Satish Kumar And Another vs Shri Madhusudan Lal
1998 Latest Caselaw 699 Del

JUDGMENT

C.M. Nayar, J.

1. The present petition is directed against the judgment dated 27th March, 1995 passed by Shri P.D. Gupta, Additional Rent Controller, Delhi.

2. The respondent alleges that he is the owner and landlord of the premises known as 37, Double Storey Quarters, New Rajinder Nagar, New Delhi and the petitioners are the tenants of the said premises at a monthly rent of Rs.1000/- which was let out to them in the year 1978. The premises were let out for residential purposes and are being used by the petitioners as such and the said premises are required by the respondent bona fide for himself and his other family members dependent on him. At the time of filing of the petition the respondent was in Government accommodation and subsequently retired from the Government service. Therefore, he was required to surrender the accommodation allotted to him by the Government. Petitioner no.1 took the plea that there is no relationship of landlord and tenant and that the respondent has concealed material facts. Originally Quarter Nos.37, 38, New Rajinder Nagar, New Delhi were purchased in an open auction by Shri Ram Narain father of the respondent and grand father of the petitioners. The said Shri Ram Narain died on 31st December, 1964 but he had executed a Will by which he had given a life interest in both the Quarters to his wife, Smt.Har Kaur and after her death it was desired in the Will that Shri Jagdish Chander shall become owner of Quarter No.38 while Madhu Sudan becomes the owner of Quarter No.37. Smt. Har Kaur, grand mother of the petitioners and mother of the respondent was managing both the Quarters till her death and gave general power of attorney to Shri Madan Mohan for collecting rent and for issuing rent receipts. Thereafter a suit was filed in 1969 when first floor was got vacated. Then the same portion was let out and was again got vacated in 1973. The mother of the respondent and grand mother of the petitioners died on 1st December, 1980. It was alleged that it was mutually agreed between both the brothers i.e. the respondent and father of petitioner no.1 that according to Will of Ram Narain the ground floor portion which was in possession of brother-in-law of the respondent shall become that of the respondent while Quarter No.37 which was in possession of the petitioners shall become the property of Jagdish Chander, father of the petitioners. Smt.Har Kaur, grand mother of the petitioners allegedly created a joint tenancy in Quarter No.37 in favour of petitioner no.1 and his brother Chander Mohan in 1973 at a monthly rent of Rs.50/-. The brother of petitioner no.1 is not occupying the said portion since 1973. Petitioner no.1 was in exclusive possession of Quarter No.37 and continued to pay rent to Smt. Har Kaur. Shri Jagdish Chander who was named as the owner of Quarter No.38 in the Will in accordance with the compromise and also with regard to the fact that brother-in-law of the respondent was residing in Quarter No.38 never demanded any rent from him. It is next alleged that the respondent has got more than sufficient accommodation and before his retirement in May 1984 he got another employment in Panchkula near Chandigarh from the Department. The petition of the respondent was not maintainable because the sale certificate was executed by the Rehabilitation Department in favour of Jagdish Chander and the respondent only in March 1984 and no petition for personal requirement can be filed before the expiry of five years. Till 1st December 1980 Smt.Har Kaur was managing and recovering rent from petitioner no.1 and thereafter no one has ever claimed any rent. Petitioner no.1 is living at the premises in question in his own right as owner being the heir of Jagdish Chander. Similar pleas have been taken by petitioner no.2. It was, however, also alleged that in view of the oral Will of late Ram Narain, his wife late Smt.Har Kaur is not the land lady of the premises in question by which the first floor premises and ground floor premises of Property Nos. 37, 38, New Rajinder Nagar, New Delhi will be treated as separate only when the respondent get the ground floor vacated from his brother-in-law Shri S.P.Gandhi. The present petition as a consequence is not maintainable. The premises were let out for residential and commercial purposes and no Order of eviction can be made in respect of the same.

