R.J. Bhave, J.
1. This second appeal is by the plaintiff.
2. A very interesting point of law is raised in this case. A house, situate at Khazanchi lane Sarafa Bazar Chowk, Bhopal, was owned by Alamdar Hussain and his family. In part of the house, Radhavallabh, the defendant No. 1, was a tenant. The whole of the house was sold in different lots to 8 persons. The plaintiff and the defendants 2 to 5 purchased in different lots the portion occupied by the defendant No. 1. Out of the portion let out to the defendant No. 1, the plaintiff had purchased the portion marked as No. 8 in the plaint map and more fully described in paragraph 1 of the plaint. The plaintiff desired to rebuild the house which is in a dilapidated condition and hence gave a quit notice to the defendant No. 1 and filed the suit for ejectment. The defendant had also not Paid the rent from the date of the transfer till the date of the suit. Hence a decree for proportionate rent was also claimed and the defendants Nos. 2 to 5 were added as parties to the suit because they had also claim over part of rent and were entitled to be heard on the question of apportionment of rent.
3. The trial Court decreed the plaintiffs suit, but the lower appellate Court dismissed the suit on the ground that the plaintiff alone could not have terminated the tenancy of the defendant No. 1 vis-a-vis the portion purchased by him. That Court, however, held that if the notice would have been held to be valid, the plaintiff would have been entitled to the relief of ejectment of the defendant No. 1. The trial Court had decreed the plaintiff's claim for arrears of rent. Even on the finding that the notice was not valid, the decree for arrears of rent could not have been set aside by the lower appellate Court. The lower appellate Court, however, in a hurry failed to take note of this fact also and dismissed the plaintiff's suit entirely.
4. In support of the finding that the notice was invalid, the lower appellate Court relied on the decisions of this Court in Abdul Hamid v. Bhuvaneshwar Prasad, AIR 1953 Nag 18; Prabhakar v.Smt. Juggobai, 1959 MPLJ (Notes) 75 and Narayansingh v. Krishnasewak, 1962 MPLJ (Notes) 345, as also on the decision of the Assam High Court in Arunchandra Doverah v. Panchu Modak, AIR 1957 Assam 70. In the cases of AIR 1953 Nag 18; 1959 MPLJ (Notes) 75 (supra), the position was that the tenancy was created by joint landlords. One of the landlords not having any defined share in the property was held to be disentitled to terminate the tenancy. In those cases the question whether on the transfer of the property by the sole landlord to other persons in parts as contemplated under Section 109 of the Transfer of Property Act a severance of the tenancy was created or not was not before the Court for consideration. Those cases are, therefore, of no use in deciding the question before me.
In the Assam Case. AIR 1957 Assam 70 (supra), the defendant was a tenant in respect of certain land owned by the plaintiff and defendants 2 to 8. Subsequently, some portion of the land fell to the share of the plaintiff at a partition, The notice to quit by the plaintiff in respect of the land fallen to his share was held to be invalid. In the Assam Case there is no discussion. The only observation in the case is:--
'.........we think that the defendantwas a tenant in respect of the entire area claimed, and that a notice to quit in respect of the 13 lessas of land only could not be a valid notice to quit and, therefore, the plaintiff could not sue to eject the defendant merely from the land in suit.'
That decision is also, therefore, not helpful in deciding the controversy before me.
5. Shri R. C. Agarwal, learnedcounsel for the appellant, urged that under Section 109 of the Transfer of Property Act a transfer of property by lessor of the part thereof is envisaged and when such a transfer takes place, the transferee possesses all the rights and if the lessee so elects be subject to all the liabilities of the lessor as to the part of the property transferred to him so long as he remains owner of it. He also pointed out that the section further Provides that the lessor, the transferee and the lessee may determine what proper-tion of the premium or rent reserved by the lessee is payable in respect of the part so transferred and, in case there is disagreement, such determination may be made by any Court having jurisdiction. He, therefore, urged that inasmuch as the division of the proportionate rent is contemplated under Section 109 of the Transfer of Property Act, it follows that the provisions of Section 109 also contemplate severance of the tenancy by the fact of transfer itself.
Shri Agarwal pointed out that in the case of month to month or yearly tenancies if the property is transferred to several persons, it would be impossible to terminate the tenancy if one of the transferees is won over by the tenant as, in that case, no joint notice by all the transferees terminating the tenancy would be served and thus the majority of the transferees would be prevented from enjoying their property and the lease would be perpetuated indefinitely to the detriment of the other transferees. Shri Agarwal urged that this could not be the requirement of law. In support of his contention that a transferee of a share could eject a tenant from the portion purchased by him by giving a quit notice, he relied on a Full Bench decision of the Madras High Court in Kannyan v. Alikutti. AIR 1920 Mad 838 = ILR 42 Mad 603 (FB). In that case, it was held by majority (Seshagiri Aiyar, J. dissenting):
'Where several items of property are comprised in a lease, the lessor is not entitled to eject the tenant from a part only of the holding but the assignee of the reversion in part of the demised premises is entitled to eject for due cause from such part on payment of the value of the improvements to that part'.
