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1978 DIGILAW 612 (MAD)

Varghese v. Mrs. Irudaye Mary

1978-11-29

RAMANUJAM

body1978
Judgment :- 1. These revisions have been filed against the order of eviction passed by the Rent Controller and affirmed by the Appellate Authority. The eviction of the petitioners was sought by the respondent on the ground that the portions in their occupation are required bona fide for the purpose of demolition and reconstruction. The petition was resisted on the ground that the landladys requirement for demolition and reconstruction is not bona fide and that in any event, the proposal of the landlady is only to change the roof of the building and that will not amount to demolition and reconstruction as contemplated by the provisions of the Act. Both the Authorities below held that the respondent has got sufficient means to reconstruct the building, that she has already obtained a plan for reconstruction of the building and that the requirement of the respondent was bona fide. 2. In this revision, Mr. N. Varadarajan, learned counsel for the petitioners, contends that though the respondent is entitled to collect the rent from the premises in lieu of her maintenance she had no absolute rights in the property nor (sic) right to demolish and reconstruct the building. According to the learned counsel, a petition for demolition and reconstruction can be filed by a person in whom the property has been absolutely vetted and not the maintenance holder like the respondent in this case. Learned counsel in support of his submission that the respondent landlady is only a maintenance holder, relies on Ex. B-2 under which the respondent has been given the right of enjoyment of the property, in question. According to him, under Ex. B-2, executed by the respondents children, she is entitled only to collect the rent for her maintenance during her lifetime and that such a right under Ex. B-2 will not enable her to demolish and reconstruct the building. Though the said document is styled as a maintenance deed, the operative portion of the document says that the entire property is entrusted to her for maintenance during her lifetime and that she can enjoy the properties without any power of alienation. Therefore, notwithstanding the nomenclature of the document, it can be said that a life interest has been created in the property in favour of the respondent under Ex. B-2. Therefore, notwithstanding the nomenclature of the document, it can be said that a life interest has been created in the property in favour of the respondent under Ex. B-2. It also provides that out of the income from the properties, she can also effect repairs to the house and enjoy the same. Therefore, it is not possible to accept on the language of Ex. B-2. that it is only a maintenance deed. Normally, a maintenance deed in the strict sense will provide for a specified amount as maintenance to the maintenance-holder being paid periodically. But, here a property which was absolutely owned by the children of the respondent, has been given to the respondent for her life and she can enjoy the same in any manner she likes without any power of alienation. I have to, therefore, agree with the view of the courts below that Ex. B-2 cannot be taken to curtail the rights of the respondent to the property during her lifetime to a mere right to receive maintenance. That if the rsepondent it held to have a life interest in the property, she will be entitled to apply for demolition and reconstruction, cannot be disputed. That question has been decided conclusively by the Supreme Court in Gopalakrishna Chetti v. Ganesan 1976 1 S.C. 358 where a landlord who was a holder of life interest in a property, was entitled to evict the tenant on the ground that the building is bona fide required by him for demolition and reconstruction. 3. The next submistion made by the learned counsel is that the plan filed by the respondent indicates that the respondent proposed to change only the tiled roof into R.C.C. roof and that will not amount to demolition and reconstruction. For this, the learned counsel invokes the aid of the decision of a Bench of this court in Krishnav. Munusami 1978 2 M.L.J. 510=91 L.W. 454. But, the authorities below after looking into the plan have held that there is not only (he change of the roof, but also a change in the plinth area as between the old tiled construction and the new construction with R.C.C. roof. I have also perused a copy of the plan produced by the petitioners counsel. It clearly indicates that the proposed R.C.C. structure is to be of a larger area than the area covered by the tiled building. I have also perused a copy of the plan produced by the petitioners counsel. It clearly indicates that the proposed R.C.C. structure is to be of a larger area than the area covered by the tiled building. As a matter of fact, the open space in between the two tiled structures is to be covered by the R.C.C. roofing. Therefore, the Authorities below appear to be right in holding that there is not only a change in the roofing, but also a change in the area in that the new structure includes a larger area over and above the area covered by the tiled structure. I do not, therefore, see any error in the order of the courts below. No other point is urged. In this view, this Civil Revision Petition is dismissed. The petitioners will, however, have three months time to vacate.