Shyam Sunder Kishan Lal v. Sajjan Kumar Singhania — 1995 DIGILAW 488 (PAT)

Judgment P.K.Deb, J. 1. This Revision petition is under Sec. 14(8) of the Bihar Buildings (Lease, rent & Eviction) Control Act has been filed by the above named defendants petitioners against the judgment and order dated 24.1.1994 passed by Shri S.N. Singh. Munsif. Ranchi in Eviction (Title) Suit No. 51 of 1992 whereby and where under the Eviction suit was decreed in favour of the plaintiffs-Opposite Parties for eviction of the defendants-petitioners on the ground of personal necessity of the plaintiffs-Opposite parties. 2. The facts of the case run as follows. One Jhabarmal Singhania was admittedly the owner of the suit premises described in the schedule of the plaint in the above mention Eviction suit along with other lands and during his life time, the defendants have been inducted as tenants on monthly rent in the suit premises comprised of three kathas 11 1/2 Chattak within municipal survey plot Nos. 1772, 1773, 1774, 1775, 1786 and 1826 corresponding to Municipal holding No. 925 (old) New Holding No. 1304 within Ward No. II (Old) new Ward No. VI of Ranchi Municipal Corporation situated at Upper Bazar Ranchi. Before the death of Jhabarmal Singhania. he executed a deed of trust in respect of his properties as he was childless, but afterwards he changed his mind and executed a registered will on 22.8.1960 and it is the case of the plaintiffs that all his properties have been bequeathed by the will in favour of Parmenshwar Lal Singhania, predecessors-in-interest of the plaintiffs and their uncle Hanuman Prasad Singhania. As per terms of that will front portion of the properties being shop premises along with godown and Chabutra on the ground floor of the building were given absolutely to Parmeshwar Lal Singhania father of the plaintiffs and the back portion after the godown was given to the uncle Hanuman Prasad Singhania and the wall in between the rooms was in joint possession of both the beneficiaries. It is the case of the plaintiff that after the death of Jhabarmal Singhania, their father Parmeshwar Lal Singhania applied. It is the case of the plaintiff that after the death of Jhabarmal Singhania, their father Parmeshwar Lal Singhania applied. before the Judicial Commissioner, Ranchi for grant of letters of Administration, according to the will, which was registered as Case No. 57 of 1971 and the case was disposed of on 1.7.1975 by grant of letter of administration in terms of the judgment and by this the plaintiffs father became the absolute owner with respect to the properties bequeathed in his favour by the will. Afterwards on 9.5.1992 the father of the plaintiffs died leaving behind the plaintiffs as his sons and legal heirs who inherited the properties left by their father including that of suit properties, by virtue of will of Jhabarmal Singhania and letters of Administration granted on 1.7.1975. Thus according to the plaintiffs after the death of Parmeshwar Lal Singhania, who was the landlord during his life time, as per the will land letter of Administration, the plaintiff became the owners and landlords within the meaning of Sec. 2(f) of the Bihar Buildings Control Act with respect to the portion of the building premises along with the suit property. The rooms in possession of the defendants consists of one shop room, one godown and a Chabutra as described in the Schedule of the plaint and the defendants were possessing the same as a monthly tenant an payment of rent of Rs. 121- per month, consequence of determination of fair rent at the instance of the defendants, by Order of Sub-divisional Officer-cum-Rent Controller in the year 1976. It has further been stated in the plaint that instead of making payment of rent either hand to hand or by money orders to the plaintiffs, the defendants are depositing the monthly rents in the Treasury of false pretext that the rent of the suit premises are being demanded by other persons also. It is their further case that defendants have never paid nor tendered rent of building premises Since October, 1971 upto the date of filing of the suit, but for the present they are filing the suit for eviction of the defendants on the ground of personal requirement and they are reserving their right to file a separate suit on the ground of default in payment of rent. 3. 3. The suit for eviction was filed as according to the plaintiffs, the suit premises were required for their own use and occupation as the sons of the plaintiffs are doing business of commission and brokers in a rented premises belonging to one Bhagwandas situated at Upper Bazar, Ranchi on rent but they were being pressed by their landlords for vacating their rented premises and as such for doing business by the plaintiff No. 1 son, they are desirous of getting the suit premises vacated. Other grounds of personal necessity have also been pressed such as plaintiff Nos. 2 and 4 are doing business in partnership along with plaintiff No. 1 in another premises and Ratan Kumar Singhania one of the plaintiff is sitting idle and he his keen of establishing a separate business of T.V. sets in a portion of the suit premises. It has also been stated that due to paucity of accommodation in the existing premises the plaintiffs are not in a position to arrange marriage of two major sons of Padamda Singhania, one of the plaintiff. Some more grounds have also been taken for eviction of the suit premises on plea of personal necessity. 4. On appearance, defendants filed Written Statement contending, inter alia, that the suit as framed in not maintainable, the suit is false, vexatious, barred by Limitation and also barred by the principles of Waiver, Estoppel and Acquiescence, and that the suit is also bad for non joinder of necessary parties i.e. Hanuman Prasad Singhania and two daughters of Parmeshwar Lal Singhania and other beneficiaries named in the will of late Jhabarmal Singhania. The main ground of contest of the defendants is that the suit is barred under Order 31 C.P.C. as the suit premises including other properties belong to a Trust created by Jhabarmal Singhania by the will dated 22.8.1960 and so long the trustees appointed by the Testator do not come up for evicting the defendants the suit in the present form is not maintainable. Their further plea is that the plaintiffs predecessor Parmeshwar Lal Singhania was never given any absolute right or ownership over the suit premises and as such neither Parmeshwar Lal Singhania nor the plaintiffs have ever became the owner of the suit premises and they are also not landlord as per the definition of Sec. 2(f) of the Bihar Buildings Control Act, 1982 as admittedly, Parmeshwar Lal Singhania nor his sons had ever collected rents from the defendants. But they have admitted that they are tenants from the Original owner Jhabarmal Singhania. They have also denied the grounds of personal necessity as averred in the plaint by the plaintiffs on factual aspect and legally it has been challenged to the effect that the plaintiffs not being the owner of the suit premises cannot even raise the plea of personal necessity as contemplated under Sec. 1 l(c) of the Bihar Building Control Act. 5. On the basis of the pleading of the parties, following issues were framed by the learned Munsif: (i) Is the suit as framed maintainable ? (ii) Have the plaintiffs any cause of action in the suit ? (iii) Whether the plaintiffs required the suit premises reasonably and in good faith for their own use and occupation ? (iv) Whether the partial eviction of defendants will serve the purpose of plaintiffs or not ? (v) Is the suit bad for non-joinder of necessary party ? (vi) To what other relief or reliefs if any, are the plaintiffs entitled ? 6. On behalf of the plaintiff in total, eight witnesses have been examined while five witnesses have been examined for and on behalf of the defendants. The evidence as is found on scrutiny is mainly on the point of personal necessity and denial of it. The learned court below decided all the issues in favour of the plaintiffs including the issue of maintainability and passed and impugned decree as mentioned above. 7. It appears that the crux of dispute between the parties are on the terms of the will executed by the original owner Jhabarmal Singhania and letters of Administration obtained by the predecessors of the plaintiffs. 7. It appears that the crux of dispute between the parties are on the terms of the will executed by the original owner Jhabarmal Singhania and letters of Administration obtained by the predecessors of the plaintiffs. The point required to be decided is whether the plaintiffs predecessor Parmeshwar Lal Singhania was bequeathed of the suit property along with others by the will dated 22.8.1960 by the original owner Jhabarmal Singhania and whether by grant of letters of Administration, he had been made legally owner of the same and as such entitled to carry on the eviction proceeding against the defendants. 