# Smt. Geeta Devi v. Om Prakash & Ors

- **Citation:** (2020) 7 ILRA 126
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-06-08
- **Case number:** Matters Under Article 227 No.9646 of 2019
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-geeta-devi-v-om-prakash-ors-45853
- **Pages:** 12

## Headnote

A. Civil Law - Transfer of Property Act,
1882 - Section 44 and 55(6) - Undivided
Joint Property - Transfer by co-owner to an
outsider of family - Seeking and Delivery of
Possession - An outsider, who has purchased
the share of co-sharer in an undivided estate,
can seek possession of his/her share only
through partition by amicable mutual settlement
by metes and bounds or through a decree of the
court. (Para 29)
Held -

## Text

126 INDIAN LAW REPORTS ALLAHABAD SERIES
(2020)07ILR A126
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.06.2020

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Matters Under Article 227 No.9646 of 2019
(CIVIL)

Smt. Geeta Devi ...Petitioner
Versus
Om Prakash & Ors. ...Respondents

Counsel for the Petitioner:
Sri Vineet Singh, Sri H.N. Singh

Counsel for the Respondents:
Sri Ayush Khanna, Sri Atul Dayal

A. Civil Law - Transfer of Property Act,
1882 - Section 44 and 55(6) - Undivided
Joint Property - Transfer by co-owner to an
outsider of family - Seeking and Delivery of
Possession - An outsider, who has purchased
the share of co-sharer in an undivided estate,
can seek possession of his/her share only
through partition by amicable mutual settlement
by metes and bounds or through a decree of the
court. (Para 29)
Held -
31. In this view of the fact, the petitioner
cannot get the possession of the share
purchased by her in the disputed premises until
a decree for partition is obtained by her and the
disputed property has been partitioned in the
execution of the decree by metes and bounds.
B. Civil Law - Transfer of Property Act,
1882 - Section 111(d) - Doctrine of Merger
- Applicability - Vesting of interest of Lessee
and lessor - According to Section 111 (d), a
lease of immoveable property determines in a
case where the interests of the lessee and that
of the lessor in the whole of the property
become vested in the tenant - Two conditions
are mandatory to attract Section 111 (d); that it
is only the tenant who should acquire the
property of the landlord; second, the tenant
should purchase assignment of the rights of the
landlord in the property in its entirety. (Para 36)
Held -
37. In the instant case, the petitioner admits
that she is not the tenant of the disputed
premises and has purchased 1/3rd share of Sri
Ram and not the entire ownership interest in
the disputed premises, therefore, the twin
conditions of applicability of the doctrine of
merger of the tenancy are lacking.
Petition dismissed (E-1)
Cases relied on :-
1. Pramod Kumar Jaiswal & ors. Vs Bibi Husn
Bano & ors. (2005) 2 ARC 921
2. India Umbrella Manufacturing Co. & ors. Vs
Bhagabandei Agarwalla & ors. (2004) 3 SCC
178;
3. T. Lakshmipathi & ors. Vs P.Nithyananda
Reddy & ors. (2003) 5 SCC 150.
4. Ramdas Vs Sitabai & ors. (2009) 7 SCC 444
5. Hardeo Rai Vs Sakuntala Devi & ors. (2008) 7
SCC 46
6. Ghantesher Ghosh Vs Madan Mohan Ghosh &
ors. (1996) 11 SCC 446
(Delivered by Hon'ble Saral Srivastava, J.)

1. Heard Sri H.N. Singh, Senior
Advocate assisted by Sri Vineet Kumar
Singh, learned counsel for the petitioner
and Sri Atul Dayal, Senior Advocate
assisted by Sri Ayush Khanna, learned
counsel for the respondents.

2. The petitioner through pre0sent
petition has assailed the order dated
30.09.2019 passed by Judge, Small Causes
Court, Allahabad in Miscellaneous Case
No.812 of 2017 arising out of Execution
Case No.6 of 2017 rejecting the petitioner's
7 All. Smt. Geeta Devi Vs. Om Prakash & Ors.
127
application under Section 47 of C.P.C. and
order dated 27.11.2019 passed by the
Sessions Judge, Court No.1, Allahabad in
Civil Revision No. Nil of 2019 preferred by
the petitioner against the order dated
30.09.2019.

