Important Points
1. The ban contained in the third proviso to Section 11(3) of the Kerala Rent Control Act applies, its corollary is that the petition filed by the landlord has to be expelled on the sole ground that the landlord was then not entitled to file it. In such a situation the court should not enter into the merits because whatever is said or found on the merits would then be without jurisdiction.
2. A new lease of instrument, after landlord got tenanted building by virtue of instrument of transfer inter vivos, would also be a transfer inter vivos within meaning of third proviso to Section 11(3) of the Kerala Rent Control Act and the ban contained in the third proviso would still continue to foreclose the landlord from filing the petition for a period of one year from the new lease deed.

Headnote:(i) Kerala Buildings (Lease and Rent Control) Act, 1965-Section 11(3), Proviso 3-Eviction within one year of instrument of transfer inter vivos-Bar of-If ban contained in third provise applies petition has to be expelled on the sole ground and should not enter into merits of case-Landlord became owner of tenanted premises under gift deed-Eviction petition on ground of bona fide requirement before expiry of one year-Plea that rent enhanced and new tenancy came into existence and bar contained in third proviso does not apply-Not tenable-No implied surrender-Even assuming that new lease created landlords right to recover possession would arise under that instrument of lease which would also be a transfer inter vivos as envisaged in third proviso-Petition not maintainable.
       Held : If the ban contained in the third proviso to Section 11(3) of the Kerala Rent Control Act applies, its corollary is that the petition filed by the landlord has to be expelled on the sole ground that the landlord was then not entitled to file it. In such a situation the court should not enter into the merits because whatever is said or found on the merits would then be without jurisdiction. High Court should have first decided the question of maintainability of the petition and only if that point was found in the affirmative the merits need have been gone into. (Para 6)
       Assuming that Ext. A. 1 has created a new lease after terminating the erstwhile lease, the difficulty is that the grip of the ban contained in the third proviso would still continue to foreclose the landlord from filing the petition for a period of one year from the new lease deed. This is because “the landlord’s right to recover possession” would then arise under that instrument of lease, which would also be a transfer inter vivos as envisaged in the third proviso. (Para 14)
       As the third proviso to Section 11(3) disentitles a landlord from applying for eviction of the tenant before the expiry of the quarantine period, the petition filed by the landlord in this case has to be dismissed only on that ground. Any observation made on the merits of the case in the proceeding based on such a non-maintainable petition must stand erased from judicial notice. If the present landlord files a new petition for eviction under the Act, as the ban period is over, the same has to be considered and disposed of uninfluenced by any of the observations made by the High Court orthe Courts below thereto. (Para 15)
       (ii) Transfer of Property Act, 1882 - Section 111(6) - Determination of lease-Doctrine of implied surrender-Test.
       Held : The principle which governs the doctrine of implied surrender of a lease is that when certain relationship existed between two parties in respect of a subject matter and a new relationship has come into existence regarding the same subject matter, the two sets cannot co-exist, being inconsistent and incompatible between each other, i.e. if the latter can come into effect only on termination of the former, then it would be deemed to have been terminated in order to enable the latter to operate. A mere alteration or improvement or even impairment of the former relationship would not ipso facto amount to implied surrender. It has to be ascertained on the terms of the new relationship vis-a-vis the erstwhile demise and then judge whether there was termination of the old jural relationship by implication. (Para 9)

Judgment

Thomas, J.-A landlord approached the Rent Control court prematurely and lost the cause not only regarding the timing of her approach to the court but on merits as well. The High Court found that the claim of the landlord for eviction of the tenant from the building lost its tenability on account of the factors which sprouted up pendente lite. The unsuccessful landlord has, therefore, reached this Court by special leave.

2. The tenant has been residing in the building of the landlord for nearly half a century by now, (a few more years from now may mark the golden jubilee year of the tenancy). When the building was originally leased in 1956, it was in the ownership of appellant’s father. He executed a gift deed in favour of his daughter (the appellant) on 2-8-1980, as per Ext. B-10. But the appellant, bereft of patience to wait for the expiry of the moratorium period of one year, hastened to file the petition for eviction of the tenant on 1-7-1981 under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, for short “the Act”. Appellant made an endeavour to circumvent the quarantine prescribed under the sub-section on the premise that the tenant had executed a fresh lease agreement in her favour on 18-8-1980 (Ext. A. 1).

Section 11(3) of the Act reads thus :

“A landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building if he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him.”

The sub-section has four provisos of which the third alone is relevant for consideration in this appeal and hence that is extracted below :

“Provided further that no landlord whose right to recover possession arises under an instrument of transfer inter vivos shall be entitled to apply to be put in possession until the expiry of one year from the date of the instrument.”

3. The Rent Control court bypassed the ban contained in the aforesaid proviso by accepting the contention of the appellant that the right to recover possession of the leased premises is not based on Ext. B. 10-Gift Deed executed by the erstwhile landlord, since a new lease arrangement has come into effect between the appellant, and the tenant as per Ext. A. 1. Rent Control Court then proceeded to consider the merits of the claim for eviction and upheld the bona fides of the need highlighted by the landlord. So the Rent Control Court granted the order for eviction.

4. But the Appellate Authority under the Act reversed the findings both on the maintainability of the petition for eviction and also on the merits of the claim and consequently dismissed the petition of the landlord. The order so passed by the Appellate Authority remained undisturbed in the revision filed by the landlord before the District Court which was then the revisional authority. However, a learned Single Judge of the High Court of Kerala, while disposing of a writ petition filed under Article 227 of the Constitution expressed inclination to approve the contention that the petition filed by the landlord is not liable to be expelled solely on the strength of the ban contained in the third proviso to Section 11(3) of the Act. The observations made by the learned Single Judge, on that score, are the following :

“I find some merit in the contention that after the tenant had, subsequent to the transfer inter vivos, attorned to the transferee-landlord, right to evict may arise out of that transaction itself and the transferee landlord then need not rely on the transfer in his favour.”

After expressing as above learned Single Judge has stated thus :

“Since in view of my finding that the Appellate Authority and the revisional court were right in negativing the claim for eviction under Section 11(3) of the Act on merits, I am not inclined to answer this question finally in this Original Petition. Even if the answer to this question were to be in favour of the landlord,

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1999 Supreme(SC) 956

Cases Referred (2)