Whether S 4 of Partition Act is applicable if there is partition but property is yet to be divided by metes and bounds?

 In H. Vasudeva Pai v. Kamarunnisa, 2011 (15) SCC 768, the issue of applicability of Section 4 has again been examined at length to hold that even if family is divided in status, in the sense that they were holding the property as tenants in common, but undivided qua the dwelling house in question, and is yet to be divided by metes and bounds, would be covered within the provisions of Section 4 of the Act. Para 4 to 10 of the aforesaid judgment is relevant and is accordingly reproduced hereinbelow:-

"4. The learned District Judge referred to Mayne's Hindu Law and Usage and emphasised the concept of a joint Hindu family and was at pains to point out that the evidence on record did not warrant a finding that the Pai brothers constituted a joint Hindu family. It was only on account of this finding that the learned Judge persuaded himself to hold that section 4 of the partition act did not apply and that the appellant had no preemptive right to purchase the share of the property bought by the respondent.

{Para 17}

 IN THE HIGH COURT OF ALLAHABAD

Matters Under Article 227 No. 7008 of 2016

Decided On: 06.11.2017

Gurudwara Sri Guru Singh Sabha and Ors. Vs. A.D.J., Court No. 16, Muzaffarnagar and Ors.

Hon'ble Judges/Coram:

Ashwani Kumar Mishra, J.

Citation: MANU/UP/3036/2017

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What is basic concept of ouster of a co-owner?

 'Ouster' does not mean actual driving out of the co-sharer from the property. It will, however, not be complete unless it is coupled with all other ingredients required to constitute adverse possession. Broadly speaking, three elements are necessary for establishing the plea of ouster in the case of co-owner. They are (i) declaration of hostile animus, (ii) long and uninterrupted possession of the person pleading ouster, and (iii) exercise of right of exclusive ownership openly and to the knowledge of other co-owner. Thus, a co-owner, can under law, claim title by adverse possession against another co-owner who can, of course, file appropriate suit including suit for joint possession within time prescribed by law. {Para 28}

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 1858-1859 of 2016 

Decided On: 26.02.2016

 Nagabhushanammal  Vs. C. Chandikeswaralingam

Hon'ble Judges/Coram:

Kurian Joseph and Rohinton Fali Nariman, JJ.

Author: Kurian Joseph, J.

Citation: MANU/SC/0231/2016.

Read full Judgment here: Click here

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Whether a tenant can deny the title of the landlord if the landlord has constructed a tenanted structure on leasehold land of government?

1)Tenant has contended that the landlord was not the 'owner' of the subject premises, since it is leasehold property, with the Delhi Development Authority as the owner/lessor; and the landlord was only a 'co-lessee' under the DDA alongwith one Shri Prem Nath Ohri;

2)In view of the decision of the Supreme Court in Shanti Sharma (supra), all that the law requires is that the landlord should hold a premises in a capacity of something more than that of a tenant and proof of title beyond that point is not required. In the present case, as per the tenant's own allegations, the landlord holds the land on which the subject premises is constructed on long lease granted by the DDA. The landlord is therefore owner of leasehold rights in the land comprised in the subject premises. For purposes of section 14(1)(e) of the DRC Act, 'ownership' is not meant only to be freehold and absolute ownership of property but includes rights in the property that are more than that of a tenant, regardless of other imperfections in title. Yet again therefore, no trial is called for on this point.

3) Though it is the tenant's allegation that the landlord was only a co-lessee of the subject premises under the DDA along with one Shri Prem Nath Ohri, the fact that only one co-lessee had filed the eviction petition is no bar to its maintainability. This issue is no longer res integra and it stands settled by several decisions of the Supreme Court that even one of the co-owners can, alone and in his own right, file a proceeding for ejectment of a tenant; and a tenant cannot question the maintainability of the proceedings on this score. (cf. Kasthuri Radhakrishnan & Ors. vs. M. Chinniyan & Anr. MANU/SC/0075/2016 : (2016) 3 SCC 296 para 29).

IN THE HIGH COURT OF DELHI

RC. Rev. 269/2018 and CM Appl. No. 24045/2018

Decided On: 09.07.2020

Gaffar Ahmad  Vs.   Shiv Kumar Ohri

Hon'ble Judges/Coram:

Anup Jairam Bhambhani, J.

Citation: MANU/DE/1361/2020

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Delhi HC: Tests to determine when a deed can be treated as release deed or relinquishment deed

From a reading of the above judgments, the test to determine whether an instrument can be considered as a Release/Relinquishment Deed can be summarized as under:-

a. In determining whether the document is a release or Gift/Conveyance, the nomenclature used to describe the document or the language which the party may choose to employ in framing the document, is not a decisive factor. What is decisive is the actual character of the transaction intended by the executants;

b. Determination of the nature of the document is not a pure question of law;

c. Where a co-owner renounced his right in a property in favour of the other co-owner, mere use of word like 'consideration' and 'transfer' would not affect the true character of the transaction;

d. What is intended by a Release Deed is the relinquishment of the right of the co-owner;

e. Co-ownership need not be only through inheritance, but can also be through purchase;

f. Where the relinquishment of the right by the co-owner is only in favour of one of the co-owner and not against all, the document would be one of Gift/Conveyance and not of "release".

