REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4309 OF 2017
(ARISING OUT OF SLP (C) NO. 17414 of 2015)
OM PRAKASH & ANR. …..APPELLANTS
VERSUS
MISHRI LAL (DEAD) REPRESENTED
BY HIS LR. SAVITRI DEVI ....RESPONDENT
WITH
CIVIL APPEAL NO. 4310 OF 2017
(ARISING OUT OF SLP (C) NO. 20758 of 2015)
RAJENDRA PRASAD & ANR. …..APPELLANTS
VERSUS
MISHRI LAL (DEAD) REPRESENTED
BY HIS LR. SAVITRI DEVI & ANR. ..…RESPONDENTS
J U D G M E N T
AMITAVA ROY, J.
Delay condoned.
2. Leave granted.
3. The appellants/plaintiffs (for short, hereinafter to be referred to
as “the appellants”) are aggrieved by the dismissal of their suit and the
application under the Uttar Pradesh Urban Buildings (Regulation of Letting,
Rent and Eviction) Act, 1972 (for short, hereinafter to be referred to as
“the Act”) for eviction of the respondents from the suit premises on the
ground, amongst others of default and bona fide requirement. The suit and
the application filed under Section 21 of the Act have been dismissed in
two separate proceedings by the High Court vide orders dated 25.02.2014 in
W.P.(C) No. 26732 of 2010 and Civil Miscellaneous Writ Petition No.31855 of
1998.
4. Both these petitions were analogously heard and thus the present
adjudication would address collectively the issues involved.
5. We have heard Mr. Anand Varma, learned counsel for the appellants
and Mr. R.D. Upadhyay, learned counsel for the respondents.
6. The appellants as plaintiffs instituted Suit No. 252 of 1989 in the
Court of Small Causes, Allahabad against Mishri Lal, the predecessor-in-
interest of the present respondents seeking his eviction from the suit
premises on the ground of default in payment of rent and sub-letting of the
suit premises without the knowledge and approval of the landlords i.e. the
appellants. The appellants claimed themselves to be the joint owners of the
suit premises since the death of their grand- mother Chameli Devi, widow of
late Mahabir Prasad on 30.07.1985. They referred to a will dated
28.12.1976 executed by their afore-named grand-mother in support of their
claim of joint ownership. They averred that the predecessor-in-interest of
the respondents was a tenant of the suit premises since 1968 against
payment of monthly rent of Rs. 96/- and the same was rented out on the
clear understanding that the tenant would vacate the same on one month’s
notice. The appellants alleged that the tenant i.e. the predecessor-in-
interest of the respondents paid rent till October, 1979 and thereafter
persistently failed to make payment thereof in spite of repeated demands.
Due to such default, the relationship between the landlords and tenant
became strained, and as claimed by the appellants, he without offering the
rent to the landlords, made deposits thereof under Section 30 of the Act,
which was invalid and non est in law. Situated thus, the appellants
addressed a notice dated 18.08.1989 terminating the tenancy, demanding
payment of the arrears of rent within the statutory period of one month
with the clear indication that in case of failure to respond to the notice
and the request for rent, the tenancy would stand determined and that the
tenant would be liable for eviction. According to the appellants the
notice was served on 26.08.1989, but despite the same, rent was not paid
and consequently the tenancy stood terminated.
7. It was further alleged that the tenant also sub-let the suit premises
to one Moti Chand for conducting his business therein. It was thus averred
that on this ground as well, as the sub-letting was done without the
knowledge and consent of the landlords, the tenant was liable for eviction.
The suit was thus filed for recovery of arrears of rent, eviction of the
tenant/ defendant and for damages for unauthorised use or occupation of the
tenanted premises as well as for interest.
8. The original defendant/tenant in his written statement though admitted
the tenancy under Smt. Chameli Devi, the grand- mother of the appellants,
he refused to acknowledge the appellants as his landlords. He claimed that
the tenancy had commenced from 1957 and that he had paid rent up to the
month of September, 1989 to the landlord, Bhola Nath (father of the
appellants) and that on his refusal to accept the same thereafter, he had
deposited the rent in court under Section 30 of the Act. The
defendant/tenant admitted Smt. Chameli Devi to be the landlady who used to
realize the rent till her life time and after her death, Bhola Nath, her
eldest son used to collect the same. He admitted the receipt of the notice
dated 18.08.1989, but denied that he was a defaulter in payment of rent or
that he was liable for eviction from the suit premises.
9. According to him, Motichand was his nephew and partner in his
business and that as he was like his own son, the allegation of sub-letting
was unfounded. Elaborating on the facts preceding the deposit of rent in
Court, the tenant reiterated that after the refusal by Shri Bhola Nath to
accept the rent subsequent to September, 1989, he remitted the rent for the
month of October and November, 1989 by money order dated 04.12.1989 but the
same was refused again. He stated that thereafter, for the second time, he
dispatched the rent for the months of October, November and December, 1989
on 26.12.1989 by money order but similarly the same was refused. According
to the tenant, he again on 12.01.1990 remitted the rent for the months of
October, 1989 to January, 1990 by money order and as the same was refused
again, he started depositing the rent in Court, the first deposit being
vide Misc. Case No.41 of 1990 for the months of October, 1989 to January,
1990.
10. He denied the execution of the will dated 28.12.1976 by Smt. Chameli
Devi, who had two sons Bhola Nath and Bacchanlal, but admitted that the
eldest son Bhola Nath used to realize rent from him.
11. Parallelly the appellants also filed an application under Section 21
of the Act before the Prescribed Authority against the original
defendant/tenant seeking release of the suit premises on the ground of
bona fide and genuine need therefor to, amongst others conduct their
business therein. This application was contested as well by the original
defendant by filing his objection questioning the bona fide need of the
appellants.
12. The Trial Court, on the basis of the pleadings, framed issues and
the parties adduced evidence, both oral and documentary. The appellants in
particular examined their father Bhola Nath as PW2, who admittedly used to
collect rent from the defendant/tenant till September, 1979, as claimed by
them.
