judgement:
Appeal No. 424 of 1958.
Appeal from the judgment and decree dated April 25, 1950, of the Madras High Court in A. section No. 67 of 1947.
K. Bhimasankaram and.
K.R. Chaudhuri.
for the appellants.
T. V. R. Tatachari, for respondents Nos. 1 to 3.
P. Ram Reddy, for respondent No. 9.
M. R. Krishna Pillai for respondent No. 24.
September 18.
The Judgment of the Court was delivered by SHAH J.
One Thammiah had two sons Gangaraju and Ramayya and four daughters Ammanna, Sesbamma, Gangamma and Bbavamma, of these, the two sons and the daughter Ammanna .died during Thammiab 's life time.
Gangaraju left him surviving his widow Cbetamma and Ramayya his widow Venkamma.
Ammanna was survived by her son Rudrayya, who was brought up by Thammiah.
Thammiah died in 1885, Seshamma in 1904, Gangamma in 1930 and Bhavamma in 1935.
After the death of Bhavamma, Paddaraju (herein after called the plaintiff), son ' of Gangamma filed Suit No. 53 of 1944 in the court of the Subordinate 655 Judge at Rajamundhry against the descendants of Seshamma and Ammanna for a decree for partition and separate possession of a third share in 17 lands, described in Schedule B to the plaint as "agricultural land and measuring in the aggregate 51 acres 72 cents in Patta No. 12 in village Pandalpaka in Pitbapur Zamindari" and in Schedule IC ' described as three houses with sites thereof in village Pandalpaka,.
To this suit Jaggarayudu and Paddaraju, sons of Venkataraju brother of the plaintiff were impleaded as defendants 31 and 32.
The plaintiff claimed that Thammiah owned occupancy rights in the ryoti lands in the Pithapuram Zamindari and that after Thammiab 's death the lands were managed with the permission of the plaintiff and his brother Venkataraju, in the first instance, by the two daughters in law of Thammiah Chetamma and Rammanna, son of Seshamma and their "possession and management was on behalf of heirs and persons entitled to maintenance out of the estate" and that the right to sue for ' partition accrued on the death of Bhavamma on March 18, 1935.
The suit was resisted by the descendants of Seshamma and Annamma principally on the plea that in the lands described in Schedule "B 'Thammiah had not proprietary right and that occupancy right therein accrued to Rudrayya and Veeriah (husband of Seshamma) by virtue of the Madras Estates Lands Act, 1908.
It was also pleaded that Thammiah had made an oral will devising his estate in favour of Veeriah who was his illatom son in law and Rudrayya in equal shares.
This plea about the oral will was negatived by the Court of First Instance and, the High Court and need no longer be consi dered, because it is not canvassed be fore us in this appeal.
The trial Court held that Thammiah had no proprietary interest in the lands in Schedule 'B ' and on that view decreed the plaintiff 's claim for partition of the houses and sites described in Schedule IC ' only and awarded a third share to him, 656 another third share to Ramanna and the remaining third share collectively to defendants 31 and 32sons of Venkataraju.
in appeal, the High Court of Madras modified the decree of the trial court holding that in the agricultural lands Thammiah had occupancy rights which on his death devolved on his surviving daughters, and directed that those lands be also partitioned, and that a third share be awarded to the plaintiff and a third share to defendants 31 and 32 together with mesne profits from March 18,1935.
the date of Bhavammas death.
With certificate under article 133, this appeal is preferred by the descendants of Seshamma and Ammanna.
The principal question which falls to be determined in this appeal is whether Thammiah had, as claimed by the plaintiff, occupancy rights in the lands described in Schedule 'B ', or as the contesting defendants contend, Thammiah was an annual tenant of the zamindar and that after his death the lands were held on similar tenure by different members of the family of Thammiah and that the occupancy right was acquired by Rudrayya and Veeriah by virtue of the Madras Estates Lands Act, 1908.
The lands are within a permanently settled zamindari under Madras Regulation XXV of 1802, and it is common ground that Thammiah was cultivating the entire area of the lands during his life time.
There is no evidence indicating that his possession was ever disturbed during his life time.
There is again no evidence about the commencement of the occupation of Thammiah or his pre decessors : commencement of their occupation is therefore lost in antiquity.
The lands are described in the various documents, to which we will presently refer, as "jeeroyati landie ' Thammiah as "jeeroyati ryot", and after his death his daughters in law and grandson Ramanna were similarly described.
Three documents Exts.
D 1, D 2 and D 3which establish that Thammiah was cultivating the lands throw important light on the problem under 657 discussion.
Exhibit D 1 is a muchilika dated July St 1, 1883, executed by Thammiah in favour of the zamindar.
Exhibits D 2 and D 3 are similar muchilikas dated respectively August 10, 1884, and July 15 1885.
Each of these muchilikas is in respect of the seventeen pieces of lands described in Schedule "B ' and the 'cist ' settled is Rs. 419/8/ .
The terms of the three muchilikas are identical.
Thammiah is described in the muchilikas as "jeeroyati ryot" and the lands are described as "jeeroyati pampus".
It is recited in the muchilikas "I have executed and delivered this muchilika agreeing that I should pay the said cist amount of Rs. 419/8/every fasli according to the instalments mentioned hereunder to the Officials on your behalf and to obtain receipts;. . . that during the last year of the term, I should not raise gingelly or chiruyeru crop on these pampus but that I should leave sufficient land for purposes of garden cultivation and seed beds; that I should not cut down any, kind of trees without your permission; that I should not raise permanent gardens or construct houses on these lands without your permission; that I should not cause damage to these lands so as to make them unfit for cultivation purposes; that if at the of the term you should lease out these pampus to anyone, whom you like, for a cist amount advantageous to you, I should not raise objection thereto; that if you had leased out these lands to other ryots for the ensuing year after the expiry of the term, and if 'the said ryots should carry on necessary works for purposes of cultivation during the ensuing year by way of ploughing seed beds, sowing seeds and planting tender sugarcane even before the expiry of this term, I should leave sufficient land to them without raising any objection whatsoever.
" By the covenants of the muchilikas Thammiah had undoubtedly undertaken not to raise certain crops, nor to cut trees, nor to put up permanent constructions and had also undertaken to give certain facilities to other tenants 658 inducted in the lands by the zamindar.
The evidence does not justify the inference that Thammiah was inducted on the land by Ext.
There is even no evidence that the land was acquired from the, zaminder by the members of Thammiab 's family or that the ancestors of Thammiah were not on the land before the zamindari rights accrued to the zamindar.
It is also not didputed that land 1, in zamindaries in the Madras Presidency were even held in occupancy right by many ryots before the Madras EstateB Lands Act, 1908, was enacted.
As observed in Venkata Narasimha Naidu vs Dandamudi Kotayyo(1) at 301 that "there is absolutely no ground for laying down that the rights of ryots in zamindaries invariably or even generally had their origin in express or implied grants made by the zamindar.
The view that in the large majority of instances, it originated otherwise is the one most in accord with the history of agricultural land holding in this country.
For, in the first place, sovereigns, ancient or modern, did not here set up more than a right to a share of the produce raised by raiyats in lands cultivated by them, however much that share varied at different.
times.
And, in the language of the Board of Revenue which long after the Permanent Settlement Regulations were passed, investigated and reported upon the nature of the rights of ryots in the various parts of the Presidency, "whether rendered in service, in money or in kind and whether paid to rajas, jagirdars, zamindars, poligars, mutadars, shrotiemdars, inamdars or to Government officers, such as tehaildars, amildars, amins or thannadars, the payments which have always been made are universally deemed the due of Government. .
