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K.S. Rangaiah Setty Vs. L.S. Vasudevamurthy - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Judge
Reported inAIR1977Kant50; 1976(2)KarLJ271
ActsKarnataka Rent Control Act, 1961 - Sections 3 and 21; Transfer of Property Act, 1882 - Sections 108 and 111
AppellantK.S. Rangaiah Setty
RespondentL.S. Vasudevamurthy
Appellant AdvocateK. Subba Rao, Adv.
Respondent AdvocateM.R. Narasimha Murthy, Adv.
Excerpt:
- indian registration act, 1908 [c.a. no. 16/1908] sections 17 & 49: [d.v. shylendrakumar,j] palu patti - requirement as to registration held, the document having been described as palu patti i.e., a record of the partition, cannot be construed as a partition deed and therefore requirement of registration does not arise and also as it was not any transfer of inter-se immovable property, particularly, as it was a division amongst the members of the family who all own the properties, there being no transfer of interest in immovable property, necessitating registration in terms of section 17 of the registration act, 1908 and not being on any stamp paper also being not any impediment to admit the document as even if it was not stamped or insufficiently stamped it could have been at the..........v, s. s. munnilal, (air 1952 nag 101) which was almost a -parallel case. in that case the monthly tenancy commenced from the 1st of each month and the tenant was asked to vacate not by the end of the month but by the first of next month. as such, 24 hours more were given to the tenant. it was held that the tenant was not left with any doubt as to the termination of the tenancy at the end of the month and the notice to quit was valid. but the difficulty is that the supreme court was dealing with the karnataka rent control act 1961 and the relevancy therein was of a notice to quit under section 106 of the transfer of property act. the decision of the supreme court being one under this very enactment and the importance of the notice under section 106 of the transfer of property act.....
Judgment:
ORDER

1. L. S. Vasudevamurthy filed an application under Section 21 (1) provisos (a) and (h) of the Karnataka Rent Control Act, for eviction of K. S. Rangaiah Setty from the schedule premises in H. R C. 441/65 on the file of the First Munsiff, Bangalore. The contention of the landlord was that the rent had fallen due from tenant which was in arrears and that the schedule premises were bona fide and reasonably required for his use and occupation. The landlord gave a notice to quit, Ext. P-2, dated 1-10-1964 which inter alia stated:

'I terminate the tenancy and call upon you to vacate the said premises No. 1935 Sampige Road, Malleswaram, by 7-11-1964 failing which my client will be forced to take suitable legal steps for evicting you.'

It was undisputed between the parties that the tenancy commenced from the 7th of March of each month.

2. The tenant contested that so much rent was not due, that the notice to quit was invalid, that the landlord never required the premises for his bona fide and reasonable use and occupation On a comparative hardship it was also pleaded that the tenant is not liable to be evicted.

3.During the pendency of the petition under Section 21, K. S. Rangaiah Setty died and his legal representative L. R. Viswanath who is his son, was brought on the record. It was contended before the learned Munsiff that L. R. Viswanath was not a tenant as defined in Section 3 (r) of the Karnataka Rent Control Act, 1961, as the schedule premises were non-residential and L. R. Viswanath was not residing in the schedule premises along with his father. For this, assistance was taken from S. P. Hamid Sha v. Seshagiri, (1973) 1 Mys LJ 127 = (AIR 1973 Mys 228) and M. V. Sundararaj v. Kamalamma, (ILR (1975) Kant 2028). It was contended that the word 'living' in S. 3(r) of the Act is in the context a clear indication of what is commonly known as residence. The legal effect will be that in a business premises the legal representative although a son cannot be stated to be living with the father who was a statutory tenant. The protection which the father had against dispossession by the landlord was personal to him and could not be transmitted to his legal heir who answers the description of legal representative. The learned Judge further held that by virtue of Section 51 although the landlord is enabled to continue the proceeding against the son, the latter is deprived of his right to claim possession as h& derives no title from 'his father being a statutory tenant. The contention found favour with the learned Munsiff and holding that a reasonable and bona fide requirement of the landlord was proved, the petition was allowed. The question as to the validity of the notice to quit was also held in favour of the landlord. Thereafter, the tenant came in appeal before the learned District Judge. but remained unsuccessful. The findings of the learned Munsiff were reiterated on all the points. Now, the petitioner-tenant has come up in revision.

4. The foremost question to be considered in this case would be the validity of the notice to quit. That is so because the tenancy has been determined by taking recourse under Section ill of the Transfer of Property Act. As it was an admitted case between the parties that the tenancy commenced from 7th day of each month, it ended on the expiry of the 6th day of each month. But the notice to quit, Ext, P-1, definitely expired with the end of the 7th day of the month, That being so, the notice to quit did not expirer with the end of the month of tenancy. ID. G. Dewakato v. V, M. Janagaval, : AIR1975SC1111 the Supreme Court found that the notice to quit did not expire with the end of the month of tenancy which was the 9th day and rather expired on the 8th day. The notice was held illegal with the natural inference that the tenancy was not determined. With that strict view taken by the Supreme Court with reference to Section 106 of the Transfer of Property Act, I am afraid, a different view cannot be taken in the present case. The notice no doubt gave 24 hours more time for eviction but nevertheless it did not expire with the end of the month of tenancy. The notice being illegal, the tenancy was not determined.

