K.M.S.K. Rabindranath (Died) vs S. Bakyam Pillai

V. Ramaswami, J.—The legal representatives of one Rabindranath who was, the plaintiff in 0. S. 67 of 1966 on the file of the learned

Subordinate Judge, Madurai are the appellants. For the purpose of this judgment, the said Rabindranath will be referred to as the plaintiff in this

case.

The plaintiff and his three brothers, owned a property bearing TS No. 257, Ramnad Road, Madurai, measuring,349 feet north south on the

west, 367 feet north south on the east, 215 feet east west on the south and 77 feet cast west on the north. This vacant site was leased by these

four brothers to the defendants under a lease deed dt. 28- 10- 1955, for the purpose of constructing a rice mill. The monthly rent agreed to was

Rs. 2(k. The defendants lessees were permitted to put up a building, instal machinery and to remove the same at the end of the lease period of ten

years. There was a clause that at the end of ten years period, the defendants shall hand over vacant possession after removing the super structure

and the machinery. It appears that on 4-9-1957, the defendants-lessees purchased the 3/4ths share of the three brothers of the plaintiff.

Consequently, therefore there was'' a fresh agreement between the plaintiff and the defendants in relation to the undivided 1/4th share of the

plaintiff for which the defendants agree to pay a monthly rent of Rs. 50 . The plaintiff issued one month''s notice terminating the tenancy on 14 - 9-

1965 1965. It maybe mentioned that the tenancy was from month to month as per the deed and the rent payable was with reference to Tamil

month and the notice was issued terminating the tenancy with the end of Tamil month ''Markazhi''. Thereafter, the plaintiff filed a suit praying for a

decree - ( 1) for partition and separate possession of 1/4th share of the suit property after removing the superstructure and machinery and (2) for

and for costs. On these material facts there is no dispute.

The main defence in the suit was that there was an agreement to renew the lease with effect from 28-10-1965 i.e. at the end of ten years from

the original lease deed-dt. 28-10-1955 for a further period of ten years and it was not open to the plaintiff to terminate the lease and claim

possession thereof. The defendants'' also contended that they are entitled to the benefits of the Madras Buildings. (Lease and Rent Control) Act.

The further defence was that the suit for partition was not maintainable. The trial court held that there was an agreement to renew the lease for a

further period of ten years from 28-10-1%5 and, that therefore, the plaintiff will be entitled to possession only after 28-10-1975, and that the

defendants are also entitled to protection under the Rent Control Act. Though the, counsel for the defendants did not seem to have argued and

conceded that the suit for partition is maintainable, on the f indings that the plaintiff is not entitled to recover possession before 28-10-1975, and

also on the'' finding that the defendants are entitled to protection under Rent Control Act, the suit was dismissed. On appeal, the learned Judge of

this court did not concur with the findings of the trial court that there was any agreement for renewal for a period often years from 28-10-1965.

The learned Judge also held that since the lease was of the vacant site and not the building theieon and the building was constructed only by the

defendants, they are not entitled to claim the benefits under Madras Buildings (Lease and Rent Control) Act. However in the view that the lease

was from year to year, and one month''s notice terminating the tenancy was not sufficient and that, therefore, there was no valid termination of the

tenancy, the learned Judge held that the suit is liable to be dismissed. ''Accordingly, the suit was dismissed though on a different ground. The

plaintiff has preferred this appeal. Pending appeal, he died and his legal representatives were brought on record.

The two questions for, consideration are whether the suit as framed for partition and eviction is maintainable and whether the notice of

termination of the tenancy was valid. Learned counsel for, the respCndents contended that though the plaintiff may be entitled for partition

andseparate possession of his one fourth share and as a co-owner that right could be exercised, no order of eviction could be granted in this case.

