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Naubat Rai Ahluwalia Vs. Shyam Sunder Khanna, - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 104 of 1980
Judge
Reported in1980(1)DRJ138
ActsDelhi Rent Control Act, 1958 - Sections 14(1); Succession Act, 1925 - Sections 2
AppellantNaubat Rai Ahluwalia
RespondentShyam Sunder Khanna, ;phool Rani, ;usha Rani, ;sudarshan Kumari, ;rana Pratap Kohli and ;shashi Bala
Advocates: P.N. Lekhi,; V.B. Andley and; Rajinder Mathur, Advs
Cases ReferredKaubat Rai Ahluwalia vs. Smt. Phool Rani
Excerpt:
.....: landlord acquiring property under a will which disentities other heirs, previous will whereby property bequeathed to sanatan dharam pritinidhi sabha revoked, objection by tenant that all heirs should have filed the eviction plea over ruled.indian succession act, 1925, section 2 (b) : section 126 of the transfer of property act, 1882 : held :--previous will which stands revoked was not a deed of gift hut was a will which operates after the death of the testator. - - the tenant-appellant appealed before the tribunal but failed. narain dass, general secretary of the sabha be and is hereby authorised to do all things and acts in pursuance of this resolution as well as give a copy of this resolution duly authenticated by him for registration in the office of the sub-registrar or..........will dated 15/6/1965 by which he revoked the said previous will dated 8/12/1963 and bequeathed the suit property to his only son shyam sunder khanna, respondent no. 1. on 29/5/1973 eviction application under section 14(1)(e) of the act, out of which this appeal has arisen, was filed by shyam sunder khanna alone. but subsequently on the objection of the appellant other heirs of kishori lal khanna were added as respondents to the eviction application. the other heirs i.e. respondents 2 to 6 in their written statement admitted that shyam sunder khanna son of kishori lal khanna is the sole owner of the suit property under the will dated 16/6/1965. it was also admitted by them that kishori lal khanna executed a will while he was in sound and full disposing mind and got the same registered. it.....
Judgment:

Sultan Singh, J.

(1) This is tenant's appeal under Section 39 of the Delhi Rent Controller Act, 1958 (hereinafter called 'the; Act') Challenging the judgment and order of the Rent Control Tribunal confirming the order of eviction passed by the Additional Controller against the appellant under Section 14(1)(e) of the Act :

(2) The appellant has raised two points ;

(A)All the heirs of Kishori Lal Khanna deceased ought to hive filed the eviction application under clause (e) of Section 14(1) of the Act and that Shyam Sunder Khanna son of the deceased, alon.' is not entitled to institute the eviction case. (b) That Shyam Sunder Khanna, respondent No. 1 is not the owner. The relevant facts for the decision of these two questions are :

