Judgment Go Back
indra Sharma Vs. Gopal Dass and ors.
|Court||Delhi High Court|
|Case Number||Second Appeal No. 325 of 1981|
|Judge||Leela Seth, J.|
|Reported in||AIR1985Delhi118; 1984(7)DRJ286|
|Acts||Displaced Persons (Compensation and Rehabilitation) Act, 1954 - Sections 29; Hindu Succession Act, 1956 - Sections 19; Transfer of Property Act, 1882 - Sections 111(1)|
|Respondent||Gopal Dass and ors.|
|Advocates:||I.S. Mathur,; T.S. Kawatra and; G.N. Aggarwal, Advs|
|Cases Referred||Shri Makat Behari v. Shri Siri Ram Basheshwar Nath and|
.....to be a tenant under the purchaser or the transferee. - - (1) an interesting point has arisen in this case pertaining to evacuee propel ty. i and had failed to pay the rent ;that the notice to quit was validly served on her ;and that 'even assuming that sohan lal was the tenant, although i find otherwise even then i find that a valid notice of termination of tenancy has been served upon the respondents'.however, he held that there was no sub-letting as admittedly dev dutt was the son of laxmi devi and no rent was being charged by laxmi devi from dev dutt and shakuntala devi. the scheme of the rules, as is well known, was for the purpose of rehabilitating displaced persons who had been uprooted from their original homes as a result of partition of the country. the statute says that..........allies, 1955.(4) on 11th february, 1962, sohan lal died. his legal heirs were his widow, laxmi devi, his son dcv dutt (rattan) and the heirs of his predeceased son khushi ram. late khushi ram's heirs were his widow shakuntala devi, sons suresh, naresh, ramesh and prem kumar as also two daughters indra and geeta sharma.(5) on 7th april, 1969, a letter was issued by the ministry of labour, employment and rehabilitation from the office of the regional settlement commissioner, new delhi. the said letter, ext. a. 2, was addressed to gopal dass and laxmi devi, the widow of sohan lal. the addresses of both gopal dass and laxmi devi were indicated therein as iv/382 (new), mehrauli, new delhi. the letter pertained to the transfer of the property. it was stated in the said letter that.....
Leila Seth, J.
(1) An interesting point has arisen in this case pertaining to evacuee propel ty. The question posed is as to the scope and effect of an earlier date of transfer specified in the deed of conveyance, than its date of execution. For on the result of this query, would depend who is the tenant of the transferee.
(2) These are the brief facts. Sohan Lal was the tenant of the Custodian of Evacuee Property. The tenancy pertained to the ground floor of premises No. IV/382 (New), Mehrauli, New Delhi. Gopal Dass resided on the first floor of the said premises. He was the claimant and purchased the entire abovementioned property.
(3) The deed. of conveyance, in respect of the said free hold property was executed on 17th April, 1968 between the Vendor. President of India, and the Purchaser Gopal Dass. However, as indicated therein, the said property was transferred to Gopal Dass, respondent No. 1 with effect from 1st October, 1955. The deed of conveyance was in the form specified in Appendix Xxiv as required by Rule 33 of the Displaced Persons (Compensation and Rehabilitation) allies, 1955.
(4) On 11th February, 1962, Sohan Lal died. His legal heirs were his widow, Laxmi Devi, his son Dcv Dutt (Rattan) and the heirs of his predeceased son Khushi Ram. Late Khushi Ram's heirs were his widow Shakuntala Devi, Sons Suresh, Naresh, Ramesh and Prem Kumar as also two daughters Indra and Geeta Sharma.
(5) On 7th April, 1969, a letter was issued by the Ministry of Labour, Employment and Rehabilitation from the Office of the Regional Settlement Commissioner, New Delhi. The said letter, Ext. A. 2, was addressed to Gopal Dass and Laxmi Devi, the widow of Sohan Lal. The addresses of both Gopal Dass and Laxmi Devi were indicated therein as IV/382 (New), Mehrauli, New Delhi. The letter pertained to the transfer of the property. It was stated in the said letter that the aforesaid property had been permanent /provisionally transferred to Gopal Dass and '........you are hereby directed to pay rent him and deal otherwise with him direct w.e.f. 1-10-55'.
