Madras High Court
Jessie Thavamani vs Liakath Basha on 14 December, 1995
Equivalent citations: 1996(1)CTC398, (1996)IMLJ304
Author: Ar. Lakshmanan
Bench: Ar. Lakshmanan
ORDER AR. Lakshmanan, J.
1. The tenant is the petitioner in this revision. The respondent filed the Rent Control Original Petition No. 18 of-1987" on the file of the Rent Controller, Vellore under Sections 10(2)(1) and 10(3)(a)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 as amended by the Act 28 of 1973. The respondent is the owner of the property in question, having purchased the same under the registered sale deed dated 17.7.1984 from Dr. Margaret Mathaniel for a sum of Rs. 24,000. The petitioner is the tenant and was paying a rent of Rs. 65 per month from the year 1980. The respondent after the purchase, directed the petitioner herein to pay the rent and attorned the tenancy on him. The respondent issued registered notice through his lawyer on 26.7.1984, calling upon the petitioner to pay the rent from the date of purchase and also to deliver the property within three months, since he required the same for his personal occupation. He also terminated the tenancy of the petitioner. The petitioner, though received the notice, did not comply with the demands. Another notice was sent on 17.11.1986. According to the respondent, the conduct of the petitioner in not paying the rent from 17.7.1984 is deliberate and willful and therefore, she is liable to be evicted. The respondent also states that he required the building for the purpose of his own occupation after demolition and reconstruction, since the respondent is residing in a rental building. He has no other house at Vellore and therefore, requires the building for his own occupation. Therefore, the respondent/landlord filed the Rent Control Original Petition seeking for eviction of the petitioner on the ground of wilful default in the payment of rent and also for his own occupation.
2. The petitioner filed a counter in the rent control petition. According to her, the petition for eviction is not maintainable and there is no relationship of landlord and tenant and there is no tenancy of any kind whatsoever. According to her, the respondent is neither the owner of the petition mentioned property, nor he has let out to the petitioner. The alleged sale in his favour is not true, valid, legal and binding on others, much less this petitioner herein. The sale deed is a fraudulent one and was created to defeat the legal and valid rights of the petitioner. The petitioner has been a tenant of the entire door No. 1/3 and has been paying the rent for the neighbouring area as well. The original owner agreed to sell the entire area to the petitioner herein and two others and in view of the agreement to sell and further contracts, the original owner has no other go except to sell to the petitioner, the petition mentioned property. In part performance to sell, the petitioner's possession has been converted into full and absolute possession and the tenancy between the petitioner and Dr. Margaret Mathaniel, the previous owner has been put to an end and the original owner asked the petitioner not to pay the rent and allowed the petitioner to enjoy fully as absolute owner thereof. From that time onwards, the petitioner enjoyed the petition mentioned property as her own property. Therefore, no rents arc payable from the date of agreement to sell. This apart, there is no attornment of tenancy. The petitioner never agreed to pay rent to the respondent herein. There is a suit pending before the Additional Subordinate Judge, Vellore in O.S.276 of 1984 in respect of the petition mentioned property between the same parties. The petitioner herein as plaintiff filed the said suit for specific performance of contract to sell against the original owner and others and if the suit is decreed, automatically, the sale deed in favour of the respondent will become invalid. The other two purchasers are also impleaded as defendants 3 and 4. In view of this suit, the petition for eviction has no basis at all. Since the title of the respondent is in question, the petitioner is not, liable to pay any rent and also liable to be evicted from the property in question. The respondent is not a bona fide purchaser for value, without notice of rights of the petitioner herein. It is false to allege that the respondent requires the property for his own use and occupation and for demolition and reconstruction. The respondent is living in a very big house of his own in the same street and therefore, he does not require the property in question for any purpose. There arc no bona fides in his alleged requirement. The building is not in a dilapidated condition and it requires no demolition or reconstruction. The respondent docs not want to occupy the same, nor wants to reconstruct. He is not residing in a rental building. He has other houses in Vellore town. The cause of action alleged is false. The vendor did not ask the petitioner to pay the rent to the respondent herein, nor directed any attornment.
3. The respondent herein as landlord filed Exs.A-1 to A-11. The petitioner herein has not filed or marked any documents on her side. The respondent has examined himself as P.W.I and one Punithan was examined on behalf of the respondent herein as R.W.I.
