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2020 DIGILAW 425 (KER)

Shivadasan Palleri v. Padmavathy Palleri

2020-05-22

SHIRCY V.

body2020
JUDGMENT : Defendants 5 and 6 in a suit for partition have come up with this appeal challenging the preliminary decree dated 23.6.1999 in O.S. No. 381 of 1995 on the file of the Sub Court, Thalassery. 2. For sake of convenience, the parties are referred to as per their ranking before the trial court. 3. The brief facts necessary to appreciate the narrow controversy in this appeal, are as follows: In the plaint two items of properties are scheduled as Plaint A schedule. Plaint B schedule are movables. Item No.1 property in A schedule originally belonged to one Chathu. On his death the said property devolved upon his wife Nani and his children, the plaintiff, the defendants 1 to 6 and deceased Raghavan. Raghavan expired before the suit on 2.11.1985 and his legal representatives are the defendants 7 and 8. The plaintiff claimed 1/8th share over item No.1 in plaint A schedule and 1/8th share over B schedule movables in the residential house as the legal heirs of Chathu. Item No.2 in A schedule is a shop building and appurtenant land in Thalassery town. Chathu was conducting business in the shop building much prior to 1940 as a tenant and on his death, the tenancy right over the building, devolved upon his wife and children. After the death of Chathu, his son, Raghavan, was conducting the business on behalf of all the legal heirs. While Raghavan was continuing the tenancy the jenm right over item No.2 in A schedule was purchased by Nani, the mother, as per a document dated 18.7.1973. On the death of Nani, the tenancy right over item No.2 also devolved upon the plaintiff and the defendants 1 to 8. Defendants 7 and 8 who are conducting business in items No.2 in A schedule refused to share the profits among the other sharers and hence the suit for partition. 4. The defendants 1 to 4 admitted the case of the plaintiff that they are entitled to get share over item No.1 in A schedule along with the plaintiff as claimed by her. But they raised exclusive right over certain items in B schedule and contended that those items are not liable to be partitioned. It was also contended that Chathu was the tenant of item No.2 shop building and later Raghavan conducted the business on the death of Chathu. But they raised exclusive right over certain items in B schedule and contended that those items are not liable to be partitioned. It was also contended that Chathu was the tenant of item No.2 shop building and later Raghavan conducted the business on the death of Chathu. The jenm right over the property was purchased by the mother Nani with her own funds. Raghavan who sustained heavy loss in the business vacated the building on 1.10.1981. Thereafter, defendants 5 and 6 (the appellants) took lease of item No. 2 in A schedule after executing a new kychit and conducted business on partnership . Nani had purchased item No.2 by utilizing her own money which she obtained by selling her own property in the year 1967. So, that property exclusively belonged to her. While the defendants 5 and 6 were conducting the business, on lease from Nani, she gifted the property in their favour and thus the property exclusively belongs to them and that property is not liable to be partitioned. 5. Defendants 5 and 6 by filing a separate written statement also contended that the claim raised by the plaintiff is not correct. Nani purchased item No. 2 as per document No. 778/73. When Raghavan vacated the building the defendants 5 and 6 took lease of item No.2 from Nani as per Kychit No. 1923/81 and conducted business on partnership basis .Subsequently Nani gifted the property to them as per gift deed No.1573/83 and thereafter they assigned the property to defendants 9 to 11. So, there is no tenancy available for partition. 6. Defendants 7 and 8, the legal heirs of Raghavan, contended that they are entitled to get 1/8th share in plaint A and B schedule properties and so those properties alone are liable to be partitioned. 7. The additional defendants impleaded as defendants 9 to 11 contended that the defendants 5 and 6 assigned item No.2 property in their favour. Therefore, neither the tenancy nor the property is available for partition. 8. Before the court below, the parties led evidence as follows: The plaintiff was examined as PW1 but no documentary evidence was adduced. For the defendants DWs. 1 to 5 were examined and Exts. B1 to B25 were marked. Ext.C1 is the commission report. Therefore, neither the tenancy nor the property is available for partition. 8. Before the court below, the parties led evidence as follows: The plaintiff was examined as PW1 but no documentary evidence was adduced. For the defendants DWs. 1 to 5 were examined and Exts. B1 to B25 were marked. Ext.C1 is the commission report. On evaluation of the entire evidence available on record, the court below passed a preliminary decree by the impugned judgment as follows: “Item No. 1 of the A schedule will be divided into 54 equal shares and out of that 7 such shares will be allotted to the plaintiff, 7 such shares each to D1 to D4, 7 such shares each to D5 and D6 and 5 such shares to D7 to D8 together. The tenancy right of the parties in item No.2 of the plaint A schedule will be divided into 27 equal shares and out of that the plaintiff is entitled to 3/27 shares, D1 to D4 3/27 shares each, D5 and D6 5/27 shares each and D7 and D8 2/27 share together. The plaint B schedule movable items included in Ext. C1 report of the Advocate Commissioner excluding items covered by B2 to B15 bills are also available for partition between the parties. Those items available for partition will be divided into 54 equal shares and out of that plaintiff is entitled to 7/54 shares, D1 to D4 7/54 shares each D5 and D7 7/54 shares each and D7 and D8 together to 5/54 shares. The claim of D9 to D11 to set apart item No.2 of A schedule towards the share of D5 and D6 will be considered as far as possible at the time of the final decree. The plaintiff is entitled to mesne profits and the quantum of which will be determined at the time of the final decree. The costs of the suit shall come out of the estate. 