THE HIGH COURT OF DELHI

W.P. (C) 9193/2019 and 3560/2018

Decided On: 20.05.2020

Tripta Kaushik Vs. Sub Registrar VI-A, Delhi and Ors.

Hon'ble Judges/Coram:

Navin Chawla, J.

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Whether court can presume that there was partition if one co-owner is in possession of part of property for long time?

 The second plea relates to the fact that there has been demarcation of the shares and the parties have been occupying their respective demarcated areas since 1954. This plea is also misplaced.

19. I may note that there is no averment in the written statement that a partition took place and the parties subsequent to the partition have continued to occupy the area that fell to their share. There are also no documents filed by any of the defendants to support the plea that any partition took place amongst the co-owners or that the parties agreed that the demarcated area that they are occupying, are their respective shares from the property in question.

20. It also cannot follow that mere long occupation of a particular area by a co-owner implies that a partition has taken place amongst the co-owners.

21. Reference in this context may be had to the judgment of the Supreme Court in Chinthamani Ammal vs. Nandagopal Gounder and Another, MANU/SC/7126/2007 : (2007) 4 SCC 163 where the Supreme Court held as follows:-

"17. In law there exists a presumption in regard to the continuance of a joint family. The party which raises a plea of partition is to prove the same. Even separate possession of portion of the property by the co-sharers itself would not lead to a presumption of partition. Several other factors are required to be considered therefore."

22. Hence, being in possession of a part of the property does not ipso facto mean that any partition has taken place. In fact no partition has been pleaded in the written statement. Hence, mere long occupation of certain areas by a co-owner does not debar the filing of a partition suit.

IN THE HIGH COURT OF DELHI

CS (OS) 224/2017, IAs. 6234 and 12851/2017

Decided On: 13.03.2020

Sushil Kumar Agarwal  Vs.  Ravi Narayan Agarwal 

Hon'ble Judges/Coram:

Jayant Nath, J.

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Whether court can grant eviction decree to one co-owner if other other co-owner has sold his share in rented premises to tenant?

 There is no dispute that the plaintiff had filed the suit against the defendant nos. 1(b) to 1(e) and defendant nos. 2(a) and 2(b). The plaintiff in the said suit had prayed for eviction only against the defendant nos. 1(b) to 1(e) and not against the defendant nos. 2(a) and 2(b). Defendant nos. 2(a) and 2(b) were joined as formal parties in view of they being co-owners of the suit property.

35. In so far as the submission of Mr. Godbole, learned Counsel for the defendant nos. 1(b) to 1(e) that the defendant nos. 2(a) was admittedly one of the co-owner of the suit premises with the plaintiff and had not only filed written statement opposing the suit filed by the plaintiff but has also filed a counter-claim is concerned, there is no dispute that the defendant no. 2(a) had filed counter-claim against the plaintiff for eviction of the suit premises on the ground of bonafide requirement. There is no dispute that the defendant no. 2(a) though had filed the written statement and counter claim did not enter the witness box to prove his plea of bonafide requirement. He also did not file any appeal against the judgment and decree of the Trial Court. The Trial Court as well as the District Court has considered this issue at length in the Judgment and decree passed by those Courts.

37. The District Court in paragraph 24 of the impugned Judgment and Degree has held that admittedly there was no partition between the plaintiff and defendant no. 2(a) in respect of suit property. It is held that if the property is jointly owned, one co-owner can sue for possession under Section 16 of the Act. The District Court referred to Section 44 of the Transfer of Property Act, 1882 in paragraph 25 of the Judgment and Decree. In paragraph 26 of the Judgment and Decree, it is held that a plain reading of Section 44 of Transfer of Property Act, 1882 makes it crystal clear that the said provisions does not give transferee of a dwelling house belonging to undivided family a right to joint possession and confer a corresponding right on the other members of the family to deny the right to joint possession to a stranger transferee. It is held that Section 4 of the Partition Act gives a right to a member of the family who has not transferred his share to purchase the transferee's share on a value to be fixed in accordance with the law. When transferee filed a suit for partition. In paragraph no. 28, it is held that in absence of partition sought under Section 4 of the Partition Act, source of title of defendant no. 1 could be no avail, especially in endevouring to retain the possession against desire of the plaintiff landlord.

39. Insofar as judgment of Supreme Court in case of Sk. Sattar Sk. Mohd. Choudhari (supra) relied upon by Mr. Godbole, learned counsel for the defendant nos. 1(b) to 1(e) is concerned, it is held that 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. The plaintiff in this case had not applied for partition or any eviction decree in respect of his 1/3rd share but had filed a suit for eviction of the suit premises in which the plaintiff had 1/3rd share whereas the defendant nos. 2(a) and 2(b) were having other 1/3rd share each. In my view, the said suit of eviction filed by one of the co-owner was maintainable. Though the defendant no. 2(a) had filed a counter claim in the suit and had prayed for possession of the said property alleging his bonafide requirement, the fact remains that the defendant no. 2(a) neither entered the witness box nor proved his case of bonafide requirement.

