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1994 SCC Supl. (2) 558

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CITATION: 1994 SCC Supl. (2) 558




1. This appeal is directed against the judgment and order of the Nagpur Bench of the Bombay High Court in Writ Petition No. 151 of 1981 dated June 25, 1985.

2. The appellant herein Trimbak Vikram Marathe obtained on May 30, 1960 a small piece of land on lease measuring 2 acres and 11 gunthas in Survey No. 2/1 in Village Gohogaon, District Akola, Maharashtra. The grant of lease was from Prayagbai, wife of Namdeo, acting for herself and on behalf of her son Prahalad Namdeo. This lease was renewed by her on March 8, 1965 for a further period of seven years. The appellant remained in possession throughout. On February 14, 1971, the joint owners, i.e. Prahalad Namdeo and Prayagbai went into litigation by means of a suit for partition and in which was impleaded the appellant since he was in cultivating possession of suit-land. The question arose whether the appellant had any tenancy rights. The civil court sent the matter to the Revenue court for determination of the question as required under the Bombay Tenancy Agricultural Lands (Vidarbha Region) Act, 1958.

This 559 became a contentious issue, not only at the trial stage but in the subsequent stages as well, for it was pleaded successfully by Prahalad Namdeo that he was major on the day the first lease was executed and obviously remained so at the time when the second one was executed, suggesting that his mother had no power or authority to create the lease.

Holding that Prayagbai had no authority to bind her son Prahalad towards the creation of leases, the leases by themselves were held bad in law and, therefore, it was held no right stood accrued in favour of the appellant under the provisions of the aforesaid Act. The High Court confirmed that view of the courts below in the writ petition preferred by the appellant.

3. We have heard learned counsel for the parties. At one point of time the parties were thinking of compromising the matter at half and half but it was reported that the talks had failed. Now on merits, it is significant to note that there was no bar on Prayagbai to create lease and at least insofar as her share was concerned. We for the moment keep apart the question whether one cosharer can create a lease of the whole without taking express consent from the other co-sharers. But, undeniably, Prayagbai had the right to create a lease insofar as her share was concerned. The fact that Prayagbai has since died would not make any difference as also the fact that Prahalad has succeeded to her estate being her son. We are thus of the view that the High Court as also the courts below were in error in not holding in favour of the appellant insofar as the right to lease of Prayagbai was concerned. Therefore, in this suit for partition, we order, on allowing this appeal for the property to be partitioned and possession of the appellant preserved over the share allotable to Prayagbai. With regard to the half share of Prahalad Namdeo, the courts below may pass appropriate orders in accordance with law as it does not stand established in the facts and circumstances of this case, that the appellant Trimbak has obtained any right of lease over the share representing the interests of Prahalad Namdeo. We shall not be taken herein to have decided the question of law of a cosharer's right to demise the whole while disposing of this appeal. The appeal is partly allowed. No order as to costs.


Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites


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