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JainuddIn Vs. Shrimati Gulab and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtRajasthan High Court
Decided On
Case NumberCivil Second Appeal No. 532 of 1971
Judge
Reported inAIR1975Raj25; 1974(7)WLN435
ActsStamp Act, 1899 - Sections 2(15); Code of Civil Procedure (CPC) , 1908 - Sections 9 - Order 21, Rule 16 - Order 23, Rule 3
AppellantJainuddin
RespondentShrimati Gulab and ors.
Appellant Advocate R.K. Kapoor, Adv.
Respondent Advocate S.N. Bhargava and; A.K. Bhandari, Advs.
Cases ReferredIn Rupchand v. Raghuvanshi
Excerpt:
.....providing execution of rent note--held, decree is not an instrument of partition.; it was not a suit for partition, nor a decree for partition has been passed. the decree merely provides that ramdas shall execute a rent note in favour of smt. gulab at the rate of rs. 50/- per month and shall pay one year e rent in advance for every calendar year.; i am unable to hold that the decree comes within the ambit of term 'instrument of partition'.; thus it is crystal clear that ex. 1 dated 14-1-1966 was not a decree for partition and the argument advanced by the learned counsel by treating the decree ex.3 as one of partition is devoid of force.;(b) landlord & tenant - suit for ejectment instituted by a hindu widow--widow dies during pendency of second appeal--whether suit comes to an end..........and for removal of defendant ramdas from management of the joint family business. it was not a suit for partition, nor a decree for partition has been passed. the decree merely provides that ramdas shall execute a rent note in favour of smt. gulaib at the rate of rs. 50/-per month and shall pay one year's rent in advance for every calendar year. it was further provided that if the rent was not paid as agreed, smt. gulab would be entitled to obtain actual posses-sion of the shop. but in any case she would not be entitled to mortgage or alienate the property in any way. no doubt, it is true that the rent payable by ram-das was in the nature of maintenance for his brother's wife viz. the plaintiff smt. gulab. there is also no doubt that so long as ramdas continued paying rs. 50/-per.....
Judgment:

C.M. Lodha, J.

1. This is a second ap-peal by one Jainuddin, an alleged subtenant, whose appeal from the judgment and decree bv the trial court dated 12-3-1970 was dismissed by the learned Additional Civil Judge, Aimer.

2. The appellant was admittedly inducted as a tenant by the defendant No. 2 Ramdas, who died during the pen-demcy of this litigation and is now represented by his heirs respondents Nos. 2/1 to 2/7. The suit was instituted by Smt. Gulab for ejectment in respect of the premises in question against Ramdas alleging him to be her tenant, and Heeralal and Jainuddin, alleged to be his sub-tenants. Smt. Gulab was Ram das's brother's widow. She too has died during the pendency of his appeal and the heirs of Ramdas have been treated as her legal representatives,

3. The dispute between the par-ties lies within a narrow compass. Smt. Gulab had, previously instituted a suit for rendition of accounts and for removal of defendant Ramdas from the management of the joint family business and the matter ultimately came up before this Court vide Civil Regular First Appeal No. 92 of 1959 Ramdas v. Smt. Gulab. It was decided on the basis of a compromise submitted by both the parties. The decision of the High Court dated 14-1-1966 has been placed on the record. The High Court passed decree in terms of compromise. Since a lot of argument has been advanced on the basis of the terms of the compromise incorporated in the decree and in fact the decision of this case undoubtedly rests upon the interpretation of these terms. I think it worthwhile to reproduce the relevant terms of the compromise decree:

'(1) That Ramdas shall execute a Registered Rent-deed @ Rs. 50/- per month in favour of Mst. Gulab in respect of the shop situated in Durgah Bazar, Aimer and more particularly described in the Will of Raghunathii dated 20th March. 1934. The rent in respect of the suit shoo shall be payable in advance for one year in the month of December in every preceding calendar year. For the year 1966 Rs. 600/- as rent shall be paid to Mst. Gulab unto 31st January. 1966, while in all the subsequent years during the lifetime of Mst Gulab it shall be payable upto 31st December of each preceding calendar year. The rent deed shall also be executed upto 31st January, 1966 by Ramdas.

(2) That it is agreed that in case the rent is not paid as stipulated above up-to the end of Mardh of each calendar year. Mst. Gulab shall be entitled to obtain actual physical Possession over the aforesaid shop in execution of the decree,

(3) That in all events. Mst. Gulab shall be entitled to enjoy only the rent of the shop in question during her life time. She will not be entitled either to mortgage or alienate the property in any manner whatsoever nor she will be entitled to burden the property in any manner whatsoever. After the death of Mst. Gulab the aforesaid shop shall revert to Shri Ramdas. his wife and his sons.

