Pishori Lal Vs. Joginder Singh - Court Judgment

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- hindu law -- custom: [vijender jain, c.j., m.m. kumar, jasbir singh, rajive bhalla & rajesh bindal, jj] alienation of ancestral property - punjab and haryana - held, in respect of state of punjab by virtue of punjab amendment act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. in punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by hindu law except to the extent it is regulated by sections 6 and 30 of the hindu succession act. in haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. parties can fall back upon hindu law in case they fail to establish that rule of decision is custom. therefore, in haryana both under hindu law and the customary law, the alienation would be open to challenge. custom was given precedent over uncodified hindu law presumably for reason that custom has been consistently replacing the hindu law. however, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst jats of punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. it was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. accordingly, the punjab custom (power to contest) act, 1920 (act no.2 of 1920) was enacted. the hindu succession act was extended to the state of punjab. act 2 of punjab act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. a further provision was made by section 3 that hindu succession act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. whereas section 4 declared that hindu succession act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the succession act was to come into force. in other words, act, no.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. it also preserved the rights of any alienation or appointment of an heir made by a family. after section 7 was inserted in act of 1920 by the punjab amendment act of 1973 right of contest being contrary to custom had been totally effaced and taken away. therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after january 23, 1973. in haryana, the situation as enunciated by act no.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to punjab as brought by amendment act of 1973, had been enacted although right to pre-emption has been substantially abolished in haryana also. no steps even have been taken in that regard. therefore, situation in haryana have to be regarded as it existed under act no. 2 of 1920. hindu succession act,1956[c.a.no.30/1956] -- sections 6 & 30: [vijender jain, c.j., m.m.kumar, jasbir singh, rajive bhalla & rajesh bindal, jj] alienation of coparcenary property - law laid down by full bench in joginder singh kundha singh v kehar singh dasaundha singh [air 1965 punjab 407] and pritam singh v assistant controller of estate duty, patiala [1976 punj lr 342] -whether there is any conflict? - held, the basic controversy in the full bench decision of joginder singhs case was regarding constitutional validity of section 14 of hindu succession act and as to whether it infringes article 14 of constitution. it was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. the full bench held that section 14 of hindu succession act postulates that estate held by a hindu female before enforcement of succession act either by inheritance or otherwise, was enlarged and on date of enforcement of succession act, she became a full owner. likewise, if she has inherited any estate after the commencement of the act, she was to be regarded as absolute owner rather than a limited owner. consequently, the limitations on power of alienation automatically vanished. this was the necessary result of the provisions made in section 14 of the act. the full bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. however, it noticed section 30 and observed that it only deals with power of his share in coparcenary property by will, which prior to enforcement of the act, he had no right to do. the only provision made in respect of male proprietor regarding alienation of property was his power of alienation by will. in so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the act. likewise, other restriction on alienation other than disposal by will also continued. the full bench, thus, recognized the superior right of hindu females by virtue of section 14 and upheld the provision as intra vires. the argument that reversioners have ceased to exist after enactment of provisions of section 14 of succession act, was rejected as there was no provision pointed out to that effect. the proposition laid down by the full bench in pritam singhs case was that the hindu succession act has not abolished joint hindu family with respect to rights of those who were members of mitakshara coparcenary, except in the manner and to the extent mentioned in sections 6 and 30 of the act, this statement should also imply, though it does not say so expressly, the succession act to this extent does not affect the rights of the members governed by dayabhaga coparcenary. the full bench in pritam singh;s case expressly noticed the judgment of earlier full bench in joginder singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by customary law and constitutional validity of section 14 of hindu succession act. thus there is no real conflict between the two full bench judgments. both the full bench judgments have been delivered on the assumption that joginder singhs case dealt with question of alienation whereas pritam singhs case had decided the question concerning succession. even on fact in joginder singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in pritam singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. in pritam singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. therefore, there was no question of alienation in pritam singhs case. - he submitted that what was let out to the respondents were shops and they having failed to pay the rent, they are liable to be ejected he also referred to the evidence on record and contended that the relationship of landlord and tenant is proved and, therefore, the rent controller rightly passed orders of ejectment against the respondents. 7. under section 13(2) of the act, a landlord who seeks ejectment of his tenant inoccupation of building or rented land, has to apply to the controller for a direction in that behalf and if the conditions laid down in the section are satisfied, the controller can direct eviction of the tenant. 