T.Chandran vs Valsa Jose
2021 Latest Caselaw 24461 Mad

                                                                   C.R.P.(NPD).No.3918 of 2015

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED: 13.12.2021

                                                      CORAM:

                                  THE HONOURABLE MS.JUSTICE V.M.VELUMANI

                                            C.R.P.(NPD)No.3918 of 2015
                                               and M.P.No.1 of 2015

                     T.Chandran                                             .. Petitioner

                                                          Vs.

                     Valsa Jose                                             .. Respondent



                     Prayer: Civil Revision Petition filed under Section 25 of the Tamil Nadu

                     Buildings Lease and Rent Control Act, against the judgment and decree

                     dated 03.07.2015 made in R.C.A.No.622 of 2011 on the file of the VIII

                     Court of Small Causes, Chennai, reversing the order and decree dated

                     20.09.2011 passed in R.C.O.P.No.432 of 2009 on the file of the XIV

                     Court of Small Causes, Chennai.

                                         For Petitioner    : Mr.V.Manohar

                                         For Respondent    : Mr.Lakshminarayanan
                                                             for M/s.L.Gavaskar


                     1/15

https://www.mhc.tn.gov.in/judis
                                                                           C.R.P.(NPD).No.3918 of 2015


                                                           ORDER

(The matter is heard through 'video conferencing/hybrid mode')

This Civil Revision Petition is filed against the judgment and decree

dated 03.07.2015 made in R.C.A.No.622 of 2011 on the file of the VIII

Court of Small Causes, Chennai, reversing the order and decree dated

20.09.2011 passed in R.C.O.P.No.432 of 2009 on the file of the XIV

Court of Small Causes, Chennai.

2.The petitioner is tenant and respondent is landlord. The

respondent filed R.C.O.P.No.432 of 2009 on the file of the XIV Court of

Small Causes, Chennai, for eviction of the petitioner on the ground of

wilful default. According to the respondent, the petition property belongs

to her father K.K.Dominic. After his death, his second wife Theyamma,

her sister Priya Kumari Ferrandi and the respondent became owners of

the petition premises. Theyamma was managing the property. She died on

19.10.2008. After her death, the respondent asked the petitioner to pay

the rent to her. The petitioner informed her that he paid rent to Theyamma

https://www.mhc.tn.gov.in/judis C.R.P.(NPD).No.3918 of 2015

up to November, 2008 and he has to pay only for December, 2008. The

respondent requested the petitioner to attorn tenancy with respect to

petition premises in her favour and called upon the petitioner to pay the

rent to her. The petitioner did not attorn tenancy and did not pay the

rents. The respondent issued notice on 06.11.2008, through her Advocate,

to the petitioner, calling upon the petitioner to attorn tenancy and also to

pay the rent from December, 2008. The petitioner did not attorn the

tenancy, not paid rent, has committed wilful default and hence, filed

petition for eviction of petitioner.

3.The petitioner filed counter statement, denying all the averments

in the petition. The petitioner submitted that K.K.Dominic is not the

owner of the petition premises. Only Theyamma was owner of the

property. She was controlling the property as owner. The petitioner

denied that Theyamma was only managing the property after death of

K.K.Dominic. Till her death, the petitioner paid rent to her. After her

death, he paid rent to one V.B.Chandran, Executor of the Will dated

31.07.2006. The said V.B.Chandran issued receipts for payment of rent

https://www.mhc.tn.gov.in/judis C.R.P.(NPD).No.3918 of 2015

by the petitioner. The respondent has no right over the property and no

right to collect rent from the petitioner. The petitioner has not recognized

the respondent as his landlord. The petitioner denied the existence of

landlord-tenant relationship between the respondent and petitioner and

prayed for dismissal of R.C.O.P.

4.Before the learned Rent Controller, one E.Feroze Khilji, Power

Agent of the respondent was examined as P.W.1 and one P.Baskaran was

examined as P.W.2 and 6 documents were marked as Exs.P1 to P6. The

petitioner examined himself as R.W.1 and marked 6 documents as

Exs.R1 to R6.

5.The learned Rent Controller, considering the pleadings, oral and

documentary evidence, dismissed the R.C.O.P., holding that:

(i) The Executor of Will is agent of landlord and

has right to collect the rent.

(ii) The respondent failed to prove the existence

of landlord-tenant relationship.

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(iii) Even though the respondent is co-owner and

is entitled to maintain the petition and collect rent, she

failed to prove the landlord-tenant relationship and

petitioner is paying rent to the Executor, under Ex.R5 –

Will dated 31.07.2006, including for alleged default

period and there is no wilful default.

Against the said order dated 20.09.2011 made in R.C.O.P.No.432 of

2009, the respondent filed R.C.A.No.622 of 2011.

6.The learned First Appellate Judge, considering the pleadings, oral

and documentary evidence and order of the learned Rent Controller,

allowed the R.C.A., by reversing the order of the learned Rent Controller

and ordered eviction, granting two months time to the petitioner to vacate

and hand over the petition premises to the respondent.

