Madras High Court
Sambandam (Died) } vs Nataraja Chettiar ... First on 20 December, 2011
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20/12/2011
C O R A M
THE HONOURABLE Mr.JUSTICE M.VENUGOPAL
Second Appeal No.635 of 1997
1. Sambandam (died) }
}
2. Govindarasu } Appellants/Defendants
} 2, 3 and 5
3. Nagammal }
4. Lakshmi }
}
5. Paramasivam } Appellants 4 to 8 are
} brought on record as
6. Saraswathy } L.Rs of the deceased first } Appellant vide as per order 7. Poongodi } of Court dated 24/7/2003
} made in C.M.P.Nos.10812 and 8. Paneer Selvam } 10813 of 2002
by PSDJ).
Vs
1. Nataraja Chettiar ... First Respondent/Plaintiff
2. Rajammal }
W/o. Angappa Chettiar } (All Legal Heirs of decd
died) } Rajammal are already on
} record either as
} Appellants or Respondents
} as per Memo dated 4/8/2010
3. Tirupuram } ... Respondents 2 and 3/
Defendants 4 and 6
Second Appeal filed under Section 100 of the Code of Civil Procedure against the Judgment and Decree of the Additional Sub Court, Mayiladuthurai in A.S.No.14 of 1993 dated 14/11/1996 set aside the order of the District Munsif's Court, Sirkali in O.S.No.516 of 1980 praying that the same may be set aside.
For Appellants ... Mr.A.Arumugam
For Respondents ... Mr.A.Muthukumar
for R.1.
R.2 died
R.3 (served)
No appearance.
- - - - - -
J U D G M E N T
The Appellants/Defendants 2, 3 and 5 and later, after the death of the First Appellant/Second Defendant 4 to 8 Appellants (who have been brought on record as Legal Representatives of the First Appellant/Second Defendant are the Appellants in S.A.No.635 of 1997, filed against the Judgment and Decree of the First Appellate Court, viz., the Learned Additional Sub-Judge, Mayiladuthurai, in A.S.No.14 of 1993 dated 14/11/1996 in setting aside the Judgment and Decree of the Learned District Munsif, Sirkalai in O.S.No.516 of 1980 dated 30/10/1992.
2. The First Appellate Court, while passing the Judgment in A.S.No.14 of 1993 filed by the First Respondent/Appellant/Plaintiff has inter alia observed that the Defendants are not entitled to claim the benefits of the Madras City Tenants' Protection Act, 1921 (amended by the Act 3 of 1992) and further observed that the First Respondent/Appellant/Plaintiff is entitled to recover possession of the suit property from the Defendants and resultantly, allowed the Appeal with costs, thereby setting aside the Judgment and Decree of the trial Court passed in O.S.No.516 of 1980 dated 30/10/1992. Further, it has also granted two months time to the Defendants to handover possession of the suit property.
3. Earlier, before the trial Court in the main suit in O.S.No.516 of 1980 filed by the First Respondent/Appellant/Plaintiff, 1 to 9 issues have been framed for adjudication. On behalf of the First Respondent/Plaintiff, witnesses P.Ws.1 to 3 have been examined and Exs.A.1 to A.16 have been marked. On the side of the Appellants/Defendants, witnesses D.Ws.1 to 3 have been examined and Exs.B.1 to B.7 have been marked.
4. The trial Court, on an appreciation of oral and documentary evidence available on record, has come to a consequent conclusion that the suit filed by the First Respondent/Plaintiff in his individual capacity is not maintainable and further, the version of the Defendants that he has taken the suit property on lease for residence is a correct one. That apart, the trial Court has also observed that the notice issued by the First Respondent/Plaintiff to the deceased First Defendant is not proper and valid and has also further held that the Defendant is entitled to get the benefits under the Tamil Nadu City Tenants' Protection Act, 1921. Moreover, the trial Court has also held that the First Respondent/Plaintiff is entitled to get part compensation amount from the Appellants/Defendants and also held that the First Respondent/Plaintiff has not issued notice to the Defendants as per Section 11 of the Tamil Nadu City Tenants' Protection Act and also as per Section 106 of the Transfer of Property Act. Also, since the First Respondent/Plaintiff has filed the suit in his individual capacity, the suit filed by him is bad and accordingly, passed a decree only to the effect that the First Respondent/Plaintiff is entitled to recover a suit part sum of Rs.420/- from the Defendants and further, directed the mesne profits to be decided as per Order 20 Rule 12 of the Code of Civil Procedure by means of a separate proceedings. In respect of other reliefs, it dismissed the suit without costs.
5. At the time of admission of the Second Appeal, this Court has formulated the following substantial questions of law for consideration:-
1. Whether the suit for Recovery of possession filed by the alleged Trustee in his individual name and not in the name of trust is maintainable in law?
2. Whether the appellants having been found to have taken lease and having been found to have put up constructions thereon by both the Courts below can be said not to be entitled to protection under the City Tenants' Protection Act?
3. Whether the suit for recovery of possession without a valid notice prior to the filing of the suit as contemplated in the City Tenants Protection Act is maintainable?
