HAJI ABDUL GHANISAHEB v. RAJAN SHARMA — 1986 DIGILAW 132 (KAR)

PATIL, J. ( 1 ) IN this revision filed under Section 50 of the Karnataka Rent Control Act, 1961 (the Act), the legality and correctness of the order of eviction dated 17-6-1983 passed by the Small Cause judge, Civil Station Bangalore, in HRC. No. 8058 of 1980, on his file, is sought to be challenged. ( 2 ) A shop premises with a room on rearside bearing No. 434 situated in Old Poor House Road, now known as Jumma Masjid Street in Civil Station, Bangalore, more particularly described in the plan annexed with the original petition made for eviction, is the subject matter of dispute. A few facts giving rise to the revision, which are not much in dispute, are as follows : ( 3 ) THE shop bearing No. 434 and the adjoining shop bearing No. 435 originally belonged to one r. Krishnaswamy of Bombay. They were leased together as a single unit to the petitioner-No. 1, who has been carrying on his business in readymade garments in the name and style as Haji lalmiyan Saheb and Sons. It being a registered partnership firm, the petitioner-3 Mr. L. Mohamed fazlur Rahaman and Respondent-2 Mr. Mohamed Ali are partners with him in the business. While repondent-landlord Mr. S. Rajan Sharma and his mother Smt. Chandrakantha purchased the shop bearing No. 434 along with the room and rear portion of the building, under the registerd sale deed dated 24-9-1976 (Ex. P-1), respondent-1's younger brother Mr. Shivarama sharma and mother Smt. Chandrakantha purchased shop bearing No. 435 under a separate sale deed. Rajan Sharma and his brother Shivaram Sharma being members of joint family are residing with their parents. Shivaram Sharma being minor, it would appear the 1st respondent rajan Sharma himself collected rents of both the premises upto the end of August, 1979 the monthly rent being Rs. 170/ -. After Shivaram Sharma attained majority, by a notice dated 10-7-79 (Ex. P. 27) respondent Rajan Sharma called upon the petitioner to pay the rent of the premises separately on the ground that the rents had to be accounted separately. Accordingly, it would appear the rent payable for the two shops bearing Nos 434 and 435, which were leased as a single unit, were split up and having apportioned the rent equally the petitioner started paying rent of Rs. Accordingly, it would appear the rent payable for the two shops bearing Nos 434 and 435, which were leased as a single unit, were split up and having apportioned the rent equally the petitioner started paying rent of Rs. 85/-, to the respondent Rajan Sharma, in respect of the premises in question and Rs. 85/- to Shivarama Sharma in respect of the permises bearing No. 435. Later on, the mother Smt. Chandrakantha also executed a registered release deed dated 14-1-1980 marked as Ex. P-2, relinquishing her interest in the shop premises bearing No. 434, in favour of S. Rajan Sharma, the respondent herein. ( 4 ) RESPONDENT Rajan Sharma having obtained a Diploma in Pharmacy in 1977 had been assisting his father Shyamasunder Sharma in the business of Chemists and Druggists and was intending to start his own business independently from his father. He was therefore requesting the tenant 1st petitioner to vacate the premises to enable him to start his business. When his oral requests were not fruitful, he got issued a notice dated 8-2-1980 through his Advocate that he reasonably and bona fide required the premises in question for starting his independent business in Pharmacy and Medicine. In reply to the said notice, when the 1st petitioner showed his unwillingness to vacate the premises contending, inter alia, that the real owner of the premises was K. S. Shyamasundar Sharma and his requirement of the premises for starting independent business was merely a ruse or pretext to evict him from the premises, the respondent S. Rajan Sharma instituted the proceedings for eviction on the ground mentioned in clause- (h) of Sub-section (1) of Section 21 of the Act, that is to say that he reasonably and bona fide required the premises for his personal use and occupation for carrying on his independent business in Pharmacy and medicine. ( 5 ) THE 1st petitioner who had been carrying on partnership business in the premises in question alone contested the case and filed his objections. ( 5 ) THE 1st petitioner who had been carrying on partnership business in the premises in question alone contested the case and filed his objections. Among other things, he contended that he has been carrying on business of readymade garments in the name of the firm Haji Lalmiyan Saheb and Sons since more than 56 years and there were six employees working in the partnership firm and although the premises in his occupation was having two separate numbers as 434 and 435, the tenancy was single and part of the premises was now standing in the name of Sri Shivaram sharma, hence the petition for eviction as brought without impleading Shivaram Sharma was untenable and on that ground alone the petition for eviction was liable to be dismissed. He also further contended that neither the requirement was reasonable and bona fide nor the premises was suitable for such business of Pharmacy and Medicine. At any