K.S Gupta, J.— I heard Sh. Arun Mohan for plaintiffs, Sh. Bhaskar Tiwari for defendant No. 1 and Sh. N.K Kantawala for defendants 2 and 3 on plaintiffs' claim for decree of possession under Order XII Rule 6 CPC against defendant No. 1.
2. Suit for possession and mesne profits @ Rs. 3 lakhs per month was filed alleging that Suraj Kumar Nijhawan was owner of property No. 11, Southern Avenue, Maharani Bagh, New Delhi and he left out the same for residential purpose to defendant No. 1 under a lease deed dated 1st August, 1976 for a period of 3 years at a monthly rental of Rs. 4,000/-. Period of tenancy came to an end on 31st July 1979 and lease for further term was not granted to defendant No. 1. Thereafter defendant No. 1 continued in possession of the property as a tenant from month to month. It is further alleged that Suraj Kumar Nijhawan died on 11th November 1986 leaving behind wife (defendant No. 2), son (defendant No. 3) and 4 daughters—plaintiffs 1 to 4. Each of them is the owner of property to the extent to 1/6th undivided share. It is pleaded that notice to quit dated 10th June, 1991 was issued by defendants 2 and 3 to defendant No. 1 through counsel and reply thereto dated 2nd July 1997 was sent by defendant No. 1. Thereafter, defendants 2 and 3 filed suit being No. 367 of 1991 against defendant No. 1 and same was dismissed in default. Plaintiffs who were proforma defendants, are not aware about restoration of said suit. It is further pleaded that plaintiffs issued notice to quit dated 11th July 1997 which was duly served on defendant No. 1. Defendant No. 1 has no right to remain in possession of suit property. It is liable to pay mesne profits @ Rs. 3 lakhs per month. Defendants 2 and 3 who together own 1/3rd share in property and did not join plaintiffs in filing the present suit, have been impleaded as defendants.
3. Defendant No. 1 contested the suit by filing written statement. It is not disputed that property No. 11, Southern Avenue was let out to answering defendant under a lease deed dated 1st August 1976 for a period of 3 years on a monthly rental of Rs. 4,000/- by Suraj Kumar Nijhawan who died on 11th November 1986, and plaintiffs and defendants 2 and 3 are his daughters/widow/son as alleged. It is pleaded that defendants 2 and 3 had earlier filed suit being No. 367/91 for ejectment and mesne profits against answering defendant which was later on dismissed in default. The plaintiffs were defendants 2 to 5 in said suit and they were proceeded ex-parte. In Para No. 6 of the plaint in above suit it was alleged that after the death of Suraj Kumar Nijhawan there was a family settlement amongst his wife and five children and suit property came to be owned by two plaintiffs in equal shares, daughters having relinquished their shares in favour of both of them. Later on, defendants 2 and 3 filed application under Order VI Rule 17 and section 151 CPC seeking substitution of said Para No. 6 to the effect that there had been another settlement amongst the wife and five children of Suraj Kumar Nijhawan and pursuant to that settlement suit property is owned by all of them to the extent of 1/6th share each. This application was allowed by the order dated 19th July 1995 and defendants 2 and 3 were also directed to file relinquishment deed/partition deed in court which they failed to produce and after some hearing suit was got dismissed in default. It is pleaded that landlords by their unilateral act cannot split the tenancy and notice for fraction of suit property is illegal. It is claimed that tenancy of answering defendant had not been validly terminated by the plaintiffs and it continues to be a contractual tenancy in suit property.
