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(6) A familiar instance of a surrender by operation of law is when the tenant takes a new lease from the landlord to commence during the term of the old lease. Here the tenant does not express his intention to surrender and determine the old lease. But by his taking a new lease, the law infers a termination of the existing lease. The reason that the landlord has no power to grant the new lease except upon the footing that the old lease is surrendered; and the tenant, being a party to the grant of the new lease, is estopped from denying the surrender. This is how surrender by operation of the law comes about. It is essential to such surrender that the new lease should be valid and take effect at once as a lease. No implied surrender can therefore arise on the acceptance by the 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 , (1948) 11 QB 702.

In Easton v. Penny, (1892) 67 LT 290 at p. 293, Romer, 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 v. Williams, (1909) 1 Ch 256, Cozens-Hardy J. distinguished a surrender by operation of law from an actual surrender by deed in the following words:

"The acceptance of a new lease operates as an implied surrender "by operation of law" of the old lease within the meaning of Section 3 of the Statutes of Frauds, but such surrender differs from an actual surrender by deed; it is not absolute; it is subject to an implied condition that the new lease is good, and if this is not so the old lease remains in force."

In Zick v. London Union Tramways Ltd., (1908) 2 KB 126 the facts were - that on 15-3-`965. one F., as agent for the mortgagees in possession of certain premises. let them to one S for a term of three years which was to expire on March 14, 1908. On 15-51905 the defendants served a "notice to treat" for the purchase of premises in question on the lessor's agent. The effect of this notice was that the lessor could no new interest in the premises so as to throw any fresh burden on the defendants. S, without any knowledge of the "notice to treat" sold to the plaintiff in January 1906 his furniture and effects on the premises and agreed to hold the premises in trust for him. In pursuance of this, the plaintiff entered on the premises in February 1906. Afterwards, in order that the plaintiff should have not only the beneficial but also the legal possession of premises. S informed F that he desired to transfer to the plaintiff the unexpired portion of his tenancy. But the lessor suggested the surrender of the existing tenancy and the grant of a fresh lease to the plaintiff for a term of 3 years. Accordingly a new lease was taken by the plaintiff for a period of three years to expire on 14-2-1909. The lessor was incompetent to grant this new lease because of the "notice to treat" which had previously been served on him. In other words, the new lease was invalid lease could in law work as implied surrender of the old lease. The Court of Appeal held that it could not. The President and the other two Lords Justices in separate but concurrent judgments held that the new lease which was invalid", although accepted by the plaintiff, did not operate to bring about an implied surrender of the old lease and that therefore the old lease must be regarded as subsisting. In Barclays bank Ltd. v. Stasek, 1957 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."

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 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.