rate, he contended the business carried on by him in the premises being the only source of his livelihood, great hardship would be caused to him in the event of making an order of eviction. ( 6 ) DURING enquiry, landlord Rajan Sharma examined himself as PW-1. In his evidence, he not only stated about his qualification, training and experience in carrying on business in Pharmacy and Medicine but also produced certificates issued to him in this behalf marked as Exs. P-4 and p-5. He not only affirmed his intention of starting his own business by opening a Chemists and druggists shop in the premises in question, but also produced evidence to show that he had sufficient funds to start the business. The tenant-1st petitioner herein who contested the case examined his son Mohamed Fazulur Rehaman, one of the partners of the firm as RW-1 in rebuttal and in proof of the stand taken by him. He also examined his other two sons L. Mohamed AH and Mohamed Umar as RWs-2 and 3 to show that they had no interest in the business carried on in the premises in question. He also got appointed one Madan Gopal, advocate, as a Commissioner to make a local inspection as to the condition of the premises as also the availability of access to the rear building through the bye-lane. He also got appointed one Madan Gopal, advocate, as a Commissioner to make a local inspection as to the condition of the premises as also the availability of access to the rear building through the bye-lane. ( 7 ) APPRECIATING the evidence and taking into consideration the release deed executed by the mother in favour of her son Rajan Sharma and the fact that the premises in question was also standing in the name of Rajan Sharma in the registers of Corporation, the Court below held that the petition for eviction as brought without impleading his brother Shivaram Sharma, was maintainable and the requirement of the premises for personal use and occupation was both reasonable and bona fide and while no hardship would be caused by making an order of eviction, greater hardship would be caused by refusing to do so. Taking into consideration the report made by the Commissioner, it also held that the rear portion of the building was not suitable for carrying on the business in Pharmacy and Medicine. In that view the Court below having made an order of eviction, the tenant has approached this Court in revision. ( 8 ) MR. Narayana Rao, learned Counsel for the tenant-petitioner, argued. The finding of the Court be low that the landlord reasonably and bona fide required the premises for his occupation for carrying on business is wholly erroneous, in as much as the respondent-landlord, who is a member of joint family with his father, is merely a benamidar and the real owner of the premises is his father Shyamasundar Sharma and both respondent and his father are carrying on business in Pharmaceuticals in their own other building and the claim of the respondent that he requires the premises reasonably and bona fide for carrying on his independent business was merely a ruse to oust the tenant-petitioner and the Court below having failed to consider this aspect of the case properly, the finding of the Court below on the question of reasonable and bona fide requirement is vitiated and therefore the order under revision cannot be sustained. He also contended further, neither the respondent had any separate source of income nor is there any evidence to show that he has necessary finances to start independent business and therefore the claim of the respondent that he wanted to start his own independent business cannot be accepted. He also contended further, neither the respondent had any separate source of income nor is there any evidence to show that he has necessary finances to start independent business and therefore the claim of the respondent that he wanted to start his own independent business cannot be accepted. He further submitted that the tenant-petitioner has been carrying on business in the petition premises since a pretty long time and has established his good-will and if he is evicted from the premises he would be put to greater hardship and this question of hardship has also not been properly considered by the Court below and therefore also the order under revision passed by the court below deserved to be set aside. Mr. Datar, learned Counsel for the respondent-land-lord, on the other hand, strongly supported the order of eviction as made by the Court below. ( 9 ) BEFORE considering these contentions on their merits, it is necessary to consider the contention raised by Mr. Narayana Rao in the nature of preliminary objection regarding the very maintainability of the petition for eviction as brought by the respondent. As stated earlier, two shop premises bearing Nos. 434 and 435 originally belonged to one R. Krishnaswamy and they were together let out as a single unit on a monthly rent of Rs. 170/ -. The contention of Mr. Narayana Rao was that the lease of the premises being one and indivisible, the application for eviction as brought by the respondent in respect of part of the premises leased was not maintainable and on that ground alone the application deserved to be dismissed. Mr. Datar, on the