S. Vadivel Pillai vs Pikasinidas Ammal and another

Rajagopala Ayyangar, J.—This revision petition, which is directed against an order of the learned District Judge of Madurai in a revision to

him under S. 12 (B) of the Madras Buildings (Lease and Rent control)Act 1949, raises for consideration an interesting question on the construction

of that enactment. The petitioner was a tenant under two individuals originally, impleaded as respondents 3 and 4 before the Rent Controller, but

who have since been deposed dropped out of the proceedings. There was a registered lease deed determining the terms of the tenancy and the

duration of the lease was a period of 61/2 years commencing from 16th November 1944 There were disputes between the owners of the property

and the petitioner. The petitioner, had effected certain repairs to the premises and was claiming large amounts as due to him on that account, as

also, for the payment of certain sums for municipal taxes and towards the discharge of debts owed by the owners of the property to third parties.

These disputes appear to have been settled and it was the case of the first respondent (whose identity I shall set out in an instant) that under this

settlement the tenant, the petitioner herein, was to be paid a sum of Rs. 2300 in full suit of his claims and that be should vacate and surrender

possession of the premises to the owners. These owners in their turn entered into an arrangement with the first respondent under which a sum of

Rs. 3000 was advanced to these owners, Rs. 2300 for the payment of the amount due to the petitioner, and Rs. 700 to be paid to the owners for

their family needs. Accordingly, on the 18th January 1954, a house rent agreement, which has been marked as Ex. A.1 in the case, was executed

between the first respondent and the owners, The principal stipulations of this agreement were that the suit premises Were to be let out to the first

respondent for a term of five years, the period to commence from the date on which the keys were handed over to her, and that she should pay a

monthly rental of Rs. 75 during this period. The agreement also referred to the advance of Rs. 3000 and made provision for its repayment. Further

to this agreement, there was executed an indenture between the parties dated 2nd February 1954 entitled a rent deed and also referred to as an

agreement as marked as Ex. A.3 in the case, embodying the terms of a lease for five years. Aimed with these documents, the first respondent filed

an application for the eviction of the petitioner from the suit premises before the Additional Rent Controller, Madurai-M.B.P. No. 391 of 1954.

The grounds of eviction were various and included wilful default in the payment of rent, subletting without the consent of the landlord, and use of

the premises, which had been let as a residential building, for non-residential purposes. All these grounds were controverted by the petitioner by

the statement of objection filed on his behalf. But the principal objection raised by him related to the locus Standi of the first respondent to maintain

the application for eviction. He contended that this respondent was hot a ""landlord"" within the definition of that term in the Madras Buildings (Lease

and rent control) Act, 1949, and was, therefore, not competent to file the application.

The Additional Rent Controller, who tried this petition in the first instance, held against the petitioner on all the grounds, repelled the preliminary

objection to the maintainability of the petition and directed eviction of the petitioner.

The petitioner took the matter in appeal to the learned Subordinate Judge of Madurai, who was the appellate authority under the statute. This

learned judge concurred in rejecting the preliminary objection and affirmed two of the grounds for eviction put forward on behalf of the first

respondent, viz., bona fide requirement for personal occupation and sub-letting without the consent of the landlord. He, therefore, affirmed the

order of the Rent Controller.

The petitioner filed a revision to the learned District Judge. The findings on the grounds of eviction were not canvassed and the only point argued

at that stage was as regards the maintainability of the petition by the first respondent. The learned District judge dismissed the revision holding that

the first respondent had an interest in the property by reason of the lease in her favour embodied in Ex. A.3 and therefore decided against the

petitioner. Hence this revision.

The sole question, therefore, for consideration in this revision petition is whether the first respondent is a ""landlord'''' within the definition of S. 2

(3) of the Act who could maintain an application for eviction under S. 7.

The petitioner, it is not disputed is a tenant in possession of a building. S. 7 of the Madras Buildings (Lease and Rent Control) Act, Act XXV of

1949 enacts:

7 (1): A tenant in possession of a building shall not be evicted therefrom whether in execution of a decree or otherwise and whether before or after

the termination of the tenancy except in accordance with the provisions of this section;

The other relevant provisions of S. 7 which enact inter alia the person on whose application the tenant may be evicted and the grounds upon which

the same may be ordered, are set out in S. 7 (2) and S. 7 (3) of the Act. In both of these, it is the landlord who is given the right to evict the tenant

on the grounds mentioned there. These sub-sections make it clear that a person has to be a ''''landlord"" within the meaning of this section before an

application by him for eviction could be entertained. We have therefore to ascertain the meaning of the expression ""landlord"" which is defined in S.

