Senga Pillai and Others vs Varadarajan and Others

S. Padmanabhan, J.—The two appeals arise out of O.S. No. 578 of 1971 on the file of the Sub-Judge of Salem. A.S. No. 902 of 1974 has

been filed by defendants 1 and 2 while A.S. No. 304 of 1976 has been filed by the plaintiff. The C.R.P. has been filed by defendants 1 and 2

against the dismissal of I.A. No. 1299 of 1973 filed by them.

The facts of the case are briefly as follows: The plaintiff, the 3rd defendant and 4th defendant are brothers. The suit property belonged to the

plaintiff and 3rd defendant. The suit property was acquired in their names by their father on 2nd June, 1948 under Exhibit A-1 sale deed. At the

time of the acquisition of the property, the plaintiff and 3rd defendant were minors. The plaintiff, had, therefore, right over 1/2 share in the suit

property while the 3rd defendant was entitled to the other 1/2 share. While so, on 26th September, 1956 Meenakshi Ammal, the mother of the

plaintiff and the 3rd defendant executed a registered lease of the suit property in favour of defendants 1 and 2. The lease was for a period of 4

years. Thereafter defendants 1 and 2 took a lease of the suit property for a further period of 4 years from the 4th defendant. The said extension of

lease also expired. However, defendants 1 and 2 continued to be in possession of the suit property. The said leases by the plaintiff''s mother and

the 4th defendant are said to be not binding on the plaintiff. The plaintiff did not receive any benefit from out of the said leases. It is the plaintiff''s

further case that after he became a major he took possession of his share from defendants 1 and 2 in 1968. But defendants 1 and 2 filed O.S. No.

1435 of 1968 in the District Munsif Court, Namakkal, for an order of permanent injunction and taking advantage of the injunction, they forcibly

entered into possession of the suit property. Defendants 1 and 2 are in possession only in the capacity of trespassers. The plaintiff has filed the suit

for partition and recovery of his 1/2 share in the suit property since it is no longer possible to conveniently enjoy this property in common with the

3rd defendant. The plaintiff has claimed Rs. 10,000 from defendants 1 and 2 towards past mesne profits and has also claimed future mesne profits.

Defendants 1 and 2 in their written statement have pleaded that they are cultivating tenants and they are entitled to the benefits of the Cultivating

Tenants Protection Act. It is stated that they had been in continuous possession of the property ever since 1956 and that their possession was

never interrupted at any time. According to defendants 1 and 2, the rent of Rs. 933.36 per year is the fair rent and the plaintiff is not entitled to

anything more. The plaintiff is not entitled to physical possession of the property. An additional written statement has been filed by defendants 1

and 2. It is stated in the additional written statement that if the lease by the mother is considered void, the mother must be deemed to have set up a

hostile title to the suit property with effect from 15th September, 1956. Consequently it is pleaded that the plaintiff has prescribed title by adverse

possession to the lessee''s interest under Article 65 of the limitation Act, 1963. It is further pleaded that the suit itself is barred by limitation not

having been filed within 3 years of the plaintiff attaining majority.

A reply statement has been filed by the plaintiff traversing the allegations in the written statement. In the reply statement it is contended that

defendants 1 and 2 are not entitled to the benefits of the Cultivating Tenants Protection Act. It is also pleaded that inasmuch as defendants 1 and 2

have admitted the title of the plaintiff to a half share it will not be open to them to plead adverse possession. It is further alleged that the 4th

defendant was not competent to lease the suit property in his capacity as manager of the family since the property did not belong to the joint family,

but to the plaintiff and the 3rd defendant personally. It is also stated that in July, 1967 3rd defendant leased out the suit property to defendants 1

and 2. The 3rd defendant purported to lease out the suit property as if it absolutely belonged to him. It was definitely stated that the lease was not

on behalf of the plaintiff nor was he authorised to do so either expressly or impliedly.

Defendants 3 and 4 remained ex parte.

I.A. No. 1299 of 1973 was filed by defendants 1 and 2 u/s 2, of the Tamil Nadu Cultivating Tenants Arrears of Rent (Relief) Act, 1972, to

dismiss the suit O.S. No. 578 of 1971 so far as it relates to the recovery of rent.