4. Relying on the decisions in Sri Ram Pasricha v. Jagannath and others, AIR 1976 SC 2335; Smt. Kanta Goel v. B.P Pathak and others, AIR 1977 SC 1599; Rahimtulla Abdul Rahiman Nakib v. Chandrakant Anant Moog and others, AIR 1982 Bombay 282; Pal Singh v. Sunder Singh (Dead) by Lrs. and others, (1989) 1 SCC 444; Narpatchand A. Bhandari v. Shantilal Moolshankar Jani and another, (1993) 3 SCC 351 and Kanta Udharam Jagasia (Miss) v. C.K.S Rao, (1998) 1 SCC 403, the submission advanced by Sh. Arun Mohan, Sr. Advocate was that month to month tenancy of defendant No. 1 was validly terminated by the notice dated 11th July 1997 by the plaintiffs and the suit filed by four daughters also impleading wife and son as defendants 2 and 3 of Suraj Kumar Nijhawan, deceased is maintainable in law. It was pointed out that the action of plaintiffs in giving said notice was ratified by defendants 2 & 3 in their affidavits dated 14th October 1999 placed on record. At any rate, plaintiffs and defendants 2 & 3 had further terminated the tenancy of defendant No. 1 by giving notice(s) dated 3rd February 1999.
5. I propose to refer, in brief, to the said decisions one by one. But before doing so, I would like to cite the case of Nanalal Girdharlal and another v. Gulamnabi Jamalbhai Motorwala and others, AIR 1973 Gujarat 131 (FB) which has bearing in the matter. In this decision two points which came to be considered by Gujarat High Court were (i) whether notice terminating the lease could be given by a co-owner and (ii) whether suit for possession on determination of the tenancy under ordinary law of landlord and tenant, was maintainable by one of the co-owners. While dealing with the first point subject to two exceptions culled out in Para 10, it was held in Para 9 of the report, at Page 138:—
“We may now summarise out conclusions and state the law on the subject as we apprehend it to be. Where two or more co-owners have granted a periodic tenancy, it can be determined only by a notice to quit given by all co-owners. This would be so, irrespective whether the co-owners are joint tenants or tenants-in-common and whether the periodic nature of the tenancy is agreed upon between the parties or in the absence of a contract to the contrary, is implied of section 106. Of course, if the contract between the parties provides that any one of the co-owners may give notice to quit determining the tenancy, the contract would prevail and notice to quit given in accordance with the contract would effectively put an end to the tenancy. Now when we say that the notice to quit must be given by all co-owners, it is not necessary that it should be signed by all co-owners. It is sufficient if it is given by someone acting as agent on behalf of the co-owners. The agent may be one of the co-owners himself or he may be a third person such as for example a Solicitor or an Advocate. Such an agency may be express or implied. So long as the agency is established, notice to quit given by the agent would be a valid notice determining the tenancy. But the authority of the agent, express or implied must exist at the date when the notice to quite is given; subsequent ratification of the notice to quit by the co-owners would not be sufficient to determine the interest of the tenant. Vide illustration (a) to section 200 of the Contract Act. Now where an agent gives notice to quit on behalf of the co-owners, a question may arise whether the notice to quit must show on the face of it that it is being given on behalf of the co-owners or it is sufficient if the agent giving the notice to quit has in fact authority to do so on behalf of the co-owners. This question does not present any difficulty of solution for the law on the subject is now well settled. If the agent is acting under a special authority, he must give notice to quit in the name of the principal or expressly as agent on behalf of the principal but if he is acting under the authority incidental to the general agency to manage the demised property, he may give it in his own name. Vide Foa's General Law of Landlord and Tenant (8th Edition P. 606) Article 961; John v. Phiipps, (1868) 3 QB 567; Lemon v. Lardeur, (1946) KB 613. It would therefore seem that where a co-owner is by common consent of all co-owners entrusted with the management of the leased property he may give notice to quit in his own name and the notice to quit need not show on the face of it that he is acting as agent on behalf of other co-owners. But in other cases if the notice to quit is given by a co-owner it must appear from the notice to quit that it is given by the co-owner acting on behalf of himself and the other co-owners. In either case the authority of the co-owner to give notice to quit on behalf of other co-owners, if disputed would have to be established and if the co-owner giving the notice to quit is not in a position to establish it to the satisfaction of the court, the notice to quit given by him would not be sufficient to determine the tenancy. This would appear to be the clear and undoubted position in law where two or more co-owners have granted a periodic tenancy and the question arises as to whether one of them can give notice to quit determining the tenancy. The same position would also obtain where a periodic tenancy is granted by a landlord who is the sole owner of the leased property and by testate or intestate succession on his death or by transfer intervivos the leased property comes to be owned by two or more co-owners.”
