1. These six Regular Appeals and two Second Appeals relate to as many suits filed by one Nama Ramaswamy Setty in the Court of the Munsiff of Kolar for ejectment and enhanced rents by way of damages for use and occupation till possession of the premises concerned in each of them is delivered by their respective tenants who are defendants in those suits. All those suits were decreed by two different Munsiffs who heard them, Messrs. Hanumanthegowda and Thimmapparaj Urs. On appeals in Regular Appeals Nos. 88 and 89 of 47-13 two of the earlier of these judgments in Original suits Nos. 135 and 136 of 46-47 were reversed by the Subordinate Judge of Kolar. The two Second Appeals by the plaintiff arise out of a common judgment in those two appeals. Six regular appeals which were filed against the judgments in the other six suits were got transferred to this Court and have been heard as Regular Appeals in this Court. They can all be disposed of by a common judgment.
2. The plaintiff is the second of three brothers who are sons of one Rangiah Setty who is now dead. The premises concerned in these suits are shops which are attached to a choultry or Dharma Chatram. The deceased who admittedly was the owner of the choultry and the shops, left a registered will dated 1-7-1922 under which he has directed that out of the rents realized from these shops, the maintenance expenses of the choultry such as kandayam, lighting, cleaning and other charges should be met and the surplus utilized for feeding people free. There is a further provision in the will which runs as follows :
'I have three sons 1st Chinnappa, 2nd Ramaswami Setty, 3rd Naraniah. As long as they remain in a single family harmoniously they should jointly undertake proper supervision of the Anna Chatram...... In case they fail to be on good terms with one another and get themselves separated, each one of them should make proper supervision of this Anna Chatram, each for a period of 3 years in the order of seniority.'
It is this portion of the will that has been mainly relied upon by the defendant to defeat the plaintiff's suits.
3. It is admitted that each of the defendants who were already in occupation as tenants executed in favour of the plaintiff lease deed dated 7th, 8th and 9th July 1843 agreeing to pay rents at Rs. 8-5-4 per month and to vacate and deliver possession of the premises after 11 months. That the plaintiff was then in sole management of the choultry is not disputed and the lease deeds themselves recite that the shops are appurtenant to the choultry. The defendants appear to have paid some rents and then fallen into arrears. The plaintiff issued notices to them terminating the leases and calling them to vacate and deliver over possession of the premises and to pay damages at the rate of Re. 1/- per day.
The defendants pleaded more or less uniformly. They alleged that the lease deeds were nominal and that they were not meant to be acted upon; they had come into possession as tenants earlier, before the plaintiff took up the management and were not liable to vacate and deliver over possession of the premises to him as this term of 3 years for which he was authorized or was entitled to manage the choultry had expired; on account of quarrels between the plaintiff and his younger brother Naranappa and his elder brother's son Ramadevasetty regarding the management of the choultry, proceedings had been initiated and were going on before the Sub-Division Officer, Kolar, and the defendants had received notice from that officer not to pay rents to the plaintiff; the plaintiff's suit was not maintainable as his other two brothers had not joined with him in bringing this suit and as his period of management had expired; the notices issued for eviction also, it was pleaded, were not in accordance with law.
4. The learned Munsiffs who tried the suits held on an appreciation of the evidence and probabilities that the notices terminating the tenancy were valid; that the plea of the defendants that the lease deeds were nominal, & that the condition in them about delivering back possession of the premises to the plaintiff, was not meant to be acted upon was neither true nor tenable. The defendants had not shown that the Sub-Division Officer had issued notices to them not to pay rents to the plaintiff and the plaintiff who was managing the choultry both when he took the lease deeds from the defendants and when he brought the suits was fully entitled to sue the defendants and ask for their eviction and rents. They therefore decreed the plaintiff's suits as prayed for.
5. The learned Subordinate Judge who decided R.As. 88 and 89 of 47-48 and whose decision is sought to be upheld before us for the tenants took the view that the plaintiff's suits were not maintainable. He observed that though the question of the plaintiff's right to sue or maintainability of the suits as brought had not been expressly raised in their pleadings by the defendants, it was a question of law relating to the locus standi of the plaintiff and relying on -- 'K.M. A. Venkiah v. T.V.R. Gupta', 20 Mys LJ 194 (A), thought that that plea could be raised at any time. He also thought that those pleas had been impliedly raised in the pleadings. He, however, did not believe or accept the plea of the defendants that the Sub-Division Officer could in law, or did in fact, demand the tenants to pay the rents, not to their lessor but into the Treasury. He did not record any findings on the other points raised for the defendants, viz., the validity of the notices to quit, the nominal nature of the lease deeds and the condition in it regarding vacating the premises.
6. In this Court no attempt has been made to challenge the findings of the Munsiffs on those points. They moreover appear to be quite correct and the learned Munsiff who decided the later batch of suits has observed that the defendants are all literate persons and experienced businessmen but none of them appear to have much regard for truth. They had given evasive answers but ultimately had admitted execution of the lease deeds and were clearly liable to act according to their terms. There is considerable force in these observations, which are well founded, and we accept as correct the findings of the Munsiffs on all those questions.