The trial Court raised as many as 7 issues in the first instance. Then an additional issue was also raised viz., whether the defendants 1 and 2 have

prescribed a right of tenancy over the suit property by adverse possession for over 12 years.

The trial Court found that the leases executed by Meenakshi Animal and defendants 3 and 4 are void. The trial Court also found that defendants

1 and 2 have been in continuous and adverse possession of the suit property from 1956 onwards and therefore they have prescribed a right of

tenancy over the suit property by such adverse possession and that on account of such acquisition of prescriptive right by defendants 1 and 2 the

plaintiff is not entitled to get actual physical possession of his half share in the suit property. The trial Court further held that the defendants are not

entitled to get the benefits of the provisions of the Tamil Nadu Cultivating Tenants Protection Act. In the result, the trial Court, passed a preliminary

decree for partition of plaintiff''s half share in the suit property. It also held that the plaintiff will not be entitled to get actual and physical possession

of his half share in view of its finding that defendants 1 and 2 have a right of tenancy over the suit property by adverse possession. It relegated the

determination of past and future mesne profits to separate proceedings under Order 20, Rule 18, Civil Procedure Code. The trial Court dismissed

LA. No. 1299 of 1973.

Aggrieved by the said judgment and decree both the plaintiff and defendants 1 and 2 have filed the appeals.

Defendants 1 and 2 in their appeal contended that the trial Court having found that defendants 1 and 2 have prescribed for a leasehold interest

by adverse possession ought to have further held that they were entitled to the benefits of the Act. It is also pleaded that the suit is barred by

limitation.

The plaintiff has contended in his appeal that having found that the plaintiff as entitled to half share in the suit property the Court below right to

have granted a decree for actual physical possession of his half share. The finding of the Court below that defendants 1 and 2 have prescribed a

right of tenancy over the suit property by adverse possession is also challenged.

There is no dispute that the suit property was acquired by the father of the plaintiff-and the 3rd defendant in their names under Exhibit A-1

dated 2nd June, 1948 and that under the said sale deed the plaintiff and the 3rd defendant became co-owners each being entitled to a half share in

the suit property. In the circumstances the trial Court rightly held that the plaintiff is entitled to a half share over the suit property. This is not

disputed before me in the appeal by the counsel for defendants 1 and 2.

The points for determination in the appeals which arise on the basis of the arguments advanced before me are the following:

Whether the defendants 1 and 2 have prescribed the right of leasehold interest by adverse possession and limitation.

Whether defendants 1 and 2 are entitled to the benefits of the Tamil Nadu Cultivating Tenants Protection Act.

Whether the plaintiff is entitled to a decree for actual possession of his half share over the suit property.

On 26th June, 1956, Meenakshi Ammal, the mother of the plaintiff and the 3rd defendant executed Exhibit B-3 registered lease deed) in

favour of defendants 1 and 2 in respect of the suit property for a period of 4 years. It is the case of defendants 1 and 2 that they got into

possession of the suit property pursuant to the lease deed. The plaintiff''s case is that Exhibit B-3 lease deed was executed by Meenakshi Ammal

not in her capacity as guardian of the plaintiff and the 3rd defendant, but in her individual capacity as if she was the owner of the suit property and

consequently the said lease is not binding on him. A reading of Exhibit B-3 will show that Meenakshi Ammal had claimed the property to be hers in

the document. This fact was not disputed before me by Mr. Rajaram on behalf of defendants 1 and 2. On the other hand he took the stand that

Exhibit B-3 lease deed was executed by Meenakshi Ammal as if she was the absolute owner for the purpose of supporting his argument that

defendants 1 and 2 had prescribed title for the lessee''s interest by adverse possession and limitation. According to Mr. Rajaram, in 1956

Meenakshi Ammal had executed a registered lease deed and since she executed the document as if she was the owner, the lease deed was void.

