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Murlidhar Govardhandas Shsh Vs. S.V. Kunnur and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtMumbai High Court
Decided On
Case NumberSpl. Civil Appln. No. 648 of 1978
Judge
Reported inAIR1983Bom118; 1982MhLJ749
ActsProvincial Small Causes Court Act, 1887 - Sections 15; Provincial Small Causes Court Act, 1887 - Schedule - Article 8
AppellantMurlidhar Govardhandas Shsh
RespondentS.V. Kunnur and ors.
Appellant AdvocateY.S. Jahagirdar, Adv. for;K.J. Abhyankar, Adv.
Respondent AdvocateA.V. Datar, Adv.
Excerpt:
.....of the suit filed in the small cause court by one of the lessor against the lessee for share of rent - it was held that the small cause court by its very nature would not be the court, where the interest of the plaintiff could be adjudicated upon and relief against the tenant was granted on the basis of such adjudicated division of the interest - unless the plaintiff and the other sharers had agreed otherwise only for a share in the rent and its recovery, the suit in the court of small causes would not be tenable. - indian penal code, 1860 [c.a. no. 45/1860].sections 124-a, 153-a, 153-b, 292, 293 & 295a; [f.i. rebello, smt v.k. tahilramani & a.s. oka, jj] declaration as to forfeiture of book held, the power can be exercised only if the government forms opinion that said..........is filed without there being any division of the property only with regard to a portion of the rent. the small cause court by its very nature would not be the court where the interest of the plaintiff could not adjudicated upon the relief against the tenant is granted on the basis of such adjudicated division of the interest. unless the plaintiff and the other co-shares have agreed otherwise only for a share in the rent and its recovery, the suit in the court of small causes would not be tenable.7. this position in law clearly goes to show that the present action was unentertainable in the court of small causes. the view taken by the learned joint judge, poona, therefore, is correct as to the tenability of such a suit in the court of small causes.8. no interference is, therefore,.....
Judgment:

1. By this petition, the challenge is to the order made by the Joint Judge, Poona, holding that the Small Cause Court, Poona, had no jurisdiction to entertain that suit filed by the present petitioner against a tenant on the basis that he has 1/5th share in the property demised under the lease. By the impugned order, it has been found that such a suit was unentertainable by the Small Cause Court.

2. The undisputed facts are the one Govardhandas Shah held house property No. 1669, situate in Shukarwar Path, Poona, Defendants No. 1 Shri S. V. Kunnur is one of the tenants in that property. Govardhandas did not leaving behind him there sons, including plaintiff Murlidhar and his brothers Chandrakant and Rasiklal and two daughters Savitaben and Lalitaben. The widow of Government by name Miratbai also died in 1967 and after her death, the three brothers entered into some sort of family arrangement on September 7, 1967 as per Ex. 47. Acting upon this arrangement, the plaintiff set up a claim to the 1/5th share of the rent against the tenant Shri Kunnur. In the first round of appeal, the question as to the necessity of the plaintiff was decided and the court directed that they were necessary parties. One of the brothers Chandrakant under the agreement claimed full rent on the basis that all the three brothers had agree to give the house property to him and that a release deed or some conveyance deed was to e executed in his favour. As the present plaintiff would not act upon the terms, he initiated the suit for specific performance, being Special Civil Suit No. 150 of 1969. That suit was filed on June 12, 1969 to which the present plaintiff is a party.

3. In the present suit, which is failed in the Small Cause Court, the plaintiff sough to recover 1/5th share of the rent amount from the tenant without there being any agreement inter se or between the plaintiff and the tenant. the narrow question is, whether such a suit wad tenable before that Court?

4. In principle, the lease is an indivisible right to enjoy the demised property, the consideration being premium or rent. The statutory terms 'rent' available in S. 105 of the T.P. Act historically is based on the old English concept whereunder triple essential incident of rent were recognised, being that the same is reserved to the lessor, which would include the body of the lessors and not to any stranger; that is it so reserved by appropriate words and it is not reserved for something that forms part of the demised premises. The position under the Indian Law because of the express statute indicative that rent denotes consideration payable by the lessee. That consideration may be the premium and also the other payments. When his rent is payable as a consideration obviously it stands apart from the demised property. Ordinarily, therefore, neither the demised property not the consideration against it is divisible. If these juridical incidents of rent are kept in view, the lessee is liable to pay the lessor or in case of more than one, to the body of lessors. The liability, thus, is indivisible like the original demised of the lease. Unless there is an agreement to the contrary or upon the implied or otherwise authority the plaintiff is entitled to lay a claim to a portion of the rent. Seeking a divided quantum of rent assumes that there in a division in the interest of the leases itself and unless that is either pleaded or proved, such a suit for a portion of the rent which would involve division qua the patty so claiming would not be tenable. The plaintiff either will have to sue for the whole body of the lessors. if he has such an entitlement, or he will have to show that there exists an arrangement under which he can claim form the tenant a divided interest out of the consideration of the lease or rent.

5. Furthermore, as the facts indicate, this is a case of joint lessors having unity to title and does not appeal to be a case of joint lessors having only unity of possession. It is well-settled that the lease by tenant in common operates as a separate demised by each of his share and the confirmation of it by others. In such a position, each co-lessor may act by separate demise to lease his own share. The present is not the case of that type wherein the plaintiff share was separately leased out to the tenant- defendants. On the other hand, it was because of the unity of title the lease was created and there had not been the division of that title.

6. Yet another principle that should inhibit the entertainment of each suit in the Court of Small Causes is the necessity to decided the question of title, its portability and working out division of interest. As indicate earlier, the suit itself is based on the partial entitlement it and seeks to divide the consideration or rent to the extent of 1/5th. Such division necessity involves the question of the title and also the working out of the division f the property. Unless this division is worked out, the plaintiff entitlement to a given share as against the lessee cannot be effectively adjudicated upon. This position is attracted when such a suit is filed without there being any division of the property only with regard to a portion of the rent. The Small Cause Court by its very nature would not be the court where the interest of the plaintiff could not adjudicated upon the relief against the tenant is granted on the basis of such adjudicated division of the interest. Unless the plaintiff and the other co-shares have agreed otherwise only for a share in the rent and its recovery, the suit in the Court of Small Causes would not be tenable.

7. This position in law clearly goes to show that the present action was unentertainable in the Court of Small Causes. The view taken by the learned Joint Judge, Poona, therefore, is correct as to the tenability of such a suit in the Court of Small Causes.

8. No interference is, therefore, called for Rule, is discharged with no order as to costs.

9. Rule discharged.


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