Karnataka High Court
Smt. K.S. Nagamma vs Mrs. M.P. Manekshah on 22 March, 2004
Equivalent citations: ILR2004KAR2309, 2004(4)KARLJ408, 2004 AIR - KANT. H. C. R. 2618, 2004 AIHC 4130, (2005) 1 RENCJ 108, (2005) 1 RENCR 41, (2004) 2 RENTLR 230, (2004) 3 ICC 701, (2004) 3 KCCR 1561
Author: A.V. Srinivasa Reddy
Bench: A.V. Srinivasa Reddy
ORDER 22 RULE 4 AND 4A - KARNATAKA RENT ACT, 1999 - SECTIONS 5(1) AND (2), 27 -- Procedure in case of death of defendant and procedure when there are no legal representatives, legal representative as contemplated under Section 5(1) and (2) -- Position of Legal representatives who do not come within the purview of Section 5(1) and (2) and enjoy protection of Section 27 of the Act -- Position of persons who are not members of the family of deceased tenant. The occupant of the premises who does not inherent the tenancy of the deceased respondent under Section 5 of the Act and who does not enjoy the protection provided to a legal representative under Section 27 of the Act to resist the recovery of possession by the landlord, merely comes on record to suffer an order of eviction and to facilitate the recovery of the petition premises by the petitioner landlord. HELD - If the present occupant is not covered by either Sub-section (1) or Sub-section (2) of Section 5, the only appropriate role that the present occupant could play in his capacity as the L.R. of the deceased respondent without being his/her successor entitled to the inheritance of her/his tenancy, is that of the Administrator General or an officer of the Court who is appointed by the Court under Rule 4-A of Order 22 C.P.C. The occupant of the premises merely represents the estate of the deceased respondent, in the absence of right of inheritance of tenancy, only to suffer an order of eviction which when passed by the Court will bind the estate of the deceased person just as it would have bound her/his had he/she been represented by a legal representative having the right of inheritance, the only difference being that the petitioners landlord is not required to establish her/his case under Section 27 of the Act. The presence of the intermeddler in the Revision proceedings becomes necessary only in order to proceed with the proceedings and to make a final order. Held: A person who does not inherit the tenancy of the deceased tenant under Section 5 of the K.R.C. Act and who does not enjoy the protection provided to a legal representative under Section 27 of the Act to resist the recovery of possession by the landlord, merely comes on record to suffer an order of eviction and to facilitate recovery of premises by the landlord. Section 3 of KRC Act does not define legal representative K.R.C. Rule 2001 stipulates applicability of provisions of CPC for deciding questions relating to procedure not specifically provided for in KRC Act. Bringing of legal representative of the deceased tenant (respondent) on record being purely a question related to procedure. Section 2(11) CPC defines the term "Legal Representative" means a person who in law represents the estate of the deceased, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued." The first proviso of Sub-section (1) of Section 5 of the Act which states, 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 would dependant on the deceased tenant would clearly exclude the present occupant who is not a member of the family. Sub-section (2) of Section 5 being with the words, 'if a person, being a successor in Sub-section (1) thereby making it obvious that it is only those persons mentioned as successors in Sub-section (1) viz., the spouse, the son or daughter, parents or daughter -in-law being a widow of pre-deceased son who are entitled to the remedy of inheritance under Section 5. The Landlord petition was allowed, holding that the occupant (brother -in-law of the daughter) does not inherit the tenancy of the deceased tenant under Section 5, and his presence is one of intermeddler, hence cannot resist the recovery of permission by the landlord, but merely comes on record to suffer an order of eviction and facilitate the recovery of the premises by the landlord. Revision allowed in part. ORDER A.V. Srinivasa Reddy, J.
1. The petitioner - landlord aggrieved by the order passed by the Chief Judge of Small Causes, Bangalore dismissing the petition filed by her in H.R.C. No. 2472 of 90 under Section 21(1)(h) of the Karnataka Rent Control Act, 1961 ('the repealed Act' for short) has presented the present Revision Petition.
