Badruddin Mohamedally vs T and B Dehganwala Estate

Srinivasan, J.—These two revision petitions are taken up with the consent of parties. The short facts which are necessary for the purpose of deciding thee revisions are as follows:- The respondent herein filed R.C.O.P. No. 273 of 1988 and R.C.O.P. No. 274 of 1988 for eviction of the petitioner from premises No. 158 Linghi Chetty Street, Madras-1 and No. 134, Angappa Naicken Street, Madras-1 under S. 10(2) (i) and S.10(2)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 as amended by Act 23 of 1973 (hereinafter referred to as ''the Act''). The two grounds for eviction are that the petitioner is guilty of wilful default in payment of rent from 1-3-1987 to 30-11-1987 and that he has committed an act of waste impairing materially the value of the building and utility thereof. The petitions were contested by the petitioner on the ground that there was no relationship of landlord and tenant as defined by the Act, as the parties were co-owners. It was contended on behalf of the petitioner that a petition for eviction under the provisions of the Act could not be maintained by one co-owner against another co-owner.

The Rent Controller held that there was a relationship of landlord and tenant between the parties and the petitions for eviction were maintainable. He also held that the petitioner was guilty of wilful default though he found against the plea of act of waste. Thus, he passed an order of eviction against the petitioner.

The petitioner filed Appeals R.C.A. No. 790 of 1990 and R.C.A. No. 791 of 1990 on the file of the VII Judge, Court of Small Causes, Madras the Appellate Authority, under S.23 of the Act. The respondent filed applications under S.11 of the Act for direction to the petitioner herein to pay the arrears of rent and failing compliance, stop all further proceedings in the appeal with a direction to quit and deliver vacant possession of the buildings. On those applications, the Appellate Authority passed orders on 4-9-1991 holding that the petitioner was a ''tenant'' within the meaning of the Act under the respondent and was liable to pay rent with a consequent direction that the petitioner should deposit a sum of Rs. 2,65,000 + Rs. 1,32,500/- on or before 3-10-1991 and adjourned the matter to 4-10-1991.

Challenging the correctness of the said order these revision petitions have been filed by the petitioner. When they were posted for admission, the respondent had entered caveat and took notice. I granted interim stay and with consent of counsel on both sides directed the revision petitions themselves to be posted for final disposal along with the petitions for stay. That is how the petitions are heard early.

It is not in dispute that the petitioner is entitled to one half share in both the buildings and the other half share is owned by other co-sharers. There was a lease agreement dated 1-12-1979 under which T & B Dehganwala Estate represented by (1) Tayebally Mohamedally, (2) Badruddin Mohamedally, (3) Mrs. Yasmin S. Lehry, 94) Mrs. Gulhar Fakhruddin and (5) Miss. Fatema Tayebally granted a lease in favour of the petitioner herein with respect to both the buildings. I should state that there were two lease agreements on the same day. It may be noted that the estate was represented by five persons including the petitioner on the one hand and they were compendiously described as lessors while the petitioner was described as the lessee on the other. Among the lessors, parties No. 3 to 5 are daughters of party No. 1, who is the brother of the petitioner herein. On the said date, four documents were executed in all, two of them being lease agreements. Under the lease agreements, the petitioner agreed to pay a monthly rent of Rs. 6,000/- for premises No. 158, Linghi Chetty Street and Rs. 2,500/- for premises No. 134, Angappa Naicken Street per mensem. The other two documents are agreements for adjusting the rents payable under the lease agreements from out of the joint account held by the lessors and lessee as co-owners. It is better to extract the relevant portion in the agreement providing for adjustment of the rent payable which reads as follows:-

...THE PARTIES OF THE FIRST PART shall debit a sum of Rs. 2,500/- (Rupees two thousand and five hundred only) every month in the account of the PARTY OF THE SECOND PART and adjust the same for the rents payable by the PARTY OF THE SECOND PART for the lease of the godown portion in premises No. 134, Angappa Naick Street. Madras-1. The PARTY OF THE SECOND PART is entitled to receive only the balance share of the income after deducting a sum of Rs. 2,500/- as and for rent and after making provision of the property tax, water and sewerage taxes, Urban Land tax. Insurance Premium etc.

A similar clause is found in the other agreement relating to the other building with respect to a sum of Rs. 6,000/- payable for that building.

It is stated that the rental of Rs. 6,000/- was reduced to Rs. 5,000/- per mensem alter a period of one year when the petitioner surrendered possession of a portion of the demised premises to the lessors. It is not in dispute that the payment of rent was in accordance with the agreements referred to above by adjustment of the amount standing to the credit of the petitioner in the accounts of the estate till 1983. It appears that from 1983, the petitioner started paying the amount to the lessors which was in turn being remitted into the common account.

The question that arises in this case is whether the lease agreements referred to above have brought into existence the relationship of landlord and tenant between the respondent and the petitioner within the meaning of the Act. While it is contended for the petitioner that there cannot be any lease as such among co-owners and any instrument, though in the garb of a lease deed, will not be effective as a lease. On the other hand it is contended by the respondent that a lease is possible among the co-owners by some co-owners or all the co-owners together on the one side in favour of one of the co-owners or a few of the co-owners on the other side. According to the respondent, there is no prohibition to such a transaction either in the Transfer of Property Act or in the Tamil Nadu Buildings (Lease and Rent Control) Act.