According to i the learned counsel only a decree for partitionand separate possession could be made but so far as delivery of possession of his

share is concerned, after the partition and demarcation of that one fourth share referable to the plaintiff is determined, the plaintiff could be given

only symbolic possession and he will have to go in for a separate suit for eviction as a landlord against the tenant. A number of decisions were cited

by the learned counsel in this regard which in our opinion do not support the proposition I made by the learned counsel.

The decision in AIR 1931 63 (Privy Council) which is the earliest the learned counsel for the respondents cited, related to a dispute between

two lessees. The plaintiff and the defendant in that case were originally lessees under the owner. The defendant had purchased 7/8ths share from

the lessor. At the time when he purchased the property, the other lessee who was the plaintiff in that case, was in occupation as a tenant of a

portion of the entire building consisting of three shops and lease was current when the plaintiff purchased the remaining 1/8th-share in theproperty.

The plaintiff f fled a suit for account of the income from the entire property and, ascertain his share thereof and pay to him. The Privy Council held:

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.... when the defendant Murlidhar acquired his seven-eights of the entire property he did so subject to the subsisting lease of the three shops in

question which formed part of the property, and during the subsistence of the lease he could look for no other return from these three shops than

his seven-eights share of the stipulated re nit of Rs. 14.80; When the plaintiff in turn acquired the remaining one eights share of the entire property,

did this entitle the defendant Murlidhar to disregard the lease and to claim seven-eights out of the rent under the lease, but of the estimated annual

value of the three shops comprised in if the effect of the plaintiffs acquisition of one eight share of the entire property was to operate as merger of

his tenancy right in his property right and so to extinguish his lease. There Lordships are of opinion that there was no such merger: The plaintiff

acquired i only a one-eighth proprietary interest in the three shops as part of the whole property, while his tenancy right extended to the three

shops in their entirety. His right of occupation of the three shops in a question with his co proprietor Muralidhar depended on the subsistence of the

lease.

This case, as may be seen is a dispute between two lessees and with reference to their mutual rights and it does not in, any way help the learned

counsel.

The next decision is that of the Privy Council reported in Midnapore Zamindary Co. Ltd. v. Naresh Narayan Roy, ILR 51 Cal. 631 : AIR 1924

PC 144. In our opinion, this decision far from helping the respondents would support the case of the plaintiff that in this suit. itself, he- can ask both

for eviction from that portion of his tenancy as also a partition and separate possession of his share. The suit was filed by the landholder Zamindar

of Midnapore Zamindary for partition and separate possession. The.defendants in that case did not dispute the right of the plaintiffs to a decree for

partition. But they contended that in respect of certain portions which were claimed by them as tenants, the suit was not maintainable and that the

suit also was barred by limitation. So far as these two pleas are concerned, the Privy Council rejected their claim and said that the suit is not barred

by limitation and agreeing with the High Court also held that those defences are not open against the claim of the plaintiff''s for partition and

separate possession. Ultimately, the suit was decreed for partition and separate possession. It may be mentioned that in the suit, the plaintiffs

claimed mesne profits in respect of that portion which was in the, possession of the defendants in excess of their share. The High Court had

granted mesne profits; but the Privy Council held that since the defendants were co- owners in possession of excess than their actual share, they

will be liable to pay compensation to the plaintiffs for the use of the lands by the defendants'' company. As already stated this decision clearly

shows that though the defendants may ,claim that certain properties are, leasehold properties, that itself does not '' enable them to resist the suit for

partition and separate possession and both for eviction a''s also for partition and separate possession, a decree can be granted in the said suit.