3. The facts giving rise to the present
petition
are
that
premises
bearing
Municipal No.599 (Old) (New No.1008)
situated
in
Mutthiganj,
Allahabad
(hereinafter
referred
to
as
'disputed
premises') was owned by Smt. Chameli
Devi and Om Prakash (respondent no.1),
Rajendra Prasad(respondent no.2) and Sri
Ram (respondent no.3) grandsons of Smt.
Chameli Devi. Respondent nos.1 to 3
claimed the ownership of disputed premises
on the basis of Will dated 28.12.1976
executed by Smt. Chameli Devi who died
on 30.07.1985.

4. The disputed premises was let out
to one Mishri Lal in the year 1968 on rent
of Rs.96/- per month. The respondent nos.1
to 3 instituted a Suit No.252 of 1989 for
eviction of Mishri Lal from the disputed
premises on the ground of default of
payment of rent and subletting the disputed
premise to Moti Chandra.

5. The suit was contested by Mishri
Lal by filing written statement contending,
inter-alia, that there was no default in
payment of rent. He further denied the
subletting of the disputed premises to Moti
Chandra as according to him Moti Chandra
was his nephew and partner in his business.

6. The suit was decreed by the
judgement dated 08.08.1991 which was
challenged by Mishri Lal in Civil Revision
No.145 of 1991. The District Judge,
Allahabad by judgement and order dated
04.12.1991 allowed the revision on the
ground that respondents (Plaintiff in suit)
have failed to prove that they were
exclusive owner and landlord of the
disputed
premises.
The
respondents
preferred Writ Petition No.11498 of 1992
before this Court challenging the order
dated 04.12.1991 in Civil Revision No.145
of 1991. The writ petition was allowed by
this Court by judgement and order dated
2nd of August, 2006 and the matter was
remanded back to the court below to decide
the revision by the law.

7. It appears that respondent no.3
during the pendency of the Writ Petition
No.11498 of 1992 transferred his 1/3rd
share in the disputed premises to the
petitioner Smt. Geeta Devi W/o Moti
Chandra by sale deed dated 25.02.2003

8. It transpires from the record that after
remand the petitioner filed an application for
impleadment in Civil Revision No.145 of 1991
which was allowed by the revision court by
order dated 28.01.2008 and revision-applicant
(Misri Lal) was directed to move an application
to implead Smt. Geeta Devi as O.P. No.4 in the
case. It is not clear from the record as to
whether Smt. Geeta Devi (petitioner) was
impleaded as O.P. No.4 by the tenant- Mishri
Lal and whether Smt. Geeta Devi after having
been impleaded as the party had contested the
revision.

9. The revision court again allowed the
revision No.145 of 1991 of tenant Mishri Lal by
order dated 27.02.2010 and set aside the order
of the trial court. The order of revision court
dated 27.02.2010 came to be challenged by the
respondent nos.1 and 2 in Writ A No.26732 of
2010 which was dismissed by this Court by
judgement and order dated 25.02.2014.

10. The respondent nos.1 & 2
challenged the judgement of this Court
128 INDIAN LAW REPORTS ALLAHABAD SERIES
dated 25.02.2014 before the Apex Court in
Civil Appeal No.4309 of 2017. The record
reveals that during the pendency of Civil
Appeal No.4309 of 2017 Misri Lal, original
tenant, had died and his wife Smt. Savitri
Devi was substituted as his legal heir. The
Apex Court by judgement dated 21.03.2017
allowed the appeal and decreed the Suit of
the respondent no. 1 & 2. The relevant
extract of the order of the Apex Court is
reproduced hereinbelow:-

"35...Having
regard
to
the
conclusions recorded on the aspect of
default in payment of rent and sub-letting,
both statutorily recognized grounds for
eviction of a tenant under Section 20 of the
Act, it is considered inessential to dilate on
the ground of bona fide requirement and
comparative hardship. In the wake up of
the above, the impugned judgments and
orders of the High Court are set-aside and
the suit of the appellants is decreed in full.
The respondents would vacate the suit
premises at the earliest and in no case later
than three months from today. The appeals
are allowed. No costs."

