S. Velu Pillai, J.
1. This second appeal by defendants 2 to 8, arises in a suit for the restoration of possession of property to the plaintiff--1st respondent, who may be referred to as the respondent, which was taken delivery of from him in execution of the decree in O. S. No. 369 of 1944. The property belonged to one Seethikutty and on partition in his family fell to the share of hie son Syed Mammad. The appellants and the first defendant are his legal representatives. As landlords, they sued the respondent-tenant in O. S. No. 369 of 1944 for eviction under the Malabar Tenancy Act, alleging that the property was needed for their own cultivation. The suit was decreed and in execution, the property was delivered to them on the 6th September, 1945. The respondent has now sued the appellants and the first defendant, alleging that collusively and with intent to detest him, they have transferred the property under two karjoni deeds, lists. A-4 and A-5, on the 31st November, 1950, to defendants 9 and 10, and that he is entitled to restoration of possession of the property, under Section 21 (1) of the Malabar Tenancy Act, as it was in force at the time the suit was filed. That section, was in these terms ;
''In any case in which eviction is obtained on the ground specified in the Clause (5) of Section 20 ...... if thelandlord who obtains such eviction transfers any of the lands to any person on any kind of lease or mortgage with possession or on kanorn ...... within sixyears ot such eviction, the tenant shall be entitled to sue for the restoration to him of the possession of all the lands from which he was evicted and to hold them with all the rights and subject to all the liabilities ot a tenant.'
The above section was afterwards amended by Act 7 of 1954, and in its place Section 29 (1) as it now stands, has been introduced; for the decision of this case, the amendment is not material. Very soon after the execution of Exts. A-4 and A-5, two sets of cancellation deeds with respect to them were executed on the 29th Deember, 1950, Exts. 13-1 and B,2 being by the first defendant and Exts. B 3 and B-4 being by defedants 10 and 9 respectively. This suit was filed oa the 2nd January, 1951.
2. The munsill came to the conclusion, that the first defendant had been in possession of the property after the delivery of possession in execution ot O. S. No. 399 ot 1944 on behalf of the appellants but that Exts. A-4 and A-5 being by the first defendant only, were not binding on the appellants and that therefore there was no transfer by the ''landlord' within the meaning of Section 21 (1) and he dismissed the suit. He however, found that possession of the property did pass under Exts. A-4 and A-5 to defendants 9 and 10. The Subordinate Judge in appeal agreed, that posssession passed to defendants 9 and 10, but held that the first defendant having been in possession of the property on behalf of the appellants, as he also found, Exts. A-4 and A 5 were binding on them and decreed the suit.
3. In second appeal, I am satisfied, that the findings of the two Courts that the first defendant was in possession on behalf of the appellants also and that possession passed under Exts. A-4 and A-5, cannot be disturbed,. While learned counsel for the appellants contended, that even if the first defendant was in possession of the property on behalf of the appellants, he had no right to execute the two kanorn documents, Evts. A 4 and A 5, so as to bind the appellants, learned counsel for the respondents contended, that in such circumstances, the first defendant must be held to be clothed with implied authority to bind the appellants, that in addition, Exts- A-4 and A-5 were really brought about by the appellants and the first defendant acting jointly and in collusion with a view to defeat the respondent and that in any event, they had the consent of the appellants. It is necessary to decide, how tar Exts. A-4 and A-5 can bind the appellants, even though they were not parties to them. In generala tenant-in-common who has not been authorised by his co-tenants cannot execute a lease of more than his own interest in the common property that will bind them without subsequent ratification.'
See 86 Corpus Juris Secundurn, Section 113, p. 518. But opinion is not unanimous, as reflected by thedissenting view of B. P. Sinha J., as he then was, in Bibi Kaniz Fatma v. Sk. Hossainuddin Ahamad, AIR 1943 Pat 194 (FB) and by the bench decision in Rajendra Narayan v. Hargobind Choudhury, A I R 1941 Pat 19, as to whether one co-tenant can bind the others on the basis of implied authority so as to make a tenant inducted by him on common, property, the tenant of all of them. The Bench held that he can, provided the transaction can be considered to be a prudent act of management. Sinha. J., in the case cited, relied on the statement of the law by Freeman on Co-tenancy and Partition, and was not prepared to agree, that even under such circumstances, one co-tenant can bind te others; the two learned Judges who sat with him to constitute the Full Bench, did not decide this precise question, although in passing, Kasendra Narayan's case, AIR 19.13 Vat 194 (FB) was referred to. For the present purpose, it is unnecessary to resolve this conflict, as I am unable to hold, that Exts. A-4 and A-5, the effect of which was to create permanent interests on the property in favour of defendants 9 and 10, constituted prudent acts of management by the first defendant on behalf of the appellants. There is nothing to indicate, that the granting of kanoms or leases on such permanent tooting was the only, or has been the generally accepted, mode of enjoyment of common property in that part of the country, at the relevant time.
4. But nothing in law precludes the other co. tenants from assenting to or ratifying such a, transaction entered into by one co-tenant, Such assent or ratification may be by express terms or may be implied from proved facts and circumstances. The respondent's case, that Exts. A-4 and A-5 were brought about by the appellants and the first defendant jointly or collusively, has escaped the attention of the Munsiff, The allegation in the plaint of joint action or of collusion, is more than a plea of consent and may well be deemed to cover it. In view of the findings already arrived at by the two Courts, the decision of the case must ultimately depend on whether Exts. A-4 and A-5 had the consent, express or implied, of the appellants, or whether they were in truth the result of joint or collusive action of the appellants and the first defendant.
5. Even if Exts, A-4 and A 5 are not binding on the appellants, they do bind the interests of the first defendant, but then the respondent would not he entitled to relief under Section 21 (1) now replaced by Section 29 (1) of the Act, because the transfer contemplated by the section as affording a cause of action, must be a transfer by the landlord, meaning all the landlords where there are more than one, and the restoration of possession to be ordered, is of the whole property from which the tenant has been evicted; the, Section implies at least, that the transfer by one landlord must be capable of bring construed as a transfer by, or binding on, all of them.
6. It follows from what has been stated above, that the question for decision has been missed by the Courts below. The concurrent findings of fact referred to above will stand, and the case will go back to the trial Court for decision and for passing a revised decree. The parties have no right to adduce fresh evidence and the decision will be taken on the materials already on record. The costs of this second appeal will he costs in the cause, and the court-fee paid on the appeal memorandum will be refunded to the appellants. Being an old suit, and no further evidence being necessary to be recorded, the Court will dispose of the matter as expeditiously as possible.