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Judgment
A. Selvam, J.—The plaintiffs in Original Suit No. 265 of 1989 and the defendants in Original Suit No. 547 of 1989, have challenged the
judgment and decree dated 19.07.1996 passed in Appeal Suit Nos. 1 & 2 of 1993 by the Additional Subordinate Court, Tirunelveli, wherein the
common judgment passed in Original Suit Nos. 547 of 1989, 265 of 1989 by the District Munsif Court, Valliyoor, is reversed.
The appellants herein as plaintiffs have instituted the Original Suit No. 265 of 1989 on the file of the District Munsif Court, Valliyoor, for the
relief of permanent injunction, wherein the respondents herein have been shown as the defendants. The respondents herein as plaintiffs have
instituted the Original Suit No. 547 of 1989 on the file of the said Court for the reliefs of recovery of possession, arrears of rent, etc., wherein the
present appellants have been shown as the defendants.
The material averments made in the plaint filed in Original Suit No. 265 of 1989 can be stated like thus;
The suit properties are originally belonged to one Doctor Krishnan. After his demise, his sons namely Narayanan, Sankar Appasamy and one
Velammal, have succeeded the same. The first plaintiff has been enjoying the suit first schedule property for the past 30 years as a tenant and
running a grocery shop. The second plaintiff has been enjoying the suit second schedule property as a tenant for the post 15 years and running a
tailoring shop. The owners of the suit properties have sold their properties one by one and they demanded Rs. 60,000/- from the plaintiffs so as to
execute a sale deed in respect of the suit properties. The plaintiffs have sent notices to them, but there is no reply on their part. The defendants
have purchased the suit properties. Now, the defendants are making hectic attempts to interfere with the peaceful possession and enjoyment of the
plaintiffs. Under the said circumstances, the plaintiffs have filed the present suit for the reliefs of permanent injunction.
The material averments made in the written statement filed by the defendants can be stated like thus;
The defendants have purchased the suit properties from its original owners. It is false to say that the defendants are trying to vacate the plaintiffs
from the suit properties by unlawful means. The plaintiffs have initially accepted to vacate the suit properties, but, subsequently they changed their
minds. There is no merit in the suit and the same deserves dismissal.
The material averments made in the plaint filed in Original Suit No. 547 of 1989 can be stated like thus;
The plaintiffs have purchased the suit properties under a registered sale deed dated 05.06.1989. The defendants are enjoying the suit properties as
tenants. The first defendant is owning a non-residential premises bearing Door No. 69 in the main road Panagudi. The plaintiffs have expected the
defendants/tenants to vacate the suit properties, but surprisingly, they filed the Original Suit No. 269 of 1989 for the relief of permanent injunction
against the plaintiffs. On 13.07.1989 a notice has been issued to the defendants and thereby, terminated the tenancy of the defendants. Therefore,
the plaintiffs have filed the present suit for the relief of recovery of possession, arrears of rent, etc.
The material averments made in the written statement filed by the defendant can be stated like thus;
The first defendant has been enjoying the first item of suit properties for the past 31 years. Likewise, the second defendant has been enjoying the
second item of the suit properties for the past 15 years. The original owners of the suit properties have agreed to sell the suit properties in favour of
the defendants and subsequently, they refused and therefore, the defendants have chosen to give notices to them. Since in the present suit the
original owners of the suit properties have not been impleaded as parties, the same is bad by non-joinder of necessary parties. The notice given by
the plaintiffs is not legally valid. There is no merit in the suit and the same deserves dismissal.
On the basis of rival pleadings raised by either parties, the trial Court has framed necessary issues and conducted a joint trial. The evidence
taken in Original Suit No. 547 of 1989 has also been treated as evidence in Original Suit No. 265 of 1989. After evaluating both the oral and
documentary evidence, the trial Court has decreed the Original Suit No. 265 of 1989 as prayed for and decreed the Original Suit No. 547 of
1989 in part. Against the common judgment passed in Original Suit No. 265 of 1989 & 547 of 1989, the plaintiffs found in Original Suit No. 547
of 1989 and the defendants found in Original Suit No. 265 of 1989, as appellants have preferred the Appeal Suit Nos. 1 & 2 of 1993 on the file
of the Additional Subordinate Court, Tirunelveli. The first appellate Court after reappraising the evidence available on record, has dismissed the
Original Suit No. 265 of 1989 and decreed the Original Suit No. 547 of 1989 as prayed for and to that extent, both the appeals have been
allowed.
