Delhi High Court
Anita Pawar & Ors vs Soma Devi Jain on 15 October, 2024
Author: Sudhir Kumar Jain
Bench: Sudhir Kumar Jain
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 18th September, 2024
Decided on: 15th October, 2024
+ RC.REV. 34/2017 and CM APPLs. 52161/2019,
11465/2020, 21774/2020, 9200/2021 & 17113/2022
ANITA PAWAR & OTHERS .....Petitioners
Through: Mr. J. P. Sengh, Senior
Advocate with Mr. Arjun
Mahajan, Mr. Sumit R.
Sharma, Mr. Piyush
Gautam, Mr. Sagar
Agarwal, Mr. Harshit
Kapoor and Mr. Siddhant
Bajaj, Advocates
V
SOMA DEVI JAIN .....Respondent
Through: Mr. Manish Vashisht, Senior
Advocate with Mr. Sameer
Vashisht, Mr. Rikky Gupta,
Ms. Ananya Singh,
Ms. Harshita Nathrani and
Mr. Vedant Vashisht,
Advocates
CORAM
HON'BLE DR. JUSTICE SUDHIR KUMAR JAIN
ORDER
CM APPL. 11464/2020, CM APPL. 11530/2020 and CM APPL.
Signing Date:16.10.2024 RC.REV. 34/2017 Page 1
1. The respondent filed an eviction petition bearing no.
E-27/2012 (RC ARC no.6195/2016) titled as Soma Devi Jain V
Anita Pawar & others under section 14(1)(e) read with section 25B
of the Delhi Rent Control Act, 1958 (hereinafter referred to as "the
Act") on 29.03.2012 against the petitioners on the ground of
bonafide requirement in respect of shop bearing no. G-14, ground
floor, South Extension Part-I, New Delhi measuring 927 square feet
(hereinafter referred to as "the tenanted premises") as shown in
yellow colour in the site plan annexed with the eviction petition. The
petitioners filed an application for leave to defend on 29.05.2012
which was allowed vide order dated 31.08.2013 passed by the court
of Mr. Manish Yaduvanshi, SCJ-cum-RC, South, Saket Courts,
Delhi. The court of Ms. Surya Malik Grover, SCJ-cum-RC, South,
Saket Courts, Delhi (hereinafter referred to as "the trial court"),
after trial, passed an eviction order vide judgment dated 29.09.2016
(hereinafter referred to as "the impugned judgment") in respect of
the tenanted premises in favour of the respondent and against the
petitioners. The petitioners being aggrieved, filed the present revision
petition to challenge the impugned judgment.
Signing Date:16.10.2024 RC.REV. 34/2017 Page 2
2. The respondent is stated to have expired on 02.03.2020.
Thereafter, Dr. (Mrs.) Sangeeta Jain (hereinafter referred to as "the
applicant") filed applications bearing nos. CM APPL. 11464/2020
and CM APPL. 11530/2020 (both applications are identical in
contents) under section 151 read with Order 22 Rule 4 of the Code of
Civil Procedure, 1908 (hereinafter referred to as "the Code") for
impleadment as the legal heir of the deceased respondent. The
petitioners filed application bearing no. CM APPL. 21832/2020
under section 151 read with Order 22 Rule 4 of the Code for
impleadment of the legal heirs of the deceased respondent. These
applications are under disposal.
3. The applicant in applications bearing no. CM APPL.
11464/2020 and CM APPL. 11530/2020 stated that the petitioners
filed the present revision petition to challenge the impugned
judgment passed by the trial court in respect of tenanted premises as
shown in yellow colour in site plan annexed with the petition. The
respondent during her lifetime had executed a Gift Deed dated
27.02.2012 in respect of tenanted premises which was registered on
01.03.2012 in favour of the applicant who is the daughter-in-law
Signing Date:16.10.2024 RC.REV. 34/2017 Page 3
(wife of son of the respondent namely Arun Jain). The petitioners
also filed said gift deed by way of application bearing no. CM APPL.
32679/2018 on record which was decided by this Court vide order
dated 14.08.2018. The applicant prayed that the applicant be
impleaded as the legal heir of the respondent.
