JUDGMENT
Gulab C. Gupta, J.
1. The appellant-plaintiff feels aggrieved by judgment and decree dated 8-2-1984 passed by Shri R.K. Trivedi, District Judge, East Nimar, Khandwa in Civil Appeal No. 11B/1982 affirming the judgment and decree dated 25-6-1982 passed by First Additional Civil Judge, Class II, Khandwa in Civil Suit No. 15B 1982, dismissing his suit for recovery of his share of rent and seeks to challenge the same by filing this appeal under Section 100 Civil P.C.
2. That the appellant and respondents Nos. 2, 3 and 4 are the owners of a residential house situate at Ramganj Ward No. 13, Khandwa, in occupation of the respondent No. 1 as tenant, on payment of rent of Rs. 115/- per month is admitted. There is no dispute, at this stage, that the suit accommodation was let out to the respondent No. 1 on 1-11-1964 on his executing rent-note (Ex. P2). The appellant filed the suit alleging that the respondent No. 1 has not paid the rent from 1-7-1973 to 30th June, 1976 amounting to Rs. 4,140/-. According to him, he has only the share in the property and is, therefore, entitled to only 1/4th of the said arrears of rent. He thus claimed a decree in his favour for Rs. 1035/- only. The respondents Nos. 2, 3 and 4 were joined as Pro forma-Defendants. They, however, did not enter appearance. First-respondent Dalichand objected to the appellant’s suit on the ground that tenancy could not be splitted up and, therefore, the suit was not maintainable. He also submitted that the share of the appellant suit-house was 1 /12th and not 1/4th. The trial Court dismissed the suit on the ground that the suit for recovery of a portion of rent was not maintainable as the tenancy could not be sub-divided. The learned lower appellate Court has affirmed the said view and hence this appeal.
3. The respondent No. 1 has also pleaded that he has, sale-deed dated 24-2-1975, purchased the share of respondent Smt. Shantibai in the suit-house and is the owner of the same to that extent. (See paragraphs of Written Statement). This fact introduces an interesting elements in the suit, and makes it almost impossible for all the owners to file the suit for recovery of the rent. Even if the appellant and respondents Nos. 2 and 4 join together to file the suit against this respondent, he can take the plea that the suit was not maintainable as all co-owners have not prayed the relief. If his objection is sustained, he can avoid payment of rent all times to come. On the other hand, if suit by one of the co-owners is permitted and discharge by such an owner is treated as valid discharge on behalf of all the owners, the respondent No. 1 would be required to pay the rent of that part of the tenancy of which he has ceased to be the tenant and become owner. In such a situation, he will first pay rent to one of the co-owners and thereafter recover his part of the rent from him. In either way, the law and the judicial process face the challenge to effectively meet this new situation and ensure justice between all the parties.
4. Law assumes unity and integrity of tenancy and, therefore, provides that a landlord cannot split this unity and integrity of tenancy and recover possession of a part of the tenanted premises from the tenant. Section 109 of the Transfer of Property Act, however, provides a statutory exception to this rule and enables an assignee of a part of the reversion to exercise all the rights of the landlord in respect of the portion respecting which the reversion is so assigned. In a case covered by this provision, there is no need for a consensual attornment. The decision of Supreme Court in Mohar Singh v. Devi Charan, AIR 1988 SC 1365, clarifies this law beyond doubt. Since it is nobody’s case that the matter of the present suit is covered by Section 109 of the T.P. Act, it must be assumed that the tenancy in the instant case, is indivisible. In spite of it, it is recognised that where other co-owners do not object to the eviction of the tenant, one co-owner can maintain the action even in the absence of the other co-owners.