11. The respondent nos. 1 & 2
thereafter
preferred
an
execution
application registered as Execution Case
No.6 of 2017.

12. In the execution case, the
petitioner preferred an objection under
Section
47
of
C.P.C.
registered
as
Miscellaneous Case No.812 of 2017
contending, inter-alia, that the Suit No.252
of 1989 of the respondents have been
decreed and one of the co-owner Sri Ram
during the pendency of the Suit transferred
his 1/3rd share in the disputed premises to
the petitioner by registered sale deed dated
25.02.2003. Therefore, petitioner became
co-owner of the disputed premises from the
date of purchase of 1/3rd share of Sri Ram
in the disputed premises. It was further
averred that after the judgement of the
Apex Court, tenant Smt. Savitri Devi had
delivered the possession of disputed
premises to petitioner on the instruction of
Sri Ram, respondent no. 3, therefore,
possession of one co-owner will be deemed
to be the possession of all. It was further
pleaded that the decree stood satisfied on
delivery of the possession by the tenant to
the petitioner and proceeding in the
execution case cannot continue. It was also
stated that petitioner has instituted Original
Suit No.746 of 2008 against the respondent
nos.1 & 2 for partition.

13. The respondents filed a reply to
the objection of the petitioner under
Section 47 of C.P.C. contending, inter-alia,
that the alleged delivery of possession by
Smt. Savitri Devi to petitioner is illegal
since the petitioner cannot get possession
of the disputed property in law, claiming
herself to be the co-owner on the basis of
sale deed dated 25.02.2003 executed by Sri
Ram, respondent no.3.

14. The trial court rejected the
objection of the petitioner under Section 47
of C.P.C. by order dated 30.09.2019 on the
ground that the Apex Court had accepted
the case of the respondents regarding
subletting of disputed premises to Moti
Chandra and petitioner Smt. Geeta Devi is
the wife of Moti Chand. The trial court
further held that after the judgement of the
Apex Court all orders in the revision are
deemed to have been set aside, thus, the
petitioner cannot take any advantage of the
order dated 28.01.2008 passed by the
revision court allowing her impleadment
application. The trial court further held that
the status of the parties is to be determined
on the date of institution of the suit, and on
7 All. Smt. Geeta Devi Vs. Om Prakash & Ors.
129
the date of institution of the suit, the status
of the petitioner was that of the wife of
subtenant of the disputed premises, hence,
petitioner could not get possession as coowner of the disputed premises.

15. The trial court further held that
merely because petitioner has obtained an
assignment of rights of the landlord and
ownership of the disputed premises from
one of the co-owner that would not entitle
her to seek possession of the disputed
premises in the capacity of the landlord
from the tenant in the execution of a
decree. The trial court further noted that
suit for partition has been instituted by the
petitioner and she can get possession after
the decision of the suit for partition in her
favour.

16.

The
petitioner,
thereafter,
preferred Civil Revision No. Nil of 2019
against the order dated 30.09.2019. The
revision court also placed reliance upon
Section 111 (d) of the Transfer of Property
Act, 1882 (hereinafter referred to as 'Act,
1882) to conclude that since petitioner has
purchased only a share of one of the coowner to the extent of 1/3rd in the disputed
premises, therefore, there cannot be any
merger of tenancy, consequently, she
cannot obtain possession of the disputed
premises in the execution of a decree for
eviction.

17. Challenging the aforesaid two
orders, learned Senior Counsel for the
petitioner has argued that the petitioner
having purchased 1/3rd share of one of the
co-owner Sri Ram by sale deed dated
25.02.2003 has become co-owner of the
disputed premises, accordingly, the decree
of eviction is also in her favour. Therefore,
tenant, treating the petitioner to be decreeholder and co-landlord, delivered the
possession of the disputed premises in
compliance with the judgement of Apex
Court. Consequently, decree stood satisfied
on delivery of possession of disputed
premises to the petitioner, therefore, the
courts below have erred in rejecting the
objection of the petitioner.

18. It is further urged that the
petitioner is one of the co-owner cannot be
considered to be a tenant or subtenant of
the disputed premises, therefore, her
possession is as per law because of Section
44 of the Act, 1882 and petitioner cannot
be said to be the unauthorized occupant of
the disputed premises. He further submits
that the petitioner is ready and willing to
part with 2/3rd share of the disputed
premises and handover the possession of
the same on any date fixed by the court to
respondent nos.1 & 2, and the petitioner
may be permitted to retain 1/3rd share of
the disputed premises purchased by her
from Sri Ram.

19. Per contra, Sri Atul Dayal learned
Senior Counsel for the respondents would
contend that petitioner, who alleges to have
purchased 1/3rd share of Sri Ram through
sale deed dated 25.02.2003, is not a
member of the family and is a third party,
therefore, she cannot enter into the
possession of the disputed premises. In
support of his aforesaid contention, he has
placed reliance upon the second paragraph
of Section 44 of the Act, 1882. He further
contends that the benefit of Sections 44, 54
and 55(6) as claimed by the petitioner
cannot be extended to her being an outsider
of the family.

