A.Muhamed Mustaque, J.
The second respondent in R.C.P.No.17/2005 on the file of the Rent Control Court, Ernakulam is the revision petitioner. The first respondent herein is the petitioner in the above rent control petition. The second respondent herein was arrayed as the first respondent in the above rent control petition.
2. Parties are referred to as per their status in the rent control petition.
3. The petitioner filed the above rent control petition for eviction of petition schedule shop room under Sections 11(2)(a)(b) and 11(4)(i) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as the 'Act'). The first respondent remained ex parte. The second respondent raised an objection disputing the title of the petitioner. The Rent Control Court found that the denial of title is bona fide and rejected the rent control petition. Challenging the order of the Rent Control Court, petitioner filed R.C.A.No.47/2006 before the Rent Control Appellate Authority. That appeal was allowed. Challenging the said judgment, the second respondent filed R.C.R.No.317/2007. The revision filed by the second respondent was dismissed by this Court on 10/10/2007.
4. Thereafter, the matter was re-tried on merits.
The Rent Control Court found that the petitioner is entitled for eviction under Section 11(2)(b) of the Act subject to Section 11(2)(c) of the Act and declined eviction under Section 11(4)(i) of the Act. The petitioner approached the Appellate Authority challenging the order under Section 11(4)(i) of the Act. The Appellate Authority allowed the claim of the petitioner under Section 11(4)(i) of the Act. It is challenging the above order, the second respondent filed this revision petition.
5. The main points urged by the second respondent in this revision petition are that, (i). the partnership firm in which the second respondent was a partner along with the original tenant, was accepted as a tenant by conduct of the landlord. Therefore, the landlord is precluded from filing a petition for eviction under Section 11(4)(i) of the Act on the death of the original tenant; (ii) the second respondent being foster son of the original tenant, he is a tenant by succession and, therefore, the order passed under Section 11(4)(i) of the Act is bad and; (iii) The possession of the petition schedule building by the second respondent is not based on any transfer by the first respondent, who is one of the legal heirs of the original tenant and who succeeded to tenancy by definition of tenant. Therefore, without transfer of the right of lease, a petition under Section 11(4)(i) of the Act is not maintainable against a person, who claims to be in possession of the tenanted premises dehors any transfer.
6. To understand the points urged as above, brief facts of the case are necessary, which are stated hereunder.
7. One Mrs.Chamakutty Mathew was the landlady in respect of the tenanted premises. It appears that John Mathew, her brother was entitled to collect rent and on death of John Mathew, the petitioner-Smt.Leela John, the widow, was entitled to collect rent. The above facts cannot be disputed in view of the findings rendered by the courts below and this Court before remand. It is the admitted case of the parties that late A.R.Joseph was the original tenant. However, it is the case of the second respondent that during the life time of late A.R.Joseph, a partnership firm was formed consisting of A.R.Joseph, his wife-Kunjathiri and the second respondent, namely, Shri Siju Ommen. According to the second respondent, the partnership firm was initially formed on 01/11/1996. Shri A.R.Joseph died on 24/11/1997 and his estate devolved upon his wife-Kunjathiri. They have no issues. Thereafter, according to the second respondent, the partnership firm was reconstituted by Kunjathiri along with the second respondent. Smt.Kunjathiri died on 22/01/2004. The case of the second respondent is that the partnership firm being the tenant, the entire tenancy right devolved upon him on the death of Kunjathiri. He also claimed that being a foster son and also by virtue of Ext.B8 will executed by Kunjathiri, he is entitled to succeed to the estate of Kunjathiri. Before instituting the rent control petition, the landlady sent a lawyer notice to which the first respondent sent a reply stating that he has nothing to do with the tenanted premises. Admittedly, he is the brother and a natural legal heir of A.R.Joseph.
8. The Rent Control Court found that presence of the partnership firm and possession of the tenanted premises by the partnership firm cannot be disputed as the landlady was aware of it in various circumstances as revealed from the documents produced as Exts.A10, A11 and A13 and, therefore, the Rent Control Court took the view that the tenant being partnership firm in which the second respondent is a partner, the second respondent could not be treated as sub lessee under A.R.Joseph or under his legal heirs. The Appellate Authority on the other hand also found that the partnership firm was never a tenant. It is also found that a legatee under a testamentary disposition cannot claim the status of a statutory tenant and resist the claim for eviction. Therefore, the Appellate Authority held that the petitioner is entitled to get an order of eviction of the second respondent from the petition schedule room under Section 11(4)(i) of the Act.
