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Bhoomitra Sharma Vs. Dev Raj Sood and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSuit No. 23 of 1972
Judge
Reported inILR1982Delhi440
ActsDelhi Rent Control Act, 1958 - Sections 2(1)
AppellantBhoomitra Sharma
RespondentDev Raj Sood and ors.
Advocates: L.C. Vats,; F.C. Bedi and; S.K. Puri, Advs
Cases ReferredHindustan Steel (Pvt.) Ltd. v. Smt. Usha Rani Gupta.
Excerpt:
(i) delhi rent control act, 1958 (as amended) - section 2(1)--demised premises residential-cum-commercial and used as such--a person living with the deceased tenant in such premises whether 'tenant'. (ii) transfer of property act--tenancy prior to 1962 in delhi not governed by transfer of property act--strict compliance with technical rules of procedure not essential--service by affixation along with service by other modes valid. (iii) hindu law--adoption--physical act of giving and receiving necessary for a valid adoption. (iv) civil procedure code - order vi rule 2--material facts--omission to plead fatal.; plaintiff filed a suit for possession against the defendants alleging that the tenancy of the original tenant had been terminated during his life time by a notice under section 106.....j.d. jain, j.(1) this is a suit for possession of the property in dispute and for recovery of rs. 6,000 as damages for use and occupation thereof for the period 24th may, 1971 to 23rd november, 1971, at rs. 1,000 per month. (2) the undisputed facts of the case are that mrs. sushila sultan singh was the owner of premises bearing no. 1283, sultan singh building, main bazar, kashmere gate. the same comprised one shop consisting of five rooms .a courtyard, bath and lavatory on the ground floor and residential flats on the first floor and barsatis on the second floor along with use of joint staircase bearing no. 1284. the said premises were let to m/s. photo service co. which, according to the plaintiff, was a sole proprietary concern of late lachhi ram sood as far back as 1928 at a monthly.....
Judgment:

J.D. Jain, J.

(1) This is a suit for possession of the property in dispute and for recovery of Rs. 6,000 as damages for use and occupation thereof for the period 24th May, 1971 to 23rd November, 1971, at Rs. 1,000 per month.

(2) The undisputed facts of the case are that Mrs. Sushila Sultan Singh was the owner of premises bearing No. 1283, Sultan Singh Building, Main Bazar, Kashmere Gate. The same comprised one shop consisting of five rooms .a courtyard, bath and lavatory on the ground floor and residential flats on the first floor and barsatis on the second floor Along with use of joint staircase bearing No. 1284. The said premises were let to M/s. Photo Service Co. which, according to the plaintiff, was a sole proprietary concern of late Lachhi Ram Sood as far back as 1928 at a monthly rent of Rs. 199.22P. The tenancy month commenced from 1st date of every English calendar month and ended on the last date of the same. Subsequently the plaintiff purchased the said property from the owner vide registered sale deed dated 18th June, 1970, and intimation thereof was given by the erstwhile owner Smt. Sushila Sultan Singh to Sh. Lachhi Ram Sood vide letter dated 21st June, 1970, for attomment in favor of the plaintiff. Thus, the plaintiff became owner-landlord qua M/s. Photo Service Co. with effect from 18th June, 1970, by operation of law. The tenant paid a sum of Rs. 87/53P to the plaintiff as rent for the remaining days of the month viz. 18th June, 1970 to 30th June, 1970, by means of a cheque.

(3) The case of the plaintiff is that M/s. Photo Service Co. was a sole proprietary concern of late Lachhi Ram Sood, that the entire ground floor of the premises had been let out for commercial use while rest of the premises had been let for residential purpose and the same were used as such by the deceased tenant. After purchase of the property from. Smt. Sushila Sultan Singh, the plaintiff terminated the tenancy of late Lachhi Ram Sood vide notice dated 28th December, 1970, Ex. P5, calling upon him to surrender vacant possession of the premises in dispute to the plaintiff by the end of 31st January. 1971 and to pay the arrears of rent amounting to Rs. 996/10P for the period 1st July, 1970 to 30th November, 1970 within two months of the receipt of the notice. The said notice was duly served upon the tenant and he even sent a reply to the same through his counsel Shri Harbans Singh Dhir, Advocate and also remitted a' sum of Rs. 996]IOP' by means of a Money Order towards the arrears of rent up to 30th November, 1970. Sh. Lachhi Ram Sood expired on 24th May, 1971. The contention of the plaintiff, thereforee, is that on the termination of contractual tenancy of Sh. Lachhi Ram Sood he was in occupation of the premises in dispute merely as a statutory tenant with effect from 1st February, 1971 and after his death defendants 1 and 2, who were occupying the premises Along with their children as licensees of Lachhi Ram Sood became mere trespassers and as such they are liable to be dispossessed. By way of amended plaint he has also imp leaded defendants 4 and 5, who, according to his information, were also in unauthorised possession of the premises or part thereof and as such their possession too was wrongful and illegal. The plaintiff has further averred that vide notice dated 6th July, 1971, sent by him through his counsel, he called upon defendants 1 to 3 to surrender vacant possession of the premises within two days of the receipt of the notice failing which they would be liable to be evicted and pay a sum of Rs. 1,500 per month as damages for use and occupation of the premises in dispute.

(4) The suit is resisted by defendants I and 2 only, who are husband and wife, the rest of the defendants have been proceeded ex-parte. The defense of defendants 1 and 2 is that M/s. Photo Service Co. was the tenant of Smt. Sushila Sultan Singh qua the premises in dispute, that the said concern was a partnership firm at the inception of the tenancy, in that it was constituted of two partners, namely, late Lachhi Ram Sood and late Jagjit Pershad Mathur. Thus, according to him, both the said partners became joint tenants under Smt. Sushila Sultan Singh and Lachhi Ram Sood was never a tenant in his individual capacity. They assert that this position was recognised by the former owner-landlady who sent intimation of the sale to Mis. Photo Service Co., vide letter dated 21st June, 1970, calling upon the tenant to attorn to the vendee, namely, the present plaintiff. Accordingly, M/s Photo Service Co., which was a partnership concern, even at that time paid the rent amounting to Rs. 87/53p by means of a cheque drawn on National Qrindlays Bank Limited. They further assert that late Lachhi Ram Sood, Sh. Dev Raj Sood and Mrs. Lalita Gupta were the partners in the firm M/s. Photo Service Co. at the time of the purchase of the property by the plaintiff from Smt. Sushila Sultan Singh and thus all three of them became tenants of the plaintiff by operation of law. Still later in January 1971 there was further change in the- constitution of the firm when only two partners, namely, Dev Raj Sood and Smt. Lalita Gupta continued to be partners of the firm; as such Lachhi Ram Sood had no right or interest or concern with the partnership firm on 18th January, 1971, when the alleged notice of termination of tenancy was received by the deceased Lachhi Ram Sood. As a necessary corollary, it is urged that no valid notice terminating the tenancy of M/s. Photo Service Co. having been ever served on M[s. Photo Service Co, the notice addressed to late Lachhi Ram Sood being invalid and illegal, the only remedy of the plaintiff, if any, is for eviction of the present tenants from the premises in dispute under the provision of Delhi Rent Control Act and not by way of a suit. Thus, according to the defendants, this Court has no jurisdiction to try 'this suit. They have also refuted the claim of the plaintiff to possession of the property in dispute and for damages. Still later by way of amendment made in the year 1979, the contesting defendants also raised the plea that defendant No. 1 being the adopted son of Lachhi Ram Sood was dependent upon him and was residing with him in the premises in dispute at the time of his demise in May 1971. It is pointed out that the wife of Lachhi Ram Sood had pre-deccased him and his adopted daughter, namely, Smt. Sharda Puri had been married in October 1960 and as such she was no longer residing with him at the time of his death.

(5) The following issues were framed on the ploadings of the parties on 25th March. 1975: 1. Whether the plaintiff purchased the property in suil by registered sale-deed dated 18th June, 1970, and whether Shri Lachhi Ram Sood as sole proprieter of M]s. Photo Service Company was the tenant in the property at that time 2. Whether the said Lachhi Ram Sood became the tenant of the plaintiff by operation of law and by attornment as pleaded by the plaintiff 3. Whether there was & partnership firm, M/s. Photo Service Company in 1928 and. whether this has any effect on the suit O.P.D. 4. Whether the notice dated 23rd October, 1970, issued to Shri Lachhi Ram Sood for the purpose of terminating the said tenancy was effective and valid in law 5. Whether the said notice became invalid, because it was served late, as alleged by the defendants 6. Whether the defendants are in wrongful occupation of the property 7. Whether a decree for possession cannot be passed against defendants 1 and 2 on account of the fact that they are tenants 8. Is the suit under-valued for purposes of court-fees and jurisdiction 9. To what amount of the damages is the plaintiff entitled, and from whom, and from which date 10. Relief.

(6) Subsequently, issue No. 4 was recast on 19th March. 1980:

'WHETHER notice dated 28-12-1970 issued to Shri Lachhi Ram Sood for the purposes of terminating the said tenancy was effective and valid in Law.'

