Vijayalakshmi and Others vs Vasantha and Others

Srinivasan, J.—This appeal is taken up for final disposal with the consent of parties.

In a suit for partition, namely, O.S. No. 92 of 1980 on the file of the Subordinate Judge''s Court, Tuticorin, a decree was passed in favour of

respondents 1 and 2 herein. Clause 12 of the decree directed the plaintiffs in that suit to deliver possession of items 7 and 9 to 12 of the plaint II

schedule properties to defendants 2 and 3 therein respondents 1 and 2 herein are defendants 2 and 3 in that suit. Item 7 in that suit is the property

to which the present proceedings relate. When the decree holders attempted to take delivery of possession of the property, the appellants herein

obstructed. A petition to remove their obstruction was filed by the decree holders in E.A. No. 30 of 1988 and the petition was ordered by the

executing court. The appellants filed C.M.A. No. 1070 of 1990 in this Court. By order dated 4.2.1991, I set aside the order passed by the

executing court to a limited extent and remanded the matter for fresh disposal for the purpose of considering the claim put forward by the

appellants 2 and 4 in that appeal, who are appellants 2 and 4 herein. Inspite of the remand being a limited one, the present appeal has been filed

once again by all the appellants who are obstructors. In view of the earlier order in C.M.A. No. 1070 of 1990, appellants 1 and 3 have no case. I

have to consider only the claim put forward by the appellants 2 and 4.

I will refer hereafter appellants 2 and 4 as claimants. It is the case of the claimants that their father Duraisami Nadar took on lease the vacant site

of the premises in question on 15.9.1952 under the document marked on Ex.B-22. According to them, the superstructure was constructed by

Duraisami Nadar, who was running a business in the name of Duraisami Nadar & Co. in partner ship with one Sankaralingam Pillai -third

respondent herein. It is also their case that in 1962 a fresh lease deed was executed on 21.8.1962 under Ex.B-23. According to the claimants,

they became partners of the firm during the life time of Duraisami Nadar and after his death, they were entitled to continue the partnership firm and

as such, entitled to be in possession of the property. According to them, they cannot be dispossessed of the property.

The decree-holders contended that the lease in favour of Duraisami Nadar was that of the building and not vacant site and that lease came to an

end when Duraisami Nadar got assignment of the othi in favour of Pon Singh, executed by the first defendant in the suit. It is the case of the

decree-holders that on the assignment being taken by Duraisami Nadar, his leasehold rights, if any, ceased to exist and thereafter, he could have a

right only as an othidar or usufructuary mortgagee. It is, therefore, contended by the decree-holders that the only claim if at all that can be put

forward by the claimants is that of an usufructuary mortgagee and there is already a suit filed by the decree-holders for redemption of the said

mortgage in O.S. No. 246 of 1991 on the file of the District Munsifs Court, Tuticorin.

The executing court has after remand come to the conclusion on a consideration of the evidence on record that the claimants have no right to

continue in possession as their rights as lessees, if any, came to an end on their father taking an assignment of the othi and the othi being during the

pendency of the suit was hit by the doctrine of lis pendens with the result that they were not entitled to resist the decree for possession. It is also the

finding of the lower court that the subject matter of the lease in favour of Duraisami Nadar was only a building and not a vacant site.

It is argued on behalf of the claimants that the court below has overlooked the evidence on record, which proves conclusively that the subject

matter of the original lease was a vacant site and that the building was erected by Duraisami Nadar. It is also argued that the court below has

misread the documents filed in this case. It is the contention of the claimants that there was no merger of the tenancy rights with the rights under the

othi and the claimants had both rights intact. According to learned Counsel, even if the othi is redeemed, the claimants will continue to be tenants

and they cannot be dispossessed. Alternatively it is contended that even if the claimants are tenants of the building, they cannot be evicted except in

accordance with the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act and the decree passed by the Civil Court cannot be

executed against them. It is the further contention of learned Counsel that the othi was taken by Duraisami Nadar in his individual capacity and that

will not effect the leasehold rights of the firm Duraisami Nadar & Co. According to him, the claimants being partners of the firm are entitled to have

the leasehold rights intact. Thus it is contended that the order passed by the Court below should be set aside.

