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2007 DIGILAW 387 (KER)

Mohammed Bivi A. v. Susheela Kovilamma

2007-06-28

JACOB BENJAMIN KOSHY, K.P.BALACHANDRAN

body2007
ORDER J.B. Koshy, J. 1. Respondents 1 and 3 to 9 in RCP No. 70 of 2000 on the file of the Rent Control Court, Kozhikode are the petitioners in this revision. RCP No. 70 of 2000 was filed by the first respondent herein for eviction under S.11(2)(b) and 11(4)(1) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short 'the Act'). The Trial Court granted eviction on both grounds and the same was affirmed by the Rent Control Appellate Authority. The scheduled premises were entrusted on lease by Ext. A1 kychit dated 19/11/1962 to one V. M. Abdul Rasheed and H. Muhammed Hussain, both deceased now. The original first respondent, namely, the first petitioner herein, is the widow of late V. M. Abdul Rasheed. One Meherunni Shaw, the original second respondent, was the widow of other tenant Mohammed Hussain. She did not challenge the order of eviction as the building was later in occupation of V. M. Abdul Rasheed only. The contention of the landlord is that after the death of original tenants V. M. Abdul Rasheed and Mohammed Hussain, the original respondents 1 and 2, transferred possession and sub let the scheduled premises to respondents 3 to 9 in the RCP. The Landlord further contended that payment of rent has been defaulted by the respondents and that landlord is entitled to eviction on the grounds under S.11(2)(b) and S.11(4)(i) of the Act. Original second respondent Meherunni Shaw, wife of one of the tenants, was the sister of V. M. Abdul Rasheed. Actually, in the tenanted premises, business was conducted by Abdul Rasheed. In the objection filed by respondents 1 and 3 to 9, it was contended that since the original tenants died issueless, the wife and sister of the tenant cannot inherent the property in its entirety. They are sharers and they are entitled only to fixed share mentioned under the Mohammedan Law of Succession and balance will go to residuaries and respondents 3 to 9 are not sub lessees and they inherited part of the estate of Abdul Rasheed and, therefore, they cannot be evicted on the ground of sub lease. There is no dispute to the legal position that the legal heirs can also inherit the right of tenancy and if they are legal heirs, they cannot be called sub tenants. The building was on lease from 1962 onwards. There is no dispute to the legal position that the legal heirs can also inherit the right of tenancy and if they are legal heirs, they cannot be called sub tenants. The building was on lease from 1962 onwards. According to the landlord, rent was in arrears from 1989. The main question to be considered is whether respondents 3 to 9 are occupying the premises as legal heirs or as sub tenants. 2. S.11(4)(i) of the Act reads as follows: "11. Eviction of tenants.-- xxxx xxxx xxxx (4) A landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building,-- (i) if the tenant after the commencement of this Act, without the consent of the landlord, transfers his right under the lease or sub lets the entire building or any portion thereof if the lease does not confer on him any right to do so: xxxx xxxx xxxx" Both Courts concurrently found that there was transfer of possession and the contention that they are also legal heirs were not accepted. 3. It is submitted that under the Hanafi Law, there are three types of heirs: (i) Sharers; (ii) Residuaries and (iii) Distant Kindred. Distant Kindred will inherit the property only if there are no sharers or residuaries. In Mohammedan Law by Mulla, it is stated as follows: "(i) 'Sharers' are those who are entitled to a prescribed share of the inheritance; (ii) 'Residuaries' are those who take no prescribed share, but succeed to the 'residue' after the claims of the sharers are satisfied; (iii) 'Distant Kindred' are all those relations by blood who are neither sharers, nor Residuaries." The estate of the deceased Muhammed Hussain has to be distributed after paying his funeral expenses, debt, etc. by allotting the 'sharer' (such of the relations as belong to the class of sharers) the fixed shares due to them and the balance should be divided among the residuaries. If there are no named shares or residuaries, it will go to the distant kindred. The widow's share is one fourth. Full sister's share is one half in the absence of child, child of a son, father, true grandfather's full brother. If there are no named shares or residuaries, it will go to the distant kindred. The widow's share is one fourth. Full sister's share is one half in the absence of child, child of a son, father, true grandfather's full brother. It is contended that first and second respondents will get only one fourth shares and one half shares respectively and the balance will go to respondents 3 to 9 who claimed to be residuaries as the children of the son of the paternal uncle as consanguine brothers. It is true that normally as per Mohammedan Law sharers will get only a fixed share. The question as to which of the relations belong to the class of sharers, residuaries or distant kindred are entitled to succeed to inherit depends on the circumstances of each case as per Hanafi Law of Inheritance. (See: Principles of Mohammedan Law, 18th edition by Mulla, Chapter VII and Outlines of Mohammedan Law, 4th edition