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Muthegowda Vs. Shanbhogue Naranappa and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Family
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. 636 of 1948-49
Judge
Reported inAIR1953Kant29; AIR1953Mys29; ILR1953KAR92
ActsTransfer of Property Act, 1882 - Sections 105 and 106
AppellantMuthegowda
RespondentShanbhogue Naranappa and ors.
Appellant AdvocateE. Kanakasabhapathy, Adv.
Respondent AdvocateE.S. Venkataramaiya, Adv.
Excerpt:
.....transfer of property act, 1882 - whether lease-deed executed by plaintiff's father gave plaintiff permanent heritable right - perusal of lease-deed revealed lease-deed executed to had effect during life time of lessee as no words permitting continuation of life interest found - court held that lease-deed executed by plaintiff's father did not give plaintiff permanent heritable right. - sections 16 (1) (c) & 20 :[k.ramanna,j] suit for specific performance of agreement to sell - defendant who failed to execute sale deed alleged that plaintiff was not willing to perform his part of contract time was not essence of contract plaintiff was financially well off to pay balance sale consideration held, balance of convenience is in his favour. failure on the part of defendant to issue notice..........in this appeal is whether the lease-deed executed by the plaintiff's father gives the plaintiff a permanent heritable right. the two courts below have come to the conclusion that the document merely granted a permanent lease only for the life time of the lessee and did not grant any hereditary right. the plaintiff has preferred this appeal against those decisions.2. the plaintiff has brought the suit from which this appeal arises, for a declaration of his right to the suit schedule property and for permanent injunction. the plaintiff's father, dodda muthegowda, obtained the lease of the schedule land from one krishna singh and executed a lease deed (exhibit a) dated the 20th may 1915 in favour of the latter. the said lease has been referred to in exhibit b, a will dated 30th august 1915.....
Judgment:

Balakrishnaiya, J.

1. The short point that falls for consideration in this appeal is whether the lease-deed executed by the plaintiff's father gives the plaintiff a permanent heritable right. The two courts below have come to the conclusion that the document merely granted a permanent lease only for the life time of the lessee and did not grant any hereditary right. The plaintiff has preferred this appeal against those decisions.

2. The plaintiff has brought the suit from which this appeal arises, for a declaration of his right to the suit schedule property and for permanent injunction. The plaintiff's father, Dodda Muthegowda, obtained the lease of the schedule land from one Krishna Singh and executed a lease deed (Exhibit A) dated the 20th May 1915 in favour of the latter. The said lease has been referred to in Exhibit B, a will dated 30th August 1915 executed by Krishna Singh, wherein it is mentioned that the plaintiff's father should comply with the terms of the lease after Krishna Singh's death. The plaintiff's father enjoyed the property for some years and he is said to have died about 8 or 10 years ago. The successors-in-interest of the said Krishna Singh sold the property to defendant 1 for a sum of Rs. 2500/- and defendant 2 has been impleaded as a tenant in possession under defendant 1.

3. The crucial point upon which the decision of this appeal turns is the interpretation, of Ext. A, the lease deed executed by Dodda Muthe Gowda, a copy of which is proved in the case, the original not having been disputed. Mr. Kanakasabhapathy for the appellant contended that the tenure granted under the lease deed is not only permanent but also heritable, and that as the said right has been, confirmed in Ext. B the expression 'Khayarn Gutta' used in Ext. A should be taken as meaning a permanent lease, especially as there is no indication in the document limiting its duration to the lifetime of the lessee and as no right of re-entry has been reserved. In support of his contention he relied upon a number of decisions which are not of much avail.

4. In -- ''Biju Eapu v. Munnala; AIR 1929 Nag 23, the document contained the expression 'hamesha kareetha' which was interpreted as meaning 'for ever.' The Court held that in the absence of words indicating that a heritable estate was intended to be created in favour of the lessee the words 'hamesha kareetha' should be interpreted to mean only 'for life'. In the case reported in - 'Sohawa Singh v. Kesar Singh', AIR 1932 Lah 586, the High Court held that in the absence of any reservation of re-entry the lease must be held to be normally heritable.