other hand submitted that even if the two shop premises were so let out to the tenant-petitioner as a single unit, each of them having been transferred to two different persons under different sale transactions, besides the rent of the premises also being split up proportionately, the contention that the application made by the respondent-landlord in respect of the premises sold to him was not maintainable, cannot be sustained. ( 10 ) THESE contentions are obviously based on the provisions contained in Sections 37 and 109 of the Transfer of Property Act, which read as follows:-" section 37, When, in consequence of a transfer, property is divided and held in several shares, and thereupon the benefit of any obligation relating to the property as a whole passes from one to several owners of the property, the corresponding duty shall, in the absence of a contract to the contrary amongst the owners, be performed in favour of each of such owners in proportion to the value of his share in the property, provided that the duty can be severed and that the severance does not substantially increase the burden of the obligation ; but if the duty cannot be severed, or if the severance would substantially increase the burden of the obligation, the duty shall be performed for the benefit of such one of the several owners as they shall jointly designate for that purpose : provided that no person on whom the burden of the obligation lies shall be answerable for failure to discharge it in manner provided by this Section, unless and until he has had reasonable notice of the severance. ** *** ** section 109. If the lesser transfers the property leased, or any part thereof, or any part of his interest therein, the transferee, in the absence of a contract to the contrary, shall possess all the rights, and, if the lessee so elects, be subject to all the liabilities of the lessor as to the property or part transferred so long as he is the owner of it ; but the lessor shall not, by reason only of such transfer, cease to be subject to any of the liabilities imposed upon him by the lease, unless the lessee elects to treat the transferee as the person liable to him : provided that the transferee is not entitled to arrears of rent due before the transfer, and that, if the lessee, not having reason to believe that such transfer has been made, pays rent to the lessor, the lessee shall not be liable to pay such rent over again to the transferee. The lessor, the transferee and the lessee may determine what proportion of the premium or rent reserved by the lease is payable in respect of the part so transferred, and, in case they disagree, such determination may be made by any Court having jurisdiction to entertain a suit for the possession of the property leased. " on a combined reading of these two sections, what emerges out is : When in consequence of transfer of the property leased is divided and held by different transferees in different shires, the benefit of any obligation relating to the property as a whole, also passes from transferor to several transferees of the property leased, with corresponding duty to be performed in favour of each of such several transferees in proportionate to their share in the property, provided the duty can be so severed without substantially increasing the burden of obligation. If the duty cannot be so severed or the severance would substantially increase the burden of obligation, the duty shall be performed for the benefit of each of the transferees as determined by them jointly. This also holds good where only part of the property leased is transferred by the lessor and the property so transferred is either divided or is ascertainable for being held separately from the part not transferred In either of these cases, all that is necessary is that the tenant must have sufficient notice of the transfer to convert his single obligation into several obligations to pay the rent to several transferees who by virtue of the provisions of Section 109, step into the shoes of the lessor become possessed of rights of the original lessor as to the property or part of the property transferred and the lessee, if he so elects, is subject to all the liabilities of the lessor as to the property or part of the property transferred, except that the transferee will not be entitled to the arrears of rent due before transfer and the lessee shall not be liable to pay the rent over again to the transferees. In what proportion the rent will be payable in respect of part of the premises or different portions of the premises transferred may be determined by the lessor, transferee (s) and lessee. In what proportion the rent will be payable in respect of part of the premises or different portions of the premises transferred may be determined by the lessor, transferee (s) and lessee. In case of disagreement between them, as provided under Section 109, the same will be determined by the Court having jurisdiction to entertain a suit for possession of the property leased. However, as long as there is no apportionment of the rent made, the obligation remains single and the transferee, or transferees (where different portions of the properly is sold to different