Rosi vs Shri Pillaiyar Mariamman Temple

S. Sardar Zackria Hussain, J.—The appellant in both the appeals are the defendant in O.S.Nos.2261 and 2269 of 1988 on the file of the

District Munsif Court, Coimbatore. The defendant are the tenants and lost their cases in both the Courts below.

The parties are described as per their rankings in the suits.

The plaintiff filed both the suits seeking relief of possession, arrears of rent and for future damages. The suit properties in both the suits are

wooden bunks bearing Door Nos.75 and 76 respectively with all the fittings and appurtenances situated in Anupparpalayam Pillaiyar and

Mariamman Temple compound in front of the Pillaiyar Temple.

The case of the plaintiff as set out in both the plaints are as follows:- The plaintiff is the owner of the suit properties. The defendant in both the

suits were given licence to run petty shops by placing wooden boxes in the suit properties in the year 1980 and the licence fee for the suit

properties are Rs.35/- each per month. Since the defendant in both the suits had taken a stand that they are only lessees and not licensees in the

exchange of notices, the defendant in both the suits are treated as tenants and the transaction as lease. The tenancy month is from the first to the

end of English calendar month and right from beginning, there were objections from the public and the devotees for running the petty shops in front

of the temple. Petitions were also sent to the temple authorities. The defendant in both the suits are irregular in payment of rent. Further the shops in

both the suits are required for the plaintiff. The defendant in both the suits fell in arrears of rent from July 1988 to September, 1988 at Rs.105/-

each. Notices were issued on 14.7.1988 revoking the licence given to the defendant in both the suits. Since the plaintiff is temple and is exempted

from the purview of the Rent Control Act, both the suits are filed seeking the above said reliefs.

Both the suits are resisted in the written statements filed separately admitting the tenancy and the quantum of rent of Rs.35/- per month for each

shop. The defendant in both the suits also paid advance of Rs.210/- for each shop and became tenants of the suit properties as per the lease

agreements dated 12.2.1980 on a monthly rent of Rs.35/- each payable on the 16th day of every English calendar month. Vacant sites measuring

8 feet x 6 feet each were leased to the defendant, in which the defendant in both the suits put up two wooden petty shops by spending Rs.10,000/-

each. Electricity service connection had also been obtained as per permission granted by the plaintiff. Both shops were also assessed by the

Municipal Corporation, Coimbatore City. Though the lease period was for one year from 15.2.1980 to 14.2.1981 in respect of both the shops,

the defendant in both the suits continued even thereafter. The plaintiff, as per the direction of the Deputy Commissioner of the Hindu Religious and

Charitable Endowment Board, demanded enhanced rent and refused to receive the rent from 16.6.1987 onwards in respect of the shop No.75

relating to O.S.No.2261 of 1988 and from 16.7.1987 onwards in respect of the shop No.76 relating to suit O.S.No.2269 of 1988. The

defendant in both the suits sent money orders on 9.7.1988 for a sum of Rs.420/- in respect of each shops for the period from June, 1987 to upto

date in respect of shop No.75 and from 16.7.1987 to 16.6.1988 in respect of shop No.76 and also caused lawyer notices dated 11.7.1988. The

money orders and the notices have been received by the plaintiff. The plaintiff sent notices dated 14.7.1988 which were suitably replied on

21.7.1988. Thereafter, the plaintiff received rent upto May, 1988 in respect of the shop No.75 and upto June, 1988 in respect of the shop No.76

and thereafter, the plaintiff refused to receive the rent and the rent sent through money orders for the months of June and July 1988 in respect of

the shop No.75 and July, 1988 in respect of the shop No.76 were refused.

Both the above suits along with two other suits filed by the defendant for deposit of rent were tried together by the trial Court. Considering the

evidence let in oral and documentary, the suits filed by the temple subject matter of these Second Appeals have been decreed granting reliefs

sought for and the suits filed by the defendant for deposit of rent in Court have been dismissed. The first appellate Court confirmed the common

judgment and decrees. Aggrieved against the common judgment and decrees the defendant filed Second Appeal Nos.255 to 258 of 1994, in

which Second Appeal Nos.257 and 258 of 1994 were already dismissed by this Court. The Common Judgment and decrees made in

A.S.Nos.74 and 72 of 1993 on the file of the III Additional Sub Court, Coimbatore, are under challenge in these Second Appeals.

Though no stand was taken in both the Courts below, it is urged in these Second Appeals that both the suits as filed are bad for want of notice

u/s 106 of Transfer of Property Act and it is the main bone of contention between the parties.

At the time of admission of both the Second Appeals, the following substantial questions of law were framed for consideration:-

(1) Whether the suit against a lessee without a valid termination of notice in accordance with Section 106 of the Transfer of Property Act is

maintainable in law?

(2) When the notice dated 14.7.1988 issued by the plaintiff directing the defendant to vacate the suit premises immediately could be considered as

a valid termination of notice u/s 106 of the T.P. Act?

