Delhi High Court
Ravindra Dayal vs Shashi Mehra on 7 August, 2015
Author: Mukta Gupta
Bench: Mukta Gupta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RC.REV. 544/2011 and CM No. 23373/2011 (Stay)
% Reserved on: 1st May, 2015
Decided on: 7th August, 2015
RAVINDRA DAYAL ..... Petitioner
Through: Mr. Nitin Dayal, Advocate.
versus
SHASHI MEHRA ..... Respondent
Through: Mr. Satish Sahai, Advocate. CORAM: HON'BLE MS. JUSTICE MUKTA GUPTA
1. Aggrieved by the order dated 12th September, 2011 whereby the eviction petition filed by the Respondent Shashi Mehra under Section 14 (1)
(e) of the Delhi Rent Control Act, 1958 (in short „the DRC Act‟) read with Section 25B of the DRC Act was allowed after the evidence was led by the parties, the Petitioner Ravindra Dayal prefers the present petition.
2. During the pendency of the proceedings the possession of the tenanted premises has already been taken over by the Respondent Shashi Mehra.
3. In the eviction petition Shashi Mehra stated that she was the owner and landlord of residential flat/premises bearing Municipal No.7A-1 (7A/1) originally part of property No. 7, Bela Road, Civil Lines, Delhi-110054 (in short the „tenanted premises‟). The tenanted premises consists of two rooms, store, kitchen, verandah, toilet, a lawn on the ground floor and one room, covered verandah, toilet, stores and terrace on the first floor. It was stated that the tenanted premises being part of property No.7, Bela Road, Civil Lines was owned by Shri Ishwar Dayal, father of Shashi Mehra by virtue of RC.REV. 544/2011 Page 1 of 22 a partition and an award which was made rule of the Court vide judgment and decree dated 27th October, 1972 passed by this Court in Suit No. 302/1972 titled as „Satishwar Dayal vs. Ishwar Dayal and others‟. Shri Ishwar Dayal executed a Will dated 18th September, 1974 duly registered with the Sub-Registrar whereby he created a life estate in respect of the property falling to his share, that is, four residential flats including the tenanted premises in favour of his wife Smt. Bhawani Devi @ Kashmiran Rani and after her death the said four residential flats devolved on their four daughters of which the tenanted premises devolved on Shashi Mehra. Ishwar Dayal died in the year 1983 and Smt. Bhawani Devi in the year 1986. Thus on the death of her parents Shashi Mehra became the absolute owner of the tenanted premises. The tenanted premises had been mutated in the name of Shashi Mehra as owner/landlord in the records of the Municipal Corporation of Delhi and photocopy of the Mutation Letter dated 3 rd September, 1987, house tax bills and receipts were placed on record. It was stated that Ravindra Dayal, the Petitioner herein became the tenant under Shashi Mehra as he attorned in favour of Shashi Mehra as owner/landlord of the premises and started paying rent to her since 1993. Ravindra Dayal also signed counter foil of the receipts issued to him by Shashi Mehra, photocopies of counterfoils were also placed on record. The tenanted premises was let out only for residential purpose and were being used for residential purpose by Ravindra Dayal wherein he resided along with his family members which included his wife Mohini Dayal, his two sons namely Sachin Dayal and Nitin Dayal, both of whom were major at that time. Ravindra Dayal is an advocate and a member of the Delhi High Court Bar Association and in the directory of the Bar Association his residential RC.REV. 544/2011 Page 2 of 22 address is mentioned as 7A/1, Bela Road, Civil Lines, Delhi, that is, the tenanted premises. Shashi Mehra had been residing along with her husband Bipin Behari Mehra in the adjoining residential flat being 7A-II (7A/2), Bela Road, Civil Lines, Delhi since 1998. The flat where Shashi Mehra was residing is identical to the tenanted premises and consists of the same accommodation. In fact property No.7, Bela Road comprises of the front portion which was sold by Ishwar Dayal to his three sons and four identical flats on the rear portion which were bestowed on the four daughters of Ishwar Dayal. After some time of Shashi Mehra and her husband shifted to the flat No.7A/2 Bela Road, her younger son Atul Mehra and his wife, who were married in the year 1997 also came to reside with them. Thereafter, Atul Mehra son of Shashi Mehra was blessed with two children namely Tanmay Mehra and Aprita Mehra who were also living with them. The tenanted premises and the adjoining flats comprise of three rooms each. Shashi Mehra, her husband were using one room on the ground floor as their bedroom whereas Atul Mehra and his wife were using other room on the first floor as their bedroom. Thus the only room left on the ground floor was being used by the entire family for all other purposes, that is, for watching TV, eating meals, study, doing pooja and meditation, staying of guest etc. as there was no independent drawing room, dining room, study room guest room, sitting room, pooja room etc. Even the grand children of Shashi Mehra do not have any independent bedroom. Shashi Mehra is a religious minded person involved in doing Pooja Sewa Meditation and religious activities and use to study religious and spiritual literature books. The husband of Shashi Mehra, Bipin Behari Mehra was a Professor at Dr. Zakir Hussain College where he taught Hindi language and literature and thus was also involved in RC.REV. 544/2011 Page 3 of 22 studies and interaction with students and colleagues in the said connection. Shashi Mehra has a married daughter namely Ruchi Kaushik who is a lecturer in Sri Ram College of Commerce who frequently visits Shashi Mehra and stays with her. Thus Shashi Mehra and her husband find great difficulty in accommodatingtheir daughter.