20. He further urged that petitioner
has purchased only 1/3rd share of the
disputed premises of Sri Ram and on the
strength of the alleged purchase, she cannot
130 INDIAN LAW REPORTS ALLAHABAD SERIES
obtain possession as the doctrine of the
merger of tenancy contemplated under
Section 111(d) of the Act, 1882 is not
attracted in the case in hand. In support of
his contention, he has placed reliance upon
the following judgements of Apex Court:-

(i). Pramod Kumar Jaiswal and
Others Vs. Bibi Husn Bano and Others
2005 (2) ARC 921;

(ii).
India
Umbrella
Manufacturing
Co.
and Others
Vs.
Bhagabandei Agarwalla (Dead) By LRS
Savitri Agarwalla (Smt.) and Others
(2004) 3 SCC 178;

(iii). T. Lakshmipathi and Others
Vs. P.Nithyananda Reddy and Others
(2003) 5 SCC 150.

21. I have considered the rival
submissions of the parties and perused the
record.

22. Sri H.N. Singh learned Senior
Counsel has argued that the transfer of
1/3rd share of Sri Ram in favour of the
petitioner has been through a sale deed
dated 25.02.2003 which conforms to the
requirement of sale as provided under
Section 54 of the Act, 1882, therefore,
petitioner is entitled to the benefit of
Sections 44 and 55 (6) (a) of the Act, 1882.

23. To appreciate the aforesaid
contention, it would be appropriate to
extract Sections 44 and 55 (6) (a) of the
Act, 1882:-

"44. Transfer by one co-owner.--
Where one of two or more co-owners of
immoveable property legally competent in
that behalf transfers his share of such
property or any interest therein, the
transferee acquires as to such share or
interest, and so far as is necessary to give,
effect to the transfer, the transferor's right
to joint possession or other common or part
enjoyment of the property, and to enforce a
partition of the same, but subject to the
conditions and liabilities affecting at the
date of the transfer, the share or interest so
transferred.

Where the transferee of a share of
a dwelling-house belonging to an undivided
family is not a member of the family,
nothing in this section shall be deemed to
entitle him to joint possession or other
common or part enjoyment of the house.

55. Rights and liabilities of buyer
and seller.--In the absence of a contract to
the contrary, the buyer and the seller of
immoveable
property
respectively
are
subject to the liabilities, and have the
rights, mentioned in the rules next
following, or such of them as are
applicable to the property sold:-

(1)...

(2)...

(3)...

(4)...

(5)...

(6) The buyer is entitled--

(a) where the ownership of the
property has passed to him, to the benefit of
any improvement in, or increase in value
of, the property, and to the rents and profits
thereof."

24. Sri Atul Dayal, learned Senior
Counsel for the respondents while refuting
the submission of counsel for the petitioner
has invited the attention of the Court to the
second paragraph of Section 44 of the Act,
1882 to contend that disputed premises is
7 All. Smt. Geeta Devi Vs. Om Prakash & Ors.
131
dwelling house and petitioner admittedly
being not a member of the family is not
entitled to the protection provided in the
first paragraph of Section 44 read with
Section 55 (6) (a) of the Act, 1882. He
submits that the petitioner has already
instituted a suit for partition and the only
mode which law recognises for delivery of
possession in the case of joint property in
respect of the transfer of ownership by one
of the co-owner to the extent of his/her
share
is
through
the
partition.
The
submission is that after the partition of the
disputed premises by metes and bounds, the
petitioner can get the possession. He
submits that the question as to whether
petitioner is entitled to partition based on
sale deed dated 25.02.2003 is yet to be
determined in the Suit No. 746 of 2008.

25. It would be apt to refer a few
judgements of the Apex Court wherein the
Apex Court has explained the scope of the
second paragraph of Section 44 of the Act,
1882.

26. The Apex Court in the case of
Ramdas Vs. Sitabai and Others (2009) 7
SCC 444 held that in the case of a purchase
of an undivided share of co-sharer by a
third party, possession can be handed over
by partition amicably through mutual
settlement by metes and bounds or by a
decree of the court. Paragraphs 17 to 19 of
the judgement are being extracted herein
below:-

"17. Without there being any
physical formal partition of an undivided
landed property, a co-sharer cannot put a
vendee in possession although such a cosharer may have a right to transfer his
undivided share. Reliance in this regard
may be placed to a decision of this Court in
M.V.S.
Manikayala
Rao
Vs.
M.
Narasimhaswami & Ors. [AIR 1966 SC
470], wherein this Court stated as follows:

"Now, it is well settled that the
purchaser of a co-parcener's undivided
interest in the joint family property is not
entitled to possession of what he had
purchased. His only right is to sue for
partition of the property and ask for
allotment to him of that which, on partition,
might be found to fall to the share of the
co-
parcener
whose
share
he
had
purchased."

