Karnataka High Court
Smt. Ragini Narayan W/O Late B.S. ... vs Smt. Minnie Narayan on 19 November, 2007
Equivalent citations: ILR2008KAR1955, AIR 2008 (NOC) 1049 (KAR.) = 2008 (2) AIR KAR R 208, 2008 (2) AIR KANT HCR 208, 2008 A I H C 1666, (2008) 2 RENTLR 187, (2008) 4 ICC 403
Author: V. Jagannathan
Bench: V. Jagannathan
JUDGMENT V. Jagannathan, J.
1. This appeal is directed against the judgment and decree passed in O.S. No. 5110/03 by the trial court by which the learned judge had decreed the suit of the plaintiff for ejectment of the defendant and hence, the defendant is before this court in this appeal
2. The case of the parties briefly stated is that the respondent-plaintiff was married to one B.S. Narayan and by virtue of an order passed in MJ Petition No. 854/1981 by the Bombay City Civil Court on 22.8.1982, the said marriage was dissolved and it is the case of the plaintiff that pursuant to the consent terms entered into between the plaintiff and her husband B.S. Narayan, so far as the property that was purchased in the year 1975 in the name of the plaintiff and her mother-in-law Lskshmamma is concerned, the plaintiff has been declared to kbe the absolute owner of the building that was put upon the land and neither the husband B.S. Narayan nor the plaintiff's mother-in-law have any right to any portion of the building standing in the land. It is also the case of the plaintiff that in terms of the release dead executed on 15.12.1982, the plaintiffs mother-in-law viz., Lakshmamma also released her right, title end interest in the land bearing No. 1/B, Cunningham Road, Bangalore, in favour of the plaintiff, Thus, the plaintiff became the absolute owner of the suit schedule property and following the appellant herein failing to pay the rents, the present suit was filed seeking ejectment of the appellant and also for the arrears of rent.
3. The appellant-defendant contested the said suit of the plaintiff by taking up the stand that the release deed executed by Lakshmamma is void ab initio because, Lakahamma was not explained about the content of the said release deed. Secondly, insofar an the H.R.C. proceedings are concerned, following abatement of the said proceedings, the plaintiff cannot make use of the material which, was placed before the H.R.C. court in H.R.C No. 1543/1997 which proceedings got culminated with the dismissal of the revision petition by that court as having been abated. Therefore, the plaintiff has no title to the suit property. It was also the appellant's case in her written statement that following the death of Lakshmamma, she inherited Lakshmamma's share by virtue of a registered will left by deceased Lakshmamma. As for as the notice issued to the appellant and the reply given by her is concerned, it is stated that the admission made on mistaken notion cannot hove any binding effect nor can it operate as an estoppel against the maker. Therefore, Section 116 of the Evidence Act has no application. Another defence the Evidence Act has no application. Another defence right over the suit property by adverse possession and being the second wife of Narayan, the appellant stepped into the shoes of Narayan and perfected the title by adverse possession. For all these reasons, she prayed that the suit of the plaintiff be dismissed.
4. The said pleadings of the parties led the trial court to frame the following issues;
5. After appreciating the evidence let in by the parties, the trial court answered issues-1 to 3 in the affirmative and issues-4 and 5 in the negative and as a result of the said findings, the suit of the plaintiff was decreed giving the appellant-defendant two months' time to vacate and deliver vacant possession of the suit property to the respondent-plaintiff with arrears of rent amounting to Rs. 1,26,000/- with 1886 interest from the date of the suit till the date of judgment and thereafter at 6%. It is this judgment and decree of the trial court that is called in question lay the appellant-defendant in the present appeal.
6. I have heard the learned senior counsel Sri Udaya Holla for the appellant and the learned Counsel Sri Shaker Shetty for the respondent. Both sides have relied on number of decisions to support their contentions.
7. As far as the submissions made by the learned senior counsel Sri Udaya Holla are concerned, (sic), it is contended that as the very title to the suit property is in question and as the appellant had taken up the stand that the release deed is void ab initio, it was the duty of the trial court to have framed an issue concerning the title and without that the suit could not have been decreed.
8. The second ground put forward is that, Lakshmama was an illiterate lady and she did not know the contents of the release deed and, therefore, no reliance can be placed on the release deed Ex.P-1 by the plaintiff.