Even in the dissenting judgment of Seshagiri Aiyar, J., there is observation to the following effect:
'I feel no hesitation in saying that neither under Section 109, T. P. Act, nor under the general law of the land is it competent to an assignee of a part of the demised premises to elect the tenant from that portion compulsorily during the period of the tenancy. Even if Section 109 is capable of a different construction. I would hold that its operation should not be extended to agricultural tenancies in this country because the rule of equity, justice and good conscience would be defeated rather than advanced by the extension of the doctrine of partial eviction to agricultural leases'.
It would thus appear that even Seshagiri Aiyar, J. contemplated the possibility of interpreting Section 109 of the Transfer of Property Act in the manner suggested by Shri Agarwal, namely, that the effect of the transfer is severance of the lease in so many parts. Shri Agarwal further sought support from a decision of Shiv Dayal, J. in Pyarelalsa v. Garanchandsa, AIR 1965 Madh Pra 1, In that case, a property belonging to a joint family was leased out. Subsequently, there was a partition under which the property fell to the share of some of the coparceners, They served a notice terminating the tenancy and brought a suit for rent as well as for ejectment, In that case. It was held by Shiv Dayal, J.:
'Though a partition might not be a transfer for the purpose of some of the provisions of the Transfer of Property Act, for the purpose of Section 109 of that Act, however, it is a transfer in a general sense of the term. Since on partition rights in specific property of all the other members of the joint family to whom the suit property once belonged cease to exist except of the member to whom it is allotted such a member of the erstwhile joint family becomes entitled to realise the rent and eject the tenant of the property allotted to him, as the principles of Section 109 of the Transfer of Property Act extend to the case of partition'.
On this reasoning it was held that a notice to quit by the coparceners to whom the property in possession of the tenant was allotted was valid. From this decision it would appear that Shiv Dayal, J. was also of the view that the effect of Section 109 of the Transfer of Property Act is that severance in tenancy is effected by the transfer.
6. Shri M. C. Nahlani, learned counsel for the respondents, urged that the decision of Shiv Dayal. J. was not helpful because, in that case, the whole of the demised property had fallen to the share of the coparceners who had given the notice to quit. In that case the question of severance of the tenancy was not at all involved. In support of his contention that where the demised property Is subsequently owned by different transferees, all of them should join in terminating the tenancy as a whole, he relied on the Assam Case, already cited, as also on the following cases:
(i) Kabil Sardar v. Chunder Nath Nag Chowdhry, (1893) ILR 20 Cal 590;
(ii) Shamboo Dayal v. Chandra Kali, AIR 1964 All 350 and
(iii) V. Konnappan v. Kunnivil Manikkam, AIR 1968 Ker 229. The case of (1893) ILR 20 Cal 590 (supra) is not at all relevant. That case is decided on the basis of Bengal Tenancy Act.
In the Allahabad case, the house in occupation of the defendant as tenant was transferred in lots to three persons. All of them applied before the Rent Controller for permission to eject the tenant. By a joint order such a permission was granted and the three purchasers filed the suit for ejectment of the tenant. In that case it was urged that the three purchasers should have filed separate applications and separate orders should have been passed by the Rent Controller. That argument was rejected by the learned Single Judge (Dhavan, J.). While considering the submission the learned Judge observed:
'This argument ignores the provisions of Section 109 of the Transfer of Property Act which provides in effectthat if the lessor transfers the property leased, or any part of it, the transferee in the absence of any contract to the contrary shall possess all the rights, and if the lessee so elects, be subject to all the liabilities of the lessor as to property or part transferred so long as he is the owner of it'.
Having said so, the learned Judge, however, added:
'The sale transaction of itself could not have the effect of splitting the plaintiffs' single tenancy into three separate tenancies without his consent ...............Therefore, he continued to remain the tenant of the house even after the three sale deed. If the plaintiffs would have filed separate applications, the result very well might have been that the application of some of them might have been rejected and of the rest allowed. This would have led to the absurd position that the defendant would have been ejected from a portion or portions of the house -- a result not permitted by law. It is the settled view of this Court that the District Magistrate has no power to grant the landlord permission to eject the tenant from a portion of the accommodation occupied by him'.
