Valliammal Vs. S. Arumugha Gounder and Anothe: 1998crilj3287 R - Court Judgment

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property - notice - sections 9 and 11 of tamil nadu city tenants protection act, 1955 - suit for recovery of possession - whether suit was bad for want of notice under section 11 - plaintiff had not issued notice under section 11 calling upon defendants to vacate and offering to pay reasonable compensation for superstructure put by tenant - failure on part of tenant to file application under section 9 within prescribed time after institution of suit was no ground to hold waiver of notice - suit for recovery of possession failed for want of notice under section 11. - - kalianna gounder and the first defendant had failed to pay the rent due to the landlord from 6.1.1967 till date and they are liable to pay the rent at the rate of rs. the suit is therefore bad for want of section 106 notice. and whether the suit is bad for want of said notice? a8 will was executed by late muthusamy gounder while he was in a sound and disposing state of mind, that the defendant is entitled to the protection under the madras city tenants protection act, that the suit is therefore bad for want of section 11 notice that the suit is also not maintainable because the extent claimed is not actually available with the first defendant. 13. at the time of the admission of the second appeal, following substantial questions of law have been framed for consideration :(i) whether the first appellate court was right and justified in law in holding that the suit was bad for want of notice under section 11 of the city tenants protection act, having regard to the admitted facts and circumstances of the case and without considering whether the conduct of the defendant no. on other cases when a third party stranger like the first defendant makes a passing reference in his defence with regard to the truth and validity and the mental status of the testator at the time of the making of the will, the court must satisfy itself by examining the attestators because as per the hindu succession act and the indian evidence act, will is a document by law required to be proved by, atleast by examining one of the two attestors. 30. the arguments advanced on behalf of the respondent is that the defendant has not specifically pleaded in his written statement that the suit is bad for want of section 11 notice. that was also a case where the defendant has not pleaded in the suit for recovery filed by the landlord that the suit is bad for want of section 11 notice. it was also held that even where the tenant had failed to file a petition under section 9 seeking the benefits of the city tenants protection act, he can still raise the question of maintainability of the suit for want of notice under section 11 of the act. so, the failure on the part of the tenant to file an application under section 9 of the act within the prescribed time after the institution of the suit itself is no ground to hold that he has waived her rights. a8 is set aside, the suit for recovery has to fail for want of notice under section 11 of the act.order1. the above appeal is against the judgment and decree made in a.s.no. 32 of 1994 on the file of the subordinate judge, gopichettipalayam dated 21.8.1995 which itself was preferred against the judgment and decree made in o.s.no. 265 of 1987 on the file of the district munsif court, sathyamangalam. the plaintiff valliammal who succeeded before the trial court but last before the first appellate court, is the appellant in this second appeal.2. the plaintiff filed a suit for recovery of possession by making the following averments :the suit schedule property as only a vacant site originally belonged to one sivasubramania sastriyar. said sivasubramania sastriyar demised the property on lease in favour of one kalianna gounder for a period of one year on an annual rent of rs.360. the first defendant is the brother of the said kalianna gounder. as per the agreement kalianna gounder has agreed to receive the amount to be paid by the landlord namely sivasubramania sastriyar as compensation for the superstructure to be put up by the lessee at the time of termination of the lease or eviction. the lease deed was executed by kalianna gounder in favour of sivasubramania sastriyar on these terms. in pursuance of lease kalianna gounder and the first defendant were put in possession of the suit property. kalianna gounder alongwith his brother the first defendant was doing business jointly; and so the first defendant also was in possession and enjoyment of the property pursuant to lease. after kalianna gounder died, the first defendant continued to do the business being the lessee in possession of the property. the plaintiff's husband one late muthusamy gounder had purchased the suit vacant site from sivasubramania sastriyar for valuable consideration of rs.15,000 as per the sate deed dated 29.6.1962. muthusamy gounder had also taken assignment of the lease dated 7.3.1962. muthusamy gounder died on 9.2.1983 leaving behind the present plaintiff and the children.3. muthusamy gounder while he was in a sound and disposing state of mind had executed a registered will dated 19.2.1981, as per which he bequeathed the suit property and other properties in favour of this plaintiff. on the death of muthusamy gounder the will has taken effect and the plaintiff has become entitled to the suit property. kalianna gounder and this defendant have became tenants holding over the suit property and this defendant is now in occupation of the suit property. muthusamy gounder during his lifetime filed o.s.no.481 of 1963 for recovery of the suit property from kalianna gounder and the latter contested the suit and the suit was decreed for arrears of rent but the prayer for recovery of possession was negatived. it was held that the plaintiff must proceed against the defendant for recovery of possession through the rent controller under the madras buildings (lease and rent control) act. muthusamy gounder accordingly filed hrcop no.6 of 1966before the rent controller, gopichettipalayam and obtained an order of eviction. kalianna gounder and the first defendant preferred an appeal against the order in cma no.39 of 1966 on the file of the sub court, erode and the appeal was also dismissed. kalianna gounder and the first defendant preferred crp no.601 of 1968 on the file of the district court erode which has also been dismissed. again kalianna gounder and the first defendant preferred crp .no. 1572 of 1970 on the file of the high court, madras and the revision was allowed and it was held that the landlord muthusamy gounder has to file a suit for recovery of possession before the civil court. even while allowing crp.no.1572 of 1970 the high court has stated in its order that 'the doctrine of res judicata; only belongs to the domain of procedure and it cannot be exalted to the status of a legislative direction between the parties, so as to determine the question as to the interpretation of enactment affecting the jurisdiction of the court'. therefore, the decision made in o.s.no. 481 of 1963 holding that the suit is not maintainable cannot be relied upon as res judicata for the present claim of the plaintiff.4. muthusamy gounder filed a suit for recovery of possession in o.s.no. 178 of 1982 on the file of the sub court, gopichettipalayam and after his death, the present plaintiff was impleaded as second plaintiff. but the suit was withdrawn by the second plaintiff with liberty to file a fresh suit on the same cause of action and accordingly, the suit was dismissed as withdrawn. thereafter, the plaintiff has preferred this suit.5. in the earlier suit, muthusamy gounder has been directed to pay rs.1827 to the defendants as compensation for the superstructure put up by them and the plaintiff is therefore ready and willing to deposit the said amount at the time when possession is taken from this defendant as per the order of this court. kalianna gounder, the original lessee died as a bachelor and his parents died even earlier to him. the defendants 1 to 3 are the legal heirs being his brothers. the first defendant is in possession as lessee and the other two brothers are impleaded formally and no relief is sought for against them. kalianna gounder and the first defendant had failed to pay the rent due to the landlord from 6.1.1967 till date and they are liable to pay the rent at the rate of rs.360 per annum. kalianna gounder and the first defendant had also admitted and acknowledged that they are in arrears of payment of rent in rcop.no.13 of 1971 and have deposited a sum of rs.1050 before the rent controller. the plaintiff therefore prays for a decree directing the first respondent to deliver possession of the suit property on payment of rs.1,827 as compensation for the superstructure and directing the first defendant to pay rs. 1,800 towards the arrears of rent and the plaintiff is also entitled to future rent at the rate of rs.360 per annum till delivery of possession. hence the suit.6. the first defendant filed a written statement contesting the claim of the plaintiff by raising the following contentions:the suit property originally belonged to sivasubramania sastriyar and through kalianna gounder, his brother, the first defendant took the suit property on lease from sastriyar. kalianna gounder had put up a tiled construction and other buildings and he was conducting business in the said premises. kalianna gounder had put up the constructions at the cost of rs.7,894. the description of the property given in the plaint schedule is not correct. the boundaries given are not correct. no measurements in feet or links are given. kalianna gounder was not put in possession of