PETITIONER:
SRIRAM PASRICHA
Vs.
RESPONDENT:
JAGANNATH & ORS.
DATE OF JUDGMENT24/08/1976
BENCH:
GOSWAMI, P.K.
CHANDRACHUD, Y.V.
GUPTA, A.C.
CITATION:
1976 AIR 2335 1977 SCR (1) 395
1976 SCC (4) 184
ACT
Indian Evidence Act 1872 Sec. 116--Whether tenant can
deny the landlord’s title.
West Bengal Premises Tenancy Act 1956--Sec.
13(1)(f)--Whether one of the co-owners can file a suit for
eviction without impleading other co-owners--Whether a co-
owner, an owner for the purpose of an eviction suit--Stage
for raising objection about frame of suit.
HEADNOTE
The plaintiff respondent is one of the co-owners of the
premises which were let out to the appellant tenant. The
plaintiff filed a suit for eviction under s. 13(1)(f) of the
West Bengal Premises Tenancy Act 1956. The grounds for
eviction were the non-payment of the rent and the reasonable
requirement of the premises for the landlord. The trial
court held that the plaintiff being only a co-sharer cannot
be said to be the owner within the meaning of s. 13(1)(f).
The trial court, however, held that the plaintiff succeeded
in proving the reasonableness of the requirement of the
members of the family for whose benefit the premises were
held by him and, therefore, granted a decree for eviction.
An appeal filed by the appellants failed. In the second
appeal filed by the appellants it was contended that al-
though reasonable requirement of the premises were estab-
lished, the respondent was not entitled to a decree for
eviction since he was only a co-sharer and, therefore, not
the owner of the premises. The single Judge of the High
Court held that it will not be sufficient if the reasonable
requirement is of all the members of the family of the co-
owners but such owners must again be the landlords who only
are entitled to a decree for recovery of the possession
under s. 13(1)(f). A Division Bench set aside the decision
of the Single Judge on the ground that a co-owner is as much
as absolute owner as a sole owner. In appeal by special
leave, the appellant contended:
A landlord to be able to evict a tenant under Section
13(1)(f) must be an absolute owner of the premises from
which eviction is sought.
Dismissing the appeal,
HELD: The contention of the appellant that the co-sharer
plaintiff must be the absolute owner and a co-owner cannot
without impleading all the owners of the premises ask for
eviction cannot be accepted because the plea pertaining to
the domain of the frame of the suit should have been raised
at the earliest opportunity and it was not done. Secondly,
the relation between the parties being that of landlord and
tenant only the landlord could terminate the tenancy and
institute the suit for eviction. The tenant in such a suit
is estopped from questioning the title of the landlord under
s. 116 of the Evidence Act. Under the general law, in a
suit between the landlord and tenant, the question of title
to the lease property is irrelevant. The plaintiff is one of
the co-owners of the premises. The other co-sharers being
his mother and married brother who reside in the same prem-
ises along with him. Jurisprudentially, it is not correct
to say that a co-owner of a property is not an owner. He
owns every part of the composite property along with others
and it cannot be said that he is only a part owner or a
fractional owner of the property. The position will change
when partition takes place. It is, therefore, not possible
to accept the submission that the plaintiff who is admitted-
ly the landlord and co-owner of the premises is not the
owner of the premises within the meaning of s. 13(1)(f).
[399 A--C. 401 B & 402 A-B]
Bollye Satee and Anr. v. Akram Ally and Anr. [1879] ILR
(4) Calcutta 961; Kattusheri Pishareth Kanna Pisharody v.
Vallotil Manakel Narayan Somayajipad and Ors., [1878] 81 ILR
(3) Madras 234; Balkrishna Sakharam v. Moro Krishna
396
Dabholkar [1897] ILR (21) Bombay 154; and Dwarka Nath Mitter
and Ors. v. Tara Prosunna Roy & Ors. [1890J/LR (27) Calcutta
160, distinguished.
Mclntyre and Anr. v. Hardcctstle; [1848] (1) All England
Law Reports 696; followed.
