Savitri Devi v. Ram Krishna — 1980 DIGILAW 935 (ALL)

JUDGMENT S. D. Agarwal, J. -These are three connected second appeals arising out of three suits. Briefly the facts are as follows;- The property in dispute is house No. 5 situate in mohalla Ganesh Mariya, Jhansi. Smt. Savitri Devi is the landlord and she let out the house to Ram Krishna on a rent of Rs. 15/- per mensem. Ram Krishna fell in arrears from 1st October, 1963 to 31st January, 1966 and, therefore, Smt. Savitri Devi gave a composite notice of demand and termination of tenancy on 20th February, 1966, which was served on Ram Krishna on 21st February, 1966. Ram Krishna did not comply with the notice of demand as such Smt. Savitri Devi filed suit No. 314 of 1966 against Ram Krishna for arrears of rent and ejectment in respect of the house in dispute. 2. In accordance with the terms of the agreement between Smt. Savitri Devi and Ram Krishna one Kothri in the house in dispute was in possession of Smt. Savitri Devi. Since it was alleged that Ram Krishna interfered with her possession she filed Suit No. 234 of 1968 for a permanent injunction restraining Ram Krishna from interfering in her possession over a kothri which existed within the aforesaid house by breaking open the lock or in any other forcible means. 3. Ram Krishna by a registered sale deed dated 21st December, 1965 purchased two third share of the property in dispute from Smt. Makhan and Mahabir as it was alleged that Smt. Makhan and Mahabir were owners of two third share in the property. The pedigree set up was as follows: 4. It was alleged that Halkoo died. Thereafter Nanhoo died and Ram Gulam died issue-less and as such the co-sharers in the property in dispute were Smt. Savitri Devi, Smt. Makhan and Mahabir. It was, therefore, alleged that Ram Krishna had purchased the share of Smt. Makhan and Mahabir by the above registered sale deed. Ram Krishna, therefore, filed Suit No. 107 of 1967 for partition of the property in dispute. 5. The defence, therefore of Smt. Savitri Devi in the suit filed by Rarp Krishna was to the effect that the shares of Smt. Makhan and Mahabir could not be transferred by the registered sale deed as the property was a coparcenary and Smt. Makhan and Mahabir did not have specific shares in the property. 5. The defence, therefore of Smt. Savitri Devi in the suit filed by Rarp Krishna was to the effect that the shares of Smt. Makhan and Mahabir could not be transferred by the registered sale deed as the property was a coparcenary and Smt. Makhan and Mahabir did not have specific shares in the property. The defence of Ram Krishna in the suits filed by Smt. Savitri Devi was that he having purchased two-third share in the property ceased to be a tenant, he was only liable to pay Rs. 5/- being one third rent between the parties and as such he was not a defaulter and the notice was, therefore, wholly invalid in law. 6. All the three suits were tried together by the trial court. Suit No. 314 of 1966 was treated as the leading suit. The trial court by judgment dated 24th September, 1970 decreed Suits Nos. 314 of 1966 and 234 of 1968 filed by Smt. Savitri Devi and dismissed Suit No. 107 of 1967 filed by Ram Krishna. Against the judgment dated 24th September, 1970 Ram Krishna filed three appeals before the lower appellate court being civil appeals Nos. 199, 200 and 201 of 1970. All the three appeals were decided by a common judgment by the lower appellate court on 2nd December, 1971. All the appeals were allowed. Suit. No. 314 of 1966 was decreed only in part for recovery of Rs. 131/21 taking the rent to be one third of Rs. 15/- namely Rs. 5/-. Suit No. 234 of 1968 was dismissed while suit No. 107 of 1967 was decreed for partition and a preliminary decree was directed to be prepared accordingly. Against the judgment dated 2nd December, 1971 the present three appeals have been filed by Smt. Savitri Devi in this Court. 2nd Appeal No. 944 of 1972 arises out of suit No. 107 of 1967 for partition. Second appeal No. 945 of 1972 arises out of suit No. 234 of 1968 seeking permanent injunction m respect of the Kothri. Second Appeal No. 946 of 1972 arises out of suit No. 314 of 1966 for ejectment and arrears of rent against Ham Krishna. All the three appeals have been connected and common question of fact and law arises. Second appeal No. 945 of 1972 arises out of suit No. 234 of 1968 seeking permanent injunction m respect of the Kothri. Second Appeal No. 946 of 1972 arises out of suit No. 314 of 1966 for ejectment and arrears of rent against Ham Krishna. All the three appeals have been connected and common question of fact and law arises. All the three appeals were, therefore, heard together, Sri L. N. Tripathi learned counsel appeared on behalf of Smt. Savitri Devi and Sri S. N. Varma senior advocate appeared on behalf of Ram Krishna respondent. 