whether Shri Devendra Prasad Sinha
was running the joint family business and/or whether the act of
surrender of possession was that of a joint Hindu family business
or only of surrender of tenancy; or that as a Karta, surrender of
tenancy was for the benefit of the joint Hindu family. =We thus find that the High Court has committed a basic error of
law and fact that the payment of rent or the Ration Card proves
that the tenant was carrying business as a Joint Hindu Family Business. There can be presumption of Hindu joint family property if
the property has been acquired by the male member or if the
same has been treated as joint Hindu family. But no such presumption is attached to a business activity carried out by an individual in a tenanted premise. A perusal of the facts on record would show that it was a contract
of tenancy entered upon by great grandfather of the plaintiff.
Even if the great grandfather was maintaining the family out of
the income generated from the hotel business, that itself would not make the other family members as coparceners in the hotel
business. It was the contract of tenancy which was inherited by
the grandfather of the plaintiff who later surrendered it in favour
of the Wakf Board. The tenancy was an individual right vested
with the grandfather of the plaintiff who was competent to surrender it to the landlord. The High Court has clearly erred in law by
holding that since the grandfather was a tenant, the tenancy is a
joint family asset. The contract of tenancy is an independent contract than the joint Hindu family business.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6149 OF 2015
KIRAN DEVI .....APPELLANT(S)
VERSUS
THE BIHAR STATE SUNNI WAKF BOARD
& ORS. .....RESPONDENT(S)
J U D G M E N T
HEMANT GUPTA, J.
1. The challenge in the present appeal is to an order passed by the
High Court of Judicature at Patna dated 6.2.2013 whereby a writ
petition filed by respondent No. 41
herein was allowed, holding
that the tenant in the premises in question was representing a
1 Hereinafter referred to as the ‘plaintiff’
1
joint Hindu family and that the Karta was not competent to
surrender the tenancy rights in favour of respondent No. 1-The
Bihar State Sunni Wakf Board2
and consequently the induction of
the appellant as a tenant by the Wakf Board was illegal.
Accordingly, a direction was issued to dispossess the appellant
from the suit premises and to handover the vacant possession to
the plaintiff.
2. The plaintiff had filed a suit for declaration before the competent
civil court stating that he is a tenant in the suit premises and is
entitled to continue in the suit premises as a tenant on payment of
monthly rent. The basis of such declaration was that Ram Sharan
Ram, the great grandfather of the plaintiff, predeceased his
brother Ram Sewak Ram who died issueless and his widow
predeceased him. Ram Sewak Ram was carrying out joint family
business of hotel in the premises of the Wakf Board. Due to
advanced age, he handed over the possession of the hotel
business to his nephew Devendra Prasad Sinha, the grandfather of
the plaintiff. The grandfather of the plaintiff succeeded to the
tenancy as member of the joint Hindu family. After his death,
defendant Nos. 1 to 3 succeeded to tenancy as members of the
Joint Hindu Family. The shop was being run by Surendra Kumar,
son of Devendra Prasad Sinha, when the grandfather of the
plaintiff fell ill. Surendra Kumar, the father of the plaintiff started
2 Hereinafter referred to as the ‘Wakf Board’
2
paying rent to the Wakf Board. However, Surendra Kumar later
joined service and the hotel was being run through the servants.
The plaintiff had started running the hotel since 1988. On account
of disputes over the management, the hotel was closed and it
remain closed for several years. It is the plaintiff who wanted to
resume the hotel business in the premises in question and thus
communicated with the Wakf Board to continue the hereditary
tenancy of the shop as Karta in his name.
3. The cause of action was stated to arise on 21.3.1996, when the
plaintiff’s grandfather along with others broke the lock of the suit
premises and removed the belongings available in the shop. The
father of the plaintiff went to the Police for lodging of the report
but they refused to register the case. A complaint was
subsequently filed in the court of Chief Judicial Magistrate, Patna,
which is stated to be pending. Later, the plaint was amended and
the present appellant was impleaded as defendant No. 5 alleging
that the lease in her favour by the Wakf Board is forged,
fabricated, anti-dated and collusive paper.
4. The Wakf Board in its written statement asserted that Md.
Salimuddin was the duly appointed Mutawalli of the Janki Bibi Wakf
Estate No. 465B and the appellant is a tenant duly inducted by the
Management Committee. It was also pleaded that the defendants
had no knowledge that Ram Sewak Ram was carrying any
3
business of hotel but that Devendra Prasad Sinha was a tenant in
the suit premises who had surrendered his tenancy rights in favour
of Md. Salimuddin through a written letter dated 31.5.1996 and
thereafter handed over vacant possession of the premises.
Subsequently, the appellant had been inducted as a tenant on a
monthly rent of Rs.600/- on 5.6.1996. This was also indicated in
the written statement filed by the appellant herein. In a separate
written statement filed on behalf of defendant Nos. 1 and 2, it was
asserted that defendant No. 1 was making payment of rent to the
landlord i.e. Mutawalli of the Wakf and that he had surrendered the
shop premises on 31.5.1996 to the landlord/Mutawalli of the Wakf
as he was unable to continue the business due to old age. It was
denied that the plaintiff and his father went to lodge FIR on
account of opening of the locks by defendant No. 1. It was
asserted that the plaintiff had no occasion of claiming the shop on
21.3.1996 as the said shop was never in his possession nor under
his lock and key.
