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1996(8) Supreme 288
SUPREME COURT OF INDIA
Kuldip Singh and S. Saghir Ahmad, JJ.
Sk. Sattar Sk. Mohd. Choudhari -Appellant
versus
Gundappa Ambadas Bukate -Respondent
Civil Appeal No. 6972 of 1996
Decided on 11-10-1996
Counsel for the Parties :
For the Appellant : Uday Umesh Lalit, Advocate.
For the Respondent : S.K. Dhokakia, Sr. Advocate, Prashant Kumar and A.M. Khanwilkar, Advocates.
Held : In view of the above discussion, it is obvious that the law with regard to the spliting of tenancy is not what the High Court has set out in the impugned judgment. As pointed out earlier, a co-sharer cannot initiate action for eviction of the tenant from the portion of the tenanted accommodation nor can he sue for his part of the rent. The tenancy cannot be split up either in estate or in rent or any other obligation by unilateral act of one of the co-owners. If, however, all the co-owners or the co-lessors agree among themselves and split by partition the demised property by metes and bounds and come to have definite, positive and identifiable shares in that property, they become separate individual owners of each severed portion and can deal with that portion as also the tenant thereof as individual owner/lessor. The right of joint lessors contemplated by Section 109 comes to be possessed by each of them separately and independently. There is no right in the tenant to prevent the joint owners or co-lessors from partitioning the tenanted accommodation among themselves. Whether the premises, which is in occupation of a tenant, shall be retained jointly by all the lessors or they would partition it among themselves, is the exclusive right of the lessors to which no objection can be taken by the tenant, particularly where the tenant knew from the very beginning that the property was jointly owned by several persons and that, even if he was being dealt with by only one of them on behalf of the whole body of the lessors, he cannot object to the transfer of any portion of the property in favour of a third person by one of the owners or to the partition of the property. It will, however, by open to the tenant to show that the partition was not bona fide and was a sham transaction to overcome the rigours of Rent Control laws which protected eviction of tenants except on specified grounds set out in the relevant statute. (Para 37)
We have already indicated above that during the pendency of the appeal in this Court the respondent has purchased the remaining portion of the shop, which had fallen in the share of the appellant s brother. This portion measures 23 x 7½ . It has been purchased from Smt. Zubedabi, wife of appellant s brother, in whose share the said portion had fallen on partition, and who had gifted that portion to his wife. The copy of the sale-deed has been filed in this Court, to which no objection has been taken by the counsel for the respondent. The respondent does not deny the transaction. He having purchased the remaining portion of the shop, became the owner thereof and his interest as a tenant merged in his right as an owner of that portion. He, therefore, remained a tenant only in respect of the disputed portion and consequently the suit filed by the appellant in respect of that portion was clearly maintainable. (Para 40)
Certainly. Based on the provided legal document, the key points are as follows:
When co-owners or co-lessors agree to partition the property by metes and bounds, and obtain definite, positive, and identifiable shares, they can deal with their respective portions and the tenant thereof as individual owners or lessors (!) (!) .
The law does not permit unilateral splitting of tenancy rights among co-owners. A co-sharer cannot independently initiate eviction proceedings or sue for rent from a tenant occupying the entire premises unless there is an agreement and partition that results in separate ownership of specific portions (!) .
If all co-owners or co-lessors agree and partition the property, each becomes a separate owner of their designated share and can deal with that portion and the tenant as individual lessors. The right to partition and deal with the property is solely within the rights of the lessors, and tenants cannot object to such partition or transfer unless it is a sham to evade rent laws (!) (!) .
The act of partition, when done by agreement and with definite boundaries, is not considered a transfer under the law, but it results in each co-owner having a specific and separate interest in the property (!) (!) .
The rights of a transferee or owner of a partitioned share include the ability to recover possession from tenants of that specific share, and such rights are recognized under relevant property laws (!) (!) .
The transfer of property, including partition, is subject to the principles of notice and knowledge. A tenant who is unaware of a transfer or partition cannot be held liable to pay rent to a new owner until proper notice is given (!) (!) .
