Delhi High Court
Jagdish Lal Aggarwal And Ors. vs Baldev Raj And Anr. on 20 August, 1997
Equivalent citations: 1997VAD(DELHI)492, 69(1997)DLT597, 1997RLR651
JUDGMENT Usha Mehra, J.
(1) Appellant felt aggrieved by the impugned order of the Rent Control Tribunal (in short the Tribunal) dated 11/10/1979. By the impugned order the Tribunal while reversing the order of the Additional Rent Controller (in short the ARC) held that there did not exist any relationship of landlord/tenant between the appellant and the respondents.
(2) The questions for consideration in this appeal are (1) Whether respondents are tenants in the property in question; (2) Whether the property in dispute was bequeathed to Shri Hukanri Chand Jain by virtue of a Will and/or being the adopted son of Smt. Dropti Devi.(3) Whether Dropti Devi had no right to execute a Will because it is alleged that the property was alienated by her to a Trust by registered Trust Deed.
(3) In order to determine the above questions, the brief facts of the case are that respondents Baldev Raj and Mohan Lal are residing in property bearing No. 771-772, Chabi Ganj, Kashmiri Gate, Delhi. The appellant herein Shri Jagdish Rai Aggarwal purchased this property from Hukam Chand Jain stated to be the owner and landlord of the property in question. The appellant filed eviction petition against respondents herein on 23/01/1963 on the ground that they have acquired respondents have acquired vacant possession of their own houses and on the ground that they damaged the property. The petition was filed under Section14(1 )(h) & (j) of the Delhi Rent Control Act (in short the Act), It was further the case of the appellant that respondents were residing in the tenanted premises as subtenant of Mr. S.N. Bhatnagar who was the tenant in the suit property. It was Mr.Bhatnagar who inducted Mr. Baldev Raj as sub-tenant. Respondent No. 2 is the father of respondent No. 1. After 20/02/1958 they became direct tenants of the appellant i.e. his predecessor in interest. It was also pleaded that the respondents recognised, in earlier suit for ejectment filed by Hukam Chand Jain,that he was owner and landlord of the premises in question. After purchase of this property by the appellants, they stepped into the shoes of Hukam Chand and thus became owner/landlord of the premises. The petition for eviction filed by the appellant against the present respondents was dismissed by the learned are so far as relief of eviction under Section 14(l)(h) and (j) are concerned. He, however,held that there existed relationship of landlord and tenant between the parties. The respondents felt aggrieved with this finding of learned Arc, therefore, preferred an appeal. In the appeal as mentioned above, the Tribunal reversed these findings.
(4) In this appeal the point revolves around only on the issue of relationship of the parties. So far as respondents are concerned there is concurrent finding of both the Courts i.e. of learned are as well as the Tribunal that respondents are tenants in the premises in question. It is only the status of the appellant which is underquestion. At the outset it must be said that there is overwhelming evidence on record to show that Shri Hukam Chand Jain was the adopted son of late Smt. Dropti Devi. But the Tribunal by a strange reasoning drew the presumption that adoption of Hukam Chand Jain had not been proved. In fact a tenant has no right to challenge the adoption. But be that as it may, on merits also it can be said that Hukam Chand was adopted son of Smt. Dropti Devi.
