Majitha Beevi and Sanooja v. Abdul Vahab and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **THURSDAY, THE 12TH DAY OF DECEMBER 2013/21ST AGRAHAYANA, 1935** **RSA.No. 44 of 2011 (E)** **----------------------AS 261/2008 of ADDL. DISTRICT COURT-III, THIRUVANANTHAPURAM OS 1545/2005 of ADDL.MUNSIFF COURT, THIRUVANANTHAPURAM** **-------------** **APPELLANT(S)/APPELLANTS/COUNTER CLAIM DEFENDANTS :-** **------------------------------------------------------** **1. MAJITHA BEEVI, D/O.THE LATE ASUMA BEEVI, ATTARIKATHU VEEDU, 11TH STONE, NEDUMANGAD THIRUVANANTHAPURAM.** **2. SANOOJA, D/O.THE LATE ASUMA BEEVI, ATTARIKATHU VEEDU, 11TH STONE, NEDUMANGAD THIRUVANANTHAPURAM.** **BY ADVS.SRI.B.SATHIQ SRI.C.ANIRUDHAN** **RESPONDENT(S)/RESPONDENTS/COUNTER CLAIM PLAINTIFFS :-** **--------------------------------------------------------** **1. ABDUL VAHAB, S/O.ABDUL RAHUMAN, NETTAYIL THADATHARIKATHUVEEDU, VALICODE, NEDUMANGAD PIN-695541.** **2. AMJATH, S/O.ABDUL VAHAB, NETTAYIL THADATHARIKATHUVEEDU, VALICODE, NEDUMANGAD PIN-695541.** **3. SADDAM, S/O.ABDUL VAHAB, NETTAYIL THADATHARIKATHUVEEDU, VALICODE, NEDUMANGADU PIN-695541.** **BY ADV. SRI.K.B.PRADEEP** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12-12-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **jvt** ## **N.K.BALAKRISHNAN, J. -------------------------------R.S.A. No.44 of 2011 ------------------------------Dated this the 12[th] day of December 2013** ## **J U D G M E N T** The suit O.S.No.87/2004 was filed by the appellants herein against the respondents herein. After transfer of O.S.No.87/2004 which was pending before the Munsiff's Court, Nedumangad, it was re-numbered in the court of the Munsiff, Thiruvananthapuram as O.S.No.1545/2005. In that suit a counter claim was filed by the respondents herein against the appellants herein. The suit was dismissed for default. The counter claim alone was proceeded with. The trial court granted a decree in favour of the respondents, who are the plaintiffs in the counter claim and against the appellants herein directing the appellants herein to surrender vacant possession of the house building, shown in the schedule to the counter claim, to the respondents herein. That was confirmed in appeal by the learned Addl. R.S.A. No.44 of 2011 -: 2 :- District Judge. 2. In this RSA, the learned counsel for the appellants submits that the courts below went wrong in holding that the plea of tenancy set up by the appellants are unsustainable since they had sought for partition of the plaint schedule building. Since the right available to a tenant under the BRC Act is a statutory right even if an alternate contention was raised by the appellants that will not estop the appellants from pursuing their remedy under the statute. 3. The gist of the submission made by the learned counsel is that the principle of approbation and reprobation cannot have any application so as to defeat the statutory right. 4. Ext.A35 is the lease deed which is pressed into service by the appellants to contend that their mother had tenancy right over the suit building. It was in respect of the suit building and the appurtenant land measuring a total of about 5 cents a suit for partition was filed by the appellants R.S.A. No.44 of 2011 -: 3 :- contending that their mother had right over the said property. That was found against. Much has been argued by the learned counsel for the appellants that, as can be seen from paragraph 9 of the written statement, the fact that the lease deed (Ext.A35) was not in serious dispute but the courts below failed to rely upon Ext.A35 on the ground that it was an unregistered document. It is not in dispute that going by the recital in Ext.A35, it creates a lease in perpetuity and if that be so, the lease deed should have been registered. It cannot be admitted in evidence as it was not registered, in view of the embargo contained in Sec.49 of the Registration Act . 5. The courts below found that the property shown in the schedule to the counter claim belongs to the respondents and that the mother of the appellants was only permitted to reside in the house and hence, the decree for recovery of possession was granted. That finding does not suffer from any legal infirmity. 6. Learned counsel for the appellants has relied ## R.S.A. No.44 of 2011 -: 4 :- upon the decision of the Hon'ble Supreme Court in **Commissioner of Income Tax. Madras** v. **The Commissioner of Income-Tax. Madras** [AIR 1965 SC 1216] in support of the contention that the principle of approbation and reprobation does not prevent the party from pleading that they are entitled to the protection under Sec.11 of the Kerala Act, 2/1965. In the aforesaid decision, it was held by the Hon'ble Supreme Court that the creditorassessees were not precluded on the principle of “approbate and reprobate” from pleading that the income they derived subsequently, by realisation of the revived debts, was not a taxable income. The doctrine is only a species of estoppel and cannot operate against the statute. If a particular income is not taxable under the Income-tax Act, it cannot be taxed on the basis of estoppel or any other equitable doctrine, it was held. 7. Learned counsel has also relied upon the decision of the Punjab and Haryana High Court in **Hans Raj Bansal** v. **Hardev Singh** [AIR 1984 Punjab Haryana 229]. It is R.S.A. No.44 of 2011 -: 5 :- pointed out that the facts dealt with therein are applicable to the facts of this case. True that, if there is evidence to show that the appellants' mother was a tenant and that the appellants, being the legal heirs were in possession of the suit building as tenants then they can be evicted only by recourse to the provisions contained in BRC Act. The decision of the Hon'ble Supreme Court in **Devasahayam (dead) by Lrs.** v. **P.Savithramma and others** [AIR 2006 SC 779], **M.D., Army Welfare Housing Organisation** v. **Sumangal Services Pvt. Ltd.** [(2004) 9 SCC 619] and **Bhau Ram** v. **Baijnath Singh and others** [AIR 1961 SC 1327] have also been relied upon by the learned counsel for the appellants in support of the contention that the principle of approbation and reprobation cannot be applied to preclude the appellants from claiming tenancy right. 8. Learned counsel for the respondents would submit that if Ext.A35 is eschewed from consideration, then there is nothing on record to show that the appellants are tenants of the suit building. There is no independent R.S.A. No.44 of 2011 -: 6 :- evidence to show that the appellants' mother was a tenant. No document was produced to show that she had ever paid rent to the respondents admitting the landlord-tenant relationship. The case was proceeded on the footing that the appellants' mother was having co-ownership right over the property and as such, the plea of tenancy set up by her cannot be sustained. 9. It is further submitted by the learned counsel for the respondents that the circumstances under which Ext.A35 came into existence also is well discernible from the discussions made by the courts below. It was stated that 10 cents of land was earlier given to the mother and her children. That property was sold away and when the mother was homeless and was on the street, she was again allowed to stay in the suit house, but thereafter her children started claiming right over the property stating that they have got half right over the property. In order to avoid any other claim being put forward, Ext.A35 was executed and not to confer any tenancy right. Whatever that be, the R.S.A. No.44 of 2011 -: 7 :- courts below found that the appellants could not prove that they have got tenancy right over the suit building. Their plea that they are co-owners of the plaint schedule property was rightly found against by the courts below. The courts below have rightly found that the plea of tenancy set up by the appellants is unacceptable. I find no reason to upset that concurrent finding. No substantial question of law arises in this RSA and hence, it is dismissed. **Sd/N.K.BALAKRISHNAN, JUDGE.** //True Copy// P.A. To Judge Jvt