A family arrangement, on the contrary, is a
transaction between members of the same family for the benefit
of the family so as to preserve the family property, the peace
and security of the family, avoidance of family dispute and
litigation and also for saving the honour of the family. Such an
arrangement is based on the assumption that there was an
antecedent title in the parties and the agreement acknowledges
and defines what that title is. It is for this reason that a family
arrangement by which each party takes a share in the property
has been held as not amounting to a "conveyance of property"
from a person who has title to it to a person who has no title. ”
Thus, the Apex Court has held that the family
arrangement, by which party takes share in the property, will
not amount to a conveyance of the property.
There is no dispute that the suit house was allotted to the
share of present petitioner and his name is mutated in relevant
revenue record on 24.7.1986. Thus, n view of the dictum in the case
of Sk.Sattar Sk.Mohd. Choudhari by the Apex Court, the lower
appellate court ought to have seen that the facts in the case of
N.N.Engineer are clearly distinguishable and the ratio laid down by
the Apex Court in said case is not applicable to the case I hand.
Since the landlord has successfully pointed out that the
tenant was in arrears of rent for more than six months, he was not
entitled for the protection, and therefore, the lower appellate court, in
my view, has committed a mistake in upsetting the well reasoned
judgment and decree passed by the learned trial court.{21,22}
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AURANGABAD
WRIT PETITION NO. 1597 OF 2001
Subhash Narsopant Saundankar,
VERSUS
Chandrakant Babanrao Salunke,
CORAM : V.M.DESHPANDE, J.
DATED : 8 January, 2015
Citation;AIR 2015(NOC)765 BOM
Unsuccessful landlord before the appellate court, who
reversed the decree in favour of the landlord for possession is
before this court.
2]
A suit was filed in the court of 5 th Joint Civil Judge,
Junior Division, Dhule. The said suit was registered as Regular
Civil Suit No. 458 of 1985. The said suit was contested by the
present respondent no.1 and the predecessorintitle of
respondent nos. 2 to 5. The said suit was decreed by the
learned trial court and the defendants in the suit were directed
to hand over vacant possession of the suit premises and they
were also directed to pay Rs.152.50 Ps. as arrears of rent,
Rs.35/ towards damages and Rs.65/ by way of notice charges
by judgment and decree dated 16.11.1991.
3]
Appeal was carried. The said appeal was registered
as Regular Civil Appeal No.2 of 1992 and was on the file of
Extra Joint District Judge, Dhule. The learned lower appellate
court vide judgment, dated 2.2.2000 allowed the appeal and
thereby reversed the judgment and decree of the trial court
granting possession. It is against this reversal of judgment, the
present Writ Petition is filed by the landlord.
4]
Facts giving rise to the present Writ Petition are
stated hereunder.
On 16.7.1985 Shantabai w/o Narsopant Saundankar,
the mother of the present petitioner filed a suit against the
defendants (1) Chandrakant Babanrao Salunke and (2)
Babanrao Khemaji Salunke.
The said suit was filed for recovery of vacant
possession of the suit property admeasuring 30 x 8 ft.
consisting of two rooms standing on sheet No. 2209/2 at Lane
No.7 within the limits of municipal council, Dhule.
It was stated in the plaint that Chandrakant Salunke
defendant no.1 was tenant and his tenancy was a monthly
tenancy commencing on each 10 th day of calendar month,
which expires on 9th day of next calendar moth. It was further
stated that the agreed rent was Rs.15.25 Ps. Plaint discloses
that the house in question was taken by the defendant no.1 for
his own residence.
It was stated that defendant no.1 is a habitual
defaulter in making the payment of agreed rent. He was in
arrears of rent from the month of 10 th July, 1984. Plaintiff was
required to issue a registered notice on 15.4.1985 by which
arrears of rent were demanded and also possession was
claimed. The said notice was served on the defendant on
16.4.1985. Instead of complying with the said notice, the
defendant only sent Rs.43.20 Ps. by money order towards
educational cess.
The said money order was claimed under
protest. It was further stated in the plaint that since the tenant
was in arrears of rent from 10.7.1984, till filing of the plaint he
was not entitled to claim any protection under the Bombay Rent
Act. The plaint further discloses that the tenant has damaged
the tenanted premises.
Further it was stated in the plaint that defendant no.1
has constructed a house about 11⁄2 years back on Plot No.30
and is residing there. Further, he has also constructed another
house at Navjeevan locality at Dhule. The said house is also in
possession of the defendant. Therefore, it was pointed out that
since last 11⁄2 years the tenants are not using the tenanted
premises for their residence.
