Karnataka High Court
Sri B. Chikkanna S/O Sri Chikkegowda vs Sri N. Narasinga Rao S/O Late ... on 9 November, 2005
Equivalent citations: ILR2006KAR2970, 2006 (4) AIR KANT HCR 375, 2010 (15) SCC 164, 2006 A I H C 2483, (2007) 1 RENCR 268, (2006) 2 RENTLR 458, (2006) 4 ICC 402, (2001) 3 SCALE 533, 2003 (12) SCC 231, (2010) 2 ORISSA LR 257, (2010) 46 OCR 374, (2010) 46 OCR 613, (2010) 4 SCALE 439, 2013 (2) SCC (CRI) 162, 2006 (4) AIR KAR R 375
Author: N. Kumar
Bench: N. Kumar
ORDER N. Kumar, J.
1. The petitioner has challenged in this revision petition the order passed by X Additional Small Causes Judge at Bangalore in HRC No. 1191/96 dismissing the petition filed under Section 27(2)(r) of the Karnataka Rent Act 1999.
2. The petitioner is the owner of property bearing no. 69/1, (old) 137/1 situated at 8th cross road, Margosa road, Malleswaram, Bangalore-3. In the ground floor of the said premises there were four shops. Deceased respondent Sri. N. Narasinga Rao was in occupation of one shop which is more particularly described in the schedule to the eviction petition and hereinafter referred to as schedule shop. The rent of the premises was Rs. 250/-, The petitioner filed an eviction petition against all the four tenants under Section 21(1)(h) of the Karnataka Rent Control Act 1961 on the ground that the entire building is in a dilapidated condition, it requires to be demolished and a new construction is to be put up for the benefit and requirement of his grown up sons to carry on cloth business. All the four petitions were clubbed together. Common evidence was recorded. During the pendency of those eviction petitions the Karnataka Rent Control Act 1961 was repealed and it was substituted by Karnataka Rent Act 1999 (for short hereinafter referred to as the Act). Out of the four shops one was measuring more than 14 sq.meters. Therefore the petitioner filed a memo and got the eviction petition filed against that shop dismissed as the Act was not applicable to the shop premises measuring more than 14 sq.meters. In respect of the other three shops he amended the pleadings and substituted the ground 21(1)(h) by the ground under Section 21(2)(r) of the Act, Thereafter the trial court on consideration of the evidence on record dismissed all the three petitions by common order holding that the petitioner has failed to establish his case of requirement of the premises. Aggrieved by the said common order, the petitioner filed three revision petitions. In the two revision petitions he has entered into a compromise with the tenants who have agreed to vacate the premises subject to the condition that they would be accommodated in the newly constructed building and accordingly the said two revision petitions are disposed of.
3. During the pendency of these revision petitions before the High Court the tenant N. Narasinga Rao died on 11.7.2002. After his death the petitioner has filed an application to bring his legal representatives on record. Accordingly the widow of the deceased tenant, his three sons and daughters have been brought on record.
4. The legal representatives of the deceased tenant have filed an application to bring on record certain documents, which according to them, would show that the schedule shop premises measures more than 14 sq.meters and the deceased tenant's spouse Smt. Lakshmi Bai is carrying on business in the schedule shop premises. Objections have been filed by the petitioner disputing those facts. Arguments were heard on merits as well as on the said application.
5. Learned Counsel appearing for the petitioner contends, in view of Section 5 of the Act, there is no necessity for this Court to go into the merits of the case, as in the Act the tenancy is heritable for a limited period subject to the legal representatives satisfying the condition. As the legal representatives have not satisfied those conditions, this Court could straight away pass the order of eviction setting aside the impugned order. Elaborating the said contention he contends that in the evidence adduced before the court below the deceased tenant did not step into the box. His son by name Mahesh Kumar who deposed as general power of attorney holder of the tenant has stated that it is he who is carrying on the business. As the said son was not dependent on the father and he was having two other independent establishments, he is not entitled to inheritance of the tenancy. Even otherwise, his right has to be only for a period of one year from the date of the death of the tenant. The contention of the wife that she was carrying on business runs counter to the evidence on record and all the documents produced before the court in these proceedings are post-litum documents which have no value. Admittedly when the wife was not carrying on business along with the deceased tenant, she is not entitled to inherit tenancy right. When the tenant in the trial Court did not raise the plea that the schedule premises measures more than 14 square meters, it is not open to the legal representatives to raise such a plea for the first time in Revision Petition.
