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Manikkam Pillai Vs. Rathnasami Nadar and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in43Ind.Cas.210
AppellantManikkam Pillai
RespondentRathnasami Nadar and ors.
Cases ReferredSee Wordsley Brewery Co. v. Halford
Excerpt:
transfer of property act (iv of 1882), sections 105, 106, 101 - landlord and tenant--notice to quit, term lessee, whether can give--lessee in possession--monthly tenancy 'all the rights' in section 109, meaning of--'transferee of any part of interests,' meaning of--trustees--delegation of powers--managing trustee, right of, to act for co-trustees trusts act (ii of 1882), section 47, 48. - - see foa on landlord and tenant, 4th edition, page 163, and woodfall on landlord and tenant, 19th edition, page 408. where the landlord had given a 14 years' lease of his premises in the possession of a yearly tenant to a new lessee, it was held that the new lessee was the proper person to give the notice to quit and the notice given on the landlord's behalf was held to be bad in law. 89, we must..........in english law it is treated as an assignment of the reversion when the property is already in a lessee's possession. it was also argued that the rights referred to in section 109 are the rights mentioned in section 105 and no more. but the words used are all the rights' and the expression is very comprehensive. there does not seem to be any reason why the words should be held not to include the right to recover possession by terminating the tenancy of a previous lessee by giving the necessary notice to quit. that is one of the lights of the lessor 'as to the property' transferred. prima facie a person entitled to possession should have the right to reduce the property into possession. to hold in favour of the appellant's argument will lead to the anomaly of having to hold that a.....
Judgment:

1. Two points have been raised before us by the appellant in this case: (1) that Exhibit A, the muchilika given by the plaintiff, is not valid as, it was agreed to only by one of the trustees of the plaint temple and not by the other; (2) that the defendant has a monthly tenancy apart from the lease, Exhibit II and that it has not been properly terminated, as the notice to quit given to him was not by his lessors or on their behalf but by the plaintiff himself and in his own name.

2. On the first point we agree with the District Judge that the muchilika, Exhibit A is valid and binding on the temple as it was taken in accordance with the usual practice of the temple by the managing trustee in the names of both the trustees. Though the ordinary rule is that when there are more trustees than one, all must join in the execution of the trust and that one trustee cannot delegate any of his duties to his co-trustee, yet the delegation in the regular course of business is not improper. Compare Sections 47 and 43 of the Indian Trusts Act, which state the principles though they do not apply to the present case. As it is shown that in the ordinary course of business, the leases of the plaint temple properties were arranged by the managing trustee on behalf of both the trustees, the muchilika Exhibit A executed in accordance with that practice, the other trustee not objecting, must be held to be valid.

3. On the second point, we are unable to agree with the District Judge that the defendant's position was that of a tenant-at-will liable to be ejected without notice. His new lease Exhibit II is no doubt invalid, and, therefore, it did not alter or affect his previously existing rights, if any, in the property. It is shown that the defendant has been in occupation of the plaint property for some years before suit paying rent to the trustees at a monthly rate, though payment was made for convenience in a lump sum apparently once a year. He came in originally under a lease for ten years but as the lease deed was not registered, it was of no effect in creating a term' lease in his favour, Section 107 of the Transfer of Property Act requiring a registered instrument for the purpose. But, as he continued in possession with the consent of the trustees paying rent at a monthly rate we, must presume that a monthly tenancy was created between the parties by oral agreement accompanied by possession. Under Section 106 of the Transfer of Property Act, the presumption is, in the absence of a contract or local usage to the contrary, that the lease is from month to month, as this lease was not for agricultural or manufacturing purposes. Defendant being thus a tenant from month to month, a proper notice to quit was certainly required to terminate his tenancy before he could be ejected. The notice given in the present case, though admitted to be otherwise proper, is argued to be invalid as it was not given by the lessors or on their behalf. The notice here was given by' the plaintiff in his own name. No Indian authorities have, however, been cited to us on the point. The English Law, as pointed out by the respondents' Vakil, is, that the person legally entitled to the immediate reversion of and in the demised premises is the proper person to give the notice to quit. See Foa on Landlord and Tenant, 4th Edition, page 163, and Woodfall on Landlord and Tenant, 19th Edition, page 408. Where the landlord had given a 14 years' lease of his premises in the possession of a yearly tenant to a new lessee, it was held that the new lessee was the proper person to give the notice to quit and the notice given on the landlord's behalf was held to be bad in law. See Wordsley Brewery Co. v. Halford (1904) 90 L.T. 89, We must adopt this rule, unless the Indian Law under the Transfer of Property Act is clearly different. Although the matter ii not free from difficulty we are inclined to think that the provisions of that Act are not inconsistent with the English rule. It is true, Section 106 of that Act con. templates that the notice is to be given by the lessor or by an authorized agent on his behalf. That no doubt is the primary rule. But Section 109 enacts that the transferee of any part of a lessor's interest in the property is entitled to all the rights of the lessor as to the property or part transferred. The words 'transferee of any part of his (the lessor's) interest' therein (i.e., in the property) are wide enough to include a term lessee like the plaintiff with a lease for 20 years. No doubt Section 105 in defining a lease does not use the words 'interest in property' as in Section 58 in defining a mortgage. Nevertheless a 'right to enjoy the property' which are the words used in Section 105 is an interest in the property. In English Law it is treated as an assignment of the reversion when the property is already in a lessee's possession. It was also argued that the rights referred to in Section 109 are the rights mentioned in Section 105 and no more. But the words used are all the rights' and the expression is very comprehensive. There does not seem to be any reason why the words should be held not to include the right to recover possession by terminating the tenancy of a previous lessee by giving the necessary notice to quit. That is one of the lights of the lessor 'as to the property' transferred. Prima facie a person entitled to possession should have the right to reduce the property into possession. To hold in favour of the appellant's argument will lead to the anomaly of having to hold that a transferee of the property leased could not give notice and terminate the lease, though under Section 109 he becomes Untitled to be paid the rent due from the date of his transfer by the lessee. The right of attornment necessarily carries with it, the right to eject if the tenant is liable to be ejected.

4. We must, therefore, hold, in agreement with the District Judge, that the notice to quit given by the plaintiff was a proper notice.

5. The second appeal fails and must be dismissed with costs.


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