Ashok Kumar & Anr vs Ram Avtar Gupta
2017 Latest Caselaw 3194 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                        Date of decision: 12th July, 2017
+                         RC.REV. 308/2017
       ASHOK KUMAR & ANR                              ..... Petitioners
                  Through:          Mr. Sachin Puri, Mr. Sanjeev
                                    Nasiar and Ms. Mehak Tanwar,
                                    Advs.
                              Versus
    RAM AVTAR GUPTA                                  ..... Respondent

Through: Mr. T.S. Ahuja, Mr. Varun Ahuja and Mr. Abhishek Gupta, Advs.

CORAM:

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW Caveat No.624/2017

1. The counsel for the caveator/respondent has appeared.

2. The caveat stands discharged.

CM No.23962/2017 (for exemption)

3. Allowed, subject to just exceptions.

4. The application is disposed of.

RC.REV. 308/2017 & CM No.23961/2017 (for stay)

5. This Revision Petition under Section 25-B(8) of the Delhi Rent Control Act, 1958 impugns the order (dated 27th March, 2017 of Additional Rent Controller (ARC)-02, Central District, Tis Hazari Courts, Delhi) of dismissal of the application filed by the two petitioners/tenants for leave to defend the petition for eviction [being E- 68/16 (New No.77368/16)] filed by the respondent/landlord under Section 14(1)(e) of the Act for eviction of the petitioners/tenants from shop No.2915, Arya Pura, Sabzi Mandi, Delhi-07 as well as the consequent order of eviction.

6. Having gone through the paper book, I have at the outset enquired from the counsel for the respondent/landlord, whether not the petition for eviction itself was barred by Section 14(6) of the Act.

7. Section 14(6) of the Act provides that "where a landlord has acquired any premises by transfer, no application for the recovery of possession of such premises shall lie under sub-section (1), on the ground specified in clause (e) of the proviso thereto, unless a period of five years have elapsed from the date of the acquisition".

8. The respondent/landlord in para 18(a)(i) of the petition for eviction from which this petition arises has inter alia stated as under:

"18(a)(i) BONAFIDE PERSONAL NECESSITY That petitioner is the absolute owner of the property bearing no.2912 to 2919, Arya Pura, Subzi Mandi, Delhi-110007 & tenanted suit premises i.e. Shop No.2915 is one of the parts of the above stated property. That the late father of the petitioner i.e. Sh. Baisakhi Ram Gupta has purchased the above said property from Lt. Sh. Bal Krishan Dass. Thereafter, Late father of petitioner who died on 30/03/2000 left a will made on 12.05.1976 wherein the shop no.2912 and 2913 of aforesaid property along with the residential accommodation was inherited to petitioner and shop no.2914 to 2919 of aforesaid property with residential accommodation was inherited to Sh. Ghan Shyam Dass Gupta, brother of the petitioner.

That on 25th July, 2014, the Elder brother of petitioner who was previously co-owner of the aforesaid property relinquished, release and renounces his all right, Title and interest of the above mentioned property in the name & favour of the petitioner through relinquished deed making the petitioner the absolute owner of the above stated property. That Late father of the petitioner has

purchased the aforesaid property along with the continuing tenancy with all rights..."

9. It being the plea of the respondent/landlord, (a) that the father of the respondent/landlord was the owner/landlord of the shop in the tenancy of the petitioners/tenants; (b) that the father of the respondent/landlord died leaving a Will dated 12th May, 1976 whereunder the shop in the tenancy of the petitioners/tenants was bequeathed to Sh. Ghan Shyam Dass Gupta, brother of the respondent/landlord; (c) that the said Sh. Ghan Shyam Dass Gupta, brother of the respondent/landlord vide deed dated 25 th July, 2014 relinquished and released all his right, title and interest in the said shop in favour of the petitioners/tenants, the respondent/landlord acquired the shop in the tenancy of petitioner/tenants by transfer, on execution of relinquishment deed dated 25th July, 2014 and could not have maintained a petition for eviction under Section 14(1)(e) of the Act for a period of five years therefrom i.e. till 24th July, 2019.

10. The only response of the counsel for the respondent/landlord is that the Will of the father was under challenge and that the respondent / landlord acquired the shop in tenancy of petitioners/tenants not by transfer but by inheritance.

11. However the same is not the pleaded case in para 18(a)(i) as reproduced above, where it is categorically stated that the father of the respondent/landlord, who was the owner, died bequeathing the shop in the tenancy of petitioners/tenants to the brother of the respondent/landlord who has on 25th July, 2014 executed a relinquishment deed thereof in favour of the petitioners/tenants.

