Murthy M.V. vs House Rent and Accommodation Controller and Another

HAKEEM, J.-This appeal is directed against the order of the learned Single Judge, dated 31st March 1983 passed in Writ Petition No. 845 of 1983.

Briefly stated the facts of the case are as follows:

The appellant has been in occupation of the residential building bearing No. 237, 18th cross, Upper Palace Orchards, Bangalore, as a tenant on a monthly rent of Rs. 2,800/-. Respondent-2 is a co-owner of that building. She is in occupation of another building as a tenant on allotment by the Rent Controller under the Karnataka Rent Control Act, 1961 (hereinafter referred to as the Act). Respondent-2 made an application under Sec. 21A(1)(b) of the act before the Rent Controller to recover possession of the building under the occupation of the appellant by summary eviction. The said application was contested by the appellant, inter alia, on the ground that the building in question is jointly owned by respondent-2 and her three sons and she is only a rent collector. It was urged that respondent-2 admittedly not being the absolute owner of the building in question, has no locus standi to file the petition for his eviction under Sec. 21A of the Act.

The Rent Controller upon consideration of the material on record, by his order dated 21st December 1982 directed the appellant to vacate the building and deliver vacant possession thereof to respondent-2, treating her as the sole owner of the property on the basis of the transfer of katha in her name. The appellant challenged the validity of the said order of respondent-1 and sought for quashing the same by an appropriate writ. The learned Single Judge did not find any illegality or incorrectness in the order passed by the Rent Controller against the appellant and dismissed the writ petition. Being aggrieved by the said order of the learned Single Judge, the appellant has preferred this appeal.

The short question that arises for consideration is in this appeal is whether a co-owner of the premises is ''the owner'' within the purview of Sec. 21A of the Act and entitled to invoke the said provision for evicting the tenant by the summary procedure prescribed thereunder.

We must first refer to Sec. 21A. The relevant portion of the section reads:.

"21A Vacation of residential building in certain cases-(i) Notwithstanding anything contained in this Act, on and from the date of coming into force of this section,- (a) any person who is in occupation or possession of a residential building as a tenant on allotment by the Controller shall, within one year from the said date vacate such building if he owns in his name orin the name of any member of his family, a residential building in the same city, town, or village (hereinafter referred to as ''his own building''), (b) such person shall be entitled to recover possession of his own building, in case it is let out to any other person and he may apply to the prescribed authority for eviction of such other person: Provided that no such application, shall be entertained unless the applicant has given notice of not less than four months requiring the person sought to be evicted to vacate the said building". (Emphasis supplied)

The above provision was inserted by the Karnataka Act No. 66 of 1976. It is clear from the explanatory statement in the objects and reasons, that this provision was intended to make it compulsory for persons occupying rented premises, who own residential houses of their own to recover its possession from the tenants.

A reading of the section discloses that a right to recover immediate possession of the premises accrues to certain persons if the following conditions are satisfied:

(i) the person must be in occupation of a residential premises on allotment by the controller, (ii) such a person must own a residential building either in his name or in the name of any member of his family in the same city, town or village; and (iii) the person must give notice of not less than four months to his tenant sought to be evicted.

Respondent-2 is one of the co-owners of the building, the other co-owners being her sons, who are staying abroad. The case of respondent-2 is that she requires the premises for her own occupation as she is at present residing in a rented premises which had been allotted by the Rent Controller. Her three sons have filed affidavits stating that the building is required by their mother and they have released their rights in her favour. Of course, the affidavits alone cannot make the mother as the sole owner of the property. The question, therefore, is whether respondent-2 can invoke the provisions of Sec. 21A of the Act when she is not the sole owner of the building.

Mr. S.S. Padmaraj, learned counsel for the appellant contended before us that the expression ''he owns in his name or in the name of any member of his family'' in Section 21A of the Act can admit of only one interpretation viz., that the person invoking the provisions of Sec. 21A of the Act to claim possession of the residential building must be the sole and absolute owner thereof. He urged that unless the person referred to in Sec. 21A is the absolute owner of the residential building, he cannot seek eviction of his tenant under the said provision. Since respondent-2 is only a co-owner of the building, she alone could not file such petition. Sri Padmaraj placed strong reliance upon the ruling in RAMAKRISHNA AITHAL v. Smt. BHAVANI KAUR & ORs. (1080(1) Karnataka L.J. 284).

In that case this Court was considering the applicability of Sec. 21A to the case of an allottee who was himself not the owner but a member of whose family being the owner of a building. It was held that unless the allottee-tenant himself owns a building, whether in his own name or benami in the name of any member of his family, Sec. 21A(1) does not require him to vacate the allotted premises. It appears to us that the question whether a co-owner of the premises should also be considered as the owner for purposes of Sec. 21A did not arise in the said case and hence the ratio of that decision is not of much assistance to the instant case.

On the other hand Mr. R.N. Narasimhamurthy, learned counsel for respondent-2 submitted that the co-owner is as much a owner in law and can maintain an application under Sec. 21A of the Act. According to the counsel, the requirements of the provisions of Sec. 21A are satisfied if the person referred to therein is the ''real owner'' as against an ostensible owner and as such a co-sharer or a co-owner in the property should also be considered as the ''owner'' within the purview of Sec. 21A.