Against the judgment and decree passed in Appeal Suit Nos. 1 & 2 of 1993, the present appeals have been filed.
At the time of admission of the present second appeals the following substantial questions of law have been formulated for consideration;
(1) Whether the notice u/s 106 of Transfer of Property Act issued by the first respondent alone is sufficient to terminate the tenancy? and
(2) Whether notice issued u/s 106 of the Act issued by the respondent is valid and binding on the appellants?
Even though the present second appeals have been posted for final hearing, the learned Counsel appearing for the respondents has not made
his appearance and put forth his arguments. Therefore, the present appeals are disposed of on merits on the basis of arguments advanced on the
side of the appellants.
Before considering the arguments advanced on the side of the appellants, it has become indefeasible to perorate something about the factual
situations obtained in the present second appeals.
It is an admitted fact that the present appellants as plaintiffs have instituted the Original Suit No. 265 of 1989 on the file of the District Munsif
Court, Valliyoor, for the relief of permanent injunction, wherein the present respondents have been shown as the defendants. Likewise, the present
respondents as plaintiffs have instituted the Original Suit No. 547 of 1989 on the file of the said Court for the relief of recovery of possession,
arrears of rent, etc. The trial Court has conducted a joint trial and ultimately, decreed the Original Suit No. 265 of 1989 as prayed for and decreed
the Original Suit No. 547 of 1989 in part. Against the common judgment, the respondents herein have filed the Appeal Suit Nos. 1 & 2 of 1993
on the file of the Additional Subordinate Court, Tirunelveli. The first appellate Court as noted down earlier, has allowed both the appeals and
consequently, dismissed the suit filed in Original Suit No. 265 of 1989 and decreed the suit in toto filed in Original Suit No. 547 of 1989.
The learned Counsel appearing for the appellants has mainly contended that before the institution of Original Suit No. 547 of 1989, the first
and second plaintiffs therein have issued a notice to the defendants/appellants therein and thereby, terminated their tenancy, but, all the plaintiffs
found in Original Suit No. 547 of 1989 have purchased the suit properties and since the plaintiffs 3 & 4 have not joined in the quit notice, the same
is not valid in law and therefore, a valid termination of tenancy has not been made. The trial Court has rightly dismissed the Original Suit filed in
O.S. No. 547 of 1989, but the first appellate Court without considering the validity of quit notice, has erroneously decreed the Original Suit No.
547 of 1989 and dismissed the Original Suit No. 265 of 1989 filed by the appellants herein and therefore, the judgment and decree passed by the
first appellate Court in Appeal Suit Nos. 1 & 2 of 1993 are totally erroneous and the same are liable to be set aside.
In support of his contention, he has drawn the attention of the Court to the following decisions;
(a) The first and foremost decision is reported in Nanalal Girdharlal and Another Vs. Gulamnabi Jamalbhai Motorwala and Others, , wherein it has
been held like thus;
In the absence of contract to the contrary, where there are two or more co-owners of property and either they grant a lease acting together or any
one of them grants a lease on behalf of himself and acting as agent on behalf of the other co-owners or where a lease is granted by a landlord who
is the sole owner of the leased property and thereafter by testate or intestate succession or by transfer inter vivos. the leased property comes to be
owned by two or more co-owners. No one single co-owner can give notice to quit determining the lease. It must be given by or on behalf of all
co-owners. But where a lease is granted by a co-owner professing or by claiming to be the sole owner of the leased property or one of the co-
owners grants the lease without disclosing that he is also acting on behalf of the other co-owners. The notice to quit given by him is sufficient to
determine the lease.
(b) The second decision is reported in Jamir Ahmad Vs. Madhawanand and Others, wherein it has been held as follows;
Where notice terminating the tenancy did not purport to be on behalf of all the lessors, held that the notice did not validly terminate the tenancy and
the fact that the notice was given by a person who was the landlord within the meaning of U.P.(Temporary) Control of Rent and Eviction Act,
1947, was of no consequence.
