(i) The notice determining tenancy has to be by the lessor which includes all lessors. It has to be on behalf of all of them and where it is by one of them the consent of the others can be assumed unless proved otherwise;
(ii) The suit for eviction of tenant can be maintained by one of the co-owners/landlords even where there are other co-owners/lessors on the doctrine of agency assuming the consent of the other co-owners unless their disagreement is established; and
(iii) One of the co-landlords collecting rent for the body of the landlords by consent implicit or otherwise, functions as landlord for all practical purposes and is entitle to institute proceedings qua all landlords;
In the instant case, there is no dispute that on the death of Mathura Prasad, the original lessor, the property was inherited by his widow, two sons and the daughter who had instituted the suit. The daughter alone had been collecting rent as landlord as representative of all other co-landlords and as such was acting as landlord for all of them. Therefore, she acted on her own behalf and as an agent of the other co-landlords in terminating the tenancy and instituting the suit. The consent of other co-landlords is implicit as there is no evidence to prove the contrary. She therefore has rightly terminated the tenancy and instituted the suit qua all landlords for the eviction of the tenants.
ALLAHABAD HIGH COURT
Case :- CIVIL REVISION No. - 590 of 2010
Miss. Geeta Prasad, Vs Mohd. Latif & Others
Hon. Pankaj Mithal,J.
Dated:January 13 , 2015
Citation:AIR 2016 (NOC)397 ALL
The revision under Section 25 of the Provincial Small Causes Court Act, 1887 has been preferred by the landlord/landlady against the judgment and order dated 15.10.2010 passed by the Additional District Judge in exercise of powers of Small Causes Court dismissing the suit of the landlord for eviction of the tenants on the ground that the notice terminating tenancy is defective and invalid.
The dispute in the suit giving rise to this revision is regarding shop no. 54 Civil Lines, Bareilly. In the said shop the tenants are doing business in the name of M/s Alishan Furniture. The tenancy was determined by the landlord vide notice dated 14.2.2006 which was served upon them on 18.2.2006. The notice not only determined the tenancy but demanded arrears of rent from 15.9.2004 to 24.3.2006.
It seems that the landlord after determining tenancy under Section 106 of the Transfer of Property Act, 1882 (in short TP Act) instituted the suit for eviction of the tenants. The tenants objected to the suit inter alia on one of the grounds that the notice determining tenancy had not been given on behalf of all the landlords therefore, the suit for their eviction by one of the co-landlords is not maintainable.
The court below held that the landlord who instituted the suit is not the only landlord and he alone can not determine the tenancy. The notice is not on behalf of all the landlords and therefore the suit is not maintainable.
I have heard Sri Sheshadri Trivedi, learned counsel for the landlord. He has attacked the impugned judgment and order by arguing that a suit for eviction of the tenants after determination of tenancy by one of the co-landlords is maintainable. The court below manifestly erred in law in dismissing the suit ignoring the series of decisions on this aspect.
Sri Anoop Trivedi has defended the judgment of the court below on the reasoning which has been recorded therein and has submitted that as the tenancy can not be terminated by one co-landlords alone and therefore the suit is not maintainable.
The shop in dispute was of Mathura Prasad. On his death it was inherited by his wife Smt. Sarla Prasad, two sons Jaswant Prasad and Ajit Prasad and the daughter Km. Geeta Prasad as co-owners landlords. Therefore, there is no dispute to the finding that Km. Geeta Prasad is not the only owner of the shop in dispute.
It is admitted that Km. Geeta Prasad alone issued notice dated 14.2.2006 determining the tenancy and the said notice was not on behalf of the other co-owners and landlords. She alone had filed the suit without arraying or impleading the other co-owners/landlords as a party. She in her cross examination has accepted that she had not taken any permission or consent of her brothers and mother ie. the other co-owners/landlords for instituting the suit, as she felt there was no legal necessity for doing so.
In the factual back-ground of the case and in the light of the arguments advanced by the counsel for the respective parties the only question which crops up for my consideration is whether one of the co-landlords can determine the tenancy and maintain a suit for eviction of the tenant on the basis of such determination/notice without impleading the other co-owners.
Section 106 of the TP Act provides that a lease of immovable property for any other purpose other than the agriculture or manufacturing shall be deemed to be a lease from month to month terminable on part of either lessor or lessee by 30 days notice in its applicability to the State of U.P.
The lease as such can be terminated by the lessor or the lessee by notice in writing, signed by or on behalf of the person giving it as provided under Sub-Section 4 of Section 106 of the TP Act. Therefore, the requirement of the notice is that it should be signed by or on behalf of the person giving it.
Section 13 of the General Clauses Act provides that in all Central Acts and Regulations unless there is anything repugnant to the subject or context, the words in the singular shall include the plural and vice-verse. Accordingly, the use of the word "lessor or lessee" in Section 106 of the TP Act for terminating the tenancy would include plural "lessors or lesseees". Therefore, where there are more than one lessor, the tenancy is terminable by all of them. The necessary corollary of it is that the notice determining lease has to be on behalf of all of lessors though it may be signed by one of them.
A Full Bench of the Gujrat High Court in Nand Lal Girdhari Lal and another Vs. Gulam Nabi Jamal Bhai Motor Wala and others AIR 1973 Gujrat 131 held that if there are two or more co-owners of the property, no single co-owner can give notice determining the lease. The notice to quit must be given by or on behalf of co-owners.
