JAGANNATHA IYENGAR Vs. S.P. MARIAPPAN CHETTIAR

JUDGEMENT

(1.) THIS is a petition by one Jagannath Ayyangar, since decased, the plaintiff in O.S. No. 107 of 1950 on the file of the District Munsif's Court, Srivilliputtur for revising and setting aside the judgment and decree of the Additional Subordinate Judge of Ramanathapuram at Madurai in A.S. No. 97 of 1951.

(2.) THE facts are briefly these : The petitioner had filed O.S. No. 107 of 1950, originally as a Small Cause suit, for recovery from the respondent Mariappa Chettiar a sum of Rs. 227 -12 -3 as arrears of rent due to him for a shop rented out to the respondent on a rent of Rs. 5 per month. That shop had been usufructuarily mortgaged to the petitioner by the Jeer of the Manavala Mamuni Mutt of Srivilliputtur for a period of five years from 23rd May, 1941, for a sum of Rs. 550, without however, obtaining the sanction under Section 76 of he Madras Hindu Religious Endowments Act On that ground, the usufructuary mortgage in favour of The petitioner was held to be void on 31st March, 1945, by the sub -Court of Ramanathapuram at Madurai (Exhibit B -1), and this was confirmed by this Court on 6th October, 1950, in A.S. No. 544 of 1945 (Exhibit B -2). On 9th August, 1945 notice was given to both the petitioner and the respondent by the Mutt stating that the Mutt continued to be entitled to the mortgaged property and asking the petitioner to surrender the othi and the respondent to surrender his tenancy rights. The respondent was afraid that he would be evicted from the shop and, being a businesslike Chettiar, he wanted to continue in the shop and attorned to the Mutt on or about 12th August, 1945. The petitioner did not reply to the Mutt's notice, and kept quiet, obviously because he had no valid reply and was awaiting the decision of his Court in the pending appeal, m the forlorn hope that this Court might upset the first Court's decision No such thing happened. As already stated, the first Court's decision was confirmed by this Court, and the othi was held to be void, on 6th October, 1950. In spite of this perfectly correct legal position, the petitioner felt highly aggrieved. that he had parted with Rs. 550 of his to the Mutt in the belief that the othi was valid and was now faced with the loss of his money. He did not succeed in making the Hindu Religious Endowments Board ratify the othi. He filed this suit against the respondent on the ground that the respondent having accepted the lease from him and treated him as landlord, was estopped from denying his title till he had surrendered possession of the shop to him, or till he was actually evicted therefrom in due course of law by the rightful owner, the Mutt, or was deemed to have been so evicted. The trial Court upheld the plea of estoppel to the full extent, and decreed the suit in full. I may add here that the suit, though filed originally as a Small Cause Suit, was converted into an original suit owing to complicated questions of title regarding this shop being involved in it. The respondent took the matter in appeal, and the learned Subordinate Judge reversed the judgment and decree of the trial Court, holding that the decision regarding the voidness of the othi was binding on the petitioner, who was a co -defendant along with the Manavala Mamuni Mutt, as there was a conflict between the pleas of the defendants and it was necessary to resolve the conflict. The curious thing is that the trial Court decreed the suit in full, and the lower appellate Court dismissed the suit in full, whereas the correct course lay between these two extremes. During the pendency of this Civil Revision Petition, the petitioner died, and his legal representative has been brought on record.

(3.) THREE questions arise for decision in this Civil Revision Petition. The first is whether the petitioner, who admittedly lost his title under the othi, could claim the rent from the respondent, simply relying on the estoppel under Section 116, Indian Evidence Act, for the whole suit period. The second is whether he could not claim at least the rent for six months, from 12th February, 1945, till 12th August, 1945, or Rs. 30, from the respondent, since neither he nor the respondent had received any notice from the true owner till then, and both had gone on the basis of the lease between them, and were awaiting the result of the appeal pending in this Court. The third is whether the respondent was bound to actually surrender possession to the petitioner even after the notice of the true owner to the petitioner, which the petitioner dared not answer, and after the true owner was threatening him with eviction in case he did not attorn to him. I am of opinion that till 12th August, 1945, the respondent was bound to pay the rent to the petitioner, who had given the lease to him, as he had not received any notice from the true owner, and had not also surrendered his possession to the petitioner fearing that his title would not hold good after the judgment of the trial Court dated 31st March, 1945, and had, of course, not been evicted. Mr. Desikan had no valid contention to urge against this. So, the suit should have been decreed against the respondent for this sum of Rs. 30.