Skip to content


Smt. Barkat Bai Vs. Bhanwarlal - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberSecond Appeal No. 138 of 1971
Judge
Reported inAIR1975Raj32; 1974(7)WLN217
ActsTransfer of Property Act, 1882 - Sections 105; ;Evidence Act, 1872 - Sections 115
AppellantSmt. Barkat Bai
RespondentBhanwarlal
Appellant Advocate P.N. Dutt, Adv.
Respondent Advocate R.K. Rastogi and; J.S. Rastogi, Advs.
DispositionAppeal dismissed
Excerpt:
.....failed to show a better title in some other person. 10. i am satisfied that the plaintiff has even otherwise succeeded in proving that the building in question vested in the [private house-hold of the then ruler of the former jhalawar state who gave it away to smt. in mv opinon, the defendant is estopped from challenging derivative title of the raimata as well as the plaintiff......was that the building in question belonged to raj-mata smt. mahendra kumari of the erstwhile state of jhalawar and had been gifted to him by a gift deed d/- 15-4-1958 registered on 15-5-1958. the defendant had been occupying the premises in dispute, admittedly from before the alleged gift on a monthly rent of rs. 3.50 np. the plaintiff alleged that rent for the period from 15-5-1958 to 30-9-1958 amounting to rs. 15.75 had been remitted to him by money order (ex. 25). and he claimed a decree for arrears of rent from 1-10-1958 to 28-2-1959 for a period of 5 months rs. 17.50 np. and damages for the month of march 1959 rs. 3.50. total rs. 21/-. he further alleged that the premises in question were required by him for the use of himself and his family as the apartments in their.....
Judgment:

C.M. Lodha, J.

1. This is a defendant's appeal arising out of a suit for ejectmentand arrears of rent in respect of the ground floor (except a shop) of a building known as 'Kothar Building' situated in the town of Jhalawar near the southern gate of the fort.

2. The plaintiff-respondent's case as set out in the plaint was that the building in question belonged to Raj-mata Smt. Mahendra Kumari of the erstwhile State of Jhalawar and had been gifted to him by a gift deed D/- 15-4-1958 registered on 15-5-1958. The defendant had been occupying the premises in dispute, admittedly from before the alleged gift on a monthly rent of Rs. 3.50 np. The plaintiff alleged that rent for the period from 15-5-1958 to 30-9-1958 amounting to Rs. 15.75 had been remitted to him by money order (Ex. 25). and he claimed a decree for arrears of rent from 1-10-1958 to 28-2-1959 for a period of 5 months Rs. 17.50 np. and damages for the month of March 1959 Rs. 3.50. total Rs. 21/-. He further alleged that the premises in question were required by him for the use of himself and his family as the apartments in their possession were wholly insufficient for their residence. It was also alleged that a notice of termination of tenancy was served upon the defendant, who was called upon to vacate the premises by 28-2-1958, and since he failed to do so, the present suit was filed on 2-4-1959 for ejectment as well as for recovery of Rs. 21/- as arrears of rent and damages. The defendant resisted the suit and denied the title of the plaintiff's donor Smt. Rajmata. She also pleaded that the amount of Rs. 15.75 np. had been sent by money order in lieu of rent to the plaintiff under a misapprehension that he was entitled to it.

3. After recording 'the evidenceproduced toy the parties, the learned trialcourt by its judgment dated 30-11-1966 decreed the plaintiffs suit as prayed. The defendant filed appeal but the same was dismissed by the Additional District Judge. Jhalawar on 6-2-1971. Hence this second appeal by the defendant.

4. Two points have been urged in support of the appeal by the learned counsel for the appellant. It has been argued in the first instance that the plaintiff's donor Smt. Raimata had not acquired ownership to the 'Kothar Building', and consequently the plaintiff also got no right by the gift deed in his favour from Smt. Raimata with respect to the building in question and, therefore, the suit was not maintainable. The other point canvassed by the learned counsel is that the plaintiff has failed to prove bona fide and reasonable necessity for the premises in question.

