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Karumanchi Varalakshmamma Vs. Karumanchi Veeraraghavamma - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAndhra Pradesh High Court
Decided On
Case NumberSecond Appeal No. 403 of 1955
Judge
Reported inAIR1960AP166
ActsTransfer of Property Act, 1882 - Sections 111; Limitation Act, 1908 - Schedule - Article 143
AppellantKarumanchi Varalakshmamma
RespondentKarumanchi Veeraraghavamma
Appellant AdvocateN. Subrahmanyam and ;J.V. Suryanarayana, Advs.
Respondent AdvocateK. Kotiah and ;G. Ramachandrudu, Advs.
DispositionAppeal dismissed
Excerpt:
.....111 (g) of transfer of property act, 1882 and article 143 of limitation act, 1908 - respondent filed suit for recovery of properties leased to appellant - appellant sold properties belonging to respondent - appellant denied title of respondent - lease stands forfeited - appellant challenged recovery proceedings as time barred - under article 143 period of limitation for recovery starts from latest act of denial of title - held, respondent entitled to recover possession and suit not time barred. - - the plaintiff could not possibly have had any suspicion of the sinister designs of the man whom she trusted and whose good faith she had no reason to doubt. 9. but what is contended is that for the purpose of art, 143, it is not necessary that the denial of title incurring forfeiture..........when the forfeiture is incurred or the condition is broken. it is, therefore, contended that the suit filed in 1950 is filed more than 12 years from the date when the forfeiture was incurred. it is also argued that the plaintiff is not entitled to rely upon ex. a-20 dated 31-1-1948, as the date of the forfeiture and contend that the suit is within time, for by reason of the first sale, viz., ex. b-3, the forfeiture had already been incurred and the suit is barred by reasoa of it having been instituted after more tban 12 years.7. on the contrary, the learned counsel for the respondent contends that till 1942, the plaintiff had no knowledge of the denial of her title and so even with regard to ex. b-3. the suit is within time. it is also argued that it is open to the landlord to seek.....
Judgment:

Seshachelapati, J.

1. This second appeal arises out of a suit Instituted by the respondent for the recovery of possession of items 1 to 10 described in the plaint schedule and niaktha or rent of Rs. 28/- for the year 1949 from the 1st defendant. The items 1 to 9 of the plaint schedule are agricultural lands. Item 10 is a house with a vacant site. The case of the plaintiff is that these properties belonged to her husband one Guravayya, and on his death she inherited them. Subsequently she leased out items 1 to 9 under a registered Cowle dated 23-2-1935 to the husband of the 1st defendant. Ramachandrayya and marked as Ex. A-1.

According to the terms of that lease Ram-chandrayya had to pay an annual rent of Rs. 19/-for 50 years for the lands comprised in items 1 to 9 of the plaint schedule. By a Rental agreement dated 20-2-1935 Ramchandrayya took on lease the house and the vacant site comprised in item 10 of the plaint schedule on a stipulation to pay Rs. 9/-rent per annum. The lessee, Ramchandrayya, it is alleged sold item 1 to the third defendant in the present action under a sale deed dated 19-4-1937, and marked as Ex. B-3.

By a further sale deed dated 31-5-1948 and marked as Ex. A-20 Ramchandrayya is alleged to have sold item 5 to the second defendant. Having come to know of these alienations the plaintiff gave notice to Ramchandrayya stating that the lease had come to an end. She filed a suit tor recovery of the properties in 1950. The 1st defendant in the suit is the wife of the lessee, Ramchandrayya. The second defendant is the alienee of item 5, and the 3rd defendant is the purchaser ot item 1. Defendants 4 to 8 are sub-lessees in respect of other items. With regard to item 10, the case of the plaintiff is that Ramchandrayya pulled down and dismantled the old house and reconstructed a fresh one and, therefore, the plaintiff is entitled to put an end to the lease and recover the property.

