A co-owner can validly serve a notice to quit on a tenant, even in the absence of the other co-owners, if he is acting with their consent, express or implied.

( 1 ) THIS is tenants second appeal, Courts below having rendered non-concurrent judgements. At the stage of admission itself parties have exchanged counter and rejoinder affidavits and it was urged that since the only question involved in the appeal was about the validity of the notice the same may be disposed of at this very stage. In view of this the parties were heard on merits as well.

( 2 ) TO have a hang of the dispute between the parties it will be better to comprehend the relevant facts. The plaintiff claiming to be the owner of an open piece of land claimed that the defendant was his tenant. A notice under Sec. 106 of the Transfer of Property Act was served whereupon the suit was filed for his eviction. The suit was resisted by the tenant on several grounds but the main ground was that the defendant was continuing as tenant from the time of the plaintiffs father. It was also contended that Keshav Dev and Jagannath were the real owners of the property and since all the heirs of the two had not joined in serving the notice, the plaintiff alone had no right to file the suit or to terminate the tenancy. In this connection it was also alleged that the widow, two daughters and one other son of Keshav Dev have not been joined in the suit and it was, therefore, defective on that ground also.

( 3 ) IT is not disputed that the property was not let out by the plaintiff to the tenant. His tenancy was continuing from before it devolved on the plaintiff. The plaintiffs grandfather Angan Lal had two sons, Jagannath and Keshav Dev. Jagannath left behind him one son and two daughters. He died near about 1968 while Keshav Dev died in 1960-61 leaving behind him two sons and two daughters besides his widow. According to the plaintiff there had been a family settlement between his father and uncle and subsequently there was yet another settlement between himself and his brother, sister and mother after 1960 which was, however, not in writing. Admittedly, the defendant had been paying rent to the plaintiff ever since 1968. The trial Court dismissed the plaintiffs suit holding that he alone was neither competent to file the suit nor to validly terminate the tenancy. This decision has been reversed by the lower appellate Court relying upon a decision of this Court in Rang Nath v. State of U. P. , 1984 All Ren Cas 642 and two decisions of the Supreme Court in Sri Ram Pasriha v. Jagannath, AIR 1976 SC 2335 and Smt. Kanta Goel v. B. P. Pathak, AIR 1977 SC 1599.

( 4 ) LEARNED counsel for the appellant relied heavily on a number of decisions of this Court in support of his contention that only one of the co-owners or co-lessors was not competent to terminate the tenancy. In Abdul Shami v. Mohd. Ashfaq, 1979 UP Ren CC (Supp) 672, it was held that although one of the landlords may realise the rent for the collective body of landlords, but in such a situation the landlord realising the rent cannot be said to be the sole landlord of the premises. The realisation of rent will be by or under the authority of all concerned. In such a situation the fact that the plaintiff was realising the rent would not by itself be sufficient to hold that he was the sole landlord of the premises in question as the term lessor includes the plural. It was also held that one lessor alone can serve a notice terminating the tenancy as an agent of the other co-lessors for which express or implied authority must exist as on the date of the notice. In that case initially the father of the plaintiff was the landlord and on his death he was survived by two sons and four daughters. The suit was filed by one of the sons but in the absence of proof that he was doing so as an agent for the other co-lessors the notice was held to be invalid.

( 5 ) IN Devi Charan v. 3rd A. D. J. , 1980 All Ren Cas 381, Honble R. R. Rastogi, J. , was dealing with a case where the joint owners of the property consisting of two adjoining shops had partitioned them and the disputed shop f