Approaching the question on first principles, I am of the view that the contention urged on behalf of the petitioner should be accepted. In this case, it cannot be denied that all the four documents executed on 1-12-1979 formed part of a single scheme of arrangement among the co-owners. A reading of the documents put together will show that the co-owners have entered into an arrangement by which one co-owner is permitted by all the co-owners to enjoy the properties exclusively on payment of certain amounts by way of compensation. The amount that is fixed in the agreement would represent the share of the profits of all the co-owners. Supposing the property is leased out by all the co-owners to a third party they would be getting a rent from the third party and they would be entitled to share it among themselves. Similarly, when the property is put in the possession of one of the co-owners for his exclusive user, the amount that is paid by him is to be taken by all the co-owners including himself. The arrangement itself shows that the amount is to be adjusted from out of the accounts. It is as if the petitioner pays an amount which is deposited by the co-owners in the joint account and then shared among themselves. As the arrangement stood at the time of the documents in 1979, the parties had agreed to an adjustment. In 1983, the mode of payment was changed and instead of adjustment, the petitioner was paying the amount. Such amount was again being deposited in the joint account and it was being shared by all the co-owners including the petitioner himself. Therefore, it is clear that the arrangement that is evidenced by the four documents executed on 1-12-1979 is nothing but an arrangement under which a co-owner who is put in exclusive possession of the common properly is paying a compensation to the estate for his exclusive enjoyment and such compensation is being divided among all the co-owners. In my opinion, therefore, the four documents of 1-12-19''79 do not bring into existence any lease as contemplated either by the Transfer of Properly Act or by the Tamil Nadu Buildings (Lease and Rent Control) Act. It is not necessary for me to give a conclusive opinion on the question whether the agreement will be a lease under the Transfer of Property Act for the purpose of this case. It is sufficient if I consider the question whether it will be a letting within the meaning of the Tamil Nadu Building (Lease and Rent Control) Act and whether he petitioner is a ''tenant'' as defined by the Act and whether the respondent is a ''landlord'' as defined by the Act.

S.2(2) of the Act defines a ''building'' as any building or hut or part of a building or hut, let or to be let separately for residential or non-residential purposes. I underline the words let separately. In the case of the co-owners, none of them is entitled to claim that a particular portion of the property belongs to him as a co-owner. Every co-owner is entitled to every inch of the property so long as there is no division of the property among the co-owners. Therefore, any lease by some co-owners in favour of one of them or another co-owner, will not be a separate letting as contemplated by S.2(2) of the Act, because what is let out is only an undivided share in she properly. So long as there is no separate letting of a portion of the building or building itself it will not fall within S.2(2) of the Act.

S.2(6) of the Act gives an injure definition for the term ''landlord''. It reads that "landlord" includes the person "who is receiving or is entitled to receive the rent of a building". Similarly, S.2(8) of the Act defines a ''tenant'' as ''any person by whom or on whose account rent is payable for a building''. If the amount payable under the an arrangement between the parties is not ''rent'' in the real sense and it is only a compensation payable by the petitioner, it will not bring she parties within the definition in S.2(6) and S.2(8) of the Act. The term ''rent'' has not been defined in the Act. The real nature of the transaction and the legal relationship of the parties cannot be decided by the nomenclature used by the parties. It has to be decided on the basis of the substantial terms of the agreement between the parties. (Vide Dr. H.S. Rikhy and Others Vs. The New Delhi Municipal Committee,

Under S.3 of the Act, a notice of vacancy is to be issued to the Officer authorised by the Government (Accommodation Controller) by the landlord within seven days after the building becomes vacant. If the petitioner is considered to be a tenant and on his vacating the premises the landlord is bound to give notice under S.3 of the Act, it will lead to an anomalous situation. Even if the tenant vacates the building, it is not vacant as the landlord being a co-owner is already in possession thereof. Similarly, the tenant, who has vacated is also a co-owner and he is also deemed to be in possession of the property in law as a co-owner.

Under S.10(3)(a)(iii) of the Act, it is open to the landlord to file an application for a direction to the tenant to place the building in possession of the landlord if the landlord is not occupying for purposes of a business which he is carrying on, a non-residential building in the city, town or village concerned which is his own. A question will arise whether it will be possible for the respondent as a landlord to file a petition under S.10(3)(a)(iii) of the Act as the tenant is holding the position of a tenant as well as a co-owner. S.14 of the Act provides for an application for eviction on the ground of requirement for demolition. Will it be possible for some co-owners to file a petition as a landlord under the said section if the tenant who is also a co-owner does not agree for the demolition of the building? Several such conundrums will arise if it is accepted that there is a lease transaction among the co-owners and the petitioner is a tenant and the respondent is a landlord as defined by the Act.