In SRINIVASA VAKIL v. STATE (I.L.R. 1980(1) Karnataka-638) while considering the scheme of the Act providing for eviction of tenants where the landlord requires the premises for his own use, this Court has observed:

"The Principal Act itself has provided for a landlord seeking eviction of his tenant from a house where the former requires such house for his own bona fide and reasonable occupation or where the latter has acquired vacant possession of his own house. The change brought by Sec. 21A is to make it compulsory for a person who is in occupation or possession of allotted residential accommodation, to vacate such accommodation if he has his own house in the same city, town or village. Section 21-A also contains the consequential provision for such person getting the aid of the prescribed authority for summary eviction from his own house, his tenant instead of such person making an application under clause-(h) of the proviso to Section 21(1) of the Principal Act for eviction from his own house of his tenant. Thus Sec. 21A merely brings about a modification of the provisions of the Principal Act in regard to certain class of persons who are tenants on one hand and are also landlords on the other hand."

However, it is clear that considering the object in enacting Sec. 21A the broad concept of ''landlord'' as defined in the Act cannot be imported in Sec. 21A. To invoke the provisions of Sec. 21A the person referred to therein must be the owner of the premises in respect of which he seeks summary eviction of his own tenant.

12; In SRI RAMPASRICHA v. JAGANNATH (A.I.R. 1976 S.C. 2335), while dealing with the question whether a co-owner can be treated as the owner of the property, the Supreme Court observed: "Jurisprudentially, it is not correct to say that a co-owner of a property is not its owner. He 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. The position will change only when partition takes place."

It was further observed: "We are of opinion that a co-owner is as much an owner of the entire property as any sole owner of a property is."

This view was reiterated by the Supreme Court KANTA GOEL v. B.P. PATHAK (A.I.R. 1977 S.C. 1599). In the latter case the Supreme Court was considering the scope of Sec. 14A(1) of the Delhi Rent Control Act, 1958, which is analogues to Sec. 21A of the Act. There it was observed at page-1602: "The law having been thus put beyond doubt, the contention that the absence of the other co-owners on record, disentitled the first respondent from suing for a eviction, fails."

In the instant case, admittedly, respondent-2 is a co-owner along with her sons of the schedule premises, having inherited the same from her husband. It is further not disputed that respondent-2 is the lessor-landlord of the appellant in respect of the schedule premises. She is, therefore, competent to invoke the provisions of Sec. 21A to claim possession of the scheduled premises. The observations of the Supreme Court in SRI RAMPASRICHA vs. JAGANNATH (A.I.R. 1976 S.C. 2335) fully support the case of respondent-2

We have, therefore, no reasons to interfere with the order of the learned Single Judge.

In the result, this appeal fails and is dismissed. In the circumstances, we direct the parties to bear their own costs.

KJSJ & SAHJ OCT,

26, 1984.

Order on Oral S.C.L.A.P.

JAGANNATHA SHETTY, J:

Certificate prayed for appeal to the Supreme Court is refused since, in our opinion, the case does not involve any substantial question of law of general importance which needs to be decided by the Supreme Court.

However, we grant time to the tenant till the end of May 1985, i.e., till the end of the academic year to vacate the premises since he has got school going children.

1985(1)kar.l.j. 99

(A) Karnataka Stamp Act - Section-2(1)(a) - Definition of ''bond'' and under Article-12 meaning of ''bond'' - Schedule - Art. 30(c) - ''security deposit'' whether premium or fine U/s 105 of Transfer of Property Act or money advanced in addition to the rent reserved.

HELD: Security deposit is not the same thing as premium or fine as explained under Section 105 of the T.P. Act., or any money advanced in addition to the rent reserved.

Article 12 expressly excludes the other kinds of bonds referred to in the Note appended to the said Article, which are chargeable to duty, under the specific articles mentioned. What follows from the above is that the category of bonds mentioned in the Note, are not exigible to duty as a ''bond'' in the generic sense as defined in Section 2(1)(a) under Art. 12.

''Bond'' is a generic term. A bond is an instrument in writing by which a person binds himself or commits legally to pay a certain sum of money to another on certain conditions. Generally accepted definition of bond is that it is a certificate of evidence of a debt, more fully described in Section 2(1)(a). The security deposit does not answer the description of a premium or a fine and the same reason also holds good that it is not a bond in the generic sense. Thus, the document is not exigible to stamp duty either as premium or as bond in the generic sense.

(B) Karnataka Stamp Act - Schedule - Article-47 - The security deposit provided for in a lease deed attracts Article-47 and not Article 12 or Article 30(c) and it is not a fine or premium U/s 105 of T.P. Act.

HELD Security deposit in a lease deed is not a fine or premium within the meaning of Section 105 T.P. Act.

The Instrument is not chargeable to stamp duty as a bond under Art. 12 of the Schedule to the Karnataka Stamp Act. The instrument is to exigible to duty as provided U/s 47.