M. M. Selvaraj v. P. Singaram Pillai — 1990 DIGILAW 635 (MAD)

JUDGMENT K.M. Natarajan, J. 1. The unsuccessful first defendant before the lower court has preferred this appeal challenging the decree and judgment in O.S. No. 123 of 1980 on the file of the Subordinate Judge, Nagapattinam. The first respondent plaintiff has filed the suit for a declaration that he is entitled to 38/48 share in the suit property and for passing a preliminary decree by appointing a commissioner for division of the plaintiffs share by metes and bounds and for passing a final decree in terms of commissioner's report and allotting the specified portion and putting the plaintiff in the specified portion. At the outset we wish to point out that this appeal is filed challenging the finding of the trial judge in issue 6 with regard to the tenancy rights claimed by the first defendant in the portion of the suit property which has been found against the first defendant. Hence, it is needless to traverse the entire allegations in detail in this appeal and it is enough if the details which are necessary for the disposal of the said issue are set out herein. The admitted case of both the parties is that the suit property is the superstructure of the share building bearing door No.56 and 57 in Anna Salai (Bazaar St.), Vijayapuram, measuring 522 sq.ft. in T.S. No. 991, Ward No. 3, Block 23. The first defendant became a tenant prior to I960, that is, in or about 1957 in respect of 362 sq.ft. under one Yasin Rowther under an oral agreement. The plaintiff became a tenant of a portion of the property to the extent of 160 sq.ft. in 1970-71 and has been running a shroff business in the said building. The first defendant has been doing business in snuff in a portion which has been taken on lease by him. The suit properly originally belonged to one Chevusa Rowther and he had 3 sons and 3 daughters and second wife Ravia Bivi. Through Ravia Bibi, he had two daughters. During the life time of Chevusa Rowther, he executed a registered settlement dated 27.10.1915. The suit property has been given to the three sons of Chevusa Rowther, namely, Sultan Mohamed Rowther, Mohamed Gani Rowther and Mohamed Hussain Rowther. Yasin Rowther is the son of Mohamed Hussain Rowther. Defendants 2 to 10 are the widow and the children of Yasin Rowther. During the life time of Chevusa Rowther, he executed a registered settlement dated 27.10.1915. The suit property has been given to the three sons of Chevusa Rowther, namely, Sultan Mohamed Rowther, Mohamed Gani Rowther and Mohamed Hussain Rowther. Yasin Rowther is the son of Mohamed Hussain Rowther. Defendants 2 to 10 are the widow and the children of Yasin Rowther. They are together entitled to 8/48th share. The plaintiff by means of registered sale deeds dated 15.1968, 24.9.1968, 6.3.1969, 12.1.1970 and 11.10.1976 under Exs. A-3 to 6 and 8 purchased 38 shares out of 48 shares from the co-sharers. The first defendant purchased undivided 2 shares i.e, 2/48 from one of the co-sharers. Thus the plaintiff is the owner of 38/48th share and the first defendant is the owner of 2/48lh share while defendants 2to 10 are entitled to 8/48th share. The plaintiff issued a registered notice dated 27.12.1979 calling upon the first defendant to agree for an amicable division. The first defendant issued a reply notice dated 8.1.1980 under Ex. A-9 wherein, though agreed for a partition of the suit property he has put forth a proposal for a division which is not workable. The plaintiff has given a rejoinder on 18.1.1980 under Ex. A-10. Thereafter he has filed the present suit. 2. The first defendant has given up his contention with regard to quantum of share, later. His main contention is that he has been inducted into possession as lessee by the former owner of the property, prior to the plaintiffs purchase. His right of occupation and possession of the building is well protected by the Tamil Nadu Buildings (Lcaseand Rent Control) Act (hereinafter referred to as Act) which is in force in Thiruvarur Town. The plaintiff can claim only constructive possession and not khas possession. The second defendant filed a written statement which is adopted by defendants 3 to 6 and 8 to 10, admitting that they arc entitled only to 8/48 share. However, they denied the improvements effected by the plaintiff and the first defendant, and prayed that they may be allotted 8/48 share while passing the final decree as they are prepared to pay the court-fees. 3. However, they denied the improvements effected by the plaintiff and the first defendant, and prayed that they may be allotted 8/48 share while passing the final decree as they are prepared to pay the court-fees. 3. A reply statement was filed by the plaintiff denying the allegations stated in the written statements filed by the defendants wherein it is slated that as regards the quantum of share even in the reply notice the first defendant admitted that he is entitled to 2/48th share arid defendants 2 to 10 are entitled to 8/48th share while the plaintiff is entitled to 38/48th share. Further, the first defendant has purchased on 13.1.1972 2/48th share from Abdul Samad who got this share by the registered settlement deed dated 29.1.1958 from his maternal grand-mother. The plaintiff specifically disputed the contention of the first defendant that he is a statutory tenant, that he has to be evicted only under the Act and that there is relationship of landlord and tenant between the plaintiff and the first defendant. The first defendant is in possession only as co-sharer and it is inconceivable that he is in possession both as co-sharer and as tenant. 