9. The third submission made is that the trial court committed an error in coming to the conclusion that the proceedings before the H.R.C. court had the effect of operating as res judicata and in this connection, it is contended that the decision of the H.R.C. court cannot have the binding effect on the civil court and, as such, the view taken by the trial court is erroneous and contrary to the position in law.
10. As far an the right of the respondent-plaintiff to seek eviction of the appellant-defendant is concerned, it is submitted that Section 116 of the Evidence Act has no application to the case on hand because, that Section comes into operation where a tenant is inducted to the premises and, in the instant case, the appellant was never inducted as a tenant because, she continued to stay with her husband in the suit premises.
11. As far as the release deed is concerned, it is contended that no consideration has been received by Lakshmamma as could be seen from a plain reading of the contents of the (sic) deed Ex.P-1 and, therefore, by virtue of Section 25 of the Contract Act, an agreement without consideration is void, Section 49 of the Registration Act was also referred to in this connection.
12. As far a vesting of the property in the respondent following the compromise terms entered into in the proceedings before the Bombay City Civil Court is concerned, it is submitted that any transfer subsequent to the compromise will have to be only through a registered document in respect of immovable property and, therefore, for this reason also, the plaintiff cannot be said to have title to the suit property.
13. As for as abatement of the proceedings in the H.R.C. case is concerned, it in submitted that once the proceedings got abated, nothing remains and the order passed on I.A. No. 1 in the said proceedings, therefore, also gets merged with the abatement proceedings and, therefore, it is not permissible to take advantage of any finding given in the H.R.C. proceedings. It is on the above grounds, the learned (sic) counsel submitted that the trial court was not justified in decreeing the suit of the plaintiff when the very title to the suit property was seriously called in question. The above contentions were sought to be supported on the strength of the decisions rendered by the Supreme Court as well an by this court in the decisions reported in AIR. 1939 P.C. 219, 1997(9) S.C.C. 651, 1990 (4) S.C.C. 286, 1976 (1) S.C.C. 311, (1981) 2 s.C.C. 121, AIR. 1996 S.C. 238, A.I.R. 1965 S.C. 1506, A.I.R. 1954 S.C. 526, A.I.R. 1982 S.C. 1213, A.I.R. 1989 Karnataks 70 (DB), I.L.R, 1988 Karnataka 3374, A.I.R. 1987 S.C. 1656, 1982 (1) Kar. L.J. 229, (2001) 2 S.C.C. 652, 1998 (1) Kar. L.J. 411, and I.L.R. 2007 Karnataka 4020.
14. On the other hand, the learned Counsel Sri S. Shaker Shetty for the respondent-plaintiff, while supporting the judgment and decree passed by the trial court, contended that a careful look at the pleadings and the evidence placed before the trial court would leave no one in doubt as to the existence of landlord-tenant relationship between the respondent and the appellant herein. This is clear not only from the pleadings of the parties, but also the admission made by the appellant herself in the course of her evidence as well as the stand taken by her while giving reply to the notice issued to her by the respondent. It is his submission that it is not in dispute that the suit site was originally purchased in the name of the first wife of B.S. Narayan i.e., the respondent-plaintiff, and Narayan's mother (Lakahmamma) and though Narayan bad purchased the property in question in the name of his first wife, i.e., the respondent herein, she became the owner of the property along with Lakshmamma in view of the registered sale deed, Further, the compromise terms entered into between B.S. Narayan and his first wife i.e., the plaintiff, go to confirm the fact of vesting of the property in the name of the plaintiff though purchased in her name by her husband B.S. Narayan and, therefore, the question of the plaintiff not becoming the owner of the property though purchased by her husband does not arise and moreover, the properly that is settled in the wife's name becomes her absolute property as it comes within the 'sthridhana' concept.
15. As far as the release deed Ex.p-1 is concerned, it is submitted that all the pleas that the release deed having been obtained by fraud or misrepresentation etc, have not been proved by the appellant before the trial court and, therefore, any amount of pleading not backed up by necessary evidence cannot be looked into. Even otherwise, if the relesse deed is construed as a voidable contract, it continues to remain valid until the same is set aside.
16. As far as the findings of the H.R.C. court is concerned, it is submitted that it is not a persona designata but, a court constituted under the Rent Act and, therefore, the findings of the said court will have a binding effect in the subsequent suit filed in the civil court. Particularly in respect of the limited aspect of finding out the landlore-tenant relationship, the findings of the H.R.C. court can be looked into. In this connection, the learned Counsel referred to me the Explanation-VIII of Section 11 of the C.P.C. to submit that an issue heard and finally decided by a court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such court of limited jurisdiction was not competent to try such subsequent suit.