7. Of the only questions which were strongly pressed before us for the tenants by their learned Counsel Mr. V. Krishnamurthi, the first is regarding the maintainability of the plaintiff's suits. It is really difficult to see how the learned Subordinate Judge could have come to the conclusion that the plaintiffs suits were not maintainable. The lease deeds purported to be in favour of the plaintiff and contained a reference to the choultry. Admittedly the plaintiff was in management when he got them executed. D.W. 1 his younger brother Navanappa has not deposed that either he or his eldest brother Chinnappa had taken over the management subsequently, nor has he stated that the plaintiff cannot bring these suits as he is not the present manager and that he or his brother alone could do so. He does not appear even to object to the plaintiff getting a decree though he says that there have been differences of opinion between the plaintiff and his two brothers regarding the management.
The clause in the will prescribing that each of the 3 brothers should manage for 3 years in order of seniority is not apparently pressed even by him. He admits that after the plaintiff took up the management he enhanced the rents consulting all the tenants including himself as he had also taken one of the shops for rent; and that with a view to increase the income of the chatram they all agreed. He says that the rents are being collected and utilized for the benefit of the poor students' hostel and for feeding of the travellers. Naranappa D.W. 1 also makes another significant statement in his evidence:
'We 3 brothers are managing the Dharma Chatram...... I managed it for 7 years successively. After my 3 years time, my brother Chinnappa raised takrar to take charge. So I had to manage for his 3 years. I managed one more year on account of this takrar.'
This shows that the provision in the will about the rotational management could only have been merely a directive given for the due, proper and peaceful administration and management of the affairs of the choultry and to avoid misunderstandings between the sons and was treated as such and that they are not such 'vested rights' or irrevocable substantive rights in the nature of title to hold immovable property or to possess and enjoy it.
It was quite within the competence of the brothers to allow one of them to manage if he himself did not choose, or find it inconvenient to do so. It is very difficult to accept or even follow the arguments of the learned Counsel for the tenants that the brothers had each a vested right to manage which would automatically come to an end after the expiry of the three years allotted to him. This is not even a case of owning and enjoying for personal benefit the income of any property. An arrangement laid down by the father in his will for the guidance of his sons could not be utilized by the tenants to defeat the very object of the donor that there should be an harmonious understanding and arrangement between the brothers in the matter of the continuous and unbroken management of this choultry. In his generosity their father had brought into being this charity and it is to be expected all his sons and descendants are interested in maintaining it efficiently for the sake of the reputation of their family and the respect due to their father's charitable intention.
It could be no concern of the defendant which of the brothers is actually managing the charities. Mr. Krishnamurthi's clients who are only tenants cannot by reason of that fact have any right to question the management of the choultry by the plaintiff or his brothers. If the latter did not choose to take over the management from him after his period was over either with his consent, or by means of some legal proceedings, his management and his powers as manager cannot come to an end or much less be questioned by strangers like the tenants. The learned Subordinate Judge is, in our opinion, entirely wrong in construing the matter as if it is one involving some vested rights or title and treating the plaintiff as a person who had automatically become functus officio and who had ceased to have any sort of jurisdiction to manage immediately his three years period was over whether or not there was any one able or willing to take charge from him or even before he actually handed over such charge to anyone else.
8. Mr. Krishnamurthi has cited some cases and relied specially on -- '20 Mys LJ 194 (A)' and -- 'Parsee Zorastrain Anjuman v. Chief Secy., Govt. of Mysore', 52 Mys HCR 405 (B), referred to by the Subordinate Judge and has urged that in a suit like the present unless all the brothers who are trustees are joined as plaintiffs or as defendants one or more of them cannot by themselves bring a suit to recover possession of property. He has also urged that even as joint executors or administrators under the will one of the brothers could not bring these suits and he has relied on Section 90, Probate and Administration Act in support of that latter argument, and on -- '20 Mys LJ 194 (A)', that this objection could be taken at any stage of the proceedings. There is no need to consider in detail any of these cases in the view we have taken that the plaintiff is merely suing as a manager. He must be deemed merely to be acting for and on behalf of his brothers also, in pursuance of authority impliedly left or given or conceded to him by them. The plaintiff in whose favour the defendants (sic) have executed lease deeds have no right to question the plaintiff's right to management which is a matter of internal arrangement as between the brothers inter se.
The brothers are not described in the will either as trustees or as executors whatever may be their legal position with reference to their legal rights under the will. This matter of periodical management cannot, in our opinion, in the terms in which it is put and the context in which it appears, amount to anything more than a mere arrangement or direction given by the testator for the purpose of efficient and peaceful management and does not clothe the brothers with any special title or vested rights which are automatically to come into being immediately after the previous three periods are over and so as to put an end to the rights of management of a present manager even if the successor does not in fact choose or is unable or unwilling to take over charge himself. Such a construction would, far from giving effect to the testator's intentions, lead to an impossible deadlock and vacancy and encourage people like the defendants to take advantage of the impasse to benefit themselves and for their own ends. We must therefore hold that there is neither substance nor merit in that contention and that the finding of the learned Subordinate Judge that the plaintiff's suits are not maintainable is wrong.
