Delhi District Court
Smt. Neelam Dawar vs Shri Nanak Chand (Since Deceased) on 1 November, 2013
Neelam Dawar & Ors. v. Nanak Chand E-51/11
IN THE COURT OF SH. MANISH YADUVANSHI
SCJCUMRC (SOUTH) SAKET COURTS COMPLEX
NEW DELHI
E. No. 51/11
UNIQUE CASE ID NO. 02406C0146032011
IN THE MATTER OF:
1. SMT. NEELAM DAWAR
WIDOW OF SH. CHANDER PRAKASH
R/O B124, PANCHWATI SOCIETY,
VIKASPURI, NEW DELHI110018.
2. SHRI HITESH KUMAR
3. SHRI KHEM CHAND
BOTH SONS OF LATE SH. GULSHAN RAI
BOTH RESIDENTS OF:
713/44, SHAMBU NAGAR,
TRI NAGAR, NEW DELHI.
.... PETITIONERS
VERSUS
SHRI NANAK CHAND (SINCE DECEASED)
THROUGH HIS LRS:
(i) SMT. DEVI BAI
Result: Application dismissed (Eviction order passed) Page 1 of 28
Neelam Dawar & Ors. v. Nanak Chand E-51/11
W/O LATE SH. NANAK CHAND
R/O A92, DAYANAND COLONY,
LAJPAT NAGARIV, NEW DELHI110024.
(ii) SHRI GHANSHAM DASS
S/O LATE SH. NANAK CHAND
R/O A2/34, ASHIRWAD APARTMENTS,
LIG FLATS, PASCHIM VIHAR,
NEW DELHI110063.
(iii) SHRI GOVINDA SUKHIYANI
S/O LATE SH. NANAK CHAND
R/O 145, GROUND FLOOR, VINOBA PURI,
LAJPAT NAGARII, NEW DELHI110024.
(iv) SHRI RAMESH KUMAR
S/O LATE SH. NANAK CHAND
R/O A92, DAYANAND COLONY,
LAJPAT NAGARIV, NEW DELHI110024.
ALSO AT:
SHOP NO. 325, PUNJABI BAZAR,
KOTLA MUBARAKPUR, NEW DELHI110003
(v) SMT. MEERA KUMARI
W/O SH. OM PRAKASH
D/O LATE SH. NANAK CHAND
R/O HOUSE NO. 84, BLOCK G, 23,
SECTOR7, ROHINI, NEW DELHI110085.
(vi) SMT. ASHA NIHALANI
W/O SH. SHYAM SUNDER
Result: Application dismissed (Eviction order passed) Page 2 of 28
Neelam Dawar & Ors. v. Nanak Chand E-51/11
D/O LATE SH. NANAK CHAND
R/O HOUSE NO. 4, FIRST FLOOR,
BLOCK NO. 5, GALI NO. 6,
GEETA COLONY, DELHI110034.
.... RESPONDENT
DATE OF INSTITUTION : 21.07.2011
DATE OF RESERVING THE ORDER : 25.10.2013
DATE OF DECISION : 01.11.2013
ORDER ON APPLICATION UNDER SECTION 25B (4) OF
DRC ACT
1. The petitioners filed petition under Section 14(1) (e) read with Section 25B of the Delhi Rent Control Act (hereinafter, referred to as 'DRC Act') against the respondent Sh. Nanak Chand. It is in the petition that the respondent is tenant in respect of a shop measuring 17' x 11' bearing No. 325, Punjabi Bazar, Kotla Mubarakpur, New Delhi110003 (hereinafter, referred to as 'demised premises') as shown in red colour in the site plan w.e.f. 01.12.1977 at a monthly rent of Rs. 46/ per month exclusive of electricity and other charges from where the respondent runs a confectionary shop. The petitioners claim to be the owners of the demised premises. According to them, the same was Result: Application dismissed (Eviction order passed) Page 3 of 28 Neelam Dawar & Ors. v. Nanak Chand E-51/11 earlier owned by one Late Sh. Jiwan Dass. He executed a registered Will 23.02.1963 whereby bequeathing the demised premises in favour of his grand sons namely Sh. Chander Prakash and Sh. Gulshan Rai, sons of Sh. Satpal in equal shares. Both of them have since died. Smt. Neelam Davar is the widow of Sh. Chander Prakash while Sh. Hitesh Kumar, second petitioner and Sh. Khem Chand, third petitioner are sons and legal heirs of Late Sh. Gulshan Rai. It is submitted that Letter of Administration qua demised premises was granted in their favour by the Court of Sh. V.K. Gupta, Ld. ADJ, Delhi on 26.10.2006. The demised premises is being sought on bona fide requirement of all the petitioners. It is submitted that the petitioner No.1 is due for retirement and has a married son who is not settled and therefore not in a position to run his family comprising of his wife and children. It is further submitted that second and third petitioners do not have any place of business of their own. It is submitted that petitioner No.2 is employed but has a very meager income to support his family of his two children and wife. The third petitioner is still unsettled and does not have any steady source of income for survival of his family comprising of his wife and the two children. Moreover, he is heavily dependent on the Result: Application dismissed (Eviction order passed) Page 4 of 28 Neelam Dawar & Ors. v. Nanak Chand E-51/11 mercy of his landlord who may evict him at any point of time. Thus, the possession of the demised premises is sought by the petitioners for themselves/for dependent members of the family/for the persons for whose benefit the demised premises is held by the petitioners for carrying on their business. It is submitted that they have no other reasonably suitable commercial accommodation elsewhere in Delhi. It is further informed that the respondent has caused substantial damages to the demised premises by neglecting its upkeep.
