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N. Natesa Naicker and ors. Vs. Vedagiri - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1975)1MLJ301
AppellantN. Natesa Naicker and ors.
RespondentVedagiri
Cases ReferredAzizunnissa Begum v. Govindan Nair
Excerpt:
- .....of d.w. 5 by name subadrammal, had purchased a moiety in 10 1/2 acres of land including the suit lands, under exhibit a-1, from one srirengammal. d.w. 5 who nominated balasubramaniam to have the purchase in his name from srirengammal got the right to purchase the suit property and other properties as per the agreement entered into between subadrammal and balasubramaniam by way of compromise in s.a. no. 61 of 1969, on the file of this court as evidenced by exhibited a-4.4. vedagiri, who purchased the proper-tics under exhibit a-2, instituted o.s. nos. 4084, 4683, 4684, 4685 and 4686 of 1968 for an injunction restraining the defendants therein from interfering with his possession and enjoyment of the land marked in the respective plaints, for recovery of vacant possession of the.....
Judgment:

P.R. Gokulakrishnan, J.

1. Second Appeal Nos. 1523 to 1528 of 1972 arise out of O.S. Nos. 4686 of 1968, 4683 of 1968, 4684 of 1968, 4084 of 1968, 5566 of 1968 and 5036 of 1968, on the file of the City Civil Court, Madras. The only defendant in O.S. No. 4685 of 1968 has preferred S.A. No. 198 of 1973. The third defendant in O.S. No. 4084 of 1968 has filed S.A. No. 199 of 1973 independently, while defendants 1, 2 and 4 have preferred S.A. No. 1526 of 1972, aforementioned.

2. In short, all the appellants who profess themselves to be tenants entitled to be protected under the Madras City Tenants Protection Act (hereinafter referred to in this judgment as the Act), have preferred the above second appeals, since the Courts below have negatived their claim holding that they are only sub-tenants and as such, the plaintiff-Vedagiri who is the present purchaser of the suit property, is entitled to evict them and get the necessary declaration he has prayed for in the various suits.

3. Suffice it to say that Vedagiri purchased, under Exhibit A-2, 3 grounds from one Balasubramaniam. The appellants have erected huts in the said 3 grounds of property and they claimed protection under the Act. The vendor of Vedagiri, one Balasubramaniam, as nominee of D.W. 5 by name Subadrammal, had purchased a moiety in 10 1/2 acres of land including the suit lands, under Exhibit A-1, from one Srirengammal. D.W. 5 who nominated Balasubramaniam to have the purchase in his name from Srirengammal got the right to purchase the suit property and other properties as per the agreement entered into between Subadrammal and Balasubramaniam by way of compromise in S.A. No. 61 of 1969, on the file of this Court as evidenced by Exhibited A-4.

4. Vedagiri, who purchased the proper-tics under Exhibit A-2, instituted O.S. Nos. 4084, 4683, 4684, 4685 and 4686 of 1968 for an injunction restraining the defendants therein from interfering with his possession and enjoyment of the land marked in the respective plaints, for recovery of vacant possession of the land and for recovery of damages.

5. Kanniammal, the second defendant in O.S. No. 4683 of 1968 filed by Vedagiri, and Natesa Naicker, the only defendant in O.S. No. 4686 of 1968 and fourth defendant in O.S. No. 4084 of 1968, filed O.S. Nos. 5036 and 5566 of 1968 respectively for directing Vedagiri to remove the fences put on the suit and and also for damages for having criminally trespassed on the lands in which they alleged that they have the right to be in possession.

6. Thus, it is seen that all the parties in the abovesaid second appeals, agitated their respective rights in the suit lands measuring 3 grounds purchased by Vedagiri under Exhibit A-2. As regards the title of Vedagiri in respect of the suit lands, it has been established beyond all doubt that Vedagiri purchased the suit property under Exhibit A-2. The main question that was agitated by the respective parties was as to whether the defendants in O.S. Nos. 4084 and 4683 to 4386 of 1968 and the plaintiff in O.S. Nos. 5036 and 4466 of 1968 are 'tenants' under Vedagiri entitled to protection under the Act, or not.