8. The defendants were the tenants of Jhabarmal Singhania is an admitted fact and that the .plaintiffs have never claimed their ownership by right of inheritance or succession, but they have claimed right of ownership on the basis of the will and grant of Letters of Administration as mentioned above. There is some difference about the owner and landlord as contemplated under the Bihar Buildings Control Act for the purpose of eviction proceeding under the said Act. Sec. 2(f) defines landlord which run as follows: "Landlord" includes the person who for the time being is receiving or is entitled to receive the rent of a building whether on his own account or on behalf of another, or on account or on behalf of for the benefit of himself and others or as an agent, trustee, executant, administrator, receiver, guardian or who would receive the rent or be entitled to receive the rent, if the building were let to a tenant. Thus the right of the plaintiffs are to be considered in the light of the above definition of the landlord for maintaining the eviction proceeding against the defendants. Admittedly, the plaintiffs or their father Parmeshwar Lal Singhania never received rents from the defendants rather it appears that after the death of Jhabarmal Singhania the defendants moved the Rent Controller for a direction as they were in a fixy as the rent was being demanded by the several persons. After hearing the parties made in that petition from the side of the defendants, namely, Hanuman Prasad Singhania and another person representing the alleged trust, the Rent Controller ordered that till the ownership of building and the entitlement of Landlord ship over the suit premises is decided by a competent court, the defendants should deposit the monthly rent of Rs. After hearing the parties made in that petition from the side of the defendants, namely, Hanuman Prasad Singhania and another person representing the alleged trust, the Rent Controller ordered that till the ownership of building and the entitlement of Landlord ship over the suit premises is decided by a competent court, the defendants should deposit the monthly rent of Rs. 12.00 per month in the Treasury/and till the filing of the suit and as argued till date the defendants are depositing rent at the Treasury as per decisions arrived at by the Rent Controller. 9. Thus, the plaintiffs or their predecessor Parmeshwar Lal Singhania does not come within the first clause of definition of landlord as they never collected rent from the defendants. They have also admitted the same, in the plaint itself but their plea is that they are entitled to receive the rent of the building as per terms of the Will for which Letters of Administration had already been granted by a competent court. So, we are to see whether the terms of the Will and the contents made thereof, whether had given the absolute right of ownership on the predecessor of plaintiffs or not. 10. Mr. Kameshwar Prasad, counsel appearing for and on behalf of the plaintiff-Opposite Parties have strenuously argued that the terms of the Will and the Letters of Administration or granted in favour of Parmeshwar Lal Singhania had absolutely established the right of ownership of the suit premises of Parmeshwar Lal Singhania. 11. The Letters of Administration does not create any right of title in favour of any party but only gives a legal force to the last wishes of the testator made in a Will and for which Letters of Administration or Probate is always granted along with a copy of the Will. At best the person in whose favour the Letters of Administration is granted or Executor of the Will in whose favour Probate is granted he holds the property for and on behalf of the beneficiaries as per terms of the Will. The title of any person or the beneficiaries or the person in whose favour it is probated or Letters of Administration granted is not decided by a Court granting the same. So the contents of the Will can only set at rest the crux of the dispute between the parties. 12. Mr. The title of any person or the beneficiaries or the person in whose favour it is probated or Letters of Administration granted is not decided by a Court granting the same. So the contents of the Will can only set at rest the crux of the dispute between the parties. 12. Mr. M.Y. Eqbal, counsel appearing for and on behalf of the petitioners has strenuously argued that the plaintiffs title over the suit premises cannot be flowed from the order granting Letters of Administration by the Judicial Commissioner, Ranchi because the court granting Probate or Letters of Administration can only decided about the genuineness or otherwise of the Will and not the title of the person probated or Letters of Administration granted in favour of any of the beneficiaries. He has referred to AIR 1920 Patna, 343 (Debandra Prasad Sukul V/s. Surendra Prasad Sukul and Ors..) and AIR 1955 Travancore-Cochin, 177 (John Simon Gomez V/s. George John Gomez and Ors). 