G.C. Jain, J.
(1) A plot of land measuring about 700 sq. yards, having supper-structure bearing municipal house Nos. 4161- 65, situate in Gali. Shahdara, Delhi, was purchased for Rs. 24,000 in the name of Shiv Saran Lal, Judgment-debtor, in the year 1953. On January 3, 1957, the said Judgment-debtor and the decree-holder entered into an agreement (Ex. P-1) (main file), evidencing that the said property was agreed to be purchased by both of them as co-owners; that after the agreement, new super-structure was, to be constructed on the said land of which also they would be co-owners in equal shares. After the purchase, the existing super-structure was demolished and Shiv Saran Lal commenced construction of three-storeyed building as per the plans etc. Shiv Saran Lal had spent Rs. 65,000.00 including his half share towards the price of the land while Nand Lal Patel had invested Rs. 34,000.00. The Super-structure sought to be constructed was likely to require about Rs. 80,000.00 for completion. The decree-holder Nand Lal Patel, agreed to invest a further sum of Rs. 33,000.00. A final deed was to be drawn up on the completion of the building. As Shiv Saran Lal Judgment-debtor, had supervised the entire construction unaided by the decree-holder, he was to be compensated by payment of 20 per cent of the net rental income for the period the property remained in their co-ownership. The balance rent was to be divided between the parties half and half.
(2) On September 11, 1959, Nand Lal Patel filed a suit for partition of the immovable property and rendition of accounts. In para 8 of the plaint, it was pleaded that the Judgment-debtor as one of the co-owners of the property in suit, had been recovering on behalf of himself and the decree-holder the rental income of the property from the very beginning, but had failed to render the accounts for the same. Ultimately, a final decree for partition of the said property was passed by this Court on Feb. 6,1976. Under the final decree, the portion shown in green in the plan PC-1 was allotted to the decree-holder while the portion marked as red in the said plan was allotted to the Judgment-debtor. Decree contained some other terms also regarding the use of passage etc., with which we are not concerned in this case.
(3) On September 6, 1976 the decree-holder filed the present execution application (No. 69 of 1976). seeing orders for possession with the direction that the actual physical possession of the property shown as green in the plan annexed to the petition be ordered to be delivered to the decree-holder. It was averred that M/s. Raunaq & Company (P) Ltd., M/s. Tayal Bros. (P) Ltd., M/s. Punjab Engineering & Mils Stores, M/s. Gopal Swarup Davinder Nath, Mr. Prabodh Mehta, Mr. Shiv Lal, Mrs. Kultar Kaur, Mr. Mohamad Salim, Mr. Nabi Bux, M/s. Yamuna Traders and Mr. Sant Lal were in possession of some of the portions which fell to his share. It was averred that Shiv Saran Lal. Judgment-debtor, had inducted these persons as tenants. The tenancy in his favor was illegal and was not binding on the decree-holder and was also hit by the rule of lis-pendens, and he was entitled to physical possession of the portion allotted to him under the decree.
(4) Shiv Saran Lal, Judgment-debtor, in his reply pleaded that no part of the premises allotted to the decree-holder was in his possession. As a co-owner he was managing the suit property including granting tenancies to the tenants and that the said tenants were lawful tenants and the decree-holder was not entitled to physical possession. It was also pleaded that the decree-holder had already received symbolic possession.
(5) Notice was issued to the tenants alleged to have been inducted by the Judgment-debtor Shiv Saran Lal. A'l the $aid tenants, except M/s. Yamuna Traders, Chawri Bazar, Delhi, have filed objections, resisting the delivery of physical possession. The main pleas raised by them are that all of them except Mrs. Kultar Kaur (Objector No. 8), Sant Lal (Objector No. II) and Probodh Mehta (Objector No. 6) were in occupation of the premises since prior to the filing of the suit for partition by the decree-holder as tenants under both the decree-holder and the Judgment-debtor; that there was a relationship of a landlord and a tenant between the parties and they could not be ejected in execution of the decree because of the bar under the Delhi Rent Control Act, 1958, as well as' the Slum Areas (Improvement and Clearance) Act, 1956. They were not parties to the decree and the decree was not binding on them.-In any case, they had become tenants by operation of law and the decree-holder was not entitled to physical possession of the properties in dispute. The decree-holder was estopped to deny their rights as tenants and to claim physical possession because of his acts and conduct. It was also averred that the decree-holder had already received symbolic possession of the portion which fell to his share under the partition decree.
(6) The decree-holder denied the allegations. It was averred that the tenants were inducted by the Judgment-debtor after the filing of the suit for partition by the decree-holder; there was no relationship of landlord and tenant between him and these persons and he was entitled to physical possession in execution of the decree. The allegations that he had obtained symbolic possession of the portion which fell to his share under the partition decree or that he had consented to the letting or had waived his rights were also denied.
(7) Earlier the issues were framed on August 23, 1978, but, thereafter, the following common issues were framed on May 7, 1981:- (1) On what date was the objector inducted as a tenant in promises and by whom? (2) If the objector was inducted by Shri Shiv Saran Lal J.D., is the tenancy binding on the D.H. (Onus objected to). (3) Is the D.H. entitled to recover possession of the premises in possession of each of the objectors (4) Are the objectors protected, by the provisions of Delhi Rent Control Act, 1958 (5) Relief.
M/S.Raunaq & Company (P) Ltd.