2. The petitioner is the absolute owner of the schedule premises which was given to the husband of the respondent - tenant on a monthly rent of Rs. 1,200/- per month. After the death of the husband, the respondent - tenant continued in possession as tenant. The petitioner filed the petition under Section 21(1)(h) of the repealed Act stating that the schedule premises is required by her for the use and occupation of her only daughter Ms. Rashmi. The respondent resisted the petition stating that her son along with his wife and children have gone abroad and are likely to return to India shortly. She also alleged that the petitioner has rented out the first and second floor portions of the same premises to companies for non-residential purpose. She has denied the claim of the petitioner that she requires the schedule premises for the use and occupation of her daughter. The Court -- below found that the petitioner failed to establish the requirement as pleaded by her and, accordingly, dismissed the petition. The order dismissing the eviction petition is impugned in this revision petition by the petitioner.
3. I have heard the learned Counsel on both sides.
4. In these proceedings the petitioner-landlord filed I.As 1 to 3 of 2002. I.A. No. 1 was filed seeking appointment of a Commissioner; I.A. 2 was filed to restrain the respondent from sub-letting or under-letting the whole or part of the schedule premises and I.A. No. 3 was filed to restrain the respondent from making any structural changes to the petition schedule premises. These I.As were taken up for consideration on 31.10.2002 and I.A. No. 1 was allowed and Mr. Anil S. Katti was appointed as the Court Commissioner to inspect the premises and make a report as to who is in actual possession of the premises. I.A. No. 2 was also allowed restraining respondent-tenant from sub-leasing or permitting any third party to occupy the premises. As the Commissioner was also directed to report on the structural changes, if any, made by the tenant, no orders were passed on I.A. No. 3. The Commissioner filed his report on 12.11.2002.
5. The daughter of the petitioner filed I.A. No. 1 of 2003 under Order 1, Rule 10(2) C.RC. praying to permit her to implead herself in the above proceedings as a second petitioner. On 8.8.2003 this Court passed orders directing the posting of this application for hearing along with the main revision petition.
6. In the meanwhile on 6.5.2003 the sole respondent died and the learned Counsel for the petitioner filed I.A.II of 2003 under Order 22, Rule 4 read with Section 5 of the Karnataka Rent Act, 1999 for allowing the revision petition. The daughter of the deceased respondent, namely, Mrs. Kamal Y. Unvalla and her husband Adil N. Unvalla also filed I.A.No. 3 of 2003 for coming on record as legal representatives of the deceased tenant. These I.As. were also directed to be posted for hearing along with the main petition.
7. During the pendency of the revision petition, the Karnataka Rent Act, 1999 ('the present act' for short) came into force bringing about a sea-change in the law governing matters of eviction and regulation of rent. Section 5 of the present Act is one such comprehensive provision enacted with the specific purpose of limiting the inheritability of tenancy to certain specific period, the period of entitlement to the inheritency being different to different successors of the tenant depending on certain facts and circumstances which are enumerated in the provision itself. To better understand the specifics, I quote Section 5 in full. It reads:
"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 to his successors in the following order, namely:-
(a) Spouse;
(b) Son or daughter or where there are both son and daughter both of them;
(c) Parents;
(d) Daughter-in-law, being the widow of his pre-deceased 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 extinguishments 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 extinguishments, 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."
It is an admitted fact that none of the persons enumerated in Sub-section (1) of Section 5 of the Act were residing with the respondent. Only the brother-in-law of one of the daughters of the respondent was residing with the respondent in the schedule premises. The brother-in-law of the daughter not being one of the persons who could inherit tenancy in terms of Section 5, the questions that arise for my consideration are:
(i) Whether the brother-in-law of the daughter of the deceased sole respondent is entitled to come on record and contest the revision petition?
(ii) What Order?