9. Heard Adv. Shaji P. Abraham, the learned counsel for the appellants/defendants 5 and 6 and Adv. A.C. Venugopal and Adv. Cibi Thomas, the learned counsel for the respondents/plaintiff and defendants 1 to 4 and 7 to 11. 10. The appellants, the defendants 5 and 6 are not challenging the finding of the court below that item No.1 in A schedule and certain movables in B schedule are available for partition. A.C. Venugopal and Adv. Cibi Thomas, the learned counsel for the respondents/plaintiff and defendants 1 to 4 and 7 to 11. 10. The appellants, the defendants 5 and 6 are not challenging the finding of the court below that item No.1 in A schedule and certain movables in B schedule are available for partition. The only contest is with respect to the finding of the court below that the tenancy right over item No.2 in A schedule is liable to be partitioned. So in short, there is no dispute with respect to item No.1 in A schedule and B schedule movables. The genealogical tree of the family is as follows: Chathu & Nani Plaintiff Defendants 1 to 6 Raghavan (expired) Defendants 7 & 8 Admittedly, Chathu expired in the year 1970. Nani, the mother, died on 7.8.1992. Chathu and Nani had five daughters and three sons. Out of them, admittedly the eldest son, Raghavan expired on 2.11.1985. Plaint A schedule consists of two item of properties. Item No.2 is a shop building and the land appurtenant thereto. Admittedly Chathu was the tenant who was running some business under tenancy in the building till his death. Tenant includes the heirs of a deceased tenant. Of-course on the death of the tenant his legal heirs come within the sweep of the definition of tenant. The interest of the landlord will devolve on his heirs and thus they become statutory tenants. There can be no quarrel with respect to the proposition of law. But, here the crucial question is whether the tenancy right of Chanthu in item No.2 is liable to be partitioned among his legal heirs. Whether convincing materials are forthcoming to decide so, or whether there was determination of tenancy on his death, are the core issues to be decided in this appeal. Admittedly, Chathu was conducting business in the shop building much prior to 1940 as a tenant. He continued the business in the building till his death in the year 1970 . On the death of Chathu, his tenancy right devolved upon Nani, his wife and children, is the case projected by the plaintiff. According to the plaintiff Raghavan, the eldest son continued the business of his father as a joint tenant of the building for the family till his death. On the death of Chathu, his tenancy right devolved upon Nani, his wife and children, is the case projected by the plaintiff. According to the plaintiff Raghavan, the eldest son continued the business of his father as a joint tenant of the building for the family till his death. While he was conducting the business, the jenm right in the property, i.e., item No.2 in A schedule, was purchased by Nani as per document No. 778/1973 (B 17). The learned counsel for the plaintiff contended that though jenm right was purchased by Nani, the tenancy right was not purchased by Nani and it was with the tenant and moreover, the purchase was with the income of the family. But that contention was stoutly refuted by the defendants 5 and 6 contending that Nani purchased the property with her own funds which she derived by the sale of her own property and so, it was her exclusive property and she was holding right as the true owner of the property. The further contention was that the purchase was effected by her while the business was conducted by Raghavan independently after determination of lease of Chathu. At the outset it is to be noted that no written lease deed was created in favour of Chathu. So also in favour of Raghvan. Ext.B17 is the sale deed executed by the landlord/owner in favour of Nani. What is significant is that the recital in the document is also not sufficient to show that Raghvan was running the business for the family. Like that though, the plaintiff and the defendants 7 and 8 contended that the sale consideration was paid by Nani on behalf of the family, no cogent evidence or reliable materials were available to support the contention. It is pertinent to note that the said contention was denied by the other defendants and they have a case that she had sufficient money with her to effect the purchase. Ext.B17 being a registered document in favour of Nani automatically hold a presumption to the effect the sale consideration received by the owner was for the entire property and building wherein Raghavan, was conducting the business and she was having right to collect the rent and to evict the tenant as the landlord. Ext.B17 being a registered document in favour of