VERGHESE AND ORS. Vs. MRS. IRUDAYA MARY

JUDGEMENT

(1.) These revisions have been filed against the orders of eviction passed by the Rent Controller and affirmer by the appellate authority. The eviction of the Petitioners was sought by the Respondent on the ground that the portions in this occupation are required bona fide for the purpose of demolition and re -construction. The petition was resisted on the ground that landlady's requirement for demolition and re -constructions not bona fide and that in any event, the proposal of the landlady is only to change the roof of the building and that will not amount to demolition and re -construction as contemplated by the provisions of the Act. Both the authorities below held that the Respondent has got sufficient means to re -construct the building, that she already obtained a plan for reconstruction of the building and that the requirement of the Respondent was bona fide.

(2.) In this revision Mr. N. Varadarajan learned Counsel for the Petitioner contends that though the Respondent is -entitled to collect the rent from the premises in lieu of her maintenance, she had no absolute rights in the property no right to demolish and re -construct the building. According to the learned Counsel a petition for demolition and re -construction can be filed by a person in whom the property has been absolutely vested and not the maintenance holder like the Respondent in this case. learned Counsel in support of his submission that the Respondent -landlady is only a maintenance holder relies on exhibit B -2 under which the Respondent has been given the right of enjoyment of the property in question. According to him under exhibit B -2 executed by the Respondent's children she is entitled only to collect the rent for her maintenance during her life -time and that suck a right under exhibit B -2 will not enable her to demolish and reconstruct the building. Though the said document is styled as a maintenance deed the operative portion of the document says that the entire property is entrusted to her for her maintenance during her life -time and that she can enjoy the properties without any power of alienation. Therefore, notwithstanding the nomenclature of the document, it can be said that a life interest has been created in the property in favour of the Respondent under exhibit B -2. It also provides that out of the income from the properties she can also effect repairs to the house and enjoy the same. There fore, it is not possible to accept on the language of exhibit 6 -2 that it is only a maintenance deed. Normally a maintenance deed in the strict sense will provide for a specified amount as maintenance to the maintenance -holder being paid periodically. But, here a property which was absolutely owned by the children of the Respondent, has been given to the Respondent for her life aid the can enjoy the same in any manner, she likes without any power of alienation. I have to therefore agree with the view of the Courts below that exhibit B -2 cannot be taken to curtail the rights of the Respondent to the property during her life -time to a mere right to receive, maintenance. That is, the Respondent is held to have a life interest in the property she will be entitled to apply for demolition and reconstruction, cannot be disputed. that question has been decided conclusively by Supreme Court in S.M. Gopala Krishna Chetty v/s. Ganeshan, (1976) 1 S.C.J. 358 where a land -lord who was a holder of fife interest in a property, was entitled to evict the tenant on the ground that the building is bona fide required by him for demolition and re -construction.

(3.) The next submission made by the learned Counsel is that the plan filed by the Respondent indicates that the Respondent proposed to change only the tiled roof into R.C.C. roof and that will not amount to demolition and re -construction. For this, the learned council invokes the aid of the decision of a Bench of this Court in krishnan v/s. Munusamy, (1978) 2 M.L.J. 510. But, the authorities below after looking into the plan, have held that there is not only the change of the roof, but also a change in the plinth area as between the old tiled construction and the new construction with roof. I have also pursed a copy of the plan produced by the Petitioner council. It clearly indicates that the proposed R.C.C. Structure is to be of a larger area than the area covered by the tiled building. As a matter of fact, the open space in between the two tiled structures is to be covered by the R.C.C. roofing. Therefore, the authorities below appear to be right in holding that there is not only a change in the roofing, but also a change in the area in that, the new structure includes a larger area over and above the area covered by the tiled structure. I do not therefore see any error in the order of the Courts below. No other point is urged. In this view this civil revision petition is dismissed. The Petitioners will, however have three months time to vacate.