G. Kaluram vs K.G. Shivashankar

K. Ramanna, J.—This revision petition is directed against the order dated 21-3-2006 passed by the II Addl. Small Causes Judge, Bangalore in HRC No. 111/2004 whereby the eviction petition by the respondent-landlord filed u/s 27(2)(a) & (r) of the Karnataka Rent Act, 1999 came to be allowed directing the petitioner-tenant to vacate the petition schedule premises within 21-6-2006 and to pay the arrears of rent of Rs. 24,750/ -.

The brief facts of the case are that the respondent/landlord herein filed the eviction petition against the petitioner/tenant herein u/s 27[2][a] and [r] of K.R. Act 1999 contending that he is the absolute owner of the petition schedule premises which is residential in nature having acquired the same through registered will executed by his lather kite R.K. Govindaraj Mudalier.

Originally the property belonged to his father and that subsequently the BDA has acquired the property and on representation made by the father of the respondent a registered sale deed dated 31-05-1996 has been executed by BDA in favour of the lather of the respondent It is further case of the respondent that prior to acquisition of the property by the BDA his father had constructed a house over the schedule property and let out one portion in favour of petitioner on monthly rent of Rs. 550/-. That the petitioner has been paying rents to the father of the respondent regularly. The father of the respondent died on 22-02-2002 leaving behind the respondent to succeed his estate. But the petitioner after the death of the lather of the respondent, has not paid rents to the respondent and when questioned, he evaded the payment of rents. Hence the respondent issued a legal notice dated 18-07-2003 to the petitioner calling upon him to pay Rs. 7,700/- towards arrears of rents from June 2002 till the end of July 2003 at the rate of 550/- per month. Inspite of service of notice the petitioner has not complied with the demands made by the respondent and had given untenable reply to the said notice. It is further case of the respondent/landlord that the family of the respondent/landlord consisting of himself, his wife and one son and a daughter and that his children were studying and he is central government employee and that he is suffering from old age ailments and that he require petition schedule premises for his bonafide use and occupation to accommodate his children, hence he filed the eviction petition.

In pursuance of service of notice, the petitioner appeared through the counsel and filed the objection on the ground that there is no relationship of landlord and tenant between respondent and himself. However, he admits that the father of the respondent is the owner of the suit schedule premises, but according to him after the death of the father of the respondent the brother of the respondent one Sri. Late G. Sampangiraman succeeded to the estate of R.K. Govindaraj and he paid rents to him and alter the death of said G. Sampangiraman he is paying rents to one Rajeshwari and Mohan Kumar who are the wife and son of the said late G. Sampangiraman. It is further contended by the petitioner-tenant that he took the schedule property on lease from late G. Sampangiraman on monthly rent of Rs. 50/- in the year 1971 and paid a sum of Rs. 15,000/- as security deposit. It is however admitted by the petitioner that R.K. Govindaraj Modaliar dated on 22-02-2002 leaving behind the respondent and his brother late Sampangiraman. It is further case of the petitioner that his family consists of 8 members and he is residing in the petition schedule premises from the last 33 years and if an order of eviction is passed he will be put to great hardship and irreparable loss.

The trial Court alter recording the evidence of both parties, held that the petitioner is not regular in payment of rents; that he being the tenant, cannot challenge the Will executed by R.K. Govindaraj Mudaliar-father of the respondent and the petition schedule premises is required for the purpose of bonafide use and occupation of the respondent. Consequently allowed the eviction petition tiled by the respondent u/s 27(2)(a) & (r) of the KR Act. Being aggrieved, the petitioner-tenant has come up in this revision petition.

Heard the arguments of learned Counsel for the petitioner and respondent

The learned Counsel for the petitioner argued that the respondent is not the owner of the petition schedule premises. His father-late Govindaraj Mudaliar was the owner of the premises; that there is no attornment made in favour of respondent; that he was paying rents to Govindaraj Mudaliar till his death; petitioner has not executed any lease deed in favour of the respondent. Since the respondent who claims ownership over the premises on the basis of the Will, has not proved the Will as such, he cannot be said to be absolute owner of the petition schedule property, thus he is not entitled to initiate proceedings against the petitioner. He further contended that the trial Court has wrongly come to the conclusion that respondent is the owner of the petition schedule premises and succeeded to the same on the basis of the Will.

In support of his contentions, he has relied on the decision of this Court in Parvathamma v. A Muniyappa AIR 1997 KAR 370 wherein it is held thus:

Succession Act: Sections 59, 63 Will - Proof it has to be proved in accordance with Sections 59, 63 of Succession Act and Sections 67, 68 of the Evidence Act.