2. The appellant before me who is the widow of Ramchandrayya, has filed a written statement contending that the properties in question do not belong to the plaintiff. It is alleged that Guravayya was not divided in estate from his brothers Chinna Seethayya and Ramayya. On the death of Guruvayya and Ramayya- the properties are stated to have devolved on China Seethayya who died leaving two sons. Ramchandrayya and Ramayya. It is stated the plaintiff had only a right of maintenance and she was not entitled to the properties-Further it is alleged that the leases under Exs. A-l and A-2 were only nominal, that though the properties belonged to Ramchandrayya alone in order to avoid claims by others at the instance of certain mediators the two documents were executed and they were intended to be and in fact were nothing more than the maintenance arrangements. The other defence set up was that no forfeiture had been incurred. Defendants 2 and 3, the alienees also filed written statements denying the right of the plaintiff to recover the possession of the lands. The sub-lessees defendants 4 to 8 con-tended that they were the sub-tenants for & long time and that they should not be evicted.

3. The learned District Munsiff of Kanigiri, settled appropriate issues and found: (i) that the suit properties belonged to Guruvayya alone and that after his death they devolved upon his widow, the present plaintiff, and (ii) that the lease-deeds Exs. A-1 and A-2 were not nominal transactions intended to be nothing more than the maintenance arrangements as pleaded by the defendants. He also held that by reason of conveyances executed by Ramachandrayya under Exs. B-3 and A-20 there was the denial of the title of the landlord resulting in forfeiture of the leases. He however, passed a decree for possession of items 1 and 5 only. The trial courts also held that the dismantling of the house in item 10 and building of another therein will not incur forfeiture and disallowed the plaintiffs claim with respect to that item.

4. The plantiff filed appeal No. 35 o[ 1954, on the file of the Sub-court, Nellore. Similarly the third defendant the alienee of item 1 of the plaint schedule filed A. S. 97 of 1954. Both the, appeals were heard together. The learned. Subordinate Judge held, first, that the properties in question were the separate properties of Guruvayya which on his death devolved on his widow, the plaintiff, and secondly, that the lease deeds were not mere nominal arrangements executed in the circumstances alleged by the 1st defendant.

The learned Subordinate Judge further held that by reason of the execution of Exs. B-3 and A-20, Ramchandrayya, the lessee had denied the title of the landlord, the plaintiff, and, therefore, the lease under Ex. A-1 had become forfeited. In that view he granted the plaintiff a decree lor possession of items 1 to 9. But with regard to item 10 covered by Ex. A-2, the learned Judge came to the conclusion that there was no determination of the lease as the dismantling of the building and reconstruction of it cannot be regarded as a denial of title of the landlord anterior to the filing of the suit. He, therefore, held that there was no determination of the lease of the building of Item 10.

5. The third defendant who filed an appeal in the lower appellate court has not filed any appeal here. The appeal is filed only by the 1st defendant, the widow of the lessee, Ramchandrayya.

6. The learned counsel for the appellant has, very properly, not canvassed the findings of the two courts below as to the title of the plaintiff to the suit properties and the nature of the Exts. A-l and A-2. His main point is that on the footing that the sale deeds Exts. B-3 and A-20 constitute denial of the landlord 's title resulting in forfeiture, the present suit instituted in 1950 is barred under Article 143 of the Indian Limitation Act. In substance his contention is that Ext. B-3 dated 19-4-1937, must be reckoned as the date of the denial of the landlord's title bv the lessee and the forfeiture must be deemed to have taken place as on that date.

Under Article 143 of Schedule (1) of the Indian Limitation Act. a suit for possession on the foot of forfeiture or breach of any condition of the lease should be instituted within 12 years from the time when the forfeiture is incurred or the condition is broken. It is, therefore, contended that the suit filed in 1950 is filed more than 12 years from the date when the forfeiture was incurred. It is also argued that the plaintiff is not entitled to rely upon Ex. A-20 dated 31-1-1948, as the date of the forfeiture and contend that the suit is within time, for by reason of the first sale, viz., Ex. B-3, the forfeiture had already been incurred and the suit is barred by reasoa of it having been instituted after more tban 12 years.

