L.K.K. Gafoor vs M.T. Lakshmana Mudaliar (died) and Another

P. Venugopal, J.—The petitioner, respondent before the lower Court, was a tenant under the first respondent in respect of one portion of a

non-residential building comprised in No. 179-A, Ramakrishna Mutt Road, Mylapore, Madras, on a monthly rent of Rs. 100. The landlord, the

first respondent herein, filed an application for eviction of the petitioner on the ground that the portion occupied by the petitioner is required by the

first respondent for running a tea stall and the first respondent was not in occupation of any non-residential building in the City of Madras. The Trial

Court dismissed the petition holding that the first respondent had not taken steps for securing licence for running the tea stall and the requirement of

the building by the first respondent was not a bona fide one. On appeal, it was held that the mere fact that the first respondent had not obtained

licence from the Police and Corporation for running a tea stall in the premises cannot be considered as a fact against him, and the Corporation

licence and Police licence can always be secured by the first respondent after getting the order of eviction. The appellate Court came to the

conclusion that requirement of the building by the first respondent was a bona fide one, and disagreeing with the findings of the trial Court passed

an order of eviction against the petitioner. Aggrieved against the order of the appellate Court, the petitioner has come up before this. Court by way

of revision.

During the pendency of the revision petition, the first respondent died and his wife has been impleaded as the second respondent.

The main contention of the petitioner is that the order for eviction passed u/s 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control)

Act, 1960 on the ground of personal requirement of the first respondent for carrying on business in the building is personal to the first respondent,

and after his death, it lapses and cannot enure to the benefit of his legal heirs. In support of the contention, the decision in Muhammad Ibrahim v.

Rahiman Khan (1947) 2 M.I.J. 654: (1947) M.W.N. 655 is relied on. The learned Counsel for the second respondent contended that the doctrine

that a personal right dies with the person, cannot be invoked having regard to the statutory provisions contained u/s 10(3)(a)(iii) of the Act and the

eviction order passed gives a vested right which runs with the estate and cannot be divested by the death of the first respondent, and the eviction

order passed enures to the benefit of the legal heirs of the deceased first respondent as it has became annexed to the property. In support of this

contention, the learned Counsel for the second respondent relies on a decision of the Supreme Court in Shantilal Thakordas and others v.

Chimanlal Maganlal Telwala (1976) R.G.J. 811 and the decision of the Madras High Court in Vijayaraghavan Vs. Mohammed Yakub Rowther

(died) and Others, .

In the case of Shantilal Thakordas, a partnership styled as Jai Hind Silk Weaving Works, had three partners. One of the partners, Thakordas

Bhagwandas, filed a suit for eviction of the tenant from the premises on the ground that the building was required for the use of the partnership firm.

The trial Court ordered eviction. During the pendency of the proceedings before the High Court, Thakordas Rhagwandas died and his legal heirs

were impleaded. The High Court held that the right to sue did not survive to the heirs of Thakordas Bhagwandas and on the short ground set aside

the order of eviction. On a further appeal, the Supreme Court held:

If the law permitted the eviction of the tenant for the requirement of the landlord for occupation as a residence for himself and members of his

family'', then the requirement was both of the landlord and the members of his family. On his death the right to sue did survive to the members of

the family of the deceased landlord. We are unable to take the view that the requirement of the occupation of the members of the family of the

original landlord was his requirement and ceased to be the requirement of the members of his ''family on his death. After the death of the original

landlord the senior member of his ''family takes his place and is well competent to continue the suit for eviction for his occupation and the

occupation of the other members of the family.

In Vijayaraghavan Vs. Mohammed Yakub Rowther (died) and Others, the landlady filed an application under the provisions of the Tamil Nadu

Buildings (Lease and Rent Control) Act, 1960 on the ground that she wanted the leased premises for her husband''s business. Eviction was

ordered. During the pendency of the appeal, the landlady died and her husband, her son and daughter were brought on record and the appeal was

further prosecuted. The order of eviction was confirmed against which the tenant came up on revision before this Court. During the pendency of

the revision petition, the husband of the landlady also died. The question arose whether the son and daughter were entitled to the benefit of the

order of eviction. It was held that the exception to the doctrine actio personalis moritur cum persona that a personal right dies with the person can

be certainly invoked having regard to the peculiar nature of the right obtained by the landlord under the provisions of the Tamil Nadu Buildings

(Lease and Rent Control) Act (XVIII of ted. The order of eviction was confirmed 1960), and what the order of eviction secured is not a personal

right, but an incorporateal right vested in the landlord and cannot be divested by his death, and it could pass on to the heirs as it becomes part and

parcel of the property owned by the landlord.

The general principle actio personalis moritur cum persona has some well recognised exceptions. The short question for consideration is whether

the order of eviction passed in the present case falls within that exception. Section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent

Control) Act provides that if the landlord requires a non-residential building for carrying on business by himself or members of his family, he can file

a petition for eviction of the tenant, provided he or the members of his family are not in occupation of any non-residential building in that locality.

The very fact that Section 10(3)(a)(iii) provides that the landlord can require the building occupied by the tenant for carrying on business by him or

the members of his family is a clear indication to show that the section itself provides a statutory exception to the doctrine actio personalis moritur

cum persona. When the landlord obtains an order of eviction u/s 10(3)(a)(iii), such a right cannot be characterised as a personal right which comes

to an end with the death of the landlord. It is an incorporeal right annexed to the estate of the deceased and it can be taken advantage of by the

legal representatives of the deceased. The order of eviction secured by the landlord in the present case is a right which is annexed to the property

and it cannot be divested by his death and would, therefore, pass on to his heirs as being part and parcel of the property owned by the landlord. It

is contended for the petitioner that the landlord filed the application for eviction on the ground that he required it for the purpose of carrying on

business by him and not by the members of his family, and in the face of such averment in the petition for eviction, the order of eviction passed is

personal to the landlord and comes to an end with his death. The absence of an averment in the petition that the building was required for carrying

on business by the landlord or the members of his family will not by itself convert a non-personal action into one of personal action. The statutory

exception provided u/s 10(3)(a)(iii) of the Act to the doctrine actio personalis moritur cum persona cannot be governed or controlled by the

pleadings of parties and hence will not come to an end on the death of the first respondent. It will certainly enure to the benefit of his legal heir, the

second respondent herein. In this view, the order of eviction passed is confirmed, and the revision will stand dismissed, with costs. 4 months time

granted for vacating the building.