Judgment :- These two revision petitions are taken up with the consent of parties. The short facts which are necessary for the purpose of deciding these 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.188, Linghi Chetty Street, Madras-1 and No.134, Angappan Naicken Street, Madras-1 under Secs.10(2)(i) and 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 wee 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. 2. The Rent Controller held that there was a relationship of landlord and tenant between the parlies 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. 3. 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, who is the Appellate Authority, under Sec.23 of the Act. The respondent filed applications under Sec.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. 4. Challenging the correctness of the said order, these revision petitions have been filed by the petitioner. 4. 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 the 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. 5. 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 There was a lease agreement dated 1.12.1979 under which T. & D. Dehganwala represented by (1) Tayebally Mohamedally, (2) Badruddin Mohamedally, (3) Mrs. S.Lehry, (4) Mrs.Gulhar Fakhruddin and (5) Miss. Fatema Tayebally granted a lease in or the petitioner herein with respect to both the buildings. I should state that there were lease agreements on the same day. It may be noted that the estate was represented persons including the petitioner on the one hand and they were compendiously described lessors while the petitioner was described as the lessee on the other. Among the parties No.3 to 5 are daughters of party No.1, who is the brother of the petitioner herein 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 premises No.158, Linghi Chetty Street and Rs.2,500 for premises No.134, Angappa Street per mensem. The other two documents are agreements for adjusting the payable under the lease agreements from out of the joint account held by the lessors as co-owners. It is better to extract the relevant portion in the agreement providing adjustment of the rent payable which reads as follows: “ ......The parties of the first part shall debit a sum of Rs.2500 (Rupees two thousand hundred only) every month in the account of the party of the second part and same for the rents payable by the party of the second part for the lease of the portion in premises No.134, Angappa Naicken Street, Madras 1. The party of the second is entitled to receive only the balance share of the income alter deducting a sum of as and for rent and after making provision of the property tax, water and sewerage Urban Land Tax, Insurance Premium etc.” A similar clause is found in the other agreement relating to the other building with respect a sum of Rs.6,000 payable for that building. 6. It is stated that the rental of Rs.6,000 was reduced to Rs.5,000 per mensem after of one year when the petitioner surrendered possession of a portion of the demised to the lessors. It is not in dispute that the payment of rent was in accordance agreements referred to above by adjustment of the amount standing to the credit petitioner in the account of the estate till 1983. It appears that from 1983, the started paying the amount to the lessors which was in turn being remitted into the account. 7. The question that arises in this case is whether the lease agreements referred to 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 garb of a lease deed, will not be effective as a lease. On the other hand it is contended the respondent that a lease in possible among the co-owners by some co-owners or owners together on the one side in favour of one of the co-owners or a few of the co 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 Control) Act. 8. Approaching the question on first principles, I am of the view that the contention on behalf of the petitioner should be accepted. In this case, it cannot be denied that 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 have entered into an arrangement by which one co-owner is permitted by all the co to enjoy the properties exclusively on payment of certain amounts by way of compensation. A reading of the documents put together will show that the co have entered into an arrangement by which one co-owner is permitted by all the co to enjoy the properties exclusively on payment of certain amounts by way of compensation. The amount that is fixed in the agreement would represented the share of the profits the co-owners. Supposing the property is leased out by all the co-owners to a third they would be getting a rent from the third party and they would be entitled to share among themselves. Similarly, when the properly is put in the possession of one of the owners for his exclusive user, the amount that is paid by him is to be taken by the 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 petitioners pay an amount which is deposited by the co-owners in the joint account and 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 property, is paying a compensation to the estate for his exclusive enjoyment and such compensation is being divided enjoyment and such contemplated either by the Transfer Property 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 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 Buildings (Lease and Rent Control) Act and whether the petitioner is a ‘tenant’ as defined by the Act and whether the respondent is a ‘ landlord ’ as defined by the Act. 9. It is sufficient if I consider the question whether it will be a letting within the meaning of the Tamil Nadu Buildings (Lease and Rent Control) Act and whether the petitioner is a ‘tenant’ as defined by the Act and whether the respondent is a ‘ landlord ’ as defined by the Act. 9. Sec.