The matter is not res integra. A Division Bench of this Court has considered the position in D. Kuppuswami Chettiar and others v. A.R.C.B. Balagurumurthi Chettiar and others 1965 I M.L.J. 86:77 L.W. 559. In that case, one of the co-owners sold his undivided half share in the buildings in question to the plaintiff in the suit and after such sale, obtained a lease of the building from the plaintiff. The purchaser filed a suit for partition and delivery of separate possession of his half share. A preliminary decree was passed in the suit. An application for passing of final decree was filed. At that time, the second defendant in the suit, who was the son of the vendor and who was entitled to the other half share, contended that he was in possession as a tenant of the premises under the plaintiff and he would be entitled to the protection of the Act. According to him, no effective decree for delivery of possession could be passed in the case. The learned subordinate Judge, while negativing the contention, observed that the defendant could resist at the stage of execution by raising the plea. The defendant was not satisfied with the said decree and he filed an appeal. The plaintiff filed a memorandum of cross-objection contending that there could be no relationship of landlord and tenant between the parties. The Division Bench upheld the contention of the plaintiff and allowed the memorandum of cross-objections while dismissing the appeal. The following passage in the judgment of the Division Bench is very instructive:-

The lease, as we said, was of an undivided merely of the buildings. By reason of the sale deed executed by Dasappa in favour of the plaintiffs, the vendor and the vendees became thereafter co-tenants of the property. The rights of the co-tenants who hold the undivided property between themselves are now well-settled. Each has an undoubted right to demand and obtain partition by metes and bounds of the joint property but till that is done it cannot be said that any of the sharers has got an exclusive right to any part of the joint property. In theory such a co-tenant is entitled to be in possession and to use every part of the common property so long as he does not exclude his co-tenant. In the instant case the vendors wishing to have undisturbed possession of the buildings entered into an arrangement by which compensation for such exclusive possession was agreed to be paid, though describing it as rent. We cannot therefore regard the arrangement between the parties as strictly conforming to a case of agreement for lease.

But assuming that there was one by way of lease, as indeed it purports to be so, the question then is whether the lease was of he building within the meaning of the Rent Control Act. The term ''Building'' has been defined in S.2(1) as ''any'' building, hut or part of a building or hut, let or to be let separately for residential or non residential purposes. In a case of this kind where one co-tenant allowed another co-tenant to enjoy his undivided share, it cannot be said that he has such exclusive right of the property, as to be capable of being let out. Much less can it be held that any definite part of such a building has been let. No co-tenant can say that lie is the owner of any pan or designated part of the building. His interest will be to the extent of share owned by him in the entirety of the property. Therefore, if, he, under an arrangement purports to let out or enters into an arrangement for the enjoyment of the properly by the other, that transaction can be regarded only as an arrangement with respect to the undivided share of the entire property and not with reference to any building or part of the building.

That ruling was followed by, another Division Bench in Ratnam v. Arunachalam Chettiar 90 L.W. 633. That was also a case of a suit for partition. Two co-owners leased out the suit property to the third co-owner for purposes of his business. One of the lessors died and his legal representatives filed the suit for partition and separate possession. The lessee contended in the main that he was in occupation as a tenant of the building within the meaning of the Act and though the plaintiffs were entitled to a right to sue for partition, yet by reason of the statute which protected the interest of the tenant, the plaintiffs were not entitled to separate possession of the suit property. The trial Judge passed a decree for partition in favour of the plaintiffs, but held that they were not entitled to get actual possession as the defendant was a statutory tenant. That decree was challenged on appeal and the Division Bench, following the earlier ruling in Kuppuswami Chettiar''s case (1965 I M.L.J. 86) allowed the appeal. It was observed thus:

In the case of co-owners, it would be idle, and indeed strange, for any one of them to lay their fingers upon any part of such joint property and claim that it is or their own. Such an accent or emphasis upon ownership of an identifiable part of common property is available only after a final decree for partition is obtained by such a co-owner in a manner known to law. But during the process of that litigation which leads to the passing of a final decree no one amongst such co-owners can project any title to a defined portion of joint property. If this is the concept which is inexplicably attached to the principle of joint or co-ownership, then it follows that the mere accident of possession of a part or whole of such property by one amongst such co-owners does not give him any right as a tenant thereto as is popularly understood or understood in the light of the statutory provisions of the Madras Buildings (Lease and Rent Control) Act, 18 of 1960 either. It is only by sufferance and mostly by consensus or contract that the co-owner is placed in possession of the joint property without any objection or interference by the other admitted co-owners. His right would be in the nature of that of a licensee put in possession of the property and no more. His obligation would be to pay such quid pro quo or consideration for the allowance or privilege granted to him by other co-owners to remain in possession of the property either in part or in whole. Such rights and obligations which are centering round a particular jural relationship, which springs from the right of co-ownership, cannot give the person a right to claim the statutory privileges available to a tenant in possession of a property not belonging to him and in which is not interested and into which he was inducted by the co-owner as a tenant in the popular sense. It is the incident which led to the induction of the person into possession of the property of a third party that impresses on him the badge of being a tenant in law as well as under contract and contemporaneously vests in him the statutory privilege or gaining and claiming all the rights which a tenant could claim by virtue of the provisions under the special enactment, Act 1960. These privileges and rights available to a tenant as above are certainly not available to a co-owner who gets into possession of the property with the consent of the other co-owners or to a person whom he lets into possession of the relative property. Such permissive possession as already stated by us does not vest in him a right so claim the benefits of a statutory tenant under Act 18 of 1960. The lower court was wrong in having assumed that the defendants were so entitled to.

