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CASE NO.: Appeal (civil)  1811-13 of 1997

PETITIONER: S.R. Radhakrishnan & Ors.                                        

RESPONDENT: Vs. Neelamegam                                                       

DATE OF JUDGMENT: 31/07/2003

BENCH: Brijesh Kumar & Arun Kumar.

JUDGMENT:

J  U  D  G  M  E  N  T

ARUN KUMAR, J.

       These appeals are directed against the judgment  dated  18.10.1996 by  a learned Single Judge of the High Court disposing of  three interconnected matters between the parties.

       Briefly the facts are that the appellant Radhakrishnan had taken  on lease a property (hereinafter referred as the "suit property") on  rent from one Thanakachalam vide registered lease deed dated  2.2.1970.  The lease was for a period of one year and the monthly  rent was Rs.35/-.  It is stated in the lease deed that the building  constructed in the premises did not have a roof and the tenant had to  put up a roof as well as such other construction as was required for  running a printing press in the premises.  The cost of providing  electricity and water connection in the premises and of improvements  in the building had to be calculated and it was to be paid by the  landlord to the tenant at the time of handing back vacant possession  of the premises by the tenant to the landlord.  It appears that after  taking the premises on lease tenant carried out certain improvements  therein and started the business of running a printing press there.   The tenant took along with him in the business his two younger  brothers.

       The property was purchased by the respondent-plaintiff vide  registered Sale Deed dated 16.6.1979.  The purchaser served a  notice(Ex.B1) on the tenant on 26.11.1979 calling upon him to deliver  vacant possession of the suit premises.  The tenant sent a reply  dated 7.12.1979 (Ex.B2) to the notice stating that he had nothing to  do with the property as Defendants No.2 and 3 were in possession  thereof.  The landlord was asked to approach defendant Nos.2 and 3  for rent as well as for possession.  The landlord sent another notice  dated 22.12.1979 (Ex.A3) to all the defendants calling upon them to  deliver possession of the suit premises.  Ultimately the landlord filed a  suit for ejectment  on 19.6.1980 impleading all the three brothers as  defendants.  One fact which needs to be mentioned here is that on  30.5.1977 defendant No1, the tenant executed a release deed in  favour of his younger brothers i.e. Defendants No. 2 and 3  relinquishing his entire interest in the business of the printing press  which was carried on in the suit premises in their favour.   

Section 9 of the Tamil Nadu City Tenants Protection Act, 1921  (hereinafter referred to as the "Act") gives a right to a tenant who has  put up super structure in the tenanted premises to purchase the same  at a price to be fixed by the Court.  This application is to be made

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within one month after the service of summons in the eviction suit  instituted by the landlord against such a tenant.  Relevant portion of  Section 9 is reproduced as below: "1(a)(i) Any tenant who is entitled to  compensation under Section 3 and against  whom a suit in ejectment has been instituted  or proceeding under section 41 of the  Presidency Small Cause Courts Act, 1882,  taken by the landlord may, within one month  of the date of the publication of Madras City  Tenants Protection Amendment Act, 1979 in  the Tamil Nadu Government Gazette or of the  date with effect from which this Act is  extended to the municipal town, township or  village in which the land is situate or within  one month after the service on him of  summons, apply to the Court for an order that  the landlord shall be directed to sell for a price  to be fixed by the Court, the whole or part of  the extent of and specified in the application."

       From the above provision it will be seen that the following  conditions are to be satisfied before a tenant is entitled to relief: (i)     He should be a tenant in possession of the land; (ii)    He should have erected a super structure on the land in  respect of which he would be entitled to claim compensation  under Section 3; (iii)   A suit or proceeding for eviction should have been taken by  the landlord against him; (iv)    He should have applied to the court for direction in that  regard within one month from the date of service of  summons in such suit. Although the above quoted provisions of the Act do not  specifically mention that a tenant should be in possession of the  tenanted premises before he can move such an application,  yet it  refers to Section 3 of the Act i.e., a tenant who is entitled to  compensation under Section 3.  A reference to Section 3 makes it  clear that  compensation is with respect to building erected by the  tenant on the tenanted premises and the compensation that he gets  is only for what he hands over to the landlord on ejectment.