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 particular portion of the properly belongs to him as a co-owner. Every co-owner is entitled 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 owner, will not be a separate letting as contemplated by Sec.2(2) of the Act, because let out is only an undivided share in the property. So long as there is no separate letting portion of the building or building itself, it will not fall within Sec.2(2) of the Act. 10. Sec.2(6) of the Act gives an inclusive definition for the term ‘landlord’ . It "landlord" includes the person who is receiving or is entitled to receive the rent of a Similarly, Sec.2(8) of the Act defines a ‘tenant’ as ‘any person by whom or on whose rent is payable for a building. If the amount payable under the arrangement between parties is not ‘rent in the real sense and it is only a compensation payable by the it will not bring the parties within the definition in Sec.2(6) and Sec.2(8) of the Act. ‘rent’ has not been defined in the Act. The real nature of the transaction and relationship of the parties cannot be decided by the nomenclature used by the parties. to be decided on the basis of the substantial terms of the agreement between the Vide: H.S.Rikhy v. New Delhi Municipality A.I.R 1962 S.C. 554: (1962)1 S.C.J. 612. 11. Under Sec.3 of the Act, a notice of vacancy is to be issued to the Officer authorized the Government (Accommodation Controller) by the landlord within seven days building becomes vacant. to be decided on the basis of the substantial terms of the agreement between the Vide: H.S.Rikhy v. New Delhi Municipality A.I.R 1962 S.C. 554: (1962)1 S.C.J. 612. 11. Under Sec.3 of the Act, a notice of vacancy is to be issued to the Officer authorized the Government (Accommodation Controller) by the landlord within seven days building becomes vacant. If the petitioner is considered to be a tenant and on his the premises the landlord is bound to give notice under Sec.3 of the Act, it will anomalous situation. Even if the tenant vacates the building, it is not vacant as the being a co-owner is already in possession thereof. Similarly, the tenant, who has also a co-owner and he is also deemed to be in possession of the properly in law owner. 12. Under Sec.10(3) (a) (iii) of the Act, it is open to the landlord to file an application direction to the tenant to place the building in possession of the landlord if the landlord occupying for purposes of a business which he is carrying on, a non-residential the city, town or village concerned which is his own. A question will arise whether possible for the respondent as a landlord to file a petition under Sec.10(3)(a)(iii) as the tenant is holding the position of a tenant as well as a co-owner. Sec.14 of provides for an application for eviction on the ground of requirement for demolition. possible for some co-owners to file a petition as a landlord under the said Section tenant who is also a co-owner does not agree for the demolition of the building. Several conundrums will arise if it is accepted that there is a lease transaction among the co and the petitioner is a tenant and the respondent is a landlord as defined by the Act. 13. The matter is not res integra. A division bench of this Court has considered the in D.Kuppuswami Chettiar and others v. A.R.C.B. Balagurumurthi Chettiar and others, 1 M.L.J. 86. In that case, one of the co-owners sold his undivided half share in the in question to the plaintiff in the suit and after such sale, obtained a lease of the building from plaintiff. The purchaser filed a suit for partition and delivery of separate possession of share. A preliminary decree was passed in the suit. An application for passing of final was filed. The purchaser filed a suit for partition and delivery of separate possession of share. A preliminary decree was passed in the suit. An application for passing of final was filed. At that time, the second defendant in the suit, who was the son of the vend who was entitled to the other half share, contended that he was in possession as a the premises under the plaintiff and he would be entitled to the protection of According to him, no effective decree for delivery of possession could be passed in The learned Subordinate Judge, while negativing the contention, observed that the could resist at the stage of execution by raising the plea. The defendant was not with the said decree and he filed an appeal. The plaintiff filed a memorandum objection contending that there could be no relationship and landlord and tenant between parties. The division bench upheld the contention of the plaintiff and allowed memorandum of cross-objections while dismissing the appeal. The following passage judgment of the division bench is very instructive: "....The lease, as we said, was of an undivided moiety of the buildings. By reason on deed executed by Dasappa in favour of the plaintiffs, the vendor and the vendees thereafter co-tenants of the property. The rights of the co-tenants who hold the property between themselves are now well settled. Each has an undoubted right to and obtain partition by motes and bounds of the joint property but till that is done be said that any of the sharers has got an exclusive right to any part of the joint property theory such a co-tenant is entitled to be in possession and to use every part of the property so long as he does not exclude his co-tenant. In the instant case the wishing to have undisturbed possession of the buildings entered into an arrangement which compensation for such exclusive possession was agreed to be paid, though it as rent. We cannot therefore regard the arrangement between the parties as conforming to a case of agreement for lease. But assuming that there was one by way of lease, as indeed it purports to be question then is whether the lease was of the building within the meaning of the Rent Act. We cannot therefore regard the arrangement between the parties as conforming to a case of agreement for lease. But assuming that there was one by way of lease, as indeed it purports to be question then is whether the lease was of the building within the meaning of the Rent Act. the term ‘Building ’ has been defined in Sec.2(1) as any building, hut or part of a or hut let or to be let separately for residential or non-residential purposes. In a case kind where one co-tenant allows another co-tenant to enjoy his undivided share, it said that he has such exclusive right of the property, as to be capable of being let out less can it be held that any definite part of such a building has been let. No co-tenant that he is the owner of any part or designated part of the building. His interest will extent of share owned by him in the entirety of the property. Therefore, if he, arrangement purports to let out or enters into an arrangement for the enjoyment property by the other, that transaction can be regarded only as an arrangement with to the undivided share of the entire property and not with reference to any building or the building." 