4. Prior to shifting to7A/2, Bela Road, Civil Lines Shashi Mehra was residing at 69 UB, Jawahar Nagar, Delhi along with her husband, her family as well as father-in-law and mother-in-law. Property No. 69 UB, Jawahar Nagar, Delhi was self acquired property of her father-in-law Shri Sohan Lal Mehra. A copy of the Sale Deed and receipts etc. thereof were placed on record. Shashi Mehra and her husband were given accommodation on the third floor of the said property. With the passage of time differences cropped up between Shashi Mehra and her in-laws. Further as Shashi Mehra and her husband were growing old, they were finding it difficult to climb the stairs. Thus on the advice of her elder son Vipul Mehra, Shashi Mehra and her husband and subsequently, Atul Mehra and his wife shifted to Flat No. 7A/2, Bela Road, Civil Lines, Delhi. Later flat No.7A/2, Bela Road was sold by her sister in favour of her son Vipul Mehra and the sale deed of the said flat was placed on record. Brother of Shashi Mehra, that is, Visheshwar Dayal and Satishwar Dayal were staying in the front portion of 7, Bela Road and Maheshwar Dayal and other cousins were staying at 9, Bela Road. Since Vipul Mehra, son of Shashi Mehra had thereafter asked her to vacate the flat as he required the same for his own purpose and Shashi Mehra does not own any other premises except the tenanted premises in Delhi or in India, she requires the same bona fidely.
RC.REV. 544/2011 Page 4 of 225. Since leave to defend was granted, written statement was filed by Ravindra Dayal, the Petitioner herein which was subsequently amended. In the written statement it was stated that the documents filed by Shashi Mehra itself show that in 1955-66 Ishwar Dayal had no right or title of any kind in the tenanted premises when it was let out to Keshav Dayal, Senior Advocate, the elder brother of Ravindra Dayal around 1956. Bishamber Dayal, father of Ravindra Dayal also shifted in the tenanted premises in 1960 which fact was admitted by Shashi Mehra. Misrepresentation was made to Keshav Dayal and Bishambar Dayal and a fraud was played by Ishwar Dayal by claiming himself to be the owner of the tenanted premises. Thus the claim of Shashi Mehra that she is the owner of the tenanted premises, having inherited the same from her father Ishwar Dayal is a fraud, misrepresentation, cheating and abuse of process of the Court.
6. It was further stated that the Award dated 27th February, 1972 relied upon by Shashi Mehra was unstamped, unsigned, unexecuted and unregistered document thus non-est in law and does not confer any right title or ownership in the tenanted premises. The Will in favour of Shashi Mehra was unsigned, unprobated and a nullity in law. Since there was no agreement between the parties with regard to arbitration, the settlement of the property could not have been arrived at by way of arbitration and thus the award was a nullity. In the Will the tenanted premises is described on the rear side of 7, Bela Road, Delhi whereas in the Memorandum of Partition it has been described on the right side of 7, Bela Road, Civil Lines, Delhi. Even the Memorandum of Partition is unsigned, unexecuted and non-est document. Since there is no confirmation of right and title of Ishwar Dayal, Shashi Mehra has no right and title in the tenanted property. Thus, even if, RC.REV. 544/2011 Page 5 of 22 this Court had made the Award Rule of the Court, the same being a nullity cannot be enforced qua the Petitioner, that is, Ravindra Dayal. When fraud is played, the Courts are not powerless to recall their order. No legal notice was sent to Ravindra Dayal before filing the eviction petition. The documents produced by Shashi Mehra in the form of records of Municipal Corporation of Delhi, that is, house tax bills, house tax receipts, mutation letter are not admissible under the Evidence Act. There was no privity of contract between Shashi Mehra and Ravindra Dayal as landlord-tenant and Ravindra Dayal never attorned Shashi Mehra as landlord at any point of time. It is stated that Atul Mehra was managing Shemrock/Shevron School from 7A/3 and 7A/4, Bela Road. Thus Atul Mehra, his wife and their children were not dependent on Shashi Mehra in any manner. The Petitioner Ravindra Dayal was residing at 7/1, Bela Road and not in 7A/1, Bela Road. It is further stated that 69 UB, Jawahar Nagar is a 28 room palatial building and the elder son of Shashi Mehra, that is, Vipul Mehra was running „Genious Academy of Study‟ from the ground floor of the said premises and residing on the upper floor. There was no difference between Shashi Mehra and her son as alleged. Since Vipul Mehra has sufficient accommodation, he does not need the premises 7A/2, Bela Road as stated in the eviction petition. The husband of Shashi Mehra, Bipin Behari Mehra was a joint owner of 69 UB, Jawahar Nagar, along with his father.
