N.H. Bhatt, J.
1. This is the landlord's Revision Application under Section 29(2) of the Bombay Rent Act, challenging the appellate judgment, which robbed him of the decree of eviction passed in his favour by the learned trial Judge.
2. The suit in question, being No. 170 of 1972 in the court of the Civil Judge (J.D.) Dhoraji, had been filed by this applicant for eviction of the tenant on the ground mentioned in Section 12(3)(a) of the Bombay Rent Act. The trial court decreed the suit and so the tenant preferred the Civil Appeal No. 18 of 1975 which came to be allowed by the Extra Assistant Judge, Rajkot District at Gondal only on the ground that the notice of eviction was not valid. The ground that weighed with the learned appellate Judge was that the plaintiff had given the eviction notice and had filed the suit as the karta of the Joint Hindu Family of his deceased father Doshi Chunilal Savchand, though he had 8 married sisters, who by operation of law, could not be the members of his Joint Hindu Family. The premises were let out by the deceased Doshi Chunilal Savchand, who died in 1961, leaving behind him three sons and eight daughters. In the words of the learned Judge:
It is also brought out in evidence that the plaintiff died leaving three sons and eight daughters. Eight daughters are married. Therefore, there cannot be any joint Hindu family. He also pointed out to me that the Hindu Succession Act came in 1956 and according to the said Act the daughters are co-owners and therefore the properly of the deceased devolved on the co-owners after the death of Chunilal. Daughters are not the members of the joint Hindu family, after their marriages. Therefore, they are necessary parties for the purpose of instituting the suit to evict the tenant of the suit premises. One co-owner has no right to file the suit on behalf of other co-owners. But, at the same time they are required to be joined as parties. In this case it clearly appears that the plaintiff has not done so and hence the notice is not legal and valid.
3. Though the learned appellate Judge has not referred to the judgment of this High Court, the view that he has relied upon is the Full Bench view of this High Court in the case of Nanalal Girdharlal v. Gulamnabi Jamalbhai Matotwala : AIR1973Guj131 Had the law remained at that stage, the matter would have been over at this stage. However, the Supreme Court in this connection has now laid down different law and so the ratio of the Full Bench decision in Nanalal's case (Supra) is of necessity to be held as no longer good law. The judgment of the Supreme Court to be referred to in this connection is the case of Subhendu Prosad Roy Choudhury v. Kamala Bala Roy : AIR1978SC835 It was a case under Section 4 of the Calcutta Thika Tenancy Act (Nos. 2 of 1949). Section 4 of the said Act reads as under:
4. Notice before ejectment. It shall not be competent for a landlord to eject any thika tenant from his holding unless the landlord has given the thika tenant notice in the manner provided in Section 106 of the Transfer of Property Act, 1882.
The Supreme Court in that case followed the earlier judgment of the Supreme Court in the case of Shri Ram Pasricha v. Jagannath : 1SCR395 In Subhendu case (Supra), the Supreme Court has observed as follows:
Even assuming that notice was not given on behalf of one of the co-owner landlords, yet the notice would be good and valid.
In Sri Ram Pasrich's case (Supra), the Gujarat High Court's above-mentioned Full Bench decision was specifically referred to and still the Supreme Court in paragraph 29 has observed as follows:
Jurisprudentially it is not correct to say that a co-owner of a property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part-owner or a fractional owner of the property.
4. In the case of Kanta Gael v. B.P. Pathak : 3SCR412 the Supreme Court has observed as follows:
Where a landlord who had let out his premises to a tenant, dies and his heirs succeed to his estate, one co-heir to whom the rent is being paid by the tenant and who received it on behalf of the estate, would be landlord for the purposes of the Act. The co-heirs constituted the body of landlords and, by consent, implicit or otherwise, of the plurality of landlords, one of them representing them all, was collecting rent. In short, he functioned, for all practical purposes as the landlord and was therefore entitled to institute proceedings for eviction against the tenant qua landlord.
In above view of the matter and particularly the latest judgment of the Supreme Court in the case of Subhendu's case (Supra), the view of the learned Judge that the notice in question was bad is such as cannot be sustained.
5. The learned appellate Judge has held that the trial court had failed to raise proper issue and particularly reference is to the issue about the alleged readiness and willingness to pay the arrears of rent even before the cause of action accrued. In order to satisfy myself about the issue arising in this case, I had gone through the written statement and find that the tenant's contention was that before the suit notice, he had offered the rent, but it was evaded by the landlord Dineschandra under the false pretext. It is, therefore, evident that the issue about readiness and willingness of the tenant is required to be raised. The matter, therefore, shall have to go back to the trial court with a direction to frame an issue about the alleged readiness and willingness of the tenant to pay the arrears of rent before the institution of the suit. The petition is accordingly allowed. The appellate judgment is set aside and the original suit is remanded to the trial court for decision in accordance with law and in the light of this judgment. There will be no order as to costs of this revisional application.