persons), who becomes the lessor in place of original lessor, will not be allowed to split the tenancy for claiming or recovering the rent of a part of the property leased. The rights and liabilities of the lessor and lessee are determinable by the terms of the contract or local usages and those specified in Section 108 of the T. P. Act. Since, by virtue of Clause (c) of Section 108, transferees from the original lessor shall be deemed to contract with the lessee that if the latter pays the rent reserved by the lease and performs the contract binding on him, he may hold the property during the time limited by the lease without interruption. In other words, the tenant shall continue in undisturbed possession of the property leased until determination of the lease. In sum and substance, where the property leased is transferred, there is severance of tenancy ; but, inspite of severance of tenancy, the lessee is entitled to continue in possession of the property without interruption by paying the rent as originally reserved proportionate to the property transferred. In sum and substance, where the property leased is transferred, there is severance of tenancy ; but, inspite of severance of tenancy, the lessee is entitled to continue in possession of the property without interruption by paying the rent as originally reserved proportionate to the property transferred. However, where the property leased is transferred in different shares to different transferees, without specifying as to which part of the property leased is transferred to which of the transferees, and although it may be possible to say what share they have in the property so transferred having regard to the contributions made by the transferees for the transfer, and the transferees, by virtue of provisions of Section 36 of the T. P. Act, may be entitled to claim and receive the rent in proportion to their share, they cannot however determine the lease or recover possession of the property leased proportionate to their share ; because until and unless there is a division of the property leased in proportion to their share, the transferees cannot say that they are the lessors in respect of any particular part of the property. In order to effect severance of tenancy on transfer, there must be necessarily be a division of the property. Once there is division of the property, either while transferring of the property leased or after transfer, among the transferees of the property leased proportion to their share, then, there is severance of tenacy. That being so, the transferee of the property leased will be entitled to recover possession of the part of the property leased in proportion to his share so determined. Although as stated earlier, under general law, even after transfer of the property leased the tenant is entitled to continue in undisturbed possession of the property leased to him by paying the premium of the rent reserved until determination of the lease, but in case of statutory tenants continuing in possession of the property leased, because of the protection from eviction given to them under the Rent Control Act, the determination of the lease being not necessary, the transferee of the part of the property transferred may recover possession without determination of the lease. ( 11 ) IT appears, It is not necessary to refer to various decisions cited and relied upon by Mr. ( 11 ) IT appears, It is not necessary to refer to various decisions cited and relied upon by Mr. Narayana Rao since the question of law as now raised by him was subject of consideration in the decision of Sree Nataraja Flour Mills -V.- Venkatarathnaiah, ILR1986 kar 382 of this Court and after referring to various decisions including the one relied upon by mr. Narayana Rao, it has been held that on transfer of a part of the property leased, there is severance of tenancy. The transferee of the property leased, or where it is transferred to different persons, all the transferees, step into the shoes of the lessor. There being thus severance of tenancy, on a transfer of a part of the property leased and the transferee becoming the lessor and the lessee becoming the lessee of the transferee of the part of the property so transferred, they will be subject to all the rights and the liabilities of the lessor and the lessee as specified under section 108 of the Transfer of Property Act. ( 12 ) HEREIN the case on hand, as stated earlier, there is no much dispute that the shop premises bearing No. 434 having been transferred in the name of S. Rajan Sharma and his mother Smt. Chandrakantha, also stands in the name of the respondent S. Rajan Sharma. Although upto the end of August 1979, after the transfer, the tenant continued to pay the rent at the rate of Rs. 170/-as reserved under the original lease, as being the rent of both the premises leased to him and the respondent himself collected the rent of both the premises, there is no dispute that after the respondent served a notice Ex. P-27 on the tenant, calling upon him to pay the rent of the premises separately, the rent originally reserved was split up and the tenant went on paying Rs. 85/- to the respondent as being the rent in respect of the premises in