37. The doctrine of implied surrender is a legal principle evolved for purpose of recognising a state of facts or a transaction relating to which there is no express document. Such an implied surrender in law is presumed where the new state of facts are inconsistent and incompatible with the continuation or existence of a former relationship. If the new facts and relationship found is inconsistent and incompatible and if the two cannot stated together viz. the new relationship found and the former relationship which existed then the law presumes that thee was an implied surrender by the holder of the former status of his rights in the property in question. Such an implied surrender is presumed where a new relationship which is incompatible and inconsistent is created by a simple relinquishment of possession.
Mulla in his Transfer of Property Act, 6th Edition, Page 745 observed :---
"There must be a taking of possession, not necessarily a physical taking, but something amounting to a virtual taking of possession."
If, therefore, an inference that possession must have been taken and parted with is possible and if the conduct of the parties is inconsistent with such an hypothesis, then in such circumstances it will have to be held that possession of the kind which it was possible was parted with and delivered. Even a notional parting of possession would become surrender of possession. For rendering validity to a surrender, physical delivery of possession is not an absolute must, if a person is notionally in possession. If a person hands over possession of the kind which he can deliver and of which he was possessed, which he had then in law, even such parting of possession or character would clothe the transaction with an implied surrender.
46. In Shah Mathurdas Maganlal and Co. v. Nagappa Shankarappa Malaga and others, A.I.R. S C 1565 , a mortgage was executed in favour of the tenant and the question arose as to whether there was a merger and upon redemption whether the right of the tenant as tenant revived. It was held that :---
"Implied surrender by operation of law occurs by the creation of a new relationship, or by relinquishment of possession. If the lessee accepts a new lease that in itself is a surrender. Surrender can also be implied from the consent of the parties or from such facts as the relinquishment of possession by the lessee and taking over possession by the lessor."
47. On behalf of the landlord, the learned Counsel Shri Abhyankar placed reliance upon a decision reported in Noratmal v. Mohanlal A.I.R. 1966 Raj 89 wherein it was observed that :---
"It may be a surrender by acceptance of a new lease or a surrender by unequivocal giving of possession or a surrender by re-letting to another person by the landlord. Even acceptance by the landlord of the sub-lessee as his tenant would amount to surrender."
It is, therefore, clear that where there was re-letting to another person by the landlord, there would be implied surrender. As I have pointed out the basis for the application of this legal doctrine is incompatibility and impossibility of existence of two inconsistent situations together. In such an event, law holds that the first has impliedly surrendered his interest and rights in the property when rights were created in favour of another person.
IN THE HIGH COURT OF BOMBAY
Writ Petition Nos. 1448 and 2744 of 1978
Decided On: 04.03.1983
Hon'ble Judges/Coram:
R.D. Tulpule, J.
No comments:
Post a Comment