Kanika Devi and Ors. v. Amarendra Nath Roy Choudhury and
Ors; 65 Calcutta Weekly Notes 1078; Tarak Chandra Mukherjee
v. Ralanlal Ghosal; 1959 CLJ 136; Taherbhai Hebtullabhai and
Anr. v. Ambalal Harilal Shah and Anr.; 1966(7) Gujarat 963
LLR; and Deb Ranjan Chatterjee v. Swarnarani Biswas & Anr.
78 Calcutta Weekly Notes 1034; approved.
Nanalal Girdharlal and Anr. v. Gulamnablti Jamalbhai
Motorwala and Ors. A.I.R. 1973 Gujarat 131; distinguished.
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1223
1975.
From the Judgment and Order dated 4-3-75 of the Calcutta
High Court in I.,.P.A. No. 74/74.
V.N. Tarkunde, and H.K. Puri, for the appellant.
V S. Desai, 1). N. Mukherjee and N.R. Choudhary, for
respondent No. I.
A.K. Sen and 5. P. Nayar, for respondent No. 2.
The Judgment of the Court was delivered by
GOSWAMI, J. This is an appeal by the defendant-tenant
by certificate from the judgment of the Calcutta High Court.
The question that arises for decision is whether a landlord
who is a co-owner of the premises with others is "the owner"
within the meaning of section 13(1)(f) of the West Bengal
Premises Tenancy Act, 1956 (briefly the Act). It will
turn on the interpretation of the expression "if he is the
owner" under section 13(1 )(f) of the Act.
Briefly the facts are as follows :--
The plaintiff-respondent (hereinafter to be referred to
as the plaintiff) is admittedly the landlord of one late
Bhagat Ram Pasricha predecessor-in-interest of the present
appellant and respondents 2 and 3 (hereinafter to be re-
ferred to as the defendants). The tenancy was in respect of
a part of the premises No. 221/1, Rash Behari Avenue, Cal-
cutta, being the entire second floor of the building. The
tenancy commenced some time in 1946 and Bhagat Ram Pasricha
promised to vacate the said premises within March 31, 1947
and positively after March 31, 1948. Bhagat Ram Pasricha,
however, did not vacate and died on February 18, 1960,
leaving behind the defendants as his heirs. The plaintiff
is only a co-sharer owner of the suit premises being one of
the heirs of his father late Motilal Sen who, originally
owned the property.
The plaintiff instituted a .suit for eviction of the
defendants in December 1962 on the twin pleas of default in
payment of rent and reasonable requirement of the prem-
ises for his own occupation as well as for the
occupation of the members of the joint family
consisting of his mother and his married brother. The
suit was contested by the defendants. The trial court
decreed the suit on both the grounds. On the question of
reasonable
397
requirement the trial court held that the plaintiff being
only a co-sharer owner cannot be said to be the owner
within the meaning of section 13(1)(1) of the Act. The
trial court, however, held that the plaintiff succeeded in
proving the case of reasonable requirement of the members of
the family "for whose benefit the premises were held by
him" within the meaning of the second part of section
13(1) (f).
On appeal by the defendants the lower appellate court
did not accept the plea of default but affirmed the finding
of reasonable requirement although the learned Judge was
not specific as to which the two material parts of section
13(1)(f) would govern the case.
In the second appeal by the defendants before the
learned single Judge of the High Court the question of
factual existence of reasonable requirement was not dis-
puted. It was, however, contended before the learned single
Judge that even though the actual reasonable requirement
of the premises was established the plaintiff was not
entitled to a decree for eviction being only a co-sharer and
as such not "the owner" of the premises within the meaning
of section 13(1) (f). It was submitted that a co-owner was
only a part-owner and was not entitled to an order of evic-
tion under section 13(1)(f) of the Act. The learned single
Judge accepted the contention of the defendants and dis-
missed the suit observing :--
"it will not be sufficient if the reasonable requirement is
of all members, of the family of the co-owners but such co-
owners must again be the landlords who only are made
entitled to a decree for recovery of the possession under
section 13 (1) (f).
In the letters patent appeal before the Division Bench
the High Court did not agree with the single judge and set
aside the decision and decreed the suit for eviction. The
’Division Bench held:
In our opinion a co-owner is as much an absolute owner
as a sole owner is with reference to the interest held by
him".