His Lordship further observed:
'Furthermore, even if the defendant had occupied three different portions of the house under three separate tenancies, there was nothing illegal in the three plaintiffs joining together in a common application for permission to eject him from the three different portions. The matter was purely one of convenience and the defendant was not prejudiced by the common order in any way'.
It would thus appear from this decision that the point raised before this Court was not canvassed before the Allahabad High Court, though casually it was observed in that case that three tenancies are not brought into existence by transfer. That decision is also, therefore, not of much help to the respondents. In AIR 1968 Ker 229 (supra) it was held:
'In the case of tenants in common, there is only unity of possession and not of title or interest and to determine such a tenancy notice should be issued to all the tenants and there is no effective determination of the lease in the absence of notice to quit to any one of them. A lease cannot be determined piecemeal'.
In this case also the effect of the provisions of Section 109 of the Transfer of Property Act was not considered. The real question in the Kerala case was as to whether a notice to one of the co-tenants was a good notice to all. Shri Nahjani, however, urged that the Kerala case was being relied on by him for the proposition that the tenancy could not be terminated piecemeal. The diffi-culty envisaged by Shri Agarwal that if one of the transferees does not join in giving the notice, the tenancy could never be terminated and would become a perpetual tenancy and would operate as a hindrance towards free transfers of property was answered by Shri Nahlani by saying that even one of the transferees could give the notice terminating the tenancy as a whole and not with respect to the portion purchased by him and the suit for ejectment would be good if other purchasers are also joined in the suit as is done in the case of joint debts where one of the creditors can file a suit for recovery of the whole amount against the debtor if the other co-creditors are joined in the suit. I am not impressed with this argument. By the transfer of part of the property the transferee becomes owner of only the part. He can, therefore, have no right to terminate the tenancy regarding the property over which he has not purchased the right of reversion. Such a notice, in my view, would be invalid.
7. In Sri Raja Simhadri Appa Rao v. Prattipati Ramayya, (1906) ILR 29 Mad 29. Sir S. Subrahmania Ayyar, Offg. Chief Justice, held:
'A tenant in common may have ejectment to the extent of his interest, on proper notice to quit; and the inclusion in such a suit of the other co-sharers, as defendants, is merely the inclusion of persons properly parties to the proceeding and not of litigants against whom a separate claim, having no connection with the ejectment, is made'.
This decision was based on the English cases, namely, Cutting v. Derby, (1776) 2 Wm BL 1075 (1077) and Doed on the demise of Devid Whayman v. Chaplin, (1810) 3 Taunt 120, Sankaran Nair, J., however, was of the opinion that the Indian Law on the subject was different. According to his Lordship, where the relation is created by contract with several joint landlords, according to the English cases, such relation subsists only so long as all of them wish it to continue, while according to the Indian cases it subsists until all of them agree to put an end to it; and such a contract cannot, in the absence of special circumstances, be put an end to by any one of them if they continue to hold as joint tenants.
His Lordship, however, held that this principle will not apply when the suit is for ejectment and partition and all the co-owners are made parties. His Lordship, however, held that under the principles of law embodied in Sections 37 and 109 of the Transfer of Property Act a joint owner who has by division become the owner of a specific share is entitled to enforce separately all the rights ap-pertaining to the particular land which fell to his share, as against the lessee just as if he had given a separate lease of his own share alone originally to the lessee. This case was followed in a subsequent decision of the Madras High Court in Korapalu v. Narayana, ILR 38 Mad 445 = (AIR 1915 Mad 813). I am inclined to follow the Full Bench decision of the Madras High Court in AIR 1920 Mad 838 (FB) (supra) relied on by Shri Agarwal, and also the other two decisions, cited by me. In my opinion, when joint owners give any property on lease, the terms of the lease cannot be varied so long as the property is held by them jointly; but the grant of lease must always be presumed to be subject to the condition that the joint owners may separate their interests by partition and in that case the partition would have the effect of severing the tenancy also pro tan to. Similarly, even if one owner leases out the property, the lease must always be held to be subject to the condition that on transfer of the part of the property the lease shall stand severed pro tanto.
8. For the aforesaid reasons, I hold that the notice to quit given by the plaintiff was valid and that he was entitled to the decree passed by the trial Court. The decree of the lower appellate Court is set aside and that of the trial Court is restored. I have already held that the plaintiff is entitled to proportionate arrears of rent as awarded by the trial Court. Clause (5) of the decree of the trial Court, however, will have to be altered to the following effect in the changed circumstances:
'The plaintiff do hand over possession of the suit accommodation to the defendant No. 1 after rebuilding it on or before 21st September 1971'.
The plaintiff shall get costs of this Court as well as of the lower appellate Court. Hearing fee here is fixed at Rs. 50/-. The appeal is allowed accordingly.