Kerala High Court
Karthiayani vs Anandan on 8 March, 2004
Equivalent citations: 2004(2)KLT575
Author: K.S. Radhakrishnan
Bench: K.S. Radhakrishnan, Pius C. Kuriakose
JUDGMENT K.S. Radhakrishnan, J.
1. The question for determination in this case is whether a legatee under a testamentary disposition could claim the status of a statutory tenant and resist the claim for eviction.
2. Original landlord died and his legal heirs got themselves impleaded and prosecuted the proceedings. Eviction was sought for under Section 11(2)(b), 11(3) and 11(4)(i) of Act 2 of 1965. The schedule shop rooms was taken on lease by one Anandan from the previous landlords on 16.7.1962 for a monthly rent of Rs. 30/-. Schedule premises was purchased by the deceased first petitioner before the Rent Control Court and the tenant Anandan attorned him. Rent was enhanced to Rs. 50/-, Rs. 100/- and later to Rs. 150/-. Anandan died on 14.6.1986 and the tenancy right inherited to his wife K.P. Karthiayini, the first respondent before the Rent Control Court. Anandan was conducting a tea shop in the schedule premises. Karthiayini executed a registered Will dated 16.11.1984. Business was conducted by her till she died on 24.2.1989.
3. Landlord sent a registered lawyer notice dated 5.10.1988 directing the tenant to vacate the premises and to terminate the sublease effected in favour of respondents 2 and 3. In spite of notice first respondent and subsequently the other respondents did not vacate the premises. Consequently the first petitioner original landlord filed the present Rent Control Petition 22.12.1988 claiming eviction on the ground of sublease as well as for conducting business for the 4th and 5th petitioners who are sons of deceased first petitioner. Rent Control Petition was resisted by respondents 2 and 3. Execution of the Will was admitted. The first respondent had no issues and she had executed a registered Will. After death of first respondent on 24.2.1989 respondents 2 and 3 got tenancy rights along with that properties by virtue of the Will. Further it was stated that they are the children of first respondent's brother and were brought up by first respondent. They had helped Anandan in the conduct of business, so also the first respondent. Claim for arrears of rent was also disputed, so also the bona fide need urged by the petitioners. Further it was also stated that supplemental respondents 4 and 5 have no manner of right in the schedule premises since the entire property along with the tenancy rights were bequeathed to respondents 2 and 3. Though notices were taken out to respondents 4 and 5 they remained ex parte.
4. Rent Control Court after examining oral and documentary evidence came to the conclusion that the possession of respondents 2 and 3 in the schedule premises would not amount to sublease Rent Control Court held that respondents 2 and 3 obtained right of possession as per the Will. Further it was also held no statutory notice as contemplated under the first proviso to 11(4)(i) was served on the respondents. It was also found that the need urged by the petitioners is also not banafide. However, it was found that respondents 2 and 3 are not entitled to get protection of second proviso to Section 11(3). The eviction was however, ordered under Section 11(2)(b) and respondents 2 and 3 were directed to deposit arrears of rent at Rs. 390/- with 6% interest from the date of default.
5. Appellate Authority however, found that the need is bonafide, but the benefit of the proviso was given to respondents 2 and 3. Consequently claim under Section 11(3) was rejected. With regard to claim under Section 11(4)(i) Appellate Court held that the tenancy right available to Karthiayini can be subject matter of bequest and that respondents 2 and 3 before the Rent Control Court are entitled to conduct business by virtue of the Will executed by deceased Karthiayini and that there is nothing to show that Karthiayini had sublet or effected transfer of possession to respondents 2 and 3 during her life time. Consequently the claim under Section 11 (4)(i) was rejected.
6. Revision petitioners who are legal heirs of the original landlord are before us in revision challenging the orders passed by Rent Control Court and Appellate Authority. We shall first examine the claim raised under Section 11(4)(i). Respondents 2 and 3 are admittedly claiming the tenancy rights under Ext.Al registered Will dated 5.10.1988. We have perused the Will which does not contain any specific recital about the transfer of the tenancy right. Counsel for the respondents Sri.K.P.Balasubramanian submitted that tenancy rights available to Karthiayini can legally be the subject matter of a bequest and that respondents 2 and 3 do fall within the expression "heir" under Section 2(6)(i) of Act 2 of 1965. Counsel submitted since respondents 2 and 3 are testamentary heirs and hence there is no objectionable sublease or transfer of right within the meaning of Section 11(4)(i). Counsel also submitted that petitioners have also not complied with the mandatory requirement of notice as contemplated under the first proviso to Section 11(4)(i). Alternatively counsel also submitted at best the respondents 2 and 3 can be characterised as only trespassers and only suit for ejectment alone would lie.