Mr. Tarkunde, the learned counsel appearing on behalf
of the appellant submits that the decision of the Division
Bench is erroneous and we should accept the views of the
single Judge. He submits that a landlord in order to be
able to evict a tenant under section 13(1)(f) must be an
absolute owner of the premises from which eviction is
sought. A co-owner landlord without impleading all the own-
ers of the premises is not entitled to ask for eviction
under section 13 (1)(f) of the Act. Mr. A.K. Sen, who ap-
pears on behalf of the sisters of the appellant (respond-
ents 2 and 3) also emphasised upon this part of the case
while adopting the arguments of Mr. Tarkunde.
Mr. Desai, on the other hand. contests this proposition
and submits that the decision of the Division Bench is
correct.
398
Mr. Tarkunde referred to certain decisions in support
of the submission that a suit by one of the co-sharers for
eviction of a tenant has always been held to be incompe-
tent. Counsel relied upon the decision in Bollye Satee
and another v. Akram, Ally and other. C) This was a case in
which it was held that a lessee of a jalkar cannot be eject-
ed by a suit brought by one only of the several proprietors
all of whom had granted the lease. This case, with its own
facts, is, therefore, of no aid in the present controversy.
In Kattusheri Pishareth Kanna Pisharody v. Vallotil
Manakel Narayanan Somayajipad and others,(2) the suit was
brought by the plaintiffs on behalf of an association
(sabha) to recover certain lands demised by the sabha. It
was held that all the co-owners must join in a suit to
recover property unless the law otherwise provides. This
decision will again be of no assistance to the appellant.
In Balakrishna Sakharatm v. Moro Krishna Dabholkar(3) it
was a case of one of the co-sharer-jagirdars who as a manag-
er filed a suit for recovery of Rs. 99/- being the balance
due to him on account of the highest rate of assessment
for the three years preceding the suit. The defendant
disputed the plaintiff’s right to demand the highest rate of
assessment and contended that the plaintiff
had no right to sue alone as he and his co-sharers owned the
jagir and the defendant cultivated the land in that village
by paying the jagirdars something less than the full assess-
ment prior to the years in the suit. It was in that context
that the following observation appears in
the judgment which is relied upon by counsel:
"We must, therefore, treat it as settled law
that a co-sharer who is manager even with the
consent of his co-sharers can not maintain a suit
by himself and in his own name to eject a
tenant who has failed to comply with a notice
calling on him to pay enhanced rent".
This proposition of law also purports to be in line with
the two earlier decisions relied upon by counsel and is of
little aid to him.
In Dwarka Nath Mitter and others vs. Tara Prosunna Roy
and others,(4) the objection of the defendant was to the
form of the suit and it was pressed from the very commence-
ment by the defendant. This was a suit by the plaintiffs
for balance of arrears of rent making other co-sharers as
defendants. The court held that unless the co-sharers
had refused to join in the suit or had otherwise acted
prejudicially to their interests the plaintiffs were not
entitled to sue alone. In this view of the matter the suit
was dismissed. We do not see how this decision can come to
the assistance of the appellant.
It is strenuously submitted by Mr. Tarkunde that
unless the landlord is also the absolute owner of the
premises, he cannot evict the tenant under section 13(1)(f).
Landlord means landlords under the appropriate General
Clauses Act and, therefore, since there are
(1) (1879) I.L.R. 4 Cal. 961. (2) (1878-81) I.L.R. 3
Mad. 234.
(3) (1897) I.L.R. 21 Bom. 154. (4) (1890) I.L.R. 17
Cal. 160.
399
other co-sharers the plaintiff alone could not file the suit
for eviction.