the entire site mentioned in the lease deed and he is only in possession of lesser extent.7. muthusamy gounder filed an earlier suit in o.s.no. 481 of 1963 for recovery of possession and arrears of rent. in the said suit, the relief of recovery of possession sought for by muthusamy gounder was denied. muthusamy gounder did not prefer any appeal against the denial of the said relief but only preferred, appeal in a.s.no.3 of 1966 with regard to arrears of rent, compensation etc. since muthusamy gounder did not prefer any appeal against the denial of relief of recovery, the present plaintiffs is barred by res judicata from claiming the relief of possession. muthusamy gounder chose to file rcop.no.6 of 1966 praying for eviction of the first defendant and kalianna gounder. muthusamy gounder has elected himself to choose his remedy by proceedings under the madras buildings (lease and rent control) act. it is not open to him to claim possession under the transfer of property act. the present suit is barred by res judicata and also barred by rule of estoppel and also rule of election. even in case of eviction, the plaintiff is liable to pay more amount than what has been fixed in the earlier suit as compensation to the defendants. the value has to be determined afresh even if the court comes to the conclusion that the first defendant is liable to surrender possession. the arrears claimed is not correct. the plaintiff has not issued any notice terminating the lease of the first defendant' as required under section 106 of the transfer of property act. the suit is therefore bad for want of section 106 notice. the defendants 2 and 3 have nothing to do with the suit property. the will alleged to have been executed by muthusamy gounder is not true and genuine. the will was not executed by muthusamy gounder while he was in a sound and disposing state of mind. no probate has been obtained in respect of the will. without obtaining probate, the plaintiff cannot maintain the suit. the tamil nadu city tenants protection act, 1921 was extended to sathyamangatam municipality from 31.1.1973 and this defendant is entitled to the protection given to tenants under city tenants protection act. the first defendant is entitled to get compensation in accordance with the provisions of the city tenants protection act in respect of superstructure standing in the suit vacant site.8. on the above pleadings, the learned district munsif has framed issues as to(i) whether the plaintiff is entitled to recover the suit property?(ii) whether the plaintiff is entitled to arrears of rent, claimed? iii) whether the plaintiff is entitled to future rents? (iv) whether the suit is barred by res judicata? and (v) whether the suit is maintainable and in time?9. the plaintiff examined herself as p.w.1 besides chenniyappa gounder as p.w.2. exs.a1 to a8 were filed on behalf of the plaintiff. the first defendant examined himself as d.w.i and he has produced and filed exs.b1 to b9 documents.10. on consideration of the evidence oral and documentary, the learned district munsif gave findings to the effect that the suit is maintainable, that it was not barred by res judicata and the suit is also not barred by limitation. it was also further held that the plaintiff has become entitled to the suit property by virtue of ex.a8 will; that ex.a8 will was proved to have been executed by muthusamy gounder while he was in a sound and disposing state of mind. it was also deemed that the defendant has to pay arrears of rent to the tune of rs. 1,800 as claimed in the plaint that the plaintiff is liable to pay a sum of rs. 1,875 as compensation for the superstructures put up by the first defendant. in short, the suit was decreed as prayed for, however without costs. time of one month was granted for the defendant to surrender possession of the suit property.11. aggrieved at the said decree and judgment the first defendant preferred an appeal in. a.s.no.32 of 1994 and the learned subordinate judge, gopichettipalayam by the impugned judgment allowed the appeal setting aside the judgment and decree given by the trial court in o.s.no. 265 of 1987. the learned subordinate judge while considering the appeal has framed the following points for consideration:(i) whether the present suit is barred by res judicaia by virtue of decision made in o.s.no. 481 of 1963 on the file of the district munsif , gopichettipalayam?(ii) whether there is proper notice of termination of lease under section 106 of the transfer of property act? and whether the suit is bad for want of said notice?(iii)whether the suit is maintainable without proper notice under section 11 of the madras city tenants protection act?(iv) whether the will ex.a8 is true and valid and has been executed by late muthusamy gounder?(v) whether the amount of compensation of rs. 1800 offered by the plaintiff for the superstructure put up by the kalianna gounder and the first defendant is correct or whether he is entitled to any more and if not what is the amount to which he is entitled? and(vi) whether the plaintiff is entitled for recovery of possession and arrears of rent and future rents?12. in allowing the appeal, the learned subordinate judge gave findings to the effect that the plaintiff has not proved ex.a8 will was executed by late muthusamy gounder while he was in a sound and disposing state of mind, that the defendant is entitled to the protection under the madras city tenants protection act, that the suit is therefore bad for want of section 11 notice that the suit is also not maintainable because the extent claimed is not actually available with the first defendant. aggrieved at the said findings and decree granted by the lower appellate court, the plaintiff has preferred the above second appeal.13. at the time of the admission of the second appeal, following substantial questions of law have been framed for consideration :(i) whether the first appellate court was right and justified in law in holding that the suit was bad for want of notice under section 11 of the city tenants protection act, having regard to the admitted facts and circumstances of the case and without considering whether the conduct of the defendant no.1 amounted to waiver of such notice?ii) whether the lower appellate court committed an error of law, in allowing the first defendant to raise the plea of validity of the wilt (ex.a8) when he is not a member of the family of the deceased, having regard to the evidence brought on record?14. the plaintiff valliammal has come forward with the suit for recovery of possession from the first defendant claiming title for the suit property stating that the lease granted in favour of one kalianna gounder has been duly terminated.. it is not in dispute that the property that was demised under the lease in favour of the kalianna gounder, the brother of the first defendant was only a vacant site and the lessee has been permitted to put up constructions and to be in possession and the agreement itself provided for payment of a fixed amount as compensation for the superstructure to which the lessee will be entitled to at the time of surrender of possession. the lease originally was executed in favour of sivasubramania sastriyar. the first defendant did not question the original title of sivasubramania sastriyar or even the subsequent title set up by muthusamy gounder, late husband of the plaintiff. muthusamy gounder filed a suit for recovery of possession even while he was alive and this defendant did not question the right of muthusamy gounder who filed suit because it was admitted that he purchased the property from sivasubramania sastriyar under a sale deed for valid consideration. this litigation has a chequered career in as much as the suit for recovery was originally filed in the year 1961. there was an appeal, against the decision in the said suit. even while filing the appeal muthusamy gounder preferred a petition under the madras buildings, (lease and rent control) act, stating that, the plaintiff cannot recover the property by filing a civil suit, and sincethe rent control act is applicable he must proceed against the tenant namely, the defendant only under the rent control act the petition filed before the rent controller, for eviction, was allowed against which kalianna gounder and the first defendant preferred an appeal and revision and both were dismissed. but ultimately there was a revision before the high court of madras wherein it was held that the lease was only in respect of vacant site with permission for the tenant to put up buildings or superstructures and therefore, the plaintiff has to seek remedy only by filing a suit for recovery under the transfer of property act. it is how the second round of litigation, the original suit in respect of which this second appeal has arisen, happened to be filled valliammal.15. during the pendency of the previous suit and hrcop proceedings muthusamy gounder died and present plaintiff has filed a suit claiming the suit property by virtue of ex.a.8 will dated 19.2.1981. the defendant has admitted his possession only as a lessee having been inducted in possession of a vacant site over which he has put up superstructure only in pursuance-of the terms of the original lease. however in paragraph 20 of the written statement, the first defendant contended that 'the will alleged is not true and genuine, that it was not executed by deceased muthusamy in a sound disposing state of mind, that no probate was obtained for the alleged will and that without obtaining a probate, the plaintiff cannot maintain the suit.' so, the defendant only contested the claim of the plaintiff to maintain the suit for recovery under the will which was set up by her stating that it does not appear to be