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PETITIONER: T.K. LATIKA

       Vs.

RESPONDENT: SETH KARSANDAS JAMNADAS

DATE OF JUDGMENT:       31/08/1999

BENCH: A.P.Misra, K.T.Thomas

JUDGMENT:

THOMAS, J.       A   landlord  approached  the   Rent   Control   court prematurely and lost the cause not only regarding the timing of  her  approach to the court but on merits as  well.   The High Court found that the claim of the landlord for eviction of  the  tenant  from the building lost  its  tenability  on account of the factors which sprouted up pendente lite.  The unsuccessful  landlord has, therefore, reached this Court by special leave.

     The  tenant  has been residing in the building of  the landlord for nearly half a century by now, (a few more years from  now may mark the golden jubilee year of the  tenancy). When  the building was originally leased in 1956, it was  in the  ownership  of appellants father.  He executed  a  gift deed  in favour of his daughter (the appellant) on 2-8-1980, as  per Ext.B-10.  But the appellant, bereft of patience  to wait  for  the expiry of the moratorium period of one  year, hastened  to file the petition for eviction of the tenant on 1- 7-1981 under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, for short the Act.  Appellant made  an  endeavour to circumvent the quarantine  prescribed under  the  sub-section on the premise that the  tenant  had executed  a fresh lease agreement in her favour on 18-8-1980 (Ext.A.1).

     Section  11(3) of the Act reads thus:  A landlord may apply  to the Rent Control Court for an order directing  the tenant  to put the landlord in possession of the building if he  bona  fide needs the building for his own occupation  or for  the occupation by any member of his family dependent on him.

     The  sub-section has four provisos of which the  third alone is relevant for consideration in this appeal and hence that is extracted below:  Provided further that no landlord whose right to recover possession arises under an instrument of transfer inter vivos shall be entitled to apply to be put in  possession until the expiry of one year from the date of the instrument.

     The  Rent Control court bypassed the ban contained  in the  aforesaid  proviso by accepting the contention  of  the appellant that the right to recover possession of the leased premises  is not based on Ext.B.10-Gift Deed executed by the erstwhile  landlord, since a new lease arrangement has  come

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into  effect  between  the appellant and the tenant  as  per Ext.A.1.   Rent Control Court then proceeded to consider the merits  of the claim for eviction and upheld the bona  fides of  the  need  highlighted  by the landlord.   So  the  Rent Control Court granted the order for eviction.

     But the Appellate Authority under the Act reversed the findings  both  on the maintainability of the  petition  for eviction   and  also  on  the   merits  of  the  claim   and consequently  dismissed  the petition of the landlord.   The order   so  passed  by   the  Appellate  Authority  remained undisturbed in the revision filed by the landlord before the District  Court  which  was then the  revisional  authority. However, a learned Single Judge of the High Court of Kerala, while  disposing of a writ petition filed under Article  227 of  the  Constitution expressed inclination to  approve  the contention  that  the petition filed by the landlord is  not liable  to  be  expelled solely on the strength of  the  ban contained  in the third proviso to Section 11(3) of the Act. The  observations made by the learned Single Judge, on  that score, are the following:

     I  find  some merit in the contention that after  the tenant had, subsequent to the transfer inter vivos, attorned to  the transferee-landlord, right to evict may arise out of that  transaction  itself and the transferee  landlord  then need not rely on the transfer in his favour.

     After  expressing  as above learned Single  Judge  has stated thus:

     Since  in  view  of  my finding  that  the  Appellate Authority  and the revisional court were right in negativing the  claim  for eviction under Section 11(3) of the  Act  on merits, I am not inclined to answer this question finally in this Original Petition.  Even if the answer to this question were  to  be in favour of the landlord, she could not  still succeed in view of my accepting the finding of the Appellate Authority  and  the  revisional court on the merits  of  her claim  under Section 11(3) of the Act.  In that situation  I decline  to  interfere  with the finding  by  the  Appellate Authority  and the revisional court that the application  is also  not maintainable having been filed within one year  of 2.8.1980.

     The  case of the landlord that she needed the building bona  fide for her own occupation was then considered by the High Court on merits and learned Single Judge entered upon a finding  that  it is not bona fide.  The writ petition  was, hence, dismissed.

     If  the ban contained in the third proviso to  Section 11(3) of the Act applies, its corollary is that the petition filed  by the landlord has to be expelled on the sole ground that the landlord was then not entitled to file it.  In such a  situation  the  court should not enter  into  the  merits because  whatever is said or found on the merits would  then be  without  jurisdiction.   High Court  should  have  first decided  the question of maintainability of the petition and only  if that point was found in the affirmative the  merits need have been gone into.

