Gujarat High Court
Gandabhai Ranchhodji Gandhi vs Noshir Ka Vasji Sabowala And Ors. on 5 February, 1993
Equivalent citations: AIR1994GUJ18, (1993)1GLR238, AIR 1994 GUJARAT 18
Author: C.K. Thakker
Bench: C.K. Thakker
ORDER C.K. Thakker, J.
1. This revision application is filed against a decree of eviction passed by the trial Court and confirmed by the appellate Court against the defendant.
2. To appreciate the controversy in question, few relevant facts may now be stated:
The opponents are original plaintifffs, while the petitioner is original defendant. The plaintiffs filed Regular Civil Suit No. 122 of 1978 in the Court of the Civil Judge (Senior Division), Navsari against the defendant for possession of the suit premises bearing Munir cipal Census No. 530/1 situated in Survey No. 26; City Survey Tika No. 14/1 in the town of Navsari. It is the case of the plaintiffs that the defendant was a monthly tenant of one room at the rate pf Rs. 6/- per month. He was in arrears of rent from February 1, 1966. One Jimmy Rustomji Garda was the owner of the suit premises, who died on October 11, 1976. During his life time, he executed a will on May 27, 1976 and bequeathed the suit property to his four sisters and his wife was made the sole executor and the trustee under the will. A petition was filed in the High Court of Judicature at Bombay for Probate of the said will and the Probate was granted by the High Court of Bombay on October 4, 1982. The legatees appointed one Mr. Laxmi-shanker Mapara as their constituted attorney with several powers including the power to sell the property. In exercise of the said power, Mr. Mapara sold the suit premises to the plaintiffs by a sale deed Exh. 44 on December 15, 1977. After the sale deed was executed, a notice of attornment was issued by the Power of Attorney as also by the present plaintiffs to the defendant informing him that the plaintiffs had become owners of the property and calling upon him to accept the plaintiffs as owners and also asking him to pay arrears of rent. The defendant, however, failed to do so. He neither accepted the plaintiffs as landlords nor paid arrears of rent. On the contrary, he denied the title of the plaintiffs. Therefore, on both the grounds, namely; on the ground of denial of title of the landlords as also for non-payment of rent, the defendant was liable to be evicted.
3. The defendant filed a written statement at Exh. 12, inter alia contending that the suit was false frivolous. It was denied that the plaintiffs had become the owners of the suit property and they had right to file the suit against the defendant. It was contended that four sisters of deceased Jimmy Rustomji Garda had no right in the suit property and, therefore, the sale purported to have been made on behalf of those ladies through their Power of Attorney Mr. Mapara was contrary to law. The so-called sale deed, Exh. 44 did not confer any right in favour of the plaintiffs. Since the plaintiffs had no interest in the suit premises they had no right to issue attornment notice nor to file a suit against the defendant. It was stated that the plaintiffs were called upon to supply copies of relevant documents; such as sale deed, will and Power of Attorney to show how the plaintiffs had become owners of the suit property. Even a money order of Rs. 20/- was sent but the plaintiffs did not comply with the request. It was asserted that the defendant was always ready and willing to pay rent to the landlord, but since the plaintiffs had no authority to demand arrears of rent, the suit filed by them was not maintainable at law.
4. On the basis of the pleadings of the parties, the trial Court framed necessary issues at Exh. 14. After appreciating the evidence on record, the Court held that it was proved by the plaintiffs that they had become owners of the suit premises pursuant to the sale deed Exh. 44, executed by Mr. Mapara, Power of Attorney, of four sisters of deceased Jimmy Rustomji Garda, who had become owners of the suit property under the will. The trial Court also held that notice of attornment, issued by the plaintiffs to the defendant was legal, valid and in accordance with law and since the defendant denied the title of the plaintiffs, he was liable to be evicted. Re garding arrears of rent, the Court held that even after notice of demand under Section 12 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as "the Rent Act"), the defendant failed to pay rent and, therefore, he was liable to eviction even on that ground. The trial Court, therefore, passed a decree of eviction against the defendant. The said decree was confirmed in appeal. It is this decree which is challenged in the present revision application by the petitioner.
