Uttarakhand High Court
Pratap Singh S/O Late Sri Ram Chandra vs Sri Hira Lal S/O Late Sri Sepahi Lal And ... on 5 July, 2007
Author: Rajesh Tandon
Bench: Rajesh Tandon
JUDGMENT Rajesh Tandon, J.
1. Heard Shri B.P. Nautiyal, counsel for the appellant and Shri V.K. Kohli, Sr. Advocate assisted by Shri LP. Kohli, counsel for the respondents.
By the above second appeals filed under Section 100 of Code of Civil Procedure, the appellant has prayed for setting aside the judgment and decree dated 16.12.2002 passed by the Additional District Judge/4th F.T.C., Dehradun.
2. Briefly stated, two suits bearing Nos. 281/80 and 204/89 were filed by the plaintiff Hira Lal. Suit No. 281/80 was filed for permanent injunction with regard to the property shop No. 13, Hanuman Chowk, Dehradun and suit No. 204/89 was filed in respect of the property No. 16/12, Khadri Mohalla, Dehradun for possession and damages. The trial court has connected both the suits by order dated 4.11.1992 and fixed suit No. 281/80 as leading suit.
3. The brief facts of suit No. 281/80 are that the brother of the plaintiff Ratan Lal was the tenant of the disputed shop @ Rs. 10 per month. Ratan Lal died on 16 7.3-1980 Ratan Lal has executed a will in favour of Hira Lal by virtue of which, he became the owner of all movable and immovable properties of late Ratan Lal. He also became the tenant of the shop and is in possession of the same. It has been stated that the defendant Nos. 2 and 3 are the sons of defendant No. 1. The defendants have threatened the plaintiff for dispossessing the plaintiff. During the pendency of the suit, defendant No. 1 died on 14.1.93 leaving behind defendant Nos. 1/1 to 1/4, 2 and 3 as legal heirs. Since the defendants are interfering with the possession of the shop of the plaintiff, the suit has been filed for permanent injunction.
4. The defendant Nos. 1 and 2 filed the written statement admitting the tenancy of late Ratan Lal @ Rs. 10/- per month. It has been stated that late Ratan Lal was doing the work of repairing of watches and paintings. The cremation of late Ratan Lal was done by the defendant No. 1. It has been denied that late Ratan Lal has executed a will dated 7.3.1980 on account of which the plaintiff has got the tenancy right of the shop. Plaintiff Hira Lal was working in M/s Punjab Jewelers and he was issueless. Defendant No. 1 and the plaintiff are real brothers. The will executed by late Ratan Lal was said to be forged. The defendant No. 1 is the heir of late Ratan Lal and, therefore, he is the tenant of the disputed shop. Since, the owner of the defendant has not been made a party, the suit is bad by mis-joinder of the parties.
5. The brief facts of suit No. 204 of 1989 are that two rooms out of four rooms on the ground floor of the disputed property No. 16/12, Khadri Mohalla, Dehradun was in possession of late Ratan Lal and the plaintiff was also residing with him. Towards the North, in the third and fourth room, Om Prakash and Dharmpal were the tenants respectively. On the first floor, with the permission of late Ratan Lal, the defendant No. 2 started residing. It has been stated that the defendant Nos. 1 and 2 has unauthorizedly occupied the disputed property. Plaintiff is the sole owner of the property in dispute. The plaintiff has prayed for the eviction of the defendant and has also claimed Rs. 3600/-towards damages.
6. The defendants has filed the written statement that late Ratan Lal became the owner of the disputed property by virtue of will executed by Smt. Kailashwati. The will was executed to the effect that after the death of Ratan Lal, the property in dispute will go to the plaintiff and the defendant no.i. The defendant No. 2 is residing in the property in dispute till Smt. Kailashwati was alive. The plaintiff is not the sole owner of the property rather he is the co-owner of the property alongwith defendant No. 1. The plaintiff has no right to possess the property till the property is in the joint ownership. The defendants have also reiterated the submissions made in the written statement in suit No. 281/80.
The plaintiff has filed the rejoinder by which he has denied the averments made in the written statement and has reiterated the facts mentioned in the plaint.
7. After going through all the aspect of the matter and considering the evidence on record, the trial court has decreed both the suits and recorded the finding as under:
tSlk fd mijksDr fu"d"kZr% fd;k x;k gS fd e`rd jru yky }kjk oknh ghjk yky ds i{k esa dfFkr olh;r fnukafdr 7-3-80 fu"ikfnr dh x;h rFkk oknh fookfnr nqdku la[;k 3 guqeku pkSd ij dkfct gS o fookfnr edku la[;k 16@12 [knjh eqgYyk] nsgjknwu dk olh;r ds vk/kkj ij ,d ekfyd gS] ftlds dkj.k og bu edku dk dCtk izfroknhx.k ls izkIr djus dk vf/kdkjh gS rFkk izfroknhx.k dks fookfnr nqdku la[;k &3 guqeku pkSd] nsgjknwu es oknh ds dCts esa fdlh izdkj gLr{ksi djus dk vf/kdkj ugh gS A izfroknhx.k fulUnsg :i ls vius dFkuks dks fl) djus esa vleZFk jgs gS A rn~uqlkj ;g nksuks okn vkKIr gksus ds ;ksX; gS A
8. The defendants preferred an appeal against the judgment and decree passed by the trial court. The appellate court has also dismissed both the appeals. Hence, above second appeals have been filed.