Therefore to treat such a payment by cultivators to zamindars as 'rent ' in the strict sense of the term and to imply therefrom the relation of landlord and tenant so as to let in the presumption of law that a tenancy in general is one from year to year, would be to introduce (1) Mad.a 299.
659 a mischievous fiction destructive of the rights of great numbers of the cultivating classes in this province who have held possession of their lands for generations and generations.
" It was also observed in that case (at p. 303), ",It thus seem unquestionable that prima facie a zamindar and a raiyat are holders of the melvaram and kudivaram rights, respectively.
When, therefore, the former sues to eject the latter, it is difficult to see why the defendant in such a case should be treated otherwise than defendants in possession are generally treated, by being called upon, in the first instance, to prove that they have a right to continue in possessions The right to occupy land under the revenue system prevailing in Madras may arise by reason of the customs in the district in which they are situate.
In any event, there is no presumption that the holder of the land under a Zamindar is a tenant at will.
In each case the rights of the ryot have to be ascertained in the light of the facts proved.
In Appa Rau vs Subbanna (1), Muttusami Ayyar and Wilkinson, JJ., were called upon to consider whether a zamindari ryot could mortgage his interest in his holding.
It was observed in that case that " 'According to the course of decisions, therefore, in this presidency the landlord may determine the tenancy if there is a contract, express or implied, by exercising his will in accordance with his obligations; that there is no presumption in favour of a tenancy at will; that an occupancy right may exist by customs; that a pattadar or raiyat in a mitta is entitled to continue in possession so long as he regularly pays rent 'and has a saleable interest, and that by reason of special circumstances in evidence the onus of proof may be shifted, even in regard to a permanent occupancy right, from the tenant to the landlord.
" The court also observed that it would be ,,monstrous to hold that every tenant in a zamindari is presumably a tenant at will".
(1) (1889) 1.
L. R. 660 In Vencata Mahalakshmamma vs Ramajogi (1), a zamindar served a notice upon the defendant, who was a cultivating ryot in the zamindari calling upon him to deliver possession of his holding, and on default of compliance sued to evict him from his holding.
The defendant pleaded that he and his ancestors had been "jiroyati ryots" of the holding from times immemorial.
According to the High Court, the zamindar having failed to prove that the ryot 's tenancy had commenced under the zamindar or his ancestors, the suit should be dismissed.
The court observed that "in cases.
in which the raiyats ' holding is not shown to have commenced subsequent to the permanent settlement, and when upon the evidence, it is possibly as ancient as the zamindari itself, the principle laid down with reference to tenancies which admittedly commenced under the zamindar" had no application, and that "in such cases it is not unreasonable to hold that the onus of showing that the tenancy commenced under the plaintiff or his ancestors rests on the zamindar, and that until he shows it, the zamindar may be fairly presumed to have been the assignee of Government revenue, and the tenant liable to pay a fair rent and entitled to continue in possession as long as be regularly pays rent.
In Yenkata Narasimha Naidu vs Dandamudi Kotayya(2), which we have already referred, it was held that a ryot in a permanently settled estate is prima facie not a mere tenant from year to year but the owner 1 of the kudivaram right in the land he cultivates, and in a suit in ejectment, the zamindar "is to prove that the kudivaram right in the disputed land subsequently passed to the defendant or some person through whom he claims under circumstances which give the plaintiff the right to eject.
" The Court observed that there is no substantial analogy between an, English tenant and an Indian ryot for the right of ryots came into existence ' (2) Mad.
661 mostly, not under any letting by the Government of the day or its assignees, the zamindars, but independently of them, according to the Indian: traditions such right were generally acquired by, cultivators entering upon land, improving it and.
making it productive.
After referring to the judgment of Turner, C. J., and Muttusami Ayyar, J., in Siva Subramanya vs The Secretary of State for India(1), that the Hindu jurisprudence rested private property, on occupation as owner, and to Secretary of State vs Vira Rayan(2) that the right to the possession of lands acquired by the first person who makes a beneficial use of the soil, it was observed that the well known division in the, Madras Presidency of the great interests in land under two main beads of the melvaram interest and the kudivaram interest made the holder of the kudivaram right, far from being a tenant of the holder of the melvaram right, a co owner with him.
In Cheekati Zamindar vs Banasooru Dhora and others(3), Shephard, J., observed at p. 322, "Many of the occupants of zamindari lands are not tenants in the proper sense of the word, and the fair presumption is that, when new occupants are admitted to the enjoyment of waste or abandoned lands, the intention is that they should enjoy on the same terms as those under which the prior occupants of zamindari lands held.
It is open to the zamindar to rebut the presumption.
He may show as was shown in Achayya vs Hanumantrayudu (4) that the usual condition of things does not prevail in his estate or he may adduce evidence as to the particular contract made between him and his tenant.
In other words, he may show that the terms of the contract were different from those which ordinarily prevail between a zamindar and the occupant of zamindari lands.
" Subrahmania Ayyar, J. observed, "Practically the whole of the agricultural land there (1) mad.
(2) Mad.
(3) (1899) 1.
L. R. (4) (1891) 1.
L. R. 662 is not cultivated by persons who merely hire it for a limited time.
The raiyats most generally hold by no derivative tenure.
And even where the right to cultivate passes to them from zamindars the payment made by them, in the absence of a contract, is regulated by custom in the last resort, as provided in section 11 of the Rent Recovery Act.
The raiyats are generally entitled to hold the lands for a unlimited time, that if; as long as they wish to retain it subject to the performance of the obligations incident to the tenure.
Nor can it be said that this is true only in regard to so much of the land in the hands of the raiyats as cannot be shown to have been obtained by them from zamindars.
For in the case of lands which have been relinquished by the former occupants or which have been lying waste from time immemorial, they too, when taken up by a raiyat, are treated exactly on the same footing as land into the possession of which it is not shown that the raiyat was let in by a zamindar, and the raiyat holds possession of them for an indefinite period".
In Kumbham Lakshmanna and others.
vs Tanjirala Venkateswarlu and Others (1), the Judicial Committee of the Privy Council held that in a suit to eject the tenant of an inamdar from his holding the burden is on the plaintiff to make out a right to evict by proving that the grant included both the melvaram and the kudivaram interests, or that the tenants or their predecessors were let into possession by the inamdar under a terminable lease.
The dispute in that case was between inamdars and a tenant and had to be decided by the Civil Court, for having regard to the definition in a. 3(2) (d) of the Madras; Estates Land Act, 1908, the Act did not apply to inamdars.
By section 6 of the Act it having been provided that ",every ryot now in possession or who shall hereafter be admitted by a landholder to possession of ryoti land situated in the estate of such landholder shall have a permanent right of occupancy in his holding," (1) (1949) L. It.
76 T. A. '202.
663 all tenants in possession of land at the date on which the Act came into operation, were declared to be holders of permanent occupancy rights, but the Act did not justify the inference that the holders prior to that date did not and could not hold occupancy rights.
The Privy Council was of the view that in any action by an inamdar to evict his tenants and by a zamindar prior to 1908 to evict his raiyats from their holdings, the burden was on the plaintiff to make out the right to evict by proving that the grant included both the melvaram and the kudivaram interests or that the holders of land or their predecessors were let into possession by the inamdar or the zamindar under a terminable lease.