13. The Trial Court decreed the suit, both on the ground of default in
payment of rent and sub-letting of the suit premises. In reaching this
conclusion, it amongst others took note of the testimony of Bhola Nath, son
of Smt. Chameli Devi, who supported the pleaded case of the appellants and
endorsed the factum of execution of will by Smt. Chameli Devi on the basis
of which they (appellants) claimed joint ownership of the suit premises.
It also noticed that such joint ownership had not been questioned or
disputed by any quarter. It also referred to a compromise decree between
the heirs of Bhola Nath and his brother Bachan Lal, rendered in Original
Case No. 95 of 1986 qua the will, which too authenticated the claim of the
appellants of the suit premises. Noticing the admission of the original
defendant/tenant of having paid rent to Bhola Nath, the father of the
appellants, the Trial Court negated his challenge to their claim of joint
ownership and their status of landlord vis-a-vis the suit premises.
14. While upholding the allegation of sub-letting, the Trial Court as well
held that the deposit of rent made by the original defendant was not in
terms of the Act and therefore he was not entitled to the protection from
eviction. It held the view that though disputed, even if the rent for the
months of October, 1989 to January, 1990 had been sent to Bhola Nath vide
money order, it did not amount to offering thereof to the appellants, the
landlords, and thus the deposit in Court was not as mandated by Section 30
of the Act. According to the Trial Court, Bhola Nath was only a collector
of rent on behalf of the appellants and therefore, offer thereof ought to
have been made to them (appellants) for a valid deposit under Section 30 of
the Act. The suit was thus decreed in full, as prayed for.
15. This verdict was challenged by the original defendant/tenant in
revision before the District Judge, Allahabad, who reversed the same on the
ground that the appellants have not been able to prove that they were the
exclusive landlords owners of the suit premises.
16. The appellants thereafter filed a writ petition before the High
Court, which remanded the matter to the Revisional Court by noticing, in
particular the compromise decree dated 05.04.1989 in Original Case No. 95
of 1986, in which the joint ownership of the appellants in the suit
premises had been decreed.
17. The Revisional Court, on remand, however maintained that the will
dated 28.12.1976, on the basis of which the appellants claimed joint
ownership had not been proved, as required under Section 63 of the Indian
Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872.
Besides, it also expressed its reservation with regard to the authenticity
and genuineness of this document. The suit was thus dismissed by upturning
the decree of the Trial Court. Consequently, the Revisional Court did not
examine the other issues on merits.
18. By the impugned judgment and order as well, the High Court, while
limiting itself to the aspect of the proof of the will, concurred with the
Revisional Court and dismissed the suit of the appellants. Apropos, the
proceedings based on the application under Section 21 of the Act for the
eviction of the original defendant on the ground of bona fide requirement,
the High Court, by the impugned verdict, upheld the rejection thereof, as
recorded by the Prescribed Authority by negating their status of that of a
landlord. In reaching this conclusion, the High Court noted that Bhola
Nath, the father of the appellants used to collect rent from the original
defendant throughout and that they did not at any point of time claim to be
the owners/landlords of the suit property, pursuant to the will executed by
Smt. Chameli Devi. It also concurred with the findings recorded by the
Prescribed Authority and the Appellate Court on the issue of bona fide need
and comparative hardship. The High Court was of the view that the will
dated 28.12.1976 on the basis of which the appellants had claimed joint
ownership was not proved as required in law and thus, the mere registration
thereof did not either suggest its genuineness or its validity so as to
provide the locus standi to them to maintain the application.
19. The learned counsel for the appellants has emphatically urged that
the issue of their joint ownership having been settled finally in view of
the compromise decree dated 05.04.1989 rendered in Original Case No. 95 of
1986 and their status as the heirs of Smt. Chameli Devi having been
conclusively established, the suit filed for the eviction of the
predecessor-in- interest of the respondents in that capacity was
maintainable, more particularly in the absence of any dispute of title
inter se the other legal heirs. In the alternative, it has been argued
that in any view of the matter, the appellants being the sons of Bhola
Nath, who admittedly used to collect rent and was a landlord under the Act,
they were entitled to receive rent qua the suit property from the tenant as
landlords under the statute and, therefore not only the predecessor-in-
interest of the respondents were estopped from denying their status as
such, but had made himself liable for eviction therefrom by persistent
default in payment of rent. The learned counsel for the appellants has
submitted that the High Court in this factual background had grossly erred
in dismissing the suit and the application for release of the suit premises
filed under Section 21 of the Act on the sole purported ground that the
will executed by Smt. Chameli Devi on 28.12.1976 had not been proved.
Additionally, as the appellants have proved that the original tenant had
continuously defaulted in payment of rent and had sub-let the premises
without the knowledge and approval of the landlords, the Trial Court was
justified in decreeing the suit for his eviction, he urged. It was further
argued that the suit premises being required bone fide by the appellants
for their genuine need for business, the impugned judgments and orders, if
allowed to stand would result in serious miscarriage of justice.
20. As against this, the learned counsel for the respondents has
maintained that the appellants in the attendant facts and circumstances are
neither the landlords nor the owners of the suit premises, which is clearly
borne out by the fact that the rent therefor was initially collected by
Smt. Chameli Devi and thereafter, by their father Bhola Nath, during his
lifetime. It has been argued that as Bhola Nath refused to receive rent,
it was offered to him and thereafter was deposited in court under Section
30 of the Act and thus the original defendant/tenant by no means can be
branded as defaulter. It was reiterated that Motichand was the nephew of
the original tenant as well as a partner in his business and thus his stay
in the suit premises did not amount to sub-letting thereof. The learned
counsel for the respondents also endorsed the finding of all the forums on
the absence of bona fide need or requirement of the appellants of the suit
premises.
21. The competing assertions and the materials on record have been duly
taken note of. Before adverting thereto, it would be appropriate to
undertake a brief survey of the relevant provisions of the Act, which as
the title suggests, is a legislation for regulation of letting and rent of
and the eviction of tenants from certain classes of building, situated in
the urban areas and for matters connected there with. The expressions
“tenant” and “landlord” are defined as hereunder:
3(a) “tenant” in relation to a building, means a person by whom its rent
is payable, and on the tenant's death, his heirs.
3(j) “landlord”, in relation to a building, means a person to whom its
rent is or if the building were let would be, payable, and includes, except
in clause (g), the agent or attorney, or such person.