9. It is in the back drop of facts and findings, the points urged on behalf of the revision petitioner have to be looked into. The learned counsel for the revision petitioner relied on Exts.B1, A10, A11 and A13 to substantiate his contention that partnership firm is the tenant. Ext.B1 is a letter dated 29/11/1999 issued to the petitioner agreeing to pay enhanced monthly rent for the tenanted premises. This was issued in the letter head of the Sports Centre by its Managing Partner Smt.K.M.Kunjathiri. Ext.A10 is a lawyer notice issued on behalf of the Sports Centre to Smt.Chamakutty Mathew and Smt.Leela John. Ext.A11 is a reply notice to Ext.A10. Ext.A13 is another notice issued on behalf of the alleged partnership firm to Ext.A11. Ext.B1 will not show that the partnership firm is the tenant. Admittedly, Smt.Kunjathiri was the tenant by succession. She, forming a partnership firm for the purpose of business, need not be objectionable to the landlady. At the most, it can only be pointed out that existence of the partnership firm must be known to the landlady. Presence of others along with the tenant based on a partnership deed need not always be objectionable to the landlady. Therefore, the letter sent by the tenant, styling as a Managing Partner, will not clothe such partnership firm, the status of the tenant. This is essentially because the revision petitioner has no case that the original tenant Shri A.R.Joseph or his successor-in-interest, at any point of time, had surrendered their lease hold right, either by implication or expressly to the landlady so as to acknowledge tenancy of the partnership firm. Ext.A10 is the notice issued by the lawyer on behalf of the partnership firm. It is categorically stated in the above notice that the landlady insisted the Managing Partner to execute a fresh lease deed for enhancing the monthly rent to Rs.3000/- in favour of the landlady. It is mentioned in the above notice that the landlady also insisted that she will accept only actual cash or cheques from Smt.Kunjathiri. Thus, going by the tenor of Ext.A10 notice, it can be seen that the landlady insisted for executing fresh lease deed with the Managing Partner of the partnership firm for the purpose of enhancing rent. Therefore, it would sufficiently indicate that the landlady, at the time of issuance of Ext.A10 notice also never recognised the partnership firm as a tenant. Exts.A11 and A13 are only exchange of notices on behalf of the landlady and the partnership firm with regard to various points raised in Ext.A10. Therefore, it is clear that Exts.B1, A10, A11 and A13 will not establish that the landlady has recognised partnership firm as a tenant. Thus, the claim of the revision petitioner that the partnership firm is the tenant, is liable to be rejected.
10. The next point that comes up for consideration is that the petitioner claimed to be the foster son of Smt.Kunjathiri. A foster son is not a natural legal heir entitled for succession under personal law applicable to the tenant. The tenant is defined under Section 2(6) of the Act, which includes the expression “heir/s” of a deceased tenant. Thus, a foster son cannot claim to be the legal heir.
11. The Appellate Authority relied on the decision of this Court in Karthiayani vs. Anandan [2004 (2) KLT 575], wherein it is held that a legatee under a testamentary disposition cannot claim the status of the statutory tenant and resist the claim for eviction. This Court also in Prasannan v. Haris [2005 (2) KLT 365] reiterated that a legatee under the 'Will' cannot claim the status of a statutory tenant unless the legatees are natural heirs. Therefore, we are of the view that even by virtue of Ext.B8, second respondent is not the tenant. This point is also found against the second respondent.
12. The third point is whether there is transfer of any right of lease by the first respondent in favour of the second respondent. The second respondent has claimed that the first respondent has renounced his tenancy and claimed no right as a tenant. If that be so, the possession by the second respondent is only in the nature of trespass as rightly projected by the landlady herself in Ext.A1 notice. Therefore, the question is whether the rent control petition is maintainable to evict the second respondent. It is to be noted that the second respondent has no case that he has trespassed and reduced the possession of the building by trespassing.
13. We have already adverted to the fact that the partnership firm is not the tenant. Second respondent was present along with the tenant in the tenanted premises. Possession of the second respondent along with the tenant is a permissive possession based on partnership claimed by him. That need not be objectionable to the landlady so long as possession is with the tenant. However, the moment the original tenant dies, the possession of the second respondent becomes exclusive. It will become objectionable possession to the landlady unless she agrees to acknowledge the possession/presence of the revision petitioner by some arrangement as per law. It is not necessary that the person who succeeded to the estate and arrayed as first respondent should have transferred possession or created sub-lease in favour of the second respondent. The sharing of right of possession has already taken place during the life time of the tenant. However, at that point of time, it was not exclusive possession of the second respondent. It became objectionable only at the moment the tenant died and possession became exclusive with the second respondent on the failure of the successor tenant to terminate such exclusive possession. As has been noted, exclusive possession of sub tenant arises only when the tenant dies and the jural relation of the partnership gets terminated. Thus, cause of action of the landlady arises only when exclusive possession is found out, as has happened in this case on the death of Smt.Kunjathiri, as partnership became extinguished by operation of law. The claim of the first respondent that he has nothing to do with the building premises would itself signify that possession is not with him. Therefore, the exclusive possession of the second respondent has thus become objectionable. Thus, the case of the second respondent that there was no transfer of possession by tenant and his possession can only amount to possession by trespass which was dehors the jural relationship between the second respondent and the tenant is untenable. The possession of the second respondent, which was a legal possession, based on a partnership deed, became objectionable only when Smt.Kunjathiri died and partnership stood extinguished. Thus, this point is also found against the second respondent.
14. In view of the discussion as above, we do not find any merit in this revision petition. Accordingly, we dismiss the revision petition. Normally, in a matter relating to sub tenancy, we are not inclined to grant time to surrender tenanted premises to the landlady. However, considering the fact that the second respondent-revision petitioner was in possession along with the tenant, we are taking a lenient view and, accordingly, grant the second respondent time to surrender vacant possession of the tenanted premises till 31/03/2015 on the following terms:
i. The second respondent-revision petitioner shall file an affidavit undertaking that he will surrender the tenanted premises to the landlady within the time granted by this Court.
ii. This affidavit shall be filed within a period of four weeks from today.
iii. The second respondent-revision petitioner shall pay occupational charges to the landlady, at the rate of rent payable by the tenant till he actually surrenders the building to the landlady.
iv. The rent already deposited by the second respondent-revision petitioner will be construed as occupational charges for using the building by the second respondent-revision petitioner and, the landlady is permitted to withdraw the amounts so deposited before the courts below. The second respondent- revision petitioner shall not raise any objection in releasing the amounts to the landlady.
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K.T.SANKARAN, JUDGE Sd/-
A.MUHAMED MUSTAQUE, JUDGE ms