Jayachandra Nadar v. Malathi — 1999 DIGILAW 581 (KER)

Judgment :- PK. Balasubramanyan, J. This appeal is against a final decree for partition. It is filed by defendant No. 26 in the suit. Defendant No. 26 was originally a tenant of building situate in the decree schedule property. Thereafter he acquired an assignment of the rights of one of the co-owners of the property. Thus in addition to the leasehold he acquired a fraction of the reversion. The suit was filed for partition thereafter. The plaintiff claimed allotment of one out of eighteen shares. Defendant No. 26 filed a written, statement contending that he had purchased the share of defendant No. 9 for consideration and that therefore he was a co-owner of the property. The plaintiff was not entitled to the entire rent of the building. There were nineteen shares in the family including the deceased member and the plaintiff was entitled to only one out of nineteen shares. Defendant No. 9, his assignor was entitled to one out of nineteen shares and the other deceased member was entitled to one out of five shares in one out of nineteen shares. Defendant No. 26, as assignee of defendant No. 9 was entitled to six out of ninety five shares. Defendant No. 26 prayed fro allotment of the said six out of ninety five shares to him along with the house situate in the plaint schedule property wherein defendant No. 26 was residing and conducting his trade. The trial court raised the issue as to what were the correct shares to which the parties were entitled, who were entitled to and who were liable for mense profits and what was its quantum and to what equity if any the parties were entitled to. The court found that since the plaintiff and defendants 2 to 8 and 10 to 25 have claimed allotment of their shares in the property in a group, what was called for was only the separation of six out of ninety five shares due to defendant No. 26 and the same alone needed to be allotted separately. Since the plaintiff and the other defendants gave up their claim for mesne profits, no decree for profits was passed. While answering the issue relating to equity, the Court dealt with the claim of defendant No. 26 that he was residing in the house and was conducting his trade therein and hence he was entitled to be allotted the building. Since the plaintiff and the other defendants gave up their claim for mesne profits, no decree for profits was passed. While answering the issue relating to equity, the Court dealt with the claim of defendant No. 26 that he was residing in the house and was conducting his trade therein and hence he was entitled to be allotted the building. After referring to the opposition from the other sharers, the Court directed that the feasibility of the claim for allotment of the house situated in the plaint B schedule property to defendant No. 26 was to be considered at the time of the passing of the final decree. 2. The plaintiff applied for the passing of a final decree. A commission was taken out. The commissioner proposed a division of the property. Objections were taken. The report of the Commissioner was set aside. Thereafter the plaintiff and the other defendants made an application under S.4 of the Partition Act as I.A. 2788 of 1988 submitting that they are willing and entitled to purchase the share of defendant No. 26 in the property. This application was opposed by defendant No. 26. The Court considered that application and passed an order on 14.3.1989 holding that since all the sharers other than defendant No. 26 wanted the building to be allotted to them together, no separate sale of the property was necessary and it was only proper to direct the commissioner to allot the building to the plaintiff and defendants 1 to 8 and 10 to 25 towards their 89 out of 95 shares and give the land to defendant No. 26. It is thereafter that the commissioner proposed the subsequent allotment which is now accepted by the Court passing the final decree and by the learned Single Judge. 3. It is seen that defendant No. 26 did not challenge the order in I.A. 2788 of 1988 then and there. A contention was urged on behalf of the plaintiff and other supporting defendants that defendant No. 26 having failed to challenge the order in I. A. 2788 of 1988 at the appropriate time was not now entitled to question the allotment of the building to the share of the plaintiff and the other defendants. A contention was urged on behalf of the plaintiff and other supporting defendants that defendant No. 26 having failed to challenge the order in I. A. 2788 of 1988 at the appropriate time was not now entitled to question the allotment of the building to the share of the plaintiff and the other defendants. It was submitted that the order on an application under S.4 of the Partition Act was appealable in terms of S.8 of that Act and defendant No. 26 ought to have filed an appeal against that order which operated as a decree. Alternatively it was contended that at this distance of time the Court should not disturb the allotment made by the commissioner on the basis of that order which had become final as regards the court which made it and the commissioner was appointed to propose a division of the property on the basis of that order. These submissions are sought to be met by counsel for defendant No. 26 by pointing out that a litigant was not bound to appeal against every order made during the course of the final decree and the order could be challenged in the appeal against the final decree which is ultimately passed. Counsel also submitted that this was not a case where it could strictly be said that the order was one under S.8 of the Partition Act and appealable as such since the trial court had not ordered assignment of the share of defendant No. 26 to the plaintiff and the other supporting defendants. 