(3) The appellant, Naubat Rai Ahluwalia became a tenant from 28/6/1962 under Kishori Lal Khanna with respect to the suit premises. Kishori Lal Khanna died in 1968 leaving behind his son Shyam Sunder Khanna, respondent No. 1, Widow Smt. Phool Rani, respondent No. 2, two daughters Usha Rani and Smt. Sudershan Kumari, respondents 3 and 4 and two children of a deceased daughter respondents 5 and 6. In 1962 Kishori Lal Khanna filed an an application for evictioof the appellant under Section 14(1)(e) of the Act. This application was dismissed by the Additional Controller oil the ground that notice of eviction was not valid. The landlord filed an appeal but died during its pendency. His heirs as mentioned above were allowed to be substituted by the Tribunal where the appeal was pending. The Tribunal remanded the case and the Additional Controller after remand held that substituted persons required the premises bonafide for their occupation. The tenant-appellant appealed before the Tribunal but failed. He filed Second Appeal in this Court which was accepted on the ground that the right to sue did not survive to the heirs of the landlord Kishori Lal Khanna which judgment is reported as Kaubat Rai Ahluwalia vs. Smt. Phool Rani & others 1971 R.C.R. 797. On appeal the judgment of this court was upheld by the Supreme Court and it was held that the right to sue did not survive to the legal representatives under Section 14(1)(e) of the Act. The Supreme Court judgment is reported as Phool Rani & others vs. Naubat Rai Ahluwalia 19 73 S.C. 21 10. I may, however, mention that this judgment was not approved by the Supreme Court in its subsequent judgment in Shantilal Thakordas and others'. Chimanlal Maganlal Telwala, : [1977]1SCR341 . It appears that Kishori Lal Khanna made a registered Will dated 8/12/ 1963 when-in he bequeathed the property in suit under the tenancy of the appellant to Shri Sanatan Dharam Pratinidhi Sabha Punjab, Bhupindra Bhawan, Paharganj, New Delhi. Subsequently he executed another registered Will dated 15/6/1965 by which he revoked the said previous Will dated 8/12/1963 and bequeathed the suit property to his only son Shyam Sunder Khanna, respondent No. 1. On 29/5/1973 eviction application under Section 14(1)(e) of the Act, out of which this appeal has arisen, was filed by Shyam Sunder Khanna alone. But subsequently on the objection of the appellant other heirs of Kishori Lal Khanna were added as respondents to the eviction application. The other heirs i.e. respondents 2 to 6 in their written statement admitted that Shyam Sunder Khanna son of Kishori Lal Khanna is the sole owner of the suit property under the Will dated 16/6/1965. It was also admitted by them that Kishori Lal Khanna executed a Will while he was in sound and full disposing mind and got the same registered. It thus appears that there is no dispute about the execution of the Will dated 16/6/1965 by Kishori Lal Khanna bequeathing the property in suit to Shyam Sunder Khanna, respondent No. 1. The appellant however in his written statement raised the plea that Shyam Sunder Khanna is not the sole owner of the property in dispute and thereforee has no right to initiate proceedings of his own. The appellant by this Court in S.A.O. No. 178 of 1970 reported as Naubat Rai Ahluwalia (Supra). The relevant passage is as under :

'NOW,these legal representatives have a right to institute an application jointly and they have to prove that they jointly do not possess suitable accommodation. Each one of these co-sharers does not individually have the right to institute an application for ejectment of the tenant'.

(4) The argument of the learned counsellor the appellant on the second objection is that Kishori Lal Khanna bequeathed the suit property to Shri Sanatan Dharam Pratinidhi Sabha Punjab, Bhupindra Bhawan, Paharganj, New Delhi under the previous Will dated 8/12/1963. He says that the Will dated 8/12/1963 is not the Will but a deed of gift transfering the property in suit in favor of Shri Sanatan Dharam Pratinidhi Sabha Punjab, Bhupindra Bhawan, Paharganj, Delhi. The further argument is that as Kishori Lal Khanna gifted the suit property to the said Sabha he ceased to have any right, title and interest in the suit property and thereforee he was not capable of executing the Will datfed 16/6/1965 and bequeathing the suit property to his only son Shyam Sunder Khanna.

(5) As regards the first objection that Shyam Sunder Khanna alone has no locus stand to file the present application and that all other heirs of Kishori Lal Khanna ought to have filed the eviction petition in view of the observation made by this Court in the previous litigation judgment whereof is reported as Naubat Rai Ahlawalia (Supra) appears to be baseless. The learned Single Judge in the previous case besides making the observation as quoted above also observed as follows towards the end of the judgment :

'I,therefore, accept this appeal and set aside the ejectment order against the appellant. I, however, make it clear that this will not disentitle the present landlords from instituting an application for ejectment on their personal bonafide requirements'.

(6) In the previous judgment this court never determined as to who was the landlord-owner or in whose favor the property developed under the Will. It appears that after the death of Kishori Lal Khanna all the heirs were substituted when the dispute was pending before the Tribunal. The execution of the Will dated 16/6/1965 by Kishori Lal Khanna is not challenged. Shyam Sunder Khanna derives his title as owner-landlord under this Will and thereforee he alone has a right to institute the eviction application. This Will specifically revokes the previous Will dated 8/12/1963. Thus I hold that Shyam Sunder Khanna alone has a right to institute the eviction application subject however to the question whether the property was gifted by the deceased to the said sabha under the Will dated 8/12/1963 which question is to be decided under the second objection.