question. Thus, the property transferred being distinct and well denned and the rent payable also having been apportioned as payable to the property transferred, the tenancy stood split up on transfer, the application made by the respondent for eviction is maintainable. ( 13 ) MR. 85/- to the respondent as being the rent in respect of the premises in question. Thus, the property transferred being distinct and well denned and the rent payable also having been apportioned as payable to the property transferred, the tenancy stood split up on transfer, the application made by the respondent for eviction is maintainable. ( 13 ) MR. Narayana Rao, however, contended that the rent payable had been apportioned on the representation made by the respondent that they had to be separately accounted and the apportionment being not intended to split up the tenancy, the fact that the rent payable had been apportioned may not be regarded as having the effect of splitting the tenancy. That is immaterial. As stated earlier, the determination as to the proportion in which the rent reserved is payable in respect of part of the property transferred is not necessary for splitting of tenancy, if the property transferred is distinct and well defined. By virtue of provisions of Sections 37 and 109, in such case of transfer of distinct part of the property leased, the tenancy stands split upon transfer, even without determination of the rent payable in respect of the property so transferred. If the original lessor himself determines in what proportion the rent shall be payable, it, is well and good ; if not, the transferee and the lessee may themselves agree; and even if they do not agree, it is competent for the Court having jurisdiction to determine in what proportion the rent shall be payable to the transferee. Therefore, no what representation the tenant agreed to pay the rent proportionate to the property transferred is not much relevant here. The fact remains that distinct property had been transferred and the rent payable had also been split up. ( 14 ) NOW, coming to the merits of other contentions, although one of the contentions raised by the tenant, the 1st petitioner herein, was that the respondent herein was merely a benamidar and the real owner of the premises was his father K. S. Shyamasunder Sharma, but neither that contention has been pursued during the inquiry, nor any such contention has also been advanced in the Court below. Therefore, I do not think it is permissible now to raise such contentions coming in revision. Therefore, I do not think it is permissible now to raise such contentions coming in revision. Even so, having regard to the fact, as found by the Court below, the properly having been purchased in the name of respondent- l, and his mother having relinquished her right in the property, and the property now admittedly standing in the name of the 1st respondent in the registers of Corporation and the tenant having recognised him as his landlord by paying the rent of the premises to him, he is estopped now from denying that he was not the landlord of the premises, leave aside the fact that no evidence has also been adduced to show that the real owner of the premises was Shyamasunder Sharma and not the respondent. This belated contention raised by Mr. Narayana Rao in this revision has no legs to stand and is therefore rejected. ( 15 ) OF course, there is no denial of the fact that Shyamasunder Sharma has been carrying on business in pharmaceuticals and in his own building. In fact, as stated earlier, the case of the landlord-respondent is that he had been assisting his father in the business and has gained experience in the particular field of business, but the fact that he is a member of the joint family is not by itself sufficient to hold that his requirement is not reasonable and bonafide. ( 16 ) SO far as his experience in the particular field of business is concerned, there is abundant evidence. Not only, as we have in the evidence, as claimed by the respondent (PW-1), he has gained experience while assisting his father in the business, but he has obtained a Diploma in pharmacy and has undergone training. The evidence given by him in this behalf finds support from the certificates Exs. P-4 and P-5 produced by him. There is, therefore, no reason whatsoever to find fault with the finding of the Court below that he has sufficient experience also to carry on business in the particular field. ( 17 ) THE evidence adduced on behalf of the respondent also showed that not only he made preparations for starting business by purchasing fridge and furniture, apart from those available with him, but he has also got ready cash in fixed deposit. As on 17-7-1982, he had Rs. 20,000/in his F. D. Account as evidenced by Ex. ( 17 ) THE evidence adduced on behalf of the respondent also showed that not only he made preparations for starting business by purchasing fridge and furniture, apart from those available with him, but he has also got ready cash in fixed deposit. As on 17-7-1982, he had Rs. 20,000/in his F. D. Account as evidenced by Ex. P-6 and P-7. He has also renewed the deposit as per Ex. P-7. Of course, he had no independent source of income, in