http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5

CASE NO.:

Appeal (civil) 1811-13 of 1997

PETITIONER:

S.R. Radhakrishnan & Ors.

RESPONDENT:

Vs.

Neelamegam

DATE OF JUDGMENT: 31/07/2003

BENCH:

Brijesh Kumar & Arun Kumar.

JUDGMENT:

J U D G M E N T

ARUN KUMAR, J.

These appeals are directed against the judgment dated

18.10.1996 by a learned Single Judge of the High Court disposing of

three interconnected matters between the parties.

Briefly the facts are that the appellant Radhakrishnan had taken

on lease a property (hereinafter referred as the "suit property") on

rent from one Thanakachalam vide registered lease deed dated

2.2.1970. The lease was for a period of one year and the monthly

rent was Rs.35/-. It is stated in the lease deed that the building

constructed in the premises did not have a roof and the tenant had to

put up a roof as well as such other construction as was required for

running a printing press in the premises. The cost of providing

electricity and water connection in the premises and of improvements

in the building had to be calculated and it was to be paid by the

landlord to the tenant at the time of handing back vacant possession

of the premises by the tenant to the landlord. It appears that after

taking the premises on lease tenant carried out certain improvements

therein and started the business of running a printing press there.

The tenant took along with him in the business his two younger

brothers.

The property was purchased by the respondent-plaintiff vide

registered Sale Deed dated 16.6.1979. The purchaser served a

notice(Ex.B1) on the tenant on 26.11.1979 calling upon him to deliver

vacant possession of the suit premises. The tenant sent a reply

dated 7.12.1979 (Ex.B2) to the notice stating that he had nothing to

do with the property as Defendants No.2 and 3 were in possession

thereof. The landlord was asked to approach defendant Nos.2 and 3

for rent as well as for possession. The landlord sent another notice

dated 22.12.1979 (Ex.A3) to all the defendants calling upon them to

deliver possession of the suit premises. Ultimately the landlord filed a

suit for ejectment on 19.6.1980 impleading all the three brothers as

defendants. One fact which needs to be mentioned here is that on

30.5.1977 defendant No1, the tenant executed a release deed in

favour of his younger brothers i.e. Defendants No. 2 and 3

relinquishing his entire interest in the business of the printing press

which was carried on in the suit premises in their favour.

Section 9 of the Tamil Nadu City Tenants Protection Act, 1921

(hereinafter referred to as the "Act") gives a right to a tenant who has

put up super structure in the tenanted premises to purchase the same

at a price to be fixed by the Court. This application is to be made

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5

within one month after the service of summons in the eviction suit

instituted by the landlord against such a tenant. Relevant portion of

Section 9 is reproduced as below:

"1(a)(i) Any tenant who is entitled to

compensation under Section 3 and against

whom a suit in ejectment has been instituted

or proceeding under section 41 of the

Presidency Small Cause Courts Act, 1882,

taken by the landlord may, within one month

of the date of the publication of Madras City

Tenants Protection Amendment Act, 1979 in

the Tamil Nadu Government Gazette or of the

date with effect from which this Act is

extended to the municipal town, township or

village in which the land is situate or within

one month after the service on him of

summons, apply to the Court for an order that

the landlord shall be directed to sell for a price

to be fixed by the Court, the whole or part of

the extent of and specified in the application."

From the above provision it will be seen that the following

conditions are to be satisfied before a tenant is entitled to relief:

(i) He should be a tenant in possession of the land;

(ii) He should have erected a super structure on the land in

respect of which he would be entitled to claim compensation

under Section 3;

(iii) A suit or proceeding for eviction should have been taken by

the landlord against him;

(iv) He should have applied to the court for direction in that

regard within one month from the date of service of

summons in such suit.

Although the above quoted provisions of the Act do not

specifically mention that a tenant should be in possession of the

tenanted premises before he can move such an application, yet it

refers to Section 3 of the Act i.e., a tenant who is entitled to

compensation under Section 3. A reference to Section 3 makes it

clear that compensation is with respect to building erected by the

tenant on the tenanted premises and the compensation that he gets

is only for what he hands over to the landlord on ejectment.

