Supreme Court quashes petitions; States that without proving the said testamentary instrument, the petitioners cannot not challenge the judgment of the High Court.
CASE TITLE – Mohideen Abdul Khadar (Dead) Through Lrs. Versus Rahmath Beevi (D) Thr. Her Lrs. And Ors
CASE NUMBER – 2023 INSC 969 (Neutral Citation)
DATED ON – 01.11.2023
QUORUM – Justice Aniruddha Bose & Justice Sudhanshu Dhulia
FACTS OF THE CASE
Petitions have been filed by two nephews of Mohideen Abdul Khadar, who died on 14.06.2019. He had interest in two blocks of lands, adjacent to each other located in Thenkasi Taluk, Kadayanallurpet within the Kadayanallur municipal limits in the State of Tamil Nadu. The petitioners bring this action in the capacity of legatees of said Mohideen. The dispute relates to title of Mohideen in respect of one block out of the two, described as first scheduled property in his plaint which triggered off the suit giving rise to this proceeding. The other part of the dispute is over retention of his possession and tenancy right in respect of second scheduled property, as described in his plaint. The first scheduled property measures approximately 15×15 sq. feet over which Mohideen claimed title whereas the second scheduled property measures approximately 15×18 sq. feet. There is some dispute on its measurement. In respect of the latter block of land, one Rahmath Beevi sued for delivery of vacant possession whereas Mohideen asked for protection of his possession in his suit. The original owner of both these properties was one Ameenal Beevi (since deceased) and she had conveyed the first scheduled property to Mohideen on 16.08.1989 through a deed of sale. So far as the second scheduled property is concerned, the case of the petitioners is that it was rented out to their predecessor by Ameenal Beevi only. Said Ameenal Beevi had conveyed this property to Rahmath Beevi (since deceased) on 30.05.1995 through another deed. Original Suit No. 172 of 1995 was instituted by Mohideen in the Court of Principal District Munsif Judge, Thenkasi. In this suit Mohideen claimed benefit of Tamil Nadu City Tenants Protection Act, 1921. This Statute gives certain additional protection to a class of tenants beyond what is contained in the Transfer of Property Act, 1882 (hereinafter ‘1882 Act’). Mohideen along with one Sahul Hameed, who also appears to have had been in occupation of part of the land conveyed to Rahmath Beevi by Ameenal Beevi had been served with notices to quit by Rahmath Beevi in terms of Section 106 of the 1882 Act both dated 11.08.1995. Mohideen wanted declaration of title to the first scheduled land and permanent injunction restraining the defendants from disturbing his peaceful possession over the second scheduled property. So far as status of first scheduled property is concerned, Mohideen’s title is not in much dispute. In their counter-affidavit, petitioners claiming to be the legal representatives of Rahmath Beevi (henceforth referred to as the respondents) have taken a plea that Mohideen himself had sold the first scheduled property on 06.12.2017 to his two nephews. They appear to be the petitioners before us. Rahmath Beevi’s (second defendant in O.S. No.172 of 1995, represented by her legal representatives before us) stand has been that she had become owner of the second scheduled property on the basis of the aforesaid registered sale deed. Rahmath Beevi, in the suit instituted by her (O.S. No.464 of 1995) in the same Court claimed relief of mandatory injunction seeking removal of Mohideen and Sahul Hameed from the properties specified by her. They were the first and the second defendants respectively in Rahmat Beevi’s suit. In this suit, she also claimed ground rent from the defendants in that suit. In her suit, she referred to four schedules to describe the suit property representing different interests. The first schedule in O.S. No.464 of 1995 matches with the first schedule of O.S. No.172 of 1995. As regards the second scheduled property, it was Rahmath Beevi’s case that it involved an area of 15×18 sq. feet. The third scheduled property in her plaint comprised of an area of 6.2×6.9 sq. feet within second scheduled land. As recorded in the judgment of the Trial Court in respect of the third scheduled property, Sahul Hameed was the tenant thereof, but he did not contest the suit. It was held by the Trial Court that three-fourth portion of the third scheduled property was within the second scheduled land and the rest of the third scheduled property fell in the first scheduled land. Said Sahul Hameed, as it appears from the cause title of this petition, is the son of Rahmath Beevi. It was the case of Rahmath Beevi that Mohideen had taken on rent the fourth scheduled land from Ameenal Beevi and put up a “temporary shop” there. The pleading in the plaint gives an impression that it was a temporary structure. In her suit, Rahmath Beevi wanted vacant possession of the fourth scheduled property and removal of the construction set up thereon. The Trial Court granted declaration in favour of Mohideen in respect of first scheduled property. His claim on second scheduled property was dismissed.
ISSUES
- Whether the notice under Section 106 of the 1882 Act is valid.
- Whether the petitioners were entitled to protection of the Tamil Nadu City Tenants Protection Act or not.
COURT ANALYSIS AND JUDGEMENT
Mohideen appealed against the judgment and decree in both the suits. The First Appellate Court sustained the Trial Court’s finding in O.S. No.172 of 1995 as regards first scheduled property, but the Trial Court’s judgment on second scheduled property was set aside. The judgment and decree of the Trial Court in O.S. No.464 of 1995 was set aside. Both the Trial Court and the First Appellate Court had dealt with the matters by a common judgment (of each Court). Rahmath Beevi had filed two appeals before the High Court under Section 100 of the Code of Civil Procedure, 1908 and the High Court also disposed of both the appeals by a common judgment delivered on 25.09.2018. It is this judgment which is assailed before the Hon’ble Supreme Court by the petitioners. Respondents argued that without proving the said testamentary instrument, the petitioners could not challenge the judgment of the High Court in the capacity of legatees. It was further argued that tenancy could not be a subject of disposition under any testamentary instrument. So far as locus of the petitioners is concerned, the Supreme Court had allowed their plea for substitution by an order passed on 31.08.2021. Now by proceeding on the basis that the petitioners were substituted would not determine finally their locus to maintain the present petitions deriving their right from the said testamentary instrument. But as the court have held against the petitioners on merit, the Hon’ble Supreme Court did not find the need to examine the issues. The present petitions were accordingly dismissed.
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Judgement Reviewed by – Gnaneswarran Beemarao