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L.K.K Gafoor v. M.T Lakshmana Mudaliar (Died) & Another
Structured Summary of the Opinion
Factual and Procedural Background
The petitioner (respondent before the lower court) was a tenant of a portion of a non-residential building at No. 179-A, Ramakrishna Mutt Road, Mylapore, Madras, paying a monthly rent of Rs. 100. The first respondent (landlord) filed an application seeking eviction on the ground that the portion occupied by the petitioner was required by the landlord for running a tea stall.
The trial court dismissed the eviction petition, holding that the landlord had not taken steps to secure the necessary licences for running the tea stall and that the requirement was not bona fide. On appeal, the appellate court disagreed with the trial court, holding that absence of licence at that stage was not fatal because licences could be obtained after eviction, and concluded that the landlord's requirement was bona fide; the appellate court therefore ordered eviction. Aggrieved, the petitioner filed a revision petition in this court.
During the pendency of the revision petition the first respondent died and his wife was impleaded as the second respondent.
Legal Issues Presented
- Whether an order for eviction passed under S. 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 — which permits eviction where the landlord requires a non-residential building for carrying on business by himself or members of his family — is a personal right that lapses on the death of the landlord, or whether it survives and enures to the benefit of the landlord's legal heirs.
- Whether the absence in the eviction petition of an explicit averment that the property was required for members of the landlord's family (as opposed to only the landlord) prevents the right from passing to heirs after the landlord's death.
Arguments of the Parties
Petitioner's Arguments
- The eviction order obtained under S. 10(3)(a)(iii) is personal to the first respondent (the landlord) and, according to the doctrine actio personalis moritur cum persona, such a personal right dies with the person; therefore the right cannot enure to the benefit of the landlord's legal heirs after his death.
- In support of this position the petitioner relied upon the decision in Md. Abrahim v. Rahiman Khan (1947 M.W.N 655 = 60 L.W. 713).
Second Respondent's (Landlord's Heirs') Arguments
- The statutory scheme under S. 10(3)(a)(iii) creates a right that is not merely personal to the landlord but vests as an incorporeal right annexed to the estate; accordingly the eviction order survives the landlord's death and enures to the benefit of his legal heirs.
- The eviction order becomes part and parcel of the property owned by the landlord and cannot be divested by his death.
- Authority relied upon in support of this position included the Supreme Court decision in Shantilal Thakordas v. Chimanlal Maganlal Telwala and the Madras High Court decision in Vijayaraghavan v. Md. Yakub Rowther.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Md. Abrahim v. Rahiman Khan, 1947 M.W.N 655 = 60 L.W. 713 | Supports the proposition that certain rights are personal and may die with the person (invoking actio personalis moritur cum persona). | The petitioner relied on this decision to argue that the eviction order was personal to the landlord and lapsed on his death. The court considered this authority but concluded that the statutory provision in S. 10(3)(a)(iii) creates an exception such that the right does not lapse on death. |
| Shantilal Thakordas v. Chimanlal Maganlal Telwala (Supreme Court) | Illustrates that where the statutory ground for possession includes occupation by members of the family, the right to seek eviction survives to family members after the original landlord's death. | The court cited this Supreme Court decision for the principle that a requirement that includes occupation by family members does not cease on the landlord's death and may be pursued by the family/representatives. |
| Vijayaraghavan v. Md. Yakub Rowther, 1976 1 M.L.J. 128 = 89 L.W. 81 | Holds that an order of eviction under the Tamil Nadu Buildings (Lease and Rent Control) Act is an incorporeal right vested in the landlord that is not divested by death and can pass to heirs. | The court relied on this Madras High Court decision as supporting the view that eviction orders under the Act are annexed to the property and therefore survive the landlord's death, passing to heirs and legal representatives. |
Court's Reasoning and Analysis
The court began by noting the general principle actio personalis moritur cum persona (a personal action dies with the person) but observed that there are recognised exceptions. The crucial question was whether an eviction order obtained under S. 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, falls within such an exception.
The court analyzed the text of S. 10(3)(a)(iii), which permits a landlord to seek eviction where he requires a non-residential building "for carrying on business by himself or members of his family" (language as quoted in the opinion). The inclusion in the statute of both the landlord and members of his family was treated by the court as a clear statutory indication that the remedy is not strictly a personal right that terminates with the landlord's death.