7.Against the said judgment dated 03.07.2015 made in

R.C.A.No.622 of 2011 in R.C.O.P.No.432 of 2009, the petitioner has

come out with the present Civil Revision Petition.

https://www.mhc.tn.gov.in/judis C.R.P.(NPD).No.3918 of 2015

8.The learned counsel appearing for the petitioner contended that

the learned Rent Controller has considered all the materials and dismissed

the R.C.O.P. The Appellate Authority, on surmises, allowed the appeal.

The learned Rent Controller has held that only when landlord-tenant

relationship is established by the respondent, the question of denial of

title will arise. The Appellate Authority erroneously gone into the issue of

title of petition premises. The respondent has not produced any

documents to show that she is the landlord of the petition premises and

she has also not appeared before the Court to give the evidence. The

respondent or her father were not owner of the petition premises. The

petitioner was paying rent only to Theyamma and after her death, to

V.B.Chandran, the Executor of the Will – Ex.R5. The Appellate Authority

erroneously held that the case of the petitioner is only an after thought, as

he failed to send any reply to the notice issued by the respondent. The

Executor of the Will is entitled to receive the rent, as per Section 2 (6) of

the Tamil Nadu Buildings (Lease & Rent Control) Act, 1960. The Rent

Controller has powers only to examine whether denial of title on the part

of the tenant is bonafide or not and only the Civil Court has got

https://www.mhc.tn.gov.in/judis C.R.P.(NPD).No.3918 of 2015

jurisdiction to decide the title of the property. In the present case, the

Appellate Authority has erroneously held that the respondent is landlord,

without any basis. The Appellate Authority did not consider the

documents filed by the petitioner to establish that the respondent has no

right over the property. The learned Appellate Authority failed to see that

O.P. filed by the Executor of the Will was pending at the time of filing the

Civil Revision Petition and now the probate was granted in favour of said

V.B.Chandran. The Executor appointed by the testator is to administer

the property and he is entitled to collect the rent and respondent cannot

have any objection to collect the rent by the Executor. The learned

counsel appearing for the petitioner further contended that Section 305 of

the Indian Succession Act, 1925, which mandates administrator to obtain

probate or letters of administration with Will annexed in the Indian

Succession Act was deleted and there is no necessity for the Executor to

obtain probate as per the provisions of the Indian Succession Act and Will

has to be accepted by all and can be acted upon without probate and

prayed for setting aside the judgment of the learned Appellate Authority.

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9.Per contra, Mr.Lakshminarayanan, learned counsel appearing for

the respondent reiterated the averments in the petition and submitted that

the respondent is daughter of K.K.Dominic, original owner of the petition

premises, Theyamma, is second wife of K.K.Dominic and Priya Kumari

Ferrandi is sister of the respondent. After death of K.K.Dominic,

Theyamma was managing the property and after her death, the

respondent, as co-owner, is entitled to collect the rent. The petitioner has

set up a case that Theyamma executed a Will, appointing one

V.B.Chandran as Executor of the Will and he is collecting the rent. No

document has been filed to show that V.B.Chandran, the alleged Executor

demanded rent from the petitioner and V.B.Chandran was not examined

by the petitioner before the Rent Controller. The Rent receipts marked by

the petitioner are cooked up document, in collusion with V.B.Chandran.

Even in the Will, the Executor is not authorized to collect the rent. The

Rent Controller, having held that the respondent is co-owner of petition

premises and entitled to collect the rent, erred in holding that the

respondent failed to prove the landlord-tenant relationship. Admittedly,

https://www.mhc.tn.gov.in/judis C.R.P.(NPD).No.3918 of 2015

the petitioner is tenant in the petition premises and after death of

Theyamma, the petitioner is liable to pay the rent to the respondent.

When there is rival contentions demanding payment of the rent, the

petitioner ought to have initiated proceedings as per Section 9 (3) of the

Rent Control Act for permission to deposit the rent into Court. The

Appellate Authority, properly appreciating the entire facts and erroneous

order of the learned Rent Controller, allowed the appeal, setting aside the

order of the learned Rent Controller and hence, prayed for dismissal of

the Civil Revision Petition.

10.Heard the learned counsel appearing for the petitioner as well as

the respondent and perused the materials available on record.

11.From the materials on record, it is seen, admittedly, the

petitioner is tenant in the first floor portion of the petition premises. It is

the case of the respondent that petition premises belong to her father

K.K.Dominic and one Theyamma was his second wife. The respondent

and her sister Priya Kumari Ferrandi are daughters of K.K.Dominic. After

https://www.mhc.tn.gov.in/judis C.R.P.(NPD).No.3918 of 2015

death of K.K.Dominic, Theyamma was managing the petition property.

