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Hirendra Nath Poddar Vs. Shibendra Nath Poddar and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKolkata High Court
Decided On
Case NumberFirst Appeal No. 78 of 1977
Judge
Reported inAIR1979Cal135,83CWN190
ActsWest Bengal Premises Tenancy Act, 1956 - Section 2; ;Transfer of Property Act, 1882- Section 105
AppellantHirendra Nath Poddar
RespondentShibendra Nath Poddar and ors.
Appellant AdvocateM.N. Ghosh and ;Dhruba Bhattacharyya, Advs.
Respondent AdvocateSaktinath Mukherjee and ;Prodipta Roy, Advs.
Cases ReferredJahuri Sah v. Dwarika Prasad Jhunjhunwala
Excerpt:
- .....no. 1 were allotted specific properties in respect of their respective shares, excepting that the disputed property which is a building consisting of two rooms only, was allotted jointly to the plaintiff and the defendant no. 1, the former having 3/4th share and the latter 1/4th share therein. from before the said partition, a shoe shop named 'sricharaneshu' was being run in the suit house. the shoe business was allotted exclusively to the defendant no. 1 and the plaintiff has no claim thereto. the plaintiff instituted the suit praying for partition by metes and bounds of his 3/4th share in the disputed building.3. the defendant no. 1 contested the suit. his case was that it was settled at the time of the partition among the brothers that so long as he would be carrying on the shoe.....
Judgment:

M.M. Dutt, J.

1. This appeal is at, the instance of the defendant No. 1 and it arises out of a suit for partition and possession,

2. The plaintiff and the defendants are brothers. The joint properties of the plaintiff and the defendants were partitioned by a registered deed dated Feb. 21, 1972. Upon such partition, the plaintiff and the defendant No. 1 were allotted specific properties in respect of their respective shares, excepting that the disputed property which is a building consisting of two rooms only, was allotted jointly to the plaintiff and the defendant No. 1, the former having 3/4th share and the latter 1/4th share therein. From before the said partition, a shoe shop named 'Sricharaneshu' was being run in the suit house. The shoe business was allotted exclusively to the defendant No. 1 and the plaintiff has no claim thereto. The plaintiff instituted the suit praying for partition by metes and bounds of his 3/4th share in the disputed building.

3. The defendant No. 1 contested the suit. His case was that it was settled at the time of the partition among the brothers that so long as he would be carrying on the shoe business, the disputed property would not be partitioned. He had been paying rent of Rs. 75/- per month to the plaintiff in respect of his 3/4th share. Further his defence was that as he was a monthly tenant of the disputed house under the plaintiff, the suit for partition was not maintainable in view of the provisions of the West Bengal Premises Tenancy Act, 1956 and the Transfer of Property Act. Upon the said allegations, he prayed for the dismissal of the suit.

4. It appears from the judgment of learned Subordinate Judge that at the hearing of the suit, it was the admitted position that the defendant was a monthly tenant of the plaintiff in respect of his undivided 3/4th share in the disputed property at a monthly rent of Rs. 75/-. The learned Subordinate Judge disbelieved the plea of the defendant No. 1 that at the time of partition among the brothers there was an oral agreement or understanding that so long as the defendant No. 1 would run the shoe business, the disputed property would not be partitioned. The learned Subordinate Judge took the view that as the defendant No. 1 had the dual capacity of a co-owner and a tenant, the remedy of the plaintiff for the eviction of the defendant No. 1 from the disputed property lay in a suit for partition. In that view of the matter, he held that the plaintiff had rightly brought the suit for partition, and that he was not required to comply with the provisions of the West Bengal Premises Tenancy Act and the T. P. Act. Upon the said findings, the learned Subordinate Judge decreed the suit in a preliminary form declaring the respective shares of the plaintiff and the defendant No. 1. Hence this appeal.