18. It may be mentioned herein
that the aforesaid findings and the
conclusions
were
recorded
by
the
Supreme Court by placing reliance upon
an earlier judgment of this Court in
Sidheshwar Mukherjee Vs. Bhubneshwar
Prasad Narain Singh & Ors. [AIR 1953
SC 487], wherein this Court held as
under:-

"All that (vendee) purchased at
the execution sale, was the undivided
interest of co-parcener in the joint
property. He did not acquire title to any
defined share in the property and was not
entitled to joint possession from the date of
his purchase. He could work-out his rights
only by a suit for partition and his right to
possession would date from the period
when a specific allotment was made in his
favour (Emphasis added)

19. In view of the aforesaid
position there could be no dispute with
regard to the fact that an undivided share
of co-sharer may be a subject matter of
sale, but possession cannot be handed over
to the vendee unless the property is
partitioned by metes and bounds amicably
and through mutual settlement or by a
decree of the Court."
132 INDIAN LAW REPORTS ALLAHABAD SERIES

27. The Apex Court in the case of
Hardeo Rai Vs. Sakuntala Devi and
Others (2008) 7 SCC 46 held that a
coparcener's interest can be transferred
subject to the condition that the purchaser
without the consent of other coparceners
cannot get possession of what he has
purchased. Paragraphs 25 and 26 of the
judgement are being extracted herein
below:-

"25. In M.V.S. Manikayala Rao
vs. M. Naraisimhaswami and others: AIR
1966 SC 470 this Court stated the law thus
: (AIR p.478, para 5)

"5....it is well settled that the
purchaser of a coparcener's undivided
interest in joint family property is not
entitled to possession of what he has
purchased."

26. Thus, even a coparcenary
interest can be transferred subject to the
condition that the purchaser without the
consent of his other coparceners cannot get
possession. He acquires a right to sue for
partition."

28. The Apex Court in the case of
Ghantesher Ghosh Vs. Madan Mohan
Ghosh and Others (1996) 11 SCC 446 in
paragraph 4 of the judgement while
considering the purpose of the enactment of
Section
4
of
Partition
Act,
1893
(hereinafter referred to as 'Act, 1893') also
considered the reasons for introducing
Section 44 in the Act, 1882. Paragraph no.
4, 6 & 10 of the judgement is useful in the
context of the present case and are being
reproduced hereinbelow:-

"4. It is in the background of
these rival contentions that we address
ourselves to the consideration of this
question. Before we refer to the cleavage of
judicial opinion amongst different High
Courts on the scope and ambit of Section 4
of the Act, it would be profitable to have a
look at the provision itself. The Statement
of Objects and Reasons for enacting the
Partition
Act,
1893
amongst
others,
provided as under :

"It is also proposed in the Bill to
give the Court the power of compelling a
stranger, who has acquired by purchase a
share in a family dwelling-house when he
seeks for a partition, to sell his share to the
members of the family who are the owners
of the rest of the house at a valuation to be
determined by the Court. This provision is
only an extension of the privilege given to
such
share
holders
by
section
44,
paragraph 2 of the Transfer of Property
Act, and is an application of a well- known
rule which obtains among Muhammadans
everywhere and by custom also among
Hindus in some parts of the country."

It is obvious that the Act intended
to extend the privilege already available to
a co-sharer in a family dwelling house as
per Section 44 of the Transfer of Property
Act, 1882 (hereinafter referred to as the
T.P. Act')...

...

It is obvious that by the time the
Act came to be enacted, the legislature had
in view the aforesaid parent provision
engrafted in section 44 of the T.P. Act to
the effect that a stranger to the family who
becomes the transferee of an undivided
share of one of the co owners in a dwelling
house belonging to undivided family could
not claim a right of joint possession or
common or part enjoyment of the house
with other co-owners of the dwelling house.
7 All. Smt. Geeta Devi Vs. Om Prakash & Ors.
133
Implicit in the provision was the legislative
intent that such stranger should be kept
away from the common dwelling house
occupied by other co-sharers. It was
enacted with the avowed object of ensuring
peaceful
enjoyment
of,
the
common
dwelling house by the remaining co-owners
being members of the same family sharing
a common hearth and or home. It is in the
light of the aforesaid pre-existing statutory
background encompassing the subject that
we have to see what Section 4 of the Act
purports to do. Section 4 of the Act
provides as under:...."

