The Judgment of the Court was delivered by

Subramania Iyer, J.:— Defendants 2 and 3 are the appellants in this Second Appeal. Appellants 2 to 8 in the lower appellate Court who are the legal representatives of the deceased appellant there (Plaintiff) are respondents 1 to 7 here. They have filed a memorandum of objections. The 1st defendant is the 8th respondent.

2. The 1st defendant who was the owner of the properties shown in the schedule attached to the plaint gave a possessory mortgage thereof to the plaintiff under Ex. A dated 27-4-1106. On even date he took the properties back on lease for a period of 3 years certain and executed Ex. B in favour of the plaintiff, fixing an yearly rent and providing for half-yearly payment. Ex. B creates a charge over the 1st defendant's interests over the properties for the rent payable under the lease. On 18-8-1107, the first defendant assigned his ownership over the properties to the second defendant under Ex. J, without mentioning the fact that he was holding the properties as a lessee. The 2nd defendant, in his turn, assigned the rights obtained by him under Ex. J to the 3rd defendant under Ex. H dated 26-1-1115. On 4-10-1107, the plaintiff brought a suit impleading defendants 1 to 3 and another party for arrears of rent for the years 1106 and 1107 as also for recovery of possession of the properties on the ground that the sale deed by the 1st defendant to the 2nd defendant was brought about in collusion between defendants 1 to 3 on a deliberate suppression of the fact that the 1st defendant was holding as lessee with a view to defeat the rights of the plaintiff. Relief in respect of the rent after the date of the sale deed was claimed also against defendants 2 and 3 on the ground that the sale in the name of the 2nd defendant was really for the benefit of the 3rd defendant. Ex. D is the judgment in that case which was pronounced on 15-4-1108 and Ex. VI is the plaint therein. A decree was given for arrears of rent against the 1st defendant. No relief was granted against defendants 2 and 3. The prayer for recovery of possession of the properties was refused on the ground that Ex. B does not stipulate for forfeiture of the term (which, expires only on 27-4-1109) on default of payment of rent and the suit having been brought before the term expired, that is, during the subsistence of the lease, it was premature.

3. The present suit (O.S 182/116 of the District Munsiff's Court, Nagercoil) was brought on 4-3-1116 for recovery of possession of the properties on foot of the lease as also for recovery of arrears of rent from 1108 onwards and for future rent, seeking to recover the entire rent from defendants 1 to 3 as also by sale of the equity of redemption over the properties subject to the mortgage in his favour. The 3rd defendant alone contested. He resisted the claim for recovery of possession of the properties on the ground that it was barred by ‘res judicata’ on account of the decision in the prior suit (Ex. D). The relief claimed against defendants 2 and 3 for arrears and future rent was repudiated. The allegation made in the plaint that the assignment taken in the name of the 2nd defendant was for and on behalf of the 3rd defendant was also denied. The Munsiff granted a decree for recovery of properties and rent both, arrears and future, against the 1st defendant but refused the relief that was asked for personally against defendants 2 and 3. In respect of the relief for recovery of arrears of rent by a charge upon the properties it was allowed, but was confined to one year, that is in the third and last year of the lease. The Munsiff decreed costs against the 1st defendant and directed that the 3rd defendant should bear his costs.

4. The plaintiff filed an appeal (A.S 152/1122) in the District Court of Nagercoil against that part of the decree that was against him and the 3rd defendant filed a memorandum of objections regarding the relief granted by the Munsiff for recovery of possession of, as also in respect of the charge over, the properties allowed by the Munsiff. The District Judge dismissed the memorandum of objections as also the appeal except in respect of the personal relief against defendants 2 and 3. He granted personal relief against the 2nd defendant for arrears of rent from 18-8-1107 to 26-1-1115, that is for the period for which the title to the properties vested in him, and against the 3rd defendant from 26-1-1115 when he purchased the properties. The 3rd defendant was made liable for future rent also. The order for costs passed by the Munsiff was confirmed. As regards the costs in appeal, the learned Judge directed that the parties should bear their respective costs. The plaintiff-appellant died pending the appeal in the District Court and his legal representatives were brought on record as appellants 2 to 8.

5. Learned counsel for the appellants urges two points in this Second Appeal. One is that the courts below erred in granting the relief for recovery of possession of the properties and the other that the District Judge erred in granting personal relief against defendants 2 and 3 for arrears of, and future rent. The first point is sought to be sustained by stating that Ex. D, the judgment in the previous case, operates as ‘res judicata’ and that even if the claim be not so barred, there being no undertaking in Ex. B, on foot on which the suit is brought, to deliver possession back to the lessor on the expiry of the term the claim for recovery cannot be allowed. The reason for the dismissal of the earlier suit, as already stated, was the subsistence of the tenancy. The judgment also says that the document evidencing the lease does not provide for a forfeiture of the term on account of arrears of rent. This suit having been filed after the expiry of the term of the lease and the determination of the lease being the cause of action, the plea of ‘res judicata’, which is based on the decision in the prior suit which refused recovery of possession on account of the subsistence of the lease, has no foundation and has only to be stated, to be rejected, nor has the second ground on which recovery of the properties is resisted, any better claim for consideration.

6. The landlord's claim for recovery of possession of the properties from a tenant on the determination of the tenancy need not be based on any contract expressly entered into in that behalf. The right of the landlord to get and the liability of the tenant to surrender possession of the properties leased, on the determination of the tenancy, is inherent in the very relationship of landlord and tenant and will be implied by the law. This is known as the rule in ‘Henderson v. Squire’, (1869) LR 4 QB 170.

“The duty of the tenant union the determination of the tenancy ………… ………… ………… ……… ……… is simply to yield up peaceable and complete possession of the premises demised to him together with all fixtures except those which he is entitled to remove ……… ………. This duty will be implied in law if not expressed in the contract between the parties and the tenant will not discharge the duty by merely going out of possession unless he restores possession to the landlord”. For on the Relationship of Landlord and Tenant, 6th Edn. P. 838.

“A lease usually contains a covenant on the part of the lessee to deliver up the premises on the determination of the term. In the absence of such a covenant or of any express stipulation, the tenant is under an implied contract to restore possession to the landlord.” The complete Law of Landlord & Tenant by Redman, edited by Hill, 8th Edn. (1939) p. 459.

7. See also ‘Venkatesh Narayan v. Krishnaji Arjun’, 8 Bom 160. Section 108(q) of the Transfer of Property Act has recognised this obligation on the part of the tenant. Indeed one does not come across an instance of this plea having been ever seriously put forward.

8. The second point raised in the Second Appeal relates to the personal liability of the appellants for the arrears of, and future rent claimed in the plaint. The learned Judge decreed the claim against the appellants for the reason stated in paragraph 4 of his judgment thus:—

“…………. The 1st defendant has sold the property to 2nd defendant in 1107 and he released his right to 3rd defendant on 26-1-1115. So they are virtually assignees of the lessee. There is a privity of estate between, them and the lessor. A covenant to pay rent runs with the land and will be binding upon the assignee, though the liability does not extend to rents accrued due before the date of assignment. Since 2nd defendant purchased all the rights of 1st defendant by Ex. J. and was in possession till 1115 the prior lease is binding on him, and he is personally liable for the rent during the period he was in possession of the property. So also the, 3rd defendant will be liable personally for the rent from 26-1-1115 till delivery subject to the limit under O. 20, R. 12. The fact that they were ignorant of the lease is of no consequence……………”

