ANDAPPAN v. SARAMMA VARGHESE — 1986 DIGILAW 22 (KER)

Judgment :- 1. These revision petitions arise from proceedings initiated by the respondent under S.11(1), (2), (3) and (4) of the Kerala Buildings (Lease and Rent Control) Act, 1965, for short the Rent Control Act, for eviction of the petitioners from the buildings in their occupation. 2. Certain facts are admitted. The building originally belonged to the husband of the respondent. The petitioners were tenants under him. After the death of her husband the property devolved on the respondent and her five daughters. They are governed by the provisions of the Travancore Christian Succession Act, hereinafter referred to as the Succession Act. Under S.16 of the Succession Act, the respondent is entitled to a share equal to that of a son and in the absence of a son, her share is equal to that of a daughter. This right however, is qualified by S.24. S.24 provides that the rights of a widow under S.16. will be only a life-interest terminable at death or re-marriage. The rest of the provision in S.24 need not be considered because it is irrelevant for the purpose of the case. 3. Before I go into the merits of the case I shall deal with the preliminary objection, the petitioners had raised at the very inception of the proceedings and repeated before me. The objection is this. The respondent is not the owner of the property. Her right under law is only a life interest. Though she has been receiving rent from the petitioners, she can be treated only as an agent of the real owners and if that be so, a petition under the Rent Control Act for eviction can be filed only with the written consent of the real owners (Vide S.11(16) of the Rent Control Act). Assuming she is a co-sharer along with the other sharers even then the petition for eviction without the junction of the other co-sharers is not maintainable. Under no circumstance can she contend for the position that she is the owner of the properties "as against the whole world". In short, according to the petitioners, she cannot be said to be a 'landlord' within the meaning of the Rent Control Act. 4. Under no circumstance can she contend for the position that she is the owner of the properties "as against the whole world". In short, according to the petitioners, she cannot be said to be a 'landlord' within the meaning of the Rent Control Act. 4. The learned counsel for the respondent however, submits that though under the Succession Act the respondent's right in the estate is only a life-interest terminable at her death or remarriage, for all practical purposes she must be treated as a sharer along with the other sharers mentioned in S.16 of the Succession Act. According to him, until the contingencies made mention of in S.24 happen, the respondent is a sharer as any other sharer is, within the meaning of S.16 and if that be so, could it be said that she is not competent to maintain this petition. Dilating this aspect, the learned counsel submits that the respondent is a co-sharer and as a co-sharer she has every right to apply for the eviction of the petitioners under S.11 of the Rent Control Act. He further submits that the respondent is the landlord who has been receiving the rent of the building on her own account and on behalf of the other sharers also. Without questioning the capacity of the respondent to receive the rent, the petitioners have been regularly paying the rent. That means they have acknowledged her as the landlord within the meaning of the Rent Control Act. The relationship of landlord and tenant thus has been established 5. That a co-owner landlord is the owner of the property and hence competent to maintain a petition for eviction is beyond challenge. The learned counsel for the petitioners does not dispute this proposition of law; but he submits that, though the respondent has been named a sharer under S.16 of the Succession Act, she cannot be treated as owner of the property because her right recognised under S.16 of the Succession Act is circumscribed by the provisions contained in S.24. She is only a life estate owner. That means, she is not a full owner. If she is not a full owner, she cannot be said to be owner of the properties as against the whole world and therefore she is not competent to maintain the petition under S.11 of the Rent Control Act. 6. She is only a life estate owner. That means, she is not a full owner. If she is not a full owner, she cannot be said to be owner of the properties as against the whole world and therefore she is not competent to maintain the petition under S.11 of the Rent Control Act. 6. In support of the above contention, the learned counsel for the petitioners relied on a decision on this court in Joseph v. Joseph Annamma, 1979 KLT. 322. That was a case where the right of a reversioner vis-a-vis the right of life estate owner was under consideration. The reversioner had filed a suit for injunction. While considering the scope of the suit for injunction the learned judge has stated thus: "The observation quoted above to the effect that the Christian widow is the absolute owner of her share and of the income accruing from her share during her life-time and till her remarriage and she can deal with it as she pleases till any of those contingencies happens dobs not mean that she can endanger the estate by committing waste or such other actions. Her rights cannot entitle her to cut down the trees and remove those trees which are yielding. Therefore, the plaintiff in this case will certainly be entitled to get an injunction to restrain the respondent-widow from committing any waste in the properties." 7. The learned judge has also held that if the life-estate owner does anything that is good for the estate, such actions cannot be restrained. While considering this question the learned judge has referred to an earlier decision of this Court in George v. Narayana Pillai, 1960 KLT. 463, where the learned judge perforce bad. to consider the scope of S.16 and 24 of the Succession Act. Construing these sections, the learned judge has held thus: "From the death of the intestate, the Christian widow becomes a tenant-in-common, along with others, and she becomes specifically entitled to the share specified in S.15.16 & 17. which means, also the income accruing in respect of her share. An allotment of her share cannot be done unless law recognises a full right in the Christian widow to be in absolute possession and enjoyment of such share at any rate till death or remarriage. which means, also the income accruing in respect of her share. An allotment of her share cannot be done unless law recognises a full right in the Christian widow to be in absolute possession and enjoyment of such share at any rate till death or remarriage. The fact that it is called a 'Life interest terminable at death or re-marriage' does not in any way, curtail the rights already given to her namely of her claiming her share and having a separate allotment of the properties and enjoying them. No doubt, her rights in the property will terminate at her death or re-marriage. There is no provision in the Act, which in any way, puts a restriction upon the manner of her enjoyment or dealing with the property allotted to her share, till her life-time or re-marriage In the absence of any such restriction, the only logical conclusion is that the Christian widow is the absolute owner of her share and of the income accruing from her share, during her life-time and till re-marriage and she can deal with it as she pleases till any of those contingencies happens. It is open to her to make transfers, assignments or alienations, but all the rights in the alienee transferee, based on those assignments made by a Christian widow will come to an end with her death or re-marriage" (emphasis supplied) The principle of law laid down by this Court in the above decision, which in no way is inconsistent with the decision in Joseph's case, clinches the issue, in that there is no scope for advancing the argument that a Christian widow is not a sharer along with other sharers in respect of the properties left behind by her deceased husband. The respondent therefore is a co-sharer. 8. The next question that would arise for consideration is whether the respondent is competent to maintain the petition for eviction without the junction of the other co-sharers. This question no more is res integra in view of the decisions of the Supreme Court in Sri Ram Pasricha v. Jagannath AIR. 1976 SC. 2335, S. M. G Chetty v. Ganeshan, AIR. 1975 SC. 1750, and Kanta Goel v. B. P. Pathak, AIR. 1977 SC. 1599. 9. This question no more is res integra in view of the decisions of the Supreme Court in Sri Ram Pasricha v. Jagannath AIR. 1976 SC. 2335, S. M. G Chetty v. Ganeshan, AIR. 1975 SC. 1750, and Kanta Goel v. B. P. Pathak, AIR. 1977 SC. 1599. 9. In Kanta Goel's case the Supreme Court has clarified the law pertaining to this question thus: "Nor do we set much store by the submission that the lst respondent is not a landlord, being only 3 co-heir and the will in his favour having been disputed. Equally without force in our view is the plea that one co-lessor cannot sue for eviction even if the other co-lessors have no objection. S.2(e) of the Act defines 'landlord' thus: '2(e) 'landlord' means a person who, for the time being is receiving, or is entitled to receive, the rent of any premises, whether on his own account or on account of or on behalf of, or for the benefit of, any other person or as a trustee, guardian or receiver for any other person or who would so receive the rent or be entitled to receive the rent, if the premises were let to a tenant ''Tenant', by definition (S.2(1)) means any person by whom or on whose account or behalf the rent of any premises is payable. Read in the context of the Rent Control law, the simple sense of the situation is that there should be a building which is let. There must be a landlord who collects rent and a tenant who pays it to the one whom he recognizes as landlord. The complications of estoppel or even the concepts of the Transfer of Property Act need not necessarily or inflexibly be imported into the proceedings under the rent control law. tried by special Tribunals under a special statute. In this case, rent was being paid to the late Dass who had let out to the appellant, on the death of the former, the rent was being paid to the lst respondent who signed the receipts in his name and added that it was on behalf of the estate of the deceased Dass. At a later stage the rent was being paid to and the receipts issued by the Ist respondent in his own name. At a later stage the rent was being paid to and the receipts issued by the Ist respondent in his own name. Not that the little change made in the later receipts makes much of a difference, but the fact remains that the tenant in this case had been paying the rent to the respondent. Therefore, the latter fell within the definition of 'landlord', for the purposes of the Art. We are not impressed with the investigation into the law of real property and estoppel between landlord and tenant, Shri. Nariman invited us to make. A fair understanding of the relationship between the parties leaves little room for doubt that the appellant was the tenant of the premises. The lst respondent, together with the other respondents, constituted the body or landlords and by consent, implicit or otherwise, of the plurality of landlords, ope of them representing them all, was collecting rent. In short, he functioned, for all practical purposes as the landlord, and was therefore entitled to institute proceedings qua landlord." The other decisions of the Supreme Court have also highlighted the above principle of law. 10. The learned counsel for the petitioners however relied on a decision of the Gujarat High Court in Nandlal v. G. J. Motorwala, AIR. 1973 Gujarat 131, and submitted that inasmuch as the respondent is only a life-estate owner vis-a-vis the co-sharers, she cannot be said to be a landlord competent to maintain the eviction action although she is a landlord within the meaning of S.2(2) of the Rent Control Act. In short, according to him, the extended meaning of the word "landlord" given in the definition cannot be projected into S.11 for the purpose of declaring that the petition at the instance of the respondent is competent. The respondent does not satisfy the requirements of law and therefore she is not competent to maintain the petition on behalf of the other co-sharers also, he submits. I do not think that I need further probe into this matter because the Supreme Court in Sri. Ram Pasricha's case after noting the above decision of the Gujarat High Court has held: "Jurisprudentially it is not correct to say that a co-owner of a property is not its owner. I do not think that I need further probe into this matter because the Supreme Court in Sri. Ram Pasricha's case after noting the above decision of the Gujarat High Court has held: "Jurisprudentially it is not correct to say that a co-owner of a property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part-owner or a fractional owner of the property. The position will change only when partition takes place. It is. therefore, not possible to accept the submission that the plaintiff who is admittedly the landlord and co-owner of the premises is not the owner of the premises within the meaning of S.13(1)(f). It is not necessary to establish that the plaintiff is the only owner of the property for the purpose of S.13(1)(f) as long as he is a co-owner of the property being at the same time the acknowledged landlord of the defendants." 11. S.13 made mention of in the above decision corresponds to S.11 of the Rent Control Act. I have already found that the respondent is a co-owner. If the respondent is a co-owner she is an owner as against the whole world and therefore the principle laid down in the decision of the Supreme Court in M. M. Quasim v. Manohar Lal, AIR. 1981 SC. 1113, will squarely support her case. 12. In the light of the discussion above, I have no hesitation to hold that the petitions for eviction are maintainable. 13. Now regarding the merits of the case; the Rent Control Court accepted the grounds falling under S.11(4)(iv; and ordered eviction. That means the Rent Control Court has found that the reconstruction pleaded is genuine and therefore the respondent is entitled to recover possession of the building. The Appellate Court while concurring with the finding regarding the need for reconstruction held that the respondent is not entitled to evict the petitioners because she is not competent to maintain the petitions. The revisional authority however, agreed with the Appellate Authority on the question of need for reconstruction. It did not stop there. It also held that the petitions are maintainable. Accordingly the petitions for eviction were allowed. 14. The revisional authority however, agreed with the Appellate Authority on the question of need for reconstruction. It did not stop there. It also held that the petitions are maintainable. Accordingly the petitions for eviction were allowed. 14. The learned counsel for the petitioners very vehemently argued that the court below was not justified in ordering eviction for reconstruction because the approved plan produced by the respondent would show that the building proposed to be constructed is not suitable to be occupied by the petitioners and hence it can be inferred that the respondent has no intention to put the petitioners in possession after reconstruction. According to the learned counsel, the plan which forms part of the record would show that the building proposed to be constructed is not a shop building. In the circumstances of the case, I am of opinion, that the apprehension entertained by the petitioners that they will be denied the benefit of the third proviso to S.11(4)(iv) is misplaced because the order for eviction admittedly is one passed under S.11(4)(iv) of the Act. Whatever that be, the above contention is liable to be rejected for the simple reason that such a contention never had been raised while the matter was pending before the fact finding authority. Such a contention therefore shall not be permitted to be raised for the lst time in a second revision filed under S.115 CPC. 15. The learned counsel for the petitioners submit that the landlord of the adjacent building also had filed a petition under S.11(4)(iv) for eviction of his tenant. The said petition has been rejected. The documents pertaining to the said proceedings however, do not form part of the records of this case. The said documents, the counsel for the respondent submits, were produced for the first time before this Court. The respondent has filed a counter-affidavit opposing the said petition. 16. In the circumstances of the case, I am of the view that the petitioners are not entitled to rely on the documents produced before this court for the first time, in support of their case. 17. For the reasons stated above, I am of the opinion that there is no error of jurisdiction warranting interference with the order under attack. The Civil Revision Petitions fail and the same are dismissed but in the circumstances, I make no order as to costs.