1. The Judgment of the court was delivered by Janaki Amma, J. - The defeated first defendant in a suit for recovery of possession of the ground floor of a shop building owned by one Joseph, the deceased father of the plaintiff, is the appellant. Defendants 2 to 11 in the suit are stated to be the other legal representatives of Joseph who, according to the plaintiff, were not prepared to join her in the institution of the suit. Going by the case put forward by the plaintiff, for some time after the death of her father heirs were experiencing financial strain. They somehow managed to reconstruct the old shop building. The ground floor of the building was let to a tenant and the upstair rooms were being used for the Varghesons Watch Company owned by the deceased which business was continued by his heirs after his death. As years rolled on, the space available in the upstairs became insufficient for the business and it was decided that after the tenant of the ground floor surrendered, that portion should also be used for the business. The tenant of the ground floor vacated sometime in March, 1970. Defendants 2 to 4 and 7 however, let out the shop building to the first defendant without the knowledge and consent of the plaintiff and some other heirs in March, 1970. Ext. A-2, the rent deed was executed by the first defendant alone and as such invalid in law. Though the term of the lease expired on 18th March 1973, the first defendant did not surrender the property. Alleging thatthe lease was not binding on the heirs of Joseph, the plaintiff sought recovery of possession of the building.

2. Defendants 2 to 11 were ex parte. The first defendant contested the suit. He denied that there was surrender of the building preceding the lease in his favour. According to the first defendant, the property was rented in 1963 to a firm of which he was a partner. After the dissolution of the firm, the first defendant attorned to the heirs of Joseph and executed Ext. A-2 rent deed on 18th March 1970 agreeing to pay an enhanced rent of Rs. 300. The rent deed was taken by defendants 2 to 10 on behalf of the plaintiff also. The plaintiff was aware of the lease arrangement and did not object to it. Rent was being collected for and on behalf of the plaintiff and was being utilised for discharging debts due from the coowners. The first defendant also contended that the plaintiff was not entitled to recover possession of the property in view of Act 2 of 1965 without an order of eviction by the Rent Control Court.

3. The Subordinate Judge, Trichur held that the first defendant failedto prove that the lease was an act of prudent management and, therefore, it was not binding on the plaintiff. According to the learned Sub Judge, the first defendant had no right in the building after the expiry of the period fixed under the lease deed. The court held that the Rent Control Act had no application in the case. The contention raised by the first defendant during trial that the plaintiff had been paid streedhanam and as such not entitled to a share in the property of the deceased, was not accepted by the Court. The suit was accordingly decreed and the first defendant was directed to surrender possession of the property to the plaintiff with future mesne profits at the rate of Rs. 2,400 per annum and costs. This decree is challenged in the appeal.

4. It is the common case that the property originally belonged to Joseph, the father of the plaintiff under an assignment Ext. A-1, dated 7th October 1955 and that the building that was in existence was demolished after his death and a two storeyed one was put up. The upstair portion is being used for the watch business of the coowners. on 20th March 1962, one Johny took on lease the plaint schedule property as per Ext. B-3 from the legal representatives of Joseph fixing a period of 10 years. After the property was surrendered, the first defendant executed on 18th March 1970 a registered rent deed, copy of which is Ext. A-2, fixing a period of 3 years. The rent deed was executed by the first defendant in favour of defendants 2 to 10. The second defendant is the widow of deceased Joseph. Defendants 3 to 6 are his sons. Defendants 7 to 10 are the legal representatives of a deceased son. The 2nd defendant mother of the plaintiff is described as the guardian of the minor sons, defendants 4 to 6. The document, however, concluded with the words that the lease deed was executed in favour of not only the persons mentioned in the body of the document but also of Gracy, Thabitha, who is the 11th defendant and Jolly, who is the plaintiff-first respondent who are daughters of Joseph. The evidence is that the daughters had attained majority on the date of Ext. A-2. There is no case contra.

5. One of the contentions put forward by the appellant was that even though the plaintiff was an heir of deceased Joseph, she lost that capacity on account of her marriage and receipt of streedhanam during the pendency of the suit and, therefore, she became incompetent to proceed with the suit. Reliance was placed on S.22 of the Cochin Christian Succession Act. The said provision reads:

"Notwithstanding anything in the foregoing provisions of this Act, when a Streedhanam has been given or contracted to be given by the father, mother, paternal grandfather or the paternal grandmother of a woman to or in trust for her, neither the said woman nor any lineal descendant of hers as such, shall be entitled to a distributive share in the property of any of them dying intestate, if (1) a brother of the said woman, beinga lineal descendant of the intestate, or (2) the lineal descendants of such a brother, survive the intestate."