9. Every part of this reasoning is erroneous. The lease evidenced by Ex. B terminated by the efflux of time limited thereby on 27-4-1109 even before the expiry of term, the lessee (who in this case happened even before the lease to be the owner of the properties) assigned that ownership alone to the 2nd defendant and put him in possession. The 2nd defendant in his turn assigned his interests in favour of the 3rd and put the latter in possession in Chingom 1115. Thus, from the time of the expiry of the period of the lease till the date of suit, possession continued to be with the 2nd and 3rd defendants as aforesaid without their being in any manner connected with the lease. The case of the plaintiff in the prior suit was that the non-reference to the 1st defendant's leaseship in the transfer made by him in favour of the 2nd defendant was deliberate with a view to defeat him. It is thus clear that the transfer made by the 1st defendant was not of his rights as lessee at all though possession was delivered to the transferee. Mere transfer of possession by a lessee, without transferring his interests as lessee to a transferee will not make the transferee liable to the landlord as the transfer does not create an estate in the transferee nor is possession necessary to fasten liability on the transferee if the lessee transfers his interests as lessee. To fasten liability on account of the principle of privity of estate on the transferee the transfer must be of the leasehold whether accompanied or not accompanied by possession. This will be the position when the lessee has an estate to transfer (see ‘Ram Kinkar v. Satya Charan’), in 66 Ind App 50 : AIR 1939 PC 14.

10. A lessee having been in possession after the termination of the lease is called ‘a tenant at or on sufferance’.

“One who enters on land by a lawful title and after his title has ended, continues in possession without obtaining the consent of the person then entitled, is said to be a tenant at sufferance.” Coke on Littleton 57b.

“A tenancy at sufferance does not arise upon the holding over by one whose title was created by act of law, and there can be no tenancy at sufferance against the Crown”. Ibid

“The recognition of a tenancy at sufferance in other cases probably arose from a desire to prevent the person holding over from being a disseisor, and therefore in a position to acquire a title by adverse possession. The abolition of the old doctrine of adverse possession has rendered this use of the tenancy obsolete.” Halsbury's Laws of England, Hailsham Edition, Vol. XX, P. 122 Footnote (1).

“A tenant at sufferance has possession but no privity of estate.” Ibid, Footnote (m)

“A tenancy at sufferance is merly a fiction to avoid continuance in possession operating as a trespass. It therefore cannot be created by contract and arises only by implication of law when a person who has been in possession under a lawful title continues in possession after that title has determined without the consent of the person entitled”.

“The Madras High Court has observed that the fiction has no place after the enactment of the Transfer of Property Act but the Act, as already observed, is not exhaustive and the term is a useful one to distinguish a possession rightful in its inception but wrongful both in its inception and in its continuance. A tenant holding over after the expiration of his term is a tenant at sufferance. If he holds over against the landlord's consent, he is a trespasser and is liable for mesne profits. A mortgagor left in possession under an English mortgage is a tenant at sufferance and cannot grant a lease without the concurrence of the mortgagee and if he does, the mortgagee can treat the lessee as a trespasser. A tenancy at sufferance does not create the relationship of landlord and tenant, and in a suit for ejectment of a tenant holding over without the landlord's consent limitation runs under Article 139 from the expiration of the term and not from the termination of the tenancy at sufferance.” Mulla's Transfer of Property Act, 3rd edn. p. 629.

11. There was not nor can there have been a case put forward on behalf of any of the parties that the continuance of possession after the determination of the lease was with the consent of the plaintiff. Indeed, the plaintiff wanted possession even before the expiry of the lease as is evident from the earlier suit filed by him. Under the circumstances obtaining in this case, the possession after the determination of the tenancy by the efflux of the time was not even that of a tenant at sufferance but was that of a trespasser. This case is not complicated by any claim for value of improvements or for other payment which may give rise to other questions for consideration. Even if there had been a tenancy at sufferance, that tenancy is not one that could be transferred.

12. In this case, there has been no transfer of any tenancy. The transfer was merely of the ownership of the properties possessed by the lessee antecedent to the lease. There not having been even a purported transfer of any tenancy in any manner, no question of liability based on the principle of privity of estate can possibly arise in this case. The decree passed by the lower appellate court against defendants 2 and 3 based on the principle of privity of estate cannot, therefore, be supported.

