I shall first deal with the legal effect of attornment on the rights of the parties. What is attornment? The dictionary meaning of the word is "Transfer; legal acknowledgment of new landlord" (Oxford Dictionary). It is an overt act by which the tenant acknowledges and accepts the new person as the Landlord in the place of the old Landlord. It has no impact on the lease except for the substitution of one landlord for another and the terms and incidents thereof continue and operate. It does not bring about a new tenancy or lease; nor does it destroy the existing one, or alter the rights and obligations of the lessor and the lessee prevailing at the moment of the attornment.
12. In a very early English decision Cornish v. Searell, (1828) 8 B & C 471, Holroyd, J. observed:
"The attornment is the act of the tenant's putting one person in the place of another as his landlord."
Halsbury in his Laws of England Vol. 23, 3rd Edn. page 408, observed as follows:
"Where the occupier is a tenant and agrees to hold of a new landlord during the currency of the agreement without any change in the terms of the tenancy, this is a mere attornment."
In Words and Phrases, Permanent Edn. Vol. IV page 798, attomment is defined as follows:
"Attornment is the act of recognising a new landlord.... An attornment is a continuation of an existing lease on the same conditions in all respects, putting another in the place of the original landlord. Any act done by a tenant whereby he recognises a change of the person to whom rent is due is an attomment, and an agreement to pay rent to an assignee of the lease is such an act."
In Corpus Juris Secundum, Vol. 51, p. 527 it is observed:
"An attornment in effect is a continuation of an existing lease, and the tenant holds on the same conditions as under the former landlord; the tenant's possession is that of the new owner.... An attornment is not the creation or initiation of a new lease, beginning on the day of attornment, since a new tenancy arises only on departure from the time and conditions in the original lease."
13. Whatever shows the assent of the tenant to the alienation of the reversion and his recognition of the alienee as landlord is a valid attornment. A promise to pay rent to the alienee and a tenant's continued occupancy under the tenancy with notice of alienation amounts to a recognition of the purchaser as his landlord. There is no difficulty in this case to hold that there has been a valid attornment by the tenant to the purchasers. But having regard to the legal concept of attornment as elucidated by the references cited above, it does not create by itself a new tenancy between the parties to the attornment but continues the existing lease with the substitution of a new landlord in the place of the old landlord.
IN THE HIGH COURT OF MADRAS
Civil Revn. Petn. No. 870 of 1959
Decided On: 31.05.1960
Munavar Basha Vs. V. Narayanan and Ors.
Hon'ble Judges/Coram:
Jagadisan, J.
Citation : AIR 1961 Mad 200
1. One Halima Bi was the owner of the premises bearing old door No. 110-E, New door No. 110-F, Mount Road, Madras. The premises was in the occupation of her tenant, one V. S. Narayanan who will hereinafter be referred to as the tenant on a rental of Rs. 500 per month. He defaulted to pay the rent for the months of March, April and May 1956. Halima Bi filed on 29-6-1959. H. R. C. No. 2380 of 1956 before the House Rent Controller, Madras under Section 7(2)(i) of the Madras Buildings (Lease and Rent Control) Act, 1949 for eviction of the tenant on the ground that the tenant committed wilful default in the matter of payment of rent for the aforesaid three months.
The tenant admitted non-payment of the rent for the said period; he however pleaded that he had adjusted the rent towards the cost of repairs and white-washing done to the premises as per the alleged agreement between him and Halima Bi. The Additional Rent Controller, Madras, found that the tenant was guilty of wilful default in not paying the rent for the months of March and April 1958, and ordered eviction by order dated 25-4-1957. The tenant filed an appeal against the said order, H. R. A. No. 213 of 1957 on the file of the Court of Small Causes, Madras.
2. Pending the appeal, H. R. A. No. 213 of 1957, Halima Bi sold the premises to the two minor sons of A. K. Basha Sahib, Munawar Badsha and Anwer Badsha for a consideration of Rs. 90.000 under a registered conveyance dated 24-10-1957. In the said transaction of sale the two minor purchasers were represented by their father and guardian A. K. Basha Sahib. On the same day 24-10-1957, Halima Bi wrote to her tenant informing him of the sale and requesting him to attorn to the purchasers and pay the monthly rent of Rs. 500 to them thereafter.