that he is not employed anywhere or carrying on any other business. Admittedly he is jobless, but appears to have made some savings from out of the rentals received. Therefore, the respondent-landlord having funds also to back up the proposed business, it cannot be said that the requirement was not bon fide. As stated earlier, there is nothing unreasonable in his intending to start independent business, he being otherwise unemployed. ( 18 ) IN this background and in the absence of any evidence worth the name to show that the intention of the respondent was merely to oust him from the premises, it is too much to argue that the application is made with oblique motive of ousting the tenant. The Court below was, therefore, justified in holding that the requirement of the landlord was both reasonable and bonafide. ( 19 ) NOW, what requires to be considered is: Whether any greater hardship would be caused to the landlord or the tenant in the event of refusing to make an order of eviction. In the circumstances where the requirement of the landlord are found to be reasonable and bona fide, to deny possession of the premises to the respondent who, himself being unemployed, wants to establish his own business would be certainly a hardship. Of course, it would appear there is a rear portion of the building purchased by him along with the shop in question. But, having regard to the situation, as rightly found by the Court below, the two rooms available on the residential portion of the house are unsuitable for the proposed business, apart from the difficulty to the customers themselves to appproach to the said place through the narrow lane as disclosed from the said report of the Commissioner, they cannot be regarded as suitable for business. In other words, there is no other suitable accommodation available to the landlord to start his business. In other words, there is no other suitable accommodation available to the landlord to start his business. Therefore, to deny him the possession of the premises in question would be certainly a hardship to him. Considering the same aspect from the point of view of the tenant, even if he is evicted from the part of the shop permises bearing No. 434, he Will have the remaining portion to carry on his business. Of course, it would appear, it is an old business; if not so old as 60 years, it is an old business of not less than 20 years. But, the fact that he has been carrying on business since 20 years there in both the premises is not by itself sufficient to hold that by evicting him from part of the premises any greater hardship would be caused to him. One of the contentions advanced before the Court below and now pressed into service by Mr. Narayana Rao is that if the respondent's brother also would come with an application for eviction of the remaining part of the premises bearing No. 435, what should happen to him. It is difficult to answer such hypothetical questions. If the tenant thinks that he cannot carry on business in the accommodation that would be available in the remaining portion, after vacating the shop premises No. 434 it is upto him to take a decision whether to continue there or find alternate accommodation ; but, as it is, the remaining portion being available to him, it cannot be said any greater hardship would be caused to him by vacating the part of the premises in his occupation. Although there is no doubt there may be some difficulty either in storing his goods or arranging and exhibiting the garments in the remaining portion, but that cannot be regarded as a greater hardship to him. Even assuming for a moment he has got some employees working under him and for want of accommodation their services have to be terminated, although none of the employees has been examined, that may not be relevant on the question of hardship on the tenant. What at best may be said is that sufficient opportunity should be given to the tenant to give vacant possession. What at best may be said is that sufficient opportunity should be given to the tenant to give vacant possession. The Court below has also, after taking into consideration all these aspects, come to the conclusion that no greater hardship would be caused to the tenant by making an order and I do not find any error in this reasoning and approach of the Court below in recording the finding that no hardship would at all be caused to the tenant. In the result and for the reasons stated above, the revision fails and it is accordingly dismissed. However, having regard to the peculiar facts and circumstances of the case, it appears, reasonable time has to be granted to the tenant-petitioner to give vacant possession of the premises in question. After hearing Counsel appearing for both the parties, I think it would be reasonable to grant at least six months time to give vacant possession of the premises. Accordingly, six months time from today is granted to the tenant-petitioner to give vacant possession of the premises in question, on condition that he shall go on paying the rent regularly as was being paid by him to the landlord as and when it becomes due, failing which the landlord will be at liberty to execute the decree and obtain possession.