Andhra HC (Pre-Telangana)
S.A. Wali Quadri vs Sadar Anjuman-E-Islamia on 10 March, 2000
Equivalent citations: 2000(3)ALD370, AIR 2000 ANDHRA PRADESH 417, (2000) 3 ANDHLD 370, (2000) 2 RENTLR 257, (2000) 2 RENCR 84, (2000) 3 CURCC 285
JUDGMENT
1. This second appeal arises out of a judgment and decree dated 6-12-1994 passed by the learned X Assistant Judge, City Civil Court, Hyderabad, in OS No.4491 of 1990 and the judgment and Decree dated 25-2-1999 passed by they learned V Additional Chief Judge, City Civil Court, Hyderabad, in AS No.21 of 1995 preferred against the same.
2. The unsuccessful defendant throughout is the appellant. The suit schedule property is a house Bearing No. 16-4-2 and 16-4-3 and belongs to the respondent institution and it is a wakf property. On 12-9-1968 it was let out originally to one Syed Abdul Qayyum under a rent deed of even date. The said Syed Ahdul Qayyum died subsequently. After the death of said Abdul Qayyum his son S.A. Wali Khadri was, continuing in the house as a tenant. He enhanced the rent from Rs.250/- to Rs.400/- per month excluding electricity and water charges. He was thus paying the rent accordingly. A quit notice dated 15-8-1990 was issued to him on behalf of the respondent institution on the premise that he committed default in paying the rents from the month of March, 1989 and unauthorisedly inducted his nephews Syed Imamuddin Ahmed Quadri, Syed Salahuddin Ahmed Quadri and Syed Nizamuddin Ahmed Quadri who had been residing in the suit house with their families, calling upon him to vacate the suit house on 1-10-1990 and to pay the arrears of rent from March, 1989 to September, 1990 for a period of 19 months in an aggregate sum of Rs.7,600/-. The appellant having received the same did not choose to issue any reply. Later the respondent filed the suit for recovery of the possession of the suit house, for arrears of rent and for mesne profits.
3. The appellant resisted the suit mentioning inter alia in his written statement that the suit was not maintainable since no permission from the A.P. Wakf Board was obtained for filing the suit and as the Wakf Board was not added as a party thereto. It was further pleaded that after the death of his father his brothers, sisters were also residing in the suit house as tenants and unless they were implcaded as parties, the suit was not maintainable. It was also his plea that Syed Imamuddin Ahmed Quadri, Syed Salahuddin Ahmed Quadri and Syed Nizamuddin Ahmed Quadri were residing along with their mother in the suit house, and therefore, there was no question of any sub-letting the suit house and all of them are necessary parlies to the suit.
4. The trial Court framed the following issues for trial at the time of settlement of issues.
1. Whether the plaintiff is entitled for delivery of possession of House No. 15-4-2, 3?
2. Whether the plaintiff is entitled for rent to a tune of Rs.7,600/- towards arrears of rent?
3. Whether the plaintiff is entitled for mesne profits at Rs.550/-?
4. Whether the notice is validly issued?
5. Whether the suit is bad for non-joinder of necessary party?
6. To what relief?
During the course of trial, one witness was examined on the side of the respondent-plaintiff and the documents Exs.A1 to A7 were got marked. One Syed Saluddin Ahmed Quadri representing the appellant/ defendant under the general power of attorney was examined as DW1 besides getting marked the GPA dated 26-4-1994 as Ex.B1. Upon considering the evidence both oral and documentary, the trial Court found that all other legal heirs of the original tenant late S.A. Khayum had surrendered their tenancy by necessary implication and the tenancy in favour of" the appellant/defendant was terminated under a valid quit notice-Ex.A6, and therefore, the respondent was entitled to recover possession, arrears of rent in an amount of Rs.7,600/- and mesne profits at the rate of Rs.200/- from 1-10-1990 till 11-10-1990 and thereafter Rs.600/- per month.
5. In the appeal filed against the said judgment and decree the Appellate Court framed three points for determination after having heard both sides.
1. Whether the suit is bad for non-joinder of the said necessary parties ?
2. Whether the defendant alone is the tenant of the building and the findings of the lower Court in that regard are correct?
3. Whether the lower Court appreciated the evidence properly and came to a correct conclusion with regard to the points raised in the appeal and accordingly, the judgment and the decree passed by it are tenable or not?