4. We do not think that we need to rest our decision in this case on the question whether defendant No. 26 is precluded from questioning the order in I.A. 2788 of 1988 dated 14.3.1989 in this appeal against the final decree. But we find that it will not be just or proper to permit defendant No. 26 to go back upon the said order at this letters patent stage. It is seen that even though some grounds were raised before the learned Single Judge relating to the order in I.A. 2788 of 1988, no such contention was urged before the learned Single Judge based on a challenge to the order made on that application by the Court which passed the final decree. It is seen that even though some grounds were raised before the learned Single Judge relating to the order in I.A. 2788 of 1988, no such contention was urged before the learned Single Judge based on a challenge to the order made on that application by the Court which passed the final decree. Moreover, we find from the preliminary decree passed in the case that what was left open to be decided in the final decree was the question of allotment of that house or building to the share of defendant No. 26 as claimed by him in equity during the stage of the preliminary decree and hence what was relevant for the court which is to pass the final decree was to consider whether the building could be allotted to the share of defendant No. 26. We are therefore of the view that on the facts and in the circumstances of this case it is not open to defendant No. 26 to raise a claim that he is entitled to question the direction of the Court to allot the building to the share of the plaintiff and the other defendants on the basis of the order in I.A. 2788 of 1988. But of course, it is open to defendant No. 26 to point out that in equity the building ought to be allotted towards his 6 out of 95 shares. We see that considering the nature of the property, it will not be equitable to allot the building in which the family was originally residing to an assignee of a fractional share from one of co-owners and that too a small fraction, when compared to the others sharers who have together sought an allotment of the house towards their share. We find that the original sharers together have a better claim for allotment of the house in which the family was originally residing as against the assignee from one of the co-owners of a fractional interest and that too not a significant fraction. We are therefore not inclined to disturb the allotment of the building in the property to the share of the plaintiff and the other defendants other than defendant No. 26. We see no reason to go behind the allotment made by the Court which passed the final decree which was affirmed by the learned Single Judge. 5. We are therefore not inclined to disturb the allotment of the building in the property to the share of the plaintiff and the other defendants other than defendant No. 26. We see no reason to go behind the allotment made by the Court which passed the final decree which was affirmed by the learned Single Judge. 5. Learned counsel for defendant No. 26 then contended that the plot now allotted to defendant No. 26 had already been sold by the sharers to a stranger and hence the allotment has to be altered and a fresh allotment ordered. It is pointed out on behalf of the plaintiff and the others that the legitimate share due to defendant No. 26 was only about 2.5 cents and what has now been allotted to defendant No. 26 was 5 cents and the said allotment having been accepted by the trial court and by the learned Single Judge, there was no justification in interfering with that allotment. 6. On behalf of defendant No. 26, C.M.P. No. 1346 of 1999 was filed on 25.2.1999 in this appeal invoking O.XLI R. 27 of the Code and producing registration copy of a document dated 10.1.1977 purporting to be an assignment by some of the sharers (according to defendant No. 26) in favour of a stranger. What is seen from the document is that it was a sale of jenm right in favour of a firm City Tyres by its partners. In the affidavit in support of the petition no acceptable grounds are put forward for reception of additional evidence under O. XLI R.27 of the Code at this stage of appeal from the appellate judgment of this Court. No reasons are given for non-production of this document in the trial court. A fresh enquiry will have to be made if this document were to be accepted in evidence for the first time at this stage. The suit is of the year 1979 and the preliminary decree for partition in this case was passed as early as on 27.1.1982. We are not satisfied that it will be just or proper to accept the fresh document in evidence in exercise of power under O. XLI R.27 of the Code at this stage. The suit is of the year 1979 and the preliminary decree for partition in this case was passed as early as on 27.1.1982. We are not satisfied that it will be just or proper to accept the fresh document in evidence in exercise of power under O. XLI R.27 of the Code at this stage. We also find that the document sought to be produced cannot by itself lead to any conclusion on this question and is not conclusive on the matters in controversy. We therefore do not think that the acceptance of the additional document in evidence would enable this Court to render a judgment more satisfactory to its conscience. Thus, we find no reason to allow C.M.P 1346 of 1999. 