Radha and Gopalakrishnan v. Meenakshi

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 21ST DAY OF AUGUST 2012/30TH SRAVANA 1934 Rent Control (Rev.) No. 288 of 2012 () ------------------------RCA.4/2010 OF RENT CONTROL APPELLATE AUTHORITY (ADDL. DISTRICT JUDGE), THALASSERY RCP.145/1990 of RENT CONTROL COURT,KANNUR REVISION PETITIONERS/APPELLANTS/RESPONDENTS : ------------------------------------------------------------------------- 1. RADHA, AGED 74 YEARS CHIMMINIYAN HOUSE, P.O CHIRAKKAL, KANNUR DISTRICT 2. CHIMMINIYAN GOPALAKRISHNAN, AGED 52 YEARS CHIMMINIYAN HOUSE, P.O CHIRAKKAL, KANNUR DISTRICT BY ADVS.SRI.JOBY JACOB PULICKEKUDY SRI.ANIL GEORGE SRI.K.S.SUMEESH SRI.T.ANCY RESPONDENT/RESPONDENT/PETITIONER : -------------------------------------------------------- T.MEENAKSHI, AGED 74 YEARS D/O.THAZHAVALAPPIL ROHINI, CHIRAKKAL AMSOM, CHIRAKKAL DESOM, P.O CHIRAKKAL, KANNUR 11 BY ADV. SRI.V.V.SURENDRAN [CAVEATOR] THIS RENT CONTROL REVISION HAVING COME UP FOR ADMISSION ON 2108-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **C.R.** **K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------Rent Control (Rev) No.288 of 2012** **----------------------------------------------Dated 21[st] August, 2012. O R D E R** ## **K.T.Sankaran, J.** The respondent filed R.C.P.No.145 of 1990 on the file of the Rent Control Court, Kannur against C.Karunakaran under under Sections 11(2)(b) and 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as 'the Act'). The Rent Control Court dismissed the petition and the dismissal was confirmed in appeal filed by Meenakshi (the respondent herein). Meenakshi filed Revision before the High Court. The High Court set aside the order of the Rent Control Court and the judgment of the Appellate Authority and held that the bonafide need set up by the landlady is genuine. It was contended by the landlady that the building is bonafide required for the purpose of her son Kishore. The revisional court, however, held that the contention of the tenant that he is entitled to the protection of the second proviso to Section 11(3) of the Act should be considered afresh by the Rent Control Court. Accordingly, the case was remanded to the Rent Control 2 Rent Control (Rev) No.288 of 2012 Court for the limited purpose of considering the benefit of the second proviso to Section 11(3) of the Act, as claimed by the tenant. 2. The order in C.R.P.No.1338 of 1992 was taken up in appeal before the Supreme Court by the tenant. However, Special Leave to Appeal was not granted and the S.L.P. was dismissed on 6.10.2005. During the pendency of the S.L.P. before the Supreme Court, Karunakaran died and his legal representatives were impleaded. 3. The legal representatives of Karunakaran, who were impleaded in the case were (1) Rohini, widow of Karunakaran, (2) Radha, sister of Karunakaran and (3) Gopalakrishnan, brother's son of Karunakaran. Radha and Gopalakrishnan claimed under a will executed by Karunakaran. 4. After remand, the Rent Control Court held that the tenants failed to establish both the limbs of the second proviso to Section 11(3) of the Act and therefore, they are not entitled to protection from eviction. Accordingly, the Rent Control Petition was allowed. On appeal by the tenants, the 3 Rent Control (Rev) No.288 of 2012 Appellate Authority confirmed the order passed by the Rent Control Court. The widow of Karunakaran died subsequently. Radha and Gopalakrishnan filed the present revision challenging the concurrent decisions of the Rent Control Court and the Appellate Authority. 5. The second proviso to Section 11(3) of the Act reads as follows : “Provided further that the Rent Control Court shall not give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business:” 6. It is well settled that both the limbs of the second proviso to Section 11(3) of the Act should be established by the tenant. 7. Radha and Gopalakrishnan claimed rights under a will executed by the original tenant. The legatees are not the natural legal heirs of the deceased tenant. A question arose whether persons who claim tenancy right and who are not the 4 Rent Control (Rev) No.288 of 2012 natural legal heirs of the tenant could claim the benefit of the second proviso. The authorities below, relying on the Division Bench judgment in **Prasannan v. Haris** [2005(2) KLT 365] held that only the natural legal heirs of the tenant would be entitled to claim the benefit of the second proviso to Section 11 (3) of the Act. ## 8. The expression “tenant” is defined in Section 2(6) of the Act, relevant part of which reads as follows : “[(6) “Tenant” means any person by whom or on whose account rent is payable for a building and includes :- (i) the heir or heirs of a deceased tenant, and (ii) x x x x x x x x x” ## 9. In **Vasant Pratap Pandit v. Dr.Anant Trimbak** **Sabnis** [(1994) 3 SCC 481], the Supreme Court, while interpreting the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 held : “If the word 'heir' is to be interpreted to include a 'legatee' even a stranger may have to be inducted as a tenant for there is no embargo upon a stranger being a legatee.” ## 10. In **Karthiayani v. Anandan** (2004(2) KLT 575), Rent Control (Rev) No.288 of 2012 5 a Division Bench of this Court held that “Unless the statute specifically includes a testamentary heir we have to interpret the word “heir” in its popular sense”. The Division Bench held that a legatee under a testamentary disposition cannot claim the status of a tenant and the expression 'heir' is to be taken with reference to the personal law of the tenant. 