Karnataka High Court
Govindaraja Mudaliar vs University Of Mysore on 18 June, 1987
Equivalent citations: ILR1987KAR3415
JUDGMENT Nesargi, J.
1. The defendant-appellant has filed this appeal against the judgment and decree dated 12-8-1975 passed by the III Additional District Judge, Bangalore, in R.A. No. 45 of 1975 confirming the judgment and decree dated 31 7-1975 passed by the I Additional Civil Judge, Bangalore City, in O.S. No 341 of 1972.
2. The respondent-plaintiff filed the suit in question against the defendant-appellant for declaration that he is the owner of the suit schedule property, for possession of the suit schedule property from the defendant appellant, for grant of past mesne profits at the rate of Rs. 30/- per month amounting to Rs. 1080/- and for enquiry into future mesne profits. The defendant resisted the suit.
3. The facts relied upon by the plaintiff may be narrated briefly as follows : The suit schedule property was of the ownership of one Gurumurthappa who expired on 19-5-1938 leaving behind his will dated 24-10-193. The suit property and two other properties were bequeathed by Gurumurthappa in favour of the plaintiff. The plaintiff filed Miscellaneous Case No. 374 of 1958 and obtained Letters of Administration with will attached as per Exhibit P. 1 dated 11-11-1960, The defendant was the tenant of the suit property. On 28-6-1967 the plaintiff issued notice as per Exhibit P-5 to the tenant calling upon him to pay the arrears of rent and hand over vacant possession. The defendant sent his reply dated 12-7-1967 as per Exhibit P 6 denying the title of the plaintiff and setting up title in himself. In view of these facts, the defendant incurred forfeiture and became a trespasser.
4. The plaintiff filed the suit on 7-11-1972 characterising the defendant as a trespasser on the ground that he had incurred forfeiture and did not remain a tenant any longer after he sent Exhibit P-6.
5. The defendant contended that the will relied upon by the plaintiff was not genuine and true, he was not served with any notice in Misc. Case No. 374 of 1958 and he was not a tenant under Gurumurthappa or under the plaintiff, but was in possession of the suit schedule property in his own right.
6. The Trial Court held that the plaintiff had proved the title of Gurumurthappa and the genuineness of the will. It has further held that the plaintiff was entitled to possession from the defendant and that the defendant; was liable to pay Rs. 15/- per month as damages for use and occupation. The lower appellate Court has confirmed this decree.
7. The fact that evidence in proof of execution of the will is satisfactory is concurrently found by the two Courts below. Therefore, the contention of the defendant that the will is not a genuine and true one has to fail because this Court cannot re-appreciate the evidence to come to a different finding on fact.
8. Sri K.S. Desai, Learned Advocate appearing on behalf of the appellant, vehemently argued that there is no valid proof of the title of Gurumurthappa to the suit schedule property and that the view of the two Courts below that the recital in the will that Gurumurthappa was the owner of the property is no evidence in law and as such the plaintiff had to fail.
9. The lower appellate Court has placed reliance on the provisions in Section 32(7) read with Section 13 of the Indian Evidence Act while relying on the recitals in the will itself.
10. It is no doubt true that the recital in the will is the one made by Gurumurthappa and is self-serving his interest, but, at the same time it is to be noticed that he was not making a statement in the will to have benefit for himself but he was making the statement in connection with the transaction of bequeathing the property in question to the defendant. It is the transaction contained in the will that is to be borne in mind.
11. Section 32(7) of the Indian Evidence Act reads as follows :
32. Statements written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases.
... ... ...
(7) When the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in Section 13, Clause (a).
The Madras High Court has considered this provision with the provision in Section 13(a) of the Indian Evidence Act and held that statement of facts in the will of the deceased showing that the properties were his self-acquisitions were admissible under the said clause but being self-serving statements they should be carefully scrutinised. This proposition of law has been laid down in Nagammal v. Shankarappa, AIR 1931 Madras 264 Appasami -v.- Ramu, AIR 1932 Madras 267 Venkataramayya -v.- Sheshamma AIR 1937 Madras 538 and A. Rangaswami -v.- A. Subramania . I respectfully agree with the view that under Clause 7 of Section 32 read with Section 13(a) of the Indian Evidence Act, such recital will be mere evidence particularly so in view of the recital being in regard to a transaction concerned in the will. This aspect of the matter has been dealt with in more detail in the decision in A. Rangaswami -v.-A. Subramania4. It is rendered by a Division Bench. In the said case the property in question was purchased by the plaintiff's father in the name of his wife and the sale deed was in her name. But in his will, he stated that he had purchased the property with his own money but in his wife's name. The question for consideration was whether the property was the self acquired property of the father. In this connection the Division Bench of the Madras High Court held that the phrase 'which relates to any such transaction' qualifies the word 'statement' in Clause (7) and that the 'transaction' referred to in Clause (7) would therefore, have reference to the sale deed and since the testator had asserted his right with respect to that transaction in his will, the statement in the will asserting the right is a relevant fact and is admissible in evidence. in the case on hand, Gurumurthappa had recited in the will in relation to the transaction that he bequeathed the property to the plaintiff that he owned. He was the owner of the property. Therefore, I am of considered view that this statement of Gurumurthappa in the will cannot be characterised as a self-serving statement in favour of himself. Hence the weakness that is usually attached to such recitals while considering their evidentiary value will not be available in the case on hand. In this view of the matter, no fault can be found with the conclusion of the two Courts below that the plaintiff had satisfactorily established that Gurumuthappa was the owner of the suit schedule property and he had bequeathed the property by the will in question in favour of the plaintiff. Hence, the decree for declaration as granted by the two Courts below cannot be interfered with.
