Achhru Ram, J.
1. The facts of this case have been stated at length in my order of reference dated 16th March 1948 and need not be recapitulated. The dispute in this case relates to a one-half undivided share in 142 kanals and 16 marlas of land situate in the village Jandwala in Muktsar tahsil, Ferozpure district. This land was originally occupied by one Baghela as a tenant under Guru Amar Singh, the father of Guru Harnam Singh plaintiff. In the revenue records he was described as a non-occupancy tenant of the aforesaid land. However, after his death, in a suit brought by him to contest the validity of a notice of ejectment, served at the instance of the aforesaid Guru Amar Singh, on him and his two nephews Fazal Din and Fateh Din, the sons of his deceased brother Allu. Wasal, son of the aforesaid Baghela, succeeded in establishing that the aforesaid Baghela was in fact an occupancy tenant under Section 5(c), Punjab Tenancy Act, of the land mentioned above. On this finding the aforesaid notice of ejectment was cancelled by the Assistant Collector whose decision, though modified by the Collector on appeal, was restored by the learned Commissioner.
2. The second appeal giving rise to this reference has arisen out of a suit brought by Guru Harnam Singh, one of the sons of the aforesaid Guru Amar Singh, against Wasal for possession of a half share in the tenancy comprising 142 kanals and 16 marlas of land, on the allegations that the defendant's above mentioned nephews having surrendered their half share in the tenancy in favour of the plaintiff, the latter was entitled to dispossess the defendant from the aforesaid share. The suit was resisted by the defendant, inter alia, on the pleas that there had been no surrender in fact by Fazal Din and Fateh Din of their share of the tenancy that, even if there was such a surrender, it was invalid and did not bind the defendant; and that the plaintiff had no right to eject the defendant, from any portion or share of the tenancy by-means of the present suit.
3. The learned Counsel for the appellant before proceeding to deal with the matters noticed in the order of reference, sought to challenge what appears to be the concurrent finding of the two Courts below as regards the factum of the alleged surrender by Fazal Din and Fateh Din of their share in the tenancy in the plaintiff's-favour. He urged that there was no evidence m support of the finding and that the mere circumstance of their not having sued for the cancellation of the notice of ejectment, which had been served, at the instance of the plaintiff's father, on them along with the appellant could not constitute a surrender by them of their rights in the tenancy.
4. The plaintiff's plea of surrender was not based on the circumstance of the aforesaid Fazal Din and Fateh Din not having sued to' have the notice of ejectment cancelled. In case the finding on the subject had been based merely on this circumstance, I would have had no hesitation in setting it aside. The allegation in the plaint was that the aforesaid Fazal Din and Fateh Din had expressly declared in their written statement dated 1st June 1946, filed in the suit brought by the present appellant for the cancellation of the notice of ejectment, that they had surrendered their rights in favour of Guru Amar Singh, the father of the plaintiff. Fazal Din, when examined as P.W. 2 during the trial of the present suit, stated, very clearly and in most unambiguous terms, that he and his brother Fateh Din had surrendered their rights in the tenancy in favour of Guru Amar Singh, and that the statement contained in the written statement filed on their behalf in the suit brought by Wasal against the aforesaid Guru Amar Singh-was correct. There was no evidence led by the defendant in rebuttal. In the circumstances, there can be no reasonable doubt as to the correctness of the concurrent finding of the lower Courts.
5. It is quite true that neither of those Courts dealt with the question properly and in the manner required by law. The relevant. issue was issue No. 8 which ran as follows Whether Fazal Din and Fateh Din surrendered their rights in favour of the plaintiff or his-father?' All that the learned trial Judge had to say in respect of this issue was:
With respect to this issue, I entertain no doubt that Fazal Din and Fateh Din did surrender their occupancy; rights in favour of the father of the plaintiff.
6. This is hardly the way in which a trial Court should deal with a question of fact. It was obviously the duty of the learned Judge to discuss the evidence on the subject and to give some reasons in support of the decision given by him. The finding of the learned trial Judge was con-tested in the third ground of appeal in the memorandum of appeal presented to the learned District Judge. The latter disposed of this ground by means of the following sentence:
In para 2 of the plaint it is admitted that Wasal is an occupancy tenant of his own share and similarly it is not denied that Fateh Din and Fazal Din surrendered their rights in favour of Guru Amar Singh and they did not contest the notice for ejectment.