He has also relied on a decision of the Supreme Court in Girja Datt Singh Vs. Gangotri Datt Singh, wherein it has held thus:

It cannot be presumed from the mere signatures of two persons appearing at the foot of the endorsement or registration of a will that they had appended their signatures to the document as attesting witnesses or can he construed to have done so in their capacity as attesting witnesses. Section 68 Evidence Act requires an attesting witness to be called a as witness to prove the due execution and attestation of the will. This provision should be complied with in order that those two persons might be treated as attesting witnesses.

He has also relied on a decision of the Supreme Court in H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, wherein it has held thus:

The party propounding a Will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, reference must inevitably be made to the statutory provisions which govern the proof of documents. Sections 67 and 68 of Evidence Act are relevant for this purpose. u/s 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a Court of law. Similarly, Sections 59, 63 of the Indian Succession Act are also relevant Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills, it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.

Therefore, it is argued that the respondent has to prove the contents of the Will. Hence, the same cannot be looked into. It is contended that the petitioner was paying rents to late Govindaraj Mudaliar and after his death, he was paying rents to the brother of the respondent one late G. Sampangiraman and after his death, he was paying rents to Rajeshwari and Mohan Kumar who are the wile and son of the said late G. Sampangiraman. It is contended that even though hand summons were taken by him, the said Rajeshwari and her son tailed to appear before the Court. Since the respondent has not obtained any probate on the basis of the alleged Will, he cannot blame others and he is not a legatee under the Will. The respondent has not approached the Court with clean hands. Non production of the original Will by the respondent is fatal to his case. The eviction petition filed by the respondent on the ground that he requires the premises for his bonafide use and occupation is incorrect, the trial Court has wrongly come to the conclusion that the requirement of the respondent is bonafide. Therefore, he prays that impugned order be set aside.

On the other hand, learned Counsel for the respondent submitted that before filing the eviction petition, notice has been issued to the petitioner-tenant which was duly served but untenable reply has been given. It is argued that the petition schedule property is the self acquired property of his father late Govindaraj Mudaliar. The petitioner being a tenant during the life time of his father, he was paying rents at Rs. 50/- per month. Since the petitioner has not paid the rents from June, 2002 to February 2003, he filed the eviction petition. He further contended that after the death of his father, khata has been transferred in his name and he is paying taxes regularly. To that effect, he has produced katha extract, tax paid receipt which are marked as Exs. P-4 to P-6. He has also produced the original sale deed - Ex. P-1 and certified copy of sale deed at Ex. P-2. It is argued that since there is registered Will, there is no need to approach the Civil Court to obtain probate. It is further argued that petitioner has not proved the contentions urged by him. The alleged rent receipts produced by the petitioner have not been proved. Therefore, the trial Court has rightly allowed the eviction petition and he prays for dismissal of the revision petition.

In support of his contentions, he has relied on the decision of this Court in Sri Haji Iqbal Shariff Vs. Smt. C. Manjula,

He has also relied on the decision of this Court in L.J. Mohan v. Dr Rama Prasad 1990 (2) Kar. L.J 212 wherein it is held thus:

Eviction petition-Issue relating relationship of landlord and tenant being a question of fact to be deckled on evidentiary material; mere allegation will not oust jurisdiction of Court-In deciding such dispute, if complicated questions of law and fact are likely to arise the Court may direct the party to sort out the said issue elsewhere - decision of Court on such issues since very much depends upon evidence and very little on law, such Court should not be pressed to decide that question as a preliminary issue -explained.

He has also relied on the decision of the Apex Court in S. Thangappan Vs. P. Padmavathy, . wherein it has held thus:

TN Buildings Lease and Rent Control Act 18 of 1960, Section 14(1)(b) - Eviction Wilful default - denial of title - tenant inducted into premises by landlord - payment of rent by tenant to landlord-subsequently, on knowing that there was paramount title holder, a devasthanam, the tenant paying the rent to it and. not to his landlord without even being informed by such devasthanam that it was the owner - Held, default was wilful - denial of title against the landlord from very inception - forbidden by Section 116 of Evidence Act

He has also relied on the decision of this Court in Dr David Paul v. Karunakar M. Shetty 2003 (3) KCCR 2275 wherein it has been held thus:

K.R. Act, 1999 - Section 43 - Applicability - It is applicable only in a case where there is nothing to evidence the existence of the relationship of landlord and tenant It cannot be relied upon by a tenant who does not deny his status but only denies that the person who has presented the eviction petition against him is not the landlord because he acquired the premises from persons who are not the true representatives of the original landlord. No tenant could dispute his status of tenant under the legal representatives of the deceased landlord once it is established by the persons so claiming that they are the true representatives of the deceased landlord.