(8) In the objection petition, it was averred that these objectors were in occupation of the suit property as tenants since 1957-58. To prove this averment, the only evidence produced on record is the statement of one of their Directors Mr. Kartar Singh, who appeared as 0-1 Wl. He deposed that he was working in the said Company since 1948 and the Company was in occupation of the godown situate in Gali Shahtara since 1957. This godown had been taken on rent from Shiv Saran Lal at Rs. 80.00 per month., Shiv Saran Lal represented at the time of letting that this property was owned by him as well as Nand Lal Patel but he (Shiv Saran Lal) had the right to let it out. He produced Ex-0-1 W-l/l dated Feb. 8, 1965, showing the payment of rent for the month of January 1965.
(9) I have carefully examined the entire evidence and I do not think it safe to rely on the solitary statement of this witness regarding the year of letting as he is an interested witness being a Director of the Company. The only receipt produced by these objects is Ex-O-1 W-1/1 dated Feb. 8, 1965. No other document, receipt, letter received from customers for addresseed to customers, account opening form. etc. which were expected to be available have been produced. The statement that the earlier record was destroyed cannot be believed. They could at least produce the balance sheet or the income-tax returns in this behalf. In the absence of any documentary evidence, the oral statement cannot be accepted. The objector firm, in my view, has failed to prove that it had been inducted by Shiv Saran Lal sometime in 1957. It appears that it was inducted by Shiv Saran Lal sometime in the end of 1964 or the beginning of January 1965. I hold accordingly.
M/S.Tayal Bros. (P) Ltd.
(10) The decree-holder has admittedly entered into a compromise with M/s. Tayal Bros. (P) Ltd., and no relief is now sought against them.
M/S.Punjab Engineering & Mills Stores
(11) In para 4 of the objection-petition, it was averred that these objectors were in occuration of a godown, a part of the property which fell to the decree-holder under the partition decree, as tenants since November 30, 1956 and had paid advance rent of Rs. 1380.00 to Shiv Saran Lal, who was the actual owner of the property and from whom they had taken the premises on sent. To prove these allegations, the objector firm produced two witnesses including one of its partners Mr. Jawahar Lal (O-3 W-1) who deposed that this firm took the godown in question on rent on November 30, 1956, on a monthly rent of Rs. 115.00 from Shiv Saran Lal, and paid a sum of Rs. 1380.00 as advance rent to him at the time of taking the godown on lease. This amount of Rs. 1380.00 was paid by cheque. He produced receipts Exs. O-3 W-1/1 to O-3 W-1/12 and Ex. O-3 W-1/l3, an abstract from the entries in his ledger book. Admittedly, he had not brought the original account books. It was, however, explained that the same were destroyed in a fire which took place on May 30, 1981. and about which a report with the police had been lodged. He also stated that he issued a notice to Shiv Saran Lal, copy Ex-0-3 W-U14. He also prouced a notice Ex. 0-3 W-l/l7 received by him from Nand Lal Patel. He admitted in cross-examination that he had no document to show that the firm was in possession of this godown before November 11, 1959, but explained that all the documents were destroyed in the fire. It was admitted that till 1976, he treated Shiv Saran Lal as the sole owner of the property.
(12) 0-3 W-2 is Mr. Dina Nath Khanna, a Salesman of the objector firm. He deposed that he was in its service since 1954. The godown in question was taken on rent on November 30, 1956, from Shiv Saran Lal, and one year's advance rent was paid by cheque at that time to Shiv Saran Lal,
(13) I have carefully examined the entire evidence. The oral evidence that the godown in question was let out to this firm on November 30, 1956, cannot be accepted. Both the witnesses, are interested witnesses, the first being apartner of the objector- firm, and the second being its employee. So far as the documentary evidence is concerned, the earliest receipt is Ex-0-3 W-1/1 dated January 6, 1969. No receipt prior to that date is forth- coming.
(14) EX. 0-3 W-l]13, the abstract of entries in the ledger, also starts from July, 1965 and is not of much help. This firm served a notice (Ex. 0-3 W-14) on the Judgment-debtor to produce the counter foils but the same were not produced. No presumption, however, can be raised against the decree-holder.
(15) The objector-firm has also produced Ex. 0-3 W-l;17, notice served on them by the decree-holder. This however, says nothing about the date of the creation of the tenancy.
(16) The witness Jawahar Lal has explained that the record of the firm was destroyed in a fire which took place on May 30, 1981. That Explanationn does not help them much inasmuch as the receipts Exs. 0-3 W-1/1 to 0-3 W-1/12 were filed in Court as far back as March 16, 1978. If these objectors were in possession of receipts for the prior period or any other document, evidencing the creation of tenancy prior in time they could easily produce the same at that very time. It has not been explained as to why all those documents were not produced at that time. For all these reasons, in toy view, these objectors hava failed to prove that the godown in question had been let out to them on Nov. 30, 1956. They were inducted sometime in the year 1969, and in any case, after the filing of the partition suit by the decreeholder; I hold accordingly.
M/S.Gopal Swarop Davinder Nath :
(17) In the objection petition, it has been pleaded that they took one godown in this building on a monthly rent of Rs. 160.00 on or about April 24, 1956, from Shiv Saran Lal which has now fallen to the sharle of the judgment-debtor on partition. Another godown which has fallen to the share of the decree- holder was taken by them on rent on or about July 1, 1957, on a monthly rent of Rs. 85.00.