true and genuine and no probate has been obtained and that therefore the plaintiff cannot maintain the suit. in other words, the defendant only wanted the plaintiff to prove the truth and genuiness of the will under which alone she claims to have become entitled to the suit property.16.as rightly, the plaintiff has taken upon herself to prove ex.a8 will by examining the attestors to the will. it must be remembered that the plaintiff valliammal is the second wife of muthusamy gounder whose title to the suit property is admitted by the defendant. it has also come out in evidence that besides valliammal,.muthusamy gounder also left behind his first wife ramayee and children born to her. muthusamy gounder died in the year 1981 and even in the suit filed by her, a petition was filed by valliammal based on the will for getting herself impleaded as second plaintiff and she was also impleaded as such. it is a different matter that the valliammal did not pursue the said suit but got it withdrawn with permission to file a fresh suit on the same cause of action. neither the first wife ramayee nor the children of the mulhusamy gounder have raised any objection with regard to the truth and genuineness of the will ex.a8 as per which muthusamy gounder bequeathed the suit property and other properties in favour of valliammal. it has also come out in evidence that till date the truth and genuineness of ex.a8 will has not been questioned by other legal heirs left by muthusamy gounder. thepresent plaintiff who is only a tenant under muthusamy gounder by way of abundant caution has raised a contention that the will is not true or valid, and no probate has been obtained validating the will. it is not open to the first defendant who is the stranger to the family to raise all sorts of contentions with regard to the will. since the execution is not admitted the plaintiff has examined attestors to the will and has properly proved the same. there is nothing to warrant a conclusion that the will appears to be unnatural or will could not have been executed by muthusamy gounder while he was in a sound and disposing state of mind. even in probate proceedings in respect of will it is only expected of the propounder of the will to implead the legal heirs of the testator who would otherwise become entitled to the property demised under the will and probate will be granted after due enquiry with regard to its execution.17. it stands to common sense and reason that the truth and validity of the will normally will be challenged only by those persons who are the legal heirs of the testators and who would have succeeded to the properties of the testator but for the will. only when such contentions are raised by persons who would have otherwise succeeded to the property, the court will naturally go in detail whether the propounder has dispelled all the suspicious circumstances surrounding the execution of the will. on other cases when a third party stranger like the first defendant makes a passing reference in his defence with regard to the truth and validity and the mental status of the testator at the time of the making of the will, the court must satisfy itself by examining the attestators because as per the hindu succession act and the indian evidence act, will is a document by law required to be proved by, atleast by examining one of the two attestors. the hindu succession act also makes it mandatory that will must be attested by atleast two persons. the evidence act provides that for the purpose of proving the document which the law requires to be attested by two witnesses, atleast one has to be examined to prove the execution of the said document. the plaintiff has taken the trouble of examining the two attestors to the will. both the trial court and the appellate court has chooses to consider the evidence and the appellate court has come to the conclusion that the plaintiff has not dispelled all suspicious circumstances surrounding the will executed by late muthusamy gounder. there is absolutely no basis for coming to such a conclusion because none of the legal heirs of muthusamy gounder have questioned the genuineness of the will. therefore, it is rightly contented by the learned counsel for the appellant that the lower appellate court must have taken that ex.a8 will has been properly proved. this is more so when the trial court after considering the evidence adduced has come to alright conclusion that ex.a8 will has been executed by muthusamy gounder while he was in sound and disposing state of mind. therefore, the findings of the lower appellate court that ex.a8 will has not been proved to be true or genuine cannot be supported.18. the suit, is filed against a third party tenant and also so far there has been no opposition or resistance from the other members of the family, to the wilt. the findings of the lower appellate court in respect of validity of ex.a8 will cannot be sustained and it has to be reversed. the plaintiff has adduced sufficient evidence to prove the truth and validity of the will. moreover, the defendant never questioned the status of the plaintiff as the wife of muthusamy gounder. the other legal heirs namely the first wife and children also have not so far questioned the validity and execution of the will by late muthusamy gounder. the lower appellate court ought to have considered the evidence adduced on the side of the plaintiff to prove the execution of the will. under such circumstance the defendant who is stranger to the family will not be competent to urge other contentions to hold that there are suspicious circumstances regarding the execution of the will. therefore, the findings with regard to the validity of the will made by the first appellate court is set aside and i hold that ex.a8 will is the true and genuine executed by muthusamy gounder while he was in sound and disposing state of mind.19. the main ground on which the suit for recovery is resisted by the defendant is want of section 11 notice. as already stated there is no dispute that when the suit property was demised under the lease by sastriyar, it was only a vacant site and the terms of the lease agreement provided from putting up construction by the tenant, the brother of the first defendant. in fact, the agreement contemplated even fixation of compensation amount to be paid to the tenant in case of eviction. it is also admitted that subsequent to the lease of the vacant site, kalianna gounder original lessee has put up superstructure buildings in the suit property and the first defendant after kalianna gounder has become tenant/ lessee of the suit property. it is not the case of the plaintiff that dl, is a sub-lessee or is not the main tenant. he is recognised as tenant by the landlord. in fact muthusamy gounder himself has filed a suit against the first defendant for recovery of the suit property from him treating him as a tenant holding over which is also not in dispute. since the suit property is a subject matter of a lease in respect of vacant site, the provisions of madras city tenants protection act is applicable. the applicability of the madras city protection act to the present case is also not disputed by the defendant. it is also not disputed that the plaintiff/landlord has not issued section 11 notice as contemplated under the city tenants protection act before filing the suit for recovery. it is only on the ground the suit is mainly resisted by the defendant and if proper notice under section 11 is not given, the suit has to be dismissed as not maintainable.20. the appellant would contend that the tenant has denied the title of the landlord, therefore tenancy has been forfeited and the defendant cannot claim subsisting relationship of tenant and landlord. the reading of the written statement and also the counter filed in all the previous suits would definitely show that the defendant at no point of time questioned the original title ofsivasubramania sastriyar under whom he came into possession as tenant. the defendant also never questioned the right of muthusamy gounder as a landlord of the suit property. muthusamy gounder has purchased the suit property from sivasubramania sastriyar under a sale deed of the year 1961 and thereafter, the defendant never questioned the right of muthusamy gounder to receive the rent and his entitlement to the suit property. he was only resisting the suit for recovery on the ground that proper notice has not been sent and that he is entitled to enhanced compensation. he also tried to contest the claim of muthusamy gounder by stating that suit for recovery is barred by res judicata by virtue of the decision in o.s.no.428/1970. but the defence of res judicata and other objections have all been negatived rightly by the trial court and the appellate court.21. therefore, we have to find out whether the d1 has raised any dispute with regard to the title claimed by valliammal. i have already extracted from paragraph 20 of the written statement the defendant has questioned the right of valliammal to-claim as a successor of muthusamy gounder. it is also made clear that the original- title of sastriyar under whom he became a tenant or that of muthusamy gounder who purchased the property from sastriyar has not been questioned by the defendant at all. only derivative title of the plaintiff was questioned and this cannot be equivated to denial of title by the defendant as a lessor.22. in mohd.amtr v.muncipal board of sitapur and another, air 1985 sc 1923, the supreme court has held as follows:-'permanent, tenancies are within the rule of section 111(g) and are liable to forfeiture if there is disclaimer of the tenancy or a denial of the landlord's title. the disclaimer or the repudiation of the landlord's title must, however, be clear and unequivocal and made to the knowledge of the landlord.'in fact, in that case the plaintiff asserting permanent and heritable interest in land claimed the land as belonging to him and even asserted that he was the owner of the same. it was found that the plaintiff held: nazul land subject to payment of nominal rent, which had been unvarying as long as it was known. there was no document evidencing the lease. its origin was shrouded in obscurity. under such circumstances, when the plaintiff has claimed permanent tenancy and heritable interest in the land and when he claimed ownership of the land, it was held that this will not attract the disclaimer under section 111(g), of the transfer of property act.23. a single judge of the madhya pradesh high court in a ruling reported in nirvikar gupta v. ram kumar, air 1992m.p.115 has held that:'the law on this subject is that to amount to, disclaimer of title so as to attract the penalty of forfeiture of lease also providing a ground for ejectment within the meaning of section 12(1)(c) of the act, the tenants act must take one of the two shapes: (i) the tenant may assert title in the suit premises in himself; (ii) the tenant may set up title in a third person. in both the cases, the act of thelenant would manifest denial of the title of his landlord in the suit property. the denial if clear and unequivocal and riot vague would undoubtedly affect the interest of the landlord adversely and substantially. the tenant merely denying the landlord's title bona fide with the object of seeking information of such title or with the object of having such title established before a court of law so as to protect himself, would not attract the charge of disclaimer of title.'24. in kundanlal v. gurudatta. 1989 mprcj 111 the supreme court observed as follows :'the appellant did not claim any title in himself. he expressly described the character of his possession as that of a lenant. is it in this situation permissible to forfeit his lease on the ground of disclaimer of title? in providing disclaimer as a ground for eviction of a tenant in clause (f) of section 13(1) of the act, the legislature decided to give effect to the provisions of clause (g) of section 111 of the transfer of property act. the principle of forfeiture on disclaimer is founded on the rule that a man cannot approbate and reprobate at the same time. since the consequence of applying the rule is very serious, it must be held that the denial has to be clear and in unequivocal terms'25. in a decision reported in sitbash chandra v. mohammad sharif, , the supreme court held that:'a transferee from such a landlord also can claim the benefit, but that will be limited to the question of title of the original landlord at the time when the tenant was let in. the tenant is entitled to show that the plaintiff has not as a matter of fact secured a transfer from the original landlord or that the alleged transfer is ineffective for some other valid reason, which renders the transfer to be non-existent in the eye of law. tenant in such a case can attack the derivative title of the transferee- plaintiff but not on the ground that the transferor-landlord who had initially inducted him in possession did not have the right to dispose of the property. moreover, since the impediment in the way of a tenant to challenge the right of the landlord is confined to the stage, when the tenancy commenced, he is not forbidden to plead that subsequently the landlord lost his right. these exceptions, however, do not relieve the tenant of his duty to respect the title of the original landlord at the time of the beginning of the tenancy.26. it must be, remembered that in the present case on hand also, the defendant never questioned the title of sastriyar or late muthusamy gounder. the defendant also never set up title in himself or in any other third party. he has only questioned the right of the plaintiff claiming under a will by stating that the will has to be proved.27. in c.chandramohan v. sengotlaiyan, the supreme court held that:'a plain reading of clause (vii), noted above, makes it clear that to invoke this clause twin requirements, namely, (i) denial of title of the landlord or claim of a right of permanent tenancy by the tenant, and (ii) such denial or claim is not bona fide, have to be established by a landlord'there lordships was considering the petition for eviction filed by the landlord under the provisions of tamil nadu buildings (lease and rent control) act, 1960.28. learned counsel for the respondent mainly relied upon a decision reported in palani atnmal v. viswanatha chettiar (dead) and others, 1998 (2) l.w 7 where the supreme court has held that tenant who denies the title of the landlord incurs forfeiture of lease under section 111(g) and renounces his character as tenant when he sets up title in a third person or in himself and therefore no occasion for such person to invoke section 9 and therefore there is no question of notice under section 11 of the tamil nadu city tenants protection act. the tenant who has moved out of the umbrella of protection given under the act by denying the title of the landlord is not entitled to insist upon a notice under section 11 of the city tenants protection act because there is no relation as landlord and tenant. palani animals case will be applicable only where the tenant has unequivocally denied the title of the plaintiff in a suit for recovery either by setting up title in himself or by setting up title in any other third party. this ruling is not applicable to the present case because the defendant has never asserted title in himself or in any third party and has admitted the original title of sastriyar and the husband of the plaintiff, late muthusamy gounder but only questioned the claim of the plaintiff under the will which he denied as true and genuine.29. it is not in dispute that the plaintiff has not issued notice under section 11 of the city tenants protection act calling upon the defendant to vacate and offering to pay reasonable compensation for the superstructure put up by the tenant.30. the arguments advanced on behalf of the respondent is that the defendant has not specifically pleaded in his written statement that the suit is bad for want of section 11 notice. therefore it has to be held that the defendant has waived his rights in respect of section 11 notice. it is also stated that the defendant has not raised this contention at the time of trial and has only raised it at the time of the first appeal.31. so far as this defence taken by the respondent the answer is found in a, decision reported in mohamed hussain rowther v. t.m.tirupathi chettiars (died) and others, 1966 (i) m.l.j. 206 wherein it as held that:' the provisions of section 11 of the madras city tenants protection act is mandatory and non- compliance with the provisions should entail dismissal of the suit. it is no doubt true that despite the mandatory character of the provisions it is open to a defendant to waive his right under the section. but waiver is a question of fact and ought to be pleaded and proved in every case. it is for the plaintiff set up and prove-the plea of waiver and not for the defendant to take up-the plea as the notice is conceived for his benefit.that was also a case where the defendant has not pleaded in the suit for recovery filed by the landlord that the suit is bad for want of section 11 notice. no issues have been framed with regard to this and this was not raised during the time of trial. it was also pointed out that it a matter of pleading and it is for the plaintiff to plead in the plaint that the defendant is not entitled to under section 11.32. in s.a.ramachandran v. s.neelavathy, the supreme court has held that:suit instituted for eviction without issuing notice under section 11 or before expiry of 3 months of issue of notice can not be proceeded with.section 11 notice is a condition precedent and no suit for eviction should be instituted without issuing notice under section 11.in fact, the supreme court has left the questions open as to whether under the madras city tenants protection act waiver of notice under section 11 is applicable without giving any authorative, pronouncements. it was also held that even where the tenant had failed to file a petition under section 9 seeking the benefits of the city tenants protection act, he can still raise the question of maintainability of the suit for want of notice under section 11 of the act. so, the failure on the part of the tenant to file an application under section 9 of the act within the prescribed time after the institution of the suit itself is no ground to hold that he has waived her rights. therefore, there is no question of waiver of notice on the part of the defendant and the lower appellate court was correct in dismissing the suit for want of section 11 notice.33. since the defendant has not denied the title of the original lessor or his successor and since the defendant has not set up title in himself nor in any third party, there is no question of forfeiture of the tenancy. the defendant has never denied that he is the tenant and is in possession of the land only as such he has not claimed any right over and above what has been granted to him under the lease.34. therefore, even though the findings of the lower appellate court that the plaintiff has not proved her title in ex.a8 is set aside, the suit for recovery has to fail for want of notice under section 11 of the act. while setting aside the findings with regard to the will, the findings with regard to the recovery of possession by the lower appellate court has to be confirmed.35. in the result, the appeal fails and the same is dismissed. however without costs.