The plaintiff admitted in her cross examination as P.W. 1 that at the time of her marriage which took place after the institution of the suit, she got from her family about Rs. 10,000 which was utilised by her husband's family for purchasing ornaments for her. Her three sisters were also married and streedhanam was given to them also. But under S.22 of the Cochin Christian Succession Act, a woman becomes disentitled to get a share in the property of the four specified relations in cases they die intestate, only if streedhanam has been received from any of them. In the instant case, there is no evidence that the streedhanam that the plaintiff received was from any of the four persons mentioned in the section. The marriage itself took place long after the death of the father. Succession to the properties of the father opened, the moment he died. Since before the date of death of the father, no streedhanam had been given, the plaintiff was not disentitled to get her due share in the properties of her father. Her subsequent marriage and receipt of streedhanam are not sufficient to divest her of the share which had already become hers. This does not, however, mean that it is not open to her to receive amounts either as streedhanam or otherwise from the estate of the deceased and relinquish her rights therein. There is, however, no such case of relinquishment. Therefore, the argument put forward by the appellant that the suit itself is not maintainable has no force.

6. Under the Cochin Christian Succession Act, a daughter, if she has not been given streedhanam is entitled to 1/3rd share of a son in the properties of the father. From Ext. B-1, kuri security bond, it is seen that deceased Joseph had 5 sons and 4 daughters. His widow also survived him. Therefore, the plaintiff would have in the ordinary course received one out of twenty-two shares in the properties of the deceased. Being a coowner, she is a necessary party in all dealings with the properties of the deceased. A lease of the building without her concurrence is not binding on her.

7. It is then argued that the lease deed executed in favour of the mother and brothers of the respondent plaintiff was for and on behalf of the plaintiff and as such, she was not entitled to question the lease arrangement. The recitals in Ext. A-2 do not show that the plaintiff accepted the lease deed. It is not made out how the other heirs of deceased Joseph could have represented her. Prima facie, in the absence of evidence to show that she accepted the lease deed, she is entitled to challenge the lease so far as it affects her interest in the property.

8. On behalf of the appellant, reliance was placed on Exts. B-8 to B-39, receipts obtained by the appellant from the State Bank of Travancore. Ext. B-1 as already stated is a kuri security bond executed by the heirs of Joseph. The lessee under Ext. A-2 had been directed to pay the rent to the State Bank of Travancore, Trichur branch in discharge of the subscription payable under Ext. B-1. Ext. B-2 is a letter directing such payment. Exts. B-8 to B-39 are the receipts so obtained by defendants 2 to 11. According to the appellant, since the plaintiff respondent was also a person liable to discharge the amounts under Ext. B-1, she must be deemed to have accepted the lease deed. But the plaintiff was a minor on the date of Ext. B-1. Though the plaintiff was a major on the date of Ext. B-2, she is mentioned therein as a minor. There is nothing in the evidence to show that payments under Exts. B-8 to B-39 were made with the concurrence of the plaintiff respondent or that she was aware of such payments. If the payments were without her knowledge, the plaintiff could not be said to have accepted the lease deed or to have agreed to the arrangement to pay the rent in discharge of the liability under Ext. B-1. Therefore, Exts. B-8 to B-39 cannot be relied upon in support of the plea that the rent deed had been accepted by the plaintiff. On the evidence available on record, it cannot be said that she is bound by Ext. A-2, lease deed.

9. The Trial Court appears to have proceeded on the footing that since the plaintiff was not a party to the lease deed and it has not been made out that she accepted the lease deed, she was entitled to recover possession of the property. The court also acted on the assumption that on the termination of three years fixed under the lease deed, the appellant was liable to surrender the property to the coowners. It was on the basis of the above conclusions that the court decreed the suit for possession. The court, however, overlooked the relevant provisions of law relating to the matter. Under S.44 of the Transfer of Property Act, where one of two or more coowners of immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires, as to such share or interest, and so far as is necessary to give effect to the transfer, the transferor's right to joint possession or other common or part-enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting, at the date of the transfer, the share or interest so transferred. S.105 states that a lease of immovable property is a transfer of a right to enjoy such property. Therefore, a coowner is competent to transfer his right to enjoy the property to any other person either by sale of that right or by creating a lease and the transferee gets the right to enjoy that property in the same manner as the transferor. The only limitation is provided in the latter part of S.44 which says that where the transferee of a share of a dwelling house belonging to an undivided family is not a member of the family, he shall not be entitled to joint possession or other common or part-enjoyment of the house. Under S.8 of the Transfer of Property Act, unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof. The combined effect of the above provisions is that if some out of several coowners of an item of property lease the property, the lessee gets the right to enjoy the property in the same manner as his lessors are capable of and subject to the terms of the lease.

10. Reference may in this connection be made to the following passage in Woodfall's Law of Landlord and Tenant where the learned author deals with the English common law relating to leases by tenants in common.

"Tenants in common need have only unity of possession; they may have unequal shares, and there is no right of survivorship. Each tenant in common could at common law make a lease in respect of his own share alone, the interest of each being separate and distinct, and if tenants in common all joined in one lease it operated as a lease by each of his respective share, and a confirmation by each as to the shares of the others."

11. A.C. Freeman on "Cotenancy and Partition" also deals with the law relating to a lease created by a coowner at Para.253 of his book, second edition at page 333. The following is the passage:

"By either lease or license, a joint-tenant, coparcener, or tenant in common, may confer upon another person the right to occupy and use the property of the co-tenancy as fully as such lessor or licenser himself might have used or occupied it if such lease or license had not been granted. If either cotenant expel such licensee or lessee, he is guilty of trespass. If the lessee has the exclusive possession of the premises, he is not liable to anyone but his lessor for rent, unless the other cotenants attempt to enter and he resists or forbids their entry, or unless, being in possession with them, he ousts or excludes some or all of them."