14. That ruling was followed by another division bench in Ratnam v. Arunachalam 90 L. W. 633. Two co-owners leased out the suit property to the third co-owner for of his business. One of the lessors died and his legal representatives filed the partition and separate possession. The lessee contended in the main that he occupation as a tenant of the building with in the meaning of the Act and though plaintiffs were entitled to a right to sue for partition, yet by reason of the statute protected the interest of the tenant, the plaintiffs were not entitled to separate possession the suit property. The trial Judge passed a decree for partition in favour of the plaintiffs, held that they were not entitled to get actual possession as the defendant was a tenant. That decree was challenged on appeal and the division bench, following the ruling in D.Kuppuswami Chettiar’s case, (1965)1 M.L.J. 86 , allowed the appeal. observed thus: "4. The trial Judge passed a decree for partition in favour of the plaintiffs, held that they were not entitled to get actual possession as the defendant was a tenant. That decree was challenged on appeal and the division bench, following the ruling in D.Kuppuswami Chettiar’s case, (1965)1 M.L.J. 86 , allowed the appeal. observed thus: "4. In the case of co-owners, it would be idle, and indeed strange, for any one of them their fingers upon any part of such joint property and claim that it is or their own. accent or emphasis upon ownership of an identifiable part of common property is only after a final decree for partition is obtained by such a co-owner in a manner known to law. But during the process litigation which leads to the passing of a final decree no one amongst such co-owners project any title to a defined portion of joint property. If this is the concept inexplicably attached to the principle of joint or co-ownership, then it follows that accident of possession of a part or whole of such property by one amongst such co does not give him any right as a tenant thereto as is popularly understood or understood the light of the statutory provisions of the Madras Buildings (Lease and Rent Control) 18 of 1960 either. It is only by sufferance and mostly by consensus or contract that owner is placed in possession of the joint property without any objection or interference the other admitted co-owners. His right would be in the nature of that of a licensee possession of the property and no more. His obligation would be to pay such quid pro consideration for the allowance or privilege granted to him by other co-owners to possession of the property either in part or in whole. Such rights and obligations centering round a particular jural relationship, which springs from the right of co- cannot give the person a right to claim the statutory privileges available to a possession of a property not belonging to him and in which is not interested and into he was inducted by the co-owner as a tenant in the popular sense. Such rights and obligations centering round a particular jural relationship, which springs from the right of co- cannot give the person a right to claim the statutory privileges available to a possession of a property not belonging to him and in which is not interested and into he was inducted by the co-owner as a tenant in the popular sense. It is that incident led to the induction of the person into possession of the property of a third party impresses on him the badge of being a tenant in law as well as under contract contemporaneously vests in him the statutory privilege of gaining and claiming all which a tenant could claim by virtue of which a tenant could claim by virtue of the under the special enactment Act, 1960. These privileges and rights available to a above are certainly not available to a co-owner who gets into possession of the property the consent of the other co-owners or to a person whom he lets into possession relative property. Such permissive possession as already stated by us does not vest right to claim the benefits of a statutory tenant under Act 18 of 1960. The lower Court wrong in having assumed that the defendants were so entitled to. “ Thereafter, the Division Bench referred to the judgment in D.Kuppuswami Chettiar (1965)1 M.L.J. 86 , and extracted a passage therefrom. Then it was observed,” 6. Having regard to this well accepted concept at any rate in our High Court, that cannot carve out for himself and to his benefit any definable or delineatable interest property to the prejudice of other co-sharers, the claim of the appellants has to be To that extent the court below said that the plaintiffs would not be entitled possession, though it granted the relief as to partition of the property claimed plaintiffs, its judgment is set aside and the appeal is allowed in part to the extent. 15. In Jahuri Sah v. Dwarika Prasad Jhunjhunwala, A.I.R. 1967 S.C. 109: 1966 (Supp.) 280: (1966)2 S.C.W.R. 184, it was ruled thus: “(11) We will now deal with the other ground urged by Mr.Sarjoo Prasad in support contention that the suit is not maintainable. 