6. In order to answer this moot
question, it has to be kept in view what the
legislature intended while enacting the Act
and specially Section 4 thereof. The
legislative intent as reflected by the
Statement of Objects and Reasons, as noted
earlier, makes it clear that the restriction
imposed on a stranger transferee of a
share-of one or more of the co-owners in a
dwelling house by Section 44 of the T.P.
Act is tried to be further extended by
Section 4 of the Partition Act with a view to
seeing that such transferee washes his
hands off such a family dwelling house and
gets satisfied with the proper valuation of
his share which will be paid to him by the
pre-empting co-sharer or co-sharers, as the
case may be. This right of pre-emption
available to other co-owners under Section
4 is obviously in further fructification of the
restriction on such a transferee as imposed
by Section 44 of the T.P. Act. It is true that
amongst
other
conditions,
Section
4
requires for its applicability that such
stranger transferee must sue for partition
and only in that eventuality the right of preemption envisaged by Section 4 can be
made available to the other contesting Coowners. In this connection, great emphasis
was placed by Dr. Ghosh on the words
such transferee sues for partition as
employed by Section 4. However, it has to
be noted that this section does not provide
as a condition for its applicability that such
stranger transferee must file a suit for
partition. The words transferee sues for
partition are wider than the words
transferee filing a suit for partition . The
latter phraseology is conspicuously absent
in the section. The Partition Act does not
define the words "suing for partition". The
connotation of the term "sue" can be better
appreciated by looking at certain standard
works defining such a phrase. In Black's
Law Dictionary, Sixth Edition, at page
1432 the meaning of the word "sue is
mentioned as under :-

"To commence or to continue legal
proceedings for recovery of a right; to
proceed with as an action, and follow it up to
its proper termination; to gain by legal
process".

In Collins English Dictionary,
1979 Edition, at page 1452, one of the
meaning of the word "sue" has been shown
as under:

"To institute legal proceedings
against".

In Aiyar's Judicial Dictionary, 10th
Edition (1988), at page 980, the word 'sue" is
said to have the following meaning :-

"To take only legal proceedings
against one".

It is further observed that the word
is used most exclusively to prosecute a civil
action against one."

10. We have also to keep in view
the avowed beneficial object underlying the
134 INDIAN LAW REPORTS ALLAHABAD SERIES
said provision. Section 4 of the Partition
Act read with Section 44 of the T.P. Act
represents a well knit legislative scheme for
insulating the domestic peace of members
of undivided family occupying a common
dwelling house from the encroachment of a
stranger transferee of the share of one
undivided co-owner as the remaining coowners are presumed to follow similar
traditions and mode of life and to be
accustomed to identical likes and dislikes
and
identical
family
traditions.
This
legislative scheme seeks to protect them
from the onslaught on their peaceful joint
family life by stranger-outsider to the
family who may obviously be having
different outlook and mode of life including
food habits and other social and religious
customs. Entry of such outsider in the joint
family dwelling house is likely to create
unnecessary disturbances not germane to
the peace and tranquility not only of the
occupants of the dwelling house but also of
neighbours residing in the locality and in
the near vicinity. With a view to seeing that
such
homogenious
life
of
co-owners
belonging to the same joint family and
residing in the joint family dwelling house
is not adversely affected by the entry of a
stranger to the family, this statutory right
of pre-emption is made available to the co-
owners who undertake to buy out such
undivided share of the stranger coowner...."

29. It is perspicuous from the
aforesaid judgements of the Apex Court
that an outsider, who has purchased the
share of co-sharer in an undivided estate,
can seek possession of his/her share only
through partition by amicable mutual
settlement by metes and bounds or
through a decree of the court.

30. The petitioner, being an outsider
and third party to the family of the
respondent, can seek possession of 1/3
share in the disputed premises purchased
by her through the partition of the
disputed property by metes and bounds
through amicable mutual settlement or by
a decree for partition. The petitioner has
instituted Original Suit No. 746 of 2008
for partition wherein the issue whether
petitioner is entitled to a decree of
partition based on the sale deed is yet to
be determined. The respondents have the
right to contest the partition suit by
taking all defences available in law,
including their right of preemption as
provided in Section 4 of the Act 1893.