7. According to Vedagiri there is absolutely no privity of contract between these persons and himself, that these parties came as tenants only under Subadrammal and that Vedagiri never derived any title or interest in respect of the suit land from the said Subadrammal. On the other hand, Vedagiri contended that Balsubramaniam purchased the suit lands from Srirengammal, and not from Subadrammal, and that excepting that she had the agreement to purchase the suit lands and other lands belonging to Srirengammal under Exhibit A-4, Subadrammal never became the owner of the suit lands. No doubt, Balasubramaniam is the nominee of Subadrammal to purchase the suit lands and other lands, but that will not, in any way make Balasubramaniam shoulder the liabilities of Subadrammal. Balasubramaniam became directly the purchaser from Srirengammal and whatever liabilities Srirengammal had in the suit properties, would pass on to Balasubramaniam and then to Vedagiri who is the purchaser from Balasubramaniam. The appellants herein are not the tenants under Srirengammal and the compromise under Exhibit A-4 in S.A. No. 61 of 1969 never recognized Subadrammal as a tenant entitled to protection under the Act. Even if Subadrammal is recognized as tenant under Srirengammal, entitled to protection under the Act, the appellants herein, independent of Subadrammal, cannot have any right to avail the benefits of the Act as against Srirengammal. Balasubramaniam, and subsequently Vedagiri can trace their right, title and interest only to Srirengammal and as such the appellants are not entitled to be in possession of the suit lands, nor are they entitled to claim the rights under the Act.

8. According to the appellants, Balasubramaniam has stepped into the shoes of Subadrammal, since Balasubramaniam was only the nominee of Subadrammal, and, as such, Vedagiri who purchased under Balasubramaniam, must be deemed to have derived all the rights and liabilities of Subadrammal and therefore the appellants, who are tenants under Subadrammal, are entitled to agitate their right under the Act even as against Vedagiri.

9. There is no difficulty in appreciating the legal position submitted by the respective parties. If it is found, as a matter of fact, that Balasubramaniam stepped into the shoes of Subadrammal and the purchase made by him must be deemed to be a purchase from Subadrammal, the appellants are entitled to get the benefits of the Act and they cannot be treated as trespassers. If, on the other hand, it is found, as a matter of fact, that Balasubramaniam is a purchaser directly under Srirengammal and he cannot be considered as a purchaser form Subadrammal in view of the nomination made by Subadrammal to purchase the property by Balsubramaniam as per Exhibit A-4, then the appellants are only trespassers liable to be evicted, since they are only 'subtenants' under Srirengammal.

10. Both the Courts below have elaborately discussed the evidence on record and interpreted the documents Exhibits A-1, A-2 and A-4 and have come to the conclusion that Balasubramaniam is a purchaser directly under Srirengammal and the appellants are only sub-tenants under Srirengammal. It was also found by the Courts below that the appellants are thus only trespassers liable to be evicted by Vedagiri and that Subadrammal never became the owner of the suit lands, except assigning her right to purchase the suit lands to Balasubramaniam. On these findings, both the Courts below have decreed the suits O.S. Nos. 4084 and 4683 to 4686 of 1968 and dismissed O.S. Nos. 5036 and 5566 of 1968.

11. Aggrieved by the decision of the Courts below, the defendants have preferred the above second appeals.

12. Thiru N. C. Raghavachari appealing for the appellants submitted that Subadrammal has assigned all her rights and interest to Balasubramaniam, that Balasubramaniam, by virtue of the said assignment, stepped into the shoes of Subadrammal, that having stepped into the shoes of Subadrammal, Balasubramaniam has to be considered as the landlord of the appellants, that Vedagiri purchaser from Balasubramaniam, must be deemed to have taken all the rights and liabilities of Balsubramaniam who in turn had taken the rights and liabilities from Subadrammal and that as per the decision in Parthasarathy v. Shyamlamba : (1964)1MLJ250 , the tenants are entitled to invoke Section 9 of the Act for the purpose of purchasing the land under their respective superstructure. Thiru N.C. Raghavachari, the learned Counsel, further submitted that whatever obligations Subadrammal had in respect of her tenants were passed on to Balasubramaniam by reason of Exhibit A-4. Relying on Halsbury's Laws of England, the learned Counsel submitted that a person who has got an agreement to purchase is an owner of the land in equity and that Balasubramaniam became the representative-in-interest of Subadrammal by virtue of Exhibit A-4. Thus, according to the learned Counsel, the assignor's obligations and rights in respect of the land assigned passed on to the assignee Balasubramaniam The learned Counsel further submitted that in law Balasubramaniam is the representative-in-interest of Subadrammal under Section 15 of the Specific Relief Act and therefore he stepped into the shoes of Subadrammal and hence he cannot ignore the obligations of Subadrammal to the tenants, who are the appellants herein. The learned Counsel also quoted Sections 40 and 109 of the Transfer of Property Act and contended that all the liabilities and rights of Subadrammal have been assigned to Balasubramaniam and as such the appellants are entitled to invoke Section 9 of the Act in view of the decision in Parthasarathy v. Shyamalamba.