11. Another Division Bench in **Prasannan v. Haris** [2005(2) KLT 365] also held that a legatee under a will executed by the tenant, who is not a personal legal heir of the tenant, cannot claim the protection of the statutory tenant under the Act. 12. The second proviso to Section 11(3) is a protection available to the tenant. Even after holding that the bonafide need is established by the landlord, the tenant cannot be evicted, if the tenant proves the ingredients of the second proviso to Section 11(3). The benefit conferred on a tenant under the second proviso to Section 11(3) cannot be conferred on a legatee of the tenant and that benefit can be conferred only upon the personal legal heirs of the tenant. A tenant 6 Rent Control (Rev) No.288 of 2012 cannot be permitted to create certain rights on persons who are strangers so as to enable them to claim the benefit of the second proviso to Section 11(3). For instance, a tenant who, otherwise would not be entitled to the protection of the second proviso executes a will in favour of a person who would be able to satisfy both the ingredients of the second proviso. The question is whether such a person can get the benefit of the second proviso. If the answer is in the affirmative, it would mean that a tenant who wants to defeat the rights of the landlord can very well do so by executing a will in favour of a person who could eventually claim the benefit of the second proviso to Section 11(3). We are of the view that only the personal legal heirs of the tenant would be entitled to the benefit of the second proviso to Section 11(3) of the Act. 13. The Rent Control Court appointed a Commissioner to find out whether there are other suitable buildings available in the locality to enable the tenant to carry on the trade or business therein. The Commissioner in Ext.C1 report categorically stated that there is a multi-storeyed Rent Control (Rev) No.288 of 2012 7 shopping complex very near to the building in question. In that shopping complex, there are more than 60 rooms. It has come out in evidence that rooms in that shopping complex are vacant. The Commissioner also reported that there is another shopping complex very nearby and rooms are available in that shopping complex also. The tenants raised a contention that the said shopping complex referred to in the Commissioner's report is very near to a fish market and therefore, it cannot be held that the room in the shopping complex is a “suitable building” within the meaning of the second proviso. The petition schedule building is a very old building. The shopping complex is not far away from the petition schedule building. That there is a fish market near the shopping complex is not a ground to hold that the building is not suitable for the purpose of any business. In a densely populated State like Kerala, we cannot expect fish markets to be far away from shops and shopping complexes. It is common knowledge that in the State of Kerala, existence of fish markets near residential houses, flats and business establishments is not so uncommon. It has 8 Rent Control (Rev) No.288 of 2012 come out in evidence that some of the rooms in the shopping complex are occupied by tenants and business is being carried on in those rooms. The contention put forward by the tenants that the room in the shopping complex is not a suitable building within the meaning of the second proviso to Section 11(3) is unsustainable. 14. The authorities below rightly held that the tenants are not entitled to the protection of the second proviso to Section 11(3) of the Act. The finding was arrived at on the basis of indisputable facts. 15. For the aforesaid reasons, we do not find any ground to exercise the revisional jurisdiction to interfere with the order and judgment passed by the authorities below. 16. Lastly, the learned counsel appearing for the petitioners/tenants contended that a breathing time may be granted to them to vacate the petition schedule building. After having heard the learned counsel appearing for the landlord also, we are of the view that petitioners/tenants can be granted time till 31.1.2013 to vacate the building. Grant of time to the Rent Control (Rev) No.288 of 2012 9 tenants is on condition that they shall file unconditional undertaking before the Rent Control Court within a period of two months from today that they will vacate the petition schedule building on or before 31.1.2013 and also on condition that the petitioners/tenants shall deposit the arrears of rent and continue to pay the rent till the building is vacated. Sd/- ## **K.T.SANKARAN, JUDGE.** Sd/- **M.L.JOSEPH FRANCIS, JUDGE.** tgs (true copy) P.S. to Judge.