S.R. RADHAKRISHNAN AND ORS.versusNEELAMEGAM

                   S.R. RADHAKRISHNAN AND ORS.                                     A
                                      v.
                              NEELAMEGAM

                               JULY 31, 2003

              [BRIJESH KUMAR AND ARUN KUMAR, JJ.]                                  B


      Rent Control and Eviction:

       Tamil Nadu City Tenants Protection Act, 1921; Sections 3 and 9:
Premises let out to tenant on lease on monthly rent for one year-Stipulation       C
as to construction of roof and other construction by tenant and its recovery
by adjustment from rent-Sale of the property-Purchaser issuing notice for
eviction-Tenant transferred possession and business to his brothers-Pending
eviction petition tenant filed an application for purchase of tenanted premises
under Section 9 of the Act-Dismissed by the Trial Court-Reversed by the            D
Appellate Court-High Court upheld the order of the Trial Court-On appeal,
Held, since the premises was not taken by the tenant in the capacity of luirta
of the Joint Hindu family and that his father was alive, he could not claim
himself to be the karta-Hence, his plea of transferring the right to his brother
not sustainable-Since landlord is not bound by the recitals contained in the
release deed transferring tenancy rights and possession to his brothers, and       E
in the absence of rent receipts, they could not acquire right of tenancy in the
premises-When the tenant was not in possession of the tenanted premises, he
ceased to be a tenant-Hence had no right to file application under Section
9 read with Section 3-1nterpretation of Statutes.

      Words and Phrases:                                                           F

      'liberal interpretation '-Meaning of

      Appellant-tenant had taken the suit premises on monthly rent for a
period of one year vide a registered lease deed. Later, the property was           G
purchased by the respondent, who had served a notice to the tenant for
delivery of possession and had filed eviction petition thereafter. In the
meanwhile, the tenant had transferred the possession as well as his printing
business, running on the suit premises, to his brothers and filed an
application under Section 9 of the Tamil Nadu City Tenants Protection
                                     987                                           H
      988                    SUPREME COURT REPORTS [2003] SUPP. I S.C.R.

A     Act offering to purchase the suit premises. Trial Court dismissed the
      application. But First Appellate Court allowed the appeal holding that
      brothers of tenant acquired tenancy right in the suit premises by virtue
      of the release deed. Aggrieved, landlord filed an appeal which was allowed
      by the High Court. Hence the present appeal by the tenant and his
      brothers.
B
            It was contended for the appellants that actual possession of the
      premises was not necessary for claiming privilege conferred under Section
      9 of the Act; that since the premises was taken by the appellant in the
      capacity of karta of the Joint Hindu family, tenancy rights could be
C     transferred and enjoyed by the brothers of the appellant; and that since
      the Act is a beneficial piece of legislation for tenants, it should be construed
      liberally in their favour.

           On behalf of the respondent, it was submitted that the tenant had
      not paid any rent in respect of the suit premises.
D
            Dismissing the appeals, the Court

            HELD: I.I. The plea of the respondent that the premises was taken
      on rent by the appellant-tenant as joint family manager alone does not
E     make out a case that the tenancy was on behalf of the joint family. The
      plea cannot stand scrutiny in view of the admitted fact that the father of
      the defendants was alive at the time of tenancy and if at all the tenancy
      was to be in favour of the Joint Hindu Family, it was the father of the
      defendants who could have taken the premises on rent as manager/karta
      of the Joint Hindu Family. The lease deed shows that the name of the
F     tenant was mentioned in his individual capacity and not as a member/karta
      of Joint Hindu Family. Besides, he had never made any such suggestion
      earlier. [992-D-F[

