Basic concept of Gratuitous licensee

Gratuitous licensee is a person who is permitted, though not invited, to enter another individual's property. A gratuitous licensee provides no consideration in exchange for such permission.

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Notes on Malpe Vishwanath Acharya's Judgment

Malpe Vishwanath Acharya and ors. Vs. State of Maharashtra (AIR 1998 SC page 602)

The judgment leading to enactment of the MRC Act :-

The judgment of the Hon'ble Supreme Court11 led the

enactment of the MRC Act . “Lex injusta non est lex” (unjust laws

are not laws) was the legal maxim which was contended by the

landlords in their Appeals and the connected Writ Petitions, in

which, the validity of the relevant provisions the BRC Act, insofar

as it provides that landlords cannot charge rent in excess of the

standard rent was challenged. The Appellants were landlords or

their representative of different premises in Mumbai which had

been given on rent to various tenants. They filed Writ Petitions in

the Hon'ble High Court challenging constitutional validity of

Section 5(10)(B), Section 11(1) and Section 12(3) of the BRC Act

inter alia on the ground that the said provisions pertaining to

standard rent were ultra vires to Articles 14, 19 & 21 of the

Constitution. The main challenge to the said provisions was on the

ground that restrictions on the rights of the landlord to increase the

rent which has been frozen as on 1st September,1940 or at the time

of first letting are no longer a reasonable restriction on the right of

the landlord to increase the rates.

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Whether it is mandatory for landlord to file cross objection if his eviction suit is decreed only one ground out of three grounds?

 The respondent landlord filed a suit for possession against the petitioner tenant on the ground of default and permanent construction. The trial Court negatived the ground of default in payment of the rent but decreed the suit on the ground that petitioner had made a pot mala without the permission of the respondent and that amounted to making of a permanent construction in the suit premises. On appeal, the appellate Court confirmed the decree on the ground of permanent additions and alterations in the suit premises and also held that the respondent was entitled to a decree for possession on the ground of default in payment of the rent by the petitioner.

3. The learned counsel for the petitioner submits that the respondent had not filed any appeal or cross-objections challenging the finding that the petitioner was not a defaulter and therefore, the appellate Court erred in reversing the finding of default in payment of the rent and passing a decree on that ground. The contention is fallacious. Sub-rule (1) of Rule 22 of Order 41 of the Code of Civil Procedure reads as under:-

22. (1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.

Explanation - A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent.

Under Sub-rule (1) the respondent, though he might not have appealed from any part of the decree, the respondent is entitled not only to support the decree but may also state that the finding against him in the Court below in respect of any issue ought to have been given in his favour. For doing so, he is not required to file any cross objections. This is clear from the wording of Sub-rule (1) of Rule 22. A landlord in whose favour a decree has been passed on one or more of the several grounds, may not only support the decree for possession on the grounds on which it has been passed, but may also contend that the finding on the issues decided against him ought to have been given in his favour. In other words, he can support the decree not only on the ground in which the decree was passed but also on the other grounds which have been decided against him by the trial Court. Therefore, there is no merit in the contention that in the absence of cross objections the appellate Court could not have passed a decree on the ground of decree on the ground of default.

Equivalent Citation: 2005(2)BomCR463, 2005(107(1))BOMLR118, 2004(4)MhLj1020

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 929 of 1999

Decided On: 22.06.2004

Shri Lalji Ramnath Pande Vs.  Smt. Hawabi Abdulla Shaikh

Hon'ble Judges/Coram:
D.G. Karnik, J.
Read full judgment here:Click here

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Important judgments on rent law Part 2

1) When it is permissible for landlord to file suit for eviction on ground of arrears of rent?

The   view   expressed   by   Division   Bench   in   the   matter   
Chandiram Ahuja (supra) lays down correct preposition and we are
in agreement with the view expressed by the Division Bench in
aforesaid matter.   The view expressed by Division Bench in the
matter of Narhar Wani (supra) does not lay down correct law and we disagree with the view expressed therein.  
To infer that once the tenant pays the amount recorded in
the   notice   or   tenders   the   same,   the   landlord   has   no   right   to
institute a suit for recovery of possession for non­payment of those
arrears   or   continue   with   such   proceeding   for   eviction   and   no
decree for possession can be asked for, is not within contemplation
of provisions of section 15 of the Act.   The provision does not
interfere with the right of the landlord to initiate proceeding for
eviction,   however,   sub­section   (2)   of   section   15   prescribes
precondition for presentation of suit, that is to say that no suit can
be initiated without issuing a notice within contemplation of said
sub­section (2) of section 15 and tenant's entitlement to claim relief
against   forfeiture   shall   be   subject   to   fulfilment   of   conditions
stipulated under sub­section (1) and (3) of section 15 of the Rent

