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2008 DIGILAW 1634 (PNJ)

Kheru Ram v. Som Nath

2008-09-22

VINOD K.SHARMA

body2008
Judgment Vinod K.Sharma, J. 1. The landlord filed a petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 for eviction of the respondents from the shop situated in Sadar Bazar, Dhuri on the plea that Barkha Ram father of the respondent was tenant in the shop in dispute @ 40/- per month from 6.4.1974 to 5.4.1977. 2. It is the case of the petitioner-landlord that Barkha Ram died on 24.1.1977, who had executed a registered Will in favour of his son Ved Parkash respondent No. 1 bequeathing his all moveable and immovable property including the rights of the shop in dispute. 3. It was claimed that after the death of Barkha Ram, Ved Parkash did not make the payment of rent as respondent No. 1 was in service at Delhi Development Authority, Delhi as Section Officer, who succeeded to the rights of the tenancy of the premises in question. Thus, the eviction of respondent was sought on the ground that respondent No. 1 is in arrears of rent w.e.f. 1.4.1976 and that respondent No. 1 has sublet the premises in dispute to respondent No. 2 without the written consent of the petitioner. The petition was not contested by respondent No. 1 i.e. Ved Parkash. However, respondent No. 2 Som Nath appeared and tendered the rent on the first date of hearing along with interest and costs. The petitioner did not accept the tender on the plea that respondent Som Nath was not tenant in the premises in dispute. The stand taken by respondent Som Nath was that the premises in dispute was taken by firm named Barkha Ram Som Nath @ 40/- per month although no lease deed was executed by Barkha Ram. It was claimed that rent of the shop in dispute was paid out of the funds of the firm of Barkha Ram Som Nath in which he was partner along with his father. Lateron the firm Som Nath Naresh Kumar was constituted in which Barkha Ram and Som Nath were the partners and rent of the shop was paid out of the funds of the firm of Som Nath Naresh Kumar. Lateron the firm Som Nath Naresh Kumar was constituted in which Barkha Ram and Som Nath were the partners and rent of the shop was paid out of the funds of the firm of Som Nath Naresh Kumar. It was claimed that Barkha Ram executed a Will dated 20.4.1976 whereby he bequeathed all his rights in the shop in dispute including tenancy rights in favour of Som Nath as he was working with his father Barkha Ram in the shop in dispute since 1965. It was claimed that respondent No. 2 was exclusive owner of the business being carried in the shop in dispute. Ved Parkash has not inherited the tenancy rights of Barkha Ram in the shop in dispute after his death on 24.1.1977. The plea of subletting was denied as all other averments made by the landlord in the petition. On the pleadings of the parties, following issues were framed by the learned Rent Controller : 1. Whether Barkha Ram tenanted the premises in dispute for the use of the premises for M/s. Barkha Ram Som Nath ? OPR 2. Whether Barkha Ram revoked the will in favour of Ved Parkash and executed it in favour of Som Nath respondent No. 2 ? OPR 3. Whether Ved Parkash has sublet the premises to Som Nath ? OPA 4. Relief." The parties led their evidence in support of their respective claims. 4 The learned Rent Controller on issue No. 2 held that it was that Barkha Ram took on rent the shop in dispute in his own name, who died on 24.1.1977 leaving behind both respondents as his legal heirs along with some other legal heirs. The plea of the landlord is that respondent No. 1 became the tenant in the shop in dispute after the death of Barkha Ram under a registered Will executed by Barkha Ram in his favour. The case set up by the respondent tenant was that he became tenant in the shop in dispute under Will dated 20.4.1976 as the earlier Will stood revoked. 5. The oral well as documentary evidence was also led to prove the execution of the Will. The case set up by the respondent tenant was that he became tenant in the shop in dispute under Will dated 20.4.1976 as the earlier Will stood revoked. 5. The oral well as documentary evidence was also led to prove the execution of the Will. The learned Rent Controller observed that as there was conflict of opinion between the experts produced by both the parties, it was for the Court to compare the signatures on Ex.R-19 i.e. the Will set up by respondent Som Nath with that of the lease deed i.e. Exs. A-1, A-2, A-3. 6. The learned Rent Controller came to the conclusion that both the signatures are different and, thus, held that the Will set up by respondent Som Nath was not proved on record. The Court also observed that though the previous Will was registered the Will relied upon by Som Nath respondent was not registered Will. He also observed that the evidence brought on record showed that Barkha Ram had shifted to Delhi two years prior to his death. The Court also observed that, in fact, Ved Parkash filed a petition under Section 13 of the East Punjab Urban Rent Restriction Act for eviction of one Dev Raj on the basis of Will dated 16.6.1975 in his favour. The learned Rent Controller also observed that there were proceedings under Section 145 between father Barkha Ram and respondent No. 2, thus, held that subsequent Will set up by respondent was not proved on record. 