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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE G. RAJASURIA
Ramaswamy
Versus
Palaniandi (died) & Others
A.S.No.861 of 1998
Decided on: 22-09-2008
Partition - Lease Arrangement - Transfer of Property Act - [KEYWORD] - [SUBJECT] - [Section 105, Section 111, Section 116 of Transfer of Property Act] - The court discussed the legal status of the defendant in the suit property, the distinction between tenant by sufferance and tenant holding over, and the effect of holding over. The court held that the defendant was a tenant at sufferance and not entitled to any notice. The court also set aside the direction of the trial Court for operating the suit rice mill on a turn basis and ordered the parties to work out their remedy during final decree proceedings for managing the rice mill and sharing the net income.
Fact of the Case:
The plaintiffs sought partition and separate possession of their ¾th share in the suit properties, including a rice mill, from the defendant. The defendant contended that the suit for partition was not maintainable and that he was a statutory tenant in the suit property. The trial Court decreed the suit in favor of the plaintiffs, granting them possession and mesne profits.
Finding of the Court:
The court found that the defendant was a tenant at sufferance and not entitled to any notice. The court set aside the direction for operating the rice mill on a turn basis and ordered the parties to work out their remedy during final decree proceedings for managing the rice mill and sharing the net income.
Issues: The status of the defendant in the suit property, liability to pay mesne profits, feasibility of operating the rice mill on a turn basis, and infirmity in the judgment and decree of the trial Court.
Ratio Decidendi: The defendant was a tenant at sufferance and not entitled to any notice. The direction for operating the rice mill on a turn basis was set aside, and the parties were ordered to work out their remedy during final decree proceedings for managing the rice mill and sharing the net income.
Final Decision: The appeal was partly allowed, setting aside the direction for operating the rice mill on a turn basis and ordering the parties to work out their remedy during final decree proceedings for managing the rice mill and sharing the net income. No costs were awarded.
1. This appeal is focussed by the defendant as against the judgment and decree dated 210. 1998 passed by the learned Subordinate Judge, Cuddalore in decreeing the suit in O.S.No.493 of 1992, which was filed by the plaintiffs as against the defendants seeking partition and separate possession of the plaintiffs ¾th share in the suit properties and for mesne profits. For convenience sake, the parties are referred to here under according to their litigative status before the trial Court.
2. Quintessentially and briefly, pithily and precisely, the case of the plaintiffs as stood exposited from the averments in the plaint could be portrayed thus:
a) The plaintiffs and the defendant are the children of one Dharmalinga Mudaliar and his second wife Thangammal. Dharma Linga Mudaliars first wife was Soundaram Ammal, who was none but the elder sister of the said Thangammal . Soundaram Ammal had no issues.
b) The property described in the schedule of the plaint, which comprised of the plot and the rice mill building over it including machineries, originally belonged to Soundaram Ammal, who bequeathed the same in favour of the plaintiffs and the defendant by virtue of a Will dated 04.03.1966. Upon her death in the year 1968, the said Will came into effect. As per the terms of the Will, the plaintiffs and the defendant are entitled to life estate over the suit property and their respective male issues would take the property absolutely.
c) The plaintiffs and the defendant entered into a partnership on 13.09.1980 and were running the said rice mill; subsequently, they entered into a lease agreement on 25.06.1986, which contemplated a lease period of five years, under which the defendant took exclusive possession of the rice mill and he was paying a sum of Rs.450/- per mensem in favour of each of the plaintiffs up to 25.06.1991.
d) The plaintiffs did not want the defendant to continue in management of the rice mill beyond 25.06.1991; whereupon the defendant filed O.S.No.746 of 1991 before the District Munsif Court, Cuddalore and it was transferred to Sub Court, Cuddalore and numbered as O.S.No.158 of 1992, for injunction restraining the plaintiffs from disturbing his possession of the suit properties, even though he was not in possession of the suit properties on that date. The rice mill was kept closed. The plaintiffs filed O.S.No.386 of 1991 for partition and for separate possession of their ¾ th share in the suit properties and for other ancillary reliefs.
e) The defendant herein contended that the said suit for partition was not maintainable in view of non-determining of the tenancy in his favour by issuance of a notice. By way of abundant caution, the plaintiffs issued notice on 28.06.1992 to the defendant terminating the tenancy ending with the following month. The plaintiffs also had the previous suit withdrawn on 11. 1992. The said lease deed referred to supra was a void document for want of registration. The defendant cannot be a tenant holding over, as after 25.06.1991, the plaintiffs did not receive any rent from the defendant. In view of the fact that the rice mill cannot be divided into four shares, the best course would be for the plaintiffs to run the rice mill for three weeks and the defendant could run it for one week in a month in commensurate and in concinnity with their respective shares in it. Accordingly, they sought for the following main reliefs:
.(i) for partition and separate possession of the plaintiffs ¾ ths share in the suit property;
.(ii) for obtaining past and future mesne profits in favour of the plaintiffs against the defendants from 25.06.1991 till date of suit;
3. Per contra, denying and refuting, challenging and impugning the allegations/averments in the plaint, the defendant filed the written statement setting out various averments, the gist and kernel of it would run thus:
a) The relationship and the factum of Will as found set out in the plaint are admitted. The partnership deed dated 04.0
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