Act.
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CIVIL REVISION APPLICATION NO. 76 OF 2010
  
Babulal s/o Fakirchand Agrawal Vs  Suresh s/o Kedarnath Malpani

CORAM : R.M. BORDE, 
      RAVINDRA V. GHUGE &
      SANGITRAO S. PATIL, JJJ

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Important Judgments on rent law Part 1

1)How to appreciate bonafide need of landlord?

It is well settled that the courts cannot ordinarily doubt the bona fide need of the landlord nor the courts can dictate to the landlord as to how the premises owned by him should be used. It is sufficient for the landlord to express his desire to occupy the premises which are owned by him. It is not necessary for the landlord to establish the dire necessity but it is enough to show that some need exists.

Bombay High Court

Balwant P. Doshi vs Shantaben Dhirajlal Shah And Anr. on 4 July, 2002

Equivalent citations: 2003 (2) BomCR 190, 2002 (4) MhLj 473

Bench: A Khanwilkar

Read full judgment here: Click here

2) Whether landlord can be denied eviction decree even if tenant acquires alternative accommodation?

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Whether exemption from rent law is in respect of premises or with respect to parties?

It is well settled by a decision of this Court in Bhatia Cooperative Housing Society Ltd. v. D.C. Patel MANU/SC/0064/1952 : [1953]4SCR185 wherein pari materia provisions contained in the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 came up for consideration of this Court. It was held that the exemption is not conferred on the relationship of landlord and tenant but on the premises itself making it immune from the operation of the Act. In identical facts, as the present case is, the decision of this Court was followed by the High Court of Madhya Pradesh in Radhevlal Somsingh v. Ratansingh Kishansingh MANU/MP/0095/1977 : 1977 MPLJ 335 and it was held that the immunity from operation of the Madhya Pradesh Accommodation Control Act, 1961 is in respect of the premises and not with respect to the parties. If a tenant in municipal premises lets out the premises to another, a suit by the tenant for ejectment of his tenant and arrears of rent would not be governed by the Act as the premises are exempt under Section 3(1) (b) of Act though the suit is not between the municipality as landlord and against its tenant. We find ourselves in agreement with the view taken by the High Court of Madhya Pradesh in Radheylal's case.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2704 of 2000

Decided On: 01.05.2003

 Parwati Bai Vs.  Radhika

Hon'ble Judges/Coram:

R.C. Lahoti and B.N. Agrawal, JJ.

Citation: AIR 2003 SC 3995,(2003) 12 SCC 551

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Notes on Presidency Small Cause court Act 1882

https://drive.google.com/file/d/1B9ta-TijBfXqDBJ4cCvkZ9jOnYDsW1wv/view?usp=sharing

27. Decree-holder to accompany officer executing warrant.—Whenever the Small Cause Court issues a warrant for the arrest of a judgment-debtor or the attachment of his property, the decree-holder, or some other person on his behalf, shall accompany the officer of the Court entrusted with the execution of such warrant, and shall point out to such officer the judgment-debtor or the property to be attached, as the case may be.

31. Execution of decree of Small Cause Court by other Courts.—If the judgment-debtor under any decree of the Small Cause Court has not, within the local limits of its jurisdiction, movable property sufficient to satisfy the decree, the Court may, on the application of the decree-holder, send the decree for execution—

(a) in the case of execution against immovable property situate within such local limits— [to the Madras City Civil Court or the High Court of Judicature at Fort William or Bombay, as the case may be];

(b) in all other cases—to any Civil Court within the local limits of whose jurisdiction such judgment-debtor, or any movable or immovable property of such judgment-debtor, may be found.

Procedure when decree transferred.—The procedure prescribed by the Code of Civil Procedure (14 of 1882) for the execution of decrees by Courts other than those which made them shall be the procedure followed in such cases.

