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Subramonia Iyer Vs. Subbayya Mudaliar - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKerala High Court
Decided On
Case NumberA.S. No. 543 of 1960
Judge
Reported inAIR1961Ker335
ActsTransfer of Property Act, 1882 - Sections 52; Travancore-Cochin Buildings (Lease and Rent Control) Order, 1950
AppellantSubramonia Iyer
RespondentSubbayya Mudaliar
Appellant Advocate D. Narayanan Potti, Adv.
Respondent Advocate T.M. Mahalinga Iyer, Adv. for Respondents 1, 2 and 4
DispositionAppeal dismissed
Cases ReferredPappi Narayanan v. Itti Avira Neithi
Excerpt:
- s. velu pillai, j. 1. this appeal deserves only to be dismissed. pending a suit for partition, the first defendant was alleged to have inducted the appellants here, into occupation of portions of two buildings which arc items 1 and 2 of a schedule. under the final decree for partition, these portions fell to the share of the plaintiffs-respondents. when they proceeded to execute the decree for the recovery of possession, they were opposed by the appellants who contended, that they could not be evicted under this decree, and that in any event, the provisions of the travancore-cochin buildings (lease and rent control) order, 1950, created a bar to such eviction. the objections have been overruled by the court below and hence this appeal. 2. the first contention, that a partition suit is not.....
Judgment:

S. Velu Pillai, J.

1. This appeal deserves only to be dismissed. Pending a suit for partition, the first defendant was alleged to have inducted the appellants here, into occupation of portions of two buildings which arc items 1 and 2 of A schedule. Under the final decree for partition, these portions fell to the share of the plaintiffs-respondents. When they proceeded to execute the decree for the recovery of possession, they were opposed by the appellants who contended, that they could not be evicted under this decree, and that in any event, the provisions of the Travancore-Cochin Buildings (Lease and Rent Control) Order, 1950, created a bar to such eviction. The objections have been overruled by the Court below and hence this appeal.

2. The first contention, that a partition suit is not hit by the provisions of Section 52 of the Transfer of Property Act and that the appellants are not bound by the decree for partition and recovery of possession is opposed to the weight of decided cases and has to be overruled. The second contention cannot be sustained for the reason, that there is no relationship of landlord and tenant us between the respondents and the appellants.

With the institution of the suit for partition the joint ownership came to an end, and though, as between the first defendant and the appellants, there was relationship of landlord and tenant the respondents were not in the position of landlords with respect to the buildings allotted to them on partition, for the simple reason, that they did not enter into any lease transaction with the appellants concerning them. The respondents do not fulfil the character of a landlord as defined by the aforesaid order. That definition roads :

'Landlord includes the person who is receiving or is entitled to receive the rent of a building whether on his own account or on behalf of another or on behalf of himself and others or as an agent, trustee, executor, administrator, receiver or guardian or who would so receive the rent or be entitled to receive the rent if the building were let to a tenant'.

With the disruption of the joint status upon the institution of the suit, the first defendant was not entitled to receive the rent of the buildings which had been finally allotted to the plaintiff under the final decree, and did not possess any of the capacities mentioned in the definition. The appellants on their part, did owe no duty to pay rent to the respondents and cannot fulfil the character of tenants as defined by the aforesaid, order. There being no relationship of landlord and tenant between the parties, the provisions of the Travancore-Cochin Buildings (Lease and Bent Control) Order, 1950, could 'not be invoked.

3. In a similar case, Pappi Narayanan v. Itti Avira Neithi, 1956 Ker LT 618, where the question arose under' the Travancore-Cochin Prevention of Eviction of Kudikidappukars Act, Sankaran, J., as he then was, overruled a similar objection on the part of a Kudikidappukaran by the following observations :

'With the institution of the suit the co-ownership was put an end to, and the plaintiff becamethe absolute owner of his share. It only remainecto define, and allot to that share a specific plot.Thus it is clear that on the strength of the permission obtained by the defendant alone, the counter-petitioners cannot claim that they have becomekudikidappukars as against the plaintiff or the plotallotted to his share.'

The question which has arisen before me is similarand the observations extracted above apply withequal force to the present case. The objections ofthe appellants to eviction have rightly been overruled by the lower Court. The appeal is dismissedwith costs to the respondents. As the appeal hasbeen dismissed the injunction ordered in this casewill stand dissolved.


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