7. The learned Rent Controller, thus, came to the conclusion that in view of the admission of previous Will in the subsequent Will it was not open to respondent Som Nath to challenge the said Will. Consequently held that the said shop was bequeathed to Ved Parkash-respondent No. 1. 8. In view of the findings recorded on issue No. 1, the learned Rent Controller decided issue No. 1 against the respondent and held that evidence on record showed that after the death of Barkha Ram, respondent No. 2 to be in possession of the demised premises as he was running his business there. 9. 8. In view of the findings recorded on issue No. 1, the learned Rent Controller decided issue No. 1 against the respondent and held that evidence on record showed that after the death of Barkha Ram, respondent No. 2 to be in possession of the demised premises as he was running his business there. 9. It was held that as the case set up by the respondent No. 2 was that he was the tenant, therefore, he was to be treated as a sub-tenant as in the case of subletting, the landlord has to only prove that a 3rd person other than the original tenant is in possession of the premises, then the onus shifts to the person in possession to show as to in which capacity he is in possession of the premises and in case the capacity is not shown the presumption is to be drawn that the premises has been sublet. Thus, issue No. 2 was decided in favour of landlord. Consequently, the eviction was ordered. The tenant went in appeal. 10. The learned Appellate Authority has reversed the findings recorded by the learned Rent Controller. The learned Appellate Authority came to the conclusion that the registered Will alleged to have been executed in favour of Ved Parkash, was not proved on record and further came to the conclusion that if the Will set up by respondent Som Nath was held to be invalid the Will in favour of Ved Parkash was also not proved, therefore, it has it to be held that the respondent had right of tenancy and, therefore, could not be treated to be a sub-tenant. The learned lower Appellate Authority also observed as under : "The controversy can be seen from another angle also. A `tenant as defined in Section 2 of the Act, means any person by whom or on whose account rent is payable for a building or a rented land. Admittedly, Barkha Ram was originally a tenant in the demised shop and after his death, respondent No. 1/landlord could claim rent from all his legal heirs unless some will was put forward by the legal heirs and in that case, the rent was payable by that legal heir only. Admittedly, Barkha Ram was originally a tenant in the demised shop and after his death, respondent No. 1/landlord could claim rent from all his legal heirs unless some will was put forward by the legal heirs and in that case, the rent was payable by that legal heir only. In this case, Ved Parkash, respondent No. 2, has not set up any will in his favour from his father, Barkha Ram, while appellant Som Nath has set up a will in his favour from Barkha Ram. Kheru Ram, respondent No. 1/landlord, could not treat Ved Parkash, respondent No. 2, alone as his tenant in the demised shop after the death of Barkhas Ram, when Ved Parkash, respondent No. 2 has not claimed tenancy rights in the demised shop on the basis of any such will and nor Som Nath appellant has admitted the execution of any will by Barkha Ram in favour of Ved Parkash, respondent No. 2. In other words, it is the appellant, being the son of Barkha Ram and on the basis of the will, Ex. R.19, which he claims to have been executed by Barkha Ram in his favour and is not contested by any other legal heir of Barkha Ram, who is liable to pay the rent after the death of Barkha Ram and as such is covered by the definition of `tenant, as given in Section 2 of the Act and Ved Parkash - respondent No. 2, is not liable to pay the rent of the demised shop, as he has not himself set up any will in his favour in these proceedings and has neither come forward to dispute the will, Ex. R. 19, set up by Som Nath Appellant in his favour and as such he is not covered under the definition of `tenant, as given in the Act." to reverse the finding of sub-tenancy. Consequently, allowed the appeal. 11 Mr. R.K. Gupta, learned counsel appearing on behalf of petitioner has challenged the findings recorded by the learned lower Appellate Authority on the plea that Will in favour of Ved Parkash was a registered Will, which stood duly proved on record and it was not open to the learned Appellate Authority to have reversed the said finding on the basis of presumption. The contention of the learned counsel for the petitioner, therefore, was that in the present case beside examining the attesting witness the petitioner has also examined the Sub-Registrar, who had registered the Will and, thus, the Will in favour of Ved Parkash stood proved. It is further the contention of the learned counsel for the petitioner that even in the Will set up by respondent Som Nath there was mention of registered Will in favour of respondent No. 1. The contention, therefore, was that the learned Courts below by way of concurrent finding have held that the Will set up by respondent was forged. 