4. The petitioners filed replies to the applications wherein stated
that the said applications are frivolous, misleading and not
maintainable. The respondent filed the eviction petition falsely
claiming to be the owner and landlord of tenanted premises on the
ground of bonafide need for herself and son Arun Jain (husband of
applicant Sangeeta Jain). The petitioners after filing of the present
petition, came to know that the respondent had executed the gift deed
whereby the respondent transferred the tenanted premises in favour
of the applicant before filing the eviction petition under section
14(1)(e) of the Act. The respondent with malafide intention did not
disclose that she was not the owner of the tenanted premises. The
petitioners moved an application under Order 41 Rule 27 read with
section 151 of the Code bearing no. CM APPL. 32679/2018 for
bringing on record additional evidence which was allowed by this
Signing Date:16.10.2024 RC.REV. 34/2017 Page 4
Court vide order dated 14.08.2018. The respondent affirmed
execution of the gift deed in favour of the applicant in respect of
tenanted premises and conceded that the respondent was not the
owner of the tenanted premises at the time of filing the eviction
petition.
4.1 The applicant Sangeeta Jain has misled the Court by claiming
to be the legal heir of the respondent being her daughter-in-law
despite there being Class-I legal heirs of the respondent. The
applicant does not have locus to be impleaded as the legal heir of the
respondent as the applicant is not a legal representative of the
deceased respondent as per section 2(11) of the Code as the tenanted
premises was not a part of the estate of the respondent. The
respondent was not having any legal right to file the eviction petition
as the respondent was not the owner of the tenanted premises which
is an essential ingredient under section 14(1)(e) of the Act. The
applicant has concealed material facts from the Court as the applicant
had knowledge of the gift deed in question since 2012. The applicant
has become the owner of the tenanted premises under law of transfer
of property and not by means of intestate succession or testamentary
Signing Date:16.10.2024 RC.REV. 34/2017 Page 5
succession. It was prayed that the applications be dismissed with
heavy cost.
5. The petitioners filed CM APPL. 21832/2020 for impleadment
of legal heirs of the respondent as mentioned in para 7 of the
application. The petitioners, besides reiterating the factual position
and the contents of replies filed on behalf of the petitioners to
applications bearing nos. CM APPL. 11464/2020 and CM APPL.
11530/2020, stated that the respondent filed the present eviction
petition in her personal capacity. The trial court passed eviction order
vide impugned judgment while observing that the respondent was
owner of the tenanted premises. The respondent prior to the filing of
eviction petition had already transferred the tenanted premises in
favour of the applicant and did not disclose that she was not owner of
the tenanted premises on the date of filing of the present eviction
petition. The respondent expired during the pendency of the present
revision petition on 02.03.2020 and no right survives in favour of the
legal heirs of the respondent to continue with the present proceedings
as the respondent herself could not have maintained the petition. If
the right to sue is held to be personal right which extinguishes on the
Signing Date:16.10.2024 RC.REV. 34/2017 Page 6
death of a person and does not devolve upon the legal representatives
of the deceased person, then it is the end of the suit. The petitioners
prayed that CM APPL. 21832/2020 be allowed and the legal heirs of
the respondent as detailed in para no. 7 of the application be
impleaded in place of the respondent being Class-I legal heirs as per
the Schedule of the Hindu Succession Act, 1956.
6. Sh. Manish Vashisht, the learned Senior Counsel for the
applicant advanced arguments and written submissions were also
submitted on behalf of the applicant. He stated that the respondent
was the owner and admittedly was landlord of the tenanted premises
which was let out to the predecessor-in-interest of the petitioners by
the respondent in the year 1963. The petitioners filed an application
bearing no. CM APPL. 32679/2018 wherein alleged that the
respondent, prior to filing of present eviction petition in year 2012,
transferred tenanted premises vide gift deed dated 27.02.2012 in
favour of the applicant and as such the respondent was not owner of
the tenanted premises on the day of filing of present eviction petition
and the said application was allowed vide order dated 14.08.2018.