5. The appellant and the Wakf Board filed applications before the
Civil Court for transfer of the suit for adjudication by the Wakf
Tribunal in terms of provisions of Section 85 and 85A of the Wakf
Act, 19953
. The suit was thus transferred by the learned Munsif on
4.2.2009. Such order of transfer of the suit to the Tribunal was
challenged by the plaintiff by way of a revision petition before the
3 For short, the ‘Act’
4
Patna High Court. Such revision was found to be frivolous and
dismissed on 19.5.1999 with cost of Rs.3,000/-.
6. The parties went to trial on the following issues before the Wakf
Tribunal:
“(i) Whether Devendra Prasad was running a joint family
business?
(ii) Whether Devendra Prasad as Karta of joint family
business has got authority to surrender the joint family
business?
(iii) Whether Devendra Prasad surrendered joint family
business or premises of joint family business?
(iv) Whether the plaintiff is entitled to any other relief?”
7. Devendra Prasad Sinha (defendant No. 1) appeared as DW-5
whereas Dilip Kumar (defendant No. 2) appeared as DW-14 before
the Wakf Tribunal. The said witnesses supported their stand that
the tenancy was surrendered on 31.5.1996. The learned Tribunal
held that defendant No. 1 was running a hotel business and had
later surrendered the shop to Mutawalli. The writing on paper to
surrender the possession was admitted by the witness. It was also
observed that there was no oral or documentary evidence that
Devendra Prasad Sinha had surrendered the premises where he
was running joint family business. The Tribunal noted that the
plaintiff did not even suggest that Devendra Prasad was managing
a joint family business and thus in the absence of such suggestion
5
it was difficult or rather impossible to believe that Devendra
Prasad was managing a joint family business. Consequently, the
suit was dismissed.
8. The High Court in a writ petition against the said order held that
the suit premises were let out to Ram Sewak Ram who carried out
joint family hotel business in the said premises until his death in
January, 1960. Thereafter, defendant No. 1 became the Karta and
succeeded to joint family business including the suit premises. It
was observed that he could not have surrendered the tenancy in
favour of Mutawalli on 31.5.1996 without the consent of other
members of the joint family. Consequently, the judgment of the
Tribunal was set aside and also a direction was issued to
dispossess the appellant from the suit premises and to handover
the vacant possession of the suit premises to the plaintiff.
9. Learned counsel for the appellant has raised the following
arguments:
(1) That the Tribunal had no jurisdiction to entertain the suit
filed by the plaintiff in view of the judgment of this Court in
Ramesh Gobindram (Dead) through LRs. v. Sugra
Humayun Mirza Wakf
4
. After the aforesaid Judgment, the
Wakf Act was amended by Central Act No. 27 of 2013. This
Court recently in Punjab Wakf Board v. Sham Singh
4 (2010) 8 SCC 726
6
Harike
5 has considered the amendment in the Act, wherein,
the proceedings instituted prior to the amendment were to
continue as per the unamended provisions of the Act.
Therefore, a suit for declaration of the plaintiff as a tenant
was not maintainable before the Wakf Tribunal as there was
no estoppel against the statute and that the consent would
not confer jurisdiction on the Wakf Tribunal, which it did not
have in view of the judgments referred.
(2) The order of the Wakf Tribunal could not be challenged by
way of writ petition before the High Court under Article 226
of the Constitution of India as only a revision in terms of
proviso to sub-section (9) of Section 83 of the Act could be
preferred. Learned counsel for the appellant relies on
judgment reported as Sadhana Lodh v. National
Insurance Co. Ltd. & Anr.
6
and of Patna High Court in
Md. Wasiur Rahman & Anr v. The State of Bihar &
Ors.
7
.
(3) The High Court could not have reappreciated facts in a
petition under Article 227 of the Constitution. The High Court
has illegally set aside findings of fact recorded by the Wakf
Tribunal. The reliance was placed on Chandavarkar Sita
Ratna Rao v. Ashalata S. Guram8
. It was also argued that
5 (2019) 4 SCC 698
6 (2003) 3 SCC 524
7 CWJC No. 14622 of 2017 dt. 25.04.2018
8 (1986) 4 SCC 447
7
in petition under Article 226 or 227 of the Constitution, no
interference is permitted in tenancy matter. Reference was
made to Ganpat Ladha v. Sashikant Vishnu Shinde
9
to
support the said contention.
(4) The surrender of possession of the tenanted premises by
defendant No. 1 was not of a business of joint Hindu family
but of the tenancy which was not been carried out for large
number of years even as admitted by the plaintiff.
(5) Even if it was assumed that defendant No. 1 was a Karta of
the joint Hindu family, he had the right to surrender the
tenancy without the consent of the other coparceners as
such surrender was for the benefit of the family inter-alia for
the reason that no business was carried out for the last
many years.
