Frederick William Gentle, C.J.
1. This is a Letters Patent Appeal from the decision in second appeal of Shahabuddin, J. The subject-matter is four items of landed property to which the Malabar Tenancy Act (hereinafter called ' the Act ') applies. The property had been leased by the jenmi to the Peralikunnath tarwad ; at the end of the term of the lease (whenever it may have been), the lands were thereupon held upon a tenancy from year to year ; on May 15, 1912, the tarwad sub-leased the property to defendants 2 to 5, who assigned their interest to the first defendant, who, in turn, sub-let item 4 of the four items of property to defendants 6 to 12; the tarwad fell into arrear with the rent due to the jenmi, who assigned those arrears to the plaintiff; he obtained a decree for the amount of those arrears and, in execution of his decree the rights of Peralikunnath tarwad were sold and purchased. by the plaintiff; whereupon, in effect, he stood in the shoes of the tarwad. In the suit in the Court of the District Munsiff of Walluvanad, out of which this appeal arises, the plaintiff claimed from defendants 1 to 12 possession of the four items of property and for arrears of rent and mesne profits. The suit was decreed, possession being directed to be given upon the plaintiff paying some prescribed amounts by way of munpattom and for improvements. An appeal, by the first defendant, to the Court of the Subordinate Judge of Ottapalam, was dismissed, but the amount payable for improvements by the plaintiff was increased. The second appeal by the first defendant to this Court was dismissed by Shahabuddin, J. No appeal was preferred by defendants 2 to 12. This is an appeal by the first defendant alone.
2. It was not suggested that the original lease contained a provision by which the demise became terminated or forfeited upon the lessee sub-letting the property or any part of it or upon rent falling into arrear.
3. Prior to instituting the suit, the plaintiff demanded surrender of possession of the property ; the first defendant informed the plaintiff that he was ready and willing to surrender possession if he were paid for munpattom and improvements, which amounts were not paid by the plaintiff. Those two matters are pleaded in the plaint and in the written statement of the first defendant respectively ; in his written statement, the first defendant denies any demand was made upon him for surrender of possession and he alleges that he was given no registered notice by the plaintiff. In his additional written statement, the first defendant, alleges that he is entitled to a permanent right (or fixity of tenure) to the property pursuant to the Act (Section 10 of which is the relevant provision). The plaint does not allege that, prior to the suit, the tenancy had been duly determined by notice to quit given by the plaintiff. In the trial Court, the suit was treated as if the plaintiff was the lessor and the defendants were the lessees, in the appellate Court and before us, as if the first defendant was the lessee of the plaintiff lessor.
4. In the Courts below and in second appeal to this Court the questions arising appear to have been considered from the aspect whether the first defendant was a' cultivating verumpattamdar ' as defined by Section 3(w)(o) of the Act and in respect of whom Section 14 applies. In substance, the findings were that since the first defendant had sub-let item 4, of the four suit items of property to defendants 6 to 12 he was not cultivating the whole holding and consequently was not a cultivating verumpattamdar entitled to the benefits conferred by the Act, including fixity of tenure prescribed in Section 10.
5. It is common ground that the property in suit is agricultural land. Section 117 of the Transfer of Property Act expressly excludes the provisions of Sections 105 to 116 of that Act from application to leases for agricultural purposes, except in circumstances prescribed in Section 117, which do not exist in the present instance. It was, however, held by a Full Bench of this Court in Krishna Setti v. Gilbert Pinto (1918) 36 M.L.J. 367: I.L.R. Mad. 654 that the principle embodied in the excluded sections apply to agricultural leases. At page 660 of the report, Sir John Wallis, C.J., observed in his Judgment, with which Napier, J., and Kumaraswami Sastri, J., agreed as follows:
The fact that agricultural leases such as this one are excepted from the operation of Sections 105 to 116, Transfer of Property Act does not, in my opinion affect the present question. The Act was framed by eminent English lawyers to reproduce the rules of English law, in so far as they are of general application and rest on principle as well as authority, and its provisions are in my opinion binding on us as rules of justice, equity and good conscience, when we have to deal with agricultural leases in the absence of any special reason for not applying them. The legislature wisely, in my opinion, if I may say so, has refrained from making these sections applicable proprio vigore to agricultural leases for fear of unnecessarily interfering with settled usages which it is undesirable to disturb. But in the absence of special reasons, there is no ground for applying a different rule in the cases of agricultural leases and there are many decisions to that effect.
6. The above decision and the principles laid down by it have been followed in this Court on subsequent occasions, for instance, in Umar Palaver v. Dawood Rowther (1918) 36 M.L.J. 367 : I.L.R. Mad. 654 and in Bheema Bhatta v. Narayana Bhatta (1946) 2 M.L.J. 45 (Short Notes).