5. Mrs. Bela Yagnik for Miss V. P. Shah, learned counsel for the petitioner raised the following contentions;
(1) The plaintiffs were not the owners of the suit property and, therefore, they had no right to file suit against the defendant. Even legatees themselves could not have brought an action before grant of probate in their favour.
(2) The defendant was not inducted as tenant by the plaintiffs and, hence, the provisions of Section 116 of the Evidence Act, 1872 were not attracted in the instant case.
(3) There was no denial of the title by the tenant and the reliance placed on Section 111(g) of the Transfer of Property Act, 1882 was not well founded.
(4) Even if the provisions of Section 111(g) of the Transfer of Property Act were attracted, a specific notice thereunder was required to be issued to the tenant before claiming possession on the ground of denial of title. In absence of such notice, the suit was not maintainable.
(5) Right to recover rent and right to recover possession are two different things. Therefore, even if it is held that the plaintiffs had become owners of the suit properly, they had no right to recover possession of suit property from defendant on the ground of arrears of rent.
(6) The defendant was not in arrears of rent as the case did not fall under Section 12(3)(a) of the Rent Act and no decree of eviction could have been passed against him.
6. Mr. A. H. Mehta, learned counsel for the respondents, on the other hand, supported the decree passed by the trial Court and confirmed by the appellate Court. He submitted that there was denial of title by the defendant and the Courts below were right in passing decree on that ground. He further submitted that the suit filed by the plaintiffs was maintainable. According to Mr, Mehta, the words used in Section 213 of the Indian Succession Act, are "No right as executor or legatee can be established" and not "No suit can be filed in competent Court of law". Hence, a suit can always he filed even before grant pf probate by acompetent Court of law. A decree, however, cannot be passed unless the probate is granted in'favour of plaintiff. Mr. Mehta also submitted that no specific notice under Section 111(g) of the Transfer of Property Act is necessary and as soon as there is denial of title by.the tenant, it is deemed that the tenant is not ready and willing to perform terms and conditions of tenancy thereby incurring liability to evict from the suit premises. Mr. Mehta also submitted that the property was purchased by the plaintiffs by a registered sale deed with all rights and they were entitled to claim arrears of rent from the defendant as also the right to recover possession, if the case was covered by Section 12(3)(a) of the Rent Act.
7. Having heard the learned counsel for both the parties, I am of the opinion that the decree of eviction passed against the defendant requires to be set aside. The main ground on which the decree came to be passed against the defendant is denial of title of the plaintiffs by him. Now, whether there was denial of title by the defendant or not must be determined on the basis of the documentary evidence on record. The question can be considered in the light of material facts which are not disputed by the parties to the proceedings. It is an admitted fact that the property originally belonged to one Jimmy Rustomji Garda who died on October 11, 1976. The said Jimmy Garda executed a will on May 27, 1976 by which he bequeathed the suit property to his four sisters and his wife was appointed as the sole executorix and trustee. Petition No. 379 of 1977 was filed in the High Court of Judicature at Bombay for probate of the said will and the probate was granted on October 4, 1982. In the meanwhile, four sisters in whose favour bequeast was made executed a Power of Attorney in favour of Laxmidas R. Mapara and appointed him as their constituted attorney with several powers including the power to sell the suit property. It was dt. October 11, 1977 Exh. 45. In exercise of the said power, Mr. Mapara sold the property to the plaintiffs on Dec. 15, 1977 by a registered sale deed, Exh. 44. After execution of the sale deed, a notice of attorn-ment came to be issued on Dec. 15, 1977, Exh. 35 to the defendant informing him that the plaintiffs had become the owners of the suit property. The defendant was also called upon to pay the amount of arrears of rent to the plaintiffs. Again, a notice was issued on December 21, 1977, Exh. 36 and the facts stated in an earlier notice were reiterated. The reply was sent by the defendant on March 28, 1978 Exh. 39, wherein it was stated that the notice was not legal and it was vague. It was also stated that before a detailed reply could be given or notice could be acted upon it would be necessary for the defendant to get certain documents. An amount