A. Ramakrishnan Vs. S. Mallikarjuna Raju and M. Ramasamy Raju - Court Judgment

K. Govindarajan, J.

1. The plaintiff filed O.S.Nos.49/96 and 107/98 impleadingthe appellant as 1st defendant and 2nd defendant respectivelyseeking a decree for declaration that the suit property belongsto the joint family excluding Ramasami Raju, the 2nd defendant inO.S.No.49/96 and for possession. The plaintiff/1st respondentclaims that he is the manager of the joint family and the saidRamasami Raju got himself divided after receiving money towards his share in the joint family property. According to theplaintiff, the appellant/Ramakrishnan had been in possession of the suit property as a tenant. He obtained a sale deed from thesaid Ramasami Raju on 3.3.89 with respect to the shops bearing Door Nos.148 and 151. But, according to the plaintiff, the saidsale deed will not bind on the joint family, as the said RamasamiRaju has no right to sell the said property.

2.Insofar as O.S.No.107/98 is concerned, it is the caseof the plaintiff that the 1st defendant Ramu alias Ramayee wasthe tenant and the appellant/Ramakrishnan cannot claim any rightin the suit property also on the basis of the said sale deed.

3.The appellant/Ramakrishnan contested the suits contending inter alia that though he was in possession of theproperty as a tenant with respect to Door No.148, he purchased the property from the co-owner one Ramasami Raju and so he cannot be evicted as sought for. Even assuming that he has to be treated as a tenant, the suit for recovery of possession beforecivil court is not sustainable in law. With respect to the suitin O.S.No.107/98 it is the case of the appellant that afterpurchase of the joint family property from Ramakrishna Raju, hehad taken over possession from the tenant and he has been in possession of the property. On that basis the suit for recoveryof possession cannot be sustained in law.

4.The trial court tried the suits jointly andfound that the suit property belongs to the joint familyincluding Ramasami Raju by rejecting the case of the plaintiffthat Ramasami Raju went out of the joint family after releasing the right by receiving money. On the basis that the appellanthas been in possession of the joint family property as tenant,the trial court has rejected the prayer for possession as soughtfor by the plaintiff. So, the plaintiff filed appeal inA.S.Nos.24 and 25 of 1999 on the file of the Principal DistrictJudge, Sivaganga. The learned Principal District Judge thoughconfirmed the findings of the trial court that the suit propertyis the joint family property including Ramasami Raju, allowed theAppeals granting the relief even for possession as prayed for by the plaintiff. Hence the appellant has filed the above SecondAppeals.

5.The substantial questions of law that were formulatedin these Second Appeals are:

(1)Even assuming that the plaintiff as manager of HinduJoint Family, can he take steps to evict thedefendant/appellant herein who as a tenant of suit propertyin the civil suit without recourse to Rent ControlProceedings?

(2)Are the courts below right in granting decree which isnot prayed by plaintiff especially when he has given up hisoriginal case that his son Ramasamy Raju, second defendantin O.S.49 of 1996 has released his share? And 3)When the appellants have been granted decree for 1/54thshare including this suit property of the joint family A.S.160 of1998 relating to similar disputes regarding adjacentproperty, whether or not the same is binding on theparties?

6.In view of the concurrent finding of fact that the suitproperty and the other properties are joint family propertiesincluding Ramasami Raju, we have to decide the issue raised onthat basis. We have to decide in these Second Appeals only withrespect to the second relief sought for, for recovery of possession from the appellant.

7.Learned counsel appearing for the appellant, tosubstantiate the said claim that the lower appellate court is notcorrect in granting the decree for possession, has submitted thatthe appellant has got right in the suit property and in the otherproperties, in view of the purchase of the rights of Ramasami Raju under the sale deed dated 3.3 .89 and thereby he has become the co-sharer and so without filing suit for partition, theplaintiff cannot take possession of the suit property. Insupport of the abovesaid submission, the learned counsel hasrelied on Sec. 44 of the Transfer of Property Act. He has alsosubmitted that insofar as Door No.148 is concerned, the appellantwas the tenant with respect to the said property and so he can beevicted only by due process of law and not by filing civil suit.

8.To sustain the decree of the lower appellate court, thelearned counsel appearing for the 1st respondent submitted thatsince the appellant/defendant has come forward with the plea thathe purchased the said property, he cannot claim any relief overthe said property as a tenant, in view of the merger and so the1st respondent need not approach the Rent Control Court to evictthe appellant. He further submitted that as a joint familymanager, the 1st respondent is entitled to recover possessionfrom the third party-alienee, of a share of the co-parcener. Onthat basis the learned counsel submitted that the lower appellatecourt is absolutely correct in decreeing the suit for possession.

9.From the abovesaid pleadings and arguments, we have to decide the issue on the basis that the appellant/Ramakrishnan haspurchased only the undivided share of the joint family propertiesof Ramasami Raju/2nd respondent, with respect to both the properties bearing Door Nos.148 and 151. Insofar as Door No.148is concerned, admittedly the appellant was in possession as atenant, and insofar as Door No.151 is concerned, it is the caseof the appellant that after the said purchase, he had takenpossession of the same from the tenant/Ramu alias Ramayee, and he has been in possession of the said property on the basis of thesaid purchase. So, the issue that has to be decided now iswhether the suits for recovery of possession of the said propertyfrom the appellant are sustainable in law.