Judgment:
ORDER

1. The above appeal is against the judgment and decree made in A.S.No. 32 of 1994 on the file of the Subordinate Judge, Gopichettipalayam dated 21.8.1995 which itself was preferred against the judgment and decree made in O.S.No. 265 of 1987 on the file of the District Munsif Court, Sathyamangalam. The plaintiff Valliammal who succeeded before the trial court but last before the first Appellate Court, is the appellant in this second appeal.

2. The plaintiff filed a suit for recovery of possession by making the following averments :

The suit schedule property as only a vacant site originally belonged to one Sivasubramania Sastriyar. Said Sivasubramania Sastriyar demised the property on lease in favour of one Kalianna Gounder for a period of one year on an annual rent of Rs.360. The first defendant is the brother of the said Kalianna Gounder. As per the agreement Kalianna Gounder has agreed to receive the amount to be paid by the landlord namely Sivasubramania Sastriyar as compensation for the superstructure to be put up by the lessee at the time of termination of the lease or eviction. The lease deed was executed by Kalianna Gounder in favour of Sivasubramania Sastriyar on these terms. In pursuance of lease Kalianna Gounder and the first defendant were put in possession of the suit property. Kalianna Gounder alongwith his brother the first defendant was doing business jointly; and so the first defendant also was in possession and enjoyment of the property pursuant to lease. After Kalianna Gounder died, the first defendant continued to do the business being the lessee in possession of the property. The plaintiff's husband one late Muthusamy Gounder had purchased the suit vacant site from Sivasubramania Sastriyar for valuable consideration of Rs.15,000 as per the sate deed dated 29.6.1962. Muthusamy Gounder had also taken assignment of the lease dated 7.3.1962. Muthusamy Gounder died on 9.2.1983 leaving behind the present plaintiff and the children.

3. Muthusamy Gounder while he was in a sound and disposing state of mind had executed a registered Will dated 19.2.1981, as per which he bequeathed the suit property and other properties in favour of this plaintiff. On the death of Muthusamy Gounder the will has taken effect and the plaintiff has become entitled to the suit property. Kalianna Gounder and this defendant have became tenants holding over the suit property and this defendant is now in occupation of the suit property. Muthusamy Gounder during his lifetime filed O.S.No.481 of 1963 for recovery of the suit property from Kalianna Gounder and the latter contested the suit and the suit was decreed for arrears of rent but the prayer for recovery of possession was negatived. It was held that the plaintiff must proceed against the defendant for recovery of possession through the Rent Controller under the Madras Buildings (Lease and Rent Control) Act. Muthusamy Gounder accordingly filed HRCOP No.6 of 1966before the Rent Controller, Gopichettipalayam and obtained an order of eviction. Kalianna Gounder and the first defendant preferred an appeal against the order in CMA No.39 of 1966 on the file of the Sub Court, Erode and the appeal was also dismissed. Kalianna Gounder and the first defendant preferred CRP No.601 of 1968 on the file of the District Court Erode which has also been dismissed. Again Kalianna Gounder and the first defendant preferred CRP .No. 1572 of 1970 on the file of the High Court, Madras and the revision was allowed and it was held that the landlord Muthusamy Gounder has to file a suit for recovery of possession before the Civil Court. Even while allowing CRP.No.1572 of 1970 the High Court has stated in its order that 'the doctrine of res judicata; only belongs to the domain of procedure and it cannot be exalted to the status of a legislative direction between the parties, so as to determine the question as to the interpretation of enactment affecting the jurisdiction of the Court'. Therefore, the decision made in O.S.No. 481 of 1963 holding that the suit is not maintainable cannot be relied upon as res judicata for the present claim of the plaintiff.

4. Muthusamy Gounder filed a suit for recovery of possession in O.S.No. 178 of 1982 on the file of the Sub Court, Gopichettipalayam and after his death, the present plaintiff was impleaded as second plaintiff. But the suit was withdrawn by the second plaintiff with liberty to file a fresh suit on the same cause of action and accordingly, the suit was dismissed as withdrawn. Thereafter, the plaintiff has preferred this suit.

5. In the earlier suit, Muthusamy Gounder has been directed to pay Rs.1827 to the defendants as compensation for the superstructure put up by them and the plaintiff is therefore ready and willing to deposit the said amount at the time when possession is taken from this defendant as per the order of this Court. Kalianna Gounder, the original lessee died as a bachelor and his parents died even earlier to him. The defendants 1 to 3 are the legal heirs being his brothers. The first defendant is in possession as lessee and the other two brothers are impleaded formally and no relief is sought for against them. Kalianna Gounder and the first defendant had failed to pay the rent due to the landlord from 6.1.1967 till date and they are liable to pay the rent at the rate of Rs.360 per annum. Kalianna Gounder and the first defendant had also admitted and acknowledged that they are in arrears of payment of rent in RCOP.No.13 of 1971 and have deposited a sum of Rs.1050 before the Rent Controller. The plaintiff therefore prays for a decree directing the first respondent to deliver possession of the suit property on payment of Rs.1,827 as compensation for the superstructure and directing the first defendant to pay Rs. 1,800 towards the arrears of rent and the plaintiff is also entitled to future rent at the rate of Rs.360 Per annum till delivery of possession. Hence the suit.

6. The first defendant filed a written statement contesting the claim of the plaintiff by raising the following contentions:

The suit property originally belonged to Sivasubramania Sastriyar and through Kalianna Gounder, his brother, the first defendant took the suit property on lease from Sastriyar. Kalianna Gounder had put up a tiled construction and other buildings and he was conducting business in the said premises. Kalianna Gounder had put up the constructions at the cost of Rs.7,894. The description of the property given in the plaint schedule is not correct. The boundaries given are not correct. No measurements in feet or links are given. Kalianna Gounder was not put in possession of the entire site mentioned in the lease deed and he is only in possession of lesser extent.

7. Muthusamy Gounder filed an earlier suit in O.S.No. 481 of 1963 for recovery of possession and arrears of rent. In the said suit, the relief of recovery of possession sought for by Muthusamy Gounder was denied. Muthusamy Gounder did not prefer any appeal against the denial of the said relief but only preferred, appeal in A.S.No.3 of 1966 with regard to arrears of rent, compensation etc. Since Muthusamy Gounder did not prefer any appeal against the denial of relief of recovery, the present plaintiffs is barred by res judicata from claiming the relief of possession. Muthusamy Gounder chose to file RCOP.No.6 of 1966 praying for eviction of the first defendant and Kalianna Gounder. Muthusamy Gounder has elected himself to choose his remedy by proceedings under the Madras Buildings (Lease and Rent Control) Act. It is not open to him to claim possession under the Transfer of Property Act. The present suit is barred by res judicata and also barred by rule of estoppel and also rule of election. Even in case of eviction, the plaintiff is liable to pay more amount than what has been fixed in the earlier suit as compensation to the defendants. The value has to be determined afresh even if the Court comes to the conclusion that the first defendant is liable to surrender possession. The arrears claimed is not correct. The plaintiff has not issued any notice terminating the lease of the first defendant' as required under Section 106 of the Transfer of Property Act. The suit is therefore bad for want of Section 106 notice. The defendants 2 and 3 have nothing to do with the suit property. The Will alleged to have been executed by Muthusamy Gounder is not true and genuine. The Will was not executed by Muthusamy Gounder while he was in a sound and disposing state of mind. No probate has been obtained in respect of the Will. Without obtaining probate, the plaintiff cannot maintain the suit. The Tamil Nadu City Tenants Protection Act, 1921 was extended to Sathyamangatam Municipality from 31.1.1973 and this defendant is entitled to the protection given to tenants under City Tenants Protection Act. The first defendant is entitled to get compensation in accordance with the provisions of the City Tenants Protection Act in respect of superstructure standing in the suit vacant site.