(18) To prove these allegations, they have examined their partner Rajender Nath Gupta (0-5 W-1 ). He deposed that the second godown which has fallen to the share of the decree-holder had been taken on rent by the firm with effect from July 1,1957, from Shiv Saran Lal as well as Nand Lal Patel. The payment of rent was made by cross-cheques and there were regular entries about these payments in the cash books and ledger of the firm. He produced receipts Exs. 0-5 W-1/1 to 0-5 W-1/l9.He also produced Ex. 0-5 W-l 120 to 0-5 W-l 125, copies of the entries in their cash book, Ex. 0-5 W-l 126 its' English translation; Ex. 0-5 W-1/27, copy of the entry dated Sep. 13, 1958, Ex. 0-5 W-l 128 its English translation; Ex. 0-5 W-l 129 copy of the entries in the ledger book and Ex. 0-5 W-l 130 its English translation. He also produced on record pass-books Exs. O-5 W-1/31 to O-5 W-1/33. He also stated that the decree-holder came to him several times and wanted increase in the rent.
(19) From the documentary evidence, it has been proved that the godown which had fallen to the share of the decree-holder and which is in the tenancy of this objector was let out sometime in the year 1957. The original receipts produced are for the period Jan. 1960 onwards. However, cash book entries in Ex. O-5W-1/29 (English translation Ex. O-5 W-1/26), show that a sum of Rs. 1020.00 was paid as rent for this godown for the period July 1, 1957, to June 30, 1958, at the rate of Rs. 85.00 per month. This entry has been duly proved and there is no suspicious circumstance and no reason to disbelieve the entry. Again, Ex. O-5 W-l/27 shows that a sum of Rs. 170.00 was paid by cheque No. 13927 dated Sep. 13, 1958, to Shiv Saran Lal on account of rent for two months, i.e. July and August 1958, at the rate of Rs. 85.00 per month. This entry finds corroboration from the corresponding entry in the Pass Book Ex. O-5 W-1/31, where the payment of this cheque has been debited to his account of Sep. 16, 1958. I consequently hold that this tenant was inducted long before the filing of the partition suit by the decree-holder.
(20) Rajinder Nath Gupta has deposed that the godown was let out to him both by Shiv Saran Lal and Nand Lal Patel. This part of the statement, however, cannot be believed for the simple reason that no such stand was taken in the objection petition filed by him. According to the allegation in that petition, both the godowns were let out to him by Shiv Saran Lal and he was paying the rent to him. The stand now taken that it was let out by both the judgment-debtor and the decree-holder is merely an after-thought. It may be noted here that admittedly in the account books the payment is shown as having been made to Shiv Saran Lal and there is no mention of Nand Lal Patel. The Explanationn that it was because Nand Lal Patel had represented that the rent was to be realised by Shiv Saran Lal, is not very satisfactory. Even when the rent is paid to the Rent Collector, the name of the person entitled to receive the rent is mentioned in the relevant entries. I consequently hold that the premises in occupation of this objector were let out to him by Shiv Saran Lal alone but sometime in July 1957.
(21) The case in the objection petition is that he was inducted as a tenant in 1972. As 0-6 W-1, he deposed that the shop in his tenancy was let out to him in Nov. 1971 by both Nand Lal Patel and Shiv Saran Lal. Receipts were, however, issued by Shiv Saran Lal. He produced receipts Exs. 0-6 W-1/1 to 0-6 W-1/3. He also stated that Nand Lal Patel asked him in 1972 to pay half the rent to him and also sent a letter about it and again asked to pay half rent in 1977, but he did not turn up to realise the same.
(22) The statement that the shop was let -out by both the decree-bolder and the judgment-debtor cannot be accepted for the simple reason that there is no such plea in the objection petition. His plea was that Shiv Saran Lal was receiving the rent and depositing the same in the Court during the pendency of the partition suit. He raised various pleas of estoppel etc. but there was no plea that the premises had been let out to him by Nand Lal Patel also. The letter, referred to above received by him from the decres-holder for payment of half rent has not been produced. In the absence of that letter, his oral statement cannot be believed. I consequently hold that the premises were let out to this objector sometime in 1972 as alleged in the objection petition but by Shiv Saran Lal alone.
(23) In the objection, petition, this objector has pleaded that he was a tenant in the premises since early 1959. To prove this fact, he appeared as 0-7 W-l, and deposed that he took the house in question on lease in the end of the year 1958 from Shiv Saran Lal. Nand La1 Patel came to him after one year of the letting. He used to pay rent to Shiv Saran Lal against receipts. In 1975, the decree-holder served him with a notice stating that he had become the owner of that property and demanded rent from him. He agreed to pay the rent but the decree-holder never turned up. He produced receipts Exs. O-7 W-1/1 to O-7 W-1/5. The earliest receipt produced is dated May 3, 1963, showing the payment of some rent. It further shows that there was a balance of Rs. 288.15 left due from him. This receipt, no doubt, shows that he was a tenant prior to May 1963, but it cannot be said with certainty that he was inducted prior to filing of the partition suit which was filed in Sept. 1959. In cross-examination, he stated that his name was entered in the record of the Municipal Corporation for the year 1959 regarding the property in suit. He, however, has not cared to produce a certified copy of those entries; nor has he produced any document showing that he was in occupation of the premises in question in Sept. 1959, or prior to that. In my view, he has failed to prove that he was inducted as a tenant prior to the filing of the partition suit. There is no satisfactory evidence that Nand Lal Patel asked him to pay rent. He was inducted by Shiv Saran Lal after the filing of the petition suit. I hold accordingly.
