Kerala High Court
Mary vs Kunjanam on 14 March, 2002
Author: K.S. Radhakrishnan
Bench: K.S. Radhakrishnan
JUDGMENT K.S. Radhakrishnan, J.
1. Tenant is the revision petitioner. Eviction was sought for under Section 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. Rent Controller dismissed the petition under Section 11(2)(b) and allowed the petition under Section 11(3). Order was confirmed by the Appellate Authority. Hence this revision by the tenant.
2. For the purpose of disposal of this matter we may refer to the parties according to the status in the Rent Control Petition. Petition schedule premises was let out to the husband of the first respondent Mary as per lease deed executed on 18.3.1970 by the petitioners and second respondent. The period of tenancy was terminated on 18.3.1973. Petition schedule premises is on the ground floor of a two-storied building. In the upstair portion the petitioners are conducting business by name Varghese Watch Company. On the death of the husband of the respondent, she is occupying the ground floor of the premises. Petitioners 2, 3 and 4 are the sons of the first petitioner and petitioners 5, 6 and 7 are the legal heirs of Varghese, the deceased son of the first petitioner. Sixth petitioner who is the son of deceased Varghese is now doing watch repair works in the Varghese Watch Company. He is dependant on the first petitioner. While the Rent Control Petition was pending he got married. He wanted to start a business of his own. Petitioners have no other building of their own for starting business. First petitioner directed the tenant to vacate the premises. A registered notice was sent on 31.3.1989 since she did not vacate to which the tenant replied. Rent Control Petition was then preferred under Section 11(2)(b) and 11(3) of the Act.
3. Tenant resisted the petition. It was stated that the petition schedule premises was taken on lease by the husband of the first respondent for starting a partnership business by name C.L. Joseph & Company. Partnership was dissolved on 18.3.1970. After dissolution of partnership the husband of the first respondent had executed another rent deed on 18.3.1970. On the death of the husband of the first respondent, the first respondent is in occupation of the premises on the same terms and conditions of the original lease deed. It was contended that apart from the first respondent other heirs of Varghese have also got interest in the tenanted premises. Petition filed without joining them in the array of parties is not maintainable. Further it was stated that the 6th petitioner is also working in a watch company by name Chirayath Watch Company. Though he has married he has got income to support his family. Further it was stated that an earlier petition RCP 87/73 was filed for eviction of the tenant and that application was dismissed. It was contended there was no change of circumstance warranting another petition for eviction. On 29.11.1990 first respondent filed additional objection stating as follows:
"After the objection was filed by the first respondent, Ihe husband of the first respondent's daughter expired on 25.1.1990. The daughter of the first respondent has 3 children of aged 10, 7 and 4. The daughter of the first respondent and her children are now maintained by the first respondent. The first respondent is maintaining her daughter and children outof the income derived from the business conducted in the petition schedule premises. The first respondent also incurred heavy debt for the treatment of her husband. The debt is repaid'-by the first respondent out of the income from the business conducted in the premises. All the heirs of deceased Joseph, the husband of the first respondent are not made parties to the petition. The petition is therefore bad for non-joinder of necessary parties."
Counsel appearing for the tenant took us through oral and documentary evidence adduced. It was contended that the need projected by the 6th petitioner is only a ruse to evict the tenant. Counsel contended earlier RCP 87/73 was filed under Section 11(3) as well as 11(8) and the same was dismissed. The present petition filed under Section 11(3) lacks bona fides. Counsel submitted that the second application is hit by Section 15 of the Act. Further it was stated that the attempt of the petitioner was to sell the property after evicting the respondent. Reference was also made to the oral evidence of RW-2 to RW-4, particularly the evidence adduced by broker stating that the petitioner had approached him for sale of the property. Counsel also submitted courts below have not properly appreciated the evidence adduced in order to claim protection under second proviso to Section 11(3) of the Act.