22. It would be apparent from hereinabove that a “tenant” in relation to
a building is a person by whom rent is payable and on his death, his heirs.
“Landlord” vis-a-vis a building, as defined, means a person to whom its
rent is or if the building was let, would be payable and or include the
agent or attorney of such person. The definition of “Family” being not
relevant in the present context qua the expression “landlord” is not being
dilated upon. In terms of Section 20 of the Act, a suit for eviction of a
tenant for building after the determination of his tenancy may be
instituted on one or more of the grounds as enumerated in sub-section (2),
clauses (a) to (g) which includes:
(i) arrears of rent for not less than four months and failure to pay the
same to the landlord within one month from the date of service upon him of
a notice of demand; and
(ii) sub-letting of the suit premises by the tenant in contravention of the
provisions of Section 25 of the whole or any part of the building.
23. Sub-section 4 of Section 20 provides that if at the first hearing of
the suit, the tenant unconditionally pays or tenders to the landlord, the
entire amount of rent and damages for use and occupation of the building
due from him (such damages for use and occupation being calculated at the
same rate as rent) together with interest thereon at the rate of 9% per
annum and the landlord’s cost of the suit in respect thereof after
deducting therefrom any amount already deposited by the tenant under sub-
section 1 of Section 30, the court may in lieu of passing a decree for
eviction, pass an order relieving the tenant against his liability for
eviction, on that ground. The proviso thereto being not of any consequence
in the present case is not being referred to.
24. Section 21 authorises the Prescribed Authority to order the eviction
of a tenant from the building under tenancy or any specified part thereof,
if it is satisfied, on an application by the landlord, that, amongst others
the building is bona fide required either in its existing form or after
demolition and raising of new construction by the landlord for occupation
by himself or any member of its family or any person for whose benefit it
is held by him, either for residential purposes or for purposes of any
profession, trade or calling or if the landlord is a trustee of a public
charitable trust, for the objects of the trust.
25. Sub-section 4 clarifies that such an order may be made
notwithstanding that the tenancy has not been determined with the exception
that no such order would be made in the case of tenancy created for a fixed
term by registered lease, before the expiry of such term.
26. Section 30 of the Act permits deposit of rent in court in certain
circumstances. It predicates that if any person claiming to be a tenant of
a building tenders any amount as rent in respect of the building to its
alleged landlord and the alleged landlord refuses to accept the same, then
the tenant may deposit such amount in the prescribed manner and continue to
deposit any rent which he alleges to be due for any subsequent period in
respect of such building until the landlord in the meantime signifies by
notice in writing to the tenant, his willingness to accept it. Sub-section
2 elaborates that where any bona fide doubt or dispute has arisen as to the
person who is entitled to receive any rent in respect of any building, the
tenant may likewise deposit the rent stating the circumstances under which
such deposit is made and may until such doubt has been removed or such
dispute has been settled by the decision of any competent court or by
settlement between the parties, continue to deposit the rent that may
subsequently become due in respect of such building.
27. Whereas sub-sections (4) and (5) provide for issuance of notice of
the deposit to the alleged landlord or the person/persons concerned, sub-
section (6) mandates that in respect of such a deposit being made, it would
be deemed that the person depositing it has paid it on the date of such
deposit to the person in whose favour it is deposited. Section 38
proclaims that the provisions of that Act would have effect notwithstanding
anything inconsistent therewith contained in the Transfer of Property Act,
1882 or in the Code of Civil Procedure, 1908.
28. It is a matter of record that Smt. Chameli Devi, widow of
Mahabir Prasad was the grand-mother of the appellants. As the verdict in
original Case No. 95 of 1986, consistently referred to by all the Forums,
would divulge, Mahavir Prasad and Chameli Devi had two sons Bhola Nath
and Bachhan Lal. As noted hereinabove, the appellants are the sons of
Bhola Nath. Incidentally, Radha Devi, wife of Bacchan Lal and her sons
instituted the afore-mentioned suit i.e. Original Case No.95 of 1986 in the
Court of the Additional Civil Judge- VI, Allahabad seeking declaration of
title in respect, amongst others of the suit premises. This was contested
by Bhola Nath and the appellants and in course of the adjudication, the
will dated 28.12.1986 executed by Chameli Devi surfaced for scrutiny. On
the basis of this document, the appellants claimed ownership of the suit
premises. As the decision rendered in that suit on 05.04.1989 would
reveal, a compromise was arrived at between the parties having due regard
to the said will, whereby the ownership of the suit premises of the sons of
Bhola Nath and Bacchan Lal was declared and a decree to that effect was
passed. This decree, indisputably, has become final, in absence of any
challenge thereto before any forum. In the face of this compromise decree,
in our comprehension, the dismissal of the suit and the rejection of the
application for the release under Section 21 of the Act by the High Court
on the sole ground that the appellants had no locus to maintain the same in
absence of formal proof of the will dated 28.12.1976 was grossly
misdirected and thus cannot be sustained, more particularly in view of the
definition of the “landlord” provided in the Act.
29. Noticeably, the predecessor-in-interest of the respondents had
admitted the tenancy under Smt. Chameli Devi. He has admitted as well that
during her lifetime, rent used to be paid to her and thereafter her elder
son, Bhola Nath, father of the appellants used to receive the rent. It is
his pleaded case that as was the arrangement, he paid rent to Bhola Nath
upto September, 1979, whereafter he refused to accept the same.
Incidentally, even assuming that the plea of the original defendant of
having paid rent to Bhola Nath up to September, 1989 is correct (the
allegation of the appellants is that the default is from October, 1979),
the default from October 1989 is incidentally subsequent to the compromise
decree, as afore-mentioned whereunder the sons of Bhola Nath and Bachan Lal
were held to be the owners of the suit premises. It is a matter of record
that the appellants by notice dated 19.08.1989 had demanded from the
original defendant the arrears of rent from October, 1979 which was
admittedly received by him but not acted upon. In spite thereof, according
to the original defendant, he offered rent to Bhola Nath for the months of
October, 1989 to January, 1990 by remitting the same by money-orders and on
the alleged refusal thereof, eventually deposited the rent in court under
Section 30.
