Biharilal vs Wasundarabai

Shinde, C.J.—This is a second appeal against the judgment and decree of the District Judge, Indore who dismissing the appeal of the Defendant confirmed the decree of the trial Court. The facts briefly are that one Chandrakant giving notice to quit on 24-10-1944 Ex. P/3 and Anr. on 31-10-1944 Ex. P/4 terminated the tenancy on the expiry of the agricultural years ending in 1945 in respect of two holdings, namely, Inam land and Pattedari land.

After this Chandrakant died. His sister Wasundarabai flied a suit for ejectment and for arrears of rent and for mesne profits. That suit was decreed by both the lower Courts. Hence the Defendant has filed this second appeal.

The learned Counsel for the Appellant has raised the following contentions:

(1) As there was one composite contract of tenancy, tenancy cannot be split up. Consequently the decree for ejectment in respect of Pattedari land passed by both the lower Courts is illegal.

(2) The Court of Wards by accepting the entire amount of Rs. 251 has continued the lease. After notice of termination by Chandrakant, as entire amount of rent has been accepted by the Court of Wards, there is a waiver of notice.

(3) The Plaintiff cannot obtain a decree without first obtaining succession certificate.

(4) It is admitted that there are three sisters. Consequently one sister alone is not competent to file the suit.

Mr. Sanghi the learned Counsel for the Appellant referred me to Mulla''s Transfer of Property Act and also to -''Ram Kanie Mandal v. Ganesh Chander Sen'' 64 Ind Cas 550 (Cal) (A), and contended that the landlord cannot break up the tenure. In order to fully comprehend the significance of this objection it is necessary to give a few facts. Krishnarao, father of Respondent Wasundarabai and his son Chandrakant had leased two holdings - one Inam land and the other Pattedari land - to the Defendant Appellant. Chandrakant during his life time gave two notices and terminated the tenancy in respect of both holdings as contemplated by Section 106, T.P. Act. After this Chandrakant died.

Under Holkar State Laws Inam land could not devolve on female heir. So the Subha by his order dated 25-8-1945 Ex. P/1 authorised Wasundarabai to manage the Inam holding until further orders. In respect of Pattedari tenure Wasundarabai''s name was mutated in the place of Chandrakant on 27-11-45. Consequently Wasundarabai as manager of the Inam holding and as co-owner of the Pattedari land filed a suit against Defendant for ejectment and arrears of rent and mesne profits. After the institution of the suit the Government withdrew the management of Inam holding from Wasundarabai on 20-2-46. Plaintiff, therefore, amended her suit and confined the relief of the possession of Pattedari land, and arrears of rent and mesne profits in respect of the same.

As already stated Mr. Sanghi contends that the tenancy cannot be split up. The question for consideration is whether any such question is involved in this case or not. It is admitted that the notice by Chandrakant was in respect of both the holdings. It is not denied by the Defendant that the notice was given. Nor has any objection been taken with regard to the validity of the notice. In these circumstances due notice having been given, the tenancy terminated by the end of the agricultural year, that is, May, 1945.

The Defendant''s possession after that date is the possession of a trespasser. As far as the contract of tenancy is concerned, even if it be conceded that it was a composite contract of tenancy it did not subsist at the time when the suit was filed. Therefore, the question of splitting up the tenancy does not arise at all in this case. Transfer of Property Act by Mulla to which reference has been made by the learned Counsel contains the following commentary:

The notice must extend to all the premises. The landlord cannot break up the tenure. A notice or a fraction of the holding is ineffective. (Vide Transfer of the Property Act by Mulla 3rd Edn. Page 649).

These statements are not at all relevant to the present case. As already stated notice was given in respect of both the holdings 64 Ind cas 550 (Cal) (A) to which reference has been made, is also not applicable to this case. In that case the Plaintiff had sued for the possession of a portion of a tenure leaving the remainder intact in the possession of the tenant. In these circumstances their Lordships of the Calcutta High Court held that such a suit does not lie. This is not the case in the present suit.

As ready stated the tenancy had terminated and Wasundarabai sued for possession of the Inam land as manager and of the Pattedari land as co-owner. Such a suit can be maintained is not denied by the Appellant. Order 1 Rule 1 makes it clear that such a suit can be maintained. If an authority be needed reference may be made to - Harendra Nath Singha Ray Vs. Purna Chandra Goswami and Others, . During the pendency of the suit management of the Inam land was taken away from Wasundarabai by the Government. Consequently Wasundarabai had to confine her claim to the Pattedari land. In these circumstances the contention rasied by the learned Counsel has no force.