MRS.Kultar Kaur :
(24) In her objection petition, it was averred that she was a tenant since 1965. To prove this fact, she examined her husband Mr. Kulwant Singh as O-8 W-1. He deposed that he was the husband of the objector and was also her attorney, under power of attorney Ex. O-8 W-1/1. He further stated that the shop was taken on rent in the year 1965 or 1966. He produced rent receipts Exs. O-8 W-1/2 to O-8 W-1/4. He also produced letters marked OX-8/1 and OX-8/2, hereby the decree-holder demanded from him half the rent, stating that a preliminary decree in a suit for partition, had been passed on Nov. 27, 1961. I have carefully examined the entire evidence. So far as the rent receipts are concerned, the earliest rent receipt is dated Feb, 20, 1966, rowing the payment of Rs. 140.00 as rent from Feb. 20, 1966, to March 19, 1966. From this document, it is clear that the premises were let out to this objector in 1966 as stated by this winess. These receipts, however, are by Shiv Saran Lal. Under the column 'Property of, the name is that of Shiv Saran Lal. The statement that the property was let out by both Shiv Saran Lal and Nand Lal Patel cannot be believed. The shop in question was let out to Mrs.Kultar Kaur sometime in 1966 by Shiv Saran Lal only. It has, however, been proved that the decree- holder demanded half rent from her on the ground that a preliminary decree had been passed in his favor on Nov. 27, 1961. This demand was made by two letters both dated Oct., 3, 1972 (marked OX-8 /1 and OX-8/2). This demand of rent in itself is not sufficient to create the relationship of landlord and tenant. Had this objector paid the rent and the decree-holder accpted the same, .the position may have been different. I hold accordingly.
MR.Mohamad Salim :
(25) The case of this objector in his objection petition is that the premises were let out to him by Shiv Saran Lal who was managing the property on behalf of himself as well as Nand Lal Patel in 1959. He appeared as 0-9 W-1 and deposed that the premises were let out to him by Shiv Saran Lal in the year 1959 and he had been paying rent to him against receipts. He produced four receipts Ext. 0-9 W-l/l to 0-9 W-1/4. The earliest receipt is dated Oct. 8, 1959, Ex. 0-9 W-l 14, showing the payment of rent from Oct. 8 to Nov. 7, 1959. In his statement, he has not given the month of the year 1959 in which the premises were let out to him. Even in the objection petition, the month of letting has not been given and the only averment made was that the tenancy wag created as far back as 1959. The further averment 'While the decree-holder had filed the suit as alleged in the execution petition on 11-11-1959 and since Oct., 1959 and during the pendency of the suit never raised any contention that the property could not be let out to any one by Shri Shiv Saran Lal' shows that according to his own case, the premises' were let out to him Oct. 1959. He has not even stated that there was any receipt for the earlier period. In these circumstances, in spite of the fact that it is a marginal case, I have no option but to hold that the premises 'were lot out to this objector by Shiv Saran Lal after the filing of the partition suit which was filed on Sept 11, 1959.
MR.Nebi Bux :
(26) According to his allegations, the premises were let out to him in April 1959. As O-10, W-1, he deposed that he took the premises in dispute on lease about nine years back. He did not remember the name who let the premises out to him. The name was mentioned in the receipt. He further stated that he knew both Shiv Saran Lal and Nand Lal Patel and both of them used to realise rent from him. The earliest receipt produced (Ex. O-10 W-1/1) is dated April 14, 1959, showing the payment of rent for the month of March 1959 to August 1959, it has, thereforee, been proved that this tenant was inducted before the filing of the partition suit by the decree-holder. The receipts were issued on behalf of Shiv Saran Lal. In the column 'property of, the name mentioned is that of Shiv Saran Lal. There is no allegation in the objection petition that the decree-holder had ever realised rent from him. In such circumstances, his statement that the decreeholder had been Realizing rent from him, cannot be accepted. I consequently hold that the premises in occupation of this tenant were let out to him by Shiv Saran Lal only sometime in early 1959, and in any case, prior to the filing of the suit for partition.
MR.Sant Lal :
(27) This objector in his objection petition, has pleaded that the tenancy in his favor was created as back as 1963 by Shiv Saran Lal who was managing the property on behalf of himself as well as Nand Lal Patel. As O-11 W-l, he deposed that the shop in his tenancy was let out to him by Shiv Saran Lal as well as Nand Lal Patel in the year 1961 or 1962 on a monthly rent of Rs. 15.00. The decree-holder had told him that the rent would be realised by Shiv Saran Lal. The rent was realised by Shiv Saran Lal and receipts were issued by him. He produced four receipts Exs. O-11 W-l/l to O-11 W-l/4. It was admitted that all the receipts had 928 been issued to him by Shiv Saran Lal on his own behalf and not on behalf of Nand Lal Patel. The earliest receipt produced by him is dated May 27, 1963, showing the payment of rent for the months of March and April 1963. No earlier receipt has been produced. There is no suggestion even in the statement of this objector that the earlier receipts had been lost. No other documentary evidence has been produced. In any case, it would not make much difference. If the letting was in the year 1961 or 1962. The fact remains that admittedly the premises were let out to him after the filing of the partition suit The statement of the witness that the premises were let out by both Nand Lal Patel and Shiv Saran Lal does not inspire confidence and cannot be believed. First of all, there is no such averment made in the objection petition. In any case, in the year 1961 or 1962, the suit for partition was pending and was being hotly contested. Judgment- debtor had pleaded that decree-holder had no rights in this property. In these circumstances, they were not expected to create a tenancy jointly. All the receipts admittedly were issued by Shiv Saran Lal on his own behalf. For all these reasons, I hold that this tenant was inducted by Shiv Saran Lal, judgment-debtor, after the filing of the partition suit.
M/S.Yamuna Traders :
(28) Notice was issued to these objectors. The objector-firm has, however, not filed any objections or reply. The decree-holder has not led any evidence to prove that the tenancy in favor of the objector-firm was created by Shiv Saran Lal after the filing of the partition suit. Some evidence was required even against a tenant who has been proceeded ex-parte, regarding the date of letting which would be an important factor for deciding the claim of decree-holder for physical possession.