7. One of the principles which the Full Bench decision of this Court, cited above, laid down should have application in respect of an agricultural lease, is that the lease must be determined by some prescribed notice or at any rate by reasonable notice, that is to say, a notice giving a reasonable time to the tenant to vacate his holding. At the date of the institution of the suit, out of which this appeal arises, the tenancy was one from year to year, commencing from May 15, since it was upon that date that the original lease for years was granted, and when the subsequent tenancy from year to year commenced after the termination of the term of years, and that date would be the one upon which the yearly tenancy would determine.
8. It is convenient at this juncture to make some observations with regard to a provision of the Malabar Tenancy Act. It would seem that it has been generally thought and believed that Section 14 of the Act confers upon a lessor of land, to which the Act applies, a right to recover possession of the holding immediately upon the happening of one or move events specified in the section. The relevant provisions of Section 14 are that:
No suit for eviction of a cultivating verumpattamdar from his holding shall lie at the instance of his landlord except on the following grounds:
(1) denial by the tenant of the landlord's title ;
(2) wilful waste committed by the tenant;
(3) non-payment of rent;
(4) collusion with a stranger to encroach on the holding or part of it adversely to the landlord ;
(5) the holding being required by the landlord for his own cultivation, or for that of any member of his family, or for
(6) building purposes ;
(7) failure by the tenant to pay an advance of rent or to give security when directed so to do by a Court, pursuant to Section 13(3).
9. A proviso to Section 14 limits eviction to the part of the property encroached upon or required for building under Clauses (4) and (6).
10. Section 14 does not, in my view, confer upon a landlord any right to obtain eviction either upon the happening of the events specified in it or in any other circumstances. It provides that no eviction shall lie except upon the grounds specified in the section. The section confers no right whatever upon the landlord ; it does confer rights upon a tenant inasmuch as he can resist a claim for eviction brought by the landlord save when the claim is made on a ground set out in Section 14; for instance, it would seem, that upon expiration by effluxion of time of a term of years of the land to which the Act applies, the landlord being unwilling for the tenant to remain, so that a tenancy from year to year, after the expiration of the term of years, does not arise, a suit for possession could be resisted by the tenant in the absence of the landlord being able to show the existence of one of the grounds Nos. 1 to 7 contained in the section. Section 14 does not change, or in any way interfere with, the ordinary law, save to the extent to which it provides protection to the tenant. Before a landlord can sue for eviction of a tenant or for possession of the land occupied by the tenant, he must terminate the tenancy. That is done either by effluxion of time or by determination of a lease providing for a forfeiture or by a notice to quit in accordance with law. Section 14 in no way interferes with those provisions. Unless and until a tenancy or a lease is determined, a landlord is not entitled to obtain from a Court an order for eviction or possession.
11. In paragraph 12 of the plaint, it is alleged that possession of the suit property together with mesne profits, had not been given in spite of several demands made to the defendants, both directly and through others, that they should surrender possession of the property. As already pointed out, it is denied by the first defendant that any demand was made by the plaintiff upon him, and paragraph 7 of the written statement, containing the denial, goes further by alleging that no registered notice of any kind had been sent to him. A demand for possession of immoveable property occupied by a tenant is not a notice to quit; in the form in which the allegation is made in paragraph 12 of the plaint, it corresponds to the plea which one finds in a plaint in a suit on a promissory note, that payment has not been made in spite of repeated demands. Apart from the allegation of a demand or demands for possession, it is not alleged anywhere either that notice to quit, so as to terminate the tenancy, had been given or, indeed, that the tenancy or occupancy right had ever been determined. Since the lease date is May 15, as pointed out previously, a notice terminating the tenancy, which clearly was one from year to year, must expire on that day, whatever period of notice was required, whether six months or a less period is necessary in a notice to quit terminating an agricultural lease. No such notice was ever in fact given.
16. In the course of argument, learned counsel for the plaintiff-respondent contended that, since the first defendnat had stated his willingness to surrender the holding, thereby he had agreed to give possession of it to the plaintiff and he could not now rely upon the absence of any notice terminating the tenancy or of the failure to terminate the tenancy by any means whatever. A statement by the first defendant to the plaintiff, that he had always been ready to surrender possession of the four items of property if he were paid munpattom and the value of improvements, is set out in paragraph 7 of his written statement. That statement was not a bare acknowledgement, of any right of the plaintiff, but it was made contingent upon the plaintiff paying the munpattom and improvements, in which event the first defendant was prepared to give up occupation of the holding. Those sums were never paid. The Statement in my opinion, was no more than an offer which could not have effect save upon its acceptance by the plaintiff and his making the payment required ; the payment not having been made there was no acceptance of the offer, consequently, there was no agreement between the parties entitling the plaintiff to possession and there was no obligation upon the first defendant to afford possession.
