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Fateh Chand and anr. Vs. Brij Bhushan Prakash and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Family
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 2250 of 1946
Judge
Reported inAIR1957All801
ActsTransfer of Property Act, 1882 - Sections 106; Hindu Women's Rights to Property Act, 1937 - Sections 3; Hindu Law; Uttar Pradesh Temporary Control of Rent and Eviction Act, 1947 - Sections 3, 9 and 14; Uttar Pradesh Temporary Control of Rent and Eviction Act, 1946 - Sections 11
AppellantFateh Chand and anr.
RespondentBrij Bhushan Prakash and anr.
Appellant AdvocateA.B. Pandey, ;P.S. Sharma and ;W.A. Khan, Advs.
Respondent AdvocateJagdish Swarup, ;Satish Chand and ;Hari Swarup, Advs.
Excerpt:
.....act and could, if she liked, claim a partition of that share did not amount to a disruption of the joint family. as long as the family was joint, the sons who were managing its affairs could continue to be the kartas and in that capacity they could effectively determine the tenancy by a notice. the plaintiff's contention appears to be well-founded. it was, therefore, not open to the plaintiffs to sue alone without impleading the widows as well. the act was intended to give better rights to women in respect of property that is the preamble to the act -but there is no indication that the act intended to interfere with the established law relating to joint family. hence, those members still continue to enjoy as amongst themselves the benefit of survivorship. the on]y ground on which the..........act and could, if she liked, claim a partition of that share did not amount to a disruption of the joint family. the joint family must be deemed to have continued and could come to an end only if there was a partition by metes and bounds either at the instance of the sons or at the instance of the widow.as long as the family was joint, the sons who were managing its affairs could continue to be the kartas and in that capacity they could effectively determine the tenancy by a notice. it was not necessary for the widow to join them. the notice of ejectment cannot, therefore, be said to be defective because it was issued by the sons alone and not by the widow also.the plaintiff's contention appears to be well-founded. in kallian rai v. kashi nath, reported in : air1943all188 , the defendant.....
Judgment:

Srivastava, J.

1. These two appeals are connected with each other and the undisputed facts which have given rise to them are as follows:--

On the 21st August 1923, Lala Fateh Chand and Lala Chatter Sen (appellants in Appeal No. 2041 of 1948 and respondents in Appeal No. 2250 of 1946, who shall be referred to hereinafter as defendants) obtained a lease of the premises in dispute from one Lala Devi Prasad. The landlord served a notice of eviction on the tenants and filed a suit for ejectment and recovery of arrears of rent. The defendants pleaded inter alia that a part of the property from which their ejectment was claimed belonged to them and not to the plaintiff. They also pleaded that the notice of eviction was invalid. This latter contention was accepted by the Court and the suit for ejectment was dismissed. Lala Devi Prasad, the ori-ginal landlord, then died sometime after 1942 leaving his widow, Srimati Asharfi Devi and two sons Brij Bhushan Prakash and Kirti Bhushan Prakash.

Under the Hindu Women's Rights to Property Act (Act XV1I1 of 1937), the widow on the death of her husband obtained a share in the leased property equal to that of her sons. The two sons then served a fresh notice of ejectment on the defendants on the 24th of March 1944. The Defence oi India Rules were in force at that time and an order had been issued under R. 81 of those Rules that no person could be ejected without the permission of the Dis-trict Magistrate. On tile 7th of April 1944, the two sons of Lala Devi Prasad obtained the permission of the District Magistrate to eject the defendants. They along with their mother then filed a suit for ejectment and arrears of rent against the defendants on the 12th of April 1945.

The defendants contested the suit and the first of the two main pleas which they raised was that the notice of ejectment was invalid as after the death of the original landlord, Lala Devi Prasad, his widow and the two sons had all become landlords, but the notice had been served only on behalf of the two sons and not on behalf of the widow. Two only of the three landlords could not effectively determine the tenancy. Their other plea was the same which, they had taken in the earlier suit, viz., that Part of the premises belonged to them and not to the plaintiffs. The Additional Munsif of Muzaffarnagar, who tried the suit, accepted the contention that the notice of ejectment was invalid, but found no force in the plea that plaintiffs were not the owners of the entire premises in suit.

