Skip to content


Devu Subhana and anr. Vs. BadruddIn Hussain - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 2058 of 1956
Judge
Reported inAIR1957Bom217; (1957)59BOMLR192; ILR1957Bom371
ActsBombay Tenancy and Agricultural Lands Act, 1948 - Sections 5(3) and 27; Tenancy Law; Transfer of Property Act, 1882 - Sections 5, 5(3), 27, 27(1), 44 and 111
AppellantDevu Subhana and anr.
RespondentBadruddIn Hussain
Appellant AdvocateM.V. Paranjpe, Adv.
Respondent AdvocateR.G. Samant, Adv.
Excerpt:
.....1948), section 5(3)(b), 27(1)-transfer of property act (iv of 1882), sections 44, 111(d) - one of joint tenants surrendering his interest in land--whether tenant competent to surrender his interest to extent of his share in land.;under section 5(3)(b) of the bombay tenancy and agricultural lands act, 1948, one of two-or more joint tenants is competent to surrender his interest in the tenancy, to the extent-of his share, to the landlord.;leek & moorlands building soc. v. clark, application no. 2058 of 1956., referred to. - - 1. an interesting question of law as to whether one, of two or more tenants is competent to surrender his interest in the tenancy to the extent of his share to the landlord has arisen in this case. it is well known that under the english law if one of the joint..........cited before us leek and moorlands building society v. clerk 1852 2 all er 492. that was a case of joint tenancy between a husband and wife. it is well known that under the english law if one of the joint tenants dies or ceases to exercise his interest, the other joint tenant takes the whole of the interest by the principle of survivorship. but admittedly that is not the case in our country. therefore, that ruling is of no help for the purpose of deciding the case before us. 4. mr. paranjpe further argued that under the provisions of section 44 of the transfer of property act 'surrender'' will not be countenanced: but, in our opinion, there is nothing in section 44 to support this contention. a reference was also made to section 111 of the transfer of property act. reliance, was placed.....
Judgment:

Palnitkar, J.

1. An interesting question of law as to whether one, of two or more tenants is competent to surrender his interest in the tenancy to the extent of his share to the landlord has arisen in this case. The facts alleged are that the lands in question were given to three persons, the two present applicants and one Devu Jinnappa Vithanna as tenants by the respondents Badruddin Hussain Herwadi. The said Devu surrendered his interest in the lands on 30-1-1954. The landlord accordingly made an application, Tenancy Case No. 18 of 1953. 64, before the Mamltadar, Taluka Hatkanangale, District Kolhapur, for acceptance of the said surrender and delivery of joint possession of the suit property. The present applicants were not made parties to the said proceedings. The Mamlatdar approved the application for surrender and ordered that joint possession of the property be delivered to the landlord along with the two remaining tenants. This order was upheld by the Collector, District Kolhapur. The Revenue Tribunal also upheld the order. However, as desired by the applicants, the lands were divided into 2/3rd and 1/3rd shares for the purpose of cultivation between tenants and the landlord.

2. Mr. Paranjpe, learned Advocate for the applicants, argues that under the provisions of Section 5(3) (b) of the Bombay Tenancy and Agricultural Lands Act, 1948, a tenant may terminate the tenancy at any time, but in such a case the surrender must be of the whole of the tenancy and that one of several tenants cannot surrender his interest. Obviously, if we examine the wording of Sub-section 3(b) of Section 5 of the Act, this argument has no force, as the section states that 'a tenant may terminate the tenancy at any time by surrendering his interest as a tenant in favour of the landlord'. The word 'interest' denotes that one of several tenants can also surrender, his share. Mr. Paranjpe has further argued that under the provisions of Section 27 of the said Act the surrender by one tenant would amount to an assignment and, therefore, invalid. We are of the opinion that the provisions of the two sections, viz. Sections 5 and 27, should be read harmoniously. The assignment of tenancy rights, which is prohibited under Section 27(1) of the Act, willbe an assignment in favour of some person other than the landlord and a surrender in favour of the landlord in terms of Clause (b) of Sub-section (3) of Section 5 is not in our opinion, prohibited, nor can it technically be called as assignment as envisaged under Section 27 (1) of the Act.

3. Mr. Paranjape cited before us Leek and Moorlands Building Society v. Clerk 1852 2 All ER 492. That was a case of joint tenancy between a husband and wife. It is well known that under the English law if one of the joint tenants dies or ceases to exercise his interest, the other Joint tenant takes the whole of the interest by the principle of survivorship. But admittedly that is not the case in our country. Therefore, that ruling is of no help for the purpose of deciding the case before us.

4. Mr. Paranjpe further argued that under the provisions of Section 44 of the Transfer of Property Act 'surrender'' will not be countenanced: but, in our opinion, there is nothing in Section 44 to support this contention. A reference was also made to Section 111 of the Transfer of Property Act. Reliance, was placed upon Clause (d) of the said section that 'in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right', then a lease of immoveable property will terminate. There is, therefore, nothing in this clause to support the contention that one of the tenants or lessees of a joint tenancy cannot surrender his right. Considering the question as a whole, we do not see any reason to disagree from the conclusions arrived at by the Revenue Tribunal, viz. that one of several tenants can surrender his Interest in favour of the landlord.

5. Under the circumstances, we do not findany force in this Special Application, which is dismissed with costs.

6. Application dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //