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Digambar JaIn Mandir Vs. Vishnu Prasad and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil second Appeal No. 40/69
Judge
Reported in1980WLN655
AppellantDigambar JaIn Mandir
RespondentVishnu Prasad and ors.
DispositionAppeal Allowed
Cases Referred and Jadunath Singh v. Thakur Sitaramji
Excerpt:
.....because the entire income of the house described in para 3 of the plaint, which also includes the suit property, was to be spent over the worship of the suit property, the intention of the testator was to give the corpus also to the temple. merely because some of the income, in case of necessity was to be utilised for maintenance of the house, it does not make any difference to the intention of the testator, which is to be seen from the reading of the entire will.;(c) rajasthan premises (control of rent and eviction) act, 1950 - section 3(iii) & 13(1) landlord-maintainability of eviction suit-right to collect rent is necessary and not ownership of premises--held, suit for eviction by panchayat digambar jain is maintainable.;it was an absolute dedication in favour of the 'mandir' and..........representatives of the original tenant lalita prasad was allowed and the suit was dismissed.2. the suit property, which is described in para 8 of the plaint and is part of a house bearing municipal no. 762, described in para 3 of the plaint, is situated in rasta dariba-pan, chowkri ramchandraji. one kishanlal pandya son of ganeshlal pandya was the owner of the house described in para 3 of the plaint. under a registered will dated 11.9.42, the said kishanlal pandya bequeathed the entire rental income of the house for the worship of mandir shri vijay ramji pandya situated at jaipur (hereinafter referred to as the mandir), and directed his adopted son prabhulal to recover the income and to spend it over the worship of the aforesaid 'mandir' and one temple situated at govindgarh. it was also.....
Judgment:

Mahendra Bhushan Sharma, J.

1. This is a Civil Second appeal by the plaintiff in an eviction suit, which was decreed by the learned trial court, but the first appeal of the defendant respondents, legal representatives of the original tenant Lalita Prasad was allowed and the suit was dismissed.

2. The suit property, which is described in para 8 of the plaint and is part of a house bearing Municipal No. 762, described in para 3 of the plaint, is situated in Rasta Dariba-Pan, Chowkri Ramchandraji. One Kishanlal Pandya son of Ganeshlal Pandya was the owner of the house described in para 3 of the plaint. Under a registered will dated 11.9.42, the said Kishanlal Pandya bequeathed the entire rental income of the house for the worship of Mandir Shri Vijay Ramji Pandya situated at Jaipur (hereinafter referred to as the Mandir), and directed his adopted son Prabhulal to recover the income and to spend it over the worship of the aforesaid 'Mandir' and one temple situated at Govindgarh. It was also directed under the Will (Ex. 13) that the rental income room the house was also to be utilised in doing necessary maintenance of the house. The appellant Panchayat Shri Digambar Jain Mandir Parshwanathji (Soniyan), Jaipur (hereinafter referred to as the Panchayat Jain Mandir) is a registered society under the Rajasthan Society Registration Act. Prabhulal adopted son of Kishanlal and other managers of the 'Mandir' gave the management of the 'Mandir' to 'Panchayat Digambar Jain' under their letter dated May 22, 1957, and the 'Panchayat Digambar Jain' in its meeting dated 28.7.57 accepted the same. Thereafter, under a registered gift deed dated 21.3.59 (Ex. 3) Prabhulal adopted son of Kishanlal Pandya gave the suit house to the Mandir and the gift was accepted by the Secretary of 'Panchayat Digambar Jain' under whom the administration of the 'Mandir' had already vested.

3. 'Panchayat Digambar Jain filed a suit for eviction against Lalita Prasad, the original tenant, inter alia on the grounds that the suit house was required reasonably and bonafide by it for running a school 'Gyan Bal Niketan Sanstha (in short Bal Niketan), that the tenant has committed defaults in paying the rent. The suit was contested by Lalita Prasad, who, in the written statement, raised various pleas including a plea that Prabhulal was not the adopted son of Kishanlal and that he had no right to transfer in any manner the property vesting in the 'Mandir', that the suit house was not reasonably and bona fide required to run 'Bal Niketan'; that he had spent a sum of Rs. 87/- over the repairs of the suit house with the permission of the landlord. The learned trial court on the pleadings of the parties framed as many as 5 issues, and after trial decreed the suit for eviction. Lalita Prasad filed an appeal in the court of the learned District Judge, Jaipur City, and the appeal was later on transferred to the Court of Senior Civil Judge, (1), Jaipur City, who, under his judgement and decree dated 31.7.68, allowed the appeal only on the ground that the notice terminating the tenancy of Lalita Prasad was invalid. It may be stated here that during the pendency of the appeal before the learned Senior Civil Judge, Jaipur City, Lalita Prasad died, and his legal representatives, the respondents, were brought on record. 'Panchayat Digambar Jain' filed a second appeal in this court and during the pendency of the appeal the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as the Act) amended by Ordinance No. 26 or 1975 came into force with effect from 29 9.75, and was later on replaced by an Act. As the suit was based on default, and an application under Section 13-A of the Act for determination of the arrears of rent etc. within 90 days of the coming into force of the Ordinance had been filed, and because the suit was also based on reasonable and bona fide necessity, in view of the provisions of Section 14(2) of the Act, this court vide its order dated April 1, 1976 framed an additional issue on the comparative hardship of the plaintiff and that respondent, and remitted the issue to the trial court under Order 41, Rule 25, C.P.C. for trial, and to return the evidence alongwith its finding to this court within a period of three months. This court also sent the application under Section 13-A of the Act as it stood after the amendment by the Ordinance to the trial court for determining the arrears of rent in accordance with law and pass suitable orders. The trial court determined the arrears of rent, and after recording the evidence of the parties on the additional issue vide its order dated 8.12.76 recorded a finding in favour of the 'Panchayat Digambar Jain' appellant to the effect that in case a decree for eviction is not passed, greater hardship would be caused to the 'Panchayat Digamber Jain' (Plaintiff) than to the tenants.

4. A look at the judgment of the first appellate court will show that only two points on behalf of the respondent tenants had been agitated before it, namely, (1) that the notice was invalid in as much as it did not expire with the month of tenancy; (2) that the transfer by Prabhulal by way of gift was not valid and, therefore, the plaintiff had no right to file the suit.

5. So far as the second point is concerned, the learned first appellate court held that the question of title cannot be decided in case of tenancy, and because it has been proved that the original landlord Prabhulal has transferred his right as landlord to the plaintiff, and the defendant was informed of the transfer, it is sufficient to create a relationship of landlord and tenant between the parties.

6. Taking up the first point, it was held by the first appellate court that March 21, 1959 alleged to be the date of tenancy cannot be deemed to be the date of tenancy and in the absence of any other date, first of every month will be considered as the date of commencing of the tenancy. The notice given by the landlord, which expired on 21st of the month, which was the date of transfer, was invalid.

7. Because the finding of the learned trial court that the suit premises are reasonably and bona fide required by 'Panchayat Digambar Jain' for running its school 'Bal Niketan' was not challenged before the first appellate court, and, therefore, this finding of fact has become final. That apart, 'Bal Niketan' is being run in the premises of 'Digambar Jain Mandir', and looking to the number of students, which has been increasing from year to year, those premises are not sufficient for the school 'Bal Niketan', and, therefore, the finding of fact that the suit premises are reasonably and bona fide required for 'Bal Niketan' cannot be disturbed in the second appeal

8. It is a requirement of law under Section 14(2) of the Act that notwithstanding the finding of fact that the suit premises are reasonably and bona fide required by the landlord, the court can only decree a suit for eviction, if it is satisfied whether having regard to all the circumstances of the case including the question whether any other reasonable accommodation is available to the landlord or the tenant, greater hardship would be caused by passing the decree than by refusing to pass it. As stated earlier, this court had framed an additional issue and had remitted it for trial to the first appellate court. The first appellate court has recorded a finding in favourt of 'Panchayat Digamber Jain'. The lower appellate court had itself inspected the premises of 'Digamber Jain Mandir' where presently 'Bal Niketan' school is being run. It has observed that there is only a 'Baradari', which is in the shape of a hall and the others are verandahs. The accommodation is so short for the school that some classes have to be held in the open on the roofs. It has also observed that 'Panchayat Digambar Jain' now wants to run the school in a separate building than as presently. Therefore, taking into consideration the material, which has been brought on record before the lower appellate court, I am of the opinion that the finding of the lower appellate court that greater hardship shall be caused to 'Panchayat Digambar Jain' in case a decree for eviction is not passed than to the respondents does not call for any interference.

9. So far as the finding of the lower appellate court that the notice of eviction is invalid, it may be observed that this point now stands settled by a reported decision of their Lordships of the Supreme Court in V. DhanaPal Chettiar, Appellant V. Yesodai Ammal, Respondent : [1980]1SCR334 . It has been held by their Lordships that no notice under Section 106 of the Transfer of Property Act determining the tenancy is necessary in case of suits for eviction under the various State Rent Control Acts. It has been contended by the learned Advocate for the respondents that the provisions of the Act are supplementary to the provisions of the Transfer of Property Act, and, therefore, so far as the Act is concerned, before a decree for eviction is passed on any of the grounds mentioned in Section (13)(1) of the Act, a notice determining the tenancy under Section 106 of the Transfer of Property Act is necessary. The contention of the learned Advocate is that their Lordships in Chettian's case (supra) were not called upon to consider Section 28 of the Act, which clearly provides that the provisions of the Act shall be in addition to and not derogatory of, any other law on the subject for the time being in force in the whole or in part of Rajasthan. According to the learned Advocate, because the aforesaid section of the Act its provides the applicability of the provisions of the Transfer of Property Act, it can be said that by necessary implication a notice under Section 106 of the Transfer of Property Act determining the tenancy is necessary before a suit for eviction based on any of the grounds under Section (13)(1) of the Act can be decreed. But, to my mind, in Chettiar's case (supra) their Lordships have intended to lay down and have laid down the law concerning eviction in all States under the various Rent Acts. The following observations of their Lordships lend support to this view:

Such a clivage of opinion cropped up in the various High Courts becacse of some observations of this court in some decisions, which erroneous assumption, if we may say so with great respect that the difference in the phraseology of the different State Rent Acts justifies this differeence of view. In our considered judgment on the question of requirement of notice under Section 106 of the Transfer of Property Act there is no scope for taking different views on the basis of the difference in the phraseology of the various Rent Acts, in this regard, bring about any distinction. In all the States, the law should be uniform, viz, that either a notice is necessary or it is not. It was high time, therefore, that this larger Bench was constituted to lay own a uniform law for governance of the whole country and to permit the unjustified different trend decisions to continue.

Their Lordships also considered Shambhu Ram v. Mangal Singh , wherein this court had taken a view that a notice under Section 106 of the Transfer of Property Act was necessary. Therefore, to my mind, the observations of their lordships of the Supreme court in Chettiar's case (supra), extracted above, leave manner of doubt that their lordships intended to lay down the law also so far as the eviction cases under the Act are concerned and in suits for eviction on any of the grounds under Section 13(1) of the Act, to my mind, it is not necessary to determine the tenancy by giving a notice under Section 106 the Transfer of Property Act. I will like to add that even if valid notice under Section 106 of the Transfer of Property Act is given, the suit still cannot be decreed unless a ground for eviction is set out under the various clauses of Sub-section (1) of Section 13 of the Act is made out. Their Lordships have observed in the aforesaid Chettiar's case that the giving of notice is mere surplusage. I am, therefore, of the opinion that the view of the learned lower appellate court that the notice was not valid cannot be upheld. Under the law, no notice under Section 106 of the Transfer of Property Act was necessary in case of an eviction suit based on the grounds mentioned in various clauses of Section 13(1) of the Act. I may make a reference to Sarjun Singh v. Ramchandra Kothari (S.B. Civil Second Appeal No. 278/80) decided by me on October 30, 1980.

10. It is contended by Mr. Tikku, the learned Advocate for the respondents that under the Will (Ex. 13) dated 11.9.42, the entire rental income of the house has been bequeathed for the maintenance of the 'Mandir' and the other temple at Govindgarh, both of which had been founded by the ancestors of Kishanlal. Therefore, Prabhulal, adopted son of Kishanlal, had no right to execute a gift deed of the suit property in favour of 'Panchayat Digambar Jain'. He further submits that if the suit for eviction on the ground under Section 13(1)(h) of the Act that the premises are required reasonably and bona fide for running a school 'Bal-Niketan' is decreed, then it will frustrate the very object of the trust, i.e., the maintenance of the 'Mandir' and the other temple at Govindgarh, both founded by the ancestors of Kishanlal. A look at the will (Ex. 13) executed by Kishanlal will make it dear that the entire income of the house described in para 3 of the plaint was bequeathed for the expenses of worship of the 'Mandir' and the temple situated at Govindgarh, and Prabhulal the adopted son was appointed as an executor or trustee to carry out the objects contained in the Will. Where the entire income of a particular property is given to an idol or religious charitable institution, it is an absolute dedication and it cannot be said that only a charge over the income of the property is created in favour of an idol or religious or charitable institution. It will depend on the consturction of the will as a whole as to what was the intention of the testator. The relevant words of Ex. 13 are: (In Hindi)

