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K.M. AKBAR TRUST, BANGALORE V/S SHAKTHI ENTERPRISES, BANGALORE & OTHERS, decided on Wednesday, March 22, 2017.
[ In the High Court of Karnataka, Writ Petition No. 41069 of 2014 (GM-CPC). ] 22/03/2017
Judge(s) : B. VEERAPPA
Advocate(s) : Niloufer Akbar, G. Janardhana, M.J. Alva, A.M. Suresh Reddy, Indo Legal Inc, Suhas P. M/s. Ravi & Ravi, Anusha A. A. Madhusudhana Rao, R. Prasanna.
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  "2017 (5) KantLJ 10"  ==   ""  







    B. Veerappa J.1. The petitioner who is plaintiff before the Trial Court has filed the present writ petition against the order dated 31st July 2014 passed by the XII Additional City Civil Judge Bangalore on I.A. No. II in O.S. No. 8071 of 2013 dismissing the applications seeking direction to respondents 2 to 7 to deposit the rents in Court payable to defendant 1 in respect of the suit schedule property from 1-10-2013 till disposal of the suit.2. The petitioner/plaintiff filed a suit for declaration to declare that the 1st defendant has committed breach of covenants as per Clauses 5(ii) 5(v) (5) and 7(a) of the lease deed dated 23-11-1983 thereby losing the right of continuing its possession as a lessee in the suit schedule property; to direct the defendants to deliver actual vacant physical possession of the suit schedule property and the 1st defendant to pay damages of Rs. 10 lakhs per month from the date of the suit till the date of handing over vacant possession of the suit schedule property to the plaintiff.3. It is the contention of the plaintiff before the Trial Court that it is the Trust created under the trust deed dated 15-5-1986 consisting of six trustees viz. (i) Ms. Farzana Akbar; (ii) Sri A. Rahman Gul Mohammed; (iii) Ms. Shaheen Akbar; (iv) Ms. Firdos Akbar; (v) Ms. Khudsia Akbar; and (vi) Ms. Niloufer Akbar who is representing the plaintiff/petitioner as she is empowered to do so. The contention of the plaintiff/petitioner is that the Trustee 2 was originally the owner of the property bearing No. 94/3 Infantry Road Bangalore and on 15-5-1986; he had created the plaintiff-Trust under the Trust Deed under which the said property vested with him and has been morefully described in the schedule. Before creating the Trust he had leased out the said property to the 1st defendant under a lease deed dated 23-11-1983 registered on 28-2-1984 for a specific period of 30 years with effect from 1-3-1984. The first defendant was then represented by one of its Partners T.M. Belliappa. Thereafter the 1st defendant-Firm has been reconstituted under the partnership deed dated 31-3-1996 and is represented by Partners 1(i) to (iv). It is the contention of the plaintiff that after it has become the owner of the suit schedule property as per the trust deed the same has been brought to the notice of the 1st defendant and accordingly the 1st defendant has attorned the tenancy in its favour and also paying the monthly rents accordingly and there is no dispute in that respect. It is the further contention of the plaintiff that now the 1st defendant is liable to pay a monthly rent of Rs. 3 850/- for the last slab of the lease period 26 to 30 years and now accordingly it is paying the said rent per month to it.4. It is the further contention of the plaintiff that since it has learnt from the BBMP Authorities that the 1st defendant has not paid the property taxes for the building constructed on the suit schedule property to an extent of Rs. 1 22 726/- for the year 2010-11; Rs. 1 10 467/- for the year 2011-12; Rs. 89 530/- for the year 2012-13 in all amounting to Rs. 3 22 723/- it issued a legal notice dated 25-2-2013 to the 1st defendant calling upon to clear the same within the period of three months and also the dues to the BESCOM and BWSSB authorities and to furnish details of the same to it failing which it would be constrained to proceed against it in a Court of Law seeking for its eviction for breach of the conditions provided under the lease deed. Defendant 1 sent a reply on 10-4-2013 stating on one breath that the plaintiff need not worry about clearance of dues and it would clear the same and in another breath that it has already cleared the dues to the Corporation and would further agree to furnish the details of the tenants who are in occupation of the suit schedule property as a tenant under it at the relevant point of time as they are not required at this stage and so far as the tax for the period the year 2012-13 is concerned it would clear the same after settling the dispute with the BBMP etc. Therefore filed a suit for the relief sought for.5. Defendant 1 filed its written statement denying the plaint averments and contended that there is no jural relationship of landlord and tenant between it and the plaintiff and there is no cause of action for filing the above suit and hence the plaint is liable to be rejected under Order 7 Rule 11 (a) of the Code of Civil Procedure 1908. It further contended that the plaintiff is a mere rent collector who is authorised and permitted to collect and receive the rent for and on behalf of the landlord Mr. A. Rahaman Gul Mohammed; and landlord of the property M.A. Rahaman Gul