(7) Issue Nos. 1, 2 & 3 None of these issues was pressed by Shri F. C. Bedi. the learned counsel for the defendants, during the course of arguments and he fairly and frankly conceded that having regard to the material on the record, the tenant firm M/s, Photo Service Co. was the sole proprietary concern of Shri Lachhi Ram Sood at all relevant times and that the said firm attorney to the plaintiff upon his purchasing the property in dispute from the former owner-landlady Smt. Sushila Sultan Singh. Thus, all these issues are found in favor of the plaintiff.

(8) Issue No. 4 This is perhaps the most crucial issue in this' case because of the contention raised by the defendants that they are in occupation of the premises in dispute as' tenants and as such the civil court has no jurisdiction to try this suit. the matter being; exclusively within the jurisdiction of Rent Controller under Delhi Rent Control Act (for short the Act). Hitherto the legal position has' been that the termination of contractual tenancy is essential before an ejectment application can be filed by a landlord against a tenant according to the rent control legislation. However, in view of the recent authoritative pronouncement by the Supreme Court in Dhanpal Chettiar v. Yasodoi Amal, (1979) 2 Rcr 352, the controversy with regard to the requirement of a notice of termination of tenancy has finally subsided and it has been held that a notice under Section 106, Transfer of Property Act or any such notice of termination is not compulsory or obligatory because once the liability to be .evicted i.s incurred by the tenant he cannot turn round and say that the contractual lease has not been determined. The action of the landlord in instituting a suit for eviction on the ground mentioned in any State Rent Act will be tantamount to an expression of his intention that he does not want the tenant to continue as his lessee and the jural relationship of the Lesser and lessee will come to an end on the passing of an order or a decree for eviction. In this view of the matter, thereforee, no notice to quit was necessary under Section 106 of the Transfer of Property Act in order to enable the plaintiff-landlord to get an order of eviction against the defendant-tenant under any relevant provision of Delhi Rent Control Act. However, determination of contractual tenancy of a tenant is absolutely essential in view of the peculiar definition of 'tenant' as substituted by way of amendment by Act 18 of 1976 in Section 2(1) of the Act. As shall be presently seen the object .of the amendment made in the definition is to give a limited protection to the legal representatives of the deceased tenant whose contractual tenancy had been determined and who had become a statutory tenant with rights only personal and not heritable. It thus becomes necessary to find whether the contractual tenancy of Lachhi Ram Sood had been validly terminated by a notice to quit before his death or not.

(9) As deposted by the plaintiff (Public Witness 5), Ex. P5 is notice dated 28th December, 1970, which was' sent to Lachhi Ram Sood terminating his tenancy with effect from the-end of 31st January, 1971. The notice was sent under registered cover, Ex. P7. Ex. F6 is the postal receipt with respect to the same. The said notice was, however, received back undelivered to the addressee Along with acknowledgement due. Ex. P8, Thereupon the plaintiff sent a copy of the said notice to Lachhi Ram Sood on 13th January, 1971, under certificate of posting, Ex. P9. He also took the precaution of affixing a copy of the notice, Ex. PW3/1A on the front side of the premises in dispute i.e. outside the shop of M/s. Photo Service Co. on 14th January, 1971, in the presence of Kailash Chander, Public Witness 3 and some other persons. Ex. P10 is the original reply dated 25th February, 1971, which was sent by the tenant to the plaintiff through his counsel, Shri Harbans Singh Dhir. Its perusal would show that the notice so quit was duly received by M/s. Photo Service Co., Delhi. However, the contention raised was that Lachhi Ram Sood was not the sole proprietor of Mis. Photo Service Co., as indicated in the notice by the plaintiff.

(10) The defendant admits the receipt of notice which had been sent under certificate of posting but according to him it was received on 18th January, 1971. He has produced the original envelope. Ex. D9. in which the said notice was. sent. It bears two impressions of postal seal, one on the postal stamp which bears the date 13-1-71 and the other on the reverse side which bears the date 18-1-71 (8.00 hrs,). This postal mark is of G.P.O., Delhi. Thus. it tends to corroborate the stand taken by the defendant that. the said notice was delivered to the addressee on 18th January. 1971 and not earlier. The learned counsel for the plaintiff on other hand has stressed that the notice sent to the tenant on 13th January, 1971. should have normally been delivered to him either on the next following date or at any rate by 15th January. 1971. in due- course. Thus, according to him, the postal seal mark dated 18-1-71 appearing on the envelope, Ex. D9, is not genuine one and seems to have been forged collusion with some postal employee. However, I am not persuaded to accept this argument for the simple reason that there is a presumption of official acts having been regularly done. So, in the absence of any clear and reliable evidence to the contrary it will be hazardous to draw an inference that the postal mark on the said envelope might be spurious or forged. Of course, I do not mean to say that such a possibility can not be altogether ruled out. With a view to countenance his argument the learned counsel for the plaintiff has invited my attention to the fact that reply, Ex. P10 to the said notice is absolutely silent about the date of the receipt of notice to quit by the tenant. Thus, according to him, it would have been the- first thing to be pointed out by the tenant had he actually received the notice late. Consequently, an inference is sought to be drawn that the plea of notice having been received oil 18th January, 1971, in the written statement has been raised because in the meantime the defendant somehow managed to get postal seal mark on the envelope bearing the date 18-1-71. To say the least, such a conclusion will be purely conjectural being without any basis or justification. The omission on the part of the defendant to mention the date of receipt of the notice in their reply Ex. P10 appears to be deliberate and intentional. Obviously he would have run the risk of cautioning the landlord and invite a fresh notice of termination to his own detriment. Hence, I am inclined to hold that the said notice i.e. the one which was sent under certificate of posting was in all probability received by the addressee on 18th January, 1971, when it purports to have been delivered to him. It is common knowledge that delay of a day or so in the dispatch/delivery of postal articles/letters is a usual phenomenon and it will be hardly proper to draw any adverse inference merely on that account.

(11) The plaintiff's case, as mentioned above, further is that a copy of the notice was also fixed on the outer door of the demised premises i.e. outside the shop of M/s. Photo Service Co. In this respect, besides himself going into witness box to depose to this fact the plaintiff has also examined one Kailash Chander Sharma, Public Witness 3, who has testified to the pasting of the notice on the gate of M]s. Photo Service Co. at Bara Bazar, Kashmere Gate, Delhi, in his presence at about 8.00 A.M. on 14th January, 1971. He is one of the attesting witnesses to the same. During cross-examination, it was brought out that he is' Sharma by caste as the plaintiff is and that he had known the plaintiff for the last about 20 22 years. However, this circumstance can hardly be said to militate against the veracity of this witness. He has explained that he happened to go to Bara Bazar for taking a betel leaf from a betel leaves seller who used to sit on the footpath near the shop of M/s. Photo Service Co. Further, according to him. the betel leaves' seller, namely, Sh. Ram Lakhan was also present at that time. In the next breath, however, he added that he did not remember if Ram Lakhan, the betel leaves seller or his father was present at that time. Of course, he admitted that he did not see Lachhi Ram Sood at the time of pasting of the notice and the notice was not tendered to him at any time in his presence. Under the circumstances, it was sought to be urged that the plaintiff's version with regard to the pasting of notice is false and fabricated. However, I do not agree having regard to the totality of circumstances, in this case. Significantly, the plaintiff explained during his cross-examination that on the date the notice was pasted the shop premises of M/s. Photo Service Co. were lying sealed. It may be pertinent to add here that during the insolvency proceedings' initiated against Lachhi Ram Sood a Receiver was appointed by the Insolvency Judge and he had sealed the premises of M(s. Photo Service Co. This fact has been deposed to by Shri Ram Murti, Public Witness 1, who was one of the creditors and petitioners in the insolvency proceedings taken against Lachhi Ram Sood. Further a copy of order dated 15th April, 1971, passed by the Judge, Insolvent Estates Court, to the effect that possession of the shop which had been sealed by the interim Receiver should be restored to the respondent i.e. Lacbhi Ram Sood, has also been placed on the record. It is Ex. P18. This circumstance itself lends credibility to the testimony of the plaintiff and shows that he has not tried to mince matters by taking a false plea of tendering or making attempt to deliver the notice to Lachhi Ram Sood before affixing it outside his shop. Indeed it is' nobody's case that Lachhi Ram Sood used to work at his shop in those days, rather accordingly to the averment made by the defendant in their written statement he had even ceased to have any concern with the firm M/s. Photo Service Co. which is alleged to be a partnership firm of defendants 1, 2 and Smt. Lalita Gupta at the relevant time. Anyhow, as shall be presently seen, this omission on the part of the plaintiff does not, in any manner, invalidate the service of notice.