7. Sri K. N. Tripathi has made the following submission before me, firstly that the property in dispute being coparcenary property on the death of Nanhoo there could be no notional partition and as such Smt. Makhan and Mahabir did not acquire specific share in the property and, therefore, the sale deed in favour of Ram Krishna dated 21st December, 1965 was wholly invalid and Ram Krishna did not become the owner of two third share in the property. The second submission of the learned counsel is that even if Ram Krishna had purchased two third share of the property then too the, lower appellate court have found that Smt. Savitri Devi was the sole landlord of the premises the interest of the lessor did not merge with that of the lessee and as such the suit for ejectment was liable to be decreed. In regard to this submission it was further urged that the lower appellate court has erred in not understanding the distinction between an owner and a landlord and as such it has erred in not passing a decree for ejectment and arrears of rent at the rate of Rs. 15/-. The third submission of the learned counsel is that the finding of the lower appellate court that Smt. Savitri Devi had no right to live in the kothri was a finding perverse in law on the basis of admitted facts. 8. In regard to the first contention of the learned counsel the relevant provision of the Hindu Succession Act is Section 6, Explanation 1. Section 6, Explanation 1, is as follows:- "Devolution of interest in coparcenary property. 8. In regard to the first contention of the learned counsel the relevant provision of the Hindu Succession Act is Section 6, Explanation 1. Section 6, Explanation 1, is as follows:- "Devolution of interest in coparcenary property. When a male Hindu dies after the commencement of this Act having at the time of his death and interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivor-ship upon the surviving members of the coparcenary and not in accordance with this Act. Provided that, if the deceased had left him surviving a female relative specified in Class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivor-ship. Explanation 1. - For the purpose of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not." 9. This section lays down that in the case of a Mitakshara coparcenary property the property would devolve by survivor-ship and not in accordance with the provisions of the Hindu Succession Act. The proviso has, however, been added to the effect that if the deceased leaves a female relative specified in Class I then the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession as provided by the Act and not by survivor-ship. Explanation 1 further creates a legal fiction that the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would be allotted to him if the partition had taken place immediately before his death. 10. In the instant case it is not disputed that the proviso is applicable as Nanhoo, who died, left behind him a female relative specified in Class I of the schedule. The only question which requires interpretation is as to whether there would be a notional partition by virtue of Explanation 1 or not on the death of the deceased coparcener. 11. The only question which requires interpretation is as to whether there would be a notional partition by virtue of Explanation 1 or not on the death of the deceased coparcener. 11. Learned counsel for the appellant has cited cases decided by the Orissa and the Bombay High Courts. It is not necessary for me to go into the details of these cases as in a recent decision of the Supreme Court in Gurupad v. Hirabai, AIR 1978 SC 1239 this question has been finally decided and I am bound by the same. The Supreme Court has observed as follows: "Explanation 1 to Section b resorts to the simple expedient, undoubtedly fictional, that the interest of a Hindu Mitakshara coparcener 'shall be deemed to be the share in the property that would have been allotted to him if a partition of that "property had taken place immediately before his death. What is therefore required to be assumed is that a partition had in fact taken place between the deceased and his coparcener's immediately before his death. That assumption once made, is irrevocable. In other words, the assumption having been made once for the purpose of ascertaining the share of the deceased in the coparcenary property, one cannot go back on that assumption and ascertain the share of the heirs without reference to it. The assumption which the statute requires to be made that a partition had in fact taken place must permeate to the entire process of ascertainment of the ultimate .share of the heirs, through all its stages. To make the assumption at the initial stage for the limited purpose of ascertaining the share of the deceased and then to ignore it for calculating the quantum of the share of the heirs is truly to permit ones imagination to boggle. All the consequences which flow from a real partition have to be logically worked out, which means that the share of the heirs must be ascertained on the basis that they had separated from one another and had received a share in the partition which had taken place during the lifetime of the deceased. The allotment of this share is not a processual step devised merely for the purpose of working out some other conclusion. The allotment of this share is not a processual step devised merely for the purpose of working out some other conclusion. It has to be treated and accepted as a concrete relativity, something that cannot be recalled just as a share allotted to a coparcener in an actual partition cannot generally be recalled. The inevitable corollary of this position is that the heir will get his or her share in the interest which the deceased had in the coparcenary property at the time of his death, in addition to the share which he or she received or must be deemed to have received in the notional partition." 