AI Structured Summary
Not yet generated for this judgment
Judgment
Singaravelu, J.—The tenants are the revision Petitioners. The Respondent-landlord S.R. Mazda, Executor of the Estate of R.F. Mazda, filed the application for eviction of the tenants in respect of a non-residential premises on grounds of willful default in payment of rent and sub-letting. The tenants deemed both the grounds and on evidence the Rent Controller found that though there are (SIC) of rent, they were ba(SIC)d by limitation and therefore it does not come under the ph(SIC)aseelogy of willful default. With reference to the ground for sub-letting, the Rent Controller accepted the same and ordered evict on. appeal, the Appellate Authority confirmed the findings of the Rent Controller and dismissed the appeal. Now, the tenants have preferred this revision petition.
The case of the landlord was that the tenants who are running a hotel by name Cafe National have sub-let the premises unauthorized to a stranger who is now running the said hotel Of course, this was denied by the tenants. But, the landlord has let in overwhelming and clinching evidence oral and documentary to prove the sub-lease. P.W. 1 is the Executor of the Estate of the landlord and he is non else than the son of the original landlord. He has stated that the tenants are not in possession of the premises and that they have sublet the same for the purpose of running the hotel to one Kunhi Mohideen Kutty. His evidence is fully supported by the evidence of other witnesses P.Ws. 2 and 3. P.W. 2 is an Inspector of the income tax Department and he proved exhibit P.-7 which is an income tax assessment order for 1976-77 and that is in the name of Kunhi Mohideen Kutty, the sub tenant. Exhibit P-8 is the return of income submitted by a Chartered Accountant of the said Mohideen Kutty in respect of the hotel business which he is carrying on in the name of Cafe National at the petition building. P.W. 3 is an Assistant Commercial Tax Officer and the files relating to assessment of sales tax with respect to the business carried on by the sub-tenant Mohideen Kutty as proprietor of Cafe National has been produced. P.W. 3 has clearly stated that in the tax returns Mohideen Kutty is described that the price of Cafe National situated in the demised premises. Exhibit P-11 is the certificate of registration showing that the sub-tenant has been registered as a deal carrying on business known as Cafe National. Exhibit P-12 is another certificate of registration issued to Mohideen Kutty as proprietor. Exhibit P-13 is a letter sent by Mohideen Kutty to the Assistant Commercial Tax Officer to insert his name as the propertior of Cafe National Exhibit P-14 series are the records of the Sales ax Authorities containing the (SIC) submitted by Mohideen Kutty. It was also gathered from exhibit P-14 that the Sales Tax Authorities conducted a aid on the hotel Cafe National and in the notes of inspection marked as exhibit P-15 Mohideen Kutty was found to be the propertior of the hotel. Exhibit P-16 is the Sales Tax Assessment Order in the name of the said tenant. What is more, the accounts of Mohideen Kutty disclose that he has paid a premium for the license for the hotel to the extent of Rs. 4,200 to the tenant and the rent for the hotel to the extent of Rs. 5,796. Thus, the landlord has proved to the hilt that the tenants have sublet the premises to Mohideen Kutty who is running the hotel under the very same license. Of course, the tenants have produced exhibits R-3, R-4 and R-5 to show that the municipal license and the police license for the hotel still stand in the name of M.B. Irani, namely the fist Petitioner herein. But, they are a mere camouflage to cover the sub-letting and no prudent man, much less a businessman, would change the license in his name and openly conduct business as a sub-tenant. Two Courts have found on clear evidence that the premises has been sublet to Mohideen Kutty and the before this is a finding of fact which cannot be touched.