     Thus  the  question  is whether appellants  right  to recover  possession  of the building arose under Ext.B.10 Gift  Deed  or under the new lease agreement  Ext.A.1  dated

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18.8.1980.   No  doubt  appellant got the right  to  recover possession  when  she got the gift executed by  her  father. The  contention  is that the said lease came to an end  when the  new  lease  agreement   was  executed.   The  aforesaid contention  is  based on Section 111(f) of the  Transfer  of Property  Act  on  the  premise that there  was  an  implied surrender of the old lease when the new lease was executed.

     It must be pointed out that only two differences could be  noticed  as  between  the lease agreement  of  1956  and Ext.A.1.    They  are:   in  the   former  the  lessor   was appellants  father  and the rent of the building was  Rs.65 per  month, while in the latter the lessor is appellant  and the  rent  is  Rs.150  per  month.   How  could  an  implied surrender  of  the  lease  be  inferred  therefrom.   It  is admitted  that  the tenant continues to be in possession  of the  building in the same manner as before and the  building also remains the same.

     The  principle  which governs the doctrine of  implied surrender  of  a  lease is that  when  certain  relationship existed  between two parties in respect of a subject  matter and a new relationship has come into existence regarding the same  subject  matter, the two sets cannot  co-exist,  being inconsistent  and incompatible between each other, i.e.   if the  latter can come into effect only on termination of  the former,  then it would be deemed to have been terminated  in order to enable the latter to operate.  A mere alteration or improvement  or  even impairment of the former  relationship would not ipso facto amount to implied surrender.  It has to be  ascertained  on  the  terms   of  the  new  relationship vis-Ã -vis  the erstwhile demise and then judge whether there was   termination   of  the   old  jural   relationship   by implication.

     The  following  passage  in  the  Halsburys  Laws  of England, 4th Edn.  Vol.27 at page 355, is apposite:

     449.   Surrender  by  change in  nature  of  tenants occupation.   A surrender is implied when the tenant remains in  occupation  of the premises in a  capacity  inconsistent with  his being tenant, where, for instance, he becomes  the landlords  employee,  or where the parties agree  that  the tenant  is  in future to occupy the premises rent  free  for life  as a license.  An agreement by the tenant to  purchase the  reversion does not of itself effect a surrender, as the purchase  is  conditional on a good title being made by  the landlord.

     In  Hill and Redmans Law of Landlord and Tenant (16th Edn.)  at page 451 it is observed that a surrender does not follow from a mere agreement made during the tenancy for the reduction  or  increase of rent, or other variation  of  its terms,  unless there is some special reasons to infer a  new tenancy, where, for instance, the parties make change in the rent under the belief that the old tenancy is at an end.

     In  N.M.   Ponniah  Nadar v.  Smt.   Kalakshmi  Ammal, {1989(1)  SCC  64} a three-Judge Bench of this  Court  found that  an  arrangement  by  which rent of  the  building  was increased  in respect of existing tenancy will not bring  an end to the pre-existing lease.

     In  Krishna  Kumar Khema v.  Grindlays Bank {1990  (3) SCC  669}  a  two-Judge  Bench  of  this  Court  held  thus:

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Surrender of a part does not amount to implied surrender of the  entire  tenancy  and the rest of  the  tenancy  remains untouched.    Likewise the mere increase or  reduction of  rent also will not necessarily import a surrender of  an existing lease and the creation of a new tenancy.

     Assuming  that  Ext.A.1 has created a new lease  after terminating  the erstwhile lease, the difficulty is that the grip  of the ban contained in the third proviso would  still continue  to foreclose the landlord from filing the petition for  a period of one year from the new lease deed.  This  is because  the landlords right to recover possession  would then  arise under that instrument of lease, which would also be a transfer inter vivos as envisaged in the third proviso. In  Blacks  Law  Dictionary the expression inter  vivos  is given the following meaning:

     Between  the  living;   from  one  living  person  to another.    Where  property  passes   by   conveyance,   the transaction  is  said to be inter vivos, to  distinguish  it from a case of succession or devise.

     So the landlord had to wait for a still further period if  he were to root his right in Ex.A1 to recover possession of the building.

     As  the  third proviso to Section 11(3) disentitles  a landlord from applying for eviction of the tenant before the expiry  of the quarantine period, the petition filed by  the landlord  in  this  case has to be dismissed  only  on  that ground.   Any observation made on the merits of the case  in the  proceeding  based on such a  non-maintainable  petition must  stand  erased  from judicial notice.  If  the  present landlord files a new petition for eviction under the Act, as the  ban  period is over, the same has to be considered  and disposed  of uninfluenced by any of the observations made by the High Court or the courts below thereto.

     The  appeal  is dismissed in the above terms,  without any order as to costs.