7. I must confess my utter inability to understand what the learned Judge really meant. In the first part of the sentence, he referred to a certain paragraph of the plaint which contained an admission as to the status of the defendant. When he went on to say that it was not denied that Fateh Din and Fazal Din had surrendered their rights in favour of Guru Amar Singh, was he still referring to the averments contained in para. 2 of the plaint? If so, anything said in the plaint as to what Fateh Din and Fazal had done could not possibly be regarded as an admission by the defendant and could not bind him. If the learned Judge meant to say that the factum of surrender by Fateh Din and Fazal Din had not been denied in the defendant's pleadings, that is obviously incorrect because it was specifically denied in the written statement filed by him. If he meant to say that' the factum of surrender was admitted before him during the course of arguments, he ought to have said so clearly and unambiguously and ought not to have jumbled up a statement as to what had taken place while the appeal was being argued before him with the averments contained in a certain paragraph of the plaint dealing with another subject. The concluding words of the sentence appear to lend some colour to the contention of the learned Counsel for the appellant that the issue as to the factum of surrender had been decided by the learned District Judge in the plaintiff's favour merely on the ground of Fazal Din and Fateh Din not having contested the notice of ejectment.
8. In view of the unsatisfactory nature of the findings given by both the Courts below on this question, we examined the evidence, and after such examination, reached the conclusion that the decision of the said Courts was, on the merits, not open to any criticism.
9. The real important question arising for determination in this case is that of the legal effect of the surrender on the rights of the parties to the present litigation in the land forming the subject, matter of such litigation.
10. In English text books on the Law of Landlord and Tenant 'surrender' by a tenant has been defined as ''the act of yielding up of the term of the tenancy to him who has the immediate estate in reversion' so as to result in the determination of the' tenancy. Applied to an occupancy tenant as understood in the Punjab Tenancy Act, surrender may be taken to signify the yielding up of the right of occupancy resulting in the extinction of such right.
11. One of the questions that was debated before us was whether, in a case where an occupancy tenancy is held by more than one person, it is permissible for one or more of the co-tenants to surrender his or their share or shares in the tenancy to the landlord so as to cause an extinction of the occupancy right in suuh share or shares. While in the text books one does come across an occasional reference to surrender by the tenant of a part of the demised premises, no reference is to be found anywhere to a case of surrender of the tenancy rights in an undivided share of the tenancy. No case of such surrender was brought to our notice by counsel on either side at the hearing. To me such a surrender appears to be a wholly inadmissible proposition, where the tenancy is held by the co-tenants as a-joint tenancy in the strict sense of the term, or as a tenancy in common. Unity of possession as well of every part as of the whole is a feature common to both the varieties of tenancies, although in case of a joint tenancy there must, in addition, be unity of title, unity of commencement of title, unity of interest so as in law to have equal shares in the joint estate, and a right of survivorship. While in case of a tenancy in common the co-tenants hold by several and distinct titles, each of the co-tenants has, in both classes of tenancies, a right to possession as well of every part as of the whole of the subject-matter of the tenancy. One or more out of the body of tenants, whether holding as joint tenants-or as tenants-in-common, cannot, by any individual act of their own, extinguish the tenancy in, any part of the estate so as adversely to affect the right of the remaining tenant or tenants to possession of every part of the estate comprised in the tenancy.
12. However for the purpose of the present cage this question appears, more or less, to be of a purely academical interest. It is indisputable that, in the absence of a contract to the contrary, leasehold rights are transferable. It is, further, indisputable that, both in case of a joint tenancy as well as a tenancy in common, one or more-out of the body of tenants can transfer his or their interest or interests in the tenancy so as to clothe the transferee with all the rights possessed by the transferor or transferors in the subject-matter of the tenancy. That one or more out of persons holding as tenanta-in-common should have such a right seems to be implicit in the very nature of their titles which admittedly are several and distinct titles. There is abundant authority for the view that in this respect persons holding as joint tenants are in no worse position. In Woodfall's Law of Landlord and Tenant, 24th Edn., the following observations are to be found at p. 60 under the heading 'Joint Ten-anoy':
At common law a joint tenant could make a lease of his share alone (constituting a tenancy in common, during the term between the lessee and the other joint tenants) as well as join in a joint lease of the whole. He was seised both per my et per tout and had for the purposes of alienation an exclusive dominion over his own share. So if one joint tenant made a lease of his moiety and died before the lessee's entry, the lease would bind the survivor and the lessee would retain his interest in the moiety demised until his term expired.
