Dave, J. - (1.) THIS is a second appeal by the defendant against the judgment and decree of the learned District Judge, Jaipur District, dated the 20th May, 1953.
(2.) THE facts giving rise to it are that Sualal, Chothmal, Shri Niwas and Sitaram filed a suit in the court of Munsif Kotputli. THEir case was that they carried on business at Shahpura in Jaipur district in the name of Hardeoji Bhagwanji. Defendant Harish Chandra's father Ghinsalal and grand-father Ram Prasad carried on business in the name of Ram Prasad Ghinsalal. THE plaintiffs had 3 shops situated at Shahpura. THE defendant's father and grand-father Ghinsalal and Ram Prasad took the said shops on rent on Pos Sudi 12th Smt. 1991 corresponding to 16. 1. 35 on the condition of paying rent at the rate of Rs. 21/8/-p. a. THEy executed a rent-note in the plaintiffs' favour but it was signed only by Ghinsalal (defendant's father) on behalf of himself and his father Ram Prasad. A few years after Ghinsalal died. It was averred by the plaintiffs that Ghinsalal kept on paying rent during his life-time and Ram Prasad also continued to pay rent for about 4 years. After Ram Prasad's death all the three shops went into the possession of the defendant Harishchandra. It was further stated that Harishchandra being minor, his mother who was his natural guardian kept on paying rent upto Smt. 1999. One of the three shops was later on returned by the defendant to the plaintiffs and only 2 remained in his possession. It was alleged that the rent for the two shops for Smt. years 2000, 2001 and 2002 remained unpaid. According to the plaintiffs, this rent amounted to Rs. 47/13/-and it was not paid by the defendant inspite of notice. It was therefore prayed that a decree for the said amount and ejectment be passed against the defendant. The defendant who was a minor even upto the date of the institution of the suit filed his written-statement through his guardian and mother Mst. Naraini. He denied the tenancy alleged by the plaintiffs and set up his own title to the shops in dispute. It was stated by him that rent was never paid to the plaintiffs' either by the defendant's grand-father, father or mother and that the suit was fit to be dismissed. The trial court framed 8 issues and after recording evidence of both the parties dismissed the suit. The first issue was no doubt decided in the plaintiffs' favour and it was held that the plaintiffs did carry on business in the name of Hardeoji, Bhagwanji, but at the same time it was found that the plaintiffs were unable to prove the tenancy or the payment of rent. Aggrieved by this decision dated the 31. 3. 52, the plaintiffs filed an appeal which was heard by learned District Judge, Jaipur District. He came to the conclusion that the rent-note Ex. 1 was proved to have been executed and signed by the defendant's father Ghinsalal. It was further held that the payment of rent was also proved by Exs. 2, 4 and 5. In other words, the appellate court came to the conclusion that both the shops in dispute belonged to the plaintiffs, that they were rented out to the defendant's father, and grand-father that they continued to pay rent to the plaintiffs till Smt. 1999 and therefore the plaintiffs' suit for arrears of rent and ejectment was decreed with costs as prayed. It is against this judgment and decree that the present appeal has been filed by the defendant. The first contention raised by the appellant's learned counsel is that the lower appellate court has committed an error in holding that Ex. 1 was signed and executed by Ghinsalal and that rents were paid to the plaintiffs thereafter. It was contended by learned counsel that the appellate court had mis-read the evidence produced by both the parties. He therefore took this Court into the evidence. I find that Ex. 1 is a rent-note and it purports to have been written on behalf of Ram Prasad Ghinsalal Chowdhry in favour of Hardeoji Bhagwanji. It says that three shops situated in Shahpura were taken on rent by Ram Prasad Ghinsalal on condition of paying Rs. 21/8/- p. a. for the rent. It is further written that the tenants would vacate the shop whenever they would be asked to do so by the landlord. Learned counsel for the appellant has urged that the appellate court has committed an error in holding that the document was signed by Ghinsalal. I find that there is no substance in this argument. In the first place, plaintiffs Sualal and Chothmal have appeared in the witness-box and stated on oath that Ex. 1 bears the signatures of Ghinsalal. P. W. 1 Sualal has deposed that this document was signed by Ghinsalal in his presence. P. W. 1 further says that this document was written by Nathulal who was dead. P. W. 3 Bhurmal s/o Gangaram has also stated on oath that Ghinsalal had signed Ex. 1 in his presence, after reading that document, and that it was written out by Nathulal. P. W. 5 Bhurmal s/o Chhajuram has also stated that Ghinsalal was his class fellow when they used to read in the school and therefore he identifies his signatures. He has further stated that Ex. 1 was signed