7. In the replication Shashi Mehra reiterated the averments in the eviction petition and denied the averments in the written statement. The property 7, Bela Road, Civil Lines, was partitioned amongst Ishwar Dayal and his three sons by way of oral partition on 7th August, 1971 which was later reduced in writing by way of Memorandum of Partition on 11th RC.REV. 544/2011 Page 6 of 22 October, 1971. Ravindra Dayal has not denied that prior to him his brother Keshav Dayal, Senior Advocate was inducted as tenant by Ishwar Dayal and thereafter his father Bishamber Dayal, who was also an advocate thus no fraud could have been committed upon them. No particular instances of fraud or cheating have been given and thus the pleas taken are vague.
8. After the parties led their evidence, vide the impugned order the learned ARC allowed the eviction petition. As regards the landlord-tenant relationship the learned ARC held that the testimony of Shashi Mehra remained unrebutted. Not even a suggestion has been put to Shashi Mehra in respect of the payment of rent vide the counterfoils and rent receipts Ex.PW- 1/19 to PW-1/26 or in respect of signatures of Ravindra Dayal. Ravindra Dayal admitted that after the death of Kashmiran Devi, his father started paying rent to Shashi Mehra against rent receipts and after the death of his father and mother, he started paying rent to Shashi Mehra against the receipts. He also admitted that when he paid the rent he signed the counterfoils and thus in view of this admission the Court held that the landlord-tenant relationship stood established.
9. As regards the ownership of Shashi Mehra in respect of the tenanted premises is concerned, it was held that by virtue of partition and Award which was made Rule of the Court vide judgment and decree dated 27 th October, 1972 passed by this Court in Suit No.302/1972 titled as 'Satishwar Dayal vs. Ishwar Dayal and others' and thereafter the Will dated 18th September, 1974 which was duly executed by Ishwar Dayal and signed by attesting witness, Shashi Mehra became absolute owner/landlord of the tenanted premises. The tenanted premises was mutated in her favour and in this regard mutation letter Ex.PW-1/5 and copies of the house tax receipts RC.REV. 544/2011 Page 7 of 22 Ex. PW-1/6 to PW-1/9 were produced. The attesting witness of the Will Ex.PW-1/4 appeared in the witness box and identified his signatures on the Will. The plea of Ravindra Dayal in deposition was that though father of Shashi Mehra stated that he was the owner of the tenanted premises but he never showed them the documents that he was actually the owner.
10. With regard to the plea of Award being unstamped or unsigned by the Arbitrator, memorandum of Partition not being signed by the parties and the Will not being probated, the learned ARC in view of the decision in Smt. Shanti Sharma and others vs. Smt. Ved Prabha and others, AIR 1987 SC 2028 came to the conclusion that in the proceedings under the Rent Act the landlord may not prove absolute ownership and the meaning of the term „owner‟ vis-à-vis a tenant is that the owner should be something more than a tenant.
11. Relying upon Bharat Bhushan Vij vs. Arti Techchandani, 153 (2008) DLT 247 it was held that when the tenant states that the landlord is not the owner of the premises, he is obliged to disclose who is the owner of the premises and prove the same. In view of the certified copy of the judgment/order dated 27th October, 1972 in Suit No.302/72 proved as Ex.PW-1/3 and copy of the Award Ex.PW-1/2, applications for arbitration, the attesting witness of the Will deposing as PW-2 and testifying with regard to the authenticity of the Will and the attestation thereof it was clear that Ishwar Dayal was the owner of the tenanted premises which he bestowed on Shashi Mehra by virtue of the Will. Further it was not necessary in Delhi to get the Will probated to assert the right on the basis of the Will.
