Holding

A co‑owner may sue for eviction as an agent of all co‑owners, a partial transfer of interest does not invoke merger, and the embargo on decree execution was unwarranted; the eviction decree stands with a three‑month stay on execution.

Summary

The suit property, a house and land, was gifted by the deceased to two sisters who became co‑owners. Both sisters jointly sued two tenants for eviction, alleging default in rent and sub‑letting. One sister later sold her share to partners of one tenant firm, who argued they were not interested in eviction; the other sister continued the suit. The Supreme Court held that a co‑owner may sue for eviction as an agent of all co‑owners and that the consent of co‑owners is deemed given unless expressly denied. The transfer of a partial share does not trigger the doctrine of merger under Section 111(d) of the Transfer of Property Act, so the tenancy was not extinguished. The Court also ruled that the lower court’s embargo on executing the eviction decree pending partition was unjustified and upheld the decree, staying its execution for three months. The appeals were dismissed and the decree confirmed.

Issues considered

Whether a co‑owner can file an eviction suit on behalf of all co‑owners.
Effect of a co‑owner's transfer of her share on the right to evict tenants.
Whether the doctrine of merger under Section 111(d) of the Transfer of Property Act applies when only a part of the landlord's interest vests in the tenant.
Whether an embargo on execution of an eviction decree pending partition is permissible.
Whether Article 142 of the Constitution can be invoked to curtail further litigation.

Legislation cited

Constitution of Indias. Article 142
Transfer of Property Act, 1882s. 111(d)

Subjects

evictionco‑ownershipagency doctrinedoctrine of mergerTransfer of Property ActpartitionArticle 142civil appeal

Judgment

\,

A MIS. INDIA UMBRELLA MANUFACTURING CO. AND ORS.
v.
BHAGABANDEI AGARWALLA (DEAD) BY LRS. SMT. SAVITRI
AGARWALLA AND ORS.

JANUARY 5, 2004
B
[R.C. LAHOTI AND ASHOK BHAN, JJ.]

Tenancy laws:

C Eviction suit by one co-owner-Maintainability of-Held, One co-owner
can file suit, based on doctrine of agency-Co-owner filing suit acts as an
agent of other co-owners a11d consent of other co-ow11ers is assumed unless
shuwn lo the contrary-Further when both co-owners file suit, une co-owner
cannot withdraw his consent midway to prejudice the other co-owner-Right
D of parties stand crystu//ized on the date the suit is filed and also entitlement
to seek ejectment is adjudged by reference to the same date.

Transfer of Property Act, 1882-Section I I l(d)-Doctrine of merger- I
App/icahility of-Held: Interest of landlord in its entirety must come to vest
und merge into the interest of tenant in its entirety-When part of interest by
E landlord comes to vest in tenant there is no merger, the tenancy is not
extinguished and doctrine uf merger is not applicable.

Co1;stitutio11 of India, 1950 -Article 142-·fnhere11t jurisdiction-Held:
Cun be invoked to cut short further litigation.

F Owner of the suit property gifted the property to her daughters B
and D. The property was in possession of a company and a shop. The two
sisters owned the property undivided and jointly and by consent
apportioned the rent agreed upon by the two tenants in equal shares.
Thereafter, the sisters got the land partitioned and not the structure of
the house standing over the land. They jointly filed suits for ejectnient of
G the tenants. Trial Court dismissed the suits. Thereafter D transferred her
share in the suit house to the partners of the company carrying on business
in the suit premises. B filed appeal challenging the dismissal of suits.
During pendency of the appeal, buyers of D's share filed an application
that they were not interested in the ejectment of tenants with regard to
H 10
INDIA UMBRELLA MFG. CO.,.. BHAGABANDEI AGAR WALLA 11

their share in the property. Tenant filed another application that right to A
evict vest in the co-landlord as one of them had transferred away her rights
and the transferees were not interested in pursuing eviction, and so the
appeal be dismissed. District Judge allowed the appeal arising out.of the
suits and passed decree for eviction putting an embargo on the right of
the decree-holders to execute the decree unless the property was
partitioned between the co-owners. Aggrieved tenants preferred civil B
revision petitions. Buyers of D's share also joined as revision petitions.
Revision petitions were dismissed. Hence the present appeals.

Dismissing the appeals, the Court

HELD: 1.1. It is well settled that one of the co-owners can file a suit
c
for eviction of a tenant in the property generally owned by the co-owners.
This principle is based on the doctrine of agency. One co-owner filing a
suit for eviction against the tenant does so on his own behalf in his own
right and as an agent of the other co-owners. The consent of other co-
owners is assumed as taken unless it is shown that the other co-owners D
were not agreeable to eject the tenant and the suit was filed inspite of their
disagreement. In the instant case, the suit for eviction was filed by both
\ the co-owners. During continuity of litigation one of them parted with her
share in the property. One of the co-owners cannot withdraw his consent
midway the suit so as to prejudice the other co-owner. The suit once filed, E
the rights of the parties stand crystallized on the date of the suit and the
entitlement of the co-owners to seek ejectment must be adjudged by
reference to the date of institution of the suit; the only exception being
when by virtue of a subsequent event the entitlement of the body of co-
owners to eject the tenant comes to an end by act of parties or by operation
of law. 115-G-H;I6-A-q F

Sri Ram Pasricha v. Jagannath, 119761 4 SCC 184 and Dhannalal v.
Kalawatibai., 12002) 6 SCC 16, referred to.

· J.2. In the instant case, one of the two tenants purchased only a share G
in the property and not the entire property. The applicability of doctrine
of merger within the meaning of Clause (d) of Section 111 of the Transfer
of Property Act, 1882 is not attracted. In order to bring the tenancy to
an end the merger should be complete, i.e. the interest of the landlord in
its entirety must come to vest and merge into the interest of tenant in its
entirety. When part of the interest of the landlord or the interest of one H
12 SUPREME COURT REPORTS (2004) I S.C.R.

A out of many co-landlords-cum-co-owners comes to vest in the tenant, there _.,r
is no merger and the tenancy is not extinguished. (16-D-El

1.3. The partners of the company had purchased the property
pendente lite. Therefore, they cannot take a stand contrary to the one taken
by their predecessor in interest and to the prejudice of the other plaintiff
B whose rights they have not purchased. Application filed by them that they
were not interested in securing eviction of the other tenant is immaterial
and irrelevant in the facts and circumstances of the case. (16-G-Hl

1.4. In order to cut short further litigation, the jurisdiction vesting
C in this Court under Article 142 of the Constitution can be invoked. The
land standing below the structure has been partitioned. The use for
partitioning the superstructure standing over the land was not felt by the
co-owner-landlords as the superstructure was just debris in their
assessment, they had decided to demolish the same and reconstruct the
property separately on their respective pieces of land falling to their
D respective sh.ares by virtue of partition. In the absence of the
superstructure having been actually partitioned it can be assumed that
the superstructure would go with the land and each of the co-owners
would, in any case, be entitled to that part of the superstructure which
corresponds with the land underneath as fallen to the separate shares of
E the two. The decree for eviction in favour of the heirs of B as against the
judgment-debtors and tenant shop would be available for execution and
the tenants would be liable to be evicted from that part of the house and
superstructure as corresponds with the st.are of the land which has fallen
to the share of B. I 17-A-D)

F 1.5. The appellate Court WAS not justified in putting an embargo on
the right of the decree-holders to execute the decree unless the property
was partitionc!d between the co-owners. However, that part of the decree
has achieved finality as the landlords have not pursued their challenge to
the decree of the first appellate Court by filing special leave petitions.
(16-E-F)
G
1.6. Eviction decree passed by appellate court and affirmed by High
Court is upheld. However, it is directed that the decree will not be executed
for three months to save tenants from peril of sudden eviction. (17-G-H)

H CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5357 of 1996.
,J

INDIA UMBRELLA MFG. CO. v. BHAGABANDEI AGARWALLA [R.C. LAHOTI, J .] J3
From the Judgment and Order dated 30.1.1996 of the Guhati High A
Court at Assam in C.R. No. 213 of 1983.