7. Counsel appearing for the revision petitioners Sri. P.A. Harish submitted that respondents 2 and 3 have no legal right to continue in possession of the property and that the legatee under the Will cannot inherit tenancy rights. Counsel submitted the expression "heir" used in definition clause would not take in the legatee of a Will and therefore there is objectionable sublease within the meaning of Section 11(4)(i) and therefore liable to be evicted under the Rent Control Act. Counsel also submitted that before the execution of the Will respondents 2 and 3 had unauthorisedly occupied the premises. Consequently the statutory notice issued to Karthiayini survives and would hold good for respondents 2 and 3 also.
8. Before examining the rival contentions we may examine the scope of Section 11(4)(i) read with the definition clause of the term "tenant". Eviction was sought for by the petitioners under Section 11(4)(i). The said provision is extracted herein below for easy reference:
(4) A landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building,--
(i) if the tenant after the commencement of this Act, without the consent of the landlord, transfers his right under the lease or sub-lets the entire building or any portion thereof if the lease does not confer on him any right to do so:
Provided that an application under this clause shall not be made for the first time in respect of one and the same tenancy unless the landlord has sent a registered notice to the tenant intimating the contravention of the said, condition of the lease and the tenant has failed to terminate the transfer or the sub-lease, as the case may be, within thirty days of the receipt of the notice or the refusal thereof."
Before we examine the scope of the proviso to Section 11(4)(i) we may consider the meaning of the word "tenant" as well as the expression "transfer" given in Section 11(4)(i) of the Act. The word "tenant" has been defined under Section 2(6) of the Act which reads as follows:-
"tenant" means any person by whom or on whose account rent is payable for a building and includes:-
(i) the heir or heirs of a deceased tenant, and
(ii) a person continuing in possession after the termination of the tenancy in his favour, but does not include a Kudikidappukaran as defined in the Kerala Land Reforms Act, 1963 (Kerala Act 1 of 1964), or a person placed in occupation of a building 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 farmed out or leased by a Municipal Council, Municipal Corporation, Township Committee or Panchayat".
The word "transfer" as such is not defined under the Act, which normally means to convey. The question as we have already posed is as to whether a testamentary disposition amounts to transfer under Section 11(4)(i) of the Act and as to whether testamentary heir would satisfy the definition of tenant under Section 2(6)(i) of the Act. Before answering the above question in the light of the Kerala Rent Act we may refer to a judgment of the Bombay. High Court in Dr. Anant Trimbak Sabnis v. Vasant Pratap Pandit, AIR 1980 Bombay 69 which took the view that the word "transfer" would go to signify inclusion of bequest also. Placing reliance on the various provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 the Division Bench of the Bombay High Court held that legatee is excluded under Section 5(11) in the definition of the expression "tenant" under the Act. That decision was appealed against by the respondent therein before the Apex Court in Vasant Pratap Pandit v. Dr.Anant Trimbak Sabnis, (1994) 3 SCC 481. The question as to whether the expression "transfer" would take in bequest also was left open. However, the case was disallowed by the Apex Court placing reliance on the definition clause of tenant in that Act read with Section 15 of the said Act which placed restriction on the tenant to sublease the premises or to assign a transfer. The Apex Court in Jaspal Singh v. Addl. Dist. Judge, Bulandshahr, AIR 1984 SC 1880 had occasion to consider the scope of Section 14 read with Section 16 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act (13 of 1972). That was a case where an application was made by the landlord under Section 12 read with Section 16 for a declaration that the shop was vacant on the death of the tenant who had no male, issue. Application was resisted by the nephew of the deceased tenant on the ground that he was the heir of the original tenant and was in occupation of the shop. Apex Court examined the question as to whether nephew would become heir of the original tenant on the strength of a Will executed by him. Court examined the scope of expression "tenant" under Section 3(a) of the Act and held as follows:
"If a tenant sublets the premises, he is liable to ejectment. Obviously, therefore, there are restrictions placed by the Act on the right of the tenant to transfer or sublet the tenancy rights and he can keep possession of the building or premises for himself and for the purpose of his family, for his business and for the business of his family members. He obviously cannot be allowed to transfer a tenancy right. A fortiori, the scheme of the Act does not warrant the transfer of the tenancy right to be effective after his lifetime. Thus, the appellant was neither a tenant of the disputed shop nor he was an heir of Naubat Singh, the original tenant. Besides, on a plain reading of the will it is evident that the will has been executed in respect of other properties including his business but not in respect of the tenancy rights. The High Court also recorded a finding to the effect that there was no will in respect of the tenancy rights of the disputed shop."