4. Counsel for the tenant submitted that the Rent Control Petition is not maintainable since all the legal heirs of the deceased Joseph were not impleaded. Placing reliance on the decision of the Constitution Bench in Gain Devi v. Jeevan Kumar, AIR 1985 SC 796 counsel contended that the tenant even after the determination of the tenancy continues to have an estate or interest in the tenanted premises and the tenancy rights both in respect of residential premises and commercial premises are heritable. Counsel submitted the heirs of the deceased tenant in the absence of any provision in the Rent Control Act to the contrary would step into the shoes of the deceased tenant and all the rights and obligations of the deceased tenant including the protection afforded to the deceased tenant under the Act would devolve on the heirs of the deceased tenant. Reference was also made to the decision of the Apex Court in Narain v. Om Prakash, AIR 1987 SC 1602 which set aside the order of eviction passed against the heirs of the original tenant on the ground that disputed premises being let out for commercial purpose was not heritable.
5. Counsel appearing for the landlord submitted that there is no reason to interfere with the concurrent findings of the courts below which upheld the bona fide need urged by the 6th petitioner to start a business of his own bona fide. Reliance was also placed on the decision of the Apex Court in K.M. Abdul Razzak v. Damodharan, (2000) 5 SCC 369; Rafat Ali v. Sugni Bai, (1999) 1 SCC 133; Patel Valmik Himatlal v. Patel Mohanlal Muljibhai, (1998) 7 SCC 383; Mudigonda Chandra Mouli Sastry v. Bhimanepalli Bikshalu, (1999) 7 SCC 66; Vallampati Kalavathi v. Haji Ismail, (2001) 4 SCC 26 etc. Counsel submitted 6th petitioner was 27 years old when the petition was filed and his father is no more. He is pre-deceased son of Joseph. He got married in November, 1989. He has no other avocation. Counsel submitted 6th petitioner wanted to conduct business in watch repair of his own. Further; it was stated he has got sufficient experience in conducting business in watch repair. Counsel submitted that the Rent Control Petition is perfectly maintainable. Placing reliance on oral evidence of RW-1 counsel submitted she was conducting business after the death of her husband. The sales tax registration is also in her name. Counsel also submitted in the earlier Rent Control Petition no ground was urged stating that petition is not maintainable. Additional objection filed on 29.11.1990 was only an afterthought and not based on any materials.
6. We are not prepared to say in the facts and circumstances of the case the bona fide need urged by the 6th petitioner is a ruse to evict the tenant. Facts disclose that he was aged 29 years and he has no avocation in life. He got married in November 1989, he has to maintain his family. His father is no more. Consequently he is depending on the first petitioner and others. Mere fact that he was also having certain interest in Varghese Watch Company which is functioning in the upstair portion does not mean that he cannot conduct any business. Sixth petitioner is now maintaining his family consisting of his wife and his mother. No evidence was adduced by the tenant that 6th petitioner has got independent income. We are of the view dismissal of RCP 87/73 is of no consequence as far as claim raised by 6th petitioner under Section 11(3). Though the claim for eviction was made earlier in RCP 87/73 under Section 11(3) and 11(8) the same was entertained earlier only under Section 11(8) and the same was negatived. That does not mean that the 6th petitioner is debarred from seeking eviction under Section 11(3) if he could establish bona fide need. No evidence was adduced by the tenant to show that the 6th petitioner has got any other building of his own, so also the other petitioners. Both the Courts have concurrently found that the tenant could not claim protection under second proviso to Section 11(3). No evidence was adduced by the tenant to show that he is mainly depending on the income derived from the business conducted in the tenanted premises. Oral evidence adduced by the petitioners would indicate availability of buildings in the nearby locality. In Ext. A3 notice it was not stated that rooms are not available in the locality to shift the business conducted by the first respondent. First respondent had also not made any enquiry regarding availability of the rooms in the locality. Evidence of RW-2 would indicate that rooms are vacant. On this point both the courts below have concurrently found that tenant is not entitled to get protection under second proviso to Section 11(3). We find no reason to disturb the said finding.
