Thottathil B. Radhakrishnan, J.
We have heard the learned counsel for the revision petitioner and the learned counsel for the respondents quite in extenso at the stage of admission. Notice was issued before admission.
2. The rent control petition was filed by M.V.Abraham projecting the need of his son, M.A.Varghese for accommodation in the building in question to carry on a business in footwear. Pending the rent control petition, Abraham died and Varghese and his wife and son were impleaded as additional petitioners. The rent control court upheld the bona fide need pleaded and found that the tenant is not entitled to the protection of the provisos to Section 11(3) of Kerala Buildings (Lease and Rent Control) Act, 1965 (Act 2 of 1965), hereinafter referred to as “the Act”. In the appeal before the rent control appellate authority, the tenant appears to have raised a contention that Ext.A1 is a Will of M.V.Abraham and his wife and that therefore, the devolution in terms of that bequest would take place only after the death of Abraham and his wife. That did not find favour with the appellate authority.
3. We have heard the contents of Ext.A1 as read out.
Ext.A1 declares that the property belongs to Abraham and his wife. Abraham and his wife created the bequest in favour of their son Varghese to take effect from their death. There is no mutual bequest in that Will. The bequest insofar as Abraham's assets are concerned would operate eo instanti his death. That bequest will go in favour of Varghese. Abraham's widow is still alive. More important is the fact that even during the currency of life time of Abraham's wife and Abraham, Abraham sued by himself to evict the tenant. The tenant did not then challenge the eligibility of Abraham to institute the rent control petition. Obviously, he could not.
This is because, the term “landlord” as defined in the Act includes a person entitled to collect rent. The plea of the tenant that Abraham's rent control petition could not have been carried forward by his son Varghese and Varghese's wife and son, therefore, fails. The bequest under Ext.A1 Will insofar as Abraham's share is concerned was one in favour of his son Varghese and Varghese's wife and son. That plea, therefore, fails.
4. The cogent evidence on record through the testimony of Varghese as PW1 and other witnesses as PWs.2 to 4 in contrast to the evidence on behalf of CPWs.1, 2 and 3 taken along with Ext.C1 Report and PW4 Commissioner were appreciated by the courts below. These materials clinchingly showed to the satisfaction of the courts below that on assimilation of evidence, the bona fide need pleaded by the landlord that he needs the building for occupation of his son was proved. Similarly, the tenant was found dis-entitled to the protection of the provisos to Section 11(3) of the Act on the basis of the materials on record. That way also, this revision fails.
5. For the aforesaid reasons, we do not find any illegality, irregularity or impropriety either in the procedure adopted or in the reasoning process of the appellate authority or the rent control court. This revision under Section 20 of the Act, therefore, fails.
In the result,
a) This revision is dismissed.
b) Revision petitioner is granted six months' time from today to vacate the premises and deliver possession to the landlord on the following conditions:-
i. The revision petitioner remits the entire arrears of rent as on today before the executing court within six weeks from today and files an affidavit before the executing court within six weeks from today, unconditionally undertaking to surrender vacant possession of the premises to the landlord within six months from today.
ii. The revision petitioner pays charges towards use and occupation of the building at the current rent rate from today till he gives vacant possession of the premises to the landlord.
c) Execution proceedings, if any, pending before the executing court shall be kept in abeyance for a period of six months.
d) If there is default in performing any of the conditions imposed in clause (b) above, the benefit given to the tenant as per this order will stand recalled automatically and the executing court shall effect delivery forthwith.
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THOTTATHIL B. RADHAKRISHNAN JUDGE kns/-
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BABU MATHEW P. JOSEPH JUDGE //TRUE COPY// P.A. TO JUDGE