S. Subrahmania Ayyar, Offg. C.J.
1. The defendants Nos. 1 and 2 were let into possession of 23 acres of land in the plaintiff's zemindari as tenants from year to year. Subsequent to the creation of this tenancy the third defendant set up a claim to the whole land under a previous transaction between the plaintiff and that defendant's father. In a suit which ensued in consequence, there was a compromise decree, according to which, the third defendant was declared entitled to the possession and enjoyment of 9 acres 16 cents and the plaintiff to the remainder, fending the litigation, and before the compromise, notice to quit was given in respect of the whole of the lands by the plaintiff to the defendants Nos. 1 and 2. With reference to these allegations, the plaintiff prays for a decree ejecting defendants Nos. 1 and 2 from his share of the lands, viz., 13 acres 81 cents excluding 9 acres Id cents due to the third defendant, and his transferee the fourth defendant, by actually Separating the same in this suit in case it is not done earlier in execution of the razinama decree.
2. The lower Courts directed a partition by metes and bounds of the land between defendants Nos. 3 and 4 on the one hand and the plaintiff on the other, and dismissed the claim against defendants Nos. 1 and 2 on the ground that it involved a misjoinder of causes of action. The question is whether this dismissal is right. The case of Saminada Pillai v. Subba Reddiar I.L.R. 1 Mad. 393 on which much reliance was placed on behalf of defendants Nos. 1 and 2 is dearly distinguishable. There, certain members of a Joint Hindu Family sued their co-parceners for a partition and combined with it a further claim to eject tenants who held the land under the family. There was thus ft joinder of two causes of action, in each of which fill the defendants were not interested. Such, however, is not the case here. There being already an executable decree for partition between the plaintiff and the third defendant, actual division as between them is a matter for execution of the decree, and no longer a cause of action for a suit, The present suit cannot, therefore, be rightly viewed as combining one cause of action against defendants Nos. 3 and 4 in which defendants Nos. 1 and 2 have no interest with another to eject the latter in which defendants Nos. 3 and 4 are likewise uninterested. As admittedly, an actual division of the share of the third defendant in execution and delivery of it to him have not been effected, and as such division is essential to the ejectment of defendants Nos. 1 and 2 which is the relief to which the plaintiff is entitled, assuming his case to be otherwise well funded, it fellows that the inclusion of the third and fourth defendants in this suit is merely as that of persons properly parties to the proceeding in the circumstances of the case, and not as litigants against whom a separate claim having no necessary connection with the ejectment of defendants Nos. 1 and 2 is made. The error of the lower Courts was in failing to perceive that the actual division was merely ancillary to the relief to be given to the plaintiff in respect of the only cause of action involved in the suit, and in treating it as if it were a relief to be granted in a perfectly independent claim for partition as between the plaintiff and defendants Nos. 3 and 4.
3. In the view I take of the case, the dismissal complained of, must be held to be wrong, inasmuch as the plaintiff will be entitled to eject defendants Nos. 1 and 2 from his portion of the lands on his showing that the tenancy as between him and those defendants has been duly determined, or, the effect of the compromise decree was to make the plaintiff and third defendant tenants-in-common so long as the 23 acres of land remained undivided; and it is settled, that a tenant-in-common may have ejectment to the extent of his interest on proper notice to quite.
4. See Cutting v. Derby 1776 2 W. Bl. 1077, and, Doed on the demise of Darid Whayman and Anr. v. Chaplin 3 Taunton 119, 120.
5. The decrees of the lower Courts, therefore, in so far as they are against the appellant must, I think, be set aside, and the suit remanded to the Court of First Instance for disposal on the merits. The costs will abide and follow the result.
Sankaran Nair, J.
6. According to the English cases where there is a joint lease by joint tenants, any one of them may determine the tenancy so far as he is concerned. They proceed On the ground that, though the lease may have been granted by all, yet in law, each leases only his own share or portion of the entire estate as he is interested only to the extent of his share though the property is undivided, and he can, therefore, put an end to the tenancy created by him even without the concurrence of the others, as it cannot depend upon another when such tenancy is to be determined Doe.d on the demise of David Whayman v. Chaplin 3 Taunton 119, 120.
7. In that case three out of the four joint tenants who alone gave notice determining the tenancy, were held entitled to recover three-fourths of the estate. The remaining trustee, it was found, had disapproved of the notice, and it was not necessary to decide anything as to the fourth share as the Court was only granting a new trial.