In those cases where other co-owners have been joined as defendants and have not filed written statement or contested the claim, it has been assumed that they do not object to the eviction of the tenancy. (See Shivraj Jat v. Smt. Asha Lata) (1989 JLJ 336). On the authority of this decision the appellant could have claimed eviction of respondent No. 1 from the suit premises even on the ground of arrears of rent under Section 12(l)(a) of the M.P. Accommodation Control Act (hereinafter referred to as the Act). Similarly, it has been also recognised that obligation of a tenant to pay rent under Section 108(e) of the T.P. Act is discharged by paying rent to one of the co-owners as the law recognizes that payment to one of several joint lessors is a payment to all. (See Hiralal v. Agachand, AIR 1957 Madh Pra 5). The law also recognizes that joint lessors may sue together or any of them may sue alone for whole of the rent, for a lease for lessors who are joint tenants of a property, operates as a lease by each and by all. Under the circumstances if the appellant had filed suit for recovery of entire arrears of rent, no objection about its maintainability could have been taken. In between, there are decisions that one co-owner cannot sue separately for his share of the rent unless there is agreement that the lessee shall pay each share separately. Both the courts below have, on application of these principles, held that the suit being a suit for recovery of 1/4th share of the rent was not maintainable and if the suit really be so, no objection could be taken to the impugned judgment. Submission of the counsel for the appellant, however, is that the plaint, read as a whole, would indicate that there was no attempt made by the appellant to split up the tenancy. In fact, it has been pleaded that the tenancy is one whole and the respondent No. 1 was in arrears of rent of Rs. 4,140/-. The plaint, it is submitted, even mentions the rent at the rate of 115/- per month would attempting its break-up according to the shares of the owners. In such a situation, it is submitted, the suit could not be dismissed only because the appellant wanted only his share to be paid so that other co-owners are not prejudiced. It is, therefore, submitted that the Court could have passed
the decree for entire rent rather than dismiss the suit and create the situation whereby the respondent No. 1 could avoid paying rent for ever. The learned counsel for the respondent, however, submitted that effort of the appellant was to split up the contract of tenancy which was otherwise indivisible and, therefore, the suit was rightly held not maintainable.
5. This Court has earlier noticed that the respondent tenant has purchased the share of respondent Smt. Shanta Bai in the suit house and, has, to that extent, become its owner. This Court has also noticed the consequences of this fact and also the necessity of meeting the challenge. The law relating to composite tenancy was not intended to create a situation where either party should suffer and go for further litigation for redress. Since the commitment of this Court to do justice between the parties is paramount, it is the obligation to interpret the law in a manner as to make it effective and workable. This is also the quest of law and the judicial process, and has been recognized by the Supreme Court in Pomal Kanji Govindji v. Varjlal Karsandas Purohit, (1989) 1 SCC 458 : (AIR 1989 SC 436) and Union of India v. Raghubir Singh, (1989) 2 SCC 754 : (AIR 1989 SC 1933). Keeping in view the legal principles involved in the case and the need to make law effective the factual controversy between the parties may be examined.
6. A perusal of the plaint indicates that it was specifically averred that the respondent No. 1 has taken the suit premises on rent from the appellant and respondents 2, 3 and 4 on monthly rent of Rs. 115/-only. Plaint’s para 1 even specifically mentions the area of the house in possession of the respondent-tenant. It is also averred that in an earlier suit, i.e. Civil Suit No. 14A/1970decidedon5-5-1970, the appellant was held entitled to 1/4th rent (Para 2). Plaint’s para 3 clearly alleges that the respondent-tenant has not paid rent amounting of Rs. 4,140/- for the period from 1-7-1973 to 30-6-1976. A fair reading of the plaint would indicate that the appellant was claiming his share only because in the earlier suit he was held entitled to 1/4th share and nothing else. He has not made any effort
to split the tenancy or divide the amount of settled rent. There is no dispute that the rent deposited in the Court in Civil Suit No. 9A/ 72 was paid to each of the co-owners according to his share, i.e., 1/4th only. It must, however, be accepted that this payment does not amount to a judgment about the rights of the co-owners nor does it amount to dividing or splitting-up the contract of tenancy. In spite of it, it does order payment of any 1/4th of the total amount to the appellant as already noticed by the Courts below. The judgment in the earlier suit and the order about payment of 1/4th of deposited arrears of rent in favour of the appellant should leave no doubt in the mind of any one that the Court, at that time treated the tenancy as one and indivisible and yet granted only 1/4th of the amount deposited in the Court to the appellant. Can a suit brought for this very purpose now in relation to same premises but for the subsequent period be held to be a suit based on divided contract of tenancy and for that reason not maintainable? This Court would think that plaint allegations should be read reasonably and rationally and without any pre-conceived notion or idea. They should also be read with a view to give them correct meaning and avoid inconsistency or absurdity. This Court is of the view that the Courts below have not followed this rule and have looked into the matter with a presumption that the tenancy has been splitted up in violation of law. The conclusion whether the tenancy, has been splitted up should have been reached by the Court on consideration of facts and circumstances of the case and not presumed. Simply because one of the co-owners has filed the suit, it cannot be assumed that he had splitted up the contract of tenancy and claims rent only for the part of the tenanted premises. The approach to the Courts below is, therefore, patently unjust and unacceptable to this Court. If allegations in the plaint are considered reasonably it cannot be held that the suit was based on divided tenancy. The suit, it is the considered view of this Court, was based on the original contract of tenancy without tinkering with it and was thereafter maintainable.