(12) The learned counsel for the defendants has made three pronged attack to the legality and validity of the notice of termination of tenancy. In the first instance, he has urged that notice ought to have been served upon M]s. Photo Service Co. and not Lachhi Ram Sood personally. However, this submission is devoid of any merit for the simple reason that M/s. Photo Service Co. was the sole proprietary concern of Lachhi Ram Sood, a fact which is now beyond the pale of controversy. Hence, in law as well as in fact Lachhi Ram Sood was a tenant in his individual capacity and the trade name/firm name in which he was carrying on his business had no legal existence distinct from Lachhi Ram Sood himself. It is well settled that a single person cannot constitute a firm, though he is carrying on business in a name or style other than his own.

(13) The next contention of the learned counsel for the defendants' is that service of notice by affixation was invalid being contrary to the provisions of Section 106, Transfer of Properly Act. Alluding to Section 106, Transfer of Property Act, the learned counsel has urged that considerable fervour that service by affixation could have been effected only as a last resort if the other modes' of service had been exhausted and failed. Further this form of service is invalid in the absence of any evidence that the notice was tendered or delivered personally to the addressee or to one of his family members or servant at his residence, the line of argument being that notice could be affixed on a conspicuous part of the property only if such tender or delivery was not practicable as envisaged in the second part of Section 106 itself. This argument would certainly have considerable merit if it is conceded that Section 106, Transfer of Property Act interms governed the tenancy in question. Unfortunately, however, for the defendants, the tenancy in favor of Lachhi Ram Sood was created in 1928 i.e. much prior to the coming into force of the Transfer of Property Act in the Union of Territory of Delhi. The said Act was made applicable to Union Territory of Delhi with effect from 1st December, 1962. Evidently this Section lays down a rule of construction and applies to a case where no period is agreed between the parties and the lease is' not governed by local law, contract or usage to the contrary. This .is abundantly clear from the opening words 'in the absence of a contract or local law or usage to the contrary' of the Section itself. Thus, the technical rules contained in this provision shall not be applicable to the tenancy in question. However, even before that date the principle underiving it was made applicable to Delhi in the same way as it was held applicable to Punjab as being a rule of justice, equity and good conscience and as such was' made applicable in the absence of any statute. This, a notice of about 15 days even if not expiring by the end of the month of tenancy was considered essential to determine a monthly tenancy .under this principle. Reference in this context be made to Batto Mal v. Rameshwar. Nath, (1970) 2 R.C.R. 532, wherein a Division Bench of this Court adverted to with approval the observations of Dua, C. J. (as he then was) in Des Raj and others v. Mjs. RamjiLal Kundan Lal, (1969) R.C.R. 54 and observed that :

'THIS observation was of course literally correct inasmuch a notice under Section 106 of the Transfer of Property Act as such could not be insisted upon when the tenancy had commenced prior to 1st December, 1962. We, however, do not understand the learned Chief Justice to have laid down any broader rule to the effect that even a reasonable notice of 15 days was not necessary to terminate such a tenancy. There is no inconsistency, thereforee, between the view expressed by the learned Chief Justice and the view expressed by us above that even when the tenancy commenced prior to 1-12-62 a notice of about 15 days was essential to determine a monthly tenancy.'

(14) I am in respectful agreement with this observation. The provision relating to the service of notice under Section 106 of the Transfer of Property Act consists of two parts, the first relates to the necessity to terminate a monthly lease by at least 15 days notice, the second is that the period of such a notice must be co-terminus with the end of the month of tenancy. In a case not governed by the technical rule of this Section and in the absence of a contract to the contrary a tenant may be understandable entitled to notice to quit on principle of justice, equity and good conscience, but surely he cannot insist upon strict compliance with technical rule of procedure contained in the said Section. On a parity of reasoning the tenant cannot insist that the landlord should have first exhausted all other modes of effecting service of notice of termination of tenancy before taking recourse to affixation on the demised property as contemplated in Section 106. So, all that has to be seen is whether resort to this mode on the part of the plaintiff was bonafide i.e. well warranted by the circumstances of the caste. As stated above, the plaintiff in the first instance sought to serve the notice through registered A.D. post but the attempt proved abortive because the addressee was not available to the postman concerned despite his repeated visits to the premises in dispute for delivering the registered letter. Faced with this difficulty in serving the notice through registered A.D. post the plaintiff naturally thought of adopting alternative methods. Accordingly, he sent a copy of the notice under certificate of posting and it was by way of abundant caution that he also thought of effecting service by affixation on the demised premises itself. Evidently he did not want to leave anything to chance, perhaps he was so advised. So, there is nothing unusual or abnormal on the part of the plaintiff in resorting to this mode of service. Possibly he could not have contacted the tenant personally when even the postman had failed to do so despite repeated attempts. In other words, the landlord legitimately felt that delivery/tender of the notice to the defendant personally or any member of his family etc. was not practicable and, thereforee, he took recourse to affixation of the same on a conspicuous part of the demised premises. To my mind, thereforee, service by affixation in the instant case is perfectly valid.

(15) Even the notice sent under certificate of posting must be deemed to be valid and perfectly legal having regard to the circumstances of the case. As held by their Lordships in Batto Mal a notice of about 15 days even if not expiring with the end of the month of tenancy was' essential to determine a monthly tenancy. The said notice having been received by the addressee on the morning of 18th January, 1971 and the month of tenancy expiring at the end of 31st January, 1971, he had a clear notice of about 15 days if not 15 days as such. Hence, the defendants cannot insist upon strict adherence to the technical rule contained in Section 106 of the Transfer .of Proprty Act and the notice in question, in my view, was quite sufficient and valid to determine the tenancy of deceased Lachhi Rani Sood. Issue No. 5

(16) In view of my finding on the above issue, this issue does not arise. Indeed it is covered by the sane Issues No. 6 and 7

(17) Both these issues' being closely interlinked can be disposed of together. Indeed these are cross-issues. These issues were framed prior to the amendment of the written statement in 1979 when the defendants for the ftrst time raised the plea that defendant No. 1 being the adopted son of late Lachhi Ram Sood was dependent upon him at the time of his demise in May. 1971, the wife of Lachhi Ram Sood having predeceased him and the adopted daughter of Lachhi Ram Sood. namely, Smt. Sharda Devi having been married in October 1960. Since, however, this plea is tantamount to a stand that defendant No. I is still a tenant within the meaning of amended definition of the word 'tenant' in Section 2(1) of the Act. the same will be well covered by these issues.

(18) The amended definition of the term 'tenant' which has been substituted with retrospective effect reads as under : 'tenant' means any person by whom or on whose account or behalf the rent of any premises is, or, hut for a special contract, would be, 'payable, and includes i) a sub-tenant; (ii) any person continuing in possession after the termination of his tenancy; and (iii) in the event of the death of the person containing in possession after the termination of his tenancy, subject to the order of succession and conditions' specified, respectively, in Explanationn I and Explanationn Ii to this clause, such of the aforeaid person's - (a) Spouse (b) son or daughter or where these are both son and daughter, both of them. (c) ...... (d) ...... as had been ordinarily living in the premises with. such person as a member or members of his family up to the date of his death, but does not include - (A) ...... (B) ...... Explanationn I: ...... (a) ...... (b) ...... (c) ...... (d) ...... Explanationn Ii : If the person, who acquires, by succession, the right to continue in. possession after the termination of the tenancy, was not financially dependent on the deceased person on the date of his death, such successor shall acquire such right for a limited period of one year; and, on the expiry of that period, or on his death whichever is earlier, the right of such succes'sor to continue in possession after the termination of the tenancy shall become extinguished. Explanationn III: ...... (a) ...... (b) ......'

(19) On a plain reading of this definition defendant No. 1 must prove the following essential ingredients before he can fall within its ambit : (1) That even though the contractual tenancy of Lachhi Ram Sood had been validly terminated if. his life time he continued in possession of the premises in dispute thereafter. (2) That he is one of the heirs specified therein and as such he is entitled to inherit the tenancy or statutory protection to continue in possession of the demised premises. (3) That he had been ordinarily living in the premises with the deceased tenant as a member of his family up to the date of his death., This condition incidentally raises the question as to whether such protection is available only in the case of residential premises or even in the case of residential-cum-commercial premises as is the case at present. (4) That he was financially dependent on the. deceased tenant on the date of his death and as such his right to continue in possession which he has acquired by succession is not limited to a period of one year.

(20) The first condition in the instant case, as has been seen above, is duly satisfied. Before, however, I proceed to deal with condition No. 2 i.e. which involves the question of adoption of defendant No. 1 as a son by the deceased tenant, I would like to dispose of condition No. 3 too because evidence on the record is heavily weighted in his favor.