13. Subject to a right of veto given to the landlord, and subject to the rights of reversioners under custom, if any, governing the transferor limiting his powers of alienation in respect of ancestral property, the tenancy rights held by a male occupancy tenant under the Punjab Tenancy Act are alienable. Accordingly it must be conceded that, where such occupancy tenancy is held by more persons than one, any one of the co-tenants can, subject to the above mentioned limitations, transfer his undivided interest in the tenancy. There is no bar to the transfer being in favour of the landlord. On the other hand, the latter's right to take a transfer of the tenancy in preference to outsiders is well recognised. According to the provisions of Section 53, Punjab Tenancy Act, in case of a tenancy under Section 5 any tenant intending to transfer his interest in the tenancy by means of sale, gift or mortgage must first offer such interest for sale to the landlord in accordance with the procedure laid down in that section. In case of tenancies under Sections 6 and 8 of the Act the landlord has been given an absolute right of veto and can insist, if he so chooses, that the transfer of the tenancy shall be to him and to none else. Any transfer of such tenancy made without his consent is voidable at his instance. It is true that on such transfer being avoided the original occupancy tenant does not forfeit his tenancy, and has been held to be entitled to recover possession of the land comprised in the tenancy from the landlord after the latter has successfully sued for the eviction of the transferee. The landlord may, however, where the transfer of the tenancy is by sale instead of suing to avoid the transfer, sue to pre-empt the sale and thus substitute himself for the original transferee. A transfer of the tenancy in favour of the landlord has been held to be immune even from attack by the reversioners of the transferor although the land in the hands of the transferor may be ancestral qua such reversioners and his powers of alienation may be restricted under the custom governing him. The transfer in favour of the landlord need not necessarily be for consideration and may be by way of gift. Thus while it may not be open to one or more of the body of tenants, in case of an occupancy tenancy, to surrender his or their interest or interests in the tenancy in favour of the landlord, in the technical sense so as to result in an extinction of the tenancy rights in the share of such tenant or tenants, there is nothing in law to prevent him or them from making a gift of their undivided interest or interests in the tenancy to the landlord so as to clothe him with all the rights he or they themselves possessed in such tenancy before the gift. If the intention to transfer his or their interest or interests in the tenancy by one or more co-tenants to the landlord, without receipt of any consideration, be otherwise dearly established, and if such tenant or tenants have done all that is required by law to be done to make the transfer complete, their title or titles must be deemed to have effectively passed to the landlord, even though the transfer may have been described as a surrender.
14. In view of the very clear statement made by Fazal Din as P.W. 2 as to the intention of himself and his brother, and, further, in view of their inaction at the time they were served with a notice of ejectment, it must be held that the two had effectively transferred whatever interest they had in the tenancy to the plaintiff's father.
15. The question that next arises is how does this transfer affect the rights of Wasal appellant, who had the other half share in the tenancy which was held by him and the aforesaid Fazal Din and Fateh Din as tenants-in-common.
16. The contention of the learned Counsel for the appellant was that as all tenants-in-common, holding under one lease, constitute one persona, each one of them having an interest in every part of the tenancy giving him the right to possession of the whole and every part of such tenancy, the transfer by Fazal Din and Fateh Din of their undivided interest in the tenancy must be deemed to be invalid and inoperative against Wasal, he being entitled completely to ignore such transfer. Reliance in support of this contention was placed on the following observations in the judgment of the Full Bench in Moti Lal and Anr. v. Kartar Singh and Ors. A.I.R. 1940 Lah. 616, F.B.:
As between themselves their rights may be specified, they might hold the tenancy in well denned shares, capable of separate enjoyment or transmission to the respective heirs of each, as if it were his separate property. But qua the landlord they constitute one persona each constituent part of which possesses certain common rights in the whole, and it is liable to discharge common obligations in their entirety.