5. Mr. Manindra Nath Ghosh, learned Advocate appearing on behalf of the defendant No. 1 submits that although the disputed property can be partitioned by metes and bounds demarcating the respective shares of the plaintiff and the defendant No. 1, the plaintiff is not entitled to recover possession of the disputed property or the portion that may be allotted to him in respect of his 3/4th share during the subsistence of the tenancy of the defendant No. 1 under the plaintiff. It has been stated already, that the admitted position in the court below was that the defendant No. 1 was a tenant under the plaintiff in respect of the plaintiff's share in the disputed property at a monthly rent of Rs. 75/-. There can be no doubt that so long as the tenancy of the defendant No. 1 would continue, the plaintiff would not be entitled to recover possession of the portion of the disputed property that might be allotted to him under the final decree as contended by Mr. Ghosh, In a Bench decision of this Court presided over by G. N. Das J. in Surendra Nath Sarkar v. Mahabir Roy, : AIR1953Cal36 , it has been held that a suit for partition would be maintainable although the property which is the subject-matter of partition is in possession of a tenant who happens to be a co-sharer. Further, it has been observed that in a case like this it may not be possible for the Court to put the plaintiff into physical possession of the property after the final decree for partition has been made and the plaintiff may have to content himself with a decree entitling him to symbolical possession. Before us, it has been stated on behalf of the defendant No. 1 that he would grant all facilities for the purpose of demarcating the portion of the disputed property that may be allotted to the plaintiff. The learned Subordinate Judge has passed a preliminary decree which does not contain any direction for delivery of possession. It is contended by Mr. Ghosh that the learned Subordinate Judge should have observed that during the continuance of the tenancy of the defendant No, 1, the plaintiff was not entitled to physical possession of the portion of the building that would be allotted to him under the final decree.

6. It has, however, been strenuously urged by Mr. Muknerjee that in the facts and circumstances of the case, the defendant No. 1 cannot be held to be in possession of the disputed property as a tenant under the plaintiff. Secondly, he submits that under the Transfer of Property Act no tenancy can 'be created by a co-sharer in respect of his undivided share in favour of another co-sharer. Thirdly, it is contended that in any event the alleged tenancy of the defendant No. 1 is not governed by the West Bengal Premises Tenancy Act, 1956.

7. So far as the first contention made on behalf of the plaintiff is concerned, it may be pointed out that in the written statement, it is the specific case of the defendant No, 1 that he is a tenant of the plaintiff in respect his undivided share at a monthly rent of Rs. 75/-. In his deposition, the plaintiff has not denied that the defendant No. 1 is a tenant under him, On the contrary, he has described the monthly amount of Rs. 75/-, which is being paid by the defendant No 1 to the plaintiff, as rent. It also transpires from his evidence that he refused to accept the arrears of rent remitted to him by the defendant No. 1 by the postal money order, on the ground that he (the defendant) was paying rent at intervals of 9 to 12 months. He has admitted that the defendant No. 1 has been depositing rents with the Rent Controller. It is apparent from the conduct of the plaintiff in refusing to accept the arrears of rent that the plaintiff accepted the defendant No, 1 as a tenant under him, and that by such refusal he was trying to create a ground of his ejectment under the West Bengal Premises Tenancy Act, 1956, that is, the ground of default. The most significant fact that may be noticed in this connection is that the defendant No. 1 has in his examination-in-chief categorically stated that he is a monthly tenant under the plaintiff, but he has not been cross-examined in that regard on behalf of the plaintiff. Indeed, both the parties in the court below, proceeded on the basis that the defendant No. I was a monthly tenant under the plaintiff. The learned Subordinate Judge has in his judgment recorded that the admitted position is that the defendant No. 1 is a tenant under the plaintiff at a monthly rent of Rs. 75/-in respect of the plaintiff's undivided 3/4th share in the disputed property. No argument was made on behalf of the plaintiff before the learned Subordinate Judge that the defendant No. 1 was not a tenant under the plaintiff. The question whether the defendant No. 1 is a tenant under the plaintiff or not is pre-eminently a question of fact and as it was the admitted position in the court below that the defendant No. I was a tenant and as the plaintiff also impliedly admitted the assertion of the defendant No. 1 in that regard in his evidence by not cross-examining him on the point, it is now too late for the plaintiff to argue that the defendant No 1 is not his tenant. In view of the facts stated above, it may be reasonably inferred that there is a contractual relationship of landlord and tenant between the plaintiff and the defendant No. 1 in respect of the plaintiff's 3/4th share in the disputed property.

