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The Delhi Rent Act, 1995
Mallesappa Bandeppa Desai And ... vs Desai Mallappa And Others on 9 February, 1961
Section 14 in The Delhi Rent Act, 1995

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Delhi High Court
Air Vice Marshal (Retd.) Dr. P.S. ... vs S.P. Walia on 31 January, 2001
Author: M B Lokur
Bench: M B Lokur

JUDGMENT

Madan B. Lokur, J.

1. The Petitioner-landlord sought the eviction of the Respondent-tenant under the provisions of Section 14B of the Delhi Rent Control Act, 1958 (hereinafter referred to as the Act). By a judgment and order dated 1st July, 1996, the learned Additional Rent Controller dismissed the eviction petition with exemplary costs of Rs.2,000/-.

2. The Petitioner constructed the suit property in 1965-66 and soon thereafter threw it in the hotch-pot of the Hindu Undivided Family consisting of himself and his son. - # - C.R. 840/1996

3. The suit property consists of a ground floor and a first floor in R-120, Greater Kailash-I, New Delhi. On or about 22nd October, 1967, the first floor was given out on rent to the Respondent. According to the Petitioner, the fact that the suit property was a part of the hotch-pot is evident from the income tax assessment order wherein the suit property is shown as belonging to the Hindu Undivided Family.

4. Sometime in 1970, the Petitioner sought to evict the Respondent on the ground that he bona fide required the suit premises for his residence. The eviction petition was allowed by the learned Additional Rent Controller but the order of eviction was set aside in appeal. In 1975, the Petitioner sought eviction of the Respondent for non-payment of arrears of rent, but this eviction petition was also dismissed. The importance of these two eviction petitions lies in the fact that in both the cases, the Petitioner averred on oath that the suit property belonged to him (and not to the Hindu Undivided Family).

5. Be that as it may, according to the Petitioner, he and his son entered into an oral Family Settlement on 10th January, 1988 whereby the son became the owner of the ground floor of the suit property and the Petitioner became the owner of the first floor, with a right to further construct thereon. This Family Settlement was reduced into writing on 15th January, 1988.

6. I was told that the Petitioners son was employed in Kuwait since sometime in 1981. He got married in India on 1st February, 1989 (that is after the Family Settlement) and left for Kuwait on 14th February, 1989. The Petitioner was a senior officer with the Air Force and superannuated on 30th April, 1989.

7. Sometime in May 1989, the Petitioners son filed a civil suit in this Court praying for a declaration that he is the owner in possession of the ground floor of the suit property by virtue of the Family Settlement. According to the Petitioner, during the pendency of this civil suit and in conformity with the Family Settlement, he shifted out of the suit property in July 1989 and lived in Saket for about 2-3 months. Thereafter, he shifted to a flat in East of Kailash which he took on rent from 1st September, 1989 at Rs.1500/- per month.

8. It was at this point of time in September, 1989 that the Petitioner filed a petition seeking the eviction of the Respondent under the provisions of Section 14B of the Act. Coincidentally, it was also at this point of time that the Petitioner and his son compromised their disputes as per the Family Settlement and the Petitioners son was acknowledged as the owner of the ground floor of the suit property. A decree was accordingly passed by this Court.

9. During the pendency of the eviction petition filed by the Petitioner, several events occurred. The Gulf War took place in 1990 with the result that the Petitioners son came back to India. He was, apparently, not able to gainfully employ himself for a while and eventually settled down in Calcutta in 1991 where he is living ever since.

10.In so far as the Petitioner is concerned, his ration card was cancelled by the Civil Supplies Department on 27th June, 1991 since he was not actually residing at the East of Kailash address given by him. In August 1992 the Petitioner applied for a passport and gave his address as the suit property since 1986. No mention was made of the East of Kailash address. In the elections held in November 1993, the Petitioner cast his vote from the constituency in which the suit property fell, and not from East of Kailash. The gas connections of the Petitioner continued to remain in the suit property and were not shifted to East of Kailash. As per the compromise between the Petitioner and his son, the telephone connection was to be transferred in the name of the Petitioners son, but this was never done.

