Gangadhar Rao Kher vs Ganesh Prasad and another

A.P. Sen, J.

This judgment disposes of Second Appeal Nos. 679 1964, 680 of 1964. 681 of 1964, 682 of 1964, 683 of 1964, 684 of 1964, 456 of 1965 and 38 of 1966, which have been heard together.

These eight appeals arise in the following circumstances. Eight different tenements were let out jointly by two brothers, Gangadhar Rao and Narayan Rao, to 8 different tenan''s. The tenants have all admittedly made, full payment of rents due for the period in question to Gangadhar and now his brother Narayan Rao has brought these eight separate suits for recovery of his share of rent, impleading the tenants and Gangadhar Rao as Defendants. The attitude of the tenants was that by payment to Gangadhar Rao, they stand discharged of their liability. Gangadhar Rao, the Defendant No. 2 in all the suits, pleaded that the suits as framed were not maintainable, and further that unless there was a partition, the rents could not be apportioned between the two brothers. On these facts, the Courts below have both decreed the suit against the Defendant No. 2, Gangadhar Rao and he now appeals. The suits were, however, dismissed against the tenants by the first Court and that part of the decree has now become final.

The sole question for consideration in these appeals is, whether a suit by a co-lessor for his share of rents against another co-lessor is maintainable

Certain principles may now be taken as well settled. Firstly, payment of rent to one of the several joint-lessors is a payment to all. Secondly, the joint lessors may sue together, or any one of them may sue alone ; for the lease by lessors who are joint tenants of a property operates as a lease by each and by all. Thirdly, if the lessors are tenants-in common, the lessee should pay rent on a joint receipt to all or to one who is authorised by others. Payment to one co-sharer landlord is not a discharge against all (See, Mulla''s Transfer of Property Act, 5th Edition, p. 707).

In Raja Promoda Nath Roy v. Baja Ramani Kanta Roy, (1907) L R 35 I A 73 their Lordships of the Privy Council held that share-holders in a zamindari may sue individually for the whole rent by making his co-sharers Defendants ; but, one co-sharer cannot sue separately for his share of the rent, unless there is an agreement that the lessee shall pay each his share separately. This dictum was reiterated by their Lordships in Roy Jotindra Nath v. Prasanna Kumar (1910) L R 38 I A I by stating that under the general law, one joint-landlord may bring a suit for arrears of rent, making the other joint landlords Defendants. Their Lordships indicated the reason underlying, namely, rent in arrear is a debt.

The liability of a tenant to pay rent is founded on privity of estate That is why a joint owner is not entitled to sue for proportionate rent unless there is such an arrangement. In Baraboni Coal Concern v. Shree Sree Gopinath Jiu, (1933) L R 61 I A 35 their Lordships held that one of the Shebaits of a family deity, cannot sue for his share of royalties, stating:

The lease discloses one demise. No one of the lessors, with or without the consent of his co-lessors, can sue for an aliquot part of the whole. The suit must be for the whole of the interest demised, else it fails.

The view, their Lordships state, accords with common sense and equity as otherwise each one of the lessors under the lease, might, successively or simultaneously, harass the lessees with separate suits.

These consideration, however, do not come into play between co-lessors inter se, i. e., when one co-lessor appropriates the whole of the rent to the exclusion of the other. There is no reason why the excluded co-sharer should not have the remedy by a suit for his share of rents Each joint lessor is in a fiduciary position in relation to the other in the matter of collections and disbursement. The right of the joine lessor to be reimbursed by his Joint lessor does not arise out of any Contract, express or implied, but is founded on principles of enquity and justice.