17. As far as the abatement of the proceedings is concerned, it is submitted that notwithstanding the proceedings getting abated following the enactment of the new Rent Act, yet, the findings recorded by the H.R.C. court continue to remain in operation until the same are questioned by way of writ under Article 227 of the Constitution. As far as the landlord-tenant relationship is concerned, the learned Counsel Sri Shaker Shetty referred to the evidence of D.W. 1 i.e., the appellant herself, to contend that the appellant has admitted about the landlord-tenant, relationship and also admits that she was not aware of anything that happened prior to her marriage with Narayan in the year 1964 and, therefore, the appellant is not competent to speak anything with regard to the release deed EX.P-1 being coloured by fraud, misrepresentation etc.
18. As far as the property being purchased by B.S. Narayan in the name of the respondent-wife in concerned, it is submitted that it is not permissible for the tenant to question the benami nature of the property purchased in the name off the respondent-plaintiff. As far as the necessity to go into the title aspect of the suit property is concerned, it is submitted that the said issue is irrelevant and all that is required to be examined is as to whether there existed landlord-tenant relationship between the parties and this fact stands established both from the evidence of D.W. 1 and also from the reply given as per Ex.P-3. It is also submitted that the appellant continued to pay rent even after the demise of B.S. Narayan and she even went to the extent of giving up the suit property in the probate proceedings which was initiated by Lakskmamma in the Bombay High Court and this itself shows that the appellant does not dispute the respondent being the absolute owner of the suit schedule property, Learned Counsel Sri Shaker Shetty drew support for all the above submissions from the decisions reported in 1990 (1) 8.C.C. 252, A.I.R. 1973 Mysore 145, I.L.R. 2006 Karnataka 2466, 2000(6) S.C.C. 84, I.L.R. 2003 Karnataka (SC) 2253, 2004(6) S.C.C. 325, A.I.R. 1985 S.C. 796, AIR. 1974 SC. 104, A.I.R. 1961 B.C. 1473, I.L.R. 2003 Karnataka 1385, 1999 (3) S.C.C. 362, A.I.R. 1965 S.C. 271, 1999(3) S.C. 494, A.I.R. 1969 Calcutta 565, 1961 Mys.L.J. 242, 1995(4) S.C.C. 96, 2001(4) S.C.C. 448, 1990(1) S.C.C. 731, 1971 Mys.L.J. 43, AIR. 1986 M.P. 106, A.I.R. 1976 S.C. 163, A.I.R. 1974 Madras 36, A.I.R. 1956 A.P. 196, I.L.R. 2002 Karnataka (SC) 4273, I.L.R. 2003 Karnataka 908, I.L.R. 1998 Karnataka 2453, 2004(6) S.C.C. 762, 1995(3) S.C.C. 412, I.L.R. 1999 Karnataka 236, A.I.R. 1989 S.C. 2187, I.L.R. 1985 Karnataka 3741, A.I.R. 1976 S.C. 2335, I.L.R. 1990 Karnataka 498, I.L.R. 1991 Karnataka 3164, 2002(7) S.C.C. 447,1.L.R. 1985 Karnataka 3741, I.L.R. 1985 Karnataka 1946, A.I.R. 1994 S.C. 152, I.L.R. 2002 Karnataka 2304, I.LJR. 2003 Karnataka 4640, I.L.R. 1998 Karnataka 2453, 2004(6) S.C.C. 762, 1995 (3) S.C.C. 412, I.L.R. 1999 Karnataka 236, A.I.R. 1989 S.C. 2187, I.L.R. 1985 Karnataka 3741, A.I.R. 1976 S.C. 2335, I.L.R. 1985 Karnataka 2664, A.I.R. 1996 S.C. 196, A.I.R. 2003 S.C. 4351, and A.I.R. 1982 S.C. 20.
19. In the light of the contentions put forward as above by the learned Counsel for the parties, the only point that requires examination is whether the finding of the trial court that the respondent-plaintiff had established the landlord-tenant relationship and hence she in entitled to an order of eviction in her favour is sustainable in law in the light of the material placed before the trial court.
