Decided on October 29,1953



Mack, J. - (1.) This petition raises an interesting point of law whether a sub-tenant, who deposits two months' rent under Section 4(5) of Madras Act 24 of 1949 and obtains stay of the trial of a suit for eviction in which there is also a claim for rent, is entitled to recover this deposit from the tenant by a suit under Section 69, Contract Act. The District Munsif of Nadapuram dismissed the suit by the plaintiff, who was a sub-tenant impleaded as the sixth defendant to recover a sum of over Rs. 400 he had deposited in a suit O. S. No. 291 of 1945 instituted by three plain- tills. The deposit was made in court on 25-11-1946 and recorded in court on 15-11947. The learned District Judge of North Malabar reversed the decision of the District Munsif. who held that the sub-tenant was not entitled to recover under Section 69, Contract Act and gave the sub-tenant plaintiff a full decree with costs. In his judgment the learned District Munsif referred to his having decided this question against the depositing sub-tenants in another case.
(2.) Two decisions of this court have been placed before me, both arising out of the same learned District Munsif's judgments one by Raghava Rao J. in C. R. P. No. (sic)7 of 1950 (A), the judgment being dated 5-9-1952 in which he look the view that on the facts of the case before him, the deposit made by the sub-tenant under this Special Act for the purpose of obtaining stay cannot be regarded as a payment made either expressly or by implication of law on behalf of the defendant-tenant. A different view was taken by Ramaswami J. in C. R. P. No. 663 of 1951 (B) a case arising from this same District Mimsif's Court in which in his judgment dated 23-4-53, after an elaborate consideration of much case law, he held that the right of a subtenant to recover a deposit made under the Special Act from the tenant in order to obtain stay was covered by Section 69, Contract Act, the tenant being bound in law to pay rent and the sub-tenant having deposited the rent as claimed in the plaint. Before expressing an opinion on the point of law involved, the relevant facts of the case before me, which are somewhat peculiar, may be set out briefly.
(3.) The original suit for rent, O. S. No. 291 of 1945, was filed by three plaintiffs of whom, the third plaintiff P. Kunhiraman Vaidyar, was the melcharthdar from the first two plaintiffs, who were janmi holders. A melcharthdar may be briefly described as a mortgagee with powers of eviction. The first defendant in the suit was the Karnavan of the tarwad of the third plaintiff himself, which was collectively the tenant. The sixth defendant in the suit, who is the contesting respondent before me, was a sub-tenant in actual occupation of five out of ten items from the defendant tarwad. It is in evidence that the first defendant applied to the plaintiffs for renewal of his tenancy. He subsequently died either in 1949 or 1950 and then the third plaintiff, i.e. the petitioner before me, became karna-van of his tarwad. He then appears to have resorted to a somewhat ingenious device. He assigned his melcharth rights to his niece's husband, who came on record as the fourth plaintiff. He then got himself struck out from the category of plaintiffs and came on record as the 32nd defendant. The deposit had in the meantime been made, when the present petitioner was on record as the third plaintiff and it is not disputed that he actually withdrew the deposit as plaintiff melcharthdar.;

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