- (1.) The short question that arises for consideration in this appeal, by certificate, is whether a term in a registered lease deed, in and by which the lessee of a vacant piece of land, agrees to surrender, on termination of the lease, not only the land but also the superstructure put up by him, for the price agreed to between the parties and provided for in the lease, is a "stipulation made by the tenant in writing registered as to attract, in favour of the landlord, the proviso to S. 12 of the Madras City Tenants' Protection Act, 1921 (Madras Act III of 1922), as amended by the Madras City Tenant's Protection (Amendment) Act, 1955 (Act XIX of 1955) - hereinafter called the Act. In this appeal we are not concerned with the later amendment made to the Act.
(2.) The appellant was the owner of a vacant site bearing No. 4/7, Ponambala Vathiar Street, Mylapore, Madras-4. The respondent made a request to the appellant, by his letter Exhibit A-2, dated January 30, 1947, to lease in his favour the said vacant site for a period of ten years on a monthly rental of Rs. 30. In that letter the respondent stated that he wanted to put up a building on that site at a cost of not more than Rupees 6,500 and that, after the expiry of the lease period it was open to the appellant to continue the lease or not; but, in case the lease period was not extended, the respondent made a request that he should be paid back the amount of Rs. 6,500 or any less amount that might have been incurred for putting up the superstructure on the plot. After further correspondence between the parties, the appellant finally wrote, on April 22, 1947, to the respondent a letter, Exhibit A-6, by which they intimated to the respondent that on vacating or giving possession of the land and building that may be put up by the lessee the appellants will pay the valuation of the building on the date of surrender or a sum of Rs. 5,000, whichever is less. The appellant further intimated that if the respondent was agreeable, the draft lease agreement sent by them might be approved for being finalised. It was, under those circumstances, that finally the lease arrangement, Exhibit A-1, was jointly entered into by the parties by a registered document dated April 30, 1947.
(3.) Under Exhibit A-1 the respondent took the land on lease for a period of ten years commencing from May 1, 1947. The document provided that the lessee was to pay a ground rent of Rs. 45 per month. Clauses 2, 4 and 9 of the lease deed are relevant and may be set out : "2. The lessee is permitted to put up a building at a cost of not more than Rs. 10,000 on the plot leased to him, after approval of the plan of the proposed building by the Board of directors of the lessors, and the construction to be put up must be in accordance with the plan approved by the Directors of the lessors. 4. The lease shall be in force for a term of ten years commencing from the first day of May, 1947 and on the expiry thereof the lessee shall surrender possession of the entire property and the construction if any thereon. On vacating or giving possession as above the lessors shall pay the valuation thereof, then current or the sum of Rs. 5,000, whichever is less. 9. In case for breach or infringement of any of the conditions above mentioned by the lessee, the lessors are at liberty to determine the lease irrespective of the period provided herein by giving three months' notice to the lessee and the lessors may take possession of the property themselves without any compensation." There were other clauses relating to the payment by the lessee of all taxes that may be imposed on the property so long as he was in possession and prohibiting the lessee from sub-letting, assigning or transferring the plot to any one without the permission in writing of the lessors. There were also provisions regarding payment of advance rent and also the date within which the monthly rent was to be paid.;