8. The learned Counsel on both sides addressed their arguments on the revision petition as also the I.As.
9. After the coming into force of Section 5 of the Act, it becomes necessary for the legal representative of the respondent who wants to come on record on the death of the original tenant to establish that the right of inheritance of the tenancy enures to him and, therefore, he could be evicted from the petition premises only on the grounds specified in Section 27 or Section 28 to 31 of the present Act and not otherwise. If on interpretation of Section 5 this Court comes to the conclusion that the respondent has not inherited tenancy, then there is no need for this Court to examine the legality and correctness of the impugned order. Therefore, let me now first consider whether the right of tenancy accrued to the present occupant of the premises. Section 5 of the Act provides a new substantive remedy to a landlord in case of death of a tenant. Section 5 prescribes the right of inheritance only to a specified class of persons and limits this inheritance to various periods depending upon certain factors which have been prescribed in the provision. This subsequent development in law is relevant in adjudging a claim for eviction made by the petitioner. In so adjudging the claim under Section 5, in circumstances such as the one obtaining in the present case, what is required of the Court is to examine whether the person who is staying over in the premises after the death of tenant is entitled to continue to remain in possession of the premises in his capacity as 'tenant' and whether the right of inheritance of tenancy accrues to him after the death of the tenant. Where such right is rendered inheritable, in law, his induction in the petition premises by the tenant prior to her death and his continuing in occupation as the representative of the tenant would not come to his aid in resisting a petition filed for eviction. Section 5 provides a new substantive remedy and the landlord even if he had suffered a negative finding in so far as his claim for self-occupation on the grounds hitherto available to him under the repealed Act can still seek relief under Section 5, if it enures to his benefit. Because there is no consideration of the material on record with reference to the altered law that governs the field now, this Court sitting in revision can adjudicate the matter in terms of the altered law as subsequent developments and altered circumstances are always at relevant all stages of the proceedings. Admittedly, the tenant died on 6.5.2003 during the pendency of the revision leaving behind her two daughters and one son, none of whom was residing with her in the petition premises. The brother-in-law of one of the daughters of the deceased tenant was residing with her in the petition premises. Under Section 5 of the Act the right of tenancy devolves on the spouse, son or daughter or both of them, parents and daughter-in-law being the widow of the predeceased son and not on any other person. The brother-in-law of one of the daughters of the tenant though ordinarily lived with the respondent-tenant, the right of tenancy does not devolve on him. It has come on record that none of the daughters or the son ever resided with the tenant in the petition premises. The contract of tenancy coming to a close on the death of the tenant, in the absence of any other person who could rightfully inherit the tenancy under Section 5, the petitioner-landlord would be entitled to an order of eviction without reference to or without the need to establish any other ground under which she may have sought for her eviction. This being the position that obtains in law the petitioner is entitled to recover possession of the petition premises and the Court is bound to pass an order for such recovery without going into the question whether or not the petitioner has established her requirement of the premises.
10. Learned Counsel for the respondent, however, submitted that the present occupant of the premises who wants to come on record as legal, representative of the deceased-tenant can resist the petition in his capacity as the legal representative of the deceased respondent-tenant as the right to defend the petition survives to him under the provisions of the Code of Civil Procedure even after the death of respondent-tenant. In the present case despite the death of the respondent the right to sue survives for the petitioner and it has to be examined whether the present occupant could don the role of a legal representative of the deceased-tenant to represent the estate of the deceased tenant. Rule 4 of Order 22 C.P.C. provides for a situation wherein the sole defendant dies and the right to sue survives, just as in the present case. It reads:
"4. Procedure in case of death of one of several defendants or of sole defendant:- (1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.
(2) .Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.
(3) .............. .............. .............. ..............
(4) .............. .............. .............. ..............
(5) .............. .............. .............. .............."
Therefore, in order to ascertain as to what defence the present occupant of the premises is entitled to, it becomes necessary to ascertain the character or the type of representation that the present occupant of the petition premises could stake claim to in these proceedings.
11. Section 3 of the Act does not define a legal representative. Rule 33 of the Karnataka Rent Rules, 2001 stipulates application of the provisions of the Civil Procedure Code for deciding questions' relating to procedure not specifically provided for in the Act. Bringing the L.R. of the deceased respondent on record being purely a question related to procedure, it would apt to refer to the definition of the term 'legal representative' as contained in Section 2(11) of C.P.C. for determining the issue arising for consideration in this revision. Section 2(11) C.P.C. defines the term as:
"'Legal representative' means a person who in law represents the estate of the deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued."