The decision of the Privy Council in Watson and Co. v. Ram Chand Dutt, (1890) L R 17 I A 110 is an authority for the proposition for this that the mere fact the one of several co-sharers holds possession of a part of the joint land to the exclusion of the other share holders, but without any denial of their title, is not in itself sufficent to justify a decree in favour of the other co-sharers for joint possession from injunction restraining the cultivation of the land, but that those co-sharers may be entitled to compensation" for the exclusive use of the land In Ram Shanker Bhaduri v. Juanada Sundari Debyap 5 Cal. L J 267 it was held that where one co sharer appropriates to himself profits in the shape of rents, such co-sharer must "compensate" his other co-sharers for the loss of their share of the rents. 9. Shri R. P. Jain, learned Counsel for the Appellant questions the correctness of the decision of Khan J., in Hiralal Neksi and Another Vs. Agarchand Gorelal and Another, and says that the observation of the learned Judge were obiter. It is true the question did not directly arise, but the observations made by him are entitled to weight when he rightly indicates on sound equitable principles that the aggrieved co-owner has a remedy to bring a suit for the recovery of his share of the rents against the other co-owner who may have appropriated the profits in the shape of rents, to himself. That view accords with reason.

The learned Counsel apart from relying on the three Privy Council decisions cited by me, invites my attention to Chandra Kishore v. Bisseshwar (1928) L R 55 Cal. 396 Deva Venkatakrishna v. Govindraja A I R 1953 Mad. 854 and Narul Huda v. Mohd Ibrahim 1952 NLJ 574: AIR 1953 Nag. 25 but these are authorities for the view that a joint owner is not entitled as such to directly sue the tenants for proportionate rent in the absence of an agreement, which is in ho Way in conflict with the principles that I have endeavoured to state. These were all suits against tenants and, therefore, a different set of principles came into consideration whereas, in these appeals I am concerned with a dispute between co-lessors inter se.

On the question of maintainability of a suit by a co-sharer for his share of rents, Shri B. C. Verma, learned Counsel for the second Respondent draws my attention to Murlidhar v. Ishri Prsad (1884) I L R 6 All. 576 and Joti Bhushan Gupta Vs. B.N. Sarkar through S.N. Mittra, Manager, In the first case, one of the two joint-lessors brought a suit for his separate share of rent alleging that the share due to the other co-sharer had already been paid and it was held by the Allahabad High Court that such a suit was not affected by the principle that one of several co-lessors cannot maintain a separate suit for his share of the rents due from the lessee. This view was re-affirmed by that Court in the later case, by laying down, that there was nothing in law to prevent such a suit.

The general rule upon which the learned Counsel for the Appellant relies has no application to the facts of the present case. A joint-lessor who acts in breach of his fiduciary obligation, cannot be permitted to profit by his own wrong, to the detriment of the other jointlessor, Whose interest it was his duty to protect. The contention against the frame of the suit must, accordingly, be rejected and I would hold that a suit by a co-lessor for his share of profits against another co-lessor is maintainable, and he cannot be driven to a suit for partition.

Lastly, learned Counsel for the Appellants contends that on equitable grounds no decree should be passed in these suits. According to him, the rights between the brothers inter se can only be worked out in the suit for partition which has now been instituted by Narayan Rao. My attention is invited to the admission of Narayan Rao (P. W. 1) that he has also been recovering rent from other tenants. The learned Counsel relies upon the decision in Brijlal and Another Vs. Dau Mohanlal, for his submission that their rights have to be determined on equitable considerations.

Their Lordships in Brijlal v. Dau Mohanlal (supra) were concerned with the question whether a co-sharer who had more than his share of waste land under his own exclusive cultivation, was or was not entitled to be placed in joint possession of other waste lands brought under cultivation by other co-sharers who had spent time and money in reclaiming such lands. Their Lordships said that it would be inequitable to do so, after indicating that each case will have to be determined on it''s own facts. Since equitable considerations are the sole criteria, the granting of relief to the Plaintiff in these suits, would be desirable from all points of view. The ascertainment of liability of Gangadhar Rao, will facilitate adjustment of equities between the two brothers. Gangadhar Rao will then be entitled to claim that an adjustment in respect of a definite ascertained sum of money be given, when there is an ultimate taking of accounts, in the suit for partition which is now pending.

The result is that the appeal fails and is dismissed with costs. Counsel''s fee Rs. 50, if certified.