It is the stand of the plaintiff-landlord that the tenant never paid

any rent for the suit premises. It is further clear from the pleadings of

the parties that the plaintiff never recognized defendants 2 and 3 as

tenants. In order to make out a case of tenancy defendant No.2

(who alone filed a written statement) tried to plead firstly, that

defendant No.1 had taken the premises on behalf of joint Hindu

family and therefore, defendants 2 and 3 were entitled to enjoy the

tenancy rights in the absence of defendant No.1; secondly, a plea

was sought to be taken that defendant No.1 had relinquished the

tenancy rights in favour of the defendants 2 and 3 and after

relinquishment defendants 2 and 3 started paying rent to the landlord.

It is however, admitted that there are no rent receipts regarding

payment of rent nor there is any proof of payment of rent coming forth

on the record. Both the pleas which have been raised in order to

establish tenancy in favour of defendants 2 and 3 are inconsistent

and mutually destructive. We find no substance in either of the pleas.

It has been meekly suggested in the written statement that the

premises was taken on rent by the first defendant who is the joint

family manager. This statement alone does not make out a plea that

the tenancy was on behalf of the joint family. Secondly, this plea

cannot stand scrutiny in view of the admitted fact that the father of

the defendants was alive at the time of tenancy and if at all the

tenancy was to be in favour of the joint Hindu family, it was the father

of the defendants who could have taken the premises on rent as

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5

manager/karta of the Joint Hindu Family. Thirdly, a reference to the

lease deed shows that the name of the tenant is mentioned in his

individual capacity and not as a member/karta of Joint Hindu family.

To test the veracity of such a plea it is also worth mentioning that in

his reply to the notice of eviction served on him by the plaintiff, the

defendant never made any such suggestion. Therefore, we find no

merit in the plea that the tenancy was taken for purpose of joint Hindu

family.

Next we examine the question as to whether defendants 2 and

3 became tenants by virtue of alleged assignment of tenancy rights

by defendant No.1 in their favour. There is nothing on record to

support this contention. The release deed which is relied upon by the

defendants for this purpose has no mention whatsoever about the

tenancy rights released by defendant No.1 in favour of defendants

No.2 and 3. The release deed only talks about business of printing

press. After the release deed, defendant No.1 ceased to have any

interest in the business of the printing press. There is no proof of

payment of rent by defendants 2 and 3 with respect to the suit

premises to the landlord. There is no rent receipt in their favour.

The landlord is not a party to the release deed. He is not bound by

any recitals contained in the release deed. Further it is settled law

that one does not become tenant by mere payment of rent even if

that be so. Simply because defendants 2 and 3 continued to be in

possession of the suit premises, it does not follow that they were in

occupation thereof as tenants. They had no right whatsoever with

respect to the suit premises.

Alternatively defendants 2 and 3 claimed to be tenants by

holding over. This argument is totally misconceived. We have found

that defendants 2 and 3 never became tenants in the suit premises.

Question of their becoming tenants by holding over does not arise.

The defendants filed an application under Section 9 of the Act

for purchase of the suit property. The said application was dismissed

by the trial Court. The lower appellate court however by a strange

process of reasoning came to the conclusion that defendants 2 and 3

had become tenants in the suit premises and therefore, their right to

purchase the property under Section 9 of the Act was upheld.

However, the High Court set aside that finding and rejected the

application. The High Court came to a definite finding that defendants

2 and 3 were not tenants of the suit premises, and therefore, they

could not maintain an application under Section 9. We have already

quoted the relevant portion of Section 9. As noticed earlier it is

mandatory for an application under Section 9 that the applicant

should be a tenant in possession of the suit premises. In view of our

upholding the finding that defendants 2 and 3 never became tenants

in the suit premises, they could not maintain an application under

Section 9 and such application on their behalf was therefore, rightly

rejected by the High Court. At this stage we may note it was pleaded

by defendants 1 to 3 in their application under Section 9 that only

defendants 2 and 3 were in possession and enjoyment of suit

property. It was also pleaded that defendants 2 and 3 were tenants

and were paying rent. The application further states that defendant

No.1 was impleaded only to avoid technical objections. Thus relief

was sought really by defendants 2 and 3. Said defendants have been

found by us to be not entitled to any relief. Section 9 is of no help to

them.