2(3) of the Act thus:

Landlord"" includes the person who is receiving or is entitled to receive the rent of a building, whether on his own account or on behalf of another

or on behalf of himself and others or as an agent, trustee, executor, administrator, receiver or guardian or who would so receive the rent or be

entitled to receive the rent, if the building were let to a tenant.

Analysing this provision the expression ""landlord"" would include four classes of persons:

a person who is receiving the rent of a building on his own account or on behalf of another; (2) a person who is entitled to receive the rent of a

building on his own account or on behalf of others; (3) a person who would receive the rent if the banding were let to a tenant; and (4) a person

who would be entitled to receive the rent if the building were let to a tenant.

I am unable to see any distinction between the last two categories and will therefore treat them as really one. In the present case the persons who

were receiving the rent on their own account on the date of the application before the Rent Controller Were undoubtedly the owners who were

impleaded as respondents 3 add 4 in the petition before the Rent Controller end the present first respondent was not receiving the rent. As the

building had been let to a tenant classes 3 and 4 are excluded and we are therefore left with class (2), i.e., ""a person who is entitled to receive the

rent of a building on his own account or on behalf of others"", It is not anybody''s case that the first respondent was claiming to receive the rent on

behalf of others. Therefore the only question is whether she Is a person ""who is entitled to receive the rent of the building on her own account.

Though the lease in favour of the petitioner under the registered deed dated 16th November 1944 had expired, he was a statutory tenant and

entitled to remain in possession of the property until be was duly evicted in accordance with the provisions of S. 7. It was during the currency of

this statutory term that the owners entered into the arrangement with the first respondent under Exs. A.1 and A.3. Of course there is nothing to

prevent a lessor dealing with the reversion after the creation of a lease and during its currency. S. 109 of the Transfer of Property Act makes this

dear and this enacts;

If the lessor transfers the property leased, or any part thereof, or any part of his interest there in, the transferee, in the absence of a contract to

the contrary, shall possess all the rights, and, if the lessee so elects, be subject to all the liabilities of the lessor as to the property or part transferred

so long as he is the owner of it; but the lessor shall not, by reason only of such transfer, cease to be subject to any of the liabilities imposed upon

him by the lease, unless, he elects to treat the transferee as the person liable to him.

By reason of this, a concurrent lease might be executed by the landlord. If the two deeds, Exs. A.1 and A.3 particularly, Ex. A.3 created a present

demise in favour of the first respondent-a demise under which her term commenced before the application for eviction there could be no doubt that

she would have all the rights of a ""landlord'' under S. 109 of the Transfer of Property Act and would be entitled, inter alia, to evict the petitioner.

The question, however, is whether the first respondent is a lessee whose term had commenced.

In approaching the question in this manner I have not ignored the fact that the doctrine of inter essetermine is not part of the law of India under

the Transfer of Property Act, but I might here note that this doctrine has been abolished even in England by S. 149 of the taw of Property Act,

1925. But even there S. 149 (2) provides in terms that a lease operates from the date fixed for the commencement of the term without actual entry,

so that before the date of the commencement of the term the right of the lessee is merely in personam against the lessor.

Apart however from this, the only question now relevant is whether the first respondent is a person notified to receive the rent of the building on

the date of the application for eviction.

The learned District Judge considered that the decisions of this Court reported in Manikkam Pillai v. Ratnaswami Nadar 33 M.L.J. 684=6

L.W. 689, and Bhogilal v. Subramania Iyer AIR 1954 Mad. 514, concluded the point against the petitioner. Before adverting to these decisions, it

may be useful to refer to the recite in the two deeds upon which reliance has been placed by the learned District Judge and which were also relied

on before me by the learned Counsel for the first respondent. Under S. 105 of the Transfer of Property Act, a lease is a transfer of a right to enjoy

immovable property made for a certain time, express or implied. As the lease purports to be for a term of five years, it is clear that the time of the

commencement of the lease is a matter of vital importance. The recital in Ex. A.1 as regards this matter is to be found in the second paragraph

reading thus :

Whereas it has been agreed that party No. 1 (the first respondent) should occupy the under mentioned house belonging to party No. 2 (the

lessors, the original respondents 3 and 4) and in their enjoyment being let out for rent for five years, from the date on which the party No. 2 handed

over the key and let the party No. 1 into possession thereof for a monthly rent of Rs. 75.