In this connection reference may also be made to another decision of the Apex Court in Bhavarlal Labhchand Shah v. Kanaiyalal Nathalal Intawala, AIR 1986 SC 600, wherein the Apex Court examined the scope of Section 5(11)(c)(ii) read with Section 15 of the Bombay Rents, Hotel and Lodging House Rates Control Act (57 of 1947). Apex Court after referring to a decision in Gian Devi v. Jeevan Kumar, AIR 1985 SC 796 held as follows:
"There can possibly be no justification either in law or in equity to extend the meaning of the expression 'tenant' so as to include such strangers also. If such a right of a tenant were to be recognised, what prevents him from transferring the building to anybody he likes who is totally unconnected with him or who is not dependent on him such as a temple, a church, a mosque, a hospital, a foreigner, a multinational company and any other person of any country? The Legislature could never have intended to confer such a right on him and exclude the right of a landlord to get back possession of his building for ever even after the death of the tenant with whom he had entered into contract initially. Perhaps even in the case of a person who may succeed under Sub-clauses (i) and (ii) of Section 5(11)(c) there can be no further devolution after his death again under these sub-clauses. This question however need not be pursued in this case. ................. When in the case before us Legislature has restricted the right to inherit the right to the tenancy of the premises let out for business, trade or storage to any member of a tenant's family carrying on business, trade or storage with the tenant at the time of his death it is not open to the Court by judicial construction to extend the said right to persons who are not members of the tenant's family who claim under testamentary succession".
In Vasant Pratap Pandit's case (supra) while interpreting Section 5(11)(c)(i) of the Bombay Rent Act Court held as follows:
"From a plain reading of Section 5(11)(c)(i) it is obvious that the legislative prescription is first to give protection to members of the family of the tenant residing with him at the time of his death, The basis for such prescription seems to be that when a tenant is in occupation of premises the tenancy is taken by him not only for his own benefit but also for the benefit of the members of the family residing with him. Therefore, when the tenant dies, protection should be extended to the members of the family who were participants in the benefit of the tenancy and for whose needs as well as the tenancy was originally taken by the tenant. It is for this avowed object, the legislature has, irrespective of the fact whether such members are 'heirs' in the strict sense of the term or not, given them the first priority to be treated as tenants. It is only when such members of the family are not there the 'heirs' will be entitled to be treated as tenants as decided, in default of agreement, by the Court. In other words, all the heirs are liable to be excluded if any other members of the family was staying with the tenant at the time of his death. When Section 15, which prohibits sub-letting, assignment or transfer, is read in juxtaposition with Section 5 (11)(c)(i) it is patently clear that the legislature intends that in case no member of the family as referred to in the first part of the clause is there the 'heir', who under the ordinary mode of succession would necessarily be a relation of the deceased, should be treated as a tenant of the premises subject, however, to the decision by the Court in default of agreement".