by Ghinsalal. It is thus proved that Ex. 1 was written out by one Nathulal who was dead long before the suit was filed and hence this document could not be forged by the plaintiff. It is also proved by the statement of Sualal and both Bhuramals that this document bears the signatures of Ghinsalal. The first appellate court has believed all the three witnesses and it cannot be said that it has mis-read their statements. What learned counsel really means to urge is that these witnesses should not have been relied upon. It may be observed that the question whether the document was signed by Ghinsalal is one of fact and the finding of first appellate court thereon could not be challenged in second appeal. Still I have gone into their statements carefully since it was challenged that they were mis-read and find that the first appellate court has neither mis-read them nor has it committed any mistake in relying upon them. It further appears from the trial court's record that the plaintiffs had produced one more rent note Ex. 3 in respect of one shop. It is dated Asad Badi 7th Smt. 1955 and it purports to have been signed by Ram Prasad, grand-father of the defendant. Ram Prasad's signatures on this document is proved by the statements of P. W. 1 Sualal, P. W. 4 Sanehilal and P. W. 8 Maliram. Sualal (P. W. 1) has further stated that the plaintiffs had received the amounts of Rs. 60/- and Rs. 14/- noted on Ex. P. 1 from Ram Prasad for rent. Then, the third item of Rs. 35/- noted on Ex. 1 was paid by Mst. Naraini, mother of the defendant after Ram Prasad's death and that this entry was made by P. W. 2 Chothmal. P. W. 2 Chothmal has supported P. W. 1, by saying that the entry of Rs. 35/-was in his hand. P. W. I Sualal has further proved his accounts Ex. P. 2, P. 4 and P. 5. He has stated that all the entries in Ex. P. 2 upto the item of Rs. 31/14/6 were in the hand of Shiv Sahai who was dead. Similarly, the item of annas -/6/- was in the hand of Shivlal who was dead. In Ex. P. 4 the item of Rs. 45/15/-was in the hand of Munim Dhannalal who was dead and some of the entries in that account were in the hand of the witness himself. According to him, three entries in this account were in the hind of Laxmi Narain, who was also dead. Similarly, in Ex. P. 5 the entries on the credit side were in the hand of Dhannalal and it was signed by Ram Prasad and the remaining entries were in his hand. P. W. 8 Maliram has also identified Ram Prasad's signatures on Ex. 5. From the evidence of these witnesses and the documents referred above it is proved beyond any manner of doubt that the shops in dispute were taken on rent by Ram Prasad and Ghinsalal and that the rent was first paid by Ghinsalal and after his death by Ram Prasad. As against this evidence it is significant that the defendant has produced no documentary evidence to prove his title over the disputed shops. His mother Mst. Naraini who appeared in the witness-box no doubt denied the payment of rent by her but when she was cross-examined as to how she considered these shops to be of her husband or father-in-law, she could not give any satisfactory reply. She admitted in clear words that she did not know in what right Ram Prasad or Ghinsalal occupied those shops and from whom they got them. When she was further cross examined she had to admit that she could not say to whom the disputed shops belonged i. e. whether they belonged to the plaintiffs or somebody else. This clearly shows that the defendant's assertion about his title over the disputed property has no foundation worth the name. It may also be observed that if Ram Prasad or Ghinsalal were alive, they could not be permitted to deny that the plaintiffs were not the landlords of the shops at the beginning of the tenancy on account of the provisions of sec. 116 of the Indian Evidence Act, and they would not have been allowed to set up their own title against the plaintiffs. Learned counsel for the appellant has urged that even if it be assumed that the suit could be decreed against Ghinsalal and Ram Prasad if they were alive on the basis of tenancy, the plaintiffs could not in law bring a suit on the basis of tenancy against the defendant. It is contended that on the plaintiff's own showing and the terms of Ex. P. 1 the tenancy of Ghinsalal and Ram Prasad was a tenancy-at-will which determined on their death. Thereafter, the possession of the defendant became adverse to the plaintiffs and therefore the plaintiffs could bring their suit only on the basis of title and not on the basis of tenancy. It is urged that since the suit is not based on title, the decree passed by the first appellate court should be set aside and the suit should be dismissed. Learned counsel for the respondents has argued in reply that the tenancy according to the terms of Ex. P. 1 was not a tenancy-at-will. It is contended by him that the right to terminate the tenancy-at-will was given only to the lessor and not to the lessee. According to him, it was, therefore, a tenancy for an indefinite period and it could be terminated by the lessee