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Andhra Pradesh High Court
Konijeti Venkayya - Appellant
Versus
Thammana Peda Venkata Subbarao - Respondent
Decided On : 12-15-55
1. The two lessees, the plaintiff and his father, acquired the leasehold interest as tenants-in-common without any right of survivorship inter se. 2. The plaintiff and his father separately dealt with a two annas share of the leasehold interest acquired by them under Exhibit B-2 when they granted the lease Exhibit B-12, dated 9th October, 1946. 3. The plaintiff's claim by survivorship to the two annas share of his father is untenable. 4. There was an express surrender by which the plaintiff yielded up his interest under Exhibit B-8 to his father by mutual agreement between them and Exhibit B-12 was executed by both of them thereafter. 5. The interest of a co-sharer in common property can be sold, mortgaged or leased to another co-sharer or to a stranger. 6. On such surrender the lease would stand terminated. 7. The provisions of the Madras buildings (Lease and Rent Control) Act do not govern the rights of the parties under the lease, Exhibit B-12.
Fact of the Case:
The dispute in three of the suits, O. S. Nos. 134/47, 208/48 and 204/49, centred round the validity of a lease granted by one Tammana Narayanamurthi on 29th january, 1947, about 15 months prior to his death on 30th April, 1948. In the remaining suit, O. S. No. 75/49, the dispute related to the validity of a codicil dated 15th January, 1947 and a gift deed dated 17th July, 1947, executed by the said narayanamurthi.
Finding of the Court:
1. The plaintiff and his father had ceased to be members of a joint family and had become divided from each other under Exhibit B-1 dated 16th June, 1943. 2. The plaintiff's claim by survivorship to the two annas share of his father is untenable. 3. There was an express surrender by which the plaintiff yielded up his interest under Exhibit B-8 to his father by mutual agreement between them and Exhibit B-12 was executed by both of them thereafter. 4. The provisions of the Madras buildings (Lease and Rent Control) Act do not govern the rights of the parties under the lease, Exhibit B-12.
Issues: None
Ratio Decidendi: 1. The two lessees, the plaintiff and his father, acquired the leasehold interest as tenants-in-common without any right of survivorship inter se. 2. The plaintiff and his father separately dealt with a two annas share of the leasehold interest acquired by them under Exhibit B-2 when they granted the lease Exhibit B-12, dated 9th October, 1946. 3. The plaintiff's claim by survivorship to the two annas share of his father is untenable. 4. There was an express surrender by which the plaintiff yielded up his interest under Exhibit B-8 to his father by mutual agreement between them and Exhibit B-12 was executed by both of them thereafter. 5. The interest of a co-sharer in common property can be sold, mortgaged or leased to another co-sharer or to a stranger. 6. On such surrender the lease would stand terminated. 7. The provisions of the Madras buildings (Lease and Rent Control) Act do not govern the rights of the parties under the lease, Exhibit B-12.
Final Decision: Appeals Nos. 13 and 14 of 1951 allowed wih costs (one set) and the plaintiff's memorandum of cross-objections are dismissed with costs. It follows that the plaintiff's suit O. S. No. 134 of 1947 must be dismissed with costs throughout. Appeal No. 97 of 1951 is allowed to the extent of decreeing O. S. No. 204 of 1949 for Rs. 12,500 in modification of the decree for Rs. 2,500 passed by the lower Court. As the dispute in this suit was covered by the dispute in the other two suits O. S. Nos. 134 of 1947 and 208 of 1948 and the appellant could have got adequate relief by getting himself impleaded in O. S. No. 208 of 1948 in which the leasehold right was sold in auction by the Court, we confirm the lower Court's order that the parties should bear their own costs and direct that the parties bear their own costs in appeal No. 97 of 1951. Appeal No. 55 of 1952 is dismissed with costs.
( 1 ) THE facts that are common to these appeals have been stated in the judgment of my learned brother which I have had the advantage of reading and it is unnecessary for me to repeat them. Suffice it to say that the dispute in four of these appeals encircles a lease, Exhibit B-26 granted by the 1st defendant on 29th January, 1947. The dispute in A. S. No. 642/51 relates to the truth and validity of a codicil Exhibit B-21 (a) and of a gift deed Exhibit B-41 purporting to have been executed by the 1st defendant. The general features of the case as well as the contentions of the parties and the findings of the lower Court in the suits which have given rise to these appeals, have been adverted to in the judgment of my brother. In my judgment, I propose to deal with the case of the parties in so far as it relates to the validity of the leases of the Kanaka Durga Groundnut Oil Mill, Exhibits B-2, B-8. B-12 and B-26 the particulars of which have been set out in the judgment just now delivered.
( 2 ) ON the construction of the lease deed Exhibit B-2 dated 12th December, 1943, i am of the opinion that the two lessees, the plaintiff and his father, acquired the leasehold interest as tenants-in-common without any right of survivorship inter se. The lessor had a four annas share in the Kanaka Durga Oil Mill which she leased "for the entire lifetime" of the plaintiff and his father on annual rent of Rs. 300, besides municipal taxes for the payment of which the two lessees held themselves jointly and severally responsible. Exhibit B-2 also provided that " till the end of the lifetime " of both the lessees, the lessor had no right to enter into possession but could only collect the rent at the stipulated rate. A further clause in the lease was to the effect that during the lifetime of the lessees, they had a right to work the mill either jointly or severally at their own expense and take the profits. The municipal and other charges and taxes in respect of the property accruing during the lifetime of either of the lessees had to be paid by them. His father having died pending the suit, the plaintiff claims the entire four annas share in the leasehold interest by survivorship on the ground that Exhibit B-2 created a joint tenancy. In my opinion he plaintiff s claim is untenable.
( 3 ) THE plaintiff and his father had ceased to be members of a joint family and had become divided from each other under Exhibit B-1 dated 16th June, 1943. In the oil Mill, the plaintiff had a four annas share and his father had an eight annas share at the time when the lease Exhibit B-2 was granted to them. They were doing business on their own account or in partnership but not as members of a joint family. With a view to keep the entire mill under their control and prevent the intrusion of strangers as lessees of a fractional share, the plaintiff and his father took a lease of the four annas share from its owner under Exhibit B-2. It was contended on behalf of the plaintiff that Exhibit B-2 represented a contractual arrangement between the lessor on the one hand and the lessees on the other hand for payment of a certain sum to the former as compensation for the exclusive occupation of common property by the latter. According to him the rights and obligations of the plaintiff s father under Exhibit B-2 ceased with his death and that the only person entitled to enforce the terms of Exhibit B-2 and liable for the discharge of the obligations thereunder, was the plaintiff himself. This argument was again stressed with reference to another portion of the case dealt later in the course of the judgment. A lease is not a mere contract but is a transfer of an interest in immoveable 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 immoveable property, capable of being inherited or transferred. B
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