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Vishan Das Vs. Smt. Niji Bai and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Second Appeal No. 546 of 1972
Judge
Reported in1973(6)WLN871
AppellantVishan Das
RespondentSmt. Niji Bai and ors.
DispositionAppeal dismissed
Cases ReferredCo. v. Victor Oil Co.
Excerpt:
.....1st of november, 1967, the notice is, therefore, not invalid.;(b) rajasthan premises (control of rent & eviction) act, 1950 - section 19a--bonafide doubt in tenant's mind--explanation of.;the requirement for invoking the procedure under section 19a of the act is that there should be a bonafide doubt in the mind of the tenant as to who was entitled to receive the rent from him, when there were more than one claimants demanding rent from him.;(c) rajasthan premises (control of rent & eviction) act, 1950 - section 3(iii)--son undergoing imprisonment for murdering his father--whether son's wife can file a suit for ejectment against a tenant.;in view of this clear stand taken by the three daughters of onkar who undoubtedly, were his heirs according to the defendant himself there..........17-8-65 (ex. 1) before the munsif udaipur under section 19a of the rajasthan premises (control of rent and eviction) act, 1950, hereinafter to be referred as the 'act'. in that application the tenant named smt. niji bai and the three daughters of onkar as the opposite patties and submitted that a doubt had been created in his mind as to who was entitled to take the rent from him. the proceedings resulted in an order of the court (ex 2 on record) which is dated 8-1-66). according to it, on account of the submissions made by learned counsel for the parties the learned munsif ordered that the deposited rent be paid to smt. niji bai. thereafter smt. niji bai determined the tenancy of the defendant by a notice, ex. 4 on record, and then on 16-12-67 commenced the action in the court of the.....
Judgment:

Kan Singh, J.

1. This is a tenant's second appeal. One Onkar was the landlord and Vishandas was his tenant in respect of a shop situated at Udaipur on a monthly rent of Rs. 20/-. Onkar was murdered none other than his own son Bherulal. At the relevant time Bherulal was undergoing the sente nce of life imprisonment. Plaintiff Smt. Niji Bai was Bherulal's wife. It seems to have been disputed whether Smt Niji Bai was Bherulal's wife by remarriage (Nata) or otherwise, but, eventually it was accepted that Smt. Niji Bai was Bherulal's wife. Onkar was survived by three daughters besides his murderer son Bherulal. After Onkar's death and Bherulal's detention in jail the tenant started paying rent to Smt. Niji Bai. According to the tenant, Smt. Niji Bai refused accepting rent as she was motivated to enhance the rent. Consequently the tenant made an application on 17-8-65 (Ex. 1) before the Munsif Udaipur under Section 19A of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, hereinafter to be referred as the 'Act'. In that application the tenant named Smt. Niji Bai and the three daughters of Onkar as the opposite patties and submitted that a doubt had been created in his mind as to who was entitled to take the rent from him. The proceedings resulted in an order of the court (Ex 2 on record) which is dated 8-1-66). According to it, on account of the submissions made by learned Counsel for the parties the learned Munsif ordered that the deposited rent be paid to Smt. Niji Bai. Thereafter Smt. Niji Bai determined the tenancy of the defendant by a notice, Ex. 4 on record, and then on 16-12-67 commenced the action in the court of the Munsif, Udaipur for arrears of rent and eviction of the defendant-tenant.

2. The defendant contested the suit. He denied that Son. Niji Bai was entitled to receive the rent or to file the suit. He also pleaded that the notice Ex. 4 determining the tenancy was not valid He further denied that he was a defaulter in the payment of rent. The daughters of Onkar who were made pro forma defendants filed a joint written statement. They averred that though the plaintiff had no right in the property, they had given a direction to the tenant, defendant No. 1, to pay rent to Smt. Niji Bai as provision had to be made for her maintenance an account of Nijibai still continuing as the wife of Bherulal who was in jail at the time. The learned Munsif framed a number of issues, it is not necessary to advert to all of them, as the questions surviving for consideration at this stage are: (1) about the right of Smt. Niji Bai to file the suit against the tenant, (2) about the validity of the notice, and (3) about the default in the payment of rent.

3. Both the courts were one in holding that the notice was not invalid, Smt. Niji Bai could bring the suit against the defendant seeking his eviction & that the defendant was defaulter in the payment of rent and was consequently liable to be evicted.