5. On the first point it has been argued by the learned counsel for the appellant that the former State of Jhalawar was merged in the former UnitedState of Rajasthan on 25-3-1948 and consequently His Highness Maharaj Rana Shri Harish Chander had no right to give away the building in question to Smt. Rajmata by his order dated 4-4-45 (Ex. 2). On the other hand, learned counsel for the respondent has argued that the question of the former ruler Shri Harish-chander's right to make a gift of the building in question to Smt. Rajmata was not raised by the appellant in his pleadings and that in any case the appellant had attorned in favour of the plaintiff after the building in question had been gifted to him by Smt. Rajmata by payment of rent and by her conduct and consequently she was esto.pped from challenging the derivative title of the plaintiff to the premises in question.

6. A reference to the order Ex, 2shows that a report was made to the Home and Foreign Minister of the former State of Jhalawar on 2-4-1948 by 'Dyodi-khas' that the building in question had always been used for the residence of the maidservants of Maharanis and had been in the charge of the 'Dyodi-Khas', and some time ago a part of it had been used for a Branch School and also for keeping stock of controlled commodities, but 'thereafter the late Maharaja gifted the building to Smt. Rajmata for the resi-dencte of maid-servants and concubines and an entry to that effect had also been made in the list of houses maintained by the Public Works Department. It was also stated in this report that the building in question had not been 'put in charge of the P. W. D. It was, therefore, requested that sanction may be granted for giving over the building in question to Smt. Rajmata for 'the residence of the maidservants and concubines etc. On this report the Public Works Department submitted a no be to His Highness that the building in question had not been included in the list of Government Houses and that it had always been treated as a 'Kothar' and had been in the constant use of the Royal Family, although for some time a part of it had been utilised for the purpose of stocking controlled commodities and for running a Branch School. This note bears the approval of His Highness Harish Chander dated 4-4-1948 and on receipt of the papers the 'Dyodi-Khas' (House-Hold) made a note that the original order be put on the private record of Smt. Rajmata. It is pertinent to note that no list of the private property of the Ruler which was prepared at the time of merger of the State has been placed on the record. But it is amply clear from the notings in Ex. 2 that the building in question was being treated as private property of the Ruler and the members of his family.