6. Per contra, learned Counsel appearing for the legal representatives submits that the shop in question measures more than 14 sq.meters. Therefore the Act is not attracted and as such no order of eviction can be passed. Secondly he contends, though in the trial court his son was examined as power of attorney holder of the deceased tenant, the son is not interested in claiming the tenancy right, but the wife of the deceased tenant as she was living with the deceased tenant at the time of his death, she is entitled to inherit the tenancy right for a period of five years in terms of Section 5, Therefore if the court comes to the conclusion that the Act is attracted to the shop in question, then the wife is entitled to continue to be in occupation of the shop premises for a period of five years from the date of death of the deceased tenant.
7. In view of the aforesaid contentions, the points that arise for consideration are as under :
(i) Whether the legal representative of a deceased tenant can raise a new and inconsistent plea in the revisional Court, when the deceased tenant did not raise such a plea in the trial Court?
(ii) Whether the wife of a deceased tenant, who was living with the deceased tenant up to the date of his death, but who was not carrying on business in the leased premises is entitled to inherit the right of tenancy in respect of the leased premises
8. Point No. (i) : In the eviction petition filed by the petitioner the measurement of the shop premises is not given. In the statement of objections filed to the said eviction petition also the measurement of the shop premises was not given. Rent of the shop premises was Rs. 250/- and therefore the Karnataka Rent Control Act 1961 was applicable to the shop in question. It is only during the pendency of the proceedings the said Act was repealed and the Act came into force. Section 2(3)(g) of the Act provides that nothing contained in the Act shall apply to any premises used for the non-residential purpose but excluding premises having a plinth area of not exceeding 14 sq. meters, used for commercial purpose. Therefore, if the schedule premises has a plinth area exceeding 14 sq.meters then the Act has no application. In fact, the landlord has filed four eviction petitions. After coming into force of the Act, he got one petition dismissed on the ground that the plinth area of that shop exceeds 14 sq.meters. That petition was clubbed along with these three petitions and an order came to be passed dismissing the said petition. The tenant who was contesting the petition did not file any application for amendment of the statement of objections, in the light of the aforesaid provision contending that the Act is not applicable. He was fully conscious of the said provision, and also the dismissal of one eviction petition on that ground. He did not choose to take advantage of the said provision. On the contrary he acquiesced with the jurisdiction of the court, participated in the proceedings and was successful in getting the petition dismissed on merits. The tenant died on 11.7.2002 during the pendency of this proceedings. It is only thereafter the legal representatives have raised this plea.
9. In fact, the Supreme Court in the case of Gajraj v. Sudha and Ors. ILR 1999 Karnataka SN. No. 54 P.117 held that legal representatives are bound by the pleadings of the predecessor in whose place they are to be substituted. A legal representative cannot set up a new or individual right. He cannot take up a new and inconsistent plea contrary to the one taken up by the deceased. The proposed LRs stand in the shoes of the deceased tenant and must accept their position adopted by the said predecessor. It is well settled that the objection regarding jurisdiction had to be raised at the earliest point of time, that too, before settlement of issues and they cannot be permitted to be raised in appeal or revision when the finding on the said jurisdictional issue involves mixed question of law and fact.
10. Therefore, the law is well settled. The legal representatives stand in the shoes of the deceased tenant and they must contest the proceedings on the pleas raised by the original tenant. Moreover plea regarding jurisdiction cannot be permitted to be raised for the first time in revision when the said jurisdictional issue involves mixed question of fact and law. The plea now raised was available to the deceased tenant, which he did not raise rightly because there was no merit in the same as is clear from the material on record. Having not raised such a plea at or before the settlement of issues, the deceased tenant himself could not have raised the said plea in revision for the first time. Therefore it is not open to the legal representatives of the deceased tenant to contend before this Court for the first time that the schedule shop premises measures more than 14 sq.meters and that the Act is not applicable. Even otherwise I have gone through the evidence on record. The said evidence do not disclose that the schedule shop premises is more than 14 sq.meters. Under the circumstances I do not find any substance in the said contention.
11. Point No. (ii): The Karnataka Rent Act, 1961 was repealed by the Karnataka Rent Act, 1999. While enacting "the Act" the legislature has taken note of the various controversies raised for over a period of more than 50 years in interpreting the various provisions of the previous Act. In order to see such controversies do not reappear, sufficient care has been taken in the Act. One such controversy was relating to the heritability of tenancy rights. In the earlier Act the tenant was defined under Section 3(r) as under :
"tenant" means any person by whom or on whose account rent is payable for a premises and includes the surviving spouse or any son or daughter or father or mother of a deceased tenant who had been living with the tenant in the premises as a member of the tenant's family up to the death of the tenant and a person continuing in possession after the termination of the tenancy in his favour, but does not include a person placed in occupation of a premises by its tenant or a person to whom the collection of rents or fees in a public market, cart-stand or slaughter house or of rents for shops has been framed out or leased by a local authority.