17. During the latter part of his argument, learned counsel for the plaintiff disclaimed that his client was seeking to exercise any right, which might at one time thought to have been given by Section 14 of the Act. He contended that the claim to possession was made solely by reason of the position between the parties of landlord and tenant, and that the contractual relationship between them had been determined by the demand for surrender of possession. Previously, I have pointed out that there was no termination of the contractual relationship and the tenancy between the parties. Learned counsel further contended that the absence of any notice to quit, was not raised in any of the Courts below or in second appeal, and consequently this Court, in Letters Patent Appeal, cannot hear the first defendant upon that point and he is not entitled to raise it and must be prevented from raising it,
18. In support of the contention that this Court cannot entertain the argument relating to the failure to give, and the absence of, a notice to quit, reference was made to some authorities. In Venkatappier v. Ramaswami Iyer (1919) 10 L.W. 137 it was pointed out that Order 41, Rule 2 of the Code provides that
the appellant shall not, except by leave of the Court, urge or be heard in support of any ground of objection not set forth in the Memorandum of Appeal but the appellate Court shall not be confined to the ground set forth.
19. With reference to that provision, it was observed in the judgment of the Division Bench that it was not thought that the Court was bound in second appeal to do more than decide whether the lower appellate Court's decision was wrong. It is to be noticed that there is no suggestion that the appellate Court, in second appeal, could not entertain a ground not set forth in the memorandum of appeal; in any event, that is not the position which arises in the present instance, since the absence of notice to quit is one of the grounds contained in the memorandum of appeal in this Letters Patent Appeal. In Muthu Reddi v. Muthuvenkatapathi Reddi (1919) 10 L.W. 137 and in Raman Menon y. Secretary of State for India in Council (1924) 20 L.W. 433 the plaint expressly alleged notice to quit had been given. The correctness of that allegation, in each case, was not denied ; but in appeal it was sought to be challenged. In the former case, it was observed at page 173 of the report that in these circumstances, the appellants could not put forward such a contention. for the first time. In the other decision, Krishnan, J., observed no more than that, ordinarily, an appellant should not be allowed to take a point which had not been taken in the first Court. In my view, none of the decisions cited can in any way prevent a point of law being taken by this defendant in appeal which was not taken either at the trial Court or in the lower appellate Court or in second appeal.
20. There are decisions of this Court to which the learned Government Pleader, appearing for the appellant, referred. In Abdulla Ravuttan v. Subbarayar I.L.R.(1878) Mad. 346 it was held that it was competent to the Court to entertain an objection in second appeal which had not been raised earlier. In Subbarayudu v. Narasimharao : (1924)47MLJ558 , it was observed in judgment of the Division Bench delivered by Spencer, J., at page 561 as follows:
It had been made clear in two authorities cited, that when a plaintiff seeks to eject a defendant from possession on the ground that the latter is his tenant whose tenancy has been terminated, he must prove not only that the defendant is his tenant as alleged, if that is denied, but also his right to eject. In order to prove a right to eject, he must necessarily show that the tenancy is a terminable one and has been validly terminated. This onus is. unaffected by any defence of permanent rights of occupancy that the defendant may set up but fails to prove. The principle that in a suit for ejectment the plaintiff must first prove his right to eject before the onus is shifted to the defendant to prove that he has a permanent right of occupancy has been re-affirmed.
21. The decision last mentioned is directly in point in the present instance. The first defendant asserted permanency of tenure, or, as it is called in Section 1 o of the Act ' fixity of tenure.' But, nevertheless, the plaintiff, as landlord, had to accept and discharge the burden of establishing that he was entitled to possession of the premises by reason of the termination of the tenancy. He did not establish termination of the tenancy and it has not been determined. It must follow that he has not shown even prima facie case for an order being given in his favour to evict the first defendant. The absence of notice to quit and of termination of the tenancy goes to the root of the plaintiff's claim for possession, and when that has neither been alleged nor established, in my view, it destroys the right, if ever there was one, for the plaintiff to succeed in his suit and to recover possession. Indeed, he never could have had a right to possession at all, and the plaint which does not plead termination of the tenancy, which undoubtedly and admittedly did exist, does not disclose any cause of action.
22. In my view, the appellant should not be prevented from raising now, what he did not do below, the point regarding termination of the tenancy, since that necessity is a condition precedent to the plaintiff succeeding. The tenancy was not determined, and the plaintiff in consequence is not entitled to an order for possession. For the reasons given, in my opinion, this appeal must be allowed and the decree of the trial Court set aside. As regards costs, since the appellant has succeeded upon a point not heretofore taken, it would not be just to award any costs to be paid to him at the expense of the unsuccessful plaintiff respondent.
22. I entirely agree.