9. building and rented land are defined separately and reading of the definitions of 'building' and 'rented land' clearly indicates that these are two different entities and have respectively been defined in clause (a) and (f) of section 2 of of the act. though they stated that the rent was received from them by the petitioner on behalf of thakur dwara or any other they have failed to prove this fact. there is no explanation as to why receipts which were in their possession were not brought on record they have also failed to examine in charge of thakurdwara or any other person from thakurdwara to prove that they had been paying rest to thakurdwara and the shops were constructed by the respondents as claimed by them in the written statement.v.k. jhanji, j.1. this judgment will dispose of civil revisions no. 2172 to 22-77 of 1980. all these revisions arise out of the orders of the appellate authority whereby the orders of the rent controller passed in various petitions filed by the petitioner were set aside and the ejectment petitions filed by the petitioner were dismissed.2. in order to appreciate the controversy between the parties, it is worth noticing a few facts.3. the demised premises consist of six shops. all these shops are constructed on a land belonging to one thakudwara. vacant site underneath the land was taken on rent by the petitioner from the said thakurdwara. after taking the site on rent he constructed shops and let out each of the shop to the respondents. he sought ejectment of the respondents on the ground of non-payment of rent. respondents, in their written statement, denied the relationship of landlord and tenant. they took up the plea that the shops were constructed by them. rent controller, on the basis of the evidence on record, found the relationship of landlord and tenant between the parties. since the respondents had not tendered or paid the arrears of rent of the first date of the hearing, orders of ejectment were passed against them. they preferred appeal before the appellate authority who set aside the orders of the rent controller. appellate authority held that the land underneath the shops had been taken on rent by the petitioner from thakurdwara and thus belonged to it. petitioners before letting out the shops, had not taken consent is writing from thakurdwara and, therefore, the respondents cannot be held to be tenants within the meaning of section 2(i) of the east punjab urban rent restriction act (hereinafter referred as to as the act) and thus the rent controller had no jurisdiction to try the petitions. otherwise also the appellate authority was of the view that the evidence on record was not sufficient to prove the relationship of landlord and tenant between the parties the orders of the appellate authority are being challenged in these civil revisions,4. learned counsel for the petitioner contended that the shops and vacant sites are two separate and distinct entities. he submitted that what was let out to the respondents were shops and they having failed to pay the rent, they are liable to be ejected he also referred to the evidence on record and contended that the relationship of landlord and tenant is proved and, therefore, the rent controller rightly passed orders of ejectment against the respondents.5. on the other hand, mr v. k. jain, senior advocate, learned counsel for the respondents submitted that the vacant site cannot be separated from the shops and, therefore, what was let out to the respondents was the site alongwith superstrueture and as per the case of the petitioner himself, land never belonged to him but was under the ownership of thakurdwara. petitioner having not taken any consent in writing before letting out the same to the respondents the appellate authority was right in holding that the rent controller had no jurisdiction to entertain the petitions. he also submitted that there is no evidence on the record to prove that the shops were let out by the petitioner to the respondents and, therefore, the finding of the appellate authority on this issue is not liable to be reversed.6. after hearing the learned counsel for the parties, i am of the considered view that this civil revision deserves to succeed.7. under section 13(2) of the act, a landlord who seeks ejectment of his tenant inoccupation of building or rented land, has to apply to the controller for a direction in that behalf and if the conditions laid down in the section are satisfied, the controller can direct eviction of the tenant.8. building, rented land, landlord and tenant are defined in section 2 of the act which are as under :-'2. in this act, unless there is anything repugnant in the subject or context :--(a) 'building' means any building or part of a building let for any purpose whether being actually used for that purpose or not, including any land, godowns, out-houses, or furniture let therewith, but does not include a room in a hotel, hostel of boarding-house;(f) 'rented land' means any land let separately for the purpose of being used principally for business or trade;(c) ' landlord' means any person for the time being entitled to receive rent in respect of any building or rented land whether oh his own account or on behalf or for the benefit, of any other person, or as a trustee, guardian, receiver, executor or administrator for any other person, and includes a tenant who sublets any building or rented land in the manner hereinafter authorised, and, every person from time to time deriving title under a landlord;(i) 'tenant' means any person by whom or on whose account rent is payable for a building or rented land and includes a tenant continuing in possession after the termination of the tenancy in his favour, but does not include a person placed in occupation of a building or rented land by its tenant, unless with the consent in writing of the landlord, or a person to whom the collection of rent or fees in a public market, cart-stand or slaughter house or of rents for shops has been farmed out or leased by a municipal, town or notified area committee;9. building and rented land are defined separately and reading of the definitions of 'building' and 'rented land' clearly indicates that these are two different entities and have respectively been defined in clause (a) and (f) of section 2 of of the act. vacant site has not been defined in the act. vacant site, if not let out for business or trade, cannot be termed as the rented land defined in clause (f) of section 2 of the act. taking the definitions of 'landlord' and 'tenant' together as used in clause (c) and (i) of section 2 of the act, a tenant cannot be termed as landlord of such sub-tenant if he, without the consent in writing of his landlord, has sublet the building or rented land to the sub tenant. if he sublets the building without the consent of his landlord, then the ejectment petition by tenant against the sub tenant will not be maintainable. the rent controller shall have jurisdiction to entertain the petition if the tenant sublets the building or rented land with the consent in writing of the landlord. in the present case, what was taken on rent by the petitioner from thakurdwara was an vacant site. thus, it was not a building or rented land as defined in the act. on the vacant site, he constructed shops and let out the same t: the respondents. therefore he let out to the respondents not the vacant site but the shops which would come within the definition of 'building . the precise matter was not also considered by a full bench of this court in had prashad gupta v. jitcnder kumar kammk, (1982) 84 p. l. r. 150 (f. b.) where the construction had been raised by the tenant after taking the land on lease from the municipal committee and after construction, shops were let out by the tenant to the sub-tenants. on these facts, the full bench held as under : -'where a plot of land had been demised, the said plot cart continue to belong to the lessor and the building or the superstructure raised by the lessee on that plot can belong to the latter. in law, there can be two distinct ownerships, that is, the lessor can be owner of the building raised thereon, and the matter essentially is dependent on the terms of the contract between the parties. the factum of consent or ho consent by municipal committee or the local authority to the construction raised by the lessee on the demised municipal land is not decisive of the matter. it is the form and the substance of the terms of lease entered into between the municipal committee and the lessee that have to be considered and construed to find out whether the building on the leased land belong to the municipal committee or not.'10. considering the facts of the present case in the light of the judgment of full bench of this court in hari parashad gupta's case (supra), i am of the view that no consent was necessary to be obtained from thakurdawara as the shops were constructed not by thakurdawara but by the petitioner. what was let out to the petitioner was the vacant site and what the petitioner had let out to the respondents was the building. therefore, the rent controller had the jurisdiction to entertain the petitions.11. the judgment in hans raj salig ram v. l. niranjan lal, (1952) 54 p. l. r. 31. relied upon by learned counsel of the respondents which was also relied upon by the appellate authority is not applicable to the facts of the present case inasmuch as in hans raj's case (supra) what was let out to the tenant was a building, who, without the consent of his landlord, sublet the same to sub tenant. tenant thereafter sought ejectment of his sub tenant sub-tenant took up the plea that there was no relationship of landlord and tenant as the subletting by the tenant was without the consent of the landlord and, therefore, the rent controller was not competent to pass an order of ejectment. in such circumstances, it was held that the rent controller had no jurisdiction to pass an order of ejectment against the sub-tenant on the petition filed by the tenant if he had not obtained consent in writing of the landlord. however, this is not the position in the present case. in the present case, building was not let out by the thakurdwara to the petitioner. vacant site was let out on which the petitioner constructed shops. shops thereafter were let out to the respondents. the shops never belonged to thakurdwara. as between the petitioner and the respondents, what has been let out is the shops i. e the building. the rent controller, therefore, rightly entertained the petitions.12. i am also not in agreement with the finding of the appellate authority that there is no satisfactory evidence on record to prove the relationship of landlord and tenant between the parties. simply because rent note never saw the light of the day is not enough conclude that there is no relationship of landlord and tenant. respondents in their written statement took up the plea that they had constructed the shops but they brought no evidence on record to substantiate this plea. on the other hand, the petitioner in order to prove the relationship of landlord and tenant, examined arjan dass, aw -1, u d. c. in the in come-tax department, who from the record, deposed that the petitioner had been showing income from rent in his returns. aw-4 naresh kumar, a clerk from the electricity board, on the basis of the record maintained by the board, proved that electric connections in the shops stand in the name of the petitioner. tenants, in their statements before the court, admitted that 20 or 30 times the petitioner received rent fro u them and had issued receipts acknowledging receipt of rent. though they stated that the rent was received from them by the petitioner on behalf of thakur dwara or any other they have failed to prove this fact. there is no explanation as to why receipts which were in their possession were not brought on record they have also failed to examine in charge of thakurdwara or any other person from thakurdwara to prove that they had been paying rest to thakurdwara and the shops were constructed by the respondents as claimed by them in the written statement.13. in this view of the matter, i am of the considered view that the rent controller rightly found that there was relationship of landlord and tenant between the parties. respondents never paid or tendered the arrears of rent on the first date of hearing and thus they are liable to be ejected on the ground of non-payment of rent.14. as a result thereof, these civil revisions are allowed, the orders of the appellate authority are set aside and those of rent controller are restored with no order as to costs. respondents, however, are allowed three months time to vacate the premises provided they pay the entire arrears of rent including that of three months within one month from today and also file an undertaking to the effect that on the expiry of the period of three months, they shall had over the vacant possession of the demised premises to the petitioner. the undertaking shall also be filed within one month from today.