(underlining by me)
12. Interpreting the words "who had been living with the tenant in the premises as a member of the tenant's family up to the death of the tenant", it was held in some judgments that only tenancy rights in respect of residential premises was heritable and tenancy rights in respect of non-residential premises was not heritable. Ultimately the Apex Court has to hold that the tenancy rights in respect of both residential and non-residential premises was heritable. Under the Act, those words are conspicuously absent in the definition of the tenant in the Act. Section 3(n) defines who the tenant. It reads as under:
"tenant" means any person by whom or on whose account or behalf the rent of any premises, is or but for a special contract would be, payable and includes, -
(i) a sub-tenant;
(ii) any person continuing in possession after the termination of his tenancy, but does not include any person to whom a licence as defined in Section 52 of the Indian Easements Act, 1882 (Central Act 5 of 1882) has been granted.
13. Therefore, the legislature took note of the controversies under the earlier enactment and has remedied the same by expressly deleting those words in the definition clause in the present Act. Not only that a specific Section 5 was enacted, dealing with inheritability of tenancy and declaring that the tenancy rights are heritable. It is in this back ground under the present Act we have to find out under what circumstances the tenancy right is heritable. Section 5 of the Act reads as under :
5. Inheritability of tenancy.- (1) In the event of death of a tenant, the right of tenancy shall devolve for a period of five years from the date of his death of his successors in the following order, namely:
(a) spouse;
(b) son or daughter or whether there are both son and daughter both of them;
(c) parents;
(d) daughter-in-law, being the widow of his predeceased son:
Provided that the successor has ordinarily been living or carrying on business in the premises with the deceased tenant as a member of his family up to the date of his death and was dependent on the deceased tenant;
Provided further that a right to tenancy shall not devolve upon a successor in case such successor or his spouse or any of his dependent son or daughter is owning or occupying a premises in the local area in relation to the premises let, (2) If a person, being a successor mentioned in Sub-section (1), was ordinarily living in or carrying on business in the premises with the deceased tenant but was not dependent on him on the date of his death, or he or his spouse or any of his dependent son or daughter is owning or occupying a premises in the local area in relation to the premises let to which this Act applies, such successor shall acquire a right to continue in possession as a tenant for a limited period of one year from the date of death of the tenant; and, on the expiry of that period, or on his death, whichever is earlier, the right of such successor to continue in possession of the premises shall become extinguished.
Explanation.- For the removal of doubts, it is hereby declared that.-
(a) Where, by reason of Sub-section (2), the right of any successor to continue in possession of the premises becomes extinguished, such extinguishment shall not affect the right of any other successor of the same category to continue in possession of the premises but if there is no other successor of the same category, the right to continue in possession of the premises shall not, on such extinguishment, pass on to any other successor specified in any lower category or categories, as the case may be;
(b) the right of every successor, referred to in Sub-section (1) to continue in possession of the premises shall be personal to him and shall not, on the death of such successor, devolve on any of his heirs.
