A lease must be explicitly stated as permanent to be considered as such; otherwise, it is interpreted as a lifetime tenancy, allowing for the reversion of possession upon the death of the lessee.

JUDGMENT

SREENIVAS HARISH KUMAR, J. -

The question arising for decision in both the appeals is, whether the plaintiffs and defendants 1, 5 and 6 are precluded from taking possession of Plaint-B schedule property (other than B-1 schedule property) in proportion to the shares declared by the trial court in its preliminary decree dtd. 26/4/2019 in O.S.No.2/2009 followed by final decree dtd. 30/5/2020 in FDP.No.13/2019 on the file of I Additional Senior Civil Judge, Dharwad?"

2. These two appeals have the following factual background.

2.1 The appellants in both the appeals are the legal representatives of defendant No.12, Holiyappa, the adopted son of Siddalingappa Bulla. Respondent Nos.1 and 2 are the plaintiffs in the suit. The plaintiffs brought a suit for partition in respect of eight items of the property described in A schedule and three items of property described in B schedule of the plaint on the premise that after the death of their father Marithimmappa on 17/6/1964, they became entitled to 1/5th share each in the properties described in schedules A and B. Defendant No.1 is the brother and defendant Nos.5 and 6 are the sisters of the plaintiffs. Defendant No.2 is the wife and defendant Nos.3 and 4 are the children of 1st defendant. The appellants are concerned with schedule B property.

2.2 In regard to the properties in schedule B, the plaintiffs pleaded that one Savavva wife of Rudrappa Bengeri was the original owner and she bequeathed schedule B properties in favour of Marithimmappa by executing a registered will dtd. 11/1/1919. Much before she made the will, she had leased the said properties for a period of 10 years to a company called Indian Cotton Company Limited, Bombay (referred to as 'Company' for short) by a lease deed dtd. 7/11/1894. The company transferred its lease hold rights to Siddalingappa Bulla, the adoptive father of defendant No.12. DefendantNo.13 is the wife of Siddalingappa Bulla. The plaintiffs learnt that the 1st defendant had illegally sold certain items of B schedule property to defendant Nos.14 to 17 in order to deprive their legitimate share. The properties described in schedule B1 are said to have been sold to defendant Nos.14 to 17. Therefore in addition to claiming share in the properties which remained unsold in schedule B, they sought for share in the sale consideration amounts relating to properties in schedule B1.

2.3 Defendant Nos.12 and 13 filed a joint written statement contending specifically that the lease deed dtd. 7/11/1894 executed by Savavva in favour of the company was a permanent lease. The company went into liquidation, and during the winding up proceedings before the High Court of Judicature at Bombay, the assets of the company were brought to sale by the official liquidator. Siddalingappa Bulla, the adoptive father of defendant No.12 and husband of defendant No.13 purchased permanent lease hold rights of the company under a registered indenture dtd. 19/4/1941. As Siddalingappa Bulla became a permanent lessee, the plaintiffs were not entitled to claim possession of B schedule properties, all that they could claim was share in the rent.

3. The findings of the trial court as regards the nature of tenancy is found in paragraphs 54 to 56 of its judgment. The findings are - the judgment in O.S. No. 126/2003 c/w O.S. No. 513/2004 (Ex.D.15, the certified copy of the judgment) is not binding on the plaintiffs as they were not parties in those suits, that neither Siddalingappa Bulla nor defendants 12 and 13 became the permanent lessees of schedule 'B' properties and that the lease in respect of 'B' schedule properties was for the lifetime of Siddalingappa Bulla and it ended with his death. For this reason the plaintiffs and the defendants 1, 5 and 6 have right over 'B' schedule properties. Defendants 12 and 13 have no locus standi to contend that the plaintiffs are not entitled to seek partition in 'B' schedule properties and that they can only claim share in the rental amount. It i