Bombay High Court
Balaji S/O Sitaram Kakde vs Omprakash Karamnarayan Khurana on 20 November, 2008
Author: C.L.Pangarkar
Bench: C.L.Pangarkar
Second Appeal no.415 of 01. 1
IN THE HIGH COURT OF JUDICATUTRE AT BOMBAY,
NAGPUR BENCH NAGPUR.
SECOND APPEAL NO. 415 OF 2001.
APPELLANTS: 1. Balaji s/o Sitaram Kakde,
aged 70 years, Businessman,
r/o Ambedkar Statue, r/o Wani,
Tq. Wani, Distt.Yavatmal.
2. Vijay s/o Balaji Kakde,
aged about 42 years, Occu: Businessman,
r/o Wani, Tq. Wani, Distt.Yavatmal.
: VERSUS :
RESPONDENT: Omprakash Karamnarayan Khurana,
aged about 65 years, Businessman,
R/o Gandhi Chowk, Wani, Tq. Wani,
Distt.Yavatmal.
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Mr.S.N.Dhangare, Advocate for the appellants.
Mr.A.B.Patil, Advocate, for the respondent.
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CORAM: C.L.PANGARKAR,J
DATED : 20th November, 2008.
ORAL JUDGMENT:
1. This second appeal is at the instance of defendants who ::: Downloaded on - 09/06/2013 14:04:45 ::: Second Appeal no.415 of 01. 2 have lost in both the courts below. Parties hereinafter shall be referred to as the plaintiff and the defendants.
2. The facts giving rise to the appeal are as follows -
One Kamaladevi Vaidya was owner of the suit shop. She had let out the said shop to defendant no.1. The rent was Rs.100/-
per month. The defendant was running a grain shop in the said premises. Defendant no.2 is the son of defendant no.1. Kamaladevi died on 17/4/1981. She had executed a Will on 8/4/1981 whereby she had bequeathed her property to her three daughters namely;
Shalinibai Kulkarni, Vidya Nawalekar and Shila Deo. The suit shop fell to the share of Shalinibai. The plaintiff purchased the said suit shop from Shalinibai by registered sale-deed dated 12/4/1985. The plaintiff as well as Shalinibai informed defendant no.1 by registered letter that the house has been purchased by the plaintiff and that the rent should be paid to the plaintiff w.e.f. May, 1985. Since then defendant no.1 started paying rent to the plaintiff. Prior to that, defendant no.1 was paying rent to Shalinibai. It is alleged that defendant no.1 also informed the plaintiff that he should collect the ::: Downloaded on - 09/06/2013 14:04:45 ::: Second Appeal no.415 of 01. 3 rent from the defendant before 5th of each month and in case he did not, he would send the rent after deducting money order commission. It is alleged further that he started paying rent to the plaintiff by money order after deducting commission. However, since June, 1986 the defendant no.1 stopped paying the rent.
Before that, however, the plaintiff had instituted a rent control proceeding against defendant no.1 for seeking permission to determine the tenancy of defendant no.1. In that proceeding, defendant no.1 filed an application contending that one Pophali was also demanding rent from him and therefore he intended to file an interpleader suit. The defendant actually filed interpleader suit against the plaintiff as well as Pophali. The plaintiff in view of the fact that the defendant filed an interpleader suit, withdrew the application before the rent Controller contending that the defendant had renounced his character as a tenant and had denied the landlordship of the plaintiff. He, therefore, instituted the suit alleging that defendant no.1 has forfeited his tenancy. The plaintiff also issued notice of forfeiture and determination of the tenancy.
Further, it is pleaded by the plaintiff that defendant no.1 had also ::: Downloaded on - 09/06/2013 14:04:45 ::: Second Appeal no.415 of 01. 4 instituted a suit for specific performance of contract against the plaintiff as well as Shalinibai Kulkarni - the vendor of the plaintiff.
That suit was also dismissed. The court negatived the contention of the plaintiff that the transfer of the suit property by Shalinibai in favour of the plaintiff was fraudulent and held that it was perfectly valid. The plaintiff seeks possession of the suit premises on the ground of forfeiture of tenancy and determination of tenancy.