Therefore, from the moment defendants 1 and 2 got into possession their possession became adverse to the plaintiff and the 3rd defendant. The

plaintiff, therefore ought to have filed a suit for the recovery of possession within three years of his attaining minority. He having failed to do so, the

suit filed by him for the recovery of possession of the suit property is barred by limitation. No doubt, the trial Court has dealt with this contention

put forward on behalf of defendants 1 and 2 and upheld the same. However, I am afraid that this plea is not open to defendants 1 and 2 at all in

view of the events that happened subsequent to Exhibit B-3. Admittedly, Exhibit B-3 is followed by the lease taken by defendants 1 and 2 from

the 4th defendant, and that lease is for a period of 4 years. No document for the said lease is produced. But Exhibit B-4 which is a copy of a

petition C.T.R. No. 37 of 1965, filed by the first defendant before R.D.O., Namakkal, reveals that fact. Here, the first defendant had stated that

after the expiry of the period of 4 years under the lease from Meenakshi Ammal he took a lease from the 4th defendant. The said 4 years expired

on 28th September, 1964 and the 4th defendant again leased the suit property for a period of 9 months from 28th September, 1964. Thereafter

defendants 1 and 2 have taken a lease from the 3rd defendant for the year 1967-68. This is evidenced Exhibit B-2. Therefore, the last of the

leases taken by defendants 1 and 2 is from the 3rd defendant and it is on the basis of this lease they continued to be in possession of the suit

property. Therefore, whatever rights defendants 1 and 2 got under the lease deed Exhibit B-3 executed by the mother got terminated with the

expiry of the period of the lease. Thereafter so far as they were concerned they were holding the property under the lease executed by the 4th

defendant till the expiry of the term of the lease given by the 4th defendant and subsequently from the date of Exhibit B-2 they are holding the

property under the lease executed by the 3rd defendant. The 3rd defendant is a co-owner of the property. Therefore, after taking a lease from one

of the co-owners of. the property viz., 3rd defendant, it will not be open to the defendants 1 and 2 to fall back upon the lease executed by

Meenakshi Ammal or the 4th defendant and the claim that they have prescribed for a leasehold interest by adverse possession and limitation has no

merit at all. In the circumstances I hold that defendants land 2 have not prescribed leasehold interest over the suit property by adverse possession

or limitation and that they are holding the property under Exhibit B-2 lease executed by the 3rd defendant who is admittedly one of the co-owners

of the suit property.

Mr. Rajaram realising the position that, in view of Exhibit B-2 lease given by the 3rd defendant in favour of defendants 1 and 2, he could not

fall back on Exhibit B-3 lease and advance his case of adverse possession, contended that the 3rd defendant must be deemed to have acted for

himself and on behalf of the plaintiff in giving the lease to defendants 1 and 2. In the written statement it is not pleaded that the 3rd defendant was

acting on behalf of the plaintiff as well, in giving the lease to defendants 1 and 2. In the first written statement it is stated in paragraph 10 that the

plaintiff acquiesced in defendants 3 and 4 dealing with the property as joint family managers and co-owners. Mr. Rajaram was not in a position to

draw my attention to any material in the case to show that the 3rd defendant was acting with the express or implied permission of the plaintiff in

executing the lease of the entirety of the suit property in favour of the plaintiff nor was he in a position to satisfy me that the plaintiff was receiving

his half share of the rent due under the lease and that by his conduct acquiesced in the lease executed by the 3rd defendant. The 2nd defendant

who has been examined as D.W. 1 has not even formally spoken that the 3rd defendant had executed the lease on behalf of himself and the

plaintiff. In the circumstances I overrule the contention of Mr. Rajaram that the 3rd defendant in giving the lease to denfendants 1 and 2 was acting

for himself and on behalf of the plaintiff.

The question which then arises for consideration is whether, notwithstanding that the 3rd defendant did not act for the plaintiff expressly or

impliedly in giving the lease to defendants 1 and 2, the latter will be entitled to claim the benefits of the Cultivating Tenants Protection Act (for

short, the Act) as against the plaintiff and his half share over the suit property.