15. In Jahuri Sah v. Dwarika Prasad Jhunjhunwala, A.I.R. 1967 S.C. 109: 1966 (Supp.) 280: (1966)2 S.C.W.R. 184, it was ruled thus: “(11) We will now deal with the other ground urged by Mr.Sarjoo Prasad in support contention that the suit is not maintainable. Under sub-sec.(2) of Sec.11 of the stood on the date of the suit a claim for eviction of a tenant or a claim for recovery possession of a building and claim for rent thereof had to be made before the Rent alone and consequently the jurisdiction of the Civil Court for the enforcement of such was ousted. But, for the provisions of this section to apply, the relationship between plaintiff and the defendant should be that of a landlord and tenant. If they are co the property and the property is held by them as tenants in-common no question relationship of landlord and tenant comes into being as between them. The common the parties is that they are in fact co-owners of the property and the respective shares two families have not been demarcated. They, therefore, continue to be tenants in It is true that the entire property (save a small portion which was in possession of tenants) in the actual occupation of the defendants which means that they are in occupation of their share in the property but also of the plaintiff’s share. That fact, however, would make them tenants of the plaintiffs. Under the law each tenant-in-common is entitled possession of the entire property, that is, to every part of it though its right to possession limited to the extent of share in the property. The mere fact that the defendants pay compensation to the plaintiffs for their occupation of the entire property (ignoring portion in possession of the tenants) would not bring into existence a relationship of and tenant. By this agreement, the parties never intended to constitute a relationship landlord and tenant between the defendants and their co-owners. The provisions of are, therefore, inapplicable.” 16. There was yet another occasion in this Court for another division bench to consider question under different circumstances. By this agreement, the parties never intended to constitute a relationship landlord and tenant between the defendants and their co-owners. The provisions of are, therefore, inapplicable.” 16. There was yet another occasion in this Court for another division bench to consider question under different circumstances. In N.Rajeswari and others v. S.P.Palaniappan others, 97L.W. 334, the question that was referred to the bench was ” where the purchases a fractional interest in the demised property, could he be called a co-owner to disentitle the original owner (landlord) to seek eviction under the Rent Control the facts, the purchase made by the tenant of a fraction of the interest in the property was during the pendency of the proceeding for eviction. The division bench view that the purchase of a fractional interest did not put an end to the relationship landlord and tenant between the parties and the petition for eviction which was filed the purchase by the tenant did not cease to be maintainable. It was observed that absence of the tenant acquiring the entire interest of the landlord, he could not non landlord’s application for eviction on that ground alone. Dealing with the expression merger”, the division bench considered the provisions of Sec.111(d) of the Transfer Property Act vis-a-vis the provisions of the Tamil Nadu Buildings (Lease and Rent Act. It was observed by the division bench as follows: “22. It is well settled that the right to relief in an action between parties must be relation to the date of the suit, but the Court may take subsequent events into consideration for moulding the reliefs in fairness o both the parties, as observed by the Supreme Venkateswarulu v. Motor and General Traders, A.I.R. 1978 S.C. 1409. “23. Following the aforesaid decision of the Supreme Court it must be held that the was maintainable on the date when it was filed and that it will not be a non est merely on account of the purchase by respondents 1 and 2 of a moiety share, though have relevance to the relief that may be granted to the petitioners. The tenants already in possession of the building, the proper order that could be passed circumstances of the case will be to direct the landlord to be in joint possession along the tenants, leaving it open to the landlord to sue for partition of his specific share property...... The tenants already in possession of the building, the proper order that could be passed circumstances of the case will be to direct the landlord to be in joint possession along the tenants, leaving it open to the landlord to sue for partition of his specific share property...... ” Ultimately, the Division Bench passed the following orders: “So far as respondents 1 and 2 are concerned, taking note of subsequent events, namely, their acquisition of a share in the building no order for eviction need be passed against 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.” 17. It should be noted that the division bench distinguished the ruling in D.Kuppuswami Chettiar’s case, (1965)1 M.L.J. 86 . 18. 