N.H. Bhatt, J.
1. This appeal has been referred to this Division Bench because the learned single Judge V. V.Bedarkar, J., by his order dated 12th April. 1981, thought that two important questions of law arose in this second appeal brought here by the original defendants of the Regular Civil Suit No. 18 of 1976, decreed against them by the learned Civil Judge (Junior Division), Umrala, whose judgment had come to be confirmed by the District Judge Bhavnagar, in the Regular Civil Appeal No. 19 of 1979, preferred by these very appellants.
2. The appellants are the original defendants against whom a suit for possession of the rented shop was initiated by the respondent-landlord. The shop is situated at village Dholavishi in Umrala Taluka of Bhavnagar District. The plaintiff had purchased the said property on August 2, 1976, from its earlier owner and after terminating the tenancy, he had filed the suit on 7th Oct., 1976 for taking possession. The defendants had, inter alia contended that the suit was bad for want of a proper notice to be served on all the heirs of the deceased tenant. As, during the trial of the suit, the Rent Act was not applicable, the learned Judge decreed the suit. During the pendency of the appeal, however. the Rent Act admittedly came to be made applicable to the area in question in respect of premises used for residence and business. A contention was not raised before the appellate Court that as per S. 50 of the Bombay Rent Act, the suit was required to be dealt with and decided as if it was a suit under the Bombay Rent Act, and it was even conceded by the learned Advocates appearing for the respective parties that the suit was to be treated as one filed under the provisions of the Civil Procedure Code read with the Transfer of Property Act, 1882. The learned District Judge confirmed the decree of eviction.
3. When the matter was before this High Court, the original defendants raised the contention that as the Bombay Rent Act had come to be made applicable during the pendency of the appeal the suit was required to be dealt with and decided under the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act and it was further contended that as the case was not falling under Section 12(1) or Section 13 of the Bombay Rent Act, the decree was liable to be set at naught. Secondly, it was urged before the learned single Judge, that if the Rent Act was not applicable, the tenancy of late Pranjivandas who died somewhere about 1962 or thereabout had devolved on all his heirs including the defendants who were the Co-tenants over and above the other heirs and the tenancy being indivisible and not terminated by service of notice on all the co-lessees the suit was bad. The learned single Judge found that both the points called for a considered opinion of the Division Bench of this Court and he made the reference. Hence the present second appeal before us.
4. As far as the first contention is concerned, the Division Bench of this Court has already concluded the question once for all. The case to be referred to in this connection is the judgment of the Division Bench of this Court in the case of Keshavlal Pragii v. Dwarkadas Dokaldas, (1969) 10 Guj LR 857. An identical contention was raised before the Division Bench by placing heavy reliance on the proviso to Section 50 of the Bombay Rent Act. But the Division Bench overruled that contention. We do not think that this question can be now reagitated before another Division Bench of this Court. We, therefore, reject the first contention advanced on behalf of the appellants, the original defendants.
5. Coming to the second question, we, however, find that the plea rests on the firm footing. Even the learned District Judge in paragraph 6, of his judgment holds that the relation between the parties was governed under the provisions of the T. P. Act, 1882, that the defendants, father was formerly the tenant in occupation of the suit premises and at that time his landlord was the predecessor-in-title of the plaintiff and that, in absence of a specific contract coming forth, it was to be presumed under Section 106 of the T. P. Act, 1882, that the lease was from month to month, terminable on the part of either the lessor or the lessee by fifteen day's notice expiring with the end of the month of tenancy. The learned Judge, however, curiously enough, thought that 'Lease of such nature does not create any estate in favour of the lessee. Lessee is a tenant at will whose tenancy can be terminated under the provisions of the T. P. Act, 1882. The lessee having no estate in such leasehold property, such lease would come to an end on the death of the lessee xx xx'
We, with respects, say that the learned Judge is in utter confusion in the matter of the above observations of his. The tenancy is a transfer of right to enjoy the property and even a tenancy running from month to month is also an interest of the lessee. When the learned Judge held that the lease is both transferable and heritable, it was inevitable for him to hold that the tenancy rights of late Pranjivandas had devolved by operation of law on all his legal heirs It is, therefore, difficult to agree with the submission even of Mr. D. U. Shah that this tenancy was a tenancy at will or that it did not require to be terminated by a notice to be served on all the co-lessees. Unfortunately for the landlord, notice was served only on the present defendants. In their reply, the defendants had specifically raised this contention that the tenancy rights had vested, not only in them, but in others also. But, unfortunately, no hint was picked up from this and no attempt was made to serve the other alleged colessees with the notice of terminating their interest. That having been not 'done, the lease cannot be said to have been terminated in accordance with law.
6. Mr. D. U. Shah, the learned Advocate appearing for the respondent-landlord, however, submitted placing reliance on the judgment of the Supreme Court in the case of Kanji Manji v. The Trustees of the Port of Bombay, AIR 1963 SC 468, that service of a notice on one of the many joint lessees is sufficient to meet with the requirement Of S. 106 of the T. P. Act, 1882. Para 7 of the reported judgment very clearly shows that it was a joint tenancy as understood in law. In the case of 'joint tenancy' and 'joint ownership', the survivor gets the interest of the deceaser4 'Joint or tenant or owner'. This is not a case of the type. This is a case of 'tenants-in-common'. When heirs get certain property of a deceased under the rule of inheritance, they get the property in 'defined' and 'definite' shares. In other words, they are 'tenants-in-common'. One co-tenant is not the agent or the representative of the other co-tenant or co-tenants. Each is the master of his or her own rights. A landlord, in such a situation, has to terminate the 'interest' of all those people, We however, do envisage a situation in which the notice intended for all is served on one of the persons and, in such a case, it may be argued plausibly that the notice to one is a notice to all. Such is not the case here. As stated by us above, despite a categorical retort in the reply to the notice, the things unfortunately were taken lying down by the landlord. In this view of the matter, the second question is required to be decided in favour of the appellants.
7. Mr. Shah's last submission also deserves to be noted. He submitted that qua these appellants, the decree should be confirmed leaving the landlord to have his recourse against the other co lessees. The reference to 0. 1, Rule 9, Civil P. C., was made in this connection, Had the matter been a simple one, we would have been required to accede to the request, nay, we would have been obliged to do so. Non-joinder of parties, unless fatal, is not to be made much of. However, the Courts always refrain from passing the decrees in futility. If the tenancy remains not duly terminated, no useful purpose can be said to be served by confirming the decree onlyl qua some of the lessees. In this view is of the matter, we do not uphold this last-mentioned submission put forward by Mr. D. U. Shah for the respondent-landlord.
8. The result is that on a technical ground, the second appeal is required to be allowed by setting aside when judgments and decrees of both the Courts below. With the consent of Mr. S. M, Shah, the learned Advocate appearing for the original defendants, we, however, say that the parties shall bear their own costs -throughout.
9. Appeal allowed.