only by giving a notice according to sec. 106 of the Transfer of Property Act. The first question which, therefore, arises for determination is as to what was the nature of the tenancy between the appellant's father and the respondents. A perusal of Ex. 1 shows the Ghinsalal lessee had simply written in that document that he and his father would vacate the shops whenever the lessor would ask them to do so. He had not further written that he and his father would also have the right to vacate the rented property whenever they would desire. It is on this basis that learned counsel for the respondents has urged that although the nature of the tenancy between the parties was that of a tenancy-at-will from the view point of the lessor, it was not a tenancy-at-will so far as the lessees were concerned and for them it was necessary to given a notice according to sec. 106 of the Transfer of Property Act. I have given due consideration to this argument and I find that it is not tenable. It may be observed that tenancy-at-will has not been defined in the Transfer of Property Act, but in Halsbury's Laws of England (Second edition Vol. XX at p. 117) it has been mentioned as follows: "a tenancy at will is a tenancy under which the tenant is in possession, and which is determinable at the will of either landlord or tenant; and although upon its creation it is expressed to be at the will of the landlord only or at the will of the tenant only, yet the law implies that it shall be at the will of the other party also; for every lease at will must in law be at the will of both parties. " It is quite clear from the above passage that simply because the lessee has not written in clear terms that he would also be at liberty to determine the lease at his will, it does not follow that he was bound to give notice under sec. 106 of the Transfer of Property Act and the condition of terminating the lease at will was only for the benefit of the lessor. When it was made quite clear in the rent-note that the lessees would vacate the property on demand of its possession by the lessors, it followed by necessary implication in law that the same condition ensured for the lesses as well. The tenancy between the parties as evidenced by Ex. 1 was, therefore, undoubtedly a tenancy at will and both the parties had a right to determine the same, whenever they desired by expressing their will to the other party. This view is also supported by K. R. Mumicka Mudaliar vs. T. Chinanapa Mudaliar (1) though it was a camera case and also by Randal Sahi vs. Mst. Bibi Zohra (2 ). The next question which calls for determination is whether the respondents could bring the suit against the appellant on the basis of the tenancy or it was necessary for them to bring a suit for possession on the basis of title. Learned counsel for the appellant has urged that the tenancy at will terminated on the death of the appellant's father and grand-father, that the lessee's right was, therefore, not heritable, that the possession of the appellant's after his grand-father's death was that of a trespasser asserting adverse possession against the respondents and hence the respondents had no alternative but to bring a suit for possession on the basis of title. Learned counsel has not been able to site any direct authority to support his argument to the effect that a suit against the heir of a lessee, who was holding tenancy-at-will, must be based on title and that such a suit cannot be founded upon the tenancy of the deceased lessee. Learned counsel has, however, cited Ramdhani Gope vs. C. V. Scott (3 ). In that case the legal representative of the lessor had brought a suit for ejectment against one of the tenant heirs of the original lessee. An objection was raised on behalf of the defendant that she was entitled to six months' notice. The Munsiff dismissed the suit holding that the defendant was entitled to six months' notice. On appeal the Subordinate Judge held that the original lessee was a tenant-at-will, that the defendant was not recognised as a tenant and, hence, no notice was necessary. A decree for ejectment was, therefore, passed by him. That decision was upheld on second appeal by a learned Single Judge of the Patna High Court. A Letters Patent appeal was filed and therein it was held that in the case of tenancy-at-will, no formal notice was required, that a demand for possession was sufficient that such a demand was made by the plaintiff and, therefore, the appeal was dismissed. It may be pointed out that even in this case, it does not appear if the suit was based on title. It does not, therefore support the argument of the learned counsel to the effect that a suit against the heir of a tenant-at-will must be based on title. Learned counsel has urged that in the above case, the learned Judges had held that the tenancy-at-will was not heritable. It is true that the learned Judges had referred to the following passage from Halsbury's Laws of England, Vol. 18 p. 437: - "a tenancy-at-will is a personal relation between the original landlord and tenant, and