Whether defendant No.1 could maintain such an application?

Defendant No.1 was admittedly not in possession of the suit premises

and he had also ceased to be a tenant of the premises. Therefore,

he had no right to file an application under Section 9 of the Act.

The learned counsel for the appellants finally argued that The

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5

Tamil Nadu City Tenants Protection Act, 1921 is a socially beneficial

piece of legislation meant for protection of the interests of tenants and

its provisions should be liberally construed so as to advance the

object of the Act. This argument in the context of facts on record is

totally misconceived. Liberal interpretation does not mean that

benefit can be given contrary to the basic provisions of the Act or in

violation of the statutory provision. It has been pointed out above that

the appellants did not satisfy the basic ingredients of Section 9 and

therefore, they are not entitled to invoke the said provision for their

benefit.

Learned counsel for the appellant contended that actual

physical possession of the premises is not essential for exercising the

privilege conferred on a tenant by Section 9 of the Act. In support of

his contention he relied on Gummalapura Taggina Matada

Kotturuswami v. Setra Veeravva and others [1958 (1) SCR 968].

This was a case under the Hindu Succession Act, 1956. Section 14

(1) of the Act provides "any property by a joint Hindu family, whether

acquired before or after the commencement of this Act shall be held

by her as full owner thereof and not as a limited owner." In the

context of this provision it was held that the word "possession"

occurring in Section 14 (1) is used with widest connotation and it may

be either actual or constructive or in any form recognized by law. We

are afraid that the wide meaning given to the word possession in

Section 14 in the Act cannot have any relevance for purposes of

provision of Section 9 of the Tamil Nadu Act under consideration. As

already noted Section 9 read with Section 3 of the Act makes it

imperative that the tenants should be in possession of the premises

with respect to which the right to purchase is sought to be exercised.

If a tenant is not to hand over possession of the suit premises to the

landlord at the time of ejectment, there is no question of payment of

any compensation to him under Section 3 of the Act. If he is not

entitled to compensation under Section 3 of the Act he cannot invoke

Section 9 of the Act. Actual physical possession is essential in the

context of relevant provisions of the Act. In fact in

P.Ananthakrishnan Nair and another v. Dr. G. Ramakrishnan and

another 1987 (2) SCC 429( though cited by the learned counsel for

the appellant), it was held by this Court that the premises must be in

personal occupation of the tenant before he could exercise the right

under Section 9 of the Act. It was also observed by this Court that

"Section 9 confers an additional statutory right on a tenant against

whom suit for ejectment is filed to exercise an option to purchase the

demised land through the medium of court on fulfillment of conditions

specified therein. It is not an absolute right, as the court has

discretion to grant or refuse the relief for the purchase of the land.

The tenant has no vested right in the property, instead it is a privilege

granted to him by the statute which is equitable in nature. The policy

underlying Section 9 is directed to safeguard the eviction of those

tenants who may have constructed super structure on the demised

land, so that they may continue to occupy the same for the purposes

of their residence or business." From these observations it follows

that actual physical possession of the demised premises of the tenant

is sine qua non of an application under Section 9. In P.

Ananthakrishnan's case (supra) as per concurrent findings of fact

on record the tenant had discontinued its business in the suit

premises and only a small portion thereof had been retained by them

for keeping the accounts books etc. of the erstwhile business. Rest

of the land and the superstructure standing thereon had been in

occupation of sub-tenants since long. Thus the tenant was not in

actual occupation of most part of the demised premises. Therefore, it

was held that it would be unreasonable to direct the landlord to sell

the land to the tenants.

Our attention was invited to various decisions of the Madras

High Court taking the same view i.e. actual physical possession of

the demised premises is essential to maintain an application under

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5

Section 9 of the Act. As a matter of fact the learned counsel for the

appellant cited the case in Estate of T.P. Ramaswami Pillai v. A.

Mohd. Yousuf and others Madras Law Journal 1983 (2) which

takes the same view. We fail to understand how this authority helps

the appellant. In our view it fully supports the case of the

respondents.

We find no merit in these appeals The same are dismissed

with costs. Counsel's fee Rs.10,000/-.