TaxTMI 
TaxTMI 
1964 (3) TMI 139
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....rted to take a permanent lease from the Mutt under Ex. B. 6. On 29-3-1959, the plaintiff laid the present suit for recovery of possession of the suit site from, the defendant and for arrears of rent. This suit was resisted by the defendant on the ground that on the destruction of the house which was lease to him by the plaintiff, the lease between his and the plaintiff became void and that his occupation of the property thereafter was not linden the plaintiff but by virtue of the permission granted to him by the head lessor to construct a thatched hut on it. It was further pleaded that od account of the destruction of the house by fire, the lease between the plaintiff and the Mutt also be deemed to have terminated. Relying in the main on these grounds, the defendant contended that the plaintiff is not entitled to a decree for possession. The learned District Munsif who tried the suit in the first instance expressed the view that by the destruction of the house by fire, the-lease between the plaintiff and the Mutt was in no way affected. But he held that by obtaining permission from the Mutt to build a hut on the suit land, the defendant must be held to have-treated the lease eviden....
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....s of Section 29 of the Madras Hindu Religious and Charitable Endowments Act, 939. Thus, the plaintiff lost his right and title to recover possession of the suit property from the defendant. The only person who could, therefore, seek to evict the defendant is the Mutt. Mr. Ramachandra Rao reinforces these arguments by urging that the permission which the defendant obtained from the Mutt to erect a hut on the suit property unmistakably pointed to the fact that he treated the lease under Ex. A. 1 as void and thereby determined once and for all the relationship of landlord and tenant between him and the plaintiff. He argues that if a decree for possession of the suit property is now given to the plaintiff, it will amount to permitting a rank stranger to oust the defendant from possession. 3. I do not think the contentions advanced on behalf of the respondent are good or sufficient to repel the plaintiff's claim for possession. I shall first deal with the contention that by purporting to take a permanent lease under Ex. B. 6 from the Mutt, the plaintiff must be deemed to have impliedly surrendered the previous lease which he had admittedly held under the Mutt. The crucial circums....
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....he tenant of a new lease which is void. The implied surrender will be taken to be subject to an implied condition that the surrender is to be void, if the new lease happens to be void. The law is laid down by Coleridge, J. in Doe d. Earl? of Egremont v. Courtenay, (1848) 11 Q.B. 702. "that where the new lease does not pass an interest according to the contract, the acceptance of it will not operate a surrender of the former lease; that, in the case of a surrender implied by law from the acceptance of a new lease, a condition ought also to be understood as implied by law, making void the surrender in case the new lease should be made void; and that, in case of and express surrender, so expressed as to shew the intention of the parties to make the surrender only consideration of the grant, the sound construction of such instrument, in order to effectuate the intention of the parties would make that surrender also conditional to be void in case the grant should be made void." 6. In Easton v. Penny, (1892) 67 LT 290 at p. 293, Corner, J. observed that "the rule as to implied surrender of an old by a new lease does not apply when the new lease is void or voidable." In Knight....
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.... Ch. 28, after a brief review of the case law, the following principle is deduced: "The principle is that if a new lease is not effective but would, if it were effective, produce a surrender, then, by reason of the fact that the new lease is not effective, there is not an effective surrender." 8. The principle is well settled that a document or transaction which is ab initio void has no existence in the eye of law. If so, a new lease which is ab initio void although granted during the currency of an old lease cannot operate in law an implied surrender of that lease. It follows that on principle as well as authority the contention that the permanent lease under Ex. B. 6 which was ab initio void had the legal effect of determining the old lease on the theory of implied surrender, cannot be Upheld. 9. The next contention that the destruction by fire of the house which along with the suit site was leased by the plaintiff to the defendant under Ex. A.I, rendered the lease void also appears to be unsustainable. No doubt, under Section 108(e) of the Transfer of Property Act the defendant-lessee, could if he so desired, have treated the lease as void on account of the destru....
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....ecover possession from him. In the present case, the defendant did not surrender possession to the plaintiff. The defendant cannot, therefore, be heard to deny the plaintiff's right to recover possession. By merely obtaining a permission from the head lessor to erect a hut on the suit property, the defendant could not improve his position. A permission of this kind is far removed from the obtaining of a lease from the head lessor. The construction of a hut by the defendant on the suit property is not necessarily inconsistent with his treating the sub-lease granted to him by the plaintiff as subsisting. Thus, it is difficult to say in this case that the defendant effectively determined the lease he took from the plaintiff, and even if it be assumed that he did so, he cannot still be allowed to continue on the property of which he did not surrender possession to the plaintiff as he was bound to do so as a lessee who was inducted into possession of the property by the plaintiff-lessor. 10. I must also observe here that by arming himself with a permission from the head lessor to erect a hut on the suit property, the defendant cannot affect the rights of the under-lessor, plainti....