Kerala High Court
Valiyaveettil Konnappan vs Mangot Velia Kunniyil Manikkam And Ors. on 23 May, 1967
Equivalent citations: AIR 1968 KERALA 229, 1967 KER LT 585
JUDGMENT P.T. Raman Nayar, J.
1. I think the lower appellate court was right in holding that the notice, Ext. A3 dated 22-10-19-38, issued by the plaintiff to defendants 1. 2 and 3 but not to the 4th defendant was not effective to determine the under-lease which, by reason of the surrender of the lease by Ext. A-2 dated 12-3-1945, must, for all intents and purposes, be regarded as a direct lease under the plaintiff. Both according to the plaint and the written statements, the 4th defendant also was an under-lessee, whether along with defendants 1, 2 and 3 as an heir with them of the original under-lessee as alleged in the plaint, or along with defendants 1 and 2 only as a donee with them under Ext. B-2 dated 4-7-1945 from a legatee of the original under-lessee, is a matter of no consequence.
In either case, the 4th defendant and her co-tenants could have taken only as tenants in common and not as joint tenants--defendants 1 and 2 are sons, the 3rd defendant, the daughter and the fourth defendant, the widow of the original under-lessee, and, while on the one hand there is no averment that they constituted a joint family and took the property as such, on the other, there is nothing in the gift deed Ext. B-2 to show that a joint tenancy was intended to be created thereby -- and in the absence of notice to quit to the 4th defendant there was no effective determination of the lease. The observation in Kanji v. Trustees of the Port of Bombay. AIR 1963 SC 468 (in paragraph 7 of the report) that notice to one alone of several Joint tenants is sufficient applies only to a case where the several tenants hold as joint tenants and not where, as in this case, they hold as tenants in common.
That is cleat from the emphasis placed by their Lordships on the circumstance that the tenants took the premises as joint tenants, the deed of assignment by which they acquired the lease expressly providing that they were taking as joint tenants. Where joint owners are joint tenants there is unity of title, unity of interest and the right of survivorship in addition to unity of possession so that it might be said that any one of the joint tenants represents the entire estate -- indeed in the Supreme Court case already referred to it would appear that one of the two joint tenants had died and the lease had vested solely in the other by suivorship before notice to quit was served on the other so that there was no question of the legal representatives of the deceased joint tenant having any interest whatsoever in the lease so as to require that notice should go to them.
Where, however, the joint owners are only tenants in common there is only unity of possession, not of title or interest, and to determine a tenancy so held in accordance with section 106 of the Transfer of Property Act notice must be addressed to all the tenants though proof of service on one will be prima facie proof of service on all. See Harihar Banerji v Ramshashi Roy, AIR 1918 P. C. 102 -- and Bejoy Chand v. Kali Prasanna, AIR 1925 Cal 752. In the words of the section, notice must go to every party intended to be bound by it, and if it is not issued to any of the joint owners of the lease there is no determination of the lease so far as he is concerned. A lease cannot be determined piecemeal and hence it follows that there is no determination even so far as the others are concerned.
2. I dismiss this appeal with costs.