MD SULTAN MOIDEEN Vs. OFFICIAL TRUSTEE MADRAS

JUDGEMENT

(1.) THESE two appeals are somewhat connected. L. P. A. No. 12 of 1976 is directed against the judgment of N. S. Ramaswami J. in App. No. 19 of 1972 and O. S. A. 3 of 1976 is against an order of Mohan J. in Appln. No. 3234 of 1975 in O. P. 188 of 1920. We shall first deal with the L. P. A. No. 12 of 1976.

(2.) M. A. Mohamed Burhanuddin Sahib entered into an arrangement with the official Trustee, Madras, under Exs. A-1 and A-2 dated 12-5-1961 and 4-11963, which were styled as lease deeds, in and by which Mohamed burhanuddin Sahib (hereinafter referred to as the original tenant) obtained a right to collect the rents from a market called Connemera Market in Pudupet, madras. There are a number of stalls in the said market which is used as a daily market. Apparently for administrative convenience, the Official Trustee enabled mr. Sahib to collect the rents from the various stalls in the market and pay him a monthly rent of Rs. 970 and the tenant was obliged to perform various other obligations which he undertook under the lease deed. For the purposes of this appeal, it is unnecessary to state in detail the terms and conditions under which the arrangement was entered into between the Official Trustee and late Mr. Sahib. The lessee, as Mr. Sahib was called, was to meet all the commitments as regards electricity, cause minor repairs and pay the water supply charges as also the charges to the Corporation of Madras for running the market in accordance with the rules of the Corporation of Madras, and the lessor, i. e. , the official Trustee, was to pay the property tax on the premises and continue the arrangement as above for a period of five years from 1-3-1961, with option to sahib to renew the so-called lease for a further period of three years on the same terms and conditions enumerated in what is known as the lease deed. Under Ex. A-4, the Official Trustee determined the lease with effect from 31-31968 and called upon Sahib, who was the first defendant in the main suit instituted by the Official Trustee, to surrender possession. The first defendant failed to do so. Hence the suit for possession was filed by the Official Trustee impleading the said Mohammed Bahrunuddin Sahib as the first defendant and the second defendant who is said to have purchased a share in the property in ancillary proceedings. The Official Trustee impleaded the above second defendant only by way of abundant caution and never sought relief against him. The first defendant's contentions were threefold. Firstly, his contention was that the Madras Buildings (Lease and Rent Control) Act, XVIII of 1960 (hereinafter referred to as the Act) was applicable to the building and therefore, a bare suit for eviction in a civil court and for consequential possession does not lie. He questioned the jurisdiction of the Civil Court to entertain the suit for possession. Secondly, he would say that the notice of determination of the tenancy was not in order and therefore, the suit has to fail. He also contended that the Official trustee did not represent all the interests of the shareholders and that, therefore, the suit as such and as framed is not maintainable. The suit was originally tried in the City Civil Court and it resulted in a decree in favour of the official Trustee. The first defendant filed an appeal to this court, but he died pending appeal on 11-5-1972. Thereupon, the present appellants including the second defendant were brought on record as the deceased first defendant's legal representatives. N. S. Ramaswami J. once again considered the objections of the appellants and would not agree with them. In particular, he would not countenance the contention that in view of the amendment of Section 2 (8) of act XVIII of 1960 by Act XXIII of 1973, the present proceeding for possession against them is incompetent as they have secured a statutory right to continue in the premises under the provisions of Act XVIII of 1960 and that, therefore, the suit for possession in a civil court ignoring the provisions of the special enactment, viz. , Act XVIII of 1960, is not in order. He would also not agree with the learned counsel for the appellants that the mere fact that the Official trustee accepted the rents from the appellants after the death of the first defendant would by itself establish that a fresh tenancy is created and therefore, the suit as framed cannot be proceeded with. The last contention that the Official Trustee represented only some of the estate did not gain favour with the learned Judge. On the question whether the notice of determination of tenancy was valid and proper, he would observe that the validity of the notice as per the original of Ex. A-4 had not been questioned in any other respect except that the same had not been issued by a person who represented the entire estate, The learned Judge discountenanced this contention observing that the Official Trustee was not representing the entire estate, but only the other beneficiaries barring the second defendant who has also become a legal representative of the first defendant after his death. Ultimately, he dismissed the appeal. Hence the L. P. Appeal. The same contentions are pursued before us by the learned counsel for the appellants,

(3.) THE Madras Buildings (Lease and Rent Control) Act being a beneficial legislation, is intended to serve certain definite objectives of the Legislature, under the old Act, XVIII of 1960, the tenant has been defined as meaning a person by whom or on whose account rent is payable for a building and includes the surviving spouse or any son or daughter or the legal representative of a deceased tenant who had been living with the tenant in the building as a member of the tenant's family upto the death of the tenant and a person continuing in possession after the termination of the tenancy in his favour etc. Hence, under the old Act, there was no express reference to a non-residential building, but on a fair reading of the said definition, the benefits of statutory tenancy provided for in this sub-clause could be availed of by the heirs and legal representatives of a deceased tenant provided they were also living with the deceased in the building as members of the tenant's family upto the death of the tenant. This requirement to get the statutory entitlement reflects the purpose of the Legislature. We are of the view that even under the old definition the Legislature made it clear that unless the heir or the legal representatives, who project a claim to be continued as statutory tenant, establishes as a fact, that he or they was or were living with the deceased tenant, viz, his or their predecessor-in-interest, he or they cannot obtain the statutory benefits under the provisions of Act XVIII of 1960. When the definition was amended as per Act XXIII of 1973, the following clause was substituted in the place of the erstwhile Clause (8) of Section 2 of the Act which reads as follows:-