There are two reasons for our not being able to accept
the above submission. Firstly, the plea pertains to the
domain of the frame of the suit as if the suit is bad for
non-joinder of other plaintiffs. Such a plea should have
been raised, for what it is worth, at the earliest oppor-
tunity. It was not done. Secondly, the relation be-
tween the parties being that of landlord and tenant, only
the landlord could terminate the tenancy and institute the
suit for eviction. The tenant in such a suit it estopped
from questioning the title of the landlord under section
116 of the Evidence Act. The tenant cannot deny that the
landlord had title to the premises at the commencement of
the tenancy. Under the general law, in a suit between
landlord and tenant the question of title to the leased
property is irrelevant. It is, therefore, inconceivable to
throw out the suit on account of non-pleading of other
co-owners as such.
Being faced with this position counsel submits that
since the requirements are found to be of the co-owners,
the suit cannot be decreed in their absence. This is a
repetition of the first submission in a different form.
Counsel relied upon Mclntyre and another v. Hardcastle(1).
The English rule laid down in that decision is that if two
or more landlords institute a suit for possession on the
ground that a dwelling house is required for occupation of
one of them as a residence the suit would fail. The re-
quirement, according to the decision, must be of all the
landlords.
The High Courts of Calcutta and Gujarat have dissented
from the rule of English law in Mclntyre’s case (supra) (See
Kanika Devt and Ors. v. Amarendra Nath Roy Choudhuri and
Ors,(2) Tarak Chandra vs. Ratanlal Ghosal;(3) Taherbhai
Hebtullabhai and another v. Ambalal Harilal Shah & Ant.(4).
Deb Ranjan Chatterjee v. Swaranarani Biswas & another(5).
Indeed the rule in Mclntyre’s case (supra) is abhorrent
to the Indian conception and structure of social life of
our country with its benign sensitivity and ties, which
is not based on pure individualism. A widowed sister, sud-
denly shipwrecked in the mid-stream of married life, with no
other help, returns to parental home or to her brothers’
where sympathetic and affectionate shelter is readily avail-
able to her. In such a case the additional requirement of
the widowed sister and her children may furnish a reasonable
requirement of the father or the brothers for the purpose of
eviction of their tenant. It is enough if the requirements
are of any one of the members of the family or of dependents
to furnish a reasonable plea for eviction on the ground of
personal requirement.. We endorse the parting of the ways
from the English rule on this aspect of the matter by the
High Courts. This is in accord with healthy Indian tradi-
tion.
(1) (1848) 1 All E.R. 696. (2) 65 C.W.N. 1076.
(3) 1959 G.L.J. 136. (4) I.L.R. [1966] 7 Guj.-963
(5) 78 C.W.N. 1034.
400
Keeping in the forefront the observations of the Bombay
High Court in Vagha jesing v. Manilal Bhagilal Desai(1)
(at page 252) where reference has been made to the land-
lords’ rights belonging jointly to several persons and
hence warranting a suit by all the coowners, Mr. Tarkunde
drew our attention to the admission of the plaintiff in his
deposition regarding the death of his father in 1949 and
that Bhagat Ram Pasricha was inducted by him as instructed
by his father to do so. From this he submitted that all the
heirs of late Motilal Sen were the landlords and, there-
fore, they should have been impleaded as plaintiffs in the
suit. We are unable to give effect to this submission taken
for the first time in this Court in view of the clear ac-
knowledgement and admission of the defendants and concur-
rent findings of the courts that the plaintiff is their
landlord.
Mr. Tarkunde also relied’ upon a Full Bench decision of
the Gujarat High Court in Nanalal Girdharlal and another v.
Gulamnabi Jamalbhai Motorwala and others(") and read to us
the following passage at page 146:
"It is, therefore, clear that the rule that a
co-owner may maintain an action to eject a tres-
passer without joining other co-owners in such
action can have no application where a co-owner
seeks to evict a tenant who is in possession of the
property after determination of the lease. Such a
tenant can be evicted only by an action taken by
all co-owners"
But this rule is not applicable in the present case as would
appear from the decision itself. The Gujarat decision at
para 10 of the judgment excludes two categories described
therein and the rule of estoppel applies to these two
categories. The present case, even according to this deci-
sion, fails under the excepted category.