4. In assailing the judgment and decree of the lower appellate court (Additional Civil Judge, Udaipur), learned Counsel for the appellant-tenant contends: (1) that the notice that was given by Smt. Niji Bai was invalid on two grounds; firstly, she had no authority to determine the tenancy as she had no light, title or interest in the property of deceased Onkar, and secondly, as the tenancy was not determined in accordance with Section 106 of the Transfer of Property Act effective from the last day of the month of tenancy; (2) that the suit could not have been filed by Smt. Niji Bai particularly about the relief of possession; and (3) that the defendant was not a defaulter in the payment of rent. Learned Counsel made reference to a number of cases to fortify himself namely, J.C. Chatterjee v. S.K. Tandon : [1973]1SCR850 , State of U.P. v. Satya Narain : [1970]3SCR198 , H.S. Rikby v. New Delhi Municipality : [1962]3SCR604 , Babu Bhai v. Bhagwandas : AIR1967MP143 , Rameshwar v. Rameshwar 1955 RLW 113 & Calcutta L & G Co. v. Victor Oil Co. AIR 1944 Cal 84.

5. Now, in the plaint it was averred that as the defendant was not paying the rent regularly the plaintiff served a notice through her Advocate Shri Sunderlal Sharma on 11-10-67 calling upon the defendant to hand over possession of the property upto 1-11-67. In his written statement the defendant denied the relevant para-3 of the plaint asserting that the plaintiff had no right to get the shop vacated and further that the notice was received from her, but was suitably replied. It was further averred that the notice was not in accordance with Section 106 of the Transfer of Property Act. It is evident from the tenor of para 8 of the written statement of defendant No. 1 that the authority of the plaintiff to give the notice determining the tenancy was not specifically questioned. All that was stated regarding the validity of the notice was that it did not comply with the provisions of Section 106 of the Transfer of Property Act. In a case recently decided by S.B. Civil Second Appeal No. 331 of 1972--Kalyanmal v. Vimal Chand, on 18-9-73 I had occasion to consider the point when all the co-owners of the property were not alleged to have joined in the giving of notice for determining the tenancy. It was argued on behalf of the tenant in that case that the notice was invalid, as one of the coowners alone could not have determined the tenancy. The plea regarding the invalidity of the notice taken in the written statement was of a general nature & it was not pleaded that the notice was bad because it was given by one of the co-owners only. Relying on the obstervations made in 1973 RCR 581--Nanalal Girdhari Lal and anr. v. Gulamnabi Jimalbhai Motorwala and Ors., which was cited by learned Counsel for the tenant himself I reached the conclusion that the authority of one of the co owners to give such notice has to be disputed and when it is so disputed it will have to be established to the satisfaction of the court. It was further pointed out that the invalidity of the notice may arise on a number of grounds; some may be purely legal, but others may be factual. Lack of authority on the part of the person giving the notice would turn on a question of fact and, therefore, a dispute has to be raised about the authority of the person giving the notice more so when an Advocate was giving the notice. Granting that on account of his committing the murder of his own father Onkar, Bherulal would not be entitled to inherit such of the property as belonged to Oakar, there could be no doubt that in that event Bherulal's property would devolve on his three daughters All the three daughters were party to the proceedings Under Section 10A of the Act initiated by none other than the tenant himself and, there they had taken that stand that the deposited rent be paid to Smt. Niji Bai Likewise, in the present suit not only they did not question the authority of Smt. Nijibai to take the rent of the property, but they stated that though Smt. Niji Bai had no right over the property yet they had made provision for her maintenance and had accordingly given a direction to the tenant, defendant No. 1, to pay rent to Smt Niji Bai Therefore, it is quite clear that even the real heirs of the deceased Bherulal had authorised Smt. Niji Bai to take the rent and appropriate it for her own maintenance Here I should not be understood to express any opinion regarding the rights of Bherulal in the property. Tnough according to Section 25 of the Hindu Succession Act, 1956 he will he di qualified from reheriting his father's property, he may not yet be disentitled to his own share in the property, if the property is found to be the joint family property or any other kind of joint property of Bherulal and his father. Whereas Smt. Niji Bai may have no claims for maintenance on the property belonging to Onkar, she would according to Section 18 of the Hindu Maintenance and Adoptions Act, 1956 be entitled to get maintenance from the property of her husband. It is understandable that the daughters of deceased Onkar would agree to Smt. Niji Bai having the rent of suit property for her own maintenace. In this context the question has to be considered whether she could file the suit for eviction against the tenant.