8. The full effect of such notice was considered in a subsequent case, and it was then decided that, though upon a joint lease by joint tenants, each in law leases only his own share according to the case above cited, yet any one of the joint tenants may determine the entire tenancy on behalf of all, even though not authorized by the rest, and the lessee has accordingly to surrender possession not only of the share of the joint tenant who gives the notice but of the entire property. The reason is stated to be 'that the tenant holds of each the share of each so long as he and each shall please, but that he holds the whole of all so long as he and all shall please.' If the tenant is compelled to surrender only a portion, it might be a hardship on him as he might not be willing to continue to hold the rest; and if, therefore, he is to have the right of treating the tenaney as to the whole estate determined on such notice, the same right must be recognised to subsist in the other joint tenants. Doe.d Aslin v. Summersett 1 B. & Ad. 135. That was an action on the joint demise of James Aslin and John Finch who were executors and joint desmisees under a will. The notice to quit was signed by John Finch only, on behalf of himself, and the rest, and it was held snob, notice determined the tenancy as to both. This was followed in Doe.d Kindersley v. Hughes 7 M. & W. 141 and Alford v. Vickery 1 C. & M. 283.
9. Where the lessors are tenants in common the same principle would seem, to apply and any one of them may determine the tenancy as to the others also. See Woodfall's ' Landlord and Tenant,' p. 369, Cole on 'Ejectment,' p. 44 and Ebrahim Pir Mahomed v. Cursetje Sorabji de vitre I.L.R. Bom. 644 where the English law was applied on the original side to a suit to which a Hindu, a Mahomedan and a Parsi, were parties.
10. It has also been decided that one tenant in common has a right to recover possession of his undivided moiety without the other tenant in common. He will then be in possession with the lessee of the other moiety. See Cutting v. Derby (1776) 2 W. Bl. 1077, and the cases cited in note (U) to that case. Thus, according to the English decisions, the Subordinate Judge is wrong in holding that the plaintiff, as joint tenant or tenant-in-common, is riot entitled to eject defendants Nos. I and 2 from his share of the property on the ground that he and the fourth defendant have respectively an undivided right, as he puts it, in every inch of the whole plot. But his view seems to derive considerable support from the Indian decisions. The difference is referred to in the case in Afford v. Vickery IC. & M. 283 where the Judge had to apply the English law.
11. The Calcutta and the Bombay High Courts hold that, where a tenant has been put into possession of property on behalf of all the shares he may not be turned out except with the consent of all: Krishnarav Jahagirdar v. Govind Trimbak 12 B.H.C.R. 85 Balaji Bhikaji Pinge v. Gopal Bin Raghu Kuli I.L.R. Bom. 23, Radha Proshadwasti v. Esyf I.L.R. 7 Calc. 414 at p. 417 and Harendra Narain Singh Chowdhry v. Moran I.L.R. 15 Calc. 40 (where the result of a series of cases commencing with 16 W.R., p. 138 is given); though dearly when the tenancy has been determined by notice given by all, some of the co-sharers may recover their share Dwarka Nath Rai v. Kali Chunder Rai I.L.R. 13 Calc. 75 , The same view seems to be accepted in Krishnama v. Ganyartm I.L.R. 5 Mad. 290, where it was held that the plaintiff, the purchaser of four out of seven shares in a village, was not entitled to tender pattas under the Rent Recovery Act for the proportionate rent payable to him.
12. The decision in Parameswaran v. Shangaran I.L.R. 14 Mad. 490 that one joint trustee cannot determine a tenancy and eject, which was followed in Savitri Antarjanam v. Roman Nambudri I.L.R. 24 Mad. 296 apparently proceeds on the same ground, though the learned Judges treat the case as one of temple management.
13. The difference between the English and the Indian cases appears to be that where there is a relation created by contract with several joint landlords, according to the English cases, that relation subsists, only so long as all of them wish it to continue, while, according to the Indian cases, it subsists until all of them agree to put au end to it; and it is not competent to any one of them to determine a contract which is entire, unless there are any special circumstances in the case, like collusion between a tenant and one of the lessors, etc.
