Research › Search › Judgment

Madras High Court · body

2007 DIGILAW 156 (MAD)

V. Kannadasan & Others v. A. Malik & Others

2007-01-11

R.BANUMATHI

body2007
Judgment :- These revisions are preferred against the Order of the Rent Control Appellate Authority/Principal Sub Court, Mayiladuthurai, made in RCA Nos.13/91, 12/91, 1/92, 11/91 dated 18.06.1999, ordering eviction on the ground of willful default. 2. All the revisions arise out of a common Order. Since common points for determination are involved, all four Revision Petitions were heard together and disposed of by this common Order. 3. The Rent Control proceedings had been lingering on file for nearly two decades. Factual background are as follows:- A row of shops originally fell to the share of one Namachivayam. Namachivayam had two sons – Chidambaram and Ponnambalam. Petitioners have become Tenants under the said Ponnambalam in a row of shops bearing D.No.13, 13A, 13B and 13D on a monthly rent of Rs.40/-. The Respondent/Landlady purchased the demised premises from the said Ponnambalam and Natarajan by the Sale Deed dated 24.04.1985. The landlady sought for eviction on two grounds viz., Wilful Default [Section 2(i)] and Demolition and Reconstruction [Section 14(1)(b)] of Tamil Nadu Buildings [Lease and Rent Control] Act, 1960. It was alleged that the Tenants had committed default in payment of rent for the period from April 1985 to June 1985 and also during the pendency of RCOP proceedings. Respondent/landlady also sought for eviction on the ground of demolition and reconstruction as the building is aged. 3. 1. The Tenants contested the eviction Petition on the ground that the suit property was a Religious Trust property and hence, eviction Petition filed under Rent Control Act is not maintainable. According to the Tenants, they have sent rent for the months of May and June, 1985, by Money Order to Ponnambalam and the same was refused and there is no default. 3. 2. The Rent Controller held that there is no dedication of the property to Trust and held that the eviction Petition filed under Tamil Nadu Buildings [Lease and Rent Control] Act, 1960 [for short, the Act], is maintainable. However, the learned Rent Controller found that the Tenants tendered rent to Ponnambalam and that there is no willful default. The requirement for demolition and reconstruction was also not accepted by the Rent Controller and the eviction Petitions were dismissed. 3. 3. The Landlady preferred appeal before the Rent Control Appellate Authority in R.C.A.Nos.11 to 13/1991 and R.C.A. No.1/1992. However, the learned Rent Controller found that the Tenants tendered rent to Ponnambalam and that there is no willful default. The requirement for demolition and reconstruction was also not accepted by the Rent Controller and the eviction Petitions were dismissed. 3. 3. The Landlady preferred appeal before the Rent Control Appellate Authority in R.C.A.Nos.11 to 13/1991 and R.C.A. No.1/1992. The Rent Control Appellate Authority declined to consider the question whether the demised building was a Trust Property or not. The Rent Controller already decided that issue in an Interlocutory Application which was not challenged by the Tenants. Holding that the finding that the demised property is not a Trust Property had become final, the Appellate Authority refused to consider that question. The Appellate Authority confirmed the finding regarding demolition and reconstruction. But reversed the finding with regard to willful default and ordered eviction on the ground of willful default. 4. Challenging the Order of Appellate Authority, Tenants preferred revisions before the High Court in C.R.P. Nos.1102/1995, 1215 to 1217/1995. The High Court has remanded the matter to the Appellate Authority with a direction to consider the question whether the demised premises belonged to Religious Trust, as claimed by the Tenants. 4. After remand, the Appellate Authority considered the question and confirmed the finding of the Rent Controller that the demised premises is not dedicated to trust and the property is not a religious Trust Property. Reiterating the findings on the ground of willful default, the Appellate Authority ordered eviction, which is now challenged in these Revision Petitions. Whether the Demised Premises is a Public Trust? 4. The learned Counsel for the Tenants made elaborate submissions contending that on A Schedule Property which fell to the share of Namachivayam, and a Trust has been created and the properties are dedicated for religious and charitable purpose and hence, in view of G.O.Ms.No.2000 dated 16.08.1976, eviction Petition filed under the Rent Control Act is not maintainable. It was further submitted that when the demised property is a Trust Property, Rent Controller has no jurisdiction. 