Thereafter, the Division Bench referred to the judgment in Kuppuswami Chettiar''s case and extract a passage therefrom. Then it was observed.

Having regard to this well accepted concept at any rate in our High Court, that co-owner cannot carve out for himself and to his benefit and definable or deli eatable under of property to the prejudice of other co-sharers, the claim of the appellants has to be upheld. To that extent the court below said that the plaintiffs would not be entitled is khas possession, though it granted the relief as to partition of the property claimed by the plaintiffs, its judgment is set aside and the appeal is allowed in part to that extent.

In Jahuri Sah and others v. Dwarika Prasad Jhunjhunwala and others it was ruled thus:

(11) We will now deal with the other ground urged by Mr. Sarjoo Prasad in support of his contention that the suit is not maintainable. Under Sub-S.(2) of S.11 of the Act as it stood on the date of the suit a claim for eviction of a tenant or a claim for recovery of possession of a building and claim for rent thereof had to be made before the Rent Controller alone and consequently the jurisdiction of the civil court for the enforcement of such claims was ousted. But, for the provisions of this section to apply the relationship between the plaintiff and the defendant should be that of a landlord and tenant. If they are co-owners of the property and the property is held by them as tenants-in-common no question of relationship of landlord and tenant comes into being as between them. The common case of the parties is that they are in fact co-owners of the property and the respective shares of the two families have not been demarcated. They, therefore, continue to be tenants in common. It is true that the entire property (save a small portion which was in possession of tenants) is in the actual occupation of the defendants which means that they are in occupation not only of their share in the property but also of the plaintiffs share. That fact, however, would not make them tenants of the plaintiffs. Under the law each tenant in common is entitled to the possession of the entire property, that is, to every part of it though his right to possession is limited to the extent of share in the property. The mere fact that the defendants agreed to pay compensation to the plaintiffs for their occupation of the entire property (ignoring the portion in possession of the tenants) would not bring into existence a relationship of landlord and tenant. By this agreement, the parties never intended to constitute a relationship of landlord and tenant between the defendants and their co-owners. The provisions of the Act are, therefore, inapplicable.

There was yet another occasion in this court for another Division Bench to consider the question under different circumstances. In N. Rajeswari and others v. S.P. Palaniappan and others 97 L.W. 334 the question that was referred to the Bench was "where the tenant purchases a fractional interest in the demised property, could he be called a co-owner so as to disentitle the original owner (landlord) to seek eviction under the Rent control Act?" On the facts, the purchase made by the tenant of a fraction of the interest in the demised property was during the pendency of the proceeding for eviction. The Division Bench took the view that the purchase of a fractional interest did not put an end to the relationship of landlord and tenant between the parties and the petition for eviction which was filled prior to the purchase by the tenant did not cease to be maintainable. It was observed that in the absence of the tenant acquiring the entire interests of the landlord, he could not non-suit the landlord''s application for eviction on that ground alone. Dealing with the expression ''merger'', the Divisional Bench considered the provisions of S.111(d) of the Transfer of Property Act vis-a-vis the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act. It was observed by the Division Bench as follows:-

It is well settled that the right to relief in an action between parties must be judged in relation to the date of the suit, but the Court may take subsequent events into consideration for moulding the reliefs in fairness to both the parties, as observed by the Supreme Court in Venkateswarulu v. Motor and General Traders (A.I.R. 1875 S.C. 1409).

Following the aforesaid decision of the Supreme Court it must be held that the petition was maintainable on the date when it was filed and that it will not be a non-est proceeding merely on account of the purchase by respondents 1 and 2 of a moiety share, though it will have relevance to the relief that may be granted to the petitioners. The tenants being already in possession of the building, the proper order that could be passed in the circumstances of the case will be to direct the landlord to be in joint possession along with the tenants, leaving it open to the landlord to sue for partition of his specific share in the property.

Ultimately, the Division Bench passed the following order:

So, far as respondents 1 and 2 are concerned, taking note of subsequent events, namely, of their acquisition of a share in the building no order for eviction need be passed against them, leaving it open to the parties to seek appropriate relief by way of partition and separate possession of their respective shares in the premises in question.

It should be noted, that the Division Bench distinguished the ruling in Kuppuswami Chettiar''s case 1965 M.L.J. 86 : 77 L.W. 589

Recently, another Division Bench of this Court had occasion to deal with a question similar to the one that arose in Rajeswari''s case 97 L.W. 334 in M.M. Selvaraj v. Singaram Pillai and others 1990 I L.W. 548 After referring to the Judgment in Rajeswari''s case 97 L.W. 334 and Kuppuswamy Chettiar''s case 1965 M.L.J. 86 : 77 L.W. 589 as well as the judgment of the Supreme Court in Jahuri Sah and Others Vs. Dwarka Prasad Jhunjhunwala and Others, , the Bench upheld the case of the plaintiff and confirmed the preliminary decree for partition passed by the trial court., negativing the plea of the defendant that he was entitled to the benefits of the Rent Control Act.