40. Be that as it may, insofar as defendant nos. 1(b) to 1(e) are concerned, the fact remains that the plaintiff as well as the defendant no. 2(a) had prayed for eviction of the defendant nos. 1(a) to 1(e) in respect of the suit premises. In my view, insofar as the decree for eviction against the defendant nos. 1(a) to 1(e) is concerned, both the co-owners have prayed for decree of eviction against the defendant nos. 1(b) to 1(e). In the said judgment of the Supreme Court and more particularly in paragraph (14), it is held that it is open to the owners to apportion the rent inter se, but if no such apportionment is made, the obligation of the tenant remains single and in that situation, the lessor will not be allowed to split the tenancy by recovering the rent of a part only; nor can a purchaser of a part of the property insist on payment of his part of the rent to him. It is not the case of the defendant nos. 1(b) to 1(e) that the plaintiff had applied for split of the tenancy. The judgment of the Supreme Court in case of Sk. Sattar Sk. Mohd. Choudhari (supra) thus would not assist the case of the defendant nos. 1(b) to 1(e) even remotedly.

41. Insofar as the judgment of Supreme Court in case of Sri Ram Pasricha (supra) relied upon by Mr. Godbole, learned counsel for the defendant nos. 1(b) to 1(e) is concerned, in the said judgment it is clearly held that it is not correct to say that a co-owner of a property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part-owner or a fractional owner of the property. In my view, the plaintiff was entitled to file a suit for eviction against the defendant nos. 1(b) to 1(e) by impleading the other co-owners as defendants. The judgment of Supreme Court in case of Sri Ram Pasricha (supra) would advance the case of the plaintiff and not the defendants.

42. Insofar as the judgment of Supreme Court in case of Navin Chander Anand (supra) relied upon by the learned counsel for the defendant nos. 1(b) to 1(e) is concerned, the said judgment is clearly distinguishable on the ground that in this case the plaintiff as well as defendant no. 2(a) had separately applied for eviction against the defendant nos. 1(b) to 1(e) on the ground of bonafide requirement. The defendant no. 2(a) in his counter claim has not opposed the termination of the tenancy by the plaintiff in respect of the suit property.

43. Insofar as judgment of Supreme Court in case of India Umbrella Manufacturing Co. and others (supra) relied upon by Mr. Godbole, learned counsel for the defendant nos. 1(b) to 1(e) is concerned, in the said judgment it is clearly held that one of the co-owner can file suit for eviction of tenants in property generally owned by co-owners. It is held that the consent of other co-owners is assumed as taken unless it is shown that the other co-owners were not agreeable to eject the tenant and the suit was filed in spite of their disagreement. In my view, this judgment would also assist the case of the plaintiff and not the case of the defendant nos. 2(a) to 2(e). In this case, the defendant no. 2(a) had filed a counter claim and also applied for eviction of the defendant nos. 1(b) to 1(e) and had prayed for possession for himself. In my view, insofar as the eviction of the defendant nos. 1(b) to 1(e) is concerned, the prayer for eviction of the defendant nos. 1(b) to 1(e) in the suit filed by the plaintiff and in the counter claim filed by the defendant no. 2(a) was common directly or indirectly. The judgment of Supreme Court in case of India Umbrella Manufacturing Co. and others (supra) thus would not advance the case of the defendant nos. 2(a) to 2(e) and is clearly distinguishable with the facts of this case.

44. Insofar as judgment of Supreme Court in case of Thomson Press (India) Limited (supra) relied upon by Mr. Godbole, learned counsel for the defendant nos. 1(b) to 1(e) is concerned, there is no dispute about the proposition of law laid down by the Supreme Court in the said judgment. The trial court has not passed a decree against the defendant nos. 1(c) and (d) on the ground that those defendants had purchased 1/3rd undivided share of defendant no. 2(a) in the suit property.

45. Insofar as the judgments relied upon by Mr. Pethe, learned counsel appearing for the plaintiff in case of T. Lakshmipathi and others (supra) and in case of Pramod Kumar Jaiswal and others (supra) are concerned, it is held by the Supreme Court that where the party had acquired only partial ownership interest, the interests of the lessee and lessor in the whole of the property is not vested in such party at the same time and in the same right and there was no merger of such right in view of section 111(d) of the Transfer of Property Act, 1882. It is held that the merger takes place and the lease gets determined only if entire reversion or entire rights of landlord are assigned to or purchased by the tenant. On tenant taking assignment from only some of co-owner landlords, interests of lessee and lessor in whole of property do not become vested in one person.

IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 30 of 2019

Decided On: 12.07.2019

 Kalawati Ashok Kumar Parmar  Vs.  Sharad Dattatraya Tapray

Hon'ble Judges/Coram:

R.D. Dhanuka, J.

