Ammukutty vs Murugan

K. Sadasivan, J.—The question in this Civil Revision Petition is whether the heirs of a landlord who was not a small holder, could claim resumption on the allegation that on partition of the deceased''s estate they have obtained small bits making them small holders. The property belonged originally to one Ramakrishnan. He was possessed in all, of more than 5 acres of dry land. He died leaving his widow and two sons Narayanan and Gopalakrishnan. Narayanan also died subsequently, leaving his widow and son. The widow of Ramakrishnan, the widow and son of Narayanan and Gopalakrishnan tiie surviving son of Ramakrishnan, all applied u/s 15 read with Section 22 of Act 1 of 1964 for resumption of an extent of 20 cents in each case for the purpose of constructing the buildings thereon for their residence. The petitions are O. A. Nos. 384 of 1965 by Gopalakrishnan; 226 of 1965 by the widow of Ramakrishnan and 401 of 1965 by the widow and son and of Narayanan. All these petitions were resisted by the tenant on the ground that the estate must be presumed to continue as a single unit In spite of the death of the original landlord. The learned tribunal dismissed O. A. 384 and 401 holding that the petitioners therein are not small holders. O. A. 226 of 1965 preferred by the widow of Ramakrishnan was however, allowed and the 20 cents claimed by her was directed to be separated and given over to her. On appeal, the learned appellate authority reversed that decision and ordered the dismissal of O. A. 226 of 1965 also. It is against that judgment of the appellate authority that this revision has been preferred.

I think, the view taken by the learned appellate authority is the correct one. Petitioner in O. A. 226 of 1965 cannot be treated as a landlord for purpose of Section 15 of the Act. He is only the holder of a fractional share in the right of the landlord namely, Ramakrishnan. The position is that there is only one holding in the case and right of resumption can be exercised only once. All the legal representatives of deceased Ramakrishnan can join together and exercise their right of resumption rather than preferring separate applications on the ground that they are entitled only to fractional shares and in that view, they should be treated as small holders. Gopalakrishnan and Narayanan were admittedly possessed of more than 2 acres each of dry land. The land possessed by the petitioners in O. A. Nos. 384 of 1965 and 401 of 1965, therefore, must also be considered in deciding the question whether the petitioner in O. A. No. 226 off 1965 is possessed of land in excess of 2 acres. In other words, the dry land possessed by all the three petitioners should be pooled together and considered as to whether the petitioners would come under the category of ''small holders''. They can only be treated as co-owners and it is settled law that

"one co-sharer cannot even with the consent of his co-sharers maintain a suit by himself and in his own name to elect a tenant". (See Balakrishna v. Moro ILR (1896) 21 Bom 154 at p. 158).

The learned Judges held in that case:--

"Co-owners may agree that their property shall be managed and legal proceedings conducted by some or one of their number, but they cannot invest such person or persons with a competency to sue in his own name on their behalf, or, if sued, to represent them..... It Is plain that the right of a plaintiff to assume the character of manager, and to sue in that character, raises a question of fact and law which varies as the other members of the family are minors or adults, whose assent is usually required in important matters, and we think, therefore, that the defendant is always entitled, when the obiection is taken at an early stage, to have the other members of the family, when they are known, placed on the record to insure him against the possibility of the plaintiff''s acting without authority. To the same effect are the decisions of the Calcutta and Allahabad High Courts. (See Ramdoyal v. Junmenioy. ILR (1887) Cal 791 at p. 794; Dwarka Nath Mitter v. Tara Prosunna Roy. ILR (1890) Cal 160 at p. 162; Kandhiya Lal v. Chandar ILR (1885) All 313 and Imam-ud-din v. Lila-dhar. ILR (1892) All 524 .

The Madras High Court held in K. P. Kanna Pisharody v. V. M. Narayanan Somayajipad ILR (1881) Mad 234 that:

"all co-owners must join in a suit to recover property unless the law otherwise provides; they mav agree that property shall be managed and suits con- ducted by some or one of them, but they cannot invest such person or persons with a right to sue in his own name on their behalf, although, perhaps, a tenant might be estopped from denying the title of his lessor in such case".

TO the same effect, is the decision of the Bombay High Court in Vagha Jesing Vs. Manilal Bhogilal Desai, wherein it was held that:

"where the landlord''s rights belong jointly to several persons, a suit to eject tenant can only be brought by all the co- owners".

It is thus clear that the separate petitions by the various co-sharers for resumption cannot lie in the circumstances of the present case. Law would presume that the petitioner in O. A. 226 of 1965 possesses an undivided interest in every item of property left by Ramakrishnan; so also the other two petitioners. It would be unfair and patently against the spirit of the Act to hold that a co-sharer in such circumstances, can maintain a petition for resumption. The legislative intent is it self to confer benefits on tenants, and being an ameliorative measure, the section should liberally be interpreted so as to help the tenant who is intended to be benefited by the measure.

I therefore, confirm the order of the learned appellate authority, and dismiss this petition.