6. The Appellate Court ultimately concurred with the trial Court in having found that there was implied surrender of tenancy by the other heirs of the original tenant, and therefore, the suit was not bad for non-joinder of the necessary parties. On all the issues it concurred with the trial Court and it ultimately dismissed the appeal.
7. Having been aggrieved by the same, the appellant filed the present second appeal setting out the following substantial questions of law in the memorandum of appeal grounds.
1. Whether the termination of tenancy of only one of the legal heirs of original tenant is sufficient to terminate the tenancy of other legal heirs as well?
2. Whether the Courts below were justified in decreeing the eviction suit of the respondent by assuming implied surrender of tenancy by the other legal heirs of the original tenant?
3. Whether the Courts below can presume an implied surrender of tenancy by other legal heirs inspite of the fact that they are not impleaded and were not heard in defence?
4. Whether the suit as framed and filed by the respondent is maintainable under the Wakf Act?
8. The following facts would emerge from out of the record: Late S.A. Khayum was the tenant of the suit house having been inducted under Ex.A1 lease-deed. He used to pay the rent at the rate of Rs.250/-per month. He died in the year 1969 leaving behind him five sons and three daughters including the appellant-defendant. The appellant under Ex.A2 letter enhanced the rent from Rs.250/- to Rs.400/- per month excluding electricity and water charges.
Thereafter he paid the rents continuously upto March, 1989 under Exs.A3. A4 and A5-counterfoils of the rent receipts. His nephews Syed Imamuddin Ahmed Quadri, Syed Salahuddin Ahmed Quadri and Syed Nizamuddin Ahmed Quadri along with their families have been residing in the suit house. While, it is the case of the respondent institution that the appellant committed default in paying the rents from March, 1989; it is the case of the appellant that he tendered the rents to the Secretary of the respondent Institution who refused to receive the same. On the issues pertaining to the arrears of rent and profits, the trial Court answered them in the positive. The Appellate Court had concurred with the said findings. In view of the concurrent findings of both the Courts below and they being the issues of fact they need not be adverted to in this appeal. Both the Courts proceeded on the assumption that there was an implied surrender of tenancy by the other legal heirs of late S,A. Khayum and on that premise the suit was held to be maintainable even in the absence of the other legal heirs of late S.A. Khayum. Even the issue pertaining to validity of the quit notice was answered in the positive in favour of the respondent-plaintiff. Since the suit schedule property was admittedly a Wakf Property the civil suit was held to be maintainable.
9. In view of the respective contentions of both the learned Counsel the main controversy centres around the non-joinder of the other legal heirs of the deceased tenant S.A. Khayum and not issuing a valid quit notice terminating the tenancy.
10. As aforediscussed, both the Courts below proceeded on the assumption of implied surrender by the other legal heirs of the deceased-tenant. It was the view of both the Courts below that they were not necessary parties and Ex.A2 quit notice issued to the appellant alone was sufficient.
11. The theory of implied surrender is now being assailed in this judgment. A tenancy can be determined in accordance with Section 111 of the Transfer of Property Act. According to clauses (0 and (g) of Section 111 of TP Act, a lease of immovable property can be determined by express surrender or by implied surrender. There has been no express surrender in this case admittedly, and therefore, it is not-germane for consideration. Whether there has been implied surrender on the part of the other legal heirs of the deceased tenant or not is the moot question. The specific plea taken in the plaint is to the effect that after the death of the original tenant, the appellant alone attorned the tenancy after due negotiations with the Secretary of the institution and he enhanced the rent and had been paying the same, implying thereby that there was a fresh tenancy in favour of the appellant. The facts ultimately disclose that the other legal heirs including the three sons of one of the daughters of the deceased tenant have been residing in the suit house along with the appellant, shorn of other contentious fact in regard to the vacation of the suit house by the appellant in or about the year 1988. The claim of DW1 that the appellant vacated the premises in the year 1988 is inconsistent with the plea taken in the written statement. The appellant has not chosen to come into the witness box to give evidence on oath. Therefore, the claim of DW1 cannot be countenanced in view of the absence of a specific plea in regard thereto and nay the inconsistency between the plea and the evidence. Obviously DW1 only seems to have evinced interest in the dispute. Except the names of the three nephews of the appellant the names of the other brothers and sisters have not been furnished in the written statement, it is an insignia of evincing no interest on the part of the other