MANU/TN/0504/1914Equivalent Citation: AIR1915Mad717

IN THE HIGH COURT OF MADRAS

Decided On: 09.09.1914
Appellants: Srinivasa Aiyangar and Ors.
Vs.
Respondent: Rangasami Aiyangar and Ors.
Hon'ble Judges/Coram:
John Edward Power Wallis, Offig. C.J. and T.V. Seshagiri Iyer, J.
Case Note:
Transfer of Property Act (IV of 1882), Section 108 (a) - Limitation Act (IX of
1908), Schedule I, Article 115--Lessor and lessee--Breach of covenant for
quiet enjoyment--Disturbance by trespasser, whether breach--Trespasser
acting under lessor's instructions--Breach --Deposit money, suit to recover--
Limitation.
JUDGMENT
1. In this case the plaintiffs, who are the trustees of a temple, sued for the rent for five
faslis of certain lands which were leased to the defendants Nos. 1 to 4. The procedure
adopted by the trustees was to auction the lease and one Srinivasa Aiyengar, the sixth
witness for the plaintiffs in this case, was the successful bidder at the first auction.
Under the conditions of the auction he was bound to execute an agreement in favour of
the trustees on certain terms. He did execute an agreement in favour of the trustees and
got it registered and according to the well-known decision of the Full Bench of this
Court in Syed Ajavi Sahib v. Meenatchi Devastanam 8 Ind. Cas. 668 : 35 M. 95 : (1910)
M.W.N. 766 : 8 M.L.T. 437 : 21 M.L.J. 202, by which we are bound, this registered
agreement -by the lessee was a registered lease within the meaning of the Transfer of
Property Act so as to render the lease effectual. However, the majority of the trustees
were not satisfied with the terms of this document and said that it was not the sort of
lease which they had bargained for. They accordingly declared it cancelled and held a
fresh auction at which the defendants Nos. 1 to 4 in this suit were the successful
bidders and they in turn executed another registered agreement, which must be
regarded as a registered lease, in favour of the plaintiffs and became the lessees of the
plaintiffs. This was in July 1902, at the beginning of Fasli 1312. It is disputed whether
these defendants ever got into possession in Fasli 1312. In any case, the sixth witness
for the plaintiffs, Srinivasa Aiyengar, the successful bidder at the first auction, within a
few days after the beginning of the fasli, instituted a suit for an injunction restraining
these defendants from interfering with his possession of the lease-hold premises. These
defendants appeared and gave an undertaking that they weald not collect any rents
pending the disposal of the suit; and, when the time came to harvest the crops, the
Court appointed a Receiver. Ultimately it was held that this man Srinivasa Aiyengar was
not the lessee, but that these defendants were.
2 . In the present suit, among other things, the plaintiffs seek to recover from these
defendants the rent of the suit lands for Fasli 1312. The defendants rely on the fact that
they were out of possession and upon the lessor's implied covenant of a quiet
enjoyment. Under Section 108 (c) of the Transfer of Property Act, which, however, does
not apply to agricultural leases, The lessor shall be deemed to contract with the lessee
that, if the latter pays the rent reserved by the lease and performs the contracts binding