A. K. Basha Sahib acting as guardian of his two minor sons, the purchasers, also sent a notice on 24-10-1957, to the tenant intimating him of the purchase and requesting him to attorn to the purchasers from the date of sale and to pay the rent in future to the purchasers. On receipt of these letters, one from Halima Bi and the other from her purchasers, the tenant wrote the following letter dated 26-10-1957 to the purchasers : "We hereby attorn to you in respect of the above property on a monthly rent of Rs. 500 from 24-10-1.957 since you have purchased the said property from Messrs. Halima Bi and Saminullah and you are the present owners". Saminullah is the son of Halima Bi and he had no right, title or interest in the property at any time.
3. The purchasers filed on 13-1-1958 an application I. A. No. 109 of 1958 in the Court of Small Causes, Madras in the pending appeal, H. R. A. No. 213 of 1957 for being impleaded as respondents in the said appeal. An affidavit in support of the application was filed by the guardian, A. K. Basha Sahib, in which it was averred as follows in paragraph 3: "Even prior to the purchase the prior owner Halima Bi had obtained an order of eviction against the appellant herein and advised that the minor purchasers could take advantage of the said order of eviction." This application was resisted by the tenant, but eventually by order of Court dated 24-3-1958 the purchasers were impleaded as party-respondents in the appeal, H. R. A. No. 213 of 1957, on the file of the Court of Small Causes, Madras.
4. The purchasers next took the step of filing on 15-4-1958 the petition, H. R. C. No. 1468 of 1958, on the file of the House Rent Controller, Madras seeking eviction of the tenant on the ground of wilful default in the matter of payment of rent that accrued due subsequent to their purchase and oilier grounds. While this application for eviction was pending, the appeal H. R. A. No. 213 of 1957 came on for hearing and was disposed of on 27-10-1958 by the appellate authority, which confirmed the order of eviction passed by the Additional House Rent Controller on 25-4-1957. The tenant was, however, granted three months time for vacating the premises.
5. H. R. C. No. 1404 of 1958 on the file of the House Rent Controller, Madras, the application tot eviction filed by the purchasers against the tenant was dismissed for default on 27-2-1959. The purchasers eied I. A. No. 188 of 1959 on 12-3-1959 to set aside the dismissal for default alleging grounds for non-appearance on 27-2-1959 when the application was dismissed for default of appearance.
On the same day, 12-3-1959, the purchasers also filed a Civil Suit, O. S. No. 815 of 1959, on the file of the City Civil Court, Madras against the tenant for recovery of a sum of Rs. 8125 said to be rent due for the premises for the period from 24-10-1957 the date of the purchase to 1-3-1959. In paragraph 6 of the said plaint it was averred as-follows:
"The proceedings before the House Bent Controller and the appeal against the said order terminated on 27-10-1958 when the defendant's appeal was rejected and the eviction order was confirmed. The plaintiffs are instituting execution proceedings in respect of such eviction order."
The plaint also referred to some correspondence between the purchaser and the tenant prior to the institution of the suit. It appears from the allegations in the plaint that the tenant was putting forward a plea that the rent due for the premises was not Rs. 500 per month, as claimed by the purchasers but only a sum of Rs. 350 per month as per alleged order of fixation of fair rent said to have been fixed by the House Rent Controller in H. R. C. No. 503 of 1956 by order dated 3-1-1958.
6. In this state of affairs the purchasers, who had' already got themselves impleaded as party-respondents in H. R. C. No. 213 of 1957, on the file of the Court of Small Causes, Madras filed an execution petition, E. P. No. 305 of 1959 on the file of the City Civil Court, Madras to obtain delivery of the premises in execution of the order of eviction passed by the House Rent Controller on 25-4-1957, and confirmed by the appellate authority on 27-10-1958. This execution petition was filed on 14-3-1959 and an order for delivery was obtained ex parte on 17-3-1959.
On 19-3-1959 the purchasers obtained delivery of three rooms, a portion of the premises, but could not obtain possession of the entire premises obviously due to the obstruction caused by the tenant. Thereafter the tenant filed E. A. No. 258 of 1959 before the City Civil Court, Madras to set aside the order of delivery in E. P. No. 305 of 1959 and also filed E. A. No. 311 of 1959 for ordering re-delivery of the three rooms taken possession of by the purchasers in execution of the warrant of delivery.
