Dalip Kumar vs Om Parkash & Ors
2015 Latest Caselaw 5913 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                          Date of decision: 13th August, 2015.

+                                 RFA 73/2010

       DALIP KUMAR                                            ..... Appellant
                           Through:     Mr. Khush Bir Singh, Adv.

                                  Versus

       OM PARKASH & ORS                                   ..... Respondents

                   Through:             Mr. Bhagwat Prasad Gupta, Adv. for
                                        R-8 to 10.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. This appeal under Section 96 of Code of Civil Procedure, 1908 (CPC)

impugns the judgment and decree dated 31st August, 2009 of the Court of Sh.

Bhupesh Kumar, Additional District Judge (ADJ)-06 (West), Delhi of

dismissal of a suit filed by the appellant for partition of the estate left behind

by his father late Sh. Ram Prasad.

2. Notice of the appeal was issued. The respondents No.1, 4 & 5 died

during the pendency of the appeal and their legal representatives were

substituted vide orders dated 2nd May, 2013, 17th July, 2013 and 13th March,

2015 respectively. The Registrar (Appellate) has in orders dated 4th

December, 2014 and 20th January, 2015 recorded that all the respondents

have been served. However only the counsel for the appellant and the

counsel for the respondents No.8 to 10 appear. The other respondents are

proceeded against ex-parte. Though the Trial Court record has not been

requisitioned but considering the nature of the controversy, need therefor is

not felt. The counsels have been heard.

3. The suit as aforesaid, was for the reliefs of partition and rendition of

accounts with respect to the estate of late Sh. Ram Prasad of whom the

appellant and the respondents are the legal heirs. The said estate comprises

of (i) tenancy rights in two commercial premises (shops) being at 28/24, East

Patel Nagar, New Delhi and at 4340, Ansari Road, Daryaganj, New Delhi;

(ii) tenancy rights in a residential premises at 1997, Ganj Mir Khan,

Daryaganj, New Delhi; (iii) a Maruti Car; (iv) jewellery; and, (v) cash in the

savings bank account (in Allahabad Bank, Ansari Road).

4. On the pleadings of the parties, there was no dispute that, the (i)

appellant; (ii) respondent No.1; (iii) respondents No.2 to 6 together; (iv)

respondent No.7; (v) respondents No.8 to 10 together; (vi) respondent No.11;

and, (vii) respondent No.12, have 1/7th share each in the estate of late Sh.

Ram Prasad. Only the following issues were framed in the suit:

"1. Whether the tenancy right can be partitioned? OPP.

2. Whether D-8 to the exclusion of all others has inherited the tenancy in respect of shop no.4340, Ansari Road, Darya

Ganj, N.D.? OPD-8.

3. Whether D-7 to the exclusion of all others has inherited the tenancy right of shop no.28/24, Patel Nagar, N.D. and house no.1997, Ganj Mir Khan, Daryaganj, Delhi? OPD-7.

4. Whether the plaintiff is entitled the decree of partition? OPP

5. Whether the plaintiff is entitled to rendition of account? OPP

6. Relief."

5. The learned ADJ, in the impugned judgment, has held:

(i) that the tenancy rights cannot be partitioned, owing to the small

size of the tenancy premises and owing to the landlords having not

been impleaded as parties to the suit and in the absence of the

landlords, the tenancy rights being impartible;

(ii) that the defendant No.8 and the defendant No.7 had failed to

prove Issues No.2 & 3 respectively, which were thus decided against

them;

(iii) that since the tenancy rights are impartible, the appellant is not

entitled to a decree for partition;

(iv) that the appellant, in his evidence, has not established any claim

for rendition of accounts.

6. The counsel for the appellant today also has confined his contentions

to Issue No.1 only, decided against him, i.e. of the tenancy rights being not

partible.

7. The counsel for the respondents No.8 to 10 contended, (a) that the rent

of the tenancy premises at Daryaganj was Rs.100/- per month; (b) however

the appellant, after the demise of the father mixed with the landlord and

purported to increase the rent to Rs.2,200/- per month and in collusion with

the landlord, got a petition for eviction under the Delhi Rent Control Act,

1958 filed against himself only; (c) that the respondent No.8 on coming to

know of the same, applied for being impleaded therein and ultimately got the

eviction petition dismissed and appeal by the landlord thereagainst was also

dismissed. The only other argument is, that considering the small size of the

two commercial tenancy premises and the business being carried on therein

i.e. of a barber shop, there is no possibility of partition. It is also contended

that it is the respondent No.8 only who has been paying / depositing the rent

of the shop at Daryaganj to the landlord.

8. On enquiry, it is informed that while the shop at Daryaganj is in the

control of the respondent No.8, the shop at East Patel Nagar and the

residential house at Daryaganj are under the control of the respondent No.7.

9. It would thus be seen that the adjudication of the present appeal is to

be confined to the finding on Issue No.1 only and which is a purely legal

finding to be returned i.e. whether a suit for partition with respect to the

tenancy premises would lie or not. At this stage, the question, whether the

tenancy premises owing to its small size permits or does not permit its

partition by metes and bounds, is not to be gone into. The said exercise is to

be undertaken after a preliminary decree for partition is passed and which

stage did not arise, owing to the suit itself having been dismissed. However,

while on the subject, I may record that even if the tenancy premises, owing

to its small size or otherwise owing to the restrictions placed by the landlord

are not divisible by metes and bounds, the same can always be partitioned by

one or more of the several legal heirs appropriating the tenancy rights to

himself / themselves to the exclusions of others in consideration of payment

of ovalty or otherwise to the other legal heirs.

