V. RAMASWAMI


The legal representatives of one Rabindranath who was the plaintiff in O.S. 67 of 1966 on the file of the learned Subordinate Judge, Madurai are the appellants. For the purpose of this judgement, the said Rabindranath will be referred to as the plaintiff in this case.


2. 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 east west on the north. This vacant site was leased by these four brothers to the defendants under a lease deed dt. 28-10-1955, or the purpose of constructing a rice mill.The monthly rent agreed to was Rs. 200. The defendants-lessees were permitted to put up a building, instal machinery and to remove the same sit 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 superstructure 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 14-12-1965.It may be mentioned hat 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 an separate possession of 1/4th passing a decree for eviction of the defendants from plaintiffs 1/4th share of the suit property and for costs. On these material facts there is no dispute.


3. The main defence in the suit was that there was an agreement to renew the lease with effect from 28-10-1955 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 28-10-1965 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 findings 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 of ten years from 28-10-1965. The learned Judge also held that since the lease was of the vacant site and not the building thereon 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.


4. 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 respondents contended that though the plaintiff may be entitled for partition and separate 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 the learned counsel only a decree for partition and 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 made by the learned counsel.


5. The decision in Shaikh Faqir Bakshah v. Murli Dhar 1931 AIR(PC) 63 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 the property. The plaintiff filed a suit for account of the income from the entire property and ascertain his share thereof and pay to him. The Privy Council held :-


".....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 rent 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 the lease ? This claim could be justified only if the effect of the plaintiff's 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 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.


6. The next decision is that of the Privy Council reported in Midnapore Zamindary Co. Ltd. v. Naresh Narayan Roy, ILR 51 Cal 631 : 1968 AIR(SC) 620, 1968 (2) SCR 203, 1968 MahLJ 496, 1968 MhLJ 496, 1924 AIR(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 plaintiffs 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 as also for partition and separate possession, a decree can be granted in the said suit.


7. Learned counsel for the respondents then referred to a decision of the Supreme Court in Badri Narain v. Rameshwar Dayal, 1951 AIR(SC) 186, 1951 SCJ 252, 1951 (2) SCR 153, 30 ILR(Pat) 664. 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 Mad LJ 62. That case came up for consideration by way 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 learned Chief Justice accepted the contention 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.


8. 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 he 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 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 to 4-9-1957. 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 fact, they were also paying only Rs. 50 per 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 1/4th 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.106 of the transfer of Property Act. But we may 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 a manufacturing purpose in the decision in Venkatesa Chettiar v. Annamalai Industrial Corpn., (1984) 2 Mad LJ 92, 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 also shall be treated as for manufacturing purpose, 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 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 a from year to year and on the terms agreed to, is only a lease from month to month. As already stated, the plaintiff issued a month's notice terminating the lease ending with the month of 'Markazhi' and therefore, there was a valid termination of the lease.


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.


9. The learned counsel for the respondents then contended that this lease of the 1/4th share shall be treated as a renew al 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 lease deed. In support of this contention, learned counsel relied upon the decision in Satischand v. Govardhandas, 1984 AIR(SC) 143, 1984 (1) SCC 369, 1978 AIR(Karnataka) 145. 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 an 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 judgement. 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 or the entirety of the property continuing on holding over in respect of the entirety of the property in order to rely on the decision in Satischand 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 prayers relating to eviction as also for partition and separate possession in one suit and it is what he has lone in this case, and that was the view expressed by the Division Bench of this Court in the decision in Rajeswari v. Palaniappa, (1984) 2 Mad LJ 62 also. 10. In the result, therefore, the judgement 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 judgement and decrees of the courts below are set aside and the suit is decreed as prayed for with costs throughout. Appeal allowed.