10. On the other hand, Mr. Sanyal, learned counsel for the plaintiff argued that the nomenclature as to whether the jurisdiction of the
High Court under Article 226 of the Constitution of India is invoked
or the jurisdiction in terms of the proviso to sub-section (9) of Section 83 of the Act is invoked, is immaterial as the jurisdiction in either case is that of the High Court. The nomenclature in exercise
of the jurisdiction does not render the order passed by the High
Court to be illegal or unwarranted or beyond jurisdiction. Refer9 (1978) 2 SCC 573
8
ence was made to Pepsi Foods Ltd. & Anr. v. Special Judicial
Magistrate & Ors.
10
.
11. It was further argued that Ram Sewak Ram was inducted as a tenant and therefore, the plaintiff has a right by birth in the tenancy
which could not be surrendered by the then Karta, defendant No. 1
without the consent of the other coparceners. Since the possession was delivered to the appellant as a consequence of illegal surrender of tenancy rights, therefore, the order of the High Court is
just and proper.
12. Mr. Sanyal referred to Full Bench judgment of the Allahabad High
Court reported as Ram Awalamb & Ors. v. Jata Shankar &
Ors.
11
to contend that the personal law of Hindus regarding the
devolution of joint Hindu family property is applicable to tenanted
property also. Reference was also made to a judgment of this
Court reported as Commissioner of Income Tax, Madhya
Pradesh v. Sir Hukamchand Mannalal & Co.
12
that members of
Hindu Undivided Family can enter into contract with a stranger.
13. We have heard learned counsel for the parties and find that it is
not open to the appellant at this stage to dispute the question that
the suit filed before the learned Munsif could not have been
transferred to the Wakf Tribunal. The plaintiff had invoked the
jurisdiction of the Civil Court in the year 1996. It is the Wakf Board
10 (1998) 5 SCC 749
11 AIR 1969 All. 526
12 (1970) 2 SCC 352
9
and the appellant who then filed an application for transfer of the
suit to the Wakf Tribunal. Though, in terms of Ramesh
Gobindram, the Wakf Tribunal could not grant declaration as
claimed by the plaintiff, but such objection cannot be permitted to
be raised either by the Wakf Board or by the appellant as the order
was passed by the Civil Court at their instance and was also
upheld by the High Court. Such order has thus attained finality
inter- parties. The parties cannot be permitted to approbate and
reprobate in the same breath. The order that the Wakf Tribunal
has the jurisdiction cannot be permitted to be disputed as the
parties had accepted the order of the civil court and went to trial
before the Tribunal. It is not a situation where plaintiff has invoked
the jurisdiction of the Wakf Tribunal.
14. The argument raised by the learned counsel for the appellant that
there was no estoppel against the statute as consent could not
confer jurisdiction upon the Authority which did not originally have
jurisdiction. Hence, it was submitted that the decision of the
Tribunal was without jurisdiction. It is to be noted that the plaintiff
had filed proceedings before the Civil Court itself but the same
was objected to by the appellant as well as by the Waqf Board.
Thus, it is not conferment of jurisdiction by the plaintiff voluntarily
but by virtue of a judicial order which has now attained finality
between parties. The suit was accordingly decided by the Waqf
10
Tribunal. We do not find that it is open to the appellant to raise the
objection that the Waqf Tribunal had no jurisdiction to entertain
the suit in the facts of the present case. Therefore, we do not find
any merit in the first argument raised by the learned counsel for
the appellant.
15. To appreciate the second argument, the relevant provisions of
Section 83 and sub-section (9) of Section 83 of the Act are
extracted below:
“83. Constitution of Tribunals, etc. – (1) The State
Government shall, by notification in the Official Gazette,
constitute as many Tribunals as it may think fit, for the
determination of any dispute, question or other matter
relating to a waqf or waqf property, eviction of a tenant or
determination of rights and obligations of the lessor and the
lessee of such property, under this Act and define the local
limits and jurisdiction of such Tribunals.
xx xx xx
(9) No appeal shall lie against any decision or order
whether interim or otherwise, given or made by the
Tribunal:
Provided that a High Court may, on its own motion or
on the application of the Board or any person aggrieved,
call for and examine the records relating to any dispute,
question or other matter which has been determined by the
Tribunal for the purpose of satisfying itself as to the
correctness, legality or propriety of such determination and
may confirm, reverse or modify such determination or pass
such other order as it may think fit.”
16. The judgments referred to by the appellant in Sadhana Lodh and
of Patna High Court in Md. Wasiur Rahman are not applicable to
11
the facts of the present appeal. Sadhana Lodh is a judgment
wherein an award of the Motor Accident Claim Tribunal was
challenged by way of a Writ Petition. This Court held that the Writ
Petition was not maintainable when an alternative remedy is
provided under a statute. Therefore, the said judgment deals with
availability of the writ jurisdiction in view of the remedy of appeal
provided. In the present case, the statute provides for a remedy
under proviso of sub-section (9) of Section 83 of the Act against an
order passed by the Wakf Tribunal. Such remedy is before the
High Court alone.