7. We thus find no merit in the contention that the allotment now made is inequitable or is liable to be interfered with. 8. Learned counsel for defendant No. 26 finally contended that even if the final decree were to be executed, the rights of defendant No. 26 as a tenant of the building would survive and he could be evicted only in terms of the Kerala Buildings (Lease and Rent Control) Act. Counsel pointed out that defendant No. 26 was a tenant of the building originally. Then he took an assignment of the share of one of the sharers in the reversion. Since he acquired only a fraction of the reversion, the tenancy in favour of defendant No. 26 would continue to survive. If there is no extinguishment of the tenancy by the assignment of the reversion taken by defendant No. 26, it is submitted that the status of defendant No. 26 as a tenant will continue and since the building is situate in an area to which the Kerala Buildings (Lease and Rent Control) Act stands extended, defendant No. 26 could not be evicted in execution of the decree. This is countered by counsel for the plaintiff and others by pointing out that no such claim was raised either before the trial court or before the learned Single Judge and such a contention cannot be permitted to be raised at this distance of time. This is countered by counsel for the plaintiff and others by pointing out that no such claim was raised either before the trial court or before the learned Single Judge and such a contention cannot be permitted to be raised at this distance of time. He also submitted that defendant No. 26 having become a co-owner of the property, it is not open to him to contend that the tenancy over the building which existed in his favour would continue, or survive his acquiring the status of a co-owner. 9. We find on an examination of the records of the case that at the stage of the preliminary decree the specific contention raised by defendant No. 26 was that he had become a co-owner of the property and hence the building must be allotted to his share since he was in occupation of it. No contention was raised by defendant No. 26 that notwithstanding the acquisition by him of the rights of one of the co-owners over the building, his pre-existing tenancy would survive and that right should be recognized and preserved while directing a division of the property. Before the trial Court, at the preliminary decree stage, the prayer was for an allotment of the building to defendant No. 26 on equitable grounds. What was reserved for consideration by the preliminary decree was only the claim of defendant No. 26 for an allotment of the building towards his share as a co-owner. This is the relevant provision in that preliminary decree. "That the question of allotment of the house in favour of the 26th defendant as claimed by him be considered in the final decree proceedings." The trial court found that it would not be equitable to allot the building to the share of defendant No. 26. The question whether the tenancy would survive the allotment of the building to the other sharers was not put forward before the trial court and was not considered by that Court. Though some grounds were raised in the Memorandum of First Appeal filed in this Court, no such contention was raised before the learned Single Judge and no such aspect is dealt with in the judgment under appeal. In a sense, this contention is sought to be projected for the first time before us at the stage of further appeal before the Division Bench. 10. In a sense, this contention is sought to be projected for the first time before us at the stage of further appeal before the Division Bench. 10. The aspects that would require to be considered are, what would be the effect of the preliminary decree passed in the case, what would be the effect of the order on the application made under S.4 of the Partition Act by the plaintiff and the other defendants and whether the tenancy over the building in favour of defendant No. 26 would continue to survive inspite of his acquiring the rights of a co-owner over the building. On the first aspect, we have already adverted to the nature of the plea raised by defendant No. 26 at the stage prior to the passing of the preliminary decree and the claim regarding the building directed to be considered by the Court dealing with the application for final decree, contained in the preliminary decree. The only claim that has been directed to be considered or reserved for consideration at the stage of the final decree is the claim for allotment of the building made by defendant No. 26 in his capacity as an assignee from a co-sharer. We are inclined to the view that in the nature of the contentions raised by defendant No. 26 and the nature of the preliminary decree passed, it is not open to defendant No. 26 to raise such a contention at this stage. 