Y. ABDUL MALLIK AND ANR. Vs. ST. FRANCIS XAVIERS CHURCH, REPRESENTED BY ITS PARISH PRIEST FR. JOSEPH SANDANAM

JUDGEMENT

(1.) THE suit, out of which this second appeal arises, was filed by the respondent for recovery of possession of the suit property. The first defendant was the tenant of the plaintiff in respect of the vacant site. The lease was long prior to 1955, the monthly rent being Rs. 20. The first defendant put up a superstructure also prior to 1955 on the site as a tenant. On 15th July, 1965 the first defendant assigned both the leasehold right and the superstructure in favour of the second defendant. The plaintiff determined the tenancy by notice dated 2nd May, 1966 and called upon the first defendant to deliver vacant possession. In the notice, the plaintiff had offered compensation of Rs. 300 to the first defendant for the superstructure put up by him. It was also claimed by the plaintiff that the site which was leased out to the first defendant was part of the plaintiff Church and that therefore, the first defendant has no right of purchase of the land itself. In reply to this notice, the first defendant stated that he sold the superstructure to the second defendant and that the second defendant would pay the future rent to the plaintiff. The plaintiff sent a further notice to the effect that the first defendant had no right to assign and that the sale was not binding on the plaintiff. Thereafter, the suit was filed for recovery of vacant possession against both tenant and his assignee, the second defendant. The second defendant filed a written statement in which he claimed that, by virtue of the assignment of the leasehold right and the superstructure, he became a tenant entitled to the protection under the City Tenants Protection pct. He further contended that no notice was issued to him as required by Section 11 of that Act and that therefore, the suit was not maintainable. He also contended that the plaintiff Church could not be represented by the Parish Priest and the suit was not properly instituted. The second defendant also filed an application under Section 9 of the Act for purchase of the land. The written statement filed by the second defendant was adopted by the first defendant by filing a memo.