4. On the pleadings, the trial court, framed as many as 8 issues. On the side of the plaintiff, he examined himself as P.W. 1 and Exs. A-1 to 13 were marked. On the side of the defendants, the first defendant examined himself as D.W. 1 and Exs. B-1 to B.23 were marked. Issue No. 7 was not pressed on the joint memo of the parties. Issues 1 and 2 were found in favour of the plaintiff. Under issue No. 3 it was held that the first defendant is entitled to 2/48th share. But, since he has not paid court-fee, he is not entitled to partition. Under issue 4, defendants 2 to 10 were held to be entitled to 8/ 48th share. Under issue 5, the trial court held that the various sale deeds in favour of the plaintiff were valid. Under issue 6, which is the subject matter of this appeal it was held that the first defendant is not entitled to the benefits of the Act and this issue was found against the first defendant and in favour of the plaintiff. Under issue 6, which is the subject matter of this appeal it was held that the first defendant is not entitled to the benefits of the Act and this issue was found against the first defendant and in favour of the plaintiff. Consequently, the suit was decreed for partition and separate possession of the suit property and allotting 456/576 share to the plaintiff and 89/576 share to defendants 2 to 6 and 8 to 10. The parties were directed to bear their respective costs. 5. As already stated, only the finding of the trial Judge under issue 6 has been challenged in this appeal. The learned Counsel for the appellant first defendant, Mr. N. Varadarajan submitted that the lower court is not justified in holding that the tenancy of the first defendant has come to an end under Section 111(d) of the Transfer of Property Act, when he purchased 2/48 share under Ex. B-5, dated 13.1.1972, registration copy of which is marked as Ex. A-6, that the first defendant cannot be considered to be a tenant in respect of door No. 57 and that he is not entitled to the benefits of the Act. According to the learned Counsel, merger of the leasehold interest and the interest of the landlord takes place only when the entire interest of the lessee and the entire interest of the lessor become vested in the same person and that when a lessee of a portion of the property acquires a fractional share of the proprietary interest, there is no merger of the tenancy right in the proprietorship so as to extinguish the lease. In support of his contention, the learned Counsel drew the attention of this Court to Section 111(d) of the Transfer of Property Act and to the decision in Shaikh Faquir Baksha v. Murlidhar 61 M.L.J. 261 : 58 I.A. 75 : 311. C. 334 : A.I.R. 1931 P.C. 63, Takhat Singh v. Prem Chand A.I.R. 1973 Punjab and Haryana 204, and to some portion in the decision reported in N. Rajeswari v. S. Palaniappan (1984) 2 M.L.J. 63, on the other hand, the learned Counsel for the first respondent plaintiff, Mr. K. Sarvabhauman, submitted that admittedly the appellant first defendant purchased undivided 2/48th share which comes to about 22 sq. ft. out of 522 sq. K. Sarvabhauman, submitted that admittedly the appellant first defendant purchased undivided 2/48th share which comes to about 22 sq. ft. out of 522 sq. ft., that it is not a specified portion, that he entered into an oral lease agreement in respect of a portion of the property from one co-sharer and not from all the sharers and that he is not entitled to claim the benefit of the Act. The learned Counsel for the first respondent/plaintiff submitted that the plaintiff and the defendants have got undivided share in the property and that they have got a right to demand partition as each is entitled to right in every portion. In support of his contention, he relied on the decision reported in N. Rajeswari v. S.P. Palaniappan (1984) 2 M.L.J. 62 , rendered by a Division Bench of this Court, and the decision in Kuppuswamy Chettiar v. Balagunmmrthy Chettiar 77 L.W. 559 and Jahuri Sah v. Jhunjhunwala. . The learned Counsel for other respondents who represented respondents 5 and 9 Mr. R.G. Rajan, only supported the argument of Mr. K. Sarvabhauman and he submitted that the preliminary decree has to be upheld. 6. The point for determination in this appeal is, whether the finding of the trial court under issue 6 is correct and whether the first defendant is entitled to the benefit of the Act in respect of the remaining undivided extent of land after deducting the undivided portion purchased by him to an extent of about 22 sq. ft. The contention of the learned Counsel for the appellant/first defendants that the finding of the trial court that by purchase of 2/48lh share, the entire leasehold right was determined as it has been merged with the sale, is not correct. ft. The contention of the learned Counsel for the appellant/first defendants that the finding of the trial court that by purchase of 2/48lh share, the entire leasehold right was determined as it has been merged with the sale, is not correct. The learned Counsel for the first respondent submitted that the plaintiff is not relying on Section 111(d) of the Transfer of Property Act, but only relying on the general law that by purchasing an undivided portion, each sharer is entitled to right to every portion, of the property and the tenant who purchased an undivided share is entitled to continue in possession till the property is divided and specific portions are allotted to the sharers, under Clause (d) of Section 111 of the Transfer of Property Act it is provided that a lease of immovable property determines in case the interest of the lessee and the lessor in the whole of the property becomes vested at the same time in one person in the same