Effect on implied surrender of earlier lease.

The question raised in the second appeal is one of implied surrender of a lease. The plaint schedule items of property were owned by the kanoor tarwad. In the partition, that was effected between the members of the tarwad, the said items were set apart to the share of Chamukutti Nair. The plaintiff, who was holding the said items under a prior lease, attorned to him. There was an agreement between the plaintiff and Chamukutti Nair, in and by which the plaintiff was allowed to continue in possession of the properties on a rental of 334 paras of paddy from 1940-41. On 16th February, 1943, the plaintiff executed a pattomchit, Exhibit P-1, whereunder the rent payable was fixed at 264 paras of paddy. Meanwhile, the defendant, who obtained an assignment of the decree obtained against Chamukutti Nair, attached the said properties, brought them to sale and purchased them on 19th March, 1945 and took delivery on 30th August, 1945. It may be mentioned that the attachment was prior to the date of Exhibit P-1. The plaintiff filed O.S. No. 236 of 1945 for recovery of possession of the property from the defendant, mainly on the ground that as Exhibit P-1 did not come into effect, he would be entitled to be in possession under his earlier oral lease. The defendant pleaded, inter alia, that there was an implied surrender of the earlier lease by the execution of Exhibit P-1, and, therefore, the plaintiff would not be entitled to possession. The learned District Munsif held that the implied surrender was not valid, since Exhibit P-1 was not operative, having been created while the attachment was pending over the properties. In appeal, the learned Subordinate Judge took the same view and held that, as Exhibit P-1 was inoperative and invalid, the respondent should be deemed to be in possession as lessee under the earlier lease. The defendant preferred the above second appeal.

The learned counsel for the appellant contended that the execution of Exhibit P-1 operated as an implied surrender and that the fact, that it was executed after the attachment, would not affect the question as, though the lease was void against all claims enforceable under the attachment, it was otherwise valid. He also contended that, if it operated as substitution of the earlier lease, the circumstance that subsequently the leasehold properties were brought to sale and purchased free from the lease deed, would not invalidate the surrender that was already effected.

A lease of immoveable property may be determined in any of the modes prescribed under section 111 of the Transfer of Property Act. The relevant provision of section in reads:

“111. A lease of immoveable property determines

(f) by implied surrender.

Illustration to clause (f): A lessee accepts from his lessor a new lease of the property leased to take effect during the continuance of the existing lease. This is an implied surrender of the former lease, and such lease determines thereupon.”

A leading decision on the scope of an implied surrender is Doe d. Egremont v. Courtenay1. The following neat statement of law on the subject by Coleridge, J., may be quoted:

“Where the new lease does not pass an interest according to the contract, the acceptance of it will not operate as a surrender of the former lease: in the case of surrender implied by law from the acceptance of a new lease, a condition ought also to be understood as implied by law, making void, the surrender in case the new lease should be made void; and in case of an express surrender so expressed as to show the intention of the parties to make the surrender only in consideration of the grant, the sound construction of such instrument, in order to effectuate the intention of the parties, would make that surrender also conditional, to be void in case the grant should be made void.”

The said principle was accepted and applied by Farewell, L.J., in Zick v. London United Tramways2. In Jamini Mohan Sarkar v. Debendra Narayan Singh3, the Calcutta High Court