Leila Seth, J.
(1) These two second appeals are directed against the judgments and orders dated 4th October, 1976 of Shri H.K.S. Malik, Additional District Judge, Delhi. The short judgment staling the case is decided on the basis of the judgment of 'even date' is dated 27th August, 1976. This is apparently erroneously so dated as the main judgment is dated 4th October, 1976. It is conceded at the bar, that this is a mistake and it is deemed to be dated 4th October, 1976.
(2) A suit was instituted by the plaintiff-appellant in 1968 against Mohinder Pal Jain, his ex-partner defendant/respondent No. 10 and Smt. Santosh Devi and her sons and daughters, respondents I to 8 whose predecessor Darga Prasad was the tenant of the suit premises under dependant/respondent No. 9 Mst. Kalsum Bi. He prayed therein for 'a decree for declaration to the effect that the plaintiff is a lawful tenant in respect of godown Nr. Vl/1648 situated at Bazar Lal kuan, Delhi under the defendant No. 9 and the defendant I to 8 have no right or title in the same.' The planit was later amended and an alternative prayer was made that it be declared that the possession of the plaintiff in respect of the above stated godown is lawful and he is a tenant under the defendants Nos. 1 to 8'.
(3) The trial court framed certain issues and these relevant to the matter under consideration are set out below:
1. Whether the plaintiff is the lawful tenant of the property in dispute under defendants No. 9 as alleged? 0. P. P. 7. Whether defendants Nos.l to 8 are the tenant of property in dispute as alleged? 8. Are defendants No. 1to 8 stopped from taking the plea covered by issue No. 7 as alleged? 0. P. P. On 2nd November, 1974 an issue No. 8A was framed to the effect Whether the plaintiff has become direct tenant under the defendants Nos. 1to 8? 0. P. P.'
(4) These four issue being inter connected were discussed together by the trial court. After considering the evidence and the law, the commerical SubJudge Delhi by his judgment and order dated 15th July, 1975 came to the conclusion, that the plaintiff who was a partner of the dissolved firm M/s. M. P. Jain & Co. and who had been allotted the tenancy premises by virtue of the dissolution deed Ex. P. W. 3/2 had acquired the tenancy rights, i.e. lawful subtenancy rights under defendants Nos. 1 to 8 by virtue of operation of law and would be deemed to have become a tenant under defendant No. 9. As a result of this finding the Commercial Sub-Judge, Delhi, granted the plaintiff a declaratory decree, to the effect, that the possession/status of the plaintiff in respect of godown No. VI/1648, Lal Kaun, Delhi is that of a lawful sub-tenant under defendants Nos. I to 8 who had become tenant under defendant No. 9 by operation of law, at the rate of Rs. 83.00 per month. He, however, held that the plaintiff was not the direct tenant of defendant No. 9.
(5) Both defendants Nos. I to 8 and the plaintiff appealed. The Additional District Judge, Delhi by his Judgment and order affirmed the finding that the plaintiff was not direct tenant of defendant No. 9 and dismissed the plaintiff's appeal. He accepted the appeal of defendants Nos. I to 8 as he declined to make the alternative declaration asked for by the plaintiff and set aside the decree passed by the trial court and dismissed the suit with costs throughout.