20. The answer to this question also necessarily requires examining the various contentions put forward by learned senior counsel Sri Udaya Holla, for the appellant
21. The first point to be considered in this connection is with regard to the vesting of the property in favour of the respondent plaintiff no per the consent terms which form part of the proceedings before the City Civil Court at Bombay which ended in dissolution of the marriage between B.S. Narayan and his first wife Minnie Narayan i.e., the plaintiff. The said consent terms have been marked at Ex.P-9 (a), Ex.P-9, in fact, is the decree of divorce, which is at page 94 of the paper book and the consent terms which are mentioned in the schedule to the M.J. Petition No. 854/1981 before the Bombay City Civil Court, at clause Noe. 5,6,7 and 12 are as under:
5. Declared that the land bearing No. 1/B, Cunningham Road, Bangalore-560 052, stands in the name of the 2nd petitioner and Smt. Lakshmamma, wife of the late B.M. Srinivasaiah, mother of the first petitioner. Further declared that the name of the 2nd petitioner hat been shown in the records of the said property for convenience as the Benamidar of the first petitioner and that the said land was acquired jointly by the first petitioner and his mother, the said Smt. Lakshmamma Srinivasaiah. The bulding was put up on the land only by the 2nt petitioner with moneys advanced by the first petitioner and the mother of first petitioner has no right to any portion of the building standing on the land. In terms of a Release Deed Executed on 15.12.1982 by her, the said Smt. Lakshmamma Srinivasaiah has released her right, title and interest in the land bearing No. 1/B, Cunningham Road, Bangalore, in favour of the 2nd petitioner. The deed of rekase has been executed and is awaiting registration formalities.
6. Declared that it is agreed that all the share, right, title and intereat in the property described in the Schedule annexed hereto belonging to the first petitioner and in the name of the 2nd petitioner (as the Benamidar of the first petitioner0 do vest and is hereby vested in the 2nd petitioner, in consideration of the extinguishment of the rights of the 2nd petitioner as set out herein above.
7. Declared that it in has been agreed and is hereby agreed that the 2nd petitioner do let and hereby lets to the first petitioner the said property on monthly tenancy basis at the monthly net rent of Rs. 6,000/- payable on or before the 15th day of each month on usual monthly tenancy terms prevalent in Bangalore with additional terms that the 2nd petitioner shall not terminate the tenancy so long as the first petitioner pays the monthly rent regularly as aforesaid.
XXX XXX XXX
12. Agreed and ordered that the first petitioner do deposit the amount payable to the 2nd petitioner an aforesaid to the account of the 2nd petitioner in Grindlays Bank, Unity Buildings, Mission Road, Bangalore. Upon payment of each instalment, the 2nd petitioner undertakes to have satisfaction entered on the decree to be passed in pursuance of these terms.
22. Learned senior counsel Sri Udaya Holla, referring to Clause-16 of the said consent terms, submitted that as per the consent terms, the first petitioner therein i.e., B.S. Narayan was required to do all things necessary far the transfer and vesting of his share in the suit property and the building to the second petitioner at his expense. Therefore, referring to this particular clause, it was contended that the property did not get transferred to the respondent-plaintiff as the requirement of Clause-16 was not met. Nevertheless, it is clear from the above clauses of the consent terms that B.S. Narayan had declared that all his share in the suit property got vested in the plaintiff herein. Once the property got so vented in the plaintiff, she became the absolute owner thereof and in this regard, it is pertinent to refer to the decision in the case of Kanakarathanammal v. V.S. Lognatha Mudaliar , as well as in the cane of Hanmant Bando Kale v. Rango Kallo Huddar reported in 1961 Mys. L.J. 242, The Apex Court, in the case of Kanakarsthanammal, supra, has held that though the consideration for the sale transaction proceeded from the husband and his subsequent conduct also showed his admission that title to the property vested in his wife, purchase by wife cannot be held to he benami for husband, but she herself is the owner of the property. In the said decision, the Apex Court has also observed at paragraph-12 that all that is relevant to enquire is that had the property been purchased by a female or has it been gifted to her by her husband and further, if the property had been gifted by the husband to his wife and if it is worth more than Rs. 100/-, then, the same can be made only by a registered deed. In the instant case, if we apply the above proposition of law, it is not in dispute between the parties that Narayan, by his consent terms Ex.P-9-(a), had vested his share in the respondent-plaintiff and, therefore, it is not a case of the transaction assuming the nature of a gift so as to require registration, Apart fro, that, eversince the consent terms came to be accepted by the Bombay City Civil Court leading to dissolution of the marriage between Narayan and his first wife i.e., the plaintiff, there has been no eye-brows raised by anyone muchless the appellant herein questioning the said consent terms before any court.