2. It is in this petition that the respondent filed application under Section 25B (4) of DRC Act along with an affidavit in its support to disclose purported grounds requiring grant of leave. At the outset, it is submitted that the petitioners are neither the owners nor the landlords qua the demised premises. It is claimed that the respondent was inducted as tenant in the demised premises for commercial purposes by Sh. Amar Nath, s/o Late Sh. Jiwan Dass in the year 1977 at the rate of Rs.46/ per month which was being paid regularly to said Sh. Amar Nath against rent receipts. It is in the affidavit that Sh. Amar Nath and his family members tried to dispossess the respondent from demised premises compelling the respondent to file a suit for Perpetual Result: Application dismissed (Eviction order passed) Page 5 of 28 Neelam Dawar & Ors. v. Nanak Chand E-51/11 Injunction bearing suit No. 1077/1993 against Sh. Amar Nath, his wife Smt. Kaushalya Devi and his children. The said suit was decreed on 29.11.1999 by the Court of Sh. G.P. Singh, the Then Ld. Civil Judge, Delhi. Subsequently, Sh. Amar Nath filed an eviction petition bearing E. No. 269/94 against this respondent under Section 14(1)(a) of the DRC Act. During its pendency, Sh. Amar Nath died. His LRs namely Smt. Kaushlya Devi and others were substituted in his place. The said petition was dismissed by the Court of Sh. H.S. Sharma, the then Ld. ARC, Delhi on 27.11.1996. The respondent had been tendering the rent to LRs of Late Sh. Amar Nath personally and subsequently through money order. Since they refused to accept the same, the respondent deposited the rent initially upto 31.07.1994 and thereafter from 01.08.1994 to 31.10.2000 under Section 31 of the Punjab Relief of Indebtedness Act. Subsequently, Smt. Kaushalya Devi also filed an eviction petition bearing E. No. 32/2001 against this respondent under Section 14 (1), (a), (f), (g) and (j) of the DRC Act. It was also dismissed by the concerned ARC, Delhi on 09.10.2003. It is submitted that even subsequent thereto, the respondent has paid the rent of premises to Smt. Kaushalya Devi by money orders up to 31.10.2010 Result: Application dismissed (Eviction order passed) Page 6 of 28 Neelam Dawar & Ors. v. Nanak Chand E-51/11 and after her death, to her LRs by money orders up to 31.08.2011. It is thus submitted that the petitioners are strangers to the present respondent. It is submitted that the demised premises is now owned by LRs of Late Smt. Kaushalya Devi. It is submitted that grant of Letters of Administration does not confer ownership rights as they are only in receipt of the legality and validity of the Will. The relationship of landlord and tenant is denied. It is submitted that the petitioners have sufficient accommodation at their disposal. It is stated that the petitioners are having flourishing business from shop No. K33, Punjabi Bazar, Kotla Mubarakpur, New Delhi as well as two other shops in Karol Bagh, New Delhi from where the business is being carried out by second and third petitioners. It is submitted that the first petitioner is still in service and gets handsome salary apart from other perks. It is further submitted that the petitioners also owns and possesses a stall No. 33, Ghaffar Market, Karol Bagh, New Delhi. It is submitted that the present petition is filed by sole motive to relet the demised premises or to sell it for huge consideration. It is submitted that the respondent aged 85 years is running his business from demised premises since inception of tenancy and presently his children Result: Application dismissed (Eviction order passed) Page 7 of 28 Neelam Dawar & Ors. v. Nanak Chand E-51/11 Sh. Ghanshyam Dass, Sh. Govinda, Sh. Sukhiyani and Smt. Ramesh Kumar are looking after their businesses.