11. There are two other facts which are worth noticing: The Petitioner had filed an application before the learned Additional Rent Controller to bring on record that he had shifted to the ground floor of the suit property with effect from 15th March, 1995. The shift was on the request of his landlord in the East of Kailash premises. In response to this application, the Respondent made a statement on 19th September, 1995 that he did not want to cross-examine the Petitioner in view of his statement that he had shifted to the ground floor of the suit property. This was said to be an admission that till March 1995 the Petitioner was staying in East of Kailash.

12. The second important fact is that the Petitioners landlord in the East of Kailash premises did not enter the witness box. According to the Petitioner, he was threatened by the Respondent but according to the Respondent he did not want to state a falsehood as is clear from his letter marked as RX. This letter is admittedly in the handwriting of the Petitioners landlord and he inquires about what testimony he should give since he has not taken any rent from the Petitioner. Without going into the evidentiary value of this letter, two things appear to be clear: the Petitioner apparently lived in East of Kailash for some time and he did not pay any rent for staying there.

13. Taking all these facts in consideration, the learned Additional Rent Controller concluded that the eviction petition filed by the Petitioner was not bona fide and, therefore, by the impugned order he dismissed the eviction petition.

14. Learned counsel for the parties made their submissions on 8, 14, 15, 27, 28 and 29th November, 2000 when judgment was reserved.

15. The submissions of learned counsel for the Petitioner were quite simple and straightforward. He submitted that there was no doubt that the suit property was a part of the hotch-pot. For this, reliance was placed upon the evidence of PW-2 who was a Deputy Manager with the State Bank of India and who stated that an account of the Hindu Undivided Family was opened in January 1967. Reliance was also placed on an income tax assessment order for which the return of income was filed in 1968. The suggestion was that these events had occurred before (or around the time) the tenancy was created. It could not, therefore, be reasonably said that the Hindu Undivided Family was formed for an oblique reason and with the intention of deriving a benefit several years later. Assuming the formation of the Hindu Undivided Family as genuine, the Petitioners son could legitimately demand a partition of the family property, which he did by filing a civil suit in this Court. The disputes between the parties were settled because the Petitioner had already acted upon the Family Settlement by vacating the ground floor of the suit property in July 1989. Other outstanding grievances, if any, were amicably resolved and compromised with the result that the Petitioners son became the owner of the ground floor of the suit property. This compromise was accepted by this Court.

16. In sum and substance, therefore, the contention of learned counsel for the Petitioner was that he had no legal right to live in the ground floor of the suit property. He was living there (if at all) at the mercy of his son. Since the Petitioner had no other place to live in, he was left with no option but to seek the eviction of his tenant from the first floor of the suit property which, as per the Family Settlement and the compromise decree, belonged to the Petitioner.

17. I am quite conscious of the fact that in the exercise of revisional jurisdiction under the Act, the scope of interference by this Court is limited. However, in view of the somewhat harsh language used by the learned Additional Rent Controller, it became necessary to hear the parties at length. Hence, an elaborate judgment.

18. On the facts of the case as presented before me, I must quite frankly say that the Petitioner has not made out any ground for interference with the impugned order.

19. It is true that the Petitioner opened a bank account in the name of the Hindu Undivided Family in January 1967 but as per Exh. PW 2/1 no transaction took place with reference to the bank account till 1993. The two transactions that took place in 1993 are not relatable to the suit property. Moreover, the rental income from the suit property was never deposited in this account. Therefore, absolutely nothing turns on the opening of an account by the Petitioner in the name of the Hindu Undivided Family in the State Bank of India. On the contrary, the account seems to have been opened for no apparent reason. The fact that it exists is now sought to be taken advantage of.