3. The petition having been filed under the provisions of Section 14(1)(e) of the Delhi Rent Control Act, the following ingredients have to be proved:

(a). The respondent was the owner and landlord of the premises in question.

(b). The premises were let out for residential purposes only.

(c). The premises were required bonafide by the respondent for himself and his family members dependent on him for the purpose of residence.

(d). The respondent had no other reasonable suitable accommodation.

4. The learned Additional Rent Controller dealt with the above questions in the following manner:-

(a). Petitioner no.2 in his statement has stated that the respondent is not the landlord of the premises in question in view of the oral Will of late Shri Ram Narain father of the respondent that the first floor and the ground floor of the property shall be treated as separate only when the respondent gets the ground floor vacated from his brother-in-law Shri S.P.Gandhi and according to Will Quarter No.37 i.e. the premises in question shall go to the father of the petitioners whereas Quarter No.38 shall go to the respondent. The respondent in his statement as AW1 has stated that his father has left Will dated 26th April 1960 according to which Quarter No.37 fell to his share and his mother was given life interest in the property. She died on 1st December, 1980 and thereafter the respondent has become owner of the property. Quarter No.38 fell to the share of his elder brother Jagdish Chander. Original lease deed Exhibit AW-1/1 was signed by him. Petitioner no.1 in his statement has proved copy of the Will of Shri Ram Narain Exhibit RW-1/3. RW3 Shri Madan Mohan has stated that late Smt.Har Kaur had given him the attorney. Rent for Quarter No.37 and 38 was recovered by the mother during her life time and he has been collecting the same on her behalf and there was an oral agreement by which Quarter No.38 was to be given to the respondent and Quarter No.37 was to be given to the petitioners, but later on the respondent refused to abide by this agreement. In the re-examination the respondent has stated that the property is leasehold belonging to Ministry of Rehabilitation. He applied for a fresh lease deed in his name and he obtained the same on 13th March, 1984. Exhibit AW 1/1 is the duly registered. There is no other evidence on the file. Thus from the version of petitioner no.1 he has been a tenant under Smt. Har Kaur at the premises in question and has been paying rent. The Rent Controller also took into consideration the registered deed executed by the Rehabilitation Department referred to Exhibit AW- 1/1 to come to the conclusion that the respondent was the owner of the premises in question. In view of the documentary evidence no reliance can be placed on the oral version of the petitioners that by mutual agreement between the respondent and father of petitioner no.1 Quarter No.37 was given to the father of petitioner no.1 and Quarter No.38 was given to the respondent. Therefore, it was held that the respondent was the owner/landlord of the premises in question.

(b). The question as to whether the premises were let out for residential purposes only need not be discussed as there is no argument on behalf of the petitioners to this effect and it has been clearly conceded that the premises were used for residential purposes.

(c)&(d). The need of the respondent may now be examined. The family consisted of the respondent, his wife, one daughter, one son and he has no other accommodation to live. The respondent has further stated that he was residing at 377, Double Storey, New Rajinder Nagar, New Delhi as a tenant and the owner of the premises has already obtained an eviction order against him from the Court of Shri M.L.Mehta, Additional Rent Controller, Delhi on 25th July, 1986. It was further stated on re-examination on 11th April, 1994 that the respondent was now living in a rented house and had been living in different houses on vacation of government accommodation by him. The Rent Controller, accordingly, on appreciation of evidence on record came to the conclusion that the premises were required by the respondent bona fide for the use of his residence and for the family dependent on him and he has no other reasonable suitable accommodation available for the purpose. There is no challenge with regard to this finding as well.