3. The petitioners filed a joint reply to the application along with supporting counter affidavit of first petitioner wherein she has stood in denial of all the contents of the sworn affidavit of the respondent. The case in the eviction petition is reiterated as correct. They have denied that it was Sh. Amar Nath, who inducted the respondent as tenant in the demised premises on the ground that he had no right, title or interest in it. It is denied that either of Sh. Amar Nath or his family members had any right, title, etc. qua demised premises. The litigation between the respondent and Sh. Amar Nath or his family members is denied for want of knowledge. It is submitted that the litigation inter se between them has no bearing on the petitioners' case. It has been stated in the counter affidavit that the petitioners approached this respondent on 28.11.2006 and made him aware about the orders of the Court of Sh. V.K. Gupta, Ld. ADJ, Delhi and asked the respondent to pay rent to them. The respondent had refused to acknowledge the copy of said orders and had further stated that he does not acknowledges/attorns the petitioners as his owners and landlords. It is Result: Application dismissed (Eviction order passed) Page 8 of 28 Neelam Dawar & Ors. v. Nanak Chand E-51/11 submitted that the respondent has not tendered the rent to the petitioners and if the rent is being tendered to strangers, it does not have any binding on the petitioners. It is further in the counter affidavit that none of the petitioners have any connection with the shop No. K33, Punjabi Bazar, Kotla Mubarakpur, New Delhi or that the second and third petitioners have any property in Karol Bagh as alleged. It is reiterated that the petitioners No. 2 and 3 do not have any shop in their name anywhere in Delhi. It is submitted that the respondent wanted to sell the property and has never let the petitioners to enter into their own premises for inspection and that he also tried to create third party interest in the demised premises by letting unknown persons to trespass. Thus, the petitioner filed a suit for Permanent and Mandatory Injunction in which the Court of Smt. Vijeta Singh, Ld. Civil Judge, Saket, New Delhi restrained the respondent from creating any third party interest in the demised premises. It is pointed out that the present petition is specific, complete, factually correct and that there is no concealment. The sons of the respondent are stated to be trespassers in the demised premises. No rejoinder was filed by the respondent. During the pendency of the present proceeds, the respondent died on 14.02.2012. His LRs were later on substituted by Result: Application dismissed (Eviction order passed) Page 9 of 28 Neelam Dawar & Ors. v. Nanak Chand E-51/11 order dated 23.08.2012.
