JUDGMENT
This Second Appeal arises out of a suit for rent. The appellants are husband and wife but it will be convenient to refer to the husband who is the 1st plaintiff as the plaintiff. He has a brother named Hanumantha Rao and the arrangement made by the defendant with Hanumantha Rao for the purchase of the latter's undivided half share in the suit house has been the cause of differences and disputes between the parties.
It is admitted by the defendant that, to begin with, he was a tenant of the whole of the suit house under the plaintiff who at that time is said to have acted on behalf of himself and of his brother Hanumantha Rao. Later on however, it seems to be common ground that the defendant was a tenant only of the eastern portion of the house, which is referred to as portion A in the plan. It also appears from the evidence that for some years, up to 1925, the western portion was in the occupation of another tenant, but it is stated that the western portion was much less commodious and as it also got into disrepair it was apparently not continued to be occupied by anybody. The latest registered lease between the parties seems to have been entered into in 1918 for a period of 2 years, but though its term expired in 1920 the defendant admits having continued in occupation of the eastern portion presumably on the same terms as under Ex. A till October 1926. The plaint alleged that during the interval there was a fresh arrangement for payment of enhanced rent but apparently that allegation has not been persisted in.
The dispute between the plaintiff and his brother is said to have been the result of an attempt on the plaintiff's part to treat the eastern portion of the house which is said to be the better portion of the property as having become his own and trying to force the western portion on the brother, while the brother contended that both of them were undivided and that plaintiff was not entitled exclusively to the eastern portion. The defendant apparently was induced to make some capital out of these unfortunate differences between the brothers and purported to purchase Hanumantha Rao's undivided half share in the suit property. After the defendant obtained this sale deed from Hanumantha Rao the plaintiff, on 1st November 1926, purported to transfer to his wife the eastern portion of the house treating it as his property and on 19th November 1926 the wife sent a notice, Ex. V to the defendant asking him to quit the house on 15th January 1927. The defendant promptly replied by Ex. V-A stating that he did not even propose to wait till 15th January 1927 but as from the date of his purchase from Hanumantha Rao, he had in law become a co-owner of the house, there was no longer any relationship of landlord and tenant between themselves. He no doubt says that the sale by the plaintiff to his wife was collusive and nominal, but it certainly does not lie in the plaintiff's mouth to say that it was not open to the wife to give that kind of notice.
The claim in the plaint was that the defendant was bound to pay rent as from 30th August 1926 but alternatively the claim was also put forward as one for damages for use and occupation. The written statement raised the plea foreshadowed in the reply notice, Ex. V-A. It was also stated that rent had in fact been paid to the plaintiff upto 31st October 1926. The rent suit was in the first instance filed in the Masulipatam Sub-Court as a Small Cause Suit. Within 5 or 6 weeks after its institution, the defendant on the strength of the sale deed obtained by him from Hanumantha Rao filed a suit for partition of the suit house in the District Munsif's Court. The rent suit was accordingly transferred to the Munsif's Court and the two suits were tried together.
In the partition suit both the Courts upheld the plea that there was no partition between the brothers, that the present plaintiff was therefore not entitled in his own right to the eastern portion of the suit house and that the present defendant was entitled to have the house partitioned between himself and the plaintiff. I understand that decree has now become final. Proceeding on the above basis, the Courts below have held that after 10th November 1926 the defendant was in possession as a co-owner and not as a tenant nor as a trespasser and that therefore he was not liable to pay any rent or damages to the plaintiff. A decree was given for a small sum representing the rent between 31st October 1926 and 10th November 1926. The plaintiff has filed this Second Appeal claiming that he is entitled to rent even in respect of the period subsequent to 10th November 1926.
