Even If Tenant Acquires Share In Leasehold Property, Co-Owners Can Maintain Eviction Proceedings As Lease Continues: Kerala HC Reaffirms

The Kerala High Court, while deciding eviction proceedings, reiterated that even when the tenant acquires a share of the leasehold property, the other co-owners can maintain an action against him since the lease continues to exist. In such cases, the consent of such a tenant, having a fractional interest in the property, is immaterial.The Bench of Justices A.Muhamed Mustaque and P. Krishna Kumar also highlighted that while co-owners need to be parties to such an eviction petition, their consent may be presumed in the absence of evidence to the contrary."There is no dispute as to the general legal proposition that while not all coowners need to be parties to an eviction petition, their consent is required for the co-owner initiating the action and such consent may be presumed in the absence of evidence to the contrary. But this proposition cannot be resorted to nullify a proceeding initiated by all the co-owners against the tenant who purchased only a fractional right of the tenanted property. As mentioned above, the law is well settled that even when the tenant acquires a share of the leasehold property, the other co-owners can maintain an action for eviction against him, as the lease continues to exist," the court said. Essentially, the petitioners were the landlords of a shop room. Pertinently, the respondent/tenant had purchased the rights of two co-owners. Notwithstanding, the petitioners filed an eviction petition against the respondent. They claimed the need for a vacant possession to start a business. While the Rent Control Court allowed the petition, the findings were reversed in appeal. Thus, the present revision petition.Based on the above-mentioned observations, the High Court said that the Appellate Authority “seriously erred” in holding that the tenant's consent was required for his eviction as he had become one of the co-owners.“Consent to sue, either implied or express, is required from a co-owner who shares reversion against the tenant, and not from the tenant/co-owner, as he does not hold any right of reversion against himself.,” the Court explained.It drew its strength from Section 111(d) of the Transfer of Property Act. Explaining this provision, the Court noted that the lease remains intact even if the lessee holds only a fractional interest. Thus, even if the tenant is one of the co-owners, he can be evicted at the instance of the remaining co-owners., the Court said.One of the reasons cited by the Appellate Authority was the execution of Power of Attorney by one of the petitioners for the sale of his right. The same also contained the petitioner's objection to the eviction proceedings. However, the Court pointed out that even after such execution, the petitioner's conduct demonstrated otherwise.“Despite executing a document that may suggest otherwise, the actions and conduct of the 5th petitioner demonstrate his intention to pursue the eviction petition. The relationship between the executant and the Power of Attorney holder is that of principal and agent, and thus the declarations and actions of the executant supersede any contradictory recitals in the deed, in respect of his interest to continue the proceedings.”Thus, the Court found this impugned finding as “grossly incorrect”. Apart from this, the Authority also found that the petitioners had no bona fide in seeking vacant possession.However, the Court observed that the landlord's burden of proof is limited to the need to get a vacant possession. Building on this, the Court also pointed out that as per Section 11(3) of the Act, a landlord can seek eviction “if he bonafide needs the building for his own occupation or for the occupation of any member of his family dependent on him”.Elaborating, the Court said that the landlord only needs to explain the purpose of the requirement and not provide explicit details about the proposed business, such as the feasibility of storing materials, etc.“If such matters are raised during cross-examination and the landlord fails to provide a plausible explanation, it may affect his credibility and suggest that he has failed to establish a bona fide need. But it cannot be said that he is bound to plead such remote aspects in anticipation that such questions may arise later.”Observing thus, the Court concluded that the Appellate Authority took a “misguided approach” by focusing on irrelevant matters. As a result, the impugned order was set aside while restoring the Rent Control Court order. At the same time, the Court granted three months to the respondent for vacating the premises.Case Name: Mariya P.P And Others V. Nalupurayil KadeejaCitation: 2025 LiveLaw (Ker) 29Case No: RCREV. NO. 65 OF 2023Click Here To Read Order

Even If Tenant Acquires Share In Leasehold Property, Co-Owners Can Maintain Eviction Proceedings As Lease Continues: Kerala HC Reaffirms

Gyanvi Khanna

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