Ganga Devi v. Ramesh Chandra Verma — 1979 DIGILAW 1234 (ALL)

ORDER K. C. Agarwal, J. -This is a defendants revision filed against a judgment of the Additional District Judge, Mainpuri dated 13-1-1978 rejecting a revision of the defendant filed under Section 25 of the Provincial Small Causes Courts Act. 2. Ramesh Chandra Varma was the Owner and landlord of shop No. 1833 Situate in Mohalla Debi Road, Mainpuri-The shop had been let out to Shri Ram Saxena, the husband of the defendant-applicant, at a monthly rent of Rs. 50/-. On 28-8-74 Shri Ram Saxena died leaving behind Smt. Ganga Devi as his sole heir. As the rent of the shop in dispute had not been paid since September 1, 1972, in spite of several demands, the plaintiff terminated the tenancy of the defendant by a notice by which she was also called upon to pay the arrears of rent. The defendant neither vacated the shop nor paid the arrears of rent. Thereafter, the plaintiff filed the suit on two grounds. These grounds were (1) default in payment of arrears of rent, (2) illegal sub-letting. The defendant admitted that she was a tenant of the shop in dispute but denied that she was either in default or had sub-let the shop as alleged by the plaintiff. She also claimed that the suit was bad for non-joinder of necessary parties. 3. On the pleadings of the parties, as many as seven issues were framed. All the seven issues were found in favour of the plaintiff. The Judge Small Cause Court, which was the trial court, held that the defendant had illegally sub-let the shop and as such was liable to eviction. The finding of the default in payment of rent was also recorded against the defendant. 4. Aggrieved, the defendant filed the revision. The revision was also rejected. Hence this second revision under Section 115 of the Code of Civil Procedure. 5. The first argument raised by the learned Counsel for the applicant was that the suit was defective. The submission was that as on the death of Shri Ram Saxena, the right of the deceased in the tenancy of the shop had been inherited by the defendant-applicant and by the four sons and daughters of Smt. Mmnni Devi, who was above widow of the deceased Sri Ram Saxena, the suit was liable to be dismissed. 6. The submission was that as on the death of Shri Ram Saxena, the right of the deceased in the tenancy of the shop had been inherited by the defendant-applicant and by the four sons and daughters of Smt. Mmnni Devi, who was above widow of the deceased Sri Ram Saxena, the suit was liable to be dismissed. 6. The argument involves two controversies, (1) whether Munni Devi was the legally wedded wife of Shri Ram Saxena, (2) whether the sons and daughters born from Munni Devi were entitled to succeed to the tenancy right of the shop. 7. On the first question, evidence was adduced by the parties. The Judge Small Cause Court accepted the evidence of the plaintiff and found that Smt. Munni Devi was a concubine and was not a legally wedded wife of the deceased Shri Ram Saxena. She also asserted that there was no other heir of Shri Ram Saxena excepting herself. Apart from the affidavit of Smt. Ganga Devi, there was other evidence which was considered by the Judge Small Cause Court and the finding was that Smt. Munni Devi was a Berin. which means a prostitute. Even if, therefore, Shri Ram Saxena cohabited with her the same could not give rise to a presumption that she was a legally wedded wife. It is true that the fact that she was living under the control of a man who generally lived with her and acknowledged her children as his own raises a strong presumption that she is the wife of that man but this presumption that she is the wife of that man is rebuttable by the fact that no marriage had taken place. The two courts below went into the evidence of the parties in detail and after having discussed the same found that she was not a wedded wife. 8. As Smt. Munni Devi was not a legally wedded wife, children born from her were illegitimate and could not be included within the definition of the word heir given in Section 3 (f) of Hindu Succession Act. The definition given is:- Heir means any persons, male or female were entitled to succeed to the property of an intestate under this Act. 9. The definition given is:- Heir means any persons, male or female were entitled to succeed to the property of an intestate under this Act. 9. Under the Hindu Succession Act, an illegitimate person is not entitled to succeed to the property of an intestate Section 6 of the Hindu Succession Act read with class of the Schedule lays down the order of succession. Those heirs take simultaneously and to the exclusion of all other heirs. Amongst them are : son, daughter, wife. The expression son has not been defined. It includes both a natural and a son adopted in accordance with the law. The illegitimate son of a male dying intestate is not entitled to any share of the inheritance. That being so, the sons and daughters of Munni Devi could not be considered as heirs within the meaning of that phrase defined in the . Hindu Succession Act. 10. I was driven to refer to the provision of Hindu Succession Act because of 5 the definition of word tenant given in Section 3 (a) of U. P. Act XIII of 1972. ) The definition is as under:- "Tenant" in relation to a building, means a person by whom its rent is payable, and on the tenants death - (1) in the case of a residential building, such only of his heirs as normally resided with him in the building at the time of his death. 11. Sub-section of the said definition uses the expression heirs. Since the word heirs has to be interpreted with reference to the personal law of a tenant, one has necessarily to refer to the personal law for finding out the heirs of a deceased tenant. 12. From the discussions made above, the irresistible conclusion is that since neither Munni Devi nor her sons and daughters were the heirs of the deceased Shri Ram Saxena, the suit could not be said to be bad for non-joinder of parties. From this, it follows that the notice sent to Smt. Ganga Devi was also not defective and that the tenancy of the defendant-applicant had been lawfully terminated. 13. Counsel also attempted to assail the finding on the question of default and sub-tenancy but could not successfully do so. These findings are those of fact. From this, it follows that the notice sent to Smt. Ganga Devi was also not defective and that the tenancy of the defendant-applicant had been lawfully terminated. 13. Counsel also attempted to assail the finding on the question of default and sub-tenancy but could not successfully do so. These findings are those of fact. It is not open to this Court to reappraise the evidence and to record a finding of its own different to that of the courts below : 14. In the result, the revision fails and is dismissed with costs. The applicant is allowed two months time to vacate the shop subject to the condition that the applicant deposits the entire damages up to date within one month from today failing which he will not be entitled to get two months. The applicant is further directed to hand over vacant possession of the shop to the respondent landlord within this period of two months.