M.R.F. Limited and anr. Vs. S. Major Singh Purewal - Court Judgment

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tenancy - eviction - leave to defend - section 13-b of the east punjab urban rent restriction act - respondent was landlord and petitioner was tenant - respondent filed suit for eviction under section 13-b of act against petitioner - petitioner filed application for grant of leave to defend - application rejected and eviction order passed - hence, present petition - held, defence mentioned by petitioner in his application for leave to defend not found tenable - if petitioner in application for leave contended that landlord owns some other premises then it would obtained some credibility to his defend - however, as per petitioner's statement respondent did not own any other similar premises which meant that respondent own premises but not similar to suit property - in such situation no ground exist in defnce of petitioner and so his application was rightly rejected - therefore, impugned order of rejecting application for leave to defend upheld but matter remanded back for recording statement of respondent and then pass appropriate order - revision dispose of accordingly - 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. - 465, was clearly misplaced since the judgment which relied on a decision of hon'ble the supreme court in lakshmi venkateshwara enterprises (p) ltd. the landlord's right to invoke section 13-b could not in such a situation be defeated. ) 59, puts it up beyond any pale of controversy that by a proper reading of section 18(5) that requires the rent controller to exercise his power whether to grant a leave or not, the court shall be satisfied that the need of the landlord clearly existed. the rent controller that examines a petition for leave himself has to be first satisfied that the petitioner has stated in the petition what entitled him to invoke section 13-b and that nothing in the section that enables the landlord to invoke the said section is lacking in the petition in the necessary averments. that is an additional duty of the court to see all the requirements under section 13-b are fully satisfied.k. kannan, j.1. the application for grant of leave to defend filed by the tenant was rejected by the rent controller in a petition filed by the landlord under section 13-b of the east punjab urban rent restriction act. in the petition for leave to defend, the tenant put several contentions of which predominant ones that galvanised attention before the rent controller and before me, by the persuasive arguments of the learned senior counsel were; (i) the document of lease in favour of the tenant allowed for 20 years period with a right of renewal by the tenant and a liberty given to the tenant for premature determination of tenancy. the petition filed before the expiry of the said period was not tenable; (ii) the landlord was guilty of concealment in that he did not reveal the existence of other properties which he might have owned and which he required a further probe. the rent controller rejected both these contentions as not enabling the tenant to have the right of defence and ordered summary ejectment.2. the learned senior counsel appearing for the tenant states at the outset that the lease deed provides for 20 years commencing from 1993 and the petition filed before the conclusion of the said period was not maintainable. he points out that the reliance of the rent controller to the decision of this court in paramjit kaitr (smt.) v. satya gupta (smt.) and ors. : (1996-3) 114 p.l.r. 465, was clearly misplaced since the judgment which relied on a decision of hon'ble the supreme court in lakshmi venkateshwara enterprises (p) ltd. v. syeda vajhiunnissa begum 1994 (2) r.c.r. 121, dealt with different situation where although the petition was filed prior to the expiry of the period stipulated under the lease, the landlord there was contending that by violation of the term under the contract there had been a premature termination of tenancy which the landlord was entitled to invoice. in this case, according to the learned senior counsel, no violation of term of lease had been canvassed by the landlord and when the 20 years period had not concluded, the petition was not maintainable. while i will agree with the submission mat a petition for eviction even within the expiry of the period mentioned in a contract would always be possible if a landlord's resort to action under the rent control enactment by reference to an eventuality of premature termination, i would still point out that petition for ejectment could be resisted as not maintainable, if only the right to remain in possession is protected by term of the contract. such a right could legitimately exist by a term of lease for a certain specified period and when the landlord could be prevented before the expiry of the period by filing a petition.3. one does not need to grope too far or too long to say that such a right does not exist for a tenant in a case where the entry into possession through an instrument which the law requires shall be registered but which is unregistered. the requirement of registration comes through the provisions of the transfer of property act which states under section 107 that lease of immovable property from year to year or a term exceeding one year or reserving an early rent could be made only by a registered instrument. section 17(1)(d) of the registration act mandates that the lessee of immovable property from year to yew or for any term exceeding one year or reserving an early rent shall be required to be compulsory registered. the effect of non registration of a document that is compulsorily registerable is contained through section 49 of the act that interdicts that it shall not affect any immovable property or confer any power to adopt or be received as evidence of any transaction affecting such property or conferring such power. it is admitted on all fours that an exception provided under section 49 is not attracted to this case. to state the obvious that an exception which could still be attracted would be a right of a person to prove the character