Kerala High Court
Abdurahiman Haji vs Balakrishnan on 25 March, 2003
Equivalent citations: 2003(2)KLT690
ORDER Cyriac Joseph, J.
1. The revision petitioners are the landlords and the petitioners in R.C.P. No. 117 of 1984 on the file of the Rent Control Court, Kozhikode. The respondents are the tenants and the counter petitioners in the said Rent Control Petition.
2. The landlords filed the R.C.P. seeking eviction of the tenants under Sections 11(2)(b) and 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as "the Act"). According to the averments in the Rent Control Petition, the petition schedule property belongs to the petitioners. The property was originally entrusted to one V.N. Narayana Swamy on 2.3.1969 by the then landlord A.P. Chirukandan and Company. The original entrustment was for a period of six months on a monthly rent of Rs. 60/-. In case of default of payment of rent, the tenant was liable to pay 6% interest. On 14.8.1972, the petition schedule building along with other properties devolved on the petitioners as per the registered Assignment Deed. Since the assignment deed of 1972, the plaint schedule property belonged to the petitioners and the said Narayana Swamy was paying the rent to the petitioners. The rent was subsequently enhanced to Rs. 85/- per month. Afterwards Narayana Swamy expired and on behalf of his legal heirs, the eldest son Balakrishnan (first respondent in the R.C.P.) came into possession of the property and he was paying the rent. The rent was in arrears since October, 1983. Without the knowledge and consent of the petitioners, the first respondent Balakrishnan sub let the property to the third respondent, Chandran. The third respondent is conducting a barbar shop in the property. A lawyer notice was issued to the first respondent demanding arrears of rent and termination of the sub-letting. The first respondent did not terminate the sub-lease or pay the arrears of rent. Hence, the petitioners were constrained to file the petition for eviction on the grounds of arrears of rent and sub-letting.
3. Respondents 1 to 3 in the R.C.P. filed a counter disputing the case of the petitioners. According to them, the property was entrusted to V.N. Narayana Swamy by A.P. Chirukandan and Company. Ever since the entrustment, the property was used for the business of "Baloos Saloon, Hair Dressers". After the petitioners purchased the property, they insisted on enhancement of rent. It was the regular habit of the petitioners to harass the tenants by demanding enhancement of rent. After the death of Narayana Swamy, the tenancy right devolved on his heirs, i.e. his wife and children. All the heirs are not made parties to the petition. Hence, the R.C.P. is bad for non-joinder of necessary parties. The respondents also denied that rent was in arrears. According to them, the petitioners were in the habit of collecting rent in a bulk. The first petitioner is a busy politician and not available for payment of rent. According to the respondents, there was no wilful default on their part in paying the rent. The respondents also denied the allegation of sub letting. According to them, the third respondent is not a total stranger and sub-lessee as alleged. He is none other than the husband of the second respondent and the brother in law of the first respondent. The petitioners are well aware of the relationship of the third respondent with respondents 1 and 2. The third respondent was associated with the business for the last several years. Even while Narayana Swamy was conducting the business, the third respondent was in the premises working there and managing the business. According to the respondents, the third respondent is not a sub-lessee or a transferee. It was also contended by the respondents that all the legal heirs of Narayana Swamy were entitled to tenancy right over the shop room but the Rent Control Petition was filed without due notice to all of them and hence, the petition was not maintainable.
4. The petitioners in the R.C.P. later filed I.A. No. 3986 of 1985 for amending the petition and impleading supplemental respondents 4 to 7. The prayer in the I.A. was allowed and consequently respondents 4 to 7 were impleaded as respondents in the R.C.P. The supplemental respondents 4 to 7 also contested the petition for eviction and they adopted the contentions already raised by respondents 1 to 3.
5. After considering the rival contentions and the evidence, the Rent Control Court found that as on the date of the petition, the rent was in arrears and that there was no payment or tender of rent within a reasonable period after the receipt of the lawyer notice. The Rent Control Court also held that respondents were liable to pay interest at the rate of 6% for defaulting the instalments. The finding of the Rent Control Court was that the respondents were to account for the rent for 36 months from October, 1983 up to September 1986 and the rent payable was Rs. 85/- per mensem. The rent arrears alone came to Rs. 3,060/-. After the institution of the petition, the respondents paid through Court Rs. 85/- on 6.2.1985, Rs. 935/- on 1.10.1986 and Rs. 255/- on 10.10.1986. But the Rent Control Court held that the payments made through the Court were not sufficient to wipe off the arrears of rent.