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. Pillai and others, (1990)1 L.W. 548. After referring to the Rajeswari’s case, 97 L.W. 334, D.Kuppuswami Chettiar’s case, 77 L.W. 589, as well as the judgment of the Supreme in Jahuri Sah v. Dwarika Prasad Jhunjhun-wala, A.I.R 1967 S.C. 109: 1966 S.C.R 280: (1966)2 S.C.W.R. 184, the bench upheld the case of the plaintiff and confirmed preliminary decree for partition passed by the trial Court, negativing the plea defendant that he was entitled to the benefits of the Rent Control Act. 19. Thus, a catena of decisions referred to above have uniformly held that a co-owner said to have taken a lease from the estate including himself and the other co-owners, is tenant as defined by the Act. 20. Learned counsel for the respondent has placed reliance on the judgment of Lord Denning in Rye v. Rye, 1962 A.C. 496: (1962)1 All E.R. 146 That was a case of a partnership taking on lease a premises owned by the partners themselves in different shares. While partners had unequal shares in the business, they had equal shares in the premises. One of the questions 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. While partners had unequal shares in the business, they had equal shares in the premises. One of the questions 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, Denning held that the facts of the case made out a lease by the co-owners in favour of 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 Maxim “nemo potest ease tenens et dominus”. In Wharton’s Law Lexicon, the meaning of maxim is stated to be, “no one can be both tenant and lord” , the same is found Ramanatha Aiyar ’ s case Law Lexicon, Reprint Edition 1987 at page 867. In Woodfall Landlord and Tenant, 28th Edition, Volume I, the maxim is quoted at page 835 in paragraph 1876 and the case in Rye v. Rye, 1962 A.C. 496: (1962)1 All E.R. 146, is cited. 21. But, Lord Denning made a distinction with reference to leases granted by number persons in favour of one among them or a few among them. The passage on which 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 persons grant a tenancy by writing to one of themselves, as where A and B grant a tenancy to B; and B enters into covenants with A and B to repair, and so forth. tenancy is valid under Sec.72(4) because it is a” conveyance “and the covenants enforceable under Sec.82(1) just as if B had covenanted with A alone. Notice to quit 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 or two persons grant it to themselves (A and B let to A and B); and there are the express or implied covenants (A covenants with A; or, A and B jointly covenant with A jointly)? But what is the position when a person grants a tenancy by writing to himself (A lets or two persons grant it to themselves (A and B let to A and B); and there are the express or implied covenants (A covenants with A; or, A and B jointly covenant with A jointly)? Such a tenancy does not come within Sec.74(2); nor do the covenants come Sec.82(1); because both those sub-sections, as I read them, only apply where one persons, at any rate, is not on both sides. But in the tenancy we are now considering, persons are the same no both sides.” 22. It is argued that in the present case the lessors are on one side and only one them is on the other side as lessee. According to learned counsel, this would clearly within the exception pointed out by Lord Denning and there is a valid lease among owners. Though I have my reservation with regard to the distinction made by Lord between leases granted by a person in favour of himself and a lease by several persons favour of one among them or a few among them, it is not necessary for me to consider aspect of the matter in the present case. As pointed out already, the question confined to the position under the Tamil Nadu Buildings (Lease and Rent Control) Act. not necessary for me to travel outside the Act and decide the legal relationship of the under the Transfer of Property Act or under the common law. 23. A Division Bench of this Court followed the ruling in Rye v. Rye, (1962)1 All E.R. Mls. India Automobiles and Company and others v. Life Insurance Corporation of (1978)1 M.L.J. 178. In that case, the property was owned by seven co-owners. It was out to different persons. One portion of the property which was carved out of the totality 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 Automobiles. Later on, it became a firm with defendants 2 to 6 as partners therein not in dispute that the second defendant was in possession of the land even prior to the and he had erected superstructures of his own. At that time, he was the sole proprietor of Automobiles. Later on, it became a firm with defendants 2 to 6 as partners therein not in dispute that the second defendant was in possession of the land even prior to the and he had erected superstructures of his own. Under another lease deed, the same owners including the second defendant let out another piece of land together superstructure thereon to the second defendant. Seven years thereafter, all the co 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 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 conveyed in the document but also the superstructures on it which were in the occupation the defendants. It was not in dispute that after the Insurance Company purchased property, it recognised the defendants as their tenants of the respective portions occupation and were collecting rents from them. They had also given renewals of lease and at one stage draft lease deeds were prepared containing renewal Thus, the right of the defendants as tenants was recognised by the owner premises after the ownership was transferred from the co-owners to a stranger. That position for more than a decade. In fact, the bench observed, “more than a decade such consistent establishment of jural relationship of landlord and tenant as between Insurance Corporation of India and the defendants” . The owner filed an application of fair rent as regards the demised premises and also an application for contemporaneously. The case of the defendants was that the subject matter of the only a vacant site and the superstructure always belonged them and the Act would The Rent controller accepted the defence. On appeal, a finding was called for regarding ownership of the superstructure and ultimately, the Appellate Authority held superstructure belonged to the Corporation. The Appellate Authority fixed the fair rent buildings. Then the suit was filed by the Corporation for arrears of rent on the basis fair rent fixed. On appeal, a finding was called for regarding ownership of the superstructure and ultimately, the Appellate Authority held superstructure belonged to the Corporation. The Appellate Authority fixed the fair rent buildings. Then the suit was filed by the Corporation for arrears