9. The next contention on behalf of the tenants is that the plaintiff's suit for ejectment must fail as the Mysore House Rent Control Order, 1948, was extended to Chintamani in respect of non-residential premises also sometime in 1940. This was long after the present suits were filed. We think from a reading of Rules 9 and 16, Mysore House Rent Control Order there is no substance in this contention either. Rule 16 declares that
'Nothing in this Order shall prevent a landlord from filing a suit for eviction of a tenant before a competent Civil Court, provided that no decree or eviction of a tenant, passed by a Civil Court shall be executed unless a certificate to that effect is obtained from the Controller',
and Rule 9 Clause (1) says that a tenant in possession of a house shall not be evicted therefrom whether in execution of a decree or otherwise except in accordance with the provisions of this clause. The conjoint effect of the two rules would merely mean that while there is nothing to prevent a suit being filed for ejectment against a tenant and the Court granting a decree therefor, the same cannot be executed and the defendant evicted except on the production of a certificate from the House Rent Controller that he is so liable to be evicted which must be for one or more of the reasons given under Rule 9(1).
10. The next contention put forward on their behalf is that a decree could not have been made fixing the enhanced future rates of rents or mesne profits after suit. Reliance is placed for this argument on a case in -- '7 Mys LJ 262 (C)', where it has been held that in a suit for possession or rent or mesne profits the Court should, under Order 20, Rule 12. Civil P.C., pass a preliminary decree with regard to mesne profits subsequent to the institution of the suit, directing an enquiry to be made as to the amount thereof; and thereafter a final decree has to be passed in accordance with the result of such enquiry and that a decree fixing the mesne profits subsequent to the institution of the suit at a certain amount is not in accordance with law. There is no discussion in that judgment and it seems to have been 'practically admitted' that the decrees of the lower Courts awarding mesne profits at a fixed rate from date of suit till date of delivery of possession was not correct and could not be supported. So that the order is more like one based on consent of parties. It is not clear whether in that case there was also an issue as in this case which required determination by the court in the suit itself, via. 'Is the claim for future rent unconscionable and excessive?' There is apparently nothing in Order 20, Rule 12 which requires that the determination of such an issue must be left to proceedings after a preliminary decree for possession and past mesne profits are passed or bars a finding being made in the suit itself, the word used being 'may' in that rule. In -- 'Vellaveeran Chetty v. V. Veeran Chetty' AIR 1938 Mad 727 at p. 729 (D), it has been held that it is perfectly competent to a court without directing an enquiry to pass a decree finally determining the amount of profits payable subsequent to the institution of the suit, if it is made out that it is not necessary to make such an enquiry, and that it cannot be said that such a decree is not final or is incapable of execution nor would it be in contravention of the provisions of Order 20 Rule 12, Civil P.C. A preliminary decree becomes necessary where the exact amount is to be ascertained after the examination of fresh evidence; see -- 'Bagchi, A.P. v. F. Morgan' : AIR1937All36 .
11. Another contention raised for the tenants is that the rate of Rs. 30/- per month awarded by the Munsiffs is excessive. There is no clear evidence let in on either side as to the rate of rent or mesne profits for which the premises could have been let. It is not however denied that the premises are situated in an important business locality in Chintamani Town.
12. It is urged for the tenants that if the standards prescribed by the Mysore House Rent Control Order relating to fair rents are applied to this case the rents may be raised by a maximum limit of 150 per cent in which case about Rs. 21/- would be the maximum which could be allowed. While fair rent may have been fixed in that way if the tenants had approached the House Rent Controller in a bona fide and proper way it is difficult to see why the same standards should be applied when the Court is granting a decree for eviction and is fixing rent by way of damages or compensation. It is also represented before us that some other tenants have entered into agreements to pay rent at Rs. 30/- per month. There is no evidence for it and we are not inclined to allow some lease deeds said to have been subsequently executed by some other tenants in favour of the plaintiff and now sought to be put in for the plaintiff by way of additional evidence in support of that statement. Taking into account fill the facts and circumstances of this case we think that Rs. 25/- a month would be a reasonable rate and we order accordingly.
13. In the result Second Appeals Nos. 239 and 240 of 1949-50 are allowed, the judgment and decrees of the Subordinate Judge in Regular Appeals 88 and 89 of 1947-48 are set aside. Regular Appeals Numbers 151 to 158 of 1949-50 are dismissed. The judgments and decrees of the Munsiffs are restored but with the modification that the plaintiff will be entitled to recover rents by way of damages from date of suit till date of delivery of possession at Rs. 25/- per month from the defendants in each of the cases.
14. The Plaintiff will have his costs from the Defendants in all the Courts.
15. Order accordingly.