17. The judgment in Md. Wasiur Rahman arises out of the fact
where the order of the Waqf Tribunal was challenged by way of a
Writ Petition. An objection was raised before the writ court that
there was an alternative statutory remedy available, therefore, the
Writ Petition was not maintainable. The learned Single Judge held
that a petition under Article 226/227 of the Constitution of India
was not maintainable but liberty was given to the petitioners to
invoke the jurisdiction in terms of proviso to sub-section (9) of
Section 83 of the Act. The said judgment does not show that any
argument was raised that a petition under Article 226/227 of the
Constitution of India could be treated as a petition in terms of
proviso to sub-section (9) of Section 83 of the Act. Therefore, such
judgment is also not relevant for the question arising for
12
consideration in the present appeal.
18. A perusal of the proviso to sub-section (9) of Section 83 of the Act
shows that it confers power on the High Court to call for and examine the records relating to any dispute, question or other matter which has been determined by the Tribunal for the purpose of
satisfying itself as to the correctness, legality or propriety of such
determination. In fact, the statutory provision is acceptance of
the principle that the jurisdiction of the High Court under Article
226 or 227 of the Constitution of India cannot be curtailed in
terms of L. Chandra Kumar v. Union of India & Ors.
13
. The relevant extract reads thus:
“90. We may first address the issue of exclusion of the
power of judicial review of the High Courts. We have already
held that in respect of the power of judicial review, the
jurisdiction of the High Courts under Articles 226/227
cannot wholly be excluded. …. On the other hand, to hold
that all such decisions will be subject to the jurisdiction of
the High Courts under Articles 226/227 of the Constitution
before a Division Bench of the High Court within whose
territorial jurisdiction the Tribunal concerned falls will serve
two purposes. While saving the power of judicial review of
legislative action vested in the High Courts under Articles
226/227 of the Constitution, it will ensure that frivolous
claims are filtered out through the process of adjudication in
the Tribunal. The High Court will also have the benefit of a
reasoned decision on merits which will be of use to it in
finally deciding the matter.
91. …We have already emphasised the necessity for
ensuring that the High Courts are able to exercise judicial
superintendence over the decisions of the Tribunals under
Article 227 of the Constitution. In R.K. Jain case [(1993) 4
SCC 119 : 1993 SCC (L&S) 1128 : (1993) 25 ATC 464] , after
13 (1997) 3 SCC 261
13
taking note of these facts, it was suggested that the
possibility of an appeal from the Tribunal on questions of
law to a Division Bench of a High Court within whose
territorial jurisdiction the Tribunal falls, be pursued. It
appears that no follow-up action has been taken pursuant to
the suggestion. Such a measure would have improved
matters considerably. Having regard to both the aforestated
contentions, we hold that all decisions of Tribunals, whether
created pursuant to Article 323-A or Article 323-B of the
Constitution, will be subject to the High Court's writ
jurisdiction under Articles 226/227 of the Constitution,
before a Division Bench of the High Court within whose
territorial jurisdiction the particular Tribunal falls.”
19. A three Judge Bench in a judgment reported as Radhey Shyam &
Anr. v. Chhabi Nath & Ors.
14
held that the observations in para
25 of the judgment in Surya Dev Rai v. Ram Chander Rai &
Ors.
15
to be not good law. In Surya Dev Rai, it was held that the
order of Civil Court could be challenged in a petition under Article
226 and that the distinction between Articles 226 and 227 of the
Constitution of India stood almost obliterated. This Court in
Radhey Shyam held:
“27. … we are of the view that judicial orders of civil courts
are not amenable to a writ of certiorari under Article 226.
We are also in agreement with the view [Radhey
Shyam v. Chhabi Nath, (2009) 5 SCC 616] of the referring
Bench that a writ of mandamus does not lie against a
private person not discharging any public duty. Scope of
Article 227 is different from Article 226.
xxx xxx xxx
29. Accordingly, we answer the question referred as
14 (2015) 5 SCC 423
15 (2003) 6 SCC 675
14
follows:
29.1. Judicial orders of the civil court are not amenable to
writ jurisdiction under Article 226 of the Constitution.
29.2. Jurisdiction under Article 227 is distinct from
jurisdiction under Article 226.
29.3. Contrary view in Surya Dev Rai [Surya Dev Rai v. Ram
Chander Rai, (2003) 6 SCC 675] is overruled.”
20. Therefore, when a petition is filed against an order of the Wakf Tribunal before the High Court, the High Court exercises the jurisdiction under Article 227 of the Constitution of India. Therefore, it is
wholly immaterial that the petition was titled as a writ petition. It
may be noticed that in certain High Courts, petition under Article
227 is titled as writ petition, in certain other High Courts as revision petition and in certain others as a miscellaneous petition.
However, keeping in view the nature of the order passed, more
particularly in the light of proviso to sub-section (9) of Section 83
of the Act, the High Court exercised jurisdiction only under the Act.
The jurisdiction of the High Court is restricted to only examine the
correctness, legality or propriety of the findings recorded by the
Wakf Tribunal. The High Court in exercise of the jurisdiction conferred under proviso to sub-section (9) of Section 83 of the Act
does not act as the appellate court.
