R. Govindan vs Usha Shanmugapriya

Sathiadev, J.—Defendant in O.S. No. 4798 of 1977 on the file of City Civil Court, Madras, is the appellant. Plaintiff is the sole respondent

herein. Plaintiff filed the suit for directing the defendant to deliver vacant possession of the property described in B schedule after demolishing the

superstructure put up by him, and to direct him to pay a sum of Rs. 6,400 towards damages with interest at 6% p.a., from date of plaint till date of

realisation, and for costs. Plaintiff in her plaint would state as follows: She is the owner of Door No. 54/A. Edward Elliots Road, Madras which

was bequeathed to her by late Mrs. T. Nallamuthu Ramamurthi by her will dated 21-6-1972 which has been probated in O.P. No. 145 of 1974

on the file of High Court. Madras on 21-4-1975. Defendant is in occupation of a portion of the property on the eastern side of the house

measuring about 1200 sq. ft. He was not a tenant under the plaintiff, and his possession cannot be treated to be of any proper origin. There was no

jural relationship of landlady and tenant between plaintiff and defendant. He claims to have been let into the possession by the Executrix appointed

under the will, and since the Executrix had no authority under the will to deal with the property to the prejudice of the rights of legatee, in law

whatever had been done by Executrix would not be binding upon plaintiff. After plaintiff was put in possession of the property by the Executrix,

defendant was called upon to deliver possession of the property, and he replied that he is a lessee of the property, and therefore vacant possession

cannot be demanded as long as he pays rents for the premises. He had put up a shed for running the business of motor repairs. He cannot set up a

right of tenancy against the plaintiff since he had no vestige of right to be in possession of the property. His possession not being lawful, and as the

running of the business as motor mechanic is a constant nuisance and annoyance to plaintiff, and the members of his family, defendant made a

gesture of compromise evidently to prolong his stay in the land, and plaintiff bona fide thought that he would be good to his word and vacate the

land as undertaken by him. A notice dated 11-5-1987 was ultimately sent calling upon him to deliver vacant possession. There was no reply nor he

surrendered possession. The cause of action for the suit arose on 21-4-1975 when probate was granted and on subsequent dates when plaintiff

made demand on the defendant to deliver vacant possession of the property and for damages. Hence, the suit came to be filed.

Defendant in his written statement would state as follows: It is true that the suit property belonged to one Mrs. Nallamuthu Ramamurthi, who

had left behind a will dated 21-6-1972 and with was probated, and that the mother of plaintiff Mrs. C.R. Ranganayaki was the Executrix under the

will. She leased out the disputed area of the property to defendant. By letter dated 5-2-1976, she had informed this defendant that she had handed

over possession of the property in his occupation to his daughter. A copy of the said letter was sent to the plaintiff. Hence, he started paying rent to

the plaintiff, but she refused to receive it. The claim that Executrix had no power to lease out the property is erroneous, because under S.307 of the

Indian Succession Act, executrix had power to even dispose of the immovable property vested in her. The suit as filed, claiming that defendant is a

trespasser is not maintainable. Plaintiff was well aware of the lease, and only with her knowledge, the suit property was leased out to the defendant

by the Executrix. Even at the time of probate of the will dated 21-6-1972 no objection was raised by the plaintiff against the action taken by

Executrix. Defendant has put up light roofings with wooden support for shade and is running an automobile workshop. The nuisance claimed does

not exist. An attempt was made to influence the Corporation authorities for removing the superstructure put up by him. It was only by approaching

the High Court, defendant could secure the necessary relief. A compromise was entered on 3-2-1977 in and by which, plaintiff agreed to provide

alternative accommodation in the building belonging to plaintiff''s aunt situated just behind the property under the defendant''s occupation, but she

went back upon her word. There is a clear admission therein that defendant was the tenant. Having accepted his status as tenant, she is estopped

from contending that there is no jural relationship of landlord and tenant between them, and therefore, the suit as filed is not maintainable. In

conclusion, in para 8, he would state that ""plaintiff has admitted the defendants as her tenant and under law he cannot be evicted without following

the due process of law"". Finally in para 9, he concludes by stating:

The defendant submits that he being a tenant the suit as framed itself is not maintainable and is liable to be dismissed with costs.

