K.N.Narayanan vs Khadeeja on 7 July, 2017

[Cites 17, Cited by 2]

Kerala High Court

K.N.Narayanan vs Khadeeja on 7 July, 2017

The tenant, in revision, challenges the order passed by the Rent Control Appellate Authority under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'the Act'), mainly on the reason that the petitioner, who initiated eviction proceedings before the Rent Control Court, was not having title or ownership over the property and that she could not maintain an application for eviction under Section 11(3) of the Act. The Rent Control Court upheld the objection and dismissed the R.C.P. under Sections 11(2)(b), 11(3) and 11(4) of the Act. It was taken up in appeal before the Rent Control Appellate Authority, Kalpetta, in R.C.A.No.12/2013 and the finding of the Rent Control Court was reversed by the First Appellate Authority holding that in view of subsequent impleadment of the petitioner's daughter, in whose favour she had given the property, the petition R.C.R. No.42 of 2015 2 became the one initiated by the lawful owner as the impleadment and consequential amendment, if otherwise not ordered, would revert back to the date of petition and found that the petitioner had established the ground under Section 11(3) of the Act. Accordingly, an order of eviction was passed, which is under challenge.

2. It is an admitted case that the building was taken on lease by the tenant from the first petitioner, mother. Even at that time, she was not having any interest or ownership over the property as she had given up her right, title and interest over the property to her daughter, the additional second petitioner, by executing a deed of conveyance. The said document of title is neither produced, nor let in evidence by the petitioners. Without producing the above said document of title, they proceeded with the petition and suffered a dismissal before the Rent Control Court. The matter was taken up in appeal and the Rent Control Appellate Authority reversed the order of the Rent Control Court on finding that the application is maintainable by the subsequent impleadment of the additional second petitioner, in whose favour the property was R.C.R. No.42 of 2015 3 transferred by the first petitioner prior to the application.

3. Very serious questions came up for consideration before us, such as:-

(1) Whether the exhaustive definition given under Section 2(3) of the Act to the expression "landlord" would bring a person who is receiving rent as an agent within its sweep for all the purposes under the Act including maintaining an application for eviction under Sections 11(3), 11(4), 11(5) and 11(8) of the Act?

(2) What would be the impact of subsequent impleadment of lawful owner to the petition as an additional petitioner regarding its maintainability and what would be the application of doctrine of relation back?

(3) Whether the non production of title deed, which stands in the name of a person other than the person from whom the tenant had taken lease, has any bearing on the question of bona fides as envisaged under Section 11(3) of the Act?

4. A Division Bench of this Court in Devammadas v. Ramachandran Nair reported in 2005 (3) KLT 647, had an occasion to consider what actually amounts to the expression R.C.R. No.42 of 2015 4 "landlord" as defined under Section 2(3)of the Act. Section 2(3) of the Act gives a wide and exhaustive definition to the expression "landlord", but Section 2 of the Act starts with the caution "In this Act, unless the context otherwise requires". It was held that the expression "landlord" has to be understood in the context in which the Rent Control Petition is filed.

5. Going by the scheme of Section 11 of the Act and the exhaustive definition given to the expression "landlord" under Section 2(3) of the Act, it cannot be said that the legislative intention was to put in or to substitute an agent, who is receiving rent for and on behalf of the landlord, in the place of landlord for all the purposes of the Act. Sections 11(2), 11(4)

