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Wazirunnissa Begam Vs. S. Mohamed Haneef - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Reported in(1981)1MLJ312
AppellantWazirunnissa Begam
RespondentS. Mohamed Haneef
Cases ReferredVasudevan v. Ramachandran
Excerpt:
.....the suit land can hardly ever be in doubt. the decision clearly turned on the rent control act, and it has no bearing on the question at issue in the present case. the fact that the respondent bad not proved his claim of having purchased the rest of the shares in the suit land does not therefore lead to a different..........resisted the suit on the score that the petitioner was not the full or exclusive owner of the suit land, but she held only a fractional share therein, the remaining shares being owned by the petitioner's relations. the respondent further claimed that barring the interest of the petitioner in the suit land, he himself had purchased the rest of the interest in the property from the other sharers. he accordingly contended that the petitioner was not entitled to file a suit in ejectment against him, all on her own, in the absence of the other co-sharers before the court, and without adding them as parties to the suit.3. the major question which figured at the trial of the suit was whether the petitioner by herself alone was entitled to maintain the suit in ejectment. at the trial, the.....
Judgment:
ORDER

V. Balasubrahmanyan, J.

1. This civil revision petition has been brought before this Court by one Wazirunnissa Begum from a decree passed by the Court of Small Causes, Madras dismissing a suit in ejectment filed by her against one Mohammed Haneef. The claim of the petitioner, Wazirunnissa Begum, in the suit was that she was the owner of an item of vacant land bearing door No. 7; Yahya Ali First Street, Vellala Teynampet, Madras and that she had let it out to the respondent on a monthly rent of Rs. 25. She had issued a notice on 10th May, 1975, terminating the tenancy with effect from 30th May, 1975. Following the refusal by the respondent to vacate the land, she had instituted the suit in ejectment.

2. The respondent resisted the suit on the score that the petitioner was not the full or exclusive owner of the suit land, but she held only a fractional share therein, the remaining shares being owned by the petitioner's relations. The respondent further claimed that barring the interest of the petitioner in the suit land, he himself had purchased the rest of the interest in the property from the other sharers. He accordingly contended that the petitioner was not entitled to file a suit in ejectment against him, all on her own, in the absence of the other co-sharers before the Court, and without adding them as parties to the suit.

3. The major question which figured at the trial of the suit was whether the petitioner by herself alone was entitled to maintain the suit in ejectment. At the trial, the petitioner relied on the lease agreement between her and the respondent and the counter-foils of rent receipts which she had issued to the respondent for receipt of rent, so as to prove that the respondent was a tenant under her and under no one else, and she was entitled to sue him on that basis.

4. On the side of the respondent, however, reliance was placed on a partition decree, a certified copy of which was marked in evidence at the trial. The partition suit had been filed long prior to the present suit in ejectment. The petitioner, Wazirunnissa Begum, was one of the parties to that suit, and the decree passed in that suit covered, among other items, the suit land bearing No. 7, Yahya Ali First Street, Vellala Teynampet, Madras. Under he terms of the partition decree, the petitioner was declared to be entitled only to an one-fourth share in the suit land, and the other shares were declared to belong to three other parties to the suit. Relying on this partition decree, the respondent sought to make good his plea that the suit filed by the petitioner seeking to eject him from the entire suit land did not lie. The trial Court accepted this plea as well-founded, and dismissed the suit on that score.

5. In this revision filed by Wazirunnisa Begum, her learned counsel, Mr. K. Kumaraswamy, urged that the trial Court had proceeded on a misconception about the legal position of a co-owner of property. He submitted that a co-owner is the absolute owner of the entirety of the property, and not merely of a fractional share therein. He relied on a decision of the Supreme Court in Sri Ram Pasricha v. Jagannath : [1977]1SCR395 . He drew my attention to the following passage in the judgment of the Supreme Court:

We are of opinion that a co-owner is as much an owner of the entire property as any sole owner of a property is.

The following observations in the same judgment were also referred to as being to the same effect:

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.