30. In view of the categorical disclosure in the notice dated
18.08.1989, issued on behalf of the appellants, requiring payment of rent
in arrears to them as the landlords and also indicating determination of
tenancy in case of failure in payment, we are of the view that the so
called offer of rent for the months of October, 1989 to January, 1990 to
Bhola Nath by money-orders and thereafter deposit in Court under Section 30
of the Act would be of no avail to the original defendant and on his death,
the present respondents. The original defendant in terms of the
aforementioned notice was fully aware of the compromise decree and the
status of the appellants as the joint owners/landlords and thus his offer
of rent to Bhola Nath, who ceased to be the landlord, was not in compliance
either of sub-section 4 of Section 20 or Section 30 of the Act to be
availed as a defence against his/their eviction from the suit premises.
The original defendant and consequently the respondents has/have therefore
rendered himself/themselves as defaulters within the meaning of the Act
and are liable to be evicted thereunder. It is more so as admittedly
neither the original defendant nor the respondents had ever endeavoured to
offer rent to the appellants after the compromise decree dated 05.04.89.
31. Viz-a-vis the aspect of sub-letting, we are inclined to concur with
the finding of the Trial Court that Motichand, who was the nephew of the
original defendant, had been inducted in the suit premises as a sub-
tenant. Further as it is a matter of record that the original defendant
had constructed his own house elsewhere where he has been residing with his
wife, the accommodation of his nephew Motichand in the suit premises did
amount to sub-letting and the same having been done without the knowledge
and approval of the landlords, this too provided a ground for his eviction
therefrom. Additionally, even if the deposit of arrears of rent in full by
the original defendant at the time of institution of the suit is construed
to be valid, in the face of his own house elsewhere, he is not entitled to
the protection from eviction under the proviso to sub-section 4 of Section
20. To be elaborate, under sub-section 4 of Section 20, as referred to
hereinabove, if a tenant, at the first hearing of the suit,
unconditionally pays or tenders to the landlord the entire amount of rent
and damages for use and occupation of the building due from him together
with interest thereon @ 9% per annum and the landlords' costs of the
suit in respect thereof, after deducting therefrom any amount already
deposited by the tenant under sub-section1 of Section 30, the court may,
in lieu of passing a decree for eviction on that ground, pass an order
relieving the tenant against his liability for eviction on the ground of
default. The proviso thereto predicates that this benefit would not be
available to a tenant who or any member of his family has built or has
otherwise acquired in a vacant state, or has got vacated after acquisition,
any residential building in the same city, municipality, notified area or
town area. Apart from the fact that no evidence is forthcoming to attest
that the requirements of sub-section 4 of Section 20 had been fully
complied with, the construction of his own house elsewhere, as is evident
from the record, did dis-entitle the original defendant and now the
respondents to avail the benefit of such protection, as contemplated by
the Act.
32. It is no longer res integra and is settled by this Court in Sri Ram
Pasricha vs. Jagannath and Ors., (1976) 4 SCC 184, Dhannalal vs.
Kalawatibai and Ors. (2002) 6 SCC 16 and India Umberalla Manufacturing Co.
and Ors. vs. Bhagabandei Agarwalla (dead) by Lrs. Savitri Agarwalla (Smt.)
and Ors. (2004) 3 SCC 178 that a suit for eviction of a tenant can be
maintained by one of the co-owners and it would be no defence to the
tenant to question the maintainability of the suit on the ground that the
other co-owners were not joined as parties to the suit. The judicially
propounded proposition is that when the property forming the subject matter
of eviction proceedings is owned by several co-owners, every co-owner owns
every part and every bit of the joint property along with others and thus
it cannot be said that he is only a part owner or a fractional owner of the
property and that he can alone maintain a suit for eviction of the tenant
without joining the other co-owners if such other co-owners do not object.
In the contextual facts, not only the compromise decree, as aforementioned,
has declared the appellants to be the joint owners of the suit premises,
their status as such has not been questioned at any stage by anyone
interested in the title thereto.
33. Further, the original defendant having accepted Smt. Chameli Devi as
his landlady and thereafter continued to pay rent to her son Bhola Nath,
the father of the appellants, in terms of the definition of “landlord” in
Section 3(j) of the Act, he during his life time and after his demise, the
respondents are estopped under Section 116 of the Indian Evidence Act, 1872
to dispute the status of the appellants as their landlord in a suit for his
eviction from the tenanted premises.
34. That a tenant during the continuance of the tenancy is debarred on
the doctrine of estoppel from denying the title of his landlord through
whom he claims tenancy, as is enshrined in Section 116 of the Indian
Evidence Act, 1872, is so well-settled a legal postulation that no
decision need be cited to further consolidate the same. This enunciation,
amongst others is reiterated by this Court in S. Thangappan vs. P.
Padmavathy (1999) 7 SCC 474 and Bhogadi Kannababu and Ors. vs. Vuggina
Pydamma and others (2006) 5 SCC 532. In any view of the matter, the
appellants, being the son of Bhola Nath, who at all relevant time, was the
landlord vis-à-vis the original defendant and the respondents in terms of
Section 3(j) of the Act, their status as landlords for the purpose of
eviction under the Act, could not have been questioned so as to non suit
them for want of locus.
35. To reiterate, the High Court by the decisions impugned, had
dismissed the suit and the application for release of the suit premises
under Section 21 of the Act, principally on the ground of want of standing
of the appellants. In the face of the determination made hereinabove, the
said conclusion is unsustainable on facts and in law and are thus liable
to be set aside, which we hereby do. Having regard to the conclusions
recorded on the aspect of default in payment of rent and sub-letting, both
statutorily recognized grounds for eviction of a tenant under Section 20 of
the Act, it is considered inessential to dilate on the ground of bona fide
requirement and comparative hardship. In the wake up of the above, the
impugned judgments and orders of the High Court are set-aside and the suit
of the appellants is decreed in full. The respondents would vacate the
suit premises at the earliest and in no case later than three months from
today. The appeals are allowed. No costs.
............................................J.
(ARUN MISHRA)
….........................................J.
