Bequeath of the lease hold right in the property.

S.A. Kader, J.

1. The appeals in A.S.Nos.623 and 875 of 1980 arise out of the judgment and decree of the Court of the Subordinate Judge, of Coimbatore in O.S. No. 412 of 1977. The fifth defendant therein is the appellant in A.S. No. 623 of 1980. The defendants 1 and 2 therein are the appellants in A.S. No. 875 of 1980. C.M.A. No. 430 of 1980 is against the order and decretal order of the learned Subordinate Judge, Coimbatore in I A. No. 1420 of 1978 in O.S. No. 412 of 1977. The petitioner/5th defendants is the appellant. C.MA. No. 452 of 1980 is against the order and decretal order of the said subordinate Judge in IA. No. 213 of 1978 in O.S. No. 412 of 1977. The petitioners/defendants 1 and 2 are the appellants. C.M.P. No. 4891 of 1985 has been filed by the appellant in A.S. No. 623 of 1980 for reception of additional evidence.

2. This is a suit for recovery of possession of the plaint schedule property, for arrears of rent and for damages for use and occupation on the following averments: The plaintiffs are the owners of the site, more particularly described in the schedule to the plaint. The late G.M. Patel, the father of the defendants 1 and 2 took the property on lease from the plaintiffs for running a business under the name Diesel (India) and was in possession till his death as lessee. The monthly Rent was Rs. 300 which has subsequently been enhanced to Rs. 375, As the said G.M. Patel fell into arrears the plaintiffs filled O.S. No. 50 of 1975 on the file of the Subordinate Judge, of Coimbatore for recovery of arrears of rent. Pending suit G.M. Patel died on 31.3.1975 and the defendants 1 and 2 and their mother were impleaded as heirs and legal representatives (defendants 2 to 4). The suit was decreed against the assets of the late G.M. Patel in the hands of defendants 2 to 4 and a personal decree was passed against defendants 3 and 4 therein who are defendants 1 and 2 herein. The defendants 1 and 2 have been conducting the business of their father and paying the property tax in respect of the superstructure which belonged to their father. They again failed to pay the rent subsequent to 31-12-1974 and sub-leased portions to strangers, who are defendants 3 and 4 herein. The registered notice sent by the plaintiffs was returned un-served, and the plaintiffs caused to issue notice by certificate of posting. As there was no response from defendants 1 and 2 the plaintiffs have filed this suit for possession, arrears of rent and for damages for use and occupation.

3. The defendants 1 and 2 contended that their father G.M. Patel has, during his lifetime, bequeathed his business Diesel (India) and the leasehold interest and the superstructure in the scheduled property in favour of his daughter-in-law, who has thereupon been impleaded as the fifth defendant.

4. The defendants 1 and 2 raised the following contentions: They admitted the lease of the vacant site in favour of their father late G.M. Patel under a registered deed dated 12-1-1957 and his running of the business Diesel (India) therein. It was the late G.M. Patel, who put up the construction therein at a cost of Rs. 30,000 to Rs. 40,000 and they are now worth Rs. 75,000. Till his death in March, 1975, the late G.M. Patel was in occupation of the property as a lessee. The lease conferred upon him the right to sublet the premises. The rent originally was Rs. 145 per month but was subsequently raised to Rs. 300.But, it is denied that it was raised to Rs. 375. According to these defendants, the late G.M. Patel during his lifetime bequeathed the business, the superstructure and the leasehold interest to his daughter-in-law by name Mrs. Hamsa Patel and she was, therefore, a necessary party to the suit. There was no relationship of landlord and tenant between the plaintiffs and these defendants. There is no scope for the plaintiffs to make any claim against these defendants. They therefore prayed for the dismissal of the suit.

5. The defendants 3 and 4 remained absent and wer