Nani automatically hold a presumption to the effect the sale consideration received by the owner was for the entire property and building wherein Raghavan, was conducting the business and she was having right to collect the rent and to evict the tenant as the landlord. If Raghavan was conducting business for the family as a legal heir of the original tenant, definitely convincing evidence would be available to substantiate it. On the contrary, the evidence shows a fair probability that a fresh lease arrangement was created by Raghavan with Nani and he was a bona fide tenant in peaceful possession of the tenanted premises. As the plaintiff was unable to place materials to demonstrate that the business run by Raghavan was for the family as the one of the legal heir of the original tenant, it could correctly be presumed that he continued to be in uninterrupted occupation of the said premises on payment of monthly rent for his business. Legal heirs are persons of-course entitled to inherit the interest, estate, tenancy right etc of the deceased. Remittance of rent for the building in continuing the family business, Sharing of income among the legal heirs of the original tenant, Acceptance of profits by the legal heirs, Willingness to continue in the tenanted premises to carry out the family business in tenancy, continuation of the lease for the beneficial interest of all the legal heirs etc are some of the essential ingredients to be specifically pleaded and proved by definite and clear evidence with clarity that too when there is a plausible defence of determination of tenancy of the original tenant. But unfortunately existence of such ingredients are conspicuously absent in the case. The death of Chathu was in the year 1970. If Raghavan continued the business for the family till 1981 and then by the defendants 5 and 6 cogent evidence apart from the bald statement of plaintiff would be available. No convincing and reliable materials are forthcoming on records. The plaintiff failed to establish that Raghavan had validly and rightly exercised the right to continue the lease/tenancy for the family in the manner known to law and then by the defendants 5 and 6. No convincing and reliable materials are forthcoming on records. The plaintiff failed to establish that Raghavan had validly and rightly exercised the right to continue the lease/tenancy for the family in the manner known to law and then by the defendants 5 and 6. According to the defendants 5 and 6, Raghavan after winding up his business vacated the premises on 1.10.1981 and thereafter defendants 5 and 6 took lease of the building as per Ext.B18 from Nani. Ext.B18 is a kychit written by the defendants 5 and 6 in favour of Nani for creating a fresh lease arrangement for the building after Raghavan vacated the premises on 1.10.1981. There is nothing to doubt regarding the genuineness behind its execution. Of-course Ext.B1 and B16 are two documents executed by the defendants 1 and 3 in favour of Raghavan permitting him to conduct business for 3 years from 1971, but the documents were executed before the purchase of the property by Nani as per Ext.B17. They have no case that apart from Ext .B1 and B16 any documents were executed to continue permission for a further term and according to them Raghavan had started some other business in another premises. More over there is absolutely no evidence to prove that income derived from the business was shared by Raghavan with his siblings at any point of time. PW1 fairly admitted the same and she had no case that she ever demanded it from Raghavan. There is definite contention by the learned counsel for the defendants 5 and 6 /appellants that Raghavan never continued the tenancy of Chathu and he surrendered his tenancy subsequently on 1.0.1981 and thereafter Ext.B18 was executed by the defendants 5 and 6 with Nani, the jenami who acquired the property with her funds . No evidence whatsoever was adduced by the plaintiff to substantiate the allegation that Raghavan continued the tenancy for the family and that there was no surrender of tenancy of the premises by Raghavan. In so far as the surrender of a building, it need not be by creating and executing a document. When Surrender of a building need not be by execution of document, creation of new lease /tenancy amounts to implied surrender. Here, it is to be remembered that the dispute is not with the landlord and tenant but with the legal heirs of Chathu. When Surrender of a building need not be by execution of document, creation of new lease /tenancy amounts to implied surrender. Here, it is to be remembered that the dispute is not with the landlord and tenant but with the legal heirs of Chathu. In fact the evidence on record indicates that the building was voluntarily surrendered by Raghavan. Execution of a fresh lease deed by the defendants 5 and 6 by Ext B18 also establish that there was implied surrender and the tenanted premises was taken over by them on 25.11.1981 after his surrender from the present landlady. What emerges abundantly from the record is that the partnership business conducted by them on execution of a fresh lease was after determination of lease by implied surrender of the building taken on lease by Raghavan for his exclusive business. Pursuant to the terms of the agreement they paid monthly rent to Nani and she accepted it. While so, Nani executed Ext.B19 a gift deed assigning her right over the property in favour of the defendants 5 and 6. Therefore, by Ext.B19, the defendants 5 and 6 have become the absolute owners of the property and they continued their business as partners. 11. The learned counsel for the plaintiff further submitted that since the tenancy was taken by Chathu, the deceased tenant even before 1940, the legal heirs are entitled to get protection under Section 11(17) of the Kerala Buildings (Lease and Rent Control) Act. 11. The learned counsel for the plaintiff further submitted that since the tenancy was taken by Chathu, the deceased tenant even before 1940, the legal heirs are entitled to get protection under Section 11(17) of the Kerala Buildings (Lease and Rent Control) Act. Before proceeding to consider the correctness of the finding recorded by the Court below that the tenancy is liable to be partitioned, it shall be useful to reproduce Section 11(17) of the Kerala Buildings (Lease and Rent Control) Act (for short the Act) “ Section 11(17) -Notwithstanding anything contained in this section a tenant who has been in continuous occupation of a building from 1st April 1940 as a tenant, shall not be liable to be evicted for bonafide occupation of the landlord or of the occupation by any member of his family dependent on him, provided that a landlord of a residential building shall be entitled to evict such a tenant of that building if the landlord has been living in a place outside the city, town or village in which the building is situated for a period of not less than five years before he makes an application to the Rent Control Court for being put in possession of the building, and requires the building, bona fide for his own permanent residence or for the permanent residence of any member of his family or the landlord is in dire need of a place for residence and has none of his own. Explanation.-In computing the period of continuous occupation from 1st April 1940, the period, if any, during which the landlord was residing outside the city, town or village in which the building is situate shall be excluded.” 12. The learned counsel for the plaintiff would argue that the protection under Section 11(17) of the Act available to the tenant Chathu can be claimed by his successors as he was in continuous occupation from 1st April 1940 as a tenant and his successors continued the tenancy after his death and therefore, the tenancy is also available for partition. The trial court accepting the said contention adjudicated the case in favour of the plaintiff. Whether the finding of the trial court is legally correct and is a pragmatic one or not, is the core issue to be answered. The trial court accepting the said contention adjudicated the case in favour of the plaintiff. Whether the finding of the trial court is legally correct and is a pragmatic one or not, is the core issue to be answered. The learned counsel for the defendants 5 and 6 vehemently contended that the protection under Section 11(17) is available only to a tenant and not to his/her legal heirs. They would challenge the finding of the Court relying on the decision of the Full Bench of this Court in Narayanan v. Shalima ( 2003(2) K.L.T. 317 FB) where it is observed that the legal heirs of a deceased tenant are not entitled to get protection under Section 11(17) of the Rent Control Act. This judicial pronouncement says that the protection available to a tenant who is occupying the premises continuously from 1st April, 1940, is not extended to his legal heirs. It would be apposite to refer to the observations in Paragraphs 9, 11 and 17 : “9. S.11(17) carves out an exception to the rule under S.11(3). It lays down that a tenant who has been in continuous occupation of a building from 1st April, 1940 as a tenant shall not be liable to be evicted under S.11(3). An exception to this exception is also engrafted in S.11(17). In respect of a residential building, eviction can still be claimed under S.11(3) subject to the more rigorous conditions imposed in S.11(17). The first and the crucial ingredient to be proved in order to entitle a tenant to the protection under S.11(17) is that such tenant has been in continuous occupation of the building from 1st April, 1940. 11. S.11(17) if read and understood in the manner canvassed by the learned counsel for the tenant would virtually amount to a perpetual clog on the right of the landlord to claim eviction under S.11(3) from a tenant from a nonresidential building. In respect of a residential building also such a clog or fetter would remain for all time subject of course to the exception that on proof of the rigorous conditions enumerated in S.11(17) an order of eviction can still be claimed. Dire need will have to be established in order to secure eviction of such tenant. …........ …......... …........ 17. In respect of a residential building also such a clog or fetter would remain for all time subject of course to the exception that on proof of the rigorous conditions enumerated in S.11(17) an order of eviction can still be claimed. Dire need will have to be established in order to secure eviction of such tenant. …........ …......... …........ 17. The contention that the successor/legal heir tenant must in law be held to be entitled to all the rights of his predecessor-tenant, though unexceptionable broadly and generally, cannot be accepted while considering the claim for protection under S.11(17) of the Act. This is because of the peculiar and special nature of the protection available to a tenant under S.11(17). This is also because of the nature of the disability which the landlord is made to suffer under S.11(17). The protection under S.11(17) according to us must certainly be reckoned as a personal privilege or protection available to the tenant actually in continuous occupation from the relevant date 1.4.90, and not to his successors.” 