The Privy Council judgment, therefore, recorded its approval to the view expressed in the earlier cases to which we have referred.
But counsel for the respondents contended that this was not a suit between a zamindar and a ryot and the rule as to the onus of proof in a suit as between a zamindar and a ryot did not apply where the suit was filed by a person like the plaintiff claiming a share in the occupancy right in land in possession of the defendants, and unless the plaintiff establishes affirmatively that the common ancestor was before 1908 in possession as an occupancy tenant, his suit must fail.
We do not think that this is a permissible approach.
The presumption which arises in a suit by a zamindar against a ryot for possession of the letter 's holding, rests not on the narrow ground of burden that whoever alleges title and claims relief on that footing must establish it ; the presumption has its roots in the system of land tenure and in custom of the area in which the lands are situate, and applies in a suit between persons claiming under the ryot, as well as in a suit against the ryot by the zamindar.
Counsel for the respondent relied upon certain circumstances which appeared from the evidence 664 as lending support to the plea of the contesting defendants that the lands were not held by Thammiah in occupancy right.
Reliance was placed upon the covenant in Exts.
D 1, D 2 and D 3 that the zamindar may on the expiry of the year of the muchilika, let out the lands to any tenant at "cist" advantageous to the, zamindar.
It is true that in Exts.
D 1, D 2 and D 3 it is recited that if at the end of the terms of the muchilika the zamindar should lease out the land to any one for a "cist" advantageous to hina, Thammiah would not object thereto, and he further agreed that he would leave sufficient land, without raising any objection, for the ryot to carry out the necessary work for cultivation during the ensuring year.
But such a covenant is by itself not sufficient to justify the inference that the ryot 's tenure was precarious.
It appears that since the decision of the Madras High Court in Chockaling Pilli vs Vythealinga Pundara Sunnady (1) that neither the rent Recovery Act, nor the regulations operated to extend a tenancy beyond the period secured by the express or implied terms of the contract creating it, the zamindars were accustomed to take muchilika or other writings from their ryots admitting notwithstanding the true nature of their rights, that their tenure was restricted or precarious.
In Vencata Mahalakshmamma vs Ramajogi (2), in dealing with a muchilika executed by a ryot for a period of one year only, Muttusami Ayyar J., observed, "Neither a patta nor a muchalka granted or executed under Act VIII of 1865 during the continuance of the holding is conclusive evidence that the holding is a tenancy from year to year.
A patta or muchalka is ordinarily nothing more than a record of what the tenant has to pay for a particular year with reference to the pre existing relation of landlord and tenant.
The fact cannot also be lost sight of that the zamindar is always a man of education, status and influence and often exercises (1) (2) (1892) 1.
L. R. 665 revenue power and control over the village records.
On the other hand, the raiyats are illiterate persons and it would be easy enough to get them sign anything as long as there is no attempt to interfere with their actual occupation and enjoyment of the land.".
It would be unreasonable, therefore, to attach any undue important to the recitals of the, nature contained in Exts.
D 1, D 2 and D 3.
The Privy Council in Kumbham Lakshmamma 's case referred to the practice among zamindars of taking muchilikas from ryots negativing the existence of the occupancy rights as being prevalent and to the judicial recognition of such a practice in Peravali Kotayya V. Pnnopalli Ramakrishnayya (2) and Zamindar of Chella palli vs Rajalapati Somayya (3).
The Judicial Committee referred with approval to the observations of Wallis, C.J., in the latter case to the effect : "In this connection it is to be borne in mind that numerous instances have come before the courts in which subsequent to the decision of in inserting in pattas and muchilikas terms negativing the existence of occupancy right".
and pointed out that they could not neglect the consideration that a ryot so long as he is not evicted, might be prepared to sign anything and that the evidential value of such a contract should be judged accordingly.
It is true that if there were some reliable or substantial evidence to show that the tenancy had commenced after the zamindari rights accrued or that 'otherwise the tenant 's right was restricted, the value to be attached to the reci tals of 'the nature set out may be greater ; but there are no circumstances in this case lending strength to the recitals contained in Exts.
D 1, D 2 and D.3.
After the death of Thammiah, muchilikas were obtained 'and pattas granted by the zamindar not in favour of the daughters ' of Thammiab, who were under the Hindu Law his heirs, but in favour (1) (1949) L. R. 76 I. A. 202.
(2) (4) 666 of his daughters in law, in the first instance, and thereafter, in favour of one of the daughters in law and Ramanna, grandson of Thammiah.
These documents are Exts.
D 4, D 5, D 5 (a), D 6 and D 8.
Ext 1 @ 4 is a muchilika executed on August 15, 1891 by Venkamma and Chetamma, daughters inlaw of Thammiah.
D 5 is another ' muchilika executed on August,, 15, 1893 by Venkamma and Chetamma.
Each of these muchilikas is for period of one year.
D 5 (a) is a patta executed on October 10, 1893 by the zamindar corresponding to muchilika Ext.
exhibit D 6 is a patta executed on May 21, 1904, by the zamindar in favour of Chetemma and Ramanna minor by his guardian Veeriah and there% is Ext.
D 8 which is a patta dated January 16, 1906 also in favour of Chetamma and Ramanna.
All these muchilikas and pattas related to the same seventeen pieces of land which were originally in the possession of Thammiah, and the covenants thereof are identical.
It is true that in respect of the first two inuchilikas the ryots were Chetamma.
and Venkamma, and in Exta.
D 6 and D 8; the ryots were Chetamma and Ramanna.
Counsel for the defendants asks us to infer from Exts.
D 4 to D 8 that the zamindar had at the end of the year for which the muchilikas or pattas were executed exercised his right of eviction and had taken possession of the lands and had given them to other persons of his own choice.
But it is difficult to draw that inference in the absence of any reliable evidence that the zamindar had evicted ryots who had executed the muchilikas and had then inducted fresh ryots on the land.
The reason why Venkamma was omitted after 1893 from the muchilikas and pattas of the land and in her place Ramanna was substituted will be presently mentioned.
After the death of Thammiah, his rights in the land would undoubtedly devolve by the law of inheritance upon his surviving daughters with limited interest.
But the fact that muchilikas were taken from persons who were strictly not heirs according to Hindu law, but were still 667 representatives of the family, will not justify an inference that the right of the original ryots were extinguished and fresh rights in favour of persons who executed muchilikas were created.
The two daughters in law Chetamma and Venkamma after the death of Thammiah, continued to live in the.
family house together with Sesharama.
Veerayya and Rudriah, and it is not unlikely that the zamindar regarded the two daughters in Law as representatives of the family and took muchilikas from them.
there is no warrant for the inference that they were inducted on the land in independent right by the zamindar arid not as representatives of the descendants of Thammiah.
The learned Judges of the High Court observed that "in 1895 (when Ext.
D 4 was executed) in country parts like Pandalpaka, it is too much to assume such a second knowledge of Hindu law.
Besides, Venkamma and Chetamma were, admittedly, living a,long with Veerliah and Rudrayya and Ramanna and Bhavamma during Thammiah 's life time, and continued to live in that some 'house after his death .
So, we have no doubt that the Maharaja of Pittapur, the zamindar, never intended.in the least to take away the B Schedule lands from Tammayya 's heirs and given them to Venkamma and Chittemma who were not heirs and we hold that he renewed the patta in favour of these two windows, as they were considered by him to be representing Tammayya 's estate, being his widowed daughters in law.
our view, this in the circumstances of the case, is a correct inference.
