Decided on February 27,1979



N.H.BHATT - (1.) This is the landlords Revision Application under sec. 29 of the Bombay Rent Act challenging the appellate judgment which robbed him of the decree of eviction passed in his favour by the learned trial Judge.
(2.) The suit in question being No. 170 of 1972 in the court of the Civil Judge (J.D.) Dhoraji had been filed by this applicant for eviction of the tenant on the ground mentioned in sec. 12(3)(a) of the Bombay Rent Act. The trial court decreed the suit and so the tenant preferred the Civil Appeal No. 18 of 1975 which came to be allowed by the Extra Assistant Judge Rajkot District at Gondal only on the ground that the notice of eviction was not valid. The ground that weighed with the learned appellate Judge was that the plaintiff had given the eviction notice and had filed the suit as the karta of the Joint Hindu Family of his deceased father Doshi Chunilal Savchand though he had 8 married sisters who by operation of law could not be the members of his Joint Hindu Family. The premises were let out by the deceased Doshi Chunilal Savchand who died in 1961 leaving behind him three sons and eight daughters. In the words of the learned Judge:- " It is also brought out in evidence that the plaintiff died leaving three sons and eight daughters. Eight daughters are married. Therefore there cannot be any joint Hindu family. He also pointed out to me that the Hindu succession Act came in 1956 and according to the said Act the daughters are co-owners and therefore the property of the deceased devolved on the co-owners after the death of Chunilal. Daughters are not the members of the joint Hindu family after their marriages. Therefore they are necessary parties for the purpose of instituting the suit to evict the tenant of the suit premises. One co-owner has no right to file the suit on behalf of other co-owners. But at the same time they are required to be joined as parties. In this case it clearly appears that the plaintiff has not done so and hence the notice is not legal and valid"
(3.) Though the learned appellate Judge has not referred to the jud- gment of this High Court the view that he has relied upon is the Full Bench view of this High Court in the case of Nanalal Girdharlal v. Gul- amnabi Jamalbhai Matorwala 13 G.L.R. 889 (equivalent to AIR 1973 Guj. 131 Had the law remained at that stag. the matter would have been over at this stage. However the Supreme Court in this connection has now laid down different law and so the ratio of the Full Bench decision in Nanalals case (Supra) is of necessity to be held as no longer good law. The judgment of the Supreme Court to be referred to in this connection is the case of Subhendu Prosad Roy Choudhury v. Kamala Bala Roy A.I.R. 1978 S.C. 835. It was a case under sec. 4 of the Calcutta Thika Tenancy Act (Nos. 2 of 1949). Sec. 4 of the said Act reads as under:- "4 Notice before ejectment. It shall not be competent for a landlord to eject any thika tenant from his holding unless the landlord has given the thika tenant notice in the manner provided in sec. 106 of the Transfer of Property Act 1882". The Supreme Court in that case followed the earlier judgment of the Supreme Court in the case of Shri Ram Pasricha v. Jagannath A.I.R. 1976 S.C. 2335. In Subhendu case (Supra) the Supreme Court has observed as follows: "Even assuming that notice was not given on behalf of one of the co-owner land- lords yet the notice would be good and valid". In Sri Ram Pasrichs case (Supra) the Gujarat High Courts above-mentioned Full Bench decision was specifically referred to and still the Supreme Court in paragraph 29 has observed as follows: "Jurisprudentially it is not correct to say that a co-owner of a property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part-owner or a fractional owner of the property".;

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