Ehasan Bivi and Others vs Nagalakshmi Ammal

P. R. Gokulahrishnan, J.—The legal representatives of the tenant are the petitioners herein. The eviction was sought for in respect of three

shops which are situate at No. 45-B, Hanumarkoil Road, Kumbakonam. The daily rent for each shop is Rs. 4. The eviction petition was filed by

one Nagalakshmi Ammal. The eviction was sought on three grounds namely: (1) wilful default; (ii) demolition of the buildings and for reconstructing

the same; and (iii) the tenants caused damages to the buildings by putting them to a different use from the one for which they were rented out. Both

the Rent Controller and the Appellate Authority found that there was no default, much less wilful default on the part of the tenants. They ordered

eviction on the ground that the landlord requires the buildings for demolition and reconstruction and also on the ground that the tenants have

damaged the buildings. I do not think it is necessary for me to go into the merits of the case elaborately since Mr. B. Rajagopalan, learned Counsel

for the petitioners, is not able to make any headway to dislodge the concurrent findings given by the two authorities below on merits. I am satisfied

from the evidence on record and also after going through the judgments of the two authorities below that the reasons given by the authorities below

for ordering the eviction on the above said two grounds are correct.

Mr. B. Rajagopalan, learned Counsel, submits that the buildings in question originally belonged to one, Dr. Murthy and after his demise, his wife

Nagalakshmi, the petitioner herein and her son Uadyakumar acquired this property. The petition for eviction was filed only by the wife of Dr.

Murthy. viz., Nagalakshmi Ammal. Mr. B. Rajagopalan, learned Counsel for the petitioners, submits that the eviction petition is liable to be

dismissed as per Section 10(8) of the Tamil Nadu Buildings (Lease and Rent Control) Act. According to the learned Counsel, inasmuch as

Udayakumar, the son of Dr. Murthy who is also a co-sharer in the property has not joined as a petitioner in the eviction petition, the present

petitioner in the eviction petition has no locus standi to file the eviction petition without getting the written consent from the other sharer, namely,

Udayakumar. In short, the learned Counsel submits that Nagalakshmi Animal being a co-owner, she is an agent for the other co-sharer in relation

to the collection of rents from the tenants. As such Mr. Rajagopalan states that Nagalakshmi Ammal ought to have obtained the written consent of

Udayakumar as per Section 10(8) of the Act before she came forward with the eviction petition. Section 10(8) of the Act reads as follows:

Notwithstanding anything contained in this section, no person who is receiving or is entitled to receive the rent of a building, merely, as an agent of

the landlord shali, except with the previous written consent of the landlord, be entitled to apply for the eviction of the tenant.

Before dealing with the legal contentions taken by the learned Counsel appearing for the petitioners herein, it is necessary to note that the other co-

sharer is no other then the son of Nagalakshmi Ammal and that they are living together. It is also not disputed that the tenants are paying the rent

only to Nagalakshmi Ammal and at no point of time there seems to be any dispute in collecting the rents by Nagalakshmi Ammal. It is also not the

evidence of any of the parties to these proceedings that Udayakumar son of Nagalakshmi Ammal disputed the right of Nagalakshmi Ammal to

manage the property and collect the rents from the tenants. In Abdul Rahman v. Ganga Chandrasekar (1978) 2 MLJ 234 : 91 LW 519 : (1979) 1

Ren CJ 59 Ramaprasada Rao, CJ., has observed:

Whether this provision (Section 10(8) of the above Act) would apply to a co-owner is doubtful. I am not, however, inclined to express an opinion

on it.

After observing so categorically the learned Judge posed the question that even if a co-owner on given facts and circumstances of a case is

considered to be an agent, is it necessary for him to get a written consent prior to the filing of the eviction petition? The learned Chief Justice

interpreted the word ''previous'' occurring in subsection (8). Finally, the learned Chief Justice decided as follows:

The intention appears to be that a co-owner shall not without the consent of others, file an application for eviction; and if a question arises as to

whether he had obtained any such consent, which could be established, in the alternative even in the course of the proceedings and before eviction

it would be ingenuous to extend the intendment of the prescription as meaning that the previous written consent should be given even before filing a

petition to obtain an order for eviction. The entitlement of the owner for eviction of a tenant, referred to in Sub-section (8) should be construed not

literally but liberally. If therefore the written consent of the co-owners is obtained in the course of trial and before an order for eviction is obtained

and if that written consent of the other co-owners sufficiently reflects the position that they gave the consent even at or about the time when the

petition was filed, then the Court which appreciates such evidence could come to the conclusion that there has been such a previous consent as

required under Sub-section (8).