of Rs. 20/-was sent by money order for that purpose and the plaintiffs were asked to send copies of certain documents to the defendant including a copy of the sale deed, will executed by deceased Jimmy Rustomji Gada and probate or letters of administration. It is an admitted fact that those documents were not supplied to the defendant. Instead, another notice came to be issued on April 6, 1978, Exh. 40, by which the tenancy of the defendant was terminated on the ground of denial of title by him. It was averred in the said notice that the plaintiffs had purchased the property by a registered sale deed; necessary entries were also made in the city survey record and the defendant was very much aware of that fact. Even attornment notices were also received and yet evasive replies were given by him. It was not the responsibility of the plaintiffs to supply copies of documents demanded by the defendant. The demand was made only with a view to avoid payment of rent. It was then stated that if the defendant was ready and willing to inspect the relevant part of the documents, he should approach their advocate after getting previous appointment. A reply was sent by the defendant to that notice on April 22, 1978, Ex. 42 reiterating his earlier stand that the defendant would not admit the plaintiffs as his landlord unless it was established by them. Once again, the defendant demanded copies of documents. It was stated that if the plaintiffs had purchased the property, there could be no objection on their part in allowing the defendant to inspect the documents and the sale deed. Then in para 6 of the reply, it was stated as under:
(Vernacular matter is omitted) Translated into English it reads thus:
"All the same, if in fact your clients have become owners of that property, on being satisfied about it my client is eager to pay rent due and payable by him to your clients."
Now, it is an admitted fact that the probate was granted by the High Court of Judicature at Bombay on October 4, 1982 and the application was made by the plaintiffs on December 7, 1982, Exh. 128, for exhibiting it. The application was granted by the Court on January 28, 1983, Exb. 137, and that is how the probate was brought on record. To recall the facts, the suit was filed on June 18, 1978. Notice of attornment was issued by the plaintiffs on December 15, 1977 (Exh. 35); tenancy was determined on April 6, 1978 (Exh. 40), deposition of the defendant started on April 30, 1982 and was completed on January 15, 1983. Thus, before the probate came to be exhibited by the Court and became part of the record, the evidence of the defendant was over.
8. The question for my consideration, therefore, is; whether in the facts and circum-stances of the case, can it be said that there was denial of title of landlords by the tenant so as to attract the provisions of Section 116 of the Evidence Act or Section 111(g) of the Transfer of Property Act. My answer to the above question is in the negative.
9. Section 111 of the Transfer of Property Act reads as under:
"111. Determination of lease.-- A lease of immbveable property determines-
(a) to (f) ............................
(g) by forfeiture, that is to say (1).....(2), in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself....................
.... .... .... .... .... .... .... .... ....
10. Looking to the above provision, it is, clear that before the lease of immoveable property can be determined on the ground of denial of title by lessee, it must be established that the lessee has renounced his character as such by setting up a title in the third party or by claiming title in himself.
11. Now, it is true that the principle: embodied in Section 111(g) of the Transfer of Property Act is applicable to the cases governed by the Act. It is equally applicable to the cases to which the Act does not apply. The underlying object has been succinctly stated by their Lordships of the Privy Council in the case of Maharaja of Jeypore v. Rukmini Pattamahadevi, reported in AIR 1919 PC 1, by describing the principle as one "in consonance with justice, equity and good conscience". That decision was approved and followed by the Hon'ble Supreme Court in Raja Mohammad Amir Ahmad Khan v. Municipal Board of Sitapur, reported in AIR 1965 SC 1923. Therefore, Mr. Mehta is right in submitting that even if the case is not governed by the Transfer of Property Act st'ricto sensu, the principle underlying Section 111(g) of thereof would apply to the tenancy in question.
12. Mr. Mehta further submitted that even if the plaintiffs have not put the defendant in possession and have subsequently become the owners of the property, the principle embodied in Section 116 of the Evidence Act would govern the field and applicable against the defendant. 1 see considerable force in the argument of Mr. Mehta.