Learned counsel for the respondents then referred to a decision of the Supreme Court in Badri Narain Jha and Others Vs. Rameshwar Dayal

Singh and Others, . That decision also related to a dispute between the lessees and the Supreme Court held that the inter se partition of the

leasehold interest amongst the lessees could not affect their liability qua the lessor for the payment of the whole rent as several tenants of the

tenancy in law constitute but a single tenant, and qua the landlord they constitute one person, each constituent part of which possesses certain

common rights in the whole and is liable to discharge common obligations in this entirety, Learned counsel also referred to a decision of a Division

Bench of this Court in Rajeswari v. Palani Appan, (1984) 2 M U 62. That case came up for consideration byway of revision petition filed under

the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. The landlord in that case, filed a petition for eviction of the tenant on the ground of

subletting the premises without permission, putting buildings to different use and committing acts of waste. During pendency of the proceedings, the

tenants purchased from some of the legal representatives of the landlord 11/60 share of the demised property. The Rent Controller found all the

grounds proved and ordered eviction. On appeal, however, though the appellate authority agreed with the findings of the Rent Controller, on

merits, on the ground that the tenants had become co owners and were entitled to continue in possession and the-landlord''s remedy was only to

file a suit for partition and separate possession, allowed the appeal and set aside the order of eviction. As against that, the revision petition was

filed. As already stated, the landlord filed a petition for eviction from whole, of the property though the tenants had become co-owners of the''

property. The that they were co-owners and that no eviction could be granted in the rent control proceedings. However, the learned Chief Justice

observed that the parties have to seek their remedies by way of partition and separate possession of their respective shares in the premises in

question in a civil suit. That is exactly the relief which the plaintiff had prayed for in this suit. In fact in this, case, since the provisions of the Rent

Control Act, are not applicable to the building it is in the same suit he has to ask for eviction also. If there could be a lease of an undivided share in

a property, there could not be any doubt that it could be terminated and that proceedings could be initiated for recovery of possession. There

could therefore be no doubt that the suit as framed is maintainable and both the reliefs, namely, partition and separate possession and eviction

could be prayed for in the same suit.

As already stated, the original lease was of the vacant site of the entirety of the property and that was by a registered lease deed dt.28-10-

1955. The lease also was for the avowed purpose of putting up a rice mill installing machinery and for carrying on rice milling operation. However,

that original lease of the entirety could not sustain by reason of, the purchase by the defendants of the 3/4ths share belonging to the three brothers

of the plaintiff on 4-9-1957. In a situation of that type the plaintiff cannot file a suit for eviction of the defendants from the entirety of the property as

the plaintiff is entitled only to 1/4th share and the defendants have purchased 1 the 3/4 share. It is also not the lease of the defendants that the relief

should have been asked for with reference to the entirety of the lease asking for eviction of the defendants from the entire property. In fact, it was

also not possible. Nor the defendants have offered to pay Rs. 200 per month as originally agreed subsequent to4-9-1957. The plaintiffs'' case was

that there was an oral understanding that the defendants will pay only Rs. 50 for the undivided 1/4th share, of the plaintiff subsequent to 4-9-1957,

and that there was a new lease as from that date in respect of the undivided 1/4th share. That was also not disputed by the defendants. In month,

for the period subsequent to 4-9-1957, and that was with reference to 1/4th share of the plaintiff. The tenancy was also treated as from month to

month in respect of lease of I/4th share.

It may be that the original lease deed was for the avowed purpose of putting up a building, and installing- machinery for the purpose of running a

rice mill and in that sense. , it would amount to a lease of immovable property for manufacturing purpose within the meaning of S. 1(X) of the

Transfer of Property Act. But we m ay hasten to state that we are not deciding this question whether the rice mill operation will amount to

manufacturing purpose as one of us has decided that it cannot amount to manufacturing purpose in the decision in P.N. Venkatesa Chettiar Vs.

Annamalai Industrial Corporation, , and it is stated by the learned counsel for, two respondents that the-matter is pending in the Supreme Court.