(6) In order to appreciate the contention raised by the appellant in the second appeals which have been filed by him challenging the correctness of the judgment and orders dated 4th October, 1976, it is necessary to set out certain facts. Mst. Kalsum Bi, respondent No. 9 is the owner of a godown-cum-shop bearing Municipal No. Vl/1648, situated at Bazar Lal Kaun. Lala Durga Prasad who died on or about the 29th December, 1965 (now represented by respondents I to 8) was the tenant of these premises and with the consent Smt. Kalsum Bi, he sub-let the premises on 7th October, 1954 to a firm namely, M/s Mohinder Pal Jain & Co. The Partners of the said firm were the plaintiff- appellant, Jaiwant Kumar Jain and respondent No. 10, Mohinder Pal Jain. They had equal shires in the partnership firm. Till the year 1959, Lala Durga Prasad paid Smt. Kalsum Bi a rent of Rs. 80.00 per month and the firm Mohinder Pal Jain & Co. paid Lala Durga Prasad a sum of Rs. 180.00 per month. On a petition fied by the firm M/s Mobinder Pal Jain & Co. in the year 1959-60 the standard rent of the premises was determined by compromise between the owner-respondent No. 9 the tenant Lala Durga Prasad now represented by compromise between the owner-repondent No. 9 the tenant Lala Durga Prasad, now represented by responients I to 8 and the sub-tenant firm i.e. respondent No. 10 and the appellant, at the rate of Rs. 80.00 per month. The result was that between 1960 and 30th September, 1965 Lala Durga Prasad was collecting the rent from his sub-tenant M/s Mohinder Pal Jain & Co. at the same rate at which he was paying respondent to No. 9. -.
(7) It is averred by the plaintiff that on 30th September, 1965, Lala Durga Prasad withdrew his notional interest in the premises and requested the subtenant firm (appellant and respondent No. 10)^nd the owner-respondent No. 9 to create a direct relationship of landlord and tenant. Consequently, Lala Durga Prasad (now represented by respondents I to 8) stopped paying any rent to respondent No. 9 from 1st October, 1965 and the firm Mohinder Pal Jain & Co. started paying rent directly to respondent No. 9 through her husband and general attorney (who also died in 1966) and later through her rent collector. The landlady has neither contested the suit nor appeared. A document Ext. P-l purports to have been executed by the husband of respondent No. 9, which is a receipt of Rs. 660.00 being the rent form 1st October, 1965 to 31st March, 1966 at the rate of 110.00 per month as received form M/s Mohinder Pal Jain& Co.. This document is dated 24th October, 1965. On 25th December 1965 Durga Prasad died. On 2nd August? 1966 the heirs of Lala Durga Prasad sent a notice (Ex. Public Witness . 3/11) to the firm M/s. Mohinder Pal Jain & Co. (i.e. to the appellant and respondent No. 10) calling upon them to pay rent within two months of the receipt of the notice and threatening legal action if they failed to do so. A reply to the said notice dated 2nd August, 1966 was sent on behalf of the firm Mohinder Pal Jain & Co. on 6th August, 1966 (Ex. Public Witness . 3/6). It was averred therein that the correct facts are that the owner through her husband and general attorney had threatened Late Lala Durga Prasad and the firm Mohinder Pal Jain & Co. with eviction on the ground of sub-letting. The matter was compromised and Mohinder Pal Jain & Co. became a direct tenant under Smt.Kalsum Bi, respondent No. 9 w.e.f. 1st October, 1965 and Lala Durga Prasad ceased to be a tenant in the disputed godown. As such the legal heirs of Lala Durga Prasad did not inherit any tenancy right or interest in the disputed premises.
NOaction was taken thereafter by respondents I to 8 for about two years.
(8) In 1968 certain disputes arose between the appellant and respondent No. 10 which resulted in a dissolution of the partnership firm of Mohinder Pal Jain & Co., by execution of a registered dissolution deed on 5th June, 1968 (Ex. Public Witness . 3/2). It was agreed, inter alia, by this deed and provided that the occupation and tenancy rights of premises No. Vl/1648 Bazar Lal Kuan, Delhi, would be enjoyed by the appellant whereas the tenanted premises at Rajpur Road, Delhi would be enjoyed by respondent No. 10. As such the appellant continued to carry on the timber business from the disputed premises as a sole proprietor and under the name and style of M/s. Jaiwant Kumar Jain & Sons.
(9) After keeping silent for two years and after the dissolution of the firm Mohinder Pal Jain& Co., on 17th August, 1968, the respondents 1 to 8 through their lawyer addressed a notice, (Ex. Public Witness . 3/12) to the firm Mohinder Pal Jain & Co. in which it was averred that the firm had been inducted as ft sub-tenant by Lala Durga Prasad. It was also stated therein that on an application to the Rent Controller for fixation of fair rent, the petition had been compromised on 16th May, 1960 by virtus of which the rent of the premises in the occupation of the sub-tenant was fixed at Rs. 80.00 per month which was paid to late Lala Durga Prasad together with Rs. 3.00 per month on account of flush lavatory, till the 30th September, 1965. Lala Durga Prasad had died on 29th December, 1965 and that on 2nd August, 1966 the heirs of Lala Durga Prasad had called upan the firm to pay the rent. That it has come to their knowledge that the firm has illegally assigned or parted with the possession of part or whole of the premises and respondents I to 8 do not wish to retain the firm as a tenant and, thereforee, determine and terminate the tenancy on the 30th day of September, 1968. It also called upon the firm to pay the rent due.
(10) On behalf of the Plaintiff appellant a reply was given dated 28th August) 1968 (Ex. Public Witness . 3/8). It was averred therein that no rent was due after 30th September, 1965 as Lala Durga Prasad had compromised the dispute with the paramount landlord and had surrendered his interest in the premises to Mst. Kulsum Bi who had entered directly into a relationship of landlord and tenant with M/s. Mohinder Pal Jain & Co. w.e.f. 1st October, 1965. It was further averred that this position had been explained' by the letter dated 6th August, 1966 and it appears that the parsons concerned had been satisfied with the reply but due to some other influence, the matter has been revived. Further for the last two years rent had been paid directly to the owner Smt. Kalsum Bi. It was also stated therein that M/s. Mohinder Pal Jain & Co. was a partnership firm consisting of two partners Lala Mohinder Pal Jain and Lala Jaiwant Kumar Jain. The partnership was dissolved on 5th June, 1968 and Lala Mohinder Pal Jain had left Shri Jaiwant Kumar Jain in occuption of the godown and the latter is carrying on business is the name and style of M/s. Jaiwant Kumar Jain & Sons.
(11) The main argument of Mr. MahanBhatia, learned counsel for the appellant is that there is a case of either express or implied surrender of tenancy by operation of law. He submits that a case of express surrender has been pleaded as far back as 6th August, 1966 as contained in Ex. P. W. 3/6. In any event he contends that even if express surrender is not proved then from the conduct of parties, it is clear that there was an implied surrender.
(12) On the question of express surrender, Mr. Parihar, learned counsel for respondents I to 8 submits that the main case of the appellant in this regard is based on Ex. P-l. He contends that Ex. P-l is a collusive document and on plain paper and not part of the normal rent receipts and should not be relied on. I need not dilate on this aspect as the case of express surrender, has been found by the two courts of fact, to be not established. Nothing of a material nature has been pointed out to mi as to why the findings of these courts with regard to the case of express surrender are wrong.
(13) On the question of implied surrender, it is strenuously urged by appellant's counsel that this aspect was not properly appreciated by the Additional District Judge, Delhi. His observation that 'the question of paying rent by Durga Prasad or defendants Nos. 1 to 8 to defendant No. 9 did not arise so long as defendant No. 9 was Realizing rent directly from the plaintiff', is clearly erroneous.
(14) Section 111 of the Transfer of Property Act, 1882 provides for the determination of a lease of immovable property in various ways and subsections ( e) and (f) are as follow :
'(e) by express surrender; that is to say, is case the lessee yields up his interest under the lease to the Lesser, by mutual agreement between them; (f) by implied surrender.'
ANexpress surrender is a matter of intention of the parties. An implied surrender by operation of law can be inferred from the unequivocal conduct of parties which is inconsistent with the continuance of the original tenancy. In the case of implied surrender the conduct rather than the intention is important. Acceptance by the landlord of the sub-tenant, with the assent of the original tenant, would, in my opinion amount to implied surrender. Acquiescencs for two years would certainly indicate asseat.
In Noratmal v. Mohanlal A. I. R. 1966 Raj 89 Bhandari, J. while discussing implied surrender states :
' Such a surrender is valid under S. 111(f) of the Transfer of Property Act. Such a surrender may come into being in a number of ways. There may be surrender by acceptance of a new lease, surrender by unequivocal giving of possession, surrender by reletting to another person by the landlord. Even acceptance by the landlord of the sub-lessee as a tenant would amount to surrender.'