It appears that after 1895 there arose disputes between Veeriah and Venkamma and it was arranged to provide maintenance to Venkamma out of the estate of Thammiab.
, Ext.
P 1 dated May 16, 1.899 records the terms on which maintenance was granted.
This document has a very importal Lt bearing on the question which falls to be decided in this appeal.
1 b is received i@.a E2:t.
P 1 that all the properties of Thammiah had, devolved,, after 668 his death, upon his "dowbitras" (daughter 's sons), Rudriah and Ramanna and that the two "dowhitras" were bound to maintain the widowed daughters in law Chetamma and Venkamma and that accordingly they. were being ' maintained, but a Venkamma was unwilling to live in the family house, it.
Was decided to give her for maintenance expenses Rs.25 and 240 kunchams of white paddy per year besides a house, for residence.
This deed recites that out of the estate of Thammiah the two widows Chetamma and Venkamma were in fact being maintained that the estate was inherite I by Rudriah and Ramanna, and recognises the right of the widows to receive maintenance out of the estate.
There is no evidence on the record that besides the lands mentioned in Schedule 'B ' there was any other agricultural land of which Thammiah was possessed and which had devolved upon Rudriah and Ramanna.
It is admittedly out of the property of Thammiah which had devolved upon Rudriah and Ramanna that maintenance was agreed to be given, and if Thammiah was not possessed of any property other than the lands in Schedule "B ', Ext.
P 1 must lend strong support to the inference that the lands in Schedule 'B ' were regarded at the date of the maintenance deed as belonging to the estate of Thammiah out of which Venkamma was entitled to maintenance.
The assumption that the property had, devolved upon Rudriah and Ramanna is evidently not true.
long as the daughters or any of them were alive, they were, according to the Hindu law applicable to the Madras Presidency, owners, though for their lifetime only, of the estate left,. by Thammiah.
P 1 does therefore land support to the case of the plaintiff that the property was regarded as belonging to the family in which all persons who were living in the house of Thammiah, including the two daughters in law., had;, interest.
After.
maintenance was provided to Venkamma by Ext.
P 1 her name was omitted from the muchilikas and the pattas subsequently Pattas D 6 and 669 D 8 are as we 'have already stated, 'in favour of Chetamma and Ramanna.
It is true that rent was enhanced by the zamindar from time to.
time under the muchilikas.
During the life time of Thammiah the annual rent was Rs. 419 8 0 and it .remained unchanged, but after his death the rent, even though the area 0f the land continued to be ' the same, was enhanced to Rs. 481 8 0 under Ext.
There is some error in totaling tip the amount of rent,, but the enhancement of rent by Rs. 52 is substantially the result of alteration of rent of Sr. No. 315.
Originally the rent of Sr. No. 315 was Rs. 29 3 9: it was enhanced to Rs. 81 3 9.
under Ext.
D 5 the rent is Rs 537 (it should have, been Rs. 473), but that again, is the result of some error in totaling, the only enhancement being in respect of No. 358 which was increased from Rs. 5 to Rs. 6 8 0. 'In Ext, D 6 of the year 1904 the rent of this land was enhanced to Rs. 60 8 0 and rent in respect of, Sr. No. '315 was enhanced to Rs. 91 3 9.
The High Court has held that this enhancement of rent of the two lands Nos. 315 and 358 was presumably because the lands were irrigated, and, having regard to the circum stances, we think the inference of the High Court is correct.
Enhancement of rent of the lands from time to time does not lend support to the inference that fresh pattas and muchilikas were not in recognition of the previous rights.
It is, pertinent to note that in the records of the zamindar all the muchilikas in respect of the lands bore No. 12, during the life time of Thammiah and after his death they bore No. 23.
The circumstance that the same area of land remained in the occupation continuously of the family of Thammiah under Exts.
D 1 to D 8 for a period exceeding 25 years also lends support to the plea of the plaintiff.
It is true that by his notice Ext.
D 7 the zamindar called upon Ramanna and Chetamma to vacate.
the kumatam (which term is translated by the learned counsel for the respondent as home farm) lands of the extent of 51 acres 72 cents.
But by the year 670 1905 it was well known that legislation of the nature,which was ultimately enacted as the Madras Estate Land Act, 1908, was on the legislative anvil and no reliance can be placed upon the statements made in the notice which does 'not appear to have been followed by proceedings, for enforcement of the claim to possession.
It is common wound that on January 16, 1906, the zamindar issued in favour of Chetamma and Ramanna a patta in respect of the same lands.for an annual rental of Rs. 578 4 0, rent having been enhanced in respect of Sr. No. 46 and 358 only.
The High Court placed strong reliance upon the circumstances that in all the muchilikas and pattas the lands were described as "jeroyati lands" and the tenants were described as "joroyati ryots".
The High Court observed that "jeroyati ryot" was a well known term indicating prima: facie posses sion of occupancy rights.
However, the state of the authorities in the Madras High Court to which cur attention his been invited does not justify as in expressing any definite opinion on that plea.
In Zamindars of Bodokimidy vs Badankayala Bhimayya(1), Curgenven, J. held that the phrase "on jirayati tenure ' is only used where occupancy rights exist.
But beyond the bare statement in the judgment that "the phrases" on jirayati tenure being so far as my experience goes, only used where occupancy rights exist", there is no further elaboration in the judgment.
In (Ivaturi) Lingayya Ayyavaru vs Kandula Guningiah (2), Wallace, J., without referring to the earlier judgment of Curgenven, J., observed that the term "jeroyatidar" did not imply that; the executant was an occupancy ryot.
Here also no reasons appear to have been given in support of the view.
In Dadamudy Tatayya vs Kelachina Venkatasubbarayya Sastri (3), Devadoss, J., in the course of hearing in appeal called for a finding from the (1) A.I.R 927 Mad.
(2) A.I.R. 1928 Mad. 58.
(3) A.I.R. 1928 Mad.
671 trial Court as to the meaning of the word jeroyati" as used in the Vuyyur Zamindari and as to the meaning of the expression "savaram jeroyiti" used in documents in that estate.
The Subordinate Judge recorded evidence on the question referred to him, and observed after referring to Brown 's Dictionary and Wilson 's Glossary, that the word " 'jeroyiti land" may mean "cultivable or arable land", but it was only the context that must decide which meaning was to be given to the word.
He also observed that the word " 'jeroyiti" especially when prefixed to the word " 'right" or hakku had come to mean "rights of occupancy".
This report of the Subordinate Judge, it appears, was accepted by the High Court.
These are the only decisions of the Madras High Court to which our attention was invited.
The task of this Court, in ascertaining the special meaning which an expression used in the revenue administration and by the residents of a certain area has acquired, is indeed difficult.
If the expression "jeerayot" is a local variation of "Zeerait" used in the revenue administration, especially in Northern India, it may mean " assessed" land, or "agricultural" land.
On the material.% placed, we are unable to express any definite opinion on this part of the ease of the plaintiff.
To summarise, there is no evidence to show that occupation of the lands by Thammiah commenced under the zamindar ; and there is no evidence as to the terms on which Thammiah or his predecessors were inducted on the lands: the commence ment of the tenancy and the terms there of are lost in antiquity, but Thammiah and his descendants are proved to have continued in possession of land uninterruptedly till the enactment of the Madras Estates Land Act, 1908.