It is not necessary to set out the contentions put forward by the decree-holders as they are only in support of the order made by the court

below. The earliest document relied on by the claimants is Ex.B-22, dated 15.9.1952. In the body of the said document, there are recitals to the

effect that the subject matter of the lease was a vacant site and it was being let out for the purpose of running a business. Clause 5 permits the

lessees to erect superstructures at their own cost with the permission of the lessor. Clause 4 provides that such superstructures shall be removed at

the time of expiry of the lease without causing any damage to the subject matter of the demise and possession should be handed over to the lessor.

The lease is in favour of two persons, namely, Duraisami Nadar and Sankaralingam Pillai. It is not in favour of the firm as such. The contention of

learned Counsel for the claimants that the firm was a lessee cannot be accepted. The description of Duraisami Nadar reads that he is a proprietor

of Duraisami Nadar & Co. The description of Sankaralingam Pillai is that he is a partner in theaforesaid firm. There was no necessity to mention

two persons as parties to the lease deed, if the lease was in favour of the firm. One of them could have represented the firm as partner thereof. The

very fact that both of them were made parties to the document and the reference made in other clauses of the document show that the lease was in

favour of individuals and not in favour of the firm.

No doubt the door number is mentioned in the schedule as 54-A and 65 A. But, that will not go against the express recitals in the body of the

documents to the effect that the subject matter of the lease was a vacant site. The court below relied on the reference to the door number and has

taken the view that the subject matter of the lease was a building. That view is erroneous.

The next document of lease is dated 21.8.1962 and it is marked as Ex.B-23. It is in favour of Duraisami Nadar only as a lessee. The recitals in

the body of the document refer to land rent. In the schedule, the property is described as Door No. 64-A timber shop, land and site. There is no

comma in between the words. Learned Counsel for the claimants wants to read it as ""timber shop and land and site"". Unless there is a specific

averment to that effect it is not possible to read it so. At any rate, the recitals inside the document show that it was land rent. Hence, the subject of

the demise under Ex.B-23 could only be a land and not a superstructure. Both the documents Exs.B-22 and B-23 are registered documents. But

the genuineness of the same has not been shaken in the evidence, though challenged initially. But that does not bring to an end the claim put

forward by the decree-holders. The othi deed dated 31.7.1978 executed in favour of Pon Singh by Sankaralingam Pillai, the lessor supports the

decree-holders. The recitals as well as the schedule show undoubtedly that the subject matter of the usufructuary mortgage is the building and the

site beneath. There is an express reference in the schedule to the building erected on the site bearing Door No. 64. The document reads as if the

mortgagor/lessor was the owner of the site as well as the superstructure. It is stated that the mortgagee Pon Singh wanted the father of the

claimants, who was the lessee to vacate the premises. Copy of the letter said to have been written by Pon Singh on 10.11.1978 is filed and

marked as Ex.B-6. Prior to that, the lessee is said to have sent a cheque along with a covering letter dated 8.11.1978. That letter has not been

produced before the court. On 31.1.1979, Duraisami Nadar had taken an assignment of the othi for a sum of Rs. 3,500 under Ex.B-12. That

document clearly refers to the building on the property. The recitals of the document are to the effect that the assignee should hand over possession

of the property described in the schedule thereof, when the mortgagor pays the money. The assignee was also directed to take such steps as

necessary to collect the mortgage amount, in the event of the mortgagor failing to pay the same. In the description of property, there is an express

reference to the building. In the sworn statement given under Rule 3(1) of the Rules framed under the Tamil Nadu Stamps (Prevention of Under-

valuation) Act, there is a break up of value of the site, building and compound wall. The site is separately valued at Rs. 25,000 the building is

valued at Rs. 2,500 and that compound wall is valued at Rs. 2,500. The total valueis mentioned as Rs. 30,000 There can be no doubt whatever

the Duraisami Nadar took assignment of the othi of the buildingas well as the site. If on that date, hewas the owner of the building he would have

definitely taken care to introduce such recitals as may be necessary to indicate his ownership of the building in the document. The mere fact that he

had taken the assignment of the othi as if the buildingand the site both belonged to the mortgagor shows that by the time of the othi in favour of Pon

Singh executed on 31.7.1978, the mortgagor had become the owner of the building.