It is now well-settled that a co-owner, merely as a co-owner is not an agent for the other co-owners. It is also equally settled that a co-owner

is not a trustee for the remaining co-owners. Therefore, a co-owner merely as a co-owner does not hold any fiduciary position as regards the other

co-owners. Therefore, unless by an authority, express or implied from the other co-owner one co-owner will not be competent to act on behalf of

the other co-owner. In this case I have already found that in granting the lease in favour of defendants 1 and 2 the 3rd defendant had neither

express or implied authority from the plaintiff. A co-owner in exclusive or joint possession of the common property or any portion thereof is

entitled to possess the same in proper and husband like manner. In the absence of a binding contract or rule of law to the contrary a co-owner is

entitled to grant a lease of his share of the joint property. But, however, he cannot use the land in a manner contrary to the interest of other co-

owners. If the lease purports to be of the entire properties without reference to the share of the lessor, it operates only on the share of the lessor,

unless the lessor is authorised to grant a lease of the whole property. When the lease purports to be of the entire estate it will operate on any share

which the lessor may acquire subsequently. As the lease cannot affect the interest of the other co-owners they cannot also recover any rent from

such lessee or maintain a suit in ejectment against the lessee.

It has been held in Macneil and Co. Vs. Saroda Sundari Debi and Others, , that a co-sharer in a joint property cannot by dealing with such

property affect the interest of other co-sharers therein.

Similary in Thakur Raghunandan Sahay Singh Vs. Thakur Dripa Nath Sahai Singh, , it is held that a co-sharer has no right to deal with the joint

property in such a way as to affect the right of the other co-sharers. In Ghissu Vs. Hashim Ali and Another, , it is held that it is not open to one of

the co-sharers of joint property to create subsidiary rights or interests in favour of third parties in the entire property without the consent of the

other co-sharers. However, it is perfectly open to a co-sharer to grant a lease of the joint holding and if the other co-sharers are not satisfied with it

they cannot maintain a suit for ejectment against the lessee. Their remedy will be to file a suit for partition. In Haran Chandra Mukhopadhya and

Others Vs. Shyama Charan Chakravarty and Others, , it is observed as follows:

A co-sharer is entitled to use the land in a normal, natural and businesslike manner. If in the exercise of and in accordance with this user of the land

he grants a lease that lease will be a valid one and the lessee cannot be interfered with by the other co-sharers. But a co-owner cannot use the land

to the detriment of his co-sharers. He cannot burden the land with encumbrances which will affect the rights of the other co-sharers, where the

imposition of such a burden is not made in the course of the ordinary and businesslike user of the land. The imposition of a servitude upon a land

cannot be said to be necessary for the ordinary enjoyment of the land. Hence a co-sharer has no right to burden the joint estate with a right of way.

The grant of such a right does not constitute a natural businesslike and normal use of the land. It amounts to an imposition of a burden upon the

land made entirely for the benefit of the grantor and to the detriment of his co-sharers. In such a case the co-sharers can refuse to be bound by the

grant and the grantee can have no remedy against them inasmuch as they are not parties to the grant.

In Nathaniel Uraon Vs. Mahadeo Uraon and Others, , it has been held as follows:

It is settled that one co-sharer may use a joint property or any part of it for all legitimate purposes so long as his use of the joint property does not

prejudice the rights of the several co-owners and does not amount to their ouster. It is equally well-settled that a co-owner can transfer his

undivided share in the joint property by way of lease, sale, gift or otherwise. Where one tenant-in-common settles a portion of the joint land with a

stranger such a conveyance is not legally invalid or void, so as to entitle the other co-owners to obtain khas possession of the joint land by eviction

of the tenant. They can at best sue for joint possession or for partition, and if on a partition the portion settled with the tenant is allotted to their

share, they will indeed be entitled to obtain khas possession of that land by ejecting the tenant, if, however, that portion falls to the share of the.

grantor, the title of the lessee will be perfect and valid, and the lessor will be estopped from questioning the grant on the ground that he had no right

to make a transfer of the joint share.

In Vithal v. Sadasheo AIR 1925 Nag. 175, it is held that a lease executed by one of two co-owners can take effect only with respect to the

lessor''s half interest and is voidable as against the other co-owner.

