IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 20TH OCTOBER 2010 / 28TH ASWINA 1932 RCRev..No. 146 of 2009() ------------------------------ RCA.19/2007 of DIST & SESSIONS COURT, ALAPPUZHA RCP.89/2004 of PRINCIPAL MUNSIFF, ALAPPUZHA .................... REVISION PETITIONERS/RESPONDENTS : ------------------------------------------------ 1. SREENIVASA REDDIAR, AGED 58 YEARS, S/O.LATE RAMANATHA REDDIAR, M/S.JYOTHY TEXTILES, PUTHANANGADI JUNCTION, ALAPPUZHA, RESIDING AT MULLACKAL, ALAPPUZHA. 2. KUMARASWAMI REDDIAR, AGED 56 YEARS, S/O.LATE RAMANATHA REDDIAR, M/S.JYOTHY TEXTILES, PUTHANANGADI JUNCTION, ALAPPUZHA, RESIDING AT MULLACKAL, ALAPPUZHA. BY ADVS. SRI.B.RADHAKRISHNA PILLAI SMT.S.AMBIKA DEVI SRI.P.U.SHAILAJAN SRI.R.JYOTHIKRISHNAN RESPONDENTS/APPELLANTS/PETITIONERS : --------------------------------------------------- 1. MUHAMMED IBRAHIM @ ASHIK,AGED 12 YEARS (MINOR) REP.BY HIS FATHER KABEER, THAIPARAMBIL,VELLAKKINAR WARD, ALAPPUZHA.(ADDRESS SHOWN IN RCA AS: MUHAMMED IBRAHIM @ ASHIK, AGED 12 (MINOR)REP.BY HIS FATHER KABEER, RESIDING AT SIVASADANAM,CHOCKALIN- GAPURAM, VELLAKKINAR WARD, ALAPPUZHA. 2. BALAKRISHNA REDDIAR, AGED 63 YEARS, S/O.(LATE) RAMANATHA REDDIAR, M/S. JYOTHI TEXTILES, PUTHANANGADI JUNCTION, ALAPPUZHA RESIDING AT MULLACKAL ALAPPUZHA. R.C.Rev..No. 146 of 2009() 2 3. B.SANJAY, AGED 33 YEARS, S/O.BALAKRISHNA REDDIAR, M/S.JYOTHY TEXTILES, PUTHANANGADI JUNCTION, ALAPPUZHA, RESIDING AT MULLACKAL, ALAPPUZHA. ADVS. SRI.E.RAFEEK FOR R1 SRI.GOKUL DAS V.V.H. FOR R1 SRI. P.B. KRISHNAN FOR R1 THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 20/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Pius C.Kuriakose & P.S.Gopinathan, JJ. ============================================ R.C.R.No.146 of 2009 ============================================ Dated this the 20th day of October, 2010. ORDER Pius C.Kuriakose, J. 1.Under challenge in this revision filed by the tenants under Section 20 is the judgment of the Rent Control Appellate Authority remanding the rent control petition to the Rent Control Court for deciding the rent control petition on the merits of the eviction grounds. The parties will be referred to as landlords and tenants. The first respondent landlord is a minor who is represented by his father in these proceedings. The building originally belonged to one Arifa Beevi, who is the grandmother of landlord. Arifa Beevi executed Ext.A6 settlement deed in favour of the RCR146/09 -:2:- landlord and the landlord claimed right over the petition schedule building on the strength of Ext.A6. The eviction grounds invoked were the grounds under sub-section 3 of Section 11 and the ground of arrears of rent under Section 11(2)(b). The need projected under Section 11(3) was of the mother of the landlord so as to occupy the building for conducting stitching centre-cum-garment making shop. The one contention that was firstly and prominently raised by the tenants was that Ext.A6 is a sham document. It was pointed out through the statement of objections that the original landlady Arifa Beevi had initiated two earlier proceedings invoking the same ground, but urging different needs for evicting the tenant from the building. On RCR146/09 -:3:- both those occasions, though the battle was fought upto the High Court, the Rent Control Court found that the need projected by the original landlord was not bona fide. Ext.A6 settlement deed is executed within a few minutes of the successful culmination of the second rent control petition instituted by the landlady. Ext.A6 has been brought into existence with the sole intention of instituting fresh rent control petition through the grandson. Title has not passed by Ext.A6. 2.Apart from contending as above, it was also contended that the need is not bona fide and also that the rent control petition is liable to fail by virtue of the second proviso to RCR146/09 -:4:- sub-section 3 of Section 11. The Rent Control Court conducted enquiry and in the enquiry the evidence consisted of Exts.A1 to A6, Exts.B1 to B15, Exts.X1 and X2, P.Ws.1 to 7 and C.P.W.1 and 2. Ext.B11 is the copy of the municipal assessment register pertaining to the petition schedule building and Exts.B12 and B13 were ownership certificates issued by the municipality. Exts.B14 and 15 documents were notice and receipts issued by the municipality indicating that in the assessment register Arifa Beevi herself continues to be the owner of the building. On appreciating the evidence, the learned Rent Control Court came to the conclusion that Ext.A6 document is only a sham or paper document. To arrive at such a conclusion, the learned Rent Control RCR146/09 -:5:- Court relied on Exts.B2 to B6 documents and Exts.B8 to B10 documents and also Exts.B8 to B15 documents, which show that there were previous unsuccessful rent control petitions instituted by the original landlady against the very same tenant and that in the municipal assessment register, the original landlady herself remained as the owner. However, the learned Rent Control Court held that in view of that finding the Rent Control Court did not enquire into the question whether the need is bona fide. However, the court went on to consider the applicability of the second proviso to sub-section 3. It was held that the tenant was unsuccessful in establishing that he is entitled for the protection under second proviso to sub-section 3. Yet, in view RCR146/09 -:6:- of the finding that Ext.A6 is a sham document, the rent control petition was dismissed. 