Signing Date:16.10.2024 RC.REV. 34/2017 Page 7
6.1 Sh. Vashisht further stated that the respondent filed an
application bearing no. CM APPL. 52161/2019 wherein stated that
the gift deed was purely a family arrangement and the respondent had
already bequeathed the tenanted premises in favour of her son Arun
Jain vide Will dated 17.06.2010. The respondent executed the gift
deed to save her son Arun Jain from litigation as there was serious
acrimony between her two sons. The petitioners did not file any
reply. The respondent expired on 02.03.2020. The applicant filed CM
APPL. 11464/2020 (and CM APPL. 11530/2020) being the legal
representative of the deceased respondent on basis of gift deed
executed by the respondent in favour of the applicant. The petitioners
filed application bearing no. CM APPL. 21832/2020 to delay
proceedings of the present revision petition.
6.2 Sh. Vashisht also highlighted the arguments advanced on
behalf of the petitioners that the respondent was neither owner nor
landlord of the tenanted premises on the date of filing of present
eviction petition due to execution of gift deed on 27.02.2012 in
favour of the applicant. Sh. Vashisht to counter the arguments
advanced on behalf of the petitioners, argued that application bearing
Signing Date:16.10.2024 RC.REV. 34/2017 Page 8
no. CM APPL. 21832/2020 is contradictory in nature and the
petitioners do not have locus standi to challenge the status of the
applicant as legal representative of the respondent as the petitioners
themselves filed application bearing no. CM APPL. 32679/2018.
There is no violation of section 14(6) of the Act as the gift deed was
not executed in favour of a stranger but it was executed in favour of
wife of beneficiary of Will dated 17.06.2010. The respondent filed
application bearing no. CM APPL. 52161/2019 to highlight the
background of execution of gift deed dated 27.02.2012 and the
respondent also deposed about execution of Will dated 17.06.2010
before the trial court during trial. Rajiv Jain, the other son of the
respondent was not having good relations with the applicant and
Arun Jain. The gift deed was purely an internal family arrangement
and tenanted premises was never transferred to any stranger.
Sh. Vashisht placed reliance on V. N. Sarin V Major Ajit Kumar
Poplai, AIR 1966 SC 432. Sh. Vashisht further countered the
argument advanced on behalf of the petitioners that eviction petition
under section 14(1)(e) of the Act can only be filed by a person who is
owner as well as landlord of the tenanted premises and after referring
Signing Date:16.10.2024 RC.REV. 34/2017 Page 9
Kanaklata Das & others V Naba Kumar Das & others, (2018) 2
SCC 352, argued that it is only the landlord who can file eviction
petition and not the owner and only two persons are necessary parties
for the decision of the eviction petition which are landlord and tenant.
Sh. Vashisht also argued that the applicant and Arun Jain appeared as
witnesses during trial before the trial court but they never challenged
the title or entitlement of the respondent as landlord and/or owner of
the tenanted premises and there was no conflict of interest between
them. The petitioners always accepted the respondent as their
landlord till her demise and the petitioners do not have any right
either to challenge the Will or the family arrangement after death of
the respondent. Sh. Vashisht also referred Custodian of Branches of
Banco National Ultra Marino V Nalini Bai Naque, 1989 Supp. (2)
SCC 275 and Hans Raj and another V Jeet Kaur, 2002 (61) DRJ
7. Sh. J. P. Sengh, the learned Senior Counsel for the petitioners
argued that the respondent executed gift deed dated 27.02.2012 in
favour of the applicant before filing the present eviction petition and
as such, the eviction petition filed by the respondent was illegal,
Signing Date:16.10.2024 RC.REV. 34/2017 Page 10
non-est and void ab initio. The respondent never disputed execution
of gift deed dated 27.02.2012. The tenanted premises was not a part
of the estate of the respondent and hence, the right to sue does not
survive in favour of the applicant. The petitioners came to know
about execution of gift deed only after filing of present revision
petition. Sh. Sengh further argued that the applicant is neither a legal
representative under section 2(11) of the Code nor the applicant can
claim herself to be sole legal heir in present petition and relied on
Mercy V Aisha Ummal, (1987) 2 KLT 166. It was argued that no
right to sue survives after death of the respondent and as such, no
legal representative can be substituted.
