Madras High Court
Kamuthi Madalaichamy vs Thangarathina Nadar on 30 April, 1990
Equivalent citations: AIR1991MAD229, AIR 1991 MADRAS 229, (1990) 2 MADLJ140, (1990) 2 MADLW 332, (1991) 1 RENTLR 113
ORDER
1. This civil revision petition is filed by Kamuthi Madalaichamy alias Siva-nendal Perumalsamy Koil Private Trust by its Trustee S. Ponnusamy Nadar against the judgment in R.C.A. No. 2 of 1983 on the file of the learned Subordinate Judge, Rama-nathapuram at Madurai reversing the judgment of the learned District Munsif (Rent Controller), Paramakudi made in H.R.C. O.P. No. 19 of 1980 directing eviction of the respondent herein. Eviction petition was filed by the petitioner herein on three grounds; (1) under S. 10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960 (hereinafter referred to as the Act) for wilful default in payment of rent at Rs. 80/- per month from November, 1978 up to July, 1980 (2) under Section 10(2)(vii) of the Act for wilful denial of title of the landlord and (3) under Sec-
tion 14(1)(b) of the Act, requirement for demolition and reconstruction.
2. The respondent has filed a counter affidavit denying the status of the petitioner that he is the landlord of the petition premises, that he paid the rent to another trustees. Ponnusam Nadar for the said period and that the petitioner does not require the premises for demolition and reconstruction bona fide.
3. The trial Court appointed an advocate commissioner to find out the nature of the building and to submit a report and plan. The learned advocate Commissioner filed his report and plan under Exs, C.1 and C.2 respectively.
4. The trial Court accepting the contention of the petitioner ordered eviction granting two months time to the respondent for vocating the premises. Aggrieved by the said judgment, the respondent herein filed R.C.A. No. 2 of 1983 before the Appellate Authority (Subordinate Judge) who framed three points for consideration (1) whether the tenancy in favour of the respondent by the petitioner is true; (2) whether the respondent has willfully failed to pay the rent and (3) whether the petitioner requires the premises for demolition and reconstruction bona fide? The lower appellate authority found point No. 1 in favour of the petitioner, to wit, that the respondent is a tenant under the petitioner. With regard to the period of wilful default, the lower appellate Court found that the respondent has paid the rent to another trustee C. Ponnusami Nador on behalf of the trust under Exs.B.3 to B.5 and also that the respondent has deposited the rent into the trial Court on the application I. A. 29/83 filed in the trial Court for disposit of arrears of rent and so that there is no wilful default. The respondent has executed a lease deed in favour of another trustee C. Ponnusami Nadar under Ex.B.2 dated 17-9-82 with regard to petition premises. With regard to the plea of bona fide demolition and reconstruction, the lower appellate authority found this point against the petitioner herein. Therefore, the learned appellate authority reversed the judgment of the trial Court and dismissed the petition for eviction.
5. The aggrieved petitioner contended before me that having found that the relationship of landlord and tenancy between the petitioner and the respondent exists the lower appellate authority ought to have ordered eviction of the respondent. Then with regard -to the wilful default, learned counsel for the petitioner contended that the payment of rent to another trustee C. Ponnusami Nadar would not be payment of rent to the petitioner herein when once the respondent was inducted into possession by the petitioner herein after executing Ex. A.1 lease deed. Ex. A.1 lease deed was executed by the respondent in favour of Kamuthi Nadalaichamy alias Siva-nendal Perumalsamy Koil Private Trust represented by C. Ponnusami Nadar. Ex. B.2 lease deed was executed by the respondent in favour of C. Ponnusami Nadar, one of the trustees of the trust. Both the lease deeds were obtained by the individual trustees representing the trust. Therefore, this trust which is the landlord is represented by different trustees under Ex. A.1 and Ex. B.2. Learned counsel for the respondent contended that since the trust is the landlord represented by the trustee who is the petitioner herein, the eviction petition should have been filed by all the trustees or by any one of the trustees represented by the trust making the other trustees as respondent in the action for eviction and also the present petition without impleading all the trustees is not maintainable. Learned counsel for the petitioner pointed out the definition occurring in S. 2(6) of the Act to the word 'landlord' which includes the person who is receiving or is entitled to receive the rent of a building, whether on his own account or on behalf of another or on behalf of himself and others or as an agent, trustee, executor, administrator, receiver or guardian or who would so receive the rent or be entitled to receive the rent, if the building were let to a tenant.