10.An alienee cannot claim the status of an undividedHindu member or co-parcener. He acquires the undivided interest of his alienor. He is also not entitled to claim jointpossession with other coparcener and equally he is not entitledto demand separate possession of any part of the family property,but he is entitled to possession of that part of the familyproperty which might fall to the share of his alienor at apartition. Such a purchaser does not become a tenantin-commonwith the other members. The above view of mine is supported by a number of decisions of this Court and of the Supreme Court.

11.The Full Bench of this Court in the decision in KotaBalabadra Patro v. Khetra Doss and others, 31 M.L.J. 275,while dealing with the question regarding the right of an alieneefrom the member of the joint family on the basis of Sec. 44 of theTransfer of Property Act, and also the scope of Sec. 44 of theTransfer of Property Act, has held as follows:

'The question in this appeal is whether an alienee of aco-parcener in a joint Hindu family is entitled to possession ofthe alienor's share as a tenant-in-common. There can be no doubtthat so far at least as this Presidency is concerned that he hasno such right. It has been ruled in a series of decisions that his only right is to obtain by a suit for partition the share towhich his alienor was entitled. He is allowed to stand in theshoes of the co-parcener whose rights he has acquired and thusthe equities are worked out between the parties. The point iscovered by recent decisions of this Court. In Maharaja ofBobbili v. Venkataramanujulu Naidu, I.L.R. (1914) M. 265 : 27 M.L.J.409, it was ruled by Wallis, Chief Justice andKumaraswami Sastrri, J, that a purchaser of the undivided shareof a member of a joint Hindu family does not thereby become a tenant-in-common with the other members. Sankaran Nair, J., andBakewell, J., in Nanjaya Mudali v. Shanmuga, I.L.R.(1914) M 684 : 26 M.L.J. 576, also laid down the law to the sameeffect after careful review of the Privy Council decisionsbearing on the subject. The Judicial Committee's rulings inSuraj Bupsi Koer v. Sheo Persad Singh, I.L.R. (1979) C.148,and Hardi Narain Sahu v. Ruder Perkash Misser, I.L.R. (1863) C. 636 , clearly bear out this view of the Hindu law. Thelearned vakil for the respondents has referred to some rulings ofthe Bombay High Court but it is not necessary to consider themhere as there has been a uniform course of decisions in thisPresidency laying down that an alienee from a Hindu co-parcenerdoes not thereby acquire the rights of a tenant-in-common, suchas, to possession and to mesne profits. Reliance was also placedon Section 33 of the Transfer of Property Act but the ruleenunciated there does not override the Hindu Law'.

12.Again,in the decision in Thani Chettiar v.Dakshinamurthy Mudaliar, 68 L.W. 166, the Division Bench of thisCourt has held as follows:'A discussion of the legal rights onwhich relief is sought may be helpful to a certain extent, butultimately the decision depends on the actual relief sought. Itis true that an alienee of an undivided interest of a Hinducoparcener is not entitled to joint possession with the othercoparcener and he is also not entitled to separate possession ofany part of the family property. But the alienee is entitled toobtain possession of that part of the family property which mightfall to the share of his alienor at a partition.'

13.Further, while dealing with similar facts, the ApexCourt, in the decision in Manikayala Rao v. Narasimhaswami, , has held as follows:-

'18.Before dealing with the question as to which Article of theLimitation Act applies to the present case it is necessary toexamine the legal position of persons like Sivayya who purchase shares of some of the coparceners of the Hindu Joint Family. Itis well settled that the purchaser does not acquire any interestin the property sold and he cannot claim to be put in possessionof any definite piece of family property. The purchaser acquiresonly an equity to stand in the alienor's shoes and work out hisrights by means of a partition. The equity depends upon thealienation being one for value and not upon any contractualnexus. The purchaser does not become a tenant in common with the other members of the joint family. He is not entitled to jointpossession with them.'

The Hon'ble Judges of the Apex Court in the said decision, whileconsidering the entitlement of separate possession of any part ofthe family property of the alienee, have opined that the alieneeis not entitled to joint possession of any part of the familyproperty, and further held as follows:'In my opinion, a suit likethe present one will fall within Art.144 of the Limitation Act.It is true that an alienee of an undivided interest of a Hinducoparcener is not entitled to joint possession with the othercoparcener and he is also not entitled to separate possession ofany part of the family property. But the alienee is entitled toobtain possession of that part of the family property which mightfall to the share of his alienor at a partition. What thealienee acquires by a purchase is not any interest in specificfamily property but only an equity to enforce his right in a suitof partition and have the proerty alienated set apart for thealienor's share, if possible.' So, from the abovesaid decisions,it is clear that the appellant cannot file a suit claiming anyexclusive or joint possession of the property.

