Dismissed

T.C.Senkumar v. M.K.Rahdakrishnan Nair

Kerala HC16 Mar 2016RSA/400/2010

Case brief

AI extract

What is this about?

In a regular second appeal against a decree for separation of possession, the High Court of Kerala dismissed the appellant's contention that acquiring a fractional leasehold interest extinguished the lease. Relying on the doctrine of election, the Court held the appellant was precluded from this stance after successfully arguing the opposite in earlier eviction proceedings.

What did the court decide?

The second appeal is dismissed confirming the appellate decree for separation of possession.

T.C.Senkumar Vs M.K.Rahdakrishnan Nair — Property and Title | Kerala HC (2016)

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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 P.B.SURESH KUMAR

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WEDNESDAY, THE 16TH DAY OF MARCH 2016/26TH PHALGUNA, 1937

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RSA.No. 400 of 2010

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AGAINST THE JUDGMENT AND DECREE IN A.S.NO.21/2007 OF SUB COURT, CHERTHALA DATED 31-10-2009

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AGAINST THE JUDGMENT IN O.S.NO.780/2004 OF ADDITIONAL MUNSIFF COURT , CHERTHALA DATED 27.07.2006

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APPELLANT/RESPONDENT/DEFENDANT :

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T.C.SENKUMAR, S/O.CHITHRANGADAN, THOTTAKARA, PERUMBALAM MURI, PERUMBALAM VILLAGE.

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BY ADV. SRI.K.S.BHARATHAN

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RESPONDENT /APPELLANT/PLAINTIFF :

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1. M.K.RAHDAKRISHNAN NAIR S/O.GOPALA PILLAI, MAREZHATHU VEEDU, C.M.C. XVII, CHERTHALA NORTH VILLAGE.(DIED)

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*** ADDITIONAL R2 TO R5 IMPLEADED**

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2. SMT.RADHAMANI AMMA, AGED 59 YEARS, W/O.LATE M.K.RADHAKRISHNAN NAIR, MAREZHATHU VEEDU, CMC XVII, CHERTHALA NORTH VILLAGE.

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3. RAMESH KUMAR, AGED 41 YEARS, S/O.LATE M.K.RADHAKRISHNAN NAIR, MAREZHATHU VEEDU, CMC XVII, CHERTHALA NORTH VILLAGE.

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4. REMEDEVI, AGED 38 YEARS, D/O.LATE M.K.RADHAKRISHNAN NAIR, MAREZHATHU VEEDU, CMC XVII, CHERTHALA NORTH VILLAGE.

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..2/-

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..2..

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RSA.No. 400 of 2010

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5. RAJENDRA KUMAR, AGED 36 YEARS, S/O.LATE M.K.RADHAKRISHNAN NAIR, MAREZHATHU VEEDU, CMC XVII, CHERTHALA NORTH VILLAGE.

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LEGAL REPRESENTATIVES OF DECEASED SOLE RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 2 TO 5 AS PER ORDER DATED 25.11.2014 IN I.A.NO.2351/2011.

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R2 TO 4 BY ADV. DR.V.N.SANKARJEE R5 BY ADV. SRI.S.SIDHARDHAN

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 01-03-2016, THE COURT ON 16-03-2016 DELIVERED THE FOLLOWING:

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Msd.

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C.R.

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P.B.SURESH KUMAR, J.

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R.S.A. No.400 of 2010

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Dated 16^th March, 2016.

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J U D G M E N T

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The defendant in a suit for partition is in appeal.

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By virtue of Ext.A1 partition deed, the plaintiff and his brother Parameswaran Nair obtained a portion of a building which is a shop room. The defendant was in occupation of the said shop room as a tenant even before the partition. After the partition, the plaintiff and his brother Parameswaran Nair initiated proceedings under the Kerala Buildings (Lease and Rent Control) Act, 1965 for eviction of the defendant from the said shop room. Though the Rent Control Court allowed the eviction petition, the defendant took up the matter in appeal. During the pendency of the appeal, the defendant purchased the one half undivided share of Parameswaran Nair in the building which was the subject matter of the eviction petition. On the strength of the said purchase, the defendant contended before the appellate

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RSA No.400 of 2010

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authority constituted under the said Act that he became a coowner of the property and therefore, the eviction petition is not maintainable. The essence of the said contention was that the acquisition of the fractional interest in the building by the defendant has resulted in the determination of the lease in respect of the building. The appellate authority accepted the said contention of the defendant and dismissed the eviction petition. Though the plaintiff challenged the decision of the appellate authority before this Court in a revision petition, this Court confirmed the decision of the appellate authority.

