Rajam Ammal v. P. K. Pillai and Others — 1991 DIGILAW 151 (MAD)

Judgment :- The petitioner in R.C.O.P. No. 99 of 1980 on the file of the Rent Controller (District Munsif, Kumbakonam, is the petitioner in this civil revision petition. The respondents 1 to 4 in the said R.C.O.P. are the respondents in this civil revision petition. For the sake of convenience the parties are referred to in this order as per the nomenclature given to them in the R.C.O.P. 2. The petitioner filed R.C.O.P. No. 99 of 1980 against the respondents for eviction under Ss.10(2)(1) and 10(2)(ii)(a) and (b) of the Tamil Nadu Buildings (Lease and Rent Control), Act, XVIII of 1960, hereinafter called the Act. The case of the petitioner is as follows : The petitioner is the owner of the petition mentioned premises and the same has been let out to the first respondent under a registered lease agreement dated 3-5-1979 on a monthly rent of Rs. 800/-. The first respondent had paid Rs. 2, 000/- as advance. The first respondent committed wilful default in the payment of rent for 12 months from October, 1979. The first respondent had also sublet the petition mentioned premises to the respondents 2 to 4 without the written consent of the petitioner. The non-residential premises has been sublet to the third respondent for residential purpose and, therefore, the respondents are liable to be evicted from the petition mentioned premises. 3. The second respondent as a power attorney agent of the first respondent, who is residing in Seychelles in South Africa, filed a counter contending as follows : The first respondent is the husband of the petitioner. From out of the earnings of the first respondent he had purchased the petition mentioned property benami in the name of the petitioner. When the first respondent came to India he found that the conduct of the petitioner was questionable. Therefore, at the instance of the first respondent the petitioner executed a registered settlement deed in favour of her daughters in respect of the petition mentioned property. Since the petitioner wanted maintenance for her livelihood an arrangement in the guise of a lease was suggested and in those circumstances, the lease agreement dated 3-5-1979 came into existence. There is no relationship of landlady and tenant between the petitioner and the first respondent. There is no subletting as alleged in the petition for eviction. 4. Since the petitioner wanted maintenance for her livelihood an arrangement in the guise of a lease was suggested and in those circumstances, the lease agreement dated 3-5-1979 came into existence. There is no relationship of landlady and tenant between the petitioner and the first respondent. There is no subletting as alleged in the petition for eviction. 4. The petitioner filed a reply statement contending that the tenant had denied her title to the petition mentioned property and such a denial is not bona fide and, therefore, the first respondent is liable to be evicted from the petition mentioned premises under Section 10(2)(vii) of the Act. 5. The Rent Controller, on a consideration of the materials on record, found that there is no relationship of landlady and tenant between the petitioner and the first respondent and consequently dismissed the petition for eviction. As against the order of the Rent Controller the petitioner filed an appeal, R.C.A. No. 4 of 1982 before the Appellate Authority (Sub-Court), Kumbakonam. The Appellate Authority confirmed the findings of the Rent Controller that there is no relationship of landlady and tenant between the petitioner and the first respondent. The Appellate Authority also found that the denial of the petitioner's title to the petition mentioned property by the first respondent is bona fide and dismissed the Rent Control Appeal. Aggrieved by the judgment of the Appellate Authority the petitioner has filed the present civil revision petition. 6. The following three points arise for consideration in this civil revision petition :- 1) Whether the landlady and tenant relationship exists between the petitioner and the first respondent? 2) Whether the first respondent committed wilful default in the payment of rent to the petitioner? 3) Whether the denial of the petitioner's title to the petition mentioned property by the first respondent is bona fide? 7. Admittedly the petitioner is the wife of the first respondent and they are living separately. The first respondent is living in Mahe, Saychelles in South Africa and the petitioner is living in Silampakkam, Mayiladuthurai Taluk. The case of the petitioner is that the petition mentioned property has been let out to the first respondent under Ex. A. 1 on a monthly rent of Rs. 800/- and that the first respondent paid the rent up to October, 1979 and thereafter committed wilful default in the payment of rent. The case of the petitioner is that the petition mentioned property has been let out to the first respondent under Ex. A. 1 on a monthly rent of Rs. 800/- and that the first respondent paid the rent up to October, 1979 and thereafter committed wilful default in the payment of rent. The case of the respondents 1 and 2 is that the petition mentioned property was purchased under Ex. A.16 by the first respondent benami in the name of his wife the petitioner herein and Ex. A. 1 is not a lease agreement, but, it was executed by the first respondent in favour of the petitioner for making some provision for her maintenance and, therefore, the first respondent is not a tenant under the petitioner and there is no relationship of landlady and tenant between the petitioner and the first respondent. In these circumstances, the main question that we have to examine is, whether the petitioner is a landlady within the meaning of Sec. 2(6) of the Act and whether there is the relationship of landlady and tenant between the petitioner and the first respondent. Ex. A.16 is the sale deed dated 2-12-1972 under which the petitioner purchased the petition mentioned property from one Sankaranarayana Pillai and others for a sum of Rs. 45, 000 /-. The petitioner as P.W. 1 has stated in her evidence that she paid the consideration for the sale under Ex. A.16. She purchased the stamp papers for the sale deed in her name and she also paid the registration fees at the time of registration of the document. Exs. A.2 to A.5 are the certified extracts from the house-tax demand register showing that subsequent to Ex.A.16 sale the petition mentioned property stands registered in the name of the petitioner in the house-tax demand register maintained by the Municipality. Ex. A. 11 is the settlement deed executed by the petitioner in favour of her minor daughters. It is specifically stated in Ex. A. 11 that the petition mentioned property absolutely belongs to the petitioner, she having purchased the same under Ex. A.16. As per the terms of Ex. A.11, the petitioner is entitled to live in the petition mentioned property till her lifetime and only after her lifetime the petitioner's daughters will get absolute right in the petition mentioned property. Ex. A. 11 that the petition mentioned property absolutely belongs to the petitioner, she having purchased the same under Ex. A.16. As per the terms of Ex. A.11, the petitioner is entitled to live in the petition mentioned property till her lifetime and only after her lifetime the petitioner's daughters will get absolute right in the petition mentioned property. Ex. A.1 is the lease deed executed by the first respondent in favour of the petitioner in respect of the petition mentioned property. Ex. A.1 lease agreement specifically says that the first respondent has no other interest in the petition mentioned property except his interest as a tenant. In Ex. A. 1 it is further stated that the petition mentioned property absolutely belongs to the petitioner and it is in her possession and enjoyment. Exs. A. 1 and A. 11 were presented for registration. On the same day Ex. A. 11 was registered as document No. 822 and Ex. A.1 was registered as No. 823. The first respondent as R.W. 1 has stated in his evidence that he has signed the lease agreement without reading the document Ex.A.1. The petitioner's father was examined on the side of the respondents as R.W. 2 and he has admitted in his evidence that both the documents Exs. A.1 and A. 16 are genunine documents. Exs. A.2 to A.5, and A. 11 and the evidence of R.Ws. 1 and 2 clearly go to show that the sale under Ex. A.16 has been acted upon and the petitioner has dealt with the petition mentioned property subsequent to the sale in her favour under Ex. A.16. The above documents also go to show that the transaction under Ex. A.16 is not benami transaction and the first respondent is not the real owner of the petition mentioned property. A perusal of Ex. A. 1 and the evidence of R.Ws. 1 and 2 shows that Ex. A. 1 was really a lease agreement between the petitioner and the first respondent and that Ex. A.1 was not executed by the first respondent for the purpose of making some provision for maintenance to the petitioner as contended by the first respondent. As per Ex. A. 11, the petitioner is entitled to enjoy the income and rents accruing from the petition mentioned property and on a combined reading of Exs. A.1 was not executed by the first respondent for the purpose of making some provision for maintenance to the petitioner as contended by the first respondent. As per Ex. A. 11, the petitioner is entitled to enjoy the income and rents accruing from the petition mentioned property and on a combined reading of Exs. A. 1 and A. 11 it can be safely concluded that the petitioner is a landlady within the meaning of S.2(6) of the Act. 8. It is also relevant to refer the relevant clause of S.3 of the Benami Transactions (Prohibition) Act, 45 of 1988 which runs as follows : "1) No person shall enter into any benami transaction. 2) Nothing in sub-section (1) shall apply to the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved that the said property had been purchased for the benefit of the wife or the unmarried daughter." * Section 3(1) of the abovesaid Act says that no person shall enter into any benami transaction. Section 3(2) says that nothing in sub-section (1) shall apply to the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed unless the contrary is proved that the said property had been purchased for the benefit of the wife or unmarried daughter. A perusal of S.3(2) of the Benami Transactions (Prohibition) Act shows that when a property is purchased by a person in the name of his wife, there is a rebuttable presumption that the property had been purchased for the benefit of the wife. In Mithilesh Kumari v. Prem Behari Khare, 1989 (177) ITR 97, 1989 AIR(SC) 1247, 1989 (2) CCC 33, 1989 (40) ELT 257 , 1989 (1) JT 275 , 1989 (1) Scale 358 , 1989 (2) SCC 95 , 1989 (1) SCR 621 , 1989 (1) UJ 530 , 1989 (76) CTR 27, 1989 MahLJ 210, 1989 (1) KLJ 424, 1989 MhLJ 210 , 1989 (44) Taxman 45, 1997 ACJ 981 , 1989 (76) CTR(SC) 27, the Supreme Court has held that the Benami Transactions (Prohibition) Act is applicable to pending suit also. The Supreme Court in the above mentioned decision has observed as follows (Para 24) : "Lacheshwar v. Keshwarlal, 1974 AIR(SC) 2068, 1974 (2) SCC 363 , 1975 (1) SCR 605 , 1941 AIR(FC) 5 is an authority for holding that the hearing of appeal under the procedural law of India is in the nature of rehearing and therefore in moulding the relief to be granted in a case on appeal, the Appellate Court is entitled to take into account even facts and events which have come into existence after the decree appealed against. Consequently, the Appellate Court is competent to take into account legislative changes since the decision under appeal was given and its powers are not confined only to see whether the lower Court's decision was correct according to the law as it stood at the time when its decision was given. Once the decree of the High Court has been appealed against, the matter became sub judice again and thereafter this Court has seisin of the whole case, though for certain purposes, e.g., execution, the decree was regarded as final and the Courts below retained jurisdiction in that regard." In view of the position of law as stated by the Supreme Court as above, we can take note of S.3(2) of the Benami Transactions (Prohibition) Act, which came into force subsequent to the judgment rendered by the Appellate Authority. In view of S.3(2) of the said Act a presumption is raised that the petition mentioned property is purchased for the benefit of the petitioner even assuming that the 1st respondent provided the funds for the purchase of the property under Ex. A.16. The first respondent has not let in any satisfactory evidence to rebut the presumption that the petition mentioned property was purchased for the benefit of the petitioner. In these circumstances, it has to be held that the transaction under Ex. A.16 is not a benami transaction and that the first respondent is not the real owner of the petition mentioned property as contended by him. The evidence in this case discloses that Ex. A.1 was a genuine lease agreement entered into between the petitioner and the first respondent. The first respondent by acceptable evidence has not substantiated his case that Ex. A.1 was not really a lease agreement but it was executed in lieu of an agreement for providing maintenance for the petitioner. The evidence in this case discloses that Ex. A.1 was a genuine lease agreement entered into between the petitioner and the first respondent. The first respondent by acceptable evidence has not substantiated his case that Ex. A.1 was not really a lease agreement but it was executed in lieu of an agreement for providing maintenance for the petitioner. In these circumstances, it, has to be held that the relationship of landlady and tenant exists between the petitioner and the first respondent. Admittedly the first respondent has paid the rent for the petition mentioned property for the period from June 1979 to October, 1979 pursuant to the lease agreement, Ex. A. 1 and thereafter committed default in the payment of rent to the petitioner. There is no satisfactory explanation on the part of the first respondent for not paying the rent to the petitioner after October, 1979. Therefore, it follows that the first respondent committed wilful default in the payment of rent for the petition mentioned property from October, 1979 and the respondents are liable to be evicted from the petition mentioned property on that ground. 9. Further, a perusal of the counter filed by the respondents 1 and 2 in the R.C.O.P. shows that the respondents 1 and 2 have denied the title of the petitioner to the petition mentioned property. As already pointed out, there is sufficient evidence in the form of Ex. E. 11 and Ex. A.12 in this case to show that the petitioner has got valid right to collect the rent for the petition mentioned property and that the lease agreement Ex. A. 1 is a valid and genuine document. In these circumstances, on the basis of the evidence available on record, it can be safely concluded that the denial of the petitioner's title to the petition mentioned property by the respondents is not bona fide and, therefore, the respondents are liable to be evicted from the petition mentioned property under S.19(2)(vii) of the Act also. 10. Both the Rent Controller as well as the Appellate Authority have not approached the issue involved in this case in the proper perspective. The infirmity in the Orders of the Rent Controller as well as the Appellate Authority is that both the Authorities below failed to draw proper inferences from the evidence available on record. 10. Both the Rent Controller as well as the Appellate Authority have not approached the issue involved in this case in the proper perspective. The infirmity in the Orders of the Rent Controller as well as the Appellate Authority is that both the Authorities below failed to draw proper inferences from the evidence available on record. The Appellate Authority is not justified in coming to the conclusion that the denial of the petitioner's title by the first respondent is bona fide merely relying upon Exs. B.8 to B.13, income-tax returns submitted by the first respondent which are not binding on the petitioner. The above discussion of mine obliges me to interfere with the orders of the Authorities below in this civil revision petition. Accordingly, the civil revision petition is allowed, the orders of the Rent Controller as well as the Appellate Authority are set aside and the petition for eviction R.C.O.P. No. 99 of 1989 on the file of the Rent Controller, Kumbakonam is allowed. No costs. The order in this civil revision petition will not affect the rights of the parties to file regular suit to establish their right if such a right or remedy is available to them in law. Petition allowed.