The similar view was expressed by our High Court in Gurdayal Saran Prasad Vs. District Judge, Dehradun and others 1997 (2) ARC 535 that a notice under Section 106 of the TP Act by only one of the co-owners and the suit also filed by him when there are other co-landlords is not valid and consequently the suit is not proper.
In Akhilesh Singh Vs. Vijay Singh and others 2004 (1) ARC 213 it has again been held where there are several co-owners one of them alone can not terminate the tenancy unless he has the consent, expressed or implied, of the other co-landlords.
The same view has been reiterated by another single judge of this court in Smt. Indra Sharam and others Vs. Lt. Colonel S.K. Sharma 2005 (4) AWC 3122.
In Ram Pasricha Vs. Jagannath AIR 1976 SC 2335 distinguishing the full bench of the Gujrat High Court in the case of Nand Lal Girdhari Lal (Supra) it has been held that jurisprudently a co-owner is as much the owner of the entire property as any sole owner and therefore the argument that in the absence of the other co-owners on record, one of the co-owners is not entitle to sue for eviction is not tenable.
The ratio of the above decision was followed by the Supreme Court in Smt. Kanta Goel Vs. B.P. Pathak AIR 1977 SC 1599 and it was held that where a landlord who had let out his premises to a tenant, dies and his heirs succeed to his estate, one co-heir to whom the rent is being paid by the tenant and who receives it on behalf of the estate, would be landlord for the purposes of the Act. The co-heirs constituted the body of landlords and, by consent implicit or otherwise, of the plurality of landlords, one of them representing them all , was collecting rent. In short, he functioned, for all practical purposes as the landlord, and was therefore entitled to institute proceedings for eviction against the tenant qua landlord.
In S.P. Roychaudhary Vs. Kamla Bala Roy AIR 1978 SC 835 it has been held that notice to quit need not be from all the co-landlords.
The Apex Court in Dhanna Lal Vs. Kalawati Bai AIIR (2002) 6 SCC 16 reiterated that one of the co-owners can alone and in his own right file a suit for ejectment of the tenant and it is not open to the tenant to question the maintainability of the suit on the ground that the other co-owners were not joined as parties to the suit.
In Mohinder Prasad Jain Vs. Manohar Lal Jain AIR 2006 SC 1471 following Ram Pasricha and Dhanna Lal (Supra) reaffirmed that the suit filed by a co-owner is maintainable and it is not necessary for the co-owner to show that he had taken the option or consent of the other co-owners before initiating the eviction proceedings.
The Supreme Court in India Umbrella Manufacturing Co. and others Vs. Bhagabandei Agrawalla and others 2004 Alld. CJ 767: (2004) 3 SCC178 observed that it is settled law that one of the co-owners can file a suit for eviction of a tenant from the property generally owned by co-owners on the doctrine of agency. The co-owner filing the suit for eviction of the tenant does so on his own behalf in his own right and as the agent of 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 despite their disagreement.
In other words a suit for eviction of tenant can be maintained by one of the co-owners but with the consent of the other co-owners which is assumed unless proved to be non-existing.
This court in Rang Nath Vs. State of U.P. 1984 (1)ARC 642 laid down that a notice served by one or more of the landlords is valid in law. The aforesaid decision was approved by the Full Bench of this court in 1987 (1) ARC 281 following Ram Pasricha and Kanta Goel (Supra). The Full Bench has been followed in Girraj Kishore Vs. Triloki Nath Vimal AIR 1988 Alld. 305 which in turn has been followed with approval in Vijay Kumar Agrawal Vs. 17th ADJ 2000 (2) AWC 1531.
In nutshell the legal position which is culled out can be summarised as under:-
(i) The notice determining tenancy has to be by the lessor which includes all lessors. It has to be on behalf of all of them and where it is by one of them the consent of the others can be assumed unless proved otherwise;
(ii) The suit for eviction of tenant can be maintained by one of the co-owners/landlords even where there are other co-owners/lessors on the doctrine of agency assuming the consent of the other co-owners unless their disagreement is established; and
(iii) One of the co-landlords collecting rent for the body of the landlords by consent implicit or otherwise, functions as landlord for all practical purposes and is entitle to institute proceedings qua all landlords;
In the instant case, there is no dispute that on the death of Mathura Prasad, the original lessor, the property was inherited by his widow, two sons and the daughter who had instituted the suit. The daughter alone had been collecting rent as landlord as representative of all other co-landlords and as such was acting as landlord for all of them. Therefore, she acted on her own behalf and as an agent of the other co-landlords in terminating the tenancy and instituting the suit. The consent of other co-landlords is implicit as there is no evidence to prove the contrary. She therefore has rightly terminated the tenancy and instituted the suit qua all landlords for the eviction of the tenants.
The court below has thus committed a grave error of law in dismissing the suit holding the notice to be bad as it is not on behalf of the co-landlords.
In view of the above, the impugned judgment and order dated 15.10.2010 passed by the court below is hereby set aside and the matter is remanded for reconsideration on merits by treating the notice to be valid and that the suit by one of the co-landlords to be maintainable in law.
The revision is allowed . Costs easy.
January 13 , 2015
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