7. We may now consider the question whether objection raised by the tenant with regard to the maintainability of the petition is justified. We have perused the oral evidence adduced by RW-1. She has clearly stated in her evidence that after the death of her husband she is conducting the business. Sales tax registration is also in her name. Evidence was adduced by the first respondent that her children are conducting the business with her. On the other hand, counter affidavit filed by her would indicate that she is in possession of the tenanted premises and conducting business and eking livelihood from the income derived from the business conducted in the premises. A3 reply notice also would show that it is Mary who is in possession of the tenanted premises conducting business. There cannot be any quarrel regarding the proposition that commercial tenancy is heritable. But the question with regard to the interest of the heirs has to be decided depending upon the facts and circumstances of each case. In this connection we may refer to the decision of the Apex Court in H.C. Pandey v. G. C. Paul, AIR 1989 SC 1470. Apex Court while dealing with Section 106 of the Transfer of Property Act 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 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. In the present case it appears that the respondent acted on behalf of the tenants, that he paid rent on behalf of all and he accepted notice also on behalf of all. In the circumstances, the notice was served on the respondent was sufficient."
Apex Court in Rani Devi v. Bhole Nath, (1992) 1 SCC 61, held that the non-impleadment of daughters of deceased tenant would not disentitle the landlady to have ejectment of tenant. In Harish Tandon v. Addl. District Magistrate, Allahabad, AIR 1995 SC 676 the Supreme Court followed the decision in 1985 SC 796. The court while dealing with U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act held as follows:
"The framers of the Act have clearly expressed their intention in Sections 12, 20 and 25 while protecting the tenant from eviction except on the grounds mentioned in Section 20, that after the death of the original tenant his heirs will be deemed to be holding the premises as joint tenants, and for any breach committed by any of such joint tenants, all the heirs of the original tenant have to suffer. They cannot take a plea that unless the grounds for eviction mentioned in Sub-section (2) of Section 20 are established individually against each one of them, they cannot be evicted from the premises in question".
In a recent decision in Ashok Chintaman hiker v. Kishore Pandurang Mantri, (2001) 5 SCC 1 Apex Court examined the question in connection with the Bombay Rents, Hotel and Lodging House Rates Control Act. The Court reiterated the legal position and held that 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 Court held it is a single tenancy which devolves on the heirs.
8. We may examine the provisions of our Rent Control Act on the basis of the above mentioned principles. The word tenant is 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).....".
It is evident from the above mentioned definition that on the death of original tenant, tenancy rights devolve on his heirs as joint tenants, unless there is a provision to the contrary either negativing or limiting the succession, the tenancy rights devolve on the heirs of the deceased tenant. It is a single tenancy. There is no division of the premises or of the rent payable thereafter and 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. Once it is held that the tenancy was joint, a notice to one of the joint tenants was sufficient and the suit for same reason is also good. Unless and until there is evidence of disruption of the tenancy or division of premises or in the matter of payment of separate rent, the heirs succeed to the tenancy as joint tenants. In this case as we have already indicated notice to one of the tenants is valid and the Rent Control Petition impleading one of them is maintainable and order of eviction passed in such a case is binding on all the tenants. Assuming that the heirs of the deceased have got any interest in the tenanted premises determination of the question whether tenancy is joint or separate actually depends upon the facts and circumstances of each case. No inflexible rule or straitjacket formula can be laid down for that purpose.
9. We are in this case convicted on facts that it was Mary who was conducting business on the death of the husband for and on behalf of all others. It was Mary, who was paying rent. Sales tax registration is also in the name of Mary. On facts also we have convinced that Mary was conducting the business on behalf of her family and consequently non-impleadment of the children of Mary is no consequence. Objection raised with regard to the non-maintainability of the petition is rejected. We have indicated that on the death of the original tenant tenancy rights devolved on the heirs as joint tenants and it is a single tenancy. Consequently Rent Control Petition filed against one of the heirs could be maintainable and the order passed is binding on them. In the above mentioned facts we find no reason to interfere with the concurrent findings of the Courts below.
Revision lacks merits and the same is dismissed, however, tenant is given three months time to vacate the premises.