(c) The third decision is reported in Smt. Sucharita Pradhan and others Vs. M/s. U.P. Twiga Fibreglass Ltd. and others, wherein it has been held
that notice of termination of tenancy given by only some of the co-owner of premises. Tenancy cannot be held to have been validly terminated.
From the conjoint reading of the decisions referred to supra, it is made clear to the Court that a notice given by one co-owner for terminating
tenancy is not valid.
At this juncture, it would be more useful to look into the decisions reported in AIR 1982 Bombay 283 (Rahimtulla Abdul Rahiman Nakib v.
Chandrakant Anant Moog and Ors.) wherein it has been held that eviction suit filed by co-heirs of deceased landlord. All the co-heirs need not be
joined in the notice given u/s 106 of the Transfer of Property Act.
In fact, this Court has perused the entire decision referred to supra and found that a similar legal question has been raised, wherein also the Full
Bench decision reported in Nanalal Girdharlal and Another Vs. Gulamnabi Jamalbhai Motorwala and Others, has been discussed and after
following the decision reported in Kanta Goel Vs. B.P. Pathak and Others, the learned Judge has held as noted down earlier. Therefore, it is very
clear that in the quit notice all the co-owners or co-heirs need not be joined.
With these backdrops, the Court has to analyse the argument advanced by the learned Counsel appearing for the appellants. As rightly pointed
out by the learned Counsel appearing for the appellants, the plaintiffs 1 & 2 found in Original Suit No. 547 of 1989 have given a notice to the
defendants on 13.07.1989 and thereby, terminated their tenancy. The said notice has been marked as Ex.A1. In Ex.A1, it has been clearly stated
that the plaintiffs 1 & 2 and two others have purchased the suit properties, under a registered sale deed dated 05.06.1989. Therefore, it is very
clear that the plaintiffs 1 & 2 have clearly admitted the title of the plaintiffs 3 & 4. The plaintiffs 1 & 2 have not suppressed anything with regard to
joint ownership and all the plaintiffs have purchased the suit properties under Ex.A3.
At this juncture, it would also be more useful to look into the decision reported in 1895(1) QB 378 (Sidebotham v. Holland) wherein the
Queens Bench has discussed the nature of notice given u/s 106 of the Transfer of Property Act and ultimately held that the validity of a notice to
quit ""ought not to turn on the splitting of a straw"". It must not be read in a hyper-critical manner, nor must its interpretation be affected by
pedagogic pendantism or over refined subtlety, but it must be construed in a common sense way. Therefore, it is needless to say that a notice given
u/s 106 of the Transfer of Property Act, should not be read in a hyper-critical manner and the same must be construed in a common sense way.
In the instant case as noted down earlier, Ex.A1 has been given by the plaintiffs 1 & 2 wherein they have clearly admitted the title of the
plaintiffs 3 & 4. Therefore, it is needless to say that Ex.A1 is a valid quit notice and the same does not suffer from any infirmity.
In the light of the foregoing narration of both the factual and legal premise, this Court has not found any force in the argument advanced by the
learned Counsel appearing for the appellants.
The plaintiffs found in Original Suit No. 547 of 1989 have sought for the reliefs of recovery of possession, arrears of rent, etc. Since Ex.A1 is a
valid notice, the plaintiffs found therein are legally entitled to get the reliefs sought for in the plaint. Likewise, the plaintiffs/tenants, have filed the
Original Suit No. 265 of 1989 for the relief of permanent injunction. Since the plaintiffs found in Original Suit No. 547 of 1989 are entitled to get
the reliefs sought for therein, the plaintiffs found in Original Suit No. 265 of 1989 are not entitled to get the relief of permanent injunction. The first
appellate Court after analysing all the divergent contentions raised by either party, has rightly allowed the Appeal Suit Nos. 1 & 2 of 1993.
In view of the foregoing narration of both the legal and factual aspects, this Court has not found any valid ground to make interference with the
well merited judgment passed by the first appellate Court.
In fine, these second appeals deserve dismissal and accordingly, are dismissed without costs. The judgment and decree passed in Appeal Suit
Nos. 1 & 2 of 1993 by the Additional Subordinate Court, Tirunelveli, are confirmed.