             1.2. The release deed which is relied upon by the appellants for the
      purpose of assignment of tenancy right has no mention whatsoever about
G     the tenancy rights released by appellant No. I in favour of other appellants,
      the brothers. Besides, there is no proof of payment of rent by appellants
      2 and 3 with respect to the suit premises, to the landlord. There is no rent
      receipt in their favour. The landlord is not a party to the release deed.
      He is not bound by any recitals contained in the release deed. Further it
I-I   is settled law that one docs not become tenant by mere payment of rent
                 S.R. RADHAKRISHNAN v. NEELAMEGAM                        989
even if that be so. Simply because appellants 2 and 3 continued to be in         A
possession of the suit premises, it does not follow that they were in
occupation thereof as tenants. Since they never became tenants in the suit
premises, they would not be tenants by holding over.
                                                 1992-G, H; 993-A, B, Ci

      1.3. It is mandatory for an application under Section 9 of the Tamil       B
Nadu City Tenants Protection Act that the applicant should be a tenant
in possession of the suit premises. Appellants 2 and 3 could not maintain
an application under Section 9 of the Act since they were not tenants and
such application on their behalf was rightly rejected by the High Court.
Appellant No. 1 was admittedly not in possession of the suit premises and        C
he had also ceased to be a tenant of the premises. Therefore, he had no
right to file an application under Section 9 of the Act. 1993-E-GI

      1.4. The plea that Tamil Nadu City Tenants Protection Act is a
socially beneficial piece of legislation meant for protection of the interests
of tenants and its provisions $hould be liberally construed so as to advance     D
the object of the Act, in the context of facts on record, is totally
misconceived. Liberal interpretation does not mean that benefit can be
given contrary to the basic provisions of the Act or in violation of the
statutory provision. [994-B[

      1.5. Section 9 read with Section 3 of the Act makes it imperative that     E
the tenants should be in possession of the premises with respect to which
the right to purchase is sought to be exercised. If a tenant is not to hand
over possession of the suit premises to the landlord at the time of ejectment,
there is no question of payment of any compensation to him under Section
3 of the Act. If he is not entitled to compensation under Section 3 of the       F
Act he cannot invoke Section 9 of the Act. [994-FI

     P. Ananthakrishnan Nair and Anr. v. Dr. G. Ramakrishnan and Anr.,
119871 2 sec 429, relied on.

      Gummalapura Taggina Malada Kotluruswami v. Selra Veeravva and              G
Ors., 119581 I SCR 968, distinguished.

    £stale of Tl'. Ramaswami Pillai v. A. Mohd. Yousuf and Ors., Madras
Law Journal (1983) 2, ·referred to.

      CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1811-13 ' of               H
    990                    SUPREME COURT REPORTS [2003] SUPP. I S.C.R.

A 1997.
         From the Judgment and Order dated 18. l 0.1996 of the Chennai High .
    Court in S.A. Nos. 712 and 713/89 and C.R.P. No. 1228 of 1989.

          K.V. Vijay Kumar and K.Y. Venkataraman, for the Appellants.
B
          R. Sunderavardhan, K. Ramkumar and B. Sridhar, for the Respondent.

          The Judgment of the Court was delivered by

          ARUN KUMAR, J. These appeals are directed against the judgment
C dated 18.10.1996 by a learned Single Judge of the High Court disposing of
    three interconnected matters between the parties.

          Briefly the facts are that the appellant Radhakrishnan had taken on
    lease a property (hereinafter referred as the "suit property") on rent from one
    Thanakachalam vide registered lease deed dated 2.2.1970. The lease was for
D   a period of one year and the monthly rent was Rs. 35. It is stated in the lease
    deed that the building constructed in the premises did not have a roof and the
    tenant had to put up a roof as well as such other construction as was required
    for running a printing press in the premises. The cost of providing electricity
    and water connection in the premises and of improvements in the building
    had to be calculated and it was to be paid by the landlord to the tenant at the
E   time of handing back vacant possession of the premises by the tenant to the
    landlord. It appears that after taking the premises on lease tenant carried out
    certain improvements therein and started the business of running a printing
    press there. The tenant took along with him in the business his two younger
    brothers.
F
        The property was purchased by the respondent-plaintiff vide registered
  Sale Deed dated 16.6.1979. The purchaser served a notice (Ex.Bl) on the
  tenant on 26.11.1979 calling upon him to deliver vacant possession of the
  suit premises. The tenant sent a reply dated 7.12.1979 (Ex.82) to the notice
  stating that he had nothing to do with the property as defendants No.2 and
G 3 were in possession thereof. The landlord was asked to approach defendant
  Nos.2 and 3 for rent as well as for possession. The landlord sent another
  notice dated 22.12.1979 (Ex.A3) to all the defendants calling upon them to
  deliver possession of the suit premises. Ultimately the landlord filed a suit for
  ejectment on 19.6.1980 impleading all the three brothers as defendants. One
H fact which needs to be mentioned here is that on 30.5.1977 defendant No. 1,
       S.R. RADHAKRISHNAN v. NEELAMEGAM [ARUN KUMAR . .I.)                 991