13. On scrutiny of Ext.2, the order dated 1.7.1975 passed in the Letters of Administration Case No. 57/71, it could not be found anywhere that the petitioners in that case had ever been declared of title by the court and practically and legally also court cannot grant so. It was only mentioned in the order that the executant, Jhabarmal Singhania at Ranchi on the date of execution of the Will gave property in favour of the petitioners. Such sort of averment in the order does not create any title in favour of the predecessor of the plaintiffs. It is to be seen only on the construction of the Will as to what right has been given to the predecessor of the plaintiffs. It has been held by the Apex Court in AIR 1976 S.C. Page-794 that the intention of the testator is to be construed by reading the Will as a whole and not by stray using of some words here and there. So the duty of the Court would be to construe the wordings of the Will with proper caution and care to find out the intention of the testator. 14. It has been admitted by both the parties and legally also by a Will a testator can bequeath his properties in favour of legatees or he can create a trust. So the duty of the Court would be to construe the wordings of the Will with proper caution and care to find out the intention of the testator. 14. It has been admitted by both the parties and legally also by a Will a testator can bequeath his properties in favour of legatees or he can create a trust. Here, it should be mentioned that Jhabarmal Singhania prior to execution of the Will in question executed another trust deed in respect of his properties but by the present Will, he cancelled the previous trust. Ext.3 is the Will which is typed one and registered and at the very beginning it was stated in the following manner: Lekhadhari Sri Parmeshwar Lal Singhania or Shri Hanuman Singhania,, Athwa En Dono Ke Jo Bhi Utradhikari Honge Unka Hak Hoga. 15. On these wordings, Mr. Kameshwar Prasad argued that from the very wordings as mentioned above the Testator intended that whole of his properties should go in favour of Hanuman Prasad Singhania and Parmeshwar Lal Singhania and none else. He gave much stress on the wording of HAK and by referring the Legal Glossary published by Government of India, Law Department in 1992 on the meaning of the word HAK where in it is mentioned that HAK is meant by title and on the other hand title is also meant as HAK, but the meaning of title was mentioned as legal right "particularly to the possession of property". The word HAK should be construed in the context it is used always it might not mean the title rather it may mean right or legally right whatever might be. But by the wordings as mentioned above, it could be found that the intention of the Testator was that in his properties Parmeshwar Lal Singhania and Hanuman Prasad Singhania and their heirs shall have right but afterwards he has explained the right and the form of it in subsequent paras. He had never given any absolute right to Parmeshwar Lal Singhania or Hanuman Prasad Singhania. He had totally restricted very right of gift, sale and transfer and the right (HAK). He had never given any absolute right to Parmeshwar Lal Singhania or Hanuman Prasad Singhania. He had totally restricted very right of gift, sale and transfer and the right (HAK). We has explained in subsequent line in the following manner: MERE BHARTA SWARGIYA SHRI JODHRAJ KE POTRA HAI UNKO NIMNALIKHIT SHARTO PAR BHOG KARNE KA HAK HOGA So he had given only the right of enjoyment of the property in favour of Hanuman Prasad Singhania and Parmeshwar Lal Singhania. he made a division in the property and the right of enjoyment have been specified between the two. Their whole right of transfer have been restricted. Most interestingly on the later portion he had mentioned that for management of the property, a trust would act and he has mentioned five persons as his trustees and it was also mentioned that if any of the trustees dies then the other trustees shall have right to opt the fifth trustee and trustees have been given the authorities of collection of rent of the premises where the tenants are in possession including the suit premises as the defendants were in possession as monthly tenant since the days of testator Jhabarmal Singhania. He has also made provisions as to how the rent is to be utilised by giving a portion of it to some destitute relatives and some portion towards salvation and the rest in favour of Parmeshwar Lal Singhania and Hanuman Prasad Singhania in respect of their shares specified in the Will. Right was given to these two legatees namely, Parmeshwar Lal Singhania and Hanuman Prasad Singhania to enjoy the properties given to them by physical possession by ousting the tenants but this ousting of tenants have been specifically given power of to the trustees and the possession of the properties by Parmeshwar Lal Singhania and Hanuman Prasad Singhania would be at the option of the trustees by settlement of rent with the trustees. 