Principle enunciated by the Apex Court in the above mentioned decisions has to be understood taking into consideration scheme of the Kerala Rent Act and the statutory provisions contained therein. The statutory provisions under the Bombay Act are not pari materia with that of the Kerala Act. The Kerala Rent Act has given a restrictive meaning to the word 'tenant', to mean any person by whom or on whose account rent is payable for a building and has used an inclusive clause taking in two categories of persons, namely (i) the heir or heirs of a deceased tenant and (ii) a person continuing in possession after the termination of the tenancy in his favour, but does not include a Kudikidappukaran as defined in the Kerala Land Reforms Act, 1963 (Kerala Act 1 of 1964) or a person placed in occupation of a building 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 farmed out or leased by a Municipal Council, Municipal Corporation, Township Committee or Panchayat. Here only two categories of persons have been included within the inclusive clause under Section 2(6) of the Act. Word "heir" means a person who inherits or may by law inherit at common law and heir is he who is born in lawful wedlock and upon whom the law casts the estate in lands, tenements, immediately on the death of the ancestor. The word "heir" not only means one to whom an estate has been descended from his immediate ancestor, but includes one who has inherited through several successive descents. The word "heir testamentary"
means in the civil law, one who is named and appointed heir in the testament of the decedent. This term distinguishes him from a legal heir (one upon whom the law casts the succession) and from a conventional heir (one who takes it by virtue of a previous contract or settlement).
9. We are of the view unless the statute specifically includes a testamentary heir we have to interpret the word "heir" in its popular sense. The Apex Court and various High Courts have construed the word "heir" both in wider as well as narrower sense. The normal rule is that general words in a statute must receive a general construction unless there is something in the Act itself such as the subject-matter with which the Act is dealing or the context in which the said words are used to show the intention of the Legislature that they must be given a restrictive meaning. The word "heir" as we have already indicated normally understood as a person appointed by law to succeed to the estate in case of his intestacy, though the term could also be used in popular sense to designate either by Will or by law. In our view if a legatee is also brought into the meaning of heir under Section 2(6)(i) of the Act the consequence will be disastrous. If the word "heir" is to be interpreted to include a "legatee" even a stranger may have to be inducted as a tenant for there is no embargo upon a stranger being a legatee. In our view if the legislature wanted to bring in testamentary heir also the same would have been brought in within the definition clause. Legislature had done so in certain situations just like in the Bombay Rent Act. In certain Rent Act list of heirs has been specifically included for the purpose of devolution of tenancy on the death of the tenant. There is no such prescription to the Kerala Rent Act is concerned. Since Kerala Rent Act used only the expression "heir" we are of the view that the word "heir" has to be tested in accordance with the personal law of the tenant. Since respondents 2 and 3 who are not natural heirs they would not fall within the expression 'heir' and would not fall within definition clause under Section 2(6)(i) of the Act.
10. The question whether the landlord has to be non-suited since he had not issued notice before the Will came into effect has also to be examined. We have already indicated Karthiayini died only on 24.2.1989. Will was executed on 5.10.1988. Statutory notice as contemplated under the first proviso to Section 11(4)(i) was issued on 5.10.1988 and the Rent Control Petition was filed on 22.12.1988. Counsel contended in any view such a notice issued would be legal only if it is shown that during the lifetime of Karthiayini she has subleased the premises to respondents 2 and 3. Learned counsel placing reliance on B1 to B12 etc. contended that Karthiayini was in possession and continued till her death. Therefore during her lifetime there is no sublease and assuming that respondents 2 and 3 are in unauthorised possession they can be termed only as trespasser and the remedy is elsewhere. Even otherwise no statutory notice as contemplated under the first proviso to Section 11(4)(i) was issued. In the absence of any mandatory notice it was contended no petition under Section 11(4)(i) would be maintainable. But we find no reason to non-suit the landlord on the ground of non-compliance of first proviso to Section 11(4)(i). Proviso to Section 11(4)(i) has been introduced for the benefit of the tenant giving an opportunity to him to set fight the contravention for which landlord has to sent a registered notice intimating the contravention of the . conditions of the lease. Statute also gives time to the tenant to set right the contravention by terminating transfer of sublease within 30 days of the receipt of the notice issued. So far as this case is concerned on facts as well as on law we have found the continuance of respondents 2 and 3 is unauthorised and the scheme of the Kerala Rent Act does not warrant the transfer of tenancy right to be effective after life time of the tenant on the basis of Will unless the legatees are his natural heirs. We have held in Mini v. Leela, 2004 (1) KLT 195 that before filing application under Section 11(4)(i) there is a pre-condition that the landlord has to send a registered notice to the tenant intimating the contravention of the said condition of the lease. We have also held that the contravention is an act done by the tenant in violation of a legal obligation not to sublet or transfer his rights. The provision is therefore mandatory. General rule that non-compliance of mandatory requirement results in nullification of the act is subject atleast to one exception. Provision of notice has been incorporated in the interest of the tenant so as to allert him of the contravention. Mere plea that the requirement as contemplated under the proviso to Section 11(4)(i) has not been issued that itself is not a ground to non-suit the landlord especially when all the ingredients provided in the proviso has been satisfied. Landlord has sent a registered notice intimating the contravention. We have perused the notice. Landlord has specifically stated that respondents 2 and 3 are in possession. Atleast on the death of Karthiayini respondents 2 and 3 are in unauthorised possession. Counsel for respondents 2 and 3 contended that the remedy open to the landlord is to file a suit and get them vacated. We are not proposed to drag the landlord to a civil suit which is not warranted in the facts and circumstances of the case. We are not prepared to characterise respondents 2 and 3 as trespassers since they claim under Karthiayini.