He, however, took the view that as the landlord's title had been denied in the previous suit without justification, the tenancy stood forfeited and the defendants could be ejected without any notice. He, therefore, decreed the suit for possession as well as arrears of rent. The defendants went up in appeal and the learned Civil Judge upheld the decree though on a different ground. He agreed with the trial Court that the tenancy had stood forfeited on account of the denial of the landlord's title in respect of a part of the leased property, but he held further that the notice of ejectment served by the two sons was also a valid one and effectively determined the tenancy evert if there had been non-forfeiture. Against this decree the defendants have filed Second Appeal No. 2250 of 1948.

2. After getting the decree from the appellate Court the plaintiffs put it into execution. The execution application was filed on the 8th of August 1946. The defendants filed aft objection under Section 47 of the Code of Civil Procedure on the 26th July 1947, in which they contended that the decree for ejectment was not executable in view of Section 14 of the U. P. Temporary Control of Rent and Eviction Act as none of the grounds mentioned in Section 3 of the Act had come into existence.

This objection was met on behalf of the plaintiffs on the ground that at least two of the grounds mentioned in Section 3 of Act III of 1947 were present The tenants had denied the title of the landlord at least twice and the permission of the District Magistrate had also been obtained before filing of the suit. The Munsif who was executing the decree rejected the objections of the defendants as without force. They went up in appeal to the Civil Judge who upheld their objection and held that they were not liable to be ejected.

So far as the denial of the landlord's title was concerned be took the view that the Second Appeal against the decree for ejectment being pending, the decree had not by then become final and nobody could know in what manner this Court would interpret the rent note. It could not, therefore, be said that there had actually been a forfeiture of the tenancy. About the permission of the District Magistrate, he was of opinion that the permission had been granted when the U. P. Temporary Control of Rent and Eviction Act, 1947, had not been enacted and could not, therefore, be considered to be a permission contemplated by the Act. Against the order allowing the defendants' objection, the plaintiffs-decree-holders have filed Execution Second Appeal No. 2041 of 1948.

3. Only one point is pressed in regular Second Appeal No. 2250 of 1946. It is contended that the suit for ejectment was bound to fail and could not have been decreed because the notice terminating the agency was invalid. After the death of Lala Devi Prasad, the original landlord three persons, i.e., his two sons, Sri Brij Bhushan Prakash and Sri Kirti Bhu-shan Prakash and bis widow Srimati Asharfi Devi, became the landlords of the premises.

The widow got a share equal to that of the sons under the Hindu Women's Right to Property Act and she could claim a partition of her one third share. Her sons could not therefore, represent her. If there were three landlords it was not open to two of them only to terminate the tenancy. The notice to quit in the present case was issued only by the two sons of Lala Devi Prasad. His widow did not join it. The notice was, therefore, invalid and ineffective.

4. The plaintiffs reply to this contention is that the sons of Lala Devi Prasad formed a joint Hindu family of which their mother was also a member. The mere fact that she got a share equal to one of her sons under the Hindu Women's Rights to Property Act and could, if she liked, claim a partition of that share did not amount to a disruption of the joint family. The joint family must be deemed to have continued and could come to an end only if there was a partition by metes and bounds either at the instance of the sons or at the instance of the widow.

As long as the family was joint, the sons who were managing its affairs could continue to be the kartas and in that capacity they could effectively determine the tenancy by a notice. It was not necessary for the widow to join them. The notice of ejectment cannot, therefore, be said to be defective because it was issued by the sons alone and not by the widow also.

