Delhi High Court
Satya Gupta vs Guneet Singh on 3 April, 2014
Author: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 3rd April, 2014.
+ CS(OS) No.2695/2011
SATYA GUPTA ..... Plaintiff
Through: Mr. Anuj Gupta, Adv. with husband
of the plaintiff.
Versus
GUNEET SINGH ..... Defendant
Through: Mr. Sanjay Diwan and Mr. J.S.
Kathuria, Advs.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. The plaintiff has filed this suit for partition of property No.14/10,
Ground Floor, Rear Portion, Shakti Nagar, Delhi as shown in the Site Plan
filed with the plaint. The said Site Plan upon being admitted by the
defendant during admission/denial of documents, has been given Ex.P-1.
2. Vide judgment dated 7th November, 2012, a preliminary decree for
partition, declaring the plaintiff and the defendant to be having half
undivided share each in the said property was passed, noticing the
undisputed facts as under:
i) One Shri Jai Narain Gupta and one Shri Raj Kumar Aggarwal
were the owners of the ground floor built on half portion admeasuring
CS(OS) No.2695/2011 Page 1 of 8
120.575 square yards of property No.14/10, Shakti Nagar, Delhi-
110007;
ii) The father of the defendant was a tenant of the said ground
floor, paying half of the rent to Shri Jai Narain Gupta and remaining
half rent to Shri Raj Kumar Aggarwal;
iii) Shri Jai Narain Gupta died on 01.01.1998 and the plaintiff is
the daughter-in-law of Shri Jai Narain Gupta;
iv) That after the demise of Shri Jai Narain Gupta, the father of the
defendant and after his demise the defendant, was paying the share of
the rent of Shri Jai Narain Gupta to the plaintiff;
v) That subsequently the defendant stopped paying rent, claiming
to have acquired the half share of Shri Raj Kumar Aggarwal in the
property.
3. It is the case of the defendant that the tenancy rights of his father in
the premises have been inherited by him along with his two sisters and
mother who are not parties to this suit. On enquiry, it was stated that the
two sisters of the defendant are married and not residing in the suit premises
and are residing in their matrimonial home; the mother of the defendant is
CS(OS) No.2695/2011 Page 2 of 8
however stated to be residing in the said ground floor, together with the
defendant.
4. In the judgment dated 7th November, 2012 passing the preliminary
decree of partition, attention of the counsels was invited to Kumar Jagdish
Chandra Sinha Vs. Mrs. Eileen K. Patricia D'Rozarie (1995) 1 SCC 164
and Rani Devi (Smt) Vs. Bhole Nath (1992) 1 SCC 61 and Surayya Begum
Vs. Mohd. Usman (1991) 3 SCC 114 on the aspect of rights of married
daughters of the tenant and to the judgments in Pramod Kumar Jaiswal Vs.
Bibi Husn Bano (2005) 5 SCC 492 and Imambi Vs. Azeeza Bee
MANU/SC/1671/1999 on the aspect of effect of purchase by a tenant of a
share in the tenancy premises and the matter was adjourned for hearing on
the said aspect.
5. The counsels for the parties have been heard.
6. The counsel for the plaintiff has argued:
(i) that neither the mother nor the sisters of the defendant have
ever claimed any tenancy rights and it was the defendant alone who
has been paying the rent by way of cheques and the mother and sisters
of the defendant are deemed to have surrendered their tenancy rights.
Reliance in this regard is placed on Prakash Wati Bali Vs. Manish
CS(OS) No.2695/2011 Page 3 of 8
Diwan 62 (1996) DLT 475 and K.L. Diwan Vs. Mohan Malhotra
158 (2009) DLT 442;
(ii) relying on Abul Alim Vs. Sheikh Jamal Uddin Ansari (1998)
9 SCC 683 it is contended that where one co-owner brother sells the
share to the tenant without partition, the tenant acquires co-ownership
rights in the property and no more remains a tenant.
It is thus contended that partition by metes and bounds be
affected.
7. Per contra, the counsel for the defendant has argued:
(a) that the father of the defendant Sh. S. Kuldip Singh was a
tenant in the aforesaid premises since the year 1979 and was paying
rent of Rs.375/- per month in equal proportion of Rs.187.50 paise
each to Sh. Jai Narain and Sh. Raj Kumar Aggarwal;
(b) that on the demise of Sh. S. Kuldip Singh on 5 th November,
2010, the tenancy rights have been inherited, besides by the defendant
also by his mother and his sisters;
(c) that even after purchase by the defendant on 26th March, 2011
of the half share of Sh. Raj Kumar Aggarwal in the said ground floor,
CS(OS) No.2695/2011 Page 4 of 8
the defendant was paying rent of the share of Sh. Jai Narain to Sh. Jai
Narain and after the demise of Sh. Jai Narain, to the plaintiff;
(d) that under Section 111(d) of the Transfer of Property Act,
1882, a lease of immovable property determines in case the interests
of the lessee and the lessor in the whole of the property becomes
vested at the same time in one person in the same right;
(e) that in the present case, the rights of only one of the co-owners,
namely Sh. Raj Kumar Aggarwal have vested in the defendant and his
mother and sisters and thus Section 111(d) supra has no application
since the defendant, his mother and sisters have not become the
owners of the entire premises in their tenancy and have become
owner only to the extent of half share in the tenancy premises;
(f) that thus the interest of the defendant and his mother and sisters
as tenant in the entire premises still subsists;
(g) reliance is placed on M/s. India Umbrella Manufacturing Co.
Vs. Bhagabandei Agarwalla AIR 2004 SC 1321 and on Pramod
Kumar Jaiswal supra;
(h) that the plaintiff, in the garb of partition, cannot disturb the
tenancy rights of the defendant and his mother.
CS(OS) No.2695/2011 Page 5 of 8
8. I have considered the rival submissions.
9. Though a two Judges Bench of the Supreme Court in Imambi supra,
relying on Abul Alim supra held that the status of a tenant in whose favour
Sale Deed of half share of the tenancy premises is executed becomes as that
of a co-owner with the landlord but the three Judges Bench of the Supreme
Court in Pramod Kumar Jaiswal supra was constituted for the reason of the
conflict in the decisions of the Supreme Court in Abul Alim supra and in T.
Lakshmipathi Vs. P. Nithyananda Reddy (2003) 5 SCC 150 and the said
three Judges Bench held the decision in Abul Alim supra to be without
reference to Section 111(d) supra and not correct and held that unless the
interest of the lessee and the lessor in the whole of the property leased
become vested at the same time in one person in the same right, a
determination of the lease cannot take place. It was further held that on
taking an assignment from some of the co-owner landlords, the interests of
the lessee and the lessor in the whole of the property do not become vested
at the same time in one person in the same right and therefore a lessee who
has taken assignment of the rights of a co-owner lessor, cannot successfully
raise the plea of determination of tenancy on the ground of merger of his
lessee's estate in that of the estate of the lessor.
CS(OS) No.2695/2011 Page 6 of 8
10. I may mention that a Division Bench of this Court also in FAB India
Overseas Private Limited vs. S.N. Sheopori 199 (2013) DLT 351 has held
that even if the tenant purchases 50% share of joint owner, the tenancy is
not determined and continues.
11. Thus, it has but to be held that though the plaintiff and the defendant
are the owners in equal share of the premises aforesaid but the defendant,
whether alone or along with his mother and sisters is a tenant in the entire
premises.
12. In this view of the matter, need is not felt in this proceeding to
adjudicate, whether the defendant alone is the tenant or the mother and
sisters of the defendant are also the tenants along with him.
13. I have perused the Site Plan Ex.P-1 of the premises. The premises as
aforesaid already comprise of half share admeasuring 120.575 sq. yds. of
the ground floor of the property. I have enquired from the counsels whether
partition by metes and bounds of the same is feasible. Both the counsels
agree that it is not.
14. Once, that is the position, there is no other option but to pass a final
decree for partition, by sale of the property and distribution of sale proceeds
between the parties as per their respective share in terms of the preliminary
CS(OS) No.2695/2011 Page 7 of 8
decree. Such sale will of course be subject to the tenancy rights of the
defendant or of the defendant and his mother and sisters in the premises.
Decree is accordingly passed.
No costs. Decree sheet be drawn up.
RAJIV SAHAI ENDLAW, J.
APRIL 03, 2014.
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