1. The appellants are the plaintiffs, who have lost in both the courts. The appellants claimed to be the representatives of the original lessor and sued the respondents as representatives of the original lessees under a document exhibit 57 in the case dated the 22nd of July 1872 for recovery of possession on the ground that they had terminated the tenancy under that document by issuing a notice to the respondents under exhibit 51-A dated the 7th of January 1947. The respondents resisted the suit on the ground that they were not lessees or tenants at all, hut were actual full owners of the property. They asserted that the alleged agreement of 1872 was totally false.
2. Both the courts below have disposed of this matter on an interpretation of the document exhibit 57. Both the courts recognise that the property originally belonged to the ancestor of the appellants and that the ancestors or predecessors in interest of the respondents obtained possession there or from the original owner upon the Conditions set out in exhibit 57. Exhibit 57 is not a document executed Ely the lessor in favour of the lessee. That document is described as a Karar Patra under which three brothers Dadoo, Kashappa and Shidraya ac-knowledge that as from that date they will be tenants under one Narasinga Rao Anna Deshpande, the plaintiffs' predecessor in interest.
The material sentences in that document are that on that date a stipulation had been made for payment of a rent of Re. 1/- per year to Deshpande, that although they have been making Vahivat of the property even prior to that day they continue to make Vahivat only as tenants; it is however found stated that 'whenever you ask us to vacate the house we will leave the house to you without putting forth objections of any kind.' From the use of the terms, description of the nature of the Vahivat of the executants of the document subsequent to the date of the document and from the clear description of the payment as rent there cannot he any doubt that the relationship created between the parties by of wider this document was one of landlord and tenant.
That also is the opinion of both the lower courts. There is also no evidence of the lease having been at any time terminated either by the original lessor Narasinga Rao Deshpande or any of his successors until we find the appellants issuing the notice exhibit 51-A dated the 7th January 1947. Prima facie therefore if the lease continued undetermined till exhibit 51-A was issued the suit filed by the plaintiffs in October 1950 was within time and no defence involving; an admission of the tenancy was open. Although the defence originally taken in the written statement was one of repudiation of tenancy and assertion of ownership in themselves, the arguments before the lower courts have been directed on the nature of the tenancy, the possible length of it and whether it was terminated or stood terminated and if so at what time.
3. From the fact that the document states that the signatories thereof will vacate the house whenever required by Deshpande, it has been argued that the tenancy under exhibit 57 was a tenancy at will and that according to general principles a tenancy at will normally gets determined on the death of the tenant; a second line of argument was that in any event the tenancy was for an indefinite period which also, according to the general principles, must be treated as one which could enure only for the lifetime of the tenant.
In either view of the case the argument was that the tenancy was not a heritable tenancy. On this basis the argument was that the tenancy would have come to an end either on the death of the lessor Deshpande or at any rate on the death of the last of the lessees therein, viz. Shidraya, who died on the 11th of June 1918, and that therefore viewed from any point of view the suit filed in 1950 was hopelessly barred by limitation.
4. It seems to me that the very foundation for this argument is lacking in facts. The idea of a tenancy at will or a tenancy by sufferance under the English law of real property is something quite foreign to the notions of the Indian law of leases. A tenancy by sufferance or a tenancy at will as understood in English law are mere legal fictions. They cannot be equated to the idea of a lease under the Indian law. Under the Indian law a lease is undoubtedly a transaction which combines a contract and a transfer of interest in property.
If there is a transfer of interest in the property,, that interest unless it is determined by the terms of the grant under which that interest got transferred must necessarily be a heritable interest. Of course, it is open to a lessor to say that the lease shall stand terminated on a particular date or on the death of a particular person or on the happening of a particular event. But in the absence of any such statement it is, in my opinion, dangerous to proceed to interpret a document executed years ago in India on the basis of legal fictions and theories drawn from the doctrines of the English Law of real property.
5. The learned counsel for the respondents has drawn my attention to several cases particularly those reported in Lakhraj Roy v. Kunhya Singh, ILR 3 Cal 210 (PC), Donkangouda Ramchandragouda v. Revanshidappa Shivalingappa, AIR 1943 Bom 148 and Saldanha v. Roman Catholic Church Mermajal, AIR 1930 Mad 434, in support of the proposition that a lease for an indefinite term should ordinarily be taken as a lease limited to the life time of the lessee. There is a passage at page 212 of ILR 3 Cal 210 which reads:
'If a grant be made to a man for an indefinite period it enures, generally speaking, for his lifetime, and passes no interest to his heirs, unless there are some words showing an intention to grant an hereditary interest'.