the tenant executed a release deed in favour of his younger brothers i.e.          A
defendants Nos. 2 and 3 relinquishing his entire interest in the business of the
printing press which was carried on in the suit premises in their favour.

      Section 9 of the Tamil Nadu City Tenants Protection Act, 1921
(hereinafter referred to as the "Act") gives a right to a tenant who has put up
super structure in the tenanted premises to purchase the same at a price to be B
fixed by the Court. This application is to be made within one month after the
service of summons in the eviction suit instituted by the landlord against such
a tenant. Relevant portion of Section 9 is reproduced as below:

        "l(a)(i) Any tenant who is entitled to compensation under Section 3
        and against whom a suit in ejectment has been instituted or proceeding     C
        under section 41 of the Presidency Small Cause Courts Act, 1882,
        taken by the landlord may, within one month of the date of the
        publication of Madras City Tenants Protection Amendment Act, 1979
        in the Tamil Nadu Government Gazette or of the date with effect
        from which. this Act is extended to the municipal town, township or        D
        village in which the land is situate or within one month after the
        service on him of summons, apply to the Court for an order that the
        landlord shall be directed to sell for a price to be fixed by the Court,
        the whole or part of the extent of and specified in the application."

      From the above-provision it will be seen that the following conditions       E
are to be satisfied before a tenant is entitled to relief:

       (i)   He should be a tenant in possession of the land;
       (ii) He should have erected a super structure on the land in respect
            of which he would be entitled to claim compensation under              F
            Section 3;
       (iii) A suit or proceeding for eviction should have been taken by the
             landlord against him;
       (iv) He should have applied to the court for direction in that regard
            within one month from the date of service of summons in such           G
            suit.

      Although the above quoted provisions of the Act do not specifically
mention that a tenant should be in possession of the tenanted premises before
he can move such an application, yet it refers to Section 3 of the Act i.e., a
tenant who is entitled to compensation under Section 3. A reference to Section H
    992                    SUPREME COURT REPORTS [2003] SUPP. I S.C.R.
                                                                                           I
A 3 makes it clear that compensation is with respect to building erected by the
    tenant on the tenanted premises and the compensation that he gets is only for
    what he hands over to the landlord on ejectment.

         It is the stand of the plaintiff-landlord that the tenant never paid any
  rent for the suit premises. It is further clear from the pleadings of the parties
                                                                                           i
                                                                                           '
B that the plaintiff never recognized defendants 2 and 3 as tenants. In order to
  make out a case of tenancy defendant No. 2 (who alone filed a written
  statement) tried to plead firstly, that defendant No. I had taken the premises
  on behalf of Joint Hindu family and therefore, defendants 2 and 3 were              .,
  entitled to enjoy the tenancy rights in the absence of defendant No. I; secondly,
C a plea was sought to be taken that defendant No. I had relinquished the
  tenancy rights in favour of the defendants 2 and 3 and after relinquishment
  defendants 2 and 3 started paying rent to the landlord. It is however, admitted
  that there are no rent receipts regarding payment of rent nor there is any
  proof of payment of rent coming forth on the record. Both the pleas which
  have been raised in order to establish tenancy in favour of defendants 2 and
D 3 are inconsistent and mutually destructive. We find no substance in either
  of the pleas. It has been meekly suggested in the written statement that the
  premises was taken on rent by the first defendant who is the Joint Family
  manager. This statement alone does not make out a plea that the tenancy was
  on behalf of the joint family. Secondly, this plea cannot stand scrutiny in
E view of the admitted fact that the father of the defendants was alive at the
  time of tenancy and if at all the tenancy was to be in favour of the Joint
  Hindu Family, it was the father of the defendants who could have taken the
  premises on rent as manager/karta of the Joint Hindu Family. Thirdly, a
  reference to the lease deed shows that the name of the tenant is mentioned
   in his individual capacity and not as a member/karta of Joint Hindu Family.
F To test the veracity of such a plea it is also worth mentioning that in his reply
  to the notice of eviction served on him by the plaintiff, the defendant never
  made any such suggestion. Therefore, we find no merit in the plea that the
  tenancy was taken for purpose of Joint Hindu Family.