3.The landlord preferred appeal and the appellate authority has, by the impugned judgment, set aside the finding of the Rent Control Court that Ext.A6 is a sham document. After doing so, on the basis of re- appreciation of the evidence, the appellate authority would confirm the finding of the Rent Control Court that the tenant is not entitled for the protection of the second proviso. An argument was raised before the appellate authority that the rent control petition is liable to fail by virtue of the first proviso to sub-section 3 of Section 11. As regards the argument, no decision was taken RCR146/09 -:7:- by the appellate authority. Noticing that the crucial question whether the need is bona fide was not answered by the Rent Control Court, what the appellate authority did was to remand the rent control petition to the Rent Control Court to take a fresh decision regarding the bona fides of the need and also regarding the applicability of the first proviso to sub- section 3 of Section 11. 4.In this revision, various grounds are raised challenging the judgment of the appellate authority. It was submitted by Smt.Ambika Devi that there was absolutely no warrant for the appellate authority to have interfered with the finding of the Rent Control Court that Ext.A6 is a sham document. On the basis RCR146/09 -:8:- of the judgment of the Division Bench of this Court in Joseph v. George Ittoop (2002 (3) K.L.T. 909) Smt.Ambika Devi argued that the competence of the Rent Control Court to enquire into the question whether the title deed relied on by the landlord is a sham document cannot be doubted. According to the learned counsel, when a contention is raised that the title deed relied on by the landlord is a sham one, the Rent Control Court is bound to decide that question. Smt.Ambika Devi supported the decision of the Rent Control Court that Ext.A6 is a sham document mainly on the reasons stated by the Rent Control Court itself. Apart from that, she also submitted that even after Ext.A6 was executed in favour of the petitioner in the rent control RCR146/09 -:9:- petition, the original landlady herself has executed a rent chit in favour of another tenant who was inducted into a portion of the building covered by Ext.A6. According to her, the original of Ext.A6 was not in the custody of the father of the landlord who represents him in the rent control proceedings. It was only a photo copy that was produced. The petitioner became compelled to produce the original during the course of trial. When the original landlady herself was retaining the custody of the original, that circumstance would show that the landlady never intended to part with the ownership. Smt.Ambika Devi also pointed out that Ext.A6 was never accepted and there is ample evidence to that effect. She would also argue that delivery of possession, RCR146/09 -:10:- which is an essential pre-requisite for completion of any gift, has also not taken place in this case. Smt.Ambika Devi would attack the judgment of the Rent Control Appellate Authority on the merits of the eviction grounds also. She submitted that clear findings have been entered into by the Appellate Authority to the effect that the need is not bona fide. Therefore, according to her, a remand will be an unnecessary exercise as the findings entered by the appellate authority regarding the bona fides will be binding on the Rent Control Court. She would assail the decision of the Rent Control Court on the second proviso to sub- section 3 of Section 11. She would explain that the tenant did not file an appeal against RCR146/09 -:11:- that finding as the ultimate decision taken by the Rent Control Court was in favour of the tenant. She requested that the Rent Control Court be directed to re-consider the question of tenants' eligibility for protection under the second proviso. She then submitted that, at any rate, the rent control petition should fail by virtue of the first proviso. She therefore requested that if this Court is confirming the remand order, the Rent Control Court may be directed to decide the first proviso also. 5.Smt.Ambika Devi once again reiterated that even after Ext.A6 was executed in favour of grandson, the landlady continued to prosecute O.S.618/01, which she had been filed earlier RCR146/09 -:12:- for enhancement of the rent. This conduct on the part of the landlady will show that Ext.A6 is a sham document. 