Licensee Under Co-Owner Is Not Entitled To Claim Protection U/s 44 Of Transfer Of Property Act: Kerala HC
The Kerala High Court observed that a licensee under a co-owner who is also a resident of the property, is not entitled to claim the protection under Section 44 of the Transfer of Property Act, 1882.
The Appellants, who were Defendants in the suit, filed a second appeal under Section 100 read with Order XLII Rule 1 and 2 of the Code of Civil Procedure, 1908 against the judgment passed by a Munsiff Court, dismissing the First Appeal.
The Bench of Justice C. Pratheep Kumar observed, “As I have already noted above, the protection under the second paragraph of Section 44 of the Transfer of Property Act is available in this case only to the other co-owner Subbayya Gowder. Since the first defendant in this case is not a co-owner, but only a licensee under the other co-owner Subbayya Gowder, he is not entitled to claim the protection under the second paragraph of Section 44 of the Transfer of Property Act."
Advocate Sajan Vargheese K appeared for the Appellant whereas Advocate K Jayakumar appeared for the Respondents.
The main contention raised by the counsel for the Appellants-defendants was to the effect that since they were residing in the building in the plaint schedule property even at the time of family partition, the remedy of the Respondents-Plaintiffs was to file a suit for recovery possession and not one for mandatory injunction.
Rejecting the contention, the Court held, “Since the 1st defendant along with the 2nd defendant is residing in the dwelling-house in the plaint schedule property as liencesees, on termination of licence, they are bound to vacate the plaint schedule property. Since they have refused to vacate the plaint schedule property even after termination of the licence on 12.7.2003, the plaintiffs are entitled to get a decree of mandatory injunction directing the defendants to vacate the plaint schedule premises. Since the suit was filed immediately on termination of license, suit for recovery of possession in not required in this case. Similarly, since the suit is not for pre-emption, absence of any prayer for partition is not fatal to the plaintiff's case. The substantial question of law is answered accordingly.”
The Counsel, while relying on Section 44 of the Transfer of Property Act, also raised an issue since the residential building situated in the plaint schedule property was the family house of the appellants-defendants and the other co-owner, the plaintiffs who were strangers could not seek recovery possession of the same, without a prayer for partition.
The Court said, “…the plaintiffs have not denied the right, title and possession of the other co-owner Subbayya Gowder over the remaining 1⁄2 undivided share in the plaint schedule property and as such absence of the other co-owner Subbayya Gowder in the party array in this case is not at all fatal to the prayer for recovery possession claimed by the plaintiffs.”
The Appellants-defendants also relied on Section 4(1) of the Partition Act, 1893, which discusses partition suit by transferee of share in dwelling-house. The Court said that the benefit of Section 4(1) of the Partition Act applies only to a shareholder of a dwelling house and the first appellant-defendant is not a co-owner of the scheduled property, and as such he is not a shareholder of the dwelling-house situated. He was only a licensee under one of the co-owners Subbayya Gowder, since, the first appellant-defendant was not a shareholder of the dwelling house involved, he was not entitled to get the benefit of Section 4 (1) of the Partition Act also, the court further observed.
Accordingly, the Court dismissed the second appeal with costs.
Cause Title: A. Sivalingappa Gowder @ Sivaraj Gowder and Ors. v. N.A. Anidas and Anr. (Neutral Citation: 2024:KER:34414)
Appearances:
Appellants: Advocates Sajan Vargheese K. and Liju M.P.
Respondents: Advocates K Jayakumar and P.B. Krishnan.
