J. Viswanatha Chettiar vs The Official Assignee, Madras and Others

Veeraswami, C.J.—The third respondent, who was brought on record in the appeal at his instance, was a tenant of Premises Nos. 557 and

558 in Pycrofts Road, Madras. The lease was granted to him by the appellant''s mother with effect from 1st January 1961 for a period of 12

years. The 3rd respondent, by an order dated 3rd July 1973 with reference to an act of insolvency on 16th September 1972 was adjudicated as

an insolvent. Earlier on 14th November 1972, the Official Assignee was appointed as an interim receiver and was directed to seal the premises

while the insolvency petition was pending. On an application by the appellant for the purpose, Sethuraman, J. directed the keys of the premises to

be handed over to the third respondent. This order is the subject matter of the appeal. Originally, the 3rd respondent had not been impleaded in

the appeal. While it was pending, at the instance of the appellant, the Official Assignee was asked to hand over the keys to him, the court not being

aware at that time that the 3rd respondent had an order in his favour and he was not a party to the appeal. The 3rd respondent contends that since,

on be expiry of the term of the lease, he became a statutory tenant within the meaning of S. 2(8) of the Tamil nadu Buildings (Lease and Rent

Control) Act, and as this right was merely personal to him and, therefore, did not vest in the Official Assignee, it is he who is entitled to have the

keys of the premises. On the other hand, according to the appellant, since the adjudication was with effect from 16th September 1972, the date of

the act of insolvency, and since the lease period came to an end only on 1st June 1973, the outstanding portion of the lease vested in the Official

Assignee on the adjudication of the third respondent and that, therefore, the third respondent would not be entitled to possession of the premises.

But, the Official Assignee at no time took possession of the premises. All that he did was to obey the directions of the court that the premises

should be sealed in order that later on he may take possession of the movables inside the premises. For the purpose of removing the movables the

premises were opened and that was how the Official Assignee came into possession of the keys. As a matter of fact, it appears that the third

respondent had continued to be in possession all the time though along with and on his lock on the premises was super-imposed another lock of

the Official Assignee to obey the orders for sealing the premises. But, this could not detract from the fact that the third respondent as a matter of

fact was not deprived of his possession at any time, until on the orders of this court, the keys were directed to be handed over by the Official

Assignee to the appellant.

It has been held in Mohanarangiah Chetti v. Official Assignee, 1965-I M.L.J. 221:77 L.W. 528 by a single Judge of this court, and this we think

is the correct decision, that statutory protection of a tenant, who continues to be in possession of the leased premises after the expiry of the term of

the lease, is not such property as would vest in the Official Assignee on adjudication of the person. In Hajee Abdulla Sait v. Moorjani and others

S.A. No. 83 of 1965 Since reported in 88 L.W. 559 (D.B.) a Division Bench of this Court held that, on death, the statutory protection of a tenant

holding over would come to an end as the protection was only personal to him, which could not be regarded as property. It follows, therefore, in

our opinion, that since the 3rd respondent had not been deprived of his physical possession of the premises at any time and such possession he

continued to have been after the termination of the period of the lease, he should be regarded as a tenant within the extended meaning of the

definition of the term under the Act and that being a personal protection to him as a statutory tenant, it did not vest in the Official Assignee. He is

therefore, entitled to the keys. The appeal is dismissed. No costs. We direct the handing over of the keys to the 3rd respondent by the appellant

by 5 p.m. tomorrow (2nd of September 1975).