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on the lessee he may hold the property during the time limited by the lease without
interruption." That is what is generally known as the covenant for quiet enjoyment. The
usual covenant for quiet enjoyment in England is a covenant for quiet enjoyment
against disturbance by the lessor or those claiming through or under him, as distinct
from an unconditional covenant for quiet enjoyment which also extends to disturbance
by some one claiming by a title paramount to the lessor. It is, however, perfectly well
settled in England that even in the more extended form the covenant for quiet
enjoyment is only a covenant against disturbance by somebody claiming under a lawful
title. It does not extend to disturbance by a trespasser. In the present case the result of
the litigation between the parties in the suit already referred to has been that this
Srinivasa Aiyengar has been found to have been a trespasser. The disturbance of these
defendants was by Srinivasa Aiyengar, not by the plaintiffs. So far as this fasli is
concerned, it was a disturbance by a trespasser and, therefore, it would not come within
the covenant for quiet enjoyment under Section 108 (c) of the Transfer of Property Act.
Although Section 108 does not in terms apply to this case, which is an agricultural
lease, yet, nonetheless, we think it ought to be followed as embodying the rules of
justice, equity and good conscience. It is what the Legislature thought was applicable to
other leases, and there is no reason why it should not be applied as a matter of justice,
equity and good conscience to agricultural leases also, as has been done in the case of
several other provisions of the Transfer of Property Act relating to leases which have
been applied to agricultural leases which were not directly within the scope of the Act.
As regards the scope of this section the same view was taken in Tayawa v. Gurshidappa
25 B. 269 : 2 Bom. L.R. 1070.
3. With regard to Fasli 1313 the facts are more complicated. Towards the end of Fasli
1312, Srinivasa lyengar, who claimed to be the lessee, applied to the Court to be
appointed Receiver for the ensuing fasli, and these defendants also applied to be
appointed Receivers. On the 24th July 1903, when there was no Judge for the Court, the
trustees put in a counter-petition, Exhibit F: "What we submit regarding the petition
which the plaintiff has presented in respect of the cultivation during this year so that the
cultivation business may be done hereafter without delay, is we have no objection to
plaintiff and 6th defendant cultivating. In the end we are ready to admit it as the
cultivation of that lessee whose lease is established." The sixth defendant in that case
was the fourth of the defendants in the present case, but he was apparently acting in
opposition to defendants Nos. 1 to 3. On the same day the trustees delivered a letter,
Exhibit VII; to Srinivasa Iyengar and the present 4th defendant: "As mentioned in the
petition we presented today in Original Suit No. 60 of 1902 of the Kumbakonam Sub-
Court, we have no objection whatever to your cultivating the Mekkarimanglam village
yourselves. We consent to your doing so. You should take action accordingly." And by
Exhibit VII (a) they practically made an advance to these two people for the cultivation
expenses. What happened is made still clearer by a paragraph in the affidavit filed by
Srinivasa Iyengar, Exhibit VIII, on the 26th January 1904. All these facts he has spoken
to in his evidence in this case. While matters stood thus, as no Judge was appointed to
this Court till the 25th August last year, as the season was over to begin cultivation, and
as the lands in the village were lying waste, the trustees (that is, the present plaintiffs)
requested me and the 6th defendant to cultivate the village so that none might sustain
loss and wrote and gave us varthamanams (letters) marked A and B that is, Exhibit VII
and VII (a) in this case and presented herewith in support of the same. As the 6th
4efendant stated that it would not fee convenient for him to cultivate in accordance with
that arrangement, I have myself solely carried out the cultivation, etc., in reference to
the arrangement separately made with the trustees and not in accordance with the
arrangement of the lease in question." Later on in the year, when the time came to
harvest the crop, the present plaintiffs obtained an order from the Court that the crops

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of the plaint village, now ready for harvest, will be gathered by. the plaintiff" (that is
Srinivasa Iyengar) and the trustees or by any one of them or by the agent deputed by
them in writing for the purpose and that the produce gathered will be taken possession
of by the trustees or any one of them or their agent after. delivery of the portion due to
cultivating tenants and incidental expenses." On these facts we are of opinion that the
action of the plaintiffs in asking this Srinivasa Iyengar and the present 4th defendant to
go into possession not in right of the defendants' lease, and their subsequent action in
obtaining an order for the gathering of the crops by Srinivasa Iyengar himself and for
the delivery to them of the crops and the acceptance of such delivery, constitutes a
disturbance of these defendants under their lease, and it is a breach of the covenant for
quiet enjoyment and disentitles the plaintiffs to recover anything in respect of rent for
this fasli from these defendants.
4 . The only other question argued before us by Mr. Narasimha Aiyangar was as to a
sum of Rs. 500 which was paid by these lessees prior to bidding for the lease. Under
the terms of the notice all bidders were required to deposit Rs. 500. The unsuccessful
bidders were entitled to get back their deposits at once. The successful bidder was to
get his deposit back after executing a lease and a security bondi Under the terms of the
contract between the parties the money became payable to these defendants on the
execution of the lease and the security bond and there was a breach of contract in not
paying it to them then and if no other Article is applicable Article 115 applies to the
case which is "for compensation for the breach of any contract, express or implied, not
in writing registered and not herein specifically provided for." Sitting on the original
side one of us recently held that that was the Article applicable to a deposit of money
which was payable on the happening of a certain event but had not been paid. That
case, Balakrishnudu v. Narayanasawmy Chetty 24 Ind. Cas. 852 : 37 Ma. 175, is
reported in 37 Madras 175 and that decision has been affirmed on appeal on this point
in V. Balakrishnudu v. G. Narayanasawmy Chetty 22 Ind. Cas. 60 : (1914) M.W.N. 264
by the learned Chief Justice and Mr Justice Oldfield. Following that decision we must
hold that the defendants' claim in respect of this Rs. 500 is barred. They claim that they
had placed this money in the hands of the plaintiffs and that the plaintiffs appropriated
it in satisfaction of a debt due from the 4th defendant. It appears, however, that before
that appropriation, if it could avail them, the debt had become barred.
5. As regards the question argued on the memorandum of objections we think the Court
below was right.
6 . In the result the appeal will be allowed so far as the claim for Fasli 1313 is
concerned, and the decree modified accordingly. The party will pay and receive
proportionate costs throughout.
7. The memorandum of objections is dismissed with costs.

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