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Rights of tenant under SARFAESI amendment act 2016

141[17. Application against measures to recover secured debts].—(1) Any person (including borrower) aggrieved by any of the measures referred to in sub-section (4) of Section 13 taken by the secured creditor or his authorised officer under this chapter, 142[may make an application along with such fee, as may be prescribed,] to the Debts Recovery Tribunal having jurisdiction in the matter within forty-five days from the date on which such measure had been taken:

143[Provided that different fees may be prescribed for making the application by the borrower and the person other than the borrower.]

144[Explanation.—For the removal of doubts, it is hereby declared that the communication of the reasons to the borrower by the secured creditor for not having accepted his representation or objection or the likely action of the secured creditor at the stage of communication of reasons to the borrower shall not entitle the person (including borrower) to make an application to the Debts Recovery Tribunal under this sub-section.]

145[(1-A) An application under sub-section (1) shall be filed before the Debts Recovery Tribunal within the local limits of whose jurisdiction—

(a) the cause of action, wholly or in part, arises;

(b) where the secured asset is located; or

(c) the branch or any other office of a bank or financial institution is maintaining an account in which debt claimed is outstanding for the time being.]

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Burden of proof is on whom to prove issue of comparative hardship in eviction suit?

 In Mst. Bega Begum and Others v. Abdul Ahad Khan (dead) by Lrs. and others, MANU/SC/0313/1978 : (1979) 1 SCC 273 pari materia provision contained in J & K Rent Act came up for the consideration of this Court. It was observed that it is no doubt true that the tenant will have to be ousted from the house if a decree for eviction is passed but such an event would happen whenever a decree for eviction is passed and merely because the tenant will be ousted from the premises where he was running his activity cannot, by itself, be considered to be a hardship and be a valid ground for refusing the landlord a decree for eviction. In deciding the extent of the hardship, each party has to prove its relative advantages or disadvantages and the entire onus cannot be thrown on plaintiffs to prove that lesser disadvantages will be suffered by the defendants and that they were remediable. The owner of the property cannot be denied eviction and compelled to live poorly merely to enable the tenants to carry on their flourishing business activity at the cost of the landlord. The fact that there is no other means for the landlord to augment his income except by getting the tenancy premises vacated compared against the conduct of the tenant who having obtained the premises for a fixed number of years has overstayed and enjoyed the premises for a long period of time are relevant factors not to deprive the landlord from the possession over the tenancy premises and recording a finding of no equity in favour of the tenants continuing in possession any further. If the tenants prove that they will not be able to get any accommodation anywhere in the city that may be a relevant consideration. However, the tenant cannot insist on getting an alternative accommodation of a similar nature in the same locality because that will be asking for the impossible. What are to be weighed as relevant factors are the comparative inconvenience, loss, trouble and prejudice.

35. A perusal of these paragraphs would go to show that nowhere the Supreme Court held that there is no requirement to raise pleadings. What the Supreme Court held in paragraph 10 is that it is expected of the parties to raise necessary pleadings and the Court to frame necessary issues based on the pleadings so as to enable the parties to adduce evidence and bring on record such relevant material as would enable the Court forming an opinion on the issue of comparative hardship and consistently with such finding whether a partial eviction would meet the ends of justice. Even if no issue has been framed, the Court may discharge its duty by taking into consideration such material as may be available on record.

 IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 257 of 2007

Decided On: 22.02.2013

Chetan Anand Shetty  Vs.  Indrajeet Chandrasen Shirole and Ors.

Hon'ble Judges/Coram:

S.C. Dharmadhikari, J.

Citation: 2013(3) MHLJ 310,2013(3) ALLMR 33,2013(4) AIR BOM R 530.

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Important judgments on rent law part 3

1)When revision is tenable against orders passed under Maharashtra rent control Act?

For an order to be revisable under section 34(4) of the Maharashtra Rent Control Act, the order must affect the very existence of the suit or the foundation of the party's case in their pleadings and not merely a procedural order, not affecting the substantive rights of parties, though such procedural order may ultimately affect the strength or weakness of the case of the aggrieved litigant which is to be finally determined at the trial while passing the decree in the suit or final order in the proceeding.

85. Following are instances of revisable orders.

(i) an order refusing leave to amend the plaint or written statement, where the proposed amendment is for assertion of rights or liabilities under the Rent Act or any other substantive law

(ii) an order rejecting an application for restoration of the suit under Order 9 Rule 4 of the CPC

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Important provisions of Maharashtra Rent control Act (Part 2)

S 17- Recovery of possession for repairs and re-entry.