17. In my opinion, the contention of the learned Counsel is only partially correct. It is true that, so long as the tenancy remains undivided, the landlord who has taken a transfer of the undivided interest of one or more tenants in common cannot eject the remaining tenant or tenants from any portion of the tenancy. It is also true that the tenancy, while it remains undivided, being one tenement qua, the landlord, the rights of the tenant or tenants, who have not joined in the transfer in the landlord's favour, to hold possession of the whole and every part of the tenancy cannot be affected by the transfer. However, without giving him the right to eject such tenant or tenants from any portion of the land comprised in the tenancy, the transfer does effectively clothe the landlord with all the rights of the transferor or transferors therein, and there can and should be no legal bar to exercise by him of these rights in the same manner, and to the same extent, as any other transferee could have done. He may seek partition of the tenancy. If he succeeds in getting the tenancy partitioned and in having the share of his transferor or transferors separated off from the rest, the other tenants will become the sole occupancy tenants of the land allotted to them at such partition, and will have no interest left in the portion separated off as representing the transferor's share, he getting such portion free from any incumbrance in the shape of occupancy rights, such rights becoming automatically extinguished.
18. The judgment of the Full Bench mentioned above does not carry the case of the appellant any further than this. In that case the question of the effect to be given to a transfer by one or more of a number of co-occupancy tenants in favour of the landlord did not arise at all. The question that did arise there was whether, on the death of a co-occupancy tenant without any heirs entitled to succeed to his share of the tenancy under Section 59, Punjab Tenancy Act, the deceased's share of the occupancy rights lapses or devolves on the surviving co tenants. In answering this question the Full Bench held that, although, as amongst themselves, co-tenants holding as tenants in-common hold the tenancy in well-defined shares, capable of saparate enjoyment and of transmission to the respective heirs of each, qua the landlord all the tenants constitute one persona, each, out of the body of the tenants, being entitled to possession of the whole and every part of the tenancy. Applying this principle to the decision of the case which they had to deal with, their Lordships expressed the opinion that, on the death, without heirs, of any one of such tenants, the remaining tenant or tenants must be deemed to have the right to remain in occupation of the entire tenancy, and the landlord cannot dispossess him or them of what, during his life-time, was the deceased's share therein.
19. In taking the above view their Lordships relied on three English decisions and also on the decision Of a Full Bench of the High Court of Calcutta.
20. The first English decision relied on by their Lordships was Halloway v. Berkeley (1826) 30 R.R. 228. In this case, a tenure-holder had a one-half share in six tenements, which he and another person held as tenants-in-common. He, eventually, acquired also the interests of his co-sharer in all the six tenements. On his death, 12 horses belonging to him were taken possession of by the lord of the manor, professing to do so in the exercise of a customary right entitling him to one horse for each tenement held by any of his tenure holders on the latter's death. A suit brought by the heirs of the deceased for recovery of six out of those horses, on the allegation that the tenements being only six in number the lord was entitled, under the custom, only to as many, and no more, horses, was resisted by him on the plea that the interest of each co-tenant in any tenement held by more persons than one as tenants-in-common must be regarded as a separate tenement. In repelling this plea, the learned Judges observed :
The question, therefore, in substance is, whether upon a tenancy in common, the share of each tenant constitutes a distinct tenement, or whether, notwithstanding the distinct estates of each tenant in common, the copyhold does not still remain an entire tenement.
* * * *
In the case of a tenancy in common, the tenement is undivided, none of the tenants in common, be there what number there may, knows his own in severalty; the services, which in case of division would be divisible, remain entire, and the whole land is liable to all the services.
The learned Judges then went on to hold that the creation of a tenancy in common in what was previously an entire tenement did not des-troy the entirety of the tenement. A previous controversy decision in Attree v. Scutt 2 East. 476 which proceeded on the ground that the creation of a tenancy in-common, though there was no division or severance of the property, created distinct and separate tenements was disapproved, and the decision in Garland v. Jehyll (1824) 2 Bing. 273 which held that the creation of a tenancy in-common leaves the tenancy entire was followed.