After death of Theyamma, the respondent, as a daughter and legal heir of

K.K.Dominic, has become co-owner of the petition property and she is

entitled to collect the rents from the petitioner. The respondent, after

death of Theyamma, called upon the petitioner to attorn the tenancy to

her and pay the rent. The petitioner did not attorn the tenancy and did not

pay the rent. According to the respondent, she requested the petitioner

orally, but the petitioner informed her that he paid rent to Theyamma up

to November, 2008 and he has to pay the rent only from December, 2008,

but he did not attorn the tenancy and pay the rent thereafter. Hence, the

respondent issued notice dated 06.11.2008 - Ex.P1. The petitioner did not

send any reply and did not pay the rent and respondent filed R.C.O.P. for

eviction of the petitioner on the ground of wilful default.

12.According to the petitioner, only Theyamma, the second wife of

K.K.Dominic was owner of the petition property and petitioner was

paying rent to Theyamma till her death and after death of Theyamma, he

is paying rent to V.B.Chandran, the Executor of the Will, executed on

https://www.mhc.tn.gov.in/judis C.R.P.(NPD).No.3918 of 2015

31.07.2006 by Theyamma. The petitioner has come out with such a stand

for first time in the counter statement. If really he was paying the rent to

V.B.Chandran, the alleged Executor of the Will, he ought to have sent a

reply to the notice dated 06.11.2008 to the respondent, setting forth the

defence taken by him in the counter statement. From the evidence of

R.W.1, it is seen that he consulted the Advocate and as per his advice, he

is paying rent to V.B.Chandran. As rightly pointed out by the learned

counsel appearing for the respondent that when two persons are claiming

rent from the petitioner, he ought to have initiated proceedings for deposit

of rent into Court till the issue of landlord is decided between two rival

claimants. Further, the said V.B.Chandran was not examined before the

Rent Controller. The petitioner admitted that he is not aware of any

proceedings initiated by the said V.B.Chandran. The property is situated

at Alwarpet and the alleged Will was also executed in the city of Madras.

In such circumstances, unless the said Will is probated and the Executor

proves the genuineness of the Will by obtaining probate, the Will will not

come into effect. Without considering the above facts, the learned Rent

Controller, erroneously held that even before obtaining probate, the

https://www.mhc.tn.gov.in/judis C.R.P.(NPD).No.3918 of 2015

Executor becomes an agent of owner and he is entitled to collect the rent.

The said reasoning is erroneous.

13.The contention of the learned counsel appearing for the

petitioner that the Executor need not obtain probate, Will has to be

accepted by all concerned and Executor can act upon the Will, is not

acceptable. Even if the Executor or beneficiary did not obtain probate or

letters of administration with Will annexed, the Executor has to prove the

genuineness of the Will and that the Executor was in sound disposing

mind at the time of execution of Will. In the present case, the petitioner is

a tenant only and it is not the case of the petitioner that Executor, at the

time of pendency of R.C.O.P. itself obtained probate and based on

probate, called upon the petitioner to pay the rent to the Executor. The

petitioner has not produced any material to show that Executor called

upon him to pay the rent and alleged receipts issued by the Executor for

having received rent produced before the Rent Controller were not

accepted by the Rent Controller as well as by the appellate authority. The

petitioner has not raised this issue in the grounds of Revision and it is not

https://www.mhc.tn.gov.in/judis C.R.P.(NPD).No.3918 of 2015

open to the petitioner to raise the above issue in the Civil Revision

Petition at the time of arguments. For the above reason, the contention of

the learned counsel for the petitioner is not acceptable.

14.The learned Appellate Authority has properly appreciated the

provisions of the Indian Succession Act, 1925 and the Indian Evidence

Act, 1872 in respect of proving the Will and held that the payment of rent

to alleged Executor of the Will is not valid and contended that non-

payment of rent to the respondent is wilful default. Admittedly, the

petitioner is tenant of first floor in the petition premises. When the

respondent, as legal heir of K.K.Dominic, issued notice to the petitioner,

claiming the rent and to attorn the tenancy, he did not send any reply. For

the first time, he has taken a stand in the counter statement that he is

paying rent to V.B.Chandran, the Executor of the Will. The learned

Appellate Authority has rightly held that the said stand taken by the

petitioner in the counter statement is only an after thought. The learned

Appellate Authority has considered the entire materials and held that the

attornment of tenancy in favour of V.B.Chandran proved that the

https://www.mhc.tn.gov.in/judis C.R.P.(NPD).No.3918 of 2015

petitioner has set up a case, after filing of the R.C.O.P and non-payment

of rent amounts to wilful default, by giving cogent and valid reason.

There is no error in the judgment of the learned Appellate Authority

warranting interference by this Court.

For the above reason, the Civil Revision Petition is dismissed. No

costs. Consequently, connected Miscellaneous Petition is closed.

13.12.2021 Index :: Yes gsa

To

1.The VIII Judge, Court of Small Causes, Chennai.

2.The XIV Judge, Court of Small Causes, Chennai.

https://www.mhc.tn.gov.in/judis C.R.P.(NPD).No.3918 of 2015

V.M.VELUMANI, J.

gsa

C.R.P.(NPD)Nos.3918 of 2015

13.12.2021

https://www.mhc.tn.gov.in/judis