5. The learned counsel for the petitioners has reiterated that there is no relationship of landlord and tenant between the parties and no decree for eviction can be passed. Even otherwise the tenancy rights created by life estate holder Smt.Har Kaur came to an end on her demise on 1st December, 1980 and the property vested in the sons Mr.Jagdish Chander and Mr.Madhusudan Lal. Shri Jagdish Chander, father of the petitioners, passed away in the year 1984, therefore, the petitioners are as such co-owners of the suit property. In any case on the demise of Smt.Har Kaur on 1st December, 1980 as the tenancy created by her came to an end, the petitioners ceased to be tenants in the suit property and are occupying the premises as co-owners. Therefore, there is no relationship of landlord and tenant between the parties. Reliance is placed on a Full Bench judgment as reported in Puran Chand & Co. Vs. Ganeshi Lal Tara Chand and others to reiterate the proposition that relationship of landlord and tenant comes to an end when no fresh relationship has been created as in the present case on the death of Har Kaur on 1st December, 1980. This judgment related to the rights of the tenants inducted by mortgagee in possession and it was held that such tenants cannot claim benefit of protection afforded by Rent Control Legislation after redemption of mortgage. The lease of the immovable property created by mortgagee will also determine on redemption. Reliance has been placed on judgments of the Supreme Court as referred in the Full Bench decision. Paragraphs 12, 13 and 15 may be reproduced as follows:-

"12. Following these decisions we hold that the general rule is that every subordinate interest must perish with the superior interest on which it is dependent. A mortgagee in possession may grant a lease but he cannot create a lease of the mortgaged property which may ensure beyond the termination of his own interest as a mortgagee unless he has been empowered to do so under the mortgagee contract. The relationship of landlord and tenant between the mortgagee in possession and his tenant, comes to an end on redemption unless the relationship is agreed by the mortgagor or a fresh relationship is recreated.

13. There is, however, a well established exception to this general rule. The general rule will not apply if a tenant, inducted by a mortgagee in possession in the process of prudent management, is given any protection or certain rights are conferred on him by a statute enacted in the meantime. Mortgagor's right to obtain actual possession of the mortgaged property on redemption would be affected to that extent. This exception, obviously, is the creation of the statute concerned and not the Transfer of Property Act. This principle was recognized by the Supreme Court in Mahabir Gope's case (supra). It was held:

"A permissible settlement by a mortgagee in possession with a tenant in the course of prudent management and the springing up of rights in the tenant conferred or created by statute based on the nature of the land and possession for the requisite period is a different matter altogether. It is an exception to the general rule. The tenant cannot be ejected by the mortgagor even after the redemption of the mortgage. He may become an occupancy `raiyat' in some cases and a non-occupancy `raiyat' in other cases. But the settlement of the tenant by the mortgagee must have been a `bona fide' one. This exception will not apply in a case where the terms of the mortgage prohibit the mortgagee from making any settlement of tenants on the land either expressly or by necessary implication."

15. Relevant statute in the present case is the Delhi Rent Control Act, 1958 (hereinafter to be referred as 'the Act'). Does 'the Act' create any rights or grant any protection to the tenant of a mortgagee in possession? 'The Act', as is clear from its preamble was enacted 'to provide for the control of rents and evictions and rates of hotels and lodging houses, and for the lease of vacant premises to Government in certain areas in the Union Territory of Delhi'. One of the objects of 'the Act' is to prevent unreasonable evictions. 'The Act', however, does not confer any rights on the tenants, as such, based on the duration of the possession as a tenant or the nature of demised property or the rate of rent etc."

6. The definition of "landlord" was then considered in paragraph 19 and the following finding was recorded in paragraph 20 of the aforesaid judgment which reads as follows:-

"20. A mortgagor on redemption, in our view, is not covered by this definition. He is not a person, who, for the time being, is either receiving rent or is entitled to receive rent because there is no privity of contract between him and his mortgagee's tenant. Relationship of landlord and tenant does not come into existence by operation of law. Provisions contained in S. 109 of the Transfer of Property Act, as we would presently discuss, are not attracted. The disability imposed by S. 14(i) of `the Act' on a landlord would, therefore, not apply to a mortgagor seeking possession of his property on redemption."

7. Similarly while dealing with the definition of the "tenant" the Court stated the law in paragraph 22 as follows:-

"22. The tenant of a mortgagee whose mortgage has been redeemed is not covered by this definition. As observed above, there exists no relationship of landlord and tenant between him and the mortgagor. He is, therefore, not liable to pay rent to the mortgagor."