6. THE CONTENTIONS, DISCUSSIONS AND FINDING ON SUBSTANTIAL QUESTION OF LAW No. (1):- It is the contention of the Learned counsel for the Appellants that the First Appellate Court failed to see that the suit for recovery of possession filed by the alleged trustee is in his individual name and not in the name of the Trust.
7. Further, the Learned counsel for the Appellants submits that the First Appellate Court committed an error in deciding the matter that the suit is band without impleading the real owner of the property viz., the Trust.
8. The Learned counsel for the Appellants submits that Section 92 of the Code of Civil Procedure meant to obtain directions of the Court in connection with the matters relating to the administration of the Trust etc., and the suit in respect of vesting the properties in a trustee will come within the purview of Section 92 (c) of the Civil Procedure Code and further Clause (c) of the Civil Procedure Code and further Clause (c) of Section 91 (1) of the Code of Civil Procedure enjoins the vesting of Management of property with the trustee and to lend support to his contention, relied on the decision MUSALIYARAKATH ABDUL AZEEZ & ANOTHER Vs. LIWA EDUCATIONAL AND CHARITABLE SOCIETY & OTHERS reported in CDJ LAW JOURNAL 2010 KERALA at page 471.
9. Per contra, it is the contention of the Learned counsel for the First Respondent/Plaintiff that the First Respondent/Plaintiff is a grandson of Thiruvengada Chettiar and after the death of Thiruvengadam's wife, Bavaniathal in the year 1966, the First Respondent/Plaintiff is the son of Rajammal, the pre-deceased daughter of Bavaniathal and therefore, he is entitled to be the trustee as per the terms and conditions of the Settlement Deed dated 8/4/1935 and consequently, he is entitled to be in possession of the suit property.
10. According to the Learned counsel for the First Respondent/Plaintiff, the suit filed by the First Respondent/Plaintiff is in his capacity as trustee duly constituted as per the provisions of the Settlement Deed dated 8/4/1935 and in fact, the First Respondent/Plaintiff concedes that the suit property belongs to the Trust.
11. As a matter of fact, the First Respondent/Plaintiff before the trial Court has filed the suit for recovery of possession of the suit property after removal of superstructures put up by the First Defendant (deceased) i.e., the father of the First Appellant/Deceased and for the recovery of amount by means of rent or by way of damages for use and occupation at the rate of Rs.12/- p.m., from 1/9/1977 amounting to Rs.420/- and for future mesne profits from the date of suit till the date of delivery.
12. It is to be noted that it is the case of the First Respondent/Plaintiff that the suit property has been taken on lease by the First defendant Angappa Chettiar (later Deceased) for the purpose of putting up a Country Oil Press and he agreed to pay a monthly rental of Rs.6/- and the lease arrangement has been entered into by the First Defendant (since Deceased) with Bavaniathal (wife of Thiruvengada Chettiar) for a period of one year beginning from 19/8/1956 and the First Defendant (later Deceased) has been put in possession of the suit property in pursuance of the said lease arrangement. The First Defendant (later Deceased) executed a lease Deed in favour of Bavaniathal on 19/8/1956 affirming the lease and the terms of the lease arrangement. It has been expressly arranged between the First Defendant and Bavaniathal that the First Defendant should not put up any structure or building in the suit property and also the First Defendant agreed that he will use the suit property solely for the purpose of putting up Country Oil Press.
13. In the plaint, the First Respondent/Plaintiff has averred that the suit property belong to Thiruvengada Chettiar, S/o. Muthusamy Chettiar of Sirkali. By means of a Settlement Deed dated 8/4/1935, he endowed the property for the purpose of performance of certain Trust mentioned in the said Deed and also provided that he will be the first trustee for the performance of the Trust and thereafter, his heirs shall be entitled to the hereditary trustees for the Management of the Trust properties and for the performance of the Trust. As per the Clauses mentioned in the Settlement Deed dated 8/4/1935, Thiruvengada Chettiar has been the first Trustee and functioned as such till his demise and thereafter, his wife Bavaniathal has become the Trustee as per the provisions mentioned in the Settlement Deed.
14. The Learned counsel for the First Respondent/Plaintiff submits that the First Respondent/Plaintiff in the plaint itself in para 7 has categorically stated that he has filed the suit in his capacity as a Trustee as per the Settlement Deed dated 8/4/1935 and further, the Plaintiff concedes that the suit property belongs to the Trust and as such merely mentioning the name of the First Respondent/Plaintiff without describing himself as trustee of the Trust in the cause title of the suit is not fatal.
15. In the written statement filed by the Defendant (Deceased) before the trial Court in paragraph 3, it is averred that he has taken on lease in his favour the suit schedule property as a private property of Bavaniathal and further, the Trust mentioned in the plaint is false and no such Trust exists. Also, even if the Trust Deed, is held to be true, the said Trust is not in existence for the past several years and the same has not been acted upon. Moreover, the property has been treated only as a private property. Bavani Athal has treated the suit property as her own and individual performed the deeds mentioned in the Trust Deed.
16. That apart, the deceased Defendant in the written statement has also pleaded that the Trust Deed mentions that the suit property will have to be maintained as 'Flower Garden' and it should not be converted for any other use. The fact remains that there has been no flower garden at all in the suit property for the past several decades and so called trustees have not performed the Kainkariams mentioned in the Trust Deed. The suit property is a private property and to lend colour to the suit, it is mentioned as a Trust property.