21. The second decision relied on by the Full Bench was the decision of the House of Lords in William White v. Tyndall (1888) 13 A.C. 263. In this case, lease of a piece of ground had been granted to two persons, George White and Albert White, for 68 years, as tenants-in-common, on their undertaking to pay 150 a year as rent and to carry out all necessary repairs, etc. After the death of George White, the successors-in-interest of the lessors brought an action against the executors of the aforesaid George White, and Albert White, for recovery of arrears of rent for one year, and for damages for breach of the covenant to keep the demised premises in repair. At the trial the question arose whether the landlord could hold each of the tenants-incommon liable for the entire amount claimable by him by way of damages for breach of the said covenant or had to look to each of them only for his own proportionate share of such amount. The Court of Common Pleas Division decreed the claim against all the defendants, holding that, the covenants being joint and not several, each of the tenants-in-common was jointly and severally liable for breach of any of those covenants. The Court of Appeal reversed this judgment but it was restored by the House of Lords. The decision of their Lordships, however, proceeded on the language of the instrument of lease, and not on any general principles. Lord Fitz Gerald who wrote the main judgment of the House observed as follows at p. 271 of the report;
The question is whether the covenants of thelessees were joint covenants only, or were the several covenants of each of the lessees with the lessor.
* * * *
The question thus raised is one of construction of the covenants; but in considering that question we have to look at and consider the whole instrument.
Lord Halsbury, in concurring with the judgment of Lord Fitz Gerald, observed:
In this case the whole question turns upon whether the language of the covenant on the part of the lessees of a holding to pay rent and keep in repair is joint or several.
* * * *
It is true that the parties to whom the demise is made are to hold it as tenants in common, but what they covenant to do is to pay one rent, not two rents, and not each to pay half a rent, but one rent.
22. In the circumstances, I cannot regard this decision as of any practical utility in ascertaining the principles which must, in the absence of a relevant provision in the instrument of lease, govern the relations inter se of a landlord and his tenants who hold as tenants-in-common.
23. The third English decision relied on was United Dairies Limited v. Public Trustee and Anr. (1923) 123 L.T. 768. In this case a lease for ninety-four years had been granted to two persons, with a covenant that the lessees, their heirs, assigns, etc., had to keep the demised premises in repair during the term and to yield them up well and sufficiently repaired at the expiration of the term. Eventually, the lease-hold rights became vested in* Lewis William Thomas and Alfred James Thomas-as tenants-in common. In an action brought, on the expiration of the term by the landlord against these persons, for damages for failure to keep the demised premises in repair, the defendants pleaded, inter alia, that the liability of each of them was confined only to one moiety of the amount claimable by way of damages for breach of the covenant. This plea was, however, negatived and each of the defendants was held liable for the entire amount found due to the plaintiff. In dealing with the plea, Greer, J. after pointing out that the liability of the assignees of lease-hold rights was based not on privity of contract but on privity of estate, went on to say:
Where the leased property has been physically divided amongst two or more assignees it is clear that the obligations of the lease, so far as they affect the assignees, become separate, and each of the assignees is liable, while he is assignee, to perform the covenants, so-far as they affect his divided part of the leased property....
24. Referring to a case where there was no physical division of the leased property between, persons holding as tenants-in-common, and adverting to the question whether one of such could not be held liable to perform all the covenants under the lease in their entirety, his Lordship observed:
Unlike a joint tenant, he is not a joint owner of the whole estate, but inasmuch as he has a share of every part of the estate, it seems to me to be true to say that there is privity of estate between him and the landlord in the whole of the leased property.
Reliance was placed by the contesting defendant on some previous decisions of the English Courts and it was contended that, unlike the Irish law, under English law a tenant-in common was liable only for his proportionate share of the rent payable under the terms of the lease. With reference to this contention, his Lordship said:
I do not think this question appears to be definitely concluded by any of the decisions in the English Courts.
* * * *
Though there may in ersense be two estates, it is obvious that each tenant in common has an estate int. the whole of the single tenement, and that as regards this estate there is privity between him and the landlord. There appears, therefore, to be no logical reason why a covenant which is imposed on him by the law based on privity of estate should not be co-extensive-with his estate which is an estate in the whole of the tenement.
* * * *
There is what seems at first sight decisive authority for the proposition that in England at any rate art-assignee who is a tenant in common is only liable for his due proportion of the rent; but if these decisions are closely examined it becomes apparent that they are-not actual decisions on the question, and that they do not necessarily involve the proposition that a tenant in common cannot be sued for the whole of the rent.
* * * *
He (tenant-in-common) has an interest in the whole of the land leased, though it is only a partial interest; his estate extends over the whole of the land leased; and I see no valid reason why tenants-in-common should be in a position as regards liability for rent different from that of joint tenants. I am inclined to think that each of the tenants-in-common has the privity of estate with the landlord in the whole of the land leased.