(4) That Mst. Gulab shall continue to to reside in the four rooms in the family residential house in Mohalla Khatola Pole, Aimer and two rooms of the house at Pushkar, particularly described in the codicil of Shri Raghunathji dated 24-1-1943 at Nos. 1 to 6, Mst. Gulab will also not be entitled to mortgage, alienate or burden in any manner the aforesaid rooms which have been given to her purely for the purpose of her own residence. After the death of Mst. Gulab these rooms will also revert back to Shri Ramdas and his wife and sons. The possession of Mst. Gulalb over the above-mentioned rooms shall not be disturbed during her lifetime by any of the parties.

(5) That it may be clearly understood that the shop situate in Durgah Bazar and the rooms mentioned in para 4 above over which possession is being given to Mst. Gulab as maintenance-holder would not be liable for any debt of Mst. Gulab and any charge, alienation etc. made by her of the aforesaid property would be void and will not be binding on his family.'

4. The case of the plaintiff Smt. Gulab as set out in the plaint was that Ramdas without her consent and permission sub-let, assigned or Parted with possession of a part of the suit property to one Fida Hussain, father of the present appellant Jainuddin. Therefore, she prayed for a decree for eviction against the alleged tenant Ramdas as well as the sub-tenants. The suit was resisted by Ramdas who filed his written statement on 8-12-1969. The present defendant-appellant Jainuddin also filed his written statement on 20-2-1970 almost on identical grounds. However, on 23-2-1970 the plaintiff and the defendant No. 1, Ramdas, arrived at a compromise and it was prayed by a written application signed by both the parties dated 23-2-1970 that a decree for ejectment may be passed against Ramdas on the ground of subletting. It was stated before the trial court on behalf of the present appellant that even though defendant No. 1 compromised with the plaintiff, he would still contest the suit. Consequently arguments were heard and the learned trial court by its judgment dated 12-3-1970 decreed the plaintiff's suit for ejectment against all the defendants. As a read stated above, the judgment and decree by the trial court were upheld by the learned Additional Civil Judge Aimer. Hence this appeal by defendant Jainuddin.

5. The first contention raised on behalf of the appellant is that Ramdas has been treated as a tenant of Smt. Gulab on the basis of the decree by the High Court dated 14-1-1966, marked Ex. 1, but since this decree is not stamped, it is inadmissible in evidence and cannot be looked into. In this connection reliance has been placed by the learned counsel on Schedule I, Article 45 and Section 2(15) of the Stamp Act, and the following cases: Kapila Bai v. H S. Madhava Rao. AIR 1957 Myg 71. Probhat Kumar v. Shanti Ranjan, AIR 1957 Cal 375 and Dan Kuer v. Sarla Devi. AIR 1947 PC 8.

6. There is no gain-saying the fact that in a partition suit no legal title would accrue in favour of a party on the basis of a final decree even though passed in terms of the compromise unless the final decree is engrossed on the requisite stamp paper. But the important question in the present case is whether Ex. 1 comes within the definition of an instrument of partition as defined in See-tion 2 (151 of the Indian Stamp Act, 1899. It is not disputed before me that the suit instituted bv Smt. Gulab was one for rendition of accounts and for removal of defendant Ramdas from management of the joint family business. It was not a suit for partition, nor a decree for partition has been passed. The decree merely provides that Ramdas shall execute a rent note in favour of Smt. Gulaib at the rate of Rs. 50/-per month and shall pay one year's rent in advance for every calendar year. It was further provided that if the rent was not paid as agreed, Smt. Gulab would be entitled to obtain actual posses-sion of the shop. But in any case she would not be entitled to mortgage or alienate the property in any way. No doubt, it is true that the rent payable by Ram-das was in the nature of maintenance for his brother's wife viz. the plaintiff Smt. Gulab. There is also no doubt that so long as Ramdas continued paying Rs. 50/-per month he would not He evicted but there is a condition in the decree that in case the rent was not paid as stipulated Smt. Gulaib would be entitled to get physical possession of the property. But in any view of the matter. I am unable to hold that the decree comes within the ambit of term 'Instrument of Partition'. Admittedly, a suit for partition was later on brought by Bhanwar Lal against Ram-das and others and a final decree for partition was passed vide judgment of this Court dated 28-1-1970 in S. B. Civil First Appeal Nq. 58/1969: Bhanwarlal v. Ramdas and this decree was engrossed on a stamp paper. A certified copy of this decree has been placed on the re-cord of this Court. Thus it is crystal clear that Ex. 1 dated 14-1-1966 was not a decree for partition and the argument advanced by the learned counsel by treating the decree Ex. 3 as one of partition is devoid of force. At this stage I may also point out that no such contention was raised in any of the two courts below. In any case, in my opinion, it is without force.

