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Sengayyan Chettiar Vs. M. Rasu Chettiar - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Case NumberCivil Misc. Petn. No. 11496 of 1950
Judge
Reported inAIR1952Mad863; (1952)IMLJ287
ActsMadras Buildings (Lease and Rent Control) Act, 1946 - Sections 7 and 7(3); Transfer of Property Act, 1882 - Sections 107
AppellantSengayyan Chettiar
RespondentM. Rasu Chettiar
Appellant AdvocateK.S. Desikan, Adv.
Respondent AdvocateR. Gopalaswami Iyengar, Adv.
Cases ReferredAiyar v. Mahadeva Chettiar
Excerpt:
- .....tenant against the order of eviction passed by the rent controller for default in the payment of rent, the landlord accepted, without prejudice to the order of eviction and as damages for use and occupation an amount sent to him as rent in pursuance of an order fixing fair rent passed by the rent controller. the learned judges held that the acceptance of such an amount is no ground for holding that by virtue of the provisions of section 116 of the transfer of property act, the payer is to be regarded as a tenant of the land-holder, from month to month entitled under the rent control act to continue in possession. the first judgment is based on the principle that if there is a conflict between the express provisions of madras act xxv of 1949 and that of the transfer of property act, the.....
Judgment:
ORDER

Subba Rao, J.

1. This is an application for issuing a writ of certiorari to quash the order of the Subordinate Judge of Kumbakonam made in an appeal against an order of the Rent Controller.

2. The petitioner is the landlord. He filed an application No. 47 of 1950 before the Rent Controller for evicting the respondent from a non-residential building on the ground that he required the premises for his own trade. The respondent contended that the application was not bona fide and that the petitioner had another building in which he could carry on his business. The Rent Controller made an order of eviction. In appeal the learned Subordinate Judge set aside that order mainly on the ground that there was an agreement between the landlord and tenant for a period of five years within the meaning of the proviso to Section 7(3)(a)(ii) of Madras Act XV of 1946. The agreement alleged was an oral contract of tenancy for a period of five years. The Subordinate Judge finds that there was such an agreement.

3. Mr. Desikan, the learned counsel for the petitioner contended that an oral lease for period of five years is invalid under Section 107 of the Transfer of Property Act and therefore any such alleged oral agreement, even if true, would not protect a tenant under the said proviso. Section 7 (3) (a) (ii) reads:

'A landlord may apply to the Rent Controller for an order directing the tenant to put the landlord, in possession

(ii) in the case of a non-residential building if he is not occupying for purposes of a business which he is carrying on, a non-residential building in the city, town or village, concerned which is his own or to the possession of which he is entitled;

Provided that where the tenancy is for a specified period agreed upon between the landlord and the tenant, the landlord would not be entitled to apply under this sub-section before the expiry of such period.'

Prima facie an agreement, which affords protection under the said proviso, must be a valid agreement. A lease of immovable property for more than one year can be created under Section 107 of the Transfer of Property Act only by a registered instrument. It is true that under Section 116 of the Transfer of Property Act if a lessee of property remains in possession thereof after the determination of the lease granted to the lessee and the lessor accepts rent from the lessee or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year or from month to month, according to the purpose for which the property is leased. The rights of the lessee under this section are not derived under any agreement but by reason of the provisions of this section. As oral lease relied on is invalid under the provisions of the Transfer of Property Act, the tenant cannot rely upon it in regard to the period of the tenancy.

4. The learned counsel for the respondent then broadly contended that Madras Act XXV of 1949 is a self-contained one and the provisions of the Transfer of Property Act cannot be invoked for applying the previsions of the former Act. In support of this argument, he has relied upon two Bench decisions of this court. In -- 'Krishnamurthi v. Parthasarathi', : (1949)1MLJ412 , Horwill and Rajagopalan JJ. held that Section 111(h) of the Transfer of Property Act has no place in the scheme of procedure laid down in Section 7 of Madras Act XV of 1946 and that notice to quit is not necessary before filing an application for eviction under S. 7 of Madras Ac.t XV of 1946. In -- 'Kuppu-swami Aiyar v. Mahadeva Chettiar', 63 M. L.W. 67, Horwill and Balakrishna Aiyar JJ. held that the Transfer of Property Act can have no application to the state of affairs governed by the Rent Control Act and Section 116 of the Transfer of Property Act cannot be divorced from the other provisions of the Act.

In that case pending an appeal by the tenant against the order of eviction passed by the Rent Controller for default in the payment of rent, the landlord accepted, without prejudice to the order of eviction and as damages for use and occupation an amount sent to him as rent in pursuance of an order fixing fair rent passed by the Rent Controller. The learned Judges held that the acceptance of such an amount is no ground for holding that by virtue of the provisions of Section 116 of the Transfer of Property Act, the payer is to be regarded as a tenant of the land-holder, from month to month entitled under the Rent Control Act to continue in possession. The first judgment is based on the principle that if there is a conflict between the express provisions of Madras Act XXV of 1949 and that of the Transfer of Property Act, the provisions of the former Act shall prevail. The latter decision holds that Section 116 of the Transfer of Property Act refers only to a determination of tenancy as provided by Section 111 of the said Act and that cannot apply to a determination of a tenancy under any other Act. These judgments in my view have no bearing on the question to be decided in this case.

There is no provision in Madras Act XXV of 1949 which enacts that leases for more than a year could be executed without a registered document nor there is any provision indicating that the statutory provisions of the Transfer of Property Act in respect of leases are abrogated. Without any express provisions in Madras Act XXV of 1949 validating leases invalid under the Transfer of Property Act, I cannot hold that the term fixed under an oral lease can be taken advantage of by a tenant in an application for eviction under Section 7. The learned counsel's argument based upon the definition of landlord and tenant also does not carry the matter further. For the purpose of Act XXV of 1949, a tenant includes a person continuing in possession on the termination of the tenancy in his favour but that definition cannot by implication legalise tenancies otherwise invalid under statutory law. I therefore hold that there is no valid agreement between the parties fixing a specified period for the tenancy. In the view expressed by the learned Judge on the aforesaid question, he did not think fit to give specific findings on the other questions raised. The order of the Subordinate Judge is hereby quashed and he is directed to dispose of the appeal in accordance with law. The respondentwill pay petitioner's costs. Advocate's feeRs. 50/-.


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