8. On the above pleadings, the learned District Munsif has framed issues as to

(i) Whether the plaintiff is entitled to recover the suit property?

(ii) Whether the plaintiff is entitled to arrears of rent, claimed?

iii) Whether the plaintiff is entitled to future rents?

(iv) Whether the suit is barred by res judicata? And

(v) Whether the suit is maintainable and in time?

9. The plaintiff examined herself as P.W.1 besides Chenniyappa Gounder as P.W.2. Exs.A1 to A8 were filed on behalf of the plaintiff. The first defendant examined himself as D.W.I and he has produced and filed Exs.B1 to B9 documents.

10. On consideration of the evidence oral and documentary, the learned District Munsif gave findings to the effect that the suit is maintainable, that it was not barred by res judicata and the suit is also not barred by limitation. It was also further held that the plaintiff has become entitled to the suit property by virtue of Ex.A8 Will; that Ex.A8 Will was proved to have been executed by Muthusamy Gounder while he was in a sound and disposing state of mind. It was also deemed that the defendant has to pay arrears of rent to the tune of Rs. 1,800 as claimed in the plaint that the plaintiff is liable to pay a sum of Rs. 1,875 as compensation for the superstructures put up by the first defendant. In short, the suit was decreed as prayed for, however without costs. Time of one month was granted for the defendant to surrender possession of the suit property.

11. Aggrieved at the said decree and judgment the first defendant preferred an appeal in. A.S.No.32 of 1994 and the learned Subordinate Judge, Gopichettipalayam by the impugned judgment allowed the appeal setting aside the judgment and decree given by the trial Court in O.S.No. 265 of 1987. The learned Subordinate Judge while considering the appeal has framed the following points for consideration:

(i) Whether the present suit is barred by res judicaia by virtue of decision made in O.S.No. 481 of 1963 on the file of the District Munsif , Gopichettipalayam?

(ii) Whether there is proper notice of termination of lease under Section 106 of the Transfer of Property Act? and whether the suit is bad for want of said notice?

(iii)Whether the suit is maintainable without proper notice under Section 11 of the Madras City Tenants Protection Act?

(iv) Whether the Will Ex.A8 is true and valid and has been executed by late Muthusamy Gounder?

(v) Whether the amount of compensation of Rs. 1800 offered by the plaintiff for the superstructure put up by the Kalianna Gounder and the first defendant is correct or whether he is entitled to any more and if not what is the amount to which he is entitled? and

(vi) whether the plaintiff is entitled for recovery of possession and arrears of rent and future rents?

12. In allowing the appeal, the learned Subordinate Judge gave findings to the effect that the plaintiff has not proved Ex.A8 Will was executed by late Muthusamy Gounder while he was in a sound and disposing state of mind, that the defendant is entitled to the protection under the Madras City Tenants Protection Act, that the suit is therefore bad for want of Section 11 notice that the suit is also not maintainable because the extent claimed is not actually available with the first defendant. Aggrieved at the said findings and decree granted by the lower Appellate Court, the plaintiff has preferred the above second appeal.

13. At the time of the admission of the second appeal, following substantial questions of law have been framed for consideration :

(i) Whether the first Appellate Court was right and justified in law in holding that the suit was bad for want of notice under Section 11 of the City Tenants Protection Act, having regard to the admitted facts and circumstances of the case and without considering whether the conduct of the defendant No.1 amounted to waiver of such notice?

ii) Whether the lower Appellate Court committed an error of law, in allowing the first defendant to raise the plea of validity of the Wilt (Ex.A8) when he is not a member of the family of the deceased, having regard to the evidence brought on record?

14. The plaintiff Valliammal has come forward with the suit for recovery of possession from the first defendant claiming title for the suit property stating that the lease granted in favour of one Kalianna Gounder has been duly terminated.. It is not in dispute that the property that was demised under the lease in favour of the Kalianna Gounder, the brother of the first defendant was only a vacant site and the lessee has been permitted to put up constructions and to be in possession and the agreement itself provided for payment of a fixed amount as compensation for the superstructure to which the lessee will be entitled to at the time of surrender of possession. The lease originally was executed in favour of Sivasubramania Sastriyar. The first defendant did not question the original title of Sivasubramania Sastriyar or even the subsequent title set up by Muthusamy Gounder, late husband of the plaintiff. Muthusamy Gounder filed a suit for recovery of possession even while he was alive and this defendant did not question the right of Muthusamy Gounder who filed suit because it was admitted that he purchased the property from Sivasubramania Sastriyar under a sale deed for valid consideration. This litigation has a chequered career in as much as the suit for recovery was originally filed in the year 1961. There was an appeal, against the decision in the said suit. Even while filing the appeal Muthusamy Gounder preferred a petition under the Madras Buildings, (Lease and Rent Control) Act, stating that, the plaintiff cannot recover the property by filing a civil suit, and sincethe Rent Control Act is applicable he must proceed against the tenant namely, the defendant only under the Rent Control Act The petition filed before the Rent Controller, for eviction, was allowed against which Kalianna Gounder and the first defendant preferred an appeal and revision and both were dismissed. But ultimately there was a revision before the High Court of Madras wherein it was held that the lease was only in respect of vacant site with permission for the tenant to put up buildings or superstructures and therefore, the plaintiff has to seek remedy only by filing a suit for recovery under the Transfer of Property Act. It is how the second round of litigation, the original suit in respect of which this second appeal has arisen, happened to be filled Valliammal.

15. During the pendency of the previous suit and HRCOP proceedings Muthusamy Gounder died and present plaintiff has filed a suit claiming the suit property by virtue of Ex.A.8 Will dated 19.2.1981. The defendant has admitted his possession only as a lessee having been inducted in possession of a vacant site over which he has put up superstructure only in pursuance-of the terms of the original lease. However in paragraph 20 of the written statement, the first defendant contended that 'the Will alleged is not true and genuine, that it was not executed by deceased Muthusamy in a sound disposing state of mind, that no probate was obtained for the alleged Will and that without obtaining a probate, the plaintiff cannot maintain the suit.' So, the defendant only contested the claim of the plaintiff to maintain the suit for recovery under the Will which was set up by her stating that it does not appear to be true and genuine and no probate has been obtained and that therefore the plaintiff cannot maintain the suit. In other words, the defendant only wanted the plaintiff to prove the truth and genuiness of the Will under which alone she claims to have become entitled to the suit property.