4. I have heard Sh. Pradeep Kumar and Sh. Rishi Lakhanpal, counsels for petitioners and Sh. I.P. Singh, counsel for the respondent. 4.1 Ld. Counsel for the respondent has argued on the points highlighted in the leave to contest applicationcumaffidavit. He has also placed on record the written submissions which have been perused. In support of his contentions, respondent's counsel has relied on judgment titled 'Ghulam Qadir v. Special Tribunal and Anr.', 2001VIIIAD (SC) 105 to the effect that the Probate Court has no jurisdiction to decide title in property demised under a Will. Further, the Will itself is sought to be challenged. It is submitted that the alleged Will executed on 23.02.1963 shows that it excludes Sh. Amar Nath, the other son of Sh. Jiwan Dass from any share in the suit shop. It is submitted that Sh. Amar Nath litigated with the present respondent during which the present petitioners or their predecessors ininterest never came forward to lay any claim on demised premises. It is submitted that the circumstances aforesaid are therefore evoking suspicion in regard to genuinity of the Will in question which has not Result: Application dismissed (Eviction order passed) Page 10 of 28 Neelam Dawar & Ors. v. Nanak Chand E-51/11 been produced. The respondent has relied on Sanjay Gupta & Anr. v. Smt. Ved Kanti Gupta and Anr., 1994 (31) DRJ 76 to the effect that a probate or Letter of Administration is not necessary in respect of Will executed in Delhi in regard to property located in Delhi in a suit for Declaration of Title based on an unprobated Will. It is submitted that in a connected eviction petition bearing E. No. 101/11 this Court has already granted leave to contest to the present respondent and the same should be granted in this matter as it is also being sought on similar grounds. Ld. Counsel for the respondent has also placed written submissions in regard to his interpretation of the judgments relied upon by the petitioners. The same have been perused.
5. The petitioners' counsels, on the other hand, has also argued in amplification of the facts constituted by them in the pleadings. They have relied on the following judgments:
i) Surinder Singh v. Jasbir Singh, 172 (2010) DLT 611 to the effect that eviction of premises for extension of business by landlord and for his son who is dependent upon him for purposes of business is genuine and bona fide.
Result: Application dismissed (Eviction order passed) Page 11 of 28
Neelam Dawar & Ors. v. Nanak Chand E-51/11 ii) M/s International Building & Furnishing Co. Pvt. Ltd. & Anr.
V. J.S. Rikhy & Ors., AIR 1985 Delhi 338 to the effect that the respondent/tenant cannot dispute Will executed by landlord's father.
iii) Ashok Kumar Mehra v. Kuldeep Kumar Mehra, 172 (2010), DLT 274 to the effect that the respondent/landlord living in rented accommodation has all the right to shift to his own property.
iv) Kharati Ram Khanna & Sons v. Krishna Luthra, 172 (2010) DLT 551 to the effect that where respondent want to establish his sons separately and independently in his property and in the same trade then by no stretch of imagination, it could be said that the requirement is neither bonafide nor genuine.
v) Labhu Lal v. Sandhaya, 173 (2010) DLT 318 wherein it was held that the requirement of respondent's son and daughterinlaw for expanding the clinic currently run in premises in question is most bona fide and genuine.
vi) Adarsh Electronics and Ors. V. Dinesh Dayal, 173 (2010) LT 518 wherein the requirement of a retired government servant for Result: Application dismissed (Eviction order passed) Page 12 of 28 Neelam Dawar & Ors. v. Nanak Chand E-51/11 opening an office of Advocate in the premises also by him was found to be genuine and not a mere desire.
vii) Darshan Singh v. Gurinder Singh, 173 (2010) DLT 279 wherein it was found that need of the landlord for space on the ground that he could not support his family due to paucity of of space was found to be genuine.
viii) Viran Wali v. K.L. Kochhar, 174 (2010) DLT 328 to the effect that the tenant cannot dictate as to how and in what manner landlord uses is own property.
ix) Darshan Singh v. Kuldeep Singh, AIR 1979 P&H 250 wherein it was held that Letters of Administration successfully prove execution of Will and the matter could not be reconsidered in the Civil Court.
x) Chandra Prabha v. Sali Chan Sharma & Ors. which is a judgment of the Hon'ble Delhi High Court dated 12.08.2011 passed in First Appeal Order (OS) No. 359361/2010 wherein it has been held that decision of a probate court is judgmentinrem binding on the parties to probate proceedings but also on the whole world. Result: Application dismissed (Eviction order passed) Page 13 of 28
Neelam Dawar & Ors. v. Nanak Chand E-51/11 xi) Phiraya Lal v. Giya Ram & Anr. which is a judgment dated
10.02.1972 passed by the Hon'ble Delhi High Court in RFA No. 88 (d) of 1968. The said judgment is also on the aspect of Will.
xii) Mohd. Ahmed v. Surinder Singh, 1973 RLR (Note) 45 to the effect that a person who is granted Letters of Administration of property by a competent Court becomes fully entitled to manage the property and can give complete discharge to the daughters or tenant and his authority to do so cannot be challenged by such persons, whether in main proceeds or a collateral proceedings.
