BIHARILAL Vs. WASUNDARABAI
HIGH COURT OF MADHYA PRADESH
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Shinde, C.J. -
(1.)THIS is a second appeal against the judgment and decree of the District Judge, Indore who dismissing the appeal of the Defendant confirmed the decree of the trial Court. The facts briefly are that one Chandrakant giving notice to quit on 24 -10 -1944 Ex. P/3 and Anr. on 31 -10 -1944 Ex. P/4 terminated the tenancy on the expiry of the agricultural years ending in 1945 in respect of two holdings, namely, Inam land and Pattedari land.
After this Chandrakant died. His sister Wasundarabai flied a suit for ejectment and for arrears of rent and for mesne profits. That suit was decreed by both the lower Courts. Hence the Defendant has filed this second appeal.
(2.)THE learned Counsel for the Appellant has raised the following contentions:
(1) As there was one composite contract of tenancy, tenancy cannot be split up. Consequently the decree for ejectment in respect of Pattedari land passed by both the lower Courts is illegal.
(2) The Court of Wards by accepting the entire amount of Rs. 251 has continued the lease. After notice of termination by Chandrakant, as entire amount of rent has been accepted by the Court of Wards, there is a waiver of notice.
(3) The Plaintiff cannot obtain a decree without first obtaining succession certificate.
(4) It is admitted that there are three sisters. Consequently one sister alone is not competent to file the suit.
Mr. Sanghi the learned Counsel for the Appellant referred me to Mulla's Transfer of Property Act and also to -'Ram Kanie Mandal v. Ganesh Chander Sen', 64 Ind Cas 550 (Cal) (A), and contended that the landlord cannot break up the tenure. In order to fully comprehend the significance of this objection it is necessary to give a few facts. Krishnarao, father of Respondent Wasundarabai and his son Chandrakant had leased two holdings - one Inam land and the other Pattedari land - to the Defendant Appellant. Chandrakant during his life time gave two notices and terminated the tenancy in respect of both holdings as contemplated by Section 106, T.P. Act. After this Chandrakant died.
Under Holkar State Laws Inam land could not devolve on female heir. So the Subha by his order dated 25 -8 -1945 Ex. P/1 authorised Wasundarabai to manage the Inam holding until further orders. In respect of Pattedari tenure Wasundarabai's name was mutated in the place of Chandrakant on 27 -11 -45. Consequently Wasundarabai as manager of the Inam holding and as co -owner of the Pattedari land filed a suit against Defendant for ejectment and arrears of rent and mesne profits. After the institution of the suit the Government withdrew the management of Inam holding from Wasundarabai on 20 -2 -46. Plaintiff, therefore, amended her suit and confined the relief of the possession of Pattedari land, and arrears of rent and mesne profits in respect of the same.
As already stated Mr. Sanghi contends that the tenancy cannot be split up. The question for consideration is whether any such question is involved in this case or not. It is admitted that the notice by Chandrakant was in respect of both the holdings. It is not denied by the Defendant that the notice was given. Nor has any objection been taken with regard to the validity of the notice. In these circumstances due notice having been given, the tenancy terminated by the end of the agricultural year, that is, May, 1945.
The Defendant's possession after that date is the possession of a trespasser. As far as the contract of tenancy is concerned, even if it be conceded that it was a composite contract of tenancy it did not subsist at the time when the suit was filed. Therefore, the question of splitting up the tenancy does not arise at all in this case. Transfer of Property Act by Mulla to which reference has been made by the learned Counsel contains the following commentary:
The notice must extend to all the premises. The landlord cannot break up the tenure. A notice or a fraction of the holding is ineffective. (Vide Transfer of the Property Act by Mulla 3rd Edn. Page 649).
(3.)THESE statements are not at all relevant to the present case. As already stated notice was given in respect of both the holdings, 64 Ind cas 550 (Cal) (A) to which reference has been made, is also not applicable to this case. In that case the Plaintiff had sued for the possession of a portion of a tenure leaving the remainder intact in the possession of the tenant. In these circumstances their Lordships of the Calcutta High Court held that such a suit does not lie. This is not the case in the present suit.
As ready stated the tenancy had terminated and Wasundarabai sued for possession of the Inam land as manager and of the Pattedari land as co -owner. Such a suit can be maintained is not denied by the Appellant. Order 1 Rule 1 makes it clear that such a suit can be maintained. If an authority be needed reference may be made to - 'Harendra Nath Singha v. Purna Chandra' : AIR 1928 Cal 199 (B). During the pendency of the suit management of the Inam land was taken away from Wasundarabai by the Government. Consequently Wasundarabai had to confine her claim to the Pattedari land. In these circumstances the contention rasied by the learned Counsel has no force.
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