12. As regards the bona fide requirement and there being no other suitable accommodation it was noted that as per the deposition of Shashi Mehra, RC.REV. 544/2011 Page 8 of 22 there were four residential flats in the rear portion of 7, Bela Road, Civil Lines, which were identical in nature. The fact that in the adjoining residential Flat, that is, 7A/2, Bela Road, Shashi Mehra, her husband, her son Atul Mehra, his wife and two children were residing was not disputed. The property consists of three rooms which fact was also not disputed and thus there was clear paucity of space. Flat No.7A/2 is 1½ storey building on an area less than 100 sq. mtr. Ravindra Dayal in cross-examination admitted that Shashi Mehra was residing at 7A/2, Bela Road and that Flat No.7A/1 to 7A/4 were adjacent to each other and initially they were built similarly. Thus the plea in the amended written statement that there were more than ten rooms in possession of Shashi Mehra does not stand to reason. The fact that the son was running the office or a play school would not belie the requirement of Shashi Mehra. When Shashi Mehra entered the witness box no suggestion was given that she was having sufficient accommodation, that is, drawing room, dining room, store room, pooja room etc. The contention of the Petitioner that Atul Mehra was not dependent on her was turned down and it was held that the landlord is not supposed to break his family only for the convenience of the tenant.
13. With regard to the other reasonably suitable residential accommodation it was held that there was no material to show that Shashi Mehra was living in 69UB, Jawahar Nagar. Shashi Mehra had also placed on record the receipts of house tax. Thus the eviction petition was allowed and the eviction order was passed.
14. Reiterating the arguments made before the leaned ARC, learned counsel for the petitioner states that since there is a dispute of title of Shashi Mehra the eviction petition be dismissed. Section 37 (2) of the DRC Act RC.REV. 544/2011 Page 9 of 22 provides procedure to be adopted in trying the cases as per the rules of Small Causes Court. Shashi Mehra has filed all documents relating to property No.7A, Bela Road and thus she is in possession of the entire property, therefore, she cannot claim that she has paucity of accommodation. The application of the Petitioner Ravindra Dayal under Section 3 (c) of the DRC Act was not considered. The rate of rent was Rs.2900/- and after the electricity, water and maintenance charges the same increased to Rs.3,500/- per month and thus the eviction petition under DRC Act was not maintainable. The house tax receipts were placed till the year 2002 and when the eviction petition was filed in the year 2004 Shashi Mehra was not the landlord. Despite issues were required to be framed no issues were framed by the learned Trial Court and the impugned judgment was passed. In the eviction petition Shashi Mehra has not used the words that there was no suitable residential accommodation available and thus the eviction petition under Section 14 (1) (e) DRC Act was not maintainable.
15. Learned counsel for the petitioner further contends that Shashi Mehra claims to be the owner by virtue of the Will based on an Award in the name of her father however, the ownership is not proved unless the entire chain is proved. Though it is stated that Ishwar Dayal became the owner of the property in the year 1972 however it is not clear as to how rent was claimed from 1956 therefore, a fraud was played on the Petitioner and his family members. No finding with regard to fraud alleged has been returned by the learned ARC. Since Shashi Mehra did not induct Ravindra Dayal in the property as the tenant, raising of plea of estoppel under Section 116 Evidence Act does not arise. The contention that no probate of the Will is required in Delhi is incorrect. The judgments of the learned ARC on the co-
RC.REV. 544/2011 Page 10 of 22ownership issue have no relevance to the facts of the present case. The learned ARC did not consider the chain of inheritance at the time of passing of the impugned judgment. Shashi Mehra is merely a licensee of Vipul Mehra and thus she cannot make changes in the property adjoining the tenanted premises. The fact that the property was a HUF property has also not been dealt by the trial Court.
