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1979 Supreme(Mad) 138
IN THE HIGH COURT OF JUDICATURE AT MADRAS
P. Venugopal, J.
L.K.K. Gafoor .....Appellant(s)
Versus
M. T. Lakshmana Mudaliar (died) and another .....Respondent(s)
C.R.P. No. 3877 of 1975.
Decided On : 01 March 1979
N. Sivamani and N. Krishnamitra, for Petitioner.
R. Desikan, V. R. Bhiksheswaran and K. Ranganathan, for Respondents.
The order of eviction passed under section 10 (3) (a) (iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 on the ground of personal requirement of the landlord for carrying on business in the building is not personal to the landlord and enures to the benefit of his legal heirs.
Headnote:
LANDLORD AND TENANT - EVICTION - PERSONAL REQUIREMENT - DEATH OF LANDLORD - WHETHER ORDER OF EVICTION ENURES TO THE BENEFIT OF LEGAL HEIRS - TAMIL NADU BUILDINGS (LEASE AND RENT CONTROL) ACT, 1960, SECTION 10 (3) (A) (III).
Fact of the Case:
The landlord filed an application for eviction of the tenant on the ground that the portion occupied by the tenant is required by the landlord for running a tea stall and the landlord was not in occupation of any non-residential building in the City of Madras. The Trial Court dismissed the petition holding that the landlord had not taken steps for securing a license for running the tea stall and the requirement of the building by the landlord was not a bona fide one. On appeal, it was held that the mere fact that the landlord had not obtained a license from the Police and Corporation for running a tea stall in the premises cannot be considered as a fact against him, and the Corporation license and Police license can always be secured by the landlord after getting the order of eviction. The appellate Court came to the conclusion that the requirement of the building by the landlord was a bona fide one, and disagreeing with the findings of the trial Court passed an order of eviction against the petitioner.
Finding of the Court:
The order of eviction passed under section 10 (3) (a) (iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 on the ground of personal requirement of the landlord for carrying on business in the building is personal to the landlord, and after his death, it lapses and cannot enure to the benefit of his legal heirs.
Issues: Whether the order of eviction passed under section 10 (3) (a) (iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 on the ground of personal requirement of the landlord for carrying on business in the building is personal to the landlord, and after his death, it lapses and cannot enure to the benefit of his legal heirs.
Ratio Decidendi: The statutory exception provided under section 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 heir, the second respondent herein.
Final Decision: The order of eviction passed is confirmed, and the revision will stand dismissed, with costs. 4 months time granted for vacating the building.
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 section 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 carrying 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 the contention, the decision in Muhammad Ibrahim v. Rahiman Khan1,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 under section 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 became 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 and others v. Chimanlal Maganlal Telwala 1 , and the decision of the Madras High Court in Vijayaraghavan v. Mohammed Yakub Rowther and others 2 .
4. In the case of Shantilal Thakordas 1 , 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 the 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 landl