12. Keeping in view the fact that was admission with regard to the previous Will and the Will set up by Som Nath, thus, for all intents and purposes it has to be taken that respondent No. 1 was the tenant under the registered Will. 13. The further contention of the learned counsel for the petitioner is that once the tenancy of respondent No. 1 is proved on record, it is also admission of respondent No. 2 that he is in exclusive possession of the property in dispute then it has to be held that a tenant has sublet the premises, as presumption in such situation is to be inferred. 14. The learned counsel for the petitioner, therefore, prays that the judgment passed by the learned Rent Controller was well reasoned, which is required to be upheld and that of Appellate Authority set aside. 15. Mr. R.K. Gupta, learned counsel for the petitioner also placed reliance on the judgment of this Court in the case of Daljit Kaur v. Rukman & others, 1989(1) RCR(Rent) 394 : 1989 Civil Court Cases 5 (P&H) to contend that a statutory tenant can bequeath his tenancy rights by Will to one or more of his legal heirs who would have succeeded to him had he died intestate. This Court was pleased to observe as under : "The competency of a statutory tenant to transfer his tenancy rights by Will is here a matter which directly arises in this case and cannot, therefore, be avoided. This Court was pleased to observe as under : "The competency of a statutory tenant to transfer his tenancy rights by Will is here a matter which directly arises in this case and cannot, therefore, be avoided. In dealing with this question keeping in view the relevant provision of East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the Rent Act), it must be appreciated that a bequest of tenancy rights by a statutory tenant in favour of a stranger cannot but stand on a different footing than one to his legal heirs. Whereas in the former, it would be the thrusting of `uncontemplated stranger in the premises, in the latter it would be no more than the coming in of some, if not all, of those upon whom the legislature has conferred a right to succeed to such tenant rights. It is also well settled that an interest that can be inherited can be bequeathed too. On principle, therefore, no exception can be taken to the entitlement of a statutory tenant to bequeath his tenancy rights by will to one or more of his legal heirs who would have succeeded to them had he died in testate. 16. Mr. J.R. Mittal, senior counsel appearing on behalf of the respondents, however, contends that the present revision petition deserves to be dismissed as it was not open to the learned Rent Controller to have gone into intricate question of law to determine whether the Will in favour of a person was valid or not. In support of this contention the reliance was placed on the judgment of this Court in the case of Kartara v. Subhash Chander Sharma and others, 1984(2) RCR(Rent) 599 : 1984(2) Rent Law Reporter 124, wherein this Court has been pleased to lay down as under : "3. Admittedly, the respondents were inducted as the tenants by Rattan Singh, deceased, though initially in the written statement, it was denied. Once it is so admitted that the respondents were inducted as the tenants by Rattan Singh, then in view of the provisions of Section 116 of the Indian Evidence Act, the tenants could not be allowed to deny the title of the landlord. Once it is so admitted that the respondents were inducted as the tenants by Rattan Singh, then in view of the provisions of Section 116 of the Indian Evidence Act, the tenants could not be allowed to deny the title of the landlord. In case they wanted to set up the alleged Will, Exhibit R.1, the proper course for them was to prove the validity of the Will in a Civil Court and to seek their remedy in accordance with law. It is the common case of the parties that the validity of the Will, Exhibit R.1, could not be gone into in these proceedings. In this view of the matter, no meaningful argument could be raised on behalf of the tenants to contend that no relationship of landlord and tenant existed between the parties. Once it is so found, then since the tenants did not tender the arrears of rent on the first date of hearing, they were liable to be ejected from the premises in dispute." 17. The learned senior counsel for the respondent also placed reliance on the judgment of this Court in the case of Smt. Shakuntla Sondhi v. Sh. Narinder Kumar Sharma and others, 1988(1) The Punjab Law Reporter 355 to contend that the statutory tenant of a shop has no right to bequeath the tenancy rights. In the case of Smt. Shakuntla Sondhi v. Sh. Narinder Kumar Sharma and others (supra), this Court was pleased to lay down as under :- "4. I have duly considered the arguments of the learned counsel for the parties. However, I find force in the contention of Mr. Palli. It is not necessary to elaborate the argument as the matter stands concluded by the. Supreme Court in Bhavarlal Labhchand Shah v. Kanaiyalal Nathalal Intawala. It was a case decided under the Bombay Rents Hotel and Lodging House Rates Control Act, 1947. The word `tenant has been defined in Section 5(11) of the said Act and it inter alia includes in relation to premises let for business, trade or storage any member of the tenants family carrying on business, trade or storage as may