21. We find merit in the argument raised by Mr. Sanyal that the
nomenclature of the title of the petition filed before the High Court
15
is immaterial. In Municipal Corporation of the City of
Ahmedabad v. Ben Hiraben Manilal
16
, this Court held that
wrong reference to the power under which an action was taken by
the Government would not per se vitiate the action, if the same
could be justified under some other power whereby the
Government could lawfully do that act. The Court held as under:
“5. ….It is well settled that the exercise of a power, if there
is indeed a power, will be referable to a jurisdiction, when
the validity of the exercise of that power is in issue, which
confers validity upon it and not to a jurisdiction under which
it would be nugatory, though the section was not referred,
and a different or a wrong section of different provisions
was mentioned. See in this connection the observations
in Pitamber Vajirshet v. Dhondu Navlapa [ILR (1888) 12 Bom
486, 489] . See in this connection also the observations of
this Court in the case of L. Hazari Mal Kuthiala v. ITO,
Special Circle, Ambala Cantt. [AIR 1961 SC 200 : (1961) 1
SCR 892 : (1961) 41 ITR 12, 16 : (1961) 1 SCJ 617] This
point has again been reiterated by this Court in the case
of Hukumchand Mills Ltd. v. State of M.P. [AIR 1964 SC
1329 : (1964) 6 SCR 857 : (1964) 52 ITR 583 : (1964) 1 SCJ
561] where it was observed that it was well settled that a
wrong reference to the power under which action was taken
by the Government would not per se vitiate that action if it
could be justified under some other power under which
Government could lawfully do that act. See also the
observations of the Supreme Court in the case of Nani
Gopal Biswas v. Municipality of Howrah [AIR 1958 SC 141 :
1958 SCR 774, 779 : 1958 SCJ 297 : 1958 Cri LJ 271].”
22. Later, in Pepsi Foods Ltd., this Court held that nomenclature
under which the petition is filed is not quite relevant and it does
not debar the Court from exercising its jurisdiction which otherwise
it possesses. If the Court finds that the appellants could not
16 (1983) 2 SCC 422
16
invoke its jurisdiction under Article 226, the Court can certainly
treat the petition as one under Article 227 or Section 482 of the
Code. This Court held as under:
“26. Nomenclature under which petition is filed is not quite
relevant and that does not debar the court from exercising
its jurisdiction which otherwise it possesses unless there is
special procedure prescribed which procedure is mandatory.
If in a case like the present one the court finds that the
appellants could not invoke its jurisdiction under Article
226, the court can certainly treat the petition as one under
Article 227 or Section 482 of the Code. It may not however,
be lost sight of that provisions exist in the Code of revision
and appeal but some time for immediate relief Section 482
of the Code or Article 227 may have to be resorted to for
correcting some grave errors that might be committed by
the subordinate courts. The present petition though filed in
the High Court as one under Articles 226 and 227 could well
be treated under Article 227 of the Constitution.”
23. Therefore, the petition styled as one under Article 226 would not
bar the High Court to exercise jurisdiction under the Act and/or under Article 227 of the Constitution. The jurisdiction of the High
Court to examine the correctness, legality and propriety of determination of any dispute by the Tribunal is reserved with the High
Court. The nomenclature of the proceedings as a petition under
Article 226 or a petition under Article 227 is wholly inconsequential and immaterial.
24. The judgment referred to by Mr. Sanyal in Sir Hukamchand
Mannalal & Co. that a member of an HUF is competent to enter
into a contract with stranger does not support the argument
17
raised. It has been held that if a member of the HUF enters into
contract with a stranger, he does so in his individual capacity. It
was held as under:
“5. The Indian Contract Act imposes no disability upon
members of a Hindu undivided family in the matter of
entering into a contract inter se or with a stranger. A
member of a Hindu undivided family has the same liberty of
contract as any other individual: it is restricted only in the
manner and to the extent provided by the Indian Contract
Act. Partnership is under Section 4 of the Partnership Act
the relation between persons who have agreed to share the
profits of a business carried on by all or any of them acting
for all: if such a relation exists, it will not be invalid merely
because two or more of the persons who have so agreed
are members of a Hindu undivided family. …….”
25. This Court has quoted with the approval of the judgment reported
as P.K.P.S. Pichappa Chettiar & Ors. v. Chockalingam Pillai
& Ors.
17
wherein it has been held that when a manager of a joint
family enters into a partnership, that would not ipso facto makes
the other member of his family as partners. The Court held as under:
“In their Lordships' opinion, the law in respect of the matter
now under consideration is correctly stated in Mayne's
Hindu Law (9th Edn.) at page 398, as follows:
“Where a managing member of a joint family enters
into a partnership with a stranger the other members
of the family do not ‘ipso facto become partners in
the business so as to clothe them with all the rights
and obligations of a partner as defined by the Indian
Contract Act. In such a case the family as a unit does
not become a partner, but only such of its members
as in fact enter into a contractual relation with the
17 AIR 1934 Privy Council 192
18
stranger: the partnership will be governed by the
Act.”
