Kerala High Court
Joseph vs George Ittoop on 10 October, 2002
Author: K.S. Radhakrishnan
Bench: K.S. Radhakrishnan
ORDER K.S. Radhakrishnan, J.
1. Landlord is the revision petitioner. Eviction was sought for under Sections. 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'the Act'). Rent Control Court allowed eviction on both the grounds. On appeal by the tenant Appellate Authority reversed the finding under Section 11(3). Aggrieved by the same this revision petition has been preferred.
2. Petition schedule building originally belonged to the mother of the petitioner. Building was taken on rent by the tenant for Rs. 100/- per month by executing a rent deed dated 6.10.1980. Property was gifted to the petitioner by his mother as per Ext. A1 gift deed dated 27.7.1989. After the gift petitioner filed application for eviction on the ground that he requires the building for conducting his own business in hardwares. Petitioner stated that he has studied upto B.Sc. has no other avocation. Hence building was bona fide required by him for conducting the business. It was stated that the petitioner-landlord has no other building in his possession and ownership in the locality and consequently he has satisfied all the ingredients of the first proviso to Section 11(3). It is also contended that tenant is not eking his livelihood from the income derived from the business conducted in the tenanted premises. Further it was stated that other buildings are available in the locality. Consequently tenant is not entitled to the benefit of second proviso to Section 11(3) of the Act.
3. The tenant on the other hand contended that the building was taken out on rent in 1986. Original landlady demanded enhanced rent. Since the same was objected to by the tenant a gift deed was executed in favour of her son in 1989 and the son later filed the present petition for eviction. According to the tenant, the said transaction is a sham transaction. Gift deed was executed with mala fide intention to evict the tenant. Tenant alleged that the landlord's mother has got other buildings which can be used for conducting business. There is no other suitable building available in the locality for the tenant to conduct business. Tenant also stated there are other rooms belonging to the petitioners adjacent to the petition schedule room which are vacant and the petitioner could have utilised the said room for his business. Consequently it was contended that the ground for eviction is hit by the first proviso to Section 11(3).
4. Admittedly the building was rented out by the rent agreement dated 6.10.1980 by the mother of the petitioner. Petitioner had sent Ext. B1 notice dated 7.1.1989 for enhancement of the rent and the same was replied by Ext. B2 dated 26.1.1989 stating, there is no justification in demanding enhancement of the rent. We find it should have been possible for the landlord to start business in the said vacant shop building. Evidence would indicate that petitioner's mother has got several vacant shop buildings of her own. Ext. B3 building tax register would show that there are three buildings owned by the petitioner's mother which are vacant. Evidently Ext. A1 gift deed was executed by the mother to see the tenant evicted. Thereafter notice dated 21.8.1989 was issued. Counsel for the tenant submitted that this Court shall examine the motive behind the execution of Ext. A1. Counsel for the tenant submitted that the document is a sham document created only to see that the tenant is evicted in pursuance of Ext. B1 notice dated 7.1.1989 issued by the original landlord. Court has to test the bona fides of the claim raised by the petitioner and the circumstances under which Ext. A1 gift deed was executed. We find force in the contention of the counsel appearing for the tenant. In order to test the bona fides the court has to examine the attendant circumstances under which the petition was filed. This is a case where notice of eviction was sent by the mother of the petitioner which was replied by the tenant by Ext. B2 dated 26.1.1989. The landlady was convinced that she could not successively prosecute a petition for eviction and hence she gifted the tenanted premises to her son. Almost identical matter came up for consideration before the Apex Court in Devi Das v. Mohan Lal (AIR 1982 SC 1213). That was a case where proceedings for ejectment was attempted to by one Jugal Kishore as Mukthiar of the landlords as against the tenant. All those attempts had failed. Consequently mukthiar of landlords got executed sale deed in the name of his son Mohan Lal and filed the petition for ejectment. Rent Control Court as well as the Appellate Authority and the High Court have taken the view that the court cannot examine the nature of the transaction. Court can only examine as to whether ejectment petition would lie or not. Contention of the respondent was rejected by the Apex Court and it was held as follows:
"The appellate authority rejected the tenant's case on the view that tenant could not challenge the validity of the sale deed executed in favour of Mohan Lal because the tenant was not a parly to it. We do not think this was a correct view to take. An allegation had been made that in reality there was no sale and the sale deed was a paper transaction. The court had to record a finding on this point. The appellate authority however did not permit counsel for the tenant to refer to evidence adduced on this aspect of the matter. The High Court also did not advert to it. We, therefore, allow this appeal set aside the decree for eviction and remit the case to the trial court to record a finding on the question whether the sale of the building to respondent Mohan Lal was a bona fide transaction upon the evidence on record."
We are of the view the principles laid down by the Apex Court in the above decision would squarely apply to the facts of this case.
5. On facts we are convinced that Ext. A1 gift deed is a sham document, as stated by the tenant, created only to evict the tenant. We are therefore of the view that the appellate authority has properly exercised the jurisdiction and found that there is no bona fide in the claim. We therefore confirm the order of the appellate authority and reject the revision petition. The revision petition is accordingly dismissed.