(6) On 16th April, 1969, a legal notice was addressed by the Advocates of Gopal Dass to three persons. These were Laxmi Devi, the widow of Sohan Lal, Dev Dutt son of Sohan Lal and Shakuntala Devi widow of Khlisi Ram. They were all shown as residents of IV/382 (New), MehrauU, New, Delhi. It was stated in the said notice that Gopal Dass was the owner-landlord of the above-mentioned house and Laxmi Devi was 'the tenant in four rooms, kitchen, Bath and Latrine in the said house at a nominal rent of Rs. 21- per month.. ....'. It was asserted that she had 'sub-let, assigned or otherwise Parted with the possession of the whole or part of the premises without obtaining consent in writing', from -Gopal Dass in favor of Dev Dutt and Shakuntala Devi. It was also asserted that the arrears of rent with effect from 1st October, 1965 had neither been paid nor tendered ; further, that the premises were residential and were required bona fide for the occupation of Gopal Dass and his family members. The tenancy was sought to be terminated with effect from 30th June, 1969.
(7) Subsequent thereto, on 5th February, 1970, an ejectment application was moved by respondent No. I against Laxmi Devi widow of Sohan Lal, Dev Rattan and Shakuntala Devi. The eviction petition was based on, inter-alia, the ground of sub-letting of the premises by Laxmi Devi to Dev Rattan and Shakuntala Devi. The other grounds pertained to non-payment of rent from 1st October, 1965, bona fide personal requirement and acquiring of another residence.
(8) On 28th April, 1970, the said three persons filed a joint written .statement and asserted that after the death of Sohan Lal, all three of them as heirs became 'the direct tenants of Custodian'. They constituted a joint Hindu Family and were residing in the tenanted premises from 'the very beginning'.
(9) On 10th June, 1970, an order under Section 15(1) of the Delhi Rent Control Act, 1958, was passed against Laxmi Devi. As the rent was not deposited, on 22nd July, 1970, Laxmi Devi's defense was struck off ; but evidence was recorded in 1974-75. During the pendency of the proceedings, .Laxmi Devi died on 16th November, 1975. On 21st April, 1976, respondent on. I applied for substituting the legal representatives of Laxmi Devi. As such, the sons and daughters of deceased Khusi Ram, pre-deceased son of Sohan Lal, Wire brought on record. The said substitution took place on 13th October, 1977.
(10) 0N 8th February, 1978, Indra Sharma, the appellant and Suresh Sharma, respondent No. 4, filed a written statement verified on 17th January, 1978. A fresh written statement was also filed on behalf of Dev Dutt and Shakuntala Devi. The stand taken by all of them was that they were direct tenants of the Custodian, as after the death of SohanLal, his heirs became the tenants. The averments made in the earlier written statement dated 28th April, 1970 were reiterated.
(11) The Additional Rent Controller by his order dated 10th May, 1979 held that Sohan Lal was not the tenant of the Custodian when the property was transferred to respondent No. 1. In coming to this conclusion he relied on the attornment letter dated 7th April, 1969, Ex. A. 2. He held that Laxmi Devi was the tenant of respondent No. I and had failed to pay the rent ; that the notice to quit was validly served on her ; and that 'even assuming that Sohan Lal was the tenant, although I find otherwise even then I find that a valid notice of termination of tenancy has been served upon the respondents'.. However, he held that there was no sub-letting as admittedly Dev Dutt was the son of Laxmi Devi and no rent was being charged by Laxmi Devi from Dev Dutt and Shakuntala Devi. The ground under Section 14(l)(h) of. the Delhi Rent Control Act, 1958, was not pressed. In conclusion the Additional Rent Controller held that respondent No. I was entitled to eviction on the ground of non-payment of rent and bona fide requirement.
(12) Two appeals were filed, challenging the said judgment and order one by Dev Dutt and Shakuntala Devi and the other by Indra Sharma and Sliresh Sharma. In view of the fact, as already noticed, that Laxmi. Devi had not complied with the order under Section 15(1) and her defense had been struck off on 22nd July, 1970, only limited argument was permitted. As such, the only contention urged was that Sohan Lal was the tenant of the Custodian and on his death in 1962 the tenancy rights were inherited by all his heirs and not by Laxmi Devi alone; thereforee, the eviction petition having been filed only against Laxmi Devi was not maintainable. The basis reply of respondent No. I to this submission was that since the attornment letter was issued only to Laxmi Devi and he was informed that she was the tenant, the other heirs could not be the tenants.
(13) The Rent Control Tribunal dismissed the appeals. But it noticed, that admittedly, Sohan Lal was the original tenant. However, it averred, that 'it is not disputed that property in question was transferred to Shri Gopal Dass, respondent in the year 1968 while Sohan Lal died in 1962'.