In the light of the presumption that the zamindar is, unless the contrary is proved, the owner of the melvaram and the ryot the owner of the kudivaram the inference is irresistible that Thammiah was the holder of the 672 occupany rights in the lands and that these rights devolved 'upon,.
his successors and that the, occupancy rights in the lands were not acquired by virtue of the provisions of Madras Act 1 of 1908.
Before parting with the case a minor question relating to mesne profits awarded to the plaintiff ,and defendants 31 and 32 must be mentioned.
By his plaint the plaintiff claimed mesne profits in respect of his share for three years prior to the date of the suit.
He valued the claim for mesne profits at Rs. 3,800 past profits on plaintiffs 1/3rd share for two years 1940 and 1941 at Rs. 2,280 and past mesne profits on plaintiff 's 1/3rd shares for the year 1942 at Rs.1,520.
The trial court dismissed the plaintiff 's suit as to his share in property described in Schedule 'B '.
The High Court in awarding a third share to the plaintiff and another third share to defendants 31 and 32 collectively also awarded past mesne profits from the 18th of March, 1935, i.e., the date of the death of Bhavamma, alone with future mesne profits regarding the shares in the B and the C Schedules properties.
But the High Court could not award mesne profits prior to August, 1940 which had never been claimed by the plaintiff in the suit.
We therefore modify the decree of the High Court and direct that mesne profits 1940.
Subject to that modification the decree passed by the High Court is affirmed and the Appeal is dismissed with costs payable by the contesting defendants to the plaintiff.
Appeal dismissed subject to modification.

summary:
The lands in question which were within the permanently settled Zamindari in the then presidency of Madras, belonged to T who, during his lifetime, was cultivating the lands.
He died in 1885 leaving behind, inter alia, three daughters.
After the death of the three daughters, the last having died in 1935, the sons of one of them instituted a suit against the descendants of the other two for partition and separate possession of a third share, inter alia in the lands in question on the footing that T owned occupancy rights in the lands.
The suit was resisted on the plea that T had, no proprietary right in the lands, that he was only an annual tenant of the Zamindar, that after his death the lands were held on similar tenure by different members by his family and that occupancy rights were acquired by those members of his family who were in possession of the lands when the Madras Estates Land Act, 1908, came into force in 1908.
There was no evidence to show that the occupation of the lands by T commenced under the Zamindar, nor was there any evidence as to the terms on which he or his predecessors were inducted on the lands, the commencement of the tenancy and the terms thereof being lost in antiquity, but he and his descendants were proved to have continued in possession of the lands uninterruptedly till the enactment of the Madras Estates Land Act, 1908.
Held, that in cases in which a ryot 's holding is not shown to have commenced subsequent to the permanent settlement, the presumption is that Zamindar was only the holder 654 of the melvaram being the assignee of the Government revenue, and that the kudivaram in the land belonged to the ryot who Was entitled to continue in possession as long as he paid the rent regularly; and that this principle was applicable equally in a Suit between persons claiming under the ryot as in a suit against the ryot by the Zamindar.
Case law relating to the rights of ryots in Zamindaries in the Madras Presidency reviewed.
Held, further, that T was the holder of the occupancy rights in the lands, , that these rights devolved upon his successors and that the said occupancy rights were not acquired by virtue of the provisions of the Madras Estates Land Act, 1908.


judgement:
Appeal No. 324 of 61.
Appeal by special leave from the judgment and decree dated December 23, 1960, of the Mysore High Court in Second Appeal No. 61 of 1954.
C. K. Daphtary, Solicitor General of India, J. B. Dadachanji, Ravinder Narain and O. C. Mathur, for the appellants.
R. Ganapathy Iyer and G. Gopalakrishnan, for the Respondent No. 1. 878 1961.
September 27.
The Judgment of the Court was delivered by SINHA, C. J.
This appeal by special leave granted by this Court on April 20, 1961, is directed against the concurrent decisions of the courts below decreeing the plaintiff 's suit for ejectment on the ground that the defendant is a tenant at will and negativing the appellants ' claim to a permanent tenancy.
The controversy between the parties depends upon the true construction of the lease dated October 26, 1914, executed between the predecessors in interest of the parties to the present litigation.
The facts leading up to this appeal are as follows: One N. J. Gamodia of Bombay took on lease a piece of agricultural land measuring about 4 1/2 acres belonging to one Gurupadappa of Devangere City for the purpose of erecting a Ginning and Pressing Cotton Factory.
The terms of the registered lease deed dated October 26, 1914, in so far as they are material for the determination of this appeal are better stated in the relevant portions of the deed itself: "1.
For the 1st period of 20 (twenty) years commencing from the 1st October, 1914, and ending on the 30th day of September, 1934, you shall pay to me Rs. 350/ (three hundred and fifty) rupees being the annual rent reserved every year in advance and obtain proper receipts of the payment from me.
If before the expiration of the said period of 20 (twenty) years you will remove your factory from the said land hereby leased you are bound to pay me annually the rent of Rs. 350/ (three hundred and fifty rupees) for the (torn) 20 (twenty) years but you are entitled to retain in possession of and, the road till the 30th September, 1934.
876 2.
After the expiration of the said period of 20 (twenty) years mentioned in the 1st clause hereby you shall be at liberty to con tinue the lease of the said land and the said road and keep the said land and the said road in your possession as long as you may desire to do.
In case of your thus continuing the lease of the said land and the said road you shall pay to me annually the sum of Rs. 400/ (four hundred rupees) as rent of the said land and the said road for 1st ten years beginning from the 1st October ', 1934, and ending on the 30th September, 1944, and after the expiration of the period of ten years the annual rent payable by you for the said land and the said road will be Rs.500/ (five hundred rupees) per annum but you shall always be at full liberty to give up the said land the said road and terminate this lease at any time you may desire so to do after the 1st October, 1934, and the rent payable in respect of the said land and the said road shall cease to be paid by you from the time you may give up the said land and the said road after the 1st October, 1934.
But I agree and bind myself not to call upon you at any time to give up the possession of the said land and the said road as long as you may desire to keep the same for your purposes observing the terms of this agreement.
3. . . . . . . . 4.
. . . . . . . 5.
You are at full liberty to erect, as many buildings, godowns, factories, bungalows and other structures etc.
as you may desire on the land hereby leased and to pull down, re erect and make any alterations in the same as you may desire.
I shall not raise any objection to your erecting any such structures on the, land or to your use, and enjoyment of 880 the land in any way or for any purpose as you may desire.
. . . . . . . 7.
I hold myself liable, to pay always the annual assessment of the land hereby leased to Government you shall not be liable for such land assessment.
But you shall be liable 'to pay all fines and other taxes which the Government will hereafter impose for having converted the parable 'or cultivable land into land for factories and building purposes.
. . . . . . . . 9. . . . . . . 10.
You shall be always entitled and have full liberty to sublet or re let the said land together with the said road for any purpose to any other person or persons on any conditions you like but without effecting in the least any of the conditions or terms of this lease.
. . . . . . . 12. . . . . . . 13.
. . . . . . . 14.
This lease is binding on me, my heirs, executors, administrators, successors and assigns as well as on your heirs, executors, administrators, successors and assigns.
I have hereby by this writing granted you this lease by ;my own free will and in my full senses and I bind myself to abide by its terms and conditions mentioned above".
The said lessee, N. J. Gamodia died in 1916 leaving a will appointing executors to look after his affairs.
The executors assigned the lease to the second defendant, Gamodia Factories Limited by a deed dated November27, 1933.