12. The counsel for the respondent/landlord elsewhere also is unable to show any such plea having been taken.

13. The senior counsel for the petitioners/tenants on asking has handed over from his file a copy of the relinquishment deed filed by the respondent/landlord before the Additional Rent Controller and which is taken on record. A perusal of the same also shows mention of the Will dated 12th May, 1976 of the father therein. There is no mention of any challenge to the Will in the said relinquishment deed either. Rather, a perusal of the Will of the father of the respondent/landlord, filed by the respondent/landlord before the Additional Rent Controller and copy of which is also handed over in the Court and taken on record, shows that the shop in the tenancy of the petitioners/tenants was given exclusively to Sh. Ghan Shyam Dass Gupta and not jointly to Sh. Ghan Shyam Dass Gupta and respondent/landlord as stated in the relinquishment deed, obviously to avoid payment of ad valorem stamp duty and to have the transfer effected by payment of stamp duty of Rs.100/- only.

14. Once the father of the respondent/landlord under his Will bequeathed separate portions of his property to the respondent/landlord and his brother, the respondent/landlord and his brother, on demise of their father, became exclusive owners of the respective portions bequeathed to them and would not in law be joint owners of the entire property. Such separate property could be transferred to the other or to any other person, only by sale or gift and both of which would be „transfer‟ within the meaning of Section 14(6) supra.

15. Undoubtedly acquiring property by inheritance, even if under a Will, does not fall within the meaning of „transfer‟ in Section 14(6) but

the respondent/landlord, owing to the Will pleaded of the father, did not inherit the shop in the tenancy of petitioner/tenants.

16. Though the respondent/landlord in the petition for eviction as well as in the relinquishment deed, has described himself and his brother as „co-owners‟, but once separate portions of the property had been willed to them, it cannot be said that the respondent/landlord had any share in the portion bequeathed to his brother and vice versa.

17. I may mention, a relinquishment deed on a stamp paper of Rs.100/- can be executed and registered only when both parties have a share in the same property and when share of one is being surrendered and other being enlarged. That, as aforesaid, is not the case. The respondent/landlord, on demise of the father, did not acquire any share in the shop in tenancy of petitioners/tenants, for the same to be enlarged to exclusive share by his brother surrendering his share in favour of the respondent / landlord. Even otherwise, when the true character of the deed, though titled as a Deed of Release or Relinquishment, is of transfer or conveyance of the property in favour of one who prior thereto had no share in the property conveyed, it would amount to a transfer / conveyance notwithstanding the nomenclature given thereto. Reference in this regard may be made to Kuppuswamy Chettiar Vs. A.S.P.A. Arumugam Chettiar AIR 1967 SC 1395. Reference may also be made to Srichand Badlani Vs. Govt. of N.C.T. of Delhi 2013 SCC Online Del 5128.

18. The respondent/landlord as per his own admission did not become owner/landlord of the shop in tenancy of the petitioners/tenants on the

death of his father but became so only on execution of relinquishment deed on 25th July, 2014.

19. In view of the aforesaid admitted position, the respondent/landlord cannot file a petition for eviction under Section 14(1)(e) of the Act till expiry of five years from 25th July, 2014.

20. The purport of Section of Section 14(6) is to prevent abuse of Section 14(1)(e), by owners/landlords to whom ground of eviction under Section 14(1)(e) is not available, transferring their properties in favour of persons who can invoke the same. The possibility of the brother of respondent/landlord transferring shop in tenancy of petitioners/tenants to the respondent/landlord, being unable to invoke Section 14(1)(e) himself, cannot be ruled out.

21. The counsel for the respondent/landlord at this stage has drawn attention to the rent receipt at 177 of the paper book filed by the petitioners/tenants along with their application for leave to defend and has contended that in the said rent receipt, the property is described as of Sh. Ghan Shyam Dass Ram Avtar.

22. The said description in the rent receipt, in view of the categorical averments in the petition for eviction filed, is of no avail.

23. Though the petitioners/tenants, neither in the leave to defend application nor before the ARC nor in the Memorandum of this petition nor before this Court have taken the said ground and did not even bother to file the copy of the relinquishment deed or the Will along with the paper book but the aforesaid being a legal ground and it being the duty of the Court to ensure that the order of eviction is in accordance with law, this Court is entitled to consider the said aspect.

24. Rather, I am surprised that the learned Additional Rent Controller, inspite of being a specialised Tribunal, glossed over the said fact and even without the petitioners/tenants taking the said ground not considering the same before passing an order of eviction.

25. A copy of this order be forwarded to the Annual Confidential Report (ACR) Committee of this Court of the learned Additional Rent Controller.

26. Thus, not only is this petition entitled to succeed but the eviction petition is liable to the dismissed on the ground of being barred by Section 14(6) of the Act.

27. Accordingly, the impugned order is set aside by setting aside the order of eviction and by dismissing the petition for eviction under Section 14(1)(e) of the Act as barred by Section 14(6) of the Act.

No costs.

RAJIV SAHAI ENDLAW, J.

JULY 12, 2017 „bs‟..