Full Judgment Text
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PETITIONER:
T.K. LATIKA
Vs.
RESPONDENT:
SETH KARSANDAS JAMNADAS
DATE OF JUDGMENT: 31/08/1999
BENCH:
A.P.Misra, K.T.Thomas
JUDGMENT:
THOMAS, J.
A landlord approached the Rent Control court
prematurely and lost the cause not only regarding the timing
of her approach to the court but on merits as well. The
High Court found that the claim of the landlord for eviction
of the tenant from the building lost its tenability on
account of the factors which sprouted up pendente lite. The
unsuccessful landlord has, therefore, reached this Court by
special leave.
The tenant has been residing in the building of the
landlord for nearly half a century by now, (a few more years
from now may mark the golden jubilee year of the tenancy).
When the building was originally leased in 1956, it was in
the ownership of appellants father. He executed a gift
deed in favour of his daughter (the appellant) on 2-8-1980,
as per Ext.B-10. But the appellant, bereft of patience to
wait for the expiry of the moratorium period of one year,
hastened to file the petition for eviction of the tenant on
1- 7-1981 under Section 11(3) of the Kerala Buildings (Lease
and Rent Control) Act, 1965, for short the Act. Appellant
made an endeavour to circumvent the quarantine prescribed
under the sub-section on the premise that the tenant had
executed a fresh lease agreement in her favour on 18-8-1980
(Ext.A.1).
Section 11(3) of the Act reads thus: A landlord may
apply to the Rent Control Court for an order directing the
tenant to put the landlord in possession of the building if
he bona fide needs the building for his own occupation or
for the occupation by any member of his family dependent on
him.
The sub-section has four provisos of which the third
alone is relevant for consideration in this appeal and hence
that is extracted below: Provided further that no landlord
whose right to recover possession arises under an instrument
of transfer inter vivos shall be entitled to apply to be put
in possession until the expiry of one year from the date of
the instrument.
The Rent Control court bypassed the ban contained in
the aforesaid proviso by accepting the contention of the
appellant that the right to recover possession of the leased
premises is not based on Ext.B.10-Gift Deed executed by the
erstwhile landlord, since a new lease arrangement has come
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into effect between the appellant and the tenant as per
Ext.A.1. Rent Control Court then proceeded to consider the
merits of the claim for eviction and upheld the bona fides
of the need highlighted by the landlord. So the Rent
Control Court granted the order for eviction.
But the Appellate Authority under the Act reversed the
findings both on the maintainability of the petition for
eviction and also on the merits of the claim and
consequently dismissed the petition of the landlord. The
order so passed by the Appellate Authority remained
undisturbed in the revision filed by the landlord before the
District Court which was then the revisional authority.
However, a learned Single Judge of the High Court of Kerala,
while disposing of a writ petition filed under Article 227
of the Constitution expressed inclination to approve the
contention that the petition filed by the landlord is not
liable to be expelled solely on the strength of the ban
contained in the third proviso to Section 11(3) of the Act.
The observations made by the learned Single Judge, on that
score, are the following:
I find some merit in the contention that after the
tenant had, subsequent to the transfer inter vivos, attorned
to the transferee-landlord, right to evict may arise out of
that transaction itself and the transferee landlord then
need not rely on the transfer in his favour.
After expressing as above learned Single Judge has
stated thus:
Since in view of my finding that the Appellate
Authority and the revisional court were right in negativing
the claim for eviction under Section 11(3) of the Act on
merits, I am not inclined to answer this question finally in
this Original Petition. Even if the answer to this question
were to be in favour of the landlord, she could not still
succeed in view of my accepting the finding of the Appellate
Authority and the revisional court on the merits of her
claim under Section 11(3) of the Act. In that situation I
decline to interfere with the finding by the Appellate
Authority and the revisional court that the application is
also not maintainable having been filed within one year of
2.8.1980.
The case of the landlord that she needed the building
bona fide for her own occupation was then considered by the
High Court on merits and learned Single Judge entered upon a
finding that it is not bona fide. The writ petition was,
hence, dismissed.
If the ban contained in the third proviso to Section
11(3) of the Act applies, its corollary is that the petition
filed by the landlord has to be expelled on the sole ground
that the landlord was then not entitled to file it. In such
a situation the court should not enter into the merits
because whatever is said or found on the merits would then
be without jurisdiction. High Court should have first
decided the question of maintainability of the petition and
only if that point was found in the affirmative the merits
need have been gone into.