S 18- If landlord has obtained eviction decree on ground of bonafide need and he fails to occupy the premises, then court shall order that tenant shall be put in possession.

Chapter 5

Special provisions for recovery of possession in certain cases.

S 23- Members of armed forces, Scientists or their successor in interest are entitled to recover possession of premises required for their occupation.

S 24 Landlord is entitled to recover possession of residential premises given on license on its expiry. Application is to be made before competent authority.

3) On expiry of license, licensee who does not deliver possession to landlord shall pay damages at double rate of license fee fixed under license agreement.

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Important provisions of Maharashtra Rent control Act (Part 1)

S.2 Application:

This Act shall apply to premises let for the purposes of residence, education, business, trade or storage.

S 3 Exemption:

1) This Act shall not apply:

a) to any premises belonging to government or local authority.

b) to any premises let out to banks, any public sector undertakings or any corporation, foreign missions, international agencies, multi-national companies and private limited companies and public limited companies having paid up capital of Rupees one crore or more.

S 7,(9) Definition of premises-Open space is excluded from maharashtra rent control Act.

S 7(15) Tenant means any person by whom or on whose account rent is payable for any premises.

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Whether subsequent eviction suit is liable to be stayed if both suits have same grounds for eviction?

As observed earlier, for application of Section 10 of the Code, the matter in issue in both the suits have to be directly and substantially in issue in the previous suit but the question is what "the matter in issue" exactly means? As in the present case, many of the matters in issue are common, including the issue as to whether the Plaintiffs are entitled to recovery of possession of the suit premises, but for application of Section 10 of the Code, the entire subject-matter of the two suits must be the same. This provision will not apply where few of the matters in issue are common and will apply only when the entire subject matter in controversy is same. In other words, the matter in issue is not equivalent to any of the questions in issue. As stated earlier, the eviction in the third suit has been sought on the ground of non-user for six months prior to the institution of that suit. It has also been sought in the earlier two suits on the same ground of non-user but for a different period. Though the ground of eviction in the two suits was similar, the same were based on different causes. The Plaintiffs may or may not be able to establish the ground of non-user in the earlier two suits, but if they establish the ground of non-user for a period of six months prior to the institution of the third suit that may entitle them the decree for eviction. Therefore, in our opinion, the provisions of Section 10 of the Code is not attracted in the facts and circumstances of the case.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2908 of 2013 (Arising out of S.L.P. (C) No. 14808 of 2012)

Decided On: 05.04.2013

 Aspi Jal and Anr. Vs. Khushroo Rustom Dadyburjor

Hon'ble Judges/Coram:

C.K. Prasad and V. Gopala Gowda, JJ.

Citation: AIR 2013 SC 1712,(2013) 4 SCC333,2013(5) MHLJ147 SC

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Whether gratuitous licensee will acquire right in property by remaining in possession for long time?

Principles of law which emerge in this case are crystallized as under:

(1) No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property. (2) Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession. The caretaker or servant has to give possession forthwith on demand.

(3) The courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant. (4) The protection of the court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or license agreement in his favour.

(5) The caretaker or agent holds property of the principal only on behalf of the principal. He acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession.” Thus, a person holding the premises gratuitously or in the capacity as a caretaker or a servant would not acquire any right or interest in the property and even long possession in that capacity would be of no legal consequences. In the circumstances City Civil Court was right and justified in rejecting the prayer for interim injunction and that decision ought not to have been set aside by the High Court. We therefore, allow the appeal, set aside the judgment under appeal and restore the Order dated 29.04.2013 passed by the Bombay City Civil Court in Notice of Motion No.344 of 2013 in Suit No.408 of 2013.

Reportable

Supreme Court of India

Behram Tejani & Ors vs Azeem Jagani on 6 January, 2017

Bench: Pinaki Chandra Ghose, Uday Umesh Lalit

Citation:2017(2) SCC 759

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Basic principles for determination of compensation to be granted to landlord while granting stay to eviction decree

 What emerge from these are:

(a) The basic burden lies upon the landlord to prove and support his case of reasonable compensation/ mesne profits. He must put on record material documents/ along with the affidavit to support his case of enhanced compensation. The material if placed by the landlord / Licensor / Owner, the Court needs to consider the said material by giving full opportunity to the tenant / Licensee / Occupant / trespasser / obstructionists. Keeping in mind the effect of valuation or architecture's report / opinion and its validity being expert's opinion, which can be subjected to challenge from other side, if case is made out. (Jawajee Nagnatham v. Revenue Divisional Officer, Adilabad, A.P. and Ors. MANU/SC/0745/1994 : [1994]1SCR368 .