7. Smt. Rafmata made a gift of the property in question in favour of theplaintiff, as already stated above, on 15-4-1958 though the gift deed was registered on 15-5-1958. On 13-9-1958 the Private Secretary to His Highness Jhalawar sent a notice to the plaintiff (Ex. 23) wherein it was mentioned that the portion of the building in question which was being occupied by the defendant had been gifted by Smt. Rajmata to the plain tiff and therefore the rent for the same from 15-5-1958 may be paid to the plaintiff and arrears of rent prior to 15-5-1958 may be deposited in the Office of the House-Hold Department. Receipt of this notice bY the defendant is admitted and it is further clear that on receipt of this notice the defendant remitted the amount of Rupees 15.75 np being the rent for the period commencing from 15-5-1958 to 30-9-1958 by money order on 8-10-1958. At this stage it may also be pointed out that rent was again remitted by the defendant for subsequent period vide money order coupons Ex. 29 to Ex. 33, but it was not accepted by the plaintiff. The defendant's case is that it was after she had remitted the rent by the aforesaid money orders that she came to know that Smt. Rajmata had acquired no valid title to the building in question. It may be relevant here, to refer to the notice Ex. 26 served by the plaintiff on the defendant for termination of tenancy. This is dated 14-1-1959. In reply (Ex. 28. dated 30-1-1959) it was stated on behalf of the defendant that the plaintiff's demand for vacant possession of the premises in dispute on the ground of his alleged personal necessity was not justified and further that she had remitted rent to the plaintiff on the representation by the latter that the building in question had been gifted to him by Smt. Rajmata, otherwise she had no knowledge about this transfer and therefore, she asked the plaintiff to send her a copy of the registered gift deled for her satisfaction. It is significant to note that in Ex. 28 she has nowhere alleged that the plaintiff's donor Smt. Rajmata had no title to the building in question. Even in the written statement all that has been challenged is that the Rajmata was not the owner of the building in question. It has nowhere been questioned that on the date when His Highness of Jhalawar gave away the building in question to Smt. Rajmata he had na right to do so, as the State of Jhalawar on that day had been merged in the United State of Rajasthan and the property in question was not included in the list of private properties of the Ruller. At this juncture it would not be out of place to mention that the defen-dant at any rate admits her position as a tenant and does not claim any proprietary right to the premises in question. While denying the right of Smt. Rajmatato make a valid gift of the building in question to the plaintiff, she has veryconveniently omitted to state as to who was the person entitled to recover rent from her on the date of the suit. No doubt she has mentioned in Para No 2 of the additional pleas of her written statement that once the building in question belonged to Jhalawar State and she was inducted in the premises in question by the House-Hold authorities of Jhalawar, and the House-Hold Authorities used to recover the rent and then the building in question went in charge of Atala Department which s'tarted recovering rent from her and then, according to her, the Municipal Board Jhalawar started recovering the rent and ultimately, she says, the rent was deposited at the Ruler's Kothi. However, it is significant that she has led no evidence to prove the different stages through which the ownership of the property is alleged to have passed from one Department to another. One thing, however, she admits, that ultimately she used to deposit the rent at the 'Kothi' of the Ruler. By the word 'Kothi' was clearly meant the House-Hold Department of the Ruler as distinguished from the State Departments to which she has made reference earlier in para No. 2 of the additional pleas. The plaintiff Bhanwarlal in his statement as P. W. 4 while proving the gift deed Ex. 1 in favour of Smt. Rajmata has stated that Smt. Rajmata got this building with the sanction of the then Ruler of the former Jhalawar State. He has proved the signature of Maharaja Rana Harishchander on Ex. 2. He has further stated in the course of cross-examination that he had seen the defendant occupying the premises in question since 1-5-1948. and that since 1-5-1948 he was in the service of Smt. Rajmata as her Accountant and used to maintain receipts and accounts of Smt. Rajmata. He has also produced copies of the entries in the account books of Smt. Rajmata pertaining to the recovery of rent from the defendant from 1948 to 1956. It is true that the accounts were not written by him regularly from day to day yet it is clear from his statement that he had personal knowledge that the rent of the premises in question was being paid by the defendant to Smt. Rajmata. Nothing has been pointed out to show as to what was the misapprehension ;caused in the mind of the defendant on account of which, she says, she paid rent to the plaintiff on receipt of the notice Ex. 23, intimating to her the fact of transfer of the building in question by Smt. Rajmata to the plaintiff. The cumulative effect of the evidence and the circumstances referred to above is that the plaintiff has proved that before the building in question was gifted to him. the rent for the premises in question was being paid by the defendant to Smt. Rajmata.

8. Learned counsel for the appellant however attempted to show that The rent for the period 1948 to 1956 was paid not to Smt, Rajmata. but to His Highness. It may be pointed out that there is no direct evidence to this effect. In the circumstances of the ease it would not be unjust to infer that whatever may have been the position prior to 1948. at any rate, thereafter the defendant treated Smt. Raimata as her landlord with respect to the premises in question. Her conduct subsequent to the receipt of the notice Ex. 23 also gives a clear indication to that effect in as much as she remitted rent amounting to Rs. 15.75 vide money order coupon Ex. 25 and for subsequent period vide money order coupons Ex. 29 to Ex. 33. She has completely failed to show that this rent had been remitted by her under any misapprehension or mistake. On the other hand, her reply Ex. 28 negatives the theory of payment under misapprehension or mistake in as much as in Ex. 28 she has called upon the plaintiff to satisfy her that Smt. Raimata had transferred the building in question to him by gift. The evidence of payment of rent to Smt. Raimata as well as the plaintiff coupled with the conduct of the defendant clearly raises an inference of attornment by the defendant in favour of the plaintiff and she must be estopped by her act. conduct and ac-quiescence from challenging the title of the plaintiff.