by Fayzee, AAA and Commentaries on Mohammedan Law by B. R. Verma, Eighth edition). Here, first respondent widow (revision petitioner) will get only 1/4th of the estate of her husband as a sharer as he died without any issues. She will not got any property as a residuary. Since Abdul Rasheed died without issues and the father and true grandfather predeceased him, in the absence of full brother, 2nd respondent in the RCP being full sister will get 1/2 of the estate as a 'sharer'. Only father and true grandfather can inherent the property both as 'sharer' and 'residuary' in certain circumstances. Father, true grandfather, daughter, son's daughter, full sister and consanguine sister may be converted into residuary in certain circumstances. For example, father gets 1/6 share where there is child or children of a son, but, when there is no child or children of a son, he will be considered as a residuary. It was argued by the counsel for the first respondent that, similarly, a full sister who became a sharer will be converted as a residuary when there is no full brother or higher residuary. Here, Abdul Rasheed died without any issues. Here, as full sister, second respondent in RCP became a residuary in the absence of father true grandfather or his father. Family history is as follows: Original Tenants 1. Abdul Rasheed (died) (S/o the late Mammen Sahib in the first wife) 2. Here, Abdul Rasheed died without any issues. Here, as full sister, second respondent in RCP became a residuary in the absence of father true grandfather or his father. Family history is as follows: Original Tenants 1. Abdul Rasheed (died) (S/o the late Mammen Sahib in the first wife) 2. Mohammed Husain (died) R1-A. Mohammed Beevi (Wife of abdul Rasheed 1/4th share R2-Meharunnisaw (Full sister of Abdul Rasheed (1/2 Share) R2- Meharunnisaw (Wife of Mohammed Hussain) No others Mammen Sahib (died) (Father of Abdul Rasheed) Mohammed Ismail (died) (Brother of Abdul Rasheed Father Mammen Sahib) Habeebulla(S/o late Mammen Sahib in the 2nd wife“ Consanuine Brother of Abdul Rasheed) (1/2 of 1/4th Residue Jannathunnissa(Daughters of Mammen Sahib in the 2nd wife“ Consanguine sisters of Abdul Rasheed) (1/4th of 1/4th Residue) Hasrammal (1/4th of 1/4thResidue) Abdul Rahim Rawther (died) (S/o Muhammed Ismail) R3- Hazaramal (W/o Abdul Rahim Rawther) R-4 Md Ismail R5 Md Badarudeen (Sons of Sri. Abdul Rahim Rawther and R-3 Hazarammal) R-6 Salim Basha R-7Ahammed Basha R-8 Noorannisaw (Daughters of Abdul Rahim Rawther and R-3 Hazarammal) R-9 Shakila Begum Even if the contention of the petitioners are accepted and respondent No. 1 gets one fourth shares and one half will go to full sister and balance will go to residuaries, the revision petitioner cannot inherent as 'residuaries' due to presence of more proximate consanguine brothers 1 and 2, consanguine sisters. Consanguine sister takes as a residuary with consanguine brother, the brother, taking a double portion. The balance portion after distribution of fixed share to wife and full sister, will not go to respondents 3 to 9 as the family tree shows that there is a consanguine brother Sri. Habeebullah who takes 1/2 of the 1/4th of the residuary. The remaining half of the residuary will goes to consanguine sisters namely, Jannathunnisaw and Hasrammal. Thus the residuary is exhausted. Respondents 3 to 9 are descendants of the paternal uncle of Abdul Rasheed and come under 102 - third class heirs. They are therefore not eligible for any share as the entire share got exhausted by taking the shares by the sharers and residuaries under classes I and II. Since they have not inherited the property, transfer of possession to them is sufficient to attract S.11(4)(i). They are therefore not eligible for any share as the entire share got exhausted by taking the shares by the sharers and residuaries under classes I and II. Since they have not inherited the property, transfer of possession to them is sufficient to attract S.11(4)(i). We are of the opinion that respondents 3 to 9, as already stated, are not legal heirs of the original tenant and, therefore, they are continuing in possession as legal heirs cannot be accepted. There is transfer of possession. The building was tenanted for more than four decades and, admittedly, after 1989, no rent was paid. Eviction under S.11(2) and 11(4)(1) was ordered by the Rent Control Court and affirmed by the appellate authority. In the above circumstances, we agree with the order of eviction passed by the authorities below and no grounds are made out for interference in revision. However, since respondents 3 to 9 were doing business in the tenanted premises for a long time, we are of the opinion that time can be granted for vacating the premises till 31st December, 2007 if they file an affidavit within one month from today before the execution Court stating that they had deposited arrears of rent as on today before the execution Court and will hand over vacant possession to the landlord on or before 31st December, 2007 and will continue to deposit amount equivalent to rent till they hand over vacant possession. If the affidavit is not filed as directed, the landlords are free to execute the order of eviction. The amount equivalent of rent, if any, deposited as per the directions of this Court can be withdrawn by the landlords (first respondent in the revision application).