(b) The valuation report / opinion may be at least one of the government recognized valuer, apart from private valuer report, if any. Both the parties are free to submit their material on the record to support their case through their respective affidavits. (The Special Land Acquisition Officer v. Sri Siddappa Omanna Tumari and Ors. MANU/SC/0160/1995 : AIR1995SC840 ).

(c) The Court also needs to consider the principle of Order 20 Rule 12 of the C.P.C. while determining this ad-interim compensation/ mesne profits. The Court also needs to keep in mind as observed in Para 8 in Atma Ram (supra), "quantified by this Court in this order, is only a tentative opinion formed by the Court on the basis of material made available for the parties.

The Apex Court in Ramnik Vallabhdas Madhvani and Ors. v. Taraben Pravinlal Madhavani MANU/SC/0891/2003 : (2004)1SCC497 , in reference to mesne profit observed as under:

Mesne profit has been defined in Section 2(12) of the Code of Civil Procedure to mean as profits which the person in wrongful possession of property actually received or might with ordinary diligence would have received therefrom, together with interest on such profits.

The Apex Court in another judgment (Anderson Wright & Co. v. Amar Nath Roy and Ors.) J.T. 2005(11) S.C.3, referring to earlier Supreme Court's judgment (Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd. MANU/SC/1047/2004 : (2005)1SCC705 observed as under:

As held by this Court in Atma Ram Property (P) Ltd. v. Federal Motors (P) Ltd., once a decree for eviction has been passed, in the event of execution such reasonable terms, as would in the opinion of the Appellate Court reasonably compensate the decree holder for loss occasioned by delay in execution of the decree by the grant of stay in the event of the appeal being dismissed.

(d) The Court, needs to consider and take note of (i) the Rent Control Legislation, governing the particular premises/ residential or non-residential. (ii) the Location/ area of the premises (iii) the age/ nature of construction of the building/premises (iv) the facilities in the premises and outside the premises, advantages and disadvantages (v) the market value and the rental value of the premises based on architecture / expert / valuation reports / opinion (vi) other instances of the rent / license fees of similarly situated premises (vii) the date of termination of the tenancy / license.

(e) The Court also needs to consider that the compensation was awarded as condition precedent should not be oppressive and unreasonable which in a given case, if tenant failed to pay, has no option but to suffer the execution of a decree, as observed by the Apex Court. Niyas Ahmed (supra). The user and the use of the premises are also material.

(f) The market value changes with time. The stamp duty is also changes accordingly. The rent/ license fee/ compensation so fixed at the interim period, based upon the market value may in a given case needs to be changed or re-fixed if case is made out. It may go up or go down if market value changes drastically.

(g) One cannot overlook that at the time of basic agreement, both the parties mutually agreed to the particular rent/ Leave license fee irrespective of valuation of the property. Now, when the Court fixes the compensation/ license fee, after termination of the tenancy, there is no question of any agreed rent or compensation. The Court decides the same based upon the material available/ placed on the record read with other various factors as referred in the Judgment. (h) One important aspect is that the Court, after giving opportunities to both the parties, needs to decide the interim and urgent issue of grant of provisional fair and reasonable compensation/occupation charges, based upon authenticated material produced on the record, pending the Appeal, summarily. There is no question of detail trial, but it is an essential condition precedent to grant stay of the eviction decree/order on the footing of Order 41, Rule 5 of Civil Procedure Code. The final decision of the appeal should be uninfluenced by such tentative figure / order. Such provisional payment should be condition precedent but it is always adjustable. The amount so fixed in such proceedings is tentative figure. Such interim order/ payment is always subject to the final result of the appeal.

(i) The cases governing the leave and licence agreement as contemplated under the Mah. Rent Act need to be decided on the basis of the provisions of the Mah. Rent Act, as it provides and empowers the Competent Authority to pass an appropriate order that licensee, after expiry of leave and licence agreement, to pay double the agreed compensation/licence fee, pending the application for eviction. But there is no provision of such double licence fee pending the Appeal under the Mah. Rent Act. Therefore, in such cases in absence of any provision, the Appellate Court may pass appropriate order, considering various factors as referred above.