Both the trial Court and the learned Judge in A.S. No. 883 of 1980 having concurrently decreed the suit claim with damages at Rs. 3,200 and

with proportionate costs, this Letters Patent Appeal came to be filed.

Trial Court framed an issue as to whether the suit is maintainable. Learned Judge also framed a point for consideration as to whether the plaintiff

is entitled to possession. Therefore, the primordial point would be whether the suit filed for delivery of vacant possession of a site after removing

the superstructure admittedly erected by the defendant is maintainable under the facts and circumstances of the case.

Defendant has set up the plea that there has been a relationship of landlady and tenant as between plaintiffs and defendant. If such a jural

relationship exists, then the suit as framed would not be maintainable. The stand of the plaintiff as could be seen is that there was an illegal

occupation of the property by the defendant, and that whatever might have been done by the mother of the plaintiff as Executrix of the will of Mrs.

Nallamuthu Ramamurthi, would not be binding upon her. Learned Judge had held that in view of S.307 (2) (i) of Indian Succession Act, there

being no reference in the will regarding the right of the Executrix to sell or lease the immovable property, and as the testatrix had not conferred

upon the Executrix the power of leasing out the immovable property there is thus an implied restriction on the power of the Executrix in this regard.

She having not obtained prior permission of the Court to lease out the property of the defendant, what she had done would not bind the legatee-

plaintiff. This approach made is being assailed on the ground that he had misunderstood and misread S.307. The restriction contemplated against

the Administrator had been read, as if applicable to the executant. The decision rendered in Shew Bux Mohato and Others Vs. Ajit Nath Dutta,

had not been properly comprehended. Further it is claimed that this finding of the learned Judge is based on a recognition that the property had

been leased to defendant by the Executrix, and therefore, if it be held that the Executrix had the necessary authority and that her action is valid,

then the suit now filed by the legatee claiming that defendant is a trespasser, is not maintainable in law.

Therefore, it would be better to find out whether the learned Judge had committed any error in understanding the scope of S. 307 Indian

Succession Act. S.307 (2)(i) deals with what an Executrix can do. Ex.A2 will dated 21-6-1972 was executed by a Hindu woman. There is

practically no clause therein imposing any restriction upon the Executrix disposing of any immovable property. The right to lease out a property is a

leaser right that than of the power to sell the property. It is only in a case of such of these wills where there is a restriction put on the powers of the

Executor to dispose of immovable property, then alone under S.307(2) (i), it would be necessary for the Court granting probate to permit

Executor to dispose of immovable property, notwithstanding such a restriction existing therein. Learned Judge is categoric that there was no clause

therein specifically imposing a restriction upon Executrix to sell the property. Rather, he would state:

...The absence of any reference to sale or lease of immovable properties is significant The testatrix was a highly educated and knowledgeable

woman, she was the principal of the Queen Mary''s College and Lady Willington Training College and was also a Member of Parliament. In my

view, she has deliberately intended not to confer upon the executrix the power of sale or leasing out of immovable property. There is thus an

implied restriction on the power of the executrix to lease out the B Schedule property and the executrix, ought to have, therefore, obtained the

prior permission of the Court for leasing out the property to the defendant.

Learned Judge would further state that under the will, a right to borrow having been spelt out, it has to be implied that she had prevented sale of

property. This manner of understanding the scope and applicability of S.307 (2) (i) is contrary to clear language of the said section. In Shew Bux

Mohato and Others Vs. Ajit Nath Dutta, which was a case where the Executrix had leased out the property, it was held as follows:

...Clear language was required for restricting the power of the Executrix to deal with the property under S.90(1) of the Probate and Administration

Act.

It was further held that since there was no restriction on the power of the executrix to lease the property, the lease was binding on the plaintiff. This

decision squarely applies to the circumstances involved in the instant case. It is unfortunate that the learned Judge had simply stated that this

decision cannot apply to the facts of case, because Ex.A2 is a will in which no power is given to Executrix to sell the immovable property.

As provided in the section, there is no need to provide or include any clause in a will empowering the executrix to sell or lease out the property.