of possession as a collateral purpose to the lease. it would happen in case the status as a tenant itself is denied and then it shall be permissible for the person affected to show that his possession is that of a tenant. in this case, the petition is filed admitting the defendant's status as a tenant. the term of lease prescribed in the lease deed on which the tenant relies on is through an instrument dated 01.07.1992 that prescribes 20 years period commencing from the date of completion of the renovation of the building which the tenant was authorized to do. admittedly such renovation had been done and the contention of the tenant was that he was entitled to continue in possession for 20 years and that would not -occasion before the completion of 2013.4. the learned senior counsel for the petitioner relies on the decision of this court in basant lal and ors. v. ramji dass (deceased) through l.r's and ors. 1990 ccc 377 (p&h;), that an unregistered deed of partition would not bar a person from ascertaining the nature of possession. i have already pointed out that the character of possession is the most outstanding example to the exception provided under section 49 of the registration act. i have also held that the respondent's status as a tenant itself is not denied and that is the reason why the landlord has invoked the provisions of the rent act. if the term of lease for a period in excess of one year would require registration and as in this case, the documents spells out a lease period of 20 years, it is not admittedly registered then the inescapable consequence is that it will not operate affect the immovable property, which he seeks to transfer by lease. any more than permissibility of the character of possession of the respondent as a tenant, the right of lease shall be seen only in the context of the tenant having tendered the rent to the landlord and the landlord having received the rent from the tenant. in such a situation, the receipt of rent itself constitutes the creation of lease and the possession held by such a tenant shall be a tenant from month to month. here it is not the tenure of lease that protects possession but it is a statutory right of a tenant to stay in possession under the east punjab urban rent restriction act that comes into operation. if the provisions of the act could be invoked by either party, it only means that such a right is available not under the contract of lease itself, but it is a right that is invoked under the act and the trappings of all the provisions will come into full sway. the landlord's right to invoke section 13-b could not in such a situation be defeated. the defence to the petition as not maintainable by the reliance on a document which is inadmissible is under such circumstances not tenable at all.5. the other defence that the tenant took up was that the landlord was guilty of suppression of not disclosing other properties which he was possessed of. according to the learned senior counsel, the averment in the petition was only that the landlord was not possessed of any other similar building. the averments in the petition, inter alia, are 'that the petitioner is not in possession of any other similar premises at jalandhar city nor he has vacated any such building within the limits of municipal corporation, jalandhar after the coming into force of east punjab urban rent restrict act.' the qualifying expression found in the petition of the petitioner not owning 'any other similar premises', according to learned counsel assumes significance that it would only mean that the landlord concedes that he has other buildings also but denies availability of similar buildings. if the tenant had in his application for leave contended that the landlord indeed owns some other premises, it would obtain some credibility to his defence. on the other hand, the tenant has adopted a defence that in my view is only a moonshine. his response to the averments referred to above as contained in paragraph 4 of his petition seeking for leave is that the ownership particulars of the landlord of other building would require further probe. a landlord cannot say anything more than the non-availability of any other premises. a negative fact could be shown to be false only by a positive assertion of existence of some property which would disentitle the landlord to invoke the said provisions. in my view, the attribute of a malafide intent of a landlord could be made if only he is shown to have any other building. the inference from the statement of the landlord that he does not own any other similar premises as meaning that he owns premises but not only similar to the same as in the occupation of the tenant is an attempt to bring in a needless obfuscation in language and an attempt to split hair on a matter of syntax in a language that is still foreign to us. with all its normal understanding that the sentence would admit of, the landlord must be understood as saying that he has no other building. the word 'similar' is merely an expression in superfluity in the context that cannot be stretched out beyond logic and beyond what the sentence normally means.6. the learned senior counsel points out to the reasoning adored by the rent controller that since the landlord was stated to be a nri and he has enclosed by an averment in the petition his need and further that he came with a qualification of 'specified landlord' by being an owner of the building for more than five years prior to the filing of the petition, the bona fides shall have to be immediately inferred. again, i have no difficulty in accepting the contention of the learned senior counsel that the decision of hon'ble the supreme court in baldev singh bejwa v. monish saini : 2006 a.i.r. (s.c.) 59, puts it up beyond any pale of controversy that by a proper reading of section 18(5) that requires the rent controller to exercise his power whether to grant a leave or not, the court shall be satisfied that the need of the landlord clearly existed. the rent controller that examines a petition for leave himself has to be first satisfied that the petitioner has stated in the petition what entitled