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2014 DIGILAW 1145 (DEL)

Satya Gupta v. Guneet Singh

2014-04-03

RAJIV SAHAI ENDLAW

body2014
Judgment 1. The plaintiff has filed this suit for partition of property No.14/10, Ground Floor, Rear Portion, Shakti Nagar, Delhi as shown in the Site Plan filed with the plaint. The said Site Plan upon being admitted by the defendant during admission/denial of documents, has been given Ex.P-1. 2. Vide judgment dated 7th November, 2012, a preliminary decree for partition, declaring the plaintiff and the defendant to be having half undivided share each in the said property was passed, noticing the undisputed facts as under: i) One Shri Jai Narain Gupta and one Shri Raj Kumar Aggarwal were the owners of the ground floor built on half portion admeasuring 120.575 square yards of property No.14/10, Shakti Nagar, Delhi-110007; ii) The father of the defendant was a tenant of the said ground floor, paying half of the rent to Shri Jai Narain Gupta and remaining half rent to Shri Raj Kumar Aggarwal; iii) Shri Jai Narain Gupta died on 01.01.1998 and the plaintiff is the daughter-in-law of Shri Jai Narain Gupta; iv) That after the demise of Shri Jai Narain Gupta, the father of the defendant and after his demise the defendant, was paying the share of the rent of Shri Jai Narain Gupta to the plaintiff; v) That subsequently the defendant stopped paying rent, claiming to have acquired the half share of Shri Raj Kumar Aggarwal in the property. 3. It is the case of the defendant that the tenancy rights of his father in the premises have been inherited by him along with his two sisters and mother who are not parties to this suit. On enquiry, it was stated that the two sisters of the defendant are married and not residing in the suit premises and are residing in their matrimonial home; the mother of the defendant is however stated to be residing in the said ground floor, together with the defendant. 4. In the judgment dated 7th November, 2012 passing the preliminary decree of partition, attention of the counsels was invited to Kumar Jagdish Chandra Sinha Vs. Mrs. Eileen K. Patricia D'Rozarie (1995) 1 SCC 164 and Rani Devi (Smt) Vs. Bhole Nath (1992) 1 SCC 61 and Surayya Begum Vs. Mohd. Usman (1991) 3 SCC 114 on the aspect of rights of married daughters of the tenant and to the judgments in Pramod Kumar Jaiswal Vs. Bibi Husn Bano (2005) 5 SCC 492 and Imambi Vs. Mrs. Eileen K. Patricia D'Rozarie (1995) 1 SCC 164 and Rani Devi (Smt) Vs. Bhole Nath (1992) 1 SCC 61 and Surayya Begum Vs. Mohd. Usman (1991) 3 SCC 114 on the aspect of rights of married daughters of the tenant and to the judgments in Pramod Kumar Jaiswal Vs. Bibi Husn Bano (2005) 5 SCC 492 and Imambi Vs. Azeeza Bee on the aspect of effect of purchase by a tenant of a share in the tenancy premises and the matter was adjourned for hearing on the said aspect. 5. The counsels for the parties have been heard. 6. The counsel for the plaintiff has argued: (i) that neither the mother nor the sisters of the defendant have ever claimed any tenancy rights and it was the defendant alone who has been paying the rent by way of cheques and the mother and sisters of the defendant are deemed to have surrendered their tenancy rights. Reliance in this regard is placed on Prakash Wati Bali Vs. Manish Diwan 62 (1996) DLT 475 and K.L. Diwan Vs. Mohan Malhotra 158 (2009) DLT 442; (ii) relying on Abul Alim Vs. Sheikh Jamal Uddin Ansari (1998) 9 SCC 683 it is contended that where one co-owner brother sells the share to the tenant without partition, the tenant acquires co-ownership rights in the property and no more remains a tenant. It is thus contended that partition by metes and bounds be affected. 