continue, after his death, to carry on the business, trade or storage, as the case may be, in the said premises and as may be decided in default of agreement by the Court. In that case, a Will had been made by the tenant with regard to business premises in favour of third person. It was observed that a person occupying a non-residential premises as a tenant after the contractual period is over cannot bequeath his right to occupy the property as a tenant under a Will in favour of a legatee who is not a member of his family carrying on business, trade or storage with him in the said premises at the time of his death under section 5(11). There is no justification to saddle the landlord with the liability to treat a stranger who is not referred to in sub-clause (ii) of Section 5(11) of the Act as a tenant on the basis of a bequest made under a Will by the tenant. It is, thus, evident from the above observations that a statutory tenant has no right to bequeath the tenancy right in favour of third person. No doubt the definition of the word `tenant is somewhat different in the East Punjab Urban Rent Restriction Act, but the ratio in the above case will apply to point out that it is alleged in the Will by the testator that the legatee was carrying on business with the testator. The statement does not appear to be correct, as the legatee is a boy of tender age. Taking into consideration all the aforesaid circumstances, I am of the above that Mulkh Raj could not bequeath the tenancy rights of respondent No. 7. Consequently, respondent No. 7 is not a necessary party to the present proceedings. " 18. In the present case, therefore, the first question for consideration would be whether a statutory tenant can bequeath his tenancy rights or not. Though there is a conflict of opinion of this Court in this regard. However, the decision on this question can be taken in view of the law laid down by the Honble Supreme Court in the case of Vasant Pratap Pandit v. Dr. Anant Trimbak Sabnis, 1994(1) RCR(Rent) 747 (SC). 19. Though there is a conflict of opinion of this Court in this regard. However, the decision on this question can be taken in view of the law laid down by the Honble Supreme Court in the case of Vasant Pratap Pandit v. Dr. Anant Trimbak Sabnis, 1994(1) RCR(Rent) 747 (SC). 19. The definition of the tenant in the East Punjab Urban Restriction Act, 1949 is as under : "Tenant need any person by whom or by whose count rent is payable for a building or rented land in includes a tenant continuing in possession after termination of tenancy in his favour but does not include a person placed in occupation of the building or rented land by its tenant unless with the consent and right of the landlord............................. " 20. The reading of the word tenant, therefore, would show that it would not be possible to bequeath the tenancy rights in favour of a person without the consent of the landlord. The act of the tenant in transferring tenancy to any of the legal heirs, therefore, would be hit by the definition of tenant as given under the Act. The successor in interest of the tenant gets a right to tenancy under right of inheritance as the tenancy is held to be heritable. In absence of a statutory provision the relationship of landlord and tenant would come to an end on the death of the tenant. The inheritance, therefore, is only statutory, thus, it has to be held that a statutory tenant cannot bequeath his tenancy right in favour of one in exclusion to the other as the successor gets a right of inheritance under the statute and not on the wish of the tenant. Though, the Honble Supreme Court has not opined on the general right of tenant to bequeath a property. 21. The inference drawn by this Court would find support from the judgment of the Honble Supreme Court in the case of Vasant Pratap Pandit v. Dr. Anant Trimbak Sabnis (supra) wherein the Honble Supreme Court while interpreting the provisions of the tenancy rights under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 has been pleased to lay down that the tenancy right under the Act cannot be devised by a Will. Paras 15 & 16 of the said judgment read as under : "15. Paras 15 & 16 of the said judgment read as under : "15. From a plain reading of Section 5(11)(c)(i) it is obvious that the legislative prescription is first to give protection to members of the family of the tenant residing with him at the time of his death. The basis for such prescription seems to be that when a tenant is in occupation of premises the tenancy is taken by him not only for his own benefit but also for the benefit of the members of the family residing with him. Therefore when the tenant dies, protection should be extended to the members of the family who were participants in the benefit and for whose needs as well the tenancy was originally taken by the tenant. It is for this avowed object, the legislature has, irrespective of the fact whether such members are `heirs in the strict sense of the terms or not, given them the first priority to be treated as tenants. It is only when such members of the family are not there, the `heirs, will be entitled to be treated as tenants as decided, in default of agreement, by the Court. In other words, all the heirs are liable to be excluded if any other member of the