WITH

C.A. No. 5358 of 1996.
B
Vijay Hansaria, Rakesh Dwivedi, S.B. Sanyal, P.1. Jose, Jayesh K.V.,
"';
Sunil Kumar Jain, Rajiv Mehta and B. Aggarwala for the appearing parties.

The Judgment of the Court was de[ivered by

R.C. LAHOTI, J. The suit property consists of a house and outhouses
c
bearing Municipal No. 47 Ward No.5 (new Ward No.20), S.R.C.B. Road,
Fancy Bazaar, Guwahati. The house property is situated over a piece of land
which bears patta Nos. 1382 and 1064. The entire property including the land
and the building standing thereon was owned by late Ladi Aggrawalini. It
was in possession of two tenants. On 24.8.1957, late Ladi Aggrawalini made D
a gift of the suit property in favour of her two daughters namely Bhagabandei
and Buchi Devi. The tenants were informed and they attorned in favour of
the donee sisters. On 1.6.1967, fresh deeds of lease came to be executed
i between the two co-landlords jointly and the two tenants individually. Mis.
India Umbrella Manufacturing Company (the appellant in Civil Appeal No. E
5357 of 1996) agreed to continue to hold the tenancy premises on a monthly
rent of Rs. 1200 undertaking to pay Rs. 600 each to the two co-owners.
Mis. Bharat Stores & Agencies through its proprietor Tulsiram Swami (who
and whose alleged sub-tenants are the appellants in Civil Appeal No. 5358
of 1996) agreed to continue in possession of the tenancy premises on a
monthly rent of Rs. 500 undertaking to pay Rs. 250 to each of the "two co- F
owners separately. Thus, though the prope1ty was undivided and jointly owned
by the two sisters, the rent agreed upon by the two tenants was by consent
apportioned in equal shares between the two co-owner landladies:

In the year 1971-72, the two co-owners namely Bhagabandei and Buchi
Devi initiated proceedings for partition of land in Case No.63 of 1971-72 G
under the local law governing the partition of land holdings. Pursuant to the
order passed in the Partition Case, Partition Patta No.1382 with Dag Nos.
2435, 2436, 2437, 2438, 2439, 2400 and 2484 was issued in the name of
Bhagabandei and Partition Patta No. 1064 with Dag Nos. 2327, 2379, 2339,
2333, 2386 and 2387 was issued in the name of Buchi Devi. The land was H
14 SUPREME COURT REPORTS [2004] I S.C.R.

A thus partitioned. The two sisters did not consider it necessary to have the
structure of house standing over the land also partitioned by metes and bounds
inasmuch as they had mutually agreed to demolish the superstructure and
then to construct their separate houses on their respective pieces of land
which had fallen to their respective shares pursuant to the land partition
B proceedings.

To the extent of what has been stated hereinabove the facts are not
disputed. The co-owner and co-landlady sisters joined together in filing suits
for ejectment of the two tenants. The two landladies pleaded that they did not
have any other house of their own and on being vacated by the tenants the
C present structure was to be demolished and on reconstruction used for their
own occupation. The tenants were alleged to have defaulted in payment of
rent and then fallen into arrears. There was also allegation of creation of sub-
tenancy. The trial Court found the plaintiffs not entitled to the decree for
eviction and directed the suits to be dismissed vide judgment and decree
dated 30.4.1981.
D
Presumably ~isheartened by the dismissal of the suit, Buchi Devi
transferred, by registered deed of sale dated 12.6.1981, her sharj: in the suit
house to Chand Ratan Swami, Gopi Krishna Swami, Indra Devi and Vijay
Lakshmi, who were partners ofM/s. India Umbrella Manufacturing Company
E carrying on business in the suit premises as one of the tenants. Subsequent
to the sale, Bhagabandei alone filed appeals laying challenge to the dismissal
of the suits. Buchi Devi, having lost her interest in preferring and prosecuting
the appeals, was impleaded as a proforma respondent. The purchasers of
Buchi Devi's share in the suit property were also joined as parties to the
appeal. During the pendency of the appeal, on 5.7.82, the buyers of the share
F of Buchi Devi filed an application in the appeal submitting that they were not
interested in the ejectment of the tenants so far as their share in the property
is concerned and prayed for the suit being dismissed. Another application
was filed by the tenant submitting that right to evict vests in the co-landlords
and as one of them had transferred away her rights and the transferees were
G not interested in pursuing eviction, the appeal was incompetent and hence
liable to be dismissed. On 23.3.83, the learned District Judge allowed the
appeal by a common judgment in the two appeals arising out of the two suits
and directed decrees for eviction to be passed holding the availability of all
the three grounds for ejectment in favour of the appellant namely bona fide
need, default in payment of rent and subletting of the premises. As to the
H application dated 5.7.82 tiled by Buchi Devi's transferees and the other
INDIA UMBRELLA MFG. CO. v. BHAGABANDEI AGARWALLA [R.C. LAHOTI, .I.] J5