The ease reported in - 'Anwarali Bepari v. Jamini Lal', : AIR1940Cal89 , also relied upon by the learned Advocate for the appellant, can be distinguished inasmuch as it was a lease from month to month which was neither for agricultural nor manufacturing purposes, coming within the purview of Section 106, T. P. Act; it was held therein that the tenancy created was a tenancy-at-will and could be determined on the death of either party i.e., the tenant or the landlord. The lease in that case was created after the T. P. Act came into force.

5. On behalf of the respondents, Mr. E. S. Venkataramaiya, urged that Ext. A though termed as a 'khayam gutla lease' does not contain any words indicating continuity after the death of' the lessee. He argued that since the lease under consideration was created before the T. P. Act came into force in Mysore, the Question whether such a lease conveyed a hereditary or perpetual right or not must be determined by the presence of appropriate words to that effect, or in their absence, by the surrounding circumstances or the conduct of parties and that in this case all the considerations lead to the inference that no such right was intended or conveyed.

6. In many cases, leases are defined by certain well-known terms which have now assumed more or less definite import and are recognised as forming the necessary equipment of the Indian conveyancer's vocabulary. It is in this sense and not in their lexigraphical sense that such words must be construed. In an early case reported in - 'Tulshi Pershad Singh v. Ramnarain Singh', 12 Cal 117 (PC) their Lordships of the Privy Council explained that the words 'istemrari moku-rari',, contained in a 'potta' do not by themselves denote that the estate granted is one of inheritance; they were of opinion that in addition to those words, there must be such expressions as 'ba farzandan' (meaning 'including children or descendants') or 'naslan bad naslan' (literally 'from generation to generation') or similar words and that without the latter, the other terms of instrument, the circumstances under which it has been made or the conduct of the parties may show the intention with sufficient certainty to enable the court to pronounce the grant to be perpetual and in the circumstances of that particular case they were of opinion that definite intention of heritability was not shown.

It is thus clear that in the absence of any words of inheritance a grant cannot 'prima ' facie' be construed to create a hereditary interest, though the want of appropriate words conveying such an interest may be supplied by the purpose of the grant, custom or usage, appropriate to such locality, evidence of long uninterrupted enjoyment at a fixed unvarying rent or by subsequent recognition and conduct of parties. These surrounding circumstances must however be unequivocal. The Calcutta case referred to above has been followed by a Bench of the Madras High Court, vide - 'Rajaram v. Narsasinga', 15 Mad 199 where the words used in the document were 'Khayam Saswata ijara patta' translated as 'confirmed, permanent ijara (lease) patta.'

The learned Judges held that the expression 'khayam saswatha' is not easy to distinguish from the words 'istemrari mokurari' which the Privy Council in the Calcutta case held, do not 'per se' convey an hereditary estate unless used in conjunction with words denoting from 'generation to generation' or 'with sons.' In that particular case 15 Mad 199 it was also observed that the conduct of the parties, no less than the language of the instrument, raised a presumption that the lease was not intended to be hereditary. In a later case of the Madras High Court, reported in --'Rama lyengar v. Guruswami Chetti' AIR 1919 Mad 897. Abdul Rahim J. held that the incidence of 'Khayam saswatha patta' in the Madras Presidency and the tests for determining its character are those laid down by the Privy Council in 12 Cal 117 (PC) as applicable to 'istemrari mokurari' pattas in Bengal.

The word patta itself is a generic term and embraces every kind of engagement between the lessor and the lessee. It does not 'prima facie' give any hereditary interest apart from the other words importing inheritance: see - 'Dhanput Singh v. Gooman Singh', 11 Moo Ind App 433 (PC). In the Madras Presidency a Mirasdar is held to be a permanent tenant and the same sense is conveyed by the word 'Niranter' in districts where Marathi and Kanarese are the prevailing languages - 'Unhamma Devi v. Vaikunta Hedge', 17 Mad 218. The trend of opinion in other parts of India also points to the fact that the lease which is for an indefinite period does not by itself import a heritable estate. The words of inheritance must be found before it can be said that the lease necessarily implies a perpetual heritable tenure.

