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2009 DIGILAW 784 (PNJ)

Evon Electricals v. Narindrjit Kaur

2009-04-24

NIRMALJIT KAUR

body2009
Judgment Nirmaljit Kaur, J. 1. The brief facts of the present case are that the appellant took on rent the tenanted premises through rent deed dated 12-04- 1985 @ Rs. 2000/- per month. The said rent deed was executed by Surinder Zimmer Mann (respondent No. 7) in favour of petitioner. The Rent Controller allowed the ejectment petition vide judgment dated 21-03-2006 on the ground that the respondents/landlords require the demised premises for their personal use and occupation. 2. Aggrieved against the aforesaid judgment dated 21-03-2006, an appeal was preferred by the present petitioners before the Appellate Authority. The lower appellate authority dismissed the appeal vide judgment dated 15-11-2007. 3. Aggrieved with the impugned judgments rendered by the Rent Controller and the Appellate Authority, whereby, the present petitioners were ordered to be evicted from the demised premises, the present Civil Revision has been filed. 4. Mr. Akshay Bhan, learned counsel for the petitioners raised the first argument that both the judgments were not sustainable in as much as the Appellate Court failed to appreciate that as per the Will dated 09-11-1984, Surender Zimmer Mann became guardian of respondents No. 2 to 5 but during the transfer of the tenanted premises by the Estate Officer in favour of respondent Nos. 1 to 6, have submitted their affidavit to the effect that Joginder Singh had died intestate. It was further submitted that Joginder Singh son of Bhadur Singh was the owner and landlord of Booth No. 44, Sector 22-D, Chandigarh. Joginder Singh died on 08-02- 1985, leaving behind a Will dated 09-11-1984. As per this Will, Surinder Zimmer Mann was to manage the property and utilize the income for the benefit of his children and other family members. The wife, mother and two sons i.e. Respondents no. 1 to 6, in this Revision Petition, had no right to sell the same. Surinder Zimmer Mann- respondent No. 7, however, executed a rent deed. Respondent no. 7, on the basis of a Will, let out the booth in question to the petitioners vide rent deed dated 12-04-1985 being the guardian of respondents No. 2 to 5 on the basis of the Will executed by Joginder Singh. Meanwhile, the said booth, in question, was transferred in the name of the respondents by the Estate Officer, U.T., Chandigarh vide order dated 18-04-2002. Meanwhile, the said booth, in question, was transferred in the name of the respondents by the Estate Officer, U.T., Chandigarh vide order dated 18-04-2002. Therefore, the very transfer of the tenanted premises in favour of respondents No. 1 to 6 is on the basis of a false affidavit and incorrect information supplied to the Estate Office. Thus, they cannot be considered as landlord of the suit property and cannot claim eviction from the tenanted premises. Before considering this argument as raised by learned counsel, it is necessary to reproduce the relevant part of this Will, which is as under :- "My sister, Mrs. Surinder Zimmermann and my brother Sarvinder Singh are permanently settled in West Germany. They are educated experience and has deep affection for my family including my children and mother. In case of my death, my wife and my mother will have no right to dispose off my aforesaid immoveable property. Because of the service conditions of my brother is not able to visit India, my sister, Mrs. Surinder Zimmermann will manage these properties and their income will be utilised by her for the benefit of my children and other family members. Similarly, the money deposit in the Banks will be withdrawn by Mrs. Surinder Zimmermann, who will be entitled to spend the same for the welfare of my children and other family members, as a legal guardian." 5. It is apparent from the reading of the above that Mrs. Surinder Zimmer Mann had been appointed only to look after the property as a legal guardian of the children. The property was never transferred to her. She was only required to manage the same and that also for the benefit of the children and other family members of the original owner. It is nowhere mentioned in the Will that the said property was not to be transferred in the name of the legal heirs of the original owner-Joginder Singh. The only embargo was that the legal heirs had no right to dispose off the immovable property. The Will does not bar the transfer of the property in the name of the legal heirs. In fact, no family member or the legal heirs or even sister Surinder Zimmer Mann is aggrieved by the said transfer of the property in the name of the respondent Nos. 1 to 6. The Will does not bar the transfer of the property in the name of the legal heirs. In fact, no family member or the legal heirs or even sister Surinder Zimmer Mann is