16. Learned counsel for the Respondent on the other hand contends that there is no ambiguity much less any perversity in the impugned judgment. To decide a petition under Section 14(1) (e) of the DRC Act the ingredients required to be looked into are landlord tenant relation and bona fide requirement of the landlord and there being no other alternate suitable accommodation. All these aspects have been duly considered by the learned ARC. The contention that in view of Section 37 (2) of the DRC Act the learned ARC was required to follow the procedure of Court of Small Causes including recording of evidence while holding the inquiry and the same having not being followed the eviction order is liable to be set aside was dealt with by the learned ARC as the Petitioner filed an application in this regard which was dismissed vide order dated 12th September, 2011. In view of the documentary evidence with regard to the rent @1,800/- per month excluding electricity and water charges, the plea under Section 3 (c) DRC Act was unsustainable and thus consecutive applications were dismissed by the learned ARC. The eviction petition is not a title suit where the landlord is required to prove absolute ownership. The partition between father of Shashi Mehra i.e. Ishwar Dayal, son of Raghuwar Dayal, who was owner of the property, with his three sons by way of Memorandum of Partition dated 11th October, 1971 has been exhibited as Ex.PW-1/1. Ishwar Dayal father of RC.REV. 544/2011 Page 11 of 22 Shashi Mehra inducted the father of Ravindra Dayal as tenant. The rent receipts and the counterfoils duly signed in the name of Ishwar Dayal have been duly admitted by Ravindra Dayal. The attesting witness to the Will appeared in the witness box and deposed in regard to the tenanted premises being bestowed in favour of Shashi Mehra. In cross-examination Ravindra Dayal admitted that rent was paid to Shashi Mehra and thus having attorned Shashi Mehra as landlord no further inquiry was required into the matter. The testimony of Shashi Mehra has gone unrebutted and in cross- examination Ravindra Dayal has made admissions in respect of the landlord- tenant relationship. Ravindra Dayal filed an application under Order XIV Rule 2 CPC before the learned ARC for framing of issues which was dismissed vide Order dated 8th November, 2010 with cost of Rs.10,000/- which order has attained finality. Again an application was filed before the learned ARC for framing of issues which was dismissed vide order dated 27th April, 2011. Ravindra Dayal does not dispute that all the four flats on the rear side of the property 7, Bela Road were identical and duplex with two rooms on the ground floor and one room on the first floor. Since the certified copy of the Award of 1972 is not a Xerox copy it does not show the stamp or signatures on the document but none the less it is certified copy. RW-1 himself filed a photocopy of the award which was on stamp paper and duly signed by all the parties and the Arbitrator. The last page of the Memorandum of Partition has not been filed which contained the clause relating to the arbitration between the parties wherein in Clause-12 it was agreed that in case of dispute the reference would be made to the arbitrator Shri Jagdishwar Dayal. Shashi Mehra also produced the Sale Deed in respect of the adjoining flats. Usha Rani the sister of Shashi Mehra executed RC.REV. 544/2011 Page 12 of 22 a Sale Deed in favour of Vipul Mehra in relation to property No.7A/2 wherein Shashi Mehra along with her family was residing. Further vide Ex.PW-1/48 Sohan Lal Mehra executed a Sale Deed in favour of his grandson Vipul Mehra in respect of the property 69UB, Jawahar Nagar and thus Shashi Mehra had no right or title in the said property. Shashi Mehra and her husband are senior citizens and wanting to settle in their own property, and thus her requirement is bona fide and no mala fide has been pointed out.
17. I have heard learned counsel for the Petitioner and the Respondent at length.
18. The first and foremost grievance of the Petitioner is with regard to the maintainability of the eviction petition under Section 3 (c) of the DRC Act. Section 3 (c) DRC Act provides that nothing in the act would apply to a premises whether residential or not, whose monthly rent exceeds Rs.3,500/-. The case of the Petitioner is that the rent of premises was Rs.2,900/- however, due to addition of electricity, water and maintenance charges the same was more than Rs.3,500/- and thus the eviction petition under the provisions of DRC Act was not maintainable. In the eviction petition Shashi Mehra stated that the monthly rent of the premises was Rs.1,800/- excluding the electricity and water charges which were payable by the tenant to the concerned authorities directly. In her evidence Shashi Mehra produced rent receipts and counterfoils duly signed by father of Ravindra Dayal, that is, Bishambar Dayal, Advocate showing rent of Rs.1,000/- from 1st March, 1999 to 31st March, 1999. In cross-examination of Shashi Mehra no suggestion was made that the rent was more than Rs.3,500/- nor any evidence was led on this count by Ravindra Dayal. The cross-examination RC.REV. 544/2011 Page 13 of 22 centered around Shashi Mehra not being the owner and landlord of the premises. Thus this contention of learned counsel for the Petitioner that the rent inclusive of electricity, water and maintenance charges was more than Rs.3,500/- and hence the petition is not maintainable is based on no evidence. In the written statement in reply to paras 14 to 17 the Petitioner admitted that payment of any alleged rent is a matter of record. Moreover, the plea of the Petitioner that the eviction petition was barred under Section 3 (c) of the DRC Act was taken by filing the application before the learned ARC which was dismissed vide order dated 8th November, 2010 with a cost of Rs. 10,000/- and the CM (M) challenging the said order was also dismissed by this Court with further cost of Rs. 10,000/-.
19. The Petitioner filed an application under Rule 23 DRC Act read with Section 17 of the Small Causes Act and Section 3 (c) of the DRC Act for rejection of the eviction petition which was dismissed noting that earlier a similar application on the same grounds was dismissed by the learned ARC on 12th May, 2011 which order was not challenged in revision and the order had thus attained finality. The Petitioner cannot be permitted to raise these pleas again and again. Further inquiry in the matter was as per the Small Causes Court Act and thus no issues were required to be framed as contended by the learned counsel for the Petitioner. Section 37(2) of the DRC Act provides for the procedure to be followed by the Controller and states that subject to any rules that may be made under the Act, the Controller shall while holding an inquiry in any proceeding before him follow as far as may be the practice and procedure of the Court of Small Causes including recording of evidence. Further Section 25-B DRC Act provides for a special procedure for disposal of application for eviction on RC.REV. 544/2011 Page 14 of 22 the ground of bonafide requirement. Sub Section 7 of Section 25-B further provides that notwithstanding anything contained in sub-Section 2 of Section 37 DRC Act, the Controller shall while holding an inquiry in a proceeding to which this Chapter applies follow the practice and procedure of a Court of Small Causes including recording of evidence. Thus sub-Section 7 of Section 25-B starting with the non-obstante clause further reinforces the mandate in Section 37(2) DRC Act that the inquiry has to be as per the practice and procedure of the Court of Small Causes. Proviso to Order V Rule 5 CPC provides that in every suit heard by a Court of Small Causes, the summons shall be for final disposal of the suit and not for settlement of issues. Thus, no illegality is attached to the inquiry conducted by the learned ARC without settling the issues.
20. Learned counsel for the Petitioner has contended that the learned ARC should have dealt with issue of ownership of Shashi Mehra of the tenanted premises before deciding the issue of landlord-tenant relationship. The plea of learned counsel for the Petitioner that Shashi Mehra is not the owner of the tenanted premises is unsustainable for the reasons to follow hereinafter. The Memorandum of Partition Ex. PW-1/1 dated 11th October, 1971 was between Ishwar Dayal, the father of Shashi Mehra and his three sons, that is, Rajeshwar Dayal, Vishweshwar Dayal and Satishwar Dayal. Clause -12 of the said memorandum of Partition provided that in case of any difference or dispute arising between the parties touching the oral partition held on 7th August, 1971 which was reduced in writing on 11th October, 1971 the same will be settled by a reference to the sole arbitration of Shri Jagdishwar Dayal whose decision in this behalf shall be final and binding. Pursuant to the disputes between the parties the matter was referred to Shri Jagdishwar RC.REV. 544/2011 Page 15 of 22 Dayal who vide the award dated 23rd February, 1972 duly signed by Jagdishwar Dayal, the sole Arbitrator and Ishwar Dayal and his three sons Rajeshwar Dayal, Vishweshwar Dayal and Satishwer Dayal i.e Ex.PW-1/2 held that the rear portion of the HUF property 7, Bela Road, Civil Lines would be held exclusively by Ishwar Dayal to the exclusion of his three sons who will have no right title or interest in the said property and the three sons were given their respective shares in the front portion as noted in the Partition Deed. This Award was made Rule of the Court in Suit No.302/1972 on 27th October, 1972 defining the respective shares of Ishwar Dayal and his three sons. The challenge to the Petitioner to the partition deed and the Arbitration Award is that the Memorandum of Partition provided that in case of disputes between the parties, the matter will be referred to the sole Arbitrator Shri Jagdishwar Prasad however, the dispute between the parties was only with regard to the mutation and hence the same being no dispute the Arbitration Award was a fraud. This challenge is wholly misconceived as a dispute between the parties as the mutation of the property was not being carried out was an arbitrable dispute. Further the contention that the certified copy of the Award dated 27th February, 1972 was unstamped, unsigned, unexecuted and non-est in law deserves to be rejected because in 1972 in the absence of Xerox copies being available the certified copies were not a replica of the original. No evidence has been led by the petitioner to rebut the genuineness of the certified copies and thus the plea needs to be rejected.
21. In Bhinka and others v. Charan Singh AIR 1959 SC 960 three judge Bench of the Supreme Court held that under section 79 Indian Evidence Act a court is bound to draw the presumption that a certified copy of a document RC.REV. 544/2011 Page 16 of 22 is genuine and also that the officer signed it in the official character which he claimed in the said document. But such a presumption is permissible only if the certified copy is substantially in the form and purported to be executed in the manner provided by law in that behalf. To put it differently, if a certified copy was executed substantially in the form and in the manner provided by law, the court is required to raise a rebuttable presumption regarding its genuineness.