In this passage reference is made to the Indian Contract
Act, which would be applicable to the facts of this case. It is
to be noted that the sections referring to partnership in the
said Act have been repealed and are now embodied in the
Indian Partnership Act, 1932. Even assuming, therefore, that
Virappa was the manager of his joint Hindu family in 1908,
his entering into partnership with the Chetties in that year
would not “ipso facto” make the other members of his
family partners …”
26. The next question is as to whether Shri Devendra Prasad Sinha
was running the joint family business and/or whether the act of
surrender of possession was that of a joint Hindu family business
or only of surrender of tenancy; or that as a Karta, surrender of
tenancy was for the benefit of the joint Hindu family.
27. The plaintiff has pleaded that when father of the plaintiff joined
service, the shop was being run through the servants and that the
plaintiff began to run the hotel since 1988. Thereafter, the disputes cropped up over the management and accounting of the income and the hotel was closed for many years. The plaintiff has
pleaded as under:
“4. That when the grandfather of the plaintiff fell ill the
shop was being looked after and began to run by his eldest
son Surendra Kumar and Surendra Kumar began to pay rent
to Waqf Board under receipt granted to him in the name of
Devendra Prasad Sinha, which are all with Surendra Kumar,
later when Surendra Kumar joined the Service the shop is
bring run through the servant but later on the Hotel began
to run by the plaintiff since 1988 and thereafter dispute
cropped up over the management and accounting of
income and as such the Hotel became closed and remained
19
closed for several years.”
28. The High Court held that the existence of joint family is established from the Ration Card issued on 2.4.1949 and from the payment of rent for the period 1947–1955 that the premises were let
out to joint family. The High Court also rejected the surrender of
tenancy on the ground that it was without the consent of other coparceners. It was held as under:
“37. …After death of Ram Sharan Ram, Ram Sewak Ram
became the Karta of the joint Hindu family of which
defendant No. 1, his three sons Surendra Kumar, father of
the plaintiff, Dilip Kumar, Defendant No. 2, Suresh Kumar,
plaintiff and his three brothers were the members.
Existence of the joint family of which Ram Sewak Ram was
the Karta is established from perusal of the Ration Card
issued under the order of the Government by the Secretary
to the Government, Exhibit-9/A dated 2.12.1949. After
death of Ram Sharan Ram, Ram Sewak Ram having become
Karta of the joint family managed the affairs of the joint
family including the hotel business in the suit premises let
out to the joint family by the Mutawalli of the Wakf Estate
which owned the suit premises as is evident from perusal of
46 rent receipts (Exhibits-8 to 8/45) granted by the Bihar
State Sunni Wakf Board through Mutawalli Md. Suleman for
the period 1947-1955 indicating payment of rent for the suit
premises by the tenant Ram Sewak Ram.
xxx xxx xxx
43. Rent receipts, Water Board receipt and electricity bill
receipt aforesaid obtained by Defendant No. 1 are
subsequent to the death of the original tenant i.e. Karta of
the joint family Ram Sewak Ram from whom Defendant No.
1 succeeded to the tenancy along with the other
coparceners of the joint family. On the basis of the
subsequent receipts it cannot be said that the tenancy is
created only in favour of Defendant No. 1 ignoring the other
20
descendants/successors of Ram Sewak Ram. Reference in
this connection is also required to be made to the
statement of Defendant No. 4 who examined himself as
D.W. 2 paragraph 24 wherein he has categorically stated
that in the Wakf Board there is no Kirayanama executed in
favour of Devendra Babu, Defendant No. 1.
44. The case set out by the defendants regarding surrender
letter dated 31.5.96 is also fit to be rejected as after the
death of Ram Sewak Ram, the Karta of the Hindu undivided
family, Defendant No. 1 became the Karta of the Hindu
undivided family and as per the tenets of Hindu Law
Defendant No. 1 was not entitled to surrender the tenanted
premises without the consent of the other coparceners of
the Hindu undivided family….
45. In view of my findings above, there is no difficulty in
concluding that the suit premises was let out to Ram Sewak
Ram who carried joint family hotel business in the said
premises until his death i.e. in January, 1960 whereafter
Defendant No. 1 became the Karta of the family and
succeeded to the joint family business including the suit
premises along with his sons and grandsons constituting
the joint family, as such, without the consent of the other
members of the joint family could not have surrendered the
tenancy in favour of Mutawalli of the Wakf Estate through
the so-called surrender letter dated 31.5.1996.”
29. Thus, even if a male member had taken premises on rent, he is
tenant in his individual capacity and not as Karta of Hindu Undivided Family in the absence of any evidence that Karta was doing
the business for and on behalf of Joint Hindu Family. The High
Court has presumed the existence of the joint family of which Ram
Sewak Ram was said to be the Karta from perusal of the Ration
Card issued on 2.12.1949. The Hindu Joint Hindu Family cannot be
presumed to be in existence only on the basis of Ration Card un21
less there is evidence that the funds of joint Hindu Family were invested in the business in the tenanted premises.