6. On the point of maintainability of suit, at Page 132 it was held that the rule that a co-owner may maintain an action to eject a trespasser without joining other co-owner in such action, can have no application where a co-owners seeks to evict a tenant who is in possession of property after the termination of lease. Such a tenant can be evicted only by an action taken by all the co-owners.
7. Sri Ram Pasricha's case (supra) was rendered with reference to the definition of ‘owners’ as used in Section 13(1)(f) of the West Bengal Premises Tenancy Act, 1956. Discussion made in Para No. 20 of the decision at page 2338 would reveal that the passage on Page 146 in Nanalal Girdharilal's case (supra) was specifically brought to the notice of Apex Court on behalf of appellants and it was held that the rule as enunciated in said passage was not applicable as the case fell under the ‘excepted’ category noted in Para 10 of the said judgment. It was further held that a co-owner is as much as owner of entire property as any sole owner of property is and, therefore, suit filed by plaintiff who was one of the co-owners after death of his father Motilal Sein, was legally maintainable.
8. Smt. Kanta Goel's case (supra) was decided with reference to the definition of ‘landlord’ as occurring in sections 2(e) and 14-A of The Delhi Rent Control Act, 1958. Following the ratio in Sri Ram Pasricha's case it was held that where a landlord who had let out the premises to tenant dies, one co-heir to whom rent is being paid by the tenant and who receives it on behalf of estate, would be the landlord for the purposes of the said Act and eviction petition filed by such a co-heir was legally maintainable.
9. In Pal Singh's case (supra) which was rendered with reference to section 14(1)(e) of The Delhi Rent Control Act, 1958, following the ratio in Sri Ram Pasricha and Kanta Goel's cases it was held that a co-owner can maintain the eviction petition. In view of principles enunciated in V. Dhanapal Chettiar v. Yesodai Ammal, (1979) 4 SCC 214 it was further held that landlord is entitled to maintain eviction petition without serving a notice under Section 106 of the T.P Act.
10. Narpatchand A. Bhandari's case (supra) was decided with reference to expression ‘landlord’ as occurring in section 13(1)(c) of the Bombay Rents Hotels and Lodging House Rates Control Act 1947. Para No. 10 of the decision on which heavy reliance was placed on behalf of plaintiffs, is reproduced below:—
“The decision in Nanalal Girdharlal v. Gulamnabi Jamalbhai Motorwala relied upon by learned counsel for the appellant in support of the first contention, does not lend much support. One of the question with which the Gujarat High Court was concerned in that decision was whether one out of several co-owners was entitled to maintain a suit for eviction against the tenant under the Act. In considering that question the court took the view that the landlord referred to in Section 12 and Section 13(1) of the Act was not landlord as defined in Section 5(3) but was a landlord who was entitled to possession of the premises on a determination of the tenancy under the ordinary law of landlord and tenant, that is, under Section 106 of the T.P Act. It is this view which was sought to be made use of by learned counsel for the appellant to contend that the landlord under Section 13(1) of the Act cannot be a usufructuary mortgagee. But the said view of the High Court that a landlord referred to under Sections 12 and 13(1) of the Act is a landlord who is entitled to possession of premises on determination of the tenancy under Section 106 of the T.P Act, itself cannot now be good law because of the nine-Judges Bench decision of this court in V. V. Dhanapal Chettiar v. Yesodai Ammal where the scope of the provisions of Sections 5, 12 and 13 of the Act in the context of Section 106 of the T.P Act is considered and held otherwise, thus (SCC p. 221, para 9):
“Adverting to the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 it would be found from the definition of Section 5 that any person remaining in the building after the determination of the lease is a tenant within the meaning of clause (11), Section 12 of the Bombay Act says that the landlord shall not be entitled to the recovery of possession of any premises so long as the conditions mentioned in sub-section (1) are fulfilled nor any suit for recovery of possession shall be instituted by a landlord against a tenant on the happening of the events mentioned in sub-section (2) until the expiration of one month next after the notice is served on the tenant in the manner provided in Section 106 of the Transfer of Property Act, as required by the said sub-section. Section 13 provides that a landlord may recover possession on certain grounds. Is it not plain then that on the happenings of the events or on the fulfilment of the conditions mentioned in Sections 12 and 13 etc the landlord becomes entitled to recover possession from the tenant, otherwise not. It will bear repetition to say that under the Transfer of Property Act in order to entitle the landlord to recover possession determination of the lease is necessary as during its continuance he could not recover possession while under the State Rent Act the landlord becomes entitled to recover possession only on the fulfilment of the rigour of law provided therein. Otherwise not. He cannot recover possession merely by determination of tenancy. Nor can be stopped from doing so on the ground that he has not terminated the contractual tenancy.”