The agreement further provided that a formal registered rent deed would be executed and registered within fifteen days from that date. It was in

pursuance of this last stipulation that Ex. A.3 came into being. This is dated 2nd February 1954 and as regards the commencement of the lease and

its duration its terms are nearly identical with those in Ex. A.1, namely, the duration is five years from such date within three months from 18th

January 1954 on which party No. 2 puts party No. 1 in possession thereof. It is therefore clear from these that the term of five years provided

under the lease does not commence until possession is delivered to the lessee. Nor is there any provision in the document itself to indicate that the

lessee is to have any interest in the premises before such possession was delivered apart from any rights-she might have against her lessor-which is

irrelevant in the present context.

These being the terms of the documents I shall now turn to the two decisions on the basis of which the learned District Judge has held that the

lessee has an interest in the property even prior to the delivery of possession. Manikkam Pillai v. Ratnaswami Nadar 33 M.L.J. 684=6 L.W. 689,

dealt with a case where there had been a lease for ten years but this being invalid was treated as a monthly tenancy. During the subsistence of this

tenancy a lease for 20 years was granted in favour of the plaintiff and the question which was debated before the Court was whether a notice to

quit issued by the second (concurrent) lessee was valid. A Bench of this Court consisting of Spencer and Krishnan, JJ. held that a concurrent

lessee was a transferee of a part of the reversionary interest of the lessor who had under S. 109 all the rights of the lessor as to the property

transferred. But it will be noticed that the lease for 20 years in favour of the second tenant had commenced and it was during the subsistence of

that lease that he issued the notice to quit. That decision, therefore, does not assist the first respondent in the present case, whose term did not

commence on the date of her application for eviction. The other decision referred to is one by Ramaswami, J. reported in Bhogilal M. Davay Vs.

S.R. Subramania Iyer, . There, as in Manikam Pillai v. Ratnaswami Nadar 33 M.L.J. 684=6 L.W. 689 the second lease had taken effect and the

term of 25 years in favour of this lessee had commenced to run. It was by reason of this circumstance that the learned Judge said :

After the execution of the lease, the managers-trustee has no right to collect rents from any tenant who may be occupying portions of the premises.

That right has devolved upon the petitioner.

In contrast with this, in the present case, the obligation of the first respondent to pay rent to her lessor, would commence only from the date on

which possession was delivered to her. Till that time arrived, she would not be liable for rent and consequently the original owners of the property

would be entitled to the rents from the petitioner.

The matter may be looked at from another aspect viz., from the point of view of the transferors. It is obvious that there could not be two

persons having concurrent rights to receive the rent from a tenant in possession each in his own right-apart from joint owners. If the transferors,

viz., the original owners of the property, had a right to receive the rent on the date of the application for eviction, it is clear that the lessee, the first

respondent here, could have no such right. On the terms of Ex. A-3, it would not be possible to urge that on the execution of that document the

lessors deprived themselves of the right to receive the rent from the petitioner. Their right in that regard would cease only when they put the first

respondent in possession and only from that date would the term of fire years commence and along with that the obligation to pay the stipulated

rent. Until that time arrived, ""the person entitled to receive the rent,"" as that expression is used in S. 2 (3) of the Act, would be the original owners

of the property. If so, it necessarily excludes the right of the first respondent to receive the rents from the property.

In these circumstances, the question then is whether it can be said that the first respondent is a person who is receiving or is entitled to receive

the rent of the building. As mentioned already he is certainly riot receiving the rent because there has been no attornment or agreement between

herself and the tenant in that regard. Is she then a person entitled to receive the rent ? Under the terms of the documents, the material portion of

which I have set out earlier she is entitled to receive the rent only from the date on which possession is delivered to her. Until that date she is not

bound to pay rent and necessarily, therefore, would not be entitled to receive rent. In this view it appears to me to be clear that the first respondent

is not a ""landlord"" who is entitled to maintain the petition for eviction of the petitioner. The civil revision petition succeeds and the order for eviction

passed by the Courts below is set aside and the rent control application is dismissed. Having regard, however to the fact that the petitioner, who

originally appears to have promised to vacate the premises, went back on his words, I do not consider this a proper case to make any order as to

costs in this civil revision petition.