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Ramachandra Prabhu and anr. Vs. Mahadevi Alias Kunhi Thamburatti Styled as Manaviyathan Valia Thamburatti of Kozhikkot Ambadi Kovilagam and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai
Decided On
Reported inAIR1946Mad57; (1945)2MLJ416
AppellantRamachandra Prabhu and anr.
RespondentMahadevi Alias Kunhi Thamburatti Styled as Manaviyathan Valia Thamburatti of Kozhikkot Ambadi Kovila
Cases ReferredKorapalu v. Narayana
Excerpt:
- .....of rent due. the recovery of possession was sought on the ground that the tenant denied the landlord's title and there was in consequence a forfeiture of the tenancy. the district munsiff held that the lease evidenced by ex. p-6 dated 3rd december, 1898, was governed by the transfer of property act and that, as there was no notice from the landlord showing his intention to terminate the lease which is required under section 111(g), no forfeiture was incurred, and therefore he gave a decree only for rent. but, on appeal, the subordinate judge decreed the eviction finding that forfeiture has been worked out by the notice ex. p-8, by the tenant in answer to the landlord's notice ex. p-7. he took the view that the lease was not governed by the transfer of property act, having been.....
Judgment:

Chandrasekhara Aiyar, J.

1. S.A. Nos. 1308 and 1324 of 1944 and C.M. S.A. No. 228 of 1944. S.A. No. 1308 of 1944 has been preferred by the defendants 12 and 13 and S.A. No. 1324 of 1944 by the second defendant. The second defendant stands in the shoes of the original lessee Raricha Mooppan. Defendants 12 and 13 hold subordinate interests carved out from the original lease Ex. P-6, having become entitled thereto under several transactions; in fact, they are sub-kanomdars, the original kanom having been created in favour of one Venkataramayyar by the tenant under a deed dated 10th January, 1908.

2. The suit was instituted by the jenmis for recovery of possession and for arrears of rent due. The recovery of possession was sought on the ground that the tenant denied the landlord's title and there was in consequence a forfeiture of the tenancy. The District Munsiff held that the lease evidenced by Ex. P-6 dated 3rd December, 1898, was governed by the Transfer of Property Act and that, as there Was no notice from the landlord showing his intention to terminate the lease which is required under Section 111(g), no forfeiture was incurred, and therefore he gave a decree only for rent. But, on appeal, the Subordinate Judge decreed the eviction finding that forfeiture has been worked out by the notice Ex. P-8, by the tenant in answer to the landlord's notice Ex. P-7. He took the view that the lease was not governed by the Transfer of Property Act, having been granted for agricultural purposes.

3. The second defendant, who represents the interest of the original tenants, and defendants 12 and 13 who are sub-kanomdars from him have preferred these two appeals. Mr. K. Kuttikrishna Menon stated that he was not pressing his second appeal, S.A. No. 1324 of 1944. This means that the original tenant or the person standing in his shoes is'prepared to abide by the decree of the lower appellate Court holding that a forfeiture has been incurred. If the tenancy itself is forfeited in this manner, whether persons in the position of defendants 12 and 13 who hold derivative interests under the tenant by way of kanom or assignment, can be heard to say that their interests are not affected will depend upon the principle of law embodied in Section 115 of the Transfer of Property Act, though the Act will not in terms apply to this case in view of the finding of the lower Court. But it is unnecessary to pursue this point further as the objection was not seriously pressed by Mr, Govinda Menon.

4. The only question that remains is whether the denial has worked out forfeiture, as held by the Subordinate Judge. It was argued for the appellants that the denial in Ex. P-8 did not work out any such forfeiture because it cannot be said to be a denial of the landlord's title in any matter of ' record ' as the word has been understood and interpreted by the Judicial Committee of the Privy Council. It is clear law that, in cases in which the Transfer of Property Act does not apply, clear and unambiguous denial of the landlord's title would be enough to worlc out a forfeiture and to support a suit in ejectment of the tenant and that it is not necessary for the landlord to do, something showing an intention: to determine the lease as the result of the denial. There can be.no doubt that Ex. P-8 contains and constitutes such a denial. Is it necessary that it should be contained in some ' record 'such as a judicial proceeding? It is possible having regard to some antique technicalities peculiar to Real Property law that in England in ancient times some qualification about the place where the denial is to be found was considered necessary. Whether it should be insisted on at the present day when most of these technicalities have been wiped away is itself a matter of doubt; but whatever that may be, I see no ground, and there is really no authority, for holding in India that, before there can be a forfeiture, the denial of the landlord's title to work out forfeiture of the tenancy must be embodied in a judicial proceeding. I am not prepared to read Broomfield j.'s observations in Rachotappa Ishwarappa v. Konher Annarao I.L.R.(1934)59 Bom. 194 as imposing any such condition, or Maharaja of Jeypore v. Rukmini Paltamahdevi (1918) 36 M. L.J.543 : L.R. 46 IndAp109 : I.L.R. 43 Mad. 589 as involving any such position. In the Privy Council case, denial before the suit was not a denial of the landlord's title but a denial of the terms of tenancy as set up by the landlord. The denial here relied, on as working out a forfeiture was a denial of the title itself. Padmanabhayya v. Ranga : (1910)20MLJ930 Mad was a case where the denial was a notice before the institution of the suit and this was held enough to work out the forfeiture. In the later decision in Korapalu v. Narayana (1912) 53 M.L.J. 315:1.L.R.38 Mad. 445 this particular question was not considered, though criticism was directed by Sadasiva Aiyar, J., against the view that in such a case the landlord had to elect between one of two courses.

5. It was objected that it was not open to the tenant to raise the question now as they had not in their written statement pleaded anything as to Ex. P-6 entailing forfeiture of tenancy. The objection is however groundless not merely because both the Courts have allowed the tenant to raise the point about the insufficiency of Ex. P-6 to bring about any such result but also because it is a pure question of law which involves no further investigation of facts.

6. The result is that both the second appeals Nos. 1308 and 1324 of 1944 are dismissed with costs of the first respondent. C.M.S.A. No. 228 which arises out of the renewal application must also be dismissed, but without any order as to costs. No leave.


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