12. The next important question is whether the plaintiff is entitled to possession of the suit schedule property. The averments made and relied upon by the plaintiff themselves show that the defendant was a tenant under Gurumurthappa in the property and continued to be the tenant under the plaintiff. The defendant disclaimed title of the plaintiff. Therefore his lease got determined by forfeiture.
13. The lease of the defendant got determined by forfeiture in view of Section 111(g) of the Transfer of Property Act. Such forfeiture, in view of the very same provision, leads to determination of the tenancy and that in turn leads to right in favour of the landlord to recover possession.
14. Sri K.S. Desai, Learned Advocate appearing on behalf of the appellant, argued that on the coming into force of the Karnataka Rent Control Act the jurisdiction of the ordinary Civil Court to grant a decree for possession under such facts and circumstances, has been taken away and therefore the decree for possession as passed by the two Courts below cannot be upheld. He placed reliance on the decision of this Court in Mohammed Qasim -v.- M. Mainuddin 1974(1) KLJ 316 (SJ) wherein it is laid down that even where a tenant-defendant had set up title in himself and the lease got determined, provisions of Section 21 of the Karnataka Rent Control Act are attracted and no decree for recovery of possession could be made in favour of the landlord-plaintiff. Sri A. Shivaramiah, Learned Advocate for the respondent, relied on another decision of this Court in Nagaraja Rao -v-. Krishna Rao 1983(1) KLJ 344 (SJ) wherein it has been laid down that where the defendant in a suit for possession did not claim to be a tenant under the plaintiff and even denied the title of the plaintiff, he thereby forfeits the tenancy right if any and there is no bar to order eviction and the Rent Control Act is not attracted.
15. The proposition laid down in the said two decisions need not, in my opinion, be probed further in detail as the law has been settled by the Supreme Court in the decision in V. Dhanpal Chettiar -v.- Yesodai Animal . Seven Members Bench of the Supreme Court has ruled as follows :
"In order to get a decree or order for eviction against a tenant under any State Rent Control Act it is not necessary to give notice under Section 106 T.P. Act. Determination of a lease in accordance with the Transfer of Property Act is unnecessary and a mere surplusage because the landlord cannot get eviction of the tenant even after such determination. The tenant continues to be so even thereafter."
Further on it is laid down as follows while dealing with the requirement of a notice under Section 106 of the Transfer of Property Act :
"On the question of requirement of such a notice under Section 106 T.P. Act the difference in the language of various State Rent Acts does not bring about any distinction. It is not correct to say that Section 106 of the T.P. Act merely providing for termination of a lease either by the lessor or by the lessee by giving the requisite notice is an extra protection against - eviction. The purpose of this provision is merely to terminate the contract which the overriding Rent Acts do not permit to be terminated. Even if the lease is determined by forfeiture under the Transfer of Property Act the tenant continues to be a tenant, that is to say, there is no forfeiture in the eye of law. The tenant becomes liable to be evicted and forfeiture comes into play only if he has incurred the liability to be evicted under the State Rent Act, not otherwise."
(Note : underlining is mine) This decision shows that the decision in Nagaraja Rao -v.- Krishna Rao6 is not good law.
16. It goes without saying that the law as laid down by the Supreme Court squarely applies to the facts and circumstances of this case even as relied upon by the plaintiff himself. When that is so, the decree for possession of the suit schedule property passed by the two Courts below in favour of the respondent-plaintiff Cannot be sustained. Hence this appeal is partly allowed and the decrees passed by the two Courts below are modified by deleting that portion which provides for recovery of possession by the plaintiff from the defendant. No order as to costs in this appeal.