5.The learned counsel for the respondent-landlord contended that a technical view should not be taken for the notice. He referred to several decisions and made a particular reference to Gayaprasad Ganapatlal v, S. S. Munnilal, (AIR 1952 Nag 101) which was almost a -parallel case. In that case the monthly tenancy commenced from the 1st of each month and the tenant was asked to vacate not by the end of the month but by the first of next month. As such, 24 hours more were given to the tenant. it was held that the tenant was not left with any doubt as to the termination of the tenancy at the end of the month and the notice to quit was valid. But the difficulty is that the Supreme Court was dealing with the Karnataka Rent Control Act 1961 and the relevancy therein was of a notice to quit under Section 106 of the Transfer of Property Act. The decision of the Supreme Court being one under this very enactment and the importance of the notice under Section 106 of the Transfer of Property Act was considered, it is not possible to deviate from that decision. Therefore, the strict view as to the notice to quit has got to be taken in a case under the Karnataka Rent Control Act, 1961. My finding therefore will be that the notice to quit under Section 106 of the Transfer of Property Act was not valid and the tenancy contract very much continued even on the date of the death of the original tenant.

6. With that finding in hand, the facts seem to be far-reaching. If the tenancy in favour of L. R. Viswanath was not determined, he never became a statutory tenant. The entire basis of the decisions of the two courts below thus fails to the ground. The status of lessor and lessee is status of inheritance and the interest of the lessor and the lessee after their death rests in their heirs, uncles there is contra indication in the tenancy contract itself. It is undisputed that the tenancy was not a fixed term and L. R. Viswanath was a tenant at will. His tenancy was determinable at will either if the landlord or the tenant. The landlord chose to determine the tenancy by notice to quit under Section 106 of the Transfer of Property Act. He failed in that attempt. Therefore, the tenancy continued in favour of his heir, namely, the present petitioner. The next question will' of course be as to whether the present petitioner can be held to be a tenant under the Karnataka Rent 'Control Act. 1961. For this one has to refer to the dentition of 'tenant' as provided for in that Act. The case of the present petitioner will fall under the very first part of that definition. He was certainly a person by whom or on whose account rent was payable for the premises. The tenancy being heritable, he was liable to pay rent. As such, he was a tenant and could not, be evicted under Section 21 unless the tenancy was properly determined under the Transfer of Property Act. The petition under Section 21 deserves to be dismissed on this ground.

7. The ratio of the decision in S. P. Hamidsba Chandshawala. (AIR 1973 Mys 228) (supra) will not apply because the father was not a statutory tenant. Similarly, the ratio of the other decision in M. V. Sundararaj (ILR (1975) Kant 2028) (supra) will not apply because the tenancy was not determined and the deceased tenant was not a statutory tenant. The learned Judge in that case referred to Anand Nivas (P) Ltd. v. Anandji Kalyanji Pedhi, : [1964]4SCR892 . In that case, their Lordships were dealing with the case under a statutory tenant and held that such a person is not a tenant at all as he has no estate or interest in the premises, occupied by him. He has merely the protection of the statute. In that connection, their Lordships further observed that the right of a lessee from a landlord on the other hand is an estate or interest in the premises and in the absence of a contract to the contrary is transferable and the premises may be sublet by him. The decision necessarily points out that the right of the lessee is heritable and unless that right could be stated to be extinguished under a contract, the heirs will succeed to that right. in the present case, in my opinion, the petitioner has succeeded to that right belonging to his father who was not a statutory tenant.

8. The contention of the petitioner-tenant that it was a joint family tenancy is not borne out from the record. The plea was not even taken in the petition and no evidence was forthcoming on such a plea. Merely because the present petitioner was assisting his father in the business, will not go to prove that the tenancy was in favour of the joint family. The contention of the learned counsel that there was a presumption of joint ness between the father and son will not be pertinent in so far as the father had not taken the lease as 'kartha' of the joint family. At any rate, that was not the case set out in the petition. It was rather at the stage of the first appeal that this contention has been sponsored that the tenancy was in favour of a joint family and the learned District Judge rightly rejected it.

9. As regards the bona fide and reasonable claim of the landlord, no finding need be given. In fact, any such finding is no longer required in view of the fact that the present petitioner continues to be a tenant, His tenancy has not been determined in any one of the modes prescribed under S. 111 of the Transfer of Property Act. The petition under S. 21 was liable to be dismissed,

10. The revision is therefore, allowed and the petition under Section 21 shall be dismissed. In the special circumstances, no order is made as to costs.

11. Revision allowed.


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