Dismissed

E.Sooryanarayana Bhat v. K.Sundara

Kerala HC6 Jul 2009RCRev./95/2009

Case brief

AI extract

What is this about?

This revision petition challenged an order upholding the landlord's title despite a prior gift deed containing an anti-aliemnation clause. The court held the clause restricted the donor's right, not the transferee's, and ruled the tenant denied title without cause, dismissing the revision.

What did the court decide?

The Rent Control Revision is dismissed. The Rent Control Court is directed to list the Rent Control Petition for trial.

E.Sooryanarayana Bhat Vs K.Sundara — Landlord and Tenant | Kerala HC (2009)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI

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MONDAY, THE 6TH JULY 2009 / 15TH ASHADHA 1931

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RCRev..No. 95 of 2009() ----------------------RCA.14/2007 OF RENT CONTROL APPELLATE AUTHORITY, KASARAGODE RCP.1/2007 OF RENT CONTROL COURT, KASARAGOD.

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REVISION PETITIONER/APPELLAT/RESPONDENT

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E.SOORYANARAYANA BHAT S/O.LATE E KRISHNA BHAT, RESIDING AT DOOR NO.24/275, KASARGOD MUNICIPALITY, KASARGOD TALUK & DISTRICT.

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BY ADV. SRI.SURESH KUMAR KODOTH SMT.V.SETHUKUTTY AMMA

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RESPONDENT/RESPONDENT/PETITIONER:

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K.SUNDARA, S/O.LATE BABY POOJARY, RESIDING AT ADKATHBAIL,POST KASARGOD, KASARGOD TALUK.

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ADV. SRI.V.V.ASOKAN SRI.K.S.SAJEEV KUMAR

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THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 06/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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PIUS C. KURIAKOSE & P.Q.BARKATH ALI, JJ.

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RCR. No. 95 of 2009

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Dated this the 6^th day of July, 2009

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O R D E R

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Pius C.Kuriakose, J.

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This revision petition under section 20 of Act 2 of 1965 is filed by the tenant respondent in the rent control petition. The rent control petition was filed by the respondent, the present landlord seeking eviction on the ground of arrears of rent (section 11(2), own occupation (section 11(3) and reconstruction (section 11(4)(iv). The case of the petitioner in the RCP was that the schedule building belonged originally to one Santha Davidas from whom the building was taken on lease by the father of the respondent in the RCP on a monthly rent of Rs.25/-. The petitioner in the RCP has purchased the schedule building as well as 19 cents of land on which the schedule building is situated from Santha Devidas by virtue of Ext.A1 sale deed and thus become the absolute owner of the property. RCP was sought to be

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RCR. No. 95 of 2009

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maintained on the basis that the respondent in the RCP the revision petitioner is tenant under the petitioner in the RCP. 2. The revision petitioner respondent in the RCP filed counter to the RCP contending that the petition schedule building originally belonged to Santha Durgamba Ammanavara Bhandaram. The father of the respondent in the RCP was a tenant under the Bhandaram. After the death of his father the respondent in the RCP attorned to the landlord Bhandaram. The respondent is regularly paying the rent to the Bhandaram after the death of his father. It is false to say that the petitioner in the RCP has become the absolute owner of the building. The vendors of the petitioner have no manner of right to alienate the property. The vendors gifted the properties in 1919 by Ext.B1 gift deed to the said Bhandaram with the covenant that the property will not be alienated. The donees did not get the right to alienate the property in view of the specific restriction imposed on the donee in alienating the property.

