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Shanti Sharma and ors. Vs. Ved Prabha and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 366 of 1980
Judge
Reported in20(1981)DLT127; 1981(2)DRJ197
ActsTransfer of Property Act, 1882 - Sections 116
AppellantShanti Sharma and ors.
RespondentVed Prabha and ors.
Advocates: H.D. Triyogi and; F.C. Bedi, Advs
Cases ReferredK. N. Srivastava vs. Smt. Puri Bai
Excerpt:
.....premises after the determination of the lease, is conferred with new tenancy rights.; delhi rent control act, 1958 - section 14(1)(e) original tenant died leaving behind six heirs. notice of demand for payment of arrears of rent served on 3 heirs only.; every heir who has become a co-tenant must have the notice and an opportunity to pay the same. - - remaining in possession, despite the cancellation of lease, is of very great importance and confers tenancy rights under section 116 of the transfer of properly act which reads as under :11.effect of holding over- if a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lesser or his legal representative accepts rent from the lessee or under-lessee,..........against the landlady. the present appellant and respondent nos. 2 & 3 filed an appeal before the rent control tribunal who allowed the same on may 1, 1978 and dismissed the eviction petition on the ground that no notice under section 106 of the transfer of property act was served upon some of the appellants. smt. ved prabha filed a second appeal against the said order. on february 4, 1980 shri a.b. rohtagi, j, allowed the appeal on the ground that there was no necessity of giving a notice to terminate the tenancy under section 106 of the transfer of property act as held by supreme court in v. dhanapal chettiar v. yesodai ammal, a.l.r. 1979 s.c. 1745. accordingly the case was remanded back to the rent control tribunal for hearing and deciding the appeal of the tenant on merits. (5) by.....
Judgment:

G.R. Luthra, J.

(1) The present appeal is against an order dated August 22, 1980 of the Rent Control Tribunal, Delhi dismissing an appeal of the appellants and respondent Nos. 2 & 3 and affirming an order of an Additional Controller directing eviction of the appellants and respondent Nos. 2 & 3 from a premises described hereinafter the ground of bonafide requirement of respondent No. 1 Smt. Ved Prabha Verma, who is the owner and landlady.

(2) Plot Nos. 15-A/34 & 35, Ajmal Khan Road, Karol Bagh, Delhi were taken on perpetual lease from Delhi Improvement Trust by Rai Sahib Dina Nath who constructed a building on the same. He let out a portion of the said premises consisting of two rooms with covered verandah, a bath, a W.C. and a kitchen on the ground floor to one Amar Nath. Amar Nath died in December 1966. He left behind the appellants and respondent No. 2 as the only heirs. Dina Nath died on March 24, 1967. His widow Smt. Bhagwan Devi and daughter Smt. Ved Prabha filed a petition for eviction of the appellants and respondent Nos. 2 & 3 on various grounds. All the grounds except the ones of non-payment of rent in spite of notice of demand and bonafide requirement were given up.

(3) During the pendency of the petition Smt. Bhagwan Devi died. Hence Smt. Ved Prabba, respondent No. I, filed an amended petition dated May 5, 1976 in which the name of Smt. Bhagwan Devi was deleted.

(4) On August 17, 1976, Shri S.N. Kapur, an Additional Controller, ordered the eviction of the appellants and respondent Nos.2&3 on the ground of bonafide requirement of the premises in question by its landlady and owner Smt. Ved Prabha. The ground of non-payment of rent was found against the landlady. The present appellant and respondent Nos. 2 & 3 filed an appeal before the Rent Control Tribunal who allowed the same on May 1, 1978 and dismissed the eviction petition on the ground that no notice under Section 106 of the Transfer of Property Act was served upon some of the appellants. Smt. Ved Prabha filed a second appeal against the said order. On February 4, 1980 Shri A.B. Rohtagi, J, allowed the appeal on the ground that there was no necessity of giving a notice to terminate the tenancy under Section 106 of the Transfer of Property Act as held by Supreme Court in V. Dhanapal Chettiar v. Yesodai Ammal, A.l.R. 1979 S.C. 1745. Accordingly the case was remanded back to the Rent Control Tribunal for hearing and deciding the appeal of the tenant on merits.