13. In Kumar Krishna Prasad Lal Singha Deo v. Baraboni Coal Concern Ltd., reported in AIR 1937 PC 251, the Judicial Committee of the Privy Council observed that the contention of the defendant that the doctrine of estoppel under Section 116 of the Evidence Act, would apply only if it were shown that the landlord put the tenant into possession of the property and that when a person already in possession of land becomes tenant of another person, there was no estoppel against denying his lessor's title, was misconceived and ill-founded. Drawing the distinction between English law and Indian law, their Lordships of the Privy Council observed as under :
"There is in English case law some authority for the view that a tenant is only estopped from denying his landlord's title if at the time when he took his lease he was not already in possession of the land. But in Section 116, the Indian Legislature has formulated no such condition. The words at the beginning of the tenancy give no ground for it.
When a demise of land is made and acted on, when the tenant proceeds to occupy and enjoy under the grant, gets the shelter of the grantor's title and the benefit of his convenants, it is difficult to see why during the continuance of the tenancy he should be free of this form of estoppel. Tenant who has occupied but not entered is a difficult notion to thrust into Section 116 and quite impossible to find therein."
14. The question, however, is whether in the facts and circumstances of the case, the defendant has denied the title of the landlord. Now, it is settled law that in order to incur liability of eviction under Section 111(g) of the Transfer of Property Act, denial of title by tenant must be clear, express and unequivocal. It should not be vague or evasive and the defendant cannot be evicted on the ground of such vague denial of title. In Raja Mohammad Amir's case (AIR 1965 SC 1923) (supra). It was contended that the appellant claimed title to the property in himself as he stated that the property belonged to him. Negativing the argument and referring to the dictionary meaning of belonging to, the Supreme Court observed that though the word belonging no doubt capable of denoting an absolute titte, was nevertheless not confined to connoting that sense. Even possession of an interest less than that of full ownership could be signified by that word. It was held that the precise sense which the word meant to convey could be gathered only by reading the document as a whole and adverting to the context in which it occurred. In the facts and circumstances of the case, the Hon'ble Supreme Court held that there was no denial of title by the appellant and the Courts below committed an error of law in passing decree against him.
15. Again in Kundan Mal v. Gurudutta, reported in (1989) 1 SCC 552, a decree was passed against the tenant on the ground of denial of title of the landlord. Following the earlier decision in Raja Mohammad Amir's case (AIR 1965 SC 1923) (supra), the Court held that there was no clear and unequivocal denial of title by the tenant and the decree passed by the Courts below was contrary to law. In the course of judgment, the Court observed :
"One thing that is conspicuous is that the appellant did not claim any title in himself. He expressly described the character of his possession as that of a tenant. Is it in this situation permissible to forfeit his lease on the ground of disclaimer of title? In providing disclaimer as a ground for eviction of a tenant in Clause (f) of Section 13(1) of the Act, the legislature decided to give effect to the provisions of Clause (g) of Section 111 of the Transfer of Property Act. The principle of forfeiture on disclaimer is founded on the rule that a man cannot approbate and reprobate at the same time. Since the consequence of applying the rule is very serious, it must be held that the denial has to be clear and in unequivocal terms.
In Kundanlal's case (supra), two circumstances weighed with the Hon'ble Supreme Court (1) the appellant did not claim any title in himself, and (ii) he expressly described the character of his possession as that of tenant. In the instant case, it is not even the allegation of the plaintiffs that the defendant had claimed himself to be the owner of the suit property nor that he denied the character of his possession as that of a tenant. On the contrary, as is clear from the reply Exh. 42, the defendant had stated that he was 'eager' to pay the arrears of rent to the real landlord.
16. Again in Munisami Naidu v. C. Ranganathan reported in AIR 1991 SC 492, a decree was passed against the tenant on the ground of denial of title by him. The denial attributed to the defendant in that case was that an assertion was made by him that he was not aware as to who was his landlord. The Court held that such a statement would not amount to denial of title and decree or eviction could not be passed on that ground. The Court observed (at p. 494 of AIR);
"There is not a word so as to expressjy deny the title of landlord. The mere statement of the appellant that he was not aware in the particular set of facts as to who was his landlord is not to say that he ever denied title of his landlord."