16. 16. The position may be clarified by actual words used in the will as mentioned below: YADI UPROKT DUKAN AW AM GODAM SHRI PARMESHWAR LAL DUSRE DO BHARA ME NA DEKAR SWWAM APNE KAM KE LIYE RAKHNA CHAHE TO TRUSTIYO SE BHARA TAY KARKE RAKH/SAKTA HAI TATHA JO BHI BHAREDAR RAHEGA WAH MAHINE KEMAHINE TRUSTIYO KO BHARA DE DEGA TATHA SAMAYPAR BHARA NAHI MILINE PAR TRUSTIYO KO ADNIKAR HOGA KI USKI SUCHNA DEKAR DEKAN KHALI KARBA KAR KISI BHI BHAREDAR KO DUKAN DE SAKTA HAL DUKAN KA JO JO BHI BHARA AYEGA USKA UPAR LIKHE ANUSAR ADA KARNA WA BATBARA KARNE KA ADHIKAR TRUSTEEYO KO HOGA. Thus, it appears that except the right of enjoyment of the property and to get the share of the monthly rent to be paid by the rent holder, all management of the properties have been given in the hands of the trustees. Predecessors of the plaintiffs were never given any absolute right over the suit premises nor he had been given the right to evict the tenants, all rights rested only with the trustees. 17. Mr. Kameshwar Prasad argued that in construing the terms of the Will, if it is found that at one stage absolute right had been given to one of the legatees then any condition imposed on that right of enjoyment should be considered as repugnant. He has referred to AIR 1926 Calcutta, 417 (Dayamayi V/s. Shankar Nath Mukhopadhyaya and Ors). In this respect and also AIR 1928 Oudh, 49 and AIR 1926 Oudh Page-43 i and also Kunwar Rameshwar Baksh Singh and Ors. V/s. Balraj Kuar and Ors. AIR 1935 P.C. 187. 18. It is an established legal principal that once an absolute right is conferred on a parson then subsequent restriction on that right of enjoyment is always considered as null and void. But, here nowhere in the Will absolute right was ever given to any of the legatees nor the predecessor of the plaintiffs. They were given right of enjoyment in clear terms. All their rights of transfer have been restricted and the right of enjoyment was also given at the option of the trustees towards the physical occupation of the same. I do not find intention of the testator anywhere to bequeath property absolutely in favour of the predecessor of the plaintiffs or the legatees. All their rights of transfer have been restricted and the right of enjoyment was also given at the option of the trustees towards the physical occupation of the same. I do not find intention of the testator anywhere to bequeath property absolutely in favour of the predecessor of the plaintiffs or the legatees. Thus, from construction of the Will, I do not find that the predecessor of the plaintiffs was ever given any right absolutely over the property except the right of enjoyment of the same. The right of eviction of the tenants have also been conferred on the trustee that too on ground of non-payment of rent. Thus, from the construction of the Will, plaintiffs father had not got any right of eviction of the tenants and as such the same did not flow on his death to the plaintiffs. It appears that the plaintiffs very much stressed that as their father had taken Letters of Administration, he had been conferred with the title regarding the suit properties. 19. I have already mentioned that Letters of Administration or Probate never confer title to any person but it only gives legal force to the intention of the Testator inthe Will. 20. Mr. Kameshwar Prasad referred to -- (Indian Oil Corporation v. Himangshu Kumar Ghosh), wherein it was held that the Executor of the Will, who has been granted probate can sue to the tenants for eviction. The facts of that case are totally different. By the Will of the testator, the son of the Executor was given right and title by bequeath over the tenanted properties and Executor was given the right of possession till his death along with his son. So the executor and his son brought the suit for eviction against the tenants and in that light it was stated that the Will probated in favour of the executor had given the right of the executor along with his son to sue the tenants for eviction. Here, in the present case, that is not the position as mentioned above. So that Ruling has got no bearing in the present circumstances of the case. 21. Mr. Here, in the present case, that is not the position as mentioned above. So that Ruling has got no bearing in the present circumstances of the case. 21. Mr. Kameshwar Prasad, lastly stressed that the Will although created some Trust in its later portion, it was never acted upon and trustees never consented to it nor they had taken over the charge of the properties on the death of the testator and as such even if the trust was said to be created by a portion of the Will, that trust never came in existence, even the trustees never applied for Letters of Administration. It was