(AMITAVA ROY)
NEW DELHI;
MARCH 21, 2017.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4309 OF 2017
(ARISING OUT OF SLP (C) NO. 17414 of 2015)
OM PRAKASH & ANR. …..APPELLANTS
VERSUS
MISHRI LAL (DEAD) REPRESENTED
BY HIS LR. SAVITRI DEVI ....RESPONDENT
WITH
CIVIL APPEAL NO. 4310 OF 2017
(ARISING OUT OF SLP (C) NO. 20758 of 2015)
RAJENDRA PRASAD & ANR. …..APPELLANTS
VERSUS
MISHRI LAL (DEAD) REPRESENTED
BY HIS LR. SAVITRI DEVI & ANR. ..…RESPONDENTS
J U D G M E N T
AMITAVA ROY, J.
Delay condoned.
2. Leave granted.
3. The appellants/plaintiffs (for short, hereinafter to be referred to
as “the appellants”) are aggrieved by the dismissal of their suit and the
application under the Uttar Pradesh Urban Buildings (Regulation of Letting,
Rent and Eviction) Act, 1972 (for short, hereinafter to be referred to as
“the Act”) for eviction of the respondents from the suit premises on the
ground, amongst others of default and bona fide requirement. The suit and
the application filed under Section 21 of the Act have been dismissed in
two separate proceedings by the High Court vide orders dated 25.02.2014 in
W.P.(C) No. 26732 of 2010 and Civil Miscellaneous Writ Petition No.31855 of
1998.
4. Both these petitions were analogously heard and thus the present
adjudication would address collectively the issues involved.
5. We have heard Mr. Anand Varma, learned counsel for the appellants
and Mr. R.D. Upadhyay, learned counsel for the respondents.
6. The appellants as plaintiffs instituted Suit No. 252 of 1989 in the
Court of Small Causes, Allahabad against Mishri Lal, the predecessor-in-
interest of the present respondents seeking his eviction from the suit
premises on the ground of default in payment of rent and sub-letting of the
suit premises without the knowledge and approval of the landlords i.e. the
appellants. The appellants claimed themselves to be the joint owners of the
suit premises since the death of their grand- mother Chameli Devi, widow of
late Mahabir Prasad on 30.07.1985. They referred to a will dated
28.12.1976 executed by their afore-named grand-mother in support of their
claim of joint ownership. They averred that the predecessor-in-interest of
the respondents was a tenant of the suit premises since 1968 against
payment of monthly rent of Rs. 96/- and the same was rented out on the
clear understanding that the tenant would vacate the same on one month’s
notice. The appellants alleged that the tenant i.e. the predecessor-in-
interest of the respondents paid rent till October, 1979 and thereafter
persistently failed to make payment thereof in spite of repeated demands.
Due to such default, the relationship between the landlords and tenant
became strained, and as claimed by the appellants, he without offering the
rent to the landlords, made deposits thereof under Section 30 of the Act,
which was invalid and non est in law. Situated thus, the appellants
addressed a notice dated 18.08.1989 terminating the tenancy, demanding
payment of the arrears of rent within the statutory period of one month
with the clear indication that in case of failure to respond to the notice
and the request for rent, the tenancy would stand determined and that the
tenant would be liable for eviction. According to the appellants the
notice was served on 26.08.1989, but despite the same, rent was not paid
and consequently the tenancy stood terminated.
7. It was further alleged that the tenant also sub-let the suit premises
to one Moti Chand for conducting his business therein. It was thus averred
that on this ground as well, as the sub-letting was done without the
knowledge and consent of the landlords, the tenant was liable for eviction.
The suit was thus filed for recovery of arrears of rent, eviction of the
tenant/ defendant and for damages for unauthorised use or occupation of the
tenanted premises as well as for interest.
8. The original defendant/tenant in his written statement though admitted
the tenancy under Smt. Chameli Devi, the grand- mother of the appellants,
he refused to acknowledge the appellants as his landlords. He claimed that
the tenancy had commenced from 1957 and that he had paid rent up to the
month of September, 1989 to the landlord, Bhola Nath (father of the
appellants) and that on his refusal to accept the same thereafter, he had
deposited the rent in court under Section 30 of the Act. The
defendant/tenant admitted Smt. Chameli Devi to be the landlady who used to
realize the rent till her life time and after her death, Bhola Nath, her
eldest son used to collect the same. He admitted the receipt of the notice
dated 18.08.1989, but denied that he was a defaulter in payment of rent or
that he was liable for eviction from the suit premises.
9. According to him, Motichand was his nephew and partner in his
business and that as he was like his own son, the allegation of sub-letting
was unfounded. Elaborating on the facts preceding the deposit of rent in
Court, the tenant reiterated that after the refusal by Shri Bhola Nath to
accept the rent subsequent to September, 1989, he remitted the rent for the
month of October and November, 1989 by money order dated 04.12.1989 but the
same was refused again. He stated that thereafter, for the second time, he
dispatched the rent for the months of October, November and December, 1989
on 26.12.1989 by money order but similarly the same was refused. According
to the tenant, he again on 12.01.1990 remitted the rent for the months of
October, 1989 to January, 1990 by money order and as the same was refused
again, he started depositing the rent in Court, the first deposit being
vide Misc. Case No.41 of 1990 for the months of October, 1989 to January,
1990.
10. He denied the execution of the will dated 28.12.1976 by Smt. Chameli
Devi, who had two sons Bhola Nath and Bacchanlal, but admitted that the
eldest son Bhola Nath used to realize rent from him.
11. Parallelly the appellants also filed an application under Section 21
of the Act before the Prescribed Authority against the original
defendant/tenant seeking release of the suit premises on the ground of
bona fide and genuine need therefor to, amongst others conduct their
business therein. This application was contested as well by the original
defendant by filing his objection questioning the bona fide need of the
appellants.
12. The Trial Court, on the basis of the pleadings, framed issues and
the parties adduced evidence, both oral and documentary. The appellants in
particular examined their father Bhola Nath as PW2, who admittedly used to
collect rent from the defendant/tenant till September, 1979, as claimed by
them.