8. It is reflecting that the respondent was owner and landlord of
tenanted premises which was let out to the predecessor-in-interest of
the petitioners in the year 1963. The respondent filed an eviction
petition titled as Soma Devi Jain V Anita Pawar & others bearing
no. E-27/12 (RC ARC no.6195/2016) on 29.03.2012 under section
14(1)(e) of the Act on ground of bonafide requirement against the
petitioners. The trial court passed an eviction order against the
petitioners after trial vide impugned judgment. The petitioners being
Signing Date:16.10.2024 RC.REV. 34/2017 Page 11
aggrieved, filed the present revision petition. The respondent was
having two sons namely Rajiv Jain and Arun Jain who is husband of
the applicant. Rajiv Jain allegedly was not having good relations with
the respondent and Arun Jain and his family. The respondent had
executed a Will dated 17.06.2010 in favour of Arun Jain whereby she
bequeathed the tenanted premises to Arun Jain. The respondent also
executed a Gift Deed dated 27.02.2012 which was registered on
01.03.2012 in favour of the applicant in respect of tenanted premises
i.e. before filing the present eviction petition. The respondent did not
disclose the execution of Gift Deed dated 27.02.2012 in favour of the
applicant in eviction petition. The petitioners came to know about
execution of Gift Deed dated 27.02.2012 only after passing of
eviction order against them vide the impugned judgment. The
petitioners have filed an application bearing no. CM APPL.
32679/2018 under Order 41 Rule 27 of the Code for placing on
record the Gift Deed dated 27.02.2012 which was allowed by this
Court vide order dated 14.08.2018 and the Gift Deed was taken on
record. The respondent also filed an application bearing no. CM
APPL. 52161/2019 wherein stated that execution of Gift Deed in
Signing Date:16.10.2024 RC.REV. 34/2017 Page 12
favour of the applicant in respect of tenanted premises was purely a
family arrangement due to acrimonious relations between Arun Jain
and Rajiv Jain and that she had already executed a Will dated
17.06.2010 in respect of tenanted premises in favour of Arun Jain.
The respondent had expired on 02.03.2020 leaving behind legal heirs
as detailed in para no. 7 of CM APPL. 21832/2020 filed by the
petitioners.
9. Issue which needs judicial consideration is that whether the
applicant is entitled for substitution in place the respondent on the
basis of Gift Deed dated 27.02.2012 which was stated to have been
executed before filing of present eviction petition.
10. Section 2(11) of the Code defines legal representative which
means a person who in law represents the estate of a deceased person,
and includes any person who intermeddles with the estate of the
deceased and where a party sues or is sued in a representative
character the person on whom the estate devolves on the death of the
party so suing or sued. The Supreme Court in Custodian of
Branches of Banco National Ultra Marino V Nalini Bai Naque
Signing Date:16.10.2024 RC.REV. 34/2017 Page 13
(supra), as also referred by the learned Senior Counsel for the
applicant, observed as under:-
4. After hearing learned counsel for the parties, we are of
the opinion that the learned Judicial Commissioner
committed serious error of law in setting aside the order of
the trial judge. "Legal Representative" as defined in Civil
Procedure Code, which was admittedly applicable to the
proceedings in the suit, means a person who in law
represents the estate of a deceased person, and includes any
person who intermeddles with the estate of the deceased
and where a party sues or is sued in a representative
character the person on whom the estate devolves on the
death of the party so suing or sued. The definition is
inclusive in character and its scope is wide, it is not
confined to legal heirs only instead it stipulates a person
who may or may not be heir, competent to inherit the
property of the deceased but he should represent the estate
of the deceased person. It includes heirs as well as persons
who represent the estate even without title either as
executors or administrators in possession of the estate of
the deceased. All such persons would be covered by the
expression "legal representative". If there are many heirs,
those in possession bona fide, without there being any fraud
or collusion, are also entitled to represent the estate of the
deceased.