The revision Petitioners-tenants were obviously conscious of the hollowness of their case and the enforce they were obliged to esort to the legal plea with reference to the maintainability of the application for eviction and they were merely picking holes in the case put-forward by the landlord with reference to maintainability. Learned Counsel for the tenants argued that the original landlord R.F. Mazda had died and that the petition for eviction is now filed by the Executor of the Estate, S. R. Mazda claiming to be the Executor of the Will. It was argued that the Will of the deceased R. F. Mazda has not been probated and the (SIC) the eviction petition by the Executor is not maintainable. Exhibit P-l is the copy of the Will executed by the late R.F. Mazda in favour of his son S.R. Mazda who is the Executor of the Estate. The deceased died on 29th October 1978 whereas the Will was executed on 29th June 1969. P.W. 1 the Executor has spoken to the Will and there was no cross-examination of P.W. 1 on this aspect. In fact, the Will of late R.F. Mazda itself is not disputed and that the tenants'' only contention is, that it has not been probated and therefore cannot be exhibited. This point was raised in the Courts below which found that it is not necessary that the Will should be probated for the purpose of filing a petition for eviction under the Tamil Nadu Buildings (Lease and Rent Control) Act (XVIII of 1960).
Learned Counsel for the Petitioners tenants vigorously argued placing reliance on Section 213 of the Indian Succession Act that no right as executor or legatees can be established in any Court of Justice unless a Court of competent jurisdiction in India has granted probate of the Will under which the right is claimed. Now, two things are necessary to invoke Section 213 of the Indian Succession Act. Firstly, the proceeding in question must be for the purpose of establishing a right as an Executor and secondly, the proceeding must be in a Court of Justice.
Learned Counsel for the landlord pointed out that this is a proceeding under the Rent Control Act before a special Tribunal and that it is not a Court of Justice. It was then argued that the Rent Control Act, is a self contained Code and that even the provisions of the CPC are not wholly applicable though some provisions relating to execution have been specifically made applicable to the same. Mr. Sivamani for the landlord drew my attention to a Full Bench decision of our High Court reported in Ramiah v. Venkatasubramma (1925) ILR Mad. 261 (FB) and pointed out that in case of Wills, the estate of the testator vests in the Executor who accepts office from the date of the testator''s death, and the provisions of the Probate and Administration Act are applicable, even though probate has not been obtained. Learned Counsel also relied upon the Text book on the Commentaries on the Indian Succession Act and pointed out that Section 213 of the Indian Succession Act does not debar the use of a Will of which no probate has been obtained as evidence for a purpose other than the establishment of a right as executor or legatee. In the instant case, learned Counsel pointed out that P.W. 1 was not only appointed under the Will, but he happens to be the son of the deceased testator. Further it was argued that even otherwise P.W. 1 will be entitled to collect rent for the leasehold premises from the tenants and therefore P.W. 1 is not establishing his right under the Will, but is relying on it only for an incidental purpose, namely, his right to collect rent as an Executor of the Will. This argument is quite sound and acceptable. Of course, the Executor cannot establish any right to the property without taking out probate, but the existence of the Will cannot be ignored for all purposes. In other words, it is not proper to treat a Will of which probate has not been granted as non-existent, or as the property passing by intestacy.
A reading of Section 213 of the Indian Succession Act will show that an Executor or a Legatee cannot establish his claim before obtaining probate or letters of administration; but this section is no bar to his bringing a suit or initiating proceedings before obtaining probate. It is also important to note that the genuineness and the validity of the Will are not questioned and therefore a rent control petition for eviction without filing a probate of the Will is not barred by Section 213 of the Indian Succession Act. In fact, in Rongaswamy v. Rangammall (1981) 2 MLJ 9 ISN) this Court has held that Section 213 does not apply to a Will executed outside the City of Madras. (Of course, the Will now in question was executed at Madras and therefore does not come under this ruling.) The Executor, if he is of full age, may do almost all the acts which are incidental to his office even before he proves the Will. The text book on the Act recites that the Executor, on accepting the office, may seize and take into his hands any of the testator''s effects. He may pay or take releases of debts owing from the estate ; and he may receive or release debts which are owing to it. And if before probate, the day occurs for payment upon bond made by, or, to, the testator, payment must be made to or by the Executor, though the Will is not proved. He may sell, give away or otherwise dispose at bis discretion of the goods. He may also assent to or pay legacies, and he may enter on the testator''s land-Williams and Mortiner on Executors, Administrators and Probate page 78.