application filed by the tenant-respondent, the learned District Judge opined A
that they were of no consequence. However, in the operative part of the
judgment, the learned District Judge added a: rider. He directed that inasmuch
as some of the partners of the tenant firm Mis. India Umbrella Manufacturing
Company have purchased the rights of Buchi Devi in the house property they
were not liable to be ejected unless and until the house property has been B
partitioned between the two co-owners, though they would continue to pay
rent to Bhagabandei in the same proportion in which it was being paid till
then. Thus, in substance, it appears that the learned District Judge has found
the interest of the landlords in the suit house to the extent of one half, i.e.
owned by Buchi Devi, having vested in the partners of one of the tenants
firm Mis. India Umbrella Manufacturing Company and therefore the tenancy C
having been extinguished to the extent of one half by merger but continuing
to the extent of one half equivalent to the share owned by Bhagabandei. The
other tenant was directed to be ejected.

Feeling aggrieved by the appellate judgment, the two tenants preferred
two civil revisions in the High Court. In the civil revisions the buyers pendente D
lite reiterated their stand that they were not interested in seeking eviction and
therefore the decree for eviction should be set aside. With the tenant Mis:
India Umbrella Manufacturing Company, the partners therein, who had
purchased the share of Buchi Devi, also joined as revision-petitioners. Both
the revision petitions have been dismissed. These two appeals by special E
leave have been filed by the two tenants joining the buyers of one half share
belonging to Buchi Devi also as appellants. The landlords have not chosen
to file any appeal against that part of the judgment of the High Court which
has upheld the judgment of the appellate Court putting an embargo on the
right of the plaintiff-decree-holder to execute the decree for eviction from
that part of the property which is in possession of Mis. India Umbrella F
Manufacturing Company as tenants "until the suit house is partitioned amicably
or through Court".

Having heard the learned counsel for the parties we are satisfied that
the appeals are liable to be dismissed. It is well settled that one of the co- G
owners can file a suit for eviction of a tenant in the prope11y generaliy owned
by the co-owners. (See: Sri Ram Pasricha v. Jagannath and Ors., [1976] 4
SCC 184; Dhannalal v. Kalawatibai and Ors., [2002] 6 SCC 16, para 25).
This principle is based on the doctrine of agency. One co-owner filing a suit
for eviction against the tenant does so on his own behalf in his own right and
as an agent of the other co-owners. The consent of other co-owners is assumed H
16 SUPREME COURT REPORTS (2004] I S.C.R.

A as takeh unless it is shown that the other co-owners were not agreeable to
eject the tenant and the suit was filed in spite of their disagreement. Ii1 the
present case, the suit was filed by both the co-owners. One of the co-owners
cannot withdraw his consent midway the suit so as to prejudice the other co-
owner. The suit once tiled, the rights of the parties stand crystallised on the
B date of the· suit and the entitlement of the co-owners to seek ejectment must
be adjudged by reference to the date of institution of the suit; the only
exception being when by virtue of a subsequent event the entitlement of the
body of co-owners to eject the tenant comes to an end by act of parties or ~-
by operation of law.