of rent on the basis fair rent fixed. It was contended by the defendants that at all material superstructure belonged to them and the order of the Rent Controller fixing fair rent and void as the subject-matter of the demise was not governed by the Act. Another filed by the defendants for a declaration that what was leased to them was only land and the superstructure belonged to them and they were entitled to the benefits Madras City Tenant ’ s Protection Act. The only question which came up for decision single Judge was whether the defendants, who were the appellants before the division were the owners of the superstructures. The bench observed, that was the only which arose before the bench also. The single Judge held against the defendants preferred the appeal before the bench. In the course of arguments, one of the raised was that there could be no lease among co-owners and the original leases by documents among the co-owners were unenforceable and void with the result was no transfer of interest either in favour of the second defendant in the first later in favour of the defendants. Reliance was placed on the decisions in Giriara Chandra Chowduri v. Sree Nath Pal Chowduri, 3 Cal L.J. 141, and Rye v. Rye, 1962 A.C. 496: All E.R. 146. The division bench distinguished the case in Rye v. Rye, (1962)1 All on the footing that it was a lease by two persons in favour of themselves. The division relied on the observations of Lord Denning which I have extracted already. The Bench held that the ruling in Giriara Chandra Pal Chowduri’s case, 3 Cal.LJ. 141, apply and it was distinguishable. The following passage in the judgment of the division is referred to by learned counsel or the respondent: “ On the basis of the rule in Rye v. Rye, (1962)1 AII E.R 146: 1962 A.C. 496, the Judge thought that Exs.P-1 and P-2 are unenforceable. 141, apply and it was distinguishable. The following passage in the judgment of the division is referred to by learned counsel or the respondent: “ On the basis of the rule in Rye v. Rye, (1962)1 AII E.R 146: 1962 A.C. 496, the Judge thought that Exs.P-1 and P-2 are unenforceable. But if we analyse the ratio decision, it is seen that if the parties to the document are not the same and if A the lessors and A is the lessee, such a lease is possible and the covenants therein enforceable. Even the decision in Giridara Chandra Pal Chowduri v. Sree Nath Pal 3 Cal L.J. 141, is distinguishable. That was a case where it was found that there relationship of landlord and tenant at all between the parties and in that context the recovery of rent by the so-called landlord was negatived. The principle laid down Denning in Rye v. Rye, (1962)1 All.E.R 146: 1962 A.C. 496, is accepted by well authors. In Hill and Reeman ’ s Law of Landlord and Tenant 15th Edition page 633, House of Lords case is quoted for the proposition that two or more persons can assign or more of themselves; but the number of assignees must be at least one less number of assignors. Woodfall on Landlord and Tenant, 27th Edition, page 61 refer Rye, 1962 A.C. 496: (1962)1 All E.R 146, as authority for the proposition that joint cannot grant a lease to themselves. We do not find any provision in the Transfer of Act or for the matter of that under the well-known principles in common law which joint owners of property from leasing out the same to one amongst themselves. therefore, that Exs.P-1 and P-2 are valid leases and the relationship between the and the corporation at all times was that of tenants and landlords. ” 24. I should point out that a member of the division bench which decided the above was Ramaprasada Rao, J. who was also party to the earlier bench in Ratnam v. Arunachalam Chettiar, 90 L.W. 633. The judgment in Ratnam’s case, 90 L.W. 633, was delivered 25.3.1977. The judgment in the above case was delivered on 17.6.1977, i.e., within 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. The judgment in Ratnam’s case, 90 L.W. 633, was delivered 25.3.1977. The judgment in the above case was delivered on 17.6.1977, i.e., within 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 was void or ineffective. On the admitted facts, the division bench itself pointed out that more than a decade the jural relationship of landlord and tenant had been admitted 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 observations on that question as it was argued before them. The observations of the division bench are clearly obiter dicta. 25. The matter was taken to the Supreme Court by the Life Insurance Corporation of (Vide Life Insurance Corporation of India v. M/s.Jndia Automobiles and Company and others, (1990)4 S.C.C. 286 . While confirming the judgment of the High Court, the Supreme referred to the judgment in Rye v. Rye, 1962 A.C. 896: (1962)1 All.E.R. 146, and affixed seal of approval. The relevant portion in the judgment of the Supreme Court reads thus: “11. so far as the first question is concerned, we have no doubt that the division bench of High Court has come to the correct conclusion. In our view, the conclusion of the learned single Judge that the lease Ex.P-1, executed by the co-owners of the properly in favour one of them, was invalid, was erroneous. Sec.5 of the Transfer of Property Act, 1882, clearly envisages transfers of properly of a person to” one or more living persons or to himself himself and one or more other living persons”. Whatever may be the position, in spite of provision, in respect of a purported transfer by a person to himself alone (which is very the position in the case of trusts) - which was considered by the House of Lords in Rye, (1962) 1 All.E.R. 146, there is no reason to hold that a contract between a person himself and others is invalid. The division bench, we think, has rightly distinguished decisions in Giridara Chandra Pal Chowduri v. Sree Nath Pal Chowduri, 3 Cal.L.J. 141, Rye v. Rye, 1962 A.C. 896: (1962)1 All.E.R. 146. The observations of Lord Denning extracted by the learned Judges, are quite apposite to the situation in the present case.” 26. It is argued that the judgment of the Supreme Court concludes the question. unable to agree. As pointed out already, on the facts of the case, the question did not 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. 