Padmavathy v. N. Narayanan — 1997 DIGILAW 1260 (MAD)

Judgment :- 1. The landlords who failed before the learned Appellate Authority have filed the above Revision. 2. The petitioners filed R.C.O.P. No. 3981 of 1983, on the file of the learned X Judge, Court of Small Causes, Madras under Sections 10(2)(i) and 10(2)(ii)(a) of the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960 as amended by Act 23 of 1973. The respondent became a tenant on 26.3.1975 on a monthly rent of Rs. 65/- and paid a rental advance of Rs. 1,500/-. In January 1978 the rent was increased to Rs. 200/- per month and he paid a sum of Rs. 9,000/- as advance which has to be adjusted for the period from January 1978 to September 1981, and after such adjustment, according to the petitioners, the tenant did not pay the rent for the period from October 1981 to July 1983. A notice was caused to be sent through one Mohammed Ishaq, Advocate. The tenant sent a reply to the said notice stating that the demised property was sold to the respondents wife on 7.1.1978. It is the further case of the landlords that the tenant has sublet the premises to one Venu who was doing business on the date of the petition in the premises and the tenant/respondent is collecting the rent from him. On those two grounds the petitioners filed the eviction petition. 3. The tenant contested the petition by filing a counter stating that the tenancy relied on by the landlords came to an end on 7.1.1978 when the petitioners and their son executed a deed of sale in favour of the respondents wife in respect of the superstructure occupied by the tenant/respondent and possession was delivered to the wife of the respondent. According to the tenant a valuable consideration of Rs. 9,000/- was paid. On the basis of the abovesaid averments the tenant denied the grounds of wilful default and subletting. Thus the respondent prayed for dismissal of the petition. 4. The Rent Controller after appreciating the oral and documentary evidence allowed that petition. Aggrieved against the same the tenant filed R.C.A. No. 486 of 1987. The Appellate Authority/VII Judge, Court of Small Causes on the basis of the contents of Ex. P-10, though those contents were not marked as exhibit, allowed the Appeal and set aside the order of eviction. The Rent Controller after appreciating the oral and documentary evidence allowed that petition. Aggrieved against the same the tenant filed R.C.A. No. 486 of 1987. The Appellate Authority/VII Judge, Court of Small Causes on the basis of the contents of Ex. P-10, though those contents were not marked as exhibit, allowed the Appeal and set aside the order of eviction. Aggrieved against the same the landlords have filed the above Revision. 5. It is the case of the landlords that in January 1978 the rent was increased to Rs. 200/-and the tenant paid an advance of Rs. 9.000/-with an understanding that the same should be adjusted till the end of November, 1981. Thereafter the tenant has not paid the rent. Under Ex. P.1 the petitioners caused notice through their Advocate stating that the respondent took the signature of one S. Krishnan, the second petitioner, on a blank paper with Padmavathy, the first petitioner, also signing as witness. In the said notice the respondent was called upon to return the paper and terminated the tenancy in respect of the hotel portion for the period ending upto 30th September 1981 and deliver vacant possession of the same. After receipt of the reply from the respondent, under Ex. P-3 the petitioners sent a rejoinder. In the said rejoinder it is stated that from the month of January 1978 the rent was at the rate of Rs. 200/- with an advance of Rs. 1,500/- in the year 1975 and subsequently a sum of Rs. 9,000/- was paid and it has to be adjusted till September 1981. Thereafter the respondent is liable to pay the rent at the rate of Rs. 200/- per month. After exchange of notices the petitioners filed the petition stating that the respondent has been adjusting the monthly rent of Rs. 200/- from the said amount of Rs. 9,000/- for 45 months from January 1978 to September 1981 and thereafter the respondent has not paid the rent inspite of notices. 6. The learned counsel appearing for the respondent/tenant on the basis of the counter filed in the eviction petition has submitted that in view of the sale deed executed by the second petitioner which has been attested by the first petitioner, the question of paying the rent as alleged by the petitioners will not arise. 6. The learned counsel appearing for the respondent/tenant on the basis of the counter filed in the eviction petition has submitted that in view of the sale deed executed by the second petitioner which has been attested by the first petitioner, the question of paying the rent as alleged by the petitioners will not arise. The respondent has become the owner of the superstructure on and from 7.1.1978 and the said document has been marked as Ex. P-10. The learned counsel, relying on the same has submitted that the said amount of Rs. 9,000/-was paid by way of consideration and so the cast of the petitioners cannot be sustained- 7. In aid of his contention that the superstructure has been sold to the wife of the respondent for a sum of Rs. 9,000/- he relied on Ex. P-10. The lower authority in this order has specifically mentioned that the said document was marked only with respect to the signature of the petitioners and not with respect to the contents of the said document and so the contents of the said document cannot be relied on to appreciate the case. The Appellate Authority has committed an error in deciding the case relying on the contents of the said document though the entire document was not marked but only signature of the first petitioner was marked as Ex. P- 10. 