20. This may be juxtaposed with the statement made by the Petitioner in the two earlier eviction petitions wherein he stated that he is the owner/landlord of the suit property. This was stated by the Petitioner on oath. It was not stated that the Hindu Undivided Family owned the suit property.

21. Quite clearly, therefore, the suit property was only said to have been thrown in the hotch-pot. It was not actually thrown in the hotch-pot. This also appears to be the position from the testimony of PW-3 and PW-4.

22.PW-3 was a witness from the House Tax Department of the Municipal Corporation of Delhi. He stated that a letter had been received from the Petitioner in 1989. This letter (Exh. PW 3/1) mentions that as per the Family Settlement the Petitioners son will be the exclusive owner of the ground floor of the suit property and this fact may be noted in their records. In his cross-examination, he admitted that the Petitioner continues to be shown as the owner of the entire suit property. This suggests that no concrete steps were taken by the Petitioner to put the Family Settlement as well as the compromise decree into operation. The matter was just left to lie, the Petitioner being content by merely sending a letter.

23. Similarly PW-4, an Office Superintendent from the Telephone Department stated that he had received a letter from the Petitioner for the transfer of the telephone in the name of his son. The Petitioner was asked to file an appropriate affidavit but no further action was taken by the Petitioner to give effect to the transfer of the telephone. In fact, even the transfer charges were not paid by the Petitioner. Again, this aspect of the Family Settlement and compromise decree was not acted upon and left to lie dormant.

24. The Petitioner also cannot rely on the return of income to show that the suit property was a part of the Hindu Undivided Family. This return was filed in 1968. No subsequent return has been filed, particularly returns after the Petitioner stated on oath that the suit property belonged to him. Learned counsel for the Respondent pointed out that the assessment order is only a photocopy of the original. It is not an exhibited document and its authenticity is doubtful. It was also submitted that it is quite common for an assessed to legally and validly "create" a situation to lower the incidence of tax. This is precisely what the Petitioner is alleged to have done. The Hindu Undivided Family property was created only for "tax purposes" and nothing else.

25. Notwithstanding all this, I suppose one would normally have to believe the Petitioner PW-1 (and his son PW-5) when they say that the suit property was thrown in the hotch-pot. This is regardless of what others might testify, because it is after all the property of the Petitioner and if he says that it should be treated in a particular manner, then his wishes have to be respected.

26. Therefore, one issue hotly debated was whether in the absence of any existing coparcenary property, could the Petitioner have thrown the suit property into a non-existent hotch-pot or in the alternative created a hotch-pot.

27. Learned counsel for the Petitioner relied upon G. Narayana Raju (dead) by his legal representative Vs. G. Chamaraju and others, to contend that the Petitioner could throw his

self-acquired property into the common hotch-pot. I propose to consider this decision a little later for some other reason. For the purposes of this case, I accept the contention of learned counsel for the Petitioner for which he placed reliance on this decision. Learned counsel also placed reliance on Goli Eswariah Vs. Commisssioner of Gift Tax, for the same purpose. He further says that both these decisions were considered by a learned Single Judge of this Court in Dr. Kewal Krishan Mayor Vs. Kailash Chand Mayor and Ors., 1977(1) 2nd Delhi 97. It was held in paragraph 20 of the Report as follows:-

"As I understand the law laid down by the Supreme Court, it does not lay down that a separate property could not be impressed with the character of joint Hindu family property in the absence of the existence of a joint family or co-parcenary property. The existence of joint family property is not necessary before a member of the family throws his self-acquired property in the common stock. The existence of a joint estate is not an essential requisite to constitute a joint family and a family which does not own any property, movable or immovable, may, nevertheless be joint. If the existence of the co-parcenary property is considered as a pre-requisite for throwing the property into the common hotch potch or common stock, then, only those joint families who are already possessed of ancestral property, can receive self-acquired properties of coparceners. If the argument is taken to its logical conclusion, it will lead to absurdities or a situation that no joint Hindu family which does not own any ancestral property, can ever acquire any property from any individual co-parcener who intends to impress the self-acquired property with the character of a joint family property. The term `blending' may suggest the existence of a nucleus but that does not mean that it is not possible to conceive of co-parceners impressing their self-acquired properties with the status of the joint family property unless it is shown that the joint Hindu family is already possessed of a nucleus or ancestral stock or ancestral property. There is no reason to limit the cases of blending to only those families owning co-parcenary property. Throwing the self-acquired property in the common stock or hotch-pot is a well recognised incidence of the joint Hindu families."