is determined by the death of either of them", I find that this passage also appears in the Second Edition, 20th Vol. at p. 121 and it is based on the decision in James vs. Dean (1805), 11 Ves. 383 and other cases mentioned in the foot note. There is, however, a reference to Morton vs. Woods (1879) L. R. 4 Q,. B. 293 where it was observed "that a tenancy-at-will might continue to subsist after the death of one of the parties unless the successor in title manifested his intention to determine it. " Reference is also made to Re Manser, Killick vs. Manser (1910) W. N. 61 in which the administratrix of a deceased tenant-at-will was accepted as tenant-at-will, and it was held that her tenancy was on behalf of the estate of the deceased. It does appear that the observation in Morton vs. Woods was obiter, but still it indicates that there is a divided opinion on the question of heritability of tenancy-at-will. Then the decision in Killick vs. Manser shows that the tenancy at will was held to be heritable in the circumstances of that case. I respectfully agree with the observation made in Ramdhani Cope's case (3) to the extent that, "where the intention of the parties is that the tenancy is to be determined by the death of either party, there can be no estate which the heir can take," but if the above case is taken to be deciding (as the learned counsel for the appellant wants to interpret) that a tenancy at will cannot be heritable in any case, then I would respectfully dissent from that view. To my mind, it would not be proper to say that a tenancy at will is never heritable just as it would not be proper to say that it is always heritable. The question, whether a particular tenancy-at-will was heritable or not, would depend upon the facts and circumstances of each case. If the intention of the parties was that the tenancy-at-will must determine on the death of the tenant, then the tenancy would certainly determine on the death of the tenant and, there would be no lease hold interest left after the death of the lessee and so his heir or heirs cannot inherit anything. But if it appears from the document evidencing the lease or from the conduct of the parties that the tenancy-at-will was not to determine necessarily with the death of the lessee, then it should not be held that the lease was not heritable. In my opinion, it would not be proper to say that in Rajasthan a tenancy-at-will is always a personal relation between the landlord and tenant and such tenancy invariably determines with the death of either of them. So far as I am aware, tenancy at will is quite common in this State and it is generally created when both the lessor and the lessee do not think it proper or necessary to bind themselves with the formalities of giving a notice of a particular period or a notice terminating with the end of the month or the year of the tenancy as the case may be. Such tenancies are not covered by sec. 106 of the Transfer of Property Act and they fall within its opening clause, that is "in the absence of a contract or usage to the contrary. " Still they are leases within the definition of sec. 105 of the Transfer of Property Act because they do tend to transfer right to enjoy immovable property for certain time express or implied in consideration of rent or some other consideration mentioned in the said section. To my mind, a tenancy-at-will also creates an interest in property like any other lease and just as any other lease envisaged by sec. 105 of the Transfer of Property Act can be inherited, I see no reason why tenancy-at-will cannot be inherited. Of course, as mentioned above, if there is a clear indication of the intention of the parties to the effect that a particular tenancy-at-will would determine with the death of the lessee, it would not be heritable because in that case no right would subsist after the death of the lessee. Learned counsel has next referred to Ahamadali Fakruddin Bohri vs. Mulla Fidaali Sultanali Bohri (4 ). In that case the plaintiff had purchased a house and asked the defendant, who was a tenant of his predecessor to attorn to him. The defendant repudiated plaintiff's title and set up a title of his own. The plaintiff then brought a suit against the defendant for possession of the property on the basis of title. It was held that sec. 7 (xi) (cc) of the Court-fees Act did not apply and the court-fees were to be paid on the market value of the property. This decision was given on the ground that the suit was based on title and not on the basis of tenancy between the landlord and the tenant. In that case it was not held that a suit against the heir of a tenant-at-will must be based on title. The court-fees on the market value of the property was held payable because the suit was founded on title. It does not therefore support the argument of the learned counsel. Reliance has next been placed by the appellant's learned counsel on Anwarali Bepari vs. Jaminilal Roy Choudhnry (5) in which reference was made to the passage from Halsbury's Laws of England noted above. In that case, it was found by the learned Judge that the lease in dispute was a lease from month to month under sec. 106 of the Transfer of Property Act and, therefore, was heritable. The point involved in the present case did not arise for detailed examination.