(29) However, it is in evidence that no tenancy had been created by the decree-holder and thereforee this tenancy was not created by him and was created by Shiv Saran Lal.
(30) In conclusion, I hold that all these eleven objectors were inducted as tenants by Shiv Saran Lal, judgment-debtor. Tenancies in favor of M/s. Gopal Swarup Davinder Nath and Nabi Bux were created before the filing of the partition suit. There is no evidence as to when tenancy was created in favor of M/s. Yamuna Traders. The tenancies in favor of the other objectors were created after the filing of the partition suit. The issue is decided accordingly.
ISSUESNOS. 2, 3 And 4
(31) S. 105 of the Transfer of Property Act defines lease' as follows:- -- , 'A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share to crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms-'. An examination .of the above definition reveals that for creating the relationship of landlord' and 'tenant', there must be two parties-(1) the transferor of a right to enjoy the immovable property, and (2) the transferee to whom the right is transferred in consideration of a price paid or promised etc. In other words, there must be a contract/ agreement between them for bringing into existence the lease of an immovable property. No lease can come into existence without there being an initial contract in that behalf except in cases where these rights are created by statute. Landlord U]s. 2(c) of the Delhi Rent control Act 1958 means:- 'landlord' means a person who, for the time being is receiving, or is entitled to receive the rent of any pemises, whether on his own account or on account of or on behalf of or for the benefit of, any other person or as a trustee, guardian or receiver for any other person or who would so receive the rent or be entitled to receive the rent if the premises were let to a tenant'.
(32) This definition on which reliance was placed on behalf of some of the objectors, in my view, does not eliminate the existence of an initial contract between the transferor and the transferee, i.e. the landlord and the tenant, for creating a lease or tenancy. The definition of landlord' for the purpose of that Act is no doubt a bit wide in as much as it includes for the purpose of that Act, unless the context otherwise provides, 'the person who is receiving the rent on account of or on behalf of or for the benefit of any other person'. That person may just be a manager of the transferor/Lesser. But, in spite of this wide definition, it cannot be said that a tenancy can come into existence without there being' aninitial contract between . the Lesser and the lessee whereby a Lesser transfers right to enjoy E the immovable property in favor of the lessee/tenant. Thus, I have no doubt, that to bring into existence the relationship of landlord and tenant, initially, there must be a contract between the parties, statutory tenancy apart.
(33) It is well-settled that a co-owner, merely as a co-owner, is not an agent for the other co-owners. A Division Bench of the Calcutta High Court in Abu Shahid v. Abdul Hoque : AIR1940Cal363 , has observed as follows :- . 'There is no fiduciary relation between co-owners of a property as such [vide (1897) Ac 1980 and if one co-sharer realizes rents and profits, he does so in his capacity as an owner, for which no agency from the other proprietor is necessary. But for what he receives in excess of his share, he must be under an obligation to account to the other co-sharers'.' In Niranjan v. Soudamini Dasi : AIR1926Cal714 , a Full Bench of the Calcutta High Court has held:- 'The general principle is that a co-sharer in joint property cannot by dealing with such property affect the interest of the other sharers therein.' The question referred to the Full Bench was 'whether a person to whom a parcel of land has been allotted by a decree for partition of a civil court takes it subject to a permanent lease granted by his former co-owner without his concurrence when the land was the joint property of all the co-sharers.' The full Bench answered the question in the negative.
(34) A Full Bench of the Patna High Court in Kaniz Fatma v. Hossainuddin : AIR1943Pat194 , took a similar view. The relevant observations appearing at page 198, are as under:- 'I would thereforee hold that a person who is inducted upon the land belonging to a number of co-sharers by one co-sharer without the consent or authority express or implied of the former is not a raiyat in respect of the entire land, whatever rights he may have in regard to the undivided share of the land of which a co-sharer inducting him may be the landlord. He may be a tenant of the co-sharer who has inducted him on the land and as against him he may not be able to say that the relationship of landlord and tenant of the entire body of landlords and he cannot thereforee be a raiyat in respect of the entire land and cannot acquire occupancy right in it by being in possession for 12 years or upwards.'
(35) The Punjab High Court in Ram Sarup v. Chanan Singh AIR 1964 Pb.525, relying on the Full Bench decision of the Calcutta High Court in Niranjan v. Soudamini Dasi (supra) also took a similar view. To the same effect is the view taken by a Division Bench of this Court in Hari Kishan Rathi v. Ranjan Dupatta House & Ors. (EFA(OS) No. 311972, decided on October 30, 1975) (5). The relevant observations read as under :- 'No co-owner can choose a specific portion of the common property and transfer it to a third person as if it belonged to him exclusively. The co-owner has a right to occupy exclusively a portion of a common property for the convenience of the enjoyment of all co-owners. But he has no right to put astranger in the exclusive possession of such property. If he does so, the co-owners can object to it, and can seek the dispossession of the stranger.'
(36) However, when a co-owner has an authority to do an act on behalf of others, he may do every lawful thing which is necessary in order to do such an act. In other words, if Shiv Saran Lal had the authority to let out the premises on behalf of both the co-owners, then he would be deemed to be an agent of the decree-holder and it would be a tenancy created by both of them.
(37) An agent under s. 182 of the Indian Contract Act is a person employed to do any act for another or to represent another in dealings with third persons. The person for whom such act is done or who is so represented is called the principal. Under S. 186 of the Indian Contract Act, the authority of an agent may be express or implied. Under s. 187, an authority is said to be express, when it is given by words spoken or written. An authority is said to be implied when it is to be inferred from the circumstances of the case and things spoken or written or the ordinary course of dealing.