The tenant also resisted further execution in E. P. No. 305 of 1959 on the ground that the order for eviction passed by the House Rent Controller and affirmed by the appellate authority had become inexecutable and null and void by reason of events that happened subsequently between the parties. These applications were heard together by the learned City Civil Judge, Madras who passed a common order therein dated 2-5-1959. He held as follows:
"Having regard to the facts of this case and the conduct of the purchasers themselves it can only be that the purchasers understood the arrangement between them and the tenant on 24-10-1957 as a fresh tenancy and that they therefore filed a fresh eviction petition on the strength of the fresh lease. In these circumstances I am inclined to think that the purchasers cannot file E. P. No. 305 of 1959, on the strength of the first eviction order in H. R. C. No. 2380 of 1956 confirmed in H. H. A. No. 213 of 1957.... On a consideration of all the facts of this case I hold that the eviction order in H. R. C. No. 2380 of 1956 confirmed in H. R. A. No. 213 of 1957 is not executable. In the result, E. A. No. 258 of 1959 to set aside the order of delivery in E. P. No. 305 of 1959 is allowed and the E. P. No. 305 of 1959 shall stand dismissed. The re-delivery of the three rooms prayed for in E. A. No. 311 of 1959 is ordered. Time one month."
7. The purchasers have filed the above civil revision petition against the said order, challenging the legality and propriety of the order under Section 12-B of the Madras Buildings (Lease and Rent Control) Act, 1949. The first respondent in the petition is the tenant and the second respondent is the original owner, Halima Bi.
8. The question for consideration in this civil revision petition is whether the order for eviction passed by the House Rent Controller, Madras on 25-4-1957 attornment which was affirmed by the appellate authority on 27-10-1958 and became inexecutable or in any way rendered null and void and incapable of execution. The main contention urged on behalf of the tenant (the first respondent herein) before the learned City Civil Judge was that a fresh tenancy or lease was constituted between himself and the purchasers by reason of the events which happened subsequent to the purchase.
This contention was accepted by the learned City Civil Judge, and the learned counsel appearing for the first respondent before me reiterated the same contention. The elements constituting a fresh tenancy between the purchasers and the tenant are Stated to be first the attornment as evidenced by the correspondence between the purchasers and the tenant (vide letters dated 24-10-1957 and 26-10-1957); secondly the institution of an application for eviction, H. R. C. No. 1464 of 1958, and thirdly the institution of a civil suit, O. S. No. 815 of 1959 on the file of the City Civil Court, Madras for recovery of rent due based upon the fresh tenancy.
9. The learned Advocate General, appearing for the purchasers, the petitioners herein, contended that the acts relied upon by the first respondent cannot constitute in law a new tenancy or lease between the purchasers and the tenant, and that therefore the conclusion of the court below that there was a new lease and that the order for eviction became inexecutable cannot be sustained.
10. The purchasers are the transferees of the reversion of the lease by Halima Bi in favour of the tenant. Under Section 109 of the Transfer of Property Act the transferee of the reversion, the purchasers herein, automatically get transferred to themselves all the rights of the lessor, Halima Bi. It is obvious that the purchasers are entitled to enforce the order for eviction obtained by Halima Bi against the tenant. How far does the attornment by the tenant to the purchasers affect the purchasers' Statutory rights under Section 109 of the Transfer of Property Act is the point to be considered.
11. I shall first deal with the legal effect of attornment on the rights of the parties. What is attornment? The dictionary meaning of the word is "Transfer; legal acknowledgment of new landlord" (Oxford Dictionary). It is an overt act by which the tenant acknowledges and accepts the new person as the Landlord in the place of the old Landlord. It has no impact on the lease except for the substitution of one landlord for another and the terms and incidents thereof continue and operate. It does not bring about a new tenancy or lease; nor does it destroy the existing one, or alter the rights and obligations of the lessor and the lessee prevailing at the moment of the attornment.
12. In a very early English decision Cornish v. Searell, (1828) 8 B & C 471, Holroyd, J. observed:
"The attornment is the act of the tenant's putting one person in the place of another as his landlord."