12. The Supreme Court, therefore, accepted the theory that there would be notional partition by virtue of Explanation I to the section. In view of the above so far as the first submission of the learned counsel is concerned it has no substance. 13. In regard to the second submission made by the learned counsel, learned counsel has relied on Section 111, sub clause (d), of the T. P. Act, the relevant portion of which is as follows:- "Determination of lease. A lease of immovable property determines. (a) to (c) .............................. (d) in case the interests of the lessee and lessor in the whole of the property become vested at the same time in one person in the same right. (e) to (h) .............................. The argument of the learned counsel, therefore, is that unless the interest of the lessor in the whole of the property is vested in the lessee there cannot be any merger and as such the lease will not determine and will, therefore, subsist. 14. This clause (d), of Section 111 of the T. P. Act is based on the maxim "nemo protest esse tenons et dominus", i.e. nobody can be both landlord and tenant at the same time (in respect of the same property). In sub-clause (d) of Sec. III of the T. P. Act the words used are "whole of the property". The word 'whole is significant. Therefore, the merger can only take place when the entire interest of the lessor merges with that of the lessee. In sub-clause (d) of Sec. III of the T. P. Act the words used are "whole of the property". The word 'whole is significant. Therefore, the merger can only take place when the entire interest of the lessor merges with that of the lessee. In Badri Narain v. Rameshwar Dayal, AIR 1951 SC 186 : (1951 All LJ (SC) 20) Mahajan, J. who opined for the Court, held as follows:- "If the lessor purchases the lessees interest the lease no doubt is extinguished as the same man cannot at the same time be both a landlord and a tenant, but there is no extinction of the lease if one of the several lessees purchases only a part of the lessors interest. In such a case the leasehold and the reversion cannot be said to coincide." 15. In the same paragraph of the judgment it was further observed: "By these purchases he became a joint owner in the entire lakhraj holding to the extent of a moiety. He, however, never came to own the entire lakhraj interest in the village or the entire mokarrari interest therein. There was thus no coalescence of the interest of the lessor and the lessee in the whole of the estate which was subject to lakhraj and mokarrari interests and that being so, the mokarrari interest of Bisheshwar Dayal Singh did not merge in his lakhraj interest. Mere purchase by Bisheshwar Dayal Singh of portions of the lakhraj interest could not bring about an extinction of the lease or break its integrity as he was only one of the several joint holders of the mokarrari interest. An inter se partition of the mokarrari interest amongst the mokarraridars as alleged by the plaintiffs could not affect their liability qua the lessor for the payment of the whole rent, as several tenants of a tenancy in law constitute but a single tenant and qua the landlord they constitute one person, each constituent part of which possesses certain common rights in the whole and is liable to discharge common obligations in its entirety." 16. Ex. 3 on record is the lease deed by virtue of which Ram Krishna took the house on rent from Smt. Savitri Devi. Ram Krishna admitted the execution of Ex. 3. Ex. 3 on record is the lease deed by virtue of which Ram Krishna took the house on rent from Smt. Savitri Devi. Ram Krishna admitted the execution of Ex. 3. The trial court, therefore found that Smt. Savitri Devi was the sole landlord of the premises let out to Ram Krishna at the rate of Rs. 15/- per mensem. The lower appellate court, however has wrongly held that simply because there are other co-sharers all the co-sharers became landlords and, therefore, has non-suit Smt. Savitri Devi. The lower appellate court has lost sight of the distinction between the word 'landlord and the word 'owner. A person may be a co-owner of property but he need not be the landlord. U. P. Act III of 1947 defined the word landlord. Section 2 (c), which defines landlord is as follows:- "Landlord means a person to whom rent is payable by a tenant in respect of any accommodation and includes the agent, attorney, heir or assignee of such person." 17. In the instant case in terms of Ex. 3 the lease deed, Ram Krishna had, agreed to pay rent to Smt. Savitri Devil alone and it was from Smt. Savitri Devi that he took the property on lease. As such so far as the landlord for the purpose of the Act is concerned she would be Smt. Savitri Devi alone and not the other co-owners of the property. In the circumstances Smt. Savitri Devi was entitled to file a suit for ejectment as a landlord and she was also entitled to receive payment of rent, namely Rs. 15/-per mensem. Ram Krishna could have taken benefit of the purchase in his favour if he had purchased the entire interest in the property in dispute. Here he has only purchased two third share of Smt. Makhan and Mahabir and as such since the whole of the property has not been purchased by Ram Krishna the lease would not determine under Sec. III (d) of the T. P. Act. 18. This principle has been accepted in subsequent decisions of this Court and also by the Kerala High Court. 