(38) To prove agency, the objectors have relied upon clause 12 of the agreement dated Jan. 3, 1957, between the decree-holder Nand Lal Patel and the judgment-debtor Shiv Saran Lal. which reads as under :- 'That the First Party -has supervised the entire construction unaided by the Second and it has been agreed between the parties that to remunerate the services of the First Party, the First Party shall receive 20% of the net rental income for the period the property remains in their co-ownership. In calculating the net rental income, deduction shall be made for the payment of salaries to the staff employed for collection and maintenance of the property annual repairs and white-washing, the Municipal taxes and other incidental charges including depreciation in accordance with the law of income-tax then in force. The balance shall be divided between the parties half and half.
(39) This clause, in my judgment, in terms does not give any express authority to Shiv Saran Lal to let out the property on behalf of decree-holder also. It simply says that he would be entitled to receive 20% of the net rental income for the period the property remained in their co-ownership because of the fact that he had supervised .the entire construction unaided by the decree-holder. The remaining rental income was to be divided between the parties half and half. However, the implied authority can be inferred from the circumstances of the case.
(40) The decree-holder Nand Lal Patel has, as his own witness, deposed that he never let out any portion of the property in dispute to the various persons mentioned in Annexure 'A' to the main execution petition. He did- not know if, according to the agreement, the. entire property was tec be managed by the judgment-debtor- He never paid any house-tax in respect of this property before 1959. He never spent any amount on repairs of this property before 1959. Though in cross-examination on behalf of objector No. 5, he stated that the property was being managed by him as well as by the judgment-debtor, but this part of his statement does not inspire any confidence. I have already held that all the tenancies in favor of the objectors were created by Shiv Saran Lal. The decree-holder has not produced any document or cogent evidence to prove that he ever let out any portion of the property to any tenant or did any act which could be called as an act of management, it has thus been proved that the entire 'property was being managed by Shiv SaranLal who was letting out the same to various tenants and Realizing the rent from them- There is nothing on the record to suggest that this management was not with the implied authority or consent or connivance of the decree-holder. I have no doubt that before the filing of the suit, Shiv Saran Lal was managing the property with the implied authority of the decree- holder. This view finds support from the averment contained in para 8 of the plains filed by the decree-holder claiming partition of the joint property, which read as under :- '8. That the defendant as one of the co-owners of the property in suit has been recovering on behalf of himself and on behalf of the plaintiff the rental income of the property from the beginning but has failed to render accounts of the same.' (Emphassis supplied) The decree-holder in this para has thus admitted that the judgment-debtor had been recovering the rent on his behalf also. In other words, the letting by the judgment-debtor prior to the filing of the suit was also on his behalt. In case the letting was not on his behalf, how could the judgment-debtor recover the rent on behalf of the decree-holder. Thus, the letting prior to the filing of the suit was with the authority of the decree- holder and those lettings. by Shiv Saran Lal were thereforee binding on the decree-holder and would create relationship of landlord and tenant between the decree-holder and the tenants, who were inducted prior to the filing of the partition suit. . The next question which require consideration is whether this agency or .authority to let on behalf of the decree-holder continued or would be deemed to have been continued even after the filing of the partition suit.
(41) There is no revocation as such, but the leases created offer the filing of the partition suit, in my view, would be hit by the doctrine of lis pendens as embodied in s. 52 of the Transfer of Property Act and would, thereforee, not be binding on the decree-holder. S. 52 read as under :-
'DURINGthe pendency in any court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or .proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose. Explanationn.-For the pin-poses of this action, the pendency of a suit or proceedings shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction and to continue until the suit or proceeding has-been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained or lias become unobtainable by reason of the expiration of any period, of limitation prescribed execution thereof by any law for the time being in force.'
THEdoctrine of lis pendens embodied in s. 52 rests upon the foundation that it would be impossible that any action or suit could be brought to a successful termination, if alienations pendente lite were permitted to prevail. According to these provisions, during the pendency of the proceedings, neither party to the litigation can alienate the property in dispute so as to affect its opponent. The section would apply to a suit or proceeding (1) which is not collusive, and (2) in which any right to property is directly and specifically in question. Any transfer during the pendency of such a suit would not prevail or effect the rights of the other party.
(42) In the present case, there is no suggestion even that the suit between Nand Lal Patel and ShivSaran Lal was a collusive one. In any case, there is no evidence on the record to suggest any collusion between them. An examination of the file, on the other hand, shows that the suit was hotly contested. According to the averments contained in the written statement filed by the judgment-debtor, the plaintiff had no right in the property in dispute. One of the issues was, whether the plaintiff was the co-owner of the property in dispute, as alleged. The parties agreed to have the respective shares only after the filing of the report by the Local Commissioner on which objections had been filed and arguments' had been heard. It cannot be said that the suit was collusive. The right to immovable-. property i.e., the property in dispute, was directly and specifically in question in the suit. thereforee, any, transfer during the pendency of the suit till sati xsfaction or discharge of the decree would be hit by s. 52 of the Transfer of Property Act. and would not effect the rights of the decree-holder. It cannot he disputed that a transfer, includes the grant of a lease. thereforee, a lease of any portion of the property in suit during the of the suit would be hit by the rule contained in s. 52 of the Transfer of Property Act.
(43) In Hari Kishan Rathi's case (supra), during the pendency of the suit for partition, one of the co-owners had let out one specific item of the undivided property to respondents Nos. 1 and 2 in that appeal. It was' held that such a lease was contrary to S. 52 of the Transfer of Property Act, and as such invalid. This authority fully applies to the facts of the present case.