(7) With regard to the second objection that Shyam Sunder Khanna is not the owner of the property, the argument of the learned counsel for the appellant is that this property had already been gifted to the sabha. For the purposes of determining whether the property was gifted to the sabha, the first question -arises whether the contents of the Will dated 8/12/1963 stand duly proved and if so whether the document .'.mounts to a gift of the suit property by the deceased to the sabha. On record there is a certified copy of the registered Will dated 8/12/1963 which is marked 'A'. A clerk from the office of the Sub-Registrar appeared as a witness who deposed that the same was a certified copy of the Will. The question is whether the appellant is entitled to lead secondary evidence. Admittedly no notice was given by the appellant to respondent No. 1 requiring him to produce the original Will dated 8/12/1963. However, from the reply on behalf of the landlord to the tenant's application for amendment of the written statement it appears that the landlord admitted the previous Will dated 8/12/1963 and pleaded that it was cancelled by the subsequent Will dated 16/6/1965. Thus the landlord-respondent No. 1 admitted in writing in his pleading the 8/12/1963. The relevant portion of Section 65 of the Indian Evidence Act, 1872 is as under :

'S. 65, Secondary evidence may be given of the existence, condition, or contents of a document in the following cases :- (a) x x x ('b) When the existence, condition, or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest; (c) x x x (d) x x x (e) x x x (f) When the original document of which a certifide copy is permitted by this Act, or by any other law in force in India to be given in evidence ;

Section 6, 5 of the Indian Evidence Act further provides that in case covered by clause (f) a certified copy of the document, but no other kind of secondary evidence is admissible. It thus appears that when the landlord admits the existence of the original Will in his pleading, the tenant-appellant is entitled to give secondary evidence of its contents. The objection however is that no notice was given by the appellant as required by Section 66 of the Indian Evidence Act. Section 66 of the Indian Evidence Act reads as under :

'S66. Secondary evidence of the contents of the documents referred to in Section 65, clause (a) shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, (or to his attorney or pleader) such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case: Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases or in any other case in which the Court thinks fit to dispense with it:- (1) xxx (2) When from the nature of the case, the adverse party must know that he will be required to produce it; etc.'.

(8) Notice under Section 66 of the Evidence Act is required to be given or dispensed with in cases covered by clause (a) of Section 65 of the Evidence Act. No notice is required to be given if secondary evidence is admissible underother clauses of Section 65 of the Evidence Act. There is nothing on record to show that original Will dated 8/12/1963 is in possession of respondent No. 1. Clause (a) of Section 65 of the Evidence Act is thereforee not applicable. In fact secondary evidence of the said Will is admissible under Section 65(b) of the Evidence Act. It, thereforee, appears that it was not necessary for the appellant to give any notice to respondent No. 1 under Section 66 of the Evidence Act for production of the original Will. The next question is whether the certified copy of the registered document can be taken on record without further proof. As already stated, the execution of the original document is admitted and not denied by respondent No. 1. Section 57(5) of the Indian Registration Act, 1908 reads as under :

'S. 57(5) : All copies given under this Section shall be signed and sealed by the registering officer, and shall be admissible for the purpose of proving the contents of the original documents'.

(9) Under this provision the certified copy of the registered document is admissible for the purpose of proving the contents of the original document. Thus the certified copy of the Will dated 8/12/1963 marked as 'A' is admissible without further proof and it proves the contents of the original document. The next question is what is the true nature of this registered Will dated 8/12/1963 as regards the property in suit. The deceased Kishori Lal Khanna after giving the details of his moveable and immoveable property in suit, gives his reasons why he does not want to bequeath his properties to his heirs, and makes provision for his unmarried daughter Usha Kumari and for the residence of his wife. He also makes provision lor payment of Rs. 1000.00 to his grand children of the deceased daughter Tilak .Raj. As regards remaining assets which admittedly include the suit property he bequeaths the same to Shri Sanatan Dharam Pratinidhi Sabha Punjab, Bhupindra Bhawan, Paharganj, New Delhi. Abare reading of the document i.e,the Registered Will dated 8/12/1963 goes to show, it is not a gift and that it is a Will within the meaning of Section 2(h) of the Indian Succession Act, 1925 which reads as under:

'S. 2(h) 'Will' means the legal declaration of the i kntention of a testator with respect to his properly which he desires to be carried into effect after his death'.