Citation: 2020(1) MHLJ 518

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Whether it is mandatory to implead karta of HUF in eviction suit filed by co-owner of tenanted property?

 This, however, does not imply that for want of impleadment of

Karta, in the peculiar facts of the case, the suit is liable to be

dismissed. Indisputably, respondent Nos. 2 to 4 have been impleaded

as the plaintiffs to the suit in the capacity of the legal representatives

of the deceased plaintiff No.2. The learned counsel for the respondent

Nos.2 to 4 was justified in advancing a submission that a decree for

eviction was also sought on the ground of personal bonafide

requirement of the deceased plaintiff No.2 and his daughter Anjalirespondent

No.4 herein. Thus, the respondent No.4, in the capacity of

being a co-owner, is entitled to prosecute the suit irrespective of the

Karta being brought on record.

23. The aforesaid submission is required to be considered in the

backdrop of the proposition that a co-owner is entitled to institute a

suit for eviction for and on behalf of all the co-owners, unless it is

shown that the other co-owners were not agreeable to the ejectment

to the tenant. It is one thing to say that a member of the family

other than, or in the absence of, a Karta, may be permitted to

prosecute the suit on account of special circumstances of a given case.

And a completely different thing to claim that despite a Karta having

been appointed, he will not be impleaded to represent the HUF sans

the existence of special circumstances. In the latter case, the tenability

of the suit, without impleading the Karta, would be in issue.

24. Reverting to the facts of the case, as the respondent Nos.2 to 4

are already prosecuting the suit, either in the capacity of the coowner

or as the legal representatives of deceased plaintiff No.2 and,

at the same time, there is a cloud of doubt over the intendment of

the HUF to prosecute the suit for eviction of the tenant, especially on

account of the fact that there being material to show that a Karta has

indeed been appointed and there is an alleged non-compliance of an

order of Appellate Bench in Appeal No.306 of 2009 to bring the Karta

on record, steps will have been taken to implead the successor Karta

in the instant suit. It would be in the fitness of things to frame and

try the issue regarding the tenability of the suit, in the event of nonimpleadment

of the successor Karta. To this extent, the observations

of the Appellate Bench to the effect that the non-impleadment of the

successor Karta has no bearing whatsoever on the tenability of the

suit are unsustainable.

25. The question as to whether the HUF as such intends to

prosecute the suit for eviction is essentially for the HUF to answer. It

would be onerous for the defendants to plead and prove that the HUF

does not want to prosecute the suit. Therefore, it would be

appropriate to provide an opportunity to the HUF to make its stand

clear, if it desires to.

26. In the aforesaid peculiar circumstances, in my view, it would be

appropriate to provide an opportunity to the HUF to bring the

successor Karta on record, within a stipulated period, and, in the

event of default, frame and try the issue of tenability of the suit for

eviction at the instance of HUF, as such, without bringing Karta on

record, and plaintiff Nos. 2 to 4, in the capacity of the co-owners of

the demised premises.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

APPELLATE SIDE CIVIL JURISDICTION

WRIT PETITION NO. 9267 OF 2019

IN

REVISION APPLICATION NO. 343 OF 2018

IN

EXHIBIT NO. 28

IN

R.A.E. SUIT NO. 119/171 OF 2011

Mrs. Madhuri Doulatram Choitram Vs  Lachmandas Tulsiram Nayar (HUF) by and through its Karta

CORAM : N.J. JAMADAR, J.

Pronounced on : 18th December 2019

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Whether suit for injunction by co-owner for restraining construction is maintainable without claiming partition?

Once in possession, only remedy for the respondent would have been to file a suit for partition other than a simplicitor suit for an injunction, as has been held in Jai Karan Sharma cas'e (supra) by relying upon the judgment rendered in Bachan Singh v. Swarn Singh, (MANU/PH/0368/2000 : 2000 (3) RCR (Civil) 70 : 2000 (2) PLJ 143 : AIR 2001 P & H 112), this Court has laid down the following principles as and when a co-owner, can seek an injunction as against another co-owner and it has been laid down as under:-

"17. On a consideration of the judicial pronouncements on the subject, we are of the opinion that:

(i) A co-owner who is not in possession of any part of the property is not entitled to seek an injunction against another co-owner who has been in exclusive possession of the common property unless any act of the person in possession of the property amounts to ouster, prejudicial or adverse to the interest of co-owner out of possession.

(ii) Mere making of construction or improvement of, in the common property does not amount to ouster.

(iii) If by the act of the co-owner in possession the value or utility of the property is diminished, then a co-owner out of possession can certainly seek an injunction to present the diminution of the value and utility of the property.

(iv) If the acts of the co-owner in possession are detrimental to the interest of other co-owners, a co-owner out of possession can seek an injunction to present such act which is detrimental to his interest.

In all other cases, the remedy of the co-owner out of possession of the property is to seek partition, but not an injunction restraining the co-owner in possession from doing any act in exercise of his right to every inch of it which he is doing as a co-owner."