Halsbury in his Laws of England Vol. 23, 3rd Edn. page 408, observed as follows:
"Where the occupier is a tenant and agrees to hold of a new landlord during the currency of the agreement without any change in the terms of the tenancy, this is a mere attornment."
Earl Jowitt in the Dictionary of English Law, p. 178, deals with the subject of attomment as follows:
"Attornment is the agreement of the owner of a particular estate in land to become the tenant of a person who has acquired the estate next in reversion or remainder, or the right to the rent or other services by which the land is held (Coke on Littleton 312-a). Thus if A, being entitled to land in fee simple, grants a lease of it to B, then B is A's tenant. If however A conveys his remainder to C, in this case B does not stand in the relation of tenant to C unless he agrees or consents to become his tenant, and this consent is called an attornment.''
In Words and Phrases, Permanent Edn. Vol. IV page 798, attomment is defined as follows:
"Attornment is the act of recognising a new landlord.... An attornment is a continuation of an existing lease on the same conditions in all respects, putting another in the place of the original landlord. Any act done by a tenant whereby he recognises a change of the person to whom rent is due is an attomment, and an agreement to pay rent to an assignee of the lease is such an act."
In Corpus Juris Secundum, Vol. 51, p. 527 it is observed:
"An attornment in effect is a continuation of an existing lease, and the tenant holds on the same conditions as under the former landlord; the tenant's possession is that of the new owner.... An attornment is not the creation or initiation of a new lease, beginning on the day of attornment, since a new tenancy arises only on departure from the time and conditions in the original lease."
13. Whatever shows the assent of the tenant to the alienation of the reversion and his recognition of the alienee as landlord is a valid attornment. A promise to pay rent to the alienee and a tenant's continued occupancy under the tenancy with notice of alienation amounts to a recognition of the purchaser as his landlord. There is no difficulty in this case to hold that there has been a valid attornment by the tenant to the purchasers. But having regard to the legal concept of attornment as elucidated by the references cited above, it does not create by itself a new tenancy between the parties to the attornment but continues the existing lease with the substitution of a new landlord in the place of the old landlord.
14. Indeed Mr. Rajah Iyer, appearing for the first respondent, did not contend that a mere attornment by itself can have the legal effect of bringing in a new lease between the parties. He submitted that the act of attornment by the tenant in response to the purchasers' request for such an attornment coupled with the subsequent conduct of the purchasers namely filing a fresh application for eviction and filing a suit for the recovery of arrears of rent will lead to the inference of a new contract between the parties,
I shall consider the effect of the subsequent conduct of the purchasers a little later. But I am definitely of opinion that the attornment of the tenant to the purchasers will not be sufficient to enable the Court to draw an inference of a new contract of lease between the purchasers and the tenant subsequent to the date of purchase de hors the lease from Halima Bi under which the tenant was admittedly holding prior to the purchase.
15. What constitutes a fresh contract of lease between the parties is certainly a question of fact which the Court has got to determine on the facts and circumstances of each case. There is a long catena of cases dealing with a situation where the tenant whose tenancy was determined by notice to quit pays the rent to the landlord and the landlord receives it under protest or without prejudice to his rights. In those cases, it was urged on behalf of the tenant that the receipt of the amount by the landlord brought about a new lease or contract of tenancy having the effect of waiver of the notice to quit which determined the tenancy.
16. In Hartell v. Blackler, 1920 2 K. B. 161, the headnote is as follows:
"A tenant whose tenancy had been determined by notice to quit wrote to his lessor enclosing money as and for rent accrued due since the expiry of the notice. The lessor sent on the letter and enclosure to her solicitors who replied "our client" does not recognise you as her tenant, and we will retain the money for the time on account of use and occupation of her premises but not as rent; Held: that notwithstanding the terms of that letter, the acceptance and retention of the money operated as a waiver of the notice and a recognition of a continuance of the tenancy."
17. In Davies v. Bristow, 1920 3 K. B. 428, the above decision was dissented from. In this case it was held as follows :
"Where a tenant of a house to which the Increase of Rent etc. (War Restrictions) Acts apply holds over after the expiry of a notice to quit and pays rent the landlord is not to be taken by accepting it to assent to a renewal of the tenancy on the old terms, for he has no choice but to accept the rent; he could not sue in trespass for mesne profits, for these acts provide that the tenant notwithstanding the notice to quit shall not be regarded as a trespasser so long as he pays the rent and performs the other conditions of the lease."
