The main legal point established in the judgment is the determination of the defendant's status as a co-owner and the consequent impact on the claim for rent and damages.

Varadachariar, J.

1. This second appeal arises out of a suit for rent. The appellants are husband and wife but it will be convenient to refer to the husband who is the first plaintiff as the plaintiff. He has a brother named Hanumantha Rao and the arrangement made by the defendant with Hanumantha Rao for the purchase of the latters undivided half share in the suit house has been the cause of differences and disputes between the parties.

2. It is admitted by the defendant that, to begin with, he was a tenant of the whole of the suit house under the plaintiff who at that time is said to have acted on behalf of himself and of his brother Hanumantha Rao. Later on, however, it seems to be common ground that the defendant was a tenant only of the eastern portion of the house, which is referred to as portion A in the plan. It also appears from the evidence that for some years, up to 1925, the western portion was in the occupation of another tenant, but it is stated that the western portion was much less commodious and as it also got into disrepair it was apparently not continued to be occupied by anybody. The latest registered lease between the parties seems to have been entered into in 1918 for a period of two years, but though its term expired in 1920 the defendant admits having continued in occupation of the eastern portion presumably on the same terms as under Ex. A, till October, 1926. The plaint alleged that during the interval there was a fresh arrangement for payment of enhanced rent but apparently that allegation has not been persisted in.

3. The dispute between the plaintiff and his brother is said to have been the result of an attempt on the plaintiffs part to treat the eastern portion of the house which is said to be the better portion of the property as having become his own and trying to force the western portion on the brother, while the brother contended that both of them were undivided and that plaintiff was not entitled exclusively to the eastern portion. The defendant apparently was induced to make some capital out of these unfortunate differences between the brothers and purported to purchase Hanumantha Raos undivided half share in the suit property. After the defendant obtained this sale deed from Hanumantha Rao, the plaintiff on 1st November, 1926, purported to transfer to his wife the eastern portion of the house treating it as his property and on 19th November, 1926, the wife sent a notice, Ex. V, to the defendant asking him to quit the house on 15th January, 1927. The defendant promptly replied by Ex. V-A stating that he did not even propose to wait till 15th January, 1927, but as from the date of his purchase from Hanumantha Rao he had in law become a co-owner of the house, there was no longer any relationship of landlord and tenant between themselves. He no doubt says that the sale by the plaintiff to his wife was collusive and nominal, but it certainly does not lie in the plaintiffs mouth to say that it was not open to the wife to give that kind of notice.

4. The claim in the plaint was that the defendant was bound to pay rent as from 30th August, 1926, but alternatively the claim was also put forward as one for damages for use and occupation. The written statement raised the plea foreshadowed in the reply notice, Ex. V-A. It was also stated that rent had in fact been paid to the plaintiff up to 31st October, 1926. The rent suit was in the first instance filed in the Masulipatam Sub-Court as a Small Cause suit. Within five or six weeks after its institution, the defendant on the strength of the sale-deed obtained by him from Hanumantha Rao filed a suit for partition of the suit house in the District Munsiffs Court. The rent suit was accordingly transferred to the Munsiffs Court and the two suits were tried together.

5. In the partition suit both the Courts upheld the plea that there was no partition between the brothers, that the present plaintiff was therefore not entitled in his own right to the easte