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Ehasan Bivi And Others. v. Nagalakshmi Ammal
Factual and Procedural Background
This litigation concerns an eviction petition filed by Nagalakshmi Ammal in respect of three shops situate at No. 45-B, Hanumarkoil Road, Kumbakonam (each shop having a daily rent of Rs. 4/-). The eviction was founded on three specific grounds pleaded by the landlord: (1) wilful default in payment of rent; (2) requirement of the buildings for demolition and reconstruction; and (3) damage caused to the buildings by putting them to a different use. The Rent Controller and the Appellate Authority both found that there was no default (and certainly no wilful default) by the tenants, but nevertheless ordered eviction on the grounds of demolition/reconstruction and damage to the buildings. The present civil revision was filed by the legal representatives of the tenant (the petitioners in the revision). Counsel for the petitioners challenged the maintainability of the eviction petition on the basis of S.10(8) of the Tamil Nadu Buildings (Lease and Rent Control) Act, because one co-sharer (Udayakumar) had not joined in the eviction petition filed by Nagalakshmi Ammal. The High Court inspected the record, reviewed competing authorities, and dismissed the civil revision with costs, while allowing the tenants time to vacate until 30th November, 1980.
Legal Issues Presented
- Whether S.10(8) of the Tamil Nadu Buildings (Lease and Rent Control) Act — which requires that a person who is receiving rent merely as an agent must obtain the previous written consent of the landlord before applying for eviction — applies to a co-owner of the property (i.e., whether a co-owner can be treated as an "agent" within the meaning of S.10(8)).
- Whether an eviction petition filed by one co-owner without the written consent (or joinder) of the other co-owner(s) is maintainable, particularly where the co-owner who filed the petition is the sole recipient of rent and there is no dispute about his/her management of the property.
Arguments of the Parties
Landlord's (Applicant in Eviction Petition) Position
- The eviction petition (filed by Nagalakshmi Ammal) sought eviction on three pleaded grounds: wilful default, demolition and reconstruction of the buildings, and that the tenants had damaged the buildings by using them for a different purpose than that for which they were rented.
- Both the Rent Controller and the Appellate Authority accepted the demolition/reconstruction and damage grounds and ordered eviction on those bases (while rejecting any finding of default).
Petitioners' (Tenants / Their Legal Representatives) Position
- Counsel for the petitioners (Mr. B. Rajagopalan) contended that the eviction petition was not maintainable because the property was co-owned by Nagalakshmi Ammal and her son Udayakumar, and the eviction petition was filed only by Nagalakshmi Ammal without the written consent of Udayakumar. It was argued that S.10(8) required that a person acting merely as an agent must obtain the previous written consent of the landlord before applying for eviction, and that a co-owner who did not join the petition rendered the petition defective or unmaintainable.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Abdul Rahman v. Ganga Chandrasekar, 1970 2 M.L.J. 134 = 91 L.W. 510 (per Chief Justice Ramaprasada Rao) | Expressed doubt whether S.10(8) applies to a co-owner; interpreted the word "previous" in sub-s. (8) and indicated that consent obtained in the course of proceedings and before an eviction order might satisfy the provision. | The Court observed that Abdul Rahman does not conclusively hold that a co-owner must obtain written consent prior to filing; it is not an absolute authority to require pre-filing written consent from a co-owner in all circumstances. |
| Alagiyanatha v. Swaminatha Pillai Natarajan (Judge Natarajan) | Where there is more than one landlord for a building, an action for eviction must be instituted by all the landlords or at least by one or more of them on behalf of and for the benefit of all. | The Court distinguished this authority on its facts: in Alagiyanatha the co-owners were each separately collecting rent under a mutual arrangement; in the present case, the Court found only one effective landlord (Nagalakshmi) collecting rent and no comparable arrangement requiring joinder. |
| Vasudeva v. Ramachandra, 1980 1 M.L.J. 534 = 93 L.W. (per Balasubrahmanyan, J.) | Holds that every co-owner is in a real sense the absolute owner of the entirety of the interest in joint property and is not an agent of the other co-owners; therefore S.10(8) has no application to a petition filed by a co-owner. | The Court relied on this principle to support the conclusion that a co-owner is not an "agent" for the purposes of S.10(8), and thus S.10(8) would not bar a co-owner from filing an eviction petition without written consent of other co-owners. |
| Sri Ram Pasricha v. Jagonnath, 1976 4 S.C.C. 184 | Affirms that a co-owner is as much an owner of the entire property as a sole owner; a co-owner owns every part of the composite property along with others and is not merely a fractional owner. | The Court cited this Supreme Court decision to reinforce the legal position that a co-owner should not be equated with an agent for management of the property, undermining the petitioners' reliance on S.10(8). |
| Bichava v. Venkatesa (Bench decision of the High Court) | Holds that the class of persons contemplated by S.10(8) is very limited; a co-owner does not fall within that class of agents required to obtain previous written consent under S.10(8). | The Court relied on this Bench decision to reject the contention that Nagalakshmi, as co-owner, was required to obtain her co-owner's written consent under S.10(8) before filing the eviction petition. |
Court's Reasoning and Analysis
The Court proceeded by first recording the factual findings of the lower authorities: the Rent Controller and the Appellate Authority found no default by the tenants, but ordered eviction on the landlord's bona fide requirement for demolition/reconstruction and on the ground that the tenants had damaged the buildings. The High Court observed that counsel for the petitioners failed to dislodge the concurrent findings of the two authorities below on those merits and therefore did not elaborate further on those factual determinations.