7. Per contra, the counsel for the defendant has argued: (a) that the father of the defendant Sh. S. Kuldip Singh was a tenant in the aforesaid premises since the year 1979 and was paying rent of Rs.375/- per month in equal proportion of Rs.187.50 paise each to Sh. Jai Narain and Sh. Raj Kumar Aggarwal; (b) that on the demise of Sh. S. Kuldip Singh on 5th November, 2010, the tenancy rights have been inherited, besides by the defendant also by his mother and his sisters; (c) that even after purchase by the defendant on 26th March, 2011 of the half share of Sh. Raj Kumar Aggarwal in the said ground floor, the defendant was paying rent of the share of Sh. Jai Narain to Sh. Jai Narain and after the demise of Sh. Raj Kumar Aggarwal in the said ground floor, the defendant was paying rent of the share of Sh. Jai Narain to Sh. Jai Narain and after the demise of Sh. Jai Narain, to the plaintiff; (d) that under Section 111(d) of the Transfer of Property Act, 1882, a lease of immovable property determines in case the interests of the lessee and the lessor in the whole of the property becomes vested at the same time in one person in the same right; (e) that in the present case, the rights of only one of the co-owners, namely Sh. Raj Kumar Aggarwal have vested in the defendant and his mother and sisters and thus Section 111(d) supra has no application since the defendant, his mother and sisters have not become the owners of the entire premises in their tenancy and have become owner only to the extent of half share in the tenancy premises; (f) that thus the interest of the defendant and his mother and sisters as tenant in the entire premises still subsists; (g) reliance is placed on M/s. India Umbrella Manufacturing Co. Vs. Bhagabandei Agarwalla AIR 2004 SC 1321 and on Pramod Kumar Jaiswal supra; (h) that the plaintiff, in the garb of partition, cannot disturb the tenancy rights of the defendant and his mother. 8. I have considered the rival submissions. 9. Though a two Judges Bench of the Supreme Court in Imambi supra, relying on Abul Alim supra held that the status of a tenant in whose favour Sale Deed of half share of the tenancy premises is executed becomes as that of a co-owner with the landlord but the three Judges Bench of the Supreme Court in Pramod Kumar Jaiswal supra was constituted for the reason of the conflict in the decisions of the Supreme Court in Abul Alim supra and in T. Lakshmipathi Vs. P. Nithyananda Reddy (2003) 5 SCC 150 and the said three Judges Bench held the decision in Abul Alim supra to be without reference to Section 111(d) supra and not correct and held that unless the interest of the lessee and the lessor in the whole of the property leased become vested at the same time in one person in the same right, a determination of the lease cannot take place. It was further held that on taking an assignment from some of the co-owner landlords, the interests of the lessee and the lessor in the whole of the property do not become vested at the same time in one person in the same right and therefore a lessee who has taken assignment of the rights of a co-owner lessor, cannot successfully raise the plea of determination of tenancy on the ground of merger of his lessee's estate in that of the estate of the lessor. 10. I may mention that a Division Bench of this Court also in FAB India Overseas Private Limited vs. S.N. Sheopori 199 (2013) DLT 351 has held that even if the tenant purchases 50% share of joint owner, the tenancy is not determined and continues. 11. Thus, it has but to be held that though the plaintiff and the defendant are the owners in equal share of the premises aforesaid but the defendant, whether alone or along with his mother and sisters is a tenant in the entire premises. 12. In this view of the matter, need is not felt in this proceeding to adjudicate, whether the defendant alone is the tenant or the mother and sisters of the defendant are also the tenants along with him. 13. I have perused the Site Plan Ex.P-1 of the premises. The premises as aforesaid already comprise of half share admeasuring 120.575 sq. yds. of the ground floor of the property. I have enquired from the counsels whether partition by metes and bounds of the same is feasible. Both the counsels agree that it is not. 14. Once, that is the position, there is no other option but to pass a final decree for partition, by sale of the property and distribution of sale proceeds between the parties as per their respective share in terms of the preliminary decree. Such sale will of course be subject to the tenancy rights of the defendant or of the defendant and his mother and sisters in the premises. Decree is accordingly passed. No costs. Decree sheet be drawn up.