6. Learned counsel Mr. G. Subramanian appearing for the petitioner cited a decision of this Court reported in Naglingam v. Ramaswamy, (1976) 1 Mad LJ 149 : (AIR 1976 Mad 149) where the learned Judge has observed that as far as Rent Control applications are concerned, it is not the ownership of the property that entitled a person to file an eviction petition; but when a person comes under the definition of 'landlord' mentioned in S. 2(6) of the Act, he is entitled to file a petition for eviction. Learned counsel Mr. A. Shanmughavel appearing for the respondent contended that since the trust is the landlord and since all the trustees were not impleaded the eviction petition is not maintainable. For this proposition, he relied on a decision reported in Atmaram v. Gulamhusein, (FB). In this case, the ratio decided is that unless the instrument of trust otherwise provides, all co-trustees must join in filing a suit to recover possession of the property from the tenant. The points that were referred to for decision before the Full Bench in that case were (1) whether some only out of several co-trustees can effectively determine a tenancy by giving notice to quit and (2) whether a suit to evict a tenant can be filed by one or more co-trustees without joining other co-trustees in the suit. In that case the Court ultimately was of the view that unless, the instrument of trust otherwise provides, all co-trustees must join in filing a suit to recover possession of the property from the tenant after determination of the lease, No one single co-trustee, even he be a managing trustee unanimously chosen by the co-trustees, can maintain such a suit against the tenant without joining the other 88-trustees. AH co-trustees must be joined in the suit and if any one or more of them are unwilling to be joined in the suit as plaintiffs or for some reason or the other it is not possible to join them as plaintiffs, they must be impleaded as defendant so that all co-trustees are before the Court. I have gone through the judgment in full and I do not find that there was any such provision as in S. 2(6) of the Madras Act 18/60 defining the 'landlord'. Therefore, I am of the view that the judgment referred to above is not helpful to the respondent since their Lordships have no occasion to decide the question of 'landlord' as per the definition found in Madras Act 18/60. Learned counsel for the respondent cited a decision reported in Duli Chand v. M.P.T.C. Charitable Trust, AIR 1984 Del 145. Even in that case, it was held that the suit filed by one of the co-trustees authorities by a resolution passed by other co-trustees was found not maintainable. That case arose under Ss. 47 and 48 of the Trusts Act and therefore this judgment is not helpful to the respondent. The same view was found in the decision reported in Vavuttu Naicken v. Venkata Sesha Aiyar, AIR 1914 Mad 119 (2). In that case the learned Judges held that a trustee of a temple although in management of the property cannot bring a suit for rent without making the other co-trustees as parties to it. That case was also filed under the Trusts Act and there is no reference with regard to the definition of 'landlord' as found in the Madras Act 18/60. Learned counsel for the respondent also cited a decision reported in Alagiyanathan v. Swaminatha Pillai, (1980) 1 Mad LJ 274 for the proposition that a building owned by two persons jointly let out to a tenant and when a petition is filed for eviction by one person alone without the consent of the other person and without the knowledge of the other person that was not maintainable. In that case, the facts are little different, namely, Rayappa Pillai was the original owner, that the petitioner became a tenant under him, that after the death of Rayappa Pillai his nephews, the respondent therein and his brother, succeeded to the property, that by arrangement, the respondent and his brother were collecting in equal shares the rent of Rs. 27/- paid by the petitioner for the building. In that situation the respondent filed a petition before the Rent Controller, Salem praying for eviction on the ground that the petitioner had committed wilful default in the payment of rent and further more bona fide required the building for his son's occupation. In the said petition, the respondent did not implead his brother as a party nor did he put forth his contention that the eviction of the tenant was sought on behalf of the other co-owner. The tenant in that case raised objection to the maintainability of the petition without the other co-owner also being a party to the proceedings. In those circumstances, the learned Judge in that case held that the eviction petition without impleading the other co-owner is not maintainable. In the instant case, it is not the case of the respondent/tenant that he was inducted into possession by all trustees. Under Ex. A.1 the trustee is the landlord represented by one of the trustees. The eviction petition, if at all is allowed, will enure to the benefit of the trust represented by all the three trustees. Therefore, the judgment referred to in the decision (1980) 1 Mad LJ 274 (supra) can be distinguished as stated above. Learned counsel for the respondent also cited a decision of this Court reported in Shan-mugha v. Subayya, AIR 1922 Mad 317 for the proposition that in a suit for ejectment of a trust property, alt the co-trustees must be made parties. For the same principle, learned counsel for the respondent cited a decision of this Court reported in Vedakannu Nadar v. Nangunert Taluk Singikulam Annadana Chatram, AIR 1938 Mad 982. Learned counsel also relied on a decision of the Supreme Court reported in Kanta Goel v. B. P. Pathak, wherein it was held that the co-heir of deceased landlord constitute the body of landlords and, by consent, implicit or otherwise, of the plurality of landlords, one of them representing them all, was collecting rent and functioned for all practical purpose as the landlord and was, therefore, entitled to institute proceedings for eviction against the tenant v. a landlord. In that case, one of the trustees representing the trust filed an eviction petition for and on behalf of the trust. In the instant case the respondent was inducted into possession of the property under Ex. A. 1 by the trust represented by S. Ponnusami a co-trustee. Therefore, I do not accept the contentions of the learned counsel for the respondent that all the trustees should join in the action for eviction especially when the trust itself is landlord represented by one of the co-trustees. The decision relied on by the learned counsel for the petitioners reported in (1976) 1 Mad LJ : (AIR 1976 Mad 149) (supra) will apply to the facts of this case since as for as Rent Control applications are concerned, it is not the ownership of the property that entitles a person to file an eviction petition, but when a person comes under the definition of 'landlord' mentioned in S. 2(6) of the Act he is entitled to file a petition for eviction. The appellate authority has found that/the petitioner is the landlord agreeing with the view of the trial court. With regard to wilful default, I am of the view that the respondent should have paid the rent to the petitioner or should have deposited the rent into court by filing a separate application under the Act if he has got any doubt as to whom the rent has to be paid. The respondent has not chosen to do so. Having obtained possession as a tenant, it is not open to the respondent to deny the relationship of landlord and tenant. But the learned counsel for the petitioner has not seriously made any argument with regard to the plea of bona fide requirement for demolition and reconstruction. Even the lower appellate authority has negatived this contention of the petitioner and I accept the same. Therefore, the respondent is liable to be evicted on the grounds of wilful denial of title and wilful default in the payment of rent. The order of the lower appellate authority is set aside and the order of the trial court is restored and the eviction petition is ordered. But in the circumstances, there is no order as to costs. C. R. P. is allowed. Time to vacate three months.
7. Order accordingly.