9. During the pendency of the appeal, plaintiff-respondent Hira Lal died. Substitution application has been filed stating therein that Hira Lal expired on 5.12.2003 leaving behind the following heirs and legal representatives. Averments made in the paragraph 5 of the substitution application are quoted below:
That the nearest heirs of the said deceased Hira Lal are the sons and daughter of his already deceased elder brother Ram Chandra are being described below:
A. Ganga Sankar B. Pratap Singh C. Sri Krishan Verma D. Smt. Rani Verma E. Vidyawati w/o Sri Ram Chandra
10. On the basis of aforesaid averments, the amendment has been sought to the following effect:
PROPOSED AMENDMENT
1. That after the name and address of the respondent Hia Lal the work "Deceased" and thereafter following be added:
1/1 Ganga Sankar, S/o Late Ram Chandra, Beetal Shop, Opp. Haveli of Bahadur Giri, Upper Road, Haridwar 1/2 Pratap Singh, So Lale Sri Ram Chandra R/o 16/12. Khadri Mohalla, Dehradun 1/3 Sri Krishan Verma, S/o Late Sri Ram Chandra, R/o Wateh Market, Old Sabji Mandi, Haridwar 1/4 Smt. Rani Verma, D/o Late Sri Ram Chandra, W/o Sri Ramesh Chandra Verma, C/o Ramesh Ch. Verma, State Bank of Patiyala, Sainik School, Kurukkhetra.
1/5 Smt. Vidyawati, W/o Late Sri Ram Chandra R/o Sabji Mandi, Haridwar
11. In fact, the amendment which has been sought is that Hira Lal has left the heirs and legal representatives who are defendant-respondent Nos. 8, 9, 11, 12 and the defendant appellant himself in the memorandum of appeal. Counter affidavit of Neel Kamal Verma has been filed stating therein that the proposed heirs are not the heirs of Shri Hira Lal and the deceased Hira Lal has adopted one Neel Kamal Verma as son vide adoption deed dated 4.6.1985 and he has bequeathed all the movable and immovable properties to his son i.e. Neel Kamal Verma. Paragraph Nos. 7 and 8 to that effect are quoted below:
7. That with regard to para 7 of the said application it is submitted that the names of the persons shown as legal heirs of late Shri Hiralal are incorrect. Facts are that during his life time Shri Hiralal had adopted Shri Neelkamal Verma as his son vide adoption deed dated 04.06.1982 which is duly registered in the office of Sub-Registrar, Dehradun in Book No. 4, Volume 356, Pages 47/49 at Serial No. 218 and registered on 7.6.1982.
8. That during his life time Shri Hiralal had also executed a will dated 04.06.1985 in which he has bequeathed all his movable and immovable property to his son i.e. the deponent. The said will is duly registered in the office of Sub-Registrar, Dehradun in Book No. 3 Volume 150. pages 95/98 at Serial No. 215 and registered on 07.06.1985.
12. Affidavits of Ramesh Chand and Vijay Singh have also been filed alongwith the supplementary affidavit. Both the deponents have stated that they are the witnesses of the adoption deed dated 4.6.1982 and by virtue of the said deed Shri Hira Lal had adopted Shri Neel Kamla Verma as his son.
13. As will appear from the substitution application as well as proposed amendment that the intention of the defendant is to get themselves substituted as proposed heirs who are already defendants against whom the suit has been filed for injunction as well as for possession.
14. It is well settled that there cannot be a merger of the interest of lessee and lessor at the same time in view of the judgment of the Apex Court in T. Lakshmipathi and Ors. v. P. Nithyananda Reddy and Ors. , where it has been held as under:
13. Law Lexicon (P. Ramanatha Aiyar, 2nd Edn., 1997) defines "merger" as the destruction or 'drowning' by operation of law of the less in the greater of two estates coming together and vesting without any intervening estate in one and the same person in the same right. 'Whenever a greater estate and a less coincide and meet in one and the same person without any intermediate estate, the less is immediately (sic) or in the law phrase is said to be merged that is, sunk or drowned in the greater (2 Black. Com. 177; Tomlins Law Dictionary).
14. The common-law doctrine of merger is statutorily embodied in the Transfer of Property act, 1882. Section 111(d) provides:
111. Determination of lease.- A lease of immovable property, determines-
* * *
(d) in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right;
* * * A bare reading of the doctrine of merger, as statutorily recognized in India, contemplates (i) coalescence of the interest of the lessee and the interest of the lessor, (ii) in the whole of the property, (iii) at the same time, (iv) in one person, and (v) in the same right. There must be a complete union of the whole interests of the lessor and the lessee-so as to enable the lesser interest of the lessee sinking into the larger interest of the lessor in the reversion.