27. In Rafiq v. State of U.P., (1980)4 S.C.C. 262 , it was argued that the case was covered by an earlier judgment of that court in Pratap Mishra v. State of Orissa, A.I.R. 1977 1307. That argument was rejected in the following words: “5. We do not agree. For one thing, Pratap Mishra’s case, A.I.R. 1977 S.C. 1307, laid down inflexible axiom of law on either point. The facts and circumstaces often vary from case, the crime situation and the myriad psychic factors, social conditions and people styles may fluctuate, and so, rules of prudence relevant in one fact-situation may be inept another. We cannot accept the argument that regardless of the specific circumstances crime and criminal milieu, some strands of probative reasoning which appealed to a bench one reported decision must mechanically be extended to other cases. Corroboration condition for judicial reliance on the testimony of a prosecutrix is not a matter of law, guidance of prudence under given circumstances. Indeed, from place to place, from age, from varying life styles and behavioral complexes, inferences from a given act of 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 precedential tyranny. The same observation holds good regarding the presence or absence injuries on the person of the aggressor or the aggressed.” 28. In Srinivasa General Traders and others v. State of Andhra Pradesh and others, (1983)4 S.C.C. 353 , 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. In Srinivasa General Traders and others v. State of Andhra Pradesh and others, (1983)4 S.C.C. 353 , 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, assumed to be proved, since the generality of the expressions which may be found there 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 certain observations to be found in the judgment in Kewal Krishan Puri case, A.I.R. 1980 1008, which were really not necessary for purposes of the decision and go beyond occasion and therefore they have no binding authority though they may have persuasive value." 29. In Deena v. Union of India, A.I.R. 1983 S.C. 1155: (1983)4 S.C.C. 645 , it was observed: ".....Any case, even a locus classicus, is an authority for what it decides. It is permissible extend the ratio of a decision to cases involving identical situations, factual and legal, care must be taken to see that this is not done mechanically, that is, without a examination of the rationale of the decision which is cited as a precedent. Human trained even in the strict discipline of law, is not averse to taking the easy course of on decisions which have become famous and applying their ratio to supposedly identical situations." In the same judgment it was again observed: "They apply mechanically the decisions under Art. 14 to cases arising under Art. 19 ignore the significant distinction between the nature of the rights conferred by the Articles and their purport and content." 30. Hence, the ruling in Life Insurance Corporation of India v. M/s.India Automobiles Company and others, (1990)4 S.C.C. 286 , shall be understood only in the context facts and cannot be tord out of it. 31. Learned counsel for the respondent relies upon the judgment of the Calcutta High in Hirendia Nath v. Shobendra Nath, A.I.R. 1970 Cal. 135. Hence, the ruling in Life Insurance Corporation of India v. M/s.India Automobiles Company and others, (1990)4 S.C.C. 286 , shall be understood only in the context facts and cannot be tord out of it. 31. Learned counsel for the respondent relies upon the judgment of the Calcutta High in Hirendia Nath v. Shobendra Nath, A.I.R. 1970 Cal. 135. It was held in that case 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 of such undivided share did not fall within the purview of the provisions of the said Act. bench held that a tenancy in respect of an undivided share could be created by a co favour of another co-sharer and in a suit for partition, the plaintiff would not be entitled get physical possession of the property, even after the final decree for partition. That is directly contrary to the ruling of this Court in D.Kuppuswami Chettair v. Balagurumurthi Chettiar, (1965)1 M.L.J. 86 , and Ratnam v. Arunachalam Chettiar, 90 633. Hence, no reliance can be placed on the same. 32. In P.Sundaresan and others v. P.Venkatesiah and others, (1948)2 M.L.J. 421 , by Horwill, J. that one of the members of the joint family, who agreed to hold a portion joint family house as tenant of the plaintiff in the suit was estopped under Sec.116 Evidence Act from denying the right of the plaintiff as long as he was in possession matter arose in the course of the execution proceedings and the decree referred to learned Judge was passed earlier in a Letter Patent Appeal by a division bench of this During the pendency of the execution proceedings, the Madras Buildings (Lease and Control) Act 15 of 1946 was enacted and it was contended that the decree ceased executable. The learned Judge held that the tenant was estopped from denying relationships of landlord and tenant and he would be a tenant within the meaning of the Ultimately, he allowed the appeal and remanded the matter for decision as to whether landlord was entitled to get possession in execution of the decree in spite of the provisions Sec.7 of Madras Act.15 of 1946. That judgment has no bearing on this case. 33. That judgment has no bearing on this case. 33. Learned counsel for the respondent placed reliance also on the following passage Jahuri Sah and others v. Dwarika Prasad Jhunjhunwala and others, A.I.R 1967 S.C. 1966 S.C.R. (Supp.) 280: (1966)2 S.C.W.R. 184, referred to earlier: "It is no doubt true that under the law every co-owner of undivided property is entitled enjoy