The plaintiff's contention appears to be well-founded. In Kallian Rai v. Kashi Nath, reported in : AIR1943All188 , the defendant had borrowed Rs. 4,000 from Sahu Gopal Nath on the basis of a promissory note. Gopi Nath died leaving behind him two widows, Mst. Brij Rani and Mst. Lachmi Devi, a son Sahu Kashi Nath and a grandson Krishna Chandra. Sahu Gopi Nath was himself the Karta of his family during his own life time and after his death, his son Sahu Kashi Nath became the karta. The debt had been advanced out of the joint family funds. The suit to recover tha amount due from the defendant was filed by Kashi Nath alone.

The defendant contended that the two widows of Sahu Gopi Nath had obtained a Hindu Women's estate in the property of Sahu Gopi Nath and as holders of that estate they were entitled to join in the suit filed on the basis of the promissory note in question to the same extent as the plaintiffs. It was, therefore, not open to the plaintiffs to sue alone without impleading the widows as well. This contention was not accepted and it was laid down that

'We do not think that the new legislation has brought about any such result as is contended for by Mr. Pathak. The Act was intended to give better rights to women in respect of property that is the preamble to the Act -- but there is no indication that the Act intended to interfere with the established law relating to joint family. Whatever inroads it may have made on the doctrine of survivorship, it does not effect a statutory severance or disruption of the joint family. The widow as a member of a joint Hindu family is to have the same interest in the joint property as the deceased husband had and this devolution does not otherwise affect the joint family status unless the widow availing herself of the provisions of Sub-section (3) claims a partition.

As long as she does not do so, the status of a joint Hindu family continues and although she may not be a co-parcener with the other sharers as was held in In re Hindu Women's Rights to Property Act , in the sense that the principle of survivorship no longer subsists, & cannot be said that she is not a member of a joint Hindu family as long as there is no partition. She is, therefore, capable of being represented by the Karta of the family,'

The same view about the effect of a widow succeeding to her husband's share under the Hindu Women's Rights to Property Act was taken in the case of Udai Narain Rai v. Dharamraj Rai, reported in ILR (1954) All 204 (C). In that case a suit had been filed by a mortgagee to enforce a mortgage which had executed by a karta of the joint family, The widow of a deceased co-parcener who had acquired an interest under the Hindu Women's Rights to Property Act sought to challenge the mortgage deed on the ground of legal necessity and it was held that she was entitled to do so. It was remarked at p. 210:

'If cannot be denied that so long as there is no partition in the family, the widow has an interest In the entire joint family property and the death ol her husband after the passing of the Hindu Women's Rights to Property Act, does not operate as an automatic partition.'

The same view has also been taken by other High Courts. Dealing with the effect on the joint status of the family of the expression of her intention to claim partition by a widow who had received a share under the Hindu Women's Rights to Property Act. the Lahore High Court observed in the case of Vinod Sagar v. Vishnubhai Shanker Kakobhai, reported in AIR 1947 Lah 388 (D):

'By merely expressing her unequivocal intention to claim partition a Hindu widow, cannot bring the joint status of a family to an end and the property would not, in spite of her claim, lose the joint family character permanently, although the family may be found to have lost its dominion on the property after it is divided by metes and bounds and may not be able to deal with it for at least as long as the widow is alive and has not conveyed it for consideration under a legal necessity.

Until a partition by metes and bounds is brought about the karta would be entitled to act as such even if the shares of the other members of the family are found to have been specified. His powers of management and control would be in abeyance in regard to the property where it has fallen to a widow on partition for such time as she remains in possession of the property after a partition by metes and bounds.'