Mr. Rajaram did not dispute this proposition. As a matter of fact the passage which the learned Counsel read from ""Co-ownership and

Partition by Mitra"" also contained the above propositions of law. The learned Counsel frankly conceded that he was not able to find any authority

for the position that a co-owner can bind the other co-owners by a lease granted by him in respect of the entirety of the property even though he

had no express or implied authority from the other co-owners. In the circumstances, the lease granted by the 3rd defendant will not bind the

interest of the plaintiff.

The next question for consideration is whether defendants 1 and 2 would be cultivating tenants within the meaning of the definition of the Act, in

so far as the half share of the plaintiff is concerned.

Mr. Rajaram submitted that defendants 1 and 2 would be cultivating tenants as defined in the Act. The learned Counsel was not, however,

able to cite any direct decision that a lessee from one co-owner will be entitled to the benefits of the Act even in respect of the share of the other

co-owners who are not parties to the lease transaction.

The cultivating tenant is defined as follows in Section 2(a) of the Act:

(a) ''Cultivating tenant'' in relation to any land means a person who carries on personal cultivation on such land, under a tenancy agreement, express

or implied, and includes-

(b)(i) any such person who continues in possession of the land after the determination of the tenancy agreement, and (ii) the heirs of such person,

but does not include a mere intermediary or his heirs.

A landlord is defined as follows in Section 2(e) of the Act:

''landlord'' in relation to a holding or part thereof means the person entitled to evict the cultivating tenant from such holding or part.

Section 3(1) states that subject to the next succeeding sub-section, no cultivating tenant shall be evicted from his holding or any part thereof,

during the continuance of this Act, by or at the instance of his landlord, whether in execution of a decree or order of a Court or otherwise. The

original view of this Court was that the agreement contemplated in Section 2(a) of the Act whether it was expressed or implied should be with the

landlord directly. It was so observed by Ramachandra Iyer, J., in C.R.P. No. 604 of 1957. Following the decision Balakrishna Iyer, J., observed

in Ramaswami Naidu v. Marudaveera Moopan (1959) 1 M.L.J. 25 as follows:

A tenancy agreement means an agreement creating a tenancy and when we speak of a tenancy we normally understand that there is on the one

side a landlord and, on the other side, a tenant or lessee.

This principle was accepted by Jagadeesan, J., in Ganapathi Iyer v. Ayyakannu (1961) 1 M.L.J. 217. However, Veeraswami, CJ., speaking for

the Full Bench in Chandrasekaran Vs. Kunju Vanniar and Others, , while dealing with the question whether the tenants under an usufructuary

mortgage are entitled, after redemption of the usufructuary mortgage, to claim the protection granted under the Act as against the mortgagor

observed as follows:

It is noteworthy that the first part of the definition of ''cultivating tenant'' envisaging a tenancy agreement is a sine qua non to bring about a tenancy.

But, in order to make the tenant a cultivating tenant, a further requisite is that he should carry on personal cultivation as defined which we have

adverted to. When such a tenancy agreement comes to an end by whatever means, then the statutory tenancy begins by virtue of the inclusive

definition of the term ''cultivating tenant''. Determination of a tenancy agreement necessarily means that the contractual relationship of landlord and

tenant is brought to an end and notwithstanding only by reason of the fact that the cultivating tenant as defined in the first part of the definition

continues in possession of the land he is enabled to continue to have the status of a cultivating tenant. In other words, the effect of the inclusive

definition is that it brings about a statutory tenancy for purposes of protection. To bring about the result the precedents are that there should have

been in the origin tenancy agreement, express or implied, and under that agreement to which the person is a party he should carry on personal

cultivation, on the land. If these premises are granted, though the agreement of tenancy express or implied has terminated but the person mentioned

in the first part of the definition continues in possession of the land he will be a cultivating tenant. The first part of the definition does not specify as

between whom and whom, the tenancy agreement mentioned is contemplated. The lease may have been granted by the owner or a usufructuary

mortgagee or even a lessee of the land. But, the person, who carries on personal cultivation of the land should derive his right under a tenancy