8. The ultimate conclusion was reiterated in paragraph 50 which reads as follows:-

"50. In conclusion, our answer to the reference is that the tenant, inducted by a mortgagee in possession cannot claim the benefit of the protection afforded by the Rent Control Legislation after the redemption of the mortgage, unless the mortgagor had permitted the mortgagee to induct a tenant even beyond the term of the mortgage or has concurred to the creation of the lease or has adopted it."

9. The above said judgment is of no assistance to decide the question which arises for consideration in the present case as it is of no application to the facts of this case. The admitted position is that the parties have accepted Smt.Har Kaur the grand mother not only as the land lady but also as the owner. The case of mortgagee, therefore, cannot be equated as all rights must perish when the mortgage is redeemed. The exception to this rule, however, is cited to protect certain rights which are created in the process of prudent management.

10. The question then arises as to whether the respondent was entitled to step in the shoes of Smt.Har Kaur. The plea of the petitioners that there was an oral agreement by which Quarter No.38 was to be given to the respondent and Quarter No.37 was given to the petitioners but later on respondent refused to abide by his statement was categorically rejected by the learned Rent Controller. The property is a leasehold property belonging to Ministry of Rehabilitation. The respondent applied for a fresh lease deed in his name and obtained the same on 13th March, 1984 Exhibit AW-1/1 is the lease deed which is duly registered. Therefore, it is established that petitioner no. 1 has been a tenant under Smt.Har Kaur in respect of the premises and has been paying rent which consequently fell to the share of the respondent. The plea that he was the owner in his own right was rejected on appreciation of evidence on record as it was held that the registered lease deed executed by the Rehabilitation Department Exhibit AW-1/1 in favour of the respondent has to be accepted and in view of the documentary evidence no reliance can be placed on the oral version of the petitioners that by mutual agreement it was held otherwise. The findings of the Controller are based on appreciation of evidence on record and cannot be interfered with in exercise of revisional powers of this Court. Faced with the above situation, the learned counsel for the petitioners has cited the judgment of the Supreme Court as reported in Smt.Rukhamanbai Vs. Shivram and others to reiterate the proposition that when no plea of deemed tenancy has been raised by the respondent the only remedy is by way of filing a suit for possession and not by taking recourse to the proceedings under the provisions of the Delhi Rent Control Act. The respondent cannot be vested with the right of a tenant when the life interest itself has come to an end.

11. This plea is merely academic as in the first instance on the basis of the oral as well as documentary evidence it has been established on record that the respondent is the owner and landlord of the premises in dispute. The eviction order has been passed under the provisions of the Delhi Rent Control Act and it will not be necessary to reagitate the entire matter by filing the suit for possession when the respondent has clearly pleaded his ownership on the basis of the certificate issued by the Rehabilitation Department as well as on the assumption which is supported by law and facts that he is the landlord of the premises in dispute. The plea that the person holding life interest cannot file a suit for recovery of possession has no basis as it has been categorically held by Calcutta High Court in the judgment reported as Jiban Roy Choudhury Vs. Sm.Taramoyee Debi 1979 (2) RCR 697 wherein it has been held that life interest holder can eject the tenant on the ground of personal bona fide requirement. Similarly the Supreme Court has reiterated that the holder of life interest can also be at liberty to approach the Court to evict the tenants under the Rent Legislation. This is so held in the judgment of the Supreme Court reported as S.M.Gopalakrishna Chetty Vs. Ganeshan and others . In the present case Smt.Har Kaur who held a life interest died but by a subsequent happening the respondent has become the owner and landlord of the premises. Therefore, he was equally entitled to entertain an application for eviction under the provisions of the Delhi Rent Control Act.

12. No other point has been urged by learned counsel for the petitioners.

13. In view of the above the present petition is devoid of force and is, accordingly, dismissed. There will be no order as to costs.