11. Under such circumstance we are inclined to set aside the orders passed by the Rent Control Court and Appellate Authority holding that there is an objectionable transfer of the premises to respondents 2 and 3 and that they are in unauthorised occupation in violation of Section 11(4)(i) and they are liable to be evicted.
12. We may now examine whether petitioners are entitled to get benefit of Section 11(3) of the Act. We have already indicated that Rent Control Court found that there is no bona fides in the plea. Appellate Authority has found that the tenanted premises is required for conducting business by petitioners 4 and 5 is genuine and bona fide. Petitioners 4 and 5 are sons of the deceased first petitioner. They required the tenanted premises for starting business. Fourth petitioner is working in a arrack shop. He wants to start a grocery shop. Fifth petitioner wants to start a tea shop in another room. Fourth petitioner is not a permanent employee of the arrack shop. He has no other occupation of his own. No evidence has been adduced by the tenant to show that 4th and 5th petitioners have any other avocation in life. We are of the view the Appellate Authority is right in holding that the need urged by petitioners for the purpose of starting business by petitioners 4 and 5 is genuine and bonafide. All the petitioners who are co-owners have no objection in petitioners 4 and 5 starting business in the schedule premises. We are therefore in agreement with the finding of the Appellate Authority that the need urged by the petitioners is bonafide. The question to be decided is as to whether the tenant is entitled to get the benefit of second proviso to Section 11(3). A Full Bench of this Court in Francis v. Sreedevi Varassiar, 2003 (2) KLT 230 has held that the burden is entirely on the tenant to establish both the limbs of second proviso to Section 11(3). No evidence has been adduced by respondents 2 and 3 to show that their main source of income for their livelihood is the income derived from the business conducted in the tenanted premises. RW1 has stated in his evidence that he has got 17 cents of land in which his residential house is situated. We have also noticed that on the basis of the Will 41 1/2 cents of land has already been given to respondents 2 and 3, but no detail has been given as to the income derived from that property as well. He has not produced the relevant records to show that his income derived from the landed property as well as the business conducted in the tenanted premises. We cannot place any reliance on the interested testimony of RW1 to hold that this is his sole source of livelihood. With regard to the availability of other building no independent evidence has been adduced by respondents 2 and 3. The only evidence adduced is by RW1. Accommodation Controller was not examined though availability of building has been pointed out. In the absence of any reliable material we are of the view the tenant has not succeeded in establishing that he is entitled to get benefit of second proviso to Section 11(3). Petitioners are also entitled to succeed Section 11(3) as well.
13. Counsel appearing for the petitioners landlords also submitted rent is also in arrears. Counsel submitted that even the rent at the rate of Rs. 30/- after adjusting an amount of Rs. 1060/- paid by the tenant still an amount of Rs. 12,000/- is due till February 2004. Respondents 2 and 3 have not produced any evidence to show discharge of arrears of rent. Under such circumstance we are inclined to accept the contention of petitioners that rent is also in arrears. Consequently eviction is ordered under Section 11(2)(b) as well.
14. Under such circumstance revision is allowed. There will be an order of eviction on all the grounds prayed for. In the facts and circumstances of the case we are inclined to grant time to the respondents to vacate the premises till 30.6.2004 provided they file an undertaking before the Rent Control Court within one month that they would vacate the premises within the aforesaid time and that they would pay the entire arrears of rent and also future rent.