4. The Rent Controller dismissed the petition for eviction on all grounds. Aggrieved by the said order of rejection, the respondent herein filed an appeal before the Subordinate Judge, Vellore in R.C.A. No. 5 of 1990 under Section 23(D) of the Tamil Nadu Buildings (Lease and Rent Control) Act. The Appellate Authority (Sub Court, Vellore) formulated five points for consideration. While considering the questions; as to whether there is any relationship of landlord and tenant between the respondent and the petitioner and as to whether the petitioner herein is continuing in possession of the property from 1.2.1984 on the basis of the agreement to sell and as owner thereof and also as to whether the petitioner has committed default in payment of monthly rent, the Appellate Authority rejected the claim of the petitioner/tenant herein that she is not continuing in possession of the property pursuant to the agreement to sell and therefore, the case put forward by the tenant is not at all acceptable. The Appellate Authority has also held that the tenant has not filed any document in order to show that she is continuing in possession from 1.2.1984, pursuant to the agreement to sell the property in question. The Appellate Authority also held that the non-payment of rent by the tenant to the landlord is wilful. In fact, the Court rejected the argument advanced by the counsel for the tenant that the tenant need not pay the rent, since the tenant has not proved that she has been in possession of the property pursuant to the agreement to sell dated 1.2.1984. The Court has specifically held that the tenant has committed wilful default in payment of rent from 17.7.1984 onwards. However, the Court has rejected the case of the landlord that the property in question is in a dilapidated condition and therefore, the same has to be demolished and reconstructed. The Appellate Authority concluded its judgment holding that there is relationship of landlord and tenant between the parties, that the tenant has not proved her possession pursuant to the agreement to sell dated 1.2.1984, enjoying the property in her capacity as purchaser and that the tenant has committed wilful default in payment of rent and allowed the appeal. Aggrieved by the order of the Appellate Authority, the tenant has filed the above revision in this Court.
5. I have heard Mr. Chidambarasubramaniam for the petitioner and Mr. M.N. Muthukumaran for the respondent/ landlord. Mr. Chidambarasubramaniam argued that the respondent has not proved the relationship of landlord and tenant between himself and the petitioner herein-and therefore, the Appellate Authority ought to have dismissed the Rent Control Appeal. He further contended that the Appellate Authority has erred in passing the order of eviction, especially when the landlord has not chosen to examine his vendor. He has further submitted that the relationship of landlord and tenant between the revision petitioner and the respondent herein ceased the exist as early as on 1.2.1984 i.e., the date of execution of the sale agreement by the revision petitioner's erstwhile landlord in respect of the petition mentioned premises and since the respondent/landlord has, at no point of time, received any rent from the revision petitioner, the respondent is not entitled to obtain an order of eviction against the revision petitioner herein. According to Mr. Chidambarasubramaniam, the respondent has failed to prove the attornment of tenancy. He also contended that the Appellate Authority has failed to note that the sale agreement dated 1.2.1984 between the revision petitioner and the vendor of the respondent has been filed along with the plaint in O.S.276 of 1984. He has submitted that the Appellate Authority has decided all the issue involved in the suit O.S.276 of 1984 and passed the order of eviction against the revision petitioner herein. It is contended that the tenant has not committed default in payment of rent. Likewise, it is contended that the respondent has not proved his bona fide in respect of his request for eviction on the ground of personal occupation. Per contra, Mr. M. N. Muthukumaran, contended that the order of the Appellate Authority ordering eviction is perfectly valid, legal and is not liable to be interested with by this Court.
6. I have been taken through the entire pleading filed by both the parties and also the evidence let in, both oral and documentary and the judgments which are impugned in this civil revision petition. At the time of hearing, the plaint filed in O.S.276 of 1984 by the petitioner herein, before the Sub Judge, Vellore and the written statement filed by the owner of the property Dr. Margaret Mathaniel and the purchaser of the same viz., the respondent herein and the copy of the receipt dated 1.2.1984 (which has already been filed as document in the civil suit O. S. No. 276 of 1984) have been placed before me. I gave an anxious consideration to the rival contentions raised by both the parties. I am unable to countenance any of the arguments advanced by the learned counsel for the tenant for the reasons stated infra. It is the specific case of the petitioner/tenant that the relationship of landlord and tenant had come to an end as she entered into an agreement to purchase the property along with two others and the requirement of the building for own occupation by the respondent is not bona fide. According to the respondent/landlord, the relationship between the landlord and the tenant still continues and the tenant has committed default in payment of rent even after giving two notices of the purchase of the property by the respondent herein.