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RCR. No. 95 of 2009

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The gift deed remains in force. One of the two co-owners of the property Sankaranarayana Rao died leaving behind Devadasa Rao, Venu, Sarada and Meera as his legal heirs. The other co-owner Anantha Rao died issueless. Thus the right and management of Santha Durgamba Ammanavara Bhandaram devolved upon them. The above four persons have accepted the recital in the gift deed that the donee has no power to alienate the property. Therefore the alleged sale executed in favour of the petitioner is a sham document. The petitioner in the RCP has not obtained any right over the property. There is no landlord tenant relationship between the respondent and the petitioner in the RCP and the respondent is therefore not liable to pay rent to the petitioner. Contentions were raised regarding the existence of statutory eviction grounds also. The Rent Control Court noticed the contention and accordingly formulated a preliminary point as to whether the rent control petition is maintainable. That point was considered

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RCR. No. 95 of 2009

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and it was held that there exists a landlord tenant relationship between the petitioner and the respondent in the RCP and the rent control petition is maintainable. The above decision was carried in appeal by the present revision petitioner before the Rent Control Appellate Authority. The Appellate Authority also formulated the point arising in the appeal as follows:

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Whether the petitioner landlord has got right in the petition schedule building as alleged ?

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That point was answered in favour of the landlord. It was held that there exists a landlord tenant relationship between the respondent and the petitioner in the RCP.

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In this revision petition under section 20 the tenant revision petitioner contends that the Rent Control Court and the Appellate Authority should have held that there is a bona fide denial of the landlord's title as envisaged by subsection (1) of Section 11 of Act 2 of 1965 and therefore the rent control petition should have been dismissed and the

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RCR. No. 95 of 2009

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respondent should have been relegated to a civil court for seeking eviction of the revision petitioner.

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We have heard the submissions of Sri.Sureshkumar Kodoth, learned counsel for the revision petitioner and those of Sri.V.V.Ashokan, learned counsel for the respondent. We have carefully gone through the entire records. It was conceded by Mr.Sureshkumar Kodoth that even though the points arising for decision in the case were formulated by the Rent Control Court and the Appellate Authority as a point pertaining to the maintainability of the rent control petition and the existence of any right on the landlord in the petition schedule building, the point which was actually considered by the two statutory authorities was the point whether the tenant's denial of the landlord's title was a bona fide one, the point which arises in the light of the pleadings raised by the parties in the case. The learned counsel on both sides agreed that in this revision petition the point called upon to decide is whether there is a bona fide denial

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RCR. No. 95 of 2009

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of the landlord's title by the tenant warranting dismissal of the RCP and relegation of the parties to a civil court.

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The main plank on which it is contended by the revision petitioner all through, is that Ext. B1 gift deed executed by one Sankaranarayana Rao and Anantha Rao in favour of Santha Durgamba Ammanavara Bhandaram contains a covenant prohibiting alienation and creation of charge over the properties covered by the gift deed in any manner and that Ext.A1 sale deed in favour of the petitioner in the RCP was executed in violation of that covenant. Accordingly it is contended that the petitioner in the RCP has not and could not have obtained any title to the building by virtue of Ext.A1. It is alternatively contended that Ext.A1 is a concocted and sham document under which the petitioner in the RCP did not obtain any right over the building in question. The Rent Control Court and the Appellate Authority appear to have accepted the contention that Ext.B1 gift deed under which Santha Durgamba

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Ammanavara Bhandaram came to have title contains a covenant prohibiting alienation in any manner. According to those authorities, competence of the executants of Ext.A1 as legal heirs of the donees under Ext.B1 gift deed and as joint trustees of the Bhandaram cannot be in doubt. Those authorities repelled the contention that Ext.A1 registered sale deed is a concocted and sham one highlighting the reason that A1 is a registered sale deed registered in compliance of all the formalities requisite for registration of sale deeds and that Ext.A3 extract of the property tax assessment register will reveal that acting on Ext.A1 the local authority has effected mutation in favour of transferees under Ext.A1. Those authorities referred to section 10 of the Transfer of Property Act and took the view that any condition or covenant putting the absolute restriction on alienation is void in terms of that section. The authorities take the view that when the covenant is void in terms of Section 10, the covenant can be ignored. The authorities

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also noticed that the recitals in Ext.A1 disclose that it is out of a dire need of the deity (Bhandaram) that Ext. A1 became necessitated.