8. The learned counsel appearing for the respondent has submitted that the notice Ex. P-1 was issued only after three years and that itself will prove the case of the respondent. According to him, if really there is a default in payment of rent, the petitioners would not have kept quiet for three years and taking advantage of the fact that the price of the said property has been increased, the petitioners have come forward with the petition. Merely because the landlords have issued a notice only, in 1983, it cannot be said that the respondents wife had acquired title to the said property as alleged by him, and since the respondent had set up a title to the said property in favour of his wife, he has to prove the same. No document worthy is available before the authorities below to establish that the property in question was purchased by the respondents wife. No document worthy is available before the authorities below to establish that the property in question was purchased by the respondents wife. Moreover, it is admitted before this Court that the wife of the respondent filed O.S. No. 4845 of 1986 for specific performance of the agreement dated 7.1.1978. The stand taken by the wife of the respondent in the suit is that the alleged document dated 7.1.1978 is only an agreement and not sale deed as alleged by the respondent. Since the alleged purchaser herself has treated the said document as an agreement, the Appellate Authority is not correct in treating the same as a sale deed. 9. The learned counsel appearing for the respondent has relied on the decision in John V. John v. Goolamally Estates, A Partners IP firm, rep. by Partner Abbasbhai Akserally Vedenagarvalla, having its Office at No. 20 Errabalu Chetty Street, Madras-1 (1989 T.L.N.J. 311), wherein, S. Mohan, J. as he then was, has held that the agreement of sale puts an end to the jural relationship of the landlord and tenant. 10. The learned counsel has further relied on the decision in Annamalai v. Venkatasami (AIR 1959 Madras) wherein the learned Judge has held as follows:— “But, after the date of the contract and after it was performed in part by consideration being paid for the contract and the landlord allowing the tenant to remain in possession by reason of the new status created under the contract, it was no longer open to the landlord to contend that the right of possession claimed by the petitioner was referable to the contract of lease”. On the basis of the above, the learned counsel appearing for the respondent has submitted that the petition at the instance of the petitioners for eviction cannot be maintained. 11. Per contra , the learned senior counsel appearing for the petitioners sought to rely on the decision in Jessie Thavamani v. Liakath Basha (1996 T.L.N.J. 55) wherein, AR. Lakshmanan, J., after referring the said Judgment of Mohan, J. (as he then was), held as follows:— “However, the judgment cited by Mr. Chidlambara Subramaniam, learned counsel for the tenant, a decision of Mohan, J (O.C.J. as he then was in John V. John v. Goolamally Estates, a Partnership firm. Represented by Partner Abbasbhai Akberally Vedenagarvalli 1989 T.L.N.J. 311) is in support of his contention. Chidlambara Subramaniam, learned counsel for the tenant, a decision of Mohan, J (O.C.J. as he then was in John V. John v. Goolamally Estates, a Partnership firm. Represented by Partner Abbasbhai Akberally Vedenagarvalli 1989 T.L.N.J. 311) is in support of his contention. Learned Judge held that having regard to the admitted agreement between the landlord and the tenant, their status as such landlord-tenant had been altered to that of a vendor and the Purchaser and consequently, Sec-53-A of the Transfer of Property Act would apply and the question of payment of rent would not arise, much less, wilful default in the payment of rent. In fact, the counsel appearing for the landlord in that case cited the judgment of Ramanujam, J., in 1981(1) M.LJ 35 ) for relying on the ratio that in the agreement for sale there is nothing to absolve the revision petitioner/tenant from payment of rent and therefore, only in such an event, the liability would cease and not by merely entering into an agreement and in such a case, Sec. 53-A of the Transfer of Property Act would not apply. Learned Judge rejected the contention of the counsel for the landlord therein. According to the learned Judge, he was totally unable to appreciate the findings, since the agreement puts an end to the jural relationship of tenant and landlord and it also clearly establishes the relationship of purchaser and vendor and under such circumstances, the question of payment of rent does not arise. With great respect, I am unable to share the views of Mohan, J., and prefer to follow the view expressed by Ramanujam, J., in Duraisami Nadar v. Nagammal. In the instant case, as already seen, there is no evidence to show that the parties agreed that the relationship of landlord and tenant should cease and the tenants possession should be traced only to the agreement of sale. The view taken by Mohan, J. that the status of the landlord and tenant had been altered to that of a vendor and the purchaser on entering into an agreement and that therefore, the question of payment of rent would not arise, much less, wilful default in the payment of rent, is in my respectful opinion, an extreme view. If there is any waiver of the rent pursuant to the agreement of purchase, it should be specifically and expressly stated in the agreement itself. If there is any waiver of the rent pursuant to the agreement of purchase, it should be specifically and expressly stated in the agreement itself. By merely entering into an agreement of sale, the tenant does not acquire any right in the property. As already seen, it is a composite agreement and the landlord has agreed to sell the property to three persons and since the parties therein were not ready and willing to perform their part of the contract, the vendor sold the property to the present respondent/landlord. As rightly stated in this case, the agreement of sale has not been filed before the Rent Controller and none of the parties has spoken to about the agreement containing a term putting an end to the relationship of landlord and tenant and the tenant continued in possession pursuant to the agreement of sale. Even assuming that the petitioner is entitled to the benefits of Sec. 53-A, the liability to pay the rent does not cease unless the agreement of sale puts an end to that liability in specific and express terms”. The abovesaid judgment will squarely apply to the facts of the present case. Even assuming that the document mentioned as Ex. P-10. is an agreement as contended by the respondent, in view of the judgment cited above,, the liability of the tenant to pay the rent does not cease. Further, in this case, even according to the respondent, the respondent is the tenant and the alleged agreement is only in favour of his wife and so he cannot claim the benefits under Section 53-A of the Transfer of Property Act. 12. In the circumstances, I am of the view that none of the reasons given by the Appellate Authority to set aside the order of the Rent Controller can be sustained in law, and the same is set aside. Accordingly, the Revision is allowed. No costs.