7. Once the appellant has been put in exclusive possession of a specific portion by virtue of a sale deed executed by one of the co-owners, any suit for injunction would not lie and the remedy would be to file a suit for partition. Sale of land by a co-sharer of a property which is in his. exclusive possession is subject to adjustment at the time of partition. Raising a construction or improvement in the area purchased by him even though it is common property, it would not be detrimental to the interest of the respondent. 

IN THE HIGH COURT OF PUNJAB AND HARYANA

RSA No. 4541 of 2013 (O&M)

Decided On: 01.08.2019

Major Singh Vs.  Paramjit Singh

Hon'ble Judges/Coram:

Jaishree Thakur, J.

Citation: AIR 2019 P&H 167

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Whether suit for declaration is maintainable without claiming possession even if plaintiff is not in possession of suit property?

 He further submits that plaintiffs are not in

possession of the suit property therefore, the suit merely for

declaration is not maintainable in view of the bar under section

34 of Specific Relief Act.

7) Having heard the learned counsel for parties and on

perusal of the record it is noticed that parties are members of

same family and suit has been filed by respondents no.1 to

5 plaintiffs with the plea that their ancestor Motilal had

purchased the suit property in the name of his wife Smt.

Sohanbai who was wholly dependent on him having no source

of income to maintain herself. It was further pleaded that

Sohanbai alongwith plaintiffs was residing in the suit property

and when plaintiffs had purchased the separate house, Smt.

Sohanbai had continued to live alone in the suit property. In the

suit, plaintiffs have claimed that they have share in the suit

property and accordingly prayed for partition and also declaring

the gift deed executed by defendant no. 2 in favour of

defendants no. 3 and 4 (petitioners herein) as null and void and

claiming relief of permanent injunction restraining the parties

from changing the nature of or alienating the suit property.

15) So far as the issue of maintainability of the suit for

declaration in terms of Section 34 of Specific Relief Act is

concerned, the trial court has rightly noted that the suit filed by

plaintiffs is as against co-owner for partition, hence the plaintiffs

in possession through co-owner can maintain the suit for

declaration and partition and he is not required to separately

claim possession under section 34 of Specific Relief Act.

HIGH COURT OF MADHYA PRADESH BENCH AT INDORE

(S.B.: HON. SHRI JUSTICE PRAKASH SHRIVASTAVA)

Civil Revision No. 136/2011

Vishal Vs.   Hukumchand (dead) through his L.Rs.& others

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Whether share holder of company can be treated as co-owner of property for the purpose of rent Act?

Similarly, it is the contention of the revision petitioner that the building in Triplicane, referred in the petition also belongs to the respondent. But it is the specific case of the respondent that the property is the company's property and he is only a minor share holder in the property. Further, it is also the contention of the respondent that a suit has also been filed for declaration for allotting shares in favour of the plaintiff by the other directors. Ex. P.7 plaint makes it clear that infact the suit is filed by the sister of the respondent for various reliefs and also for declaration with regard to the shares transferred in the name of the respondent herein. Once, the property is said to be company's property, the share holders cannot be the owner of the property. They can never be considered as a co-owner of the property. Only the company is the owner of the property. Therefore, the contention of the revision petitioner that the respondent is the co-owner of the property cannot be countenanced.

IN THE HIGH COURT OF MADRAS

C.R.P. (NPD) Nos. 204, 205 of 2013, M.P. Nos. 1 of 2013 and 1 of 2014

Decided On: 26.02.2019

 Hateemy Sales Corporation  Vs. R. Sudhakar

Hon'ble Judges/Coram:

N. Sathish Kumar, J.

Citation: 2019(1) RCR (Rent) 475

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Whether co-owner of property can be denied title to property by invoking principle of estoppel?

The answer to issue no.3 is straight and simple No one can be said to have lost its title in the immovable property only because they have not contested the recovery of the rent exclusively by other co-owner. Even if one co-owner is managing the property and has raised any construction, if any, that would not take away the rights of a co-owner in the property. Principle of estoppel can only be invoked if the party invoking it proves that because of a representation made by the other party he has changed his position to his disadvantage. This is not even pleaded case of the defendant. The title in an immovable property normally cannot be said to have vanished by invoking principle of estoppel .

Punjab-Haryana High Court

Kamal Kumar Malhotra vs Roshan Lal Monga on 8 February, 2019

RSA No.5251 of 2003 (O&M)                                           

CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL 

Citation: AIR 2019 (P & H) 64

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Whether one of co-owner can withdraw his consent midway in eviction suit against tenant?

