Vikram Maratha Vs. Prahlad Namdeo Hade  INSC 367 (21 September 1993)
M.M. Punchhi, M.M. Yogeshwar Dayal (J)
1994 SCC Supl. (2) 558
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.
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.
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.
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.
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.