1. The plaintiff is the appellant. The suit was filed by him for a permanent injunction restraining the defendant from interfering with his possession on the ground that he is a cultivating tenant in respect of the suit properties entitled to the protection of the Cultivating Tenants Protection Act, hereinafter referred to as the Act. The facts as now found by the courts below simply stated are as follows-
The plaintiff is the second son of one Bagavati Gounden. The defendant leased the suit properties to the plaintiff and his father sometime in the year 1950. There is no dispute that both those lessees were contributing their physical labour and, therefore, they are cultivating tenants within the meaning of the Act. On 20-5-1968, the plaintiffs father Bagavathi Gounden died leaving three sons, including the plaintiff, four daughters and his wife as his legal heirs. Sometime after the death of Bagavathi Gounden, except the plaintiff the other two sons, daughters and wife purported to convey their interest in the tenancy in favour of the defendant lessor. When the defendant, on the ground that the interest of some of the lessees have been surrendered to him by the assignment, tried to interfere with the possession of the plaintiff, it resulted in the filing of this suit. A number of points were considered by the courts below, but none of them survives for consideration in this second appeal except the question of the effect of the surrender by the two sons, four daughters and wife of their interest in the leasehold property. This question also involves a consideration, as to who are the cultivating tenants, who succeed the father, Bagavathi Gounden and what were their respective interests in the leasehold property.
2. "Cultivating tenant" is defined in the Act as including the heirs of a cultivating tenant. In Venkataswami Reddiar v. Sundaramurthi , a Division Bench of this court to which I was a
party held that in order to get the benefits of the Act, the legal representatives also should satisfy the condition of personal cultivation as required in the definition of cultivating tenant. In the decision in Sudalaimuthu v. Palaniyandavan the
Supreme Court had held that in the case of a joint family, if one of the members of a joint family contributes his labour that would sufice to hold that the family is entitled to the protection under the Act. Therefore, on the death of Bagavathi Gounden, his legal representatives were entitled to claim the protection of the Act, if any one of them satisfied that he had personally contributed his labour in the cultivation of such land. The plantiff himself as one of the members of the joint family had claimed that he was contributing his labour in the cultivation of the land and that is not disputed. Therefore, the legal representatives of Bagavathi Gounden are also cultivating tenants within the meaning of the Act.
3. The next question for consideration is whether one or more of the tenants could surrender their interest in the leasehold lands in favour of the lessor. The learned counsel for the plaintiff-appellant contended that in a case where one of the lessees surrenders his interest to the lessor, the lessees' interest is enlarged and the lessor does not derive any interest at all. According to the learned counsel either all the lessees should surrender the right in favour of the lessor or none at all. In other words, as a proposition of law, he submitted that one lessee cannot surrender his interest in the leasehold when the other lessees do not agree for the same. On the other hand, the learned counsel for the respondent submitted that there is no prohibition either in the Cultivating, Tenants Protection Act or the Transfer of Property Act or any other law prohibiting the surrender of the interest of: one of the lessees in favour of the lessor. Ac-cording to the learned counsel such a surrender is recognised in law in the decided cases. In such a case, it was further contended that the proportionate interest of the lessee is vested in the lessor and the lessor or the remaining lessees would be entitled to claim a partition of their respective rights. The point is very interesting. Though this is not directly decided by any decision, the various aspects decided in each of the cases go to show that the surrender of the interest of one of the lessees is valid and not prohibited by any of the provisions in the Act. There is nothing in the Cultivating Tenants Protection Act itself relating to the surrender of the interest of a cultivating tenant. So far as that is concerned, we have to look to only the Transfer of Property Act. Section 111(e) of the Transfer of Property Act provides that a lease of immovable property determines by express surrender, that is to say, in case the lessee yields up his interest under the lease to the lessor by mutual agreement between them. So far as the mutual rights of the lessees are concerned, the general law is clearly dealt with in Venkayya v. Venkata Subbarao, AIR 1957 Andh Pra
619. The following passage in the judgment clearly brings out the legal position-
"A lease is not a mere contract but is a transfer of an interest in immovable property, that is to say, of a right to enjoy the property, for a term in consideration of a payment in money or kind by the transferee to the transferor. The leasehold interest is, like any other interest in immovable property, capable of being inherited or transferred. Being an estate of inheritance, the interest of the lessee vests on his death, in his heirs, executors or legatees. The period of the lease need not be certain on the date of the lease itself. It is enough if it is fixed with reference to a future event which must happen and on the happening of which the lease will stand determined.