xiii) S.S. Gupta v. Himat Singh & Ors., 2010 (115) DRJ 612 to the effect that where there is no executor appointed by the testator, a Letter of Administration is granted by the Court declaring genuineness of the Will.
xiv) Crystal Developers v. Asha Lata Ghosh, AIR 2004 SC 4980 to the effect that Section 273 of the Succession Act, 1925 refers to conclusiveness of the probate as to the representative title. It establishes the factum of the Will and the legal character of the executor. Under Section 41 of the Evidence Act, the grant operates as Result: Application dismissed (Eviction order passed) Page 14 of 28 Neelam Dawar & Ors. v. Nanak Chand E-51/11 judgmentinrem and can be set aside on the ground of fraud and collusion provided it is proved by the party. It is also held that grant of probate establishes the genuineness of the Will and the person in whose favour the probate is granted is entitled to convey the title arising out of the Will approached by the Court.
xv) Satnam Anand & Anr. v. Gurbachan Singh, 2011 II AD (Delhi) 681 to the effect that lacuna and defect in grant of probate would never permit tenant to rake up issues to question title of landlord in eviction petition on the aspect of probated Will. 5.1 On the same issue, the petitioners also relied on AIR 1979 SC 1345; 88 (2000) DLT 173 (FB).
On the aspect of estopple under Section 116 of the Evidence Act, 1872, the petitioners relied on Ramesh Chand v. Uganti Devi, 157 (2009) DLT 450.
On the aspect that the landlord is not supposed to prove the absolute ownership as required under the Transfer of Property Act and he is only required to show that he is more than tenant, the petitioners have relied on Rajinder Kumar Sharma & Ors. v. Leelawati & Ors., Result: Application dismissed (Eviction order passed) Page 15 of 28 Neelam Dawar & Ors. v. Nanak Chand E-51/11 155 (2008) DLT 383.
6. From the pleadings and arguments, it is clear that mainly the respondent has sought the following to seek leave to contest:
a) That the petitioners are neither the owners nor landlords of the demised premises and therefore there is no relationship of landlord and tenant between them and the Will through which they derive title is result of fraud.
b) That there is no bona fide need of the petitioners.
c) That they have alternative accommodation with him.
6.1 I shall take up the same one by one in accordance with law cited and the arguments enumerated above.
FINDINGS
a) That the petitioners are neither the owners nor landlords of the demised premises and therefore there is no relationship of landlord and tenant between them and the Will through which they derive title is result of fraud.
On directions of this Court, the petitioners placed on record the Result: Application dismissed (Eviction order passed) Page 16 of 28 Neelam Dawar & Ors. v. Nanak Chand E-51/11 copy of the Will in question which is an 'Urdu document'. Its transliterated copy has been also produced The same is in accordance with the facts pleaded by the petitioners. Thus, the question of non production of Will no more remains as bone of contention before me.
The sworn deposition of the first petitioner in her counter affidavit filed with reply to the leave to contest application has remained unrebutted as no rejoinder was preferred to be filed by the respondent. Thus, there is no denial on record to the avernment that the petitioners do not own any other commercial property as alleged and other related avernments particularly in regard to the order of the probate Court and the filing of the injunction suit by the present petitioners against the respondent have remained unchallenged. Thus, what emerges from the sworn affidavit on record is that the orders of Probate Court were communicated to the respondent and the respondent was also well aware of the status of petitioners by virtue of the civil suit wherein the Court of Ms. Vijeta Singh, Ld. CJ, Saket, New Delhi restrained the respondent from creating any third party interest in the demised premises. Consequently, the argument that the petitioners are complete strangers to the present respondent does not hold any water.
