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Krishan Kumar Jaggia Vs. Jag Mohan Bhardwaj - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 15 of 1978
Judge
Reported inAIR1986Delhi142; 28(1985)DLT193
ActsDelhi Rent Control Act, 1958 - Sections 14(1); Transfer of property Act, 1882 - Sections 105
AppellantKrishan Kumar Jaggia
RespondentJag Mohan Bhardwaj
Advocates: B.S.C. Singh, Adv
Cases ReferredMrs. Chinnamma Raini Guptara v. Dewan Harish Chand
Excerpt:
- - 105.a lease of immoveable property is a transfer of a right to enjoy such property made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor, who. she could not cook her meals and it was agreed that the respondent would supply her food in lieu of rent (11) learned tribunal after examining the evidence held that the appellant had failed to prove that the premises had been let out to the respondent by reason of his being in service or employment of smt......in its fold every tenancy. it contemplates special tenancy which could be conveniently called a service tenancy. the premises must have been let to the tenant by reason of his being in the service or employment of the landlord. the term 'by reason of' according to the chambers 20th century dictionary, new edition, means on account of, in consequence of. letting, to attract the provisions of clause (i) must be in consequence of the employment. the employment must in fact be a motive which actuated the landlord in granting the lease. (6) what is then the distinction between an ordinary tenancy and a service tenancy as contemplated in clause (i) (7) section 105 of the transfer of property act, defines the 'lease' as under: '105.a lease of immoveable property is a transfer of a right to.....
Judgment:

G.C. Jain, J.

(1) Smt. Ishwar Devi was the owner of the property No.P/13,Malviya Nagar, New Delhi. She let out a portion of the said property to the respondent Jagmohan Bhardwaj in April, 1963. She died on June 2,1968.

(2) Claiming that be had become owner and landlord of the premises by virtue of the will dated June 28.. 1966 the appellant, Krishan Kumar Jaggia on July 14, 1969, brought an application for eviction of the respondent from the said premises. Eviction was sought under clause (e) and (i) of the proviso to sub-section (1) of Section 14 of the Delhi Rent Control Act, 1958 (for short 'the Act').

(3) ADDL. Rent Controller on March 26, 1974 made an order for eviction of the respondent from the premises in suit on both the grounds. The Rent Control Tribunal reversing the findings of the Addl. Rent Controller allowed the appeal and dismissed the claim for eviction by his order dated October 26, 1977. Feeling aggrieved the appellant has filed the present appeal.

(4) Bawa Shiv Charan Singh, learned counsel appearing for the appellant did not press the claim of eviction on the ground of bonafide requirement. The claim for eviction, thereforee, survives, only under clause (i) which reads :

'(I)that the premises were let to the tenant for use as residence by reason of his being in the service or employment of the landlord, and that the tenant has ceased, whether before or after the commencement of this Act, to be in such service or employment.'

(5) To secure eviction under this clause the landlord must prove that the premises had been let to the tenant for use as a residence on account of bids being in service or employment of the landlord and (2) that the said tenant has ceased to be in such service or employment. Clause (i) does not take In its fold every tenancy. It contemplates special tenancy which could be conveniently called a service tenancy. The premises must have been let to the tenant by reason of his being in the service or employment of the landlord. The term 'by reason of' according to the Chambers 20th Century Dictionary, New Edition, means on account of, in consequence of. Letting, to attract the provisions of clause (i) must be in consequence of the employment. The employment must in fact be a motive which actuated the landlord in granting the lease.

(6) What is then the distinction between an ordinary tenancy and a service tenancy as contemplated in clause (i)

(7) Section 105 of the Transfer of Property Act, defines the 'lease' as under:

'105.A lease of immoveable property is a transfer of a right to enjoy such property made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor, who. accepts the transfer on such terms.'

(8) The essential elements of lease' according to this definition are (i) there must be a contract between the Lesser and the lessee ;(ii) subject matter of the lease must be immoveable property ; (iii) the duration of lease must be for a certain period express or implied or in perpetuity (iv) it must be for a consideration of a price paid or promised or of a money, a share of crops, service or any other thing of value. Every tenancy must necessarily have all these elements. In a service tenancy, however, there must. also be a relationship of master and servant between the Lesser and the lessee. The tenancy must have been created in consequence of such service. The employment must provide the motive for creating the tenancy.