It was further alleged that the defendant no.1 after
shifting his residence to his own house without the consent of
the landlord illegally sublet it to the defendant no.2 Babanrao
Salunke and he is using the same as godown.
With these allegations and statements of fact, the
plaintiff claimed vacant possession of the tenanted premises.
5]
On being summoned, both the defendants filed their
joint written statement. Same is on record at Exh.11 of the
court below. Sum and substance of the written statement
shows that the rent is being paid up to 9.8.1984 and receipts
are given by the landlord. It was further stated in the written
statement that amount of Rs.110/ was given to Narsopant
Saundankar in the month of July 1985. Considering the said
amount of Rs.110/, at the most there are arrears of rent from
10.3.1985 and the said amount is deposited by the tenant in the
court.
6]
During the pendency of the suit, an application
(Exh.15) was filed by the plaintiff Shantabai Saundankar on
13.1.1988. By the said application Shantabai submitted that in
view of the family partition and since the suit property was
allotted to the share of her son Subhash Saundankar in the said
family partition, her name may be deleted and name of
Subhash Narsopant Saundankar may be substituted as the
plaintiff.
Subhash Saundankar also submitted an application
on the said date, which is at Exh.16 and prayed before the
court that his name be substituted in view of the fact that now
he is owner. The said application was contested by the
defendants. However, on 2.9.1988 the learned trial court
allowed both these applications and name of original plaintiff
Shantabai Narsopant Saundankar was substituted by
incorporating the name of Subhash Narsopant Saundankar as
the plaintiff. The said order was not challenged by the
defendants. Subsequent to his substitution, the suit was further
contested by Subhash Saundankar.
7]
As observed, the decree was reversed by the
appellate court. The learned lower appellate court reversed the
decree on the ground that, in view of the provisions of Section
109 of the Transfer of Property Act for arrears of rent Subhash
will not be entitled to obtain decree on that count because the
said claim will be an actionable claim. Further, the appellate
court was of the view that it cannot be held that Rs.15.25 ps.
was not a standard rent with permitted increases.
It is pertinent to note that in appeal the tenant raised
8]
a plea that the substitution of Subhash in place of original
plaintiff was not legal. The learned lower appellate court has
framed a point that :
“ Whether substitution of original plaintiff Shantabai
by the present plaintiff Subhash can be challenged in
the present appeal ?”
However, the learned lower appellate court correctly
reached to the conclusion that it was not open for the tenant to
challenge the substitution in the appeal, and accordingly, the
appellate court found that the substitution of Subhash
Saundankar was proper.
The said issue of substitution is not challenged by the
original defendants in the present Writ Petition and thus the
said point has attained finality.
9]
The learned counsel for the petitioner Shri S.P.Shah
submitted that though in the plaint on various grounds the
decree is claimed, the landlord is pressing for revival of the
decree of the trial court only on the ground of arrears of rent.
He submitted that even from the pleadings of the tenant in the
written statement, it is clear that the tenant was in arrears of
rent and was not entitled for protection.
He further submitted that at no point of time any
dispute was raised by the tenant about the rent and at no point
of time any application for fixation of interim standard rent was
filed by him. He, therefore, submitted that there is no doubt that
the tenant is in arrears of rent.
He submitted that the appellate court has incorrectly
applied the provisions of Section 109 of the Transfer of Property
Act. He further submitted that the ratio in the case of
N.M.Engineer and others vs Narendra SinghVirdi [AIR 1995
SC 448] was incorrectly applied by the learned lower appellate
court.
10]
Per contra, the learned counsel Shri
N.B.Suryawanshi strenuously urged before me that an amount
of Rs.110/ was already paid to Narsopant Saundankar, and
therefore, it could not be said that the tenant was in arrears of
rent. He supported the reasoning given by the learned lower
appellate court and argued that the appellate court has correctly
reached to the conclusion that the claim of rent in arrears, if
any, may be an actionable claim in so far as present plaintiff
Subhash is concerned.
11]
Since there is no dispute and in view of the fact that
the finding given by the appellate court regarding substitution of
12]
ig
Subhash as plaintff, this court will not dilate on the said issue.
Notice, dated 15.4.1985 (Exh.48) was given to
Chandrakant Salunke, defendant no.1. In the said notice, it has
been specifically asserted that he was in arrears of rent from
10th July, 1984. It was also pointed out in the notice that
monthly rent was Rs.15.25 Ps. It was further stated in the
notice that education cess was also not given by the tenant
from beginning.
13]
Postal receipt (Exh.49) shows that the said notice
was sent. Exh. 50 is the acknowledgement of Chandrakant. In
view of the acknowledgement (Exh.50), it is clear that the notice
was duly received by Chandrakant. In fact, there is no dispute
about the receipt of the notice on the part of tenant
Chandrakant.