7. The second contention raised on behalf of the learned counsel- is that with the death of Smt. Gulab the right to sue in the present case did not survive to the legal representatives of Smt. Gulab as the life interest of Smt. Gulaib created in the property came to an end. In support of this contention learned counsel has relied upon: Mt. Manglan v. Hira Singh. AIR 1931 Lah 675; Kachra Kana v. Khant Ram, AIR 1953 Sau 175 and V V. Rama Rao v. Bhavan Narayan Rao. AIR, 1954 Ori 204. I have gone through these cases and am of opinion that the principle laid down therein has no application to the facts and circumstances of the present case. The suit instituted by Smt. Gulab as a landlord against the tenant and the sub-tenants cannot be said to be a suit for enforcement of a limited personal right. Smt. Gulab may not have absolute right of disposal over the property, but that does not mean that the suit for ejectment instituted by her and decreed by the two courts below would come to an end on adcount of her death during the pendency of the appeal in this Court. Reference in this connection may be made, to Order XXI, Rule 16 Civil P. C., which provides that where a decree is transferred by assignment in writing or by operation of law, the transferee may apply for execution of the decree and the decree may be executed in the same manner and subject to the same conditions as if the application was made by such decree-holder. The legal representatives of deceased decree-holder must be considered as transferees by operation of law. Thus it is clear that the legal representatives of Smt. Gulab have a right to execute the decree obtained by her after her death. After having given my careful consideration to the arguments advanced on behalf of the appellant. I find that it has no force.

8. Another contention raised on behalf of the appellant is that the subtenant is not bound by the collusion between the landlord and the tenant and that in the present case Ramdas suffered a decree against him by a compromise as he colluded with the plaintiff. It has been argued in this connection that at any rate the appellant should have been given an opportunity to lead evidence regarding collusion. This argument too is without substance. No plea of collusion has been taken in the written statement, nor there is any issue on the point. The appellant, therefore, cannot put forward the plea of collusion between the plaintiff and Ramdas.

9. In Rupchand v. Raghuvanshi AIR 1964 SC 1889 where the landlord brought a suit against a lessee for ejectment after serving a valid notice to quit, but without impleading the sub-lessee as defendant and the lessee did not contest the suit in pursuance of his agreement with the landlord, and an ex parte decree was passed, it was held by their Lordships in a fresh suit brought by the sub-lessee for a declaration that he was not bound by the decree obtained by collusion between the defendants to evict him, that the mere fact that the sublessee was not impleaded or that the lessee did not actually contest the suit, did not render the decree passed in the suit as collusive. It was further held that the object of the landlord to eject a sub-lessee from the land in execution of the decree is quite legitimate and the decree would bind the sub-lessee. It was also observed that the mere fact that the defendant agreed with the plaintiff that if a suit is brought he would not defend it, would not necessarily prove collusion.

10. In the present case, therefore, the mere fact that the tenant Ramdas submitted a compromise petition wherein he admitted his position as a tenant and the alleged sub-letting by him would not make the decree any the less binding on the sub-lessee, particularly when no collusion has been pleaded by the sublessee.

11. The fact that possession of Ramdas at the time of institution of the suit by Smt. Gulab was that of a tenant, admits of no doubt, in view of the express terms of the High Court's decree Ex. 1 That the present appellant was admitted as a sub-lessee by Ramdas is of course a point beyond dispute and has not been agitated before me.

12. No other point was argued.

13. The net result of the foregoing discussion is that this appeal is without force and is hereby dismissed with costs.

14. Learned counsel for the appellant prays for leave to appeal under Section 18(2) of the Rajasthan High Court Ordinance, However, I do not consider the case a fit one for grant of leave. The prayer is disallowed.

15. Learned counsel for the respondent prays that the amount of rent deposited by the appellant during the pendency of this appeal may be ordered to be paid to him. This prayer is not being opposed on behalf of the appellant, and is accordingly allowed.

16. Learned counsel for the appellant further prays for some time to hand over vacant possession of the property in dispute to the contesting respondents. Two months' time is granted.


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