At page 439 it was observed as follows :
"In this view the acceptance of rent by the plaintiff did not affect the position of the parties. Moreover if the defendant was resisting the plaintiffs demand for possession in reliance upon a statutory tenancy created by the Increase of Rent Acts he was bound to tender the sum which he did as rent, and the plaintiff was entitled to receive it. In accepting rent tendered in circumstances like these a landlord does not prejudice his position or lose the right which he would otherwise have of insisting that the term has come to an end "
18. In Shuter v. Hersh 1922 1 KB 438, Bankes L.J. at page 445 observed as follows:
"The tenant was in occupation of rooms to which the Rent Restriction Act applied. The landlord therefore could not turn him out, even if he gave him a lawful notice to quit, except in accordance with the provisions of the Act. What is the position, therefore, of the landlord? He has no ground for turning the tenant out under the Act. but the circumstances are such that he is entitled under the Act to an increase of rent and therefore he is entitled, if he can, to secure that increase of rent from his tenant. But the statute says that a landlord cannot recover any increase Of rent from his tenant except in respect of a period during which, but for the Act, he would have been entitled to obtain possession, and therefore, in order to enable him to come within the provisions of that section of the statute, he has to give his tenant a notice to quit, not in any hope or belief that that will enable him to terminate the tenancy, but to enable him to say that but for the Act, he would have been in a position to turn the tenant out, and that therefore he is entitled to demand the additional statutory rent. How anyone can come to the conclusion that landlord so acting is entering into a fresh agreement with a tenant for a continuance of his occupation under a fresh tenancy I fail to see..... I cannot see any materials upon which one can come to the conclusion that a fresh tenancy was created.''
At page 450 Scrutton L.J. observed as follows:
"It follows from what I have said that, in my view, the correct view of the law was taken in 1920 3 KB 428 and that so far as the Rent Restriction Acts are concerned, 1920 2 KB 161 can be no longer relied upon as an authority."
19. In Clarke v. Grant, 1950 1 KB 104 the Court of Appeal definitely overruled, 1920 2 KB 161. The headnote in this case runs as follows:
"Where therefore after a yearly tenancy had been duly determined by notice to quit, the landlord's agent accepted rent from the tenant because he mistakenly believed it to be paid in arrear and so deferrable to a period before the end of the lease whereas the tenant was purporting to pay it in advance in accordance with the terms of the lease; Held: that the acceptance of rent did not Operate to revoke the notice to quit in the absence of evidence of any intention to create a new tenancy."
At page 106 Lord Godclard C. J. observed as follows :
"It is impossible to find that the parties here intended that there should be a new tenancy. The landlord was all the time desiring to have possession of the premises; that is why he had given his notice to quit. The mere mistake of his agent in accepting as rent which had already accrued, rent which was in fact payable if it was payable at all, in advance, cannot be used to establish that the landlord was agreeing to a new tenancy."
20. In Marcroft Wagons Ltd. v. Smith, 1951 2 KB 496 Denning L.J. observed as follows at page 506 :
"In these circumstances, it is no longer proper for the Courts to infer a tenancy at will, or a weekly tenancy, as they would previously have done from the mere acceptance of rent. They should only infer a new tenancy when the facts truly warrant it; The test to be applied in Rent Restriction Acts cases is the same test as that laid. down by Lord Mansfield in cases of holding over; "The question therefore is quo animo the rent was received and what the real intention of the both parties was?" (1775) 1 Cowp. 243, Doe d. Cheny v. Batten).
21. In Murray Bull and Co.. Ltd. v. Murray, 1953 1 QB 211, the observations of Denning L.J. referred to above were followed by Justice Mc Nair. In Isaac v. Hotel De Paris Ltd., 1960 1 All ER 348, the judgment of the Judicial Committee delivered by Lord Denning referred to with approval 1951 2 KB 496.
22. The principle laid down by the decisions aforesaid is that a statutory tenant, who enjoys a certain measure of immunity from eviction under the Statutes like the Rent Restriction Acts in England, cannot by discharging his obligation to pay rent to the landlord use it as a foundation of a fresh contract of lease between him and the landlord.