(10) In order to determine this question it is desirable to reproduce in extenso certain portions of this document :

'8.I now make the following bequests in respt-of my assets mentioned above or whatever assets of mine shall remain at the lime of my death. Be it noted that as long as I am alive I shall have full power of control and or disposition over all the said assets namely I can sell mortgage, transfer or otherwise alienate or dispose off or any of my said assets, either with or without consideration to any person or utilise and consume them for my maintenance and dependents. Similarly J shall have power during my life to convert all or any of the above assets into any other forms of assets Accordingly the assets that ore left after my death shall be the subject, matter of the following bequests which shall become effective subject to the condition in respect of each beneficiary. (a) xx xx . (b) x x x x (c)x x x x (d)x x x x 8(a) I bequeath my renaming assets, after payment to legacies and bequests meationed above 7 (a) to Shri Sanatan Dharam Pratinidhi Sabha Punjab, Bhupindra Bhawan, Paharganj, New Delhi. The said remaining assets shall be set apart and income thereof applied to the activities of the said Sanatan Dharam Pratinidhi Sabha, Punjab, New Delhi. (b) The expenses of my cremation, ii) testamentary expenses for obtaining probate of this Will and iii) the bequest made in favor of my daughter Usha Kumari and grand children mentioned above shall rank in priority, in the order of they are mentioned over the bequests if residue of my assets in favor of the said Sanatan Dharam Pritinidhi Sabha, Punjab, Bhupindra Bhawan, Paharganj, New Delhi.

(11) For due and proper carrying out and execution of the bequests and objects of this Will as mentioned above, I appoint Shri Sanatan Dharam Pratinidhi Sabha Punjab, Bhupindra Bhawan, Paharganj, New Delhi as executor Trustees under this Will. The copy of the resolution, duly attested, of the executor Trust agreeing to accept duties, responsibilities and rights under with Will is enclosed.

(12) The said Executor Trustee after obtaining the necessary probate of this Will, shall call in, collect or take possession, legal or physical, of all my assets that may be left after my death. After meeting my 'cremation and testamentary expenses and dispensing the legacies as mentioned above, the residue of my assets shall remain in the effective control and dis-opposition of my said Executor Trustee who shall have the following power for management, control and disposition of the said assets vested in them.' A copy of the resolution referred to in para 10 of this Will is also a part of this document which appears to have been submitted along with the Will for registration. This resolution is reproduced the end of the document and reads,under;

'READWill dated 8/12/1963 of Shri Kishori Lal Khanna, M.A.LL.8. son of .ate Shri Dhari Lal and resident of H-337, New Rajinder Nagar, New Delhi bequeathing all his assets (barring a few minor bequests in favor of his grand children) in favor of Shri Sanatan Dharam Pratinidhi Sabha, Punjab, New Delhi and resolved that the assets along with duties and obligations detailed in the said will, be and are hereby accepted, and further resolved that R. B.Pt.Narain Dass, General Secretary of the Sabha be and is hereby authorised to do all things and acts in pursuance of this resolution as well as give a copy of this resolution duly authenticated by him for registration in the office of the Sub-Registrar or Registrar of Assurance, Delhi.'