10.1 The present eviction petition was filed by the respondent under
section 14(1)(e) of the Act on the ground of bonafide requirement. It
is an accepted legal proposition that in order to succeed in a petition
under section 14(1)(e) of the Act, the petitioner must be landlord as
well as owner of the tenanted premises however, he may not be
Signing Date:16.10.2024 RC.REV. 34/2017 Page 14
absolute owner of the tenanted premises. The respondent was owner
and landlord of the tenanted premises and there is no dispute between
the parties about this factual position. The respondent admittedly
executed a registered gift deed dated 27.02.2012 in favour of the
applicant in respect of tenanted premises but before filing of present
eviction petition. The respondent also executed a Will dated
17.06.2010 in favour of her son Arun Jain in respect of tenanted
premises but before execution of gift deed dated 27.02.2012. It
means that the applicant after execution of gift deed dated 27.02.2012
acquired right, title and interest in respect of the tenanted premises
and execution of gift deed was also never challenged or disputed by
any of the legal heirs of the respondent as detailed in para no. 7 of
CM APPL. 21832/2020. Accordingly, the applicant can be legally
and validly classified as legal representative/legal heir of the
respondent after her death by virtue of registered gift deed dated
27.02.2012.
11. Sh. Sengh, the learned Senior Counsel for the petitioners
primarily argued that the respondent was not owner and landlord of
the tenanted premises at the time of filing of present eviction petition
Signing Date:16.10.2024 RC.REV. 34/2017 Page 15
due to execution of gift deed in favour of the applicant in respect of
tenanted premises prior to the filing of present eviction petition and
as such, the eviction petition was non-est, void ab initio and not
maintainable. Sh. Sengh also argued that right to sue does not survive
in favour of the applicant as the tenanted premises was not part of
estate of the respondent and the applicant does not qualify as legal
representative of the respondent. Sh. Vashisht, the learned Senior
Counsel for the applicant primarily argued that the execution of gift
deed dated 27.02.2021 was only an outcome of family arrangement
and the applicant and Arun Jain never disputed or objected the title or
entitlement of the respondent in respect of tenanted premises. The
argument so advanced by Sh. Vashisht appeared to be attractive but
legally cannot be accepted as after execution of gift deed in favour of
the applicant, the respondent was left with no right, title or interest in
respect of tenanted premises. Although the respondent also executed
a Will dated 17.06.2010 in favour of Arun Jain but it was prior to
execution of gift deed in favour of the applicant. The registered gift
deed cannot be brushed aside on ground that it was an outcome of
family arrangement and neither the applicant nor Arun Jain
Signing Date:16.10.2024 RC.REV. 34/2017 Page 16
challenged the right or title of the respondent in respect of tenanted
premises. The written document or instrument cannot be
overshadowed by oral submissions however, oral submissions may
be factually correct in the background. The right, title and interest of
the applicant in respect of tenanted premises came into force from
date of execution of gift deed dated 27.02.2012 and not from the day
of death of the respondent. The right, title and interest of the
applicant in respect of tenanted premises was not contingent or
enforceable on or after death of the respondent. The applicant is
entitled for substitution as respondent in place of the deceased
respondent Soma Devi Jain to the exclusion of legal heirs of the
respondent as detailed in para no. 7 of CM APPL. 21832/2020 as the
right to sue survives in favour of the applicant.
12. The legal issue which has been raised by Sh. Sengh on behalf
of the petitioners that filing of present eviction petition was illegal as
per section 14(1)(e) of the Act as the respondent was not the owner
and landlord of the tenanted premises at that time can only be
considered at appropriate stage but not in the present applications
which are under consideration and disposal.
Signing Date:16.10.2024 RC.REV. 34/2017 Page 17
13. The arguments advanced and case laws cited by the respective
learned Senior Counsel for the petitioners and the applicant are
considered in the right perspective. Accordingly, in view of the above
discussion, application bearing no. CM APPL. 11530/2020 (and CM
APPL. 11464/2020) is allowed and the applicant is ordered to be
substituted in place of deceased respondent Soma Devi Jain. The
application bearing no. CM APPL. 21832/2020 filed by the
petitioners is dismissed.
14. Nothing in this order shall be considered to be an expression
on the final merits of the present revision petition.
RC.REV. 34/2017 and CM APPLs. 52161/2019, 11465/2020,
21774/2020, 9200/2021 & 17113/2022
15. List on 22.10.2024 before the Roster Bench.
DR. SUDHIR KUMAR JAIN
(JUDGE)
OCTOBER 15, 2024
AM
Signing Date:16.10.2024 RC.REV. 34/2017 Page 18