12. The scope of the coowner's right to lease property has been decided by the Andhra Pradesh High Court in Venkkayya v. Subbarao (AIR 1957 AP 619). A Division Bench of the Andhra Pradesh High Court held as follows:

"The fact that common property has not been divided by metes and bounds and allotted in severalty to the cosharers does not stand in the way of the interest of one cosharer being conveyed to a stranger or another cosharer.

The interest of a cosharer in common property can be sold, mortgaged or leased to another cosharer or to a stranger. S.7, 8 and 44 of the Transfer of Property Act recognise the validity of such transfers. It is not the law that one cosharer can only release his interest in favour of the other cosharers. There can be a conveyance of the interest of one cosharer to another cosharer or to all the remaining cosharers with the statutory and other covenants applicable to such conveyance. S.44 of the Transfer of Property Act provides that a transferee from a coowner of his share of the property or any interest therein acquires, as to such share or interest, and so far as it is necessary to give effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property and to enforce a partition of the same. A lessee from a cosharer is entitled to the rights of his lessor and can even enforce a partition if it is necessary to give effect to his lease."

13. The following passage from Nathaniel v. Mahadeo (AIR 1957 Pat. 511) also deals with the coowner's right to create a lease of his interest in a property which he owns along with others.

"It must, therefore, be taken as settled that one cosharer may use a joint property or any part of it for all legitimate purposes so long as his use of the joint property does not prejudice the rights of the several coowners and does not amount to their ouster. It is equally well settled that a coowner can transfer his undivided share in the joint property by way of lease, sale, gift, or otherwise."

14. The remedy of a coowner who is prevented from enjoying the property by either other coowners in exclusive possession or by transferees from such coowners is to sue for joint possession or if that is not possible for compensation for such exclusive enjoyment or to sue for partition. Law on the point is contained in the following passage in Midnapur Co. v. Naresh Narain (AIR 1924 PC 144).

"Where lands in India are so held in common by cosharers, each cosharer is entitled to cultivate in his own interests in a proper and husband like manner any part of the lands which is not being cultivated by another of his cosharers, but he is liable to pay to his cosharers compensation in respect of such exclusive use of the lands. Such an exclusive use of lands held in common by a cosharer is not an ouster of his cosharers from their proprietary right as cosharers in the lands. When cosharers cannot agree as to how any lands held by them in common may be used, the remedy of any cosharer who objects to the exclusive use by another cosharer of lands held in common is to obtain a partition of the lands."

15. The plaintiff respondent has a case that the rent deed, Ext. A-2 is invalid in law as it has not been executed by both the lessor and the lessee as provided in S.107 of the Transfer of Property Act. Under S.107, where a lease of immovable property is made by a registered instrument, such instrument is to be executed by both the lessor and the lessee. The contention would have had weight if it had been a case where the first defendant was enforcing his right under Ext. A-2 rent deed. In the instant case, the first defendant is admittedly in possession under a contract of lease entered into by himself and some of the coowners. Those coowners have been receiving rent from the first defendant. They have not challenged the lease set up by the first defendant. On the other hand, there is evidence (see D.W. 1) which is not challenged by the plaintiff to the effect that defendants 2 onwards sought eviction of the first defendant by resorting to provisions of the Kerala Buildings (Lease and Rent Control) Act. This only shows that they accepted the first defendant as a lessee of the property. It is not open to the plaintiff to challenge the lease to the extent it related to the right of the other coowners.

16. The Trial Court held that even if the lease is valid, since the term thereof was over the plaintiff was entitled to recover possession of the property. Reliance was placed on Kora Nair v. Ramadas Kamath (1957 KLT 627). The question involved in that case was whether a coowner in management was entitled to recover possession of a property leased after the termination of the lease. There is no indication therein whether the Kerala Buildings (Lease and Rent Control) Act governed the lease in that case. In the present case, if the lease is binding on some of the coowners, the first defendant became a statutory tenant under the Kerala (Buildings, Lease and Rent Control) Act in relation to them and they will be entitled to recover possession of the building only on satisfying the provisions of that Act. That means, the first defendant is entitled to continue as their tenant until evicted following the provisions of that Act. It is not open to the plaintiff to interfere with his possession.

17. The plaintiff is, no doubt, entitled to possession of the property as a coowner thereof. If it is her case that she has been excluded from enjoying the property, it is open to her to claim joint possession with the first defendant and if that is not practicable for partition and separate possession of her share. Since it has come out that deceased Joseph left other properties, the present proceedings cannot be converted into a suit for partition of the estate of the deceased.

18. Since the plaintiff's claim for recovery of possession of the building either exclusively for herself or jointly with other sharers is not sustainable for reasons already mentioned, the decree of the Trial Court has to be set aside. The appeal is, therefore, allowed. The suit will stand dismissed with costs of the first defendant throughout.