Whether Individual Partner Can Claim Eviction On Bonafide Need Ground For His Occupation Of Building Owned By Partnership Firm?

 We have no hesitation to negative the claim by a firm,

seeking eviction of a tenant from a building owned by the partnership

firm, on the ground of bonafide need of an individual partner when

his/her claim is that he/she wanted to occupy the building for personal

use. We find it impossible to stretch the law under Section 11(3) of the

Act to hold that occupation by such a partner will amount to own

occupation by the landlord, as he/she individually cannot be regarded

as the landlord as long as the building remains in the ownership of the

firm. We have already mentioned the distinctions between a partner

and a co-owner. Once we find that the building belongs to a firm, the

rights and obligations of the partners are governed by the terms of the

contract and in the absence of any provisions in the contract, they shall

be guided by the Partnership Act. Finding that the building belongs to a

partnership firm cuts at the root of the claim by an individual partner for

own occupation since he/she ceases to be a landlord. In other words,

no partner individually can claim to be a landlord when the firm owns

the building. Hence, one partner cannot claim eviction on the ground of

bonafide need for his/her own occupation of the building. Clear wording

in Section 11(3) of the Act would show that a landlord alone can claim

eviction on the ground of bonafide need of a building for his own

occupation. Since the individual partner cannot be regarded as landlord

in respect of a building owned by a firm, the provision does not apply in

such a case. Corollary is that in such a situation Section 11(3) of the

Act can be invoked by a firm only when the firm itself bonafide needs to

occupy the tenanted premises. 

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

 MR. JUSTICE A.HARIPRASAD

&

 MR.JUSTICE T.V.ANILKUMAR

RCRev. No.228 OF 2018

AMEER, MAMMUNHI HAJI,  Vs M/S.B.AMOO AND BROTHERS,

Dated this the 15th day of October, 2019

COMMON ORDER

Print Page

Whether recovery proceedings in a co-owned property can be initiated against defaulter’s share in such property?

Admittedly, the property against which attachment proceedings is initiated by the 4th respondent is a co-ownership property belonging to the petitioner and her husband. No doubt, as per the provisions of Transfer of Property Act, 1882, (hereinafter called Act, 1882), against the share of the property of the defaulter proceedings can be initiated since the respective sharers are entitled to transfer their shares without specifying that the transfer is to take effect on any particular share or shares of the transferor as guided by Section 47 of Act, 1882. Therefore the contention advanced by learned counsel for the petitioner that a co-ownership property cannot be sold without effecting partition cannot be sustained under law. The share is also not specifically mentioned in Ext. P2 document, therefore it is clear that, the parties have got equal share over the property in question in accordance with the provisions of Section 45 of the Transfer of Property Act.

IN THE HIGH COURT OF KERALA

W.P.(C) No. 39599 of 2018

Decided On: 25.03.2019

 Shakeela C.K. Vs.  Tahsildar, Thamarassery and Ors.

Hon'ble Judges/Coram:

S.P. Chaly, J.

Print Page

Whether co-owner of property is necessary or proper party in eviction suit against tenant?

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)

21. Keeping in mind the aforementioned well settled principles of law and on examining the legality of the impugned order, we find that the impugned order is not legally sustainable and hence deserves to be set aside.

22. In our considered opinion, Respondent No. 1, who claims to be the co-sharer or/and co-owner with the Plaintiffs (Appellants herein) of the suit property is neither a necessary and nor a proper party in the eviction suit of the Appellants against Respondent Nos. 2 to 5. In other words, such eviction suit can be decreed or dismissed on merits even without the impleadment of Respondent No. 1.

23. In the eviction suit, the question of title or the extent of the shares held by the Appellants and Respondent No. 1 against each other in the suit premises cannot be decided and nor can be made the subject matter for its determination.

24. The reason being that this is not a suit between the Appellants (Plaintiffs) and Respondent No. 1 where their inter se rights relating to the suit premises can be gone into but rather is an ejectment suit filed by the Appellants against Respondent Nos. 2 to 5 for their eviction from the suit premises.

25. Therefore, the Lis in the suit is between the Appellants on the one hand and Respondent Nos. 2 to 5 on the other hand and the decision in the suit would depend upon the question as to whether there exists any relationship of landlord and tenant between the Appellants and Respondent Nos. 2 to 5 in relation to the suit premises and, if so, whether the grounds pleaded in the plaint for claiming eviction of Respondent Nos. 2 to 5 are established or not. For deciding these two main questions, the presence of Respondent No. 1 is not necessary.

26. For these reasons, we are of the considered opinion that Respondent No. 1 is neither a necessary and nor a proper party in the suit.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 3018 of 2008

Decided On: 25.01.2018

 Kanaklata Das  Vs. Naba Kumar Das and Ors.

Hon'ble Judges/Coram:

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

Citation:(2018) 2 SCC 352

Print Page

What is distinction between concept of joint ownership and co-ownership of ancestral properties?

It can be seen that the plaintiffs have not understood the concept of joint ownership and co-ownership of ancestral properties. Ancestral properties cannot be jointly owned. Joint properties survive to the joint holders entirely upon the death of one joint holder. Ancestral properties survive to all the members of the coparcenary. Ancestral properties can be co- owned by community of interest and unity of possession such that each party is an owner of an undivided share. Upon the incidents of joint family property or coparcenary property, this interest is augmented by the death of any coparcener (co-owner) and is diminished by the birth of any coparcener in the HUF. The fact remains that the properties in Exhibit A stated to be the co- owned or jointly owned are unmistakably and repeatedly stated to be ancestral properties. The ancestral properties would survive to the coparceners in a Hindu coparcenary owning such joint family properties. The only exceptions to that would be the interest of the deceased Hindu in such coparcenary.

Bombay High Court

Shalini Sumant Raut & Ors vs Milind Sumant Raut & Ors on 14 December, 2012

Bench: R. S. Dalvi

Print Page