6. Before, however, I embark on the consideration of this question, I may dispose of the other contention of the learned Counsel that the notice Ex 5 was bad, because the tenancy was not determinad from the end of the month of the tenancy. I may read relevant portion of the notice:

fd esjs eofOdwyk dh ,d nqdku vki ds ikl [email protected]& :i;s egkokj ij fdjk;s ij gSA vki fdjk;k le; ij vnk ugh djrs gS A fdjk;k vnk djus es vkius dbZ fMQkYV~l dj fn;s gS A vHkh Hkh 6N% ekg dk fdjk;k pk gqvk gS blfy, esjs eqofDdwyk vkidks fdjk;snkj ugh j[kuk pkgrh blfy, vkidks bl uksfVl }kjk lwfpr fd;k tkrk gS Afd vki rkjh[k 1&11&67 rd mDr nqdku dks [kkyh dj esjs eqofDdwyk dks lqiqnZ djs rFkk pk fdjk;k Hkh vnk dj jlhn izkIr djs ojuk okn xqtjus e;kn esjs eofDdwyk dks vkids f[kykQ nkok djuk iMsxk ftlds leLr gtsZ [kpsZ ds ftEesnkj vki gksxs bfr mn;iqj fnukad 11&10&67 A

The governing words in the notice regarding the point of termination of the tenancy are that the possession of the shop be made over upto 1st of Nov., 1967. To my mind, it means that the tenancy come to be determined with the end of the preceding day i e. 31st October, 1967 which was the last day of the calendar month, the tenancy being a monthly one commencing from the 1st, Learned Counsel leaned on Calcutta L & S Co. v. Victor Oil Co. AIR 1944 Cal 84 for showing that such a direction in the notice would mean that the tenancy would end not on the 31st October, but on the 1st of November. In the cited case the tenancy was an oral one. It was monthly and started from the 1st of June, 1986 The tenant company went into possession on the 1st of June, 1936 On 13th November, 1940 the landlord Company served a notice upon the tenant Company to give up possession of the premises 'on the expiry of 1st December, 1940'. The word, within inverted commas make all the difference. The handing over of the possession was desired by the landlord company on the expiry of the 1st i.e. from the commencement of the 2nd of December, 1940.

7. In the present case the handing over of possession was desired upto the 1st of November, 1967. Therefore, the notice cannot be said to be invalid on this ground. Learned Counsel argued that this notice does not state that the tenancy was being determined. It is true, in so many words it is not stated that the tenancy was being determined, but the notice in unmistakable terms points out that the plaintiff did not want to keep the tenant and he was, therefore, called upon to hand over possession of the property upto 1st of Nov., 1967, This manifests the clear intention on the part of the plaintiff to put an end to the tenancy with effect from the date preceding the 1st of November, 1967, The notice is therefore, not invalid on any of the grounds taken by learned Counsel for the appellant.

8. I may come back to the question whether Smt. Niji Bai could have sued for the eviction of the tenant. There are three distinct circumstances which go to show that Smt. Niji Bai was the landlord of the appellant at the relevant time and could not only recover the rent, but also sua for eviction. The first is that ever since the death of Onkar in 1958 or 1959 it was Smt. Niji Bai to whom the tenant on his own showing had been paying the rent. Then came the stage when the tenant felt constrained to make the application before the learned Munsif under Section 19A of the Act (Ex. 1 on record). In para-5 of that application it was stated by the tenant that after Onkar had been murdered by Bherulal Smt. Niji Bai, Bherulal's wife had been taking rent from him in para 6 he made grievance of the fact, that from 1-4-1985 Bherulal's wife had stopped taking rent from him and even the amount of rent sent by money order had been refused In that way 5 months rent had fallen in arrears. In para 7 of the application he stated that deceasad Onkar had three daughters who were named in the petition and they, according to the tenant, were the heirs of Onkar and a doubt had, therefore, arisen in the tenant's mind as to who would be entitled to take the rent from him. He, therefore, prayed that the rent be deposited and paid to the person entitled to receive the rent. This resulted in order Ex. 2 which I may read:

odqyk, Qjhdsu QeZ Jh Hkxorh izlkn] lqUnj yky 'keZk o ukFkwyky mifLFkr A

tek gw fdjk;k eq- uhthckbZ dsk vnk fd;k tkos &blls; cdqyk, Qjhdsu lger gS lkfed es gh futhckbZ dks gh fdjk;k vnk fd;k x;k gs & vly tek'kqnk jde Qhds is'k gksus ij uhthckbZ dks ns nh tkos & fely ckn rkehy rdfey nkf[ky nQ+rj gks A