legal heirs except DW1. DW1 admitted in his evidence that his other two brothers have gone abroad. Notwithstanding the fact that they have not been paying the rents and that they have relinquished the tenancy right, in the absence of clear evidence to the effect that possession of the premises was taken by the lessor pursuant thereto, no valid implied surrender can be inferred from out of the same. Mere abandonment of possession by the tenant does not ipso facto amount to surrender unless accompanied by the acceptance on the part of the lessor. The necessary intention must be on the part of either of the parties. The decision of the Allahabad High Court in Smt Madhubala v. Smt Budhiya, AIR 1980 All. 266, relied upon very much by the trial Court in view of the above facts and circumstances, has no application. That was a case where the parties to the suit asserted that they alone were the tenants to the property in exclusion of the other heirs who were not made parties to the suit and whose names were also not categorically staled by the other heirs and none of them had paid any rent. The Allahabad High Court in the said judgment relied upon its earlier judgment in Ramesh Chand Bose v. Gopeshwar Prasad Sharma, . The judgment of the Allahabad High Court in Ramesh Chand Base's case (supra) was held to be not good law by the Apex Court in H.C. Pandey v. G.C. Paul, . The first Appellate Court relied upon the judgment of the Calcutta High Court in Amal Krishna Aditya v. Ganesh Chandra Das, AIR 1988 Cal. 221. Obviously, that was a case where all the brothers of the defendant-tenant had categorically informed the landlord that rent receipts should be granted in the name of the defendant after the death of their father and all of them are living in America while only the defendant was living in the suit premises along with his family. In the circumstances, it was held that by their own conduct the other defendants could be taken to have relinquished their rights of tenancy. It was also held that on the principle of representation the defendant could be deemed to be representing the other co-tenants. Both the decisions, therefore, have no application to the facts and circumstances of the instant case.
12. The learned Counsel for the appellant relied upon a judgment of the Delhi High Court in Indra Sharma v. Gopal Dass, . That was a case where the Delhi High Court held despite the fact that after the death of the tenant the letter of attornment by Ministry of Labour, Employment and Rehabilitation was issued to the widow, only as the tenant of the property, which would not bind the other co-tenants who were the heirs of the original tenant. The Court further held that the fact that the legal heirs of the tenant (the co-tenants subsequently) did not defend their rights by paying rents themselves to the landlord and obtaining rent receipts in their own names prior to filing of written statement was not relevant and will not amount to implied surrender in terms of Section 111 (f) of T.P. Act. The learned Counsel for the appellant further relied upon the judgment of the Apex Court in T.K. Lathika v. Seth Karsandas Jamunadas, , wherein it was held that a mere alteration or improvement or even impairment of a relationship of lessor and lessee would not ipso facto amount to implied surrender of the lease. In Para 12 the Supreme Court held as follows:
"'The principle which governs the doctrine of implied surrender of a lease is that when a certain relationship existed between two parties in respect of a subject- atter and a new relationship has come into existence regarding the same subject matter, the two sets cannot coexist, being inconsistent and incompatible between each other i.e., if the latter can come into effect only on termination of the former, then it would be deemed to have been terminated in order to enable the latter to operate. A mere alteration or improvement or even impairment of the former relationship would not ipso facto amount to implied surrender. It has to be ascertained on the terms of the new relationship vis-a-vis the erst while demise and then judged whether there was termination of the old jural relationship by implication".
The Supreme Court relied upon its earlier judgment in N.M. Ponniah Nadar v. Kamalakshmi Ammal, , wherein it was held that an arrangement by which the rent of the building was increased in respect of the existing tenancy will not bring an end to the preexisting lease. Therefore, the fact that the appellant enhanced the rent from Rs.250/- to Rs.400/- under Ex.A2 letter could not have put an end to the preexisting lease in favour of his late father, nor it could establish a fresh lease in his favour. It follows therefore as a necessary corollary that after the death of the original tenant late S.A. Khayum all his legal heirs would be the tenants. In fact, the Apex Court in H.C. Pandeys' case (supra) held as follows:
"It is now well settled that on the death of the original tenant, subject to any provision to the contrary either negativing or limiting the succession, the tenancy rights devolve on the heirs of the deceased tenant."
The view of both the Courts below that there has been implied surrender cannot, therefore, be upheld for paucity of evidence, clearly bringing home the factum of implied surrender.