His Lordship then went on to hold that even if a tenant-in-common under the English law was liable only for his duly apportioned part of the rent, every one of the tenants-in-common was liable for the whole amount of damages for failure to keep the demised premises in repair, since every one of them was liable to repair the entire premises and not a part thereof. The following observations made by him on this part of the case are worth quoting in extenso:
Where leased land is physically divided it is possible to say that the covenant imposed by law through privity of estate on the assignee is confined to the part of the land in respect of which there is privity of estate between the assignee and the landlord, but where the land is not physically divided, it is not possible to split the covenant into two covenants capable of enforcement.
This judgment is clearly an authority for the view that apart altogether from the terms of the lease, in case of tenancy in common, the landlord has, till the subject-matter of the tenancy is physically divided, an inviolable right to enforce, against any or more of the tenants-in-common, any or all of the obligations resting on such tenants.
26. The last decision relied on by their Lordships was that contained in the judgment of a Full Bench of the High Court of Calcutta in Jagan Mohan Sarkar v. Brojendra Kumar Chakrabarti : AIR1925Cal1056 . In this case a suit brought by the landlord for recovery of arrears of rent against some of the successors-in-interest of the deceased transferee of a tenure-holder's interest was held by the majority of the Bench, to be competent. All the Judges were agreed in holding that every one of the successors-in-interest of the transferee was liable for the whole rent and that the landlord could, if he so chose, recover the entire amount due to him from any one of them. However, two of the five judges constituting the Full Bench, took the View that the suit could not proceed in the absence of those successors, in interest of the deceased transferee who had been left out and had not been impleaded as defendants. C.C. Ghosh, J. who wrote the main judgment of the majority observed:
A tenant-in-common is entitled to possession of very part of the estate and there is privity of estate between him and the landlord in the whole of the leasehold. The law imposes a liability on a tenant-in-common based on privity of estate for all covenants running with the land, and as his estate is an estate in the whole of the leasehold, there is no reason why he should not be liable for the entire rent.
27. Mukerji, J. who was one of the two Judges who took the view that the suit was liable to be thrown out on the ground of the nonjoinder of all the successors-in-interest of the transferee from the original tenure-holder, also concurred with the view expressed by C. C. Ghosh J. in the passage quoted above and observed: 'Each one of such co-tenants has a privity of estate with the lessor in respect of the whole estate.
28. The conclusion that seems to me to be deducible from the two English decisions which proceeded on a consideration of general principles and not merely on the language of the instrument of lease, and from the above mentioned decision of the High Court of Calcutta, may be summarised as below:
(1) Although severalty of the titles under which they hold is an essential feature of the tenures of tenants-in-common, and although each of such tenants has a separate and distinct estate in the subject-matter of the tenancy, severalty or distinctness of their titles and estates only affects and governs their relations inter se; qua the landlord the tenancy is one single tenancy and the entire body of the tenants constitute but one tenant.
(2) As a necessary corollary of the above proposition, the liability of the tenants holding as tenants-in-common for the performance of all the obligations resting on them under the terms of the tenancy is joint and several and the landlord is entitled to look up to every one of them for the performance of these obligations in their entirety, and can enforce such performance against any one of them. This right of the landlord, of course, does cot in any manner affect the rights and liabilities inter se of the tenants-in-common in the matter of contributions, adjustments, etc.
(3) It follows from the two propositions mentioned above that, during the subsistence of the tenancy, the landlord is bound to recognise the right of every one of the tenants-in-common to the possession of the whole and every part of the subject-matter of the tenancy. There can be no such thing as a partial forfeiture, lapse or extinguishment of the tenancy, and, so long as there is even one of the tenants willing and able to perform the conditions of the tenancy, the land-lord cannot claim the reversion to himself of any part of the subject-matter of the tenancy on the ground of one or more of the tenants-in-common having died, abandoned or otherwise incapacitated himself or themselves from performing the obligations imposed on the tenants by the terms of the tenancy.
(4) As soon, however, as the unity of possession is broken by physical separation of the shares of the several tenants-in-common with the consent, of course, of the landlord where, either under any law governing the tenancy or under the terms of such tenancy, such consent is a condition precedent for such separation, the single tenancy ceases to exist and is replaced by as many separate and distinct tenancies, with a corresponding modification in the rights and obligations inter se of the landlord and the tenants.