17. On the other hand, in Tej Bhan Madan v. Additional District Judge, reported in AIR 1988 SC 1413, the appellant was in occupation of the premises as a tenant even prior to a sale made by the original owner in favour of one G. After the attornment notice, he made payment of rent to G who in turn sold the property to C. Both G and C issued notices of attornment to the tenant but the tenant refused to act accordingly and assailed not only the derivative title of C to the property but also the validity of sale in favour of G. Holding the action of the tenant as illegal and unlawful, amounting to denial of title, the Supreme Court confirmed the decree of eviction passed against him. The Court observed that there can be a denial of title of landlord without the tenant renouncing his character as such where, for instance, he sets up a plea of jus-tertii. The Court held that the tenant was not justified in denying the title of C as well as G when attornment notices were issued by both and when the tenant acted and paid rent to G accepting him as his landlord. The Court concluded; "The principle, in its basic foundations, means no more: than that under certain circumstances law considers it unjust to allow a person to approbate and reprobate, ".
18. Similarly in Subash Chandra v. Mohammad Sharif, reported in AIR 1990 SC 636, derivative title of the plaintiff was neither defective nor challenged. It was, therefore, held that the tenant could not deny the title of the plaintiff by challenging the title of his vendor. It was also made clear that the application of rule emboided in Section 116 of the Evidence Act would not be confined in its application to cases where original landlord brings action for eviction. Section 116 is not exhaustive of the law of estoppel. Therefore, a transferee from such a landlord also can claim the benefit, but that will be limited to the question of title of the original landlord at the time when the tenant was let in. The tenant is entitled to show that the plaintiff has not as a matter of fact secured a transfer from the original landlord or that the alleged transfer is ineffective for some other valid reason, which renders the transfer to be non-existent in the eye of law. Tenant in such a case can attack the derivative title of the transferee-plaintiff but not on the ground that the transferor-landlord who had initially inducted him in possession did not have the right to dispose of the property. Moreover, since the impediment in the way of a tenant to challenge the right of the landlord is confined to the stage when the tenancy commenced, he is not forbidden to plead that subsequently the landlord lost his right. These exceptions, however, do not relieve the tenant of his duty to respect the title of the original landlord at the time of the beginning of the tenancy.
19. In view of the above settled legal position, in my opinion, it cannot be said that in the facts and circumstances of the present case, the defendant has denied the title of the landlord. Firstly, the defendant has never claimed title in himself. Secondly, he has not renounced or disputed the character of his possession as that of the tenant. Thirdly, he has. not clearly, expressly and unequivocally denied the title of the plaintiffs but he has merely called upon the plaintiffs to prove their title and ownership. As is clear from the facts found, the plaintiffs are neither original owners who put the defendant in possession nor are purchasers from the person who inducted the defendant in the suit property. They claimed ownership on the basis of the will executed by deceased Jimmy Barda and also on the basis of the sale deed said to have been executed by four sisters of deceased Jimmy Barda (through their Power of Attorney; who said to have become absolute owners thereof pursuant to the will executed by the deceased. Now, it is an admitted fact that probate was not granted when notices were issued to the defendant. It was not brought on record of the present suit even when the deposition of the defendant was over. For the first time the probate was placed on record by an application Exh. 128, granted on January 28, 1983. It is also an admitted fact that the defendant replied to the notice issued by the plaintiffs and called upon the plaintiffs to supply copies of sale deed, will and probate. For the said purpose, the defendant even sent a money order of Rs. 28/-. It is, however, not disputed that the copies of those documents were not supplied to the defendant. In these circumstances, in my opinion, it cannot be said that the defendant had incurred liability of eviction under Section 111(g) of the Transfer of Property Act or under Section 116 of the Evidence Act. Before invoking those provisions, it was incumbant on the part of the plaintiffs to prove that they had become landlords as the defendant was not inducted by them. It is true that the defendant cannot deny even derivative title of the landlord but, then, the plaintiff must satisfy that they had become owners of the property. In my opinion, therefore, it cannot be said that the defendant was not right in demanding will of the deceased Jimmy Garda, probate and sale deed. The defendant did everything he was required to do even by sending money order of Rs. 20/-. Instead of establishing title, the plaintiffs terminated the tenancy of the defendant and filed suit for possession. In my opinion, therefore, the plaintiffs are not entitled to get decree for possession on the ground of denial of title by the defendant and the decree requires to be set aside.
