AHAMMED KABEER Vs. SALMA BEEVI

JUDGEMENT

(1.) Respondents 2 to 4 in a Rent Control Petition for eviction are the revision petitioners. The landlady who is the respondent herein filed the Rent Control Petition for eviction of the tenants on the ground of arrears of rent under S.11(2)(b) of the Kerala Buildings (Lease & Rent Control) Act, hereinafter referred to as 'the Act', and also on the ground that the original tenant had transferred his right under the lease (S.11(4)(i) of the Act). 17 respondents who were the legal representatives of the original tenant were impleaded in the Rent Control Petition as respondents. The revision petitioners herein who were respondents 2 to 4 in the petition alone contested the petition. The Rent Control Court ordered eviction under both grounds. That order was confirmed by the Appellate Authority (Rent Control). In this Civil Revision Petition respondents 2 to 4 are challenging the orders of the authorities below under S.20 of the Act.

(2.) The petition schedule room is a shop room bearing QMC 21/45 which is the western corner room of a building in Sy.No.8611 of Kollam Village, Kollam Taluk. The landlady obtained the building from her father. Originally the building belonged to the landlady and her sisters. At that time it was being enjoyed by their mother. She let out the building to the predecessor of the respondents in the R.C (O.P.) A Kunju Maitheen Kunju, hereinafter referred to for convenience as Kunju, as per Ext. Al rent deed dated 17-5-1965. One of the conditions in the rent deed was that the tenant should not transfer or assign the shop room to anybody without the written consent of the landlady. In 1979 the rent was enhanced to Rs.400/-. In 1982 the rent was enhanced to Rs.500/-. As per the partition in the landlady's family on 20-1-1980 the landlady became the sole owner of the room. Kunju died in 1980. Since the respondents kept the rent in arrears from June, 1983, the landlady sent registered notices dated 24-10-1985 to all the legal representatives of the-deceased tenant directing them to pay arrears of rent and calling upon them to execute a fresh rent deed. To those notices only respondents 2 to 4 in the Rent Control Court, hereinafter referred to as the revision petitioners, sent Ext.A2 reply dated 8-11-1985. The others did not send any reply. From Ext.A2 the landlady came to know that Kunju constituted a partnership and it was carrying on business in the petition schedule room and subsequently Kunju retired from partnership and that the petition schedule room had been assigned to the revision petitioners and their deceased brother, Basheer. On coming to know of this unlawful transfer the landlady caused to issue Ext.A4 lawyer's notice dated 2Q-2-1986 pointing out the unlawful transfer and demanding arrears of rent to all the legal representatives of the original tenant. To that notice also only the revision petitioners sent a reply. That reply is Ext.A5 dated 25-3-1986. According to Ext.A5 the arrears of rent from May, 1983 to January, 1985 was paid to the Income Tax Authorities as per demand made by them. In the Rent Control Petition the landlady stated that any such payment to the Income tax Department cannot be taken into account. Accordingly the petition was filed on the ground of arrears of rent and also on the ground that the tenant unauthorisedly transferred his right under the lease.

(3.) Revision petitioners in their objections contended as follows: Eventhough Ext. A1 rent deed was executed by Kunju, the shop room was taken for partnership business of M/s. A. Kunju Maitheen Kunju which partnership came into existence as per Ext.B4 partnership deed dated 1-1-1140 M.E. (16-8-1964). In 1964 the 4th revision petitioner was a minor. Subsequently by agreement dated 18-9-1968 he was also included as a partner. The firm was paying the rent to the landlady. The landlady was aware of the existence of the firm. When the assets of Kunju were partitioned the business of firm M/s. A Kunju Maitheen Kunju was given to the revision petitioners and their deceased brother Abdul Basheer. Kunju and his elder son Thajudeen retired from the firm at that time. Ext. B5 dated 7-4-1972 is the document by which Kunju retired from the partnership. On that date a new partnership firm was constituted as per Ext.B6. From that time onwards the business in the petition schedule room was being conducted by the revision petitioners. The rent was enhanced in 1979 and 1982. The rent up to 7-4-1972 was paid by Kunju. Thereafter the rent was being paid by the firm. Kunju died on26-6-1980. One of the partners, Basheer, died on 31-10-1980. His legal representatives were given there shares and an agreement was executed whereby revision petitioners became the sole partners of the firm. Rent for the period from May, 1983 to March 1986 was remitted by the firm in the Income Tax Office towards the arrears of tax due from the landlady's deceased father. Kunju has not transferred his tenancy rights. The tenancy right has become vested with the revision petitioners. The other respondents have no right over the tenancy right or over the business. The revision petitioners sent a pay order for Rs.4,602/-along with Ext. A2 reply notice dated 8-11-1985 being the arrears of rent, cost and interest. The landlady refused to accept the pay order. Thus there is no arrears of rent.