14. To allow a co-owner to recover an undivided share would, in many cases, be a hardship to a tenant who might not be willing to continue in possession of a portion of the property or as a tenant in common with such co-owner. On the other hand to allow him to recover the entire property would be unjust to the others who may not wish the tenant o be turned out of their shares.
15. In this state of authorities and for the above reasons I hesitate to follow the English law. But I consider it unnecessary to decide that question as I am of opinion that the cases cited above have no application to this case.
16. In the English cases the action was to recover their undivided shares by one or more co-owners in the absence of the other sharers. The suit before us is also for partition and all the co-owners are parties to the suit.
17. Further, according to the plaintiff, the lands were leased to defendants Nos. 1 and 2 solely by the plaintiff, and the third defendant, whose interest, has now passed to the fourth defendant, as subsequently recognized as a co-sharer by a transaction to which the defendants Nos. I and 2, the tenants in possession, were not parties.
18. It is not the case of a joint lease by joint tenants, and the rule that in such cases each leases his own share and can therefore put an end to it cannot apply to those before us. For the same reason the tenant cannot be assumed to be contracting with each co-owner to the extent of the interest only, in the property, and it is clear that it is the intention of the parties to the lease, that must be enforced.
19. Cutting v. Derby 1776 2 W. Bl. 1077 already cited, no doubt, is a case where the demise was by an owner who devised the rent and reversion to two tenants in common, one of whom was allowed to recover his undivided moiety, but in that case, the lease expired on a certain day, and the tenancy was not determined by notice though there was notice given. The case is similar to the Calcutta decisions, see Dwarka Nath Rai v. Kali Chunder Rai I.L.R. 13 Calc. 75 and Horendra Narain Singh Chowdhry v. Moron I.L.R. 15 Cal. 40 where a trespasser, it has been held, may be turned out by a co-owner, though one who entered as a tenant under all the co-owners may not be so turned out.
20. The rule of decision contained in Sections 37 and 109 of the Transfer of Property Act, though they have not been declared applicable, ought, in my opinion, to be followed in the absence of any decisions of this High Court to the contrary, When the plaintiff recognized the rights of the third defendant to a share of the property, then the tenants were bound to pay to each of the owners his proportionate share of the rent. What the proportionate rent is can only be determined by the plaintiff, the lessor, third defendant, who may be regarded as a transferee, and the tenants, the first and second defendants. If the apportionment is not amicably adjusted, it can only be done by a suit to which they all are parties. See Section 109 and Lootfulhuck v. Gopee Chunder Mojoomdar I.L.R. 5 Calc. 941, Ishwar Chunder Dutt v. Ramkrishna Dass I.L.R. Calc. 902, Zamindar of Ramuad v. Ramamany Ammal I.L.R. Mad. 234 and that is the proper course to follow.
21. The tenants, defendants Nos. 1 and 2, are also bound on the determination of the tenancy to put the plaintiff in possession of only so much of the property as ho has not transferred, and is bound to surrender to the third defendant or fourth defendant his successor, the portion, transferred by the plaintiff. They are not bound to perform the various obligations imposed on them as lessees, wholly in favour of either the plaintiff, or the fourth defendant, if such obligation is capable of severance, and such performance will not be to their prejudice. The rent payable and the property to be surrendered, unless all the parties agree, can be only ascertained in a suit to which all the lessors and the lessees are parties as in the case of apportionment of rent referred to in Section 109, Transfer of Property Act.
22. The present suit is precisely of that nature. I see therefore no misjoinder of cases of action or of parties. The plaintiff prays for the surrender by defendants Nos. 1 and 2 of that portion of the property leased, of which he still continues to be the owner, and which has not been transferred to the fourth defendant, and for arrears of rent.
23. The fourth defendant is a necessary party to the suit to ascertain by partition the part transferred. The decision in Saminada Pillai v. Subha Reddiar I.L.R. Mad. 333 is clearly distinguishable as pointed out by the learned Chief Justice.
24. The ryots in that case were unnecessary parties, treating the suit as one for partition, and regarding it as a suit in ejectment, the case of each ryot was distinct from that of every other ryot. In the case before us partition is necessary to dispossess defendants Nos. 1 and 2 and award delivery of possession to the plaintiff.
25. The decrees of the lower Courts must, therefore, be set aside in so far as they are against the appellant, and the suit remanded to the Court of First Instance for disposal on the merits.
26. Costs will abide and follow the result.
27. This second appeal is dismissed with costs.