the whole of the property and is not liable to pay compensation to the other co 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 in such a case and other. Co-owners are legally competent to come to any kind of arrangement for the enjoyment their undivided properly and are free to lay down any terms concerning the enjoyment properly. There is no principle of law which would exclude them from providing agreement that those of them as are in actual occupation and enjoyment of the shall pay to the other co-owners compensation." Learned counsel submits that the arrangement between the co-owners as evidenced four documents is enforceable and, therefore, the petitioner is no other than a tenant the respondent. I have already referred to the relevant passage in the same holding that there could be no relationship of landlord and tenant among co-owners passage now referred to by learned counsel for the respondent should be understood context. The Supreme Court had only held that an arrangement for payment compensation among the co-owners could be enforced. That question does not arise present proceeding as this is one for eviction under the provisions of the Act on the of wilful default and act of waste. 34. In the result, there can be no doubt whatever that the petition for eviction filed respondent under Sec.10(2)(i) and Sec.10(2)(iii) of the Act are not maintainable petitioner is not a ‘ tenant ’ within the meaning of the Act and the respondent is ‘landlord’ under the said Act; nor is the subject-matter of demise a ‘building’ as defined the Act. Hence, the civil revision petitions have to be allowed. 35. Hence, the civil revision petitions have to be allowed. 35. Even at the time of admission, learned counsel for the petitioner made a request withdrawing R.C.A. Nos.790 and 791 of 1990 from the file of the Appellate Authority Court and dispose of the same. He submitted that a decision in favour of the petitioner this Court would automatically bring the appeals before the Appellate Authority to an I had held that the relationship of parties was that of landlord and tenant, the appeals the Appellate Authority could have proceeded further. But, I have held that the Act apply and the petitions for eviction are themselves not maintainable. Hence, survives in the appeals before the Appellate Authority to be decided by him. Interests justice require that all the questions raised in the said appeals are decided in this itself. 36. Counsel for the respondent expressed their consent to my deciding those questions The Rent Controller has held that the petitioner is guilty of wilful default in payment He has rejected the case of the respondent that the petitioner has committed acts of 37. There is no evidence whatever to support the allegation of waste. Hence, the finding the Rent Controller is upheld. 38. 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 by adjustment in books and there was no need for actual payment. Admittedly adhered to for over four years and thereafter payments were being made by the which were deposited in the common account. According to the petitioner in April, 1987, brother wrote to the United Commercial Bank in which common funds were deposited prevented the petitioner from drawing any money from the common account. According the respondent debts were due to creditors of the estate and sufficient funds were available in the share of the petitioner. It is admitted that the creditors were the members of the family. According the respondent debts were due to creditors of the estate and sufficient funds were available in the share of the petitioner. It is admitted that the creditors were the members of the family. So long as there is no division and the account is a common respondent cannot say that the petitioner is entitled only to a particular portion Even assuming that the petitioner is attempting to overdraw from the account in excess what will be due to his share in the event of a division and that the respondent is entitled prevent him from so overdrawing, the consequential failure to the pay rent by the will not in law be ‘wilful default’. 39. There was no arrangement in 1983 changing the one agreed to in 1979. In practice, petitioner started paying rent from his own funds and it was being accepted respondent. That would not prevent the petitioner from reverting to the arrangement 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. 40. The petitioner being a co-owner admittedly entitled to a share in the common funds 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 it is not open to some of them to earmark or set apart portions of the funds for specific purposes. 41. 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. S.Sundaram v. V.R.Pattabhiraman, A.I.R. 1985 S.C. 582, the Supreme Court has held that default in order to be wilful must be intentional, deliberate, calculated and conscious with knowledge of legal consequence flowing therefrom. In the present case, none of elements is present. 42. The finding of the Rent Controller on the question of wilful default is unsustainable deserves to be set aside. 43. In the present case, none of elements is present. 42. The finding of the Rent Controller on the question of wilful default is unsustainable deserves to be set aside. 43. Hence, in exercise of the plenary powers of this Court as well as the powers under Art.227, Constitution of India, I set aside the orders of eviction passed by the Controller. I dismiss the petitions for eviction. 44. In the result, the civil revision petitions are allowed. The order of the Appellate Authority (VIIth Judge, Court of Small Causes, Madras) in M.P.Nos.811 and 812 of 1990 are set and the said petitions are dismiss. R.C. A. Nos.790and 791 of 1990 on the file of the Judge, Court of Small Causes are allowed and R.C.O.P. Nos.273 and 274 of 1988 on the of the XIth Judge, Court of Small Causes are dismissed. The parlies will bear their respective costs throughout. Petition allowed.