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A. Alagiyanathan Vs. M. Swaminatha Pillai - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1980)1MLJ274
AppellantA. Alagiyanathan
RespondentM. Swaminatha Pillai
Cases ReferredSri Ram Pasticha v. Jagannath
Excerpt:
- .....only by that class of landlords who fall within the definition of agent-landlords, and not owner-landlords.6. in the instant case, admittedly, the respondent is not an agent of his brother, but is a co owner of the buildings with his brother. moreover, the two co-owners, viz., the respondent and his brother, have been collecting their share of the rent directly from the tenant, and therefore, there is no question of one co-owner even collecting the rent on behalf of the other. in such circumstances, the question of the respondent obtaining the written consent of his brother to file the petition does not stop there. what we have to see is whether in his limited role as a co-owner, the respondent is entitled under the act to file the eviction action all by himself with out making.....
Judgment:

S. Natarajan, J.

1. What falls for consideration in this revision petition, preferred by a tenant, is whether one of the two co-owners of a building is entitled to independently file a petition against a tenant to seek his eviction on one or more of the grounds mentioned in Section 10 of the Tamil Nadu Buildings (Lease and Rent Control) Act (hereinafter referred to as the Act) without the consent or knowledge of the other co-owner.

2. The facts of the case are as follows: The petition premises, which is residential building was originally owned by one Rayappa Pillai and the petitioner became a tenant under him. After the death of Rayappa Pillai, his nephews, viz., the respondent and his brother succeeded to the property. By arrangement, the respondent and his brother were collecting in equal shares the rent of Rs. 27 paid by the petitioner for the building. In. that situation, the respondent filed a petition before the Rent Controller, Salem, praying for eviction of the petitioner on the ground that the petitioner had committed wilful default in payment of rent and furthermore, he bona fide required the building for his son's occupation. To the said petition, the respondent did not implead his brother as a party; nor did he put forth a contention that the eviction of the tenant was sought for on behalf of the other co-owner also. The tenant, by means of an additional counter-affidavit, raised an objection to the maintainability of the petition without the other co-owner also being a party to the proceedings. The Rent Controller relying upon Shanmuga Appah v. Abdul Hameed : AIR1974Mad133 sustained the objection of the tenant and dismissed the petition. On the landlord filing an appeal, the Principal Subordinate Judge of Salem, who is the Appellate Authority allowed the appeal and held that the petition was maintainable and that on merits, the landlord was entitled to get an order of eviction in his favour. It is as against that order, the tenant has come forward with this revision.

3. Mr. Srinivasan, learned Counsel for the petitioner contends that inasmuch as the petition-building is owned by two persons, and they had also been receiving the rent in equal moieties from the tenant, it is not open to one of the co-owners to file an independent action against the tenant and seek his eviction. In support of his argument, the learned Counsel relies on Kotiah v. Abdul Aziz Khan (1951) 2 M.L.J. 68 and Abdul Rahman v. G Chandrasekaran (1978) 2 M.L.J 234. On the other hand, Mr. T.S. Subramaniam, learned Counsel for the respondent submits that the petition, though filed by one of two co-owners, is fully maintainable, and as such he tenant is not entitled to put forth the contention that in the absence of the other co-owner, the respondent herein is not competent to file the eviction action all by himself Mr. Subramaniam relies on Shanmugam Appah v. Abdul Hameed : (1973)1MLJ241 and Sri Ram Pasricha v. Jagannath : [1977]1SCR395 in support of his contentions.

4. Before considering the arguments of the learned Counsel, it will be useful to refer to the definition of 'landlord' in Section 2(6) of the Act and the interdiction contained in Section 10(8) of the Act on agents acting as landlords from instituting eviction proceedings without the written consent of the landlord.

Section 2(6) reads as follows:

'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:

Explanation....

Section 10(8) reads as follows:

Notwithstanding anything contained in this section no per on who is receiving or is entitled to receive the rent of a building merely as an agent of the landlord shall, except with the previous written consent of the landlord, be entitled to apply for the eviction of a tenant.

5. On regarding Section 2(6), it may be seen that the definition is an inclusive one and as per the definition not only the owner of the building but any other person entitled to receive the rent of a building on behalf of another as agent, trustee, executor, administrator, receiver or guardian would also constitute a landlord for the purposes of the Act Thus, the definition of the term 'landlord' in the Act is of a wide amplitude. However when the legislature dealt with the rights of landlords to seek eviction of the tenants on one or more of the grounds mentioned in Section 10, the legislature has imposed a restriction on the exercise of such rights by landlords who have only the status of an agent of the actual owner of the building. It is on account of that, it has been provided in subsection (8) that, where a person receives rent of a building merely as an agent of the landlord, he cannot file a petition for eviction of the tenant without first getting the previous written consent of the landlord to file such a petition. The scope and effect of Clause (8) of Section 10 was considered in Shanmugha Appah v. Abdul Hameed : (1973)1MLJ241 and it was held therein that written consent will have to be obtained only by that class of landlords who fall within the definition of agent-landlords, and not owner-landlords.