7. On the contrary, the learned counsel for the respondent contends that till 1942, the plaintiff had no knowledge of the denial of her title and so even with regard to Ex. B-3. the suit is within time. It is also argued that it is open to the landlord to seek possession on the foot of forfeiture of the second sale deed Ex. A-20 dated 31-1-1948, in which case, the suit having been filed in 1950 no question of limitation could possibly arise.

8. For appreciating the rival contentions certain facts will have to be stated: Ramchandrayya would appear to have been an extremely designing sort of person. He was closely related to the plaintiff. He was her husband's nephew. The plaintiff was living away either in Gutur or in Tenali for long stretches of time and practically had never been to the village where the lands are situate. Ramchandrayya was sending her the rents. Exs. A-6 to A-10 are money order coupons. These money orders range between the years 1937 to 1940. Even after he sold item 1 to the third defendant he was carrying on the pretence of being the lessee promptly sending the rents to the lessor.

The plaintiff could not possibly have had any suspicion of the sinister designs of the man whom she trusted and whose good faith she had no reason to doubt. Further he had written letters to the plaintiff Ex. A-11 dated 27-2-1940 and Ex. A-12 dated 21-2-1942. stating that he would send the money due to her shortly. The learned Subordinate Judge, therefore, is right in concluding that prior to 1942 the plaintiff was kept in absolute ignorance about the sale affected by Ramchandrayya. This finding that the plaintiff did not know about the alienation under Ex. B-3 prior to 1942 cannot be challenged and it is only fair to add that the learned counsel for the appellant has not tried to do so.

9. But what is contended is that for the purpose of Art, 143, it is not necessary that the denial of title incurring forfeiture must be to the knowledge of the landlord, In support of that contention the learned Counsel has placed strong reliance upon the decision of the Madras High Court in Zamorin Raia Avergal of Calicut v. Unikat Kar-navan Samu Nair, 38 Mad LJ 275: (AIR 1922 Mad 290) and in particular to a passage in the judgment of Krishnan J.. to the following effect:

'The learned Subordinate Judge's view that time begins to run under Article 143 of the Limitation Act only when the landlord comes to know of the forfeiture cannot be supported. The article makes the forfeiture itself the starting point; there is nothing in it about the lessor's knowledge. '

This view is manifestly at variance with the principle of several bench decisions of the Madras High Court. In Komalukutti v. Muhammed, ILR 41 Mad 629: (AIR 1919 Mad 1106) a bench of the. Madras High Court has held that the denial of the landlord's title must be direct and unequivocal and must be made to the knowledge of the landlord.

10. In Unman Nair v. Mariyamma, ILR 43 Mad 480 at p. 483: (AIR 1920 Mad 256 at p. 256) Seshagiri Ayyar J., has observed as follows:

'It is well understood in this Presidency, that the denial must be brought home to the knowledge of the landlord and it must be unequivocal and clear. In ILR 41 Mad 629: (ATR 1919 Mad 1106) and in Rama Iyengar v. Guruswami Chetti, 8 Mad LW 109: (AIR 1919 Mad 897), this principle was distinctly stated. See also Venkatachariarv. Narasimha Ayyangar, 1918 Mad WN 846: (AIR 1919 Mad 886.'

To the same effect is the decision of a Bench of the Bombay High Court in Narayan v. Mangesh, AIR 1932 Bom 599.

11. la view of the aforesaid decisions, the observations of Krishnan J. in Zamorin's case 38 Mad LJ 275: (AIR 1922 Mad 290) cannot be taken as a statement of the correct position. In fact, if I may say so with peat respect to the learned Judge, those observations were mere obiter in view of his findings in the case that the forfeitures relied upon in the various cases were well within 12 years from the date of the suit.