23. As far as the share of Lakshmamma, which was also given to the respondent-plaintiff under the release deed Ex.P-1, is concerned, much has been argued by the learned senior counsel Sri Udaya Holla that the said release deed is void ad initio for want of consideration. Particular refernce was made to paragraph-2, page-4 of the said document Ex.P-1 to contend that the consideration that is mentioned reads as under:
2, The Releasee has paid and the Releasor has received this day a sum of Rs. 1,50,000/-(Rupees one lakh and fifty thousand only) by accepting the demand promissory note executed by the said B.S. Narayan in favour of the Releasee. In this manner the entire amount of consideration has been paid and there are no further payment to be made by this Releasee to the Releasor in respect of the release herein made
24. Therefore, the said averments in paragraph-2 of the release deed cannot be considered as passing of consideration in favour of Lakshmamma by the respondent-plaintiff. It is in this connection that Section 25 of the Indian Contract Act was also referred to and the decision of the Apex Court bearing on this point. No doubt that it is a well settled principle of law that there cannot be sale or release of any property from one to other without there being consideration. In the instant case, a reading of the above contents of paragraph-2 of the release deed does not give scope to infer that there was no consideration at all. How and in what manner the consideration is paid and acknowledged depends upon the facts and circumstances of the case and in ex.p-9(a), Clause (9) clearly mentione that the first petitioner therein i.e., B.S. Narayan, had executed an on demand promissory note in favour of the respondent-plaintiff herein for Rs. 1,50,000/-. Therefore, by reading together paragraph-2 of the release deed Ex.P-1 along with paragraph-9 of the consent terms Ex.F-9(a), it cannot be said that there was no consideration at all forming part of the transaction that lad to the release deed being executed by Lakshmamma in favour of the plaintiff herein.
25. As far as the release deed being tainted with fraud and coercion played on Lakshmamma by the respondent is concerned, as rightly contended by the learned Counsel Sri Shaker Shetty for the respondent, such contentions have remained only in the pleadings and there is no evidence at all placed lay D.W. 1 to prove such allegation. But, on the other hand, D.W. 1 i.e., the appellant herein, admits in her evidence that she was not aware of all that happened prior to her marriage with Narayan in the year 1984. Therefore, the said contention is being put forward only as an afterthought is the inference that emerges from the above discussion
26. As far as the plea of Lakshmamma being an illiterate lady not being aware of the contents of the release deed is concerned, she did not raise any such ground in all earlier proceedings and mare importantly, in the amended objections filed in H.R.C. No. 1543/1997 (Ex.D-4, which is at page-138 of the paper book). This document. Ex.D-4 has been got marked by the appellant herself before the trial court. When there is no whisper about the fraud being played on Lakshmamma while the release deed wan executed and there being absolutely no evidence placed by the present appellant before the trial court to prove the fact of fraud or coercion being played on Lakshmamma, it is too late in the day to now urge that the release deed Ex.P-1 is tainted because of fraud, coercion, etc.
27. In view of the above reasons, as far as the respondent-plaintiff claiming to be the landlord of the suit premises is concerned, she has proved the same in view of Ex.P-1 and Ex.P-9(a) supporting her case.
28. As far as the jural relationship between the respondent-plaintiff and the appellant as landlord and tenant is concerned, D.W. 1 i.e., the appellant herein, in the course of her evidence before the trial court, has clearly admitted that they paid monthly rent of Rs. 6,000/- till April 1996 and, in the cross-examination, the appellant has further admitted that as per the terms of the consent decree of divorce, B.S. Narayan agreed to reside in the suit property as tenant on a monthly rent of Rs. 6,000/- and further admits that Narayan was paying rent to the plaintiff till 1.5.1992. She goes on to admit that she also paid rent of Rs. 2,16,000/- to the plaintiff. It is also in her evidence that Lakshmamma did not challenge the release deed dated 15.4.1983 during her life time. She is also not aware of Lakshmamma having made any allegations regarding fraud and undue influence pertaining to the release deed dated 15.4.1983. The void evidence of D.W. 1 also will have to be read in conjunction with the contents in paragraph-7 of Ex.P-9(a), in which it had been agreed to let B.S. Narayan on monthly rent of RS. 6,000/- payable on or before 15th of each month. Yet another factor which goes to indicate the landlord-tenant relationship between the parties in the reply notice issued by the appellant as well as Lakshmamma and the said document Ex.P-3 further confirms the fact of the appellant and Lakshmamma being the tenante and the further admission made in the said reply notice that the appellant and Lakshmamma are liable to pay arrears of rent only for three months and that the tenants would continue to pay the rental at Rs. 6,000/- per month at due dates in future, therefore, is a clear indication of the appellant admitting her tenancy under the respondent-plaintiff in respect of the suit schedule properly.