11. To my mind, the construction of the Will (Ex. 13), the relevant portion of which has been extracted above, will leave no manner of doubt that the intention of Kishanlal, the testator, was to make absolute dedication of the property described in para 3 of the plaint, of which the disputed property is a part, in favour of the 'Mandir' and the other temple situated in Govindgarh, both of which were founded by the ancestors of Kishanlal. The contention of Mr. Ksliwal, the learned Advocate for 'Panchayat Digambar Jain' that it was a will in favour of Prabhulal and not in favour of the two temples has no force. The very fact that Prabhulal could not transfer the property in any manner whatsoever and the entire income of the property was dedicated for religious purpose in perpetuity to my mind dearly goes to show the intention of the testator that by dedicating the entire income for the worship of the two temples, he intended to dedicate the corpus also and not only the usufruct. Merely because, if necessary, some rental income was also to be utilised for maintenance of the property described in para 3 of the plaint, to mind it does not make any difference. Prabhulal himself accepted the will and acted upon it. In Habiba Ali v. Alhaji Mama Ali AIR 1942 SC 69 it was held that devise of rent indefinitely under the Will is devise of land itself. Their lordships observed, 'It being well settled that a devise of rent of a land for an indefinite time is now equivalent to a devise of the land itself.' A reference may also be made to Shri Ishwari Bhubneshwari Thakurani v. Brojo Nath Dey and Ors. AIR 1937 PC 185 Srinivasagom Asari and Anr. v. Chinnamal and Anr. AIR 1946 Mal 266,. Kandasami pilial and Ors. v. Munisami Mudaliar and Ors. AIR 1932 Mad 584, and Jadunath Singh v. Thakur Sitaramji AIR 1939 All 99.

12. To my mind, after having gone through the will, the construction of the Will leaves no manner of doubt that because the entire income of the house described in para 3 of the plaint, which also includes the suit property, was to be spent over the worship of the suit property, the intention of the testator was to give the corpus also to the temple. Merely because some of the income in case of necessity was to be utilised for maintenance of the house, it does not make any difference to the intention of the testator, which is to be seen from the reading of the entire Will.

13. A look at the gift deed (Ex. 3) executed by Prabhulal, adopted son of Kishanlal, will make it clear that in order to give effect to the objects of the Will, the property described in para 8 of the plaint including the suit property was gifted to the 'Mandir'. I have held above that under Ex. 13, the Will, it was an absolute dedication in favour of the 'Mandir' and under the gift deed (Ex. 3), the right to collect rent was also given to the 'Mandir' for whose worship the entire income had been dedicated. Therefore, even if the gift deed is not looked into, even otherwise under the Will (Ex. 13), the property already vested in the 'Mandir'. The right to recover rent, which vested in Prabhulal and to apply it over the worship of the 'Mandir' and the other temple at Govind garh was given to the 'Panchayat Digambar Jain' (Plaintiff-appellant). Under Section 3(iii) of the Act, landlord means any person, who for the time being is receiving or is entitled to receive the rent of any premises, whether on his own account or as an agent, trustee, guardian or receiver or any other person who would so receive or be entitled to receive the rent if the premises were let to a tenant. Thus, according to the definition of the landlord, as given in Section 3(iii)of the Act, the element of ownership of the premises is not the main characterstic of a landlord, but it is the receipt of rent or a right to receive the rent by a person, it is the important factor. Lalita Prasad, the original tenant, who is now represented by the respondents, who are the legal representatives, was a tenant of Kishanlal. After the death of Kishanlal, his adopted son Prabhulal received the rent of the disputed premises from Lalita Prasad, as under the Will (Ex. 13) also he had been given a right to recover rent and utilise the same over the worship of the 'Mandir' and the other temple at Govindgarh, and also over the maintenance of the property described in para 3 of the plaint Prabhulal gave the right to recover rent to 'Panchayat Digambar Jain', and as such 'Panchayat Digambar Jain' had a right to recover rent from Lalita Prasad, the original tenant, and his legal representatives. Therefore, the 'Panchayat Digambar Jain, is a landlord within the meaning of Section 3(iii) of the Act. Even if the 'Panchayat Digambar Jain' may be said to be recovering rent on behalf of the 'Mandir' it will still be landlord within the meaning of Section 3(iii) of the Act, so far as the premises in dispute are concerned. The use of the words 'any person' in Section 3(iii) of the Act will make it clear that it is not only the owner of the building but any person who received or has a right to receive the rent, who is landlord for the purpose of the Act. Therefore, the suit for eviction by 'Panchayat Digambar Jain' to my mind is maintainable. It has already been said earlier that so far as the reasonable and bona fide necessity of the suit premises to the 'Panchayat Digambar Jain' is concerned that finding of fact has become final, because it was not even challenged by the respondents in the appeal filed by them in the lower court, and the judgment was only challenged on two grounds of invalidity of notice and that Prabhulal could not gift the property.

14. I am, therefore, of the opinion that this appeal deserves to be accepted and is hereby accepted with costs. The judgment of the lower appellate court is set aside and that of the trial court is restored. However, looking to the difficulty in getting accommodation in Jaipur City, six months time is allowed to the respondents to vacate the disputed premises on payment of rent, provided the respondents give an undertaking to the satisfaction of the trial court that on expiry of six months they shall hand over vacant possession of the suit premises to the appellant 'Panchayat Digambar Jain'.


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