          Next we examine the question as to whether defendants 2 and 3 became
G   tenants by virtue of alleged assignment of tenancy rights by defendant No. I
    in their favour. There is nothing on record to support this contention. The
    release deed which is relied upon by the defendants for this purpose has no
    mention whatsoever about the tenancy rights released by defendant No. I in
    favour of defendants Nos. 2 and 3. The release deed only talks about business
H   of printing press. After the release deed, defendant No. I ceased to have any
           S.R. RADHAKRISHNAN v. NEELAMEGAM (ARUN KUMAR. J.)                 993
      interest in the business of the printing press. There is no proof of payment A
     of rent by defendants 2 and 3 with respect to the suit premises to the landlord.
     There is no rent receipt in their favour. The landlord is not a party to the ·
     release deed. He is not bound by any recitals contained in the release deed.
     Further it is settled law that one does not become tenant by mere payment
     of rent even if that be so. Simply because defendants 2 and 3 continued to
     be in possession of the suit premises, it does not follow that they were in B
     occupation thereof as tenants. They had no right whatsoever with respect to
     the suit premises.
,.         Alternatively defendants 2 and 3 claimed to be tenants by holding over.
     This argument is totally misconceived. We have found that defendants 2 and      C
     3 never became tenants in the suit premises. Question of their becoming
     tenants by holding over does not arise.

            The defendants filed an application under Section 9 of the Act for
     purchase of the suit property. The said application was dismissed by the trial
     Court. The lower appellate court however by a strange process.of reasoning D
     came to the conclusion that defendants 2 and 3 had become tenants in the suit
     premises and therefore, their right to purchase the property under Section 9
     of the Act was upheld. However, the High Court set aside that finding and
     rejected the application. The High Court came to a definite finding that
     defendants 2 and 3 were not tenants of the suit premises, and therefore, they
     could not maintain an application under Section 9. We have already quoted E
     the relevant portion of Section 9. As noticed earlier it is mandatory for an
     application under Section 9 that the applicant should be a tenant in possession
     of the suit premises. In view of our upholding the finding that defendants 2
     and 3 never became tenants in the suit premises, they could not maintain an
     application under Section 9 and such application on their behalf was therefore, F
     rightly rejected by the High Court. At this stage we may note it was pleaded
     by defendants I to 3 in their application under Section 9 that only defendants
     2 and 3 were in possession and enjoyment of suit property. It was also
     pleaded that defendants 2 and 3 were tenants and were paying rent. The
     application further states that defendant No. I was impleaded only to avoid
     technical objections. Thus relief was sought really by defendants 2 and 3. G
     Said defendants have been found by us to be not entitled to any relief.
     Section 9 is of no help to them.

          Whether defendant No. I could maintain such an application? Defendant
     No. I was admittedly not in possession of the suit premises and he had also H
    994                     SUPREME COURT REPORTS [2003) SUPP. I S.C.R.

A ceased to be a tenant of the premises. Therefore, he had no right to file an
    application under Section 9 of the Act.