Keeping these principles in mind as well as the Full Bench ruling of our High Court, there is no difficulty in holding that probate of the Will is not absolutely necessary for the purpose of collecting rents from the tenants or for taking action for eviction.
The Courts below were right in rejecting the contention of the tenants that the action for eviction without probating the Will is not maintainable.
We shall now take up the other aspect, namely, whether the Tribunal under the Rent Control Act is a Court of Justice or not. Learned Counsel for the tenants drew my attention to a decision reported in Rathinaswamy v. Komalavallil (1981) 2 MLJ 9 (SN) where, for purposes of Section 5 of the Limitation Act, the appellate authority under the Tamil Nadu Buildings (Lease and Rent Control) Ac was held to be a Court. Another decision relied on behalf of the tenants is reported in E.K. Venkaimarbon Vs. Dakshinamoorthy, wherein the appellate authority under the Rent Control Act was held to be a not a personal designate, but a Court within the meaning of Section 5 of the Limitation Act. Reliance was also placed on the decision reported in G. Bulliswamy v. C. Annapurnamma3 where it was held that the Rent Controller under the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act was authorized to record evidence of the parties before him was held to be a Court within the meaning of Section 3 of that Act. I have perused these decision and it appears to me that they were held to be Courts within the meaning of the Act only for a limited purpose For example, in the Madras cases, the question arose whether Section 5 of the Limitation Act would be applicable to Act XVII of 1960. Similarly, in the matter of recording expert evidence, the question arose before the Andhra Pradesh High Court whether the Rent Controller was a Court or not. In that context and for a very limited purpose, the Rent Controller and the appellate authority were held to be Courts of Law respectively. As against this my attention was drawn to a decision reported in Brajnandan Sinha Vs. Jyoti Narain, where it was held that a Commissioner appointed under the Public Servants (Inquires) Act, 1850 is not a Court within the meaning of the Contempt of Courts Act, 1952. Similarly the Supreme Court also held that a Returning Officer, acting under Sections 33 and 36 of the Representation of Peoples Act, 1951 and deciding on the validity or otherwise of a nomination paper is not a Court within the Code of Criminal Procedure. The result of my discussion is that the Rent Controller or the appellate authority is not a Court of Justice for all purposes and Section 213 of the Indian Succession Act will not apply for purpose of eviction under the Rent Control Act. In this connection, it is submitted that P.W. 1 the Executor has since filed an application for probate before this High Court and that the same is pending. Learned Counsel for the landlord also represented that it will be filed, if necessary, at the stage of execution. For all these reasons, the argument of the learned Counsel for the tenants, that Rent Control proceedings cannot be initiated without probating the Will is rejected.
Learned Counsel for the landlord wanted to sustain the order of eviction passed by the Courts below on the ground that the tenants have committed willful default in payment of en(SIC)though this ground did not find favour with the Courts below. Learned Counsel pointed out that it is the admitted case of both sides that large arrears of rent are due to the landlord. But, the contention of the tenants is that the previous arrears to the extent of Rs. 15,760 are barred by limitation. Therefore, it is argued on behalf of the tenants that the time berried (SIC) cannot be a ground for ordering eviction. But, the Suprerne Court has held in K.G.U. Trust v. Ram Chandraji (1978) SC WR 33 that the arrears of rent would include rent which has become time ba(SIC)ed. In other words, it has been held that the (SIC)emedy alone is barred in such cases, though the debt is not extinguished. Therefore, the landlord is entitled to evict the tenants even on the grounds of willful default as the tenants had not paid the large areas of rent of Rs. 15,700 (SIC)still outstanding. The result is, there are no me its in this revision and therefore the same is dismissed with costs. Time for vacating the premises one month.