13. The Trial Court decreed the suit, both on the ground of default in
payment of rent and sub-letting of the suit premises. In reaching this
conclusion, it amongst others took note of the testimony of Bhola Nath, son
of Smt. Chameli Devi, who supported the pleaded case of the appellants and
endorsed the factum of execution of will by Smt. Chameli Devi on the basis
of which they (appellants) claimed joint ownership of the suit premises.
It also noticed that such joint ownership had not been questioned or
disputed by any quarter. It also referred to a compromise decree between
the heirs of Bhola Nath and his brother Bachan Lal, rendered in Original
Case No. 95 of 1986 qua the will, which too authenticated the claim of the
appellants of the suit premises. Noticing the admission of the original
defendant/tenant of having paid rent to Bhola Nath, the father of the
appellants, the Trial Court negated his challenge to their claim of joint
ownership and their status of landlord vis-a-vis the suit premises.
14. While upholding the allegation of sub-letting, the Trial Court as well
held that the deposit of rent made by the original defendant was not in
terms of the Act and therefore he was not entitled to the protection from
eviction. It held the view that though disputed, even if the rent for the
months of October, 1989 to January, 1990 had been sent to Bhola Nath vide
money order, it did not amount to offering thereof to the appellants, the
landlords, and thus the deposit in Court was not as mandated by Section 30
of the Act. According to the Trial Court, Bhola Nath was only a collector
of rent on behalf of the appellants and therefore, offer thereof ought to
have been made to them (appellants) for a valid deposit under Section 30 of
the Act. The suit was thus decreed in full, as prayed for.
15. This verdict was challenged by the original defendant/tenant in
revision before the District Judge, Allahabad, who reversed the same on the
ground that the appellants have not been able to prove that they were the
exclusive landlords owners of the suit premises.
16. The appellants thereafter filed a writ petition before the High
Court, which remanded the matter to the Revisional Court by noticing, in
particular the compromise decree dated 05.04.1989 in Original Case No. 95
of 1986, in which the joint ownership of the appellants in the suit
premises had been decreed.
17. The Revisional Court, on remand, however maintained that the will
dated 28.12.1976, on the basis of which the appellants claimed joint
ownership had not been proved, as required under Section 63 of the Indian
Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872.
Besides, it also expressed its reservation with regard to the authenticity
and genuineness of this document. The suit was thus dismissed by upturning
the decree of the Trial Court. Consequently, the Revisional Court did not
examine the other issues on merits.
18. By the impugned judgment and order as well, the High Court, while
limiting itself to the aspect of the proof of the will, concurred with the
Revisional Court and dismissed the suit of the appellants. Apropos, the
proceedings based on the application under Section 21 of the Act for the
eviction of the original defendant on the ground of bona fide requirement,
the High Court, by the impugned verdict, upheld the rejection thereof, as
recorded by the Prescribed Authority by negating their status of that of a
landlord. In reaching this conclusion, the High Court noted that Bhola
Nath, the father of the appellants used to collect rent from the original
defendant throughout and that they did not at any point of time claim to be
the owners/landlords of the suit property, pursuant to the will executed by
Smt. Chameli Devi. It also concurred with the findings recorded by the
Prescribed Authority and the Appellate Court on the issue of bona fide need
and comparative hardship. The High Court was of the view that the will
dated 28.12.1976 on the basis of which the appellants had claimed joint
ownership was not proved as required in law and thus, the mere registration
thereof did not either suggest its genuineness or its validity so as to
provide the locus standi to them to maintain the application.
19. The learned counsel for the appellants has emphatically urged that
the issue of their joint ownership having been settled finally in view of
the compromise decree dated 05.04.1989 rendered in Original Case No. 95 of
1986 and their status as the heirs of Smt. Chameli Devi having been
conclusively established, the suit filed for the eviction of the
predecessor-in- interest of the respondents in that capacity was
maintainable, more particularly in the absence of any dispute of title
inter se the other legal heirs. In the alternative, it has been argued
that in any view of the matter, the appellants being the sons of Bhola
Nath, who admittedly used to collect rent and was a landlord under the Act,
they were entitled to receive rent qua the suit property from the tenant as
landlords under the statute and, therefore not only the predecessor-in-
interest of the respondents were estopped from denying their status as
such, but had made himself liable for eviction therefrom by persistent
default in payment of rent. The learned counsel for the appellants has
submitted that the High Court in this factual background had grossly erred
in dismissing the suit and the application for release of the suit premises
filed under Section 21 of the Act on the sole purported ground that the
will executed by Smt. Chameli Devi on 28.12.1976 had not been proved.
Additionally, as the appellants have proved that the original tenant had
continuously defaulted in payment of rent and had sub-let the premises
without the knowledge and approval of the landlords, the Trial Court was
justified in decreeing the suit for his eviction, he urged. It was further
argued that the suit premises being required bone fide by the appellants
for their genuine need for business, the impugned judgments and orders, if
allowed to stand would result in serious miscarriage of justice.
20. As against this, the learned counsel for the respondents has
maintained that the appellants in the attendant facts and circumstances are
neither the landlords nor the owners of the suit premises, which is clearly
borne out by the fact that the rent therefor was initially collected by
Smt. Chameli Devi and thereafter, by their father Bhola Nath, during his
lifetime. It has been argued that as Bhola Nath refused to receive rent,
it was offered to him and thereafter was deposited in court under Section
30 of the Act and thus the original defendant/tenant by no means can be
branded as defaulter. It was reiterated that Motichand was the nephew of
the original tenant as well as a partner in his business and thus his stay
in the suit premises did not amount to sub-letting thereof. The learned
counsel for the respondents also endorsed the finding of all the forums on
the absence of bona fide need or requirement of the appellants of the suit
premises.
21. The competing assertions and the materials on record have been duly
taken note of. Before adverting thereto, it would be appropriate to
undertake a brief survey of the relevant provisions of the Act, which as
the title suggests, is a legislation for regulation of letting and rent of
and the eviction of tenants from certain classes of building, situated in
the urban areas and for matters connected there with. The expressions
“tenant” and “landlord” are defined as hereunder:
3(a) “tenant” in relation to a building, means a person by whom its rent
is payable, and on the tenant's death, his heirs.
3(j) “landlord”, in relation to a building, means a person to whom its
rent is or if the building were let would be, payable, and includes, except
in clause (g), the agent or attorney, or such person.