(5) Shri Hukam Chand Jain was Dropti Devi's sister's son, the property belonged to Shri Niranjan Dass husband of Dropti Devi. After his death Dropti Devi became owner of this premises. She was issueless. Under the Jain's law a widow could adopt a child. She accordingly adopted Hukam Chand Jain as her son. HukamChand Jain appearing as Aw 1 proved his adoption by staling that after having been adopted by Dropti Devi he changed his parentage i.e. his father's name from Chhuttan Lal to Niranjan Dass. This he proved by producing the voters list Ex. AW-4/12 to Aw 4/14 wherein the name of his father had been shown as Niranjan Dass instead of Chhuttan Lal. He also proved the cancellation of Power of Attorney wherein Dropti Devi declared him to be her son. Smt. Dropti Devi had executed a General Power of Attorney in favour of Shri Chhuttan Lal, real father of HukamChand Jain. After Hukam Chand Jain's adoption in 1943, Smt. Dropti Devi cancelled the said General Power of Attorney vide registered cancellation deed dated 18/05/1945, proved on record as Ex. A-7. The recital of Ex. A-7 shows that Smt. Dropti Devi admitted Hukam Chand Jain to be her son. Smt. Dropti Devi died in 1953. The adoption took place in 1943 and deed of cancellation was executed in May, 1945. In 1945 nobody could have imagined that there would be a dispute regarding the adoption of Hukam Chand Jain. Therefore, statement made byDropti Devi, during her life-time in 1945 through Ex. A-7 thereby admitting that she adopted Hukam Chand Jain and hence cancelled the General Power of Attorney in the name of Shri Chhuttan Lal, real father of Shri Hukam Chand Jain, cannot be brushed aside as irrelevant document or a statement in favour of the deceased.Hence the reasoning given by the Tribunal in ignoring Ex. A-7 appears to be devoid of merits. The reasoning of the Tribunal is not only against facts but also against thelaw. How the statement made by deceased Smt. Dropti Devi in 1945 there by declaring Hukam Chand Jain to be her son can be called a statement in her ownfavour. This declaration vide Ex.A-7was made by her to be known by all concerned.She made this statement not in her favour but in favour of Hukam Chand Jain so that people should know he was her son. Tribunal fell in error in ignoring declaration made by the deceased in 1945. Ex. A-7 is a registered document. The authenticity of the same is not in doubt and deserved serious consideration andweightage. Fact of adoption stood fortified by her cancellation of the General Power of Attorney in favour of Shri Chhuttan Lal. Moreover, the evidence produced by Hukam Chand Jain fully establishes his case that Smt. Dropti Devi adopted him.The evidence could not have been discarded by the Tribunal on the mere assumption that those were interested witnesses. In fact to prove or establish a religious ceremony like adoption or marriage, it is only the relations who can prove the same as they come to attend the functions. Therefore, when relations were produced who deposed that Hukam Chand Jain was adopted by Smt. Dropti Devi,the Tribunal on a strange surmises concluded that their evidence could not be relied because they were interested witnesses. The Tribunal also disbelieved the witnesses because of minor discrepancies in their statements. One of the witnesses said 500people attended the ceremony of adoption, whereas other witnesses said there were 50 people only. This discrepancy to my mind, occurred because witnesses were examined after almost 30 years. The Tribunal ignored the fact that adoption took place in 1943, whereas the statements of the witnesses were recorded in 1970i.e. almost after 30 years. In the passage of time such discrepancies naturally creepsin. If the witnesses had been tutored or made up, their statements would have been verbatim the same. But in the case of natural witnesses such minor discrepancies do occur. From the cross examination of these witnesses, respondents could not elicit any material contradiction regarding the factum of adoption. Similarly, the Tribunal by not believing the adoption merely on the ground that priest was notproduced, to my mind, misdirected himself. As already pointed out above the adoption took place in 1943, evidence was recorded in 1970. Whether that priest was available or not there is nothing on record nor any question was asked abo.utthe same. Therefore, it was wrong on the part of the Tribunal to presume that in the absence of producing the priest the adoption could not be proved or the testimony of other witnesses who proved the adoption ceremony could not be believed. It was not a criminal trial that importance could not be attached to the interestedwitnesses. Ceremony of adoption or such like ceremonies are attended by the relations and it is they who are the best persons to speak. To my mind, the witnesses in no uncertain words proved the adoption. The observation of the Tribunal that the witnesses did not say specifically that Hukam Chand Jain was given in "Goad" is devoid of merits because each of the witnesses produced by the appellant in noun certain words stated that Hukam Chand Jain was taken in adoption by Smt.Dropti Devi. The ceremony in Jains could be as simple as putting a Turban.Adoption ceremony in Jains is not the same as in Hindus. Hence the version of the witnesses proving adoption and adoption ceremony clearly show that HukamChand Jain was adopted by Smt. Dropti Devi. Being a Jain widow under Jain's law she could legally adopt a child. Similarly, the rejection of document Ex. A 7 by the Tribunal on the ground that the same was executed much after the adoption,it appears that Tribunal overlooked the fact that Hukam Chand Jain was adopted in 1943 and the cancellation of Power of Attorney in favour of his real father was done in 1945. Therefore, it cannot be said that the document Ex. A7 was executed after much time, nor the registered document could be discarded on flimsy ground.Thus on the basis of the testimony of various witnesses coupled with Ex. A 7followed by entries in the electoral roll the only irresistible conclusion could be drawn that Smt. Dropti Devi adopted Hukam Chand Jain. She treated him to be her son. Supreme Court in the case of M. Govindaraju v. K. Munshisami Goudner (D) & Ors., reported in 1996 (VI) Apex Decision 548 held that if a person is considered as a son then there is a presumption that he is son of that particularperson. From the reading of Ex. A 7 it is clear that Dropti Devi considered Hukam , to be her son. It has come on record that she performed the marriage of Hukam Chand treating him to he her son. Taking these factors into consideration and in view of the judgment of Supreme Court quoted above, the reasoning of the Tribunal on this issue cannot be sustained. On the other hand, reasoning of the learned are cannot be faulted.