Though notice Exh.48 was duly received by
Chandrakant, the said notice was not replied by him.
If we examine the pleadings, it is clear that according
to the plaintiff the rent was paid till 9.7.1984; whereas as per the
written statement the rent was paid up to 9.8.1984.
If the pleadings in the written statement are read
correctly, then it is clear that there is no whisper in the written
statement about the payment of rent from 9.8.1984 till
15.4.1985 when the notice was issued. Thus, it is clear that the
tenant has admitted in the written statement that he was in
arrears of rent for more than six months.
14]
Section 12 of the Bombay Rents, Hotel and Lodging
Houses Rates Control Act, 1947 (for short, “the Bombay Rent
Act”) states that there cannot be any ejectment for the tenant
who pays or is ready and willing to pay the standard rent and
permitted increases.
Section 12 of the Bombay Rent Act reads as under :
“ 12 (1)
A landlord shall not be entitled to the
recovery of possession of any premises so long as the
tenant pays, or is ready and willing to pay, the amount of
the standard rent and permitted increases, if any, and
observes and performs the other conditions of the
tenancy, in so far as they are consistent with the
provisions of this Act.
(2)
No suit for recovery of possession shall be
instituted by a landlord against a tenant on the ground of
nonpayment of the standard rent or permitted increases
due, until the expiration of one month next after notice in
writing of the demand of the standard rent or permitted
increases has been served upon tenant in the manner
provided in section 106 of the Transfer of Property Act,
1882 (IV of 1882).
(3)(a)
Where the rent is payable by the month and
there is no dispute regarding the amount of standard rent
or permitted increases, if such rent or increases are in
arrears for a period of six months or more and the tenant
neglects to make payment thereof until the expiration of
the period of one month after notice referred to in sub
section (2), the [Court shall pass a decree] for eviction in
any such suit for recovery of possession.
(b)
In any other case, no decree for eviction shall
be passed in any such suit if, on the first day of hearing
of the suit or on or before such other date as the Court
may fix, the tenant pays or tenders in Court the standard
rent and permitted increases then due and thereafter
continues to pay or tender in Court regularly such rent
and permitted increases till the suit is finally decided and
also pays costs of the suit as directed by the Court.
................. .....................”
15]
Admittedly, after receipt of the notice (Exh.48), the
tenant did not reply the notice nor paid the rent as claimed in
such notice, however, he sent money order for Rs.43.20 ps.
towards the education cess.
16]
In view of the remittance of Rs.43.20 ps. towards
education cess in pursuance to the notice (Exh.48), it is crystal
clear that the contents of the notice were admitted by the
tenant since in the notice (Exh.48) it has been specifically
averred that the tenant is in arrears of education cess.
17]
In the notice (Exh.48), the rent was claimed at the
rate of Rs.15.25 Ps. Since the said notice was not replied and
in the light of remittance of the education cess, there is no other
option but to reach to the conclusion that agreed rent was
18]
Rs.15.25 Ps.
Further, clause (a) of Subsection (3) of Section 12 of
the Bombay Rent Act, 1947 shows that the tenant is entitled to
pay the arrears within a period of one month from the receipt of
the notice. Even if we accept the version made in the written
statement about the payment of Rs.110/ to Narsopant
Saundankar, who died prior to filing of the written statement, it
is clear that even the written statement shows that the said
amount was given to deceased Narsopant in the month of July,
1985, which is clearly outside the one month of receipt of the
notice (Exh.48), since Exh.50 shows that notice (Exh.48) was
received by Chandrakant on 16.4.1985.
Further, if there was any dispute about the agreed
rent it was open for the tenant to raise the dispute about the
same. In absence of raising such dispute, it is impermissible to
take the different view about the agreed rent.
The learned lower appellate court, in my view, has
misdirected himself. According to the learned lower appellate
court, plaintiff Subhash in the examinationinchief has admitted
that in the year 1975 another room was let out and previously
rent was Rs.7/ only. Reliance is also placed on three receipts
Exhs. 43, 44 and 45, which show that rent was Rs.7/ and
Rs.8/. The said receipts pertain to the year 1969 and 1974,
however Exh.46 receipt for the month of August, 1984 clearly
shows that the rent was Rs.15.25 Ps. With this and in absence
of anything contrary, the learned lower appellate court, in my
view, has incorrectly reached to the conclusion that Rs.15.25
Ps. was not agreed standard rent. In that view of the matter,
the finding recorded by the learned lower appellate court that
the tenant was not in arrears of rent for more than six months
needs to be set aside.