(5) By way of the impugned order, the learned Rent Control Tribunal affirmed the order of Additional Rent Controller. Hence the present appeal. Respondent No. I not only supports the impugned judgment but also urges that she is entitled to eviction of the appellants and respondent Nos. 2 & 3 on the ground of non-payment of rent. I have heard the arguments in respect of both the aforesaid grounds.

(6) The main contention of the appellants is that leasehold rights in respect of plot No. 15-A/35 were cancelled by Delhi Development Authority, on account of which respondent No. I ceased to be owner of the building on the said plot, that some portion of the tenanted premises was on that plot, that she was not entitled to evict the tenants in respect of the tenanted portion on that plot and that because the tenancy could not be split and there could not be eviction from a portion only of tenanted premises, she was not entitled to evict them even from that portion of the tenanted premises which is on plot No. 15-A/34. The learned counsel for the appellants relied upon a, judgment of Hon'ble Mr. Justice Prakash Narain, in ShriPritam Singh v. Smt.Parmeshwart Devi and another, 1979 (1) RC.R. 795. It was held that when lease of a plot on which a building was constructed stood determined and the Government had re-entered, the owner/landlord ceased to be owner and also ceased to be entitled to eviction of the tenant on the ground of bonafide personal need. A number of authorities were relied upon by the learned counsel for the appellant in support of the preposition that there could not be any splitting of the tenancy and that the tenant could not be evicted from a part of the tenanted premises.

(7) But the authority of Delhi High Court relied upon by the learned counsel for the appellant has no application in the present case. In that case not only there was cancellation of the lease of the plot on which the building of the landlord existed but also there was a re-entry by the Government which means that possession was taken over by the Government. In the present case, possession of plot No. 35 was not taken by the Delhi Development Authority. Shri Ramesh Kumar, one of the appellants) filed an affidavit dated October 10, 1980. In that affidavit he stated that lease with respect to plot No. 15A/35 was cancelled by the Delhi Development Authority on August 28, 974, that proceedings for (asking over the possession were started by the said Authority but were stayed on a representation made by respondent No. 1. That means that respondent No. I is still in possession of the aforesaid plot. Remaining in possession, despite the cancellation of lease, is of very great importance and confers tenancy rights under Section 116 of the Transfer of Properly Act which reads as under :-

'11.Effect of holding over- if a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the Lesser or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession, the lease is, in absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose to which the property is leased, as specified in Section 106.'

(8) It is apparent from a are reading of the aforesaid provision that despite determination of the lease, the lessee remains a tenant if any of the following conditions is satisfied :

(A)Landlord or Lesser accepts rent from tenant Or (b) Tenant remains in possession with the assent of the landlord or Lesser.

(9) In the present case, the respondent No. I satisfies the second condition inasmuch as she is in possession of plot No. 35 with the consent of Delhi Development Authority as the said Authority has stayed dispossession.

(10) The aforesaid view is fortified by a judgment of the Supreme Court in Bhawattji Lakshmi and others v. Himatlal Jamnadas Dani and others, : [1972]2SCR890 . Following was held, which occurs in para 9 of the judgment:

'THE act of holding over after the expiration of the terms does not create a tenancy of any kind. If a tenant remains in possession after the determination of the lease, the common law rule is that he is a tenant on sufferance. A distinction should be drawn between a tenant continuing in possession after the determination of the term with the consent of the landlord and a tenant doing so without his consent. The former is a tenant at sufferance in English Law and the latter a tenant holding over or a tenant at will. In view of the concluding words of Section 106 of the Transfer of Property Act, a lessee holding over is in a better position than a tenant at will. The assent of the landlord to the continuance of possession after the determination of the tenancy will create a new tenancy.'