I do not think that from the above said decision it can be conclusively held that the co-owner on the facts and circumstances of the case has to

get the written consent of the other co-owner as provided u/s 10(8) of the Act.

In A. Alagiyanathan Vs. M. Swaminatha Pillai, Natarajan, J, dealt with a case in which two brothers owned a building. In that case by

arrangement the petitioner in the eviction petition and his brother were collecting the rent in equal shares from the tenant of the building in question.

In that situation one of the brothers filed a petition for eviction before the Rent Controller praying for the eviction of the petitioner on the ground of

wilful default in paying the rent and also on the ground of bon fide requirement for his son''s occupation. The other brother was not impleaded in

the eviction petition as a party. There was also no contention in the petition that the petition was filed on behalf of the other brother also who is a

co-owner of the property. In that case, the tenant raised an objection to the maintainability of the petition, without the other co-owner being a party

to the proceedings. On those facts, the learned Judge held

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.

The case on hand can be easily distinguished from the case decided by Natarajan, J in the case decided by Natarajan, J, there were admittedly

two landlords for a single tenant. They were independently collecting the rent by mutual arrangement. In such circumstances, the learned Judge hell

that it is necessary to get the consent of the other landlord who is in the nature of a co-owner before any eviction petition is launched by the

landlord In this case, there is only one landlord, i.e., Nagalakshmi Ammal.

In Vasudevan Vs. Ramachandran, , Balasubrahmanyan, J., dealing with Section 10(8) of the Rent Control Act held

Every co-owner is in a real sense, the absolute owner of the entirety of the interest in the joint property. In this sense, a co-owner is by no means

the agent of the other co-owner in respect of any interest in the property. On the incontrovertible position in law of co-owners who must be

distinguished from agents, properly so called, Section 10(8) has absolutely no application to the petition filed in the present case for eviction of the

tenant.

Admittedly, in that case, the eviction petition was filed by one of the co-owners. In this connection, it is interesting to note the decision reported in

Sri Ram Pasricha Vs. Jagannath and Others, wherein it has been held that a co-owner is as much an owner of the entire property as any sole

owner of a property is. It has been further held that the co-owner owns every part of the composite property along with others and it cannot be

said that he is only a part owner or a fractional owner of the property.

Even apart from the abovesaid decision we have the Bench decision of our High Court reported in Bichaya v. Venkaresa (1979) TLNJ 312

wherein the scope of Section 10(8) of the Tamil Nadu Buildings (Lease and Rent Control) Act came to be discussed. The Bench after referring to

various other decisions on this aspect or the case has categorically laid down that the class of persons contemplated by Section 10(8) of the Act is

a very limited class and only with reference to that class the requirement of obtaining the previous written consent of the landlord for filing a petition

for eviction will apply. A reading of this decision will clearly eschew a co-owner coming under the definition of an agent contemplated u/s 10(8) of

the Tamil Nadu Buildings (Lease and Rent Control) Act.

Further on a reading of Section 10(8) it will be clear that only an agent of the landlord is liable to get the previous written consent of the

landlord. Considering the reason given in the Supreme Court decision reported in Sri Ram Pasricha Vs. Jagannath and Others, it is very difficult to

construe that a co-owner will take the position of an agent in respect of the management of a property, since it has been definitely held by the

Supreme Court that a co-owner owns every part of I the composite property along with others and it cannot be said that he is only a part owner

or a fractional owner of the property. I have already stated that the other co-owner in this case is no other than the son of Nagalakshmi Ammal,

the petitioner in the eviction petition and that he is living with Nagalakshmi Ammal. It is only Nagalakshmi Ammal who is collecting the rents from

the petitioners herein and she will squarely come under the definition of landlord. Inasmuch as I have held that she will not come under the definition

of an agent contemplated in Section 10(8) of the Act, the argument advanced as if the eviction petition is not maintainable without the written

consent of the co-owner cannot be sustained. Thus relying on the observations and reasonings given in the Bench decision of our High Court

reported in Bichava v. Venkatesa (1979) T.L.N.J. 312, I do not find there is any merit in the contentions raised by the learned Counsel appearing

for the petitioners herein. Accordingly, the civil revision petition is dismissed with costs. Considering the business that is being carried on in the

shops, the petitioners will have time to vacate till 30th November, 1980.