him to invoke section 13-b and that nothing in the section that enables the landlord to invoke the said section is lacking in the petition in the necessary averments. the court shall then see whenever it falls within its ken, any defence that would require an adjudication by permitting the tenant to file his written statement exists, it shall go through a process of trial before rendering an adjudication. the crucial time when the court would do that exercise is when the rent controller finds that the leave to defend petition discloses that element of doubt in the contentions of the landlord that would merit consideration through a full-fledged trial. in this context, the need of the landlord is not merely to be presumed at all times but if the issue whether the requirement of the accommodation of the landlord or his dependent is genuine or not it shall be examined in the context of what is stated in the written statement. the need could be shown as such, but not merely a desire or a mere wish to secure eviction if it was pointed out that the landlord did in fact own other premises and there was no justification for applying for eviction. i have already extracted the defence in relation to the need in paragraph 4 of the written statement that merely states that it could require a probe without setting out any tangible information that could even excite the minimal suspicion about the need. if in such a situation, the tenant is unable to give any credible information that could make the court believe the landlord's need was not at least prima facie shown then the decision of this court and of the hon'ble supreme court in relation to the presumption that is available comes into operation. if on the bare statement of the landlord that he requires the premises, the court cannot presume the need to be genuine. such a presumption becomes available immediately after examining the defence that nothing is disclosed about the availability of other property or other circumstances which could rise a cloud of doubt over such a presumption.7. for the sake of completion of all the points urged by the learned senior counsel, it has to be seen that even the decisions which he relies on in mrs. kushal takhar v. gurinder singh : (2009-1) 153 p.l.r. 344, where the court held that a leave to defend shall be granted to a tenant if the landlord was found in occupation of other accommodation. it is one thing for a tenant to prove or contend that the landlord owns another property or when the landlord himself admitted that he had owned another property but quite another for a tenant to say that whether the landlord owns any other property would require a probe to merit a chance for filing his statement after the grant of leave. i have no doubt in my mind that the statement gives no clue to the court that die landlord has any other property to disentitle him to apply under section 13b or doubt his requirement. the decision of hon'ble the supreme court in modern hotel, gudur, represented by m.n. narayanan v. k. radhakrishnaiah and ors. : a.i.r. 1989 supreme court 1510, refers to a situation when a contractual tenancy cannot be put an end to by resort to rent control act even before the tenure of lease has run itself out. this is not a proposition that would find its application in this case since the tenure of lease beyond a period of one year through an unregistered instrument cannot be operative and hence can not outstrip the requirement of the landlord to apply under section 13-b for the reasons that i have enumerated above. the inadmissibility of the document would render the defence vulnerable and take away the right of the tenant to contend that his right of lease existed till the completion of 20 years period. the decision of hon'ble the supreme court in firm sardari lal vishwa nath and ors. v. pritam singh : a.i.r. 1978 supreme court 1518, laying down the law that in the event of violation of the term of a contract relating to lease, there is a requirement to issue a notice under section 106 is not again a decision that could support the contention of the tenant for the hon'ble supreme court dealt with a situation of the primacy of a contractual tenant to hold his tenement till the lease period is completed but it shall not avail to the tenant in this case here, since the tenant is only a statutory tenant and being a amenable to the provisions of section 13-b.8. the length of discussion in the judgment shall not be taken to infer that the tenant's defence was formidable which could not be thrown over board and it required to be examined in depth after leave to defend is granted to the tenant for a full-fledged trial. the elaboration has been occasioned by elaborate arguments of the learned senior counsel. the order of the rent controller would require a modification in that it has ordered eviction summarily by rejecting the leave to defend petition filed by the tenant. section 18(4) mandates that the court on examination of the affidavit stating the ground on which the tenant seems to contest the application, while still disallowing the leave, is bound to obtain the statement made by the 'specified landlord' in the application for eviction and then pass an order if ground exists for evicting the tenant. that is an additional duty of the court to see all the requirements under section 13-b are fully satisfied. the order of the rent controller rejecting the leave to defend is upheld and the matter is remitted to the rent controller only for recording the statement of the landlord and appraise the petition on its merits as disclosed through the documents and then pass appropriate orders. the court shall in such an eventuality consider the fact that the tenant is purported to have effected substantial improvements and that he has been running the business for more than 18 years. a plea for consideration of time for eviction which is placed before me by the learned counsel for the petitioner does not require to be addressed in the light of the matter being remitted to rent controller for consideration of the issue of the order of eviction.9. the civil revision is disposed of in the above terms.