NANALAL GIRDHARLAL Vs. GULAMNABI JAMALBHAI MOTORWALA

JUDGEMENT

(1.) This revision application preferred under sec. 29 subsec. (2) of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 (hereinafter referred to as the Rent Act) has been placed before us on a reference made by Mr. Justice D. P. Desai. Two questions have been referred to us. One is whether some only out of several coowners of property can effectively determine a tenancy by giving notice to quit and the other is whether a suit to evict a tenant can be filed by one or more coowners without joining other coowners in the suit. Both questions are of frequent occurrence in cases arising under the Rent Act and even under the general law of landlord and tenant they have a certain importance and it is therefore necessary that they should be carefully examined and finally laid at rest by a Full Bench decision of this Court.

(2.) The first question which falls consideration is whether in a case where a property owned by two or more coowners is let out to a tenant a notice to quit given by some only out of them is sufficient to determine the tenancy or it is necessary that the notice to quit must be given by or on behalf of all coowners. We shall presently examine this question on principle as also on authority but before we do so we may clear the ground by pointing out that there are two main forms which coownership of property may assume: one is joint tenancy and the other is tenancy in common. It is not necessary for the purpose of the present discussion to examine in detail the distinctive features of these two forms of coownership but we may briefly indicate the principal characteristics of each. The two main features of a joint tenancy are the right of survivorship and the four unities. The right of survivorship is above all others the distinguishing feature of joint tenancy. On the death of a joint tenant his interest in the property passes to the her joint tenants by right of survivorship and this process continues until there Hut one survivor who then holds the property as sole owner. The four unities of a joint tenancy are unities of possession interest title and time. The concept of unity of possession involves that each coowner is as much entitled to possession of any part of the land as the others. The other three unities namely unities of interest title and time are no doubt essential attributes of a joint tenancy but they are not material and we need not pause to consider them. A tenancy in common is quite different. It differs greatly from a joint tenancy. Unlike joint tenants tenantsincommon hold the property in undivided shares: each tenantincommon has a distinct share in the property which has not yet been divided amongst the tenantsincommon. There is also no right of survivorship amongst tenantsincommon: when a tenantincommon dies the devolution of his interest is not governed by the right of survivorship but it passes under his will or intestacy for his undivided share is his to dispose of as he wishes. Lastly though the four unities of a joint tenancy may be present in a tenancyincommon the only unity which is essential is the unity of possession. Each tenant in common is entitled to possession of the entire land that is to say every part of it as much as the others. Vide Jahuri Shah v. D. P. Jhunjhunwala A.I.R 1967 S.C. 109. Now when property is transferred to two or more persons a question may arise whether the transferees take as joint tenants or as tenantsincommon. The rule of English law is to presume that a transfer to a plurality of persons creates a joint tenancy unless there are words of severance. The law in India is however different. It has always been held in this country that where there is a transfer to two or more persons they must be presumed to take as tenantsincommon unless there are clear words conveying a contrary intention. Vide Jogeshwar Narain Deo v. Ram Chand Dutt 23 I. A. 37: Mahmad Jusab Fatima Bai 49 Bom.L.R. 505.

(3.) Having discussed the two forms of coownership one of which is widely prevalent in England and the other in India we may now proceed to consider what is the jural relationship created between the parties when a lease is granted by one party to the other. A lease is defined by sec. 105 of the Transfer of Property Act to mean a transfer of a right to enjoy property made for a certain time express or implied or in perpetuity in consideration of a price paid or promised or of money share of crops service or any other thing of value to be rendered periodically or on specified occasions to the transferor by the transferee who accepts the transfer on such terms. The transferor is called the lessor and the transferee is called the lessee. The relationship of lessor and lessee is always one of contract it is as pointed out in Deo Nandan v. Meghs Mabton 34 Calcutta 57 a relationship which is a matter of contract assented to by both parties. Now a lease may be of three kinds. It may be a lease for a certain time or a periodic lease or a lease in perpetuity. We are concerned here with a case of periodic lease and we shall therefore have to examine the question before us in relation to such a type of lease but one thing is clear that whatever be the nature of the lease since lease is transfer of a right to enjoy property it cannot take place except by participation of all coowners whether they be joint tenants or tenantsincommon: one coowner alone cannot grant the lease because he by himself has not the whole estate in the property. See Megarrys Law of Real Property (Second Edition) page 393. If property is held jointly a transfer as pointed out by Somervell L. J. in Leek & Moorlands Building Society v. Clark (1952) 2 Q. B. 988: (1952) 2 All E. R. 492 must be by or under the authority of all concerned. This indeed was not disputed by Miss P. Shah on behalf of the plaintiff. It was also not disputed by her that one coowner alone cannot forfeit the lease before the expiry of the term: the right of forfeiture can be exercised only if all desire to exercise it. Equally in the converse case where there is a lease for a certain term in favour of joint tenants one joint tenant alone cannot surrender the lease. They all have the right to the full term and all must concur if this right is to be abandoned. Vide Leek d: Moorlands Building Society v. Clark (supra). But contended Miss V. P. Shah on behalf of the plaintiff the position is different in case of periodic tenancy. A periodic tenancy is not a creature of contract but a creature of law namely sec. 106 of the Transfer of Property Act. There is therefore no privity of contract between lessor and lessee in a periodic tenancy. There is only privity of estate and where there are two or more coowners each coowner has privity of estate with the lessee. This privity of estate which subsists between a coowner and the lessee can be determined by the co-owner by expressing his intention to do so by a notice to quit and when that happens the tenancy as a whole comes to an end for the tenancy cannot continue except with the consent of all. When one coowner gives notice to quit and determines the privity of estate between him and the lessee he becomes entitled to the possession of the property irrespective whether he is a joint tenant or a tenantincommon since it is a characteristic of both joint tenancy and tenancyincommon that each coowner is as much entitled to possession of every part of the property as the others and in consequence the tenant ceases to be entitled to exclusive possession and that puts an end to the tenancy as to all coowners. The argument was also put in another form. It was said that a periodic tenancy continues from period to period so long as all coowners please and if one of the coowners wishes it not to continue beyond the end of a period and accordingly gives notice to quit the tenancy does not continue into the new period and comes to an end. This contention was sought to be supported by two decisions one a decision of the English Court and the other a decision of the Bombay High Court namely Doe. dem Aslin v. Summersett (1830) 1 B. & Ad. 135 and Ebrahim Pir Mahmad v. Cursettji 11 Bom. 644. We do not think the contention is wellfounded. It is based on a misapprehension of the true nature of periodic tenancy.