right. In view of the above provision, the observation of the learned Judge, that by purchase of 2/48th share the leasehold right in respect of the entire leasehold right which was of a higher extent merged with the sale and it has been determined is not quite correct. But we have to see in the light of various decisions cited on behalf of both the parties and in the light of the facts of the case, whether the first defendant is entitled to the benefit of the Act in respect of the excess undivided extent in his portion and he cannot be ousted in accordance with the provisions of the said Act. In this case, admittedly the site in question over which the superstructure was put up belongs to Sri Renuka Devi Amman Temple. The subject matter is only the superstructure. It is seen from the evidence of D.W. 1 himself that he became a tenant under Yasin Rowther who is only a predecessor of defendants 2 to 8 and it is not the case of the appellant that he became a tenant under all the sharers. It is his further case that he became a tenant only in respect of a portion bearing door No. 57 and that he purchased an undivided 2/48th share from one Abdul Samad, i.e. his share in the property. It is his further case that he became a tenant only in respect of a portion bearing door No. 57 and that he purchased an undivided 2/48th share from one Abdul Samad, i.e. his share in the property. It is not in dispute that the plaintiff is entitled to an undivided 38/48th share, while the first defendant, is entitled to 2/48th share and defendants 2 to 10 are entitled to the remaining undivided share. It is to be noted that in the very reply notice Ex. A-9 issued by the first defendant, in reply to the notice issued by the plaintiff on 27.12.1979, he has stated that he is willing for an amicable partition if the property is capable of partition. But he stressed that for convenient enjoyment, his share should be allotted in the front portion where he is conducting his snuff business from the year 1960. Again, he has stated at the end, he is prepared for partition of the property. It is nowhere staled that he is entitled to the benefit of the Act, that actual physical possession cannot be delivered even though division is effected and that the remedy is not to resort to the Act. 7. In view of the above facts, let us consider the decisions relied on by both parties. In Shaikh Faquir Baksha v. Murli Dhar A.I.R. 1931 P.C. 63, the plaintiff and the defendant were pro indiviso joint proprietors of a property. The plaintiff was also the lessee of a portion of the entire property from acquisition of their interest by the parties. The lease was subsisting when the shares were bought by the parties. The plaintiff brought a suit for accounts. It was held in the circumstances of the said case. Held: that plaintiffs rights under lease of a part did not merge in his rights as joint proprietor of the whole of the property and as between the parties the plaintiff held a valid and subsisting lease and so in an accounting between them the rent under the lease and not the reasonable profits of the property leased was the measure of contribution which the leased properties ought to make to the divisible revenue of the entire property. That decision is not helpful as it was not held as to what would happen when the parties agree for division of the undivided property and when the purchase is made in respect of an undivided portion. That decision is not helpful to the question involved in this appeal. The decision in N. Rajeswaii v. S.P. Palaniappan (1984) 2 M.L.J. 62 , which was relied on by the learned Counsel on either side was rendered by the Division Bench of this Court. That arose under the Tamil Nadu Buildings (Lease and Rent Control) Act. The question referred to the Division 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? It was held: There is nothing in the Rent Control Act to indicate that, if a tenant occupying a "premises under the Act acquires a moiety interest of the landlord, he ceases to be a tenant within the meaning of that term under the Act, and ceases to be liable to pay rent and there is nothing in the Act from which any inference could be drawn that, on such subsequent acquisition of a moiety of interest, the petition for eviction filed under the Tamil Nadu Act will no longer be maintainable, in that the lease creating the tenancy itself will be put an end to. It was further held: Following the aforesaid decision of the Supreme Court Venkateswarulu v. Motor and General Traders , 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. 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. In the instant case, also, even after the purchase the first defendant was allowed to be in possession of the entire leasehold property along with the plaintiff who purchased a major portion and is in joint possession and the present suit is filed for partition of his specific share in the property and for recovery of separate possession. Hence the said decision only supports the case of the first respondent-plaintiff. In this connection, the learned Counsel for the first respondent drew the attention of this Court to the decision in Kuppusami Chettiar v. Balagurumurthy Chettiar 77 L.W. 559. The facts in that case are that in respect of a building owned in common between father and son, the former sold his half share, and subsequently obtained a lease from the vendee. In a suit filed by the vendee for partition and separate possession, there was a preliminary decree, and when an application for a final decree was made, it was contended by the vendor's son, the vendors having died, that inasmuch as he was in possession as a