Result: Application dismissed (Eviction order passed) Page 17 of 28
Neelam Dawar & Ors. v. Nanak Chand E-51/11 Next issue is in regard to the ground of fraud in the Will in question. To begin with, the affidavit in support of the leave to contest application is absolutely silent in regard to the arguments addressed on the fraud/execution of the Will. All that has been stated is that the owner of the demised premises was Sh. Amar Nath and his legal heirs. Sh. Amar Nath is one of the sons of testator Sh. Jivan Dass. This, of course, has been denied by the petitioners. Further, the only aspect that pertains to the Will in question is the aspect that the grant of Letters of Administration does not confer ownership title as they are issued only in respect of legality and validity of the Will. In support of it, Ld. Counsel for the respondent relied on Ghulam Qadir's case (supra). All that has been held in the said judgment is that the probate court does not decide question of title or of the existence of the property mentioned therein. In order to tow the aspect further, it has been further held in Crystal Developers's case (supra) that the grant of probate establishes the genuineness of the Will and that the same is a judgmentinrem under Section 41 of the Evidence Act. It can be set aside on the ground of fraud if proved by the party so alleging. The fact would remain that the setting aside of the orders granting probate Result: Application dismissed (Eviction order passed) Page 18 of 28 Neelam Dawar & Ors. v. Nanak Chand E-51/11 cannot be within the jurisdiction of the Court of Rent Controller. The petitioners have relied upon the copy of judgment including the judgment in Satnam Anand's case (supra). Further, the Double Bench judgment of the Hon'ble Supreme Court in Crystal Developers's case (supra) of the year 2004 is later than the judgment in Ghulam Qadir's case (supra).
This brings me to the aspect of the quantum of burden of proof required of a landlord to establish his ownership claim in a proceedings of present nature. On the issue, the petitioners have placed reliance on Rajender Kumar's case (supra). In the latest judgment passed by the Hon'ble High Court on 22.08.2013 in case titled 'Dr. Jain Clinic Pvt. Ltd. v. Sudesh Kumar Jassal in RC (R) No. 136/2012, the Hon'ble Delhi High Court has placed reliance on as many as 16 judgments on the point of imperfectness of the title as well as the law of estoppel as constituted under section 116 of the Indian Evidence Act. In this regard, the Hon'ble Delhi High Court has held that, 'It is settled law that in the context of Delhi Rent Control Act what appears to be the meaning of the term "owner" is that visavis the tenant the owner should be something more than the tenant. The Result: Application dismissed (Eviction order passed) Page 19 of 28 Neelam Dawar & Ors. v. Nanak Chand E-51/11 position in law is that the "ownership" of the landlord for the purpose of maintaining a petition under Section 14(1)(e) of the Act is not required to be an absolute ownership of the property, and that it is sufficient if the landlord is a person who is collecting the rent on his own behalf. The imperfectness of the title of the premises can neither stand in the way of an eviction petition under Section 14(1)(e) of the Act, nor can the tenant be allowed to raise the plea of imperfect title or title not vesting in the landlord and that too when the tenant has been paying the rent to the landlord.'.
In the case in hand, the sworn testimony of the first petitioner in her counter affidavit to the effect that the respondent refused acknowledgment of the copy of the judgment of the probate court and also his refusal to acknowledge/attorn the present petitioners as his landlord has remained uncontroverted. It is not the respondent's case that he approached the concerned Court for a declaration of his title to be a tenant under a particular landlord. It is further not the case of the respondent that he started depositing rent under Section 27 of the DRC Act on account of conflicting claims of landlordship by the LRs of Late Sh. Amar Nath and the present petitioners. The judgment referred Result: Application dismissed (Eviction order passed) Page 20 of 28 Neelam Dawar & Ors. v. Nanak Chand E-51/11 above is therefore applicable in the present case.
This brings me to the aspect of the present respondent's competence to challenge the legality of Will in question. The present petitioners are the beneficiaries under their predecessorsininterest who derived title to demised premises from the Will in question. The time gap between the death of the testator and as to when it was probated is of no consequence and cannot, ipsofacto, point out to any fraud committed in obtaining the Will. Even if the respondent is to be believed, then the fact remains that there were two sons of Sh. Jivan Dass. Sh. Amar Nath could not have been therefore the exclusive owner of the shop in case Sh. Jivan Dass died intestate. This is not the case here.
In M/s Indian Umbrella Manufacturing Co. & Ors. v.