(21) Shri Dev Raj Sood, defendant No. 1. has stepped in the witness box as DW7. He has, inter alia, deposed that ever since his childhood he had been living with Lachhi Ram Sood as a member of his family. According to him, his real father Shri Rabbal Ram was younger brother of Lachhi Ram Sood. His mother died when he was only a few weeks old and his rest father gave him in adoption to Lachhi Ram Sood as there was nobody else to look after him. So, he was brought up by Lachhi Ram Sood and the latter was mentioned as his father in the records of schools and college in which he studied. Further Lachhi Ram Sood had executed a General Power of Attorney in his favor which is Ex. D8. He was married in 1962 and he had been living with Lachhi Ram Sood, deceased, Along with his wife and children in the premises in dispute. He has explained that the family of Lachhi Ram Sood consisted of himself (Lachhi Ram Sood), his wife Smt. Raj Kumari, him i.e. defendant No. I, and wife and children of defendant No. 1 and names of all of them were entered in the ration card of Lachhi Ram Sood, who was head of the family during his life time. The defendants have also examined Shri Badri Datt Pathak, Ration Depot Holder, as DW2. According to him, Lachhi Ram Sood had been shown as head of the family for the purposes of ration-card and he was holder of ration-card No. 90201 in lieu of which ration-card No. 15759 was issued in 1968. There were eight members in his family out of which two were minors. After the death of Lachhi Ram Sood another ration-card bearing No. 38293 was issued to Dev Raj Sood as head of the family on 1st January, 1978. He testified to the correctness of the ration-card. Ex DW2. He further explained that as and when old food ration-card is surrendered new ration-card in lieu of the old is issued and the old one is deposited with the Rationing Department. He asserted that he had been seeing that Lachhi Ram Sood or Dev Raj Sood had been obtaining ration from his shop. Tn cross-examination, however, he admitted that in the records kept by him the name of the head of the family only was mentioned and particulars of other family members of a ration-card holder were not given. Besides that the defendants have placed on the record a copy of the electoral roll meant for the election 'of Member to the Lok Sabha for the year 1965 (Ex. D4) which lends support to the defendants' version that he was living at house No. 1283, Bara Bazar, Kashmere Gate i.e. premises in dispute. Further even in the power of attorney. Ex. D8, defendant No. 1 has been described to be resident of Sultan Singh Building. Kashmere. Gate. This evidence to my mind amply establishes the fact that defendants 1 and 2 had been residing in the premises in dispute Along with Lachhi Ram Sood, as members of his family. Indeed even the plaintiff was fair enough to admit during his cross-examination that before purchasing this property, he verified that Lachhi Ram Sood was in occupation thereof and that Dev Raj Sood and his wife were also living there with him. However, he hastened to add that Lachhi Ram Sood had told him that he iiad. allowed his ex-Manager, Sh. Dev Raj Sood and his wife to reside in the property in dispute. Anyhow the factum of Dev Raj Sood, defendant No. 1 and his wife etc. living in the premises in dispute as members of the family of the deceased Lachhi Ram Sood stand proved by cogent and reliable evidence.

(22) An attempt has also been made by the plaintiff, although very much belated, to prove that at the time of his death Lachhi Ram Sood was living with his sister at quarter No. 433, Sector Iv, Rama Krishna Puram, New Delhi. He has deposed that before purchasing the property in dispute lie met Lachhi Ram Sood at the aforesaid house of his sister in order to find out if he i.e. Lachhi Ram Sood was not himself interested in purchasing the property and it was from that place that Lachhi Ram Sood came Along with the plaintiff in order to enable him to inspect the property. Further, according to him, it was at that time that he found Dev Raj Sood and his wife and children present in the premises in dispute.' After inspection he and Lachhi Ram Sood went back to Rama Krishna Puram. During the course of talks Lachhi Ram Sood, inter alia, told him that he brought up Dev Raj and the latter then became a lawyer. He further told him that even though, he had brought up Dev Raj Sood but the latter was not on good terms with him and used to quarrel with him. thereforee, he had to reside at Rama Krishna Puram. It may be pertinent to add here that this story was introduced for the first time at the stage of rebuttal through Jitendra Nath Bhatnagar. Public Witness 6, who claimed to have family contacts with Lachhi Ram Sood. deceased and as such he was on visiting terms with him. It is, however, interesting to note that during his cross-examination this witness admitted that Lachhi Ram Sood, Smt. Raj Kumari (who according to him was his mistress and not a wife) and Dev Raj Sood had been residing in the premises in dispute before and even after the marriage of the latter till now. He also saw the wife and children of Dev Raj Sood residing there. While he ventured to say that accommodation atTRama Krishna Puram was government alleged accommodation either brother-in-law or to the sister of Lachhi Ram Sood but he admitted that he had not known the brother-in-law of Lachhi Ram Sood and he did not even know if he was a Government servant. He had no idea if the sister of Lachhi Ram Sood was in Government service. Significantly, he has described Lachhi Ram Sood as father of Dev Raj but has offered Explanationn for the same Viz. 'hat he had called Lachhi Ram Sood, father of Dev Raj because he had been brought up by the former. As for the plaintiff himself he was confronted with his earlier statements, portions A to Al. B to B1,C to C1 and D to D1 which he had made during the course of his cross-examination on 10th September, 1979, and he admitted the same to be correct. In the portions D to Dl the plaintiff had denied the suggestion that Lachhi Ram Sood was lying sick in the premises in dispute when he i.e. the plaintiff purchased the property and had asserted that he was hale and hearty. Thus, there can be little doubt that the whole of this story has been concocted as an after-thought in a vain hid to belie the stand of the defendant that he had been living with Lachhi Ram Sood, deceased, in the premises in dispute till his death. It is rather amusing that Lachhi Ram Sood was admittedly cremated at Nigam Bodh Ghat and his last rites were performed by Dev Raj Sood. However, the explander for this, as given by the plaintiff, is that the dead body of Lachhi Ram Sood had been brought from Rama Krishna Puram to Kashmere Gate premises and thereafter it was taken to Nigam Bodh Ghat. Evidently, it is a mere figment of imagination and The plaintiff seems to have woven the web of this -story around the circumstance that in the second insolvency petition moved by Shri Gian Chand and others against Lachhi Ram Sood. the address of the latter was shown as 433, Sector Iv, Rama Krishna Puram also besides the address of the premises in dispute. (See Ex. P18, copy of order dated 15th April, 1971). Hence, this version of the plaintiff appears to be a blatant falsehood and a clumsy attempt to raise a smoke screen to overshadow true facts. .

(23) Faced with this situation the learned counsel for the plaintiff canvassed with great fervour that the benefit of the statutory protection to the specified legal representatives of the deceased tenant can be available in respect of premises let for residential purposes alone and not with regard to other kinds of premises. In other words, the premises in question having been let for residence-cum-busincss to Lachhi Ram Sood do not qualify for the extended benefit given to the successors of the deceased tenant. Reliance in this connection has been placed on Haji Mohammed Din v. Narain Dass. : AIR1979Delhi186 (3), which is a decision by a Full Btnch of this Court and Smt. Bhagwan Devi and others V. Sh. Abdul Jalil and others, 1980 (1) R.C.R. 357. It was held by the Full Bench that :

'THE limited right of inheritance is granted only to some of the heirs living in the premises with the deceased person whose tenancy has been determined but not to those who could not be living with him because the letting was for a non-residential purpose. The words used in the amended definition of 'tenant' to give the limited right of inheritance to such persons 'as had been ordinarily living in the premises with such person as members of his family up to the date of his death' have to be construed to mean that the benefit of amendment is available only when the tenancy was for residential purpose. It is only then that heirs of the tenant could live with him in the premises at the time of his death. If the premises were not let for residential purpose then neither the tenant nor his heirs could be living in those premises.'

(24) Reliance in this context was placed by their Lordships on Ganpat Ladha v. Sashikarit Vishnu Shinde, : [1978]3SCR198 (5), in which the Supreme Court had an occasion to construe similar words occurring in Section 5(ll)(c) of the Bombay Rents, Hotel and Lodging House Rates Control Act. The other learned Judges concurred in the view expressed by the Chief justice in this regard. M. L. Jain, J. has, however, dwelt on the subject at some length. The learned Judge, inter alia, adverted to another decision of this Court in Mohan Lal Goela v. Siri Krishan, : AIR1978Delhi92 (6), in which Avadh Behari. J., had held that the amendment made the, statutory tenancy heritable to a limited extent and that too in relation to a. residential premises only. (However, with respect I may say that it does not appear to be so.). Thus, his Lordship too was of the opinion that the amendment applies only in respect of residential premises. Since the premises subject-matter or that case were admittedly business premises, the successors of the tenants were held not entitled to statutory protection tenants under the amended definition. In Smt. Bhagwan Devi and others the learned Judge has reiterated the same view. This time, however, his Lordship adverted to Mohan Lal Goel's case at some length. It may be noticed that in Mohan Lal Goela, Avadh Behari, J., had expressed the view that this definition applied only to residential or perhaps to residential-cum-commer- cial premises. Observing that the words 'in the premises' are quite expressive, his Lordship proceeded to say that :

'THEY are clearly suggestive of the intent of the legislature viz to confer a right to continue to live in the premises. Similarly the words 'ordinarily living' are a clear pointer. Of commercial premises it cannot be predicated that one had been ''ordinarily living in the premises' with the deceased tenant as 'a member of his family'. The two expressions (1) 'living, in the premises' and (2) as a 'member of the (tenant's) family' give us a clear indication of the legislative intendment.'

