1. The suit property belongs in jenmam to Kannancheri Devaswam of which the Uralans are the plaintiff and the 3rd defendant. Plaintiff's predecessor and the 3rd defendant leased it to the 1st defendant for a period of 12 years under Ex. A on 10-8-1897. Plaintiff brought the suit to recover the property on behalf of the Devaswam. The Munsif dismissed the suit. The Subordinate Judge decreed it. The 1st and 3rd defendants appeal.
2. The first point argued is that the suit filed by the plaintiff (one of the Uralans) without consulting the 3rd defendant is not maintainable. It is true that, in any transaction which creates or destroys rights, all the Uralans must be consulted [V. A. Istoop v. V. K. Ayappan (1913) 16 IC 435 a case of demise; Chandu v. Kuttiyil Rayiru : AIR1922Mad2 a case of melcharth]. But this principle does not apply to suits, provided the other Uralans are also parties (Mariyil Raman Nair v. Narayanan Nambudripad ILR (1902) M 461; Kunhan v. Moorthi 20 MLJ 951 ). The decision in Savitri Antarjanttam v. Raman Nambudripad ILR (1900) M 226 was distinguished in the former of these cases and has scarcely any authority after the latter. The remarks at page 689 of Angamuthu v. Ramalinga Pillai : (1920)39MLJ685 in so far as they refer to suits are obiter. This is conceded by the counsel for appellants in reply. I hold that the suit cannot be dismissed for non-consultation of 3rd defendant provided it is otherwise maintainable.
3. The second point argued is that the suit is bad for want of notice to quit. Though the 1st defendant's tenancy under Ex. A, was only a tenancy for a term, it was converted into a tenancy from year to year by the payment and acceptance of rent after 1897 [see para. 3 (2) of the plaint which shows that rent was paid after 1897]. This is conceded by the respondent. The first respondent however, contends that the 1st defendant, having accepted by Ex. II, a renewal of the original lease by 3rd defendant only, cannot fall back on the tenancy from year to year. The Courts below found that Ex. II is invalid. ' That being so, the prior lease was not extinguished by Ex. II. It is true that the 1st defendant insisted on the validity of Ex. II in his written statement but the plaintiff repudiated it and as Ex. II has been proved to be invalid, the rights under the prior tenancy did not cease. Moreover, the 1st defendant's plea in para. 12 of the written statement. ' This suit which is brought by the plaintiff alone to recover possession under the prior lease is not maintainable.', shows that he meant to rely on his rights under the prior lease as a defence to the suit. The prior lease has not been surrendered or otherwise legally put an end to (see Ramunni v. Kerala Farma Valily Raja ILR 15 M 166 and Kunhuni Panikkar v. Raman alias Thiramump 10 LW 427. The respondent also contends that the clause ' you must give (me) the value of the Kuzhikoors and Chamayans...when, I am evicted at any time after the expiry of 12 years ' in Ex. A dispenses with a notice to quit. I do not agree with this contention. A proper notice to quit is therefore necessary.
4. The next question is whether Ex. C which was issued by the plaintiff alone is enough. It is true that, in England it has been held that one of several joint tenants may issue a notice to quit and put an end to a lease created by all of them (see Doe v. Chaplin 3 Taunt 119, 120; Doe v. Summereet IC and M 283 followed in Doe et Kindersly v. Hughes 7. M & W 139 Alford v. Vickery 1 B and Ad. 136. Apart from the fact that this rule has not been followed in India by the Bombay and Calcutta High Courts, as to which I express no opinion, it cannot apply to the present case where there is no joint tenancy. The Devaswam is the only owner of the property. It is represented by the Uralans both of whom must act to determine a tenancy lawfully created. None of the English cases is a case of trustees (see Cassim Ahmed Mollo v. Yusuf Haji Ajam Pepardi (1916) 34 IC 221 which is a case of joint receivers). 1 therefore hold that the notice Ex. C is not a valid notice. The other question argued, whether the notice is a sufficient notice (only 15 days being allowed for quitting the land) need not be considered.
5. The appeal is allowed and plaintiff's suit is dismissed with costs of 1st defendant throughout.
6. I am in full agreement , with my learned brother as to the necessity for a notice to quit and as to the invalidity of Ex. C which is the only notice given in the matter of the determination of the suit tenancy. This finding is sufficient to dispose of this second appeal. I own to some doubt on the proposition whether plaintiff was in law entitled to file his suit without consulting his colleague, since to adopt the language of Kunhan v. Moorthi 20 MLJ 951, the remedial rights to this case, viz., the right to eject 1st defendant would not accrue to the trustees until they as a body after consultation had signified their will to determine the lease of 1st defendant and had communicated that will to him. As there was neither such consultation nor communication the remedial right did not accrue and therefore on the principle laid down in that case, it would not be competent for plaintiff alone to sue. I prefer at present however, not to rest my decision on this point which is not necessary for the disposal of this appeal. I agree that the suit be dismissed with costs of 1st defendant throughout.