29. As far as application of Section 116 of the Indian Evidence Act is concerned, the said section that no tenant of immovable property or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted or to deny that the landlord of such tenant had, at the (sic) of the tenancy, a title to such immovable property. Relying on the expression "at the beginning of the tenancy", the learned senior counsel Sri Udaya Holla contended that the appellant herein was never inducted as a tenant and, therefore., the question of Section 116 of the Evidence Act coming into play will not arise.
30. In this regard, learned senior counsel for the appellant, Sri. Uday Holla referred to the decisions imported in I.L.R. 1999 KAR 236, which is to effect that it id competent to the tenants to question the title of the landlord and attention was also invited to the decisions reported in AIR 1945 Bombay 399 , in which it is held that, where through ignorance of title of landlord or by fact, the tenant attoms to him, the tenant is not estopped, but, be can show that land lord had no title. It was therefore his submission that. Under Section 116 of the Evidence Act, the tenant is not estopped from contending from the title of the lessor has come to an end.
31. On the contrary, learned Counsel Sri. Shekar Shetty, on his part referring to Section 116 of the Evidence Act, submitted that, in the case on hand, the facts would disclose that the appellant had admitted that B.S. Narayan, was tenant under the plaintiff and he also paid rents and therefore, it is not open to the appellant now to contend that, Section 116 of the Evidence Act has no application. Moreover, it is his submission that, under the general law, in regard to the relationship of landlord and tenant, the question of title to the lease property is irrelevant. In this connection, he has referred to the decisions , , ILR 1995 (3) SCC 412, , , ILK 1985 KAR 3741, .
32. In the case of Sri Ram Pasricha v. Jagannath (Goswami, J.) , dealing with a case wherein, the plaintiff had filed suit for evection of defendants, and referring to Section 116 of the Evidence Act, the Supreme Court has observed thus:
15. There are two reasons for our not being able to accept the above submission, Firstly, the plea of the suit as if the suit is bad for non-joinder of other plaintiffs. Such a plea should have been raised, for what it is worth at the earliest opportunity. It was not done. Secondly, the relationship between the parties being that of landlord and tenant, only the landlord could terminate the tenancy and institute the suit for eviction. The tenant in such a suit is estopped from questioning the title of the landlord under Section 116 of the Evidence Act. The tenant cannot deny that the landlord had title to the premises at the commencement of the tenany. Under the geneneral law, in a suit between landlord and tenant the question of title to the leased property is irrelevant. It is therefore, inconceivable to throw out the suit on account of non-pleading of other co-owners as such.
(emphasis supplied) In Shish Ram and Ors. v. State of Haryana and Ors. reported in 2006 (6) SCC Page 84, it has been held by the Apex court that a person having accepted a position of law and having taken the benefit from it, cannot later challenge the validity of such law. This citation was cited by learned Counsel for the respondent to submit that in the instant case also the appellant had accented herself as the tenant of the plaintiff by paying the rent and there is admission to this effect by the appellant in the course of her cross examination as DW. 1 before the trial court and therefore, now it is not open to say that Section 116 of the Evidence Act has no application. In K.L. Vedamurthy v. M. Gopalachari case, decision reported in ILR 1988 KAR 2453, this court has held that, person to whom the rents are paid comets within the definition of 'land lord' as defined under the Karnataka Rent Control Act and as such the tenant who has paid the rente to the petitioner/landlord is estopped from denying title of the landlord. In the case which is reported in 1995 vol (3) SC 412, the Apex Court has held that, the lessor whose title cannot be disputed by the leasee is an owner, whose instance eviction proceedings are maintainable. In a decision , the Apex Court has held that, where the tenant admits of having paid the rent, then the definition of landlord is satisfied by the appellant. The decision in the case of Thimmappa v. Kousalya derision is to the effect that tenants have no legal right to assert that the landlord is benami and not real owner.
33. Thus having considered the decisions cited by both the sides with regard to Section 116 of the Evidence Act and also taking into consideration the fact of the appellant having admitted in her evidence of having paid the rents to the plaintiff after the death of B.S. Narayan, who was earlier the tenant and was paying the rent of Rs. 6,000/- P.M. as could be seen from the compromise terms to which I made reference. I do not find any merit in the submission made by the learned senior counsel for the appellant that, Section 116 of the Evidence Act has no application. The expression "at the beginning of the tenancy" cannot be construed or to mean the time when the tenant was first let in possession, but, the question to be examined in each case Under Section 116 of the Evidence Act should be as to whether the new tenancy had arisen or not, whether the tenant had been let into the possession, by the land lord. The Apex Court in a decision reported in 1994 SC 704 has held that, when a tenant is not in possession as by payment of rent attired to the successor in interest of the deceased landlord who had let him into the occupation, he would be estopped Under Section 116 of the Evidence Act from denying title of the successor. On the same lines, in the instant case also the schedule premises though held by the plaintiff and Lakshmamma in equal shares, following the release deed executed by Lakshmamma in favour of the plaintiff, the plaintiff became the absolute owner of the entire premises and B.S. Narayan himself agreed to be the tenant under the plaintiff by paying Rs. 6,000/- as rant per month. And, following his death, the appellant herein being his seconed wife, stepping into his shoes and she also paid the rents to the plaintiff and therefore, under these circumstance it is not permissible for the appellant to contend that Section 116 of the Evidence Act has no application
34. As for as the decisions cited by the appellant's counsel which are reported in AIR 1939 PC 219, 1997 volume (9) SC 651 are concerned, no doubt if there is no consideration, the sale deed would not be binding, but, in the instant case, we have seen there is consideration mentioned in the Release deed though by way of Promissory note executed by B.S. Narayan in favour of the plaintiff, Nevertheless, it cannot be said that there was no consideration at all to hold that, the release deed was not bunding out the appellant. Even otherwise an rightly submitted by Sri. Shekar Shetty, release deed even if it is held to be voidable it continues to remain valid until it is held to be invalid to, accordance with law. Therefore, those two decisions are also of not much help to the appellant.
35. As for as the decisions reported in 1990 volume (4) SCC 286, AIR 1989 KAR 70 and ILR 1998 KAR 3374 are concerned, the point that the learned senior counsel for the appellant sought to drive home from these decisions is that, if there is a dispute regarding title, the court under the Rent Control Act should direct the parties to sort out the dispute in a civil court and therefore, even if a decision is rendered by the court under the Rent Control Act, which has got a limited jurisdiction such a decision will not bar a civil suit being filed to examine the title in case of denial of title. In this context, he also referred to the decision reported in AIR 1982 SC 1213.
36. In my view it is only where the title to the suit property is disputed that the matter will have to be gone into by the civil court, notwithstanding the finding given by the small causes court under the Rent Control Act. In the case on hand, though there is sufficient merit, in the submission made by the appellant's counsel that following abatement of the proceedings which are pending in HRC No. 1543/1997, the order that was passed on the I.A. therefore also gets merged with the abatement proceedings, accepting this contention of the appellant's counsel even if we independently examine the matter, the evidence on record in the instant case particularly the document produced by plaintiff as per EX.P.1 and EX.P.9a coupled with the admission by DW. 1 will leave no one into doubt as to the fact of appellant conceding that the plaintiff is the landlord of the suit premises and further fact of rent having been paid by the appellant confirms this fact of the plaintiff being the landlord of the suit premises, Therefore, all the decisions cited in this regard by the appellant's counsel also cannot be pressed into service to the appellant's advantage.
As far as the decisions concerning benami transaction are concerned reference waa made to the decision of the Supreme Court reported in 1981 2 SCC volume 121, AIR 1996 SC 238. No doubt it has been held in the above decision that benami transaction does not vest any title in the benamidaar, but, the facts, situation is not the same in the case on hand. EX.p.1 is the release deed and EX.P.9a is consent terms forming part of the divorce proceeding before the Bombay Civil Court. In the said document, it has been clearly stated that, in respect of ½ of the property, plaintiff became the owner by virtue of she having been the purchaser of the same, in other words when a property is purchased in the name of the plaintiff, she becomes the absolute owner thereafter and this fact is also admitted by B.S. Narayan himself in the consent terms EX.P1, EX.P.9a,; therefore, the decision, referred to in this regard by the appellant's counsel also will have to be held tote inapplicable to the facts and circumstances of the case before us.