(11) It is apparent that after the determination of the tenancy if a lessee remains in possession with the consent of the Lesser he is in a better position than a tenant at will and a new tenancy is created in his favor.

(12) The learned counsel for the appellants, however, laid great emphasis on the opening words of the aforesaid observations and contended that the act of holding over after the expiration of term 'did not create a tenancy of any kind' and that, thereforee, no tenancy under Section 116 of the Transfer of Property Act was created in the present case. That argument obviously is fallacious. It is clear from the observations taken as whole that Under Section 116 of the Transfer of Property Act a tenant remaining in possession, with the consent of the Lesser, of the tenanted premises after the determination of tenancy is conferred with new tenancy rights.

(13) Under these circumstances, respondent No. 1 still remains to be a tenant of plot No. 15-A/35 and an owner of the superstructure thereon which means that her ownership rights never stood extinguished. That being so, she still qualifies for seeking eviction on the ground of bonafide requirement as owner of the property.

(14) In connection with the aforesaid ground of eviction the appellants filed an application, (being L.R. No. 153 of 1981) under- Order 41 Rule 27 and Section 151 Civil Procedure Code . for leading additional evidence. In the application it is stated that bonafide requirement inter alias consisted of requirement of her husband Shri 0. P. Verma, Advocate, because, as is alleged by her, guests and advocates from various High Courts who kept on coming and had to reside could not be given any separate room, that the said requirement had ceased to exist because respondent No. 1 and her husband filed a petition in the court of Shri K. B. Andley, Additional District Judge, Delhi for divorce by mutual consent and stated that they were residing separately since May 1975, that when they were living separately and wanted a divorce by mutual consent requirement of her husband Shri 0. P. Verma, Advocate, was no longer her requirement. It is prayed in the application that certified copies of the applications for divorce by mutual consent and the statements of respondent No. 1 and her husband recorded on September 29, 1976 by Shri K. B. Andley filed already be taken in evidence.

(15) The aforesaid application is contested by respondent No. 1. She admitted that application for divorce was filed. But it was staled that the same was done on account of some differences but that those differences were patched up as soon as her statement and that of her husband were recorded on September 29, 1976 and that, thereforee, the application was never pursued and was dismissed.

(16) The aforesaid evidence which is sought to be led now is hardly of any importance. May be, respondent No. 1 and her husband were living separately in the house for some time but it is not alleged by the appellants that respondent No. 1 gut divorce from her husband. Respondent No. 1 says that divorce application was never pursued and was dismissed. That means that marriage of respondent No. 1 and her husband still subsists and they have started living together and that being so the requirement of her husband is still relevant Under these circumstances, the application is hereby dismissed.

(17) No other point in respect of ground of bonafide requirement was urged by the learned counsel for appellants. In fact, as held by this Court in S. R. Kanna vs. Trilok Nath I.L.R. (1979) Del 557, the find ness as to bonafide requirement are findings of fact and there is not much scope for High Court to interfere and under Section 39 of Delhi Rent Control Act only question of law can be gone into.

(18) For the foregoing reasons, the appeal in respect of eviction on the ground of bonafide requirement has no force. Now I am tasking up the ground of nonpayment of rent.