11. We are also inclined to the view that the order on the application made under S.4 of the Partition Act by the plaintiff and the other defendants also would preclude defendant No. 26 from putting forward this plea at this stage. That was a claim by the plaintiff and the other defendants for purchase of the rights of defendant No. 26 in the dwelling house which belonged to the family. The fact that the members of the family were on the date of the suit or at the time of letting out the building to defendant No. 26, away from the family dwelling house to eke out their livelihood could not make the building anything other than the family dwelling house. The prayer in the application under S.4 of the Partition Act was therefore rightly found to be sustainable by the trial court. The prayer in the application under S.4 of the Partition Act was therefore rightly found to be sustainable by the trial court. But that court, especially in the context of the claim of defendant No. 26 that the building should be allotted to his share and the question being left open to be decided by the preliminary decree, took the view that defendant No. 26 need not be compelled to sell his share as a whole to the plaintiff and the other defendants but that the issuance of an equitable direction to allot the building to the plaintiff and the other sharers should be sufficient under the circumstances. It may be open to us in this appeal to consider the correctness of the order of the trial court in the application made under S.4 of the Partition Act. But on the facts and in the circumstances of the case and taking note of the minor fraction of shares to which defendant No. 26 is entitled to, we are not inclined to disturb the direction of the trial court that the building be allotted to the share of the plaintiff and the other supporting defendants. Once that order has thus attained finality, it is clear that defendant No. 26 is bound by that order and cannot now resurrect a plea that his tenancy must be held to survive the allotment of the building to the other sharers. In our view, defendant No. 26 might and ought to have put forward this claim even before the passing of the preliminary decree or atleast at the time when the Court passed the order on the application under S.4 of the Partition Act. 12. We will now consider the claim of defendant No. 26 in that regard on merits. Learned counsel for defendant No. 26 mainly relied on the decision in Badri Narain, v. Rameshwar Dayal (AIR 1951 SC 186) in support of his contention that there will be no extinguishment of the lease if the lessee purchases only part of the lessor's interest. That was a case where one of the several lessees purchased only part of the lessor's interest. That was a case where one of the several lessees purchased only part of the lessor's interest. The Supreme Court held that mere purchase by one of the several joint holders of the leasehold interest of portions of lessor's interest cannot bring about an extinction of the lease or break its integrity since there was no coalescence of the interest of the lessor and the lessee in the whole of the estate. But Their Lordships also indicated that if the lessor purchases the lessee's interest, the lease is extinguished. What we have here is a case where the lessee of the whole had acquired a fraction of the rights of the lessor in the subject matter of the lease. In Sri. Ram Pasricha v. Jagannath (AIR 1976 SC 2335) the Supreme Court after postulating that every co-owner is an owner, pointed out that he owns every part of the composite property along with others and it could not be said that he was only a part owner or a fractional owner of the property. This principle has subsequently been followed in the number of decisions of the Supreme Court as well as of this Court. It is therefore clear that when he acquired a fraction of the interest in the landlord's right over the property, defendant No. 26 became an owner of the whole with the other co-owners and in the context of that position, it may not be possible to hold that the leasehold interest in his favour would survive his purchase of the fractional interest of the landlord over the building. In the decision in Abdul A lint v. Sheikh Jamal Ansari ((1998) 9 SCC 683) the Supreme Court has held that once a sitting tenant of a building had acquired the rights of one of the co-owner landlords in the building, the other co-owner landlord could not maintain an application under the Uttar Pradesh Urban Buildings (Regulation of Letting Rent and Eviction) Act. That was a case where the tenant had acquired the rights of one of the co-owners in the building and the co-owner had sought the surrender of the tenancy by applying under S.21 of the Act. The tenant contended that he having become a co-owner, the application under S.21 of the Rent Act was not maintainable on the basis that he continued to be a tenant of the building. The tenant contended that he having become a co-owner, the application under S.21 of the Rent Act was not maintainable on the basis that he continued to be a tenant of the building. The trial court and the appellate court upheld that plea of the former tenant. But the High Court took the view that the application for his eviction under S.21 of the Rent Act would be maintainable since his character as tenant would continue notwithstanding his acquisition of the right of one of the co-owners in the building. The Supreme Court reversed the High Court and held that the tenant having meanwhile acquired co-ownership rights in the demised premises, it brought about a change in his status and his status was changed from that of a tenant to that of being a co-owner of the unpartitioned property. That position would lead to the irresistable conclusion that the application under the Rent Act for release of the tenancy was not maintainable. It appears to us that this decision clearly indicates that on acquiring the fractional rights of the land owner, the status of defendant No. 26 would change. 