17. The Learned counsel for the First Respondent/Plaintiff cites a decision in N.D.AMULRAJ Vs. S.RAMASWAMY PILLI AND ANOTHER reported in 1979 TNLJ at page 328, wherein at page Nos.329 and 330, it is observed as follows:-
Apart from the question of the commencement of the tenancy, there is yet another objection raised by the learned counsel for the appellants. There is no material placed before the Courts below to show that the superstructures were put up by the first respondent prior to 19/2/1958. In order to claim the benefits of Section 9 of the City Tenants Protection Act in the instant case, the respondents must establish that they become tenants prior to 19/2/1958 when the provisions of the Act were extended to Coimbatore and also that the superstructures were put up by them before the date of the extension. It is in this connection, the learned counsel for the appellants has relied on the decision reported in Sundareswarar Devasthanam V. Marimuthu (A.I.R.1963, Madras 369). At page 375, the Bench stated thus:-
In our opinion none of those circumstances need exist; it would be enough if the tenant of the land had put up a superstructure prior to the date of the Act in the cases where the land is not part of the temple or mosque etc. In S.A.No.901 of 1968 and C.R.P.No.1338 of 1968, Ismail, J had occasion to consider this aspect of the matter and the learned Judge observed thus:-
However, a Bench of this Court in Sree Sundareswarar Devasthanam V. Marimuthu (AIR 1963 Madras 369), has proceeded on the basis that the protection will be available to a tenant only if he had put up the superstructure prior to the coming into force of the Act or the extension of the Act as the case may be. That being a decision of a Bench, it is binding on me even though the point did not directly arise in that judgment. Following that judgment, it must be held that the appellant-petitioner is not entitled to the protection of the Act because the superstructure was put by him subsequent to the extension of the Act to the city in question. In Balakrishna Mehta V. Messrs. Burmah Shell (1974 I MLJ 380) Natarajan, J had occasion to consider this and the learned Judge had applied the principles in AIR 1963, Madras 369 and the judgment of Ismail, J., to the case before him with reference to the claim or benefits of Section 9 of the City Tenants' Protection Act. In the instant case, no materials have been placed before the Courts below to establish that the respondents have put up the superstructures in question before 19/2/1958 when the provisions of the City Tenants Protection Act were extended to the city of Coimbatore. In this view also, the benefit of Section 9 of the City Tenants Protection Act claimed by the respondents has to be negatived.
18. He also cites the decision in V.RAJU Vs. ANGAMMAL reported in 1994 (1) MLJ at page 26, wherein it is held hereunder:-
When there is a denial of title the person who has denied the title of the landlord cannot claim the benefits of the enactment.
Once it is found by the Court that the defendant is not a person who can claim the benefits of the Madras City Tenants' Protection Act as a 'Tenant' defined by the Act on the ground that he has denied the title of the landlord, the relationship of the landlord and the tenant having been surrendered by the conduct of the defendant even prior to the filing of the suit, the contention that notice should have been issued under Sec.11 of the Act is wholly unsustainable.
19. He invites the attention of this Court to the decision in RAJAMMAL (DIED) AND OTHERS Vs. THE IDOL OF SRI THANTHONNEESWARASWAMI By ITS HEREDITARY TRUSTEE K.APPATHURAI reported in 1993 1 MLJ at page 387, wherein it is held as follows:-
The principle on which Bhargavakula Nainargal Sangan V. Arunachala Udayar (1990) 1 L.W 46, held that the denial of title would disentitle the defendant to get the benefits of the Act would equally apply to a case where denial of title is subsequent to the commencement of the suit.
20. A perusal of Ex.A.1 Settlement Deed dated 8/4/1935 executed by Tiruvengada Chettiar shows that the property mentioned in the document has come into his independent enjoyment hands as per Sirkali District Munsif Court Decree in O.S.No.59 of 1933. The recitals in Ex.A.1 Settlement Deed shows that for the performance of Kainkariams to God and Goddess viz., Sri Parvathi Parameshwaran, Tirupathi Srinivasa Perumal, Alamelumangai, Palani Sri Kuzhandhaivel Perumal, Sankaranarayanaswamy at Sankaranar Temple, Gomathiamman, Udayarpalayam Sri Periyanayagiamman and to raise a flower garden (Nandavanam). The suit property has been dedicated and the flowers will have to be planted and raised in the property and after himself, his heirs will be act as Hereditary Trustees and to enjoy the flowers raised and those flowers will have to be given to the Gods daily and garland has to be prepared and to adore it on the said Goddess/Gods. This property will have to be used for Nandavanam and it cannot be used for other purpose. Further, himself and his heirs have no right to encumber the property or sell the property and if they do so, it is not valid. In the schedule of property in Ex.A.1 Settlement Deed, the total extent is mentioned as 12,884 Sq.feet of land inclusive of coconut and other trees.