Thus the question is whether appellants right to
recover possession of the building arose under Ext.B.10
Gift Deed or under the new lease agreement Ext.A.1 dated
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18.8.1980. No doubt appellant got the right to recover
possession when she got the gift executed by her father.
The contention is that the said lease came to an end when
the new lease agreement was executed. The aforesaid
contention is based on Section 111(f) of the Transfer of
Property Act on the premise that there was an implied
surrender of the old lease when the new lease was executed.
It must be pointed out that only two differences could
be noticed as between the lease agreement of 1956 and
Ext.A.1. They are: in the former the lessor was
appellants father and the rent of the building was Rs.65
per month, while in the latter the lessor is appellant and
the rent is Rs.150 per month. How could an implied
surrender of the lease be inferred therefrom. It is
admitted that the tenant continues to be in possession of
the building in the same manner as before and the building
also remains the same.
The principle which governs the doctrine of implied
surrender of a lease is that when certain relationship
existed between two parties in respect of a subject matter
and a new relationship has come into existence regarding the
same subject matter, the two sets cannot co-exist, being
inconsistent and incompatible between each other, i.e. if
the latter can come into effect only on termination of the
former, then it would be deemed to have been terminated in
order to enable the latter to operate. A mere alteration or
improvement or even impairment of the former relationship
would not ipso facto amount to implied surrender. It has to
be ascertained on the terms of the new relationship
vis-Ã -vis the erstwhile demise and then judge whether there
was termination of the old jural relationship by
implication.
The following passage in the Halsburys Laws of
England, 4th Edn. Vol.27 at page 355, is apposite:
449. Surrender by change in nature of tenants
occupation. A surrender is implied when the tenant remains
in occupation of the premises in a capacity inconsistent
with his being tenant, where, for instance, he becomes the
landlords employee, or where the parties agree that the
tenant is in future to occupy the premises rent free for
life as a license. An agreement by the tenant to purchase
the reversion does not of itself effect a surrender, as the
purchase is conditional on a good title being made by the
landlord.
In Hill and Redmans Law of Landlord and Tenant (16th
Edn.) at page 451 it is observed that a surrender does not
follow from a mere agreement made during the tenancy for the
reduction or increase of rent, or other variation of its
terms, unless there is some special reasons to infer a new
tenancy, where, for instance, the parties make change in the
rent under the belief that the old tenancy is at an end.
In N.M. Ponniah Nadar v. Smt. Kalakshmi Ammal,
{1989(1) SCC 64} a three-Judge Bench of this Court found
that an arrangement by which rent of the building was
increased in respect of existing tenancy will not bring an
end to the pre-existing lease.
In Krishna Kumar Khema v. Grindlays Bank {1990 (3)
SCC 669} a two-Judge Bench of this Court held thus:
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Surrender of a part does not amount to implied surrender of
the entire tenancy and the rest of the tenancy remains
untouched. Likewise the mere increase or reduction
of rent also will not necessarily import a surrender of an
existing lease and the creation of a new tenancy.
Assuming that Ext.A.1 has created a new lease after
terminating the erstwhile lease, the difficulty is that the
grip of the ban contained in the third proviso would still
continue to foreclose the landlord from filing the petition
for a period of one year from the new lease deed. This is
because the landlords right to recover possession would
then arise under that instrument of lease, which would also
be a transfer inter vivos as envisaged in the third proviso.
In Blacks Law Dictionary the expression inter vivos is
given the following meaning:
Between the living; from one living person to
another. Where property passes by conveyance, the
transaction is said to be inter vivos, to distinguish it
from a case of succession or devise.
So the landlord had to wait for a still further period
if he were to root his right in Ex.A1 to recover possession
of the building.
As the third proviso to Section 11(3) disentitles a
landlord from applying for eviction of the tenant before the
expiry of the quarantine period, the petition filed by the
landlord in this case has to be dismissed only on that
ground. Any observation made on the merits of the case in
the proceeding based on such a non-maintainable petition
must stand erased from judicial notice. If the present
landlord files a new petition for eviction under the Act, as
the ban period is over, the same has to be considered and
disposed of uninfluenced by any of the observations made by
the High Court or the courts below thereto.
The appeal is dismissed in the above terms, without
any order as to costs.