28. However, relying upon Goli Eswariah, the Andhra Pradesh High Court came to an entirely different conclusion in Jupudi Venkata Vijayay Bhaskar Vs. Jupudi Kesava Rao (died) and others, .

Learned counsel for the Respondent relied upon paragraph 30 of the Report, a part of which reads as follows:

"The necessary pre-condition for the application of the doctrine of Blending is the existence of coparcenary property as recognised by the Supreme Court in Mallesappa Bandeppa Desai V. Desai Mallappa, . Citing that decision, Hegde, J., said: "As

observed by this Court in Mallesappa Bandeppa Desai V. Desai Mallappa, , that the doctrine of throwing into

common stock inevitably postulates that the owner of a separate property is a coparcener who has an interest in the coparcenary property and desires to blend his separate property with the coparcenary property.""

29. There is quite clearly a conflict of views between what this Court has held and what the Andhra Pradesh High Court has held.

30. Learned counsel for the Respondent contended that in view of Smt. Pushpa Devi Vs. The Commissioner of Income-tax, New Delhi, , the controversy has been resolved in favor of the view taken by this Court. However, I find from a reading of the passage relied on by learned counsel for the Respondent (that is paragraph 16 of the Report) that the Supreme Court has not said anything more than what was stated in earlier cases. In fact, the Supreme Court has merely explained and elaborated what was stated by it in Mallesappa Bandeppa Desai and another Vs. Desai Mallappa alias Mallesappa and another, . This decision, therefore, does not set at rest the conflict of views between this Court and the Andhra Pradesh High Court.

31. To my mind, however, this controversy does not really arise in this case. I am quite prepared to accept the contention of learned counsel for the Petitioner that his client could have blended his self-acquired property in the hotch-pot, even though no hotch-pot was existing and the Petitioner was in fact creating a hotch-pot. The legal position in this regard makes no real difference in this case because of the following passage occurring in Narayana Raju. The relevant extract of paragraph 6 of the Report reads as follows:

"It is a well-established doctrine of Hindu Law that property which was originally self-acquired may become joint property if it has been voluntarily thrown by the coparcener into joint stock with the intention of abandoning all separate claims upon it. ....But the question whether the coparcener has done so or not is entirely a question of fact to be decided in the light of all the circumstances of the case. It must be established that there was a clear intention on the part of the coparcener to waive his separate rights and such an intention will not be inferred merely from acts which may have been done from kindness or affection..... The important point to keep in mind is that the separate property of a Hindu coparcener ceases to be his separate property and acquires the characteristics of his joint family or ancestral property, not by mere act of physical mixing with his joint family or ancestral property, but by his own volition and intention, by his waiving or surrendering his special right in it as separate property. A man's intention can be discovered only from his words or from his acts and conduct."

In view of the above, one has to see what the words of the Petitioner say. In the present case, the words of the Petitioner say that the suit property is a part of the hotch-pot. However, in two earlier cases, the words of the Petitioner say that the suit property belonged to him as an individual. The words of the Petitioner cannot, therefore, be fully relied upon.

What do the "acts and conduct" of the Petitioner say? They say that the Petitioner opened a bank account of the Hindu Undivided Family in January, 1967. However, the Hindu Undivided Family did not transact any business from this account till 1993. The bank account was dormant for about 25 years. The acts and conduct of the Petitioner say that he filed an income tax return in 1968 declaring the suit property as a part of the Hindu Undivided Family. However, he did not declare any rental income of the Hindu Undivided Family - at least nothing has come on record to this effect. The words of the Andhra Pradesh High Court in Jupudi Venkata Vijaya Bhaskar are quite apposite in this regard. It is stated in paragraph 31 of the Report that "Declaration of status in the income-tax returns is not always decisive of the real status of the individual". It's quite true in this case, at least.

32. The Petitioner and his son entered into a Family Settlement on 15th January, 1988. This Family Settlement was said to have been acted upon. Despite this, the acts and conduct of the Petitioner say that in 1991 his ration card (reflecting his residence in East of Kailash) was cancelled by the Civil Supplies Department because the Petitioner was not residing there. The acts and conduct of the Petitioner say that in 1992, he applied for a passport giving his address as the suit property since 1986. The acts and conduct of the Petitioner say that in 1993, he cast his vote from a constituency in which the suit property was situated.

33. Despite the Family Settlement and the subsequent decree, the acts and conduct of the Petitioner say (as per PW-3) that he took no effective steps to mutate a part of the suit property in favor of his son. The acts and conduct of the Petitioner say (as per PW-4) that he took no effective steps to transfer the telephone connection in favor of his son.

34. The cumulative result of all this unmistakably shows that the acts and conduct of the Petitioner are not compatible with his theory that the suit property was thrown in the hotch-pot.

35. Learned counsel for the Petitioner, however, relied on Maturi Pullaiah and Anr. Vs. Maturi Narasimham and Ors., AIR 1966 SC 1836 to contend, in the words of the Supreme Court, that the Family Settlement should be assented to rather than avoided. In paragraph 17 of the Report, the Supreme Court said:-

"Briefly stated, though conflict of legal claims in present or in future is generally a condition for the validity of a family arrangement, it is not necessarily so. Even bona fide disputes, present or possible, which may not involve legal claims will suffice. Members of a joint Hindu family may, to maintain peace or to bring about harmony in the family, enter into such a family arrangement. If such an arrangement is entered into bona fide and the terms thereof are fair in the circumstances of a particular case, Courts will more readily give assent to such an arrangement than to avoid it".

36. The key words used by the Supreme Court are that the arrangement is arrived at bona fide. The facts of the present case, I'm afraid, suggest that the Family Settlement was not a bona fide arrangement. The motive was clearly oblique, namely, to create a ground for evicting the Respondent. This does not, however, mean that the acts and conduct of the Petitioner are mala fide as contended by learned counsel for the Respondent. Consequently, I do not think it necessary to discuss the cases cited by learned counsel for the Respondent to contend that the Petitioners actions are mala fide. Suffice it to say that the Family Settlement was a sham document, not intended to be given effect to.

37. Learned counsel for the Petitioner then contended that the Respondent cannot challenge or go behind the Family Settlement and compromise decree passed by a learned Single Judge of this Court. I'm afraid that this contention has also to be rejected. In Sushila Devi and Ors. Vs. A.C. Jain & Ors., 1988 (1) RCJ 287 a learned Single Judge of this Court held that the learned Additional Rent Controller can go behind a decree if the partition claimed by the landlord was sham and not acted upon. It is true that in Rajinder Pershad Vs. Nathu Ram, 1995 RLR 121 another learned Single Judge of this Court held that the learned Additional Rent Controller could not go behind the decree - but this decision was partly based on the fact that the decree in that case was passed several years ago and was not doubted by anyone.

38. Quite apart from the above, one has to keep in mind the fact that in a suit which has been decreed, the Defendant can challenge the validity of the decree passed against him even at the stage of execution of the decree. Therefore, it does not stand to reason that a person who is not a party to the proceedings cannot challenge the validity of a decree which clearly and adversely affects him. In the present case, the tenancy rights of the Respondent (which are valuable to him) are sought to taken away by the Petitioner by a Family Settlement which is, so far as the Petitioner is concerned, dubious in nature. Surely, to protect his tenancy rights, the Respondent can question the validity of the Family Settlement arrived at by the Petitioner and his son, as well as the consequent compromise decree.