The period is 'certain' if it can be made certain on a future date, on the principle id certum est quod certum reddi potest. A lease for the lifetime of the lessor or lessee or of any other living person will he valid in law..... The fact That one of the essees predeceased the other does not entail a cutting down of the term of the lease and in the absence of a specific provision to that effect in the lease the legal representatives of the deceased lessee would be entitled to the benefit of the lease along with and during the lifetime of the surviving lessee. It is no doubt true that a joint tenancy with a right of survivorship might be created by the use of appropriate words in a grant or a lease, but there is no presumption in its favour."
The passage extracted above clearly shows that the interest of the father of the plaintiff Basavathi Gounden on his death was inherited by his legal representatives and they would be entitled to the benefits of the lease along with the plaintiff.
4. But the next question for consideration is whether the legal representatives or some of them could surrender their interest in favour of the lessor defendant. In this connection two decisions may be noted. One is the decision in Devu Subhana v. Badruddin Hussain, . In that case the lease was in favour of three
persons. One of them surrendered his interest. The lessor filed an application for delivery of joint possession of the leasehold property. The application was ordered. However, by consent of parties, the lands were divided into 2/3rds for the lessee and 1/3rd for the lessors for the purpose of cultivation. On ap appeal preferred to the High Court, the question for consideration was whether the surrender in favour of the lessor was valid and what was the effect. The learned Judges referred to Section 5 (3) (b) of the Bombay Tenancy and Agricultural Lands Act, 1948, which provided that a tenant "may terminate the tenancy at any time by surrendering his interest as a tenant in favour of the landlord." The learned Judges considered that the word 'interest' denotes that one of the several tenants can also surrender his share. An argument was advanced that under Section 111(d) of the Transfer of Property Act, a lease of immovable property is determined in case the interest of the lessee and the lessor in the whole of the property became vested at the same time in one person in the same right and that this showed that the Act contemplated surrender of the entire interest in the lease and not surrender of an interest. In other words interest of one of the lessees could not be surrendered. The learned Judges considered this argument and held that though the clause dealt with the surrender of the entire interest of the lessees, there is no prohibition in that clause that one of the tenants1 or lessees of a joint tenancy cannot surrender his right. With respect to the learned Judges, I am in entire agreement with this reasoning. It is also quite reasonable and just to permit one of the lessees to surrender his own interest because otherwise it will be putting him under an obligation which he does not want to hold, For instance, in a case where the lease is in favour of two persons and one of them does not want to continue the lease further, the other lessee cannot insist on his being a co-lessee with him. The lessor also is not bound to relieve one of the lessees. Therefore, the tenant must be in a position to surrender his interest in favour of the lessor. A similar view was also taken by the Nagpur High Court in Hindu v. Vithoba AIR 1931 Nag 159. In that case, the lease was in favour of a Hindu joint family and some of the major members of the family executed a deed of surrender of their 2/3rds share. The lessor plaintiff filed the suit for possession of the holding to the extent of the major son's share surrendered to him. It was argued that the surrender of unascertained and undefined portion of the holding by some of the tenants is not valid in law. Following the earlier decision in Shersingh v. Kalusingh, AIR 1925 Nag 124, the court held that one of two or more co-tenants is at liberty to transfer to the landlord the rights which he holds in the land against the landlord. Ultimately, the decree for partition as claimed in the suit on the basis of the surrender was granted. The learned counsel for the appellant relied on a decision of Ramamurti, J. in Gopaldas Family Trust Estate v. Michalswami 1964-2 Mad LJ 242 and contended that one of the lessees cannot surrender his interest in favour of the lessor. It is true in that decision, the learned Judge has held that in case of plurality of lessees, the surrender must be by all the lessees in favour of the lessor. In support of this view, the learned Judge