(19) Respondent No. 1 applied to the Additional Rent Controller under Section 15(1) of the Delhi Rent Control Act for directing the appellants and respondent No. 2 to deposit the arrears of rent and that they should go on paying the rent by the 15th of every succeeding tenancy month. Additional Rent Controller directed payment as desired by respondent No. I @ Rs. 10 per month. Appellants and respondent Nos. 2 & 3 filed an appeal. Shri G.C. Jain. Rent Control Tribunal (as his Lordship then was) directed on February 25, 1970 payment of arrears of rent @Rs. 95 per month with effect from August 3, 1966 up-to-date within one month of the order and also to deposit future rent month by month at the same rate by the 15th day of each following tenancy month. It is common ground between the parties that arrears of rent were deposited in time. It is further common ground that future rent was deposited before the 15th of every succeeding calendar month but some deposits were not made by the 15th of tenancy month which was from 23rd of a month to 22nd of the next month. The learned Rent Control Tribunal Shri V. S. Aggarwal relied upon a Single Bench Judgment of Delhi High Court in Prakash Wat vs. Babu Ram in S.A.O. No. 30/71 decided on April 21, 1972 (reported as 1972 R. L. R. 159. It was laid down that word 'month' occurring in Section 15(1) of Delhi Rent Control Act meant calendar month and not the tenancy month. Shri Aggarwal held that in that way deposits of future rent were in time. However, that view has been upset by a D B. Judgment of this High Court in K. N. Srivastava vs. Smt. Puri Bai 1980 2 Rcj 732. It was held that word month occurring in Section 15(1) of the Delhi Rent Control Act meant tenancy month and that, thereforee, a tenant must deposit rent by the 15th of every succeeding tenancy month. In view of that judgment, in the present case there was a default committed in respect of deposit of rent for some months. That being so, the learned counsel for respondent No. 1 contended that the appellants were not entitled to the protection of Section 14(2) of the Delhi Rent Control Act which reads as under:-

'(2)No order for the recovery of possession of any premises shall be made on the ground specified in clause (a) of the proviso to sub-section(l), if the tenant makes payment or deposit as required by Section 15 : '

(20) It was further urged that when aforesaid protection was taken away the appellants and respondent Nos. 2 & 3 were liable to ejectment on ground of nonpayment of rent, For the purpose of finding out the force of the aforesaid contention of the learned counsel for the respondent No. 1, it is necessary to go through the relevant portions of provisions of Section 14, Delhi Rent Control Act. Sub-section (2) of Section 14 has already been reproduced. Proviso (a) to sub-section 14 reads as under :

'14(1)Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favor of the landlord against a tenant : Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises or one or more of the following grounds only, namely (a) that the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent has been served on him by the landlord in the manner provided in Section 106 of the Transfer of Property Act 1882.'

(21) It is clear from a combined reading of the aforesaid provision and subsection (2) of Section 14 that so that there should be eviction of a tenant on the ground of non-payment of rent it is necessary that the following conditions should exist :-

(1)The tenant has fallen in arrears of rents in respect of payment of rent for some period. (2) A notice of deemed is served on the tenant asking him to pay the arrears of rent. (3) The defendant does not pay the arrears of rent. (4) The tenant made a default in respect of payment of rent as ordered under Section 15(1) of the Delhi Rent Control Act. This condition is deducible from sub-section (2) of Section 14 of the Delhi Rent Control Act.

(22) In the present case, it is true that the tenants fell in arrears in respect of payment of rent for a considerable period It is also true that they had not paid those arrears prior to the institution of the eviction petition. It is also true that there was a default in respect of deposit of rent month by month as directed under Section 15(1). That means that the conditions No. (l),(3)&(4) stand satisfied. But the landlord has to prove that there was a notice of demand served upon the tenants requiring them to pay the arrears of rent within two months of the service of such notice. It was common ground between the parties that Amar Nath the original tenant, left behind six heirs, five of whom are appellants and sixth one is respondent No. 2. It was common ground between the parties that only three of the heirs were served with such a notice while the notice, although addressed to the remaining three, was sent individually yet the same was received back unserved. Under such circumstances, following proposition of law was laid down by a Single Judge of this Court in Ganga Prashad and another vs. Smt. Tribeni Devi and others A. I. R. 1977 Del 145 :

'WHEN the lessee died leaving behind a widow and three sons and there was nothing to show that they were living in commonality a notice served on the widow alone is not not sufficient despite the fact that the names of the sons were also mentioned in it.'

'THE heirs of the leasee are co-tenants and not joint tenants. This is the position in view of Section 10(b) of the Hindu Succession Act, 1956. The principle of joint tenancy is restricted in Hindu Law to the relations between the co-parceners. It has no application outside the co-parceners and their landlord. Courts strongly lean against joint tenancy. The principle of joint tenancy appears to be unknown to Hindu Law except in the case of co-parcenary between the members of an undivided family'.