Thus, a catena of decision referred to above have uniformly held that a co-owner who is said to have taken a lease from the estate including himself and the other co-owners, is not a tenant as defined by the Act.

Learned counsel for the respondent has placed reliance on the judgment of Lord Denning in Rye v. Rye 1962 1 All E.R. 146. That was a case of a partnership firm taking on lease a premises owned by the partners themselves in different shares. While the partners had unequal shares in the business, they had equal shares in the premises. One of the question was whether there could be a lease by an oral arrangement. The other question was whether there could be a lease by a person in favour of himself. As regards the first question, Lord Denning held that the facts of the case made out a lease by a co-owners in favour of the partnership firm in which they were partners. But, on the other question he held as a matter of law that there could not be any lease by a person in favour of himself. He quoted the Latin maxim nemo potest esse tenens et dominus. In Wharton''s Law Lexicon, the meaning of the maxim is stated to be. No one can be both tenant and lord". The same is found in Ramanatha Aiyar''s Law Lexicon, Reprint Edition 1987 at page 28th Edition, Volume I, the maxim is quoted at page 835 in paragraph 1876 and the case in Rye v. Rye 1962 1 All E.R. 146 is cited.

But, Lord Denning made a distinction with reference to leases granted by number of persons in favour of the one among them or a few among them. The passage on which reliance is placed by learned counsel for the respondent is as follows:-

Has the Law of Property Act, 1925, changed all this? It has certainly changed it where two persons grant a tenancy by writing to one of themselves, as where A and B grant a yearly tenancy to B; and B enters into covenants with A and B to repair, and so forth. Such a tenancy is valid under S. 72(4)because it is a conveyance", and the covenants are enforceable under S.82(1) just as if B had covenanted with A alone Noise to quit can be given by A to B or B to A. So no difficulty arises.

But what is the position when a person grants a tenancy by writing to himself (A lets to A), or two persons grant at to themselves (A and B let to A and B); and there are the usual express or implied covenants (A covenants with A; or, A and B jointly covenant with A and B jointly? Such a tenancy does not come within S.74(2); nor do the covenants come within S.82(1); because both those subsections, as I read them monthly apply where one of the persons, at any rate, is not on both sides. But in the tenancy we are now considering the persons are the same on both sides.

It is argued that in the present case the lessors are on one side and only one among them is on the other side as lessee. According to learned counsel, this would clearly fall within the exception pointed out by Lord Denning and there is a valid lease among the co-owners. Though I have my reservation with regard to the distinction my de by Lord Denning between leases granted by a person in favour of himself and a lease by several persons in favour of one among them or a few among them, it is not necessary for me to consider that aspect of the matter in the present case. As pointed out already the question is here confined to the position under the Tamil Nadu Buildings (Lease and Rent Control) Act. It is not necessary for me to travel outside the Act and decide the legal relationship of the parties under the Transfer of Property Act or under common law.

22.A. A Division Bench of this court allowed the ruling in Rye v. Rye 1962 1 All E.R. 146 in India Automobiles and Co. and Others Vs. Life Insurance Corporation of India, In that case, the property was owned by seven co-owners. It was leased out to different persons. One portion of the property which was carved out of the totality of the land was leased by the seven co-owners in favour of one co-owner, the second defendant in the suit, in 1947, under a document. At that time, he was the sole proprietor of India Automobiles. Later on, it became a firm with defendants 2 to 6 as partners therein. It was not in dispute that the second defendant was in possession of the land even prior to the lease and he had erected superstructures of his own. Under another lease deed, the same co-owners including the second defendant let out another piece of land together with superstructures thereon to the second defendant. Seven years thereafter, all the co-owners including the second defendant sold the premises to the New Guardian of India Life Insurance Company Limited and the Official Trustee of Madras. Later, the Life Insurance Corporation of India, came on the scene by virtue of the Life Insurance Corporation of India Act. According to the Life Insurance Corporation, they became the owners of not only the vacant land conveyed in the document but also the superstructures on it which were in the occupation of the defendants. It was not in dispute that after the Insurance Company purchased the property, it recognised the defendants as their tenants of the respective portions in the occupation and were collecting rents from them. They had also given renewals of lease and at one stage draft lease deeds were prepared containing terms for renewal. Thus, the right of the defendants as tenants was recognised by the owners of the premises after the ownership was transferred from the co-owners to a stranger. That was the position for more than a decade. In fact, the Bench observed, "more than a decade after such consistent establishment of jural relationship of landlord and tenant as between the Life Insurance Corporation of India and the defendants". The owner filed an application for fixing of fair rents as regards the demised premises and also an application for eviction contemporaneously. The case of the defendants was that the subject matter of the lease was only a vacant site and the superstructure always belonged to them and the Act would not apply. The Rent Controller accepted the defence. On appeal, a finding was called for regarding the ownership of the superstructure and ultimately, the Appellate Authority held that the superstructure belonged to the Corporation. The Appellate Authority fixed the fair rent for the buildings. Then the suit was filed by the Corporation for arrears of rent on the basis of the fair rent fixed. It was contended by the defendants that at all material times the superstructure belonged to them and the order of the Rent Controller fixing fair rent was null and void as the subject matter of the demise was not governed by the Act. Another suit was filed by the defendants for a declaration that what was leased to them was only a vacant land and the superstructure belonged to them and they were entitled to the benefits of the Madras City Tenant''s Protection Act. The only question which came up for decision before Single Judge was whether the defendants, who were the appellants before the Division Bench, were the owners of the superstructures. The Bench observed, that was the only question which arose before the Bench also. The single Judge held against the defendants and they preferred the appeal before the Bench. In the course of arguments, one of the contentions raised was that there could be no lease among co-owners and the original leases evidenced by documents among the co-owners were unenforceable and void with the result that there was no transfer of interest either in favour of the second defendant in the first instance or later in favour of the defendants. Reliance was placed on the decisions in Girindra Chandra Pal Chowduri v. Sree Nath Pal Chowduri 3 C.L.J. 141 and Rye v. Rye 1962 1 All E.R. 146. The Division Bench distinguished the case in Rye v. Rye 1962 1 All E.R. 146 on the footing that it was a lease by two persons in favour of themselves. The Division Bench relied on the observations of Lord Denning which I have extracted already. The Division Bench held that the ruling Girindra Chandra Pal Chowduri''s case (3 C.L.J. 141) did not apply and it was distinguishable. The following passage in the judgment of the Division Bench is referred to by learned counsel for the respondent.