the plaintiffs father who took the Letters of Admini stration by filing a case before the Court and as such trust did never exist in the eye of law. But, it appears from the Ext.2, the order of Letters of Administration that the plaintiffs father took the Will from one of the trustees for filing an application for Letters of Administration. This clearly shows that the trustees took all care regarding the Testators intention and the Will was in their possession. under the law, a beneficiary is entitled to take Letters of Administration. Here in the present Will, no Executor had been appointed and as such any of the beneficiaries were at liberty to take Letters of Administration and accordingly, the plaintiffs father did so. Moreover, in the evidence of one of the defendants, it has been clearly stated that the trust is still in existence and the names of the present trustees have also stated. That has not been categorically denied from the side of the plaintiffs. It appears that plaintiffs from the very beginning suppressed the fact of trust and based their claims only on the order of Letters of Administration, as if the plaintiffs father was conferred title by issuance of letters of Administration in his favour by the Will of the testator. It has further been stated for and on behalf of the opposite Parties that before the Commissioner of Rent Controller, the defendants as petitioners wrongly put someone as a trustee of Jhabarmal Singhania Trust (although no such name was created by the Will) and Hanuman Prasad Singhania as party. It has further been stated for and on behalf of the opposite Parties that before the Commissioner of Rent Controller, the defendants as petitioners wrongly put someone as a trustee of Jhabarmal Singhania Trust (although no such name was created by the Will) and Hanuman Prasad Singhania as party. Proper parties were never made, but it appears that the proceedings before the Commissioner of Rent Controller were known to the plaintiffs and that was made the cause of action in the present suit. But, it was never objected to from the side of the plaintiffs that they were the real owner of the suit property being bequeathed by a Will of the testator. It might be that the wrong persons were made parties in that petition under Sec. 21 and 22 of the Bihar Buildings Rent Controller Act. But, the fact remains that there was dispute as to who should collect the rent and as such the defendants made a petition and as per that Order, rent was asked to be deposited in the Treasury till the competent court decides about the ownership of the suit property. But, without going for nay suit for declaration of title by the plaintiffs on their father they have preferred this Eviction suit via media to have their title declared over the suit property. 22. In the position and circumstances as mentioned above, the suit in the present form is not maintainable as the present plaintiffs are not the landlords as contemplated under Sec. 2(f) of the Bihar Buildings Control Act and they cannot come up for eviction suit against the defendants. 23. Mr. Kameshwar Prasad has further stated that in the present: days of economy, where rent fixed at Rs.12.00 is totally misconceived. I do admit that this rent in the present days is too meagre and the defendants to enjoy the property must pay the proper rent, but that can be decided only under the Bihar Buildings Control Act in a proceeding for determination of fair rent. 24. I do admit that this rent in the present days is too meagre and the defendants to enjoy the property must pay the proper rent, but that can be decided only under the Bihar Buildings Control Act in a proceeding for determination of fair rent. 24. Regarding the personal necessity as pressed for the purpose of eviction, it is not necessary to be gone into in view of the non maintainability of the suit as held earlier, but legally also this personal necessity as contemplated under Sec. 1 l(c) of the Bihar Buildings Control Act is not available to the plaintiffs as they are not the landlord or owners entitled for occupation. They have only got the right of enjoyment of the properties, if the tenants are evicted by the trustees for non payment of rent and on settlement of rent with the trustees. So the personal necessity as contemplated under the above provision of the Act is not available to the plaintiffs. So in any score the plaintiffs Eviction Suit is not maintainable and hence the decree granted by the court below is not legally maintainable and hence the same is set aside. 25. The revision petition is allowed and the impugned judgment and order of Eviction is hereby set aside. In the nature and circumstances of the case, no cost is awarded, to any of the parties.