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Ext.B1 is a gift deed executed by one Sankaranarayana Rao and his brother Anantha Rao in favour of Santha Durgamba Ammanavara Bhandaram, family “Daivam” of the donors worshiped by the donors. The restrictive covenants relied upon by the revision petitioner are in the following words:

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“Hereinafter neither ourselves nor our successors have any manner of right to obtain loans on the charge of under mentioned properties or to alienate the under mentioned properties buildings etc. in any manner or to encumber the same.”

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On a careful reading of the above covenants what we understand is that these covenants are the normal covenants/recitals in any document of transfer under which

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the transferors declare that they have ceased to have any further right over the property transferred by virtue of the transfer being an absolute one. In other words, the

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RCR. No. 95 of 2009

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restriction against alienation is a restriction imposed on the transferors themselves and not on the transferees as the revision petitioner contends and the authorities below appear to have misunderstood the purport of the covenant.

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The authorities under the Rent Control Act are concerned ordinarily not with the proprietory title over the subject matter of building, but their concern will be regarding the existence of a landlord tenant relationship between the petitioner in the RCP and the respondent therein who is sought to be evicted. In the instant case, it is evident that the respondent in the RCP, viz., the revision petitioner, is a building tenant. His contention is that he is a tenant and that he is paying rent to the Bhandaram through its competent trustees. In fact, there is evidence to hold that the building was taken on a monthly rental of Rs.25/by the father of the respondent in the RCP from Devidas Rao and that it is upon the demise of the father the tenancy right over the building devolved upon him and his siblings.

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RCR. No. 95 of 2009

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Ext.A3 is certified copy of the property tax assessment register maintained by the Kasaragod Municipality with regard to the petition schedule building. In Ext.A3 the petitioner in the RCP is shown as the owner of the building and the revision petitioner is shown as the occupant of the building. Ext.A3, in our opinion, is a document as envisaged by section 26 of Act 2 of 1965 which reads as follows:

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“26. Executive authorities of local bodies to furnish certified extracts from property tax or house tax assessment books:-

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The executive authority of a Municipal Council or Township Committee or Panchayat or the Revenue Officer of a Corporation shall, on application made in this behalf and on payment of such fee as may, from time to time, be fixed by the Government, by notification in the Gazette, grant to the applicant a certified copy of the extract from the property tax or house tax assessment book of the Municipal Council or Township Committee or Panchayat or Corporation, as the case may be, showing the rental value of the building or buildings in respect of which application has been made, relating to the period specified in the application. Such certified copy shall be received as evidence of the facts stated therein in proceedings under this Act.”

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In the light of the probative value which is attached to

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documents like Ext.A3 under Section 26 it was obligatory on the part of the revision petitioner to have established before the Rent Control Court that the ingredients in Ext.A3 that the revision petitioner is a tenant under the revision respondent is incorrect.

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Moreover, the reasons on which the Appellate Authority which under the statutory scheme is the final court on facts has held that the denial of the landlord's title by the tenant is not bona fide one and there is no warrant for invocation of the revisional jurisdiction under section 20 for interfering with the decision of the Appellate Authority. After all, it is well settled that in order that a Rent Control Appellate Authority holds that the denial by the tenant of the landlord's title is bona fide, that court must be able to hold on the basis of materials available on record that in the event of the parties being relegated to the civil court the tenant stands a fair chance of success. We do not think that in the light of the materials placed before the Rent

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Control Court the tenant stands any fair chance of nonsuiting the petitioner in the RCP.

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The result is that the RCR fails and the same stands dismissed. The Rent Control Court is directed to give one posting for pre-trial steps, if any, and thereafter to special list the RCP for trial at the earliest

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(PIUS C.KURIAKOSE, JUDGE)

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(P.Q.BARKATH ALI, JUDGE)

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KSV/-

E.Sooryanarayana Bhat v. K.Sundara

Case brief

What is this about?

What did the court decide?

E.Sooryanarayana Bhat v. K.Sundara

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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