The second contention raised by the learned Counsel is also devoid of force. The Court of wards entered into a fresh contract with the Defendant with regard to the Inam land fixed rental of Rs. 251-0-0. This has nothing to do with Wasundarabai. Even if the Court of Wards agreed to take rent for both the Inam land and the Pattedari land, that cannot bind Wasundarabai. In no case can it be called a waiver on tile part of Wasundarabai. It has not been shown that Wasundarabai was a party to any such agreement. In these circumstances the plea of waiver has no force.

The third contention raised by the Appellant is that the Plaintiff cannot obtain a decree without obtaining sucession certificate. The learned Counsel for the Appellant referred me to Section 214, Succession Act. Section 214, Succession Act, which corresponds to Section 4, Indore Sucession Certificate Act lays down that no Court shall Pass and a decree against the debtor of a deceased person for payment of his debt to a pereson claiming to be entitled to the effects of the deceased or to any part thereof.... except on the production by the person so claiming of a succession certificate.

Sub-section (2) of this section, however, states that the word "debt" in Sub-section (1) included any debt except rent, revenue or profits payable in respect of land used for agricultural purposes. It is clear therefore, that the word "debt" as used in Section 214 does not include arrears of rent or mesne profits. This section does not preclude suits for ejectment, it only bars suits to recover debts owed to the deceased. This contention, therefore, cannot be accepted.

The 4th contention put forward by the Appellant is that there being three sisters, Wasundarabai alone cannot bring a suit for ejectment. The learned Counsel for the Appellant referred me to Section. 45, Contract Act. Section 45 read as follows:

When a person has made a promise to two or more persons jointly then, unless a contrary intention appears from the contract the right to claim performance rests as between him and them; with them, during their joint lives and, after the death of any of them, with the representative of such deceased person jointly with the survivor or survivors and after the death of the representatives of all jointly.

It is clear from the facts given above that it is not wholly a suit to enforce the contract. This is a suit for ejectment and also for the recovery of arrears of rent and mesne profits. Consequently one co-owner can bring a suit for possession against the trespasser. Chitale in his commentary on Order 1 Rule 10 states as follows:

"There is an exception to the rule that all the co-owners are necessary parties to a suit for recovery of joint property. One of several co owners can maintain an action in ejectment against a trespasser without impleading the other co-owners as parties thereto." (Vide CPC by Chitale 2nd Vol. P. 1524 5th Edn).

Chitale again in his commentary on Section 106 T.P. Act, states that a suit for ejectment can be brought against a tenant by sufferance by one co-sharer landlord alone (Vide Transfer of Property Act by Chitale Vol. 3rd P. 1982 2nd Edn. There are also a number of decision on this point. In - ''Maganlal v. Bhudar Purshottam'' a Division Bench of the Bombay High Court held that one co-owner can maintain a suit to eject a tenant by sufferance when the period of tenancy has expired, and where after the expiry of the tenancy there has been no fresh privity between him and the original landlords. (Vide Maganlal Dulabhdas Vs. Bhudar Purshottam,

The same proposition was upheld by Anr. division Bench of the Bombay High Court in - ''Tuljaram Harkisandas v. Harkisan'' AIR 1929 Bom 244 (D). In - ''Vinod Sagar v. Vishnubhai'' AIR 1947 Lah 388 (E), a Division Bench of the Lahore High Court also held that a suit by one of the co-owners for ejectment of a trespasser is competent. The same view was taken by a Division Bench of the Madras High Court in - ''Ahmad, Sahib Shutari v. The Magnesite Syndicate Ltd'' AIR 1915 Mad 1214 (1) (F). This High Court also has taken the same view in - ''Rupsingh Khushal Singh v. Chironjilal'' AIR 1952 Mad 95 (G). There is, therefore, no doubt as far as the suit for ejectment is concerned that one co-owner is competent to file such a suit.

With regard to realisation of arrears of rent, however, all the co-owners must join as the property belongs to them jointly and the liability arises out of the contract of tenancy. u/s 45, Contract Act, it is not open to the one of the joint promisees to Sue alone either for the performance ''of the promise in its entirety or to the extent of his share. In - Munshi Sahu and Another Vs. Bhupal Mahton and Others, Saunders J. held that one of the co-promisees in respect of a promissory note is not entitled to bring a suit without making the other party to it.

Under Section 45, Contract Act, the right to claim performance of the promise rests with them jointly. The same view was taken in - Naru Hari Gujar Vs. Tai Devji, and - Siluvaimuthu Mudaliar Vs. Muhammad Sahul and Others, The contention of the Appellant, therefore, must be upheld as far as the claim for the arrears of rent is concerned.

For reasons given above, the appeal is partially allowed. The claim of the Plaintiff for the arrears of rent amounting to Rs. 612-10-6 is disallowed. The decree of the lower Court is amended accordingly. Parties to get their costs pro tanto throughout.