(3) When the lessee in question is not covered under the provisions of Tamil Nadu Buildings (Lease and Rent Control) Act, whether the suit filed

by the lessee for permission to deposit the rent into the Court on the ground that the plaintiff had declined to receive the rent is not maintainable

before a competent Civil Court?

The substantial question of law No.3 is related to the appeals filed by the defendants in respect of the dismissal of the suits filed by them for

deposit of rent which were confirmed by the first appellate Court and which have been separately disposed of in Second Appeal Nos.257 and

258 of 1994.

The defendant in both the suits are tenants in respect of both wooden bunk shops subject matter of these appeals and the quantum of rent for

each shop is Rs.35/- per month. The defendant in both suits entered into lease agreements with the plaintiff temple under Exs.B-3 and B-17

respectively both dated 12.2.1980 in respect of vacant site measuring 8 feet x 6 feet each for the period of one year from 15.2.1980 to 14.2.1981

on a monthly rent of Rs.35/- each and further agreed to have only petty shops and also paid thereof advance amount of Rs.210/- under receipt

Exs.B-4 and B-18 dated 12.2.1980. Both of them after obtaining permission from the plaintiff, have put up two wooden bunk shops and after

getting electricity connection carrying on business in the said shops by obtaining necessary licence from the concerned authorities and also have

been paying property tax. They sent lawyer notices under Exs.B-13 and B-31 dated 11.7.1988 agreeing the tenancy and each of them sent rent to

the tune of Rs.420/- by money order in respect of the shops occupied by them for the period from July, 1987 to till date of notice by the defendant

Rosi and for the period from August, 1987 to till date of notice by Thangappan. The plaintiff caused lawyer notice under Ex.A-1(Original notice

Ex.B-15) dated 14.7.1988 to the defendant Thangappan and the lawyer notice Ex.A-6 (original Ex.B-33) dated 14.7.1988 to the defendant Rosi.

The defendant Thangappan replied under Ex.B-16 dated 21.7.1988 for Ex.A-1 and the defendant Rosi replied under Ex.B-34 dated 21.7.1988

for Ex.A-6. In the reply notices, the arrears of rent as claimed by the temple have been admitted by the defendant in both the suits and further

stating that the arrears of rent sent by money orders by each of them on 9.7.1988 have been received by the temple authorities on 18.7.1988.

The advocate-commissioner after inspecting the suit properties filed report Ex.C-1 and plan Ex.C-2. In his report, the advocate-commissioner

has stated that the two shops bearing door Nos.75 and 76 are situated on the West of Vinayagar temple, besides two other shops further West of

the suit shops. There is also another shop on the South of the temple.

The learned counsel for the appellant/defendant in both the suits argued that the suits are very much bad for want of notices u/s 106 of the

Transfer of Property Act and the notices sent under Exs.A-1 and A-6 dated 14.7.1988 cannot be treated or considered as notices u/s 106 of

Transfer of Property Act. The plaintiff is a public temple. The learned counsel for the appellant/defendant further argued that inasmuch as the

notices sent under Exs.A-1 and A-6 cannot be considered as notices u/s 106 of Transfer of Property Act, both the suits, subject matter of the

Second Appeals, are bad for want of notices u/s 106 of Transfer of Property Act and as such, not maintainable. Further, the learned counsel also

submitted that even the notices Exs.A-1 and A-6 are treated as notices u/s 106 of Transfer of Property Act, both have not satisfied as

contemplated u/s 106 of the Transfer of Property Act, in that it is not made clear in both the notices specifying the end of month by which the

tenancy is terminated. In support of such view, the learned counsel has relied on the following decisions:-

(1) M.P.S.R.T. Corporation - v. - Indore Divn. Bus Association reported in AIR 1987 M.P. 205 and

(2) Shanmugham - v. - Gobichettipalayam Municipality represented by its Special Officer reported in 1989 I M.L.J. 436.

The learned counsel for the respondent/plaintiff vehemently contended that notice u/s 106 of the Transfer of Property Act was not necessary,

in view of the fact, the defendant in both the suits, who were tenants in respect of both the suit shops, executed agreements under Exs.B-3 and B-

17 dated 12.2.1980 in respect of vacant site measuring 8 feet x 6 feet each for a period of one year from 15.2.1980 to 14.2.1981 on a monthly

rent of Rs.35/- each and further agreed to have only petty shops. The learned counsel further submitted that inasmuch as both the suit shops let out

are required by the plaintiff temple and the defendant in both the suits also failed to pay rent and the rent sent as per lawyer notices under Exs.B-13

and B-31 dated 11.7.1988 for a sum of Rs.420/- each admitting the arrears of rent for the period from June, 1987 to till the issuance of notice by

the defendant Rosi and for the period from 16.7.1987 to 16.6.1988 by defendant Thangappan, the order of the trial Court as confirmed by the

first Appellate Court need not be interfered with. The learned counsel also relied on the decision of the Apex Court in Samir Mukherjee - v. -

