The provision for surrender of tenancy applies only when the tenant wishes to end the tenancy without the landlord's consent.

Kotval, A J C—One Mohan, the occupancy tenant of the fields in suit, died in 1922, leaving a son Jethoo and a widow Sarsuti. After Jethoo's death, which took place shortly after Mohan's, Sarsuti surrendered the fields by a deed registered on 4th June 1924 to Ganpatrao, the plaintiff, who is the sixteen annas is landlord of the village in which the suit fields are situated. He instituted this suit for possession on 22nd July 1924 against Thallua the defendant, who is the brother of Mohan, and is in possession of the fields since Mohan's death. Thallua claimed title as legatee under an oral will by Mohan which has been held unproved. The suit was dismissed by the trial Court on the ground that it was premature as under Clause 1, Section 89, Tenancy Act, 1920, Sarsuti did not cease to be the tenant till 1st June 1925, when the agricultural year next following the date of the delivery of the surrender deed commenced. This dismissal has been confirmed by the lower appellate Court.

2. The question for decision in this Court is whether Clause 1, Section 89, Tenancy Act, has been rightly applied in this case. The clause provides that an absolute occupancy tenant or an occupancy tenant may by delivering to his landlord, not less than 30 days before the date of commencement of the agricultural year, a registered document executed in favour of the landlord, surrender his holding, and thereupon he shall cease to be a tenant from the agricultural year next following such date.

3. This clause gives the tenant a right of putting an end to the tenancy and his liability to pay rent without reference to the wishes of the landlord, but provides for an exercise of it in time to enable the landlord to arrange for the cultivation of the holding by a new tenant or personally. The time fixed for exercising the right is not an essential condition of the validity of the surrender, that condition being provided for by Clause 2, Section 89, viz., that it should be effected by a registered document. The condition as to the time for the exercise of the right being fixed for the protection of the landlord is binding on the tenant if the landlord insists upon it, but there is no reason why the landlord should not be free to waive it and accept the surrender at any other time and put an end to the tenancy and the liability to pay rent if he chooses to do so.

4. In my opinion, the section provides only for the case where the tenant wishes to put an end to his tenancy without reference to the wishes of the landlord and has no application to a case like the present where the landlord is willing to end the tenancy.

5. As regards the defendant's pica about his holding under a bequest by Mohan, he does not now claim the fields for himself but contends that he is entitled to hold as a trustee under the will for the son and widow of Mohan. This is entirely opposed to his pleading in which he claimed to be tenant in his own right. On the pleadings the defendant was either a trespasser or a, tenant. He does not now claim to be a tenant and is liable to be ejected as a trespasser.

6. The appeal succeeds. The decrees of the lower Courts are set aside. The plaintiff's claim will be decreed with costs throughout.

Final Result : Allowed