Mohammed is a necessary and proper party in the above suit and hence the plaint is liable to be rejected for non-joinder of necessary party under Order 1 Rule 9 of the Code of Civil Procedure; that there is no privity of contract whatsoever between the plaintiff and defendant 1 and the plaintiff is not a party to the lease deed dated 23-11-1983. Admittedly the lease period is for 30 years from 1-3-1984 which will be expiring on 28-2-2014 but the suit is prematurely filed on 5-11-2013 even before the expiry of the period prescribed; that the tenancy of defendant 1 has not been terminated in accordance with law and statutory prescription and without terminating the tenancy the plaintiff has no locus standi to file the suit etc. and hence sought for rejection of the suit.6. When the matter was posted for plaintiff's evidence at that stage the plaintiff filed I.A. No. II under Section 151 of CPC to direct defendants 2 to 7 to deposit the rent payable to defendant 1 in respect of the suit schedule property from 1-10-2013 till disposal of the suit. The said application was resisted by defendant 1 alone.7. The Trial Court considering the application and objections by the impugned order dismissed I.A. Nos. II and III and hence this writ petition is filed only against the order passed on I.A. No. II.8. I have heard the Party-in-Person - petitioner and learned Counsel for the parties to the lis.9. Ms. Niloufer Akbar party-in-person appearing on behalf of the petitioner contended that the impugned order passed by the Trial Court rejecting I.A. No. II is erroneous and contrary to the material on record. She further contended that the Trial Court has failed to notice that the direction sought by the plaintiff/petitioner against defendants 2 to 7 dismissing the application on the ground that it has not sought for the said relief in the plaint is a serious error committed by the Trial Court; that the 1st respondent is not having any right to collect the rents from respondents 2 to 7 and they are liable to pay rents to the petitioner and the said aspect has not been taken into consideration by the Trial Court. She further contended that the 1st respondent himself has admitted in the written statement that the lease period was for a period of 30 years from 1-3-1984 and accordingly it has come to an end by February 2014 and it has no authority to continue to collect the rents from the sub-tenants who are respondents 2 to 7 and hence the Court below ought to have allowed the I.A. No. II filed by the petitioner/plaintiff. Therefore the impugned order passed by the Trial Court is contrary to the material on record and admitted pleadings between the parties. Hence sought to allow the present writ petition by setting aside the impugned order.10. Per contra Sri M.J. Alva learned Counsel appearing for respondent 1(4) sought to justify the impugned order passed by the Trial Court and strenuously contended that the 1st defendant in the written statement as well as in the objections filed to I.A. has taken a specific contention that the plaintiff is not the owner of the suit schedule property and Mr. A. Rahaman Gul Mohammed is the owner of the property and therefore the Trial Court is justified in dismissing the application and hence he sought to dismiss the present writ petition.11. Sri Suhas P learned Counsel appearing on behalf of Ravi and Ravi for respondent 4 submits that there is no specific prayer in the plaint against respondent 4. Therefore the impugned order passed by the Trial Court dismissing the application is just and proper.12. Smt. Anusha A learned Counsel appearing on behalf of Sri A. Madhusudhana Rao for respondent 7 submits that the 7th respondent has already deposited the rent before the Trial Court and accordingly a memo to that effect has also been filed.13. Respondents 3 and 5 are not represented.14. In view of the aforesaid rival contentions urged by the Party-in-Person and learned Counsel for the parties the only point that arises for consideration in the present writ petition is :Whether the Trial Court is justified in passing the impugned order rejecting I.A. No. II filed by the petitioner/plaintiff directing defendants 2 to 7 who are sub-tenants under the 1st defendant to deposit the arrears of rents payable to defendant 1 in respect of portion of their occupation in the facts and circumstances of the present case ?15. I have given my thoughtful consideration to the arguments advanced by the Party-in-Person and the learned Counsel for the parties and perused the entire material on record carefully.16. It is the specific case of the petitioner/plaintiff before the Trial Court that the Trust is the owner of the property in question and it is entitled to receive the rents in terms of the lease deed executed in favour of defendant 1 on 28-2-1984 for a specific period of 30 years with effect from 1-3-1984. Thereafter the trust is entitled to receive the rents from the tenants after the expiry of lease period of 30 years and since the said period is over the 1st respondent has no authority to continue to collect the rents from the sub-tenants who are respondents 2 to 7 and therefore filed a suit for declaration that the lease has come to