Bhagabandei Agarwalla (Dead) by LRs Smt. Savitri Agarwalla & Ors., AIR 2004 1321, it has been held that consent of other coowners is assumed to be taken unless it is shown that the other coowners were not agreeable to eject the tenant and the suit was filed in spite of their disagreement.
In Kanta Goel v. B.P. Pathak & Ors., AIR 1977 SC 1599 all the Result: Application dismissed (Eviction order passed) Page 21 of 28 Neelam Dawar & Ors. v. Nanak Chand E-51/11 LRs otherwise were parties before the Hon'ble Delhi High Court. Therefore, the ratio of Kanta Goel's case (supra) which held that it was permissible for tenant to challenge the validity of Will will operate in favour of the petitioners herein. It is a matter of record that Kanta Goel's case (supra) was quoted with approval before the Hon'ble Delhi High Court in case titled Ishwar Dass Rajput v. Chaman Prakash Puri & Anr., 46 (1992) DLT 619. The judgment is on the aspect of Will. In the said case, it was observed that no Court has decided that the Rent Controller has no jurisdiction to decide validity of a Will. If such a question is raised before the Rent Controller, the Rent Controller is within its competence to decide this question when the eviction petition is for the bona fide need under Section 14(1)(e) of the DRC Act where one of the ingredients to be proved is that of ownership. It is in this case that the Hon'ble Delhi High Court pointed out that the order passed in Ishwar D. Rajput v. Chaman P. Puri, 1991 RLR 322 was an interlocutory order which was not maintained by the Hon'ble Supreme Court in SLP 10032/91 decided on 14.05.1991. Hence, the said law is not more a good law. The Hon'ble Court also differentiated the facts of M/s International Result: Application dismissed (Eviction order passed) Page 22 of 28 Neelam Dawar & Ors. v. Nanak Chand E-51/11 Building and Furnishing Co. Pvt. Ltd. & Anr. v. J.S. Rikhy & Ors., AIR 1985 Delhi 338. The Hon'ble Delhi High Court also referred to the judgment of the Hon'ble Apex Court in Kanta Goel v. B.P. Pathak, 1997 (2) SCC 814 in which it has been held that it was permissible for a tenant to challenge the validity of the Will. The Hon'ble Delhi High Court pointed out that in the said case i.e. Kanta Goel's case (supra), the father had made Will in favour of his sons. The challenge to that Will was not allowed in the eviction petition because the other cosharers were the parties to those proceedings and there was nothing on record to show that they challenged the Will. It was in those circumstances that the Hon'ble Supreme Court held that as all the heirs of the deceased father had been impleaded and they did not object to the said Will so the tenant cannot challenge the Will. It was not held by the Hon'ble Supreme Court that if the question about the factum and validity of the Will as raised before the Rent Controller, he cannot decide.
I may as well point out the facts of Ishwar D. Rajput v. Chaman P. Puri, 1991 RLR 322. It was observed that tenant cannot be permitted to question legality and validity of Will. It was held that, Result: Application dismissed (Eviction order passed) Page 23 of 28 Neelam Dawar & Ors. v. Nanak Chand E-51/11 "the legality and validity and due execution of the Will can only be subject matter of proceedings under the Indian Succession Act. It is in such a proceedings that the Will can be proved to be duly executed, and probate granted; or a Will is held to be not proved, and probate refused. The Rent Controller cannot exercise jurisdiction which is conferred by the Indian Succession Act. The jurisdiction of the Rent Controller is confined to the provisions of the DRC Act.".
I may also point out the facts of M/s International Building and Furnishing Co. Pvt. Ltd. & Anr. v. J.S. Rikhy & Ors., AIR 1985 Delhi 338. In the said case, the father of the respondent/landlord died leaving a Will for the house in dispute to be inherited by his widow and after her demise by the other two sons i.e. the respondent and his brother. The widow died. The respondent and his brother became joint owners. They arrived at a family settlement. The brother of respondent relinquished all his rights in the property in favour of the respondent. The respondent executed a registered Gift Deed gifting his plot to his brother. It was held that the Will executed by respondent's father cannot be disputed by the petitioner/tenant as the petitioner themselves have asked the respondent to furnish the necessary documents to them Result: Application dismissed (Eviction order passed) Page 24 of 28 Neelam Dawar & Ors. v. Nanak Chand E-51/11 in order to enable them to pay the rent in future to the respondent. Same were furnished and rent was being tendered to the respondent.