37. Learned senior counsel for the appellant also referred to certain other decisions to contend that, if the contents of the documents are not explained to the person who has to execute the same, then admission made in ignorance cannot bind such persons. The rulings referred to in this regard are 1976 volume 1 SC 311 AIR 2003 SC 4351 and ILR 2007 KAR 4020. As for as these decisions are concerned, having examined entire material on record, there to no evidence forthcoming from the appellant's side to show that the plaintiff had played fraud or undue influence on Lakshmamma before getting the release deed executed by Lakshmamma. Pleading without evidence with regard to the plea of fraud and undue influence cannot be accepted. This is the view taken by this court in the case reported in 1971 Mysore Law Journal, page 43. The Apex Court has also held in a decision reported in 1990 volume 1 SC 731 referred to by learned Counsel Sri. Shekar Shetty, that the contract once signed, even without reading the contents becomes binding on the parties and even if it is taken that fraud is played, it is only voidable and not a void. Therefore, having regard to all these decisions and the evidences not showing any fraud or undue influence being played by the plaintiff and Lakshmamma herself not having raised her eye brows with regard to contents of the release deed in her earlier proceedings or even in the legal notice issued, even this ground urged by the appellant's counsel will have to be rejected as not having sufficient merit in it, in the backdrop of the evidence on record.
38. Another submission of the learned senior counsel for the appellant is that the trial court did not frame on issue with regard to title is concerned and therefore, non framing of proper issues in a sound ground far setting aside the decree. Decisions referred to in this connection are reported in 1982 KLR 229, (2001) 2 SCC 652 and 1998 (1) KLR 411. Having considering the decisions referred to as above and in the instant case; the trial court also having examined the landlord, tenant relationship between the parties and having framed an issue with regard to the plaintiff's entitlement to take delivery of vacant possession from the appellant, I am of the view that the parties to the suit were fully aware of their respective stand and also led evidence in that direction and trial court has also answered the said issue in favour the plaintiff. And the trial court has also considered the defence taken by the appellant with. regard to her claim of adverse possession and has negative such contention taken toy the appellant, having regard to the relationship between the parties and the fact of Narayan himself agreeing to pay rent to the plaintiff and thereafter words the appellant steeping into the shoes of Narayan and continued to pay the rents. In these circumstances. I do not see any infirmity in the issues framed by the trial court and as such these decisions referred to in connection with framing of issues cannot be availed of by the appellant's counsel, in respect of his contentions.
39. Thus, having considered all the contentions urged by the learned senior counsel for the appellant and on consideration of the ruing cited as well as rulings referred to by the learned Counsel for the respondent and in particular the decisions reported in 1961 MLJ 242, AIR 1965 SC 271 as well as AIR 1976 SC 2335, I hold that the findings recorded toy the trial court on all the issues framed toy it appears to toe the proper finding emerging from the pleadings and evidence placed on record and therefore, they cannot be termed as erroneous findings. By virtue of EX.P.1 and EX.P.9a, plaintiff became the absolute owner of the suit premises and the fact of rent having been paid by Narayana at the first instance and after his death by the appellant herself to the plaintiff also establishes the jural relationship between the parties and other requirements of Section 106 of Transfer of Property Act also having been met by the plaintiff by giving notice of evicition of the appellant herein, the suit of the plaintiff having been decreed will have to be held as sustainable, both on facts as well as in the law. I, therefore do not find any of the contentions put forward by the appellant's counsel clinching the issues in favour of the appellants as the contentions urged do not have enough merit in them. the rulings cited by the appellant's counsel will have to be examined in context of facts of each case and examined in that light, in the instant case, I do not find the facts, - situation before us, coming anywhere closer to any of the facts situation which were the subject matter of the decisions referred to by the appellant's counsel.
40. In the result the appeal is dismissed. Appellant is granted three months time from the date of this judgment to vacate and deliver vacant possession of the suit premises to the respondent/plaintiff. The appellant shall also pay the arrears of rent which is due and admitted by the appellant of the plaintiffs.
No order as to cost.