P ANANTHAKRISHNAN NAIR Vs. G RAMAKRISHNAN

JUDGEMENT

(1.) These four appeals are directed against the common judgment of the High Court of Madras dismissing four Civil Revision Petitions filed by the appellants against the order of the appeal Court upholding the order of the trial Court dismissing their applications made under S. 9 of the Tamil Nadu City Tenants' Protection Act, 1921.

(2.) Briefly the facts giving rise to these appeals are:N. V. Abdullah Sahib predecessor-in-interest of the appellants obtained a lease of about 10 grounds of vacant land situate in the city of Madras from the ancestors of respondent-landlords in 1924, for carrying on business, he constructed superstructures on the vacant land and carried on business in timber under a partnership firm along with his brother N. V. Ummer Nutty and two minors. The superstructures which were constructed prior to 1954 on the demised land were treated partnership assets along with other properties. After the death of N. V. Abdullah Sahib and N. V. Ummer Kutty the partnership business could not be carried on, as dispute arose between the partners. A suit being Civil Suit No. 152 of 1960 was filed for partition and in that suit defendants Nos. 2 and 4 were appointed joint receivers:subsequently on 7-9-1966 Sri Ananthakrishnan Nair, appellant No. 1 was appointed Receiver who was authorised to take custody of the account books and to realise rent from the sub-tenants occupying the property which was the subject-matter of dispute in the partition suit. The High Court passed a preliminary decree in the partition suit but before final decree could be prepared or finalised, the respondent-landlords served notices on the heirs of N. V. Abdullah Sahib terminating the lease and demanding surrender of the land. Since the land was not restored to the landlords in spite of termination of the lease, the landlords, in 1972 instituted four suits being Suits Nos. 33 to 36 in the Court of Small Causes at Madras for ejectment against the heirs of N. V. Addullah Sahib, which included defendants Nos. 1 to 10 and Sri P. Ananthakrishnan Nair, Advocate receiver as defendant No. 11. In the ejectment suits defendants Nos. 1 to 3 and 5 to 10 did not appear or contest the suit and ex parte proceedings were taken against them but K. K. Kunhammoo, defendant No. 4 (second appellant) and Sri. P. Ananthakrishnan Nair, Advocate-receiver defendant No. 11 contested the ejectment suits. Defendant No. 4, namely, appellant No. 2, filed an application in each of the ejectment suits claiming benefit of S. 9 of the Tamil Nadu City Tenants Protection Act III of 1922 (hereinafter referred to as the Act) with a prayer to the Court for issuing orders directing the landlords to sell the land, to the defendants and to appoint a Commissioner to ascertain the price which the defendants would pay. The respondent-landlords contested the applications. The trial Court rejected the application on the findings that the defendants were not in occupation of the property except a small portion where the account books were kept and the defendants did not require any portion of the land for running their business or for the convenient enjoyment of the super-structures. On appeal by the defendants Nos. 4 and 11 under S. 9-A of the Act, the appellate authority held that proceedings for ejectment had been taken ex parte against most of the defendants and persons entitled to the statutory privilege did not exercise their right and further they have not been in possession and occupation of the premises, therefore, defendants were not entitled to the benefit of S. 9 of the Act. The appellate Court further held that defendant No. 4 (the receiver) was not entitled to maintain an application under S. 9 of the Act on behalf of other defendants. Thereafter both the receivers, defendants Nos. 4 and 11 preferred four petitions in revision before the High Court. A learned single Judge by his order dated 30-7-1976 affirmed the orders of the Courts below and dismissed the revision petitions. Aggrieved defendant No. 4 and P. Ananthakrishnan Nair, Advocate-receiver have preferred these appeals against the order of the High Court after obtaining Special Leave.

(3.) In the instant case the appellants' application was rejected firstly on the ground that the application made under S. 9 of the Act had not been signed by all the tenants against whom suit for ejectment had been filed by the respondent-landlords. Secondly all the three Courts rejected the appellants' application on the findings that the defendants have not been in possession or occupation of the super-structure and they have let out the entire building to sub-tenants, thereby they are not entitled to claim benefit of S. 9 of the Act. As regards the first question the learned counsel for the appellants urged that the application made under S. 9 of the Act was signed by the second appellant who was defendant No. 4 in the suit. The suit for partition of the property had not been finally decreed and as no final decree had been passed the shares of the defendants had not been partitioned by metes and bounds the property continued to retain its joint status and defendant No. 4 being a co-owner could legally make application on behalf of other co-owners claiming the benefit of S. 9 of the Act. Since there was no conflict of interest among the co-owners, defendant No. 4 being a co-owner could maintain the application not only on his own behalf but also on behalf of all other co-owners as the right of each co-owner extends to every inch of the whole property along with the other co-owners. It is always open to a co-owner to conserve the property for the benefit of all other co-owners. The preliminary decree passed in the partition suit did not affect the joint interest of the co-owners as no final decree had been passed in the suit and the property under tenancy continued to be joint. Learned counsel further urged that defendant No. 4 being a party receiver in the partition suit was entitled to do everything for the conservation and protection of the property for the benefit of the parties to the suit. The Court below committed error in rejecting the application on the plea that the same had been signed only by defendant No. 4.