31. In this view of the fact, the
petitioner cannot get the possession of the
share purchased by her in the disputed
premises until a decree for partition is
obtained by her and the disputed property
has been partitioned in the execution of
the
decree
by
metes
and
bounds.
Therefore, the delivery of possession of
the disputed premises by the tenant
Savitri Devi to petitioner in the execution
of the decree of eviction cannot have any
sanctity in law. Accordingly, this Court
holds that the alleged possession of
petitioner over the disputed premises is
illegal and without authority in law and
the petitioner is not entitled to the benefit
of Section 44 and Section 55 (6) of the
Act, 1882.

32. It would be expedient at this point
to consider the argument of counsel for the
respondent
that
doctrine
of
merger
provided in Section 111(d) of the Act,1882
is not attracted in the instant case. Section
111(d) of the Act, 1882 reads as under:-
7 All. Smt. Geeta Devi Vs. Om Prakash & Ors.
135

"111. Determination of lease.--A
lease of immoveable property determines--

(a) ...

(b) ...

(c)...

(d) in case the interests of the
lessee and the lessor in the whole of the
property become vested at the same time in
one person in the same right."

33. The Apex Court in the case of
Pramod Kumar Jaiswal and Others
(supra) had interpreted Section 111 (d) of
the Act, 1882. In the said case, the
appellant-tenant had challenged the order
of the High Court whereby High Court had
affirmed the order of the trial court
directing the appellant to deposit the rent of
the property @ Rs.4950/- per month being
the rent fixed under the Bihar Rent Control
Act. The challenge of the aforesaid order
was laid by the appellants on the ground
that they have taken assignment of the
rights of certain heirs, therefore, being coowner
and
landlord,
the
lease
has
terminated and they are not liable to pay
rent as fixed by the authority. In the
aforesaid
backdrop,
the
Apex
Court
considered the issue as regards the effect of
purchase of the rights of certain co-owners
landlords of the building by the tenants i.e.
appellants on the lease originally taken by
them which was the basis of their
possession of the building. The Apex Court
rejected the contention of the appellants
and held in paragraph 6 of the judgement,
that a lease can terminate only where the
interests of a lessee and that of the lessor in
the whole property leased become vested at
the same time in one person in the same
right. Paragraph no. 6 & 16 of the
judgement are being extracted herein
below:-

"6 Obviously, the taking of an
assignment of a fraction of the reversion,
or the rights of a co-owner landlord, does
not and cannot bring about a determination
of the lease in terms of Section 111(d) of
the Transfer of Property Act. That a lease
is not extinguished because the lessee
purchases a part of the reversion was laid
down by the Privy Council in Faquir Baksh
vs. Murli Dhar (58 Indian Appeals 75).
Their Lordships after setting out the terms
of Section 111 of the Transfer of Property
Act quoted with approval the statement of
the law made by the trial Court in that case
that for a merger to take place, "The fusion
of interests required by law is to be in
respect of the whole of the property." This
Court in Badri Narain Jha and others vs.
Rameshwar Dayal Singh and others (1951
SCR 153) held that if a lessor purchases
the whole of the lessee's interest, the lease
is extinguished by merger, but there can be
no merger or extinction where one of
several joint holders of the mokarrari
interest purchases portion of the lakhraj
interest. It was held that when there was no
coalescence of the interest of the lessor and
the lessee in the whole of the estate, there
could be no determination of the lease by
merger. We do not think that it is necessary
to multiply authorities in the face of the
plain language of the provision and the
authoritative pronouncements of the Privy
Council and of this Court referred to
above. The position emerging from the
relevant provision of the Transfer of
Property Act is that the lease or tenancy
does not get determined, by the tenant
acquiring the rights of a co-owner landlord
and a merger takes place and the lease gets
determined only if the entire reversion or
the entire rights of the landlord are
purchased by the tenant.
136 INDIAN LAW REPORTS ALLAHABAD SERIES

16. A plain and grammatical
interpretation of Section 111(d) of the
Transfer of Property Act leaves no room
for doubt that unless the interests of the
lessee and that of the lessor in the whole of
the property leased, become vested at the
same time in one person in the same right,
a determination of the lease cannot take
place. On taking an assignment from some
of the co-owner landlords, the interests of
the lessee and the lessor in the whole of the
property do not become vested at the same
time in one person in the same right.
Therefore,
a
lessee
who
has
taken
assignment of the rights of a co-owner
lessor, cannot successfully raise the plea of
determination of tenancy on the ground of
merger of his lessee's estate in that of the
estate of the landlord. It is, thus, clear that
there is no substance in the contention of
the learned counsel for the appellants that
in the case on hand, it should have been
held that the tenancy stood determined and
the application of the landlord for a
direction to the tenant to deposit the rent in
arrears should have been dismissed. The
position of the appellants as tenants
continue and they are bound to comply with
the requirements of the Rent Control Act
under which the order for deposit has been
passed against them. The High Court has
rightly dismissed the revision."