7. Must a co-owner sue for the entire
arrears of rent and if he does not so sue, he cannot maintain an action? Though the law recognises the right of a co-owner to institute a suit for recovery of entire rent and entitles him to give a valid discharge to the tenant on behalf of all co-owners, it does not discourage an honest co-owner to claim only his part of arrears of rent. There is, therefore, no justification for the view that a co-owner must either sue for the whole or not at all. If this is held to be the law, a co-owner like the appellant, might be required to face another suit at the instance of the respondent No. 1 for refund of his share. Encouraging litigation has never become either the policy or objective of our judicial process. Expediency demands that nothing that encourages litigation should be promoted. Under the circumstances, this Court would not like to adopt the interpretation that may compel a party to initiate another litigation to get whatever is due to him. This Court wish that the entire lis between the parties is decided in this suit itself, finally. This is not to say that this Court would give-up judicial discipline or propriety. Indeed, the commitment of this Court to judicial discipline and propriety is as deep as its commitment to the rule of law and justice. All of them must march ahead together. This Court does not see any difficulty in the matter nor does it find any question of judicial discipline arising in this case. There is no precedent laying down that a co-owner must sue for the entire arrears of rent or not at all. The law and precedent only lay down that a tenancy once created, remains indivisible except by agreement and hence splitting-up of the same is not permitted. As long as there is no attempt to violate unity and integrity of tenancy, the plaintiff should legitimately be able to demand whatever is due to him. As long as the rule of unity and integrity of tenancy is preserved, the judicial process should not be hesitated to mould relief to give whatever is really due to a party. Courts follow somewhat similar approach in suits relating to partition and separate possession, on (of) the property where the entire partible estate is taken into consideration but the plaintiff is given only that much as is his
due under law. By adopting a similar approach in cases of recovery of rent by one of the co-owners, it may be possible for the judicial process to deal with the unified and integral tenancy and yet to grant a plaintiff co-owner only his share of rent. Since the approach would further litigation and do justice between the parties, there is no reason why it should not be adopted. Under the circumstances, this Court would hold that it is open to a co-owner to pray for a decree for his share of arrears of rent by filing a suit on the basis of unified and integral tenancy and without making any effort to split of the same.
8. The law relating to unity and integrity of tenancy has its origin in the Transfer of Property Act which remains modified by Rent Laws enacted by various States in the country. Our own Act permits a co-owner to seek eviction of (on) the grounds specified in Section 12 thereof. If the rent-laws signify the legislative intent which speaking broadly is to promote social justice by obtaining a rational synthesis of conflicting claim of land lords and tenants. Since cause of social justice would be better served by creating conditions under which the landlords and tenant could live peacefully, the aforesaid approach of the Court should be accepted as social justice oriented approach and preferred.
9. For the reasons aforesaid, this Court is not able to sustain the impugned judgment and decree. Since this Court has already held that there is no attempt by the appellants to violate unity or integrity of the tenancy, it must, as a necessary consequence be held that the suit as filed is maintainable. There is no dispute that the rent for the disputed period was not paid and hence there is no difficulty in holding that the respondents are liable to pay the same. A fair reading of the respondents-defence leads this Court to infer that the respondent do not deny their liability to pay the agreed rent. Indeed he has deposited the entire arrears of rent. Since this Court has already held that it is in the interest of justice and otherwise legally permissible to grant the appellant only his share, the appellant would be entitled a decree for Rs. 1,035/- only. In
such a situation, the balance of amount may be claimed by other co-owners by filing necessary application in the Court.
10. One may also like to consider whether the appellant would be required to file a suit every three years for recovery of his part of the rent as in a situation like the present one, the respondent may not like to pay the entire rent to any of the co-owners. If the respondent chooses not to pay and thereby forces the appellant to file suits, it will be unfortunate. The wisdom may perhaps lie in parties agreeing to share the amount of rent equal to their share in the tenanted premises. Failing which, the respondent may deposit the rent with the Rent Controlling Authority in accordance with the provisions of the Act who may distribute the same according to the shares of the co-owners. It is, however, clarified that these are not the only options indicated by this Court as this Court believes that genious of the parties would surely discover some method of avoiding the future conflict and live in peace.
11. The appeal succeeds and is allowed. The impugned judgment and decree are set aside and the suit of the appellant decreed. Considering the facts and circumstances of the case, the parties are directed to bear their own costs throughout.