Having heard the learned Counsel on both sides, the point that arises for consideration is whether the order under challenge is incorrect and illegal and if so, whether it calls for any interference?

Admittedly, the petitioner is a tenant in respect of the petition schedule premises. There is no dispute with regard to the rate of rent and he was a tenant under late Govindaraj Mudaliar-father of the respondent The claim of the respondent is that the late Govindaraj Mudaliar executed a registered Will in favour of the respondent On the basis of the registered Will, khata is transferred in the name of the respondent It is his case that since the Will is registered, he need not obtain probate of Will and can maintain the eviction petition against the petition in the absence of the same. The contention of the petitioner is that the Will has not been proved by examining the attesting witnesses. But the petitioner who admittedly a tenant under the father of the respondent cannot question the validity of the Will. When the petitioner admits his relationship as that of a tenant under the father of the respondent; he cannot dispute his status of tenant under the respondent who is the son of original landlord, especially so when the petitioner is not disputing the relationship of late Govindaraj Mudaliar and the respondent as that of a father and son. So also, Sampangiraman-late brother of the respondent has not questioned the registered Will executed by his father in favour of his brother respondent herein. Even Rajeshwari and her son Mohan Kumar who are the sister-in-law and nephew of the respondent, have not questioned the said Will As such there is no dispute between the sons of Govindaraj Mudaliar or their L. Rs. and except the respondent, no one else is disputing the title of the respondent over the petition schedule premises.

There is no litigation pending with regard to the title of the property, if anybody else except this respondent had any right over the property and that the petitioner really had paid the rent to them they ought to have filed a separate suit, or might have impleaded in the present proceedings, or at least come before the Court to give evidence accepting the receipt of rent from the petitioner. Therefore, it is clear that the defence put forth by the petitioner is not bonafide and genuine and has raised this contention only to protract the proceedings before the trial Court. Therefore, the petitioner has no right to question the title of the property. So also right of the respondent to maintain eviction petition against him. Moreover, even in the absence of the said Will, in the absence of petitioner disputing the relationship of original landlord and the respondent as that of father and son, the respondent has every right to maintain eviction petition against the petitioner as a co-owner of the petition schedule property. Therefore, the contention of the petitioner that tenancy has not been attorned by him in favour of the respondent cannot be accepted, when he admits that he was a tenant under the original landlord Govindaraj Mudaliar - propounder of the Will bequeathing the suit schedule property in favour of his son - respondent herein, the question of attornment or production of lease deed by the respondent to prove the existing relationship does not arise.

Further, the petitioner has not paid the arrears of rent, he has railed to prove that rents have been regularly paid by him to late G. Sampangiraman - brother of the respondent there was no material placed on record by the petitioner to prove the same. The rent receipts produced by the petitioner to show that after the death of Govindaraj Mudaliar, rents have been regularly paid to his wife and son has not proved before the trial Court by examining its executors, either Rajeshwari and her son Mohan Kumar. If the petitioner has taken hand summons, it is his duty to keep them present before the Court and examine them. If he has not taken appropriate steps to examine them, he cannot blame the Court for non examination of those two witnesses.

19.It is the specific ground taken by the respondent that petition schedule premises is required for his personal use and occupation and for the use of his family members. To that effect, he has examined himself before the trial Court The said evidence of respondent has left unchallenged by the petitioner and the petitioner has failed to rebut the presumption available in favour of the respondent-landlord under the Act The counsel for the petitioner much argued with regard to the hardship and inconvenience which is going to cause to the petitioner if an eviction is ordered. But, under the KR Act, 1999 the comparative hardship lost its relevance and the same cannot be taken into consideration in the eviction petition.

Viewed horn any angle, I do not find any good grounds to interfere with the order under challenge and the same does not require any interference.

Therefore, the revision petition fails and is dismissed. The petitioner is granted time till 30-6-2008 to vacate and hand over vacant possession of the petition schedule premises to the respondent. The petitioner shall file an affidavit undertaking to that effect within two weeks from today. The petitioner shall pay the rents regularly to the respondent as and when it becomes due. The amount in deposit shall be released to the respondent-landlord.