The assignee like the original tenant continued to pay the stipulated rent 'to the lessor Guru padappa till his death which 881 occurred in May, 1939. 'The second defendant in its turn assigned its leasehold interest to the first defendant by a deed dated May 30, 1944.
It is common ground that the leasehold property contains factory, buildings and residential quarters.
After the lessor 's death his two widows continued to receive rent from the lessees as usual.
The plaintiff is the adopted son of the original lessor and was a minor till some time in 1949.
The plaintiff sought to terminate the tenancy by issuing notices to the defendants on, the ground (1) that the lease bad created a tenancy at will in the events.
that had happened; and (2) that the original lessee had in contravention of the terms of the lease, assigned the benefits under the lease in favour of the defendants.
As the defendants did not vacate the premises and deliver possession of them to the plaintiff, in terms of the notice aforesaid, he instituted the suit giving rise to the present appeal for a declaration that the defendants were tenants at will and that their possession after service of notice was wrongful, The suit was.
resisted by the first defendant principally on the ground that the lease created not a tenancy at will as claimed by the plaintiff but a permanent tenancy, hence there is no question of the defendant being ejected on the grounds alleged in the plaint.
The courts below have decreed the suit and ordered the defendant appellant to give up porsession.
In the trial court, a number of issues were struck between the parties.
The most important issue upon which the result of the litigation largely defended was the one relating to the nature of the lease created by the lease deed aforesaid.
The trial 'court held that it was a lease for 20 years certain, ,and on the efflux of that period on October 26,_ 1934, the second defendant became a tenant at will and as such the tenancy could be terminated at the will of either party, the second defendant and the first defendant were liable to be ejected on service of the 882 necessary notice, which is found to have been properly served.
In the result, the plaintiff 's suit was decreed with costs and the defendants were directed to quit the land and the road annexed to the land.
and to restore possession of the premises to the.
plaintiff after removing the iron and steel machinery and other appurtenances of the factory, but leaving intact the residential quarters and the appurtenances of those quarters.
On appeal by the defendants, the lower appellate court affirmed the finding of the trial court and dismissed the appeal with this modification that the defendants were given six, months ' time to restore possession to the plaintiff after removing their machinery etc.
The lower appellate court made some other modifications also which are not material to this appeal.
On second appeal by the first defendant, the High Court dismissed the appeal with costs, but modified.
the findings of the two courts below in so far as it held that after the lapse of the first 20 years of the lease, the tenancy was not a tenancy at will, but a tenancy for an indefinite period which would be valid for the lifetime of the lessee himself as also of the transferees of the lessee namely the second defendant, which is the 'company inasmuch as the original lessor in his lifetime had accepted the assignment of the lease in favour of the second.
defendant.
The High Court also held that as the second defendant was admittedly no longer in possession of the leasehold and as there has been an assignment to the first defendant, the transfer was not binding on the plaintiff and therefore the first defendant did not become the plaintiff 's tenant.
In that view of the matter, the judgment and decree of the courts below were confirmed with the modification that the appellants were given four month 's time to vacate and deliver possession of the premises to the plaintiff The first defendant made an application to ' the High Court for the necessary certificate of fitness for coming up in appeal to this court. but the High Court by its order dated March 29, 1961, 883 refused to grant the certificate.
As time was running against the first defendant, he hurried up to this court by a petition for special leave to appeal dated April 10, 1961.
On April 20, 1961, this court granted special leave to appeal.
That is how the matter comes before us.
The controversy between the parties must be determined on a reference to the terms of the lease deed on a proper construction of which the rights and obligations of the parties must be determined.
If it is held that after the lapse of the first 20 years of the lease, the defendants became tenants at will, there is no answer to the claim for Possession of the premises.
If it is held, as it had been held by the High Court, that the second defendants interest as an assignee of the original lessee created a lease for an indefinite period in favour of the assignee which would enure for the life of the assignee namely the company, then the further question will arise whether or not the first defendant appellant before us had acquired the same interest by virtue of the transfer in his favour.
That is one of the alternative arguments raised on behalf of the appellant by his learned counsel.
The learned counsel for the appellant also mentioned the ground founded on the provisions of the Mysore Rent Act ; but as that defence has not been raised in the pleadings of the defendant and as that point has not been canvassed in the High Court, we ruled that we shall not permit that contention to be raised here.
But the substantial ground on which this appeal has been pressed upon us is that by virtue of the lease deed.
of the year 1914, on a proper construction of that grant, a permanent tenancy was created.
If that is so, it is common ground that the suit must fail.
Naturally therefore, the main argument at the bar on both sides has been devoted to the question, whether or not the lease deed evidences a perpetual grant to the lessee on the terms and conditions contained in the lease deed.
884 Addressing ourselves to that Question, it is clear on a construction of the document Ex I that it was a lease of the demised premises for a term of 20 years certain, on payment of Rs. 350/ annua rent in advance, even though the lessee may not continue to occupy the demised land; that the lessee had been granted a right to continue the lease of the demised premises as long as the lessee desired to do so ; that on his choosing to continue to enjoy the leasehold, the lessee was obliged to pay annually the enhanced rent of Rs. 400/ for the next ten years after October 1, 1934, and after the expiration of the ten years aforesaid, the rent was further enhanced to the sum of Rs. 500/ per annum ; that the lessee was given the option to give up the lease at any time after October 1, 1934, without any further liability for payment of the stipulated rent ; that (and this is a very important stipulation) the lessor bound himself not to call upon the lessee at any time to give up possession of the ease hold as long as the lessee was prepared to observe the terms of the lease, that the lessee was fully authorised "to erect, as many buildings, godowns, factories, bungalows and other structures etc. " as also to pull down and re erect structures or to make any altera tions, as desired by him ; that the lessor undertook not to raise any objection to the lessee making those structures or his using or enjoying the land in any way or for any purposes according to his desire; that the lessor undertook to pay the annual assessment to Government in respect of the demised premises but the lessee was obliged to pay all fines and other taxes which Government might impose for granting permission to convert the culturable land into land meant for building factories and other structures as contemplated between the parties, that if the lessee chose to give up possession of the demised premises, he shall be entitled ' to take away all machinery, iron and steel, wood works etc.
of the factories, buildings and other structures that may be standing, that in the event of a default in the payment of the annual rent fixed as aforesaid 885 upon notice of demand served upon the lessee, the reserved the right to re take possession of the demised land.
The lessee was also declared by para.
10 quoted above to be always entitled to sub let or re let the demised land to any person and on any terms.
As the lease was apparently for the purpose of converting agricultural land into factory premises necessary for running the factory, it was specifically provided that if the Government refused Co give the necessary permission for setting up the factory,, the lease shall be deemed to be ,cancelled.
13 also contains a stipulation that the heirs and assigns of the lessor shall have.
no right to disturb the lessee in peaceful possession of the demised premises, and that in the event of any such interference, the lessee shall be entitled to claim damages for the loss suffered by any action on the part of the lessor or his heirs or successors.
14 is also a very important clause in the lease deed, which though coming as the last clause, must 'govern all the stipulations between the parties.
Thus the terms and conditions of the lease which created the rights and obligations between the lessor and the lessee were specifically declared to be binding on the heirs and successors in interest of the lessor and the lessee.
It is manifest, therefore, on a plain construction of the terms aforesaid of the lease deed that the purpose of the transaction was a building lease that though there was liberty reserved for the lessee or his successor to give up the lease hold at any time after October 1, 1934, no corresponding right was reserved to the lessor.