The principal legal question the Court addressed was whether S.10(8) of the Tamil Nadu Buildings (Lease and Rent Control) Act applied so as to render the eviction petition filed by one co-owner (Nagalakshmi Ammal) without the written consent of the other co-owner (her son Udayakumar) unmaintainable. The Court examined the statutory language of S.10(8) (which restricts persons receiving rent merely as agents from applying for eviction except with previous written consent of the landlord) and the factual matrix of the case: the other co-owner was the son, living with the petitioner, there was no evidence that he disputed Nagalakshmi's right to manage the property or collect rent, and the tenants paid rent solely to Nagalakshmi throughout.
The Court then surveyed authority. It noted Abdul Rahman, in which the Chief Justice had expressed doubt about the application of S.10(8) to co-owners and had interpreted the term "previous" liberally (permitting consent obtained during proceedings and before the eviction order to suffice). The Court concluded that Abdul Rahman did not compel a rule that a co-owner must obtain written consent before filing in all circumstances. It distinguished Alagiyanatha (where co-owners independently collected rents by arrangement) on the basis that that case involved multiple landlords collecting rent under a different factual arrangement; by contrast, in the present case only Nagalakshmi effectively functioned as the landlord in practice.
The Court gave weight to Vasudeva v. Ramachandra and the Supreme Court authority in Sri Ram Pasricha v. Jagonnath for the proposition that a co-owner is an absolute owner of the entire property interest and is not, in law, an "agent" of other co-owners. The High Court also relied on the Bench decision in Bichava v. Venkatesa, which held that the class of persons contemplated by S.10(8) is limited and does not include co-owners. Synthesizing these authorities with the undisputed factual matrix (co-owner son living with the mother, no dispute over management or rent collection, rents taken only by Nagalakshmi), the Court concluded that Nagalakshmi fell squarely within the definition of "landlord" rather than "agent" for purposes of S.10(8).
Consequently, the Court found the petitioners' contention — that the eviction petition was not maintainable because the co-owner had not joined or given written consent prior to filing — to be without merit. The Court therefore affirmed the maintainability of the eviction petition filed by Nagalakshmi and declined to interfere with the concurrent findings of the lower authorities ordering eviction on the demolition/reconstruction and damage grounds.
Holding and Implications
Holding: The High Court held that S.10(8) of the Tamil Nadu Buildings (Lease and Rent Control) Act does not, on the facts of this case and as a general rule applicable here, render an eviction petition by a co-owner unenforceable for want of written consent from the other co-owner(s). In other words, a co-owner who is effectively functioning as the landlord (collecting rent and managing the premises) is not to be treated as an agent within the meaning of S.10(8), and may maintain an eviction petition without the prior written consent of the other co-owner(s). The civil revision petition was dismissed with costs.
Implications:
- Direct effect on the parties: The judgment affirms the eviction order(s) based on the grounds upheld by the authorities below (demolition/reconstruction and damage) and dismisses the tenants' civil revision. The tenants were given time to vacate the premises until 30th November, 1980.
- Scope of precedent: The Court relied on existing authorities (including Vasudeva, Sri Ram Pasricha and the Bench decision in Bichava) to conclude that co-owners are not to be treated as agents under S.10(8). The opinion does not frame a novel or separate broad principle beyond applying and aligning existing authorities to the facts; the decision resolves the maintainability question in the present factual context rather than announcing a new expansive precedent beyond the authorities cited.