7. The Rent Controller, as seen earlier, accepted the defence taken by the tenant that there is no relationship of landlord and tenant between the respondent and the petitioner after the agreement to sell and therefore, there is no liability to pay the rent at all subsequent to the date of agreement. In this view, he dismissed the eviction petition. However, on appeal, the Appellate Authority has taken the view that notwithstanding the agreement of sale, between the respondent and the petitioner the relationship of landlord and tenant continues and therefore, there is a clear wilful default in the payment of arrears of rent by the petitioner to the respondent herein and that the respondent has also established his bona fide requirement of the premises. In this view, the Appellate Authority ordered the petitioner's eviction. The said order of eviction has been challenged in this revision.
8. Mr. Chidambarasubramaniam contended that the view taken by the Appellate Authority that the relationship of landlord and tenant between the respondent and the petitioner subsists even after the agreement to sell is erroneous and once the agreement of sale is entered into between the parties, the relationship of landlord and the tenant automatically cease in view of the provision contained in Section 53A of the Transfer of Property Act. As stated earlier, a Xerox copy of the receipt (agreement) for Rs. 1,000 as advance of sale of the property, given by Dr. Margaret Mathaniel, dated 1.2.1984 has been placed before me at the time of hearing. It is to be noticed here that this document has not been filed and marked in the rent control proceedings. However, the same has been filed in the original suit O.S. No. 276 of 1984 before the Sub Court, Vellore which is a suit for specific performance between the parties to the present proceedings. The said receipt reads as follows:-
"Received with thanks from (1) Mrs. Jessie Thanvamani W/o. Late Thavamani (2) Mrs. Jayalakshmi W/o. Swaminathan and(3) Mr. A. Isaac S/o. Arul Prasadam of Vellore the sum of Rs. 1000/- One thousand only as advance for the sale of my houses and the vacant site situated in door No. 1/3, Military Bazaar St., Vellore, Vellore 632 001. The balance of Rs. 89,000/- Eighty nine thousand only should be paid and the transactions finalised and registered on or before 15.5.1984 otherwise the transactions stand cancelled and the advance will be forefeited"
It is seen from the above recent that there is nothing to show that parties have agreed that the relationship of landlord and tenant should cease and the tenant's possession should be traced only to the agreement of sale. In my opinion, by merely entering into an agreement of sale, the tenant cannot acquire any right in the property. If possession is traceable to the agreement of sale, then such possession can be sustained on the basis of the principle of part-performance under Section 53-A of T. P. Act. In this case, even if there has been an agreement of sale and advance has been paid in pursuance of that agreement, no agreement has been filed before the rent control court and none of the parties have spoken to about the agreement containing a term putting an end to the relationship of landlord and tenant and that the continued possession by the tenant should be traced only to the agreement of sale. The agreement of sale does not refer to the fact that the tenant's possession is traceable to the lease agreement. Therefore, I am of the view that the possession of the petitioner/tenant cannot now be treated as possession under the agreement of sale. Admittedly, the tenant has not paid the rent even after the notice was issued to her. Therefore, the claim of the tenant that under the agreement the liability to pay the rent has ceased, cannot at all be accepted. The finding of the Rent Controller, in my opinion, is clearly wrong. The Rent Controller is also clearly in error in holding that the relationship of landlord and tenant has ceased and therefore, there is no liability to pay the rent, and the Appellate Authority, in my opinion, is right in holding that the relationship of landlord and tenant has not ceased and therefore, the liability to pay the rent continues and the default in payment of rent is wilful. I am in entire agreement with the findings of the Appellate Authority in this regard. The Appellate Authority has also found the other issues in favour of the respondent/landlord. I do not see any error in the said findings, of the Appellate Authority and therefore, the order of eviction passed by the Appellate Authority has to be sustained, for the other reasons given infra.
9. It is not in dispute that the respondent has purchased the property in dispute under Ex.A-1, dated 17.7.1984 and that the property tax registry has also been transferred in his name as per the order of Vellore Municipality dated 26.8.1985 under Ex.A-7. This apart, as per Exs.A-8 to A-11, the respondent/landlord had been paying the property tax to the property in question eversince the date of his purchase. In Ex. A- 2, the vendor of the respondent/landlord herein had informed the petitioner/tenant about the sale under Ex.A-1 and attorned the tenancy asking the petitioner to pay the rent to the respondent. Above all, the petitioner herein while denying the title of the respondent/landlord., has miserably failed to prove her independent title under any testament. The petitioner is alleged merely to have entered into an agreement to sell with the respondent's vendor, paying partly a sum of Rs. 1,000 (by three persons) for the alleged sale consideration of Rs. 90,000 In fact, the title is vested only with the respondent landlord as per the originals of Exs.A-1 and A-7.1 am of the view that the Rent Controller has clearly erred in holding that Ex.A-2 was not proved, as he filed to note that no seller would permit his vendee to grab all the property for nearly five years, without recovering any rent and satisfying with the meagre advance of Rs. 1,000 alleged to have been received five years back.