On behalf of the appellants, three contentions have been urged before me. It was first contended that the purchase by the defendant from Hanumantha Rao will not bring about a merger of the leasehold and the vendee's interest because the purchase was only of a half share. Reliance was placed in support of this contention on the decision of the Judicial Committee in Faqir Bakhsh v. Murli Dhar(1). As a proposition of law there can be little doubt that if a person is a tenant of the whole of a property the acquisition by him of ownership in a portion thereof will not of itself extinguish the leasehold interest. In the Lucknow case the tenant was sought to be treated as having forfeited the tenancy and incurred liability to account for the full profits of the property to his co-sharers. The facts stated in the judgment show that he had a term lease and the tenant insisted that as long as the term lasted his co-sharers must only be deemed to have purchased the right to receive the rent and there was no extinction of the lease by merger. I do not see how that question arises in the present case. Apart from the doctrine of merger, if this was a case in which the defendant held possession of the whole house as lessee, it may be open to the plaintiff to contend that after the purchase by the lessee of a half share in the house the defendant should continue to pay to the plaintiff a proportionate share of the rent in respect of the other half on the principle laid down in S. 37 of the Transfer of Property Act. But as I have already stated it is not the plaintiff's case that the defendant was a tenant of the whole house. No question therefore of merger or apportionment arises in the case.
The next contention on behalf of the appellants was based upon the observations in Mullah's Hindu Law, pages 295 etc., with reference to the rights of a purchaser of an undivided share in an item of joint family property from a coparcener. The learned author points out the different views obtaining in the various High Courts as to the right of such a purchaser to obtain possession or to remain in possession. Here again it is unnecessary for me to express any opinion on the point on which there is no much divergence of judicial opinion. For one thing, the plaintiff in this case all along insisted that he was entitled to a portion of the house exclusively, there was accordingly no question of his claiming to recover the house for the family. Again Sir D.F Mullah himself points out that even in cases in which a decree for ejectment has been given against the purchaser in possession it has been the practice to grant a stay of execution till the purchaser files a suit for partition of the property in which he has purchased a share. As I have observed already, a partition suit was instituted in the present case within five or six weeks of the institution of the rent suit.
So far as the claim to recover rent is based upon the defendant's character as tenant, it is difficult to see how it could be maintained that the defendant occupied that status in the face of the notices, Exs. V and V-A. By Ex. V, the plaintiff's wife presumably with the knowledge of the plaintiff purported to terminate the tenancy by notice to quit as from 15th January, 1927. As the original period of the registered lease had long ago terminated, the defendant must have been in possession subsequent to 1920 only as a tenant from month to month. If the defendant had acquiesced in Ex. V it will be impossible to treat him as in the position of a tenant after January 1927. But he was prepared to throw up his tenancy even on an earlier date as shown by Ex. V-A and he relied on his title by purchase. Whether that purchase entitled him to remain in possession or not is another matter but in view of Ex. V and V-A it is impossible to treat the parties as continuing to retain the relationship of landlord and tenant after that date.
As for the alternative claim for damages for use and occupation, I do not see how in the face of the finding in the partition suit that the present defendant was entitled to a half share in the house the defendant could be held liable for damages. It is one thing to say that he could have been ejected and that his only right was to sue for partition but it is a different thing to make him liable for mesne profits as a person in possession without title, and as I have stated already the partition suit was filed very shortly after the institution of the suit for rent.
Lastly, the appellant's learned counsel suggested that as the eastern portion, that occupied by the defendant, represented more than a half share which the defendant would have been entitled to, the plaintiff was entitled to claim some payment as from a co-owner who has received a larger share of the profits than he would be entitled to. The authorities no doubt recognise that if a co-owner makes profits by the use of common property he is accountable to the other co-owner for the profits made by him in excess of his share, but no authority has been brought to my notice in which a co-owner in possession can merely on the ground of his possession be made liable to pay an occupation rent to his co-owners. It is not suggested that the plaintiff wanted to occupy the property and was prevented from so doing by the defendant.
In these circumstances, I do not see any reason to differ from the conclusion reached by the Courts below. The Second Appeal fails and is dismissed with costs.
(Though points of law have been attempted to be argued before me I am not satisfied that they really arise on the facts. I therefore refuse leave to appeal).
N.R.RAppeal dismissed.