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In Balakrishna Sakharatm vs Moro Krishna Dabholkar(3) it was a case of one of the co sharer jagirdars who as a manag er filed a suit for recovery of Rs. 99/ being the balance due to him on account of the highest rate of assessment for the three years preceding the suit. PRE |
The defendant disputed the plaintiff 's right to demand the highest rate of assessment and contended that the plaintiff had no right to sue alone as he and his co sharers owned the jagir and the defendant cultivated the land in that village by paying the jagirdars something less than the full assess ment prior to the y... |
It was in that context that the following observation appears in the judgment which is relied upon by counsel: "We must, therefore, treat it as settled law that a co sharer who is manager even with the consent of his co sharers can not maintain a suit by himself and in his own name to eject a tenant who has failed to c... |
This proposition of law also purports to be in line with the two earlier decisions relied upon by counsel and is of little aid to him. Ratio |
In Dwarka Nath Mitter and others vs Tara Prosunna Roy and others,(4) the objection of the defendant was to the form of the suit and it was pressed from the very commence ment by the defendant. PRE |
This was a suit by the plaintiffs for balance of arrears of rent making other co sharers as defendants. Ratio |
The court held that unless the co sharers had refused to join in the suit or had otherwise acted prejudicially to their interests the plaintiffs were not entitled to sue alone. Ratio |
In this view of the matter the suit was dismissed. Ratio |
We do not see how this decision can come to the assistance of the appellant. Ratio |
It is strenuously submitted by Mr. Tarkunde that unless the landlord is also the absolute owner of the premises, he cannot evict the tenant under section 13(1)(f).Argument Ratio |
Landlord means landlords under the appropriate General Clauses Act and, therefore, since there are (1) Cal. Ratio |
(2) Mad. Ratio |
(3) Bom. Ratio |
(4) Cal. Ratio |
399 other co sharers the plaintiff alone could not file the suit for eviction. Ratio |
There are two reasons for our not being able to accept the above submission. Ratio |
Firstly, the plea pertains to the domain of the frame of the suit as if the suit is bad for non joinder of other plaintiffs. Ratio |
Such a plea should have been raised, for what it is worth, at the earliest oppor tunity. Ratio |
It was not done. Ratio |
Secondly, the relation be tween the parties being that of landlord and tenant, only the landlord could terminate the tenancy and institute the suit for eviction. Ratio |
The tenant in such a suit it estopped from questioning the title of the landlord under section 116 of the Evidence Act. Ratio |
The tenant cannot deny that the landlord had title to the premises at the commencement of the tenancy. Ratio |
Under the general law, in a suit between landlord and tenant the question of title to the leased property is irrelevant. Ratio |
It is, therefore, inconceivable to throw out the suit on account of non pleading of other co owners as such. Ratio |
Being faced with this position counsel submits that since the requirements are found to be of the co owners, the suit cannot be decreed in their absence. ARG |
This is a repetition of the first submission in a different form. Ratio |
Counsel relied upon Mclntyre and another vs Hardcastle(1). PRE |
The English rule laid down in that decision is that if two or more landlords institute a suit for possession on the ground that a dwelling house is required for occupation of one of them as a residence the suit would fail. Ratio |
The re quirement, according to the decision, must be of all the landlords. Ratio |
vs Amarendra Nath Roy Choudhuri and Ors,(2) Tarak Chandra vs Ratanlal Ghosal;(3) Taherbhai Hebtullabhai and another vs Ambalal Harilal Shah & Ant.(4). PRE |
Deb Ranjan Chatterjee vs Swaranarani Biswas & another(5). PRE |
Indeed the rule in Mclntyre 's case (supra) is abhorrent to the Indian conception and structure of social life of our country with its benign sensitivity and ties, which is not based on pure individualism. Ratio |
A widowed sister, sud denly shipwrecked in the mid stream of married life, with no other help, returns to parental home or to her brothers ' where sympathetic and affectionate shelter is readily avail able to her. Ratio |
In such a case the additional requirement of the widowed sister and her children may furnish a reasonable requirement of the father or the brothers for the purpose of eviction of their tenant. Ratio |
It is enough if the requirements are of any one of the members of the family or of dependents to furnish a reasonable plea for eviction on the ground of personal requirement. Ratio |
We endorse the parting of the ways from the English rule on this aspect of the matter by the High Courts. Ratio |
This is in accord with healthy Indian tradi tion. Ratio |
(1) (2) (3) (4) I.L.R. [1966] 7 Guj. 963 (5) 400 Keeping in the forefront the observations of the Bombay High Court in Vagha jesing vs Manilal Bhagilal Desai(1) (at page 252) where reference has been made to the land lords ' rights belonging jointly to several persons and hence warranting a suit by all the coowners, Mr... |
From this he submitted that all the heirs of late Motilal Sen were the landlords and, there fore, they should have been impleaded as plaintiffs in the suit.` Ratio |
We are unable to give effect to this submission taken for the first time in this Court in view of the clear ac knowledgement and admission of the defendants and concur rent findings of the courts that the plaintiff is their landlord. Ratio |
Mr. Tarkunde also relied ' upon a Full Bench decision of the Gujarat High Court in Nanalal Girdharlal and another vs Gulamnabi Jamalbhai Motorwala and others(") and read to us the following passage at page 146: "It is, therefore, clear that the rule that a co owner may maintain an action to eject a tres passer without ... |
Such a tenant can be evicted only by an action taken by all co owners" But this rule is not applicable in the present case as would appear from the decision itself. Ratio |
The Gujarat decision at para 10 of the judgment excludes two categories described therein and the rule of estoppel applies to these two categories. Ratio |
The present case, even according to this deci sion, fails under the excepted category. Ratio |
Before we come to the real question at issue we may turn to section 13(1)(f) of the Act as it was at the mate rial time: Sec. 13. STA |
protection of tenant against eviction (1) Notwithstanding anything to. STA |
the contrary in any other law, no order or decree for the recovery of possession of any premises shall be made by any Court in favour of the landlord against a tenant except on one or more of the following grounds, namely (f) where the premises are reasonably re quired by the landlord either for purposes of building or... |
(1) 37 Born. Ratio |
L.R. 249. Ratio |
(2) A.I.R.1973 Guj. 131. Ratio |
401 This is not a case attracting the second part of section 13(1)(f), that is to say, the clause providing for the occupation of any person for whose benefit the premises are held. Ratio |
We will not, therefore, refer to the submission of the appellant and to the decisions relied . Ratio |
upon by him with reference to that clause. Ratio |
The present case, on the facts found, is covered by the first part of section 13(1 )(f), namely, where the premises are reasonably required by the landlord for his own occupa tion if he is the owner. Ratio |
There is no dispute that the plaintiff is the landlord. Ratio |
It is, however, found that he is one of the co owners of the premises the other co sharers being his mother and married brother, who reside in the Same premises along with him Ratio |
The premises m suit, namely, the second floor of the building in occupation of the tenant is required by the plaintiff for occupation of the members of the joint family and for their benefit. Ratio |
A major portion of the ground floor of the building accommodates the joint family business and the first floor is found by the court to be inadequate to the requirements of the large family of eighteen members including the widowed mother. Ratio |
That the particular requirement is reasonable is no longer in controversy. Ratio |
The only question is whether a decree can still be passed in favour of the plaintiff since he is not the absolute and full owner of the premises, sharing, as he does, the interest in the premises along with other co sharers. Ratio |
The principal question, therefore, is whether the plain tiff being a co owner landlord can be said to reasonably require the premises for his own occupation within the expression "if he is the owner" in section 13 ( 1 ) (f). Ratio |
Mr. V.S. Desai reads to us from Salmond on Juris prudence (13th edition) and relies on the following passage in Chapter 8 (Ownership), paragraph 46 at page 254: "As a general rule a thing is owned by one person only at a time, but duplicate ownership is perfectly possible. Ratio |
Two or more persons may at the same time have ownership of the same thing vested in them. Ratio |
This may happen in several distinct ways, but the simplest and most obvious case is that of co ownership. Ratio |
Partners, for example, are co owners of the chattels which constitute their stock in trade of the lease of the premises on which their business is conducted, and of the debts owing to them by their customers. Ratio |
It is not correct to say that property owned by co owners is divided between them, each of them owning a sepa rate part. Ratio |
It is an undivided unity, which is vested at the same time in more than one person . Ratio |
The several ownership of a part is a different thing from the co ownership of the whole. Ratio |
So soon as each of two co owners begins to own a part of the thing instead of the whole of it, the co ownership has been dissolved into sole 402 ownership by the process known as partition. Ratio |
Jurisprudentially it is not correct to say that a co owner of a property is not its owner. Ratio |
He owns every part of the composite property along with others and it cannot he said that he is only a part owner or a fractional owner of the property. Ratio |
The position will, change only when parti tion takes place. Ratio |
It is, therefore, not possible to accept the submission that the plaintiff who is admittedly the landlord and co owner of the premises is not the owner of the premises within the meaning of section 13(1)(f). Ratio |
It is not necessary to establish that the plaintiff is the only owner of the property for the purpose of section 13(1)(f) as long as he is a co owner of the property being at the same time the acknowledged landlord of the defendants. Ratio |
Mr. Tarkunde also submitted that since the Calcutta High Court has held in Yogamaya Pakhira vs Santi Subha Bose(1) that a permanent lessee is not an owner within the meaning of section 13 (1)(f) a co owner would not be in a better position. Ratio |
We are of opinion that a co owner is as much an owner of the entire property as any sole owner of a property is. RPC |
We, however, express no opinion about the case of a permanent lessee as this point does not arise in this ap peal. RPC |
As all the submissions of the appellant fail, the appeal is dismissed. RPC |
We will, however, make no order as to costs. RPC |
P.H.P. Appeal dis missed. RPC |
Civil Appeal Nos. 416 of 1973 and 572 of 1974. FAC |
(From the Judgment and Decree dated 22 12 1972 of the Allahabad High Court in F.A. No. 465/54 connected with F.A. 65/55). FAC |
A. K. Kirty, Yogeshwar Prasad, S.K. Bagga, Mrs. section Bagga Miss Rani Arora for the Appellant (in CA.Facts No. 416/73 and Respondent No. 1 in CA. No. 572/_74). FAC |
G.B. Pal, R.K. Mehta, Pramod Swarup and Miss Uma Mehta for the Appellants (in CA 572/74 and Respondents 1 3 in CA.No. 415/73). FAC |
B. Sen, S.M. Jain, Indra Makwana and Sushil Kumar Jain for Respondents 5/2, 5/3 and 6 (in CA.No. 416/73). FAC |
S.T. Desai, Rajinder Singh and S.K. Dhingra for Respond ents 7 & 8 (in CA.No. 416/73). FAC |
The Judgment of the Court was delivered by JASWANT SINGH, J. FAC |
These two appeals by certificates granted under Article 133 of the Constitution which are directed against the common judgment and decree dated Decem ber 22, 1972 of the High Court at Allahabad in two connected Civil First Appeals Nos. 465 of 1954 and 65 of 1955 pre ferred against the judgment and preliminary decree of... |
The facts material for the purpose of these appeals are: The appellant in Appeal No. 416 of 1973 and respondent No. 1 in appeal No. 572 of 1974, Seth Loonkaran Sethiya, (hereinafter referred to for convenience as 'the plain tiff ') is a financier living and carrying on business in Agra. FAC |
Respondents Nos. 1 to 3 in the first appeal and appellants Nos. 1 to 3 in the second appeal viz. Ivan E. John, Maurice L. John and Doris Marzano, grandsons and grand daughter of one A John, are partners of the regis tered, firm called 'John & Co. '. FAC |
There are three spinning mills and one flour mill at Jeoni Mandi, Agra, which are compendiously described as 'John Mills '. FAC |
Originally, the members of the John family were the exclu sive owners of all these mills which have been in existence since the beginning of the current century. FAC |
In course of time, some strangers acquired interest therein and by the time the present lis commenced, the following became the joint owners thereof to the extent noted against their names : 1.Ivan E. John, Maurice L. John and Doris Marzano, appellants Nos. 1 to 3 in Appeal No. 572 of 1974 and respondents Nos. 1 to 3 i... |
2. Seth .Munilal Mehrs (respondent No. 6 in appeal No. 416 of 1973 and respondent No. 9 in Appeal No, 572 of 1974).and Hiralal Patni (respondent No. 5 in Appeal No. 416 of 197. FAC |
3, 'deceased 'and now represented by respondents Nos, 5/1 to 5/7 i3 the 'said appeal and represented by respondents Nos. 2 to 8 in Appeal No. 572 of 1974):19/40th share 3.Gambhirmal Pandya (P) Ltd. part ner in M/s. John Jain Mehra & Co,: 8/40th share . FAC |
4.Ivan E. John: 2/40th share Having run into financial difficulties, M/s John & Co. were driven to tap various sources for raising loans for their business and other requirements. FAC |
By virtue of the deed of agreement (Exn. 1321 ) dated June 14, 1947, they entered into a financial agreement with Sethira & Co., a partnership firm of the plaintiff and Seth Suganchand. FAC |
Under this agreement which was originally meant to last for five months but which was allowed to remain in force even after 'the expiry of that period Sethiya & Co. undertook to advance to M/s John & Co. funds to the extent of Rs. 8,00,000/ on the security of yarn and to act as sole selling agents of the latter. FAC |
On January 29, 1948, the Collector, Agra, attached moveable and immoveable properties of the mills pursuant to a certificate issued for reali zation of income tax dues for the years 1943 to 1945 out standing against M/s John &Co. which exceeded Rs. 20 lakhs. FAC |
On February 5, 1948, the Collector, Agra, appoint ed Ivan E. John, Maurice L. John and Doris Marzano as custo dians for running the mills. FAC |
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