23. In "Hill and Redman's Landlord and Tenant", 10th Edn. the position is summarised thus at page 455,
'The acceptance of rent by a landlord from a tenant of premises to which the Rent Restriction Acts apply after the expiry of a notice to quit does not in the absence of an agreement to create a new tenancy, operate as a waiver of the notice, for under these Acts such a tenant after the expiry of the notice becomes a statutory tenant and bound to tender the rent which the landlord is by the Act a entitled to accept without losing his right to assert that the tenancy has been properly determined."
24. The same principle was laid down by the Federal Court in the decision in Kai Khurshroo Bezonjee Capadia v. Bai Jerbai MANU/FE/0007/1949 as can be noted from the following observation of Justice Mukherjee :
"It may be pointed out that in cases of tenancies relating to dwelling houses to which the Rent Restriction Acts apply, the tenant may enjoy a, statutory immunity from eviction even after the lease has expired. The landlord cannot eject him. except on specified grounds mentioned in the Acts themselves. In such circumstances, acceptance of rent by the landlord from a statutory tenant, whose lease has already expired, could not be regarded as evidence of a new agreement of tenancy and it would not be open to such a tenant to urge by way of defence in a suit for ejectment brought against him, under the provisions of Rent Restriction Act, that by acceptance of rent a fresh tenancy was created which had to be determined by a fresh notice to quit."
25. In Kuppuswami v, Mahadeva, MANU/TN/0310/1950 : AIR1950Mad746 , a landlord filed an application under the Rent Control Act for eviction of his tenant as he did not pay rent for two months and obtained an order for eviction. But no action could be taken by him in execution of that order because the tenant immediately filed an appeal and obtained a stay order. Later, on an application filed by the tenant, the Rent Controller fixed a fair rent for the suit premises, the order being passed "without prejudice to the order of eviction and the order that might be passed in the appeal." In pursuance of that order, the tenant sent two cheques to the landlord for the amounts due to him under the Rent Controller's orders. The landlord accepted those cheques without prejudice to his rights. It was held that by the landlord's acceptance of the two cheques the tenant did not acquire any fresh rights to continue in possession of the suit premises,
26. It is clear, therefore, that none of the circumstances relied upon by the tenant, namely, the attornment, the application for eviction filed by the purchasers and the institution of the suit for recovery of arrears of rent, can individually or collectively constitute a fresh tenancy agreement between the purchasers and the tenant after the purchase. The tenant is a statutory tenant who is in any event bound to pay the rent due for the premises.
Even if the tenant had paid the rent to the purchasers and the rent had been accepted by them, it will not he possible to infer from such payment and acceptance a new contract of tenancy between the purchasers and the tenant. The mere institution of a suit for recovery of arrears of rent cannot be a stronger circumstance in favour of the tenant than payment of rent by him to the purchaser.
Further on the facts of the instant case the averments in paragraph 6 of the plaint in O. S. No. 815 of 1959, City Civil Court, Madras, unmistakably show that the purchasers were instituting the suit without prejudice to their rights to enforce the order of eviction already obtained before the House Rent Controller. The question is one of animus arid the real intention of the parties. Can it be said that the purchasers abandoned and waived their rights to enforce the eviction order I by entering into a new contract, express or implied? There cannot be a valid contract without consensus ad idem of the terms of the contract between the parties.
The purchasers were very clear in their minds that they should get possession from the tenant. They took every step only to achieve that purpose. The circumstances in the case militate against there being a fresh contract of lease between the parties superseding the rights and obligations stemming out of the eviction order. I am unable to hold that on the materials placed before me there was a fresh contract of lease or tenancy between the purchasers and the tenant.
27. Mr. Rajah Aiyar, learned counsel for the first respondent, contended that the purchasers had one of two remedies against the tenant, either to pursue and enforce the order of eviction or to accept the tenant as being entitled to remain in possession despite the order for eviction, and having elected to suffer the tenant to remain in possession by reason of the attornment they were thereafter precluded and estopped from falling back upon the order of eviction first obtained. He also contended that the application for eviction filed by the purchasers unequivocally pointed out the election made by the purchasers in choosing to stand by the new contract of lease said to have come into existence by reason of the attornment.