22. It would be apparent from hereinabove that a “tenant” in relation to
a building is a person by whom rent is payable and on his death, his heirs.
“Landlord” vis-a-vis a building, as defined, means a person to whom its
rent is or if the building was let, would be payable and or include the
agent or attorney of such person. The definition of “Family” being not
relevant in the present context qua the expression “landlord” is not being
dilated upon. In terms of Section 20 of the Act, a suit for eviction of a
tenant for building after the determination of his tenancy may be
instituted on one or more of the grounds as enumerated in sub-section (2),
clauses (a) to (g) which includes:
(i) arrears of rent for not less than four months and failure to pay the
same to the landlord within one month from the date of service upon him of
a notice of demand; and
(ii) sub-letting of the suit premises by the tenant in contravention of the
provisions of Section 25 of the whole or any part of the building.
23. Sub-section 4 of Section 20 provides that if at the first hearing of
the suit, the tenant unconditionally pays or tenders to the landlord, the
entire amount of rent and damages for use and occupation of the building
due from him (such damages for use and occupation being calculated at the
same rate as rent) together with interest thereon at the rate of 9% per
annum and the landlord’s cost of the suit in respect thereof after
deducting therefrom any amount already deposited by the tenant under sub-
section 1 of Section 30, the court may in lieu of passing a decree for
eviction, pass an order relieving the tenant against his liability for
eviction, on that ground. The proviso thereto being not of any consequence
in the present case is not being referred to.
24. Section 21 authorises the Prescribed Authority to order the eviction
of a tenant from the building under tenancy or any specified part thereof,
if it is satisfied, on an application by the landlord, that, amongst others
the building is bona fide required either in its existing form or after
demolition and raising of new construction by the landlord for occupation
by himself or any member of its family or any person for whose benefit it
is held by him, either for residential purposes or for purposes of any
profession, trade or calling or if the landlord is a trustee of a public
charitable trust, for the objects of the trust.
25. Sub-section 4 clarifies that such an order may be made
notwithstanding that the tenancy has not been determined with the exception
that no such order would be made in the case of tenancy created for a fixed
term by registered lease, before the expiry of such term.
26. Section 30 of the Act permits deposit of rent in court in certain
circumstances. It predicates that if any person claiming to be a tenant of
a building tenders any amount as rent in respect of the building to its
alleged landlord and the alleged landlord refuses to accept the same, then
the tenant may deposit such amount in the prescribed manner and continue to
deposit any rent which he alleges to be due for any subsequent period in
respect of such building until the landlord in the meantime signifies by
notice in writing to the tenant, his willingness to accept it. Sub-section
2 elaborates that where any bona fide doubt or dispute has arisen as to the
person who is entitled to receive any rent in respect of any building, the
tenant may likewise deposit the rent stating the circumstances under which
such deposit is made and may until such doubt has been removed or such
dispute has been settled by the decision of any competent court or by
settlement between the parties, continue to deposit the rent that may
subsequently become due in respect of such building.
27. Whereas sub-sections (4) and (5) provide for issuance of notice of
the deposit to the alleged landlord or the person/persons concerned, sub-
section (6) mandates that in respect of such a deposit being made, it would
be deemed that the person depositing it has paid it on the date of such
deposit to the person in whose favour it is deposited. Section 38
proclaims that the provisions of that Act would have effect notwithstanding
anything inconsistent therewith contained in the Transfer of Property Act,
1882 or in the Code of Civil Procedure, 1908.
28. It is a matter of record that Smt. Chameli Devi, widow of
Mahabir Prasad was the grand-mother of the appellants. As the verdict in
original Case No. 95 of 1986, consistently referred to by all the Forums,
would divulge, Mahavir Prasad and Chameli Devi had two sons Bhola Nath
and Bachhan Lal. As noted hereinabove, the appellants are the sons of
Bhola Nath. Incidentally, Radha Devi, wife of Bacchan Lal and her sons
instituted the afore-mentioned suit i.e. Original Case No.95 of 1986 in the
Court of the Additional Civil Judge- VI, Allahabad seeking declaration of
title in respect, amongst others of the suit premises. This was contested
by Bhola Nath and the appellants and in course of the adjudication, the
will dated 28.12.1986 executed by Chameli Devi surfaced for scrutiny. On
the basis of this document, the appellants claimed ownership of the suit
premises. As the decision rendered in that suit on 05.04.1989 would
reveal, a compromise was arrived at between the parties having due regard
to the said will, whereby the ownership of the suit premises of the sons of
Bhola Nath and Bacchan Lal was declared and a decree to that effect was
passed. This decree, indisputably, has become final, in absence of any
challenge thereto before any forum. In the face of this compromise decree,
in our comprehension, the dismissal of the suit and the rejection of the
application for the release under Section 21 of the Act by the High Court
on the sole ground that the appellants had no locus to maintain the same in
absence of formal proof of the will dated 28.12.1976 was grossly
misdirected and thus cannot be sustained, more particularly in view of the
definition of the “landlord” provided in the Act.
29. Noticeably, the predecessor-in-interest of the respondents had
admitted the tenancy under Smt. Chameli Devi. He has admitted as well that
during her lifetime, rent used to be paid to her and thereafter her elder
son, Bhola Nath, father of the appellants used to receive the rent. It is
his pleaded case that as was the arrangement, he paid rent to Bhola Nath
upto September, 1979, whereafter he refused to accept the same.
Incidentally, even assuming that the plea of the original defendant of
having paid rent to Bhola Nath up to September, 1989 is correct (the
allegation of the appellants is that the default is from October, 1979),
the default from October 1989 is incidentally subsequent to the compromise
decree, as afore-mentioned whereunder the sons of Bhola Nath and Bachan Lal
were held to be the owners of the suit premises. It is a matter of record
that the appellants by notice dated 19.08.1989 had demanded from the
original defendant the arrears of rent from October, 1979 which was
admittedly received by him but not acted upon. In spite thereof, according
to the original defendant, he offered rent to Bhola Nath for the months of
October, 1989 to January, 1990 by remitting the same by money-orders and on
the alleged refusal thereof, eventually deposited the rent in court under
Section 30.
