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S. Ramaswami Gounder Vs. M. Pattabhiraman Chettiar - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1976)2MLJ243; (1976)2MLJ437
AppellantS. Ramaswami Gounder
RespondentM. Pattabhiraman Chettiar
Cases ReferredDelhi Motor Co. v. U.A. Basrurukar
Excerpt:
- - according to the learned counsel, if really there was to be an enforceable lease as against the bona fide purchaser for value like the present revision petitioner, there ought to have been a registered deed. udal singh air1921all248 lays down- where an agreement has been acted upon and parties have enjoyed benefit thereunder, neither party can be allowed to resile from the agreement although it may be unregistered......prasad v. masoodan singh : air1928pat89 .4. in this case, undoubtedly, exhibi b-3, the registered lease agreement was operative between 2nd february, 1966 and 2nd february, 1969. on 1st february, 1969, it was agreed between the previous landlord, viz. s.v.m.m. mohammad and the tenant that the lease shall be further renewed for a period of three years. this agreement, according to the lower appellate court, was not a concocted one. that may be so. but the real question is, whether the parties contemplated a registered agreement and if that was not executed, whether it would be open to the tenant to put forth his right as a tenant on the ground that for want of regiitration rights cannot be denied. in my view, unless there was a registered agreement whereby specific leasehold right was.....
Judgment:
ORDER

S. Mohan, J.

1. The landlord is the revision petitioner before me. He purchased door No. 303, Jawahar Bazaar, Karur (a non-residential building) and adjacent door No. 304, under Exhibit A-7, dated 19th January, 1970, for valuable consideration from one S.V.M.M. Mohammed, with the object of demolishing and reconstructing it into a single unit and to carry on his business. The respondent in this civil revision petition was a tenant of door No. 303 from its previous owner on a monthly rental of Rs. 40. Though the two shops are structurally different, they constitute a single building. Immediately after his purchase, he informed the tenant to vacate, but his request was not complied with. Hence the petition for eviction on the ground of personal use and occupation and his requirement as bona fide. The contest by the tenant was that he had been in the schedule premises for about 40 years and the purchase by the landlord was with the full knowledge of the tenancy rights Originally there was an agreement under Exhibit B-3, dated 2nd February, 1966, which was for a period of three years. Thereafter, the previous landlord, viz., the vendor of the present revision petitioner (S.V.M.M. Mohammad) and the tenant (the present respondent) agreed to have the tenancy renewed for a period of three years and have a registered deed executed. As per the terms of that agreement, the lease would come to an end only by 31st January, 1972, and till then the eviction was not possible. The Rent Controller dismissed the eviction petition holding that the requirement of the landlord was not bona fide and in any event, there was a valid and subsisting agreement from 1st February, 1969 to 31stjanuary, 1972, and during the subsistence of that agreement, the petition for eviction was not maintainable. Against that order, the landlord (present revision petitioner) preferred an appeal to the Principal Subordinate Judge of Tiruchirappalli who, in C.M.A. No. 285 of 1973, confirmed the dismissal of the eviction petition. Aggrieved by the same, the present revision petition has been preferred.

2. Mr. T.R. Rajagopalan, learned council for the revision petitioner, raises the following points before me. The Courts below have erred in holding that the unregistered agreement entered into between the parties, viz., S.V.M.M. Mohammad and the tenant (present respondent herein) agreeing to renew the lease for a further period of three years would amount to a subsisting lease and that on that score, the petition for eviction was not maintainable. According to the learned Counsel, if really there was to be an enforceable lease as against the bona fide purchaser for value like the present revision petitioner, there ought to have been a registered deed. In the absence of the same, it cannot be said that any agreement would be binding upon the present revision petitioner. The resultant position would be that the tenant would be holding over from month to month and the notice of termination issued would be valid. In support of his submission, the learned Counsel relies on a decision reported in R.M. Mehta v. Hindustan Photo Films Mfg. Co. : AIR1976Mad194 The next submission of the learned Counsel is that Section 5 3-A of the Transfer of Property Act (the doctrine of part-performance) cannot be invoked in a case of this character because the tenant's right's were sought to be pressed into service only under an unregistered lease and it is not. open to him to claim such right. In support of this submission, reliance is placed on Delhi Motor Co. v. U.A. Basrurukar : [1968]2SCR720 .