has relied on Leek and Moorlands Buildings Society v. Clark 1952-2 QBD 788. In the English case cited, the lease was in favour of the husband and the wife and it was held that one of the joint lessees cannot surrender the rights held jointly before the full period of lease has run out and the lessee who has not joined in the surrender was not estopped from asserting his rights as a joint tenant. It is seen from the facts in the case before Ramamurti, J. that surrender by one of the lessees was of the entire interest and this surrender was relied on to evict the other lessee as well, as if one of the lessees can surrender the entire lease. The learned Judge held that one of the lessees cannot surrender the entire right including the others' and if there is to be a valid surrender and termination of the entire lease, all the lessees had to join. Apart from this distinction I am also unable to agree that the decision in Leek and Moorlands Building Society v. Clark 1952-2 QB 788 could be applied in India. As pointed out by the learned Judges of the Bombay High Court in Devil Subhana v. Badruddin Hussain , under the En-glish law if one of the joint tenants dies or ceases to exercise his interest, the other joint tenant takes the whole of the interest, by the principle of survivorship. But the law in our country is different. In such a case unless in the grant or lease itself, there are express words to say that the right will go by survivorship as held inVenkayya v. Subha RAO AIR 1957 Andh Pra 619, the right of the deceased would devolve on his legal heirs. The decision in Leek and Moorlands Building Society v. Clark 1952-2 QBD 788 is, therefore, not applicable. I am also unable to ageee with the learned Judge that the decisions in Devu Subhana v. Badruddin Hussain. and Rindu v. Vithoba AIR 1931 Nag 159 are in any way distinguishable. The decision of Ramamurti. J. was referred to by a Division Bench of this court in Murugayya Anpurar v. Nataraia Iyer (1969) 1 Mad LJ 503. In that case also the surrender by one of the lessees was put against the other lessee, who did not surrender, as if one of the lessees could surrender the entire leasehold right. Relving on the decision of Ramamurti, J. they held that there was no valid termination of the entire tenancy. But there was no occasion for them to consider whether one of the lessees can himself surrender his own interest leaving the interest of the other levees intact. That was the question for consideration here and for the reasons set out earlier, I am of opinion, that one of the lessees can surrender his interest in the lease-hold in favour of the lesor in which case the lessor will be entitled to call for partition of that interest alone.
5. The next question that arises for consideration is what was the share that was surrendered in favour of the defendant. As already noticed the original lease was in favour of the plaintiff and his father. On the death of the plaintiffs father, only the interest of his father, would have devolved on his legal heirs. Since there is no evidence to show that the plaintiff and his father were holding interest in any particular portion, we have to assume that both were entitled to the interest in equal moieties. Therefore, as a lesse of the original lease the plaintiff would be entitled to a moiety. The plaintiff is also one of the legal heirs of his father and as such legal heir, he will be entitled to 1/8th share in the father's half share. Thus the plaintiff will be entitled in his own right to one half share in the leasehold and another 1/16th share as the legal representative of his father. Thus, he will be entitled to 9/16th share in the leasehold property.
6. The suit has been filed for an injunction but the parties agree now that instead of driving them for a suit for partition, this court may pass a preliminary decree for partition.
7. Accordingly, there will be a preliminary decree declaring the plaintiff's leasehold right in 9/16 share and for partition of the suit properties into 9/16th share and 7/16th share and allotment of the same to the plaintiff and defendant respectively. The plaintiff will deliver possession of 7/16th share to the defendant. In respect of the 9/16th share retained by the plaintiff, he will be entitled to the rights as a tenant under the Cultivating Tenants Protection Act.
8. It is made clear that till the date of partition and delivery of possession to the defendant of the 7/16 share the plaintiff will pay the rent for the 9/16 share and mesne profits for 7/16 share from the date of death of the plaintiffs father. The mesne profits will have to be determined only on the basis of the quantum of rent payable to that portion of the share.
9. There will be no order as to costs.