30. The Allahabad High Court in Ram Awalamb held that notions of
Hindu law, or Mohamedan law, or any other personal law cannot
be imported into the rights created by the U.P. Zamindari Abolition
and Land Reforms Act. The Court held as under:
“8. Hindu joint families have existed from times
immemorial and they exist even now. However, it is by no
means necessary that every Hindu Joint family should be
possessed of joint family property also. Where any property
is ancestral or it is acquired by all the members of a joint
Hindu family or after having been acquired by one member
of the joint family only it is thrown in the common stock it is
regarded to be joint family property or coparcenary
property. Until partition takes place, or only one member of
the family is left, without having any male issue, the
coparcenary property remains with the family and upon the
death of any one member only his interest devolves on the
surviving coparceners. The Karta or manager of the family
alone has the right to transfer the property either for legal
necessity or for the benefit of the estate.
xx xx xx
45. Our conclusions can, therefore, be briefly summarised
as follows:—
(1) Where members of a joint Hindu family hold bhumidhari
rights in any holding, they hold the same as tenants in
common and not as joint tenants. The notions of Hindu law
cannot be invoked to determine that status.
(2) Where in certain class of tenancies, such as permanent
tenure holders, the interest of a tenant was both heritable
and transferable in a limited sense and such a tenancy
could, prior to the enforcement of the Act, be described as
22
joint family property or coparcenary property, the position
changed after Act 1 of 1951 came into force. Thereafter the
interest of each bhumidhar, being heritable only according
to the order of succession provided in the Act and
transferable without any restriction other than mentioned in
the Act itself, must be deemed to be a separate unit.
(3) Each member of a joint Hindu family must be considered
to be a separate unit for the exercise of the right of transfer
and also for the purposes of devolution of bhumidhari
interest of the deceased member.
(4) The right of transfer of each member of the joint Hindu
family of his interest in bhumidhari land is controlled only
by Sec. 152 of the Act and by no other restriction. The
provisions of Hindu law relating to restriction on transfer of
coparcenary land, e.g., existence of legal necessity, do not
apply.”
31. We thus find that the High Court has committed a basic error of
law and fact that the payment of rent or the Ration Card proves
that the tenant was carrying business as a Joint Hindu Family Business. There can be presumption of Hindu joint family property if
the property has been acquired by the male member or if the
same has been treated as joint Hindu family. But no such presumption is attached to a business activity carried out by an individual in a tenanted premise.
32. A perusal of the facts on record would show that it was a contract
of tenancy entered upon by great grandfather of the plaintiff.
Even if the great grandfather was maintaining the family out of
the income generated from the hotel business, that itself would
23
not make the other family members as coparceners in the hotel
business. It was the contract of tenancy which was inherited by
the grandfather of the plaintiff who later surrendered it in favour
of the Wakf Board. The tenancy was an individual right vested
with the grandfather of the plaintiff who was competent to surrender it to the landlord. The High Court has clearly erred in law by
holding that since the grandfather was a tenant, the tenancy is a
joint family asset. The contract of tenancy is an independent contract than the joint Hindu family business.
33. In fact, the evidence produced by the plaintiff is payment of rent
by either Ram Sewak Ram or by the grandfather of the plaintiff.
Such payment of rent is not indicative of the fact that the hotel
business was by the joint Hindu family. This Court in a judgment
reported as G. Narayana Raju (Dead) by his Legal
Representative v. G. Chamaraju & Ors.
18
, held that there is no
presumption under Hindu Law that business standing in the name
of any member of the joint family is a joint business even if that
member is the manager of the joint family, unless it could be
shown that the business in the hands of the coparcener grew up
with the assistance of the joint family property or joint family
funds or that the earnings of the business were blended with the
joint family estate. This Court held as under:
18 AIR 1968 SC 1276
24
“3. … It is well established that there is no presumption
under Hindu Law that business standing in the name of any
member of the joint family is a joint business even if that
member is the manager of the joint family. Unless it could
be shown that the business in the hands of the coparcener
grew up with the assistance of the joint family property or
joint family funds or that the earnings of the business were
blended with the joint family estate, the business remains
free and separate. …….
xxx xxx xxx
6. … It is a well-established doctrine of Hindu Law that
property which was originally self-acquired may become joint
property if it has been voluntarily thrown by the coparcener
into joint stock with the intention of abandoning all separate
claims upon it. The doctrine has been repeatedly recognised
by the Judicial Committee (See Hurpurshad v. Sheo Dayal,
(1876) 3 Ind App 259 (PC) and Lal Bahadur v. Kanhaia Lal,
(1907) 34 Ind App 65 (PC). But the question whether the
coparcener has done so or not is entirely a question of fact to
be decided in the light of all the circumstances of the case. It
must be established that there was a clear intention on the
part of the coparcener to waive his separate rights and such
an intention will not be inferred merely from acts which may
have been done from kindness or affection (See the decision
in Lala Muddun Gopal v. Khikhindu Koer, (1891) 18 Ind App 9
(PC). For instance, in Naina Pillai v. Daivanai Ammal, AIR
1936 Madras 177 where in a series of documents selfacquired property was described and dealt with as ancestral
joint family property was not sufficient but an intention of the
coparcener must be shown to waive his claims with full
knowledge of his right to it as his separate property. The
important point to keep in mind is that the separate property
of a Hindu coparcener ceases to be his separate property
and acquires the characteristics of his joint family or
ancestral property, not by mere act of physical mixing with
his joint family or ancestral property, but by his own volition
and intention, by his waiving or surrendering his special right
in it as separate property. A man's intention can be
discovered only from his words or from his acts and conduct.
