PRAMOD KUMAR JAISWAL Vs. BIBI HUSN BANO

JUDGEMENT

(1.) -I have gone through the judgment proposed by brother P. K. Balasubramanyan, J. I find myself in agreement with the conclusion arrived at by him and also with the reasonings assigned by him excepting for his opinion formed on the case of Nalakath Sainuddin vs. Koorikadan Sulaiman, (2002) 6 SCC 1, with which opinion I have not been able to persuade myself to agree and in that regard I am constrained to record my separate opinion.

(2.) The decision of two-Judges Bench of this Court in Indra Perfumery vs. Moti Lal and others, (1969) 2 SCWR 967 was not brought to the notice of the two-Judges Bench deciding Nalakath Sainuddins case (surpa) else the former decision would have certainly received consideration of the Court in the latter case. I propose to deal with these two cases.

(3.) With respect to the learned Judges who decided Indra Perfumerys case (supra), I have certain comments to offer on the case. It is a brief judgment which does not deal with the law in-depth. The impact of Section 109 of the Transfer of Property Act has not been considered. The doctrine of merger, well-accepted and well-established, has also not received the consideration of the Court in its expanse and then applied to the facts of the case. A very brief statement of law is to be found contained in para 4 thereof and therein the Court has said that Section 111(d) of the Transfer of Property Act has no application, unless the interest of the lessor and the lessee in the whole of the property is vested in the same person. The Court has gone on to observe that the appellant is the owner of the house and is also a tenant of part of the house of which the respondents were tenants from Mohd. Shafi.