14.But the present suit is not a case where theappellant/defendant is asking for such a right, as the appellantadmittedly is in possession. So the question would be, whetherthe 1st respondent-plaintiff can sustain the suit for recovery ofpossession from the appellant though he entered into possessionof the said property before purchase as a tenant, and purchasedthe rights of the co-owner in the said property.

15.The learned counsel for the 1st respondent-plaintiffsubmitted that in view of the purchase of the said property bythe appellant from the said Ramasami Raju, the tenancy right hadbeen merged and so the appellant cannot claim any right as atenant to protect his possession.

16. In the present case, the courts below have held thatthe appellant cannot claim that he purchased the said propertyitself; but he purchased only the undivided share of his vendorand thereby he acquired only the moity interest, and so thequestion of merger as submitted by the learned counsel for the 1st respondent cannot be countenanced. So the plaintiff couldhave invoked the provisions of the Tamil Nadu Buildings (Lease & Rent Control) Act, hereinafter called 'The Act'. The subsequentacquisition of the undivided share cannot stand in the way of thelandlord to file a petition for eviction under the Act byterminating the lease, unless the tenant acquires the entireinterest of the landlord.

17.While dealing with the scope of maintainability ofRent Control Proceedings against the tenant who subsequentlyacquired moity interest, the Division Bench of this Court,following the decisions of the Apex Court in the decision inIndra Perfumary v. Mothilal and others, 1970 R.C.J.49 (S.C.),and also the decision of this Court in Kuppuswami v.Balagurumurthi, 1965 1 M.L.J. 86, has held as follows:-

'On the basis of the aforesaid decision of the Supreme Court itcan safely be held that by virtue of their purchase no doubtrespondents 1 and 2 will be co-owners, but at the same time thetenancy will not be wiped out and they will continue to be tenants in respect of the share or interest belonging to thepetitioners. That is to say, respondents 1 and 2 have twocapacities one as co-owners in respect of the share purchased bythem, and another as tenants in respect of the remaining sharebelonging to the petitioners, at any rate, in respect of the rentthat may be payable by them to the petitioners.'

18.Having held that the Rent Control Proceedings are maintainableagainst the tenant who purchased the moity interest subsequently,the Division Bench, in the abovesaid decision, with a view topromote substantial justice, as held by the Apex Court in Venkateswarulu v. Motor and Generals Traders, , has come to the conclusion that the tenants havealready been in possession of the building and so the relief thatcould be granted in the circumstances of the case would be todirect the landlord to be in joint possession also with thetenants leaving it open to the landlord to sue for partition ofhis separate share in the property. On the basis of theabovesaid finding, the Division Bench of this Court in the saiddecision has further concluded as follows:-

'So far as respondents 1 and 2 are concerned, taking note ofsubsequent events, namely, of their acquisition of a share in thebuilding, no order for eviction need be passed against them,leaving it open to the parties to seek appropriate relief by wayof partition and separate possession of their respective sharesin the premises in question.'

19.Though the learned counsel appearing for the appellant hasrelied on Sec. 44 of the Transfer of Property Act to sustain hispossession, I am not dealing with the same in view of the abovesaid findings.

20.With respect to the shop bearing Door No.151, theappellant is not claiming any right as a tenant, but he is tryingto safeguard his possession only on the basis of the purchase ofmoity interest from the said Ramasami Raju, the co-parcener. Hispossession is not in dispute as the plaintiff himself has filedthe suit for possession against the appellant.

21.So, even with respect to the said property, as held bythe Division Bench of this Court in 97 L.W. 334 (supra), theappropriate relief could be, a declaration that the possession ofthe appellant should be construed as joint possession by theplaintiff also, and separate possession could be taken by filinga suit for partition. On the basis of the reasonings given inthe said decision of the Division Bench, the plaintiff is notentitled to get possession till the relief of partition andseparate possession is decided before the appropriate court.

22.Learned counsel appearing for the 1st respondentrelied on the decision in Thangamani v. Natesan, , in support of his submission that suit for recovery ofpossession against the tenant who purchased the land can besustained. But, unfortunately, the said decision will not applyto the facts of the present case. In the said decision, underthe agreement entered into between the landlords and tenant, thetenant failed to pay the sale consideration and so the landlordsfiled the suit for recovery of possessionof the land. It wasalso found on the basis of the recitals in the agreement that thetenants agreed to surrender their possession of the land to thelandlords, pursuant to the said agreement, and on the basis ofthe above said facts, the Apex Court further held that after suchsurrender, the defendants-tenants were in possession only asagreement holders, and so the decree for delivery of possessionas granted by the courts below are sustainable. The saiddecision has no application to the facts of the present case, asthe appellant herein hadpurchased the moity interest, and so, as held by the DivisionBench cited supra, his possession need not be disturbed tillappropriate relief is obtained for partition and separatepossession of the said property.

23.In view of the above discussion, the judgments anddecrees of the lower appellate court insofar as they relate tothe decree for possession cannot be sustained. Hence they arealone set aside and these Second Appeals are allowed partly. Nocosts.