30. In view of the categorical disclosure in the notice dated
18.08.1989, issued on behalf of the appellants, requiring payment of rent
in arrears to them as the landlords and also indicating determination of
tenancy in case of failure in payment, we are of the view that the so
called offer of rent for the months of October, 1989 to January, 1990 to
Bhola Nath by money-orders and thereafter deposit in Court under Section 30
of the Act would be of no avail to the original defendant and on his death,
the present respondents. The original defendant in terms of the
aforementioned notice was fully aware of the compromise decree and the
status of the appellants as the joint owners/landlords and thus his offer
of rent to Bhola Nath, who ceased to be the landlord, was not in compliance
either of sub-section 4 of Section 20 or Section 30 of the Act to be
availed as a defence against his/their eviction from the suit premises.
The original defendant and consequently the respondents has/have therefore
rendered himself/themselves as defaulters within the meaning of the Act
and are liable to be evicted thereunder. It is more so as admittedly
neither the original defendant nor the respondents had ever endeavoured to
offer rent to the appellants after the compromise decree dated 05.04.89.
31. Viz-a-vis the aspect of sub-letting, we are inclined to concur with
the finding of the Trial Court that Motichand, who was the nephew of the
original defendant, had been inducted in the suit premises as a sub-
tenant. Further as it is a matter of record that the original defendant
had constructed his own house elsewhere where he has been residing with his
wife, the accommodation of his nephew Motichand in the suit premises did
amount to sub-letting and the same having been done without the knowledge
and approval of the landlords, this too provided a ground for his eviction
therefrom. Additionally, even if the deposit of arrears of rent in full by
the original defendant at the time of institution of the suit is construed
to be valid, in the face of his own house elsewhere, he is not entitled to
the protection from eviction under the proviso to sub-section 4 of Section
20. To be elaborate, under sub-section 4 of Section 20, as referred to
hereinabove, if a tenant, at the first hearing of the suit,
unconditionally pays or tenders to the landlord the entire amount of rent
and damages for use and occupation of the building due from him together
with interest thereon @ 9% per annum and the landlords' costs of the
suit in respect thereof, after deducting therefrom any amount already
deposited by the tenant under sub-section1 of Section 30, the court may,
in lieu of passing a decree for eviction on that ground, pass an order
relieving the tenant against his liability for eviction on the ground of
default. The proviso thereto predicates that this benefit would not be
available to a tenant who or any member of his family has built or has
otherwise acquired in a vacant state, or has got vacated after acquisition,
any residential building in the same city, municipality, notified area or
town area. Apart from the fact that no evidence is forthcoming to attest
that the requirements of sub-section 4 of Section 20 had been fully
complied with, the construction of his own house elsewhere, as is evident
from the record, did dis-entitle the original defendant and now the
respondents to avail the benefit of such protection, as contemplated by
the Act.
32. It is no longer res integra and is settled by this Court in Sri Ram
Pasricha vs. Jagannath and Ors., (1976) 4 SCC 184, Dhannalal vs.
Kalawatibai and Ors. (2002) 6 SCC 16 and India Umberalla Manufacturing Co.
and Ors. vs. Bhagabandei Agarwalla (dead) by Lrs. Savitri Agarwalla (Smt.)
and Ors. (2004) 3 SCC 178 that a suit for eviction of a tenant can be
maintained by one of the co-owners and it would be no defence to the
tenant to question the maintainability of the suit on the ground that the
other co-owners were not joined as parties to the suit. The judicially
propounded proposition is that when the property forming the subject matter
of eviction proceedings is owned by several co-owners, every co-owner owns
every part and every bit of the joint property along with others and thus
it cannot be said that he is only a part owner or a fractional owner of the
property and that he can alone maintain a suit for eviction of the tenant
without joining the other co-owners if such other co-owners do not object.
In the contextual facts, not only the compromise decree, as aforementioned,
has declared the appellants to be the joint owners of the suit premises,
their status as such has not been questioned at any stage by anyone
interested in the title thereto.
33. Further, the original defendant having accepted Smt. Chameli Devi as
his landlady and thereafter continued to pay rent to her son Bhola Nath,
the father of the appellants, in terms of the definition of “landlord” in
Section 3(j) of the Act, he during his life time and after his demise, the
respondents are estopped under Section 116 of the Indian Evidence Act, 1872
to dispute the status of the appellants as their landlord in a suit for his
eviction from the tenanted premises.
34. That a tenant during the continuance of the tenancy is debarred on
the doctrine of estoppel from denying the title of his landlord through
whom he claims tenancy, as is enshrined in Section 116 of the Indian
Evidence Act, 1872, is so well-settled a legal postulation that no
decision need be cited to further consolidate the same. This enunciation,
amongst others is reiterated by this Court in S. Thangappan vs. P.
Padmavathy (1999) 7 SCC 474 and Bhogadi Kannababu and Ors. vs. Vuggina
Pydamma and others (2006) 5 SCC 532. In any view of the matter, the
appellants, being the son of Bhola Nath, who at all relevant time, was the
landlord vis-à-vis the original defendant and the respondents in terms of
Section 3(j) of the Act, their status as landlords for the purpose of
eviction under the Act, could not have been questioned so as to non suit
them for want of locus.
35. To reiterate, the High Court by the decisions impugned, had
dismissed the suit and the application for release of the suit premises
under Section 21 of the Act, principally on the ground of want of standing
of the appellants. In the face of the determination made hereinabove, the
said conclusion is unsustainable on facts and in law and are thus liable
to be set aside, which we hereby do. Having regard to the conclusions
recorded on the aspect of default in payment of rent and sub-letting, both
statutorily recognized grounds for eviction of a tenant under Section 20 of
the Act, it is considered inessential to dilate on the ground of bona fide
requirement and comparative hardship. In the wake up of the above, the
impugned judgments and orders of the High Court are set-aside and the suit
of the appellants is decreed in full. The respondents would vacate the
suit premises at the earliest and in no case later than three months from
today. The appeals are allowed. No costs.
............................................J.
(ARUN MISHRA)
….........................................J.
(AMITAVA ROY)
NEW DELHI;
MARCH 21, 2017.