family was staying with the tenant at the time of his death. When Section 15, which prohibits subletting, assignment or transfer, is read in juxtaposition with Clause 5(11)(c)(i) it is patently clear that the legislature intends that in case no member of the family as referred to in the first part of the clause is there the `heir, who under the ordinary mode of succession would necessarily be a relation of the deceased, should be treated as a tenant of the premises subject, however, to the decision by the Court in default of agreement. The words `as may be decided in default of agreement by the court as appearing in Section 5(11)(c)(i) are not without significance. These words in our view have been incorporated to meet a situation where there are more than one heir. In such an eventuality the landlord may or may not agree to one or the other of them being recognised as a `tenant. In case of such disagreement the court has to decide who is to be treated as `tenant. These words in our view have been incorporated to meet a situation where there are more than one heir. In such an eventuality the landlord may or may not agree to one or the other of them being recognised as a `tenant. In case of such disagreement the court has to decide who is to be treated as `tenant. Therefore, if `heir is to include a legatee of the Will then the above quoted words cannot be applied in case of a tenant who leaves behind more than one legatee for in that case the wishes of the testator can get supplanted, on the landlords unwillingness to respect the same, by the ultimate decision of the Court. In other words, in case of a testamentary disposition, where the wish or Will of the deceased has got to be respected a decision by the Court will not arise and that would necessarily mean that the words quoted above will be rendered nugatory. What we want to emphasise is it is not the heirships but the nature of claim that is determinative. In our considered view the Legislature could not have intended to confer such a right on the testamentary heir. Otherwise, the right of the landlord to recover possession will stand excluded even though the original party (the tenant) with whom the landlord had contracted is dead. Besides, a statutory tenancy is personal to the tenant. In certain contingencies as contemplated in Section 5(11)(c)(i) certain heirs are unable to succeed to such a tenancy. To this extent, a departure is made from the general law. 16. The matter may be viewed from another angle also. If the word `heir is to be interpreted to include a `legatee a stranger may have to be included as a tenant for there is no embargo upon a stranger being a legatee. The contention of Mr. Sorabjee that `heir under a Will may be confined to only members of the family cannot be accepted for there is no scope for giving such a restrictive meaning to that word in the context in which it appears in the Act as earlier noticed, unlike in other Rent Acts." 22. In view of the decision of the Honble Supreme Court as referred to above, the decision of this Court in the case of Daljit Kaur v. Rukman & others (supra) have to be treated as per incurim. 23. In view of the decision of the Honble Supreme Court as referred to above, the decision of this Court in the case of Daljit Kaur v. Rukman & others (supra) have to be treated as per incurim. 23. There is another angle to the case also. In order to prove subletting two ingredients are required to be proved i.e. the parting of possession of the tenanted property in favour of 3rd party and receiving monetary consideration thereof. Though the burden of proof of subletting is on the landlord but once he establishes of parting of possession by the tenant to a 3rd party, the onus would shift on the tenant to explain as to how he was occupying the tenanted premises and in case the explanation is found to be not believable then inference can be drawn that tenant had sublet the shop. In the present case it would be noticed that respondent No. 1 never came in possession of the property in dispute. The evidence led on record clearly shows that Barkha Ram has shifted to Delhi about two years prior to his death on medical ground and the possession of Som Nath was permissive. After the death of Barkha Ram the petitioner continued to be in possession and became tenant by way of inheritance of tenancy rights being son of Barkha Ram. When Ved Parkash never came in possession of the property it could not be said that he ever parted with the possession. It was not the case of the landlord that sub-tenancy was created by Barkha Ram during his life time when he shifted to Delhi for medical treatment. The facts and circumstances of this case show that even the ingredients of sub-tenancy have not been fulfilled i.e. there is no proof of parting of possession or of consideration. 24. For the reasons stated above, it has to be held that respondent No. 1 never became the tenant as it was the tenant to bequeath tenancy rights in view of the definition of the tenant as given under the Rent Act. It was also to be held that the landlord has failed to prove that the premises in dispute was sublet to respondent Som Nath. 25. For the reasons stated above, I find no merit in the present revision petition, which is ordered to be dismissed. No order as to costs.