39. Learned counsel for the Petitioner also relied upon the following passage in Sarla Ahuja Vs. United India Insurance Company Ltd., (paragraph 15 of the Report):-

"Facts such as the cordial relationship between a landlord and his daughter-in-law or that he is comfortably residing in the present building are not relevant in judging the bona fides of the claim of the landlord. Otherwise it would appear that the landlord can think of residing in his or her own residential building only when cracks develop in the relationship between him and his kith and kin."

40. He also cited Prativa Devi Vs. T.V. Krishnan, (1995) 5 SCC 353 and relied upon paragraph 4 of the Report which reads as follows:-

"In the premises, the judgment of the High Court disallowing the appellant's claim cannot be supported. In considering the availability of alternative accommodation, the Court has to consider not merely whether such accommodation is available but also whether the landlord has a legal right to such accommodation. The appellant had established her bona fide personal requirement of the demised premises under Section 14(1)(e) of the Act and her claim could not be disallowed merely on the ground that she was staying as a guest with a family friend by force of circumstances."

41. The submission of learned counsel for the Petitioner was that even though he had cordial relations with his son, he still had no legal right to stay on in the ground floor of the suit property which belonged to his son. The Petitioner was, therefore, justified in seeking the eviction of the Respondent from the first floor of the suit property which belonged to the Petitioner.

42. This contention of learned counsel proceeds on the assumption that the Family Settlement and the compromise decree reflect the factual state of affairs. The learned Additional Rent Controller has come to the conclusion that this is not so. For the reasons given by me above, I have also come to the same conclusion. Therefore, the submission made by learned counsel for the Petitioner has to be rejected since it is based on a premise which has been held as incorrect.

43. It was finally contended by learned counsel for the Petitioner that as per the statement made by the Respondent on 19th September, 1995 it was quite obvious that the Petitioner stayed in tenanted premises between 1989 and 1995. It was submitted that quite clearly the Family Settlement was acted upon and that the Petitioner could not live in the ground floor of the suit property which belonged to his son.

44. The statement made by the Respondent on 19th September, 1995 is as follows:-

"I do not want to cross examine the ptr as it is admitted by the ptr himself that he has shifted to ground (floor) of suit property."

45. It must be remembered that at that time, the cross examination of the Petitioner was going on. The Respondent was endeavoring to show, as per his case, that the Petitioner was throughout living in the suit property. Now that the Petitioner had admitted that he was living in the ground floor of the suit property since March, 1995 the Respondent may have decided (for whatever reason) that it was not necessary to further cross examine the Petitioner in this regard in view of his admission. The statement cannot be read, as it sought to be done by learned counsel for the Petitioner, as an admission by the Respondent that the Petitioner lived in rented accommodation from 1989 to 1995. This was a fact which had to be independently proved by the Petitioner and could not be inferentially assumed because of the Respondents statement, which statement was not a specific admission. The submission of learned counsel for the Petitioner, therefore, deserves to be rejected.

46. It may be recalled in this context that the Petitioner's landlord did not enter the witness box. Whether he was threatened by the Respondent (as alleged by the Petitioner) or he did not want to state a falsehood (as contended by the Respondent) is really not relevant. What is of significance is that in his letter marked RX, he says that he did not receive any rent from the Petitioner. PW-6 Rajesh Kumar Kapoor, Deputy Manager, State Bank of India entered the witness box and stated that payments made to the landlord of the Petitioner cannot be traced back to the Petitioner. His testimony, therefore, indirectly corroborates the contents of the document marked RX.

47. Looked at from any point of view, it is quite clear to me that the Petitioner has not made out any case for interfering with the order dated 1st July, 1996 passed by the learned Additional Rent Controller.

48. The revision petition is, accordingly, dismissed. There will, however, be no order as to costs other than what has already been imposed by the learned Additional Rent Controller.