34. In the case of T. Lakshmipathi
and Others (supra), the Apex Court held
that to attract the principle of the merger of
the tenancy provided in Section 111 (d),
interests of the lessee and lessor in the
whole of the property shall vest in one
person at the same time and in the same
right. Paragraph 18 of the judgement is
being extracted hereinbelow:-

"18. In the case at hand, it cannot
be denied, nor has it been denied, that the
appellants herein are not purchasers of the
entire ownership interest in the property.
What they have purchased is interest of
some out of all the co-owners of the
property. The interest of the respondent
No.1, whatever be its extent, has not come
to vest in the appellants. The appellants
have also acquired the tenancy rights in the
property. Thus they have acquired partial
ownership and full tenancy rights. It cannot
be said that the interests of the lessee and
the lessor in the whole of the property have
become vested in the appellants at the same
time and in the same right. The lease
cannot be said to have been determined by
merger. So long as the interests of the
lessee, the lesser estate and of the owner,
the larger estate do not come to coalesce in
full either the water of larger estate is not
deep enough to enable annihilation or the
body of lesser interest does not sink or
drown fully."

35. In the case of India Umbrella
Manufacturing Co. and Others (supra),
the Apex Court while considering the
doctrine of merger under Section 111 (d) of
the Act, 1882 held that one of the co-owner
cannot withdraw his consent midway the
suit to prejudice the other co-owner.
Paragraph 6 of the judgement is being
extracted hereinbelow:-

"6. 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- owners can
file a suit for eviction of a tenant in the
property generally owned by the coowners. (See: Sri Ram Pasricha Vs.
Jagannath & Ors., (1976) 4 SCC 184;
Dhannalal Vs. Kalawatibai & 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
7 All. In Re: Banners placed on roadside In The City of Lucknow Vs. State of U.P.
137
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 were not agreeable to eject the
tenant and the suit was filed in spite of their
disagreement. In 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 filed, the rights of
the parties stand crystallised 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."

36. According to Section 111 (d), a lease
of immoveable property determines in a case
where the interests of the lessee and that of the
lessor in the whole of the property become
vested in the tenant. Thus, two conditions are
mandatory to attract Section 111 (d); that it is
only the tenant who should acquire the property
of the landlord; second, the tenant should
purchase assignment of the rights of the
landlord in the property in its entirety.

37. In the instant case, the petitioner
admits that she is not the tenant of the disputed
premises and has purchased 1/3rd share of Sri
Ram and not the entire ownership interest in the
disputed
premises,
therefore,
the
twin
conditions of applicability of the doctrine of
merger of the tenancy are lacking. Accordingly,
this court finds substance in the argument of the
respondent that the doctrine of merger of
tenancy is not attracted in the present case.

38. Since this Court has held the
possession of the petitioner over the disputed
premises is illegal, therefore, the submission of
counsel for the petitioner that petitioner is ready
to part with 2/3rd share of the disputed premises
and handover the same to respondent nos.1 & 2
is devoid of merit.

39. Thus, for the reasons given above, the
writ petition under Article 227 of Constitution
of India lacks merit and is accordingly,
dismissed. There shall be no order as to costs.
----------
(2020)07ILR A137
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.03.2020

BEFORE

THE HON'BLE GOVIND MATHUR, C.J.
THE HON'BLE RAMESH SINHA, J.

Public Interest Litigation No. 532 of 2020

In Re: Banners placed on roadside In The
City of Lucknow ...Petitioner
Versus
State of U.P. ...Respondents

Counsel for the Petitioner:
Suo motto

Counsel for the Respondents:
C.S.C.

Constitutional Law - Right to Privacy -
The Constitution of India: Article 21 - No
Law is in existence permitting the State
to place the banners with personal data
of the accused from whom compensation
is to be charged. (Para 22)

The Court examined the legitimacy of the
display of photographs, name and address of
certain persons by the district administration
and police administration of the city of
Lucknow
through
banners
seeking
compensation and further to confiscate their
property, if they failed to pay compensation.
(Para 3)

List of cases cited:-