In the instant case, all the coowners deriving benefit from the Will are parties before me and therefore there is no issue that none of them were not agreeable to eject the tenant and the suit was filed in spite of their disagreement. It is the matter of fact that the copy of the Will has been duly placed on record.
The aforesaid law on the subject coupled with catena of judgments relied upon by the present petitioners in regard to the fact that the judgment of the probate court is a judgmentinrem establishes that the same has to be considered in respect of legality of the Will on the face of it. The argument of the respondent are therefore misconstrued. The present petitioners have shown that they are more than a tenant. In fact, they have placed the copy of the Will as well as the probate orders along with the letters of administration in regard to the demised premises. The sworn testimony of the petitioner No.1 to the effect that despite being approached, the present respondent refused to acknowledge the Will as the owner/landlord is sufficient to say that the act of the respondent of having continued to pay rent of the demised premises to the strangers will not benefit him. Needless to Result: Application dismissed (Eviction order passed) Page 25 of 28 Neelam Dawar & Ors. v. Nanak Chand E-51/11 say, previous litigation between Sh. Amar Nath or his legal heirs and the present respondent shall be inconsequential in regard to the title of the present petitioners qua the demised premises.
Furthermore, no reason has been explained on record as to why despite communication of the orders of the probate Court in the year 2006 to the respondent, the petitioners waited till the year 2011 to file the present eviction petition in case there was no bona fide need. It is thus held that the petitioners have shown to be the owner of the demised premises and that there is a relationship of landlord and tenant between the parties.
b) That there is no bona fide need of the petitioners.
It has been informed to this Court during the arguments that the first petitioner has since retired. It being so, she is now a pensioner and would be in graver need of the demised premises for purposes explained in the petition. The respondent has failed in substantiating that there is no bona fide need of the present petitioners and that their sole object is to have the premises evicted to sell it on exorbitant rate or to relet it at higher rent. Needless to say, such contingency stands taken care of by Section 19 of the Act itself. The respondent has failed Result: Application dismissed (Eviction order passed) Page 26 of 28 Neelam Dawar & Ors. v. Nanak Chand E-51/11 in even saying as to how the petitioners and their family members are very well off and not as described by them in their petition. I have already pointed out that the petitioners have not come to this Court immediately after obtaining letters of administration in the year 2006 despite the fact that they approached the respondent on 28.11.2006 to make him aware of the orders of the probate Court. Their need as disclosed in the petition can be by no stretch of imagination said to be not sincere, true and bona fide.
c) Whether they have alternative accommodation with him.
As pointed out by him earlier, no surrejoinder or counter affidavit has been filed by the present respondent to the reply/affidavit of the first petitioner The respondent has not produced any document to the effect that the present petitioners own other properties in the manner alleged. The plea that the petitioners have alternate accommodation has remained absolutely bald and it is a settled law that bald pleas bereft of any reasonable backing cannot be considered. In these circumstances, it cannot be said that the present petitioners own shop bearing No. K33, Punjabi Bazar, Kotla Mubarakpur or for that matter any other property in Karol Bagh, New Delhi or Ghaffar Result: Application dismissed (Eviction order passed) Page 27 of 28 Neelam Dawar & Ors. v. Nanak Chand E-51/11 Market as alleged. Even the municipal numbers of the two different shops at Karol Bagh have not been provided. In regard to other two properties, no better particulars are on record.
RESULT In view of the above, I find that the present affidavit in support of the leave to contest petition does not disclose any triable issue for granting leave to contest.
The application for leave to contest is dismissed and consequently an eviction order is hereby passed in respect of a shop bearing No. 325, Punjabi Bazar, Kotla Mubarakpur, New Delhi110003 as shown in red colour in the site plan. However, the eviction order passed under Section 14(1) (e) of the DRC Act shall not be executable for a period of six months from the date of this order.
7. File be consigned to record room.
Announced in the open Court (Manish Yaduvanshi) on 01.11.2013. SCJCumRC (South)/Saket Courts New Delhi Result: Application dismissed (Eviction order passed) Page 28 of 28