1. The legal representatives of the tenant are the petitioners herein. The eviction was sought for in respect of three shops which are situate at No. 45-B, Hanumarkoil Road, Kumbakonam. The daily rent for each shop is Rs. 4/-. The eviction petition was filed by one Nagalakshmi Ammal. The eviction was sought on three grounds namely: (1) wilful default; (ii) demolition of the buildings and for reconstructing the same; and (iii) the tenants caused damages to the buildings by putting them to a different use from the one for which they were rented out. Both the Rent Controller and the Appellate Authority found that there was no default, much less wilful default on the part of the tenants. They ordered eviction on the ground that the landlord requires the buildings for demolition and reconstruction and also on the ground that the tenants have damaged the buildings. I do not think it is necessary for me to go into the merits of the case elaborately since Mr. B. Rajagopalan, learned counsel for the petitioners, is not able to make any headway to dislodge the concurrent findings given by the two authorities below on merits. I am satisfied from the evidence on record and also after going through the judgments of the two authorities below that the reasons given by the authorities below for ordering the eviction on the abovesaid two grounds are correct.
2. Mr. B. Rajagopalan, learned counsel, submits that the buildings in question originally belonged to one, Dr. Murtby and after his demise, his wife Nagalakshmi, the petitioner herein, and her son Udayakumar acquired this property. The petition for eviction was filed only by the wife of Dr.; Murthy, viz., Nagalakshmi Ammal. Mr. B. Rajagopalan, learned counsel for the petitioners, submits that tne eviction petition is liable to be dismissed as per S. 10 (8) of the Tamil Nadu Buildings (Lease and Rent Control) Act. According to the learned counsel, in as much as Udayakumar, the son of Dr. Murthy who is also a co-sharer in the property has not joined as a petitioner in the eviction petition, the present petitioner in the eviction petition has no locus standi to file the eviction petition without getting the written consent from the other sharer, namely, Udayakumar. In short, the learned counsel submits that Nagalakshmi Ammal being a co-owner, she Is an agent for the other co-sharer in relation to the collection of rents from the tenants. As such Mr. Rajagopalan states that Nagalakshmi Ammal ought to have obtained the written consent of Udayakumar as per S. 10(8) of the Act before she came forward with the eviction petition. S. 10(8) of the Act reads as follows—
“Notwithstanding anything contained in this section; no person who is receiving or is entitled to receive the rent of a building, merely, as an agent of the landlord shall, except with the previous written consent of the landlord, be entitled to apply for the eviction of the tenant”.
Before dealing with the legal contentions taken by the learned counsel appearing for the petitioners herein, it is necessary to note that the other co-sharer is no other than the son of Nagalakshmi Ammal and that they are living together. It is also not disputed that the tenants are paying the rents only to Nagalakshmi Ammal and at no point of time there seems to be any dispute in collecting the rents by Nagalakshmi Ammal. It is also not the evidence of any of the parties to these proceedings that Udayakumar, son of Naga-lakshmi Ammal, disputed the right of Nagalakshmi Ammal to manage the property and collect the rents from the tenants. In Abdul Rahman v. Ganga Chandrasekar . 1970 2 M.L.J 134=91 L.W 510., the Honourable the Chief Justice Ramaprasada Rao has observed:—
“Whether this provision (S 10 (8) of the above Act) would apply to a co-owner is doubtful. I am not, however, inclined to express an opinion on it”.
After observing so categorically the learned Judge assumed a position that even if a co-owner on given facts and circumstances of a case is considered to be an agent, is it necessary for him to get a written consent prior to the filing of the eviction petition? The learned Chief Justice interpreted the word ‘previous’ occurring in sub.S (8). Finally, the learned Chief Justice decided as follows—
“The intention appears to be that a co-owner shall not without the consent of others, file an application for eviction; and if a question arises as to whether he had obtained any such consent, which could be established in the alternative even in the course of the proceedings and before eviction it would be ingeneous to extend the intendmant of the prescription as meaning that the previous written consent should be given even before filing a petition to obtain an order for eviction. The entitlement of the owner for eviction of a tenant, referred to in sub-S (8) should be construed not literally but liberally. If therefore the written consent of the co-owners is obtained in the course of trial and before an order for eviction is obtained and if that written consent of the other co-owners sufficiently reflects the position that they gave the consent even at or about the time when the petition was filed, then come the court which appreciates such evidence could to the conclusion that there has been such a previous consent as required under sub-S.(8)”.