agreement, express or implied with a person entitled to enter into it who may be any one of those persons we have just now mentioned as

instances... All that is essential for the inclusive definition to apply is that in the origin of the tenancy, it should have resulted from a tenancy

agreement, express or implied, and for purposes of inclusive of definition, it does not matter whether the original lessor is in the picture or not. The

test to find out whether a person is a landlord is not whether there is a direct agreement between him and the tenant but whether the person who

claims to be the landlord is entitled to evict on the grounds mentioned in the Act. It is in the light of this position in our opinion, we have to

appreciate the scope and effect, of Sub-section (1) of Section 3. When it speaks of ''at the instance of the person entitled to evict the tenant. The

word ''his'' does not make any difference, for the person entitled to evict him will be his landlord at any given time. The same meaning to the

''landlord'' has to be given in clauses (b), (c) and (d) as well of subsection (2) of Section 3.

Defendants 1 and 2 may not come within the meaning of cultivating tenant nor will the plaintiff come within the definition of landlord within the

meaning of the Act when the situation is tested on the principles stated by Veeraswami, CJ., so far as the half share of the plaintiff is concerned.

The 3rd defendant was not competent to execute the lease in favour of defendants 1 and 2. There is neither privity of contract nor privity of estate

between the plaintiff and defendants 1 and 2. I have already referred to the state of authorities to show that when one co-owner has leased out not

only his share but also the share of the other co-owner without his express or implied authority then, the lease will not be binding on the share of

the co-owner who is not a party to the lease. No legal relationship will be created between the co-owner who is not: a party to the lease and the

lessee. The non-lessor co-owner will not be entitled either to claim rent or to maintain the suit for ejectment against the lessee. He will be entitled to

file a suit for partition against the lessee. If that is the general law then certainly, the plaintiff will not come within the definition of landlord as defined

in the Act because he will not'' be entitled to evict defendants 1 and 2 on any of the grounds mentioned in the Act.

The learned Counsel then referred to the decision in G. Ponniah Thevar Vs. Nalleyam Perumal Pillai and Others, , the ratio of which as is seen

from the headnote is as follows:

Learned counsel for the contesting respondent had tried to advance two contentions in support of the view taken by the High Court. Firstly, he

submits that the protection given u/s 3(1) was for the landlord of the cultivating tenant. In view of the statutory definition of the term ''landlord'' the

suit itself would fail if the plaintiffs were not landlords. The statutory definition of the term landlord relates not only to the person who created the

lease but contemplates and takes in every successive holder who could be entitled to evict a tenant. That person can only be one who has the right,

at the time of filing the suit, to realise rents or evict persons in wrongful occupation. There is nothing in the Act itself to show that the protection

given to the cultivating tenant, as defined in the Act, was given only against his original lessor and did not extend to subsequent holders of land

occupying the capacity of the landlord.

This passage in my opinion supports more the plaintiff than the defendants 1 and 2. Tested by the principles stated by the Supreme Court it

cannot be said that the plaintiff is a successive holder who is entitled to evict defendants 1 and 2. He has neither the right to realise the rent nor to

evict the defendants 1 and 2. In the circumstances I hold that defendants 1 and 2 are not entitled to the benefits of the Act to the extent of the half

share of the plaintiff in the suit property.

In view of my finding that defendants 1 and 2 are not entitled to the protection of the Act, the plaintiff by virtue of his being entitled to a half

share in the suit property will be entitled to recover possession of his half share in the suit property. The I.A. was rightly dismissed by the trial

Court and I confirm the same.

In the result A.S. No. 902 of 1974 is dismissed. The civil revision petition is also dismissed. A.S. No. 304 of 1976 is allowed. There will be a

preliminary decree for partition as prayed for by the plaintiff. In modification of the decree of the trial Court, the directions in the decree that the

plaintiff will not be entitled to the actual and physical possession of his half share is deleted and I hold that he is entitled to the actual and physical

possession of his half share. The direction that enquiry into mesne profits will be relegated to separate proceedings under Order 20, Rule 12 is

confirmed.

There will be no order as to costs in both the appeals and the civil revision petition.