His Lordship gave a further reason in support of this view saying that :

'...........WHAT the Amending Act seeks to confer is a mere right to continue in possession after the termination of the tenancy. But to continue in possession of what It is 'the Tight to continue in possession' of those very premises where the specified succcessor was living with the deceased tenant as a member of his family up to the date of his death. The argument that 'the right to continue in possession' extends to another and different premises in absurd. Take a case. The son was ordinarily living with the father (the tenant) or the premises as a member of his family up to the date of his death. The son has a right to continue in possession if he satisfies the conditions of the Explanationns. But he cannot claim that the tenancy of the commercial premises of his father also devolves on him.'

(25) It may be pertinent at this stage to notice also the reasons which prevailed with their Lordships of the Supreme Court in Ganpat Ladha v. Sashikant Vishnu Shinde. Their Lordships observed that :

'IT is difficult to see how in case of business premises. the need for showing residence with the original tenant at the time of his death would be relevant. It is obvious from the language of S. 5(11)(c) that the intention of the legislature in giving protection to a member of the family of the tenant residing with him at the time of his death was to secure that on the death of the tenant, the member of his family residing with him at the time of his death is not thrown out and this protection would be necessary only in case of residential premises. When a tenant is in occupation of business premises, there would be no question of protecting against dispossession a member of the tenant's family residing with him at the time of his death. The tenant may be carrying on a business in which the member of his family residing with him may not have any interest at all and yet on the construction adopted by the High Court, such member of the family would become a tenant in respect of the business premises. Such a result could not have been intended to be brought about by the legislature. It is difficult to discern any public policy which might seem to require it. The principle behind S. 5(11)(e) seems to be that when a tenant is in occupation of premises, the tenancy is taken by him not only for his own benefit, but also for the benefit of the members Of the family residing with him, and, thereforee, when the tenant dies, protection should be extended to the members of the family who were participants in the benefit of the tenancy and for whose needs inter alias the tenancy was originally taken by the tenant. This principle underlying the enactment of S. 5(11)(e) also goes to indicate that it is in respect of residential premises that the protection under that section is intended to be given. We can appreciate a provision being made in respect of business premises that on the death of a tenant in respect of such premises, any member of the tenant's family carrying on business with the tenant in such premises at the time of his death shall be a tenant and the protection of the Rent Act shall be available to him.'

(26) The ratio decidendi of this authority, to my mind, wholly covers the case of the present defendants inasmuch as from the very inception of tenancy the premises in question had been taken for both residence and business. It is common ground that the ground floor of the premises was being used for the business of M/s. Photo Service Co. wherea's the first floor and the second floor were used as residence by Lachhi Ram Sood and inembers of his family. Evidently, tberefore, it is noi a case of business promises ' which are ordinarily 'not meant for residence. The basic postulate of the protection under the Act is that the person who ought to be. profited must be in possession of the premises and he must have been ordinarily living there with the deceased tenant. This condition is fully satisfied by defendant No. 1 in the instant case. Looked at from this angle, I am in respectfully agreement with Avadh Behari, J. that the extended definition of tenant' shall ensure to the benefit of a tenant of a commercial-cum-residential premises also provided, of course, the deceased tenant had been ordinarily living there Along with members of his family, all or some of whom may fall within the category of heirs specified in definition itself. So, the word 'perhaps' used as a measure of caution by the learned Judge is transformed into a certainty in the instant Case. Surely, it will be a denial of justice to the successors of the deceased tenant to hold that (hey are not entitled to the statutory protection of continuing in possession of the demised premises when it is amply borne out by evidence that they had been all along living with the deceased tenant as members of his family In a portion of the demised premises which was exclusively used turn residence. It is, of course, another thing that the tenancy canaot be split up and the demised premises cannot be bifurcated into two separate portions because of its user for both commercial and residential purpose.

(27) Next comes the question of adoption. Defendant No. 1 has deposed that his natural father Sh. Rabbal Ram was younger brother of Lachhi Ram Sood, deceased. His mother died wheat he i.e. defendant No-1 was only a few weeks old and his natural father gave him in adoption to Lachhi Ram Sood as there was nobody else to look after him (defendant. 1). So, he was brought up by Lachhi Ram Sood he was described as son of. Lachi Ram Sood everywhere viz. school records college records, records of rationing department, records of electoral office and records, of municipal corporation etc. He has further deposed that his natural father was residing at a place about 12 miles beyond Simla and he married again in 1940. He had got four sons and two daughters from his second wife and be died in 1976. He further explained that after he had grown up both Lachhi Ram Sood and his natural father told- him that he had been adopted by the former. He had his schooling at Hampton Court, School, Mussoorie, in early forties and he then joined St. Stephen College, Delhi, sometime in 1949. He has placed on the record a certificate dated 29th August, 1979, purporting to have been issued by the Principal, St. Stephen College, Delhi Ex. D7. He has testified that Mr. W.S. Rajpal, the present: Principal of St. Stephen College signed the same in his presence. The Principal of the College has certified therein that Dev Raj Sud son of Shri Lachhi Ram Sud was a student of his College from July 1948 to April 1951. Further the date of birth, as recorded in the College Admission Register was 14th December, 1931. The defendant. has also placed on the record a registered power of attorney dated 20th April, 1966. Ex. D8, which as stated above, was executed by Lachhi Ram Sood in his favor. In this decument toe he has bees described as son of Lachhi Ram Sud. Further in the electoral roll for the Parliamentary Constituency of east Delhi, Ex. D4, defendant No. I has been described as sen of Lachhi Ram. I have already adverted to the evidence of ration-depot holder in this behalf. The defendant has also deposed that he was married to Smt. Karuna Mahindra in ceremoney was performed by Lachhi Ram, Sood in the premises in dispute. However, his natural father too was, present at the time of his marriage ceremonies, and a few photographs which were taken at that time were in his possession. However, be did not tender in evidence any such photograph when he was in the witness box arid it was only during the course of cross-examination of .the plaintiff at the fag end of the case that he introduced photographs. Ex. D13 & Ex. D14 with a view to test the-veracity of the plaintiff. So, these photographs are absolutely of Do avail to the defendant.

(28) There is also the evidence of Fateh Chand, DW1, Prem Behari, DW5 and P.C. Nanda, DW6 to the effect that defendant No.1 is adopted son of Lachhi Ram, deceased. Dwi was an employee of M/s.Photo Service Co. from 1924 to 1938. He was working as Manager at New Delhi shop of Lachhi Ram, deceased. According to him, Lachhi Ram Sood had no son and, thereforee, he adopted defendant No. 1 as his son near about 1928 or so. There was no adoption ceremony. However, be hastened to add that he did not remember if there was any function relating to ceremony of adoption. Further, according to. him, whenever he visited the house of Lachhi Ram Sood on function he saw Dev Raj Sood over there. During cross-examination he admitted that he did not know the name of natural father of Dev Raj Sood but he asserted that the later was son of younger brother of Lachhi Ram Sood. According to him, the natural father of defendant No. I was carrying on business at Simla and he must also be residing there but he could not say up to what age defendant No.1 resided with his natural father at Simla. He could not recall if natural father of defendant No.1 ever visited Delhi. He never attended any function in which the natural parents of defendant No. I were present. He came into contact with defendant No. I when he was about five years old. -

(29) Sh. P. C. Nanda, DW6, was also an employee of M/s Phbto Service CO. from 1938 till 1945 as Manager-cum-in charge of its branch at Mussoorie. He has deposed that in 1939 he got defendant No.1 admitted in Hampton Court School, Mussoorie, under instructions from Lachhi Ram Sood. He was given to understand by Lachhi Ram Sood and his wife that defendant No. 1was their adopted son that mother of defandant NO. 1 died after about, two weeks of his birth and that he was adopted by them when he was about 2-3 month old. He asserted that he was the local guardian of Dev Raj Sood at Mussoorie till 1945 when he left service of Lachhi Ram Sood. He also attended the marriage of defendant No.1 and Lachhi Ram Sood performed marriage ceremonies as father. During cross-examination this witness stated that he saw defendant No. 1 for the first time in March 1939 when he was about 617 years old. He asserted that school admission form was filled in by him and he mentioned the name of his father in that form. He was given to understand that younger brother of Lachhi Ram was the natural father of Dev Raj and he was living at Simla. However, he could not say if defendant No.1 was the son of brother of Lachhi Ram Sood's wife. He did not know if the wife of Lachhi Ram had brought Dev Raj from Simla. It may be pertinent to mention here that according to defendant No.1 it was Lachhi Ram Sood who had signed the admission form of Hampton Court School, Mussoorie and he described himself as his- father. He admitted that the records relating to his parentage both at Hampton Court School, Mussoorie as well as St. Stephen College Delhi, still exist and that Mr. Rajpal, Principal of St. Stephen College is- alive. He further admitted that be was granted a certificate having passed the senior Cambridge examination and his date of birth was mentioned in the same but he did not try to obtain a copy of the said certificate.