13. The decision in Parthasarathy v. Shyamalamba : (1964)1MLJ250 , is relied on for the proposition that a sub-lessee, though not he claims the benefit of Section 9 of the Act from the landlord, is entitled to invoke Section 9 as far as his main lessor is concerned subject to the main lessor's interest and right in the demised property. The said decision makes it clear that a sub-tenant cannot invoke the provisions of Section 9 of the Act as against the landlord. Thiru N.C. Raghavachari, in seeking to extend the benefits conferred upon sub-tenants as against the chief-tenant under whom they are directly the tenants, submitted that Subadrammal's right has been assigned to Balasubramaniam and that the appellants are entitled to invoke Section 9, treating Balasubramaniam as the assignee of the rights and liabilities of Subadrammal. This argument can gain strength only if there is an assignment by Subadrammal of all her rights and liabilities in respect of the suit lands. On the other hand, we find that Subadrammal has surrendered all her rights as a tenant and has also undertaken to evict every one of the tenants and hand over possession to Balasubramaniam. The only assignment is of her right to purchase the suit lands as per the compromise decree in the second appeal referred to supra, and not any of her rights or liabilities as tenant under Srirengammal,

14. The next case cited Thiru by N.C. Raghavachari is Sri Lakshmi Talkies v. W.M.S. Tampoe (1961) 2 M.L.J. 349, for the proposition that Vedagiri who derived interest under Balasubramaniam as per the doctrine of approbate and reprobate, cannot disown the appellants and as such the appellants are entitled to invoke Section 9 of the Act against the respondent herein. This argument, as stated above, will gain strength when there was an assignment of the tenancy rights and liabilities by Subadrammal to Balasubramaniam. Further, the very same decision also states:

Where the subject-matter of an assignment is itself of a composite character partly consisting of a benefit and partly of an obligation inextricably mixed up with the benefit and the two are not severable the assignee cannot sift the benefit alone from the obligation and appropriate it to himself avoiding the obligation. This is really the doctrine of 'approbate and reprobate' which holds that if a person chooses to take the benefit conferred under the instrument he should likewise discharge the obligation or bear the onus which such instrument imposes.

Thus, it is clear there is no question of assignment of rights and obligations in respect of the lease by Subadrammal. The assignment if any, was only in respect of the right to purchase the suit lands as per the compromise decree in the second appeal. Exhibit A-4 clearly establishes that the assignment was only in respect of the right conferred by the compromise decree in S.A. No. 61 of 1968 and there is absolutely nothing to infer from Exhibit A-4 that Subadrammal assigned herrights and liabilities in relation to her tenants. Reading the document Exhibit A-4 as it is, there is neither an obligation shifted to Balasubramaniam nor any such obligation inextricably mixed up with the benefit conferred under Exhibit A-4. Hence the decision referred to above cannot help the appellants.

15. Thiru Parasaran, the learned Counsel appearing for the respondent Vedagiri pointed out that the principles quoted by Thiru N.C. Raghavachari from Halsbury's, Laws of England do not hold good in India and that an agreement of sale in respect of any immovable property does not create any interest in the land and no equitable interest is created. The learned Counsel read passages from Mulla on Transfer of Property Act, Sixth Edition, at page 309, where it is stated....

The last clause of the section (Section 54) abolishes the English doctrine that a contract for sale transfers an equitable estate to the purchaser. The law of India does not recognize equitable estates, and the English rule that the contract makes the purchaser owner in equity of the estate does not apply.

In Rambaran v. Ram Mohit : [1967]1SCR293 , the Supreme Court has held that a contract for sale does not create any interest in land. The learned Counsel also cited the decision in Rambaran Prosad v. Ram Mohit Hazra and Ors. : [1967]1SCR293 , wherein it has been held that reading Section 14 along with Section 54 of the Transfer of Property Act, it is manifest that a mere contract for sale of immovable property does not create any interest in the immovable property. Thiru Parasaran, to strengthen the above-said principle of law, also cited the decision in Swami Motor Transport (P) Ltd. v. Sri Sankaraswamigal Mutt : AIR1963SC864 where the Supreme Court has held the statutory right under Section 9 of the Act for the purchase of the land is not a right of property and that it is settled law that a contract to purchase a property does not create an interest in immovable property.

16. Thiru Parasaran, the learned Counsel for the respondent, contended that under Exhibit A-1 compromise in the second appeal, which was between Srirengammal and Subadrammal, no right under the Act was either conferred or recognized in favour of Subbadrammal. The learned Counsel also submitted that such a right is not assignable. For this proposition he cited the decision in Kuppa Bai v Rajagopal Nadar : (1969)2MLJ541 , wherein it has been held that a person deriving title from a tenant, whether the assignment was before or after the amending Act, cannot claim the benefits of Section 9 of the Principal Act, at any rate in a case where no action in ejectment has been commenced prior to the amendment.