3. In reply to these submissions, Mr R. Gopalaswami Iyengar, learned Counsel, appearing for the respondent-tenant, argues that having regard to the imperative language of Section 10(3)(d) of the Tamil Nadu Act (XVIII of I960), the petition was not maintainable, as rightly held by the Courts below. According to him, for mere want of registration, it cannot be held that there was no enforceable agreement for two reasons. Section 10(3)(d) does not require a registered agreement. Even otherwise, for want of registration, the rights of a lease cannot become unenforceable especially when it has been acted upon by payment of rent till19th January, 1970, between the two parties to the agreement, viz., the previous landlord (S.V.M.M. Mohammad) and the present respondent (tenant). This apart, it is open to the tenant to avail himself of the doctrine of part-performance which is put up in defence to disable the landlord from seeking an eviction and thereby dispossessing the tenant. Support is sought to be derived for these submissions from the rulings reported in Baldeo Singh v. Udal Singh : AIR1921All248 and Damodar Prasad v. Masoodan Singh : AIR1928Pat89 .

4. In this case, undoubtedly, Exhibi B-3, the registered lease agreement was operative between 2nd February, 1966 and 2nd February, 1969. On 1st February, 1969, it was agreed between the previous landlord, viz. S.V.M.M. Mohammad and the tenant that the lease shall be further renewed for a period of three years. This agreement, according to the lower appellate Court, was not a concocted one. That may be so. But the real question is, whether the parties contemplated a registered agreement and if that was not executed, whether it would be open to the tenant to put forth his right as a tenant on the ground that for want of regiitration rights cannot be denied. In my view, unless there was a registered agreement whereby specific leasehold right was conferred, it would be futile on the part of the tenant to contend that his rights as a tenant would remain unaffected. What was agreed to between the parties was only to confer a further right of tenancy. Where such further rights were not conferred, by merely acting upon that agreement it does not in any way mean that his right would remain secured for a further period of three years. Acting would only amount to this, viz, after the efflux of the agreement, Exhibit B-3, the tenant was holding over from month to month in which event, he is bound to pay rent and it is open to the landlord to accept. If that be the position, where a notice of termination had been given, which notice was otherwise valid, certainly there was a proper termination f the tenancy. If really the parties wanted to secure their rights so as to be enforceable as against the new purchaser who has been held to be a bona fide purchaser for value, there ought to have been a registered agreement. The learned Counsel for the revision petitioner, Mr. T.R. Rajagopalan, is therefore correct in his submission. The judgment of Ismail, J., reported in R.M. Mehta v. Hindustan Photo Films Mfg. Co. : AIR1976Mad194 is clear on this aspect. There, the learned Judge has held that where the rights of lease are agreed to be renewed, such renewal will have to be by means of a registered instrument, if it we're to exceed a period of one year. In this case, since it was far more than a period of one year, it has to be by means of a registered instrument.

5. Neither the decision in Baldeo Singh v. Udal Singh : AIR1921All248 nor Damodar Prasad v. Masoodan Singh : AIR1928Pat89 is of any assistance to the tenant (respondent) Baldeo Singh v. Udal Singh : AIR1921All248 lays down-

Where an agreement has been acted upon and parties have enjoyed benefit thereunder, neither party can be allowed to resile from the agreement although it may be unregistered.

That case related to a family arrangement which, under law, does not require registration. Besides that, as pointed out earlier, the parties acting upon the unregistered agreement in this case was only as a tenant from month to month. Damodar Prasad v. Masoodan Singh : AIR1928Pat89 , lays down-

Even if the registration of a lease deed be invalid, the tenancy can be proved otherwise without proving the written lease which may be inadmissible for want of registration.

The tenancy can also be proved by the doctrine of part-performance.

The doctrine of part-performance cannot be availed of in this case, since as laid down by the Supreme Court in Delhi Motor Co. v. U.A. Basrurukar : [1968]2SCR720 the rights as a lessee are not enforceable on the ground of the tenant having performed his part of the contract To my mind, the question relating to part performance falls into insignificance if this position is noted, viz., that the tenant was only holding over from month to month. Therefore, there is no question of any part-performance.

6. I am unable to agree with the contention of the learned Counsel for the respondent, Mr. R. Gopalaswami Iyengar, that Section 10(3)(b) would be a bar in this case and that section takes in any agreement. This would be reading too much into the section. That section contemplates a valid enforceable agreement, which I have found here is not the case. In this view, disagreeing with the Courts below, I hold that the landlord is entitled to an order of eviction. Accordingly the revision petition will stand allowed. The tenant will have six months time from today to hand over vacant passession. I make no order as to costs.


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