Thus there is no room for the controversy which has occupied a large portion of the judgments of the courts below, that reservation of the right to the lessee to surrender possession at any time, imported a corresponding right to the lessor to call upon the lessee to give up possession.
It was an advantage specifically reserved to the lessee without any corers ponding benefit to the lessor.
It is equally clear 886 that the lease was heritable and assignable.
Thus there is no difficulty in holding that there if; no room for the contention, on the terms of the lease, that the parties intended that after the lapse of the first 20 years of the lease, the tenancy will be merely a tenancy at will.
It was clearly a tenancy for an indefinite period, at the least.
The contention on behalf of the appellant is that on a proper construction of the lease deed, read as a whole, the inference is clear that the parties intended it to be, a permanent lease.
The first argument in support of the conclusion we are asked to arrive at is that it is clearly a lease for building purposes ; and it is rightly pointed out that where the land is let out for building purposes without a fixed period, the presumption is that it was intended to create a permanent tenancy.
Reliance, was placed upon the leading case in Navalram vs Javerilal (1) where Sir Lawrence Jenkins, C. J., laid it down that a presumption in favour of a permanent tenancy arises on a transaction like the one we have before us.
The terms of the grant in that case are set out in 11 at p. 402 and it is clear on a reference to those terms that the deed was not as strong as we have in the in stant case.
Only two things were explicit in the terms of that document, namely, (1) that it was a lease for building purposes and (2) that as long as the lessee continued to pay the stipulated rent, the lessor would not be entitled to call upon the lessee to quit.
Reliance was also placed upon the decision of the Calcutta High Court in Promada Nath Roy vs Srigobind Chowdhry (2).
In that case the Kabuliat did not specify any period during which the lease was to subsist.
It had been stipulated that the land was to beheld from year to year at an annual rent and that in the event of a masonry building being erected on the land, rent was to be assessed at the prevailing rate.
Eventually, the tenant (1) (1905) 7 Bom.
L. 401.
(2) Cal, 648 887 built the structure on the land.
It was held by, the Calcutta High Court that ' the parties contemplated the lease to be for building purposes 'and that therefore the court could presume that the lease was intended to be permanent.
The terms of the lease in that case also were not as telling an in the case 'before us.
Similar was the case of Forbes vs Hanuman ,Bhagat (1) decide by a Divison Bench of the Patna High Court which applied the decision of the Calcutta High Court in Promada Nath Roy vs Srigobind Chowdhry (1) to the case before it.
That case was followed by a subsequent Division Bench in the case of Commissioner of Income tax vs Maharajadhiraj Kumar Visheshwar ' singh(3).
Fazl Ali, J. , who delivered the leading judgment of the court relied upon the decision of their Lordships of the Judicial Committee of the Pi ivy Council in the case of Janaki Nath Roy vs Dina Nath Kundu (4).
Mr. Justice Fazl Ali particularly relied upon two circumstances which in his view supported the inference of the tenancy being permanent, namely., (1) that no term had been fixed in the lease and (2) that the lease deed contained provisions for the exercise of certain rights by the heirs of the lessor and the lessee, apart from the circumstance that the building was for enabling the lessee to build a gola (ware house) and a platform for a rice mill.
In all these cases decided by the Bombay, Calcutta and Patna High Courts as also by the Judicial Committee, there was no fixed period as the term of the lease.
But it was contended on behalf of the plaintiff respondent that the term expressly granting the lessee the right to give up possession at will was wholly inconsistent with the permanency of the tenancy.
In our opinion the presumption raised by the fact that the lease was for building purposes and therefore intended to be permanent is not weakened by the fact that the lessee had stipulated (1) Pat.
(2) Cal.
(3) Pat.
(4)(1931)35 C.W.N.982.
888 with the lessor to be entitled to give up, possession if and when he decided to do so.
It is a, right reserved in favour of the lessee and did not confer, as already pointed out, any corresponding right, on the lessor.
Such a right in favour of the lessee cannot be converted into a disability or an obligation which should detract from the grant of a permanent tenancy.
Such a stipulation which gives a right to the tenant to surrender the lease hold at any time be decided to do,so, if it is coupled with a corresponding right in the landlord to serve notice of ejectment at any time he chose to do so may have the effect of making the tenancy, a tenancy at will, but such a conclusion has been negatived by the High Court and rightly enough.
In this connection the following 'Observations of the Privy Council in the case of Baboo Lekhraj Roy vs Kunhya Singh (1) may be quoted: "If a grant be made to a man for an indefinite period, it enures, generally speaking for his lifetime, and passes no interest to his heirs unless there are some words shewing an intention to grant an hereditary interest.
That rule of construction does not apply if the term for which the grant is made is fixed or can be definitely ascertained".
In that case, a lease had been granted to the respondents ' ancestor to continue during the term of the mokurruri of the grantor.
The grantor 's term could be terminated by the owner (in this case the Government) at the end of a year, a power which had never been exercised.
In a suit for ejectment by the successor in title of the original lessee, it was held by the Privy Council that the general rule that a lease of an indefinite nature enures for the life of the grantee did not apply to the case, because the interest of the lessor itself had paused from generation to generation.
In this case, it has been found by the High Court that.
after the lapse of the first 20 years of the (1) (1877) L. R. 4 I.A. 223,252.
889 lease, the lease became one for an indefinite term Which meant on the authority of the decision of the Bombay High Court in Babasaheb vs West Patent Co., Ltd.(,) to which one of us sitting in the Bombay High Court (Gajendragadkar, J.) was a party, a lease for the lifetime of the lessee.
The facts of that case were similar to those of the present except in so far as there do not appear in the lease any such terms as are contained in cl.
14 of the lease deed in the instant case.
The Bombay High Court therefore had not to consider the terms of a lease which could be said to be in pari materia with those of the present.
In that case, the court had to choose between two rival contentions, namely, (1) that the lease created a tenancy at will and (2) that the lease was a lease good enough for the lifetime of the grantee, if it was not indeed a permanent tenancy.
We are in complete agreement with the following observations of the court made in that case, which in our opinion apply to the facts and circumstances of the case in hand "The forms in which tenancy rights are created in India are not uniform and they do not conform to precedents known to conveyancing ; sometimes the words used are not precise and it is not easy to understand from the said words the intention of the parties in executing the documents.
Leases are often executed without legal assistance; and the aid that the parties obtain from professional scribes does not always contribute to make the terms clear or precise.
The nature of the tenancy created by any document must never theless be determined by construing the docu ment as a whole.
If the tenancy is for a building purpose, prima facie it may be arguable that it is intended for the life time of the lessee or may in certain cases be even a permanent lease.
Prima facie such a lease is not intended to be tenancy at will.
But whether it is a tenancy for life or a permanent (1) I. L. R. , 4 50.
890 tenancy must ultimately depend upon the terms of the contract itself.
And in construing the terms of 'such contracts the courts must look at the substance of the Matter And decide what the parties really intended to do.
" Our task therefore in the present case is to determine what the parties really intended to do.
In this connection, it is pertinent to ' re emphasise the following facts : the lessee with a view to raises a substantial structure by way of factory premises, residential quarters and other appurtenant buildings, took a lease of extensive land, about 4 1/2 acres in area ; those lands, at the time of the transaction in question, were being used for agricultural purposes with the permission of the Government who were the ultimate owners.
Its character could be changed with the permission of the Government on payment of certain prescribed fees and charges.
The parties could not he certain of obtaining the necessary Government sanction to the conversion of the tenancy from agricultural to building purposes.
