1. In this case, the Secretary of State and three parsons who purchased the lands which were the subject-matter of S.A. No. 1025 of 1921, in which judgment has just now been delivered, are the plaintiffs. They sue to recover possession of the lands from the defendants, on the ground that the defendants' lease had been terminated, by a proper notice to quit and they are entitled to possession. The decree was asked to be given, in favour of plaintiffs 2 to 4. The lower Courts have granted the decree askad for and the 1st defendant appeals.
2. It is contended on his behalf that his tenancy has not been properly terminated, by a proper notice to quit and that therefore he was not bound to surrender possession. The argument is that the notices, as issued by the Government, Exhibits O and P, were not issued by the party entitled to 89ue notices, as by the time they were issued, the Government had parted with all its rights to plaintiffs 2 to 4 and they were the proper parties to issue notices; it is argued that notices should consequently be held to be bad. Before considering this matter it must be observed that in the plaint an allegation was made that notices (Exhibits O and P), dated 14th December, 1916, and 21st February, 1917 were given by the Government to the defendant and that, as the time fixed under them had expired, the 1st defendant's tenancy had been properly terminated before suit. The 1st defendant raised no objection to this averment in his written statement and no issue was framed as to the sufficiency or validity of notices. In the appeal memorandum, in the lower appellate Court, the point was, however, taken and the affidavit filed by the learned vakil for the appellant in that Court says that the point was argued before the Subordinate Judge; but no notice was taken by the Subordinate Judge of this contention, possibly because the point had not been raised in the Court of first instance.
3. The first question the which arises for decision is whether it is open to the 1st defendant, now in second appeal, to insist upon the point being raised and considered. He has relied upon two oases, reported in Abdulla Rawutan, Pakkeri Mohommad Rawutan, Madarsah Rawutan v. Subbarayyar (1878-80) 2 Mad. 346 and Subba v. Nagappa (1889) 12 Mad. 353, in which questions of notice were allowed 6o be taken in second appeal, when they were not taken in the lower Courts; but these decisions were subsequently considered by this Court in several oases, which have been brought to my notice and the view taken in the later oases is that though it is open to the Court to allow such a point to be taken in second appeal, it is not bound to do so; and it seems to me that ordinarily it should not allow it to be taken, because if point like that is allowed in second appeal, when it was not taken in the first Court, the result will be that the plaintiff will be prejudiced, as ha would lose the advantage of withdrawing his suit, when he finds that his notice was not a proper notice and of bringing a fresh suit at once, after giving a proper notice. The authorities cited for the respondents are L.P.A. No. 102 of 1913. In re Armugam Pillay 15 Ind.Cas. 584, Muthu Reddi v. Muthu Venkatapathi Reddi : (1916)31MLJ354 , Venkatappier v. Ramaswami Aiyar (1919) 10 L.W. 137, and Kunhu Kuttan Nair v. Govindan Nambuduri (1921) 13 L.W. 397. In all these oases, it was held that the point should not be allowed to be raised for the first time in Second Appeal. No doubt, as Mr. Menon points out, in Venkatappier v. Ramaswami Aiyar (1919) 10 L.W. 137 and Kunhu Kuttan Nair v. Govindan Nambuduri (1912) 13 L.W. 397, some point was made of the fact that the question was not raised even in the lower appellate Court; but I do not think there is any valid distinction between a case where the point is taken in the lower appellate Court, but not in the Court of 1st instance, and a cased where the point is taken in neither of the lower Courts. If the point is to be treated as a necessary part of the allegation by the plaintiff (the Landlord), which he should prove to obtain a decree in ejectment, it taken in the first Court or in both the lower Courts; but that view has not been adopted and I consider that the proper view is that when the point is not taken in the lower Courts, it should not be allowed to be taken in second appeal. In this case, so far as the property, for which patta has been given to the plaintiffs 2 and 4, is concerned, proper notice was given to the 1st defendant by the Government, before the pattas were issued to these plaintiffs. It is clear, therefore, that the principle relied upon by Mr. Menon that, when a landlord parts with a right of possession of his property to a third party, by either mortgaging or by selling away the property, he has no longer any right to give notice to quit, as the proper person to give notice is the transferee, as held in Wordsley Brewery Co. v. Halford (1903) 90 L.T. 89 will not apply; for the English cases recognise that the person who is the landlord and entitled to possession, on the date of the notice to quits is the proper person to give the notice and that an assignee within the currency of that notice, can take advantage of the notice sent by his assignor and rely upon it, when he brings a suit for recovering possession. As regards the 3rd plaintiff it may be that there is some difficulty, as the notice regarding his land seems to have been issued, after the patta was granted to him. It is, however, very doubtful whether the principle laid down in Wordsley Brewery Co. v. Halford (1903) 90 L.T. 89 will apply to this case. That was a case, where an owner of a certain property had first given an oral lease to the defendant and subsequently during the continuance of that tenancy granted to the plaintiff a period lease of 14 years. After granting this lease, a notice to quit in writing addressed to the first tenant's husband of the owner of the premises, as her agent to deliver possession of the property, was served upon the tenant. The question was, whether that was a proper notice to quit and their Lordships no doubt held that it was not a proper notice; but their reasoning was as follows: They held that, as soon as the second lease was granted, it took effect at once; that the grant of the, leases 'passed the reversion and not the allotment' and that therefore the grantor had no longer any right of possession and could not exercise the right of giving notice to quit, to terminate the tenancy. The argument turned upon the question, whether the granting of the lease period amounted to the passing of the reversion or not, and their Lordships say, after dismissing about some authorities:
It is said that soma authorities ate inconsistent with the view, that is, the view that it did pass and to some extent they may be; but even if that is so, we have to choose between them all. We must hold that the reversion passed.4. In the present case, the Government granted pattas to the plaintiffs.
5. If there was an arrangement, as suggested by the Government Pleader, between the Government and the plaintiffs that the Government's right to recover possession was to continue and that they should get possession from the tenant and hand it over to the pattadars, the right to possession for that limited purpose will still remain in the Government, though pattas may have been granted. If this is so, I do not see why the Government is not the proper authority to issue the notice to quit.
6. The point as to notice has not been tried; it was not taken in the first Court and to allow it to be taken now will involve a fresh trial on facts. I do not think I am bound to allow such a point to be taken in second appeal.
7. The second appeal fails and is dismissed with costs: one set.