C Buchi Devi had willingly joined with Bhagabandei in filing the suit.
During the continuity of litigation she parted with her share in the property.
One out of the two tenants purchased her share. It seems that the tenancy is
in the name of a partnership firm and some of the partners have purchased
the share of Buchi Devi. It is not clear if all the partners or only a few out
of all the partners are the buyers. The fact remains that they have purchased
D only a share_ in the property and not the entire property. The applicability of
doctrine of merger within the meaning of Clause (d) of Section 111 of the
Transfer of Property Act, 1882 is not attracted. In order to bring the tenancy
to an end the merger should' be complete, i.e. the interest of the landlord in
its entirety must come to vest and merge into the interest of tenant in its
E entirety. When part of the interest of the landlord or the interest of one out
of many co-landlords-cum-co-owners comes to vest in the tenant, there is no
merger and the tenancy is not extinguished. In our opinion, the first appellate
Court was not justified in placing a rider on the right of the decree-holders
to execute the decree unless the propelty was partitioned between the co-
owners. Howev•~r, we need not dwell much upon this aspect as that part of
F the decree has achieved a finality as the landlords have not pursued their
challenge to the decree of the first appellate Court by filing special leave
petitions in this Court.

The decree, in so far as the other tenant and sub-tenants i.e. the appellants
G in C.A. No.5358/1996 are concerned, has to be sustained. The pa1tners of the
• other tenant firm i.e. Mis. India Umbrella Manufacturing Co. (appellant in
C.A. No.5357/1996) have purchased the property pendente lite and therefore
they cannot be allowed to take a stand contrary to the one taken by their
predecessor in interest and to the prejudice of the other plaintiff whose rights
they have not purchased. Their filing an application that they were not
H interested in securing eviction of the other tenant is in the facts and
INDIA UMBRELLA MFG. CO.•· BHAGABANDEI AGAR WALLA [R.C. LAHOTI, J.) 17
circumstances of the case immaterial a11<1. iA"elevant. A
In order to cut short further litigation we are inclined to invoke the
jurisdiction vesting in this Court under Article 142 of the Constitution. As
noted in the earlier part of the judgment, the land standing below the structure
h!IS been partitioned. The need for partitioning the super structure. standing
over the land was not felt by the co-owner·landlords as the super structure B
was just debris in their assessment as they had decided to demolish the same
'"( and reconstruct the property separately on their respective pieces of land
falling to their respective shares by virtue of partition. In the absence of the
super structure having been actually partitioned it can be assumed that the
super structure would go with the land and each of the co-owners would, in
any case, be entitled to that part of the super structure which corresponds
c
with the land underneath as fallen to the separate shares of the two. The
decree for evictiop in favour of the heirs of Bhagabandei (who has died
during the pendency of the proceedings and .whose heirs have come on record)
as against the judgment-dehtors Sekhar Chand Swami, Smt. Chanda Devi
Swami and Mis. Bharat Stores & Agency shall be available for execution and D
the tenants shall)re liable to be evicted from that part of the house and super
\
structure as corresponds with the share of the land which has fallen to the
share of Bhagabandei.

During the pendency of this appeal, we had directed, vide order dated E
11.9.2003, the parties to explore possibility of settlement, if any. and also to
draw an agreed map of the property showing the house property divided into
two portions indicated in separate colours, so as to point out that part of the
property to which the heirs of Bhagabandei would be entitled and that part
of the property to which Buchi Devi and now her transferees, pendente lite,
would be entitled. Unfortunately, the parties have not been able to draw an F
agreed map. Both the parties have filed their separate maps. On a perusal of
~-
the two maps, we do not find any substantial difference therein. Out of the
two maps we find the one drawn by Mis. Gautam Baruah & Associates on
26.9.2003 and filed by the plaintiff-landlo.rds to be comparatively more
accurate and clear. That map shall be transmitted to the trial Court and shall
G
form part of the decree.

• Both tlie appeals are dismissed with costs throughout. The judgment
~ and decrees of the appellate Court maintained by the High Court are confirmed.
However, in order to save the tenants from the peril of sudden eviction it is
directed that the decree for eviction shall not be available for execution for H
18 SUPREME COURT REPORTS [2004] I S.C.R.

A a period of three months from today subject to the tenant-appellants filing an
usual undertaking and clearing the entire money part of the decree by making
deposit with the executing Court within a period four weeks from today.
Decrees in the terms of the judgment of the first appellate Court, if not
already drawn up by it, shall be drawn by the trial Court annexing the map
B as a part of the decree therewith.

N.J. Appeals dismissed.

j