13. The burden of proof lies on the respondent-landlord to prove the doctrine of surrender. Both the lessor and lessee must be parties to any arrangement from which the implied surrender can be culled out. In view of the facts and circumstances of the case, I am of the considered view that no implied surrender can be culled out on the part of the other legal heirs of the deceased-tenant who indeed are not parties to the suit even.
14. Ex.A6 quit notice was issued to the appellant terminating the tenancy by 1-10-1990. The learned Counsel appearing for the respondent contends that the other legal heirs of late S.A, Khayum being the joint tenants along with the appellant, there is no need to issue separate quit notices to them. The learned Counsel seeks to place reliance upon the judgment of the Apex Court in H.C. Pandey's case (supra). The Apex Court has categorically held in the said judgment thus:
"The incidence of the tenancy are the same as those enjoyed by the original tenant. It is a single tenancy which devolves on the heirs. There is no division of the premises or of the rent payable therefor. That is the position as between the landlord and the heirs of the deceased tenant. In other words, the heirs succeed to the tenancy as joint tenants. Therefore when on the death of the original tenant the tenancy rights devolved upon the sons, daughters and wife of the original tenant and the notice terminating tenancy under Section 106 was addressed to and served upon one of the sons of the original tenant who paid rent on behalf of all and acted on behalf of all the heirs of the original tenant, the notice to only one of the joint tenants could not be said to be insufficient."
There was no provision contrary to the said proposition of law enunciated by the Apex Court in Muslim Personal Law as the parties herein profess Muslim religion. It is no doubt true that Section 41 of the Principles of Mohammedan Law reads that in the event a Muslim dies intestate, his heirs are independent owners of their specific shares simultaneously in the estate and debts of the deceased and they succeed to the estate as tenants in common. In fact, it has been held so by the Apex Court in P.N. Veetil Nalrayani v. Pathumma Beevi, . But that principle cannot be invoked in the case of a lease. A fortiori the provisions of the T.P. Act are uniformly applicable to the leases between the parties belonging to various religions. As can be seen from Section 2 and Section 129 of the Transfer of Property Act the provisions of the T.P. Act incorporated in the second chapter and the provisions pertaining to gift, which cannot be deemed to affect any Rule of Mohammedan Law. The provisions pertaining to leases from Sections 105 to 117 incorporated in Chapter-V of the said Act have not been excepted. Therefore, there is nothing, which is contrary to the well established principle that on the death of the original tenant the tenancy rights devolve on the heirs of the deceased tenant and they succeed to the tenancy as joint tenants, either negativing it or limiting the same. The Apex Court in Kanji Manji v. The Trustees of The Port of Bombay, , held that notice to determine lease to one of the joint tenants is sufficient and the suit for ejectment against one of the tenants was also held to be good. That was a case where the suit was fifed by the Trustees of Port of Bombay for ejectment of the tenant Kanji Manji, the appellant. In fact, the property was let out to Kanji Manji and one Rupji Jeraji. The latter died even before the suit was filed. Suit was filed for ejectment of the tenant from a plot belonging to the Port Trust and for possession. That suit was resisted by the appellant on a number of pleas including that the quit notice was invalid inasmuch as it had been served only upon one of the lessors and not upon the legal heirs of Rupji Jeraji and the suit was bad for nonjoinder of the heirs and legal representatives of Rupji Jeraji who were necessary parties. All these pleas were found against the appellant. The trial Court found that the tenancy was a joint tenancy and that a notice to one of the joint tenants was sufficient and that suit was also not bad for non-joinder of the legal representatives of Rupji Jeraji. The High Court confirmed the said findings; ultimately the Apex Court while upholding the said findings held as follows:
"The trial Court, therefore, rightly held them to be so. Once it is held that the tenancy was joint a notice to one of the joint tenants was sufficient and the suit for the same reason was also good."