(23) I am not only bound but am in complete agreement with the proposition of law laid down in that authority. It is absolutely necessary that every one of the heirs of the deceased tenant who has become a co-tenant after the death of their predecessor, must have the notice of the arrears of rent payable and consequently must have an opportunity to pay up the same to avoid eviction. There cae be cases when a notice is served upon one of the co-tenants who might, on account of lethargy or even in collusion with the landlord ignore the notice which will lead to an institution of an application for eviction.-

(24) A number of authorities were relied upon by the learned counsel for respondent No. 1 in support of his contention that notice of demand to one of the co-tenants was sufficient for the supporting of an application for eviction. For instance, great emphasis was laid on a judgment of Calcutta High Court in Ajit Kumar Roy and others v. Smt Sat) a Bala Dutt and others. : AIR1973Cal339 . That authority and some other were also considered in the aforesaid judgment of Single Bench of Delhi High Court and were not relied upon. When there is an authority of this High Court itself, the same is binding as against the authorities of other High Courts.

(25) The learned counsel for the respondent No. 1 also contended that the tenants in the present case were debarred from relying upon non-service of notice of demand upon three of the heirs of Amar Nath because they did not urge that point before the Additional Rent Controller and Rent Control Tribunal when order under Section 15(1) of the Delhi Rent Control Act was passed. It was explained that the tenants could have pleaded that they are not liable to pay any rent because no notice of demand was served upon three of

(26) The aforesaid contention also has no force. The order under Section 15(1) are passed on the basis of existence of relationship of tenancy and the rate at which rent was last paid. The fact that there was no notice of demand cannot be a valid plea against an application under Section 15(1) of the Delhi Rent Control Act because liability to pay rent still subsists despite the fact no notice of demand was served. However, eviction petition is to be decided on its own merits and it is not dependant on any decision made or any omission of a party in the proceedings under Section 15(1) of the Delhi Rent Control Act. For the purpose of succeeding in petition for evection on the ground of non-payment of rent, the landlord must independently show the existence of all conditions as mentioned above:

(27) It was then contended by the learned counsel for respondent No. 1 that the appellants and respondent No. 2 never pleaded that notices of demand of arrears of rent were not served upon them and that thereforee they could not rely upon such a plea of non-service. The learned counsel pointed out that in the amended petition dated May 5, 1976 it was pleaded in clause (i) of sub-para (a) of para 18 of the petition that the tenants had not paid the arrears of rent in spite of service of notices of demand, that in reply there was merely denial of that ground and there was no specific plea that notices of demand were not served.

(28) But the aforesaid contention has obviously no force. When there was a denial of liability of eviction on the ground of non-payment of rent, the allegations regarding service of notices of demand also stood denied. There was no necessity of any specific plea of non-service of notices. Hence it cannot be taken for granted that there was a service of notices of demand especially when it is known as a matter of fact that there was no such service on three of the tenants. The learned counsel for respondent No. 1 contended that as there was non-compliance of order under sub-section (7) of Section 15 of the Rent Control Act, the defense of the tenants was liable to be struck off under subsection (7) of Section 15 and that in that way it was not necessary for respondent No. 1 to prove the service of notices of demand.

(29) Firstly, it should have been in the Court of Additional Rent Controller that respondent No. 1 should have applied for striking off the defense of the tenants. Striking off cannot be done now. Further even if the defense of the tenants is struck off, decree for ejectment is not automatic and respondent No. 1 has to prove her case on merits as is done in ex parte proceedings. thereforee, she is not relieved from the duty of proving the service of notices of demand.

(30) I, thereforee, dismiss the appeal. As required by sub-section(7) of Section 14 of the Delhi Rent Control Act, the appellants and respondent Nos. 2 & 3 are given time of six months for vacating the premises and handing over the possession to respondent No. 1 landlady.


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