(44) On behalf of the objectors, reliance was placed .on a Division Bench decion of this Court in Sham Lal v. Jaswant Kaur : AIR1980Delhi171 . In this case, the landlord had obtained an ex-parte decree against his tenant. In execution of the ex-parte decree, the tenant was dispossessed. After dispossessing the tenant, the same were let out to another tenant. The earlier tenant against whom the ex-parte decree had been passed, made an application for setting aside the ex- parte decree which was allowed, and the ex-parte decree against him was set aside. He thereafter applied for restitution, under's. 144 of the Code of Civil Procedure. It was held that to such a case s. 144, Civil Procedure Code ., was not applicable and that the new tenant was' entitled to the protection of s. 14 of the Delhi Rent Control Act. I fail to understand as to how the authority helps the objectors at all. The question whether a transfer within the ambit of s. 52 of the Transfer of Property Act during the pendency of a suit can effect the rights of the party concerned in that suit was not at all in issue before the Division Bench. It was not concerned with it and no decision was given on that point. This' authority is, thereforee, of no help to the objectors.
(45) In Narayanappa v. Bhaskara Krishnappa : 3SCR400 , the question involved was regarding the rights of the partners. It was held that even if a partner assigns his share to another, in that case what the assignee would get would be only that which is permitted by s. 29(1), that is to say, the fight to receive the share of profits of the assignor and accept the account of profits agreed to by the partners. This decision, in my view, has no relevancy so far as the question of applicability of the provisions' of s. 52 of the Transfer of Property Act was concerned.
(46) In Dev Raj Dogra v. Gyan Chand Jam. : 3SCR174 , the mortgage bank obtained a mortgage decree against the mortgagor--the sole properietor of a building. After the passing of the decree, the mortgagor judgment debtor leased out portions of the premises. Ultimately, inexecution of the mortgage decree, the mortgaged property was' sold in public auction and was purchased by one G, Auction purchaser thereafter made an application under Order 21, Rules 95 and 96 Civil Procedure Code ., for physical possession of the properties' from the tenants. This Court held that the transfer by the mortgagor judgment-debtor after the decree was hit by s. 52 of the Transfer of Property Act. This finding was', however, reversed by the Supreme Court. The main reason for reversing the judgment of this Court was that the auction purchaser was held to be an outsider and not a party to the suit in which the decree was passed and consequently s. 52 was not applicable. The relevant observations at page 990, read as under :- 'In the instant case an outside auction-purchaser is seeking recovery of the, physical possession of the property purchased by him at th6 auction from the appellants who are in possession of different portions of the said premises as tenants of the said portions. The auction-purchaser in the instant case was not the mortgagee and he was no party to the suit in which the compromise decree was passed. Section 52 in clear terms speaks of the rights of the parties to the suit or proceeding.'
(47) The principle of law enunciated by the Supreme Court would not be applicable to the facts of the present case, inasmuch as here the party seeking physical possession was the decree-holder himself who was a party (plaintiff in the suit S. 52 of the Transfer of property Act in clear terms applied to him).
(48) Similarly, in Tara Chand v. V.Gange Ram : AIR1978Delhi58 , the tenants had been inducted by the mortgagee decree-holder and the auction purchaser sought physical possession which he was refused. For the same reason, this authority is not applicable.
(49) In Shiv Datt v. Prem Kumar 1969 Rcr 744, a learned Single Judge of this Court held that the concept of ownership was irrelevant to the relationship of a landlord and a tenant as envisaged in s. 2(e) of the Delhi Rent Control Act, 1958. This principle of law, in my judgment, is of no help to the objectors.
(50) In Sri Ram Pasricha v. Jagannath : 1SCR395 a suit for eviction had been filed on the grounds of default in payment of rent and personal requirement by a co-owner. It was held by the Supreme Court that ''jurisprudentially it is not correct to say that a co-owner of a property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part-owner or a fractional owner of the property. The position will change only when partition takes' place.' It was further held that the co-owner was the owner of the premises within the meaning of s. 13(l)(f) of the West Bengal Premises Tenancy Act, 1956. The question of lis pendens was not at all involved in this case and, thereforee, this authority does not support the contention of the objectors that the provisions contained in s. 52 of the Transfer of property Act, were not applicable.
(51) In Tajammul Hussain v. Mir Khan : AIR1974All234 a Full Bench of the Allahabad High Court examined the principles under s. 76(a) of the Transfer of Property Act. The question of lis pendens was not at all involved therein.
(52) Seetaramayya v'. Subrahmanyam AIR 1935 Mad. 547 and Allasamy v. Sundram AIR 1936 Mad. .696 also relied upon by the learned counsel for the objectors are not applicable to the facts of the present case.
(53) Reference was also made to the provisions coatained in S. 52 of the Delhi Rent Control Act, 1958, which bar the jurisdiction of civil courts in respect of certain matters. The present dispute is not covered by that section.
(54) I consequently hold that the transfers, i.e. the leases created by the judgment-debtor after the filing of the partition suit, were hit by s. 52 of the Transfer of Property Act and were invalid and would not be binding on the decree-holder.
