SYED AHMED SAHIB SHUTTARI Vs. MAGNESITE SYNDICATE, LIMITED BY THEIR AGENT AND MANAGER, MRGTURNER AND SIX ORS

JUDGEMENT

(1.) The plaintiff and defendants Nos. 2 to 8 own undivided shares in the property in dispute. Plaintiff is entitled to 150/480th share. Defendants Nos. 2 to 8 are entitled to the remaining share. On the 26th January 1899, they jointly gave a lease of the entire property to Mr. G.G. Arbuthnot for thirty years. The present first defendant is the successor in title of the said lessee. The lease was for quarrying magnesite and chalk. It made the rent due thereunder payable in certain proportions individually to the plaintiff and defendants Nog. 2 to 8. It provided for the keeping of accounts for the weighment of the magnesite and chalk in the presence of the lessors and the lessee, and contained provisions for re-entry and for the forfeiture of the lease on certain contingeneies, The plaintiff complains of the broach of three covenants (see paragraph 5 of the plaint ) and prays that it may be declared that the lease had terminated, and for possession of either the entire property or the share of the plaintiff. The first defendant denied that he failed to fulfil any of the conditions. He admits in paragraph 13 of his written statement that a certain sum of money is still due to the plaintiff. The other defendants remained ex parte.

(2.) The Munsif upheld the plaintiff s contention and decreed possession of the plaintiff s share. The District Judge on appeal has reversed that judgment.

(3.) The first question argued by Mr. T. Rangachariar for the appellant is that the District Judge s view that one only of the lessors is not competent to maintain a suit in ejectment is not the law in this Presidency. In Sri Rajah Simhadri Appa Rao v. Prattipati Ramayya (1906) I.L.R. 29 Mad. 29 and in Korapalu v. Narayana , this High Court held that one of the several tanants-in-cornmon can sue to recover possession of his share from the joint lessee Ebrahim Pir Mahomed v. Cursetji Sorabji Desirre (1887) I.L R., 11 Bom. 644, takes the same view. On the other hand the Calcutta High Court in a long course of decisions maintains the position that all the co-owners must sue together. Having regard to this conflict of authorities, and to the guarded language used by Mr. Justice Sankaran Nair in Sri Rajah Simhadri Appa Rao v. Prattipati Ramayya (1906) I.L.R. 29 Mad. 29 we had the question fully argued before us. It was contended that under the English law, it is open to a tenant-in-common to sue for the recovery of his share of the land demised, and that there is nothing in the statute law of this country which restricts such a right. The view maintained by jurists that "joint tenants are seized per my et per tout (by the half, or moiety, and by all)" has been commented upon in the note to Murray v. Hall (1849) 7 C.R., 455, and its limitations have been explained. It is said in English books that the right to bring separate suits is due to the conception that it is a concession to the lessee that he should be allowed to take a joint lease, and that by the mere fact of joining in the lease, the several owners are not debarred from enforcing their individual rights. It is not necessary to cite all the English authorities which recognize the rights of a tenant-in-common to sue to recover his share of the holding demised. They are collected together in Cole on Ejectment, page 236. See also Williams on the Law of Ejectment, page 194. Freeman in his book on Co-tenancy and Partition points out the distinction in this respect between joint tenants, tenantsin-common or co-parceners. See Sections 329, 330, 331 and 341. The general rule is stated to be: "Whenever the title of the co-tenants, as in case of joint tenancy and co-parcenary is joint, the action must also be joint; and whenever, as in tenanoy- in-common, such tenant is deemed to possess a separate and distinct estate, the remedy of each must be distinctly and separately pursued." An exception even in the case of several tenants has been maintained from the earliest times to the effect that "where the thing to be recovered in a real or mixed action is entire, there of necessity, tenants-in-common must join." That is the reason for the distinction in this respect between actions for the recovery of real and of personal property.