21. In the instant case, the First Respondent/Plaintiff has filed the suit though stated to be in his capacity as a trustee and further, he has conceded that the suit property belongs to the Trust. Yet in the cause title of the plaint, the First Respondent/Plaintiff is shown simplicitor by name and not shown as 'Trustee' of the Trust' filing the suit for and on behalf of the Trust. At this stage, it is not out of place for this Court to make a significant mention that Order XXXI Rule 1 of the Code of Civil Procedure speaks of Representation of beneficiaries in suits concerning property vested in trustees. A trustee admittedly represents the individuals beneficially interested and a third party, as opined by this Court. Where the contest in the suit is between the persons beneficially interested in such property under third person, it is not necessary to make all the trustees party in the suit, as per decision SAINATH MANDIR TRUST Vs. VIJAYA V. MANDALE reported in (2004) Vol. 106 (1) Bom LR 259 (267) (Bom). In a suit against a temple, all the trustees are necessary parties although, there may be an agreement between them and authorising one of them to represent the temple, as per decision ADIRAJU Vs. PATTU reported in AIR 1922 M at age 405.
22. This Court aptly points out the decision KISHORELAL ASERA LAL ASIRA Vs. HAJI ESSA ABBA SAIT ENDOWMENTS, rep. BY ITS TRUSTEES 1. IBRAHIM SAIT AND 4 OTHERS reported in 2003 3 Law Weekly at page 372, at page 373, wherein it is held as follows:-
Order XXXI, Rule 1 C.P.C dealing with the representation of beneficiaries in suits concerning property vested in Trustees says that the Trustee shall represent the persons so interested. This provision does not disentitle a person who happens to be a Trustee from suing for and on behalf of the Trust. A Trust not being a legal person is not entitled to sue in its own name. Therefore, in a suit for evicting the tenant from the Trust premises, the Trustees jointly or any one of them, when authorized in that behalf by the rest of them, can maintain the suit. Rule 2 of Order XXXI C.P.C says that where there are several Trustees, they shall all be made parties to a suit against one or more of them.
There is a distinction drawn between a suit filed by the Trust and the suit against the Trustees ... The Trust Deed, Ex.a.1 recognizes five Trustees. The Memorandum of Association also consists of a Governing Body consisting of five members. There is no dispute as to the fact that at the time when the suit was instituted then, all the existing five Trustees were representing the Trust. However, any change of the Trustee when the office falls vacant would not mean that the Trust is not represented properly for want of correct cause title. The Court has the power to accept any of the Trustees to represent the Trust in a suit concerning the property vested with the Trust.
23. Added further, a suit for evicting a tenant from the Trust premises can be maintained on behalf of the Trust by all the Trustees jointly or by any one of them when authorised in that behalf by the rest of them.
24. It is to be noted that a suit under Section 92 of the Code of Civil Procedure being representative in character binds all those interested in the Trust, in the considered opinion of this Court. In case of administration, where objects are not carried out for the benefit of public, remedy to the concerned/affected lies as per Section 92 of the Code of Civil Procedure.
25. A beneficiary ought to be always be made as a party when the executor is wholly uninterested in the case as he has fully administered an Estate in suits between the beneficiaries and the third person the trustees sufficiently represent the beneficiaries, though the beneficiaries are an un-ascertained and an unascertainable clause or persons. In the case before hand, though the First Respondent/Plaintiff in the plaint in O.S.No.516 of 1980 has stated that he is the son of Rajammal, predeceased daughter of Bavaniathal and that he is the grand son of Tiruvengada Chettiar, whose wife is Bavaniathal, who expired in 1966 and since he is the surviving person, he is entitled to be the trustee as per the terms of the agreement Ex.A.1 Settlement Deed dated 8/4/1935. Even though in the long cause title of the plaint, he has not shown himself as a trustee in respect of the suit property, but shown himself in his individual capacity. Since he has conceded that the suit property belongs to the Trust, the said omission is not fatal to the case and in as much as the First Respondent/Plaintiff, in paragraph 7 of the plaint, has averred that he has instituted the suit in his capacity as Trustee as per the Clauses of the Settlement Deed dated 8/4/1935 and further he has admitted that the suit property is a Trust property, this Court opines that Order XXXI Rule 1 of the Code of Civil Procedure is only an enabling provision and it does not disentitle a person who happens to be a trustee from suing in his individual capacity at his option. Although, he has not described himself as a trustee of the Trust in the long cause title of the plaint, yet, since he has instituted a suit in his capacity as a trustee and further conceded that the suit property is a Trust is non-filing of the suit in the name of Trust is not a material defect (since the said omission is only a matter of form and not of substance and the suit filed by him for recovery of possession in the long cause title of the plaint describing himself as an individual is maintainable in law and the substantial question of law No.1 is so answered in favour of the First Respondent/Plaintiff.