an end and it is entitled for damages from the 1st defendant-respondent 1.17. Defendant 1 in the written statement has specifically denied the very jural relationship of landlord and tenant between itself and the plaintiff. It is also contended that one Mr. A. Rahaman Gul Mohammed is the landlord and not the petitioner-trust. The documents produced in the present writ petition along with I.A. filed under Rule 12 of the Writ Proceedings Rules 1977 show that the Author of the Trust has created a Family Trust on 15-5-1986 and one of the Family Trustee Sri A. Rahaman Gul Mohammed has executed a Trust Deed in favour of seven persons including him (A. Rahaman Gul Mohammed) one of the Trustees who are as under :1. Sri A. Rahman Gul Mohammed S/o K.M. Akhthar aged about 28 years represented by his Power of Attorney Holder Sri K.M. Akhthar 2. Smt. Farzana Akbar aged about 27 years;3. Smt. Nilofer Akbar aged about 23 years;4. Smt. Shaheen Akbar aged about 22 years 5. Smt. Firdos Akbar aged about 20 years 6. Smt. Khudsia Akbar aged about 19 years 7. Sri K.M. Akbar aged about 62 years.18. It is also not in dispute that the M/s. K.M. Akbar Trust the present petitioner has issued a notice to defendant 1 on 25-3-2013 stating that Mr. A. Rahaman Gul Mohammed the original owner has created a Family Trust in its name in which Sri K.M. Akbar is one of the Member of the Trustee and he is calling upon defendant 1 to pay all rents taxes charges duties burdens assessments etc. whatsoever to the Government or to the Corporation or to any other local or other body or Authority in response to which the 1st defendant by a reply dated 10-4-2013 wherein at para 2 has stated that the averments made in Para 2 of your notice which is wrongly mentioned as para 7 in your notice are all substantially correct. Our client has already accepted your client as landlord and paying the rent regularly to K.M. Akbar Trust.19. In view of the above said facts and subsequent developments before filing of the suit and now the Trial Court has not considered the very legal notice issued by defendant 1 admitting the Trust as the owner and landlord and paying the rents regularly to K.M. Akbar Trust wherein K.M. Akbar is one of the Trustee holding that the tenancy of the suit property has been created in favour of defendant 1 formed by Sri A. Rahman Gul Mohammed in respect of the suit schedule property. The Management Trust of the plaintiff-Trust on the basis of the lease agreement due to violation of the terms and conditions of the lease agreement said to have terminated the tenancy of the 1st defendant. Accordingly the tenancy of the 1st defendant was terminated by issuing notice on 25-5-2013. The plaintiff has not claimed arrears of rents except the damages at the rate of Rs. 10 00 000/- (Rupees Ten Lakhs only) per month from the date of suit till the date of handing over of vacant possession of the suit schedule property to it.20. The Trial Court while considering I.A. No. II filed by the plaintiff has not taken into consideration the fact that there is dispute between the landlord and the tenant i.e. 1st defendant and it ought to have directed all the tenants-defendants to deposit the rents before the Court and ultimately whoever succeeds in the suit would be entitled to receive the rents deposited by the tenants. The dispute between the members of the Trust cannot be used as advantage by the defendants who are admittedly tenants. The 1st defendant has not denied that he is a tenant under Sri A.R. Gul Mohammed under the lease deed and according to him the lease deed expires on 28-2-2014. Now there is a dispute between the members of the Trust who are family members. Therefore the Trial Court ought to have directed the defendants-tenants to deposit the rents before the Court and hence the impugned order passed by the Trial Court is erroneous contrary to law and material on record. The defendants-tenants cannot take advantage of the dispute between the members of the family-Trust regarding ownership and cannot avoid paying of rents. It is their duty to deposit the rents before the Trial Court and ultimately whoever succeeds in the suit are entitled to receive the same.21. In view of the facts and circumstances of the present case it is appropriate to rely on Section 109 of the Transfer of Property Act 1882 which reads as under :109. Rights of lessor's transferee.-If the lessor transfers the property leased or any part thereof or any part of his interest therein the transferee in the absence of a contract to the contrary shall possess all the rights and if the lessee so elects be subject to all the liabilities of the lessor as to the property or part transferred so long as he is the owner of it; but the lessor shall not by reason only of such transfer cease to be subject to any of the liabilities imposed upon him by the lease unless the lessee elects to treat the transferee as the person liable to him :Provided that the transferee is not entitled to arrears of rent due before the transfer and that if the lessee not having reason to believe that such transfer has been made pays rent to the lessor the lessee shall not be liable to pay such rent over again to the transferee.The lessor the