The present occupant of the petition premises does not in law represent the estate of the deceased tenant and nor he is a person on whom the estate would devolve on the death of the tenant. Still, he in terms of the definition contained in Section 2(11) of C.P.C. becomes the 'legal representative' of the deceased tenant as an intermeddler having come into possession of the petition premises though, as stated earlier, he could neither represent the estate of the deceased lawfully nor the estate devolves on him on the death of the tenant. The only thing to be examined in such a situation is, as to what type of defence could be allowed to be taken by him in these proceedings as he is entitled to only such defence as is appropriate to his character as an inter-meddler.
12. The first proviso to Sub-section (1) of Section 5 of the Act which states, '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' would clearly exclude the present occupant because he is not member of the family of the deceased respondent. Sub-section (2) of Section 5 begins with the words, 'if a person, being a successor in Sub-section (1),......' thereby making it obvious that it is only those persons mentioned as successors in Sub-section (1) viz. the spouse, the son or daughter, parents or daughter-in-law being the widow of the pre-deceased son who are entitled to the remedy of inheritance under Section 5. As the present occupant is not covered by either Sub-section (1) or Sub-section (2) of Section 5, the only appropriate role that the present occupant could play in his capacity as the L.R. of the deceased respondent, without being her successor entitled to the inheritance of her tenancy, is that of the Administrator General or an officer of the Court who is appointed by the Court under Rule 4-A of Order 22 C.P.C. Order 22, Rule 4-A reads:
"4-A. Procedure where there is no legal representatives. - (1) If, in any suit, it shall appear to the Court that any party who has died during the pendency of the suit has no legal representative, the Court may, on the application of any party to the suit, proceed in the absence of a person representing the estate of the deceased person, or may by order appoint the Administrator-General, or an officer of the Court or such other person as it thinks fit to represent the estate of the deceased person for the purpose of the suit; and any judgment or order subsequently given or made in the suit shall bind the estate of the deceased person to the same extent as he would have been bound if a personal representative of the deceased person had been a party to the suit."
The present occupant of the petition premises in his capacity as intermeddler therefore, merely represents the estate of the deceased respondent, in the absence of right of inheritance of tenancy, only to suffer an order of eviction which when passed by the Court will bind the estate of the deceased person just as it would have, bound her had she been represented by a legal representative having the right of inheritance, the only difference being that the petitioner landlord is not required to establish her case under Section 27 of the Act. The presence of the intermeddler in the revision proceedings becomes necessary only in order to proceed with the proceedings and to make a final order. A person appointed under Rule 4-A of Order 22 C.P.C. merely represents the estate of the deceased person and facilitates or assists the Court in giving effect to the order passed or to be passed by the Court. As the right to sue continues for the petitioner-landlord even in the absence of the sole respondent-tenant, the L.R. of the deceased respondent represents the estate of the deceased so that the petitioner could proceed with the revision proceedings in order to recover possession of the schedule premises which was under the occupation of the deceased respondent. Thus, I find that the present occupant of the premises who does not inherit the tenancy of the deceased respondent under Section 5 of the Act and who does not enjoy the protection provided to a legal representative under Section 27 of the Act to resist the recovery of possession by the landlord, merely comes on record to suffer an order of eviction and to facilitate the recovery of the petition premises by the petitioner-landlord. Having thus examined the issue from the point view of Section 5 and the defence that is available to the occupant of the petition premises in his capacity as an intermeddler, I have no hesitation to hold that the petitioner-landlord is entitled to recover possession of the schedule premises without even the need to prove her requirement under Section 27 of the Act. I answer the point accordingly.
13. The revision petition is accordingly, allowed. The legal representative of the respondent-tenant who is in possession of the petition premises is directed to deliver vacant possession of the petition premises to the petitioner-landlord within three months from today. It is ordered accordingly.
I.A. No. 2 of 2003 is, accordingly, disposed off.
I.A. No. 3 of 2003 filed by the daughter and son-in-law of the deceased respondent-tenant is dismissed.
As the revision petition itself is disposed off by allowing the eviction petition, no orders are necessary on I.A. No. 3 of 2002.