As rightly pointed out by the counsel for the respondent the Rent Controller has erred in holding that the denial of title of the respondent herein by the petitioner was bona fide, deliberately omitting to mention Exs. A-l, A-2 and Exs.A-7 to A-11. In my opinion, the relationship of landlord and tenant has been established between the parties to this proceedings in view of Ex.A-2. In fact, O.S. No. 276 of 1984 said to be pending on the file of the Sub Court, Vellore, has nothing to do with the establishment of the alleged title of the petitioner herein, since it is a suit for specific performance of certain agreement, which is denied even by the vendor.
10. R.W.1 is the son of the petitioner. The petitioner was residing in the house on the date of filing of the case. But, she did not get into the witness box to prove her case. She also did not file any document to prove her case. She did not make any steps to examine her alleged vendor Dr. Margaret Mathaniel to prove that she was permitted to reside in the house without paying any monthly rent which no man of ordinary prudence will believe under any circumstances. In fact, in the Written statement filed by the vendor of the respondent herein as first defendant in the suit O.S. No. 276 of 1984, she has clearly stated that she told them that the entire property should be purchased by the petitioner and two other tenants and the entire transaction should be finished by 15.4.1984 and they paid an advance of Rs. 1,000 an 1.2.1984 and the receipt for the same was passed. It is expressly stipulated therein that the transaction including the registration should be done on or before 15.5.1984 failing which the transaction stood cancelled and the advance paid should be forefeited and all the contracting parties agreed that time should be the essence of the contract in the circumstances stated supra. It is also clearly stated that there is no question of any of the parties getting an individual sale deed as alleged by the petitioner/tenant herein and the agreement was to sell the property to the three persons jointly for a consideration of Rs. 90,000 under one sale deed. Since the petitioner never offered to pay the money and take any sale deed, there is no legal or moral obligation on the part of the vendor to sell the property to the petitioner.
11. In the written statement filed by the second defendant in the above suit (the respondent herein), he has specifically stated that the alleged receipt dated 1.2.1984 would not in any way affect the right, title and interest of the parties and the property purchased by him and the said receipt is not binding on him. Learned counsel for the respondent/landlord has cited a decision of Padmini Jesudurai, J. reported in Kuppulal, B. v. D. Sagunthala, 100 L.W. 577 which runs as follows:
"Mere agreement of sale will not terminate the landlord-tenant relationship and the liability of the tenant to continue to pay the rent, unless there are specific recitals to the contrary in the agreement of sale. In this case the tenant-respondent, despite the alleged oral agreement of sale with one of the co- owners, even if it is found to be true, will still be under an obligation to pay the rent to the petitioners. Further, it is settled law that under Section 53-A of the transfer of Property Act the agreement has to be in writing and, even if there was one, mere agreement of sale does not transfer title. In the instant case, even according to the respondent, there was only an oral agreement between him and one of the co-owners. There is no perversity or illegality in the finding of both the courts below that there has been a default in the payment of rent..."
I am of the same view that an oral agreement to sell would not terminate the landlord-tenant relationship and even if there was an agreement of sale it had to be in writing and the agreement itself should, in clear terms, specify that the landlord-tenant relationship was being terminated and that there was no future liability on the part of the tenant to pay rent to the landlord and in the absence of such specific recitals in the written agreement the mere oral agreement of sale would not exonerate the tenant from continuing to pay rent to the landlord. In this case, admittedly, the tenant has not paid any rent to the respondent herein, even after the notice. The explanation offered by the petitioner herein is not at all acceptable.