(i) and 11(4)(ii) of the Act, in essence, are resting on the principle of violation of obligation attached to the tenant. Sections 11(4)(iii) and 11(4)(v) of the Act are resting on the statutory obligation. But, Sections 11(3), 11(4)(iv), 11(5) and 11(8) of the Act are resting on the personal requirement of a landlord, while Section 11(7) of the Act is resting on the requirement of an inanimate body such as religious, charitable, educational or other public institution, being the landlord. In R.C.R. No.42 of 2015 5 so far as the personal requirement of the landlord is concerned, there cannot be substitution of any agent, trustee, executor, administrator or receiver in the place of landlord. Hence, an agent, trustee, executor, administrator or receiver is not entitled to maintain an application for eviction on any of the grounds strictly resting on personal requirement of the landlord. So, the exhaustive definition given to the expression "landlord" under Section 2(3) of the Act cannot be extended in maintaining an application under Sections 11(3), 11(4)(iv), 11(5) and 11(8), as the ingredient which constitute application of the above Sections are resting on the need of the landlord. The need, either for own occupation or for occupation of a dependant family member, as envisaged under Section 11(3) of the Act and the need for additional accommodation under Section 11(8) of the Act are strictly personal attached to the landlord. Otherwise, an agent of the landlord who is receiving rent, Executor, Administrator, Receiver or guardian, as the case may be, would also come within the sweep of "landlord" as envisaged under Sections 11(3) and 11(8) of the Act, which would give them an unfair advantage of maintaining an R.C.R. No.42 of 2015 6 application for personal use or for the use of a family member dependant on him. In other words, an agent, trustee, executor, administrator or receiver cannot be substituted in the place of landlord as envisaged under Sections 11(3), 11(4)

(iv), 11(5) and 11(8) of the Act. They cannot step into the shoes of landlord for the purpose of Sections 11(3), 11(4)(iv), 11(5) and 11(8) of the Act under the guise of exhaustive meaning given to the expression "landlord" under Section 2(3) of the Act. The expression embodied under Section 2(3) of the Act "unless the context otherwise requires" has to be understood so as to promote the legislative intention and in consonance with Section 11 of the Act. At the same time, an authorized agent, who is empowered or entitled to receive rent, can initiate eviction proceedings under Section 11(2)(b) of the Act, as there is no involvement of any personal requirement, necessity or need of landlord under that section. In short, the exhaustive definition given to the word "landlord" cannot be availed off for all purposes under the Act. It has only a limited application and it will not have any application to Sections 11(3), 11(4)(iv), 11(5) and 11(8) of the Act which R.C.R. No.42 of 2015 7 are dealing with the personal requirement of the landlord or a dependant of the landlord.

6. Admittedly, the building was taken on lease from the first petitioner and, as such, it is not available for the tenant to dispute the defective title, if any, with the lessor at the time of lease and the tenant is estopped from raising such a contention by the application of estoppal under Section 116 of the Indian Evidence Act. But, the expression "defective title"

has to be distinguished from lack of title or interest over the property and in the latter case, there cannot be any operation of estoppal as per Section 116 of the Indian Evidence Act. In this case, the first petitioner, mother, had parted with right, title and interest over the property in favour of her daughter prior to the application and even at the time of lease. This would show that actually the mother was acting only as an agent of her daughter while giving the property on lease. But, in order to maintain an application for eviction under Section 11(3) of the Act, the landlord should come up with an application and the extensive meaning given to the expression "landlord" under the Act cannot be availed off. An application R.C.R. No.42 of 2015 8 filed by the landlord represented through an agent has to be distinguished from an application filed by the agent claiming to be the landlord without the juncture of landlord/owner of the property.

7. The subsequent impleadment of the original landlord into the party array of the petition as additional petitioner would rectify the defect in the petition. Further, the impleadment and the consequential amendment, if otherwise not ordered, would revert back to the date of filing of the petition, by the application of doctrine of relation back, and there is no legal impediment unless the same is stood as barred by limitation or barred under any of the provisions of law as on the date of amendment or on the date of Rent Control Petition.

8. In the present case, the original landlord was subsequently brought on record as additional second petitioner and proceeded with the matter after consequential amendment raising the bona fides for the occupation of her dependant/her husband. Earlier, the original first petitioner proceeded with the petition raising a need for the occupation of her son- R.C.R. No.42 of 2015 9 in-law, the husband of additional second petitioner. In fact, the need raised by the original petitioner and additional second petitioner is for the occupation of husband of additional second petitioner. The original title deed/deed of conveyance in favour of the additional second petitioner is not produced so as to satisfy the Rent Control Court with respect to the transfer of right and title, if any, and whether the transfer is a conditional one or a revocable one and whether any life interest was reserved over the property and also whether it is a gift deed, settlement deed, Will, sale deed or any other deed of conveyance. The nature of title and what actually transferred would be relevant in assessing the dependency as a member of the family in reference to the expression "landlord". In our view, it may also have its own impact on the question of bona fides raised in the application and the non-production of a title deed stands in the name of a person, other than the person from whom the tenant had taken the lease is relevant in the determination of benefits as envisaged under Section 11(3) of the Act.