5. Drawing the attention of the Court to the recitals in Ex.R-1 – Partition Deed, the learned Counsel for the Respondent/landlady has submitted that there is no dedication of the demised premises. It was further submitted that when the demised property is a Trust Property, Rent Controller has no jurisdiction. 5. Drawing the attention of the Court to the recitals in Ex.R-1 – Partition Deed, the learned Counsel for the Respondent/landlady has submitted that there is no dedication of the demised premises. Placing reliance upon 1999 (1) LW 415 , it was submitted that only income from the property was intended for the purpose of certain charities, which does not render the property as a Trust Property and that the grant is personal to the grantee and their family. 6. By G.O.Ms.No.2000 dated 16.08.1976, Government have exempted all the buildings owned by Hindu, Christian and Muslim Religious Public Trust and Public Charitable Trust from all the provisions of the Act. 7. To ascertain whether the Trust is created to look into the intention and purpose of settlor, recitals in Ex.R-1 is to be considered whether there was a dedication absolutely or personally. In 1978 (1) MLJ 492 [Dharma Raja Vs. Rama Ammal], a document came up for consideration and interpretation, whether a trust was created. In the said decision, a Division Bench of this Court held: - "The mere execution of a deed of gift or instrument is not enough to constitute a valid endowment. It is necessary that the executant should divest himself of the properties; there must be a transfer of the apparent evidences of ownership from the donor to the donee and in cases where there is no real dedication of properties but only a creation of perpetuity in favour of ones own descendant the alleged gift in favour of the idol or religious or charitable institution becomes void". 8. It is to be considered whether public religious trust or different charitable trust was created over 3rd and 4th item of shops of A Schedule Property in Ex.R-1 – Partition Deed. By a careful reading of recitals in Ex.R-1, it is seen that after the death of Namachivayam, row of Shops Nos. 3 and 4 are to belong to Chidambaram and Ponnambalam and they shall be entitled to the row of shops. After meeting the expenses from the income, they are to perform certain Kattalai stated in Ex.R-1. 9. To appreciate the intention of the parties in Ex.R-1, we may usefully refer to the recitals in the document itself, which is as under:- 10. After meeting the expenses from the income, they are to perform certain Kattalai stated in Ex.R-1. 9. To appreciate the intention of the parties in Ex.R-1, we may usefully refer to the recitals in the document itself, which is as under:- 10. A reading of the above recitals would clearly show that charity is to be performed from out of the income of the properties. The terms would further show that performance of Abishekam are personal to the Grantee and the family. 11. A Schedule Property was given to Namachivayam and after his death, row of shops in first item and the building in second item is to vest with Chidambaram and his legal heirs row of shops in 3rd item and the house in 4th item is to vest with Ponnambalam and his legal heirs. Vesting of property with the sons of Namachivayam clearly shows that there was no dedication of property to the charity. .12. That the grant is personal is also clear from another aspect. If any of the sharers fail to perform the charity/Kattalai another family member can perform the same and can recover the expense from the defaulter’s share. Absolutely no charge has been created for the performance of Kattalai. No fixed grant has also been specified for the purpose of Kattalai. A reading of the document makes it clear that charity has to be performed only from out of the income and there is no dedication. .13. In a similar case where there was absence of intention of dedication, in 1999 (1) LW 415 [Angamjuthu Vs. K.Pugazhendi and others], Justice S.S.Subramani has held as follows: - ."From a reading of the document it is seen that the testator wanted to perform a few charities. It is both public and private in nature. Likewise, the testator has further said that after the death of Govindammal, the parties 1 and 2 either jointly or if not possible, take possession of the properties on alternative years and out of the