Woodfall in his Landlord and Tenant 27th Edition in paragarph 1862 while dealing with surrender by operation of law states as follows : 1862. The principle of surrender by operation of law. The term
'SURRENDERby operation of law' or 'implied surrender' (there being no distinction) is the expression used to describe all those cases where the law implies a surrender from unequivocal conduct of both parties which is inconsistent with the continuance of the existing tenancy. Thus it is properly applied to cases where the owner of a particular estate has been party to some act having some object other than that of a surrender, but which object cannot be effected whilst the particular estate continues, and the validity of which act he is by law estopped from disputing. Such surrender is the act of law, and takes place independently of, and even in spite of, the intention of the parties. It is presumed to have preceded the act to which the tenant is party.'
(15) In the preseat case, the admitted facts are that neither late Lala Durga Prasad nor respondents I to 8 paid any rent to the landlady-respondsent No. 9 after 1st October, 1965. They also did not claim any rent from the plaintiff-appellant after September, 1966 for two years and acquiesced and allowed the plaintiff to pay the rent directly to respondent No. 9.
(16) The landlady-respondent No. 9 accepted the rent from the subtenant and treated him as a tenant and di.l not charge any rent from respondents I to 8. The conduct of respondents I to 8 amounts to an assent by the tenant to the acceptance of a new relationship between the landlady and the sub-tenant. Having acquiesced and allowed the sub-tenant to atom directly to the landlord, they are estopped from raising the plea that they are still the tenants of respondent No. 9. It was only in August, 1968 after two years, when admittedly the plaintiff and respoadent No. 10 dissolved the partnership firm that respondents I to 8 started reagitating the matter.
(17) In the circumstances, I feel that the conduct of respondents I to 8 between September 1966 and August, 1968 is unequivocally inconsistent with the continuance ofthe original tenancy. They neithir paid the rent to the landlady nor demanded rent from the sub-tenant and in fact let the sub-tenant pay directly tothe landlady, which the landlady accepted. This would amount to a case of implied surrender of the lease.
(18) The next point urged by learned counsel for the appellant is that once the Additional District Judge had come to a finding that appellant was a sub-tenant of defendants I to 8 as a partner of M/s. Mohinder Pal Jain & Co., he could not decline to give a declaration that the appellant was in lawful occupation of the premises. This he submits is, because the alternative prayer in the plaint is not that the plaintiff is in sole occupation but in lawful occupation of the premises. His occupation is lawful as he has been allotted these premises on dissolution of the partnership firm and the said allotment to one partner does not amount to sub-letting. In M/s. Kanhiya Lal Bal Kishan Das v. Labhu Ram 1971 RCJ 253, a Bemch decision of the court, it is stated :
'Afirm, it is will-known, is a compendious name of the partners constituting the firm. According to Section 4 of the Indian Partnership Act, 1932, persons who have entered into partnership with one another are called individually 'partners' and collectively 'a firm'. It would tharefore, follow that when firm Gokal Chand Jagan Nath took the premises in dispute on rent from the appellants, Labhu Ram who was one of the partners of the firm became along with the other partners a tenant in the premises. Sub-letting essentially entails the induction of a third person into the premises. The allotment of the shop to one of the partners of the firm upon its dissolution, cannot amount to subletting.'
(19) In my view,the allotment of the premises to the appellant on the dissolution ofthe partnership firm on 31st May/5th June, it968 does not amount to subletting.the landlady, however, would have aright to claim the rent from both the partners because the fact that the partners have mutually decided to dissolve the firm and to allot the firm to one partner Would not absolve them froi their liability vis-a-vis the landlady.
(20) In the circumstances. I hold that the dissolved firm M/s. Mohinder Pal Jain & Co. became the direct tenant of respondent No. 9 by virtue of the principle of implied surrender. Further, the plaintiff is in lawful, occupation of the premises. In the result, I allow the appeals, set aside the judgments anorders of the court below, but make no order as to costs. Appeal aliawed.