aggrieved by the said transfer of the property in the name of the respondent Nos. 1 to 6. The Will is not for the purpose of devolution of the property but for the purpose of its management. The Will R-1/A does not devolve the property in the name of any one particular person. In fact, there is no Will devolving the property upon anyone person. In the absence of such a Will, it naturally follows that the same is to be transferred in the name of legal heirs. It is not in dispute that this is exactly what has been done. Hence, the transfer of property in favour of respondents No. 1 to 6, who are the genuine legal heirs, is more than fair and just. Thus, it is not possible to accept the arguments of learned counsel for the petitioners that respondent No. 7-Surinder Zimmer Mann is the landlady of the tenanted premises in her individual capacity. She was nothing more than "a legal guardian" as stated in the Will itself. She was not even entitled to use the same or use the income for herself. She was directed to use the same for the benefit of the children of the original owner and other family members. The necessity of such a Will arose obviously on account of the fact that the sons of the original owner were minor at that time and incapable of looking after the property. Thus, they filed the eviction petition along with other petitioners for eviction as and when they become major and needed the premises to start their own business. The respondents landlord are admittedly the legal heirs of deceased-Joginder Singh and have therefore been rightly held as owners of the booth in question on the basis of the transfer letter, which is Exhibit A-2. There is no doubt that the said rent deed was executed by respondent No. 7 being the guardian of respondents No. 2 to 5 on the basis of the Will executed by Joginder Singh. There is no doubt that the said rent deed was executed by respondent No. 7 being the guardian of respondents No. 2 to 5 on the basis of the Will executed by Joginder Singh. Thus, it has been rightly stated in para 5 of the petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 , that "Surinder Zimmer Mann had let out the booth, in question, to the respondents being the guardian of respondents No. 2 to 5 on the basis of the Will executed by Joginder Singh who was originally the owner of the booth in question." Moreover, the order of transfer by the Estate Office, U.T., Chandigarh dated 18-04-2002 still exists and has not been challenged till date. 6. The second argument raised by learned counsel for the petitioners is that respondent No. 6 is the owner of booth No. 5 in Sector 35-C, Chandigarh which is clear from the Will itself but the same was not disclosed and hence, the ingredients of Section 13(3) of the East Punjab Urban Rent Restriction Act, 1949 , have not been satisfied. After hearing learned counsel for the parties, I find that there is no evidence on record of booth No. 5, Sector 35-C, Chandigarh, except the mention of the same in the Will itself. If that is the only piece of evidence to show that there existed another commercial property, then, taking the same in itself into consideration, it is evident that it belonged to respondent No. 6 and she was the sole owner of the same, whereas, the premises, in dispute are required by respondents No. 2 and 3 for their personal use and occupation for the purpose of running business as they have become major and are not doing any business at present because no other commercial premises is available in their name to run business. The father, mother or a grandmother can always seek eviction for the bonafide occupation of his or her son or grandson. In this case, respondent No. 6 had been arrayed as petitioner in the Original Application in order to seek eviction from the disputed premises for the bona fide need of her grandson and not for herself. Thus, any commercial property exclusively in the name of Kartar Kaur- respondent No. 6 cannot deprive Atamjit Singh-respondent No. 3 for claiming same for his bonafide use. Respondent no. Thus, any commercial property exclusively in the name of Kartar Kaur- respondent No. 6 cannot deprive Atamjit Singh-respondent No. 3 for claiming same for his bonafide use. Respondent no. 3 is a graduate and respondent No. 2 is B. Com 2nd year student. They want to open Computer Centre and the business of photostat in the booth in question. Respondents no. 2 and 3 have no claim on the booth No. 5 of Sector 35-C, Chandigarh. Thus the requirement of the ingredients of Section 13(3) are satisfied qua respondents No. 2 and 3. All other respondents are simply supporting their claim and are arrayed as petitioners in the Rent Petition to remove any doubt/objection. 