The question arose in the Patna High Court in another form. In Kamal Kishore Prasad Singh v. Hari Har Prasad Singh, reported in AIR 1951 Pat 645 (E), a decree had been obtained by a joint Hindu family consisting of several persons. Two of these persons died leaving behind them their widows who succeeded to their interests under the Hindu Women's Rights to Property Act. The other members sought to execute the decree without impleading the widows and it was contended that the execution application was not maintainable. This contention was not accepted and it was said:

'The effect of the Act (Hindu Women's Rights to Property Act) is to interpose the interest of Hindu Women's estate in a joint Hindu co-parcenary, that is to say so far as the co-parceners themselves are concerned, the co-parcenary continues as before the death of One of the co-parceners: there is no disruption of the joint family. Hence, those members still continue to enjoy as amongst themselves the benefit of survivorship. But so far as the widow of the deceased co-parcener is concerned, she acquires in the Interest of her deceased husband in the co-parcenary property a Hindu women's estate which she could get separated from the rest of the family by a suit for partition.'

In Subba Rao v. Krishna Prasadam, reported in : AIR1954Mad227 and in Mahadu Keshiba v. Gajara-bai Shankar, reported in : AIR1954Bom442 , the Madras and the Bombay High Court too have adopted the view of this Court taken in the case of Kallian Rai v. Kashi Nath (A), referred to above, and have held that a joint Hindu family continues in spite of the widow getting a share under the Hindu Women's Rights to Property Act, and there is no disruption in the family on that account.

In the Bombay case it was laid down that the manager of the joint family could alienate for legal necessity the joint family property including the interest in the property of the widow of a pre-deceased co-parcener. In the Madras case it was held that on the death of the widow claiming partition of the share she had received under the Act, the rights of survivorship belonging to the other co-parceners, which had remained under suspension during the life time of the widow, revived. After her death, her interest could not be held to have passed on to her own heirs.

5. There thus appears to be a consensus of opi-nion on the point that the joint status of the familyis not disrupted simply because the widow of 'a deceased co-parcener gets an interest in the joint familyproperty in respect of which she can claim partition.If the joint status of the family continues, the kartaof the family must be held to be entitled to continuemanaging the affairs of the family and to represent theentire family including the widow in all affairs. Whatever the karta does in the interest of the family mustbe held to have been done on behalf of all the members including the widow.

That being the legal position, when the two sons of Lala Devi Prasad in the present case, who were admittedly managing the affairs of the family, served a notice of ejectment on the defendants they must be deemed to have done so on behalf of the entire family including their mother. The notice of ejectment cannot, therefore, be held to be invalid simply because the mother did not join in signing it. The on]y ground on which the notice of ejectment is challenged thus becomes untenable, and if the notice of ejectment was good and valid, the suit for ejectment must be held to have been rightly decreed.

6. In this view of the case, the other ground of forfeiture on which the suit of ejectment has been decreed becomes immaterial and need not be gone into. Even if there was no forfeiture, if the tenancy was determined by a valid notice to quit, the suit for ejectment could succeed. Regular Second Appeal No. 2250 of 1946 has thus no force and must fail.

7. In the connected Execution Second Appeal No. 2041 of 1948, the learned counsel for the plaintiffs-decree-holders challenges the correctness of the view of the Civil Judge that the execution application was barred by Section 14 of the U. P. Temporary Control of Rent and Eviction Act, Section 14 of the Act lays down:

'No decree for eviction of a tenant from any accommodation passed before the date of the commencement of this Act shall in so far as it relates to the eviction of such tenant be executed against him as long as this Act remains in force except on any of the grounds mentioned in Section 3.'

Then follows a proviso with which we are not con cerned in this case.

8. The decree for eviction in this case bad been passed before the Act came into force and could be executed only If the decree-holders showed that one of the grounds mentioned in Section 3 existed. They put forward two such grounds. They urged, in the first place, that before filing the suit for ejectment the plaintiffs had obtained the permission of the District Magistrate. Such a permission could be considered to be one of the grounds mentioned in Section 3.

Their second contention was that as the defendants-tenants had renounced their, character as such and denied the plaintiffs' title in respect Of a part of the leased property and there had been no waiver of condonation of the conduct of the tenants, the case, therefore, fell under Clause (f) of Section 3. Two grounds mentioned in Section 3 were, therefore, present and the decree-holders were entitled to get the decree for eviction executed.