g- vkj- ,l- oekZ

The above order shows that all the parties ''ere agreed that as rent was being taken by Smt Niji Bai in the past she should be paid the rent lying in deposit. Therefore, there is reason to think that the doubt of the defendant as to who was emitted to receive the rent from him was removed. It will be a rare case when such a doubt would arise second time, because the requirement for invoking the procedure under Section 19A of the Act is that there should be a bonafide doubt in the mind of the tenant as to who was entitled to receive the rent from him, when there were more than one claimants demanding rent from him, Then after the suit was filed the three daughters of Onkar had submitted a joint written statement. Though in this written statement they asserted their own claim over the property of their father, the daughters of Oakar yet conceded that it was the plaintiff who was entitled to receive the rent from the defendant-tenant to whom also they had given a direction to pay the rent to the plaintiff In view of this clear stand taken by the three daughters of Omkar who, undoubtedly, were his heirs according to the defendant himself there could be no manner of doubt that the plaintiff was entitled to recover the rent from the defendant.

9. The next question is whether this would entitle the plaintiff to evict the tenent. Learned Counsel for the appellant took the stand that at best the position of Smt. Niji Bai was that of a rent collector or an agent and, therefore, although she might be entitled to sue for recovery of rent she could not be entitled to ask for the tenant's eviction. In elaborating his argument learned Counsel pointed out that in Section 13 of the Act several grounds of eviction were peculiar to a landlord who was having the property for himself in contradistinction to such of the landlords who might come within the enlarged definition of the term ' landlord' in Section 3 of the Act vet they would not be entitled to sue for eviction. I may read the relevant definition:

Section 3(iii) '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 for any other person, or who would so receive or be entitled to receive the rent if the premises were let to a tenant; it includes a tenant in relation to a sub-tenant.

10. Now, Smt. Niji Bai is a person who for the time being is receiving the rent. She is also entitled to receive the rent of the premises. This definition comprises such of the persons who receive or are entitled to receive the rent, whether of their own account or in their capacity as agent, trustee, guardian or receiver or any other person. The definition also includes a tenant in relation to a sub tenant. Nov, there is no doubt that Smt. Niji Bai was receiving the rent on her own account, because that was to be utilised for her own maintenance and in receiving the rent she was not accountable to any other person. Therefore, she is a landlord in her own right within the meaning of this sub section. It is true, Section 13 deals with several grounds of eviction and many of the grounds for example, one of bonafide personal necessity of the landlord, will be peculiar to the landlord who sues for eviction and it will be the requirement of that landlord who sues for eviction and it will be the requirement of that landlord which will have to be established An agent, trustee, guardian or receiver who act for others may not be entitled to seek eviction on account of their own personal needs even though such persons fall under the definition of the term 'landlord'', but they would certainly be entitled to seek the eviction on the ground of default. Learned Counsel apprehends that while giving a wider meaning to the definition and limiting that definition in its application to the provisions of Section 13 may result in conflict of the two provisions. I do not think that there is justification for such an apprehension The definition clause begins with the premise that unless there is anything repugnant in the subject or context the term would carry the meaning as given in the section. This means that in applying the definitions to a particular section one has to go by the subject matter and context of that section.

11. Now, if Smt. Niji Bai was entitled to receive the rent for her maintenance, that is, for her own benefit then that right of her's would be effective only if she is entitled to bring a suit for arrears of rent. The right to bring the suit, for arrears of rent would be incidental to her right to receive the rent Likewise, when the rent was to be utilised by herself for her own maintenance she could certainly seek the eviction of the tenant who had defaulted in the payment of rent For ensuring regular payment of rent for her maintanance she may keep a tenant who is not making defaults in the making of payment. Therefore, Smt. Niji Bai can certainly seek the defendant's eviction on the ground of default. Here, I again express no opinion whether in the circumstances she would be entitled to seek the tenant's eviction on other grounds or not. Therefore, I am unable to accept the second contention of the learned Counsel that Smt. Niji Bai was not entitled to bring the suit for eviction.

12. The third contention about the default in the payment of rent is one of fact. Both the courts had concurrently held that the tenant was a defaulter and thus liable to eviction. The finding is, therefore, not open to challennge in second appeal.

13. The result is that the appeal has no force and is accordingly hereby dismissed with costs.

14. Learned Counsel submitted that there is shortage of accommodation and the tenant would be facing hardship if he is asked to vacate the premises at once. He, therefore, prayed for some respite. Looking to the period for which he had been on the premises five months time is allowed to the appellant to vacate the premises, but this shall be on the condition that he pays all the arrears of rent, if any, within one month from today and thereafter goes on paying compensation at the rate of rent month by month by the 15th of following month till he vacates the promises.

15. Learned Counsel orally prayed for leave to appeal under Section 18 of the Rajasthan High Court Ordinance, but I am not inclined to grant the leave which is accordingly hereby refused.


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