income perform the charities. He also says that the property cannot be alienated or encumbered. However, the properties shall not vest with the Government or with the Endowment Board. He also says that if there are no male issues for any one of the parties among 1 and 2, then the party who has a male issue has to perform the charity. He also says that the property cannot be alienated or encumbered. However, the properties shall not vest with the Government or with the Endowment Board. He also says that if there are no male issues for any one of the parties among 1 and 2, then the party who has a male issue has to perform the charity. A reading of the document makes it clear that the charity has to be performed out of the income. There is no statement anywhere in the document that he has dedicated the property to charity. Title always vested with the testator and he has provided a line of succession as to who shall hold it and regarding the transfer of ownership, to the Trust, there is no statement anywhere in the document." [underlining added]. .14. Referring to AIR 1959 SC 797 [Dasaratha Rama Reddi Vs. Subba Rao] in the aforesaid decision, it was further held::- ."In this case, even though various charities are mentioned to be performed, how much amount has to be spent for those charities is not specified. Naturally that depends upon the discretion of the person in possession of the properties from time to time. There is no statement as to what has to be done with the surplus income. One thing is clear. All the amounts will have to be spent out of the income and that the charities could be performed from the income which may be derived from the properties. If for any reason, any of the parties is incapacitated in performing the charities, there is no statement in Ex.A-1 regarding the consequence". 15. The above observations clearly apply to the case on hand. Placing reliance upon the said decision, the Appellate Authority has rightly held that there is no dedication of property for charity nor the property is a public charitable trust. The contention raised challenging the jurisdiction of the Rent Controller has no force. WILFUL DEFAULT:- 16. The Respondent/Landlady has purchased the property on 24.04.1985 from Ponnambalam and Natarajan. Default period is April, May and June 1985. In all cases, according to the Tenants, they tendered rent for May, 1985 by Money Order and Ponnambalam refused to receive the same. Again rent for the months of May and June, 1985 were sent to Ponnambalam by Money Order and the same was refused. Default period is April, May and June 1985. In all cases, according to the Tenants, they tendered rent for May, 1985 by Money Order and Ponnambalam refused to receive the same. Again rent for the months of May and June, 1985 were sent to Ponnambalam by Money Order and the same was refused. Eviction Petition was filed on 06.08.1985 for the default period April, May and June 1985. Since the Defendants were not informed of the sale to the Respondent/Landlady and pointing out that money orders had been sent to the erstwhile landlord, Rent Controller has held that there was no wilful default. 17. In the Order dated 31.01.1995, the Appellate Authority also found that for April, May and June, 1985, there was no default. However in the common Order dated 18.06.1999, the Appellate Authority has observed that if Ponnambalam had refused to receive the Money Order, the Tenants ought to have enquired as to who is the owner and ought to have taken steps for depositing the rent in the Court. In the Order dated 18.06.1999, the Appellate Authority has held that there was default even prior to the filing of the Petition. Regarding the period May, June 1985, though the authorities below held that there was no willful default, it is to be pointed out that the Tenants have not taken steps for depositing the rent in the Court, by adopting the procedure under Section 8(5) of the Act. 18. Eviction was ordered mainly on the ground that the Tenants are not regular in payment of rent during the pendency of the proceedings. Subsequent to the filing of the eviction Petition, Tenants must have come to know that the property had been sold to the Respondent/Landlady. During the pendency of the Eviction Petition, the Tenants ought to have been regular in payment of rent. But the Tenants have gone to the extent of challenging the Sale Deed in favour of the Respondent/landlady, contending that the Sale Deed in favour of the landlady is not a valid sale and that the property is inalienable Ponnambalam had no right to convey. The Appellate Authority has rightly taken note of this stand of the Petitioners/Tenants in challenging the Sale Deed of the landlady. 