8. The decision of the Supreme Court in Jahuri Sah v. Dwarika Prasad Jhunjhunwala, : AIR1967SC109 on which strong reliance has been placed on behalf of the plaintiff does not apply to the facts and circumstances of the present case. In the case before the Supreme Court, it was agreed between the parties that the defendants who were the co-sharers of the plaintiffs would possess the undivided shares of the plaintiffs on payment of compensation of Rs. 200/-per month. In that case, no relationship of landlord and tenant between the parties was proved. The observation of the Supreme Court to the effect that if the parties are co-owners of the property and the property is held by them as tenants-in-common no question of relationship of landlord and tenant comes into being as between them, has been, in our opinion, made in the context of the facts of that case. The Supreme Court has also observed:

'Co-owners are legally competent to come to any kind of arrangement for the enjoyment of their undivided property and are free to lay down any terms concerning the enjoyment ol the property.'

In the instant case, it was agreed between the parties that the defendant No. 1 would possess the disputed property as a tenant of the plaintiff so far as the plaintiff's undivided share was concerned. As the plaintiff accepted that position in the Court below and no evidence to the contrary having been adduced by him, it cannot but be held that the defendant No. 1 is a tenant of the plaintiff in respect of his undivided share in the disputed property. In these circumstances, we do not think that the decision of the Supreme Court referred to above, is of any help to the plaintiff.

9. The second point that has been urged on behalf of the plaintiff is that a co-sharer cannot create a tenancy of his undivided share in favour of another co-sharer, This contention, in our opinion, is without any substance. Under Section 105 of the Transfer of Property Act, the creation of a tenancy requires the transfer of the right of enjoyment of immovable property. There can be no doubt that the undivided share of the plaintiff in the disputed property is immovable property and the plaintiff having divested himself of his right to possess the same in favour of the defendant No. 1 on his paying a sum of Rs. 75/- per month as rent, a tenancy came into being. There is no good reason behind the proposition as advanced on behalf of the plaintiff that no tenancy in respect of an undivided share can be created by a co-sharer in favour of another co-sharer. In Surendra Nath's case : AIR1953Cal36 referred to above, such a tenancy of an undivided share was created. In our view, it is quite permissible under the law to create such a tenancy. In these circumstances, we overrule the contention made on behalf of the plaintiff.

10. The third and the last point urged on behalf of the plaintiff seems to be of substance. It is contended that in any event. the tenancy of the defendant No. I is not governed by the West Bengal Premises Tenancy Act, 1958. The defendant No. 1 is a tenant within the meaning of Section 105 of the Transfer of Property Act in respect of the undivided share of the plaintiff in the disputed property. The question is whether his tenancy is governed by the West Bengal Premises Tenancy Act, 1956, The said Act applies to a tenancy of 'premises' which has been defined in Section 2(f) of the said Act as meaning inter alia any building or a part of a building or any hut or part of a hut let separately. The tenancy of the defendant No. 1 is not in respect of any 'premises' within the meaning of Section 2 (f), but it relates to the undivided 3/4th share of the plaintiff in the disputed property. In our opinion, in order to attract the provisions of the West Bengal Premises Tenancy Act, 1956, it must be proved that the tenancy is in respect of a 'premises' within the meaning of Section 2 (f), that is, in respect of any building or a part of a building or any hut or part of a hut let separately. When it is in respect of a part of a building or part of a hut, such part must be demarcated by metes and bounds. As an undivided share in a property is not a premises and is not capable of being demarcated by metes and bounds, a tenancy of such undivided share will not coma within the purview of the provisions of the West Bengal Premises Tenancy Act, 1956. In these circumstances, we hold that the tenancy of the defendant No. 1 is governed by the provisions of the T. P. Act and not by the provisions of the West Bengal Premises Tenancy Act, 1956; and it is liable to be determined on the service of a fifteen days' notice to quit.

11. For the reasons aforesaid, we affirm the judgment and decree of the learned Subordinate Judge subject to this modification that, although the disputed property may be demarcated by metes and bounds in respect of the shares of the plaintiff and the defendant No. 1, the plaintiff will not, however, be entitled to physical possession of the demarcated portion that may be allotted to him under the final decree, so long as the tenancy of the defendant No. 1 under the plaintiff would continue,

12. The appeal is disposed of as above, but in view of the facts and circumstances of the case, there will be no order for costs.

D.C. Chakravorti, J.

13. I agree.


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