3. Defendant no.1 filed written statement and did not dispute that he was inducted as tenant by Kamladevi. His contention is that he was paying rent to Shalinibai Kulkarni after death of Kamaladevi for and on behalf of her sister also. He submits that Pophali brothers had also issued a notice to him calling upon him to handover possession of the strip of 18' X 3' from the suit shop since they had purchased the same from Shilabai Deo.
It is contended that, therefore, the defendant was compelled to file an interpleader suit being suit No.55 of 1986. It is contended that the defendant had, in fact, moved to Rent Controller stating that defendant no.1 has denied the title of the plaintiff and Rent ::: Downloaded on - 09/06/2013 14:04:45 ::: Second Appeal no.415 of 01. 5 Controller should, therefore, drop the proceedings and therefore proceedings before the Rent Controller were dropped. The defendant contended that the plaintiff's right in any way was denied by the defendant. Naturally, therefore, according to the defendants, the plaintiff cannot seek ejectment without order of the Rent Controller. The defendant no.2 had contended that he is not concerned with the suit premises at all. He sits in the suit shop as a member of the joint family.
4. The learned judge of the trial court found that the defendants had denied the title of the plaintiff as landlord. The suit was not bad without obtaining permission of the Rent Controller.
The notice terminating the tenancy is valid and the plaintiff was entitled to possession. The appellate court also concurred with the findings recorded by the trial court and dismissed the appeal preferred by the defendants.
5. This appeal was admitted by this court on the following substantial questions of law.
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1. Was it an error of law on part of both the courts below in finding that there was forfeiture of tenancy of the appellants/defendants particularly in the light of filing of inter pleader suit by the appellants vide C.S.No.55/86 ?
2. Whether it could be said that the notice for ejectment issued by the respondent was legal in the light of the fact that there was never surrender of forfeiture of tenancy when the tenant himself filed a suit for interpleader suit ?
6. Before dealing with the substantial questions of law, a few admitted facts may be narrated. Smt.Kamladevi was the original owner of the suit premises. She died leaving behind her three daughters. She executed a Will whereby she bequeathed the suit property as well as other property to her three daughters. The part of the suit premises was bequeathed in favour of one daughter namely Shalinibai Kulkarni. The present appellant is a tenant in the suit premises. The present respondent/plaintiff has purchased suit house from Shalinibai Kulkarni. The present respondent/plaintiff filed rent control proceedings and they were withdrawn. Shalinibai had executed a sale-deed in favour of the plaintiff in respect of the ::: Downloaded on - 09/06/2013 14:04:45 ::: Second Appeal no.415 of 01. 7 suit premises.
7. The sequence of the events is more material here for properly dealing with the questions. The original landlord i.e. Kamladevi had inducted defendant no.1 as a tenant. By will she had bequeathed the property to her three daughters and she died on 17/1/1981. In para no.2 of the written statement, the appellant/defendant contend that he paid rent to Shalinibai for and on behalf of all her sisters. He does not enter the witness box, however, to substantiate the case that the rent was being paid to Shalinibai as an agent for her sister also. An adverse inference must be drawn against the defendant since he did not enter into the witness box to substantiate his claim. The contention appears to me is false. Exh.45 is the copy of the plaint in Civil Suit No.13 of 1985 instituted by the defendant against Shalinibai and the present respondent/plaintiff for the specific performance of the contract. In this suit No.13 of 1985, the defendants/appellants have made following averements.
::: Downloaded on - 09/06/2013 14:04:45 ::: Second Appeal no.415 of 01. 83. One of the portions which fell to the share of the defendant no.1 is a shop described as below :
Shop situate at Wani near Gandhi chowk situate on nazul plot nos.118-114 sheet no.19A area 20' X 18' approximately 360 sq. ft. facing west and bounded as follows :-
On the East : Public road.
West : residential house of the defft.no.1.
South ig : shop of Shri Chunibhai and
North : Shop premises belonging to deft.no.1.
This shop is single storied with corrugated sheet roof and built of brick and earth.
5. That the defendant no.1 being the sole earning member in her family it appears that she is unable to maintain her family comfortably in her megre salary and was always in need of money. Although the plaintiff has been prompt in paying the rent regularly she often used to demand advance money for her domestic needs. That the plaintiff noticing the plight of the defendant no.1 used to help her by giving her monetary help as and when required. Slowly and gradually during the last 2-3 years the amount so advanced totalled Rs.12,700/- (Rs.Twelve thousand seven hundred). Since the defendant used to ::: Downloaded on - 09/06/2013 14:04:45 ::: Second Appeal no.415 of 01. 9 demand Rs.200/- or Rs.300/- except for some isolated instances when she requested Rs.1000/- parties were not aware as to the amount that it exceeded Rs.12,000/-.