13. This however does not conclude the question of their liability. The lease relied upon by the plaintiff is proved. That he is entitled to get rent from the lessee for the period of 3 years covered by the lease, that is, from 27-4-1106 to 27-4-1109 is not also disputed. The assignment in favour of the 2nd defendant was on 18-8-1107 (Ext. J) at the time when the lease had yet 2 years to run. That assignment, however, not having been of the leasehold, no liability for rent can be fastened upon the transferee, the 2nd defendant for that period. Different considerations prevail in respect of the period after the determination of the lease, when the lessor became entitled to the vacant possession of the properties. The original tenant or any person deriving possession from him who continues to hold over without the consent of the landlord would be liable to the landlord for damages for use and occupation. If the continuance in possession is against the landlord's dissent as is the case here, the party in possession would be liable for mesne profits. Defendants 2 and 3 cannot even plead want of notice of the plaintiffs claim in this regard assuming that knowledge is necessary or material. They are therefore liable for mesne profits of the properties during the period of their respective possession of the properties. The 2nd defendant was in possession between the dates of Exs. J and H, that is from 18-8-1107 to 26-1-1115, and the 3rd defendant was in possession thereafter and they incurred liability for mesne profits for the respective periods of their possession. The plaintiff has not rested his claim for personal relief against defendants 2 and 3 upon any specific ground. Any ground available to them in law and appearing upon the evidence in the case can be relied upon to sustain the relief claimed by the plaintiff. The ground of relief against defendants 2 and 3 for mesne profits can only be subject to the bar by limitation. The suit was filed on 4-3-1116 and the liability can only be for three years next before the suit that is, from 4-3-1113. From that date till 26-1-1115 the 2nd defendant and from 26-1-1115 till date of suit as also until delivery of possession to the plaintiff, the 3rd defendant would be liable for mesne profits. The relief claimed by the plaintiff against defendants 2 and 3 is not at a rate higher than the rent fixed in the lease. There is no case put forward that the rent fixed is in excess of the income available from the properties. Though the plaintiff might have got more if the properties would yield more, such a claim has not been made and, therefore, has not to be considered. The questions raised in the memorandum of objections relate to the charge claimed in the plaint over the properties. Ex. B creates a charge only for a period of 3 years. It has already been found that there was no tenancy in the real sense of the term subsequent thereto. The question does not, therefore, arise whether had the tenancy continued, the charge created by Ex. B would be for the term of the lease, subject to which the lessee would hold subsequent to the termination of the original lease by efflux of time. Reliance was placed by the respondents on the fact that a landlord is entitled to a charge on the holding apart from any contract in that behalf. Assuming that the lessor is entitled to such a charge, the claim here made is not for a charge upon the holding but on the rights possessed by the lessee over the properties prior to the lease which does not form part of and in no sense, can be regarded as comprised in, the holding. The claim for the charge over the properties cannot therefore be granted. As regards costs, it appears to us that as both parties have raised untenable claims and contentions, the proper order to make is to direct each party to bear their costs throughout.

14. The result is that over and above the decree already granted against the 1st defendant by the Courts below, there will be a decree in favour of the plaintiff's representatives (1-7) for recovery of possession of the properties and for mesne profits at the rate claimed in the plaint against the 2nd defendant from 18-8-1107 to 26-1-1115 and against the 3rd defendant from 26-1-1115 to the date of suit and thereafter for three years from date of decree of this Court or till delivery of properties to the plaintiff whichever is earlier. The paddy should be valued at the nirak rate every year when the pattam is payable under Ex. B i.e, in Kanni and Kumbbam. The executing court will assess the value. The decree passed by the courts below will be modified in the manner and to the extent above indicated. The S.A and memo of objections are dismissed.

15. Order accordingly.