R.C.R. No.42 of 2015 10

9. At the revisional stage, the revision petitioner tried to advance a case under the third proviso to Section 11(3) of the Act that the landlord should establish that she had filed the application after the expiry of one year from the date of instrument of transfer inter vivos and submitted that the instrument of transfer inter vivos was not produced to show that the petition was filed after the expiry of one year. The third proviso to Section 11(3) of the Act is a restriction imposed on the landlord and, as such, the initial burden to show that the application was filed after the expiry of one year from the instrument of transfer inter vivos is resting on the landlord. Third proviso to Section 11(3) of the Act is a statutory embargo in maintaining an application under Section 11(3) of the Act. Since it is a statutorily created embargo, it amounts to an additional benefit given to the tenant and the person who claims the benefit should raise it though the initial burden lies on the landlord. The tenant can waive the benefit under the third proviso without raising it as part of defence. Hence, the initial burden lies on the landlord under the third proviso to Section 11(3) of the Act would arise only R.C.R. No.42 of 2015 11 when it was disputed by the tenant claiming benefit under the third proviso to Section 11(3) of the Act. It was submitted by the learned counsel for the revision petitioner that though the benefit under third proviso to Section 11(3) of the Act was not raised, a plea of denial of title as against the original petitioner was raised and subsequently the original landlord/additional second petitioner was brought on record by the Rent Control Court. It was also submitted that since there is a denial of title, the landlord has to establish the third proviso to Section 11(3) of the Act to maintain an application under Section 11(3) of the Act.

10. A mere denial of title of the landlord would not bring the matter within the sweep of third proviso to Section 11(3) of the Act, though it would come under the purview of second proviso to Section 11(1) of the Act. Second proviso to Section 11(1) of the Act is dealing with the right of the tenant to deny the title of landlord or claim right of permanent tenancy on sufficient grounds. On the other hand, third proviso to Section 11(3) of the Act is a restriction imposed on the landlord in maintaining an application under Section 11(3) of the Act, R.C.R. No.42 of 2015 12 which is a statutory benefit available to the tenant. As discussed earlier, the restriction under third proviso to Section 11(3) of the Act is a statutorily imposed embargo and hence it is a statutory benefit granted to the tenant and the tenant is at liberty to either raise the benefit by way of defence or waive the same without raising it as a defence/benefit. It cannot be brought on the same pedestal as the former is resting on the question of denial of title or claim of permanent tenancy by the tenant and the is latter resting on the benefit granted to the tenant. Both are defences available to the party governed by different fields. The denial of title of landlord by the tenant, though would come under the purview of second proviso to Section 11(1) of the Act, cannot be brought under the purview of third proviso to Section 11(3) of the Act. No such plea was raised by way of defence by the tenant either in the Rent Control Court or in the First Appellate Authority and hence cannot be raised at first before the Revisional Court.

11. As discussed in earlier paragraphs, in order to bring home the bona fides under Section 11(3) of the Act, the nature of transfer inter vivos is material. Hence, we are of the view R.C.R. No.42 of 2015 13 that an opportunity can be given to the landlords to produce the document of title before the Rent Control Court and hence the revision is allowed for that purpose.

In the result, the revision is allowed in part. The order of the Rent Control Appellate Authority is set aside. The matter is remanded back to the Rent Control Court for consideration of the application under Section 11(3) of the Act afresh and the Rent Control Court shall afford an opportunity to the landlords to produce their document of title within seven days from the date of appearance of the parties. Both parties shall appear before the Rent Control Court on 19.07.2017.

K. HARILAL (JUDGE) P. SOMARAJAN (JUDGE) DMR/-

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