(6) Now turning to the question of execution of Will by Smt. Dropti Devi infavour of Hukam Chand Jain. At the outset it must be stated that mere thumb marking of a document instead of signing the same would not make that document fake or forged. Moreover the reasoning of the Tribunal cannot be appreciated that if Dropti Devi had adopted Hukam Chand Jain why she executed the Will in hisfavour. It must be understood that a parent is not debarred in executing "Will" infavour of his or her own children. There is no such bar. On the contrary in order to avoid future dispute parents do bequeath their properties in favour of their children even if there is only one child. This the parents do in order to avoid any possible dispute in future. Witnesses to the "Will" proved the "Will" having been executed by late Smt. Dropti Devi. The reasoning of the Tribunal on this count also cannot be sustained. It merits rejection.
(7) Having said that Hukam Chand was adopted son of Smt'. Dropti Devi and she executed a "Will" in his favour thereby bequeathing this property in hisfavour, we are left with one question to be answered. Whether by virtue of the Trust Deed purported to have been executed by Smt. Dropti Devi on 17/05/1918 and 19/11/1918 Hukam Chand had no right, title or interest in the property? Whether the Trust Deed was acted upon ? Was Smt. Dropti Devi debarred from executing a "Will"? Mr. B.S. Sehrawat appearing for the respondents contended that Smt. Dropti Devi alienated this property by virtue of registered Trust Deed infavour of Aggarwal Dharamshala. By virtue of this Deed the name of the Trust as owner of the property was mutated in the records of the Municipal Corporation.Even in the documents executed by Smt. Dropti Devi's brother it was mentioned that Aggarwal Trust was the owner of this property. He described his property in which owner of this property was shown as Trust. According to Mr. Sehrawat,the Trust Deed was duly acted upon hence Smt. Dropti Devi could not execute a "Will" subsequently bequeathing the same property to any one. She had already lost her title over the property. In fact Mr. Sehrawat has put forward the same reasoning to refute the claim of the appellant which have been given by the Tribunal in the impunged order. Before we dwell on this aspect of the matter, we must understand the rights of a Hindu widow in respect of the estate of her deceasedhusband. Supreme Court in the case of Smt. Kamla Devi v. Bachulal Gupta, , laid down the principle regarding alienation of the estate of widow'sdeceased husband for religious purposes. One of the principles was "(1) A Hindu widow in possession of the estate of her deceased husband can make an alienation for religious acts which are not essential or obligatory but are still pious observances which conduce to the bliss of the deceased husband's soul." The question for consideration is, did Smt. Dropti Devi alienated the estate of her husband for religious acts where were pious observances which conduced to the bliss of her deceased husband's soul. She was entitled, as per the principles laid down in Kamla Devi's case, to even sell the property in order to cover the expenses for that pious act which conduce to the bliss of her deceased husband's soul, meaning thereby that the alienation of the deceased husband's property was supposed to conduce to the spiritual welfare of her husband. The spiritual benefit of herself could not be equated nor would mean acquiring spiritual benefit of her husband.Therefore, apparently unless it was established that the alienation in question was for the pious observances which conduce to the bliss of her husband's soul or for the spiritual benefit of her husband, she could not alienate the property for her ownspiritual benefits. The recital of the Trust Deed Ex. Rw 1/1 to Rw 1/2 shows that alienation was not meant for the spiritual benefit of her husband. It was in her own name and for her own benefit. Dharamshala was to run in her own name and not in the name of her husband. This as rightly contended by Mr. J.P.Gupta could not have been done. I must mention that I am not going to go into the merits and demerits of the alienation in these proceedings. Suffice it to say that respondent being tenants had no right to challenge the Will or the adoption by Smt. Dropti Devi.The Trust deed had not been proved. The original was withheld and, to my mind,the Tribunal fell in error in drawing a presumption that the original must be in possession of the appellant. No presumption of genuineness of certified copies could be drawn without production of original. From the certified copy the presumption of document being genuine could not be drawn even if the document was 30 years old. Judgments relied by the Tribunal were of no help to respondent.In none of these cases Court was dealing with presumption of a certified copy without original being summoned or produced.