In that case it so happened that the lessor had only a Mokurari interest in the land granted and it was sufficient for their Lordships to hold that the interest conveyed to the lessee could not be larger than the Mokurari interest.' In the case reported in : AIR1930Mad434 Justice Ananthakrishna Ayyar examining the question whether a lease granted by the Church in that case was or was not a permanent lease had occasion to refer to the above Privy Council as well as certain other English and Indian decisions. He cited the above passage from the judgment of the Privy Council in ILR 3 Cal 210 (PC) and other passages from English and Indian cases and came to the conclusion that in the absence of express words granting any higher rights to the lessee an indefinite lease would enure only during the lifetime of the lessee and that lease on the lessor's death terminated.
6. It will be seen that even in these cases there has not been a direct importation of the English Law idea of a tenancy at will which determines on the death of the tenant. It has been taken merely as one of the rules of interpretation for the purpose of gathering the intention of the grantor. It is clear from the observations of their Lordships of the Privy Council in ILR 3 Cal 210 that the object of investigation was really to ascertain the measure or quantum or duration of the interest that the grantor intended to convey.
I do not think therefore that we can apply inI India as a principle of law that if the term mentioned in a lease is definite the interest of the lessee is heritable and if the term mentioned is indefinite the interest of the lessee is not heritable. Whether the interest conveyed was or was not heritable must depend entirely upon the wording of the document and the intention of the parties, which the court can gather from the language employed in the document.I do not think therefore that courts should disturb themselves by cases dealing with other documents while trying to ascertain the intention of the parties in this document.
7. The document in question, exhibit 57, as already stated, is not a document executed by the lessor. Therefore the language employed in that was not the language of the grantor. It does not therefore furnish any basis for directly ascertaining the intention of Narasinga Rao Deshpande. The only thing that we can definitely ascertain or assert on the basis of the document is that the executants, Dadoo, Kashappa and Shidraya, in unequivocal terms recognised Deshpande as the owner, declared themselves to be tenants, undertook to pay rent and agreed to vacate whenever Deshpande asked them to do so.
The document does not give us any indication that the tenancy was to come to an end either on the death of Narasinga Rao Deshpande or on the death of any one or more of the signatories to the document. It is clear however that on the death of the first or the second among the signatories the remaining two or the one, as the case may be, can continue unless in the interim Deshpande expressed his will to send them or him away. If that were so, ex hypothesi, there was an interest in the signatories which could pass from one or two of them to the remaining two or one of them.
It being uncertain which one of them would die first or in which order they would die, it necessarily follows that every one of them had an interest which upon his death passes to the survivor or survivors, as the case may be. If, therefore, the language of the document indicates anything at all it does indicate that the interest which these people declared to have obtained from Deshpande was one which could pass by inheritance or survivorship by term of contract which conveys the interest of one person to another on the death of the former.
8. In view of this clear indication available on a direct reading of the simple wording of the document it seems to me unnecessary to complicate the matter by referring to the technical notions of the English Law of real property.
9. Once it has been held that the original relationship created was one of landlord and tenant and once it is clear that it is not possible to hold that the interest of the signatories to this document was one which came to an end on the death of one on more of them, it must be held that all the signatories to the document and their successors in 'interest were in possession of the property only in the character of tenants. It is an undoubted proposition of law that a tenant so long as he continues in possession of the leased property without surrendering it or without giving up possession cannot claim any title higher than that of a tenant and cannot by any length of possession prescribe for such a higher title. The question therefore of limitation and advance possession discussed by the courts below is really beside the point.
10. In the result the decrees of both the lower courts are set aside and this second appeal is allowed. The plaintiffs will have a decree directing the respondents to deliver possession of the suit home. They will be at liberty to make an application under the provisions of O. XX, Rule 12 of the Code of Civil Procedure for ascertainment of mesne profits from the date of plaint. The parties will bear their own respective costs throughout.
11. Appeal allowed.