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MADRAS HIGH COURT
RAMASWAMI
P.V.S.Vencatachellum
Versus
P.V.S. Kabalamurthy Pillai
C.S. No.450 of 1950
Decided On : 3 May, 1954
TENANCY - Suit for declaration that plaintiff is not a bare tenant from month to month under defendant of buildings and premises - Plaintiff claiming to be entitled to continue in possession, use and enjoyment of properties so long as he is carrying on condiments business of P. Vencatachellum and that defendant is entitled only to such reasonable rents payable to him or such reasonable rents as may be agreed to or determined from time to time - Defendant claiming eviction of plaintiff in respect of premises - Held, plaintiff is not entitled to declaration and injunction as claimed - Plaintiff is a bare tenant of suit premises - Order of eviction obtained by defendant against plaintiff is not a fraud on plaintiff's rights - Provisions of Rent Control Act at variance with Transfer of Property Act are not illegal and are enforceable - Madras Buildings (Lease and Rent Control) Act is intra vires of Constitution of India.
Fact of the Case:
Plaintiff filed a suit for a declaration that he is not a bare tenant from month to month under the defendant of the buildings and premises described in the plaint schedule and that by reason of the arrangements and conditions and covenants referred to in the plaint, the plaintiff is entitled to continue in possession, use and enjoyment of the said items of property so long as the plaintiff is carrying on the condiments business of P. Vencatachellum and that the defendant is entitled only to such reasonable rents payable to him or such reasonable rents as may be agreed to or determined from time to time; that the defendant be restrained by a permanent injunction from executing or otherwise enforcing against the plaintiff the order of eviction obtained by him against the plaintiff and from otherwise interfering with the peaceful enjoyment of the premises by the plaintiff; and for costs.
Finding of the Court:
1. The family arrangement pleaded is untrue. 2. The goodwill has not become attached to the premises. 3. The life tenancy co-terminus with the extinction of the business claimed is illegal under Ss.10 and 11, Transfer of Property Act and inequitable on the facts of this case. 4. The eviction was properly made under the Rent Control Act and not the Transfer of Property Act. 5. The Rent Control Act is intra vires of the Constitution of India.
Issues: 1. Was the manufacturing part of the business of P. Vencatachellum at premises Nos.5, 6 and 7, Umpherson Street and the sale part of the business at No.2 Broadway carried on in the respective premises from the very commencement of that business, and have the said premises in consequence become part of the goodwill of the said business? 2. Was the allotment of the said premises in Umpherson Street and Broadway to P.V. Subramaniya Pillai under the decree in C.S.238/50 made in consideration of the said properties being in the nature of an appendage and as being necessary for the carrying on the said business, and was it for the same reason that the allotment of the said properties to the defendant in C.S.794/21 was coupled with the conditions against alienation set out in the decree? 3. Was the arrangement that the said business should be carried on in the said premises in the nature of a family arrangement and was it for the benefit of the said business as alleged in para.11 of the plaint? 4. Is the agreement pleaded in para.17 of the plaint true, and if so, what is its legal effect? 5. Was the order of eviction obtained by the defendant against the plaintiff in respect of the said premises in fraud of the plaintiffs rights as alleged in paras.18 and 19 of the plaint? 6. Was the plaintiff not a bare tenant of the said premises from the defendant and has the plaintiff any rights to the property itself, legal or equitable, as claimed in para.20 of the plaint? 7. Are the provisions of the Rent Control Act at variance with the Transfer of Property Act, illegal and not enforceable for the reasons set out in paras.11 and 23 of the plaint? 8. Are the provisions of the Rent Control Act so far as they are inconsistent with the Transfer of Property Act invalid for the reasons alleged in paras 24 and 25 of the plaint? 9. Is the plaintiff as the owner and proprietor of P. Vencatachellum entitled to the use and occupation of the said premises on payment of reasonable rent to the defendant as claimed in the plaint? 10. Is the plaintiff entitled to the declaration and injunction prayed for? 11. To what reliefs are the parties entitled?