(14) Learned counsel for the appellant submits that this statement is not correct ; for though, it is not disputed that the conveyance deed is dated 17th April, 1968,'it is categorically the case of the appellant that the property was transferred to Gopal Dass with effect from 1st October, 1955. This is the crux.
(15) As already noticed, the conveyance deed though dated 17th April, 1968 specifically provides that the property is transferred with effect from 1st October, 1955. In order to appreciate the scope and effect of this retrospective transfer. It is necessary to examine the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 and Rules 1955. (to be referred to in brief as 'the D.P.Act'and 'Rules' respectively). Chapter V of the Rules deals with the question of payment of compensation by transfer of acquired evacuee properties. The scheme of the rules, as is well known, was for the purpose of rehabilitating displaced persons who had been uprooted from their original homes as a result of partition oF the country. Special significance was attributed to the occupation of the property in considering the eligibility of transfer. The main factor being, that persons in occupation should become owners of the evacuee allot table properties, so that there would be the least dislocation of persons in occupation as a result of transfer. See : Smt. Jamna Bai and another v. Union of India and others, .
(16) Rule 33 provides that whre any property is transferred to any person under this Chapter, a deed of transfer shall be executed in the form specified in Appendix Xxiv or Xxv as the case may be with necessary modifications.] Appendix Xxiv, which pertains to a deed of conveyance in the case of free-hold properties which are sold otherwise than by public auction, is the relevant form in the present case and contains the following words 'this indenture shall be deemed to have come into force ..... ..'.
(17) Rule 34 provides that where any property is transferred to any person under this Chapter the property shall be deemed to have been transferred toTlim, on the particular dates as indicated in the' said rules. In the present case, as already noticed, the deemed date of transfer is 1st October, i955.
(18) In East End Dwellings Co. Ltd. v. Finsbury Borough Council 1952 AC 109, Lord Asquith of Bishopstone opined :
'IF you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative, state of affairs had in fact existed, must inevitably have flowed from or accompanied it. One of these in this case is emancipation from the 1939 level of rents. The statute says that you must imagine a certain state of affairs ; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs'.
(19) It is now well settled, that where, by a legal fiction a particular position is brought about, it has to be carried to its logical conclusion and the imagination cannot be allowed to boggle. See : State of Mysore v. Fakkrusab Bahusab Karanandi, : 1977CriLJ1005 .
(20) Dealing with a somewhat similar situation under Section 14(6) of the Delhi Rent Control Act, 1958. Hon'ble Mr. Justice S.K.Kapur in Karam Narain v. Narsingh Dass 1966 PLR 123, held that the date of transfer for moving an application under Section 14(6) of the Delhi Rent Control Act, when the property had been acquired under the D.P.Act and-Rules, would be the deemed-date of transfer. It was held that Rule 34 of the D.P. Rules, by fiction, made the purchasers, trans-' frees of the property, as owners, from a given date ; and when Section 14(6) of the Delhi Rent Control Act tells of a date of acquisition, it must mean the date when the law deems the owners to have acquired the property.
(21) Inder Singh v.Han Chand 1968 Dlt 86 the abovementioned judgment was referred to and followed on this aspect.
(22) In the present case it is not disputed that the property was transferred under the D.P. Act and Chapter V of the Rules. The date fixed in conformity with Rule 14 is 1st October, 1955. Thus a fiction has been created, and full and logical effect has to be given to the said fiction. The notional date of transfer, fixed as per the statute and rules, is at a particular point of time, and that has to be taken as the deemed date of transfer. As such, the prior date oF 1st October, 1955, specified in the deed of conveyance dated 17th April, 1968, as the date with effect from which the property was transferred, must be deemed to be the date of transfer. Thus the inevitable corollary must follow. Sohan Lal, who was alive on that date and was the tie-in of the Custodian, would become the tenant of the transferee Gopal Dass by virtue of Section 29 of the Dp Act. Further, on his death on 11th February, 1962 all his legal heirs would inherit the tenancy. Admittedly, his widow Laxmi Devi, Son Dev Dutt and the heirs of his pre-deceased son Khushi Rani were residing there. They would naturally all become cotenants.
(23) Section 19 of the Hindu Succession Act, 1956 makes this clear. It provides, inter alia, that if two or more heirs succeed together to the property of an intestate, they shall take the property as tenants-in-common and not as joint tenants.
(24) In Vidvawanti v. Takan Dais and another 1974 RCR 47, a bench of this court, while dealing with tenancy rights, opined that the heirs inherit the tenancy as co-tenants and not as joint tenants in view of Section 19(b) of the Hindu Succession Act, 1956. They have unity of possession but not unity of title. The order of eviction against one tenant is not binding on the other-co-tenants.