It is well settled that one of the co-owners can file a suit for eviction of a tenant in the property generally owned by the co-owners. (See: Sri Ram Pasricha v. Jagannath and Ors., MANU/SC/0473/1976 : [1977]1SCR395 ; Dhannalal v. Kalawatibai and Ors., MANU/SC/0565/2002 : [2002]SUPP1SCR19 ). This principle is based on the doctrine of agency. One co-owner filing a suit for eviction against the tenant does so on his own behalf in his own right and as an agent of the other co-owners. The consent of other co-owners is assumed as taken unless it is shown that the other co-owners were not agreeable to eject the tenant and the suit was filed in spite of their disagreement. In the present case, the suit was filed by both the co-owners. One of the co-owners cannot withdraw his consent midway the suit so as to prejudice the other co-owner. The suit once filed, the rights of the parties stand crystallised on the date of the suit and the entitlement of the co-owners to seek ejectment must be adjudged by reference to the date of institution of the suit; the only exception being when by virtue of a subsequent event the entitlement of the body of co-owners to eject the tenant comes to an end by act of parties or by operation of law.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 5357 and 5358 of 1996

Decided On: 05.01.2004

India Umbrella Manufacturing Co. Vs. Bhagabandei Agarwalla  (Dead) by Lrs. and Ors.

Hon'ble Judges/Coram:

R.C. Lahoti and Ashok Bhan, JJ.

Citation: (2004)3 SCC 178

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Whether court can pass eviction decree against tenant on ground of bonafide need of one co-owner?

Tenancy - co-ownership - Section 13 of West Bengal Premises Tenancy Act, 1956 - landlord filed eviction petition against tenant on ground of reasonable requirement of tenanted premises - reasonable requirement established - tenant contended that landlord not entitled to decree of eviction being only co-owner and not owner of tenanted property - co-owner owns every part of composite property along with others - he is not part owner or fractional owner of property - co-owner is as much owner of entire property as any sole owner of property - landlord not required to establish himself as only owner of property for purpose of Section 13.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1223 of 1975

Decided On: 24.08.1976

Ram Pasricha  Vs. Jagannath and Ors.

Hon'ble Judges/Coram:

A.C. Gupta, P.K. Goswami and Y.V. Chandrachud, JJ.

Equivalent citations: 1976 AIR 2335, 1977 SCR (1) 395

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Whether one co-owner can terminate tenancy of tenant if other co-owners objects for the same?

I have pointed out to the counsel for the appellant/plaintiff the judgments of the Supreme Court in the cases of Sk. Sattar Sk. Mohd. Choudhari v. Gundappa Amabadas Bukate, (1996) 6 SCC 373 and Jagdish Dutt v. Dharam Pal, (1999) 3 SCC 644 and which judgments hold that one co-owner/co-landlord is not entitled on his own, in the face of opposition of other co-owners/co-landlords, to terminate the tenancy.

A reading of the ratio of the aforesaid two judgments makes it clear that when there are various co-owners/co-landlords, only one co-owner/co-landlord cannot terminate the tenancy for seeking possession of the tenanted property and/or mesne profits.

In the High Court of Delhi at New Delhi

(Before Valmiki J. Mehta, J.)

Navin Chander Anand v.  Union Bank of India

RFA No. 544/2018

Decided on July 17, 2018

The Judgment of the Court was delivered by

Valmiki J. Mehta, J. (Oral)

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Whether eviction suit filed by one Co-owner against tenant is maintainable if other co-owner objects for institution of said suit?

 What would
be the position if a co-owner objects, as in a
present case, is the question that calls for an
answer in the present petitions.
The closest decision on the point is in the
case of India Umbrella Manufacturing Co. And Others
Vs. Bhagabandei Agarwalla (Dead) by LRs. Savitri
Agarwalla(Smt) And Others (2004) 3 SCC 178
, which, however, does not
answer the question fully as the objection of the
co-owner in India Umbrella (supra) was in the course
of the trial of the suit and in a situation where the
suit property had changed hands.
The concept of co-ownership of immoveable
property need to hardly detain the Court. Every
co-owner has ownership of the entire property which
in absence of any partition must be understood to
extend to every inch of the property.
The very concept of co-ownership, in the
absence of any partition, would militate against the
maintainability of the suit for eviction against a
tenant, where the tenant is admittedly in possession

of the property which is owned by the co-owner who
objects to the eviction.
The decision of Patna High Court in Sharfuddin
and Others vs. Bibi Khatija and Another  AIR 1988 Patna 58
 has been
cited by Shri C.A. Sundaram, learned senior counsel,
to persuade the Court that the view expressed therein
may serve as a foundation for laying down the law
upholding the maintainability of a suit filed in a
situation where a co-owner does not consent and, in
fact, objects to the decree of eviction sought by the
other co-owner. It is contended that such a view
would be a reasonable and logical extension of the
law laid down by this Court with regard to
maintainability of suit filed by a co-owner, where no
objection is raised by another co-owner.
Having read and considered the judgment of the
full Bench of the Patna High Court in Sharfuddin
(supra), we are unable to agree with the views
expressed therein. The Patna High Court seems to
have taken into account the power of veto which would
be vested in a co-owner if a suit for eviction to
which he objects is held to be not maintainable. The
issue with regard to partition which is an option
open to the co-owners who seek eviction was sought to

be answered by the High Court by holding the
aforesaid remedy to be cumbersome. When the law
provides a remedy which the aggrieved party can avail
of, the same cannot, in our considered view, be
ignored only on the ground that asking the parties to
avail of the said remedy would be relegating them to
another round of litigation.
For the aforesaid reasons, we are inclined to
take the view that the decision rendered by the High
Court in first appeal is correct. We, therefore,
affirm the said decision and dismiss these petitions
for special leave to appeal against the order of the
High Court.