6. When the plaintiff apprised the defendant no.1 that inspite of his regular payment of rent every month the defendant needs additional money and that the said advance totalled to Rs.12,700/- he is unable to advance any further sum and that the defendant no.1 should arrange to repay the same.
7. That when the plaintiff expressed his unwillingness to financial accommodation to the defendant no.1 she assured him that she would sell the suit shop to the plaintiff and that he need not apprehend about the repayment. She further assured plaintiff that the amount so far advanced would treated towards earnest and that the same would be capitalised towards sale proceeds.
This talk took place some in the month of 1st or 2nd week of April, 1983. However, the plaintiff informed the defendant no.1 that even in such circumstances, she would not advance any further sum unless the defendant no.1 showed her willingness to finalise the bargain if she wanted to sell the suit shop to the plaintiff. The defendant no.1 informed plaintiff that she would again see the plaintiff in April, 1983 itself and would speak about the same. For some period the matter rested at that ::: Downloaded on - 09/06/2013 14:04:45 ::: Second Appeal no.415 of 01. 10 every stage".
8. These averements and admission of the defendants/appellants in that suit clearly indicate that defendants/appellants not only paid the rent to Shalinibai as landlord but even accepted her exclusive ownership of the suit premises. This civil suit No.13 of 1985 was instituted by the appellant on 7/4/1985. The written statement in the present suit was filed by him in 1991. Civil Suit No.13 of 1985 was dismissed by court in 1990. This written statement in the present suit was filed after the suit No.13 of 1985 was dismissed. The present appellants/defendants could not have, therefore, taken a stand contrary to the stand taken in the suit for specific performance.
This is why it must be said that the defendant's contention that he did not pay rent to Shalinibai as exclusive landlord is not correct.
The pleadings in the earlier suit are enough to conclude that the defendant accepted Shalinibai as an exclusive landlord and he paid rent accordingly to her.
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9. The present plaintiff claims to have purchased the suit house from Shalinibai by sale deed dated 12/4/1985 (Exh.45).
Exh.53 is a letter written by defendant/appellant to respondent/plaintiff. It is dated 30/5/1985. The contents of this letter go to show that the defendant/appellant informs the plaintiff/respondent that Shalinibai has informed him that the rent from may 1985 be paid to the plaintiff and the plaintiff should come to the shop before 5th of every month and collect the rent. It is further informed to the plaintiff by this letter that if rent is not collected by 5th he would send the rent by money order after deducting the commission. It is alleged in the plaint that the defendants paid rent up to June, 1986 by money order. This fact is not disputed by the defendants in the written statement at all. Both the above acts i.e. writing a letter and asking the plaintiff to collect the rent every month and thereafter sending the rent by money order for almost a year is nothing short of attornment of tenancy in favour of the plaintiff. Once a tenant attorns the tenancy in favour of a person who derives the title from erstwhile landlord, he is estopped from denying the status of the landlord as a landlord.
::: Downloaded on - 09/06/2013 14:04:45 :::Second Appeal no.415 of 01. 12 Section 111 (g) of the Transfer of Property Act comes into play immediately upon such denial. The plaintiff instituted proceedings under the C.P. and Berar Rent Control Order for seeking permission to issue notice to determine the tenancy of the defendants/ appellants. Exh.63 is the certified copy of the application. The defendants had raised a preliminary objection before the rent Controller vide Exh.64 and had contended that Pophali brothers were also claimed to have purchased the suit property from Sheelabai Deo and they were also claiming possession and therefore, the parties i.e. the plaintiff and Pophali brothers should decide who is the actual landlord. After this application (Exh.64), defendants/appellants filed another pursis Exh.65 before the Rent Controller stating that he intends to file an interpleader suit. Since such a statement was made in writing by the defendants, the plaintiff filed a pursis (Exh.69) withdrawing the application before the Rent Controller. In view of the fact that the defendant had contended that he intends to file interpleader suit before the civil court, the Rent Controller could not even otherwise have entertained an application under clause 13 of the Rent Control ::: Downloaded on - 09/06/2013 14:04:45 ::: Second Appeal no.415 of 01. 13 Order at all. The Rent Controller can entertain proceedings before him only when there is admitted relationship of landlord and tenant between the parties. The respondent/plaintiff was, therefore, perfectly justified in withdrawing the application before the Rent Controller.