3. I do not think that from the above said decision it can be conclusively held that the co-owner on the facts and circumstances of the case has to get the written consent of the other co-owner as provided under S. 10 (8) of the Act,
4. In Alagiyanatha v. Swaminatha Pillai Natarajan, J. dealt with a case in which two brothers owned a building. In that case by arrangement the petitioner in the eviction petition and his brother were collecting the rent in equal shares from the tenant of the building in question. In that situation one of the brothers filed a petition for eviction before the Rent Controller praying for the eviction of the petitioner on the ground of wilful default in paying the rent and also on the ground of bona fide requirement for his son's occupation. The other brother was not impleaded in the eviction petition as a party. There was also no contention in the petition that the petittion was filed on behalf of the other brother also who is a co-owner of the property. In that case, the tenant raised an objection to the maintainability of the petition, without the other co-owner being a party to the proceedings. On those facts, the learned Judge held—
“Where there is a more than one landlord for a building it must necessarily be held that any action taken against the tenant of the building seeking his eviction must be instituted by all the landlords or at least by one or more of them on behalf of and for the benefit of all of them”.
The case on hand can be easily distinguished from the case decided by Natarajan, J. In the case decided by Natarajan, J, there were admittedly two landlords for a single tenant. They were independently collecting the rent by mutual arrangememnt. In such circumstances, the learned Judge held that it is necessary to get the consent of the other landlord who is in the nature of a co-owner before any eviction petition is launched against the landlord. In this case, there is only one landlord, i.e, Nagalakshmi Ammal.
5. In Vasudeva v. Ramachandra . 1980 1 M.L.J 534=93 L.W Ibid. Balasubrahmanyan, J. dealing with S. 10 (8) of the Rent Control Act held—
“Every co-owner is in a real sense, the absolute owner of the entirety of the interest in the joint property. In this sense, a co-owner is by no means the agent of the other co-owners in respect of any interest in the property. On the incontrovertible position in law of co-owners who must be distinguished from agents, properly so called, S. 10 (8) has absolutely no application to the petition filed in the present case for eviction of the tenant.”
Admittedly, in that ease, the eviction petition was filed by one of the co-owners. In this connection, it is interesting to note the decision reported in Sri Ram Pasricha v. Jagonnath . 1976 4 S.CC 184. wherein it has been held that a co-owner is as much an owner of the entire property as any sole owner of a property is it has been furher held that the co-owner owns every part of the composite property along with others and it cannot be said that he is only a part owner or a fractional owner of the property.
6. Even apart from the above said decisions we have the Bench decision of our High Court reported in Bichava v. Venkatesa wherein the scope of S. 10(8) of the Tamil Nadu Buildings (Lease and Rent Control) Act came to be discussed. The Bench after referring to various other decisions on this aspect of the case has categorically laid down that the class of persons contemplated by S. 10 (8) of the Act is a very limited class and only with reference to that class the requirement of obtaining the previous written consent of the landlord for filing a petition for eviction will apply. A reading of this decision will clearly eschew a co-owner coming under the definition of an agent contemplated under S. 10 (8) of the Tamii Nadu Buildings (Lease and Rent Control) Act.
2. Further on a reading of S. 10 (8) it will be clear that only an agent of the landlord is liable to get the previous written consent of the landlord. Considering the reasons given in the Supreme Court decision reported in Sri Ram Pasrchab v. Jagannatha it is very difficult to construe that a co. owner will take the position cf an agent in respect of the managment of a property, since it has been definitely held by the Supreme Court that a co-owner owns every part of the composite property along with others and it cannot be said that he is only a part owner or a fractional owner of the property. I have already stated that the other co-owner in this case is no other than the son of Nagalakshmi Ammal, the petitioner in the eviction petition and that he is living with Nagalakshmi Ammal It is only Nagalakshmi Ammal who is collecting the rents from the petitioners herein and she will squarely come under the definition of landlord. In as much as I have held that she will not come under the definition of an agent contemplated in S. 10 (8) of the Act, argument advanced as if the eviction petition is not maintainable without the written consent of the co-owner cannot be sustained. Thus relying on the observations and reasonings given in the Bench decision of our High Court reported In Bichava v. Venkatesa I do not find there is any merit in the contentions raised by the learned counsel appearing for the petitioners herein. Accordingly, the civil revision petition is dismissed with costs. Considering the business that is being carried on in tho shops, the petitioners will have time to vacate till 30th November, 1980.
VCS.
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