KORA NAIR Vs. RAMADASA KAMMATH

JUDGEMENT

(1.) This is a second appeal by the defendant in a suit for ejectment. The suit property belonged to one Vittapa Kammath who was the brother of the present plaintiffs father. This property was demised by Vittapa Kammath under the will Ext. Al in favour of the plaintiff and his two brothers, Narasimha Kammath and Atchutha Kammath. It was also provided for in Ext. Al that the other sons to be born to the father of these legatees will also get the benefit under the will. When the will came into effect, the plaintiff, Narasimha Kammath and Atchutha Kammath were alone in existence and thus they got the property under the testament. While these three persons were minors, their mother as their guardian leased out the property to a stranger for a period of 12 years. The defendant is an assignee from that lessee. After the period of the lease was over, the plaintiff issued a notice to the defendant calling upon him to surrender possession of the property. Ext. A4 is that notice. Since the defendant did not care to surrender the property, the plaintiff instituted the present suit as the manager of his joint family for recovery of the property with arrears of rent and future mesne profits. The defendant resisted the suit and contended that the plaintiff alone cannot maintain the suit. Even though the lease deed had limited the value of improvements to Rs. 300/-, the defendant claimed a much larger amount by value of improvements effected in the property. Both the lower courts found that the plaintiff is competent to maintain the suit, and accordingly decreed eviction on payment of Rs. 1491-5-7 as the total value of the improvements on the property. The present second appeal is directed against that decree.

(2.) The two points urged on behalf of the defendant appellant are that the suit by the plaintiff alone is not maintainable and that there was no proper and valid notice to quit prior to the institution of the suit. Regarding the first point, the position taken up by the appellant is that under the will Ext. A1 the plaintiff and his two brothers took the property as tenants in common and as such one of them alone is not competent to maintain the suit, without impleading the others also as parties. Assuming that the plaintiff and his two brothers took the property as tenants in common, it is clear that they took the properties subject to the direction made in Ext. A1 by the testator himself. In Ext. A1 there is a specific direction that the seniormost among the legatees .should from time to time obtain the pattah in his name and should pay the tax and thus manage the properties for and on behalf of all the legatees. Recovery of possession of the properties from the defendant whose possession subsequent to the expiry of the time limit fixed in the lease deed is akin to the possession of a trespasser, is clearly an act of management of the properties and is for the benefit of all the coowners. The plaint in this case has made it clear that the plaintiff is suing in his capacity as the manager. In this view of the matter the finding of the lower court that the suit by the plaintiff is competent is open to no objection. Even under normal circumstances a suit by one of the coowners alone for recovery of the properties from the trespasser is competent. The decisions in Maganlal Dulabhdas v. Budhar Purushottam (ILR 51 Bom. 149), Thimmayya v. Siddappa ( AIR 1925 Mad. 63 ), Keshwant Keshav Anant (AIR 1940 Bom. 13) and in Varghese Chacko v. Sivasankara Pillai ( 1949 KLT 5 ) are also in support of this position. Thus in any view of the matter, the defendants objection as to the maintainablity of the suit cannot be sustained.

(3.) The second objection that there was no proper notice before suit, is also equally unsustainable. Since there was a specific period fixed in the lease deed, the suit instituted on the expiry of that period could be maintained even without any notice to quit. In the present case there was also the notice evidenced by Ext. A4. It is seen to have been issued by the plaintiff on his own behalf and on behalf of his two brothers and it satisfies all the requirements of a notice to quit.