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Since the defendant took the stand in the eviction petition that the acquisition of the fractional interest in the building by him has resulted in the determination of the lease in respect of the building, the plaintiff has instituted the present suit for partition of his share in the building which was the subject matter of the eviction petition. Though the defendant did not oppose the prayer for partition, he contended that there is a provision in Ext.A1 partition deed to the effect that the southern one half portion of the building is the share

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RSA No.400 of 2010

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of the plaintiff and therefore, he is to be treated as the tenant of the said portion of the building. As such, according to the defendant, separate possession of the said portion can be obtained by the plaintiff only in accordance with the provisions of the Kerala Buildings (Lease and Rent Control) Act. The trial court accepted the case of the defendant and consequently though a decree was passed for partition of the southern one half portion of the building in favour of the plaintiff, the decree for separate possession of the said portion sought by the plaintiff has not been granted. The plaintiff challenged the decision of the trial court in appeal. The appellate court, relying on the decision of this Court in Jayachandra Nadar v. Malathi (2000(2) KLT 660), held that by virtue of the acquisition of the fractional interest in the property, the tenant became a co-owner of the property and therefore, he cannot be heard to contend that he continues to be the tenant of any portion of the building. In other words, the view taken by the appellate court was that the acquisition of the fractional interest in the building by the defendant has resulted in the

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RSA No.400 of 2010

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determination of the lease in respect of the building. Consequently, the appellate court reversed the decision of the trial court and decreed the suit as prayed for granting the plaintiff a decree for separate possession of his share in the building also. The defendant is aggrieved by the said decision of the appellate court and hence this second appeal.

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Heard Sri.K.S.Bharathan, the learned counsel for the defendant and Dr.V.N.Shankerjee, the learned counsel for the plaintiff.

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The learned counsel for the defendant, relying on the decision of the Apex Court in Pramod Kumar Jaiswal v. Bibi Husn Bano [(2005)5 SCC 492], contended that a lease will not be extinguished on account of the purchase of the fractional interest in the property by the lessee and the lease will be extinguished only when there is a coalescence of the interests of the lessor in the lessee in the whole of the estate. In other words, the contention advanced by the learned counsel for the defendant is that the defendant continues to be a tenant in respect of the building and the plaintiff can obtain separation

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RSA No.400 of 2010

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possession of his portion of the building only in accordance with the Kerala Buildings (Lease and Rent Control) Act. Per contra, the learned counsel for the plaintiff contended that in so far as the defendant got the eviction petition filed by the plaintiff dismissed contending that the acquisition of the fractional interest in the building by him has resulted in the determination of the lease, he is precluded from contending otherwise in the suit.

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In the light of the decision of the Apex Court in Pramod Kumar Jaiswal v. Bibi Husn Bano (supra), there cannot be any doubt to the proposition that acquisition of fractional interest of the lessor by the lessee would not result in the determination of lease. As such, the only question falls for consideration is whether, after having got the eviction petition dismissed contending that the acquisition of the fractional interest in the building by the defendant has resulted in the determination of the lease, the defendant is entitled to contend in the present suit that the acquisition of the fractional interest in the building by him has not resulted in the determination of

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RSA No.400 of 2010

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the lease. According to me, the maxim Qui approbat non reprobat (one who approbates cannot reprobate) precludes the defendant from raising such a contention in the present suit. The said maxim is a principle borrowed from the Scotch law, where it is used only to express the principle that no party can accept and reject the same instrument. But, in English law, the said principle is not confined to instruments. On the other hand, the said principle is accepted as one of the species of the doctrine of election. The principle is that a person cannot say at one time that a transaction is valid and thereby obtain some advantage to which he could only be entitled on the footing that it is valid and then turn round and say that the transaction is void for the purpose of securing some other advantage. This common law principle which puts a man to his election between alternative inconsistent courses of conduct has no connection with the equitable doctrine of election which relates mainly, though not exclusively, to alternative remedies available to litigant. ( See 'Halsbury's Laws of England” (Third Edition – Vol.15 – page 171). As noted above, the defendant who has

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RSA No.400 of 2010

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acquired only a fractional interest in the building has contended in the eviction petition filed by the plaintiff that the acquisition of the fractional interest in the building has resulted in the determination of the lease and got the rent control petition dismissed on that basis. It is because of the eviction petition was dismissed on the said ground, the plaintiff had to Institute the present suit for partition. When the present suit is filed, the defendant has changed his stand as regards the transaction by which he has acquired fractional interest in the building and contended that the acquisition of the fractional interest in the building by him has not resulted in the determination of the lease. In so far as the defendant could defeat the proceedings for eviction earlier instituted by the plaintiff contending that acquisition of the fractional interest in the building by him has resulted in the determination of the lease, he is precluded from raising the contention that the acquisition of the fractional interest in the building by him does not result in the determination of the lease and that he continues to be the tenant of the building. The impugned judgement, in the

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RSA No.400 of 2010

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circumstances, is liable to be confirmed, though on a different ground. The second appeal, in the said circumstances, fails and the same is, accordingly, dismissed.

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Sd/-

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P.B.SURESH KUMAR, JUDGE.

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tgs

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(true copy)

T.C.Senkumar v. M.K.Rahdakrishnan Nair

Case brief

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T.C.Senkumar v. M.K.Rahdakrishnan Nair

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