28. In this connection learned counsel for the first respondent strongly relied upon the decision in Samudra Vijayam Chettiar v. Srinivasa Alwar, (S) AIR 1956 Mad 301. That case arose out of proceedings in a redemption suit, O. S. No. 40 of 1945, District Munsif Court, Kumbakonam. There was a usufructuary mortgage by two persons, the plaintiff and the second defendant in the suit, in favour of the first defendant. It ended in a preliminary decree on 30-4-1947. The plaintiff and the second defendant the two mortgagors paid the amount due under the redemption decree into court and the first defendant, the mortgagee, drew the money out from court deposit on 22-9-1948.
The third defendant in the suit was the tenant in possession let in by the first defendant. The first defendant gave notice to the third defendant after 22-9-1948, to attorn to the plaintiff and the 2nd defendant. The 2nd defendant thereafter filed before the Rent Controller, Kumbakonam, R. C. A. 132 of 1950, an application for eviction against the third defendant, but the said application was dismissed on some technical grounds. The 2nd defendant the co-mortgagor, filed an application against the first defendant I. A. No. 781 of 1950 before the District Munsiff's Court, Kumbakonam, for possession and mesne profits. The question for consideration was whether the first defendant was liable for mesne profits. At page 303 the learned Judge dealing with those facts observed as follows:
"..... I am prepared to hold that the initiation of the proceedings before the Rent Controller by the appellant against the third defendant constitutes an election on his part to treat the tenant in possession as his tenant. When notices were issued by the first defendant to the appellant and the third defendant there were two courses open to the former. The first was to require the first defendant to deliver him khas possession of the property refusing to recognise the third defendant..... In the present case the mortgagor has treated the tenant as holding under him and sought relief on that footing in the eviction proceedings. Could he thereafter turn round and assert that the 3rd defendant was not his tenant and claim to treat the first defendant as continuing in possession and therefore liable to pay him mesne profits by reason of wrongful occupation. I am clearly of the opinion that he cannot and that he is precluded by his election in so doing....There is here a clear case of election and the 2nd defendant must be taken by reason of his conduct to have accepted the third defendants as his tenant with the necessary result that he could no longer look to the first defendant for the payment to him any mesne profits which he now finds unable to recover from the person whom he accepted as his tenant".
At page 304, the learned Judge further observed:
"Where a man is entitled to one of two inconsistent rights and he has with full knowledge done an unequivocal act indicating his choice of the one he cannot afterwards pursue the other which after the first choice is by reason of the inconsistency no longer open to him. Such cases do not require detriment to the other party as foundation for their application".
While I agree with respect with the observations of the learned Judge I am unable to hold that that principle has any application to the facts of the present case. There is no question of any election between one of two inconsistent remedies herein. The purchasers had a remedy by way of eviction against the tenant and they always pursued It and did nothing inconsistent with such a right. The application for eviction filed by the purchasers cannot amount to a waiver of their pre-existing right to enforce the eviction order dated 25-4-1957. There is no scope for applying the doctrine of election herein. I am of the opinion that the tenant has no valid defence to the order for eviction being enforced against him.
29. The learned Advocate General, appearing for the purchasers, the petitioners herein, contended that even if the Court were to hold that there was a fresh tenancy or lease between the purchasers and the tenant that would not afford any ground for the tenant to resist the enforcement of the order for eviction which had reached the stage of indefeasible finality by reason of the provisions of the Madras Buildings (Lease and Rent Control). Act, 1949.
Mr. Rajah Iyer, for the first respondent, submitted contra and contended that if the Court were to find a fresh lease between the parties that would amount to discharge and satisfaction of the order of eviction and would therefore operate as a bar to the enforceability and execution of that order. It Is however unnecessary for me to deal with this contention, as that will arise only if I were to hold that On the materials placed before me an inference of fresh lease was possible. I am therefore expressing no opinion on this contention raised by the learned Advocate General.
30. The order of the learned City Civil Judge is erroneous in law and has therefore to be set aside. The civil revision petition is allowed and the order of the learned City Civil Judge dated 2-5-1959 is hereby set aside. E. P. No. 305 of 1959 and E. A. No. 258 and 311 of 1959 are restored to the file of the City Civil Court, Madras to be disposed of afresh in accordance with law, in the light of the observations contained in this judgment. There will be no order as to costs in this revision petition.
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