22. Further by virtue of the Will dated 18th September, 1974 duly registered exhibited as Ex.PW-1/4, Ishwar Dayal created life interest in the rear portion of the property which contained four similar flats including the tenanted premises and thereafter bequeathed the same one each to his four daughters. On the death of Shri Ishwar Dayal and his wife Smt.Bhawani Devi @ Kashmiran Rani, the tenanted premises was bequeathed to Shashi Mehra. Shashi Mehra examined PW-2, Dinesh Dayal, the attesting witness to the Will. Nothing could be elicited in the cross-examination of this witness to demolish the genuinity of the Will. The contention that the Will was not probated and cannot be looked into deserves to be rejected. It is trite law that in Delhi Will is not required to be probated. In Shri Shivraj Krishan Gupta & Ors. vs. Sh. Chander Krishan Gupta & Ors.
2007(96)DRJ466 this Court held that no probate is required in the State of Delhi. Further in Rajan Suri and Anr. v. State and Anr.
MANU/DE/2417/2005 : AIR 2006 Delhi 148, this Court noting the various decisions on the issue that a person has a right to set up a Will even in collateral proceedings and there is no need of obtaining probate held:
"31. It is thus apparent that no right as executor can be established in any Court unless probate or letters of RC.REV. 544/2011 Page 17 of 22 administration have been obtained of the Will in view of the provisions of Section 213 of the said Act. However, the said Section 213would have no applicability in Delhi and it is not necessary to obtain probate of a Will in Delhi before any claim is based on that Will. A person has a right to set up a Will even in collateral proceedings and there is no need of obtaining probate thereof. In this behalf, reference may be made to the judgment in Behari Lal Ram Charan v. Karam Chand Sahni MANU/PH/0030/1968 which has been followed by this Court in Sardar Prithipal Singh Sabharwal v. Jagjit Singh Sabharwal 1996 (III) AD (Delhi) 281. It was observed in Behari Lal Ram Charan case (supra) as under:
"From a bare perusal of these two sections it is apparent that the objection of defendant No. 1 on the preliminary issue raised by him in the trial Court was without any substance Clause (a) of Section 57 read with Sub-section (2) of Section 213, it would appear applies to those cases where the property and parties are situate in the territories of Bengal, Madras and Bombay while Clause (b) applies to those cases where the parties are not residing in those territories but the property involved is situate within those territories, Clause (c) of Section 57, however, is not relevant for the present purpose, Therefore, where both the person and property of any Hindu, Budhist, Sikh or Jaina are outside the territories mentioned above, the rigour of Section 213, Sub-section (1) is not attracted.
32. A similar view was also taken by the learned Single Judge in Murlidhar Dua v. Shashi Mohan MANU/DE/1237/1997: 68 (1997) DLT 284 and Santosh Kakkar v. Ram Prasad MANU/DE/0769/1998: 71 (1998) RC.REV. 544/2011 Page 18 of 22 DLT 147. It was held that the provisions contained in Section 213 of the said Act requiring probate do not apply to Wills made outside Bengal and the local limits of ordinary original jurisdiction of High Courts of Madras and Bombay except where such Wills relate to property situated in territories of Bengal or within the aforesaid local limits. In a recent judgment of the learned single Judge of this Court in Mrs. Winifred Nora Theophilus v. Mrs. Lila Deane MANU/DE/0619/2001 : AIR 2002 Delhi 6 . It was observed in para 10 as under:
"10. On interpretation of Section 213 read with Section 57(a) and (b), the Courts have opined that where the Will is made by Hindu, Budhist, Sikh and Jaina and were subject to the Lt. Governor of Bengal or within the local limits of Ordinary Original Civil Jurisdiction of High Court of Judicature at Madras and Bombay or even made outside but relating to immovable property within the aforesaid territories that embargo contained in Section 213 shall not apply, that is what the various judgments cited by the learned Counsel for the defendants decide. Therefore, there is no problem in arriving at the conclusion that if the Will is made in Delhi relating to immovable property in Delhi by Hindu, Buddhist, Sikh or Jaina, no probate is required."
23. It is well settled that one who pleads fraud, fabrication has a heavy onus to discharge and in the present case no material has been placed on record by the Petitioner to prove fraud and only vague pleas had been taken. In Hansraj Gupta and others v. Mussoorie Electric Tramway Co. Ltd. AIR RC.REV. 544/2011 Page 19 of 22 1940 PC 98 it was held that the party alleging fraud is bound to establish it by cogent evidence and suspicion cannot be accepted as proof.