However, even assuming that the original lease was for a manufacturing purpose, can the new agreement entered into on 4-9-1957 or subsequent

to 4-9-1957 treating the 1/4th undivided share of the plaintiff on lease on payment of Rs. 50 per month, be said to be for manufacturing purpose,

we are unable to agree with the learned counsel for the respondents that it amounted to lease for manufacturing purpose. Even if this lease ago shall

be treated as for manufacturing purposes, that being a new lease between the plaintiff and the defendants in respect of 1/4th share of the property ''

determining the rent at Rs. 50 per month, unless it is in writing and registered as required under Sec. 107 of the Transfer of Property Act, no claim

for treating it as a lease of immovable property from year to year can be made by the respondents in this proceedings. Under Sec. 107 of the

Transfer of Property Act, lease of immovable property from year to year for a term exceeding one year or reserving a yearly rent, can be made

only by a registered instrument. Admittedly, there being no registered instrument, the lease cannot be treated as from year to year and on the terms

agreed only a lease from month to month. As already stated, the plaintiff issued a month''s and remaining the lease ending with the month, for the

period subsequent to 4-9-1957, and that was with reference to 1/4th share of

The plaintff. The tenancy was also treated as from month to month in respect of lease of 1/4th share.

It may be mentioned at this stage that the defendants did not raise the plea of want of valid notice in the written statement and therefore, the trial

court did not go into that question and no issue also was framed. But when the appeals; came on for hearing before the learned single Judge, it

appears that this point was argued by the learned counsel for the defendants and the learned Judge permitted him to raise this question on the

ground that it is a question of law. Though we agree with the learned Judge that the defendants can be permitted to raise that question, we are

unable to agree with the learned Judge that the lease was from year to year and that there was any valid lease from year to year. If there was a

valid lease from year to year, there can be no doubt that the learned Judge was right in saying that there is no valid termination of the lease and the

suit as such cannot be maintained. However, as already stated, since there was an oral understanding between the plaintiff and the defendants that

the rent payable was monthly at Rs. 50 and there being a valid termination, the suit cannot be dismissed on the ground that there was no valid

termination.

The learned counsel for the respondents then contended that this lease of the 1/4th share shall be treated as a renewal of the lease originally

granted for manufacturing purposes which was by a registered document and the possession of the tenant subsequently as a tenant holding over

and therefore, there was no need for a fresh registered leased. In support of this contention, learned counsel relied upon the decision in Satish

Chand Makhan and Others Vs. Govardhan Das Byas and Others, . We are unable to agree with the learned counsel that that decision in any way

supports the case of the respondents. That was a case where there was a registered lease deed originally and after the period was over, the tenant

was holding over under an unregistered lease., deed. Though unregistered lease deed was held to be invalid and does not confer any right, the

learned Judges have held that it is evidence of holding over and once he was holding over, it can only be treated as on the same terms and

conditions on which he was holding it originally and on that basis he continued. This is not a case of that type. If the entire lease in respect of the

entire property has subsisted for ten years and thereafter under an oral or unregistered, document he was continuing as a lessee of the entire

property certainly he could have raised this plea on the basis of the Supreme Court judgment. But that is not the case here. Subsequent to their

purchase the defendants entered into a fresh lease on -new terms in respect of the undivided 1/4th share belonging to the plaintiff. It was never the

case of the defendants that there was a lease for the entirety oft he property continuing on holding over in respect of the entirety of the property in

order to rely on the decision in Satischand V. Govardhandas, (supra). Under the circumstances, therefore, we are of the view that the termination

of the tenancy was valid and the suit -was maintainable. As already stated, the only way he could get possession of his one fourth share in the

property was to file the suit and to combine the prayer relating to eviction as also for partition and separate possession in one suit and it is what he

has done in this case, and that was the view expressed by the Division Bench of this Court in the. decision in Rajeswari v. Palaniappa. (1984) MLJ

62 also.

In the result, therefore, the judgment and decrees of the courts below are not, sustainable and accordingly we set them aside. There will be a

preliminary decree for partition and separate possession as also for eviction. However, in working out the division in the final decree proceedings if

it could be done without prejudice, to the plaintiff, the division shall be effected in such a way that the plaintiff is allotted vacant portion and the

defendants allotted that portion in which the building is situate. The appeal is accordingly allowed and judgment and decrees of the courts below

are set aside and the suit is decreed as prayed for with costs throughout.

Appeal allowed.