15. In Badri Narain Jha v. Rameshwar Dayal Singh , it was held by this Court that if the lessor purchases the lessee's interest, the lease no doubt is extinguished as the same man cannot at the same time be both a landlord and a tenant, but there is no extinction of the lease if one of the several lessees purchased only a part of the lessor's interest. In such a case the leasehold and the (sic).
16. In Sk. Faquir Bakhsh v. Murli Dhar AIR 1931 PC 63 the plaintiff was holding on lease a portion of the entire property. Subsequently, the plaintiff and the defendant became pro indiviso joint proprietors of the property by purchasing shares from the earlier owners. The lease was subsisting when the shares were bought by the parties. In a suit for accounts filed by the plaintiff it was held that the plaintiffs rights under lease of a part do not merge in his rights as joint proprietor of the whole of the property as between the parties the plaintiff held a valid and subsisting lease.
18. In the case at hand, it cannot be denied, nor has it been denied that the appellants herein are not purchasers of the entire ownership interest in the property. What they have purchased is interest of some out of all the co-owners of the property. The interest of Respondent I, whatever be its extent, has not come to vest in the appellants. The appellants have also acquired the tenancy rights in the property. Thus they have acquired partial ownership and full tenancy rights. It cannot be said that the interests of the lessee and the lessor in the whole of the property have become vested in the appellants at the same time and in the same right.
15. On the strength of the aforesaid judgment, the substitution application is liable to be rejected as the said appeal stands abated.
16. However, apart from the aforesaid, it is well established that the defendant cannot be allowed to approbate and reprobate at the same time and the defendant cannot be allowed to become plaintiff in the same suit where he is facing the execution proceedings.
17. However, since the plaintiff has filed the counter affidavit and has brought to the notice of the defendant regarding the adoption deed as well as the will executed in favour of Neel Kamal Verma and, as such, application filed by the respondent shall be treated to be the application under Order 22 Rule 10 A of Code of Civil Procedure.
18. However, without going into the merits of the claim with regard to the legal heirs of the plaintiff, the application submitted by the respondent is being treated as an application under Order 22 Rule 10A of Code of Civil Procedure for the purposes of prosecuting the second appeal under Section 2(11) of the Code of Civil Procedure as held by the Apex Court in Chiranjilal Shrilal Goenka (deceased) through L.Rs. v. Jasjit Singh and Ors. .
19. The Apex Court in the matter of Chiranjilal Shrilal Goenka (deceased) through L.Rs. v. Jasjit Singh and Ors. has interpreted the provisions of Section 2 of the Code of Civil Procedure and has held that the term 'legal representative' is wide and inclusive and not confined to heirs alone. Therefore, Section 2(11) is being used to intermeddle the suit of the deceased for the purposes of prosecuting the suit itself. The Apex Court, therefore, has interpreted the said provision. The same is quoted below:
7. Inheritance is in some sort a legal and fictitious continuation of the personality of the dead man, for the representation is in some sort identified by the law which the dead man can no longer own obligations which he can no longer in propria persona fulfil, he owns, exercises and fulfils in the person of a living substitute. To this extent, and in this fiction, it may be said that legal personality of a man survives his natural personality, until his obligations being duly performed, and his property duly disposed of, his representation among the living is no longer called for.
8. In Black's Law Dictionary the meaning of the word 'Legal Representative' is: The term in its broadest sense means one who stands in place of, and represents the interests of another. A person who overseas the legal affairs of another. Examples include the executors or administrator of an estate and a court appointed guardian of a minor or incomplete person.
9. Term "legal representative" which is almost always held to be synonymous with term "personal representative", means in accident cases, member of family entitled to benefits under wrongful death statute. Unsatisfied claim and judgment fund. In The Aadhra Bank Ltd. v. R. Srinivasan and Ors., this Court considered the question whether the legatee under the Will is the legal representative within the meaning of Section 2(11) of the Code. It was held that it is well known that the expression "Legal Representative" had not been defined in the Code of 1882 and that led to a difference of judicial opinion as to its denotation. Considering the case law developed in that behalf it was held that respondents 2 to 12, the legatees under the Will of the estate are legal representatives of the deceased Raja Bahadur and so it follows that the estate of the deceased was sufficiently represented by them when the judgments were pronounced.
20. In view of the above application Nos. 474/2004 and 1114/2005 in second appeal No. 1 of 2003 and application Nos. 473/2004 and 1116/2005 in second appeal No. 2 of 2003 are dismissed. Counter affidavit filed by Neel Kamal Verma with regard to the averment that he is son of late Hiralal and he is the only legal heir left by late Hiralal is allowed.
21. In case the appellant amends the memo of appeal within a period of one week, the second appeals shall be heard on merits. On failure to amend the memo of appeal, both the appeals shall be listed for hearing on 18.07.2007 as well as for abatement of both the second appeals.