It is the stand of the plaintiff-landlord that the tenant never paid  any rent for the suit premises.  It is further clear from the pleadings of  the parties that the plaintiff never recognized defendants 2 and 3 as  tenants.  In order to make out a case of tenancy  defendant No.2  (who alone filed a written statement) tried to plead firstly, that  defendant No.1 had taken the premises on behalf of joint Hindu  family and therefore, defendants 2 and 3 were entitled to enjoy the  tenancy rights in the absence of defendant No.1; secondly, a plea  was sought to be taken that defendant No.1 had  relinquished the  tenancy rights in favour of the defendants 2 and 3 and after   relinquishment defendants 2 and 3 started paying rent to the landlord.   It is however, admitted that there are no rent receipts regarding  payment of rent nor there is any proof of payment of rent coming forth  on the record.  Both the pleas which have been raised in order to  establish tenancy in favour of defendants 2 and 3 are inconsistent  and mutually destructive.  We find no substance in either of the pleas.   It has been meekly suggested in the written statement that the  premises was taken on rent by  the first defendant who is the joint  family manager.  This statement alone does not make out  a plea that  the tenancy was on behalf of the joint family.  Secondly, this plea  cannot  stand scrutiny in view of the admitted fact that the father of  the defendants was alive at the time of tenancy and if at all the  tenancy was to be in favour of the joint Hindu family, it was the father  of the defendants who could have taken the premises on rent as

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manager/karta of the Joint Hindu Family.  Thirdly, a reference to the  lease deed shows that the name of the tenant is mentioned in his  individual capacity and not as a member/karta of Joint Hindu family.   To test the veracity of such a plea it is also worth mentioning that in  his reply to the notice of eviction served on him by the plaintiff, the  defendant never made any such suggestion.  Therefore, we find no  merit in the plea that the tenancy was taken for purpose of joint Hindu  family.  

Next we examine the question as to whether defendants 2 and  3 became tenants by virtue of alleged assignment of tenancy rights  by defendant No.1 in their favour.  There is nothing on record to  support this contention.  The release deed which is relied upon by the  defendants for this purpose has no mention whatsoever about the  tenancy rights released by defendant No.1 in favour of defendants  No.2 and 3.  The release deed only talks about business of printing  press.  After the release deed, defendant No.1 ceased to have any  interest in the business of the printing press.  There is no proof of  payment of rent by defendants 2 and 3 with respect to the suit  premises to the landlord.  There is no rent receipt in their favour.    The landlord is not a party to the release deed.  He is not bound by  any recitals  contained in the release deed.  Further it is settled law  that one does not become tenant by mere payment of rent even if  that be so.  Simply because defendants 2 and 3 continued to be in  possession of the suit premises, it does not follow that they were in  occupation thereof as tenants.  They had no right whatsoever with  respect to the suit premises.

Alternatively defendants 2 and 3 claimed to be tenants by  holding over.  This argument is totally misconceived.  We have found  that defendants 2 and 3 never became tenants in the suit premises.   Question of their becoming tenants by holding over does not arise.

The defendants filed an application under Section 9 of the Act   for purchase of the suit property.  The said application was dismissed  by the trial Court.  The lower appellate court however by a strange  process of reasoning came to the conclusion that defendants 2 and 3  had become tenants in the suit premises and therefore, their right to  purchase the property under Section 9 of the Act was upheld.  However, the High Court set aside that finding and  rejected the  application. The High Court came to a definite finding that defendants  2 and 3 were not tenants of the suit premises, and therefore, they  could not maintain an application under Section 9.  We have already  quoted the relevant portion of Section 9.  As noticed earlier it is  mandatory for an application under Section 9 that the applicant  should be a tenant in possession of the suit premises.  In view of our  upholding the finding that defendants 2 and 3 never became tenants  in the suit premises, they could not maintain an application under  Section 9  and such application on their behalf was therefore, rightly  rejected by the High Court.  At this stage we may note it was pleaded  by defendants 1 to 3 in their application under Section 9 that only  defendants 2 and 3 were in possession and enjoyment of suit  property.  It was also pleaded that defendants 2 and 3 were tenants  and were paying rent.  The application further states that defendant  No.1 was impleaded only to avoid technical objections.  Thus relief  was sought really by defendants 2 and 3. Said defendants have been  found by us to be not entitled to any relief.  Section 9 is of no help to  them.  