Before we come to the real question at issue we may
turn to section 13(1)(f) of the Act as it was at the mate-
rial time:
Sec. 13. protection of tenant against eviction-
(1) Notwithstanding anything to. the contrary
in any other law, no order or decree for the
recovery of possession of any premises shall be
made by any Court in favour of the landlord
against a tenant except on one or more of the
following grounds, namely --
(f) where the premises are reasonably re-
quired by the landlord either for purposes of
building or rebuilding or for making thereto
substantial additions or alterations or for his own
’occupation if he is the owner or for the occupa-
tion of any person for whose benefit the premises
are held".
(1) 37 Born. L.R. 249. (2) A.I.R.1973 Guj. 131.
401
This is not a case attracting the second part of section
13(1)(f), that is to say, the clause providing for the
occupation of any person for whose benefit the premises are
held. We will not, therefore, refer to the submission of
the appellant and to the decisions relied . upon by him
with reference to that clause.
The present case, on the facts found, is covered by the
first part of section 13(1 )(f), namely, where the premises
are reasonably required by the landlord for his own occupa-
tion if he is the owner.
There is no dispute that the plaintiff is the landlord.
It is, however, found that he is one of the co-owners of
the premises the other co-sharers being his mother and
married brother, who reside in the Same premises along with
him. The premises m suit, namely, the second floor of the
building in occupation of the tenant is required by the
plaintiff for occupation of the members of the joint family
and for their benefit. A major portion of the ground floor
of the building accommodates the joint family business and
the first floor is found by the court to be inadequate to
the requirements of the large family of eighteen members
including the widowed mother.
That the particular requirement is reasonable is no
longer in controversy. The only question is whether a
decree can still be passed in favour of the plaintiff
since he is not the absolute and full owner of the premises,
sharing, as he does, the interest in the premises along with
other co-sharers.
The principal question, therefore, is whether the plain-
tiff being a co-owner landlord can be said to reasonably
require the premises for his own occupation within the
expression "if he is the owner" in section 13 ( 1 ) (f).
Mr. V.S. Desai reads to us from Salmond on Juris-
prudence (13th edition) and relies on the following passage
in Chapter 8 (Ownership), paragraph 46 at page 254:
"As a general rule a thing is owned by one
person only at a time, but duplicate ownership is
perfectly possible. Two or more persons may at the
same time have ownership of the same thing vested
in them. This may happen in several distinct
ways, but the simplest and most obvious case is
that of co-ownership. Partners, for example, are
co-owners of the chattels which constitute their
stock-in trade of the lease of the premises on
which their business is conducted, and of the debts
owing to them by their customers. It is not
correct to say that property owned by co-owners is
divided between them, each of them owning a sepa-
rate part. It is an undivided unity, which is
vested at the same time in more than one
person ...... The several ownership of a
part is a different thing from the co-ownership
of the whole. So soon as each of two co-owners
begins to own a part of the thing instead of the
whole of it, the co-ownership has been dissolved
into sole
402
ownership by the process known as partition. Co-
ownership involves the undivided integrity of what
is owned".
Jurisprudentially it is not correct to say that a co-
owner of a property is not its owner. He owns every part
of the composite property along with others and it cannot
he said that he is only a part-owner or a fractional owner
of the property. The position will, change only when parti-
tion takes place. It is, therefore, not possible to accept
the submission that the plaintiff who is admittedly the
landlord and co-owner of the premises is not the owner of
the premises within the meaning of section 13(1)(f). It is
not necessary to establish that the plaintiff is the only
owner of the property for the purpose of section 13(1)(f) as
long as he is a co-owner of the property being at the
same time the acknowledged landlord of the defendants.
Mr. Tarkunde also submitted that since the Calcutta High
Court has held in Yogamaya Pakhira v. Santi Subha Bose(1)
that a permanent lessee is not an owner within the meaning
of section 13 (1)(f) a co-owner would not be in a better
position. We are of opinion that a co-owner is as much an
owner of the entire property as any sole owner of a property
is. We, however, express no opinion about the case of a
permanent lessee as this point does not arise in this ap-
peal.
As all the submissions of the appellant fail, the appeal
is dismissed. We will, however, make no order as to costs.
P.H.P. Appeal dis-
missed.
(1) I.L.R. (1968) 2 Cal. 70.
403