(30) Sh. Prem Behari Lal, DW5, has deposed that he used to visit the shop of M/s. Photo Service Co. because J. P. Mathur, who was a partner in the said firm Along with Lachhi Ram was his neighbour and he had been seeing defendant No. 1 at the shop of Lachhi Ram since his childhood in 1932-33 onwards. Lachhi Ram told him that he was his adopted son. During cross-examination he reiterated that he saw defendant No.1 at the shop of Lachhi Ram for the first time in 1932-33. However, he could not say what was the age of the child at that time, it may be 2 or 3 years. He did not know the natural parents of the child. Thus, in nutshell, is the entire evidence relating to adopting of defendant No.1 by Lachhi Ram Sood.

(31) In rebuttal the plaintiff has examined one Jitender Nath Bhatnagar at as Public Witness 6, who has gone to the extent of saying that Lachhi Ram Sood did not marry and he had a mistrees by the name of Raj Kumari, who was living with fan. Further Lachhi Ram Sood told him that Dev Raj had brought by Sm.Raj Kumari. Of course even he stated that defendant No.1 had Been brought up Lachhi Ram Sood. Curiously enough he described Lachhi Ram Sood as father of Dev Raj but then hastened to explain that he had called Lachhi Ram Sood father of defendant No.1 because he had been brought up by Lachhi Ram Sood. During cross-examination he admitted that he had been seeing defendant No. I since his childhood and that Smt. Raj Kumari must have been living with Lachhi Ram Sood prior to his birth. He admitted that Lachhi Rain Sood, Smt.Raj Kumari, Dev Raj and his wife and children were living together with Lachhi Ram Sood and the latter used to bear the household expense. According to the plaintiff who stepped in the witness-box again in rebuttal, Lachhi Ram Sood told him that defendant No. 1 was not related to him, that he Was having a keep for the last 40 years and that she had brought; Dev Rej to 'his house telling him, that he was son of her brother.

(32) As for the rebuttal evidence of the plaintiff, suffice it to say that it is fantastic non-sense having regard to the fact that defendant No. 1 had been living and was brought up by Lachhi Ram Sood, deceased, it pauses one's comprehensioin that he would have token the plaintiff into confidence and used such derogatory remarks for his own wife arid defendant No. 1. Indeed the story of Smt. Raj Kumari, being just a mistress of Lachhi Ram Sood appears to be a figment of plaintiff's imagination. It Was introduced only at the stage of rebuttal apparently with a view to side-tract the real issue. At no stage the marriage of Smt. Raj Kumari with Lachhi Ram Sood was in issue. Hence, this kind of approach must be deprecated. All the same the question for consideration is Whether evidence on the record is legally sound and reliable to warrant a finding of adoption in favor of defendant No. 1.

(33) Unfortunately the evidence adduced by the defendants suffers from intrinsic infirmities and vital lacuna. As has already been seen there is no shred of evidence with regard to factum of adoption and all that has come on the record is that Lachhi Ram Sood, deceased, was acknowledging defendant No. 1 to be his adopted son and he was treating him as his son. It is well settled that under Hindu Law the physical act of giving and receiving is absolutely necessary to the validity of adoption. This is not so only in the case of twice-born classes but also in the case of Shudras. This ceremony is of the essence of adoption and law does not accept any substitute for it. Mere expression of consent or execution of a deed of adoption, though registered but not accompanied by an actual delivery of the boy, does not operate as a valid adoption. In Lakshman Singh Kothari v. Smt. Rup Kanwar, : [1962]1SCR477 (7), the Supreme Court stated the legal position thus :

'UNDER the Hindu Law, whether among the regenerate casts or among Sudras, there cannot be a valid adoption unless the adoptive boy is transferred from one family to another and that .can be done only by the ceremony of giving and taking. The object of the corporeal giving and receiving in adoption is obviously to secure due publicity. To achieve this object it is essential to have formal ceremony. No particular form is prescribed for the ceremony, but the law requires that the natural parent shall hand over the adoptive boy and the adoptive parent shall receive him. The nature of the 'ceremony may very depending upon the circumstances of each case. But a ceremony there shall be, and giving and taking shall be part of it.'

(34) Reference in the said judgment was, inter alia, made to the leading decision of Judicial Committee in Shoshmath Ghose v. Krishnasundari Dasi, 2nd 6 Cal. 381(8). In the said case the question arose whether there can be, according to Hindu Law and usage, adoption simply by deed and without corporeal delivery and acceptance of the adopted child which almost universally treated as an essential part of adoption in Dattaha form. Their Lordships of the Privy Council answered the question in the negative. It is thus abundantly clear that ceremony of giving and taking constitutes an essential part of adoption amongst Hindu and onus lay heavily on the defendants to prove the fact of adoption by cogent and reliable evidence. In this context I may extract below the relevant sentence from Article 512 of Mulla's Hindu Law:

'BUT the evidence in support of an adoption must be sufficient to satisfy the very grave and serious onus that rests upon any person who seeks to displace the natural succession by alleging an adoption.'

This statement of law has- been quoted with approval by the Supreme Court in a recent decision in Banwari Lal v. Tirlok Chand & others, : [1980]1SCR998 (9), upon which reliance has been placed by council for both, the parties, although for different reasons.

(35) The facts of the case Banwari Lal v. Tirlok Chand & others were that one Gobind Ram died in 1952 leaving a will under which his estate (specified in the will) were to his brothers widow Smt. Chhoti as a life tenant with no power of alienation and after her death it was to go to Banwari Lal, his adopted son. Smt. Chhoti died in 1955 leaving a will under which she also devised the entire properties to Banwadi Lal, described as Gobind Ram's son. The said will was held to be genuine and operative so as to constitute Banwari Lal as heir and-owner of properties of Gobind Ram but his adoption was not upheld by the High Court in appeal. The Supreme Court observed that :

'IN this view of the matter, the failure to establish the stated relationship is not decisive of the point under consideration, and as remarked by the High Court, it appears that the testator made the will not for the reason that he had in fact and lawful adopted Banwari Lal but for the reason that he treated Banwari Lal as an adopted son and was moved really by the service which the later had rendered to him. The relationship mentioned in the will was merely a description of the devisee as understood by the testator who executed the will in favor of the devisee not because of the relationship brought about by the adoption but by reason of feelings of affection which the devisee had earned by his association and assistance-'

(36) These observations in my view will aptly apply .to the facts of the instant case especially with regard to the description of defendant No. 1 as son of Lachhi Ram Sood, deceased, in the power of attorney. Ex. D8. Indeed the case of Banwari Lal stood Ob a better footing inasmuch as Gobind Ram had even executed a will bequeathing all his estate to him which was, in due course, to devolve on him on the death of-Smt.Chhoti and he had specifically described Banwari Lal as his adopted son. For reasons best known to Lachhi Ram Sood, decease, no such testamentary document has- been executed by him in favor of defendant No. 1 and he. was not even described as an adopted soft in the power of attorney. Thus, the rectal in this document cannot be treated as an admission by the deceased that defendant NO. 1 had been adopted by him and the only inference which may be warranted by .the material on the record is that defendant No. 1 was being treated as a son by Lachhi Rani Sood and the former was brought was and was living as a member of the later's family. In other words, it was a sheer restore of love and affection where he called defendant No. 1 his son.

(37) The learned counsel for the plaintiff has taken strong exception to the proof of certificate. Ex. D7. which, as stated above, purports to have been issued by the Principal, St. Stephen College, Delhi. The Signatures of the Principal on the said certificate have been proved by none else than defendant No. 1. However, turn reasons best known to the defendants they have not called either the Principal or any other employee of the College to prove this document and truthfulness of Its contents. In the absence of such evidence the contents of this document cannot be rated better than hearsay evidence. It is well settled principle of law that every party must produce best or the primary evidence in Support of his case. So, the admission form pertaining to defendant. NO. 1 and other relevant record would have constituted th& best eveidence to prove that defendant No. 1 was got admitted by Lachhi Ram Sood and he described the defendant as his son. The same remarks hold good with regard to the record Of Hampton Court School, Mussoorie, which too was not summoned and no Explanationn for the same is forthcoming. As held by a Division Bench of Bombay High Court in Sir Md. Yosuf & another v. D & another, : AIR1968Bom112 (10).

'THE evidence of the contents contained in the document is hearsay evidence unlesss the writer thereof is examined before the Court. An attempt to prove the contents of the document the proving the signature or the handwriting of the author thereof to set at naught the well recognised rule that evidence cannot be admitted. Even if the entire document is held formally proved, that does not among to a proof of the truth of the contents of the document. The only person competent to give evidence on the truthfulness of the contents of the document is the writer thereof.'

(38) I am in respectful agreement with the view taken by their Lordships and I Hold that no evidenciary value can be attached to the certificate. Ex. D7 and turn that matter to oral evidence document with regard to parentage of defendant No. 1 in the rrcords of hampton court , Mossoorie.