(25) In fact, this aspect of the matter was accepted by the Rent Control Tribunal but it came to the conclusion that Laxmi Devi alone was the tenant. In coming to this conclusion it relied on the letter of attornment, Ex. A. 2, which was issued only to her as the tenant of the property. It also relied on the fact, that prior to the written statement, there is no assertion on behalf of title other heirs of Sohan Lal that they were the tenants; nor i.s there anything on record to show that they tried to pay the rent or obtain rent receipts in their own names. The other factor that weighed with the Rent Control Tribunal in affirming the conclusion of the Trial Court, that Laxmi Devi alone was the tenant, was that since the property was transferred in 1968 and Sohan Lal had died when the property was still vested in the Custodian, Gopal Dass being a subsequent purchaser could not possibly know what the correct position, was when he purchased the property.
(26) This last aspect of the matter has already been dealt with my me earlier and it is clear that SohanLal was the tenant on 1st October, 1955 when the property was transferred to Gopal Dass. As noticed earlier, the salient feature of the scheme of transfer provided for in the Rules, is that persons in occupation become the owners of the evacuee allot table property so that minimal dislocation takes place. Gopal Dass the claimant, who became the owner retrospectively, was residing on the first floor of the same premises and must have been aware of the entire position.
(27) It is true, that the letter of attornment dated 7th April, 1969 issued by the Ministry of Rehabilitation to Gopal Dass referred only to Laxmi Devi widow of Sohan Lal as the tenant. But this was only a subsequent intimation and cannot beheld to result in terminating the rights of the co-tenants. As such, this letter cannot bind the other co-tenants so as to determine their rights.
(28) The tenancy rights were inherited and the fact that the attornment letter did not mention the names of the other co-tenants cannot have the effect of extinguishing their rights. For after all, the rights of a tenant in the premises do not get determined just because there is no letter of attornment.
(29) Once it is clear, that the other legal heirs of Sohan Lal were co-tenants, the fact that they did not assert their rights prior to the filing of the written statement is not relevant and cannot amount to implied surrender in terms of Section 11(f) of the Transfer of Property Act, 1882. See: Mst. Jamila Begum and others v. Jumma alias Billu Pehalwan and another 1981(2) RCJ 729.
(30) In any case, as has been already observed, the deemed date of transfer must be taken to be 1st October, 1955 and that must also be taken to be the effective date of transfer. thereforee, it must be held that the title to the property passed on that specified date and was not kept in abeyance. On that date, Sohan Lal was in occupation of the disputed premises and was the tenant of the Custodian. Immediately on transfer, by virtue of Section 29 of the D.P. Act, he became the tenant of Gopal Dass and the relationship of landlord and tenant came into existence.
(31) Sohan Lal was not a statutory-tenant under Section 29 of the D.P. Act, but a tenant by operation of law as has been held in Shri Makat Behari v. Shri Siri Ram Basheshwar Nath and others 1977 (2) RLR 348. In that case, this court opined that it would be wrong to call him a statutory tenant under Section 29. After the transfer of the property in their occupation, this section says, that they would be 'deemed' to be tenants of the transferee. The word 'deemed' imports a statutory fiction. It means that a person in occupation under the Custodian would be deemed to have become the tenant under the transferee. There is no distinction whatever between this tenant and an ordinary tenant under the ordinary law. The only difference, if there is any, is this. He is not a consensual tenant or a contractual tenant. He is a tenant by operation of law because the statute makes him a tenant under the purchaser or the transferee by importing a fiction. The tenant by operation of law is as much entitled to the protection of the Rent Act as a tenant inducted by the transferee himself. It was further observed that the expression 'statutory tenant' cannot be applied to a person deemed to be a tenant under the purchaser or the transferee. To call a tenant by operation of law under Section 29 of the Act as a statutory tenant is a misnomer.
(32) Admittedly, no notice to quit or determine the tenancy was even served on SohanLal; assuch, on his death on 11th February, 1962, his heirs must be taken to be the tenants.
(33) In The circumstances, as no notice of demand of rent was served on the appellant and no order under Section 15(1) of the Delhi Rent Control Act was passed against any one except Laxmi Devi, the ejectment application must be held to be not maintainable.
(34) In the result and for the reasons outlined above, the appeal is allowed, the ejectment application is dismissed as not maintainable and the order of eviction pertaining to the suit premises is set aside. However, in the circumstances of the case. I make no order as to costs.