Ratio Decidendi: 1. A family arrangement stands on a similar footing as a compromise. It is an arrangement come to between relations or members of a family, who have their own unadmitted rights to be pressed against one another, in order to avoid litigation and for the benefit, peace, security or preservation of the property in dispute, and to such an arrangement great importance is attached by the Courts. 2. A correct definition of goodwill, as has been pointed out by Allan in his "Law relating to Good-will" (Stevens and Sons, Limited), 1889, has been always a matter of considerable difficulty; a difficulty that has been admitted by those Judges who have attempted the task. 3. Good will may be either incident to premises or stock-in-trade. Sometimes it happens that on the sale or transfer of a business the purchaser leases the old premises for a specified period and then removes his business to another site. On the termination of the lease the question arises whether the goodwill of the business continues to be annexed to the premises or is carried away by the purchaser and lessee along with the stock-in-trade and machinery. 4. The good will of a solicitors business cannot adhere to the premises in which it was carried. 5. Sections 10 to 17, Transfer of Property Act have been enacted to encourage free alienation and circulation of property. Entire transfers are not vitiated simply because there may happen to be some clauses in the deeds which are repugnant to the free transfer and circulation of property; such restrictive clauses are to be treated as void. 6. The principle is of universal application and there is nothing in the Hindu or Mahomedan law inconsistent with it and so it applies to Hindus and Mahomedans. 7. Under S.10 a condition absolutely restraining a transferee from disposing of the property is void, and the section is wholly silent as to the validity of qualified restraints on alienation. 8. A condition imposing a partial restraint on alienation is not void. 9. Whether the restraint in a particular case is absolute or partial has to be gathered from the intention of the transferor from the contents of the document. 10. The provisions of the Rent Control Act at variance with the Transfer of Property Act are not illegal and are enforceable.
Final Decision: Suit decreed in terms of the contemporaneous note made by the court on 23-4-1954. Plaintiff to pay costs of suit to defendant.
JUDGMENT : - Suit is for a declaration that the plaintiff has not been and is not a bare tenant as from month to month under the defendant of the buildings and premises described in the plaint schedule and that by reason of the arrangements and conditions and covenants referred to in the plaint, the plaintiff is entitled to continue in possession, use and enjoyment of the said items of property so long as the plaintiff is carrying on the condiments business of P. Vencatachellum and that the defendant is entitled only to such reasonable rents payable to him or such reasonable rents as may be agreed to or determined from time to time; that the defendant be restrained by a permanent injunction from executing or otherwise enforcing against the plaintiff the order of eviction obtained by him against the plaintiff and from otherwise interfering with the peaceful enjoyment of the premises by the plaintiff; and for costs.
2. The facts are-In the city of Madras Sri P. Venkatachalam belonging to the Adi-dravida community founded about 95 years ago a business in condiments which throve and prospered and had a large export trade to England where the old retired Anglo-Indians relished greatly the spices of the East out of which these condiments are prepared. The preparation of these condiments was being done in the premises bearing door Nos.5, 6 and 7. Umphersons Street, adjacent to Broadway. The office portion was being carried on in premises No.2, Pophams, Broadway. In fact all these buildings are within a stones throw of the High Court. (For a historical account of these well-known places see Umpherson Street-Origin of name Vol. III, 448 N.7, 573 and for Pophams Broadway, Vol. III, pages 447-449 of Col. Love Vestiges of old Madras published in three volumes with index volume in the Indian Records Series).
3. There was a partition suit in C.S. No.238 of 1905 which terminated in a final consent decree on 14-11-1918. In these proceedings we are not concerned with that partition suit.
4. This Sri P. Venkatachalam had a son by name P.V. Subramania Pillai who carried the business after his father. (We are not concerned here with the other four sons of Sri P. Venkatachalam). This Subramania Pillai had three sons by name P.V.S. Kabalamurthi Pillai (the present defendant), P.V.S. Kumaravelu Pillai and Sambasiva Pillai. The present plaintiff is the son of that Sambasiva Pillai and Muthulakshmi Ammal and he had a sister by name Mohanambal. Sambasiva Pillai died in 1916. In the year 1921 C.S. 794 of 1921 was filed for an account being taken of the properties belonging to the joint family consisting of the parties to that suit viz., Kabalamurthi Pillai (plaintiff therein), P.V. Subramanya Pillai (defendant 1 therein), P.V.S. Vencatachellum (defendant 2 therein and the present plaintiff), Mohanambal (defendant 3 therein) Muthulakshmi Ammal, widow of Sambasivam Pillai (defendant 4 therein) and P.V. Kumaravelu Pillai (defendant 5 therein) of the profits of the business relating to the manufacture of condiments and ice from 1-1-1919 and of the liabilities of the joint family; for sale of such items as may be necessary of the properties mentioned in Sch. II of the plaint for the discharge of the liabilities of the family; for appointment of a Receiver and Manager of the said business relating to the said manufacture of condiments and ice; for the division of the residue thereafter among the parties to the suit etc. In that suit the present plaintiff was a minor represented by his grandfather as guardian ad-litem.
5. This suit terminated in a consent decree and so far as we are concerned here two relevant paragraphs of the decree are paras.5 and 6 and they are as follows:
"5. That P.V.S. Kabalamurthi Pillai, the plaintiff herein, do take immediate possession of the premises Nos.5, 6 and 7 Umpherson Street, G.T. Madras, and premises No.2, Pophams Broadway, Madras.
6. That the said P.V. Subramaniam Pillai, defendant 1 do take the said premises Nos.5, 6 a
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