TMI Blog1999 (8) TMI 955X X X X Extracts X X X X X X X X Extracts X X X X ..... ve. The tenant has been residing in the building of the landlord for nearly half a century by now, (a few more years from now may mark the golden jubilee year of the tenancy). When the building was originally leased in 1956, it was in the ownership of appellants father. He executed a gift deed in favour of his daughter (the appellant) on 2-8-1980, as per Ext.B-10. But the appellant, bereft of patience to wait for the expiry of the moratorium period of one year, hastened to file the petition for eviction of the tenant on 1- 7-1981 under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, for short the Act. Appellant made an endeavour to circumvent the quarantine prescribed under the sub-section on the premise that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... smissed the petition of the landlord. The order so passed by the Appellate Authority remained undisturbed in the revision filed by the landlord before the District Court which was then the revisional authority. However, a learned Single Judge of the High Court of Kerala, while disposing of a writ petition filed under Article 227 of the Constitution expressed inclination to approve the contention that the petition filed by the landlord is not liable to be expelled solely on the strength of the ban contained in the third proviso to Section 11(3) of the Act. The observations made by the learned Single Judge, on that score, are the following: I find some merit in the contention that after the tenant had, subsequent to the transfer inter vivo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atever is said or found on the merits would then be without jurisdiction. High Court should have first decided the question of maintainability of the petition and only if that point was found in the affirmative the merits need have been gone into. Thus the question is whether appellants right to recover possession of the building arose under Ext.B.10 Gift Deed or under the new lease agreement Ext.A.1 dated 18.8.1980. No doubt appellant got the right to recover possession when she got the gift executed by her father. The contention is that the said lease came to an end when the new lease agreement was executed. The aforesaid contention is based on Section 111(f) of the Transfer of Property Act on the premise that there was an implied surr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 449. Surrender by change in nature of tenants occupation. A surrender is implied when the tenant remains in occupation of the premises in a capacity inconsistent with his being tenant, where, for instance, he becomes the landlords employee, or where the parties agree that the tenant is in future to occupy the premises rent free for life as a license. An agreement by the tenant to purchase the reversion does not of itself effect a surrender, as the purchase is conditional on a good title being made by the landlord. In Hill and Redmans Law of Landlord and Tenant (16th Edn.) at page 451 it is observed that a surrender does not follow from a mere agreement made during the tenancy for the reduction or increase of rent, or other variation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vivos, to distinguish it from a case of succession or devise. So the landlord had to wait for a still further period if he were to root his right in Ex.A1 to recover possession of the building. As the third proviso to Section 11(3) disentitles a landlord from applying for eviction of the tenant before the expiry of the quarantine period, the petition filed by the landlord in this case has to be dismissed only on that ground. Any observation made on the merits of the case in the proceeding based on such a non-maintainable petition must stand erased from judicial notice. If the present landlord files a new petition for eviction under the Act, as the ban period is over, the same has to be considered and disposed of uninfluenced by any of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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