29. The decision of the Full Bench of the High Court of Lahore in Moti Lal's case A.I.R. 1930 Lab. 515 (F.B.) is an illustration of the third proposition mentioned above.
30. It is not possible to discover anything either in the judgment of the Full Bench in the aforesaid case or in the judgments of the English and Indian Courts on which that judgment is based, or in the principles that may appear to be implied in those judgments and necessarily to flow therefrom, or in the rules generally governing the relations of landlords and tenants, that may be said to invalidate, qua the other tenants-in-common, a transfer by one or more such tenant or tenants, of his or their interest or interests in the tenancy. It may be that, in any particular case, the tenants-in-common agree amongst themselves that any one of them desiring to transfer his interest in the tenancy must first offer the same to his co-tenants. Subject to the operation of such an agreement where it exists, or of any other lawful agreement by which they may have submitted to any other restrictions on their powers of transfer, every one of the tenants is, as against his co-tenants, free to deal with his own interest in the tenancy, and such co-tenants cannot refuse to recognise the title of the transferee. The circumstance that the transferee is the landlord himself and not an outsider can make no difference in principle, and while it does not confer any special privilege on him qua such tenants it may, of course, have the advantage of making the transfer immune from any attack by the landlord who may otherwise possess the right to avoid any transfer by any of his tenants-it cannot also place him under any special disability.
31. Applying these principles to the case of an occupancy tenancy under the Punjab Tenancy Act held by more persons than one as tenants, in-common, it has to be held that, while the unity of possession lasts, in, relations inter se of the landlord and the tenants-in-common, the tenancy must be regarded as one single tenancy and the entire body of tenants as one tenant. The necessary result of this is that so long as there is in existence any one of such tenants, who has a subsisting title to his interest in the tenancy, the landlord as such can have no claim to the possessions of any part of the subject-matter of the tenancy. However, one or more of the tenants may validly transfer his or their undivided share or shares in the occupancy holding to any person, whether an outsider or the landlord himself, and thus effectively clothe such transferee, as against his or their co-tenants, with all the rights possessed by himself or themselves in the subject-matter of the tenancy.
32. What I have said above as to a tenant-in-common's right to transfer his undivided interest should not be understood to prejudice any right that some or all of his co-tenants may, as his reversioners possess, under any custom governing them, to object to the transfer on the ground of the land transferred being ancestral' qua them and the transfer being without legal necessity or being otherwise opposed to custom. It should also not be understood as having any, application to the case of a widow succeeding to an undivided share in an occupancy holding under Section 59, Punjab Tenancy Act. There was at one time a conflict of opinion as to whether a transfer by a widow succeeding to an occupancy tenant under Section 59, Punjab Tenancy Act, is void or only voidable. That conflict has, however, been finally Bet at rest by the Full Bench of the High Court of Lahore in Labh Singh v. Hassu A.I.R. 1940 Lak 364 F.B. It has been held by the Full Bencb that any transfer by such a widow is void ab initio and can pass no title whatsoever to the-transferee, capable of being enforced either against the landlord, or against the widow's co-tenants, or against the reversioners of the last male holder who otherwise fulfil the requirements of the proviso to Section 59. The judgment of the Full Bench, of course, expressly overruled the decision of the Division Bench in Hargobind v. Gurdas Mal A.I.R. 1936 Lah. 70 as to the transfer by a widow of the occupancy rights inherited by her from her husband being only voidable. After a closer study of that, judgment I feel inclined to take the view that it also overruled, by necessary implication, the decision of that Bench as to transfer by a widow of! her undivided share in a tenancy in common-in favour of the landlord being binding on her co-tenant or co-tenants, and effectively taking away the right of such co-tenant or co-tenants to claim that share by survivorship after the widow's death. The Division Bench was of the view that under the provisions of the Punjab Tenancy Act, the right to avoid a transfer by a widow vested only in the landlord. The latter himself being the transferee in the particular case, it followed on the view taken by the Bench, that the transfer could not be avoided under the said Act. The reversioners of the widow's husband having taken no action to avoid the transfer, even if they could be supposed to have the right to avoid it and the co-terant who was an utter stranger and had acquired a share in the tenancy by purchase, having been found to have no right to challenge it, the interest acquired by the landlord under the transfer by the widow was found to be indefeasible, and the co-tenant was held to have no right to claim, by survivorship, the share held by the widow in the tenancy before Buch transfer. The Full Bench having held a transfer by the widow of her share of the tenancy, even to the landlord, to be void ab initio, it follows as a necessary corollary that any such attempted transfer must remain wholly inoperative and cannot be allowed to affect the right of the other co-tenant or co-tenants to claim such share by survivorship on the widow's death.