(2.) BOTH the Courts below have now held that the suit site is part of the Church itself and that therefore, the application under Section 9 is not maintainable in view of the decisions of this Court of which one is Sundaresvoarar Devasthanm v. Marimuthu : I.L.R. (1963) Mad. 1054 : 76 L.W. 381 : A.I.R. 1963 Mad. 369. The Courts below have also held that an assignee of a tenancy -right with the superstructure is not entitled to the protection of the City Tenants Protection Act as he will not be a tenant under the Act. In support of this contention, they relied on the decision of this Court in Kuppa Bai v. Rajagopal Nadar : (1969)2MLJ541 . When the second appeal was pending the Legislature amended the definition of "tenant" in Section 2(4) by Tamil Nadu Act XXIV of 1973. The learned Counsel for the appellants relied on this amended definition and contended that the second defendant had now become a tenant even if there was any doubt as to whether he was a tenant prior to the amendment of the definition. The first question, therefore, that arises for consideration is whether the assignee of a superstructure and the leasehold right could claim the benefit of the City Tenants Protection Act as a tenant. The definition of the word "tenant" as it stood originally, ran as follows: 'Tenant' means tenant of land liable to pay rent on it, and every other person deriving title from him, and includes persons who continue in possession after the termination of the tenancy. This definition was substituted by Tamil Nadu Act XIII of 1960, which came into force on 27th July, 1960 and the amended definition ran as follows: 'Tenant' in relation to any land: (i) means a person liable to payment in respect of such land, under a tenancy agreement express or implied, and (ii) includes: (a) any such person as is referred to in Sub -clause (1) who continues in possession of the land after the determination of the tenancy agreement, and (b) the heirs of any such person as is referred to in Sub -clause (i) or Sub -clause (ii) (a) ; but does not include a sub -tenant or his heirs. This definition was farther amended by substituting Clause (ii) by the following clause by Act XXIV of 1973,: (ii) includes: (a) any such person as is referred to in Sub -clause (i) who continues in possession of the land after the determination of the tenancy agreement, (b) any person who was a tenant in respect of such land under a tenancy agreement to which this Act is applicable under Sub -section (3) of Section 1 and who or any of his predecessors in. interest had erected any building on such land and who continues in actual physical possession of such land and building, notwithstanding that: (1) such person was not entitled to the rights under this Act by reason of the proviso to Section 12 of this Act as it stood before the date of the publication of the Madras City Tenants Protection (Amendment) Act, 1972 (Tamil Nadu Act IV of 1972), or (2) a decree for declaration or a decree or an order for possession or for similar relief has been passed against such person on the ground that the proviso to Section 12 of this Act as it stood before the date of the publication of the Madras City Tenants Protection (Amendment) Act, 1972 (Tamil Nadu Act IV of 1972) disentitled such person from claiming the rights under this Act, and (c) the heirs of any such person as is referred to in Sub -clause (i) or Sub -clause (ii) (a) or (ii) (b) but does not include a sub -tenant or his heirs. It would be seen from the definition, as it originally stood, that it included within the term "tenant" every other person deriving title from him. These words would include not only the heirs of the tenant, but also an assignee of such tenant. But by the substituted definition of the word, "tenant" by Tamil Nadu Act XIII of 1960, the heirs of the tenant alone were included in the definition and the assignees were excluded. The effect of this amendment came up for consideration before this Court in Kuppa Bai v. Rajagnpal Nadar : (1969)2MLJ541 . In that case, the suit was filed for eviction against two defendants. The first defendant was the wife of the original tenant and the second defendant was assignee of the site and building by the first defendant. The assignment, in that case, was on 22nd June, 1960, before the definition was amended by Tamil Nadu Act XIII of 1960. It was held that the amended definition restricted the right to the heirs of a tenant only and the right of the assignees which was originally included was taken away. The learned Judge also considered that though, on the day when the assignment was effected in that case, the amended definition had not come into force, and on the definition as it originally stood, even an assignee would be entitled to the protection under the Act, the amended definition would have to be applied even in respect of that tenancy. In other words, the amended definition was held to be applicable even to assignments made before the amendment. Thus, the position subsequent to the amendment of the definition in 1960 was that an assignee of the superstructure and the tenancy right will not be entitled to the benefit of the Act irrespective of the fact whether the assignment was prior to 1960 or subsequent to 1960.

(3.) TENANTS entitled to the protection under the Act were given certain special rights under the provisions of the Act. Broadly stated, they are entitled to purchase the land in which they had put up a superstructure or entitled to get the compensation for the superstructure on eviction. Under the original definition as seen already, the tenant was also entitled to assign these rights to any person. But, this was subject to the provisions of Section 12. That section, before it was amended, in 1972, read as follows: Nothing in any contract made by a tenant shall take away or limit his rights under this Act, provided that nothing herein contained shall affect any stipulation made by the tenant in writing registered as to the erection of building, in so far as they relate to buildings erected after the date of the contract. Considering this provision, the Supreme Court held in Haridas Girdharidas v. Varadaraja Pillai : [1972]1SCR291, that, where under a registered lease, the lessee had agreed to put up a construction on the site leased to him according to certain specifications after the prior approval of the lessors at a particular cost and covenanted that on the expiry of the lease, the lessor shall have the option of buying the building and if the lessor was not willing to purchase, the lessee shall be at liberty to remove and carry away the erections, that clause in the deed amounted to a stipulation as to the erection of the building within the meaning of the proviso to Section 12 and that, therefore, the lessee would not be entitled to claim either the compensation for the building or a right to purchase and land itself. Thus, the protection given under the Act was held to be taken away if there was a stipulation to that effect in the lease deed itself. The Legislature amended Section 12 by the Tamil Nadu Act IV of 1972 deleting the proviso to that section and restoring the right of the tenant even if the lease deed contained any stipulation as to the erection of the building.