On the basis of the rule in Rye v. Rye 1962 I All E.R. 146 the learned Judge thought that Exhibits P-1 and P-2 are unenforceable. But if we analyse the ratio of that decision, it is seen that if the parties to the document are not the same and if A and B are the lessors and A is the lessee, such a lease is possible and the covenants therein are enforceable. Even the decision in Girindra Chandra Pal Chowduri v. Sree Nath Pal Chowduri (1906 3 Cal. L.J. 141, is distinguishable that was a case where it was found that there was no relationship of landlord and tenant at alt between the parties and in that contest the claim for recovery of rent by the so-called landlord was negatived. The principle laid down by Lord Denning in Rye v. Rye (1962) A.C. 496), is accepted by well-known authors. In Hill and Reeman''s Law of Landlord and Tenant 15th Edition page 633, the above House of Lord''s case is quoted for the proposition that two or more persons can assign to one or more of themselves but the number of assignee must be at least one less than the number of assignors. Wood fall on Landlord and Tenant, 27th Edition, page 61 refers to Rye v. Rye (1962 A.C. 490), as authority for the proposition that joint tenants cannot grant a lease to themselves. We do not find any provision in the Transfer of Property Act or for the matter of that under the well-known principles in common law which prevents joint owners of property from leasing out the same to one amongst themselves. We hold, therefore, that Exhibits P-1 and P-2 are valid leases and the relationship between the defendants and the corporation at all times was that of tenants and landlords.

I should point out that a member of the Division Bench which decided the above case was Ramaprasada Rao, J. who was also party to the earlier Bench in Ratnam v. Aurnachalam Chettiar 90 L.W. 633.

The judgment in Ratnam''s case (90 L.W. 633) was delivered on 25-3-1977. The judgment in the above case was delivered on 17-6-1977, i.e., within three months after the earlier judgment. The question which arises for consideration in the present case did not at all arise before the Division Bench in that case. I have referred to the relevant facts and there was no necessity to consider whether the original lease among the co-owners was void or ineffective. On the admitted facts, the Division Bench itself pointed out that for more than a decade the jural relationship of landlord and tenant had been admitted and established between the parties to the suit. There was absolutely no necessity to decide whether there was initially a valid lease. Yet, the Division Bench proceeded to make observations on that question as it was argued before them. The observations of the Division Bench are clearly obiter dicta.

The matter was taken to the Supreme Court by the Life Insurance Corporation of India (Vide Life Insurance Corporation of India Vs. M/s. Indian Automobiles and Co. and others, while confirming the judgment of the High Court, the Supreme Court referred to the judgment in Rye v. Rye and (1962) I All E.R. 146 affixed its seal of approval The relevant portion in the judgment of the Supreme Court reads thus

So far as the first question is concerned, we may no doubt that the Division Bench of the High Court has to the correct conclusion. In our view, the conclusion of the learned Single Judge that the lease Ex.P1, executed by an co-owners of the property in favour of one of them was invalid, was erroneous, S.5 of the Transfer of Property Act 1882, clearly envisages transfers of property of a person to one or more living persons or to himself or to himself and one more other living persons. Whatever may be the position in spite of this provision, in respect of a purported transfer by a person to himself alone (which is very often the positive (sic) case of trusts) which was considered by the House of (sic) Rye v. Rye (1962) I All E.R. 146 there is no reason to hold (sic) a contract between a person with himself and others is invalid. The Division Bench, we think, has rightly distinguished the decisions in Girish Chandra v. Srinath 3 CLJ 141 and Rye v. Rye (1962 I All E.R. 146). The observations of Lord Denning extracted by the learned Judges, are quite apposite to the situation in the present case.