16.As rightly, the plaintiff has taken upon herself to prove Ex.A8 Will by examining the attestors to the Will. It must be remembered that the plaintiff Valliammal is the second wife of Muthusamy Gounder whose title to the suit property is admitted by the defendant. It has also come out in evidence that besides Valliammal,.Muthusamy Gounder also left behind his first wife Ramayee and children born to her. Muthusamy Gounder died in the year 1981 and even in the suit filed by her, a petition was filed by Valliammal based on the Will for getting herself impleaded as second plaintiff and she was also impleaded as such. It is a different matter that the Valliammal did not pursue the said suit but got it withdrawn with permission to file a fresh suit on the same cause of action. Neither the first wife Ramayee nor the children of the Mulhusamy Gounder have raised any objection with regard to the truth and genuineness of the Will Ex.A8 as per which Muthusamy Gounder bequeathed the suit property and other properties in favour of Valliammal. It has also come out in evidence that till date the truth and genuineness of Ex.A8 Will has not been questioned by other legal heirs left by Muthusamy Gounder. Thepresent plaintiff who is only a tenant under Muthusamy Gounder by way of abundant caution has raised a contention that the Will is not true or valid, and no probate has been obtained validating the Will. It is not open to the first defendant who is the stranger to the family to raise all sorts of contentions with regard to the Will. Since the execution is not admitted the plaintiff has examined attestors to the Will and has properly proved the same. There is nothing to warrant a conclusion that the Will appears to be unnatural or Will could not have been executed by Muthusamy Gounder while he was in a sound and disposing state of mind. Even in probate proceedings in respect of Will it is only expected of the propounder of the Will to implead the legal heirs of the testator who would otherwise become entitled to the property demised under the Will and probate will be granted after due enquiry with regard to its execution.

17. It stands to common sense and reason that the truth and validity of the Will normally will be challenged only by those persons who are the legal heirs of the testators and who would have succeeded to the properties of the testator but for the Will. Only when such contentions are raised by persons who would have otherwise succeeded to the property, the Court will naturally go in detail whether the propounder has dispelled all the suspicious circumstances surrounding the execution of the will. On other cases when a third party stranger like the first defendant makes a passing reference in his defence with regard to the truth and validity and the mental status of the testator at the time of the making of the will, the Court must satisfy itself by examining the attestators because as per the Hindu Succession Act and the Indian Evidence Act, will is a document by law required to be proved by, atleast by examining one of the two attestors. The Hindu Succession Act also makes it mandatory that will must be attested by atleast two persons. The Evidence Act provides that for the purpose of proving the document which the law requires to be attested by two witnesses, atleast one has to be examined to prove the execution of the said document. The plaintiff has taken the trouble of examining the two attestors to the will. Both the trial Court and the Appellate Court has chooses to consider the evidence and the Appellate Court has come to the conclusion that the plaintiff has not dispelled all suspicious circumstances surrounding the will executed by late Muthusamy Gounder. There is absolutely no basis for coming to such a conclusion because none of the legal heirs of Muthusamy Gounder have questioned the genuineness of the will. Therefore, it is rightly contented by the learned counsel for the appellant that the lower Appellate Court must have taken that Ex.A8 Will has been properly proved. This is more so when the trial court after considering the evidence adduced has come to alright conclusion that Ex.A8 Will has been executed by Muthusamy Gounder while he was in sound and disposing state of mind. Therefore, the findings of the lower Appellate Court that Ex.A8 Will has not been proved to be true or genuine cannot be supported.

18. The suit, is filed against a third party tenant and also so far there has been no opposition or resistance from the other members of the family, to the wilt. The findings of the lower Appellate Court in respect of validity of Ex.A8 Will cannot be sustained and it has to be reversed. The plaintiff has adduced sufficient evidence to prove the truth and validity of the Will. Moreover, the defendant never questioned the status of the plaintiff as the wife of Muthusamy Gounder. The other legal heirs namely the first wife and children also have not so far questioned the validity and execution of the Will by late Muthusamy Gounder. The lower Appellate Court ought to have considered the evidence adduced on the side of the plaintiff to prove the execution of the Will. Under such circumstance the defendant who is stranger to the family will not be competent to urge other contentions to hold that there are suspicious circumstances regarding the execution of the Will. Therefore, the findings with regard to the validity of the Will made by the first Appellate Court is set aside and I hold that Ex.A8 Will is the true and genuine executed by Muthusamy Gounder while he was in sound and disposing state of mind.

19. The main ground on which the suit for recovery is resisted by the defendant is want of Section 11 notice. As already stated there is no dispute that when the suit property was demised under the lease by Sastriyar, it was only a vacant site and the terms of the lease agreement provided from putting up construction by the tenant, the brother of the first defendant. In fact, the agreement contemplated even fixation of compensation amount to be paid to the tenant in case of eviction. It is also admitted that subsequent to the lease of the vacant site, Kalianna Gounder original lessee has put up superstructure buildings in the suit property and the first defendant after Kalianna Gounder has become tenant/ lessee of the suit property. It is not the case of the plaintiff that Dl, is a sub-lessee or is not the main tenant. He is recognised as tenant by the landlord. In fact Muthusamy Gounder himself has filed a suit against the first defendant for recovery of the suit property from him treating him as a tenant holding over which is also not in dispute. Since the suit property is a subject matter of a lease in respect of vacant site, the provisions of Madras City Tenants Protection Act is applicable. The applicability of the Madras City Protection Act to the present case is also not disputed by the defendant. It is also not disputed that the plaintiff/landlord has not issued Section 11 notice as contemplated under the City Tenants Protection Act before filing the suit for recovery. It is only on the ground the suit is mainly resisted by the defendant and if proper notice under Section 11 is not given, the suit has to be dismissed as not maintainable.

20. The appellant would contend that the tenant has denied the title of the landlord, therefore tenancy has been forfeited and the defendant cannot claim subsisting relationship of tenant and landlord. The reading of the written statement and also the counter filed in all the previous suits would definitely show that the defendant at no point of time questioned the original title ofSivasubramania Sastriyar under whom he came into possession as tenant. The defendant also never questioned the right of Muthusamy Gounder as a landlord of the suit property. Muthusamy Gounder has purchased the suit property from Sivasubramania Sastriyar under a sale deed of the year 1961 and thereafter, the defendant never questioned the right of Muthusamy Gounder to receive the rent and his entitlement to the suit property. He was only resisting the suit for recovery on the ground that proper notice has not been sent and that he is entitled to enhanced compensation. He also tried to contest the claim of Muthusamy Gounder by stating that suit for recovery is barred by res judicata by virtue of the decision in O.S.No.428/1970. But the defence of res judicata and other objections have all been negatived rightly by the trial court and the Appellate Court.

21. Therefore, we have to find out whether the D1 has raised any dispute with regard to the title claimed by Valliammal. I have already extracted from paragraph 20 of the written statement the defendant has questioned the right of Valliammal to-claim as a successor of Muthusamy Gounder. It is also made clear that the original- title of Sastriyar under whom he became a tenant or that of Muthusamy Gounder who purchased the property from Sastriyar has not been questioned by the defendant at all. Only derivative title of the plaintiff was questioned and this cannot be equivated to denial of title by the defendant as a lessor.

22. In Mohd.Amtr v.Muncipal Board of Sitapur and another, AIR 1985 SC 1923, the Supreme Court has held as follows:-

'Permanent, tenancies are within the rule of Section 111(g) and are liable to forfeiture if there is disclaimer of the tenancy or a denial of the landlord's title. The disclaimer or the repudiation of the landlord's title must, however, be clear and unequivocal and made to the knowledge of the landlord.'

In fact, in that case the plaintiff asserting permanent and heritable interest in land claimed the land as belonging to him and even asserted that he was the owner of the same. It was found that the plaintiff held: nazul land subject to payment of nominal rent, which had been unvarying as long as it was known. There was no document evidencing the lease. Its origin was shrouded in obscurity. Under such circumstances, when the plaintiff has claimed permanent tenancy and heritable interest in the land and when he claimed ownership of the land, it was held that this will not attract the disclaimer under Section 111(g), of the Transfer of Property Act.