(13) The learned counsel for the appellant submits that the contents of this Will as re-produced above amount to a gift of the property to the Sabha which was accepted by the Sabha vide the said resolution. His argument is that the word 'bequeath' in para 8 of the above Will means transfer of property to the Sabha. In other words he says that it amounts to conveyance of a property in present to the Sabha. He further says that under Section 122 of the Transfer of Property Act, 1882 'gift is the transfer made voluntarily and without consideration, by one person, called the donor, to another, called the donee and accepted by or on behalf of the donee. He further submits that such a transfer is to be effected by a registered instrument signed by or on behaifa donor and attested by at least two witnesses. The registered document of 8/12/1963 is signed by Kishori Lal Khanna and is attested by two witnesses. It is also a registered document. So the argument is that this document is a gift of the property by the deceased to the sabha. He further says that the gift can be revoked or suspended in the circumstances mentioned in section 126 of transfer or property Act, 1882 and no such circumstance exists. This Section is as under: ' S. 126: The donor and donee man agree that on the happening of any specified event which docs not depend on the will of the donor a gift shall be suspended or revoked; but a gift which the parties agree shall be revocable wholly or in part at the mere will of the donor is void wholly or in part, as the case may be. A gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded. Save as aforesaid, a gift cannot be revoked. Nothing contained in this section shall be deemed to affect the rights of transferees for consideration without notice' The word' bequeath' means' leave by will'. It does not mean that the property is transferred or conveyed in present to another. The word ^bequeath' is used to convey the meaning and the intention of the executant regarding his property to bs carried into effect after his death.In para 8 of the will as re-pro. duced above, the deceased declares that he had full power of control and or disposition over all his assets buring his life time. Further he declares that the bequests made by him will be subject to the assets that may remain after his death. He further declares that he has full power to sell, mortgage , transfer, aeionate, dispose of any of his assets with or without consideration to any person he likes. Thus from para 8 it is crystal clear that the testator did not transfer any of his assets in favor of anybody during his life time by this document. In para 8 as reproduced above he requires the executor/trustee of the will to obtain the probate and in para 11 he declares that the trustee/executor would collect or take possession of all his assets that may be left after his death All these observations in para 8,9 10 and 11 of the will conclusively prove that there is no transfer or conveyance of the property in suit in favonr of Shri Sanatan Dharam Pratanidhi Sabha Punjab, Bhupindra Bhawan, Paharganj, New Delhi. On the contrary it clearly declares the intention of the testator how the property is to be dealt with after his death with in the meaning of section 2(h) of the Indian Succession Act, 1925 reproduced above.

(14) The principal test to be applied is, whether the disposition takes effect during the life time or the executant of the deed, or whether it takes effect after his demise. If disposition takes place during the life time it may be hold to be a gift but if it takes effect after his death then it is a will. From the contents of the contents of the will it is certain that the disposition takes effect after the death of the testator. The resolution of Shri Sanatan Dharam Pratinidhi Sabha Punjab accepting the bequest made by the deceased does not confer any right up on the sabha. The will dated 8/12/1963 admittedly stands revoked by the subsequent will dated 16/6/1965 and thereforee no right title md interest in the property in suit or in any other portion of the assets left by the deceased vests with Shri Sanatan Dharam Pratinidhi Sabha Punjab. It is admitted at the bar that since the death of Kishori Lal Khanna in 1968 the Sabha has not taken any action on the basis of this registered will dated 8/12/1963, I am, thereforee, of the considred opinion that the document dated 8/12/1963 does not make a gift of the suit property in favor of the sabha and that it was a will in favor of the sabha and that the will stands revoked by the subsequent will dated 16/6/1965 which was also registered in the off ice of the SubRegistrar. It is also argued by the learned counsel that there is a contradiction between para 8 and para 8(a) of the will reproduced above. He says that para 8 of the will refers to the disposition taking place during the .life time while para 8 (a) refers to the disposition to take effect after his death. I do not find any contradiction between the two paragraphs. As already stated the word' bequeath means leave by will'. In any case if we read she will as a whole no doubt remains that it is a disposition of the assets of the deceased to take effect after his death and not during his life time.

(15) Learned counsel for the respondent also submitted that if the will dated 8/12/1963 was a gift deed as alleged by the appellant, the certified copy marked as 'A' is not admissible in evidence. His argument is that the original document is not on record, that a gift deed requires stamp duty under the Indian Stamp Act, that admittedly the document dated 8/12/1963 does not bear any stamp duty and if the documents is unstamped, the same inadmissible under Section 35 of the Indian Stamps Act. He further says that when the original document is inadmissible for want of stamp duty, its copy cannot be received in evidence at all. He further submits that the secondary evidence i.e. certified copy is also not admissible even on payment of penalty and stamp duty as provided for in section 35 of the Indian stamp Act. I see force in this contention. I need not deel with this aspect of the matter any more as I am of the considered opinion that the document is not a gift deed but only a will.

(16) Thus I hold that respondent No. 1 is owner of the property in suit, that he alone was competent to institute the eviction application without impleading other heirs of Kishori Lal Khanna deceased. There is no infirmity in the judg- ment under appeal. There is no merit and the appeal is hereby dismissed with costs. Counsel fee Rs. 300.00


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