In -- 'Saldanha v. Roman Catholic Church, Mermajal, : AIR1930Mad434 it was held that in respect of leases made for an indefinite period, it would enure, generally speaking, as far as the lifetime of the lessee and passes no interest to his heirs unless there are words showing an intention to grant a hereditary estate and that the absence of the words from 'generation to generation' or 'you and your descendants' are important circumstances to be taken into consideration in the interpretation of the instrument which was claimed to be a 'moolgeni' lease as distinct from a 'chalgeni' lease. On the other hand, the lease of property to a person simply without mentioning for how long would confer upon him an implied estate for life. In 'Jumma v. Madhu-soodan Dayal' : AIR1941All306 , Iqbal Ahmed J. held thus

'A tenancy created for an indefinite period and terminable at the landlord's will enure, at best, for the tenant's lifetime. The interest acquired by the tenant is not heritable in the absence of the words showing an intention to grant a heritable interest and the tenancy terminates on the tenant's death.'

It is also equally clear that merely because the lessee's interest is made transferable, it does not mean that it is also heritable. It was so held by Beaumont C. J. in - 'Donkan-gouda Ramchandragouda v. Revanshiddappa Shivalingappa' AIR 1943 Bom 148. The rent note in that case, executed by the tenant in favour of the landlord, provided that on paying an annual rent, the lessee should be continued in possession and should not be evicted. There was also a stipulation that the rents should not be raised; it was held that the document created only a tenancy for the life time of the lessee, and that therefore, on his death, possession of his heirs, became adverse to the landlord.

The learned Chief Justice further observed, that in India there is no settled system of conveyancing and a permanent tenancy might be created without the use of any words of inheritance, although if the intention was to create a permanent tenancy, one would expect to find a reference to heirs or successors; but that in order to constitute a permanent tenancy, the court must be able to say from the terms of the document which creates it that the lease would continue after the time at which according to its terms, it would normally expire, namely, after the death of the lessee. In a judgment of this court marked. Exhibit XIX (R. A. .157 of 45-46) where the stipulation was to pay a cash rent every year, it was held that in the absence of any indication in the lease that the lease should continue, even after the lifetime of the lessee it would expire at the death of the lessee.

7. Where however the words used in a lease are themselves not free from ambiguity, It is then necessary to refer to the circumstances under which the lease was given, the 'relationship of the parties and their subsequent conduct, in order to ascertain the exact nature of the terms agreed upon.

8. Applying these principles of law, enunciated in the foregoing cases to the facts of the present case, we have no doubt whatever that Doddamuthegowda got only a life interest and nothing more under the original of Ext. A; the words used in the said document are very important in construing the nature of the, interest conveyed under it. The document begins with the words 'Guttige kagada' meaning 'lease deed' and ends with the words 'khayam guttige kagada' which may be', translated as 'fixed or confirmed lease deed.' They' do not 'per se' imply that the lease is perpetual and inheritable, in the light of the various decisions, holding that the words 'khayam' or 'Saswatha' do not by themselves operate to create any interest beyond the lifetime of the grantee; the surrounding Circumstances also support this conclusion.

In Ext. A there is a stipulation that the grantee should look after the cocoanut plants, and replant such as those which are decayed and get destroyed, implying thereby that the granter had reserved some interest for himself. The subsequent conduct of the grantee also is hardly consistent with that of a person who had taken a perpetual and a heritable lease. Exhibit VII series are the letters in which he has stated that owing to want of rains, the crops have failed and that he was not prepared to cultivate the land and that it may be taken back; while in Exts. 8 and 8(b) which are money-order coupons, undoubtedly referring to the suit land, he has similarly stated that the wet land may be taken back as it was difficult for him to cultivate and may be given to somebody else.

D. W. 5 who is the Post Master of the village, states that he wrote those letters and M. O. coupons as instructed by the plaintiff. If the lease was khayam or permanent in the sense that it was heritable, the original lessee would hardly have thought of surrendering the same even before his death. Besides it is rather too much to imagine that Krishna Singh would part with all his rights in the property, the major portion of which is garden land, measuring four acres, for a mere pittance of Rs. 32/- per annum, in favour of the grantee who is neither his relative nor even his caste-man. It is thus clear that both on the interpretation of the document as well as on a consideration of all the relevant circumstances of the case including the subsequent conduct of the parties, the lease deed cannot be held to grant a heritable estate in the property.

9. In the result, I do not see any reason todisagree with the concurrent decisions of theCourts below. The appeal therefore fails andis dismissed with costs. Advocate's fee isRs. 50/-.

10. Appeal dismissed.


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