26. THE CONTENTIONS, DISCUSSIONS AND FINDING ON SUBSTANTIAL QUESTION OF LAW Nos.2 AND 3:- It is the case of the First Respondent/Plaintiff that the First Defendant (Angappa Chettiar/Deceased) who has been let into possession as per Lease Deed dated 19/8/1956 and he held over and continued in possession of the suit property even after the expiry of the lease period and has been paying the rent till the death of Bavaniathal. Consequent to the death of Bavaniathal, the rent has been enhanced to Rs.12/- p.m., and an arrangement has been entered into between the First Respondent/Plaintiff and the First Defendant. Except the variation in rent, the other terms and conditions as found in the lease deed have continued to be in force. According to the First Respondent/Plaintiff, the First Defendant paid a rent till 19/8/1974 and thereafter, he committed default. Since the suit property has been required for the use of the Trust and in view of the fact that the First Defendant has committed default in payment of rent from 19/8/1974, the First Respondent/Plaintiff culminated the tenancy by issuing a registered notice viz., Ex.A.3 dated 23/7/1976, in and by which the First Defendant has been asked to vacate and hand over possession of the suit property on the expiry of one year of tenancy which would expire next after six months from the date of receipt of the said notice by the First Defendant. Further more, the First Defendant has been required to pay the arrears of rent due.
27. The stand of the First Respondent/Plaintiff is that, the First Defendant has illegally and without his permission put up a thatched shed to tether and for storing of oil and Oil cakes and further, he stored shells in portion of the suit property which is unauthorised. As per Ex.A.3 notice dated 23/7/1976 issued through the First Respondent/Plaintiff's Lawyer addressed to the First Defendant, the First Defendant has been asked to remove the unauthorised storings. But the First Defendant has issued a reply notice Ex.A.4 dated 19/8/1976 through his counsel to the First Respondent/Plaintiff's counsel making some allegations.
28. The First Respondent/Plaintiff project a stand that the First Respondent has not put up any superstructures and has not taken up the residence at the suit property. In fact, there has been no arrangement for the said purpose. The lease has been for a specific purpose for fixing up as a County Oil Press and for running the same. In fact, the First Defendant is not entitled to claim the benefits of Madras City Tenants' Protection Act. The First Defendant, with a view to make it appear that the suit property has been listed out for residential purpose has made an occupier to put up a pucca structure and the First Respondent/Plaintiff immediately coming to know about the same has filed an application before the Municipal authorities objecting to the grant of permission.
29. Indeed, the First Respondent/Plaintiff has claimed rent on damages for use and occupation of the suit property by the First Defendant at the rate of Rs.12/- p.m., from 1/9/1977 amounting to Rs.420/-. Since the First Defendant died pending suit, the Defendants 2 to 6 who are his legal representatives have been arrayed as parties and they have been in possession of the assets including the suit property left behind by the First Defendant. The Defendants 2 to 6 are liable for the suit claim. Hence, the decree has been prayed for against the defendants 2 to 6.
30. The deceased/First Defendant (in the written statement filed during his life time) has averred that he has taken the suit property on lease from the First Respondent/Plaintiff's grand mother Bavani Athal and it is false to state that he has taken the suit property on lease for putting up a Country Oil Press. Really, the lease Deed will show that the lease is not only for the purpose of putting up a Country Oil Press. But it is also to have a residence. The Clauses of the lease deed will show that the intention of the parties are not to restrict the lease only for Country Oil Press. The First Defendant is entitled to have his residence in the suit property.
31. The rent originally agreed between the parties in the year 1956 has been Rs.75/- per year and in 1967, the rent has been enhanced to Rs.108/- and then in the year 1972 last, the rent has been increased to Rs.120/-. On three occasions, the Deceased/First Defendant has executed the Lease deeds. The First Respondent/Plaintiff has purposely burked the lease deeds and filed the suit. The First Defendant (since Deceased) during his life time has been dealing with one D. Srinivasan on behalf of Bavani athal. The said D.Srinivasan used to come up at Sirkali and received payments from the First Defendant and executed receipts for payments. The last receipt furnished by him on stamp paper as on 13/4/1975 for the year beginning from 31/3/1974 to 31/3/1975, the First Defendant (Deceased) has been under the impression that Bavani athal has been alive and she has been sending her agent Srinivasan to collect the rent. But, he has come to know about the death of Bavani Athal only on receipt of notice Ex.A.3 dated 23/7/1976 and soon sent Ex.A.4 his Lawyer's notice dated 19/8/1976. The receipts obtained from Srinivasan will show that the First Defendant is having his residence in the suit property. The First Defendant has sent a Money Order on 4/8/1976, but it has been refused.
32. According to the written statements filed by the First Defendant (since Deceased), he is a tenant within the meaning of Sub-Section 2 of Section 4 of the Madras City Tenants' Protection Act, 1921 and the said Act has been extended to Sirkali Town by G.O.Mis.No.47 Revenue dated 8/1/1973 for the residential purposes and by G.O.Ms.No.1285 Revenue dated 31/5/1975 published in the Tamil Nadu Gazette on 25/6/1975 for non-residential purpose also. Therefore, he is entitled to the payment of compensation on ejectment for the value of the building put up by him in the vacant site. That apart, he is also entitled to ask the land lord to sell the land to him as per Section 9 of the said Act. The First Defendant has spent more than Rs.15,000/- to construct buildings, cattle shed and other superstructures in the suit property.
33. It is to be noted that in order to claim the benefits under the Madras City Tenants' Protection Act, 1921, a tenant should prove that he comes under the definition of tenant.
34. A tenant in contravention of the agreement, if he puts up a superstructure, still he is entitled to the benefits of the Act, as per decision N.NARAYAN DOSS (@) PURUSHOTHAM DOSS Vs. R.VENKATASAMY NAIDU reported in 1960 (2) MLJ at page 328.
35. In MEENAKSHI SUNDARESWARAR DEVASTHANAM, SALEM Vs. PALANISAMY AND OTHERS reported in 1999 (1) MLJ at page 54, it is observed that the tenants, who filed petitions claiming rights to purchase the land under Section 9 of the Act, which have been allowed and subsequently by Act 2 of 1996 it is held that by virtue of the Amendment, the orders cannot be executed.
36. In 1997 (2) MLJ at page 92, the Honourable Supreme Court has observed that a tenant even if he fails to file a petition as per Section 9 of the Act, he can question the maintainability of the suit for eviction for want of notice as per Section 11 of the Act.
37. In T.S.DEVARAJA GRAMANI Vs MURUGESAN reported in 1966 (2) MLJ at page 340 it is held that a tenant who was agreed not to put up any construction and in spite of agreement has constructed, the same cannot be deprived of his right under the Act.
38. The City Tenants Protection Act is applicable only if the lease is in respect of a vacant site. If the lease consists of other than the land, the Act is not applicable as per decision INDIAN COMMERCE & INDUSTRIES (P) Ltd., Vs. SWADHARMA SWARAJYA SANGHA, rep. BY ITS DIRECTOR, Mrs.LALITHA RATHINAM reported in 1998 L.W at page 95.
39. In MOHAMMED HANEEF Vs. HALEEL BASHA AND ANOTHER reported in 1996 (2) MLJ at page 301, it is held that the Notification under Section 1 (6) of the Act extending the provisions to non-residential buildings in all Municipal Towns in the State need not be placed before the Legislature.
40. It is to be noted that as per G.O.Ms.No.49 Revenue dated 8/1/1973, the provisions of the Madras City Tenants' Protection Act, 1921 has been extended to certain Municipal Towns and Villages in the State viz., Mannargudi, Pattukottai, Tiruvarur and Sirkali.
41. Further, the extension of Chennai City Tenants' Protection Act, 1921 to non-residential buildings in all Municipal Towns in the State of Tamil Nadu is extracted thus:-
(G.O.Ms.No.1285, Revenue, dated the 31st May 1975 and published in Part II of the Tamil Nadu Government Gazette, dated 25/6/1975 at pages 302 and 303.) No.II (2) REV. 2105/75 Whereas it has been represented to the Government of Tamil Nadu that there is need to extend the provisions of the Chennai City Tenants' Protection Act, 1921 (Tamil Nadu Act III of 1922) to non-residential buildings in all municipal towns;
AND WHEREAS, the Government have examined the proposals and are satisfied that in the context of growth of trade and industry involving new enterprise and business ventures, a protection similar to the one available in respect of residential building should be available also in respect of non-residential buildings in all municipal towns.
NOW THEREFORE, in exercise of the powers conferred by sub-clause (i) of clause (1) of Section 2 of the said Act, the Governor of Tamil Nadu hereby specifies the municipal towns for the purpose of the said clause, with effect on and from the date of publication in the Tamil Nadu Government Gazette.
42. From Exs.B.4 to B.36 Revenue receipts signed by D.Srinivasan for Bavaniathal Aduthurai shows that in the suit vacant site, there is a Country Oil Press and further the First Defendant has been mentioned as residing in the said land. As a matter of fact, Ex.B.13 receipt dated 13/4/1975 proves the existence of the dwellings and the superstructure even before Act 19/55 extended to Sirkali Town. Exs.B.6 to B.13 receipts beginning from 31/3/1967 to 13/4/1975 (given by Srinivasan) Agent of Bavani Athal) are prior to Ex.A.12. Therefore, it is candidly clear that the deceased/First Defendant has put up a building in the suit property. The settlement Deed dated 8/4/1935 is Ex.A.1 is an ancient document more than 30 years old and therefore, its authenticity/credibility cannot be doubted. The Defendants have although stated that they do not know about Ex.A.1 Settlement Deed dated 8/4/1935, they have not denied Ex.A.1 Settlement Deed and as such Ex.A.1 Settlement Deed is held to be a true one by this Court.
43. P.W.1 (Son of Rajammal) in his evidence has deposed before the trial Court that his grand mother is Bavaniathal and his mother is Rajammal and that he is the only son to his mother Rajammal and for his grand mother Bavani Athal, he is the heir and after Bavani athal, he remains as a trustee and doing charity work and for putting the Country Oil Press and enjoying the same. A portion of the suit property has been let out on lease to the First defendant Angappa Chettiar and Ex.A.2 is the rent deed dated 19/8/1956 between the First Defendant and Bavani Athal and that no permission has been given to the First Defendant for constructing the building and to reside there in the constructed building.
44. It is the further evidence of P.W.1 that the First Defendant in the suit property has made an attempt to put up a construction in the building and he has projected an application to the Municipality, requesting it not to grant permission for putting up the building construction and that Srinivasan from the year 1972 is not working under him and that even at the time of filing of the suit, there is no Country Oil Press and even two or three years before filing of the suit, there is no Country Oil Press in the suit property and permission has been given for putting the cattle shed and for putting the Country Oil Press.
45. P.W.1 in his further evidence has deposed that it is wrong to state that Bavani Athal has granted permission to the First Defendant to reside in the suit property and also that apart from the suit property, there is no other property to the Trust and his mother Rajammal has executed a Trust and from the year 1957, for 30 years, there is no flower garden (Nandavanam) and also from the year 1957, there are no flowers.
46. The evidence of P.W.1 also goes to the effect that the Accountant Muthaiya Pillai has written a letter during 1974 last that in the suit property, he is to construct a house and he does not know when the City Tenants' Protection Act has been extended to Sirkali Town.
47. It is the evidence of P.W.2 that the First Defendant has agreed to take the suit property on lease pagudi and he has not been given the permission to reside in the suit property and for the past 10 or 15 years, there is no Country Oil Press and in the suit property, there are no houses and the First Defendant has made an attempt to put up a house and he informed who has taken an action in this regard.
48. P.W.2 in his cross-examination has stated that in the suit property during the year 1935 to 1945, there would have been a flower garden and thereafter, there is no flower garden and the flower performance events have not been performed to the temple and during Tiruvengadam's period, the suit property has remained a vacant land and for putting up the Country Oil Press, permission has been granted during Bavani's time and during the year 1976, when he has seen the suit property, there is no Country Oil Press and thereafter, he has not vested the suit property.
49. P.W.3 (Secretary of the Plaintiff) in his evidence has deposed that in the suit property, till the time of filing of the suit, there have been no houses and in the suit property, Defendants have not resided at any point of time.
50. P.W.3 (in his cross-examination) has deposed that he has seen the suit property seven or eight years before and at that time, there has been a cattle shed alone and now, he has not seen the suit property and it is incorrect to state that from the year 1978 to 1979, Defendants are residing and before seven or eight years in the shed, one Asari has been residing and when he has vacated and subsequently, who has come and resided in the shed, he is not aware about it.
51. It is the evidence of D.W.1 that the First Defendant (Deceased) has been in possession of the suit property from the year 1938 and the First Defendant has orally accepted the lease during Tiruvengadam Chettiar's period. Before the year 1955, the First Defendant (Deceased) has been a Tenant, taken the property on lease of the suit property and since the City Tenants' Protection Act has been extended to Sirkali Town by G.O.Ms.No.47 Revenue dated 8/1/1973 for the residential purposes and G.O.Ms.No.1285 Revenue dated 31/5/1975 published in the Tamil Nadu Gazette on 25/6/1975 for non-residential purpose, the Defendants are entitled to get the benefits of the City Tenants' Protection Act.
52. It transpires from record that before the trial Court, the First Defendant and after his death, the other Defendants filed I.A.No.1911 of 1983 in O.S.No.516 of 1980 under Section 151 of the Code of Civil Procedure praying to condone the delay in filing the application under Section 9 of the City Tenants' Protection Act.
53. A counter has been filed on behalf of the First Respondent/Plaintiff in I.A.No.1911 of 1983 in O.S.No.516 of 1980 before the trial Court and finally, the trial Court has dismissed the I.A. No.1911 of 1983 on 16/8/1991 without costs.
54. The dismissal order passed in I.A.No.1911 of 1983 by the trial Court has been affirmed by the Honourable High Court in the Civil Revision Petition.
55. The trial Court has come to a conclusion while passing Judgment in the suit to the effect that even though I.A.No.1911/83 has been dismissed by the trial Court and subsequently, affirmed by the High Court in Civil Revision Petition, still the Defendants are entitled to get the benefits of the Tamil Nadu City Tenants' Protection Act.
56. However, the First Appellate Court in its Judgment in A.S.No.14 of 1993 has come to a conclusion that even though a Trust has been created for the purpose of carrying out certain events for temple purposes and the Defendants are entitled to get some benefits under Act 3 of 1992 yet as per Amended Act 2 of 1996, the said benefits are abated and as such it has been held that the Defendants are not entitled to get the benefits of the City Tenants' Protection Act. In as much as the benefits of Act 3 of 1922 under the Tamil Nadu City Tenants' Protection Act, 1921 have been taken away by means of an amended act 2 of 1996, it is held by this Court that the Appellants are not entitled to claim the benefits of protection under the Tamil Nadu City Tenants' Protection Act and accordingly, substantial question of law No.2 is so answered.
57. Coming to the aspect, whether the suit for recovery of possession filed by the First Respondent/Plaintiff without issuing a valid notice prior to the filing of the suit as required in the Tamil Nadu City Tenants' Protection Act, 1921, it has to be pointed out that the First Respondent/Plaintiff has issued a Lawyers' Notice Ex.A.3 dated 23/7/1976 addressed to the Deceased/First Defendant wherein the deceased/First Defendant has been required to vacate and hand over the possession at the expiry of that year of tenancy, which would expire next after six months, after the receipt of the notice, etc. In Ex.A.3, the First Respondent/Plaintiff's Lawyer's Notice, it is mentioned that the suit property is required for the use of the Trust and further, the First Defendant has committed wilful default in the matter of payment of rent in 19/8/1974 and as such the First Respondent/Plaintiff is not desirous of continuing the tenancy and therefore, the tenancy is terminated by this notice to equity.
58. Ex.A.4 is the reply Lawyer's notice dated 19/8/1976 issued on behalf of the First Defendant addressed to the First Respondent/Plaintiff's Lawyer wherein it is mentioned that the First Defendant has taken on lease the suit property as a private property of Bavani Athal and the Trust mentioned in Ex.A.4 is false and no such Trust exists etc.
59. As a matter of fact, in Ex.A.4 the First Defendant's reply Lawyer's notice dated 19/8/1976, in para 5 it is clearly mentioned hereunder:-
My client is entitled to the benefit of Madras City Tenants' Protection Act 1921. He is a tenant within the meaning of Section 4 of the said Act. The said Act was extended to Sirkali Town by G.O.Mis. 47 Revenue dated 8th January 1973 for residential purposes and by G.O.Mis.No.1285 Revenue dated 31st May 1975 published in the Gazette on 25/6/1975 for non-residential purposes. Therefore, my client is entitled to payment of compensation on ejectment for the value of the building put up by him in the vacant site of your client and he is also entitled to ask the Land Lord to sell the land to him under Sec.9 of the said Act.
60. From the above Ex.A.4 reply Lawyers' notice dated 19/8/1976, it is clear that the First Defendant has been a tenant within the meaning of Section 4 of the Madras City Tenants' Protection Act, 1921 and that the said Act has been extended to Sirkali Town by G.O.Ms.No.47 Revenue dated 8/1/1973 for residential purposes.
61. In this connection, it is not out of place for this Court to quote Section 11 of the Madras City Tenants' Protection Act, 1922 which reads hereunder:-
No suit in ejectment or applications under Section 41 of the Presidency Small Cause Courts Act, 1882 (Central Act XV of 1882) shall be instituted or presented against a tenant until the expiration of three months next after notice in writing has been given to him requiring him to surrender possession of the land and building and offering to pay compensation for the building and trees, if any, and stating the amount thereof.
{A copy of such notice shall, at the same time, be sent, in the case of property situated in the City of (Chennai) to the Commissioner of the Corporation of (Chennai), or in the case of property situated in any (municipal town, township or village) to which this Act is extended, to the executive authority of the (municipality or township) or the executive officer of the Panchayat, as the case may be or any other authority as may be notified by the Government.}
62. It is to be pointed out that Section 11 of the Act is intended to put the tenant a notice about his rights as per Section 3 and as per Section 9 of the City Tenants' Protection Act. Although, the tenants remedy under Section 9 of the City Tenants' Protection Act is barred by time, the benefit under Sections 3 and 11 of the said Act is not taken aware, as per decision AZIZUNNISSA BEGAM V. Vs. GOVINDAN NAIR reported in {1972} 1 MLJ 169.
63. The plaintiff in a suit ought to serve notice as per Section 11 of the Madras City Tenants' Protection Act on the persons, who are entitled to the lease hold interest at the time when he seeks to eject them. The defect of non-service of notice cannot be cured by including some of them as tenants subsequently, as per decision RAHMAT BI V. R.KRISHNA DOSS LOLA reported in AIR 1940 Madras at page 641.
64. A notice according to Section 11 of the Act is a condition precedent for institution of a suit in ejectment. It is held in a decision KASIVISWANATHAN AMBALAM Vs. MR.R.M.MUTHIA CHETTIYAR reported in (1981) 2 MLJ at page 192, wherein it is held that Though the Act was not applicable to the area in question at the time of the institution of the suit, when the act was extended to the area by Notification, the suit instituted earlier should abate if it does not comply with the provision of Section 11 regarding notice.
65. The aim of issuance of notice as per Section 11 of the Act is to provide an opportunity to the tenants to surrender the possession with an offer that the tenant can be compensated for the building and trees and the tenant can consider such an offer within the period of three months as per decision RAMACHANDRAN S.A. V. S.NEELAVATHY reported in (1997) 1 CTC 298.
66. Section 11 of the Madras City Tenants' Protection Act is mandatory and imposes an unqualified obligation upon the Court not to entertain the suit in ejectment in the absence of compliance with its provisions, as per decision RAO BAKADUR V. RANGANATHAN MARIAPPA MUDALIAR reported in AIR 1942 MAD at page 334.
67. As far as the present case is concerned that the First Respondent/Plaintiff has not issued Ex.A.3 Notice dated 23/7/1976 before filing of the suit as per Section 11 of the City Tenants' Protection Act to the First Defendant (Deceased). As stated already, the ingredients of Section 11 of the Madras City Tenants' Protection Act, 1921 are mandatory in character. In the absence of a prior notice before filing of the suit as per Section 11 of the act, the suit O.S.No.516 of 2000 filed by the First Respondent/Plaintiff before the trial Court is not maintainable and accordingly, substantial question of law No.3 is so answered.
68. In the result, the Second Appeal is allowed, leaving the parties to bear their own costs. The Judgment and Decree of the First Appellate Court in A.S.No.14 of 1993 dated 14/11/1996 are set aside by this Court for the reasons assigned in this appeal. Consequently, the suit O.S.No.516 of 1980 filed by the First Respondent/Plaintiff on the file of the Learned District Munsif, Sirkali is dismissed.
mvs To
1. The Additional Sub-Court, Mayiladuthurai
2. The District Munsif's Court, Sirkali