A void lease cannot operate as an implied surrender of a valid lease.

GOPAL KRISHNAN NAIR, J.

( 1 ) THIS is a plaintiffs Second Appeal directed against the judgment and decree of the learned District Judge, Chittoor who affirmed the decision of the District Munsif, Tirupati. The facts that lead up to this Second Appeal lie in a brief compass. The suit property belonged to Hathiramjee Mutt. That Mutt leased it to the plaintiff. While the plaintiff was thus in possession of the property, he granted a sub lease of the suit site and a house thereon to the defendant under Ex. A. 1 dated 2-10-1957. This sub lease was to expire on 30-9-1958. On 22-5-1958, the house was destroyed by fire. Soon after, the defendant sub-lessee appears to have obtained a permission from the head lessor, namely, the Mutt for constructing a thatched hut on the suit site. On 12-8-1958, the plaintiff purported to take a permanent lease from the Mutt under Ex. B. 6. On 29-3-1959, the plaintiff laid the present suit for recovery of possession of the suit site from the defendant and for arrears of rent. This suit was resisted by the defendant on the ground that on the destruction of the house which was leased to him by the plaintiff, the lease between him and the plaintiff became void and that his occupation of the property thereafter was not under the plaintiff but by virtue of the permission granted to him by the head lessor to construct a thatched hut on it. It was further pleaded that on account of the destruction of the house by fire, the lease between the plaintiff and the Mutt also be deemed to have terminated. Relying in the main on these grounds, the defendant contended that the plaintiff is not entitled to a decree for possession. The learned District Munsif who tried the suit in the first instance expressed the view that by the destruction of the house by fire, the lease between the plaintiff and the Mutt was in no way affected. But he held that by obtaining permission from the Mutt to build a hut on the suit land, the defendant must be held to have treated the lease evidenced by Ex. A. 1 as void. Regarding Ex. B. 6, which purported to be a permanent lease granted to the plaintiff by the Mutt, he came to the conclusion that it clearly offended the provisions of Section 29 of the Madras Hindu Religious and Charitable Endowments Act, 1939, and was therefore null and void and could not, in consequence, found the claim for possession put forward by the plaintiff. For these reasons, the trial Court declined to grant the relief of possession asked for by the plaintiff. On appeal the learned District Judge affirmed the decision of the trial Court. Hence, this Second Appeal.

( 2 ) THE first contention urged by Mr. B. V. Subrahmanyam on behalf of the plaintiff-appellant is that the defendant is bound to surrender to the plaintiff actual possession of the property leased to him under Ex. A 1 and that until he does so, he will continue to fill the character of plaintiffs lessee and the plaintiff will be entitled to recover possession of the property from him. It is also pointed out that by merely obtaining permission from the head lessor to build a thatched hut on the suit property, the defendant cannot be said in law to have put an end to the lease under Ex. A. 1. The other contention advanced is that by purporting to take a permanent lease under Ex. B. 6 from the Mutt, the plaintiff did not become disentitled to recover possession from the defendant who was bound to yield up possession of the property to the plaintiff in view of the relationship of landlord and tenant which subsisted between them under Ex. A. 1. It is pressed upon me that as the defendant as lessee was inducted into actual possession by the plaintiff, he was bound, when determination the lease, to restore the possession which he obtained from the plaintiff and that if he did not do so, he would be estopped from disputing the right of the plaintiff to recover possession.

( 3 ) TO these arguments presented on behalf of the appellant, Mr. Ramachandra Rao, the learn

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