It is argued that the judgment of the Supreme Court concludes the question. I am unable to agree. As pointed out already, on the facts of the case, the question did not arise at all for consideration. Hence, the observations of the Supreme Court cannot be considered to be binding irrespective of the context in which they were made.

In Rafiq Vs. State of U.P., , it was argued that the case was covered by an earlier judgment of the court in Pratap Misra and Others Vs. State of Orissa, . That argument was rejected in the following words:

We do not agree. For one thing, Pratap Misra case laid down no inflexible axiom of law on either point. The facts and circumstances often vary from case to case, the Constitution and the myriad psychic factors, social conditions and people''s life-styles may fluctuate, and so, rues of prudence relevant in one fact situation may be inept in another. We cannot accept the argument that regardless of the specific circumstances of a crime and criminal milieu, some strands of probative reason which appealed to a Bench in one reported decision must mechanically be extended to other cases. Corroboration as a condition for judicial reliance on the testimony of a prosecutrix is not a matter of law, but a guidance of prudence under given circumstances. Indeed, from place to place, from age to age, from varying life styles and behavioral complexes, inferences from a given set of facts, oral and circumstantial, may have to be drawn not with dead uniformity but realistic diversity lest rigidity in the shape of rule of law in this area be introduced through a new type of precedential tyranny. The same observation holds good regarding the presence or absence of injuries on the person of the aggressor or the aggressed.

In Sreenivasa General Traders and Others Vs. State of Andhra Pradesh and Others, , the Supreme court ruled thus:

A case is an authority only for what it actually decides and not for what may logically follow from it. Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there was not intended to be expositions of the whole law but governed or qualified by the particular facts of the case in which such expressions are to be found. It would appear that there are certain observations to be found in the judgment in Kewal Krishan Puri and Others Vs. State of Punjab and Another, which were really not necessary for purposes of the decision and go beyond the occasion and therefore they have no binding authority though they may have merely persuasive value.

In Deena alias Deen Dayal and Others Vs. Union of India (UOI) and Others, it was observed.

Any case, even a locus classics ,is an authority for what it decides. It is permissible to extend the ratio of a decision to cases involving identical situations, factual and real, but care must be taken to see that this is not done mechanically, that is, without a close examination of the rationale of the decision which is cited as a precedent. Human mind, trained even in the strict discipline of law, is not averse to taking the easy course of relying on decisions which have become famous and applying their ratio to supposedly identical situation.

In the same judgment it was again observed:

To apply mechanically the decisions under Article 14 to cases arising under Article 19 is to ignore the significant distinction between the nature of the rights conferred by the two Articles and their purport and content.

Hence, the ruling in Life Insurance Corporation of India v. India Automobiles and Co. 1990 S.C.C. 286, and others shall be understood only in the context of the facts and cannot be torn out of it.

Learned counsel for the respondent relies upon the judgment of the Calcutta High Court in Hirendra Nath v. Shobendra Nath AIR 1970 Calcutta 135. It was held in that case that an undivided share in a property was not a ''premises'' as defined by West Bengal Premises Tenancy Act and was not capable of being demarcated by metes and bounds and a tenancy of such undivided share did not fall within the purview of the provisions of the said Act. The Bench held that a tenancy in respect of an undivided share could be created by a co-sharer in favour of another co-sharer and in a suit, for partition, the plaintiff would not be entitled to get physical possession of the property, even after the final decree for partition. That ruling is directly contrary to the ruling of this court in D. Kappuswami Chettiar and others v. A.R.C.B. Balagurumurthi Chettiar and others 1965 I M.L.J. 86-77 L.W. 559 and Ratnam v. Arunachalam Chettiar 90 L.W. 633. Hence, no reliance can be placed on the same.

In P. Sundaresan and others v. P. Venkatasiah and others 1948 II M.L.J. 421 61 L.W. 795 it was held by Horwill, J. that one of the members of the joint family, who agreed to hold a portion of the joint family house as tenant of the plaintiff in the suit was estopped under S.116 of the Evidence Act from denying the right of the plaintiff as long as he was in possession. The matter arose in the course of the execution proceedings and the decree referred to by the learned Judge was passed earlier in a Letters Patent Appeal by a Division Bench of this Court. During the pendency of the execution proceedings, the Madras Buildings (Lease and Rent Control) Act 15 of 1946 was enacted and it was contended that the decree ceased to be executable. The learned Judge held that the tenant was estopped from denying the relationship of landlord and tenant and he would be a tenant within the meaning of the Act. Ultimately he allowed the appeal and remanded the matter for decision as to whether the landlord was entitled to get possession in execution of the decree in spite of the provisions of S.7 of Madras Act 15 of 1946. That judgment has no bearing on this case.