It is no doubt true that the tenants took the premises as joint tenants under a deed of assignment which was approved and accepted by the Trustees of the Port and that was the reason why the trial Court held that the deceased tenant and the appellant must be regarded as joint tenants, which finding was upheld by a three Judge Bench of the Apex Court ultimately. The fact remains that even the legal representatives of the deceased tenant will have the same status. As against this the learned Counsel tor the appellant seeks to rely upon another judgment of the Apex Court in Textile Association (India) Bombay Unit v. Balmohan Gopal Kurup, . That was a case where the premises was let out to one Gopal Kurup. On his death he left behind his widow, two sons and daughters. After his death the landlord tiled an eviction petition on the grounds of bona fide requirement and default against all other heirs except the respondent - one of the sons. The suit was decreed ex parte and in execution thereof possession was also recovered. Later the respondent filed the suit for declaration that the ex parte decree passed against the other legal heirs was not binding upon him. The trial Court after having found that the respondent was also one of the tenants, who lived along with the deceased-tenant, decreed the suit. In the above judgment of Supreme Court the two judgments referred to above in Kanji Manji's v case (supra) and H.C. Pandey's case (supra) have been relied upon on behalf of the appellant. It was observed that both those cases relate to the validity of the notice issued to one of the joint tenants and ultimately it was held that the principle stated therein on the facts obtained in the case on hand are not relevant. The Supreme Court set aside the ex parte decree directing the respondent to be impleaded as a party to that suit and to decide the suit afresh on merits. A three Judge Bench again rendered mis judgment. Laying much emphasis on this judgment it is the contention of the learned Counsel for the appellant that the legal heirs of the deceased-lenant S.A. Khayum cannot be considered as the joint tenants. I am afraid I cannot accede to the said contention of the learned Counsel. In Textile Association (India) Bombay Unit's case (supra), no ratio decidendi has been enunciated and the judgment was rendered by the Apex Court basing on the facts and circumstances obtained in that case. But in the other two cases in Kanji Manji's case (supra) and H.C. Pandey's case (supra), the Supreme Court enunciated the principles of law, as can be seen from the excerpts extracted supra in the judgment that the tenancy is a single tenancy which devolved upon the legal heirs of the deceased tenant and there has been no division of the premises or the rent payable therefor. The incidents of tenancy are the same as those enjoyed by the original tenant late S.A. Khayum. Therefore on his death the tenancy rights devolved upon his sons and daughters and they succeed to the tenancy as joint tenants. The same principle has been enunciated by the Apex Court in Kanji Manji's case (supra) also. Kanji Manji's case (supra) is again a case rendered by a three Judge Bench. When on the principle of iaw the heirs of the tenants succeed as joint tenants and when once they are joint tenants a quit notice, issued to one of them is sufficient. In Kanji Manji's case (supra) it was further held that the suit filed against one of the legal heirs of the deceased tenant was good. It is no doubt an unenviable task of this Court to engage itself in deciding the case where two judgments of the Apex Court are coming in conflict with each other, I am of the considered view that since no ratio decidendi is involved in the latest judgment of the Apex Court and where the Apex Court has enunciated the principle of law in its earlier two judgments, out of which, one is rendered by a co-equal Bench can be preferred vis-a-vis the latest one. My above view is reinforced by a judgment of this Court, rendered by a Full Bench reported in M/s. Ushodaya Enterprises Limited, Visukhapatnam v, Commissioner of Commercial Taxes, A.P., Hyderabad, 1998 (3) ALD 78 = 1998 (3) ALT 96 (FB), wherein it was held as follows:
"Court is unable to persuade itself to subscribe to the view that the later decision should be automatically followed despite the fact that it rests on a conclusion based on an erroneous impression that an earlier decision took a particular view which in fact it has not taken. By doing so, Court is neither questioning the hierarchical superiority of the Supreme Court nor the higher wisdom of the Hon'ble Judges of the Supreme Court. Court is preferring one decision to the other-both rendered by Division Benches, for obvious reasons so as to avoid an incongruity leading to travesty of justice."
15. For the foregoing reasons, I am of the considered view that after the demise of late S.A. Khayum his heirs succeed to the tenancy as joint tenants. There is no evidence here to show that all the legal heirs have been sharing the rents amongst themselves or there has been division of the property amongst themselves. The incidents of tenancy prevailing during the time of late S.A. Khayum are the same even after his death. It is being a single tenancy qua the respondent institution it's a clear case of joint tenancy. When that position is obvious a quit notice issued to the appellant in exclusion of the other joint tenants/legal heirs of the deceased tenant is a valid quit notice. In that view of the matter, the suit cannot be held to be bad for non-joinder of the other legal heirs. The appeal, therefore, fails and is dismissed. Under the circumstances of the case, there shall be no order as to costs. The appellant is given six months time for vacating the premises, subject to filing of an undertaking before this Court to that effect.