18. This principle has been accepted in subsequent decisions of this Court and also by the Kerala High Court. In Reoti Saran v. Hargu Lal, AIR 1964 All 542 : (1964 All LJ 13) a Division Bench of this Court held that if the interest of the lessor and the lessee in the whole of the property became vested at the same time then only the principle laid down in Section 111 (d) of the T. P. Act would apply. Similarly in Lachman Das v. Heera Lal AIR 1966 All 323 , a Division Bench of this Court has, while interpreting Section 111 (d) of the T. P. Act, held as follows : "We shall now take up the issue of merger of tenancy rights in the usufructuary mortgagee rights. Section 111 (d) of the Act provides that lease of immovable property determines 'in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right. The coalescence of the entire interest of the lessee and the entire interest of the lessor in one person is essential for termination of the lease. The use of the definite article before the word 'interests in Section 111 (d) shows that the entire interest of the lessor and of the lessee should coincide at the same time in one person. On this interpretation there may be merger of the two interests on inheritance or gift or purchase or exchange." 19. The Kerala High Court in Bala-krishnan v. Makkam AIR 1974 Ker 18 , also took a similar view that the merger can only be where the interest of the lessor and lessee in the whole of the property unites in the same person at the same time. I respectfully agree with the decisions mentioned above. 20. Learned counsel for the respondent has, however placed reliance on Hari Pratap v. Ramgopal AIR 1961 Raj 18 . This case does not apply to the facts of the present case. In the case of Hari Pratap (supra) the shop was owned by three persons jointly. The share of one of the lessors was purchased by the tenant. The suit was thereafter filed by only two lessors for ejectment against the tenant. This case does not apply to the facts of the present case. In the case of Hari Pratap (supra) the shop was owned by three persons jointly. The share of one of the lessors was purchased by the tenant. The suit was thereafter filed by only two lessors for ejectment against the tenant. It was in those circumstances that the Rajasthan High Court held that since the shop was let out jointly by all the three persons and the interest of one of the lessors had been purchased by the lessee then the suit for ejectment would not lie on behalf of two landlords and the suit for joint possession only would be maintainable. Here the position is entirely different. In the instant case the sole landlord was Smt. Savitri Devi and Ram Krishna was the tenant. Landlords interest was not purchased by the lessee Ram Krishna and as such he cannot take benefit of the case of Hari Pratap (supra), 21. In view of the above I am of the opinion that the second submission made by the learned counsel for Smt. Savitri Devi is well founded. Smt. Savitri Devi is entitled to a decree for ejectment as Ram Krishna is clearly a defaulter as he did not pay rent to Smt. Savitri Devi in spite of notice of demand as required under Section 3 (1) (a) of U. P. Act No. 111 of 1947. Smt. Savitri Devi is also entitled to the full amount of rent which was agreed between Smt. Savitri Devi and Ram Krishna. Ram Krishna by the mere purchase of a share of the other co-owners, who were not landlords, could not extinguish the rights of Smt. Savitri Devi under the lease and it was incumbent upon Ram Krishna to hand over possession to the lessor on the determination of the lease. 22. In regard to the third submission made by the learned counsel it is admitted that one kothri of the house in dispute was in the possession of the landlord Smt. Savitri Devi and she had her goods in the said kothri and that it was locked. This was by virtue of a specific term in the agreement. The view of the lower appellate court is that this clause does not show that the owner has a right of ingress and egress to that kothri. This was by virtue of a specific term in the agreement. The view of the lower appellate court is that this clause does not show that the owner has a right of ingress and egress to that kothri. This view is wholly perverse, Once the possession of the landlord is there in respect of the kothri and her goods are stored in the same though the kothri may be locked it cannot possibly be said that the landlord has no right of egress and ingress to the said kothri. The very fact that the landlord had possession of the kothri implied that she had a right of ingress and egress in respect of that kothri. The view to the contrary taken by the lower appellate court is, therefore, wholly perverse and the trial court rightly held that Smt. Savitri Devi had the right to use the kothri. 23. In the result second appeal No. 944 of 1972 is dismissed. Second appeal No. 945 of 1972 is allowed and the judgment and decree of the lower appellate court in that respect is set aside and that of the trial court is restored. Second appeal No. 946 is also allowed and the judgment and decree of the lower appellate court in that respect is set aside and the judgment and decree of the trial court is restored. In the circumstances of the case parties are directed to bear their own costs of this Court in all the three appeals.