19]
Another ground, which weighed in the mind of the
learned Judge of the appellate court to upset the decree is
Section 109 of the Transfer of Property Act, which reads as
under :
“ 109. Rights of lessor's transferee. — If the lessor
transfers the property leased, or any part thereof, or any
part of his interest therein, the transferee, in the absence of
a contract to the contrary, shall possess all the rights, and,
if the lessee so elects, be subject to all the liabilities of the
lessor as to the property or part transferred so long as he is
the owner of it; but the lessor shall not, by reason only of
such transfer cease to be subject to any of the liabilities
imposed upon him by the lease, unless the lessee elects to
treat the transferee as the person liable to him:
Provided that the transferee is not entitled to
arrears of rent due before the transfer, and that, if the
lessee, not having reason to believe that such transfer has
been made, pays rent to the lessor, the lessee shall not be
liable to pay such rent over again to the transferee.
The lessor, the transferee and the lessee may
determine what proportion of the premium or rent reserved
by the lease is payable in respect of the part so transferred,
and, in case they disagree, such determination may be
made by any court having jurisdiction to entertain a suit for
the possession of the property leased. ”
According to the learned lower appellate court and
which is the submission of the learned counsel for the
respondent, in view of the provisions of Section 109 of the
Transfer of Property Act, present petitioner will not be entitled to
the decree on the basis of arrears of rent which were there prior
to allotment of suit house to his share.
The learned lower appellate court placed reliance on
the reported case of N.M.Engineer and others vs Narendra
Singh Virdi [AIR 1995 SC 448]; and Smt.Champabai Manilal
Shah and anr. Vs Anandrao Ramchandra and another [1993
Bombay Rent Cases Pg. 351]. According to the learned lower
appellate court, therefore, at the most the arrears of rent was
mere an actionable claim, since according to the learned lower
appellate court if some of the colandlords relinquished their
right in favour of other landlords, it operates a transfer within the
meaning of Section 109 of the Transfer of Property Act.
20]
The Apex court has dealt with such issue in detail in
the case of Sk. Sattar Sk. Mohd. Choudhari vs Gundappa
Amabadas Bukate [1997 (2) Bom.C.R.690]. Section 5 of the
Transfer of Property Act reads as under :
“ 5. “Transfer of property” defined. — In the following
sections “transfer of property” means an act by which a
living person conveys property, in present or in future, to
one or more other living persons, or to himself and one or
more other living persons; and “to transfer property” is to
perform such act.
In this section “living person” includes a company or
association or body of individuals, whether incorporated or
not, but nothing herein contained shall affect any law for
the time being in force relating to transfer of property to or
by companies, associations or bodies of individuals. ”
While dealing with the said Section, the Apex Court in
para 22 of the said judgment has observed as under :
“ 22. This Section contemplates transfer of property by a
person who has a title in the said property to another person
who has no title. A family arrangement, on the contrary, is a
transaction between members of the same family for the benefit
of the family so as to preserve the family property, the peace
and security of the family, avoidance of family dispute and
litigation and also for saving the honour of the family. Such an
arrangement is based on the assumption that there was an
antecedent title in the parties and the agreement acknowledges
and defines what that title is. It is for this reason that a family
arrangement by which each party takes a share in the property
has been held as not amounting to a "conveyance of property"
from a person who has title to it to a person who has no title. ”
Thus, the Apex Court has held that the family
arrangement, by which party takes share in the property, will
not amount to a conveyance of the property.
There is no dispute that the suit house was allotted to the
21]
share of present petitioner and his name is mutated in relevant
revenue record on 24.7.1986. Thus, n view of the dictum in the case
of Sk.Sattar Sk.Mohd. Choudhari by the Apex Court, the lower
appellate court ought to have seen that the facts in the case of
N.N.Engineer are clearly distinguishable and the ratio laid down by
the Apex Court in said case is not applicable to the case I hand.
Since the landlord has successfully pointed out that the
22]
tenant was in arrears of rent for more than six months, he was not
entitled for the protection, and therefore, the lower appellate court, in
my view, has committed a mistake in upsetting the well reasoned
judgment and decree passed by the learned trial court.
23]
In that view of the matter, the Writ Petitioner succeeds in
the present Writ Petition. The petition is allowed. The judgment and
decree passed by the Extra Joint District Judge, Dhule in Regular
Civil Appeal No.2 of 1992, dated 2.2.2000 is hereby set aside.
Instead the judgment and decree passed by the 5 th Joint Civil
Judge, Junior Division, Dhule on 16.11.1991 in Regular Civil
Suit No. 458 of 1985 is hereby restored. Rule is made absolute
accordingly. In the circumstances of the case, there shall be no
order as to costs.
[V.M.DESHPANDE, J.]
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