(j) The cases of trespasser, unauthorised occupant, obstructionist need to be dealt with again on different footing than that of a regular tenant/protected tenant/licensee as they are not governed by the Rent Control Legislation. Such unauthorised or illegal occupants, based upon the material produced on record, after giving opportunity to them may be directed to pay such occupation charges/compensation, pending the Appeal, at the current market rate/ rent which may be determined by the Court, taking note of interest of both the parties.

22. The Ready Reckoner is basically for calculation of the stamp duty as per the Bombay Stamp Act, 1958. The assessment/ calculation of stamp duty of the tenanted premises, if any is also based upon agreed rent. The market value in relation to the property means that property would fetch, particular amount if sold in the open market on the date of the document. The said market value of the property is also useful to consider the capital gain taxes. It is subject to adjudication in a given case, if objected. The market value of the property for the purpose of stamp duty or capital gain taxes, cannot be overlooked but while fixing the rent or license fee or compensation, the formula or method of compensation stamp duty cannot be extended arbitrarily. The various factors referred in this Judgment also need to be considered simultaneously based upon the material placed on record.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 6858 of 2008

Decided On: 07.01.2009

Chandrakant Dhanu and Harishchandra Dhanu  Vs. Sharmila Kapur 

Hon'ble Judges/Coram:

Anoop V. Mohta, J.

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What is distinction between joint tenancy and tenants-in-common?

 The Hindu Succession Act by Section 19 clearly provides that each of the co-heirs takes per capita and takes as a tenant-in-common and not at all as a joint tenant or a joint owner. In the case of joint owners or co-owners or joint landlords on the death of one of them, the other co-owners or joint owners or joint landlords take the land by survivorship. That is not so in the case of tenants-in-common. On the death of any tenants-in-common the share of such a tenant-in-common goes not by survivorship, but to his or her own successors and the incidents of the joint tenancy and tenancy in common are distinct and separate. A distinction has been brought about between the joint tenants and the tenants-in-common in the definition of these two terms in the book 'Law Terms and Phrases' by Aiyer. "Tenancy-in-common" is where two or more persons have undivided possession but distinct estate in any subject of property, in equal or unequal shares, and either by the same or by different titles. On the death of a tenant-in-common the share goes to his representative, and not, as in a joint tenancy, to the survivors. Then a distinction has been brought about between a 'tenancy in common and joint tenancy' thus:

"The joint owners may be tenants-in-common or joint tenants (or coparceners), in the case of tenant-in-common they own the property in ascertained or defined shares, but the property has not been divided into shares. In the case of joint tenancy the joint owners own the property in coparcenary and their shares have not been ascertained and cannot be ascertained except perhaps at the tune of partition. In a tenancy-in-common a joint owner's share is inherited on his death by his personal heirs, whereas in a joint tenancy on the death of a joint owner the property belongs to the surviving joint owners. In a tenancy-in-common each joint owner owns or has a right in his share, in a joint tenancy all the joint owners together own the property, a joint owner having no ascertained share cannot be said to own a particular share in it."

Bombay High Court

Umabai Trimbakrao Talukdar And ... vs State Of Maharashtra And Ors. on 26 March, 1971

Equivalent citations: AIR 1971 Bom 293

Bench: D.B.Padhye

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Whether it is mandatory to issue notice U/S 106 of transfer of property Act for eviction of tenant?