(39) The learned counsel for the defendants has, however, invited my attention to a passage oceutinng in the same Article 512 of Mulla's Hiadu Law, which states that :

'BUT when there is a lapse of 55 years between the adoption and its being questioned, evety allowaace for the absence of evidence to prove such fact HAust be favorably entertained. It stands to reason that after a very long term of years, and a varitity of transactionsof open life and conduct opon the footing that the adoption w&s; a valid act, the burden must rest heavily upon him who challenges its validity.

(40) No doubt their Lordships of the Supreme Court did not take exception to this statement of law and they even observ'ed in Banwari Lal that :

'DIFFERENT considerations may have prevailed if ^foof of aMoption Was requirefl to be submiltad to Cotttt after a Veff loag period of its having taken place.'

(41) But the stage in this case has not been set for giving allowance to the defendant turn the absence of evidence to proVe the factum of adoption even though according to the defendants such adoption took place in early thirties and it may be well contended that no ocular witness is available. In Voletl Venkata ftamarao v. KesapBragada Bhaskar^rao, : [1970]1SCR301 , such an allowance was made but it may be noticed that the factum of adoption by performance of requisite ceremonies was duly established and besides that there was evidence that during his life time the adopted son was recognised by every member of the family as the adopted son of the deceased adoptive fatter. Se, their Lordships held that : Having regard to the long lapse of time and the iecognition of Rajeswararao as the adopted son of Bhaskara Rao, the strongest presumption arises in favor of the validity of the adoption.'

(42) Their Lordships then quoted with approval Article 512 of Mulla's Hindu Law. It may be relevant to mention here that the main challenge in that case was that the widow of the deceased who had adopted Rajeswararao was about 14 years of age only at that time. The circumstances of the instant case, however, are quite distinguishable. In the first instance, the defendants have not examined any close relative of Lachhi Ram Sood. deceased, to prove that he was accepted and treated as an adopted son of Lachhi Ram Sood. Admittedly the deceased adopted one Sharda as his daughter and her marriage too was performed by him. However, she has not been examined as a witness and no Explanationn for the same is forthcoming. She would have been the best witness to testify that defendant No. 1 was adopted son of Lachhi Ram and that he was so accepted by members of his family. Strangely enough no property of Lachhi Ram Sood, deceased, was mutated in her favor although under law she would have inherited the estate of the deceased equally with defendant No. 1. The Explanationn given by the defendant is that she had relinquished her rights in the property left by Lachhi Ram Sood. However, he admits that no deed of relinquishment was ever executed by her. It is noteworthy that defendants have placed on the record a copy of jamabandi which is a record of rights for the year 1978-79 in respect of village Garli Khas. This shows that Lachhi Ram Sood had two brothers, namely, Shri Rabhal Ram and Chegan Ram and all of them owned some land in that village. After the death of Lachhi Ram Sood, the name of defendant No. 1 was mutated as his sole heir. It is not intelligible how the mutation of successsion was sanctioned in favor of defendant No. 1 alone without relinquishment in writing of her right and interest in the estate of deceased by Smt. Sharda. The only possible Explanationn is that this fact was never brought to the notice of the Revenue Authorities. This document further shows that sons, daughters and widows of both the brothers of Lachhi Ram Sood are still alive. Surely, defendant No. 1 could have examined anyone of them to prove that he was an adopted son of Lachhi Ram Sood. Further, as has been noticed above, Lachhi Ram Sood had a sister living at Rama Krishna Puram. Neither she nor her husband has been examined to establish that defendant No. 1 had been accepted by the close relatives of the deceased as his adopted son. No Explanationn for the same has been tendered either, although it was admitted by defendant No. I himself that the sister of Lachhi Ram Sood was alive when he was under examination. Even the parentage of defendant No. 1 has not been established with an element of certainty inasmuch as excepting the bald statement of defendant No. 1 himself there is no iota of evidence on the record to show that he is son of Rabbal Ram, brother of Lachhi Ram Sood, deceased. It looks somewhat curious that Rabbal Ram, assuming that he was natural father of defendant No. 1, would have given the latter in adoption to his brother when he himself had no other child; on defendant's own showing Rabbal Ram entered into second marriage sometime in 1940 i.e. after about 8 or 9 years of birth of defendant. No. 1. While it is quite intelligible that defendant No. 1 was brought up by Lachhi Ram Sood because of the death of his mother shortly after his birth and absence of any female member in the house of Rabbal Ram, but it passes one's comprehension that he would have given his only child in adoption to Lachhi Ram. Anyhow, there are circumstances which cast a cloud over the genuineness and authenticity of defendant's version that he is adopted son of Lachhi Ram Sood. deceased. In the circumstances, the bare statements of some of' the Public Witness s that Lachhi Ram had told them that defendant No. 1 was his adopted son will have little or no evidenciary value because it is not difficult to procure witnesses who would be willing to say so when they have otherwise no right or interest in the estate of the deceased. Thus, in view of the serious lacuna and infirmities in the evidence adduced by defendant No.. .1. which falls .short of proving not only the factum of adoption but also recognition of defendant No. 1 by the kith and kin of the deceased as the latters adopeted son, it is no not possible to give a finding in favor of bids adoption.

(43) Lastly, it is to be seen whether defendant No. 1 was financially dependent on the deceased person on the date of las death, for Explanationn Ii provides that if a. person who acquires by succession the right to continue in possession after the termination of tenancy was not financially dependant on the debased tenant, such successor will acquire statutory tenancy protection only for a limited period of one year or till his death whichever occurs earner and thereafter the right of such successor would be extinguished. Here again the defense evidence is scanty inasmuch as there is only the bald statement of defendant No. 1 himself to the fact that he was financially dependent upon Lachhi Ram Sood, deceased and he i.e. defendant No. 1 never had any independent source of income. According to him, he had been assisting his father in the business of M/s. Photo Service Co. and he had also been looking after the insolvency proceedings on behalf of his father i.e. Lachhi Ram Sood. As regards the photocounter at Super Bazar, he has explained that the said counter was of M/s. Photo Service .Co., which was running the counter on certain terms which were reduced into writing and he never had such a counter in the Super Bazar of his own. In this context he has alluded to letter dated 6th January,1969,Ex. D11, received by them from Super Bazar saying that he and his father Lachhi Ram Sood had negotiated with the General Manager of the Super Bazar for running the counter.

(44) Daring cross-examination defendant No. 1 stated that the Super Bazar counter was taken by M/s. Photo Service Co. in 1969 and it continued working up to August 1976. He admitted having received letter dated 28th January, 1971, of which Ex. P. 19 is the photostate copy. A perusal of this letter revesals that as per recitel No. 1 the benefit of the said agreemeknt which was to remain in force for one year with effect from 28th January, 1971, was to be personal to Shri Dev Raj. Sood and it was not in any mannner assignable by hin and it and it was not capable of devolution or vesting upon any other person or institution either. Significantly this letter was addressed to defendant No. 1 by name although the address was given c/o M/s. Photo Service Co., Kashmere Gate. It is thus difficult to escape the conclusion that at the relevant time i.e. during the last days of Lachhi Ram Sood, deceased, defendant No. 1 wag himself running the photo counter at Super Bazar although he had given his address as c/o M/s. Photo Service Co. There is nothing whatsoever in this letter which can be construed as implying that benefi of the agreement was to go to M/s. Photo Service Co. as such. Indeed it would appear that defendant No. 1 saw to it that benefit of the contract went to him personally and none else. However, for reasons best known to him, he has not disclosed what income be was deriving from the said counter. This information being within his special knowledgs only he could impart the same to the Court.

(45) Besides that there are other circumstances which would warrant an inference that at the relevant time defendant No. 1 could not be financially dependent on Lachhi Ram Sood, deceased. Admittedly, an insolvency petition was moved by Sh. Ram Murty and other creditors of Lachhi Ram Sood in June 1968, copy Ex. P1 and an interim Receiver was appointed by the Insolvency Judge. Consequently, both the shops of M/s. Photo Service Co. i.e. one at Kashmere Gate which is in dispute and the other at Connaught Place were sealed by the interim Receiver. Lachhi Ram Sood then settted with his editors during the pendency of the insolvency proceedings at 50P per rupee of the debts owed by him, Ex. P2 being copy of the compromise. It has been admitted by defendant No. 1 during the course of cross-examination that Lachhi Ram Sood was not in a position to pay the entire debts and he surrenedered the tenancy rights in the premises at Connaught Place. Subsequently, one Gian Chand, another creditor too moved an insolvency petition against Ladhi Ram Sood and it was only thereafter that the premises in dispute were unsealed under orders dated 15th April. 1971, of the Insolvency Judge, copy Ex. P18. Even Fateh Chand, DW1, admitted during the cross-examination that financial position of Lachhi Ram Sood deteriorated since 1968 and he had not been in a position to pay off his creditors and employees. His business was practically closed and he was not earning anything. According to DW6, Lachhi Ram Sood was ailing when he met him sometime in 1968-69 and he was confined to bed. It is thus crystal clear that Lachhi Ram Sood was a financial wreck at the time of his death or even before that. Under the circumstances, there was no question of Dev Raj being financially dependent upon him; it may be other way round. This appears to the precise reason why defendant No.1 saw to it that the counter at Super Bazar was allotted to him personally rather than to M/s. Photo Service Co. .as such as that might have created some complieation. Indeed, Dw 1 admitted in unequivocal terms that Lachhi Ram Sood was not doing any business when his two shops were lying sealed and that he approached him i.e. the witness for financial help during those days. He further admitted that Dev Raj had taken a counter at Super Bazar and he was carrying on his business at the said counter up to 1975. Thus, Lachhi Ram Sood was himself in miserable condition and had no source of income whatsoever for a few years before his death. So, the question of his giving financial support to defendant No. 1 and his family did not arise.