10. The counsel for the respondents No.8 to 10 at this stage states that all

the other heirs have already surrendered their respective rights in the shop at

Daryaganj in favour of the respondent No.8 and it is only the appellant who

is fighting.

11. The learned ADJ, in the impugned judgment, has given the following

reasons for holding the tenancy rights to be impartible:

(I) that the tenancy rights are governed by the Rent Act;

(II) that after the death of the predecessor, all the legal heirs are in

joint possession of the tenancy premises as tenants;

(III) that in case the tenancy premises are partitioned, then each of

the heirs would become individual tenants of the landlord in his / her

respective share / portion of the property and the same would amount

to creating another tenancy, which is prohibited by the Rent Act;

(IV) that if the tenancy premises are partitioned, then each of the

heirs would be individually liable to pay rent of his / her respective

shares / portions and in case any one of them fails to pay the rent, the

landlord would be entitled to evict;

(V) that similarly, if the tenancy rights are partitioned, others would

also become liable for eviction owing to a default by one;

(VI) that the landlord is unlikely to agree to such partition;

(VII) that without the landlord, no decree for partition of tenancy

rights can be granted.

12. Though attention of the learned ADJ was invited by the counsel for

the appellant/plaintiff to V.N. Sarin Vs. Major Ajit Kumar Poplai

AIR 1966 SC 432, Lalit Kumar Seth Vs. S.R. Seth 2008 VIII AD (Delhi)

753 and Ram Lal Sachdev Vs. Smt. Sneh Sinha AIR 2000 Delhi 92, but the

learned ADJ has held the same to be not applicable since they pertain to the

perpetual leasehold rights under the Delhi Development Authority and not to

a tenancy protected under the Rent Act.

13. I am unable to concur with the reasoning aforesaid of the learned ADJ.

A tenancy right, specially in a premises governed by the Rent Act and from

which the landlord cannot evict save on the grounds provided in the Statute,

is a valuable asset and there is no bar in any law whatsoever to partition

thereof. Of course, the said partition has to be in accordance with law and

the Court cannot direct partition in a manner prohibited by the Rent Act.

Thus, the assumption by the learned ADJ, of the tenancy rights being per se

impartible, is found to be erroneous.

14. I have already recorded hereinabove, one of the manners in which the

tenancy premises can be partitioned. Similarly, if the tenancy premises and

the number of heirs permit, partition can also be by devising modalities for

use thereof by the heirs, without infringing the law governing the tenancy

premises or the terms and conditions of the agreement, if any, of tenancy.

Just like it has been held in judgments supra vis-a-vis constructions on

leasehold land, that the bar to subdivision of the leasehold rights in land is

not a bar to subdivision of superstructure constructed thereon, with leasehold

rights in land continuing to jointly vest in all the heirs, the tenancy rights in a

premises can be partitioned by allocating exclusive use of different portions

thereof (if possible) to different heirs, with the tenancy rights jointly vesting

in all the heirs.

15. However as aforesaid, this is not the stage to consider the different

modes in which the tenancy premises can be partitioned.

16. If a valuable asset as tenancy rights is held to be impartible, it would

lead to the heir in control thereof appropriating the same to himself / herself,

to the detriment of others. Physical impartibility of an asset does not make it

impartible as the asset can always be permitted to be appropriated by an heir

who bids the maximum for the same.

17. This Court, in Iresh Duggal Vs. Virender Kumar Seth

MANU/DE/3068/2014 also held that tenanted premises can always be

partitioned for inter se use among the tenants and merely because there is an

inter se division amongst the tenants, for convenience of use of the tenanted

property, the same will not amount to subletting, assigning or parting with

possession of the tenanted premises inter se the tenants. It was further held

that mere inter se division amongst co-tenants, for the purpose of user of the

tenanted premises, will not amount to subletting qua the landlord. It was yet

further held that tenanted premises are bound to be partitioned for inter se

use, without destroying the common tenancy rights. Reference in this regard

can also be made to Bharat Insulation Co. Vs. Suraj Parkash 221 (2015)

DLT 216.

18. The finding of the learned ADJ on Issue No.1 is accordingly set aside.

19. The onus of Issues No.2&3 was on the respondents/defendants No.7 &

8 respectively, who have been held to have not discharged the said onus and

to have not proved the said issues, which in the impugned judgment, have

been decided against the respondents No.7&8. No arguments in that respect

have been addressed today.

20. The counsel for the appellant has not pressed for partition qua the

other movable property or monies qua which also the suit was filed or for

rendition of accounts of any of the assets.

21. The appeal thus succeeds to the aforesaid extent. The judgment and

decree of the learned ADJ is set aside and a preliminary decree for partition

is passed declaring the (i) appellant, (ii) respondent No.1, (iii) respondents

No.2 to 6 together, (iv) respondent No.7, (v) respondents No.8 to 10

together, (vi) respondent No.11 & (vii) respondent No.12 to be having 1/7th

share each in the two commercial tenancy premises at 28/24, East Patel

Nagar, New Delhi and at 4340, Ansari Road, Daryaganj, New Delhi and in

the tenancy rights in the residential premises at 1997, Ganj Mir Khan,

Daryaganj, New Delhi.

22. No costs.

23. Decree sheet be drawn up.

24. The parties to appear before the District Judge (West) on 28th

September, 2015 for further proceeding in accordance with law. The District

Judge (West) to either proceed further himself or mark the suit to any other

Judge.

25. Both counsels seek reference to mediation. The Court, before which

the suit is pending, shall make efforts for amicable settlement, either himself

or herself or through the Mediation Cell attached thereto.

Dasti.

RAJIV SAHAI ENDLAW, J.

AUGUST 13, 2015 bs (corrected & released on 5th September, 2015)