Learned counsel for the respondent placed reliance also on the following passage in Jahuri Sah and Others Vs. Dwarka Prasad Jhunjhunwala and Others, referred to earlier:-

It is no doubt true that under the law every co-owner of undivided property is entitled to enjoy the whole of the property and is not liable to pay compensation to the other co-owners who have not chosen to enjoy the property. It is also true that liability to pay compensation arises against a co-owner who deliberately excludes the other co-owners from the enjoyment of the property. It does not, however, follow that the liability to pay compensation arises only in such a case and other. Co-owners are legally competent to come to any kind of arrangement for the enjoyment of their undivided property and are free to lay down any terms concerning the enjoyment of the property. There is no principle of law which would exclude them from providing in the agreement that those of them as are in actual occupation and enjoyment of the property shall pay to the other co-owners compensation.

Learned counsel submits that the arrangement between the co- owners as evidenced by the four documents is enforceable and, therefore, the petitioner is no other than a tenant under the respondent. I have already referred to the relevant passage in the same judgment holding that there could be no relationship of landlord and tenant among co-owners. The passage now referred to by learned counsel for the respondent should be understood in the context. The Supreme Court had only held that an arrangement for payment of compensation among the co-owners could be enforced. That question does not arise in the present proceeding as this is one for eviction under the provision of the Act on the grounds of wilful default and act of waste.

In the result, there can be no doubt whatever that the petitions for eviction filed by I lie respondent under S.10(2)(i) and S.10(2)(iii) of the Act are not maintainable as the petitioner is not a tenant within the meaning of the Act and the respondent is not a landlord under the said Act nor is the subject matter of demise a building as defined in the Act. Hence, the Civil Revision Petitions have to be allowed.

Even at the time of admission, learned counsel for the petitioner made a request for my withdrawing R.C.A. Nos. 790 and 791 of 1990 from the file of the Appellate Authority to this Court and dispose of the same. He submitted that a decision in favour of the petitioner in this court would automatically bring the appeals before the Appellate Authority to an end. If I had held that the relationship of parties was that of landlord and tenant, the appeals before the Appellate Authority could have proceeded further. But have held that the Act does not apply and the petitions for eviction are themselves not maintainable. Hence, nothing survives in the appeal before the Appellate Authority to be decided by him. Interests of justice require that all the questions raised in the said appeals are decided in this order itself.

Counsel for the respondent expressed their consent to my deciding those questions also. The Rent Controller has held that the petitioner is guilty of wilful default in payment of rent. He has rejected the case of the respondent that the petitioner has committed acts of waste.

There is no evidence whatever to support the allegation of waste. Hence, the finding, of the Rent Controller is upheld.

As regards wilful default, I have already referred to the agreements dated 1-12-1979 under which a specific mode of payment of rent was agreed between the parties. That was by adjustment in books and there was no need for actual payment. Admittedly it was adhered to for over four years and thereafter payments were being made by the petitioner which were deposited in the common account. According to the petitioner in April 1987, his brother wrote to the United Commercial Bank in which common funds were deposited and prevented the petitioner from drawing any money from the common account. According to the respondent debts were due to creditors of the estate and sufficient funds were not available in the share of the petitioner. It is admitted that the creditors were the the members of the family. So long as there is no division and the account is a common one, the respondent cannot say that the petitioner is entitled only to a particular portion thereof. Even assuming that the petitioner is attempting to overdraw from the account in excess of what will be due to his share in the event of a division and that the respondent is entitled to prevent him from so overdrawing, the consequential failure to pay rent by the petitioner will not in law be wilful default.

There was no arrangement in 1983 changing the one agreed to in 1979. In practice, the petitioner started paying rent from his own funds and it was being accepted by the respondent. That would not prevent the petitioner from reverting to the arrangement agreed to in writing which was never cancelled or superseded. If instead of seeking to withdraw from the common account, the petitioner had requested the respondent to adjust by book entries as agreed to in 1979, the respondent could not have refused and there would have been no default at all

The petitioner being a co-owner admittedly entitled to a share in the common funds in deposit in the bank was entitled to draw therefrom for his own purposes. There is no evidence that the so called creditors of the estate had demanded the amounts due to them. In the absence of any mutual arrangement among the co-owners, it is not open to some of them to earmark or set apart portions of the funds for specific purposes.

At any rate, the petitioner is not guilty of wilful default at all. Admittedly, he stopped paying the rent only after he was prevented from withdrawing from the common account. In S. Sundaram Pillai and Others Vs. `R. Pattabiraman and Others, the Supreme Court has held that a default in order to be wilful must be intentional, deliberate, calculated and conscious with full knowledge of legal consequences following therefrom. In the present case, none of the elements is present.

The finding of the Rent Controller on the question of wilful default is unsustainable and deserves to be set aside.

Hence, in exercise of the plenary powers of this court as well as the powers under Article 227, Constitution of India, I set aside the orders of eviction passed by the Rent Controller I dismiss the petitioner for eviction. In the result, the Civil Revision Petitions are allowed. The orders of the Appellate Authority (VII Judge, Court of Small Causes, Madras) in M.P. Nos. 811 and 812 of 1990 are set aside and the said petitions are dismissed. R.C.A. Nos. 790 and 791 and 1990 on the file of the VII Judge, Court of Small Causes are allowed and R.C.O.P. Nos. 273 and 274 of 1988 on the file of the XI Judge, Court of Small Causes are dismissed The parties will bear their respective costs throughout.