6.All the submissions of Smt.Ambika Devi were resisted by Adv.Sri.P.B.Krishnan. Mr.Krishnan placed strong reliance on the judgment of the Division Bench of this Court in Aboobacker v. Girija (1995 (1) K.L.T. 553) to argue that just because a gift deed or settlement deed has been executed by a landlady, who was unsuccessful in evicting her tenant, the gift deed does not become sham. The learned counsel tried to distinguish the judgment in Joseph's case (supra) by submitting that the facts of that case and also the facts of the case in the judgment of the Supreme Court in RCR146/09 -:13:- Devi Das v. Mohan Lal (A.I.R. 1982 S.C. 1213) relied on in that case are different. Mr.Krishnan submitted that the implications of the judgment in Devi Das's case (supra) were considered by the Division Bench in Aboobacker's case (supra). Mr.Krishnan submitted that there is no infirmity about the finding of the learned appellate authority that Ext.A6 is not a sham document. Both the reasons assigned by the Rent Control Court for entering a finding that Ext.A6 is a sham document are insufficient. As regards the failure to effect mutation of names in the municipal assessment register, Mr.Krishnan submitted that mutation of names in the municipal assessment register is only a formality which can be complied with at any RCR146/09 -:14:- time. Title is conveyed by the express terms of Ext.A6. Sri.Krishnan submitted that O.S.618/01 was instituted much prior to Ext.A6. According to him, Ext.A6 does not enable the donee to recover the arrears of rent which had accrued till then. The donee has been allowed under Ext.A6 only to recover the future rent. The suit filed for enhancement of rent was dismissed for default. Mr.Krishnan submitted that an alternate contention was raised by the tenant on the basis of the room in the first floor of the building also covered by Ext.A6 that Ext.A6 is liable to fail by virtue of the first proviso. That contention by the tenant is that Ext.A6 is a genuine document at least as regards that portion of the building. Since the petition RCR146/09 -:15:- schedule building is tenented, actual physical possession could not have been taken by anybody. But, by the filing of the rent control petition by the petitioner through his guardian itself is indicative of his acceptance of the gift by the guardian on behalf of the minor landlord. Sri.Krishnan also relied on a subsequent judgment of the very same Division Bench in Sainaba v. Shamsudeen (2004(2) K.L.T.863). The ratio of the judgment in Sainaba's case (supra) is that a tenant has no locus standi to question the legality of a gift deed relied on by the landlord. Reminding us of the limits of the jurisdiction under Section 20 Sri.Krishnan submitted that there is no warrant for interference with the finding on Ext.A6 that RCR146/09 -:16:- the same is not a sham document. Mr.Krishnan further submitted that it is absolutely unnecessary to direct the Rent Control Court to go again into the question of second proviso to sub-section 3 of Section 11, as the finding regarding that issue was concurrently entered into and there is no infirmity about that finding. 7.We have anxiously considered the rival submissions addressed at the bar in the light of the judicial precedents cited by the learned counsel before the appellate authority and the Rent Control Court. Even though the question whether the Rent Control Court, a court of limited jurisdiction is competent to go into a larger question like whether a RCR146/09 -:17:- document of title is a sham document cannot be said to be res integra, in view of the judgment of this Court in Joseph's case (supra) we are proceeding on the basis that in appropriate cases it may be possible for the Rent Control Court to examine whether a document of title relied on by the landlord in respect of the subject-matter of the proceedings is genuine. The point to be considered therefore is whether the finding of the appellate authority that Ext.A6 is not a sham document is vitiated by any illegality, irregularity or impropriety. As argued by the learned counsel for the respondent, the Rent Control Court found that Ext.A6 is a sham document relying on two circumstances. The first circumstance was that the donor had RCR146/09 -:18:- earlier instituted two rent control proceedings unsuccessfully for evicting the tenant. The second one was that in spite of the execution of Ext.A6, in the assessment register maintained by the local authority, the donor herself continues to be the owner and no mutation of names had been effected in that register. Both these reasons, in our opinion, are not sufficient to justify a conclusion that Ext.A6 is a sham document. In order that a document can be described as a sham document, it will have to be held that despite the recitals in the document, no title passed in favour of the donee and that the document executed is a mere paper document. While deciding whether a gift deed is sham, questions as to whether the gift has been RCR146/09 -:19:- accepted will assume significance. Smt.Ambika Devi strained very much to convince us that Ext.A6 gift was never accepted by the donee and has not taken effect at all. Before us also the main plank of Smt.Ambika Devi's argument was that mutation of names has not been effected. As already stated, we are not at all impressed by that argument. Another argument was that possession was not taken over and hence the gift deed was not accepted on behalf of the minor. As for taking over of possession, it should be noticed that actual physical possession of the building is with the revision petitioners themselves as they are tenants yet to be evicted. But, then Ext.A6 pertains to other building portions also. One of the arguments addressed by the RCR146/09 -:20:- petitioners before the statutory authorities below was that the rent control petition is liable to fail as the landlord petitioner is in vacant possession of the first floor portion covered by Ext.A6. This argument, in our view, cuts at the very root of the contention that Ext.A6 is a sham document and implies an admission that, Ext.A6 to the extent it