20. The courts below have adopted curious approach in negativing the contention in the defendant. Both the courts have observed that sale deed Exh. 44 was registered one and, therefore, a public document. The defenant could have easily obtained certified copy of the said document from the registering authorities. Instead of taking that step, technical contentions were taken by the defendant by insisting copies of certain documents. It was also observed by the courts below that necessary details had been given regarding will and sale deed in the attornment notice. The defendant was bound to comply with the direction for payment of rent to the plaintiffs in accordance with the notice. He, however, failed to do so. He also did not avail of the opportunity to inspect the relevant part of the documents even though he was allowed. According to the courts, even that was not necessary since attornment notice Was enough. By such acts the defendant had called for strict and rigid proof of plaintiffs having become the owners and the landlords of the suit property. It was, therefore, absolutely clear that the defendant had specifically denied the title of the plaintiffs and had refused to accept them as his landlords. It was also observed that except bare challenge about the title of the plaintiffs the defendant did nothing. Thus, the challenge was neither bonafide nor genuine. Hence, it could not be said to be an honest inquiry on the part of the defendant to ascertain the title of the landlord and, therefore, he was liable to be evicted.
21. Frankly speaking, I fail to understand the reasoning of the courts below. In my judgment the test is not whether the defendant could have obtained certified copy of the sale deed or other documents. The crucial question whether the defendant denied the title of the landlords. The defendant has rightly demanded copies of the relevant documents pertaining to transfer by sale in favour of the plaintiffs namely; the will of deceased Jimmy Garda, probate issued by the High Court of Judicature at Bombay and the sale deed said to have been executed by four sisters of the deceased Jimmy Garda in favour of the present plaintiffs. He also sent an amount of Rs. 20/- to the plaintiffs. Unfortunately however, the plaintiffs did not accede to the request of the defendant and germinated the tenancy. In these circumstances, it cannot be said that the defendant had denied the title of the plaintiffs. Even in reply Exh. 42, the defendant had conceded his character as tenant of the property and bad shown his readiness and willingness to pay the rent by stating that he was "eager" to pay rent to the landlord. It is thus, clear that the courts below have not examined the question in proper perspective and, therefore, the findings required to be interfered with by this court.
22. The matter can be looked at from a different angle also. Section 213 of the Indian Succession Act, 1925 provides that no right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with an authenticated copy of the will annexed. No doubt, Mr. Mehta is right in submitting that the words of Section 213 are "No right can be established" and not "No proceeding can be commenced or instituted". According to Mr. Mehta, a suit can be instituted in absence of probate or letters of administration as the case may be, but no decree can be passed in that suit. Mr. Mehta also relied on Section 227 of the Succession Act which enacts that probate of a will when granted establishes the will from the death of the testator, and renders valid all intermediate acts of the executor as such. The question, however, is if in these circumstances in absence of will, probate or sale deed, the defendant has not accepted the plaintiffs as his landlords and has asked the copies of the relevant documents, can it be said that he is liable to be evicted on the ground of denial of title by him. It seems to me that the law is well settled on the point that such an act on the part of the defendant-tenant cannot be considered as denial of title by him so as to liable him to eviction. Therefore, the findings recorded by the courts below are illegal, contrary to law and must be set aside jn exercise of the revisional jurisdiction of this Court.
23. Since the plaintiffs had not become owners of the suit property, they could not have issued a demand notice and thus it cannot be said that provisions of Section 12(3)(a) of the Rent Act were attracted and the defendant was liable to be evicted on that ground. Therefore, the decree of eviction passed against the defendant requires to be set aside by dismissing the suit for possession filed by the plaintiffs.
24. In view of the above findings, the contention raised by Mrs. Yagnik is upheld and the decree passed by the trial court and confirmed by the appellate court is set aside. The suit of the plaintiff is ordered to be dismissed. However, in the facts and circumstances of the case, there is no orders as to costs all throughout.