12. Mr. Suryanarayana, has placed strong reliance upon a decision of Venkataramana Rao J., in Annamali Pathar v. Vythilinga Pandara Sannadhi Avergal, AIR 1937 Mad 295 where the learned Judge held that a person holding Kasevargam tenancy is not entitled to alienate the land by sale or mortgage, and on alienation the landlord is entitled to evict the alienee without any notice to quit, and that Article 142 applies to such a case and the time begins to run from the date of the denial of title. The learned Judge, there was repelling the argument of the counsel for the respondent that before the landlord could invoke the right to recover possession on the forfeiture there must be some overt acts on his part. There was no discussion in that case as to whether without knowledge of the denial time would begin to run against the landlord.

13. It has been contended by Mr. Suryanarayana that if by reason of Ex. B-3 there was a forfeiture, there can be no question of the plaintiff relying upon Ex A-20 for seekine to eject the tenant and recover possession on the foot of the later forfeiture. The answer to this argument is furnished by Krishnan J., in Zamorin's case, 38 Mad LJ 275 at p. 283: (AIR 1922 Mad 290 at p. 295) already referred to. The learned Judge observed as follows :

'The fact that there were previous alienations which the landlord could have but did not take advantage of is not material as the Munsif seems to have considered, for it was open to him to waive such forfeitures.'

It has been contended that waiver presupposes a consciousness of a right or a privilege that is be-ins waived and if ex-concessi the plaintiff had no knowledge of Ex. B-3 there cannot be a waiver of the right to claim forfeiture.

14. This argument to my mind is misconceived because the plaintiff is certainly entitled to rely upon the forfeiture that is incurred as a result of toe conveyance under Ex. A-20. Support for this view is to be found in Parameshri v. Vittappa Shanbhaga, ILR 26 Mad 157 at p. 161 where Bhashyam Ayyangar J., observed as follows :

'The fact that the landlord waived or did not enforce the forfeiture, if any, which took place by the first absolute assignment in 1890 would not disentitle him to enforce the forfeiture, if any, which subsequently accrued, if any. of the second assignment in 1891.'

15. Mr. Kotayya, the learned Counsel for the respondent has invited my attention to a decision of the Supreme Court in Namdeo Lokman v. Nar-madabai, : [1953]4SCR1009 to support of his contention that there is nothing in law to preclude a landlord claiming ejectment of the tenant and recovery of possession of the land demised on the foot of forfeiture from relying upon latest of several denials or breaches of express conditions, each One of which entails forfei-ture. The main point decided in that case by their Lordships was as to whether in respect of a lease prior to. the coming into the force of the Transfer of Property Act in 1882, there was an obligation on. the part of the landlord to give a notice in writing as a preliminary to a suit for ejectment based on forfeiture of a lease, and whether in the circumstances of that case, there Were justifiable-grounds for relieving the tenant under Section 114 against forfeiture.

On the facts their Lordships found that therewere series of breaches of the express conditionsand stipulations in the lease each one of which entailed forfeiture and in respect to which the landlord had filed several actions unsuccessfully. Thoughthis particular question in the present form had notarisen for decision before their Lordships, it mustbe taken that by implication that decision is in-support of the view that it is open to a landlordto rest his claim for recovery of possession on the foot of forfeiture on the latest act of denial of titleor the breach of the conditions of the lease.

16. I hold, therefore, that the plaintiff is entitled to rely upon both Ex. B-2 and Ex. A-20 for seeking to eject the tenant on the foot of forfeiture.

17. The learned Subordinate Judge has also held that by reason of Exs. B-3 and B-20 not only is the plaintiff entitled to recover possession of items 1 and 5, but the other items comprised in Ex. A-1 as well. That finding has not been challenged before me.

18. In the result, the Second Appeal fails and is dismissed with costs of the respondent-plaintiff throughout. Leave refused.


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