10. It was contended by Shri Dhanagare, the learned counsel for the appellants/defendants that the appellants were justified in filing an interpleader suit since plaintiff as well as Pophali brothers were demanding possession from him. In this regard it may be observed that Pophali had given notice to defendants on 8/7/1985 as can be seen from the contents of the plaint in Civil Suit No.55 of 1986 at Exh.48. Civil Suit No.55 of 1986 was filed on 28/4/1986.
However, rent was paid to the plaintiff/respondent till June, 1986.
Thus, from May 1985 to June 1986 the defendants without any protest paid rent to the plaintiff. This he did even after notice of Pophali brothers in July, 1985. He had in fact therefore no reason to file interpleader suit.
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11. The above discussion makes it very clear that the defendants had paid the rent to the plaintiff continuously for a period of more than a year. He had himself informed the plaintiff that he should collect the rent from the defendants. We have also seen that, therefore, the defendants had attorned the tenancy. On account of attornment of such tenancy, the defendants had no right in fact to file an interpleader suit. One may refer to the provisions of Rule 5 of Order 35 of Code of Civil Procedure. Rule 5 prevents a tenant from compelling a landlord to interplead. Thus, the interpleader suit itself was not maintainable. Shri Dhanagare, learned counsel, submits that Pophali brothers were the owners of the part of the shop. They may be owner of the part of the shop that may or may not be correct but this plaintiff was the owner of the property and defendants had attorned the tenancy in favour of the plaintiff. The plaintiff was in fact claiming the possession only of that portion of property which was conveyed to him under the sale-deed. Shop was described as having area of 260 square feet.
There was, therefore, no justification on the part of the defendant to file interpleader suit. Filing of interpleader suit is nothing short of ::: Downloaded on - 09/06/2013 14:04:45 ::: Second Appeal no.415 of 01. 15 renouncement of character and setting up title in third person. This act, therefore, must fall within sub-clause 2 of clause (g) of Section 111 of the Transfer of Property Act. The defendants by filing an interpleader suit have certainly incurred for forfeiture.
12. The plaintiff has issued a notice of termination of tenancy vide Exh.42. The courts below have held concurrently relying on decision of this court in reported 1990 Mh.L.J.18 (Ashwinikumar Govardhandas Gandhi and anr. .vs.. Gangadhar Dattatraya Gadgil) that permission of the rent Controller is not necessary before issuing quit notice where the tenant has incurred forfeiture.
This court has made following observations.
23. In the result, our answer to the question referred would be as follows -
"The provisions of clause 13(1)(a) of the C.P. and Berar Letting of Houses and Rent Control Order, 1949, would come in the way of giving a notice without obtaining the permission of the Controller only in respect of clauses covered by conditions (1) and (3) of clause (g) of Section 111 of the Transfer of Property Act. That prohibition will not apply to ::: Downloaded on - 09/06/2013 14:04:45 ::: Second Appeal no.415 of 01. 16 cases covered by condition (2) of clause (g) of section 111 of the Transfer of Property Act, and since the present case falls under the latter category, the permission of the Controller would not be necessary for giving a notice determining the lease as contemplated by clause (g) of section 111 of the Transfer of Property Act. The suit was therefore maintainable, even without obtaining the permission of the Controller. ig The reference is answered accordingly."
This case shall, now, go back to the learned Single Judge and we direct that the papers be placed before the learned Single Judge for disposal according to law.
13. It is clear that the quit notice was valid without permission of the Rent Controller. The suit was, therefore, rightly decreed by the courts below. The substantial questions of law are answered accordingly and the appeal is dismissed with costs.
Shri Dhanagare, learned counsel, makes a request to ::: Downloaded on - 09/06/2013 14:04:45 ::: Second Appeal no.415 of 01. 17 grant eight weeks' time to vacate the premises. Decree may not be executed for a period of eight weeks.
JUDGE chute ::: Downloaded on - 09/06/2013 14:04:45 :::