(3.) ANOTHER case referred by learned counsel is Donkangouda Ramchandragouda vs. Revanshiddappa Shivalingappa Balganur (6 ). It is also not helpful to him because it was found by the learned Judges that the document executed by the tenant created a tenancy for his lifetime and, therefore, on his death the possession of his heirs became adverse to the landlord. It has already been mentioned above that if a certain tenancy is for the lifetime of a particular tenant, it would certainly terminate on his death and his heirs cannot inherit any interest. Learned counsel has lastly referred to Satish Kumar vs. Smt. Sailabasini Devi (7) and Martandrao Tatyaji vs. Tarabai (8 ). In those cases it was held that if a person claims possession of certain premises from a licensee, whose licence has been revoked, the suit is clearly for recovery of possession and the valuation for purposes of court-fee is governed by sec. 7 (v) of the Court-fees Act. It is obvious that these cases are of little help to the appellant because the present suit has not been filed for recovery of possession from licensee whose licence might have been already revoked. It has been contended by learned counsel on the analogy of the last two cases cited above that as soon as tenancy is terminated by notice or the death of the last lessee, the original lessee or the heir of the lessee becomes a trespasser and, therefore, a suit against him must be filed on the basis of title. This argument is not tenable. It may be pointed out that if a particular tenancy is covered by the provisions of sec. 106 of the Transfer of Property Act, that tenancy can be terminated by a notice given in accordance with the provisions of that section. Similarly, if the tenancy is a tenancy at will, it can be terminated by the lessor by a written notice or by making a demand for possession. So long as the tenancy is not determined, a suit for ejectment does not lie. Therefore, if it be held that a tenant becomes a trespasser as soon as the tenancy is determined, then every suit by a landlord for ejectment of the tenant would have to be brought on the basis of title and not on the basis of tenancy. This would create an absurd position. In Karnani Industrial Bank Ltd. vs. Satya Niranjan Shaw (g) it was held by their Lordships of the Privy Council, while considering sec. 15 of Calcutta Rent Act, 1920 that "in order to give any working effect to the Act it is necessary that the words "landlord and tenant" must include, as they often do in ordinary parlance, "ex-landlord and ex-tenant". An action by ex-landlord against ex-tenant might ordinarily be described as an action of landlord against tenant". In Govindakumar Sur vs. Mohini Mohan Sen (10) it was held by a Subordinate Judge that as soon as a notice to quit was served upon a tenant, he ceases to be a tenant and becomes a trespasser. In that case it was observed by a learned Judge of the Division Bench of Calcutta High Court, that, "this argument seems to be absurd on the face of it. So long as a person remains a tenant, the landlord has no right to recover immovable property from him. His right to do so arises only when the relationship between him and the tenant has ceased and the tenant has lost his right to remain in possession of the property. I can conceive of no case in which the landlord can recover immovable property from the tenant qua tenant i. e. , when the tenancy subsists. " I respect fully agree with this observation. In Brigadier K. K. Verma vs. Union of India (11) it was observed as follows :- "under the Indian law, the possession of a tenant who has ceased to be a tenant is protected by law. Although he may not have a right to continue in possession after the termination of the tenancy, his possession is juridical and that possession is protected by statute. Under sec. 9 of the Specific Relief Act, a tenant who has ceased to be a tenant may sue for possession against his landlord if the landlord deprives him of possession otherwise than in due course of law, but a trespasser who has been thrown out of possession cannot go to court under sec. 9 and claim possession against the true owner," "therefore, our law makes a clear and sharp distinction between a trespasser and an erstwhile tenant. Whereas the trespasser's possession is never juridical and never protected by law, the possession of an erstwhile tenant is juridical and is protected by law. Therefore, as far as the Indian law is concerned, an erstwhile tenant can never become a trespasser. It may or may not be that in English law in certain circumstances he can become a trespasser and it does seem that the landlord can enter the premises and deprive the erstwhile tenant of his possession, but in India a landlord can only eject his erstwhile tenant by recourse to law and by obtaining a decree for ejectment. " ;