When his intention with regard to his separate property is
not expressed in words, we must seek for it in his acts and
conduct. But it is the intention that we must seek in every
25
case, the acts and conduct being no more than evidence of
the intention. …” (Emphasis Supplied)
34. This Court in a judgment reported as P.S. Sairam & Anr. v. P.S.
Rama Rao Pissey & Ors.
19
following the above said judgment
held that so far as immovable property is concerned, there would
be a presumption that the same belongs to joint family, provided
it is proved that the joint family had sufficient nucleus at the time
of its acquisition, but no such presumption can be applied to a
business. It was held as under:
“7. Crucial question in the present appeal is as to whether
business which was conducted by defendant No. 1 was his
separate business or it belonged to joint family, consisting
of himself and his sons. It is well settled that so far as
immovable property is concerned, in case the same stands
in the name of individual member, there would be a
presumption that the same belongs to joint family, provided
it is proved that the joint family had sufficient nucleus at the
time of its acquisition, but no such presumption can be
applied to business……………”
35. Thus, mere payment of rent by great grandfather or by the grandfather of the plaintiff raises no presumption that it was a joint
Hindu family business. The High Court has clearly erred in law to
hold so without any legal or factual basis.
36. Even if Devendra Prasad Sinha is considered to be representing
the joint Hindu family while carrying out hotel business in the tenanted premises, the question as to the act Karta to surrender of
tenancy was for the benefit of the joint Hindu family. The powers
19 (2004) 11 SCC 320
26
of Karta of a Joint Hindu Family have been described in 22nd Edition
of Hindu Law by Mulla (para 240) inter alia to the following effect:
“Alienation by manager of coparcenary property for
legal necessity. – (1) The power of the manager of a joint
Hindu family to alienate the joint family property is
analogous to that of a manager for an infant heir, as
defined by the Judicial Committee.
(2) The manager of a joint Hindu family has the power to
alienate for value, joint family property, so as to bind the
interest of both adult and minor coparceners in the
property, provided that the alienation is made for legal
necessity, or for the benefit of the estate. A manager (not
being the father) can alienate even the share of a minor
coparcener to satisfy an antecedent debt of the minor’s
father (or grandfather) when there is no other reasonable
course open to him (Dharmaraj Singh v. Chandrasekhar
Rao, (1942) Nag 214). It is not necessary to validate the
alienation that the express consent of the adult members
should have been obtained.
In Suraj Bunsi Koer v. Sheo Proshad, (1879) 6 IA 88, p.
101, the Judicial Committee stated that it was not clearly
settled whether where an alienation is made by a manager
for a legal necessity, but without the express consent of the
adult coparceners, the alienation is binding on them.
However, in later decisions of the same tribunal, the view
taken is that if legal necessity is established, the express
consent of the adult coparceners is not necessary (Sahu
Ram v. Bhup Singh, AIR 1917 PC 61). As to alienation by
manager for joint family business.
Where any such transaction has been entered into for
legal necessity by a manager, it would be deemed to be on
behalf of the family and would bind it. The position is not
worsened by the fact that a junior member joins the
transaction and the joining by him is abortive by reason of
his minority (Radha Krishnadas v. Kaluram, AIR 1967 SC
574).”
27
37. The pleaded stand of the Plaintiff is that the hotel was closed for
several years. Therefore, the liability to pay monthly rent continued to accrue upon karta - Devendra Prasad Sinha. The question
is as to whether, in these circumstances, on account of cessation
of activities of running of the hotel, the act of the surrender of tenancy is in fact for the benefit of the joint family. The learned High
Court found that the letter of surrender was not reliable or tenable. The executor of the surrender letter has admitted such surrender letter in the written statement and while appearing as a
witness as DW-5. The Mutawalli Md. Salimuddin has also accepted
the surrender letter in the written statement and while appearing
in the witness box as DW-10. Merely for the reason that signatures in the translated copy do not tally with the Urdu copy is not
sufficient to hold the surrender letter as unreliable as the translation can be incorrect but the correctness of the document in has
not been disputed by the executor or by the acceptor. The said
document could not have been said to be unreliable on the basis
of the statement of the plaintiff who is not a party to such transaction. It is one thing to say that the document is unreliable and another to say that the document does not bind the plaintiff. We
have no hesitation to hold that the document was validly proved
and accepted by the Wakf Board. Therefore, the act of surrender
of tenancy was for the benefit of the Joint Hindu family.
28
38. We thus hold that the order of the High Court is not sustainable for
the reasons recorded above. Consequently, the present appeal is
allowed. The order of the High Court is set aside and that of the
Wakf Tribunal is restored with no order as to costs.
.............................................J.
(ASHOK BHUSHAN)
.............................................J.
(S. ABDUL NAZEER)
.............................................J.
(HEMANT GUPTA)
NEW DELHI;
APRIL 05, 2021.
29