relates to the above portions, is a genuine document. As rightly pointed out by the learned appellate authority, the very filing of the rent control petition by the guardian of the donee representing him, itself is indicative of the acceptance of the gift by the donee. Apart from that there is still another strong circumstances which would show that Ext.A6 is a sham document. As already RCR146/09 -:21:- stated, the ground of arrears of rent was also invoked to evict the revision petitioners. Even the Rent Control Court passed an order of eviction on that ground. Perhaps on the basis of the admission of the revision petitioners that their status is that of the tenant with the objective of getting that order evicted the revision petitioners had already deposited the arrears of rent. In other words, the revision petitioners have virtually suffered an order of eviction on the ground under Section 11(2)(b) and that was in favour of the respondent who claims rights only under Ext.A6. 8.It is very clear to our mind that the finding of the appellate authority that Ext.A6 is not RCR146/09 -:22:- a sham document does not suffer any infirmity. 9.Now we come to the grievance voiced by Smt.Ambika Devi that the observation of the appellate authority regarding the bona fides of the claim under Section 11(3) will cause prejudice to the revision petitioners. We do not think so because under the impugned judgment the Rent Control Court has been directed to look into the question as to whether the need is bona fide. At any rate, we make it clear and direct that the Rent Control Court will not be influenced by any observation made by the Appellate Authority in the impugned judgment regarding the bona fides of the need projected by the respondent under Section 11(3). The question whether the need RCR146/09 -:23:- is bona fide will be decided by the Rent Control Court on the basis of the evidence already on record and also further evidence which may be adduced by the parties pursuant to the judgment of the appellate authority. 10.As for the question whether the rent control petition is liable to fail by virtue of the first proviso, we are of the view that the question is liable to be re-considered by the Rent Control Court, while making such re- consideration, the court will enquire as to whether any special reasons are available for the landlord to insist on evicting the revision petitioners from the building despite the landlord having possession of the room in the first floor. Parties may be permitted to RCR146/09 -:24:- adduce evidence on this aspect of the matter also. 11.The opposition of Mr.Krishnan against remanding the issue of second proviso to sub- section 3 of Section 11 was not without force. Yet we are of the view that the said question also should be re-considered by the Rent Control Court giving liberty to the tenant to adduce further documentary evidence regarding that question. 12.We notice yet another aspect of the matter. The monthly rent of Rs.75, which is being paid by the revision petitioners, fixed more than three decades ago for the building extending to about 400 sq.ft. in an important commercial RCR146/09 -:25:- locality in Alappuzha municipal town is very low. We feel that the fair rent of the building will not be less than Rs.1,500/- per month. Hence, we are of the view that prospectively with effect from 1.11.2010 the rent payable by the revision petitioners should be fixed at Rs.1,300/-. It is so fixed. But we clarify that the above fixation is tentative and it is open for either party to apply for regular fixation of fair rent, if they are aggrieved. 13.The result of the above discussions is as follows: 14.The judgment of the Appellate Authority is modified to the extent of directing the Rent RCR146/09 -:26:- Control Court to take a fresh decision regarding the bonafides of the need projected under Section 11(3) without being influenced by any observation contained in the impugned judgment of the appellate authority and after permitting both sides to adduce evidence. 15.The impugned judgment is modified also to the extent of directing the Rent Control Court to decide the question of applicability of the first proviso to Section 11(3) permitting both sides to adduce evidence and enquiring into the question whether there are special reasons for the landlords to insist on eviction of the tenants. Similarly, the impugned judgment is modified also to the extent of directing re- consideration of the issue whether the tenant is entitled for the protection of the second RCR146/09 -:27:- proviso to Section 11(3). Further it is ordered that regarding this aspect, opportunity is given to the parties to adduce documentary evidence only. The rent payable by the revision petitioners is fixed with effect from 1.11.2000 at Rs.1,300/- per month. The parties can apply for regular fixation of fair rent before the Rent Control Court, if they have grievance. The parties will enter appearance before the Rent Control Court pursuant to this judgment on 9.11.2010. Transmit the records forthwith to the Rent Control Court. Pius C.Kuriakose, Judge. sl. P.S.Gopinathan, Judge. RCR146/09 -:28:- The date “1.11.2000” occurring in line 6 of Page 27 of the order dated 20.10.2010 in RCR 146/2009 is corrected as “01.11.2010” vide order dated 23.11.2010 in I.A.2862/2010 in RCR 146/2009.