transferee and the lessee may determine what proportion of the premium or rent reserved by the lease is payable in respect of the part so transferred and in case they disagree such determination may be made by any Court having jurisdiction to entertain a suit for the possession of the property leased.22. A plain reading of Section 109 of the Transfer of Property Act makes it manifest that once the premises is transferred in favour of the respondent by the previous lessor the respondent becomes the lessor and becomes entitled to receive rent in terms of the lease by operation of Section 109 of the Transfer of Property Act 1882. It is relevant to state that no attornment of tenancy is necessary in law as Section 109 of the Transfer of Property Act creates a statutory attornment. The section does not insist that transfer of the lessor's rights can take effect only if the tenant attorns. Attornment by the tenant is unnecessary to confer validity to the transfer of the lessor's rights. However the section protects payment of rent by the tenant to the transferor without notice of the transfer. The transfer of ownership of the premises to the respondent by the previous lessor has resulted in statutory attornment by the tenant in favour of the lessor's transferee i.e. the respondent herein and consequently jural relationship of landlord and tenants. By operation of Section 109 of the Transfer of Property Act the transferee steps into the shoes of the lessor and becomes entitled to all the rights of the lessors.23. The definition of 'Landlord' under Section 3(e) of the Karnataka Rent Act 1999 reads as under :3. (e) Landlord means a person who for the time being is receiving or is entitled to receive the rent of any premises whether on his own account or on account of or on behalf of or for the benefit of any other person or as a trustee guardian or receiver for any other person or who would so receive the rent or to be entitled to receive the rent if the premises were let to a tenant;24. The expression 'entitled to receive the rent' and 'to be entitled to receive the 'rent' in the aforesaid definition signify that the transfer of interest of the landlord in favour of any other person is not prohibited. Hence the right of the transferee under Section 109 of the Transfer of Property Act is not curtailed/modified by the Rent Act. Thus a transferee of a lessor is entitled to collect rent in terms of the lease as of right and becomes landlord under Section 3(e) of the Rent Act. The tenant cannot dispute the right of the transferee landlord to maintain an eviction petition under the Rent Act or to claim rent.25. This Court in the case of Chikkaiah v. Parvathamma 1974 (1) Kar. L.J. Sh. N. 247 has held as under :Where the lower Courts had found that the petitioners were tenants of the premises under the respondent they are bound to pay or deposit arrears of rent and without such payment or deposit they are not entitled to prosecute or contest the revision in the High Court (CRP No. 843 of 1964 foll.)26. For the reasons stated above the point raised in the petition is answered in the negative holding that the Trial Court is not justified in dismissing the application - I.A. No. II in view of the admission made by the 1st defendant in the reply dated 10-4-2013 that our client has already accepted your client as landlord and paying the rent regularly to K.M. Akbar Trust.27. At this stage Sri M.J. Alva learned Counsel for the 1st respondent submits that since Mr. A. Rehaman Gul Mohammed has filed an application for impleading before the Trial Court contending that he is the owner of the property and he is entitled to receive the rents. In the interest of justice it is suffice to direct defendants 2 to 7 who are respondents 2 to 7 and are sub-tenants under the 1st respondent to deposit the rents before the Trial Court subject to result of the suit pending between the parties to the lis.28. The learned Counsel Sri Alva also submitted that some of the tenants have already vacated. Hence the tenants who are existing as on today shall deposit the rents before the Trial Court till they vacate or till further orders are passed by the Trial Court and if any of the tenants have already vacated it is open for them to approach the Trial Court by filing appropriate application.29. In view of the aforesaid facts and circumstances of the case the writ petition is allowed and the impugned order dated 31-7-2014 passed in O.S. No. 8071 of 2013 by the XII Additional City Civil Judge Bangalore dismissing the application - I.A. No. II is quashed. Accordingly I.A. No. II is allowed in part directing the defendants-tenants to deposit the rents from the date of filing of the application till the disposal of the suit before the Trial Court which will always be subject to the result of the suit.30. Since there is dispute between the members of the Family with regard to ownership the Trial Court is directed to dispose of the suit on the basis of the oral and documentary evidence to be adduced and produced by the respective parties in accordance with law as expeditiously as possible without being influenced by any of the observations made in this writ petition.Ordered accordingly.