(46) The true import of the expression 'not financially dependent on the deceased tenant' occurring in Explanationn Ii of clause (1) came up for consideration recently before a Division Bench of this Court in Mrs. Krishna Prakash & others v. Mrs. Shanta Chenoy & another, (1980) 2 Del 854 and their Lordships observed as under :

'THE intention and the using of the expression not financially dependent on the deceased person on the date of his death' seems to be to mark a distinction bet- ween a legal heir of the tenant who is in a position to maintain himself without financial help from the deceased tenant and another heir who may not be in a position to do so without any financial help from the deceased tenant on the date of his death. What is to be seen is whether substantially speaking the heir was financially in a position to maintain himself or herself without any help from the tenant in case it was necessary for the heir to do so on the date of the death of the tenant. In the instant case. the financial means of the appellant was within her special knowledge and, thereforee, the burden of proof was on her to show what those means were. The appellant has not chosen to come out truly regarding what her income was or how much salary she was being paid and her conduct was far from candid. An unfavorable view or her veracity, thereforee, emerges from the way the has deposed about her income and. thereforee, the finding of the single judge that the appellant could not be said to be financially dependent on the deceased tenant on the date of his death is based on sufficient evidence and good reasons and need not be varied. The respondent has succeeded in proving that the appellant was not financially dependent on the deceased tenant on the date of his death.'

(47) The conduct of defendant No. 1 in the instant case is no better. He too has tried to suppress the true information with regard to the income from the photo counter at Super Bazar. It may also be mentioned that he is a Law Graduate and at one time he was even enrolled as a lawyer. So, by no stretch of reasoning it can be held that he was financially dependent on Lachhi Ram Sood. deceased, at the relevant time.

(48) That besides, the learned counsel for the plaintiff has raised an objection of preliminary nature to the consideration for this aspect of the matter on the ground that no such plea was ever raised by the defendants in their written statement. All that the defendants averred in their amended written statement dated 13th August, 1979, was that defendant No. 1 being the adopted son of late Lachhi Ram Sood was dependent upon him at the time of his demise in May 1971. Since there is no specife mention of financial dependence as such of defendant No. 1 on Lachhi Ram Sood. the argument advanced by the counsed for the plaintiff is that it may well be construed as dependentense for residence. In other words, it would imply that defendant No. 1 was dependent upon Lachhi Ram Sood for residential accommodation and the concept of financial dependence cannot be imported into this averment. Thus, invoking the provisionces Order Vi Rule 2 he has urged with all the vehemence at his command that no foundation for this plea having been land in the written statement the Court is debarred from giving any finding with respect to the same. Order Vi Rule 2 is the main rule laying down the fundamental principles of pleading. It requires that every pleading shall contain and contain only a statement in a concise form of the material facts on which the party pleading relies for his claim or defense as the case may be. but not the evidence by which they arc to be proved. It is well settled that the wards 'material facts mean all facts spott which the plaintiff's cause of action or the defendant's defense depends; in other words all those facts which must be proved in order to establish the existence of cause of action or defense. It is equally well settled that non-mention of material facts amounts to no pleading and, thereforee, no cause of action mises. i.e. to say if a party omits to state a material fact, a Court cannot give any decision on such fact. Reference in this context may be made to Adusumilli Gopalakrishnayya Garu v. Provinee of Madras, . Udhav Singh v. Madhav Rao Scindia : [1976]2SCR246 (14), H.D. Vashishta v. M/s. Glaxo Laboratories (1)(P) Ltd. : AIR1979SC134 (15) and Abdul Hamil v. Nur Mohammad, 1976 Rcj 738. In the last mentioned case eviction of the tenant was sought on the ground of bonafide requirement of the landlord under Section 14(1)(e), Delhi Rent Control Act. Unfortunately for the landlord he made no averment that he had no other reasonably suitable residential accommodation. Under the circumstances, it was held by Rangarajan, J. that :

'IT is manifestly not sufficient for the landlord to merely state that he requires the premises for his own occupation, yet another necessary fact which he has to prove is that he had no other reasonably suitable residential accommodation. Having regard to the avowed object of the enactment namely, to safeguard the tenant against arbitrary and unjust evietion the statutory safeguards arc conditions precedent which have to be strictly complied with before courts can exercise jurisdiction to order eviction.

(49) It will thus be seen that the rule that material facts should be pleaded is not a mere technicality and omission to observe it may prove fatal to the defense inasmuch as it was for the defendants to plead specifically that defendant No. 1 was financially dependent upon Lachhi Ram Sood, deceased, at the time of his death, as envisaged in Explanationn II. Notwithstanding this serious lapse on the part of the defendant, I have thought it just and proper to appraise the evidence on this point.

(50) To sum up, thereforee, I hold that defendant No. 1 has not been proved either to be adopted son of Lachhi Ram Sood, deceased or to be financially dependent on him. Hence, he is not entitled to the protection conferred by the amended definition of tenant' in the Act. Accordingly, both these issues are found in favor of the plaintiff. Issue-No. 8 This issue has not been preyed by the defendants and I see nothing apparently wrong with the valuation of the suit for purposes of court-fee and jurisdiction. Issue No. 9 The defendants having been found to be in unauthorised occupation of the premises in dispute after the death of Laclilii Ram Sood, the plaintiff is naturally entitled to 'mesne profits' which expression has been defined to mean profits which a person in wrongful possession of such properly actually received or might with ordinary diligence have received there from, together with interest on such profits, but shall not include profits due to improveinents made by the person in wrongful possession. It is nobody's case that the defendants made any improvements in the premises in dispute. So, the latter part of this definition is not attracted. On its plain language the question to be decided is the amount of profits which the wrong-doer while in possession received or which with due diligence, he might have received. In other words, the test to determine 'mesne. profits' is not what the plaintiff has lost by his exclusion, hut what the defendant has or might reasonably have made by his wrongful possession. This question was considered at length by a Division Bench of this Court in Hindustan Steel (Pvt.) Ltd. v. Smt. Usha Rani Gupta. : AIR1969Delhi59 (17) in that case too the property involved was governed by the provisions of the Act and as such its rent was controlled. Their Lordships alluded to several authorities and laid down the following rule

'THE problem has. thereforee, to be approached from the defendant's end. What has to be seen is what profits, if any. the defendant who is in wrongful possession of the property has actually received or might with ordinary diligence have received there from. There can be no doubt that in the case of property of which rent is controlled by Rent Control Act the plaintiff cannot Complain of having suffered any loss by his exclusion, beyond the rent for which the property is let out by him to the tenant holding over except to the extent of any permissible increase of rent under the Rent Control Act itself. but the only bearing which the evidence as to what the plaintiff in such a case might or would have made, on the question of mesne protits, is that it is relevant for the purpose of showing what the defendant might with reasonable diligence have received. How and in what way can any element of penalty on account of the conduct of the defendant who is found to have been contumaciously holding over enter into calculation of mesne profits. we are wholly unable to see.'

(51) The learned counsel for the plaintiff has placed reliance on some reported judgments of other High Courts but I need not refer to the same in view of the aforesaid authority of our own High Court which, it may be so stated with respect, i,s binding on me. Unfortunately, there is no evidence on record as to what is the standard rent of the premises in dispute. Hence, it will he necessary to hold further enquiry into the matter.

(52) As a result, I award a decree to the plaintiff for possession of property in dispute and mesne profits in accordance with Order Xx Rule 12, Code of Civil Procedure, as follows : (i) a final decree for possession of the properly in dispute against the defendants; (ii) a preliminary decree directing an enquiry as regards the rent/mesne profits for the period prior to the institution of the suit; and (iii) a preliminary decree directing an enquiry as to the amount of future mesne profits i.e. from the institution of this suit until the delivery of possession to the decree-holder or relinquishment or the possession by the judgment-debtor with notice to the decree-holder through the Court.

(53) A final decree in respect of (ii) and (iii) above shall be passed for masne profits in accordance with the result of such enquiry. The plaintiff shall also be entitled to costs in the suit as regards possession.

(54) The parties arc directed to appear before the Deputy Registrar on 14th October. 1981. for further directions. The suit will be listed for further proceedings as regards quantum of mesne profits.


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