DEVU SUBHANA Vs. BADRUDDIN HUSSAIN

JUDGEMENT

(1.) AN interesting question of law as to whether one, of two or more tenants is competent to surrender his interest in the tenancy to the extent of his share to the landlord has arisen in this case. The facts alleged are that the lands in question were given to three persons, the two present applicants and one Devu Jinnappa Vithanna as tenants by the respondents Badruddin Hussain Herwadi. The said Devu surrendered his interest in the lands on 30-1-1954. The landlord accordingly made an application, Tenancy Case No. 18 of 1953. 64, before the Mamltadar, Taluka Hatkanangale, District Kolhapur, for acceptance of the said surrender and delivery of joint possession of the suit property. The present applicants were not made parties to the said proceedings. The Mamlatdar approved the application for surrender and ordered that joint possession of the property be delivered to the landlord along with the two remaining tenants. This order was upheld by the Collector, District Kolhapur. The Revenue Tribunal also upheld the order. However, as desired by the applicants, the lands were divided into 2/3rd and 1/3rd shares for the purpose of cultivation between tenants and the landlord.

(2.) MR. Paranjpe, learned Advocate for the applicants, argues that under the provisions of Section 5 (3) (b) of the Bombay Tenancy and Agricultural Lands Act, 1948, a tenant may terminate the tenancy at any time, but in such a case the surrender must be of the whole of the tenancy and that one of several tenants cannot surrender his interest. Obviously, if we examine the wording of Sub-section 3 (b) of Section 5 of the Act, this argument has no force, as the section states that "a tenant may terminate the tenancy at any time by surrendering his interest as a tenant in favour of the landlord". The word 'interest' denotes that one of several tenants can also surrender, his share. Mr. Paranjpe has further argued that under the provisions of Section 27 of the said Act the surrender by one tenant would amount to an assignment and, therefore, invalid. We are of the opinion that the provisions of the two sections, viz. Sections 5 and 27, should be read harmoniously. The assignment of tenancy rights, which is prohibited under Section 27 (1) of the Act, will be an assignment in favour of some person other than the landlord and a surrender in favour of the landlord in terms of Clause (b) of Sub-section (3) of Section 5 is not in our opinion, prohibited, nor can it technically be called as assignment as envisaged under Section 27 (1) of the Act.

(3.) MR. Paranjape cited before us Leek and Moorlands Building Society v. Clerk, 1852-2 All ER 492 (A ). That was a case of joint tenancy between a husband and wife. It is well known that under the English law if one of the joint tenants dies or ceases to exercise his interest, the other Joint tenant takes the whole of the interest by the principle of survivorship. But admittedly that is not the case in our country. Therefore, that ruling is of no help for the purpose of deciding the case before us.