33. The same considerations will not, however, apply to the case of a transfer of his undivided interest by a male tenant-in-common in an occupancy holding to the landlord. Such a transfer is not void. It is not even voidable at the instance of co-tenants as such. It is also not voidable at the instance of reversioners on the ground of being opposed to custom unless perhaps in a case where the transferee is only one of the landlords and not the sole landlord. The title to the transferred share in the tenancy does, as a result of the transfer, effectively pass to the landlord, and there can be no question of the other tenants-in-common being entitled to ignore the transfer, either during the transferor's lifetime or after his death.
34. Different view may at first sight appear to be implied in the following observations in the last but one paragraph of Tek Chand, J.'s order of reference to the Full Bench in Labh Singh v. Hassu A.I.R. 1940 Lah. 364 F.B.
Counsel for the respondent replies that on the principles enunciated by the Full Bench in Moti Lal v. Kartar Singh A.I.R. 1930 Lah. 515 (F.B.) no such distinction can be drawn. It is further argued that the fact that the alienation is in favour of the sole landlord cannot operate as a surrender of the tenancy as the holding is joint and on the extinction of the line of one co-tenant, whether by death or voluntary alienation, his share does not lapse to the landlord but that the right of survivorship, which vested in the other co-tenants, becomes effective and they succeed to it automatically. This seems to follow logically from Moti Lal v. Kartar Singh A.I.R. 1930 Lah. 515 (F.B.) where it is explained that in a joint occupancy holding, though the co-tenants between themselves hold in well-defined shares, they are one single tenant as against the landlord. But a Division Bench of this Court has taken the contrary view in Hargobind v. Gurdas Mal A.I.R. 1936 Lah. 70.
35. The case which his Lordship was dealing with was one of a transfer by a widow and so was also the case from the judgment delivered wherein he felt inclined to dissent. I cannot take it that his Lordship really meant to express the opinion that alienation by a male occupancy tenant of his undivided share in the tenancy to the landlord should not affect the right of the other co-tenants to claim such share by survivor-ship on the alienor's death. If by any chance that was meant to be an expression of his Lordship's considered view I must respectfully dissent from it. That view certainly was not endorsed by the Full Bench and does not find any support from anything said in the judgments of the Bench.
36. Approaching the consideration of the case referred to this Full Bench in the light of the above principles, I would hold that although the. so-called surrender by Fazal Din and Fateh Din off their right in the land held by them as tenants-in-common with Wasal appellant can, properly and legitimately, be held to take effect as a transfer by them of such interest in favour of the plaintiff's father, yet it did not and could not result in a partial extinction of the tenancy. I would further hold that although in consequence of the said transfer the plaintiff may rightly be regarded as having become clothed with all the rights possessed by his transferors at the time of the transfer, he cannot be deemed to have, in any manner, improved his position as a landlord in respect of the subject-matter of the tenancy. Inasmuch as, till physical division of the land comprised in the tenancy, and till the actual and physical separation of the appellant's share in such land, the appellant is entitled to remain in possession of the whole and every part of that land. I would hold that the plaintiff has, till such division takes place, no right to dispossess him of any portion of the land. His suit for recovery of possession of half the land is therefore clearly misconceived and has been wrongly decreed by the Courts below. In order, however, to avoid unnecessary further litigation I am of the opinion that the plaintiff should, in place of the decree claimed by him, be granted a decree declaring that he has acquired the interest of Fazal Din and Fateh Din in the suit land. There can be no objection to his being granted a smaller relief than, the one actually claimed by him.
37. For the reasons given above, I would accept the appeal, and, setting aside the judgments and the decrees of the Courts below, would dismiss the plaintiff's suit for possession of the suit land, but would grant him a declaratory decree to the effect that he has become entitled to the interest of Fazal Din and Fateh Din in that land.
38. In the circumstances of the case, I would leave the parties to bear their own costs. throughout.
Ram Lall, C.J.
39. I agree.
40. I agree.