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Patel Narottamdas Shankerlal Vs. Bababhai Joitaram Patel and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtGujarat High Court
Decided On
Judge
Reported in(1977)18GLR333
AppellantPatel Narottamdas Shankerlal
RespondentBababhai Joitaram Patel and ors.
Cases ReferredRye v. Rye
Excerpt:
- - an appeal was preferred unsuccessfully to the collector by the respondents. the unsuccessful co-owner who took the land for cultivation from other co-owners has now challenged the correctness of the view taken by the g. now, a glance at section 105 of the transfer of property act would show that a lease is a contractual relationship which arises on account of the transfer of a right to enjoy the property by a transferor to a transferee......section 76. the g.r t. took the view that a co-owner cannot become a tenant in respect of the land in view of the fact that one cannot be one's own tenant. the unsuccessful co-owner who took the land for cultivation from other co-owners has now challenged the correctness of the view taken by the g.r.t.3. an attempt was made by the learned counsel for the petitioner to argue that the finding recorded by the a.l.t. that the land was owned by 60 co-owners of whom the petitioner was one was erroneous. there is no substance in this contention inasmuch as the petitioner himself in his statement has admitted that the land is owned by the 60 owners and that he himself was one of the managers of the 60 co-owners. the evide nce given to the same effect by one of the respondents has been.....
Judgment:

M.P. Thakkar, J.

1. If agricultural land owned by a number of co-owners is given for cultivation to one of the co-owners (such is the problem posed in this petition under Article 227 of the Constitution of India) would such a person become entitled to become a deemed purchaser in respect of the said land under the provisions of the Bombay Tenancy and Agricultural Lands Act of 1948? The Gujarat Revenue Tribunal (G.R.T.) has taken the view that one cannot be one's own tenant and, therefore, one of the co-owners cannot claim to be a tenant of the land even if he is cultivating the land on payment of rent. The petitioner who is one of the co-owners in respect of the disputed land (S. No. 1554 admeasuring 1 acre-15 gunthas situated in Chanasma) has invoked the jurisdiction of this Court under Article 227 of the Constitution of India and has contended that the G.R.T. has committed an error apparent on the face of the record in taking the aforesaid view.

2. The facts are not in dispute. The land in question is jointly owned by 60 residents of village Chanasma. They are the co-owners in respect of this land. The petitioner is one of the co-owners. The co-owners decided to give the land for cultivation to someone on payment of rent. An auction was held. The petitioner, who was one of the co-owners, bid at the auction. He secured the right to cultivate the land on payment of Rs. 232/- per annum. Subsequently he claimed to have become entitled to purchase this land under Section 32-0 of the Tenancy Act. An enquiry was instituted by the Mamlatdar and Agricultural Lands Tribunal (A.L.T.) in order to ascertain whether the petitioner has become entitled to .purchase the land under Section 32-0. It was registered as Tenancy Case 32-0/10. By his order dated December 5,1958 the A.L.T. Chanasma upheld the claim of the petitioner that he had become entitled to purchase the land under Section 32-0. The finding recorded by him was to the effect that the petitioner was one of the 60 co-owners and his interest as a co-owner was very small. On this account (such was the reasoning of A.L.T.) he could be considered a tenant in respect of this land. An appeal was preferred unsuccessfully to the Collector by the respondents. They then invoked the revisional jurisdiction of G.R.T. under Section 76. The G.R T. took the view that a co-owner cannot become a tenant in respect of the land in view of the fact that one cannot be one's own tenant. The unsuccessful co-owner who took the land for cultivation from other co-owners has now challenged the correctness of the view taken by the G.R.T.

3. An attempt was made by the learned Counsel for the petitioner to argue that the finding recorded by the A.L.T. that the land was owned by 60 co-owners of whom the petitioner was one was erroneous. There is no substance in this contention inasmuch as the petitioner himself in his statement has admitted that the land is owned by the 60 owners and that he himself was one of the managers of the 60 co-owners. The evide nce given to the same effect by one of the respondents has been accepted in the sense that not one single question has been put in the course of cross-examination to challenge the evidence in this behalf. This is a finding of fact which has been affirmed by the G.R.T. and it cannot be upturned in this petition under Article 227 apart from the fact that on merits the finding is unassailable.

4. It was then argued that the co-owners could create a lease in favour of one of them and that there was no legal bar to creation of a lease in favour of one of the co-owners. Now, a glance at Section 105 of the Transfer of Property Act would show that a lease is a contractual relationship which arises on account of the transfer of a right to enjoy the property by a transferor to a transferee. A contractual relationship cannot be created by one in favour of oneself. There would be a conflict between rights and obligations. Assuming that the several co-owners can create a lease in favour of one of them, how can a lease be terminated? If a person who claims to be a tenant refuses to join with other co-owners in terminating the lease, the lease can never be terminated. It is, therefore, clear that one of the co-owners cannot be a tenant of a pro perty owned by several persons including the person who claims to be a co-owner-cum-tcnant. If authority were needed Rye v. Rye 1962 A.C. 496 is an authority for this proposition. The following passage from the speech of Lord Denning supports the view propounded by the respondents:

My Lords, I have come to the clear opinion that even under the 1925 Act a person 'cannot grant a tenancy to himself; for the simple reason that every tenancy is based upon an agreement between two persons and contains covenants expressed or implied by the one person with the other. Now, if a man cannot agree with self and cannot covenant with himself, I do not see how he can grant a tenancy to himself. Is the tenancy to be good and the covenants bad? I do not think so. The one transaction cannot be split up in that way. The tenancy must stand or fall with the agreement on which it is founded and with the covenants contained in it: and as they fall, so does the tenancy. And what about notice to quit? If A grants a tenancy to himself A, can he mutter a notice to quit to himself and expect the law to take any notice of it? Or, if A and B grant a yearly tenancy to themselves A and B, can there be a notice to quit unless both agree? Of course not. So that, instead of a yearly tenancy, it becomes a life-long tenancy determinate only by the agreement of both, which is absurd. The truth is that they cannot grant a tenancy to themselves.

5. It may be darned that in England the position now would be different having regard to the law of Property Act of 1925 in the context of Sub-section (4) of Section 72 as has been pointed out by Lord Denning in the course of his speech. Sub-section (4) of Section 72 in terms enables two or more persons to convey any property vested in them to any one or more of themselves. A similar provisions is not to be found in either the Transfer of Property Act or the Tenancy Act. Under the circumstances, there is no escape from the conclusion that the co-owners of a property cannot create a lease in favour of one of them. Section 4 of the Tenancy Act fortifies the view which is being canvassed by the respondents. It is provided therein that a person lawfully cultivating any land belonging to 'another' person shall be deemed to be a tenant etc. in given circumstances. The focus of emphasis is on the expression 'belonging to another person 'A person cannot be a deemed tenant in respect of a property of which he himself is the co-owner under Section 4 of the Tenancy Act. So also he cannot claim to be a tenant under Section 2( 18) of the Tenancy Act for a relationship of a landlord and tenant is conceivable only when the personality is distinct. The view taken by the G.R.T. is, therefore., correct.

6. There is no substance in the petition. It fails and is rejected. There will be no order regarding costs.


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