24. In view of the documents as noted above, Shashi Mehra has been able to prove that she is the owner of the tenanted premises
25. Shashi Mehra deposed that father of Ravindra Dayal late Bishambhar Dayal was already tenant under her father and mother and when she became the owner of the premises in the year 1986, Bishambhar Dayal continued to pay rent to Shashi Mehra and she exhibited the rent receipts along with the copies of the counter foils duly signed by Bishambhar Dayal as Ex. PW-1/10 to PW-1/12. It is stated that after Shri Bishambar Dayal died in August, 1987 his wife Chandarwati who used to signed as Mrs.Bishambar Dayal became the tenant who continued paying rent to Shashi Mehra against the rent receipts. Copies of the counter foil and rent receipts have been exhibited as Ex.PW-1/13 to Ex.PW-1/18. Smt.Chanderwati died in 1992 whereafter Ravindra Dayal became the tenant in the premises and attorned in favour of Shashi Mehra. Ravindra Dayal started paying rent to her since 1993 against rent receipts and also signed counter foils of the rent receipts. Ravindra Dayal paid rent to Shashi Mehra without any protext since the year 1993 till the end of July, 2002. The original counter foils of the rent receipts which were filed in the connected file of Eviction Petition No.147/2007 were produced before the Court and copies thereof were exhibited as Ex.PW-1/19 to Ex.PW-1/26. As a matter of fact no proof on this count was required to be adduced by Shashi Mehra due to the admission of Ravindra Dayal who in reply to paras 14 - 17 of the eviction petition relating to rent stated that the said paras are a matter of record. Further in cross-examination it was admitted by Ravindra Dayal that his brother Keshav Dayal, Senior Advocate RC.REV. 544/2011 Page 20 of 22 had taken the tenanted premises on rent sometime in the year 1956-57 from Ishwar Dayal, father of Shashi Mehra and he continued to be a tenant till 1961. Keshav Dayal, Senior Advocate paid rent to Ishwar Dayal till he remained a tenant in the property. His father Shri Bishambar Dayal along with his family including brother Prahlad Dayal and three unmarried sisters shifted to the tenanted premises in 1961 when Keshav Dayal was a tenant. Thereafter his father Bishambar Dayal also became a tenant of Ishwar Dayal and remained so till his death. He further admitted that after death of Ishwar Dayal, his widow Kashmiran Devi became the landlord and his father paid the rent to her till she died. He also admitted that the rent receipts were also issued to his father and brother whenever they paid rent. He admitted that after the death of Kashmiran Devi Devi her father started paying rent to Shashi Mehra against rent receipts and after the death of his father and mother, he started paying rent to Shashi Mehra against receipts. He admitted that he paid rent to Shashi Mehra against receipts from 1992 to 1998 and also signed counter foils of the rent receipts. Thus besides Shashi Mehra proving her title to the tenanted premises, there is a clear admission on behalf of Ravindra Dayal of paying rent to Shashi Mehra and having attorned her as the landlord.
26. As regards the bonafide requirement the fact that all the four flats are of same dimensions and size, thus, comprising of three rooms on the two floors is not denied. It is also not denied that Shashi Mehra and her husband along with their younger son Atul Mehra, his wife and children were staying in the premises. It is well settled that the landlord is not required to break his family and the requirement of the whole family residing together will have to be seen as a single unit.
RC.REV. 544/2011 Page 21 of 2227. No material has been placed on record by the petitioner to show that the property i.e. 69 UB, Jawahar Nagar was in the name of Shashi Mehra and her husband and not Vipul Mehra. The only objection in relation to the availability of alternate accommodation by the petitioner is that in the eviction petition it is not stated by Shashi Mehra that there was no other suitable residential accommodation available. Shashi Mehra in the eviction petition stated that she does not own any other property in Delhi or in India which satisfies the requirement of Section 14(1)(e) DRC Act. No evidence has been led by the petitioner to show that Shashi Mehra owns any other residential property. The requirement of a landlord/landlady to stay/reside in her own premises cannot be said to be a fanciful desire not amounting to bonafide requirement. Thus, Shashi Mehra also proved her bonafide requirement and that she had no other alternative accommodation to live.
28. There is thus no merit in the petition. The petition and application are dismissed.
(MUKTA GUPTA) JUDGE AUGUST 07, 2015 'vn' RC.REV. 544/2011 Page 22 of 22