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Nanjappa Goundan Vs. Rangaswami Goundan - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1940Mad410; (1940)1MLJ200
AppellantNanjappa Goundan
RespondentRangaswami Goundan
Cases ReferredKrishna Shetti v. Gilbert Pinto
Excerpt:
- - this contention is clearly untenable. gilbert pinto (1919)36mlj367 ,where it is pointed out that in the absence of any special usage or custom affecting an agricultural lease, the principle of the sections which merely reproduce the well-established rules of english law are applicable to agricultural leases also as rules of justice, equity and good conscience......108(c) of the transfer of property act, the respondent was bound to secure quiet enjoyment of the leased property for the appellant and as minakshi demanded the arrears of maintenance due to her which, in default of payment, might have been collected by the sale of the leased property on which such arrears were charged, the appellant was entitled to protect himself from the threatened interruption to his enjoyment by paying the amounts due to her and deducting such payments with interest from the rents due to the respondent under section 108(g) of that act. i am of opinion that this contention, so far as it relates to the payment of rs. 215, is correct and must be accepted. it will be seen from the relevant dates already mentioned that the sum of rs. 215 represented arrears of.....
Judgment:

Patanjali Sastri, J.

1. The main question for determination in this second appeal is a short one and it arises on the following facts. The property in suit originally belonged to the respondent and his brother. It was sold to one Ramaswami Goundan subject to a charge for Rs. 100 per annum for the maintenance of one Minakshi, the widow of a deceased coparcener of the family. Ramaswami subsequently leased the property for an annual rent of Rs. 125 to the respondent for a term of five years commencing from 13th May, 1926, Ramaswami himself undertaking to pay the maintenance due to Minakshi. On 4th August, 1928, the respondent sub-leased the property to the appellant herein under Ex. A for the remainder of the term. Ramaswami was adjudicated insolvent sometime in 1928 and his interest in the property having been brought to sale by the Official Receiver in public auction, it was knocked down to the appellant as the highest bidder on 1st March, 1930, but the sale was completed by the Official Receiver executing the necessary conveyance (Ex. IV) only on 2nd December, 1930. In the meantime, however, Minakshi demanded payment of the arrears of maintenance due to her up to 21st January, 1930, that is, in respect of a period prior to the auction sale held by the Official Receiver and the appellant paid Rs. 215 to her on 27th April, 1930, in satisfaction of that claim. Similarly, he paid her another sum of Rs. 100 on 27th May, 1931, for maintenance which fell due on 21st of January, 1931. To the respondent's claim in this suit for the rents due under the sub-lease Ex. A, the appellant pleaded that he made these payments under the instructions and on account of the respondent and that, if these amounts and the admitted payment of Rs. 125 as advance rent for the first year of the sub-lease were given credit to, nothing would be found payable to the respondent by way of rent under Ex. A.

2. The learned District Munsif upheld this plea and dismissed the suit. On appeal, however, the learned District Judge held that it was not proved that the respondent had authorised or required the appellant to pay the maintenance due to Minakshi, and that the payments by the appellant must be regarded as having been made to protect his own interest as purchaser of the property and not qua tenant of the respondent. He therefore decreed the suit.

3. The appellant's learned Counsel assailed this decision on two grounds. First he contended that though Ex. A purports to be a sub-lease, it must in law be regarded as an absolute assignment of the lease to the respondent, as the rent reserved by it was the same as the rent reserved in that lease and it was for the entire residue of the term. It was therefore urged that the question must be viewed as one arising between the original lessor Ramaswami and the appellant, and as the former was undoubtedly bound to pay the maintenance allowance to Minakshi but neglected to pay, the appellant was entitled to pay it to her and to deduct it from the rent due. This contention is clearly untenable. It is no doubt true that in English Law an underlease for the whole residue of the term operates as an assignment but as pointed out by their Lordships of the Privy Council in Hunsraj v. Bejoylal Seal (1929) 58 M.L.J. 293 : L.R. 57 IndAp 110 : I.L.R. 57 Cal. 1176 , the law in India is different in this respect, having regard to the provisions of the Transfer of Property Act. No question of assignment can therefore arise.

4. It was next contended that under Section 108(c) of the Transfer of Property Act, the respondent was bound to secure quiet enjoyment of the leased property for the appellant and as Minakshi demanded the arrears of maintenance due to her which, in default of payment, might have been collected by the sale of the leased property on which such arrears were charged, the appellant was entitled to protect himself from the threatened interruption to his enjoyment by paying the amounts due to her and deducting such payments with interest from the rents due to the respondent under Section 108(g) of that Act. I am of opinion that this contention, so far as it relates to the payment of Rs. 215, is correct and must be accepted. It will be seen from the relevant dates already mentioned that the sum of Rs. 215 represented arrears of maintenance due in respect of a period prior to the auction-sale held by the Official Receiver, and when the amount was paid to Minakshi, the appellant had not obtained title to the property from the Official Receiver but held it only as a sub-lessee with about a year of the term still to run. That being the position, the respondent, though as between himself and his lessor Ramaswami he was not bound to pay the maintenance due to Minakshi, was, by reason of the covenant for quiet enjoyment under the sub-lease Ex. A, bound to pay the arrears due to her in a question with the appellant, as otherwise the property would have been brought to sale in enforcement of the charge held by her and the appellant's enjoyment would have been interrupted. I am therefore of opinion that as between the appellant and the respondent, the latter was bound to make the payments due to Minakshi within the meaning of Section 108(g) of the Transfer of Property Act and that such payments not having been made by him, the appellant was entitled to make the payments himself as he did and to deduct it with interest from the rents claimed by the respondent in this suit. This does not however apply to the payment of Rs. 100 which was made by the appellant after the sub-lease had expired and he had become the owner of the property.

5. The appellant's learned Counsel cited a decision of Pandalai, J., reported in Ishwara Shetty v. Ramappa Shetty (1934) 40 L.W. 545, as supporting this view. At first sight, it might appear that the case is distinguishable as the lessor there was under a liability as mortgagor to pay the claim of a third party, whereas here, as already observed, the respondent was not bound to pay either as between himself and Ramaswami or direct to Minakshi the amount of the maintenance due to the latter. But on a closer examination of the facts which are somewhat complicated, it will be seen that the lessee who paid off the mortgage payable by the lessor brought the suit to recover the money paid from the assignee of the reversion, and the ground of decision apparently was that, as between him and the lessee, he was bound to pay the mortgage amount by reason of the burden of the lessor's covenant for quiet enjoyment having passed to him with the reversion under Section 109, and the lessee was therefore entitled to recover the amount from him under Section 108(g). So read, the decision can be regarded as an authority in support of the appellant's contention.

6. The learned Counsel for the respondent argued that the lease in question here being a lease for agricultural purposes, the provisions of Chapter V including Section 108 are not applicable as provided in Section 117. But the reason underlying this exemption of agricultural leases is explained in Krishna Shetti v. Gilbert Pinto : (1919)36MLJ367 , where it is pointed out that in the absence of any special usage or custom affecting an agricultural lease, the principle of the sections which merely reproduce the well-established rules of English law are applicable to agricultural leases also as rules of justice, equity and good conscience.

7. The appeal therefore succeeds to the extent of the sum of Rs. 215 paid by the appellant to Minakshi on 27th April, 1930 and the decree of the lower appellate Court will be modified by the said sum being deducted from the respondent's claim as on that date. The parties will pay and receive proportionate costs throughout.

8. Leave granted.


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