Therefore the stipulation was clearly made that in the event of the Government refusing to sanction the con version, the lease will be deemed to have come to an end.
If the permission were forthcoming, and if the lessee put up substantial structures, it would be in his interest to continue in possession of the premises demised by the lease as long as he found it worth his while, but the lessee may have apprehended that circumstances might supervene neces sitating his walking out of the venture.
He therefore had to make provision in the lease entitling him to surrender the lease so as to avoid the liability for payment of future rents.
But the lessor on his part would be equally anxious to conserve his rights and therefore 'he 'insisted upon the payment of rent for at least 20 years irrespective of the consideration whether or not 'the tenant continued 891 to occupy the premises.
Thereafter, the lessor stipulated for enhanced rent of Rs.;.
400/ per annum for the first ton years after the initial period of twenty years aforesaid, and Rs. 500/ thereafter for all times that the lessee continued to occupy the premises.
It could not therefore have been in the contemplation of the parties that the lease should be only for the life of the grantee or for an indefinite period which could be terminated at the will of the lessor.
In order to ensure that the lessor, should not eject the lessee, at his sweet will, the term was specifically included in the lease that it will not be open to the lessor to do so.
It must, therefore, be held that a stipulation entitling the lessee to surrender possession of the premises at his will is not wholly inconsistent with the tenancy being permanent.
In this connection, the following observations of the Judicial Committee of the Privy Council in the case of Janaki Nath Roy vs Dina Nath Kundu (1) may be quoted : "On the other.
hand, restrictions upon the power of the tenant to dig tanks and build masonry structures (el. 8) and other provisions in the document were relied upon by the Appellants as indicating a tenancy not of a permanent nature.
That some provisions are to be found which point in that direction cannot be denied though some of them may be explained by the existence of the special powers to resume Khas possession referred to above.
But the question after all, is one of construction of a document, viz., what is the correct view to take of the rights of the parties after considering all the clauses of the kabuliyat and giving due weight to the several indications which point in the different directions ?" It is noteworthy that the lease was intended by, the parties to be heritable and assignable.
It (1) (1931) 35 C.W.N. 982, 986. 892 was a lease for twenty years certain, and then in terms which are not wholly unequivocal in respect of the period after the lapse of the initial twenty years.
That the lease was not intended to be for the life only of the grantee is clear not only from the facts already noticed, namely, that it was meant for building purposes, was heritable and assignable and had not reserved any right to the lessor to terminate the tenancy, but also from the consideration that the lessor would not gamble upon the life of his lessee when he was making sure of the term of at least twenty years.
He must have.
known that the factory worked for twenty years, it would go on for ever, according to human calculations.
The fact that the lessee stipulated in express terms that he shall always be at full liberty to give up the lease after October 1, 1934, it was argued, was a clear indication of the lease not being a permanent one ; in other words, the contention is that the presumption arising from the fact that the lease was for a building purpose, heritable and assignable is rebutted by the fact that the tenant had insisted upon the stipulation aforesaid.
In oar opinion, there is no substance in this contention.
It is always open to a lessee of whatever description to surrender his leasehold interest to the lessor, by mutual consent.
It is not necessary in law that the mutual consent should be at the time ' the surrender is being made.
It is open to the parties to stipulate terms in anticipation of such a surrender.
In the instant case, the surrender was to be in express terms agreed to by the parties, at any time after the lapse of the initial period of twenty years.
Such a stipulation for the benefit of the lessee cannot be construed as in derogation of the permanency of the tenure, if the parties otherwise agreed to create such a tenure.
For the reasons aforesaid, it must be held that the High Court was in error in holding that the present case is governed by the decision of the 893 Bombay High Court in I.L.R.
That decision was, with all respect, entirely correct on the terms of the document then before the court.
That being so, in our opinion, on a true and proper construction of the lease deed, the presumption in favour of the transaction creating a permanent lease cannot be held to have been rebutted by a stipulation in favour of the tenant having the right to surrender the lease at his choice.
That being so, it must be held that the lease deed evidences an intention to create a permanent lease.
In view of this finding, it is not necessary to advert to the other contentions raised on behalf of the appellants.
For the reasons given above, the appeal must be allowed; the judgement and decree of the courts below are set aside and the suit giving rise to the appeal dismissed with costs throughout.
Appeal allowed.

dataset_name: IN-Abs

summary:
The material terms of the lease in.
controversy provided that for the first 20 years the lessee was to pay a fixed rent of Rs. 350/ every year in advance and if if removed his factory within that period be would still have to pay the 'said rent for the twenty years retaining his right to possession; that thereafter he would be free to continue the lease, as long as he liked subject to the payment of the annual rent of Rs. 400/for the first 10 years and thereafter of Rs. 500/ per year, with the right ' to terminate the, lease at any time and the lessor would not have the right to call upon him to give up possession at any time as long as if wanted to, keep the land for his purposes observing the terms of the agreement; that the lessee would be entitled to raise buildings godowns, factories, bunglows or any other structures as he desired; that the lessor would pay the annual land assessment to the Government and the lessee would pay any fines and taxes imposed by the Government for using. agricultural land for building purposes; that the lessee would be free to sublet or relet without affecting the terms and conditions of the lease and that the heirs, executors, administrators, successors and assigns of the lessee as much as those of the lessee would remain bound by the lease.
After more than twenty years had elapsed since the lease, which was a registered one, had been executed between the predecessors in interest of the parties, the respondent who succeeded to the original lessor 's title, brought the suit, out of which the present appeal arose, for ejectment of the assignee of the lessee 's interest on the ground that the lease created a tenancy at will and stood determined on service of notice to quit.
The trial court and the court of first appeal found in favour of the respondent and decreed the suit.
The High Court in second appeal confirmed the decree but relying on a decision of the Bombay High Court in Bavasaheb vs West Patent Co, Ltd. I.L.R. , held that after the lapse of the twenty years the lease was one for an indefinite period and could enure only during the lifetime of the lessee and such 877 assignees as bad been accepted by the original lessor and since the present assignee was not one of them he acquired no right under the lease.
Held, that the lease, read as whole and properly construed, created a permanent tenancy and not a tenancy at will or one for an indefinite period valid only during the life of the lessee.
It was not correct to say that the stipulation, granting the lessee the right to surrender the lease at any time after the first twenty years gave to the lessor in the absence of such a provision in the lease itself, the, right to call upon the lessee to at quit any time or that the stipulation was inconsistent with a permanent tenancy.
The presumption attaching to a lease for building purposes for no fixed period, therefore, was not weakened in the instant case.
Janaki Nath Boy vs Dina Nath Kundu, (1931) 35 C.W.N. 982 and Baboo Lekhraj Boy vs Kunhya Singh, (1877) L.R. 4 I.A. 233, referred to.
Babasaheb vs West Patent Co., Ltd., I.L.R. , distinguished, Navalram vs Javerilal, , Promada Nath Roy vs Srigobind Choudhry Cal.
648, Forbes vs Hanuman Bhagat, Pat. 452 and Commissioner of Income tax vs Maharajadhiraj Kumar Visheshwar Singh, Pat. 805, discussed.
Held, further, that it is always open to a lessee of any description to surrender his lease hold interest to the lessor by mutual consent.
It is not necessary in law that there should be such consent at the time when the surrender is made.
Since in the instant case, the surrender after the lapse of twenty ) cars had in terms been agreed to by the parties and that stipulation was for the benefit of the lessee, it could not be construed as in derogation of his right to a permanent tenancy.