No doubt, there is no documentary evidence to show as to how the mortgagor became the owner of the building. The case of the decree-

holders is that the building was always owned by the mortgagee. There is a time gap of atleast 16years between Ex.B-23, the second lease and the

usufructuary mortgage dated 31.7.1978 (Ex.B-11). What transpired between Duraisami Nadar and Sankaralingam Pillai during that period is not

made available to the Court. Nobody who has knowledge about the facts had been examined by the claimants. The only witness who has been

examined on the side of the claimants is Ramamoorthy, second appellant. He does not know anything about the relevant facts. He was born,

according to him, on 29.11.1953, that is, after Ex.B-22. According to him, he became a partner with his father in 1975. He does not give any

explanation as to why his father took assignment of the othi in favour of Pon Singh without raising a demur as to the validity of the usufructuary

mortgage in so far as the building was concerned. In the absence of an attempt even to explain the assignment of the othi over the building as well

as the site, the unmistakable evidence afforded by the documents Exs.B-11 and B-12 should be accepted by the court and it has to be held that on

the date of Ex.B-11. Duraisami Nadar was not the owner of the superstructure even if he had been the owner thereof earlier. At some earlier point

of time, the ownership had passed on to the mortgagor. It is the duty of the court to give effect to the inference to be drawn from the evidence on

record even if in finding is not consistent with the pleadings of either party. Vide : Thiruma-lai Iyengar v. Subba Raja (1962)1 M.L.J. 193.

It is argued that Ex.B-24 account book of the shop run by the firm Duraisami Nadar & Co., proves the construction of the building by the firm.

Nobody has been examined to prove the entries in Ex.B-24, The second appellant has admitted that he does not know anything personally about

the said accounts. The mere production of the account book will not be sufficient to prove the claim of the claimants. Even assuming that the

account book proves that the superstructure was constructed by Duraisami Nadar, the ownership did not continue with him till 1978 when the

usufructuary mortgage was executed in favour of Pon Singh. Hence, no reliance can be placed on the account book to prove the present

ownership of the superstructure with the claimants.

The contention that the assignment of othi has been taken by Duraisami Nadar, individually and the lease was in favour of the firm is without

any substance. I have already referred to the fact that Ex.B-22 was not in favour of the firm, but on the other hand, in favour of two individuals.

Ex.B-23 is undoubtedly in favour of only one individual, namely, Duraisami Nadar. Hence the assignment of othi taken by Duraisami Nadar proves

conclusively that the ownership of the building had not continued with him till 1978. Ex.D-11 was drawn to the attention of the second appellant in

the cross examination and he merely states that Pon Singh took usufructuary mortgage both for the buildingand the vacant siteand that the claimants

had taken assignment of the same othi. It is his further case that his wife and his brother''s wife, who are appellants 1 and 3 have taken othi of the

building and the land from Sankaralingam Pillai. That othi is dated 31.5.1984 marked as Ex.B-18. Obviously Sankaralingam Pillai was trying to

place hurdles in the way of the successful parties in the suit for partition and effecting alienations during the pendency of the litigation. One such

alienation is the othi in favour of appellants 1 and 3. That was clearly during the pendency of the suit. Hence, that othi is wholly ineffective.

The contention that there is no merger of the leasehold rights with othi rights and that the claimants will continue to have both rights is

unsustainable. Reliance is placed by learned Counsel for the claimants on the judgment of the Supreme Court in Nemi Chand Vs. Onkar Lal, , in

support of his proposition that when a lessee enters into a transaction of usufructuary mortgage, the lease does not come to an end and it will

subsist even after redemption of the mortgage. In the case before the Supreme Court, the lessee in possession lent certain amount to the lessor on

the security of the property and it was mortgaged to him by the landlord. One of the terms of the mortgage was that during the period of the

mortgage, which was to last five years, neither interest nor rent was payable by the tenant, both the amounts being equal. Relying on that clause,

the Supreme Court held that the document showed that rent was kept alive and it had to be adjusted against interest due under the mortgage. It

was only in those circumstances, the Supreme Court held that the relationship of landlord and tenant subsisted and there was no merger of the

lease and the mortgage. The observations of the Supreme Court that there was no extinction of either of the two rights should be understood in the

context of the facts. The Supreme Court made reference to its earlier judgments in Nandlal v. Sukh Dev (1987) S.C.C. 87, Shah Mathuradas

