1. This is a petn. by the pltf. to revise the order of the Subordinate Judge, Kumbakonam, dismissing his suit, S. C. S. No. 278 of 1948.
2. The suit was for arrears of rent. Govindammal, the owner of the properties, leased them to Periaswami Padayachi, the deft. for a term of 3 years commencing from 7-7-1945. On 30-10-1946, Govindammal granted a second lease of the properties in favour of one Koorathalwar for 10 years. It will be noticed that the currency of the second lease partiallyoverlaps the currency of the first lease. It appears that on 8-11-1946 Koorathalwar issued a notice to Periaswami Padayachi informing him of the lease in his favour. On 7-1-1947, when both these leases had yet sometime to run, Govindammal granted a usufructuary mtge. of the properties in favour of the pltf. Thereafter, on 28-1-1947 Govindammal sent a notice to Periaswami Padayachi, the original lessee, informing him of the usufructuary mtge. that she had created. On 31-1-1947 the pltf. too sent a similar notice. On 15-9-1947 the pltf. sent a second notice through a vakil & as the rent he claimed was not paid, he instituted the action out of which the present revision petn. arises.
3. Periaswami Padayachi pleaded that on receipt of the pltf's. notice, he informed him that he was willing to pay him the arrears of rent, provided the pltf. would indemnify him against loss arising from the claims of Kurathalwar, that the pltfs. failed to comply with this requirement A therefore he paid the amount to Koorathalwar & that the pltf. is, therefore, not entitled to recover any rent from him.
4. The learned Subordinate Judge dismissed the suit on the ground that the deft. had never attorned to the pltf., that the proper remedy of the pltf. was to file a suit for possession & mesne profits against his mtgor. & that he could not seek to establish his title on the mtge. deed in a small cause suit.
5. The argument of Mr. T.S. Venkatarama Iyer, the learned counsel for the applt. (petitioner?), was that Koorathalwar was merely a subsequent lessee of the properties, that the subsequent lease would not entitle him to collect the rent from Periaswami Padayachi the earlier lessee & that he being the mtgee. was the proper person entitled to receive the arrears of rent from Periaswami. The reply on the other side was that the lease in favour of Koorathalwar operates as an assignment of the reversion, that this entitles him to recover the rent from the earlier lessee & also to possession of the properties on the termination of the earlier lease & that it is only subject to these rights, which Govindammal had already created, that the usufructuary mtge. will take effect,
6. The English law on the point is stated in Halsbury's Laws of England, Vol. 20, p. 81,as follows :
'After a lease has been granted, another lease of the same premises is sometimes granted, the term being either concurrent with or subsequent to that of the existing lease. A concurrent lease, provided it is made by deed, operates as a grant of the reversion upon the existing term. If the concurrent term is equal to or exceeds the residue of the existing term, the concurrent lessee is entitled to the rent for the whole of such residue, & afterwards to possession for the remainder (if any) of his own term. If the concurrent term is less than the existing term, the concurrent lessee is entitled to the rent during his own term.'
7. Of the English decisions cited, the earliest is Wordsley Brewery Co. v. Halford, (1904) 90 L. t. 89. The facts of that case were these. One Mrs. Ann Whiting had granted a lease from a year to year in favour of one Halford. Subsequently, Mrs. Whiting granted a lease for 14 years in favour of a brewery company called Wordsley Brewery Company. Thereafter Mr. Whiting, acting as the agent of his wife, issued a notice to Halford to vacate the premises. It was held that the person who should have issued the notice was the Brewery Company & that the notice on behalf of the original lessor was bad. Lord Alverstone C. J. delivering judgment of the Ct. stated 'The grant of the lease, therefore, passes the reversion, & not merely the attornment.' On the basis of this decision, it was argued that the lease to Koorathalwar passed the reversion & entitled him to collect the rent from the earlier lessee, Periaswami Padayachi.
8. This decision has been followed in this Ct. in Manickam Pillai v. Ratnasami Nadar, 33 M. L. J. 684 : A. I. R. 1919 Mad. 1186. In that case, when a tenancy from month to month was outstanding, properties were leased for a term of 20 years in favour of the pltf. The pltf. issued a notice to quit & sought to eject the earlier tenant from possession. It was held that it was competent to the pltf. to do so. The decision in Wordsley Brewery Co. v. Halford, (1904) 90 L. T. 89 was referred to & the learned Judges stated :
'We must adopt this rule unless the Indian Law under the Transfer of Property Act is dearly different, Although the matter is not free from difficulty we are inclined to think that the provisions of that Act are not inconsistent with the English rule.'
In Rathnaswami v. Nagaraja, : AIR1938Mad100 , the decision in Manickam Pillai v. Ratnasami Nadar, 33 M. L. J. 684 : A. I. R. 1919 Mad. 1186 is referred with approval and followed :
'Under the English law it is open to a landlord to create concurrent leases, that is, he can execute a lease to-day for a term & to-morrow he can execute another lease for another term to run from the date on which he executed the latter lease. Such a lease has always been held to be valid & in law would operate as an assignment upon the existing term.... There is nothing to preclude the application of this principle to India & it has been adopted by the Indian High Courts -- Vide Manickam Pillai v. Ratnasami Nadar, 33 M. L. J. 684 : A.I.R. 1919 Mad. 1186. Therefore, the question is, 'would Ex. A be a valid lease according to the Transfer of Property Act?' It is conceded that it is. If Ex. A had mentioned simply that a lease of the lands which were also the subject-matter of the prior lease is being granted that would in law without anything more operate as an assignment of the reversion & entitle the lessee under thelatter lease to recover the rent clue & payable under the former lease.'
Both these are Bench decisions & hold the field. It follows that by virtue of the lease in his favour Koorathalwar was the person entitled to recover rent from Periaswami Padayachi & the right of the pltfs. would be only to proceed against Koorathalwar. The pltf.'s suit was therefore, rightly dismissed. Koorathalwar was not made a party in the Ct. below. So I was asked to remand the suit in order to give the pltf. an opportunity to implead this Koorathalwar. I do not feel disposed to do so, because the claim against Koorathalwar for the period covered by the suit is now time-barred.
9. In the result, the revision petn. fails & is dismissed with costs.