23. A single Judge of the Madhya Pradesh High Court in a ruling reported in Nirvikar Gupta v. Ram Kumar, AIR 1992M.P.115 has held that:

'The law on this subject is that to amount to, disclaimer of title so as to attract the penalty of forfeiture of lease also providing a ground for ejectment within the meaning of Section 12(1)(c) of the Act, the tenants act must take one of the two shapes: (i) the tenant may assert title in the suit premises in himself; (ii) the tenant may set up title in a third person. In both the cases, the act of thelenant would manifest denial of the title of his landlord in the suit property. The denial if clear and unequivocal and riot vague would undoubtedly affect the interest of the landlord adversely and substantially. The tenant merely denying the landlord's title bona fide with the object of seeking information of such title or with the object of having such title established before a Court of law so as to protect himself, would not attract the charge of disclaimer of title.'

24. In Kundanlal v. Gurudatta. 1989 MPRCJ 111 the Supreme Court observed as follows :

'The appellant did not claim any title in himself. He expressly described the character of his possession as that of a lenant. Is it in this situation permissible to forfeit his lease on the ground of disclaimer of title? In providing disclaimer as a ground for eviction of a tenant in clause (f) of Section 13(1) of the Act, the Legislature decided to give effect to the provisions of clause (g) of Section 111 of the Transfer of Property Act. The principle of forfeiture on disclaimer is founded on the rule that a man cannot approbate and reprobate at the same time. Since the consequence of applying the rule is very serious, it must be held that the denial has to be clear and in unequivocal terms'

25. In a decision reported in Sitbash Chandra v. Mohammad Sharif, , the Supreme Court held that:

'A transferee from such a landlord also can claim the benefit, but that will be limited to the question of title of the original landlord at the time when the tenant was let in. The tenant is entitled to show that the plaintiff has not as a matter of fact secured a transfer from the original landlord or that the alleged transfer is ineffective for some other valid reason, which renders the transfer to be non-existent in the eye of law. Tenant in such a case can attack the derivative title of the transferee- plaintiff but not on the ground that the transferor-landlord who had initially inducted him in possession did not have the right to dispose of the property. Moreover, since the impediment in the way of a tenant to challenge the right of the landlord is confined to the stage, when the tenancy commenced, he is not forbidden to plead that subsequently the landlord lost his right. These exceptions, however, do not relieve the tenant of his duty to respect the title of the original landlord at the time of the beginning of the tenancy.

26. It must be, remembered that in the present case on hand also, the defendant never questioned the title of Sastriyar or late Muthusamy Gounder. The defendant also never set up title in himself or in any other third party. He has only questioned the right of the plaintiff claiming under a Will by stating that the Will has to be proved.

27. In C.Chandramohan v. Sengotlaiyan, the Supreme Court held that:

'A plain reading of clause (vii), noted above, makes it clear that to invoke this clause twin requirements, namely, (i) denial of title of the landlord or claim of a right of permanent tenancy by the tenant, and (ii) such denial or claim is not bona fide, have to be established by a landlord'

There Lordships was considering the petition for eviction filed by the landlord under the provisions of Tamil Nadu Buildings (Lease and Rent Control) Act, 1960.

28. Learned counsel for the respondent mainly relied upon a decision reported in Palani Atnmal v. Viswanatha Chettiar (dead) and others, 1998 (2) L.W 7 where the Supreme Court has held that tenant who denies the title of the landlord incurs forfeiture of lease under Section 111(g) and renounces his character as tenant when he sets up title in a third person or in himself and therefore no occasion for such person to invoke Section 9 and therefore there is no question of notice under Section 11 of the Tamil Nadu City Tenants Protection Act. The tenant who has moved out of the umbrella of protection given under the Act by denying the title of the landlord is not entitled to Insist upon a notice under Section 11 of the City Tenants Protection Act because there is no relation as landlord and tenant. Palani Animals case will be applicable only where the tenant has unequivocally denied the title of the plaintiff in a suit for recovery either by setting up title in himself or by setting up title in any other third party. This ruling is not applicable to the present case because the defendant has never asserted title in himself or in any third party and has admitted the original title of Sastriyar and the husband of the plaintiff, late Muthusamy Gounder but only questioned the claim of the plaintiff under the Will which he denied as true and genuine.

29. It is not in dispute that the plaintiff has not issued notice under Section 11 of the City Tenants Protection Act calling upon the defendant to vacate and offering to pay reasonable compensation for the superstructure put up by the tenant.

30. The arguments advanced on behalf of the respondent is that the defendant has not specifically pleaded in his written statement that the suit is bad for want of Section 11 notice. Therefore it has to be held that the defendant has waived his rights in respect of Section 11 notice. It is also stated that the defendant has not raised this contention at the time of trial and has only raised it at the time of the first appeal.

31. So far as this defence taken by the respondent the answer is found in a, decision reported in Mohamed Hussain Rowther v. T.M.Tirupathi Chettiars (died) and others, 1966 (I) M.L.J. 206 wherein it As held that:

' The provisions of Section 11 of the Madras City Tenants Protection Act is mandatory and non- compliance with the provisions should entail dismissal of the suit. It is no doubt true that despite the mandatory character of the provisions it is open to a defendant to waive his right under the Section. But waiver is a question of fact and ought to be pleaded and proved in every case. It is for the plaintiff set up and prove-the plea of waiver and not for the defendant to take up-the plea as the notice is conceived for his benefit.

That was also a case where the defendant has not pleaded in the suit for recovery filed by the landlord that the suit is bad for want of Section 11 notice. No issues have been framed with regard to this and this was not raised during the time of trial. It was also pointed out that it a matter of pleading and it is for the plaintiff to plead in the plaint that the defendant is not entitled to under Section 11.

32. In S.A.Ramachandran v. S.Neelavathy, the Supreme Court has held that:

Suit instituted for eviction without issuing notice under section 11 or before expiry of 3 months of issue of notice can not be proceeded with.

Section 11 notice is a condition precedent and no suit for eviction should be instituted without issuing notice under Section 11.

In fact, the Supreme Court has left the questions open as to whether under the Madras City Tenants Protection Act waiver of notice under Section 11 is applicable without giving any authorative, pronouncements. It was also held that even where the tenant had failed to file a petition under Section 9 seeking the benefits of the City Tenants Protection Act, he can still raise the question of maintainability of the suit for want of notice under Section 11 of the Act. So, the failure on the part of the tenant to file an application under Section 9 of the Act within the prescribed time after the institution of the suit itself is no ground to hold that he has waived her rights. Therefore, there is no question of waiver of notice on the part of the defendant and the lower Appellate Court was correct in dismissing the suit for want of Section 11 notice.

33. Since the defendant has not denied the title of the original lessor or his successor and since the defendant has not set up title in himself nor in any third party, there is no question of forfeiture of the tenancy. The defendant has never denied that he is the tenant and is in possession of the land only as such He has not claimed any right over and above what has been granted to him under the lease.

34. Therefore, even though the findings of the lower Appellate court that the plaintiff has not proved her title in Ex.A8 is set aside, the suit for recovery has to fail for want of notice under Section 11 of the Act. While setting aside the findings with regard to the Will, the findings with regard to the recovery of possession by the lower Appellate Court has to be confirmed.

35. In the result, the appeal fails and the same is dismissed. However without costs.