17. Thiru Parasaran also submitted that Section 9 applications taken out by the defendants in the various suits were dismissed by the trial Court. No appeal was filed by these defendants, except Ali Hussain, who is the defendant in O. S. No. 4685 of 1968. An appeal was filed by his Ali Hussain against the dismissal of this Section 9 application, and the same was also dismissed by the lower appellate Court. Ali Hussain has filed C. R. P. No. 387 of 1973, which was heard along with the other second appeals. As far as the appellants, other than Ali Hussain, are concerned, they have lost their right of purchase under Section 9 of the Act, inasmuch as they have not agitated their right after the dismissal of their application under Section 9. It is further submitted by Thiru Parasaran that the fact that the appellants had filed Section 9 applications clearly establishes that they have waived the notice under Section II of the Act. For this proposition, he cited the decision in Vedachala Naicker v. Duraiswami Mudaliar : AIR1951Mad593 wherein it has been held that the provisions of Section 11 are enacted for the benefit of the tenant and the filing of an application by the tenant under Section 9 of the Act in the suit filed by the landlord against him in ejectment amounts to a waiver by the tenant of the benefit conferred on him.

18. Even as regards Ali Hussain, he is only a sub-tenant as far as Srirengammal is concerned. Subadrammal could not have assigned her right in view of the discussions above. Hence, Ali Hussain and the other appellants cannot be considered as tenants under Vedagiri, entitled to invoke Section 9 of the Act. If they are not tenants under the respondent herein, there is no necessity to give notice under Section 106 of the Transfer of Property Act, as contended by Thiru N. C. Raghavachari. As regards notice under Section 11 of the Act, it is clear from the decision in Vedachala Naicker v. Duraiswami Mudaliar : AIR1951Mad593 , that the tenants have lost their right by waiver of such notice, inasmuch as they had filed applications under Section 9 of the Act.

19. Thiru N. C. Raghavachari, the learned Counsel appearing for the appellants, sought to distinguish Vedachala Naicker v. Duraiswami Mudaliar : AIR1951Mad593 , and cited the decision in Azizunnissa Begum v. Govindan Nair (1972) 85 L.W. 23, where Sadasivam, J., on the facts and circumstances of that case held that the respondent therein was not a mere assignee of leasehold right but had also been recognized as a tenant by the petitioner and as such the respondent was entitled to get the benefits under Section 9 of the Act. Proceeding further, the learned Judge held:

Persons who had a derivative title from the original tenant could ipso facto claim to be tenants under the old definitions. But they could no longer do so under the new definition. A sub-tenant has been specifically excluded under the new definition.

Thus, it is clear that the appellants, who are only sub-tenants under Sriengammal cannot claim any benefit under the Act and that Subadrammal, in law, could not assign her right to purchase the suit land under Section 9 of the Act. As a matter of fact, from the discussions in the foregoing paragraphs it is clear that Exhibit A-4 compromise did not confer any right upon Subadrammal as regards the Act. Subadrammal while assigning her right to purchase the lands to Balasubramaniam, did not assign her tenancy rights to Balasubramaniam, nor did Balasubramaniam recognize the appellants herein as his tenants. On the other hand, Subadrammal specifically undertook to vacate and deliver vacant possession of the lands to Balasubramaniam. Balasubramaniam, it is clear, never had any interest in immovable property by virtue of the agreement with Subadrammal. On the other hand, he got all the right, title and interest from Srirengammal on the strength of the purchase he had made in respect of the suit lands from Srirengammal. It is only that right, title and interest, Balasubramaniam conveyed to Vedagiri. As such, the appellants herein cannot be considered as tenants under Vedagiri and hence they are not entitled to invoke the benefits of the Act. Apart from the fact that most of the appellants have not pursued their Section 9 applications, (except AH Hussain who has filed C. R. P. No. 387 of 1973), in law they are not entitled to invoke the provisions of the Act.

20. Thiru K. N. Balasubramaniam appearing for the appellants in S. A. Nos. 198 and 199, of 1973, submitted, the very same arguments advanced by Thiru N.C. Raghavachari. The learned Counsel submitted that when the chief-tenant acquires a right to purchase the land, the sub-tenants are no longer subtenants, and the moment the chief tenancy disappears by virtue of the agreement to sell and the subsequent purchase, the sub-tenants become the chief-tenants. As far as the facts of the present cases are concerned, the chief-tenant never became the owner of the lands ; it was Balasubramaniam who purchased the lands from Srirengammal and as such there is absolutely no merit in the argument advanced by Thiru K.N. Balasubramaniam on the assumption of certain facts which do not exist at all.

21. In these circumstances, the second appeals and the civil revision petition are dismissed. No costs. No leave-Time to vacate three months.


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