S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No(s). 9616-9617/2015

MANGAL BUILDERS & ENTERPRISES LIMITED  Vs
WILLIAMSON MAGOR & COMPANY LTD. & ANR 

Date : 06/04/2017 
CORAM :
HON'BLE MR. JUSTICE RANJAN GOGOI
HON'BLE MR. JUSTICE NAVIN SINHA

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Whether third person claiming title can get his rights adjudicated in eviction proceedings?

There are some well-settled principles of law on the question involved in this appeal, which need to be taken into consideration while deciding the question arose in this appeal. These principles are mentioned infra.

12. First, in an eviction suit filed by the Plaintiff (Landlord) against the Defendant (Tenant) under the State Rent Act, the landlord and tenant are the only necessary parties.

13. In other words, in a tenancy suit, only two persons are necessary parties for the decision of the suit, namely, the landlord and the tenant.

14. Second, the landlord (Plaintiff) in such suit is required to plead and prove only two things to enable him to claim a decree for eviction against his tenant from the tenanted suit premises. First, there exists a relationship of the landlord and tenant between the Plaintiff and the Defendant and second, the ground(s) on which the Plaintiff-landlord has sought Defendant's-tenant's eviction under the Rent Act exists. When these two things are proved, eviction suit succeeds.

15. Third, the question of title to the suit premises is not germane for the decision of the eviction suit. The reason being, if the landlord fails to prove his title to the suit premises but proves the existence of relationship of the landlord and tenant in relation to the suit premises and further proves existence of any ground on which the eviction is sought under the Tenancy Act, the eviction suit succeeds.

16. Conversely, if the landlord proves his title to the suit premises but fails to prove the existence of relationship of the landlord and tenant in relation to the suit premises, the eviction suit fails. (See-Dr. Ranbir Singh v. Asharfi Lal, MANU/SC/0829/1995 : 1995(6) SCC 580).

17. Fourth, the Plaintiff being a dominus litis cannot be compelled to make any third person a party to the suit, be that a Plaintiff or the Defendant, against his wish unless such person is able to prove that he is a necessary party to the suit and without his presence, the suit cannot proceed and nor can be decided effectively.

18. In other words, no person can compel the Plaintiff to allow such person to become the co-Plaintiff or Defendant in the suit. It is more so when such person is unable to show as to how he is a necessary or proper party to the suit and how without his presence, the suit can neither proceed and nor it can be decided or how his presence is necessary for the effective decision of the suit. (See-Ruma Chakraborty v. Sudha Rani Banerjee and Anr., MANU/SC/0919/2005 : 2005(8) SCC 140)

19. Fifth, a necessary party is one without whom, no order can be made effectively, a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. (See-Udit Narain Singh Malpaharia v. Additional Member Board of Revenue, Bihar and Anr. MANU/SC/0045/1962 : AIR 1963 786)

20. Sixth, if there are co-owners or co-landlords of the suit premises then any co-owner or co-landlord can file a suit for eviction against the tenant. In other words, it is not necessary that all the owners/landlords should join in filing the eviction suit against the tenant. (See-Kasthuri Radhakrishnan and Ors. v. M. Chinniyan and Anr., MANU/SC/0075/2016 : 2016(3) SCC 296)

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 3018 of 2008

Decided On: 25.01.2018

Kanaklata Das Vs. Naba Kumar Das 

Hon'ble Judges/Coram:

R.K. Agrawal and Abhay Manohar Sapre, JJ.

Citation:  (2018) 2 SCC 352

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Whether other co-owner of tenanted premises is necessary party in eviction suit filed by one co-owner?

 As regards the relevance of the issue of title of the landlord in an eviction suit under rent laws it is fairly well settled that the impleadment of co-owner/co-sharer to the proceedings is not essential as eviction proceedings can normally be decided on merits in absence of such co-owner/co-sharer. In an eviction suit filed by the landlord, only landlord and tenant are necessary parties and in view thereof title of landlord in an eviction suit is not relevant. If the landlord fails to prove his title but proves relationship of landlord and tenant, and proves existence of any ground pleaded for eviction then his suit would succeed. On the other hand, if the landlord proves his title but fails to prove relationship of landlord and tenant, then his suit would fail.

IN THE HIGH COURT OF ALLAHABAD

Matters Under Article 227 No. 3406 of 2019

Decided On: 09.05.2019

Shahnaj Begum Vs.  Taj Mohammad and Ors.

Hon'ble Judges/Coram:

Dr. Yogendra Kumar Srivastava, J.

Citation:2019 (134) ALR 800.