7. Learned counsel for the petitioners further argued that respondent No. 3 was engaged with ICICI Bank and that at the time of filing of the petition, contradictory statements have been made by the mother AW-1 Narinderjit Kaur and the son AW-2 Atamjit Singh i.e. whereas, AW-1 Narinderjit Kaur had stated that her son had a job with the Bank of Punjab for only about six months and now-a-days, he is free, AW-2 Atamjit Singh has stated he was unemployed since graduation. It was submitted that the revision petition should be allowed on this ground alone as they were gainfully employed even at the time of filing rent petition and there exists no bonafide necessity. An attempt was made to show from the statement of respondent No. 2-Atamjit Singh that he did not have a genuine certificate of qualification for the purpose of setting up business as desired by him. It was vehemently submitted that the landlord should, in fact, be in need and his desire should not be fanciful. The necessity should be absolute and genuine. A wish or a mere desire to support business is not enough. In order to support their submission, reliance has been placed on the judgment rendered by the Honble Apex Court in the case of Rajender Kumar v. Jamna Das Kotewala reported in 1990(2) R.C.R. (Rent) 281. However, the said judgment is not applicable in the facts of the present case in as much as the statements of the mother and son, although contrary to the extent as to whether Atamjit Singh had been working earlier or not is definitely common on one aspect i.e. Respondent No. 2 was unemployed on the date of filing of the petition. The said statement of AW-1 is as follows :- "He did job for Bank of Punjab for only about six months and now-a-days, he is free" 8. Moreover, as per the latest judgment of the Honble Supreme Court, rendered in Maganlal son of Kishanlal Godha v. Nanasaheb son of Udhaorao Gadewar reported in 2009(1) Law Herald (SC) 334, as relied on by Mr. Sarwan Singh, learned Senior Counsel for the respondents, it is not the tenant who can dictate the terms to the landlord as to what he should do or what he should not do. It is the privilege of landlord to choose the nature of business and the place of business. In this case, the order of Division Bench of High Court of Judicature at Bombay, Nagpur Bench was set aside on the ground that the Division Bench had misdirected himself while considering the question of bonafide requirement in terms of Clause 13(3)(vi) of the Rent Controller order. The Honble Supreme Court, while setting aside the order of the Division Bench of the High Court, upheld the findings recorded by the Rent Controller as also affirmed by the Single Judge by relying on various judgments including Sait Nagjee Purushotham & Co. Ltd. v. Vimalabai Prabhulal & Ors. (2005) 8 SCC 252 which reads as follows :- "This Court in Sait Nagjee Purushotham & Co. Ltd. v. Vimalabai Prabhulal & Ors. (2005) 8 SCC 252 held that it is always a prerogative of the landlord that if he requires the premises in question of this bona fide use for expansion of business, this is no ground to say that the landlords are already having their business at Chennai and Hyderabad, therefore, it is not genuine need. Further, it is held that it is not the tenant who can dictate the terms to the landlord and advise him what he should do and what he should not. It is always the privilege of the landlord to choose the nature of the business and the place of the business." 9. face of the fact that respondents No. 2 and 3 are sitting idle, their need is bonafide. Their mother-Narinder Kaur is an old lady. Their father has died. They are the sons of the original landlord. It is always the privilege of the landlord to choose the nature of the business and the place of the business." 9. face of the fact that respondents No. 2 and 3 are sitting idle, their need is bonafide. Their mother-Narinder Kaur is an old lady. Their father has died. They are the sons of the original landlord. The entire family including the sister of the deceased Surinder Zimmer Mann-respondent No. 7, was appointed as their legal guardian, is in agreement and supports their cause to run their own business from the demised premises, no interference in the concurrent findings of the Courts below is called for. 10. The revision petition deserves to be dismissed yet on another ground. The findings have been duly recorded by the Appellate Authority in para 8 of its judgment, wherein, the parties have admitted the relationship of landlord and tenant. It does not, therefore, lie in the mouth of the petitioners tenant to take a different stand in the face of its admission before the Courts below. Para 8 of the judgment of the Appellate Authority is reproduced below :- "8. On merits, the relationship of landlord and tenant between the parties is admitted. The rate of rent is also admitted. Rest of the averments of the rent eviction application have been denied." 11. The Civil Revision, is accordingly, dismissed being devoid of merits.