 In the decision of Gujarat High Court in the case of  Shantaben
Harilal Brahmbhatt (supra), it was held that in a suit by landlord to recover
possession of the suit premises, it was necessary to terminate the tenancy of the
tenant.  As in said case the notice issued under Section 12(2) of the Bombay
Rents, Hotel and Lodging House Rates Control Act, 1947 did not terminate the
tenancy, the same was held to be invalid.       It is not possible to agree with
aforesaid view as taken.   The provisions of Section 15(2) of the Act of 1999 are
clear wherein the stipulation is only with regard to demand of standard rent
and permitted increases. In absence of any requirement of terminating the
lease, insistence of compliance with provisions of Section 106(1) of the Act of
1882 would be going beyond said statutory provisions.
In this regard, it would be profitable to refer to the Constitution
Bench   decision   of   the   Supreme   Court   in  V.   Dhanpal   Chettier   V.   Yasoda
Ammal 1979 Mh.L.J. 773 (SC) wherein in paragraph 17 it has been observed
thus :  
“ …. determination  of a lease in accordance with  the Transfer  of
Property   Act   is   unnecessary   and   a   mere   surplusage   because   the
landlord cannot get eviction even after such determination.  The tenant
continues to be so even thereafter.  That being so, making out a case
under the Rent Act for eviction of the tenant by itself is sufficient and it
is   not   obligatory   to   found   the   proceeding   on   the   basis   of   the
determination of the lease by issue of a notice in accordance with
section 106 of the Transfer of Property Act.”   
It is thus clear that notice to terminate the tenancy under Section

106   of   the   Act   of   1882   is   not   necessary   when   eviction   is   sought   under
provisions of Section 15 of the Act of 1999. 
10.   In   so   far   as   decision   of   the   Supreme   Court   in   case   of  Pallawi
Resources Ltd. (supra), it has been observed that the entire statute has to be
read as a whole and not in isolation ignoring other provisions of the statute. On
a plain reading of the provisions of Section 15(2) of the Act of 1999, it is clear
that in absence of any requirement of terminating the lease, compliance with
provisions   of   Section   106(1)   is   not   necessary.     The   decision   in   case   of
Tarunkumar (supra) therefore supports the stand of the respondent.    
11.  In view of aforesaid, the notice dated 18/03/2006 issued by the
respondent under provisions of Section 15(2) of the Act of 1999 cannot be
faulted.  
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.252 OF  2014

Baban  Kisan Sarad, vs Abdul Hafiz Abdul Ajij Khan, 

CORAM  :  A.S.CHANDURKAR J.
  DATE   :  MARCH 11, 2015
Citation;2016(1) ALLMR 718

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Supreme Court: Tenancy will not be determined even after destruction of suit building

It has been further opined that once a tenancy is created  in  respect

of a building standing on the land it is the building  and  the  land  which

are both components of the subject-matter of demise and the  destruction  of

the building alone does not determine the tenancy when  the  land  which  is

the site of the building continues to exist.   This  interpretation,  as  we

find, is in accord with Section 108 of the Act.

REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                         CIVIL APPEAL NO.  127  OF 2007

M/S SHAHA RATANSI KHIMJI & SONS   Vs PROPOSED KUMBHAR SONS HOTEL P. LTD. & ORS.   

   Hon'ble Judges/Coram:
R.M. Lodha, C.J.I., S.J. Mukhopadhaya and Dipak Misra, JJ.

P. Ltd. (10.07.2014 - SC) : MANU/SC/0602/2014

Dated: JULY 10, 2014.

Citation: AIR 2014 SC 2895

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Leading Supreme Court Judgment on the right of a deserted wife to contest eviction suit filed against her husband

The position of law which emerges on a conjoint reading of the Rent Control Legislation and Personal Laws providing for right to maintenance ___ which will include the right to residence of a wife, including a deserted or divorced wife, may be examined. The Rent Control Law makes provision for protection of the tenant not only for his own benefit but also for the benefit of all those residing or entitled to reside with him or for whose residence he must provide for. A decree or order for eviction would deprive not only the tenant of such protection but members of his family (including the spouse) will also suffer eviction. So long as the tenant defends himself, the interest of his family members merges with that of the tenant and they too are protected. The tenant cannot, by collusion or by deliberate prejudicial act, give up the protection of law to the detriment of his family members. So long as a decree for eviction has not been passed the members of the family are entitled to come to the court and seek leave to defend and thereby contest the proceedings and such leave may be granted by the court if the court is satisfied that the tenant was not defending ___ by collusion, connivance or neglect ___ or was acting to the detriment of such persons. Such a situation would be rare and the court shall always be on its guard in entertaining any such prayer. But the existence of such a right flows from what has been stated hereinabove and must be recognized.

Supreme Court of India

B.P. Achala Anand vs S. Appi Reddy & Anr on 11 February, 2005

Author: R Lahoti

Bench: G Mathur, P Balasubramanyan

CASE NO.:

Appeal (civil) 4250 of 2000
Citation: MANU/SC/0100/2005 : (2005) 3 SCC 313

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