(8) Prachin Aggarwal Digambar Jain Dharamshala to whom it is alleged that the property was alienated filed a suit for declaration bearing Suit No. 21/64.Hukam Chand Jain, S.N.Bhatnagar and respondents were parties in that suit. The said suit was dismissed vide Ex. AW-4/5 on the ground that mere suit for declaration was not maintainable and that relief for possession had to be incorporated. Trustees were ordered to amend the plaint so as to include the relief ofpossession. But the Trust never filed the amended plaint. The suit was accordingly dismissed for non-prosecution. The suit was never got revived till date. Trust'sright stood extinguished under Order 2, Rule 2, CPC. Therefore, the reasoning of the Tribunal that the property stood alienated cannot be but the imagination of the Tribunal. In view of Ex. Aw 4/5 Trustees lost their right to prove their title in theproperty. The mere fact that for the period from 1947 to 1953 in the Municipal record the name of Dharamshala was entered does not prove that Trust Deed was acted upon. If the Tribunal took the recording of Trust's name in Municipal Corporation record as a weighty factor then why he ignored on parity of reasoning that since 1953 name of Hukam Chand appears in the Municipal record as owner of the property in question. The property stood mutated in his name. Therefore,on parity of reasoning and on the basis of Municipal record it could not be said that the Trust Deed was acted upon at any stage either during the life-time of Dropti Devi or thereafter. The fact remains that Dropti Devi had been collecting the rent during her life-time and, thereafter, Hukam Chand Jain collected-the rent from ShriS.N. Bhatnagar who was the main tenant in the property in question. In the suit filed by the Trustees, they admitted that Shri S.N. Bhatnagar was the tenant in theproperty. The said Shri S.N. Bhatnagar in a suit filed by Hukam Chand Jain admitted Mr. Hukam Chand Jain to be the owner/landlord of the property and,therefore, agreed to pay the rent to him. He also admitted that respondents were his sub-tenants. In this view of the matter it was not correct on the part of the Tribunal to hold that the Trust Deed was acted upon or that Smt. Dropti Devi could not execute a "Will".
(9) Contention of Mr. Sehrawat that there was a judgment rendered by a Civil Court and confirmed by an Additional District Judge, Delhi and further confirmed in appeal by the High Court of Delhi declaring that Shri Hukam Chand Jain was neither the adopted son of Smt. Dropti Devi nor the "Will" allegedly executed by her was genuine. Hence that judgment is a complete answer to this issue as that clinched the issue. To my mid, this argument has no force and was rightly rejected by the learned are as well as by the Tribunal. Both the Courts stated that the judgment delivered by Mr. V.S.Aggarwal, Sub Judge on 24/11/1969 in the case of Kundan lal v. Shiv Darshan, and confirmed by the Additional District Judge would not be binding on the appellant as he was not a party in the said suit.Respondents having admitted that they are tenants in the property in question, and Hukam Chand Jain being son of the owner Smt. Dropti Devi by virtue of adoption as well as "Will" executed by Smt. Dropti Devi became owner/landlord of thepremises. From him the appellant acquired the title. The learned are rightly concluded that there exists relationship of landlord and tenant between the parties.The observations of the Tribunal being not based on evidence available on record hence cannot be sustained. The impugned order is accordingly set aside.