NEMO POTEST ESSE TENENS ET DOMINUS By- Sushma Gowda

Literal Meaning:-No one can at the same time be a tenant and a landlord (of the same tenement).

Origin:-Where the tenant intail has also the reversion in fee in himself, as he cannot hold by himself, as he cannot hold of himself, it is a maxim in law is Nemo Potest Esse Tenens Et Dominus, he shall hold of the superior lord.

Illustration:- Ram Autar Chaudhuri And Ors. vs Kashi Chaudhuri

The Additional District Judge, however, has gone on to hold that the defendants, being tenants in respect of the land in question, cannot claim any right whatever as co-sharers, and in particular they cannot claim the right given to co-sharers by Section 194 that no tenant shall be ejected except with their concurrence in the suit. With this, we cannot agree.

The Additional District Judge appears to have applied the legal maxim that no one can at the same time be tenant and landlord: Nemo Potest Esse Tenens Et Dominus. But the defendants re-present two different juristic units. Alone they are tenants. Along with the plaintiffs they are the landlord. The same juristic entity is not landlord and tenant. To hold otherwise would in effect, mean that a tenant could not purchase a proprietary share in the mahal in which he was a tenant and that if he did so, he could obtain no advantage from doing so, or at least could not obtain the particular advantage described in Section 194.

It appears to us clear that Section 194 will prevent the plaintiffs from obtaining a decree in the present suit. Nor again does there appear to be any injustice accruing from this fact. If two co-sharers are not agreed as to the eviction of a tenant then the tenant must stay on, and it does not appear to us to make much difference that the tenant happens to be one of the co-sharers themselves. We may mention that no special custom has been set up whereby the plaintiffs alone are entitled to collect the whole rent of these holdings.

 A share in their mahal was sold in execution to the defendants. The plaintiffs originally had no co-sharers and naturally collected the whole rental. The right to collects the whole rental disappeared when a share in the mahal was sold to the defendants. For the above reasons we allow these appeals and dismiss both suits with costs to the defendants throughout including costs in this Court on a higher scale.

Explanation:- No one can be tenant and landlord at the same time as it is impossible to be one can either be a tenant or landlord are tenant are the one who pay rent and stay there till due date or till the notice given by landlord within 30 days from leaving house and landlord are the real owner of the premises

Case References:- In the case of Rye vs. Rye reported in (1962) 1 A.E.R.146, the concept of a transfer to oneself came to be enunciated by Lord Justice Denning. The point of law, which came to be decided in that judgment by him, was: “Is it possible for a person to grant a tenancy to himself? or for two persons to grant a tenancy to themselves?”

It came to be answered thus:” At common law, it was clearly impossible Nemo Potest Esse Tenens Et Dominus, A person cannot, at the same time, be both landlord and tenant of the same premises : for as soon as the tenancy and the reversion are in the same hands, the tenancy is merged, that is, sunk or drowned, in the reversion.”

It is further observed: “Neither could a person at common law covenant with himself nor could two persons with themselves. Neither could one person covenant with himself and others jointly. Such a covenant, said Pollock, C.B., is “senseless”. “After enunciating the common law Lord Justice Denning considered the law under the Law of Property Act, 1925.

He has observed that under the said Act where two persons grant a tenancy by writing to one of themselves, such a tenancy would be valid under Section 72(4) of the said Act as a conveyance and the covenants would be enforceable under Section 82(1) of the Act. Hence, notice to quit could be given by the two persons granting the tenancy to one of them who has been granted the tenancy.

Leave a Comment

Share via
Copy link
Powered by Social Snap