Davinder K. Bajaj and Ors., reported in 2001 (2) C.T.C. 358 , in which the Apex Court, in overruling the judgment of the Supreme Court in Ram

Kumar Das Vs. Jagadish Chandra Deb Dhabal Deb and Another, and in approving the judgment in Jagat Taran Berry Vs. Sardar Sant Singh, ,

held in paragraph Nos.13 and 14 thus:-

On perusal of these decisions we find the view that fiction in Section 106 was not intended to be controlled by Section 107 was due to

misunderstanding of the decision of this court in Ram Kumar Das Vs. Jagadish Chandra Deb Dhabal Deb and Another, as we have already

indicated that in Ram Kumar Das, AIR 1952 SC : 1952 (3) SCR 269 this court did not apply rule of construction of Section 106 as there was no

registered instrument. The High Courts taking that view have not laid down the law correctly.

In Jagat Taran Berry Vs. Sardar Sant Singh, , Delhi High Court considered the views expressed by different High Courts and correctly took

the view that there is no conflict between Sections 106 and 107 of the Act and for application of Section 106 a valid year to year lease shall be

deemed to exist only when it is created by a registered instrument; non-existence of a registered instrument to create such a lease will be itself

exclude Section 106.

The other decision relied on by the learned counsel is the decision of this Court in Thulasibalan and another - v. - Rajesh reported in 2001 (2)

CTC 71, in which this Court held in paragraph 10 thus:-

Ultimately, when once the period of lease agreed upon by the parties has come to an end, a new lease can come about only if the parties thereto

agree to such renewal. While the payment and acceptance of rents may be one of the factors to prove the creations of a new lease that perse will

not amount to a renewal. There must be indicators in the conduct of the parties which show that there was an offer to renew the lease by one party

and assent to such renewal on the side of the other. Without such an offer and an implied or explicit acceptance the new contract of lease cannot

be held to have been created.

The learned counsel for the respondent/plaintiff relying on the above said decisions, vehemently contended that inasmuch as the lease came to an

end as specified in Exs.B-3 and B-17 on 15.4.1981, despite the fact the rent has been received by the respondent/plaintiff temple inasmuch as no

renewal of the lease, the claim by the appellant in both the appeals as tenants holding over is not proper and therefore, the appellant are not entitled

for notice for termination of tenancy.

The appellant in both the appeals became tenants in respect of the vacant site as per the unregistered agreements entered with the plaintiff

temple under Exs.B-3 and B-17 for the period of one year from 15.2.1980 to 14.2.1981 and the period of lease came to an end on 14.2.1981. In

that view, there is no force in the argument advanced for the appellant that they continue as tenants holding over after the expiry of such period. It

follows the appellant cannot also claim notice of termination as contemplated u/s 106 of Transfer of Property Act.

The lease was terminated as per notices Exs.A-1 and A-6 dated 14.7.1988 stating that both the appellant have to vacate the premises

immediately. Such notices were issued as per complaint received from public that both the suit shops are hindrance to public in worshiping and by

going around the temple.

In the reply notices Exs.B-13 and B-31 dated 11.7.1988 sent by the appellant through their lawyers, it is clearly admitted that they did not pay

the rent from 1.8.1987 in respect of the shop bearing No.76 and from 16.6.1987 in respect of the shop bearing No.76 and sent Rs.420/- each by

way of money orders towards arrears of rent as per money order dated 9.7.1988. Therefore, it is clear that both of them are, for the reasons best

known to them, committed default in payment of arrears of rent.

Both the Courts rightly found that the appellant in both the appeals are irregular in payment of rent and on the basis of the report filed by the

advocate-commissioner that the suit shops run by the appellant are in hindrance to public in worshiping and in going around the suit temple. Both

the Courts also found that there is nothing to show that the rent was paid for the period from July, 1988 to September, 1988 and for subsequent

period and accordingly, it is found that the rent as claimed by the plaintiff temple was due by both the tenants and future damages payable by the

tenants at the same rate.

Inasmuch as the notices Exs.B-13 and B-31 were issued on 11.7.1988 terminating the lease and the suits have been filed on 25.10.1988, both

the notices constituted as valid notices u/s 106 of Transfer of Property Act which in fact are not required on the facts of the case, since there is

nothing to show that lease period was extended or renewed after expiry of the lease as per the agreements Exs.B-3 and B-17 dated 14.2.1980.

Therefore, no reason to interfere with the common judgment of the Courts below challenged in both the appeals.

In the light of the discussions made above, both the appeals are dismissed with costs, confirming the common judgment and decrees dated

23.9.1993 in A.S.Nos.74 and 72 of 1993 passed by the III Additional Sub Court, Coimbatore.