Azizunnissa Begum vs V. Govindan Nair

R. Sadasivam, J.—Petitioner, Azizunnissa Begum, seeks to revise the decree and judgment in Ejectment Appeal No. 11 of 1968, reversing

the decree and judgment of the trial Court in M.P. No. 633 of 1966 in Ejectment Suit No. 11 of 1966, on the file of the Court of Small Causes,

Madras. The petitioner sued for ejectment of the respondent on the ground that he was a tenant in respect of a portion of Paimash No. 311/1 and

311/2 in Kodambakkam, measuring 63 X 27, after terminating the tenancy. The respondent filed M.P. No. 633 of 1966, in the ejectment suit,

claiming the benefit of Section 9 of the City Tenants Protection Act, hereinafter referred to as the Act. The respondent pleaded that originally one

Arumugham Chettiar was in occupation of the site as lessee of the petitioner, that on 20th September, 1954, he sold the superstructure and his

leasehold rights to one Antony, and that Antony in his turn sold the superstructure and the leasehold rights to him (the respondent) on 12th January,

1958. But the petitioner contended that Arumugham Chettiar was a lessee in respect of one ground, that he surrendered the lease in December,

1956, that Antony became a fresh tenant of a smaller extent, that the said Antony appears to have sublet the plot to the respondent, that the

respondent had been making payments on behalf of Antony, that on coming to know of it, she filed a suit for an injunction against the respondent in

the City Civil Court restraining him from putting up any construction and that she filed the present suit for ejectment after the said suit for injunction

was dismissed.

Both the Courts below have rejected the case of the petitioner that Arumugham surrendered the lease and that the petitioner entered into a fresh

lease with Antony. The trial Judge found that the respondent is in possession as a tenant from 1958, he having purchased the superstructure and

the leasehold right from Antony, who in his turn had purchased the same from Arumugham. The lower appellate Court agreed with this finding and

found that the original tenancy commenced long prior to 1955. But, on the question of the interpretation of Section 9 of the Act, the trial Judge held

that the respondent is not entitled to the benefit of Section 9 of the Act, but the lower appellate Court came to a different conclusion. Hence the

petitioner has come forward with this civil revision petition.

u/s 9 of the Act, any tenant who is entitled to compensation u/s 3 and against whom a suit in ejectment has been instituted or proceeding u/s 41

of the Presidency Small Cause Courts Act, 1882, taken by the landlord, may, within one month of the date of the Madras City Tenants''

Protection (Amendment) Act, 1955, coming into force, or of the date with effect from which the City Tenants'' Protection Act is extended to the

municipal town or village in which the land is situate, or within one month after the service on him of summons, apply to the Court for an order that

the landlord shall be directed to sell for a price to be fixed by the Court the whole or part of the extent of land specified in the application. Section

3 of the Act provides that every tenant shall on ejectment be entitled to be paid as compensation the value of any building, which may have been

erected by him, by any of his predecessors-in-interest. or by any person not in occupation at the time of the ejectment who derived title from either

of them, and for which compensation has not already been paid. The definition of a tenant in Section 2 (4) of the Act has been amended by

Madras Act XII of 1960. The definition as it stood prior to the amendment ran thus: ''Tenant''means tenant of land liable to pay rent on it, every

other person deriving title from him, and includes, persons who continue in possession after the termination of the tenancy. The following definition

of the term ''tenant'' has been introduced by the amendment : ''Tenant'' in relation to any land(i) means a person liable to pay rent in respect of such

land, under a tenancy agreement, express or implied, and (ii) includes (a) any such person as is referred to in Sub-clause (i) who continues in

possession of the land after the determination of the tenancy agreement, and (b) the heirs of any such person as is referred to in Sub-clause (1) or

Sub-clause (ii)(a), but does not include a subtenant or his heirs.

Thus persons who had a derivative title from the original tenant could ipso facto claim to be tenants under the old definition. But they could no

longer do so under the new definition. A subtenant has been specifically excluded under the new definition. But, as pointed out in the Bench

decision of this Court in T. Parthasarathy Chetty Vs. K. Shyamalamba by Agent, P. Lakshminarayanan,

There can be little doubt that the rights u/s 9 of the Act will not be available to a sub-tenant as against the original owner of the property, namely,

the landlord, and this has been put beyond doubt by the revised definition of the term ''tenant''.

The learned advocate for the petitioner relied on the decision in Kuppu Bai v. Rajagopala Nadar (1969) M.L.J. 541 : 82 L.W. 463, in support

of his contention that the definition of the term ''tenant'' u/s 2(4) of the Act after the amendment of Madras Act XIII of 1960 is clearly restricted

and narrower than the original definition and that under the definition as it originally stood, a tenant WES to include a person deriving title from a

tenant, which includes both the heirs of a tenant and assignees from him, and that the present new definition, after the amendment, includes only the

heirs of the tenant and the omission of the assignee from a tenant is significant. The decision does not really help the petitioner''s case. It should be

noted that the original tenant in that case had assigned his rights after he had surrendered the lease and the tenancy had been terminated and before

the landlord could take delivery in pursuance of a decree of Court. Thus the assignee in that case could not satisfy the definition of a tenant in

Section 2(4) of the Act, as amended, because he was not a person liable to pay rent in respect of the land occupied by him under a tenancy

agreement, express or implied. The effect of mere assignment of leasehold rights by the tenant without concurrence by the landlord is clearly

pointed out at page 544 of the said decision. It was held in that decision that a lessee cannot by his unilateral act of assigning his interest in the

leasehold put an end to his contractual obligation and he does not cease to be a tenant. It is pointed out in the decision that the privity of contract is

only between the lessor and the lessee who has entered into the contract of lease and it continues until relinquished, and when there is an

assignment of leasehold right to which the lessor is not a party, there is only privity of estate between the lessor and the assignee and that is

because of the interest in the land which the lessee gets under the lease and the liability of the lessee ceases only when the lessor releases the lessee

and accepts the assignee as his tenant.

I have already pointed out that the petitioner has come forward with the case that after the surrender of the prior leases, she leased the property

directly to the respondent, but both the Courts have rejected this case as not true. On the other hand, they found that the respondent got the

leasehold rights of Antony, who got the leasehold rights of the original tenant, Arumugham, who was a tenant prior to 1958. Admittedly, the

petitioner has collected rent from the respondent and the respondent is therefore a tenant within the meaning of Section 2(4) of the Act. The

respondent is not a mere assignee of the leasehold rights of Antony, but has also been recognised as a tenant by the petitioner. The respondent is

therefore entitled to invoke the benefits of Section 9 of the Act. According to Section 3 of the Act, the benefit to which he is entitled is to receive

compensation for the value of any building which may have been erected by him or by any of his predecessors-in-interest.

Thus, on the findings of the Courts below that the original tenancy commenced from 1955, the order of the lower appellate Court is correct. The

civil revision petition is dismissed with costs.