11. Ratio of Kanta Udharam Jagasia's case (supra) is that a co-owner/landlord can maintain an eviction petition against a tenant in the absence of any objection from other co-owners. This case was rendered with reference to provisions of Bombay Rents, Hotels and Lodging House Rates Control Act, 1947.
12. Turning to the present case, it is alleged in plaint is that defendant No. 1 was inducted as tenant in suit property for a limited period of three years under lease deed dated 1st August 1976 on a monthly rental of Rs. 4,000/-; protection against eviction under Delhi Rent Control Act, 1958 became available to defendant No. 1 after said fixed term tenancy came to an end; Suraj Kumar Nijhawan who let the suit property died on 11th November 1986; defendants 2 & 3 after serving notice to quit dated 10th June 1991 filed suit being No. 367/91 which was dismissed in default; notice to quit dated 11th July 1997 sent by plaintiffs was duly received by defendant No. 1 and after determination of tenancy the possession of defendant No. 1 over the suit property is unauthorised. It may be noticed that in terms of amendment made in Delhi Rent Control Act, 1958 premises fetching rent above Rs. 3500/- per month were taken out of the purview of Act with effect from 1st December 1988. Copy of the plaint in said suit No. 367/91 placed on file, goes to show that mesne profit was claimed from defendant No. 1 from 1st July 1991 onwards. Obviously, by acceptance of rent between 1st December 1988 to 30th June 1991 during which protection against eviction under the said Act was not available the plaintiffs and/or defendants 2 & 3 had assented to defendant No. 1's continuing in possession of suit property as a tenant on month to month basis. Moreover, as per allegations made in the plaint in present suit the defendant No. 1 is admitted to be tenant on month to month basis before its tenancy was allegedly terminated by serving the notice dated 11th July 1997. It may be noticed that law as enunciated in V. Dhanpal Chettiar's case (supra) that no notice of termination of contractual tenancy is needed, relates only to tenancies to which State Rent Acts apply. Legal position summarised in Para No. 9, extracted above, in Nanalal Girdhari Lal's case in the matter of determination of tenancy under the general law of landlord and tenant had not been overruled in any of the aforementioned decisions by the Supreme Court. Rahimtulla Adbul Rahimat Nakib's case (supra) does not help the plaintiffs as question of issue of notice therein was considered with reference to Section 12(2) of the Bombay Rent Act as is apparent from Para 8 at page 284 of the judgment. At any rate, I am in agreement with the said view taken by the Full Bench of Gujarat High Court on the point of determination of tenancy by all the co-owners. In my opinion, the ratification of the action of plaintiffs in serving notice dated 11th July 1997 by defendants 2 & 3 in their affidavits dated 14th October 1999 is of no avail in view of illustration (a) to section 200 of the Contract Act as held in Nanalal Girdharilal's case. Further, determination of tenancy is to precede the filing of suit. Therefore, two notices dated 3rd February 1999 terminating the tenancy of defendant No. 1 served during the pendency of suit too are of no help to the plaintiffs. Moreover, present suit is based on the notice dated 11th July 1997 instead of notices dated 3rd February 1999. Applying the ratio of abovesaid Full Bench decision of Gujarat High Court, the tenancy of defendant No. 1 cannot be said to have been legally determined by aforesaid notice dated 11th July 1997 as defendants 2 & 3 were not parties thereto.
13. Prayer for passing decree of possession of suit property under Order XII Rule 6 CPC is, therefore, declined.