9. Reference may be made to thefollowing passage in Foa's General Law of Landlord and Tenant Eighth Edition, (page 475 :--

'Para 745: Estoppel as regards person recognised as landlord--With regard to the title of a person from, -whom the possession was not obtained, but who has been recognised as landlord by the tenant, such recognition may be by express agreement, by attornment. or other formal acknowledgment (as by paying a nominal sum as rent, or by submission to a distress)'.

The above passage was relied upon by the Supreme Court in V. Satyanarayana-raju v. J. Hanumayamma AIR 1967 SC 174 and it was observed that attornment is described here as one mode of recognising a person as one's landlord just as payment of rent is another mode for the purpose. Expression to similar effect is to be found in para 746 and also para 747 where it is further noted. 'But the tenant is not allowed to impeach the title of a person to whom he has paid rent, or whose title he has otherwise recognised, without showing a better title in some other person. Thus he cannot, after at-torning to a person who derives his title under a will, contend merely that upon a true construction of the will he had no title; nor can he, after paving him rent, dispute his title merely on the groundthat the devise to him was void, owing to tine incapacity of the testator'. Judging by all these tests there is no escape from the conclusion that having paid rent for a considerable period to the Rajmata and then to the plaintiff after she had been intimated the fact of gift bv Raimata to the plaintiff, the defendant cannot contend that Ex. 2 did not constitute a valid Kift by the Ruler in favour of the Rajamata or for the matter of that, that the plaintiff did not derive a valid title on the basis of the gift by the Raimata. As already stated above, the defendant has miserably failed to show a better title in some other person.

10. I am satisfied that the plaintiff has even otherwise succeeded in proving that the building in question vested in the [private House-Hold of the then Ruler of the former Jhalawar State who gave it away to Smt. Raimata. who in her turn gifted it by a registered Sift deed in favour of the plaintiff. The argument raised on behalf of the defendant-appellant that Ex. 2 cannot constitute a valid gift in absentee of registration isalso not sound because for aught I know, the Ruler of the erstwhile Jhalawar State enioyed absolute powers in his State and was the fountain head of legislative, executive and judicial functions of the State and his word was law. However, in view of the conclusion to which I havecome it is not necessary to examine all these matters in detail, as. in mv opinon, the defendant is estopped from challenging derivative title of the Raimata as well as the plaintiff. In this view of the matter the courts below have rightly come to the conclusion that the plaintiff was entitled to maintain the present suit as the landlord of the defendant.

11. Now. as regards the personal necessity it has been found by the courts below that the plaintiff is in possession of two small rooms though his family consists of six members. The requirement of the plaintiff for additional accommodation has been adjudged as reasonable and bona fide by the lower courts and I am not persuaded to take a different view of the matter. It is also significant that the defendant has denied the title of the landlord This fact also gives rise to the right of the plaintiff to ask for ejectment. However, it is not necessary to go into this question, as, in my view, the courts below have rightly come to the conclusion that the plaintiff's reasonable and bona fide requirement for the premises in question for the use of himself and his family is proved.

12. No other point was pressed on behalf of either party.

13. The result is that I dismiss this appeal with costs,

14. Learned Counsel for the appellant submits that in view of the factthat the defendant has been occupying the premises in question as a tenant for a large number of years, six months' time may be granted to her to hand over vacant possession of the premises in dispute to the plaintiff. In the circumstances, I allow six months' time to the defendant for vacating the premises in question provided she pays to the plaintiff or deposits in court all arrears of rent, if any, within one month from today, and also goes on paying the monthly rent falling due within 15 days of the succeeding month.

15. Learned Counsel for the appellant prays for leave to appeal under Section 18(2) of the Rajasthan High Court Ordinance. However, I do not see any ground to declare the case a fit one for appeal. The prayer is refused.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //