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3. I may at once say that the decision of the lower appellate Court is wrong and unsustainable inasmusch as it has not considered the question for decision from a correct perspective and has not correctly appreciated the legal effect of the agreement evidence by Exhibit B-2 dated 1st May, 1961, and as to what took place on that date and the precise legal implications thereof.

4. Learned Counsel for the respondent urged (1) that the superstructure (zinc shed) which belonged to the tenant is immoveable property of value exceeding Rs. 100 and therefore without registration no title would pass to the landlord; (2) that the right of the tenant under the City Tenants Protection Act to get a conveyance of the land which undoubtedly would exceed Rs. 100 in value as well as the right of the tenant to claim compensation by his agreeing to the landlord taking the superstructure are rights and interests over immoveable property in two aspects and as under Exhibits B-1 and B-2 those rights had been relinquished and/or conveyed to the landlord, the two documents require registration as dealing with rights in and interest over immoveable property. I see no substance in these contentions as they rest upon a truncated and restricted view of the two letters Exhibits B-1 and B-2 besides ignoring the true significance as to the manner in which the parties implemented that arrangement and the consequences of the change in the character of the tenant's possession of the property on and from 1st May, 1961.. In my view, the events that took place on 1st May, 1961, clearly amount to an express, surrender or in any event an implied surrender within the meaning of section, in, Sub-clause (e) and (f) of the Transfer of Property Act and the tenant, after 1st May, 1961, would be estopped from contending that the landlord had not become the owner of the superstructure and he had no power to grant a lease of the building; and the site treating himself as the owner of the same. The position will be the same even if the tenancy was one in which the tenant had the protection of a special tenancy legislation. The doctrine of surrender by operation of law or implied surrender are expressions used to describe the situation like the present where the law implies a surrender from unequivocal conduct of both parties which is inconsistent with the continuance of the existence of the prior tenancy. Such a surrender is an act of the law and takes place independently of and even in spite of the intention of the parties. It is presumed to have preceded the act to which the tenant is a party. The doctrine of implied surrender applies alike to contractual tenancies as well as tenancies protected by tenancy legislations meant for the protection of the tenants.

6. As against this, the provisions of the City Tenants Protection Act may be examined. The right of the tenant concerning the superstructure put up by him and the compensation thereof are to be found mainly in Sections 3 and 4 of the Act-The tenant on ejectment will be entitled to be paid compensation or the value of the building erected by him which shall be determined by the Court in a suit for ejectment filed by the landlord and when the landlord makes the payment into Court, the amount of compensation declared by the Court, the tenant must put the landlord into possession of the land with the building. This right of the tenant to compel the landlord to take the superstructure and pay the value thereof is a statutory right conferred upon the tenant under this Act which right, the tenant is not entitled to, under the provisions of the Transfer of Property Act. Even so, the tenant cannot of his own accord initiate a proceeding compelling the landlord to take the superstructure and pay the compensation therefor. This right to claim compensation can be exercised by the tenant only if the landlord initiates a proceeding to eject the tenant. Vide Mohanambal v. Selvanqyaki (1961) 2 M.L.J. 261 at p. 262, where Srinivasan, J., has held that " the provisions of the Act do not contemplate the order determining compensation, and directing its payment at any point of time anterior to the determination of the ejectment application itself." In a proceeding to eject the tenant, the tenant can exercise the option of claiming either the compensation for the superstructure under Sections 3 and 4 or ask for a conveyance of the land itself as specified in Section 9 of the Act after paying the market value determined by the Court. The difference in the language of Section 4 and Section 9 should be borne in mind. Where the tenant exercises the option of claiming the compensation for the superstructure, no conveyance of the superstructure by the tenant to the landlord is contemplated.. All that happens is, the tenant walks out, putting the landlord into possession of the land with the building, on receipt of compensation, while, where relief is afforded, under Section 9, on payment by the tenant of the price for the land as determined by the Court, the landlord conveys to the tenant the extent of the land for which said. price had been paid by the tenant and Section 9 (3) also contemplates a regular conveyance with stamp duty and registration. The only departure which Sections 3 and 4 make from the provisions of the Transfer of Property Act is that the tenant, under the City Tenants Protection Act is entitled to compel the landlord to take the superstructure, but even so, there is no conveyance of the same to the landlord. The very act of payment of the compensation makes the superstructure a part of the land demised as belonging to the landlord. The freedom of the parties to enter into a contract to the contrary within the meaning of Section 108 of the Transfer of Property Act is, however, controlled by Section 12 of the City Tenants Protection Act.. It is unnecessary to refer to the earlier decisions on the point about the scope of the protection afforded to the tenant under Section 12 of the Act after the recent pronouncement of the Supreme Court in Vajrapani Naidu v. N.T.C. Talkies , and the recent Bench decision of this Court to which I was a party, in Subramania Iyer v. M.H.P. Fund Ltd. I.L.R. . It may now be taken as settled law that any stipulation by the tenant to surrender possession of the land with the superstructure erected by the tenant or to accept as compensation any value other than the value to be determined under Section 3 of the City Tenants Protection Act, will not be valid and in a. proceeding for ejectment, the tenant will be entitled to insist upon either the conveyance of the land itself under Section 9 or payment of the compensation to be determined in accordance with Sections 3 and 4 irrespective of any contract to the contrary. So long as the tenant is in possession of the property as a lessee of the land, the tenant will be entitled to the protection under Section 12 and insist upon his rights under Sections 3 and 4 or under Section 9 at his option, even though he had entered into a. contract to the contrary. In Subramania Iyer v. M.H.P. Fund Ltd. I.L.R. , the lessee agreed to erect the building on the site leased to him according to certain specifications and covenanted to surrender possession of the entire property including the superstructure on the expiry of the lease. The tenant agreed to receive only the value of the building then current or a sum of Rs. 5,000 whichever was less. The Bench. Held that such a stipulation would not be binding upon the tenant and deprive the tenant of his right to obtain a conveyance under Section 9 of the Act. This Bench, decision can be invoked by the tenant in the instant case if the matter had stopped with the letter, Exhibit B-2, dated 29th March, 1961, by which the tenant acknowledged the arrears in the sum of Rs. 375 and agreed that if the same was not paid by the end. of April, the landlord would be entitled to take and become the owner of the zinc shed and that the tenant would not raise any objection. For the tenant to continue to be entitled to the rights under Sections 3 and 4 or under Section 9 as the case may be, i.e., at his option, he must continue to be a tenant of the land. The tenant would lose the benefit of these provisions if he subsequently enters into a contract with the landlord either by way of entering into a new lease or by actually surrendering possession of the property to the landlord with or without compensation. The overriding right of the protection under Section 12 of the Act read with Sections 3 and 4 or Section 9 as the case may be, would avail the tenant only so long as he continues to be in possession of the land as lessee even though it may be after the expiry of the lease. What is crucial is his continuance must be as a lessee of the land. There is nothing in the City Tenants Protection Act which precludes a tenant from receiving satisfaction of his rights under the Act outside Court before any proceeding is initiated by the landlord. The tenant may not like to purchase the land and the tenant may be content to receive some compensation, even though it may be less than what may be determined under Section 4 and walk out of the land and if on the tenant so doing the landlord takes possession of the land and the superstructure, the tenant's right under the City Tenants Protection Act come to an end once for all. The landlord thereafter may lease the property, the land and the building together, to any third party or he may even grant a lease to the tenant himself and when the tenant is in possession thereafter, his possession is totally different, he is not a tenant of the mere land entitled to the protection of the Act, but he is an ordinary tenant of the land and the building to which the provisions of the Transfer of Property Act alone would apply. It is only where the terms of the tenancy are changed and a new tenancy comes into being, though in favour of the same tenant, that the doctrine of express or implied surrender comes into play. The operation or the applicability of that doctrine is not in any way controlled by the provisions of the City Tenants Protection Act.

Section 111 (e) of the Transfer of Property Act deals with the determination of the lease by an express surrender as a result of the lessee yielding up his interest in pursuance of a mutual agreement between the lessor and the lessee and Section 111 (f) deals with an implied surrender. These provisions merely embody the provisions of the English Law except this difference that in the case of an express surrender, in England, it is required by the statute to be in writing. An express surrender consists in the yielding up of the lessee's interest to the lessor and it takes effect like an ordinary contract by mutual consent on the lessor's acceptance of this act of surrender of the lessee. No technical words are necessary to effect a surrender and any form of words which will indicate the intention will be sufficient. In India, for an express surrender no such formality of a writing is necessary and a deed of surrender need not be registered if there are facts de hors. (Vide Mulla's Transfer of Property Act, 5th Edition page 735).

16. In a recent decision of the Andhra Pradesh High Court in Munuswamy v. Muniramiah , the doctrine of surrender by operation of law by a tenant taking a new lease was discussed and it is sufficient to refer to the following observations at page 169.

An express surrender effectuates the clear and unambiguous intention of the lessee to ' surrender and yield up ' his leasehold to the lessor. It is therefore a matter of intention of the parties and not a matter of implication of the law. But in an implied surrender, an intention to surrender is not expressed. It is inferred by the law. An implied surrender is an act of the law and takes place independently of, and in some cases even in spite of, the intention of the parties. The law infers such surrender from the act and conduct of the parties. ' Thus it is properly applied to cases where the owner of a particular estate has been party to some act having some other object than that of a surrender, but which object cannot be effected whilst the particular estate continues, and the validity of which act he is by law estopped from disputing'. (See Lyon v. Reed (1844) 13 M. and W. 285, and Bessell v. Landsberg L.R. (1845) 7 Q.B. 638.