19. The Appellate Authority has rightly taken note of this stand of the Petitioners/Tenants in challenging the Sale Deed of the landlady. 19. As rightly pointed out by the Appellate Authority [in the Order dated 31.01.1995], even after filing of eviction Petitions on the ground of willful default, the Tenants were not regular in payment of rent and they sought to adjust the advance paid to Ponnambalam. The Tenants have also set up a plea for adjustment of rent towards the alleged expenses incurred by them by repairing the shop and also obtaining electricity service connection. The Appellate Authority has rightly negatived the frivolous plea raised by the Tenants. 20. It is seen from the Order of the Appellate Authority [dated 31.01.1995] that during the pendency of the eviction Petition, the Tenants were in arrears of rent as noted below::- 20. The learned Counsel for the Petitioners/Tenants vehemently contended that when there is no willful default prior to the filing of the Petition, the subsequent arrears cannot be taken as willful default. This contention does not merit acceptance. Let us take a case when the Tenant committed default and continued to commit default or being irregular in paying the rent during the pendency of proceedings. Is it fair to hold that there was no willful default. This is all the more so, where the Tenants have challenged the Sale Deed in favour of the Respondent landlady. 21. The conduct of the Tenant in not paying the rent regularly during the pendency of the proceedings will amount to willful default and such subsequent conduct of the Tenant can be taken into consideration in deciding the matter. In the decision reported in Anraj Pipada ..Vs.. Umayal ( 1998 (2) M.L.J. 524 ), S.JAGADEESAN, J. has held that when the eviction proceedings have been initiated on the ground of willful default, one would expect the tenant to pay the rent regularly every month at least after the initiation of the proceedings. When the Tenant has failed to pay the rent regularly even during the pendency of the proceedings, then there is no doubt that his conduct in paying the rent as he likes, will amount to willful default. 22. In Vasantha Leela ..Vs.. Vadivelu Chettiar ( 1998 (3) C.T.C. 467 ) RAMAN, J. has held as follows:- "... When the Tenant has failed to pay the rent regularly even during the pendency of the proceedings, then there is no doubt that his conduct in paying the rent as he likes, will amount to willful default. 22. In Vasantha Leela ..Vs.. Vadivelu Chettiar ( 1998 (3) C.T.C. 467 ) RAMAN, J. has held as follows:- "... Therefore, it is clear from the above circumstances that the Tenant ought to have been diligent in payment of the rent as proceedings have been pending between the parties with reference to the property and his eviction from the property. The Tenant ought to have been careful and scrupulous in adhering to his duties as a tenant. The foremost duty of the tenant is to pay the rent in time. Therefore, in the context of the litigations that went on between the parties and default committed by the Tenant has to be construed as willful default. The tenant was aware of the legal consequences of his omission to pay rent. Therefore, he ought to have been more careful. In spite of it he has not chosen to pay the rent which would only indicate that he has been supinely indifferent and callous in attitude. Therefore, any default committed by the Tenant in this context can be nothing but willful default within the meaning of the Act....." 23. Taking note of the subsequent conduct of the Tenants, the Appellate Authority has rightly held that the Tenants have committed willful default and ordered eviction. Exercising jurisdiction under Section 25 of the Act, the High Court will not interfere with the findings unless there is perversity in the appreciation of evidence by the authorities below. There is absolutely nothing to show that there is perversity in the appreciation of evidence by the Appellate Authority and there is no reason calling for interference with the Order of eviction passed by the Appellate Authority. 24. In the result, the Order made in R.C.A.Nos.13/91, 12/91, 1/92, 11/91, on the file of the Appellate Authority [Principal Sub Court] Mayiladuthurai dated 18.06.1999 is confirmed and these revision Petitions are dismissed. No costs. Two months time from the date of this Order is granted for vacating and handing over vacant possession.