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

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

(Against order of Small Cause Court, Madras D/- 29-9-1975.)

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 has 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 factor 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 the requirement of the building by the first respondent

is 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 entire to the benefit of his legal heirs. In support of this contention, the decision in Muhammad Ibrahim v.

Rahiman Khan 1947Mad WN 655 is relied on. The learned count 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 under ''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 become annexed to the property. In support of this contention, the

learned counsel for the second respondent refer on a decision of the Supreme Court in Shantilal Thakordas v. Chimanlal Maganlal Telwala, 1976

Ren CJ 811 and the decision of the Madras High Court in Vijayaraghavan v. Md. Yakub Rowther, 1976 1 Mad LJ 128.

In the case of Shantilal Thakordas, 1976 Ren. CJ 811, 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 proceeding before the High Court, Thakordas Bhagwandas

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

that 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 v. Md. Yakub Rowther, 1976 1 Mad LJ 128 , 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 (XVII of 1960) and the order of eviction secured is not a personal right, but an incorporeal right vested in a 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 prevent 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 an business by him and not by the members of his family, and in the face of such averments 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 under 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 heirs, the second respondent herein. In this view, the order of eviction passed is confirmed and the revision petition will stand dismissed,

with costs. Four months time granted for vacating the building.

Petition dismissed.