6. Mr. Mustafa, learned counsel for the respondent, however, urged that the decision of the Supreme Court would apply only to cases of joint or co-ownership of properly, strictly so called, and it cannot be applied to the present case. Learned counsel pointed out, by way of distinction, that what we have in the present case is an item of property belonging to Mahomedan co-heirs. The position of co-heirs under the Mahomedan law, according to learned counsel, was not that of joint owners of the property devolving on them, but that of tenants-in-common. Learned counsel said that whereas co-owners have unity of title in the property jointly owned by them, there is no such unified title to be found in a tenancy-in-common. Every one of the tenants-in-common, he urged, has a separate and distinct title of his own with reference to his aliquot share in the property. Learned counsel accordingly submitted that the petitioner Wazirunnissa Begum could not have designed either to induct re respondent into the suit land or to eject him from it as a whole, acting all on her own In any case, he urged, the suit was not maintainable when the other tenants-in-common did not figure either as co-plaintiff's or as defendants before the Court.

7. I think it may not be necessary to go into the marks of distinction which Mr. Mustaffa drew between Muslim co-heirs and other kinds of joint owners of property. For the decision in the present case can be rested, more easily, on the decree for partition covering the suit land. Under the terms of the decree, the Court had clearly defined and distinguished the share of the petitioner Wazirunnissa Begum from those of the other sharers. In the face of this decree, the petitioner's rights as well as remedies over the suit land can hardly ever be in doubt. They are strictly limited to, and cannot transcend, her quarter share in the property. In the very judgment of the Supreme Court cited by the learned counsel for the petitioner in Sri Ram Pasricha v. Jagannath : [1977]1SCR395 . while the Supreme Court observed that a co-owner owns every part of the composite property along with others and he cannot be mistaken to be only a part owner or fractional owner thereof, they took care to point out, at the same time, that:

The position will change...when partition takes place.

8. The decree for partition in the present case must, therefore, put the lid on further discussion, and the petitioner must be held not entitled to sue for the respondent's ejectment when she was nod the absolute or exclusive owner of the suit land, and when the other individuals entitled to the other defined shares in the land had not joined her in the action.

9. Mr. Kumaraswamy in the course of his arguments, referred to a recent decision of mine, reported in Vasudevan v. Ramachandran : (1980)1MLJ534 . That case, however, was different. It arose under the relative provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. The question in that case was whether a co-owner of a building can file a petition before she Rent Controller for evicting the tenant from the premises without the written authorization or consent of the other co-owners. For the tenant in that case it was urged that Section 10(8) applied to such an eviction petition. I held that the provision quoted applied strictly only to an agent acting for the landlord, and that one co-owner could by no means be regarded as an agent of the other co-owners. I further held, relying on a special enlarged, definition of the term 'landlord' occurring in the Rent Control Act, to hold that a co-owner was entitled to evict the tenant, acting on his own and without joining the other co-owners as joint petitioners. The decision clearly turned on the Rent Control Act, and it has no bearing on the question at issue in the present case.

10. Learned counsel for the petitioner then submitted that although the respondent had pleaded that he had purchased the rest of she shares in the suit land from the Other sharers, he did not mark in evidence any sale deeds at the trial or furnish any other proof of the conveyance. I must point out at once that if such proof had been filed before the Court, the position would have quite changed for the petitioner herself. For, in that evens, the remedy for the petitioner would have lain, not in a suit for ejectment, but in a suit for partition as against the respondent. The fact that the respondent bad not proved his claim of having purchased the rest of the shares in the suit land does not therefore lead to a different result. As I had earlier pointed out, the weakness in the petitioner's suit was that as owner of only a quarter share in the suit property she yet sought to evict the respondent from the property as a whole without the other sharers being associated, along with her, in her action.

11. For all the reasons stated above, I agree with toe decision of the Court below that the suit was not entertainable as; framed. The civil revision petition is accordingly dismissed. In the peculiar cirumstances of the case, however, there will be no order as to costs.


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