On that basis the court concluded that an order of eviction under S. 10(3)(a)(iii) is an incorporeal right annexed to the estate: it is not a merely personal right which ends with the death of the landlord. Such a right becomes part of the property and can be availed of by the legal representatives or heirs of the deceased landlord.
The court also addressed the petitioner's contention that because the eviction petition specifically averred the requirement was for carrying on business "by him" (the landlord) and did not expressly plead that members of the family would carry on the business, the right was personal and should die with the landlord. The court rejected this argument, holding that the absence of an averment regarding family members in the pleadings does not negate the statutory exception. In short, pleadings cannot override the substantive statutory provision that creates a right capable of passing to heirs.
The decision in Shantilal Thakordas and the earlier Madras High Court decision in Vijayaraghavan were treated as supportive authorities: Shantilal Thakordas was cited for the proposition that family members may continue proceedings for occupation when the statutory language contemplates occupation by family members; Vijayaraghavan was cited for the proposition that an eviction right under the Act is an incorporeal right annexed to the property and not divested by the landlord's death.
Holding and Implications
Core Ruling: The court confirmed the appellate court's order of eviction and held that the eviction order obtained under S. 10(3)(a)(iii) does not lapse on the death of the landlord but enures to the benefit of his legal heirs. The revision petition was dismissed with costs.
Direct Consequences for the Parties: The eviction order stands confirmed against the petitioner; four months' time was granted to vacate the building. The order is held to be an incorporeal right annexed to the property and therefore available to the landlord's legal heirs (the second respondent in this matter).
Broader Implications: The court treated S. 10(3)(a)(iii) as creating a statutory exception to the doctrine actio personalis moritur cum persona in the context of eviction on grounds of personal requirement for carrying on business by the landlord or members of his family. The decision applies existing principles and authorities (as cited) to the facts; the opinion does not purport to lay down a novel or separate rule beyond confirming that eviction rights under this statutory provision pass to heirs and are annexed to the property.
Order: Revision petition dismissed with costs; four months' time granted to vacate the premises.
1. The petitioner, respondent before the lower court, was a tenant under the first respondent in respect of one portion of a nonresidental building comprised in No. 179-A. Ramakrishna Mutt Road, Mylapore, Madras, on a monthly rent of Rs. 100. The landlord, the first respondent herein, filed an application for eviction of the petitioner on the ground that the portion occupied by the petitioner is required by the first respondent for running a tea stall and the first respondent was not in occupation of any non-residential building in the city of Madras, The trial court dismissed the petition holding that the first respondent has not taken steps for securing licence for running, the tea stall and the requirement of the building by the first respondent was not a bona fide one. On appeal, it was held that the mere fact that the first respondent had not obtained licence from the Police and Corporation for running a tea stall in the premises cannot be considered as a factor against him, and the Corporation licence and police licence can always be secured by the first respondent after getting the order of eviction. The appellate court came to the conclusion that the requirement of the building by the first respondent is a bona fids one, and disagreeing with the findings of the trial court, passed an order of eviction against the petitioner. Aggrieved against the order of the appellate court, the petitioner has come up before this court by way of revision.
2. During the pendency of the revision petition, the first respondent died and his wife has been impleaded as the second respondent.
3. The main contention of the petitioner is that the order for eviction passed under S. 10 (3) (a)(iii) of the Tamil Nadu Buildings Lease and Rent Control) Act, 1960, on the ground of personal requirement of the first respondent for earrying on business in the building is personal to the first respondent, and after his death, it lapses and cannot enure to the benefit of his legal heirs. In support of this contention, the decision in Md. Abrahim v. Rahiman Khan . 1947 M.W.N 655=60 L.W 713., is relied on. The learned counsel for the second respondent contended that the doctrine that a personal right dies with the person, cannot be invoked having regard to the statutory provisions contained in under S. 10 (3) (a) (iii) of the Act and the eviction order passed gives a vested right which runs with the estate and cannot be divested by the death of the first respondent, and the eviction order passed enures to the benefit of the legal heirs of the deceased first respondent as it has become annexed to the property. In support of this contention, the learned counsel for the second respondent relies on a decision of the Supreme Court in Shantilal Thakordas v. Chimanlal Maganlal Telwala, and the decision of the Madras High Court in Vijayaraghavan v. Aid. Yakub Rowther . ??? 92 L.W ??? 61.