6. However, the Rent Control Court did not order eviction under Section 11 (2)(b) of the Act on the ground that the petitioners had not complied with the mandatory provisions contained in Section 11(2) of the Act by issuing separate notice to respondents 2,4,5,6 and 7. The Rent Control Court found that Ext.A1 lawyer notice was issued to the first respondent with a direction to show it to the other legal heirs. The Rent Control Court held that respondents 1, 2 and 4 to 7 are legal heirs of deceased tenant Narayana Swamy and hence they are tenants in common and not joint tenants and hence each of them is entitled to a registered notice under the proviso to Section 11(2)(b) of the Act. In the absence of such notice to all the co-tenants, the Rent Control Court held that the Rent Control Petition was not maintainable under Section 11(2)(b) of the Act.
7. On the question of sub-letting the Rent Control Court found that the third respondent cannot be considered as a total stranger. He was associated with the business in the plaint schedule property since his marriage with the second respondent who is the daughter of Narayana Swamy. He is doing the business for and on behalf of the family. The profits are divided among the legal heirs. Hence, the Rent Control Court held that there was no sub-letting in favour of the third respondent as alleged and that the landlord was not entitled to an order of eviction under Section 11 (4)(i) of the Act.
8. Against the order dated 31.10.1986 of the Rent Control Court in R.C.P. No. 117 of 1984, the landlords filed R.C.A. No. 143 of 1989 in the Court on the Rent Control Appellate Authority, Kozhikode. In the judgment dated 14.1.1993, the Appellate Authority affirmed the finding of the Rent Control Court that the landlords' petition under Section 11(2)(b) was not maintainable since separate registered notice was not sent to all the co-tenants. The Appellate Authority also affirmed the finding of the Rent Control Court that there was no sub lease in favour of the third respondent. Accordingly, R.C.A. No. 143 of 1989 was dismissed by the Appellate Authority.
9. Aggrieved by the judgment dated 14.1.1993 of the Appellate Authority, Kozhikode in R.C.A. No. 143 of 1989, the landlords have filed this Revision Petition. After considering the pleadings and evidence in the case, we do not find any valid reason to interfere with the concurrent findings of the courts below that there was no sub-letting in favour of the third respondent and therefore, the landlord was not entitled to an order of eviction under Section 11(4)(i) of the Act. In our view, the findings of the courts below in this regard are perfectly legal and valid and are based on the evidence in the case.
10. However, we cannot agree with the findings of the courts below that the petition under Section 11 (2)(b) was not maintainable since separate registered notice was not issued to all the legal heirs of deceased tenant, Narayana Swamy. The courts below erred in holding that the legal heirs are co-tenants or tenants in common and not joint tenants. In H.C. Pandey v. G.C. Paul ((1989) 3 SCC 77) the Honourable Supreme Court has held as follows:
"It is now well settled that on the death of the original tenant, subject to any provision to the contrary either negativing or limiting the succession, the tenancy rights devolve on the heirs of the deceased tenant. The incidence of the tenancy are the same as those enjoyed by the original tenant. It is a single tenancy which devolves on the heirs. There is no division of the premises or of the rent payable therefor. That is the position as between the landlord and the heirs of the deceased tenant. In other words, the heirs succeed to the tenancy as joint tenants."
The decision in H. C. Pandey (supra) was followed by the Honourable Supreme Court in K.K. Manjerintha v. V.M.T. Kalliani(1995 Supp.(3)SCC 403). In the light of the above decisions of the Supreme Court, we hold that the legal heirs of the original tenant, Narayana Swamy, are only joint tenants and not co-tenants and hence Ext.A1 lawyer notice issued to the first respondent satisfied the requirement under the proviso to Section 11(2)(b) of the Act. Consequently, we hold that since the Rent Control Court had found that the rent was in arrears on the date of petition and since that finding was not assailed by the tenants, the landlord is entitled to an order of eviction under Section 11 (2)(b) of the Act.
11. In the above circumstances, we set aside the impugned judgment to the extent it held that the landlord was not entitled to an order of eviction under Section 11(2)(b) of the Act. Consequently, R.C.P. No. 117 of 1984 on the file of the Rent Control Court, Kozhikode is allowed to the extent of granting the prayer for eviction under Section 11 (2)(b) of the Act.
12. The C.R.P. is disposed of in the above terms.