13. A protection or privilege available to a tenant under Section 11(17) of the Act in continuous occupation of a tenanted premises from 1.4.1940 could be reckoned only as a personal one which cannot be extended, at any stretch of imagination to his legal heirs/successors. Therefore, the plea raised and vehemently urged by the plaintiff that the successors /legal heirs of the tenant are entitled to get protection under Section 11(17) of the Rent Control Act is not tenable as it confers only a personal privilege and protection to the tenant coming under the said category and not to his legal heirs/Successors. In fact the overwhelming evidence indicate that after the death of Chathu, Raghavan had his own business for quite some time in the very same premises independently and he vacated/surrendered the building in the year 1981 as the business was in loss . By that time by Ext B17 Nani purchased the entire right over the property and the recitals in the deed also indicate the same and after Raghavan had surrendered the tenancy in the year 1981 she had rented out the building to the defendants 5 and 6. Therefore, the contention of the plaintiff that the landlord's right alone was purchased by Nani is not acceptable in the light of the evidence available on record. Therefore, the contention of the plaintiff that the landlord's right alone was purchased by Nani is not acceptable in the light of the evidence available on record. Since Raghavan had abandoned his independent tenancy right, it could be seen that a valid surrender had been effected by him. More over delivery of physical possession by the tenant is not a pre-requisite for an effective and valid surrender. The execution of new lease ipso facto determines the old lease and results in surrender. [See Sulaikha Beevi v. K.C. Mathew ( 1997 (1) KLT 69 )]. Obviously, the execution of Ext.B18 also reflects the surrender of the lease by Raghavan and that thereafter Nani, created a fresh lease deed in the name of the defendants 5 and 6 and they carried on their business as partners and it was not for the benefit of the family as alleged by the plaintiff. While they were conducting the business, by Ext.B19, Nani had assigned the property in favour of defendants 5 and 6 and thus they got independent and exclusive right over the property. Therefore, the tenancy right is not available for partition and the tenancy created by Chathu never devolved upon her children and wife on his death or on the death of Raghavan who conducted business in the building after the death of his father for quite a while . When there was specific denial of the averments regarding continuation of tenancy of the original tenant by Raghavan, it was not correct to conclude that no duty was cast on the plaintiff to adduce evidence regarding the same. In fact it puts the plaintiff to strict proof of the same. 14. While the defendants 5 and 6 were conducting the business, by executing Exts. B20 and 21, they had assigned the property in favour of the defendants 9 to 11. The assignment was in the year 1995 and they have paid tax for the property and they could only be treated as bona fide purchasers of the property for valuable consideration. It is pertinent to note that the plaintiff has not disputed the execution of Ext.B18 document by which Nani had assigned her right over item No. 2 in A schedule. It is pertinent to note that the plaintiff has not disputed the execution of Ext.B18 document by which Nani had assigned her right over item No. 2 in A schedule. Her only contention was that it was jenm right and not the tenancy right, but did not discharge the burden by adducing evidence on that material and significant fact, But, it is evident that the independent lease of Raghavan was determined by implied surrender and thereafter only the defendants 5 and 6 started their tenancy right under Nani, their grand mother, independently. Therefore, the contention of the plaintiff that Raghavan was conducting the business for the family and thus the tenancy devolved on the children of Chathu and Nani and it was available for partition etc are not acceptable and could only be treated as a frivolous plea raised after a long span of time as an after thought, which is strongly deprecated by this court. 15. Such being the case, the finding of the court below that the tenancy right over item No.2 in A schedule is available for partition between the parties is only to be discarded and it has to be held that the tenancy right is not available for partition among the plaintiff and the defendants 1 to 8. Additional defendants 9 to 11 are the persons entitled for the property on the basis of the valid sale deed. In my view, they are unnecessarily dragged to the Court on totally frivolous allegations. Therefore, the appeal filed by the defendants 5 and 6 challenging the verdict of the court below that item No.2 is available for partition, is only to be allowed after setting aside the erroneous finding. In the result, the appeal is allowed and the finding of the learned Sub Judge that tenancy right over item No.2 in A schedule is available for partition is hereby set aside and the preliminary decree is modified to that extent, as prayed for by the appellants. No costs.