14. A reading of the aforesaid Section makes it very clear that the legislature declares that the right of tenancy is heritable. The word "tenancy" is not defined in the Act. In Section 5 no distinction is made between the tenancy rights in respect of a residential or a non-residential premises. But the Section makes it clear that the tenancy rights are heritable only for a specified period. Under Sub-section (1) of Section 5 the tenancy rights are heritable for a period of five years and under Sub-section (2) of Section 5 the successor acquires a right to continue in possession as a tenant only for a period of one year. In fact the word used in Sub-section (2) is, the successor shall acquire a right to continue in possession as a tenant for a limited period of one year. Strictly speaking it is not a tenancy right at all. It is a right to continue in possession as a tenant for a period of one year, 15, Sub-section (1) of Section 5 defines who are the persons who are entitled to inherit this tenancy right. They are called as "successors". More important is all the successors named in Sub-section (1) of Section 5 do not inherit the tenancy rights simultaneously. They inherit the tenancy rights only in the order in which it is mentioned in the said sub-section. In other words one successor excludes the other successor. If the successor is a spouse of the deceased tenant, all other successors of the deceased tenant mentioned in the said Sub-section stands excluded in preference to the spouse of the deceased tenant But, even that successor to inherit this tenancy right should satisfy certain legal requirements. One such legal requirement is the said successor should ordinarily been living or carrying on business in the premises with the deceased tenant as a member of his family up to the date of his death, Second legal requirement is the said successor should be dependant on the deceased tenant. Therefore, for a tenancy to devolve on a successor under Sub-section (1) of Section 5 for a period of five years, such a successor firstly should be ordinarily living as a member of the family up to the date of his death and secondly be dependant on the deceased tenant, The second proviso to Sub-section (1) of Section 5 makes it clear under what circumstances the aforesaid tenancy right shall not devolve upon a successor. Even if a successor satisfies the aforesaid dual legal requirement, if such a successor is owning or occupying a premises in the local area in relation to the premises let, then the tenancy right shall not devolve upon such successor. In those circumstances what should happen is provided in Sub-section (2) of Section 5. Such a successor would not inherit any right of tenancy, but such a successor shall acquire a right to continue in possession as a tenant for a limited period of one year from the date of death of the tenancy. However, on the expiry of that period or on his death whichever is earlier the right of such successor to continue in possession of the premises shall become extinguished. Explanation to Sub-section (2) of Section 5 provides that, the extinguishment of such right of a successor shall not affect the right of any other successor of the same category to continue in possession of the premises, but if there is no other successor of the same category, the right to continue in possession of the premises shall not, on such extinguishment, pass on to any other successor specified in any lower category or categories, as the case may be. Explanation (b) declares that such a right to continue in possession of the premises is a right conferred on the successor and it shall be personal to him and shall not on the death of such successor devolve on any of his heirs.
16. It was contended that, in view of the language employed in first proviso to Sub-section (1) of Section 5 in respect of non-residential premises, unless the successor was also carrying on business in the leased premises with the deceased tenant, such a successor is not entitled to inherit the tenancy rights. A wife who was living with the deceased tenant as a member of the family up to the date of his death but who was not carrying on the business in the leased premises with the deceased tenant would not be entitled to the benefit of inheriting right of tenancy for a period of five years. Though this argument on the face of it looks attractive, on a deeper scrutiny it is without any merit.
17. A closer scrutiny of the aforesaid Section makes it clear, the word "in the premises" in the first proviso to Sub-section (1) of Section 5 do not necessarily refer to the premises let. The legislature has expressly used the words "premises let" in respect of the premises in respect of which the right of inheriting of tenancy right is involved. The word "let" is conspicuously missing in the first proviso after the word "premises". Similarly, the significance of the word "ordinarily" used in the proviso cannot he ignored. Therefore, the requirement under the aforesaid proviso is that the successor has ordinarily been living or carrying on business, with the deceased tenant, as a member of the family up to the date of his death. "In the premises" used in the said proviso may include other premises apart from the "premises let". Otherwise if the aforesaid words are literally interpreted, if a wife or minor children who are living with the deceased tenant in a premises, as a member of his family up to the date of his death and was also dependant on him, but if they are not carrying on business with the deceased tenant in the premises which is taken on lease then they would not be entitled to inherit the tenancy rights for a period of five years in respect of the premises where business was been carried on. Normally wives who are living with their husbands do not carry on business with their husbands in the shop premises. If those words are literally interpreted, it means that the wife as she was not carrying on business in the premises with her husband she would not be entitled to the tenancy rights at all. The grammatical construction thus leads to absurdity and leads to a manifest contradiction on the apparent purpose of the enactment and results in injustice, hardship and inconvenience which was never intended by the legislature at all. The legislature would not use words which offends a sense of justice.
18. It is a rule of interpretation well established, that where the language of a statute, in its ordinary meaning and grammatical construction leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence (Maxwell's Interpretation of Statutes, 10th Edition, p.229). The Court will interpret a statute as far as possible, agreeably to justice and reason and that in case of two or more interpretations, one which is more reasonable and just will be adopted, for there is always a presumption against the law maker un-intending injustice and unreason. The Court will avoid imputing to the Legislature an intention to enact a provision which flouts notions of justice and norms of fair play, unless a contrary intention is manifest from words plain and unambiguous. A provision in a statute will not be construed to defeat its manifest purpose and general values which animate its structure. It is the duty of Courts to give effect to the meaning of an Act when the meaning can be fairly gathered from the words used, that is to say, if one construction will lead to an absurdity while another will give effect to what commonsense would show was obviously intended, the construction which would defeat the ends of the Act must be rejected even if the same words used in the same section, and even the same sentence, have to be construed differently. Indeed, the law goes so far as to require the Courts sometimes even to modify the grammatical and ordinary sense of the words if by doing so absurdity and inconsistency can be avoided. Courts should not be astute to defeat the provisions of an Act whose meaning is, on the face of it, reasonably plain, Of course, this does not mean that an Act, or any part of it, can be recast. It must be possible to spell the meaning intended for out of the words actually used. Therefore, having regard to the problems faced while interpreting the previous legislation, after repealing the said law, in the new law, the legislature took care to declare that the tenancy rights are heritable in respect of both residential and non residential premises, and introduced a specific section conferring such right, the said provision cannot be interpreted so as to take away right conferred under the statute, The meaning of the section is quite plain and only desperate hairsplitting can reduce it to an absurdity. The interpretation suggested leads to absurdity and offends sense of justice.