Whether defendant No.1 could maintain such an application?   Defendant No.1 was admittedly not in possession of the suit premises  and he had also ceased to be a tenant of the premises.  Therefore,  he had no right to file an application under Section 9 of the Act.  

The learned counsel for the appellants finally argued that The

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Tamil Nadu City Tenants Protection Act, 1921 is a socially beneficial  piece of legislation meant for protection of the interests of tenants and  its provisions should be liberally construed so as to advance the  object of the Act.  This argument in the context of facts on record is  totally misconceived.  Liberal interpretation does not mean that  benefit can be given contrary to the basic provisions of the Act or in  violation of the statutory provision.  It has been pointed out above that  the appellants did not satisfy the basic ingredients of Section 9 and  therefore, they are not entitled to invoke the said provision for their  benefit.   

       Learned counsel for the appellant contended that actual  physical possession of the premises is not essential for exercising the  privilege conferred on a tenant by Section 9 of the Act.  In support of  his contention he relied on Gummalapura Taggina Matada  Kotturuswami v. Setra Veeravva and others [1958 (1) SCR 968].   This was a case under the Hindu Succession Act, 1956.  Section 14  (1) of the Act provides "any property by a joint Hindu family, whether  acquired before or after the commencement of this Act shall be held  by her as full owner thereof and not as a limited owner."  In the  context of this provision it was held that the word "possession"  occurring in Section 14 (1) is used with widest connotation and it may  be either actual or constructive or in any form recognized by law.  We  are afraid that the wide meaning given to the word possession in  Section 14 in the Act cannot have any relevance for purposes of  provision of Section 9 of the Tamil Nadu Act under consideration.  As  already noted Section 9 read with Section 3 of the Act makes it  imperative that the tenants should be in possession of the premises  with respect to which the right to purchase is sought to be exercised.   If a tenant is not to hand over possession of the suit premises to the  landlord at the time of ejectment, there is no question of payment of  any compensation to him under Section 3 of the Act.  If he is not  entitled to compensation under Section 3 of the Act he cannot invoke  Section 9 of the Act.  Actual physical possession is essential in the  context of relevant provisions of the Act.  In fact in  P.Ananthakrishnan Nair and another v. Dr. G. Ramakrishnan and  another 1987 (2) SCC 429( though cited by the learned counsel for  the appellant), it was held by this Court that the premises must be in  personal  occupation of the tenant before he could exercise the right  under Section 9 of the Act. It was also observed by this Court that  "Section 9 confers an additional statutory right on a tenant against  whom suit for ejectment is filed to exercise an option to purchase the  demised land through the medium of court on fulfillment of conditions  specified therein.  It is not an absolute right, as the court has  discretion to grant or refuse the relief for the purchase of the land.   The tenant has no vested right in the property, instead it is a privilege  granted to him by the statute which is equitable in nature.  The policy  underlying Section 9 is directed to safeguard the eviction of those  tenants who may have constructed super structure on the demised  land, so that they may continue to occupy the same for the purposes  of their residence or business."  From these observations it follows  that actual physical possession of the demised premises of the tenant  is sine qua non of an application under Section 9.  In P.  Ananthakrishnan’s case (supra) as per concurrent findings of fact  on record the tenant had discontinued its business in the suit  premises and only a small portion thereof had been retained by them  for keeping the accounts books etc. of the erstwhile business.  Rest  of the land and the superstructure standing thereon had been in  occupation of sub-tenants since long.  Thus the tenant was not in  actual occupation of most part of the demised premises.  Therefore, it  was held that it would be unreasonable to direct the landlord to sell  the land to the tenants.         Our attention was invited to various decisions of the Madras  High Court taking the same view i.e. actual physical possession of  the demised premises is essential to maintain an application under

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Section 9 of the Act.  As a matter of fact the learned counsel for the  appellant cited the case in Estate of T.P. Ramaswami Pillai v.  A.  Mohd. Yousuf and others   Madras Law Journal 1983 (2) which  takes the same view.  We fail to understand how this authority helps  the appellant.  In our view it fully supports the case of the  respondents.

       We find no merit in these appeals  The same are dismissed  with costs.  Counsel’s fee Rs.10,000/-.