The legal doctrine allows for the merging of a tenant’s interest with the ownership of a specific share after the owner acquires that share through purchase or partition, rendering the tenant’s lease in that portion as extinguished or merged (!) (!) .
The law recognizes that tenants in joint or undivided properties have rights, but these rights can be affected by valid partition agreements among co-owners, which, when properly executed, enable individual owners to deal with their respective portions and tenants accordingly (!) .
The legal position emphasizes that tenants cannot prevent co-owners from partitioning the property or transferring their shares, provided such actions are bona fide and not intended to circumvent rent control laws (!) (!) .
The overall legal stance is that partition by mutual agreement results in separate ownership rights, and each owner can independently enforce their rights, including eviction and rent collection, for their specific share (!) .
Please let me know if you need further elaboration or specific legal advice related to this document.
JUDGMENT
S. Saghir Ahmad, J.-The landlord is in appeal before us against the Judgment and Order dated 17.1.92 passed by the Bombay High Court (Aurangabad Bench) by which the Judgment and Order dated 29.3.84 passed by the Rent Controller and that of the District Judge, Latur passed on 12.2.87, afirming that Judgment, were set aside and the suit of the appellant for eviction of the respondent from the shop in Municipal building No. 2-10 (Old) and 69 (New), Ward No. 22, Bhusar Lane, Latur, was dismissed.
2. Proceedings for eviction were initiated by the appellant on the allegations that the shop measuring 23 x19 was originally owned by his father Shaikh Mohd. Chaudhari who died on 12th of March, 1956 leaving behind the appellant and his elder brother, Shaikh Jaffar, as also two other brothers, as his heirs who inherited his properties including the aforesaid shop. Shaikh Jaffar being the eldest was managing the property, particularly as the appellant was minor in 1964 when the shop was let out to the respondent who paid rent to Shaikh Jaffar and continued to pay it till 1974. In the meantime, there was a partition among the brothers and a portion of the shop measuring 23 x 12½ fell in the share of the appellant who informed the respondent of the above and required him to pay rent to him. A similar information in writing was also given to the respondent by Shaikh Jaffar but the respondent did not pay rent to the appellant and consequently, his tenancy was terminated by notice dated 28.7.76. This was followed by a petition under Section 15 of the Hyderabad Houses (Rent Eviction and Lease) Control Act, 1954 for the eviction of the respondent on the ground of wilful default in payment of rent as also for the personal need of the appellant who wanted to run his cutlery business in the said shop.
3. This petition was filed before the Rent Controller before whom the respondent, in his reply, raised the plea that the shop having been let out to him on behalf of several brothers, he could not be legally evicted at the instance of one of them as tenancy was indivisible. He pleaded that the petition was not maintainable. He also pleaded that the so-called partition amongst the brothers was mala fide and, in any case, notice for attornment was not given to him. He also pleaded that the shop was not bona fide required by the appellant and that, in any case, he was not a defaulter as he was all along tendering the rent to the landlord but the same was refused by him.
4. The petition was allowed by the Rent Controller by his Judgment and Order dated 29.3.84 which was upheld in appeal by the District Judge by his Judgment and Order dated 12.2.87.
5. The High Court before whom the matter was thereafter taken, reversed the Judgment of the Rent Controller and that of the District Judge principally on the ground that the question of maintainability of the petition was not considered and the Rent Controller as also the District Judge had not adverted their mind to the question that the tenancy of the shop in question, held by the respondent, was indivisible. The partition, if any, amongst the brothers would not affect the lease which would still remain indivisible and consequently, eviction proceedings at the instance of only one of the co-landlords would not be maintainable.
6. During the pendency of the appeal in this Court, the respondent purchased the remaining portion of the shop namely, the portion measuring 23 x 7½ which had fallen in the share of the appellant s brother, Shaikh Ahmad Chaudhari, from Smt. Zubedabi, his wife, to whom he had gifted the property and thus he claimed to have become the owner of that portion of the shop.
7. We have heard the learned counsel for the parties and have gone through the record.
8. The emphasis of the High Court was, throughout the judgment, on the indivisibility of contract of tenancy. The High Court treaded on a path which led it to a blind alley and did not take diversion which would have opened u
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