tenant of the premises under the plaintiffs; he would be entitled to protection afforded by the Madras Buildings (Lease and Rent Control) Act and that therefore no effective decree for delivery of possession could be passed in the case. It was held: "The vendor wishing to have undisturbed possession pf the, buildings entered into an arrangement by which compensation for such exclusive possession was agreed to be paid, though describing it as rent. In the above decision, it was held that the vendor's son could not claim any rights under the Rent Control Act. The observations of the learned Judge in that case are very relevant in deciding the point involved in this appeal. It was observed as follows: The lease, as we said, was of an undivided moiety of the buildings. In the above decision, it was held that the vendor's son could not claim any rights under the Rent Control Act. The observations of the learned Judge in that case are very relevant in deciding the point involved in this appeal. It was observed as follows: The lease, as we said, was of an undivided moiety of the buildings. By reason of the sale deed executed by Dasappa in favour of the plaintiffs, the vendor and the vendee became thereafter co-tenants of the property the right of the co-tenants who hold the undivided properly 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, each 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. It was further observed as follows: In a case of this kind, where one co-tenant allows 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 he is the owner of any part of designated part of the building. His interest will be to the extent of the 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 property 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. In Jahuri v. Jhunjhunwala , it was held: If they are co-owner of the property and the properly 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. 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. The 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 its right to possession is limited to the extent of the share in the property. 8. The ratio in that decision supports the case of the first respondent-plaintiff. The decision relied on by the learned Counsel for the appellant in Takhat Singh v. Prem Chand , is not at all helpful to the case of the appellant. In that case while dealing with Section 111(d) of the Transfer of Property Act, it was held: Where the tenant of the larger portion of the "Property purchases smaller portion therein, the case is not covered by Section 111(d) even if it is applied and the question whether his tenancy rights have merged with his ownership rights is to be determined from his intention at the time of purchase. There also, reference was made to an earlier decision in Ram Sarup v. Chanan Singh 1964 Punj. L.J. 49 and the said decision was distinguished. In Ram Sarup Case 1964 Piinj. L.J. 49, it was held: A tenant settled by one of the co-sharers on joint land can by no stretch of imagination become ipso facto the tenant of the other co-sharers, however, it is open to the other co-sharers to adopt such tenant by their own actor conduct. Where the tenant was settled by one of the co-sharers of the joint land and the joint land was partitioned, held, partition decree binds the tenant as much as it binds his land-lord and such tenant is liable to be evicted in execution of the partition decree. The learned sub Judge after discussing the facts found that the case of the first defendant that he became a tenant under Yasin Rowther in respect of 362 sq.ft. The learned sub Judge after discussing the facts found that the case of the first defendant that he became a tenant under Yasin Rowther in respect of 362 sq.ft. of the building bearing door No. 57 in 1959 under an oral lease arrangement set up by the first defendant is mutually inconsistent with his pleading and the evidence with respect to the portion and other details and his version is not acceptable. There is absolutely nothing to show that the first defendant was a tenant of the plaintiff in respect of the share purchased by him. On a careful analysis of the facts involved in this appeal and the ratio in the decisions relied on by the learned Counsel for the first respondent, we do not find any justification for interfering with the finding of the learned trial Judge and consequently we uphold the same. Since the parties have not challenged the other findings and also the preliminary decree passed for effecting division of the properly, the decree passed by the court below has to be confirmed. 9. The memorandum of cross-objections is only in respect of not awarding costs to the plaintiff as prayed for. In the circumstances of the case, the first respondent plaintiff has not made out any case for awarding costs. Even otherwise considering the facts and circumstances of the case, we do not find any justification to interfere with the discretion exercised by the court below directing both parties to bear their respective costs in the suit for partition especially when the defendants have no objection for granting a decree for partition. The only dispute is whether the first defendant is entitled to claim the benefit of the Act in respect of the excessive portion which was in his possession. Hence the memorandum of cross-objections has no merits. 10. In the result, the judgment and decree of the trial court are confirmed, and the appeal and the memorandum of cross-objections fail and stand dismissed. However, in the circumstances of the case, the parties are directed to bear their respective costs in the appeal and the memorandum of cross-objections.