6. In the instant case, admittedly, the respondent is not an agent of his brother, but is a co owner of the buildings with his brother. Moreover, the two co-owners, viz., the respondent and his brother, have been Collecting their share of the rent directly from the tenant, and therefore, there is no question of one co-owner even collecting the rent on behalf of the other. In such circumstances, the question of the respondent obtaining the written consent of his brother to file the petition does not stop there. What we have to see is whether in his limited role as a co-owner, the respondent is entitled under the Act to file the eviction action all by himself with out making his brother an effective party to the proceedings.

7. Having regard to the manner in which the term 'landlord' has been defined in the Act, it follows that the Act contemplates a plurality of landlords for the same building. But that will not entitle them to act in severalty. Any petition filed against a tenant by the owners of a building must, of necessity reflect a conjoint action. Otherwise, we will be faced with the anomalous position of a tenant being sought to be evicted simultaneously, by different co-owners of the building on different grounds. Such a situation is not contemplated by the Act. Therefore, where there is more than one landlord for a building, it must necessarily be held that any action taken against the tenant of the building seeking his eviction must be instituted by all the landlords, or at least, by one or more of them on behalf of and for the benefit of all of them. Such, however, is not the case here.

8. As early as in 1951. Subbarao, J., (as he then was) has held in Kotiah v. Abdul Aziz Khan (1951) 2 M.L.J. 68 that three out of four co-owners of a building who were not receiving the entire rent and who had not been authorised by the fourth co-owner to receive the rent on his behalf, were not entitled to take proceedings for eviction against the tenant without impleading the other co-owner. In Abdul Rahman v. G Chandrasekaran (1978) 2 M.L.J. 234 this question did not directly arise for consideration, but Ramaprasada Rao, CJ., has proceeded on the basis that one co-owner cannot file an application for eviction without the consent of others. With respect to the learned Judges who have decided the above said cases, I am in entire agreement with them.

9. The appellate authority has relied upon Shanmuga Appah v. Abdul Hameed (1973) 1 M.L.J. 741 : 86 L.W. 103 to take the view that only an agent landlord is bound to get the written consent of the owner of the building to file a petition for eviction but there is no such interdiction for a co-owner. What the appellate authority has failed to see is that the decision does not lend support to the extended interpretation given by it, viz., that one co-owner is entitled to file an eviction petition all by himself without reference to the other co-owner. In the judgment itself, it has been made clear that where a petition is filed against the tenant for eviction by one of the landlords of the buildings, then the Rent Controller has to satisfy himself that the application has been made on behalf of all the others The relevant passage occurring in page 243 reads as follows:

It will be open to the Court to satisfy itself that the person making the application is making it on behalf of others receiving rent from other materials placed before it.

Therefore, the Appellate Authority is not right in holding that on the basis of the ratio laid down in Shanmuga Appah v. Abdul Hameed (1993) 1 M.L.J. 241 : 86 L.W. 103 the landlord is entitled to file a petition by himself without making his brother, a party to the action.

10. So far as Sri Ram Pasticha v. Jagannath : [1977]1SCR395 , is concerned, the ratio laid down therein has to be understood with reference to the facts of that case. That was a case where the plaintiff, though a co-sharer, filed the suit for recovery of possession for the benefit of all the members of the family including the other co sharer. That apart, the Court found that the plea regarding non-joinder of parties was not taken at the earliest possible opportunity, and further more, the tenant was not entitled to deny the title of his landlord. It was in that situation, the Supreme Court held that a co-owner owns every part of the composite property along with others and therefore, it was not necessary for the plaintiff to establish that he was the sole owner of the property for maintaining his suit against the tenant for recovery of possession. The facts in this case are totally different. The respondent and his brother are living separately and they have been independently collecting the rent in equal shares from the tenant. It would also appear that there is a partition action between the two co-owners on account of differences of opinion between them. The respondent herein does not seek possession of the building for the benefit of all the co-owners, but he seeks eviction only for his personal benefit. In such circumstances it can never be said that the petition, filed by the respondent without reference to the co-owner and his co-extensive rights in the building, is maintainable in law.

11. For the aforesaid reasons, the revision will stand allowed and the order of the Rent Controller dismissing the petition will stand restored. There will be, however, no order as to costs.


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