           The learned counsel for the appellants finally argued that The Tamil
    Nadu City Tenants Protection Act, 1921 is a socially beneficial piece of
    legislation meant for protection of the interests of tenants and its provisions
B   should be liberally construed so as to advance the object of the Act. This
    argument in the context of facts on record is totally misconceived. Liberal
    interpretation does not mean that benefit can be given contrary to the basic
    provisions of the Act or in violation of the statutory provision. It has been
    pointed out above that the appellants did not satisfy the basic ingredients of
C   Section 9 and therefore, they are not entitled to invoke the said provision for
    their benefit.

          Learned counsel for the appellants contended that actual physical
    possession of the premises is not essential for exercising the privilege conferred
    on a tenant by Section 9 of the Act. In support of his contention he relied on
D   Gummalapura Taggina Matada Kotturuswami v. Setra Veeravva and Ors.,
    [1958] I SCR 968. This was a case under the Hindu Succession Act, 1956.
    Section 14 (I) of the Act provides "any property by a joint Hindu family,
    whether acquired before or after the commencement of this Act shall be held
    by her as full owner thereof and not as a limited owner." In the context of
    this provision it was held that the word "possession" occurring in Section 14
E   (I) is used with widest connotation and it may be either actual or constructive
    or in any form recognized by law. We are afraid that the wide meaning given
    to the word possession in Section 14 in the Act cannot have any relevance
    for purposes of provision of Section 9 of the Tamil Nadu Act under
    consideration. As already noted Section 9 read with Section 3 of the Act
F   makes it imperative that the tenants should be in possession of the premises
    with respect to which the right to purchase is sought to be exercised. If a
    tenant is not to hand over possession of the suit premises to the landlord at
    the time of ejectment, there is no question of payment of any compensation
    to him under Section 3 of the Act. Ifhe is not entitled to compensation under
    Section 3 of the Act he cannot invoke Section 9 of the Act. Actual physical
G   possession is essential in the context of relevant provisions of the Act. In fact
    in P. Ananthakrishnan Nair and Anr v. Dr. G. Ramakrishnan and Anr. [ 1987]
    2 sec 429 (though cited by the learned counsel for the appellants), it was
    held by this Court that the premises must be in personal occupation of the
    tenant before he could exercise the right under Section 9 of the Act. It was
H   also observed by this Court that "Section 9 confers an additional statutory
             S.R. RADHAKRISHNAN v. NEELAMEGAM [ARUN KUMAR. J.]                  995

     right on a tenant against whom suit for ejectment is filed to exercise an          A
     option to purchase the demised land through the medium of court on fulfillment
'    of conditions specified therein. It is not an absolute right, as the court has
    discretion to grant or refuse the relief for the purchase of the land. The tenant
    has no vested right in the property, instead it is a privilege granted to him by
    the statute which is equitable in nature. The policy underlying Section 9 is        B
    directed to safeguard the eviction of those tenants who may have constructed
    super structure on the demised land, so that they may continue to occupy the
    same for the purposes of their residence or business." From these observations
    it follows that actual physical possession of the demised premises of the
    tenant is sine qua non of an application under Section 9. In P.
    Ananlhakrishnan 's case (supra) as per concurrent findings of fact on record        C
    the tenant had discontinued its business in the suit premises and only a small
    portion thereof had been retained by them for keeping the accounts books
    etc. of the erstwhile business. Rest of the land and the superstructure standing
    thereon had been in occupation of sub-tenants since long. Thus the tenant
    was not in actual occupation of most part of the demised premises. Therefore,
    it was held that it would be unreasonable to direct the landlord to sell the land   D
    to the tenants. Our attention was invited to various decisions of the Madras
    High Court taking the same view i.e. actual physical possession of the demised
    premises is essential to maintain an application under Section 9 of the Act.
    As a matter of fact the learned counsel for the appellants cited the case in
    Estate of T.P. Ramaswami Pillai v. A. Mohd. Yousuf and Ors., Madras Law             E
    Journal 1983 (2) which takes the same view. We fail to understand how this
    authority helps the appellants. In our view it fully supports the case of the
    respondent.

         We find no merit in these appeals The same are dismissed with costs.
    Counsel's fee Rs. 10,000.                                                           F
    S.K.S.                                                      Appeals dismissed.