13. The decision in Jagdish Dutt v. Dharam Pal ((1999) 3 SCC 644) was a case where a joint Hindu family had obtained a decree in ejectment of the tenant. Pending execution of that decree, the judgment debtor-tenant acquired the rights of one of the coparceners. The question was whether the decree in ejectment could be executed notwithstanding such purchase by the judgment debtor. The Supreme Court held that the members of the joint family constituted joint decree holders and since the joint decree holders could seek execution only of the whole and not of part of the property, the judgment debtor who had acquired the rights of one of the co-sharers could not be dispossessed in execution till the rights of parties are appropriately ascertained by a decree in a partition suit. This decision also in our view supports the position that the tenancy of defendant No. 26 over the building cannot survive his purchase of the fractional interest in the reversion. 14. This decision also in our view supports the position that the tenancy of defendant No. 26 over the building cannot survive his purchase of the fractional interest in the reversion. 14. The question that fell for decision in Krishna Kishore Firm v. Government of A.P. (AIR 1990 SC 2292) was whether the acquisition of interest of one of the co-owners by a lessee in possession of the premises before the expiry of the lease would make the possession of the lessee unlawful and whether he is entitled to make an application for renewal of the licence. The Supreme Court observed that the lessee might not have become the co-owner but he could certainly claim that he was in lawful possession and his application for renewal of a licence had to be considered treating him to be in lawful possession. With respect, the question of the effect of the purchase of the interest of the landlord and whether that would bring about an in Nemi Chand v. Onkar Lai (AIR 1991 SC 2046) may not also help defendant No. 26 since what was held in that case was that there would be no merger of the lease if the same is followed by a mortgage taken by the lessee. The question arising for decision here was not considered in that case. 15. In Huchappa Y. Radder v. Ningappa B. Talawar (1993 Supp (3) SCC 651) the question was whether a revision could be partitioned in respect of tenanted land subject to a State law against fragmentation of holdings. It was held that a decree for partition could have been granted in respect of such tenanted lands only if the same was permissible in law. It was also held that for a merger to take place under Ss.11 l(d) of the Transfer of Property Act the interest of the lessee and that of the lessor in the whole of the property had to vest at the same time in one person in the same right. That was a case where the protection of the Karnataka Land Reforms Act was available to the tenant and the tenant had not acquired the interest of the lessor in the whole of the property and it was held that the rights of the tenant for protection under the Act would continue. That was a case where the protection of the Karnataka Land Reforms Act was available to the tenant and the tenant had not acquired the interest of the lessor in the whole of the property and it was held that the rights of the tenant for protection under the Act would continue. How far the principle of the said decision would apply to the case of a building tenant who has merely a right to be protected against eviction unless the conditions under that statute are satisfied is an aspect which may have to be considered especially in the light of the decisions of the Supreme Court referred to earlier. In this case, we are inclined to think that the decision in Abdul Alim v. Sheik Jamal Ansari ((1998) 9 SCC 683) directly covers the question and we would be justified in following that decision since what is involved here is the house and the tenancy sought to be projected is regarding the house. We feel that we are also justified in adopting that course in view of the ratio of the latest decision in Jagdish Dutt v. Dharam Pal ((1999) 3 SCC 644). On the merits also, we are inclined to the view that defendant No. 26 cannot put forward the claim that he continues to be a building tenant protected by the Kerala Buildings (Lease and Rent Control) Act and notwithstanding the final decree for partition allotting the building to the other sharers he could continue as a tenant of the building. 16. Thus for all the three reasons stated above, we hold that survival of tenancy over the building cannot be put forward by defendant No. 26 in view of the final decree for partition passed in this case. Thus, we find no reason to interfere with the decision of the learned Single Judge. We confirm the same and dismiss this appeal. In the circumstances of the case, we direct the parties to suffer their respective costs.