(55) It was then argued that the objectors had become tenants by operation of law by virtue of the provisions coatained in S. 109 of the Transfer of Property Act, which is in these terms:- 'Rights of Lesser's transferee.-If the Lesser transfers the property leased, or any part thereof, or any part of Sis interest therein, the transferee, in the absence of a contract to the contrary, shall possess all the rights, and, if the lessee so elects, be subject to all the liabilities of the Lesser as to the property or part transferred so long as he is' the owner of it; but the Lesser shall not, by reason only of such transfer, cease to be subject to any of the liabilities imposed Upon him by the lease, unless the lessee elects to treat the transferee as the person liable to him : Provided that the transferee is not entitled to arrears of rent due before the transfer, and that, if the lessee, not having reason to believe that such transfer has been made, pays rent to the Lesser, the lessee shall not be liable to pay such rent overagain to the transferee. The Lesser, the transferee and the lessee may determine what proportion of the premium or rent reserved by the lease is payable in respect of the part so transferred, and, in case they disagree, such determination may be made by any Court having jurisdiction to entertain a suit for the possession of the property leased.'
(56) S. 109 confers all the rights of the Lesser under the lease on the purchaser of his rights. A transferee can sue for ejectment. In a way, he stands in the shoes of the transferor, i.e., the Lesser. The transferor is also subject to all the liabilities of the Lesser. Thus, by operation of law, a relationship of landlord and tenant comes into existence between the tenant and the purchaser of the rights of the Lesser.
(57) According to S. 5 of the Transfer of Property Act, 'transfer of property' means 'an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, or to himself and one or more other living persons and 'to transfer property' is to perform such act.' Partition is a mixture of surrender and conveyance and may fall within the definition of the words 'transfer of property' in S. 5 if strictly construed. However/in my judgment, the provisions contained in s. 109 of the Transfer of Property Act would not affect the provisions' contained in S. 52 thereof which are specific provisions covering transfers during the pendency of the suit, the purpose of which is to prevent one party to the suit, making an assignment inconsistent with the rights which may be established in the suit and which might require a further party to be imp leaded in order to make effectual the court's decree. Because of the provisions contained in s. 52 of the Transfer of Property Act, the objectors, who were inducted after the filing of the partition suit, cannot have the benefit of S. 109 of the Transfer of Property Act.
(58) It was also contended that during the pendency of the partition suit, the plaintiff decree-holder never sought any restraint order against the defendant judgment-debtor for creating tenancies and never objected to his inducting the tenants and Realizing the rent and, thereforee, the decree-holder was estopped to claim physical possession. It is settled law that there cannot be any estoppel against statute.
(59) In conclusion, I hold that the objectors who had been inducted after the filing of the partition suit were liable to deliver physical possession. The tenants who had been inducted prior to the filing of the partition suit were not liable to deliver physical possession. The decree-holder was only entitled to symbolic possession from them.
(60) M/S. Gopal Swarup Davinder Nath and Nabi Bux have been held to be in occupation of the premises' in their tenancies since prior to the filing of the suit for partition. Their objections are, thereforee, liable to be accepted. The decree-holder would be entitled to only symbolic possession against them.
(61) AS' regards M/s. Yamuna Traders, who were proceeded ex-parte, there is no evidence, that they had been inducted after the filing of the partition suit. In the absence of any evidence, the decree-holder was not entitled to the benefit of S. 52 of the Transfer of Property Act qua this objector, and consequently, was entitled only to symbolic possession from this objector also.
(62) The Other objectors, as held above, were inducted after the filing of the partition suit. They were liable to deliver physical possession, Issues are decided accordingly.
(63) Consequently, it is directed that warrants for possession, with the direction to deliver physical possession of the portion^ of the property in possession of M/s. Raunaq & Co. (P) Ltd., M/s. Punjab Engineering Mills Stores; Prabodh Mehta; Shiv Lal; Smt. Kultar Kaur.and Sant Lal to the decree-holder, be issued returnable on August 3, 1982. Warrants for possession, with the direction to deliver symbolic possession, be issued against M/s. Yamuna Traders; M/s. Gopal Swarup Davinder Nath and Nabi Bux, returnable on the same date.
(64) The learned counsel for the decree-holder agreed to the bar, to give three years' time to Mohammad Salim, objector No. 9 thereforee, the decree-holder would be entitled to execute the decree by obtaining physical possession from him only after three years from the date of this order.
(65) The application of the decree-holder against Mjs. Tayal Bros. (P) Ltd., stands dismissed as satisfied.
(66) The objection petitions stand disposed of accordingly. There will be no order as to costs.
SD/-G. C. Jain, JUDGE
NEWDelhi May 26, 1982.
(67) After the pronouncement of this order, learned counsel for the decree-holder pointed out that M/s. Punjab Engineering Mills & Stores, objector No. 3 had filed an application for permission to lead additional evidence and during the arguments on that application he was shown some cheques and he had conceded that the said objector had been inducted before the filing of the partition suit and that this concession, has not been taken note of. Counsel, thereforee, wants to make necessary amendment in the order So that there may not be any factual mistake. He has no objection if the order was modified accordingly, though he was contesting the correctness' of the finding of this court that tenants inducted prior to the filing of the partition suit were not liable to deliver physical possession and this modification would not affect his rights in appeal.
(68) In view of this confession of fact and in view of my finding that the tenants who had been inducted prior to the filing of the suit were not liable to deliver physical possession, I direct that so far as M/s. Punjab Engineering & Mills Stores are also concerned, warrants with directions to deliver symbolic possession would be issued instead of directing them to deliver physical possession. The right of the decree-holder to challenge the finding of this Court that the tenants who had been inducted prior to the filing of partition suit were not liable to deliver physical possession would not be prejudiced in any way by this modification.
(69) Mr. Arun Mohan also urged that the decree-holder was entitled to physical possession as against M/s. Yamuna Traders, because they have not filed any objections challenging the execution application. I have given reasons in my order for directing the delivery of symbolic possession so far as M/s. Yamuna Traders are concerned. thereforee, the decree-holder may seek remedy by way of an appeal or review, whatever is available.