(9) The averments made in the eviction petition regarding the claim under clause (i) read :

'(I)The premises were let to the Respondent by Smt. Ishwar Devi widow of R S. Sidhu Ram initially at the rate of Rs. 50.00 p.m. Soon after it was agreed that the Respondent will cook for Smt. Ishwar Devi and look after the landlady generally in lieu of rent. The premises came to be let to him for use as residence for reason of his being in service or employment of the landlady. Smt. Ishwar Devi died in Delhi on 2.6.1968 leaving a Will dated 28-6-1966 bequeathing the suit property to the petitioner. On the death of Smt. Ishwar Devi, the Respondent has ceased to be in service of the landlady.'

(10) RESPONDENT/TENANT in his written statement averred that the premises had been let out to him by Ishwar Devi on a monthly rent of Rs. 33.00 . She was suffering from tuberculosis. She could not cook her meals and it was agreed that the respondent would supply her food in lieu of rent

(11) Learned Tribunal after examining the evidence held that the appellant had failed to prove that the premises had been let out to the respondent by reason of his being in service or employment of Smt. Ishwar Devi. He observed :

'THE landlady was suffering from a serious ailment and was being shunned by her close relations due to the nature of her ailment. So, she depended on her tenant for her needs. The mere fact, that landlady had stopped charging rent from the appellant and in lieu of the rent, appellant had started supplying meals to the landlady and, even to some extent, looked after her other needs would not go to show that appellant was, at any time, in employment of the landlady. It cannot be, at all, argued that appellant had been let out the premises in question on account of his being in service or employment of the landlady.'

(12) Bawa Shiv Charan Singh assailed this finding. He urged that from the evidence on record it had been proved that after a few months of the creation of the ordinary tenancy the respondent-tenant agreed to cook meals, wash clothes and do other odd jobs of Smt. Ishwar Devi. Thus a relationship of master and servant came into existence. By reason of this new agreement ordinary tenancy stood converted into a service tenancy as contemplated by clause (i).

(13) As held by this Court in Mrs. Chinnamma Raini Guptara v. Dewan Harish Chand, 1972 Rcj 195 the word 'let' used in clause (i) does not mean only first letting and not a subsequent one. A new lease can come into existence between the landlord and tenant during the currency of the existing lease. An ordinary tenancy can be converted into a service tenancy if there is a proper agreement in this behalf. However, in the present case learned Tribunal, in my view, was right in holding that no such service tenancy was created. The only change in the terms of the contract of lease was about the form of consideration. Instead of payment of Rs. 50.00 or Rs. 35.00 per month as rent the respondent according to the appellant's averments in the eviction petition, agreed to cook food and generally look after the landlady. This change, in my view, by itself, would not convert the ordinary tenancy into a service tenancy. It is for the reason that under Section 105 of the Transfer of Property Act, consideration could also be paid by rendering services. The allegation in the eviction petition is that respondent agreed to cook food and look after the landlady generally in lieu of rent and, thereforee, premises came to be let by reason of his being in service or employment. From the change in the form of consideration no such inference could be raised. It cannot be presumed that the employment was the motive to let.

(14) Service tenancy, generally determines with the termination of the contract of service as was found in the case of Mrs. Chinnamma Raini Guptara (supra). At page 198 of the judgment it was observed :

'BY the new terms, the tenant was not to pay any rent to the landlord and was to stay in the premises only during the currency of the employment. The landlord was on the other band to pay the tenant Rs. 30.00 for her services. The new terms are thus incompatible with an ordinary tenancy if it existed between the parties prior to March, 1962.'

(15) This is not the case here. There was no averment even that under the new arrangement the respondent was to remain in the premises only during the currency of the employment. This most important ingredient is missing. There is no other circumstance made out to prove that service provided the motive for the letting. The ordinary tenancy created in favor of the respondent in the beginning, thereforee, was not converted into a letting by reason of service or employment within the meaning of the provisions contained in clause (i).

(16) For all these reasons I find no merit in the appeal and dismiss the same. The parties are, however, left to bear their own costs.


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