9. The fact that the permission of the District Magistrate had been obtained by the plaintiffs before filing the suit for ejectment was not disputed before the learned Civil Judge. He, however, took the view that the permission could not be of any avail because it had been obtained when the U. P. Temporary Control of Rent and Eviction Act, 1947, was not in force. An ordinance was in force but in the view of the learned Civil Judge it was different from the Act. The permission obtained under the Ordinance could not, therefore, be considered to be a permission contemplated under the Act.

10. Admittedly, the permission was obtained on 7th April 1944. The Ordinance to which the learned Civil Judge refers obviously was U. P. Ordinance No. 3 of 1946, which came into force on the 1st October 1946. The learned Civil Judge was, therefore, 1106 correct in saying that the permission had been obtained in the present case at a time when the Or-dinance was in force. In fact, the permission had been obtained at a time when the Defence of India Rules framed under the Defence of India Act (Act XXXV of 1939) were in force.

The permission was necessary under Rule 81 of the Defence of India Rules. Rules framed under the Defence of India Act remained in force till the 30th of September 1946. U. P. Ordinance No. 3 of 1949 came into force from 1st of October 1946, but was subsequently replaced by the U. P. Temporary Control of Rent and Eviction Act (Act III of 1947) which was enacted in March 1947, but was given retrospective effect. under Section 11 of Ordinance No, 3 of 1946, the permission obtained by the plaintiffs under Rule 81 of the Defence of India Rules was to continue in force and could be deemed to have been obtained under the Ordinance.

Under Section 9 of the subsequent Temporary Control of Rent and Eviction Act (Act No. III of 1947) the permission continued to be in force and was to be deemed to have been granted under the Act. The permission of the District Magistrate obtained by the plaintiffs for filing the ejectment suit could, there-fore, be availed of by them under Act III of 1947 even though it had been obtained under Rule 81 of the Defence of India Rules before Act, III of 1947 came into force. The view of the learned Civil Judge that [the permission could not be considered to be a permission contemplated under the Act thus clearly appears to be incorrect.

11. Though the permission of the District Magistrate has not been enumerated as one of the grounds under Section 3 of the Act, in view of what was held by a Full Bench of this Court in the Case of Bhagwandas v. Pyare Lal, reported in : AIR1955All19 , such a permission must be deemed to be one of the grounds mentioned in Section 3.

The permission having been obtained before tile filing of the suit, the ground which it furnished must be held to have been in existence on the date on which the decree was passed and on which the execution application was made. It could, therefore, be relied upon by the decree-holders for avoiding the of Section 14 of the Act; Vide Munshi Lal v. Bal Mu-kund Singh reported in : AIR1953All231 and Bishambhar Sahai v. Sohan Lal, re-ported in 1955 All LJ 712 (J).

12. The second ground on which the decree-holders in the present case could avoid the bar of Section 14 of the Act was the ground of denial of title contemplated by Clause (f) of Section 3. In the present case this denial of the landlords' title had been made by the defendants originally in the earlier suit for ejectment which had been filed against them before 1942. It was again made a second time in the written statement which was filed in the suit out of which the present appeals have arisen. The denial of title was entirely unjustified. It is not shown that the plaintiffs-landlords condoned the conduct of the tenant in any manner and waived their right to claim eviction on the basis of this denial.

In fact, they have been relying on the denial as a ground for entitling them to eject the defendants throughout this case. The ground mentioned in Clause (f) of Section 3 also therefore, existed in this case on the date of the decree as well as on the date on which the execution application was filed, and on that ground too the decree-holders could say that Section 14 was no bar to their getting the defendants ejected in execution of their decree.

13. It, therefore, appears to us that the execution application of the decree-holders has been wrongly dismissed by the learned Civil Judge and the execution appeal must, therefore, succeed.

14. In the result, Regular Second Appeal No. 2250 of 1946 must be dismissed with costs and Execution Second Appeal No. 2041 of 1948 must be allowed with costs. We order accordingly.


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