 years after the date of death, was  barred  by
limitation.  The  third plea was that in  any  event,  these
alienations could not be set aside as they were justified by
legal necessity.
The learned Subordinate Judge who heard the suit decided  it
adversely  to the plaintiffs. It was held first of all  that
though the plaintiffs were the heritable bandhus of  Naraya-
nappa, the evidence adduced by them fell short of establish-
ing  that there were no agnatic relations or nearer heir  in
existence. As regards the document  of  release (Exhibit  P.
6)executed  by the  widow in  favour of  her  daughter  and
son-in-law,  the  Subordinate  Judge came to the  conclusion
that the deed operated as a surrender of the widow's  estate
and  as the daughter died in 1926, the plaintiffs' suit  was
barred  by limitation.  On the question of legal  necessity,
the  finding recorded by the Subordinate Judge was that  the
sale  deed (Exhibit D-I) executed in favour of the  1st  de-
fendant  was supported by legal necessity to the  extent  of
Rs.  5,061 and odd annas and that the other  document  under
which  defend: ants 5 t0 9 claimed title was not binding  on
the estate
 659
at all. In the result, the plaintiffs' suit was dismissed in
its entirety.
    Against this decision, the plaintiffs took an appeal  to
the  High  Court  of Madras and the appeal was  heard  by  a
Division  Bench consisting of Gentle C.J. and  Satyanarayana
Rao  J. The learned Judges allowed the appeal in  regard  to
the  items  of  property mentioned above  and  reversed  the
decision of the trial Judge to that extent. It was held that
the  plaintiffs were the nearest reversionary heirs  of  Na-
rayanappa and that the deed of release did not operate as  a
surrender of the widow's estate. The plaintiffs were given a
decree  for possession in respect of item 1 of the  schedule
properties  as  against defendants 2 and 3 on  condition  of
their  depositing into court the sum of Rs. 5,061,  and  odd
annas, that being the amount of debt legally binding on  the
estate which was discharged out of the sale proceeds of  the
transfer, and there was a further direction to pay  interest
upon this amount at the rate of six per cent per annum  from
certain  specified  dates  up  to the  date  of  making  the
deposit.  It may be noted here that the 1st  defendant  died
after  the trial Court's decree and his interest  passed  by
survivorship  to defendants 2 and 3, who are  his  undivided
sons.  As against defendants 5 to 9, there was  an  uncondi-
tional decree for recovery of possession in respect of items
4  and 5 of schedule A. The plaintiffs were further given  a
decree  for mesne profits, both past and future,  commencing
from  the  date  of the widow's death down to  the  date  of
delivery of possession, and the amount of mesne profits  was
directed  to be ascertained in a separate  proceeding  under
Order  XX,  rule  12of the Code of Civil  Procedure.  It  is
against  this  decision  that the present  appeal  has  been
preferred by defendants 2, 3 and 5 to 9.
    Mr.  Rajah Aiyar, appearing for the appellants, did  not
seriously challenge the finding of the High Court as to  the
plaintiffs  being  the nearest reversioners at the  time  of
Chanchamma's  death.  He has assailed the propriety  of  the
High Court's decision substantially on two points. His first
contention is that the deed of
  660
release (Exhibit P-6) executed by Chanchamma had the  effect
of  a  surrender  of the widow's estate in  favour  of   her
daughter  and son-in-law and the daughter having    died  in
1926,  the  plaintiffs' suit was barred by  limitation.  The
second  ground  urged is that the High Court     should  not
have  given the plaintiffs a decree for mesne  profits  from
the date of the widow's death.  Mesne  profits could at best
have been allowed from the date   of the institution of  the
suit and so far as defendants 2 and 3 are concerned  against
whom a conditional decree was given, mesne profits could  be
allowed only from the time when the condition was  fulfilled
by the plaintiffs' depositing the specified amount in court.
The first point taken by the learned counsel for the  appel-
lants  raises  the question as to the legal  effect  of  the
document  (Exhibit  P-6), upon which the  defendants  mainly
base  their contention.  The document is more than 50  years
old  and the language of it is not very clear  or  definite.
It  begins and ends by saying that it is a deed of  release.
It  says  that as the executant is a woman  unable  to  look
after her worldly affairs and as the persons in whose favour
the document is executed are the son-in-law and daughter  of
the  executant, she has put the latter in possession of  all
her properties, movable and immovable. Then comes a descrip-
tion of the properties and after that the provisions run  as
follows :-
      "Therefore you shall yourself pay the quit rent, etc.,
payable  herefor every year to the Government and enjoy  the
same permanently from your son to grandson and so on heredi-
tarily.  For my lifetime you shall pay for  our  maintenance
expenses  Rs. 360 per year every year, before the  month  of
Palguna of the respective years. ' '
      The  remaining  clauses of the deed  enjoin  upon  the
recipients  thereof the duty of realizing all debts  due  to
the  executant by other people and also of paying  all  just
debts  due by her.  It is stated finally that the lands  are
under an izara lease executed by the widow in favour of  one
Narasimha Naidu which is due to expire
661
by  the end of 1346 Fasli and it would be for  the  daughter
and son-in-law to consider what they would do with regard to
the lease.
    There are no words of transfer used in the deed,  though
the widow purports to endow her son-in-law and daughter with
hereditary rights of enjoyment in the property. The document
is described as a release and is stamped as such.  Apparent-
ly it comprises all the properties which the widow had,  and
in  a sense the document indicates an intention on the  part
of the lady to give up all connection with business affairs.
Prima  facie, these facts lend support to the story of  sur-
render. It is not and cannot be disputed that there can be a
surrender  even when the next reversioner is a  female  heir
herself who takes a limited interest in the property, though
such  surrender cannot give her a larger interest  than  she
would  get  as an heir under the law  of  inheritance.   The
whole  difficulty in this case, however, is created  by  the