12. Ramanujam, J. in an identical case, reported in Duraisami Nadar v. Nagammal, 1981 (1) M.L.J. 35 observed as follows:
"A landlady filed a petition for eviction against the tenant on two grounds (1) wilful default in payment of monthly rent, and (ii) bona fide requirement of the building for the purpose of running a hotel business by her son. The application was resisted by the tenant on the ground that the relationship of landlady and tenant had come to an end by reason of his having entered in an agreement to purchase the property and that the requirement of the landlady for the purpose of running her son's hotel business was not bona fide. The Rent Controller accepted the defence of the tenant that he had entered into an agreement of sale with the landlady and held there was no relationship of landlady and tenant after the agreement. However, the Appellate Authority held that notwithstanding the agreement of sale, the relationship of landlady and tenant continued and ordered eviction. On revision against the order.
Held; In this case there was no evidence that the parties agreed that the relationship of landlady and tenant should cease and the tenant's possession should be traced only to the agreement of sale. By merely entering into an agreement of sale the tenant did not acquire any right in the property.
If possession is traceable to the agreement of sale, then such possession can be sustained on the basis of the principle of part-performance under section 53-A, Transfer of Property Act. Even assuming that the petitioner is entitled to the benefit of section 53-A, his liability to pay rent does not cease unless the agreement of sale puts an end to that liability in specific terms. The liability to pay rent, therefore, continued. The default in payment of the rents in the present case was wilful and the requirement of the building by the landlady for the purpose of the business of her son was bona fide., The order of eviction had therefore to be sustained."
However, the judgment cited by Mr. Chidambarasubramaniam, learned counsel for the tenant, a decision of Mohan, J. (O.C.J. as he then was) in John V. John v. Goolamally Estates, A Partnership Firm, Represented by Partner Abbasbhai Akberally Vedenagarvalla, 1989 T.L.N.J. 311 is in support of his contention. Learned Judge held that having regard to the admitted agreement between the landlord and the tenant, their status as such landlord and tenant had been altered to that of a vendor and the purchaser and consequently, section 53-A of the Transfer of Property Act would apply and the question of payment of rent would not arise, much less wilful default in the payment of rent. Infact, the counsel, appearing for the landlord in that case cited the judgment of Ramanujam, J. in Duraiswamy Nadar v. Nagammal, 1981 (1) M.L.J,35 : 93 L.W. 858 for relying on the ratio that in the agreement for sale there is nothing to absolve the revision petitioner/tenant from payment of rent and therefore, only in such an event, the liability would cease and not by merely entering into an agreement and in such a case, Section 53-A of the Transfer of Property Act would not apply. Learned Judge rejected the contention of the counsel for the landlord therein. According to the learned Judge, he was totally unable to appreciate the findings, since the agreement puts an end to the jural relationship of tenant and landlord and it also clearly establishes the relationship of purchaser and vendor, and under such circumstances, the question of payment of rent docs not arise. With great respect, I am unable to share the view of Mohan, J. and prefer to follow the views expressed by Ramanujam, J. in Duraisami Nadar v. Nagammal, 1981 (1) M.L.J,35 : 93 L.W. 858. In the instant case, as already seen, there is no evidence to show that the parties agreed that the relationship of landlord and tenant should cease and the tenant's possession should be traced only to the agreement of sale. The view taken by Mohan, J. that the status of the landlord and tenant had been altered to that of a vendor and the purchaser on entering into an agreement and that therefore, the question of payment of rent would not arise, much less wilful default in the payment of rent, is, in my respectful opinion, an extreme view. If there is any waiver of the rent pursuant to the agreement of purchase it should be specifically and expressly stated in the agreement itself. By merely entering into an agreement of sale, the tenant does not acquire any right in the property. As already seen, it is a composite agreement and the landlord has agreed to sell the property to three persons and since the parties therein were not ready and willing to perform their part of the contract, the vendor sold the property to the present respondent/landlord. As rightly stated in this case, the agreement of sale has not been filed before the Rent Controller and none of the parties has spoken to about the agreement containing a term putting an end to the relation of landlord and tenant and the tenant continued in possession pursuant to the agreement of sale. Even assuming that the petitioner is entitled to the benefits of section 53-A, the liability to pay the rent does not cease unless the agreement of sale puts an end to that liability in specific and expressed terms.
13. For all the foregoing reasons, I am of the view that the civil revision petition has no merits and therefore, the same is dismissed and the order of eviction passed by the Appellate Authority reversing the order of the Rent Controller is right and therefore, confirmed. The civil revision petition is dismissed. However, there will be no order as to costs.
14. At the time of delivering the order, learned counsel for the tenant requests time to vacate the petition premises. Accordingly, the tenant is granted three months time to handover the vacant possession of the premises to the landlord.