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Whether co-owner who has not inducted a tenant can seek eviction of such tenant?

Examining the proposition from another angle, it may be noticed that the tenancy rights are indivisible and a co-owner is competent to induct tenant in part of whole of the building. The tenant cannot be evicted from part of the tenant premises. An act of the co-owner of inducting a tenant binds all other co-owners. After a tenant has been inducted, he is a tenant under all the co-owners. Therefore, a co-owner who has not inducted a tenant can seek eviction of such tenant. The right and liabilities of the co-owner creates a legal fiction of tenancy against all co-owner.

In view of the rights of the co-owner as explained by the Larger Bench Judgment of this Court as well as by the Hon'ble Supreme Court in M/s India Umbrella Manufacturing Co., Dhannalal's cases (supra) and Mahavir Prasad Jain v. Manohar Lal Jain 2006(2) SCC 724, a co-owner NRI can seek eviction of the tenant in a building  though the tenant was not inducted by such NRI and that it is not necessary that all other co-owners should be Non Resident Indians.

Punjab-Haryana High Court

Smt. Bachan Kaur And Others vs Kabal Singh & Another on 26 April, 2011

Civil Revision No. 4025 of 2006    

CORAM:       HON'BLE MR. JUSTICE HEMANT GUPTA

             HON'BLE MR. JUSTICE ARVIND KUMAR

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Whether eviction suit filed by one of co-owner is maintainable if some of co-owners had given assent for continuance of tenancy?

Tenancy - Eviction suit - Maintainability of - Bihar Building (Lease, Rent and Eviction) Control Act, 1982 - Present application filed for challenging order of eviction, on ground that eviction suit by some co - owners was not maintainable because other co - owners had given assent for continuance of tenancy - Whether suit for eviction brought by some of co-owners for ejectment of tenant who had incurred liability to be evicted under Act was maintainable - Held, cleared from fact that lease was determined and it was not renewed by Plaintiffs for further period - However, one of co- owners had given his assent to Defendant to continue his possession over suit premises - Appeared that contract for tenancy was one and it was by-lateral contract between parties - One of co-owners had no right to make contract unilateral by splitting interest of other co-owners - Thus, some of co-owners had every right to file suit for evicting tenant who had incurred liability to be evicted under Act - Therefore, suit brought by Plaintiffs was maintainable - Application dismissed. [paras 9 and 11]

IN THE HIGH COURT OF JHARKHAND

Civil Revision No. 20 of 2008

Decided On: 16.04.2014

Shyamdeo Prasad Vs.  Quurban Hussain Hawari

Hon'ble Judges/Coram:

Dhrub Narayan Upadhyay, J.

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Whether one of co-owner can continue eviction suit against tenant?

In Shri Ram Pasricha (supra), the Apex Court observed that a co-owner is as much an owner of the entire property as any sole owner of a property is. It was further held that jurisprudentially it is not correct to say that a co-owner of a property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part-owner or a fractional owner of the property. The position will change only when partition takes place. The Apex Court ultimately held that it is not possible to accept the submission that the plaintiff who is admittedly the landlord and co-owner of the premises is not the owner of the premises within the meaning of Section 13(1)(f). It was further held that it is not necessary to establish that the plaintiff is the only owner of the property for the purpose of Section 13 (1)(f) as long as he is a co-owner of the property being at the same time the acknowledged landlord of the defendants.

In Bhuramal Ishwarlal Sindhi (supra), learned Single Judge of this Court held that it is settled position of law that notice given by one of the co-owners is valid and so also the suit instituted by one of the co-owners.

In Pal Singh (supra), the Apex Court held that the suit filed by the co-owner for eviction of the tenant is maintainable, if other co-owners are not objecting to the plaintiff-co-owner's claim for eviction.

In India Umbrella Manufacturing Co. & ors. (supra), a Division Bench of the Apex Court held that one of the co-owners can file a suit for eviction of a tenant in the property generally owned by the co-owners. It was further held that this principle is based on the Doctrine of Agency. One co-owner filing a suit for eviction against the tenant does so on his own behalf in his own right and as an agent of the other co-owners. The consent of other co-owners is assumed as taken unless it is shown that the other co-owners were not agreeable to eject the tenant and the suit was filed in spite of their disagreement.

In Mohinder Prasad Jain (supra), the Apex Court held that one of the co-owners can file a suit for eviction of a tenant of property generally owned by the co-owners and it is not necessary for such co-owner to obtain prior consent of other co-owners before initiating eviction proceedings before Rent Controller. It was, however, held that if the co-owner objects to such eviction proceedings, the same may be relevant.

IN THE HIGH COURT OF BOMBAY

Writ Petition Nos. 5822, 5828 and 5829 of 2012 and Writ Petition Nos. 4179, 4180 & 4181 of 2012

Decided On: 05.11.2012

 Baburao Ganpatrao Shirole Vs.  Deccan Education Society and Ors.

Hon'ble Judges/Coram:

R.V. More, J.

Citation: 2013 ( 1 ) MhLj 233

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