19. From the aforesaid discussion under what circumstances the tenancy rights are heritable can be deduced as under:
(1) Under the Act on the death of a tenant, the right of tenancy in respect of residential and non-residential premises is heritable.
(2) The said tenancy is heritable only in favour of the persons mentioned in Sub-section (1) of Section 5 and none else, who are called "successors".
(3) For a successor to inherit a tenancy right, he/she must satisfy two conditions.
(a) The successor should ordinarily been living or carrying on business in the premises with the deceased tenant as a member of his family or to the date of his death.
(b) Such a successor should be dependent on the deceased tenant.
(4) Even if those two conditions are satisfied by the successor, but if such a successor or his spouse or any of his dependent son or daughter is owning or occupying a premises in the local area in relation to the premises let, then they are not entitled to inherit the tenancy rights.
(5) But, such a successor shall acquire a right to continue in possession as a tenant for a limited period of one year from the date of death of the tenant.
(6) However, if such a successor is not ordinarily living or carrying on business in the premises with the tenant as a member of his family up to the date of his death he inherits no right of tenancy or right to continue in possession of the premises let. Ordinarily living or carrying on business in the premises with the deceased tenant as a member of his family up to the date of his death is a condition precedent for application of Section 5 of the Act. Otherwise Section 5 has no application.
20. In the instant case, it is immaterial who was carrying on business in the schedule premises on the date of death of the deceased tenant. The evidence on record discloses that the deceased tenant was aged and he was unable to carry on the business. Therefore his son was carrying on business. He gave his son the power of attorney to depose and contest the eviction petition. The son has deposed that he is carrying on business. It does not mean that the deceased tenant was not carrying on business and his son was carrying on business to the total exclusion of the deceased tenant The evidence on record properly construed only mean that as the tenant was not able to carry on business because of old age he was carrying on business with the assistance of his son. Therefore, though son was actually carrying on the business, it was the tenant who was carrying on business till the date of his death. It is not in dispute that the wife of deceased was living with the tenant It is not necessary that she should be carrying on business in the premises along with the tenant on the date of his death. Mere fact that she was living with the tenant as member of his family up to the date of his death would enable her to inherit the tenancy rights of his business premises for a period of five years, as admittedly, she was dependent on the deceased tenant and she was not owning or occupying a premises in the local area in relation to the premises let. In that view of the matter it is not possible to accept the contention of the petitioners' counsel that as the wife was not carrying on business, she is not entitled to the benefit of tenancy rights for a period of five years.
21. Now the tenant died on 11.7.2002. The maximum period of tenancy right that can devolve on the deceased wife is for a period of five years, that is, she can continue as tenant till 10.7.2007. Thereafter, she will have no right to continue to be in possession. Having regard to the object sought to be achieved by the new legislation and in particular the intention of the legislature in enacting Section 5 once the tenant dies and when the right of the legal representative to continue in possession of the leased premises is restricted to a period of five years, in all pending eviction proceedings the court would be well within its jurisdiction to direct eviction of such tenants after the expiry of five years period enacted under Section 5 without going into the merits of the claim made by the land lord. Under these circumstances, I pass the following order.
(1) HRRP is allowed. The impugned order passed by the trial court dismissing the eviction petition is set aside.
(2) The wife of the deceased tenant Smt. Lakshmi Bai is held to be the successor of deceased tenant who has inherited the tenancy rights for a period of five years and is entitled to continue to be in possession of the leased premises for a period of five years from 11.7.2002 up to 10.7.2007.
(3) It is made clear that in view of the fact that the tenancy rights has devolved on the wife all the other legal heirs have no right of tenancy.
(4) The respondent is directed to quit and deliver vacant possession of the schedule premises on 11.7.2007.
(5) The wife is entitled to be in possession of the premises up to 10.7.2007 subject to paying rents regularly.
(6) No costs.