Maganlal and Co. Vs. Nagappa Shankarappa Malage and Others, and Sambangi Applaswamy Naidu and Others Vs. Behara Venkataramanayya

Patro and Others, . The ruling in Shah Mathuradas case applies squarely to this case. In that case, the Supreme Court on a construction of the

mortgage deed held that there was a surrender of tenancy rights. In this case too, the recitals in Ex.B-12 prove that the household rights were not

kept alive. On the other hand, the claimants themselves understood that they had rights only as othidars and they did not have any other right vis-a-

vis the mortgagor. I have already referred to the terms of Ex.B-12, the deed of assignment to the effect that the assignee was directed to hand over

possession of the property as and when the money due under the mortgage was paid by the mortgagor to him. In the counter statement filed by the

claimants in the present proceedings for removal of obstruction, it is stated in paragraph 10 as follows:

(From the date of assignment of othi, respondents 3 and 5 are paying the tax in their capacity as othidars). In paragraph 11, it is stated as follows:

The contention in paragraph 11 is that on 30.5.1984 Sankaralingam Pillai executed the othi in favour of second respondent, wife of third

respondent and 4th respondent, wife of 5th respondent, on receiving a sum of Rs. 25,000 for a period of 10 years., and thereafter respondents 3

and 5 are paying rent to respondents 2 and 4. Thus the claim put forward by the claimants in paragraph 11 is that the/are tenants under

respondents 2 and 4 and their wives are entitled to be in possession pursuant to the othi dated 30.5.1984.

It is stated again in paragraph 14 of the counter statement that respondents 3 and 5 are in possession in their capacity as othidars and the

petitioners had no right to remove them. In paragraph 15, it is asserted t hat the othi in favour of respondents 2 and 4 is for a period of 10 years

which expires on 30.5.1994 and therefore, the decree-holders have no right to dispossess the claimants till 30.5.1994.

In the evidence, second appellant has categorically admitted in cross examination that all the taxes have been paid only in the capacity of

othidars and that they pertain to land as well as the building. It is also admitted that Ex.B-19 which is a receipt for payment of rent dated

31.3.1988 is for the building also. Thus, the evidence on record proves beyond doubt that the claimants are putting forward their rights as othidars

and not as lessors. It is not open to them at this stage to turn round and contend that they are lessors and therefore, entitled to continue in

possession till appropriate proceedings are taken against them for evicting them in accordance with law.

As I have already held, the claimants were only tenants of the building and that their tenancy rights had come to an end on the date of the

assignment of the othi obtained by their father Duraisami Nadar. Therefore, the claimants cannot resist the execution of the decree obtained by the

respondents 1 and 2 herein.

The rights of the claimants as othidars continue to subsist as there is so far no redemption of the othi by the decree-holders. It is stated that a

suit has been filed by respondents 1 and 2 herein in O.S. No. 246 of 1991 on the file of the District Munsifs Court, Tuticorin, for redemption of the

said othi. It is only on redemption of the othi, the decree-holders in that suit, namely, respondents 1 and 2 herein are entitled to get actual

possession of the property. As at present, the executing court can only direct symbolic possession in favour of the decree-holders on removal of

obstruction caused by the claimants. It is open to the decree-holders to take actual possession after getting a decree for redemption in O.S. No.

246 of 1991 on the file of the District Munsifs Court, Tuticorin.

In the result, the appeal is partly allowed and the order of the trial court is modified as follows: The obstruction caused by the

claimants/appellants is removed. But, there will be delivery of possession symbolically to respondents 1 and 2 herein. It is for respondents 1 and 2

to get a decree for actual possession in O.S. No. 246 of 1991 on the file of the District Munsifs Court, Tuticorin. The parties will bear their own

costs.