4, In the case of Shantilal Thakordas, a partnership styled as Jai Hind Silk Weaving Works, had three partners. One of the partners, Thakordas Bhagwandas, filed a suit for eviction of the tenant from the premises on the ground that the building was required for the use of the partnership firm. The trial court ordered eviction. During the pendency of the proceedings before the High Court Thakordas Bhagwandas died and his legal heirs were impleaded. The High Court held that the right to sue did not survive to the heirs of Thakordas Bhagwandas and on that short ground set aside the order of eviction. On a further appeal, the Supreme Court held—
“If the law permitted the eviction of the tenant for the requirement of the landlord “for occupation as a residence for himself and members of his family’, then the requirement was both of the landlord and the members of his family. On his death the right to sue did survive to the members of the family of the deceased landlord. We are unable to take the view that the requirement of the occupation of the members of the family of the original landlord was his requirement and ceased to be the requirement of the members of his family on his death. After the death of the original landlord the senior member of his family takes his place and is well competent to continue the suit for eviction for his occupation and the occupation of the other members of the family”.
5. In Vijayaraghavan v. Md. Yakub Rowther . 1976 1 M.L.J 128=89 L.W 81., the landlady filed an application under the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 on the ground that she wanted the leased premises for her husband's business. Eviction was ordered. During the pendency of the appeal, the landlady died and her husband, her son and daughters were brought on record and the appeal was further prosecuted. The order of eviction was confirmed against which the tenant came up on revision before this court. During the pendency of the revision petition, the husband of the landlady also died. The question arose whether the son and daughter were entitled to the benefit of the order of eviction. It was held that the exception to the doctrine actio personalis moritur cum persona that a personal right dies with the person can be certainly invoked having regard to the peculiar nature of the right obtained by the landlord under the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960 and the order of eviction secured is not a personal right, but an incorporeal right vested in a landlord and cannot be divested by his death, and it could pass on to the heirs as it becomes part and parcel of the property owned by the landlord
6. The general principle actio personal moritur cum persona has some well recognised exceptions. The short question for consideration is whether the order of eviction passed in the present case falls within that exception. S. 10 (3) (a) (iii) of the Tamil Nadu Buildings (Lease and Kent Control) Act provides that if the landlord requires a non-residential building for carrying on business by himself or members of his family, he can file a petition for eviction of the tenant, provided he or the members of his family are not in occupation of any non-residential building in that locality. The very fact that S. 10 (3) (a) (iii) provides that the landlord can require the building occupied by the tenant for carrying on business by him or the members of his family is a clear indication to show that the section itself provides a statutory exception to the doctrine actio personalis moritur cum persona. When the landlord obtains an order of eviction under S. 10 (3) (a) (iii), such a right cannot be characterised as a personal right which comes to an end with, the death of the landlord. It is an incorporeal night annexed to the estate of the deceased and it can be taken advantage of by the legal representative of the deceased. The order of eviction secured by the landlord in the present case is a right which is annexed to the property and it cannot be divested b) his death and would therefore, pass on to his heirs as being part and parcel of the property owned by the landlord, it is contended for the petitioner that the landlord filed the application for eviction on the ground that he required it for the purpose of carrying on business by him and not by the members of his family, and in the face of such averments in the petition for eviction the order of eviction passed is personal to the landlord and comes to an end with his death. The absence of an averment in the petition that the building was required for carrying on business by the landlord or the members of his family will not by itself convert a non-personal action into one of personal action. The statutory exception provided under S. 10 (3) (a) (iii) of the Act to the doctrine actio personalis moritur cum persona cannot be governed or controlled by the pleadings of parties and hence will not come to an end on the death of the first respondent. It will certainly enure to the benefit of his legal heirs, the second respondent herein. In this view, the order of eviction passed is confirmed and the revision petition will stand dismissed with costs. Four months time granted for vacating the building.
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