It is a right which is conferred upon the Executrix under the Succession Act. Such a power to sell the property has to be read in every will under

which an executor is appointed. It is only if the testator thinks that in spite of such a statutory right existing in the executor, he or she should restrict

it or prevent the Executor from exercising his or her statutory right, then a clause to that effect has to be incorporated in the will. When no such

specific excluding clause is found in a will, it is nightly improper to proceed on the basis that there is an implied restriction put on the Executrix. The

analysis made by the learned Judge on this aspect brings out the fact that he had applied the restrictions which are put upon an Administrator as

found in S.307(2)(ii)(b). The powers of an Executor being distinct and different from what an Administrator can do, in the light of what is found in

S.307 (2) (i) and it being identical to S.90 (1) of the Probate and Administration Act which has been considered in Shew Bux Mohato and Others

Vs. Ajit Nath Dutta, the one and the only conclusion that could be arrived at is to hold that the Executrix under Ex.A2 had the necessary authority

and power to sell the property if circumstances warrant. Therefore, the lesser right of leasing out the property was available and therefore, the

lease given by her on 1-1-1973 as reflected in Ex.B3 is binding upon the plaintiff.

Another point which needs consideration is, whether the Executrix had leased out the property to defendant or not. The plaint proceeds on the

basis that defendant is not a tenant of the property. The will having been probated in C.P. No. 145 of 1974 on the file of this Court on 21-4-1975,

under 227, all the intermediate acts of the Executrix from the date of the death of the testatrix till the date of grant of probate, are valid. At that

point of time, plaintiff had never protested or raised any objection about any of the acts of her mother in her capacity as the Executrix. In Ex.B1

dated 5-2-1976, the Executrix had addressed the defendant stating as follows:

You have so far been my tenant in respect of the mechanic shed, in about half ground on the eastern side of 54, Edwards Elliots Road, facing south

of the Road. I have, this day handed over possession of the area under your occupation to my daughter...

A copy of this letter was marked to the plaintiff. No immediate objection was taken protesting on what has been done by the Executrix. When

defendant offered to pay rent, plaintiff refused to receive it. In Ex.A4, a notice sent through Counsel by plaintiff on 7-7-1976, there is an admission

made therein that the Executrix had leased out the land to him in December, 1972, but what was claimed therein is that she was not empowered to

lease out the property. It was then claimed that he was in illegal possession as a trespasser. In spite of such a stand taken, on 3-2-1977, in a

memorandum of compromise (Ex.B2) entered into between the plaintiff and the defendant, it is stated in para 4 as follows:

The parties give up all their respective claims in regard to the occupation of this property on whatever account it may be, including arrears of rent.

It was further agreed that he would be given an alternative site belonging to Mrs. Saraswathi, a relation of plaintiff, but this arrangement did not get

through. This also shows that defendant was only a tenant of the property. In Ex.A1, another lawyer''s notice sent on 11-5-1977, it was claimed

that the Executrix had exceeded her authority and that plaintiff is only a trespasser. It is then stated:

...Even assuming without admitting any tenancy in your favour, the some is hereby terminated on the expiry of 31st May 1977...

In spite of this sort of incongruous stand taken in the said notice, in the plaint, no alternative stand had been taken. It had been filed treating the

defendant as a trespasser, and the suit was filed and no other. In spite of this stand taken in the plaint, Mr. R. Krishnamurthy, learned Advocate-

General, would plead on behalf of the plaintiff that in law, it is open to a plaintiff to come forward with contradicting stand and seek for alternative

relief. This is not a suit filed either for a declaration or partition. It is not open to a plaintiff to put forth a claim that defendant is a trespasser or if he

is a tenant, then to seek for a different relief. Certainly, if he is a tenant, the suit as filed is not maintainable, and therefore, the plaintiff could have

filed the suit only for one relief, it being for ejectment. Having filed it in that manner it is not open to the plaintiff to plead that in spite of the tenancy

made out, the suit as filed is maintainable. The tenant having been inducted into the property by the Executrix, and he having paid rent regularly,

after probate was ordered, and when the estate was handed over to the plaintiff, she is bound by the acts of the Executrix in view of S.227 of the

Indian Succession Act. When defendant is the tenant in law, the suit as filed claiming that he is a trespasser, is therefore not maintainable.

Hence, this appeal is allowed resulting in the suit being dismissed with costs, throughout.