Himachal Pradesh High Court
Ruli Ram (Deceased) Through L.R. And ... vs Amar Singh on 24 June, 1993
ORDER Devinder Gupta, J.
1. Since common question of law and facts arises for determination in both the civil revisions, this judgment is meant to dispose of both of them by a common judgment, which otherwise have arisen out of separate proceedings initiated by landlord-respondent against deceased Ruli Ram, tenant-petitioner, who is now represented by his legal representatives.
2. The respondent-landlord on 26th May, 1984, filed a petition seeking eviction of tenant Ruli Ram from a residential flat located above shops Nos. 80/81. The Mall, Shimla, on the ground that the tenant had got building 'Oak Over Villa', Jakhu in his own right wherein he has acquired vacant possession of a residential set, which has more accommodation than the accommodation in question on the Mall and that the said tenant has rendered himself liable for eviction. The petition was contested by the tenant, who set up a plea that the tenancy was a composite one with that of shop No. 81, The Mall, Shimla. While passing a final decree in Civil Suit No. 48 of 1948 on 22nd October, 1951, a composite tenancy of a shop on the Mall with residential flat above it came into being and ever since the tenant has been in occupation of the premises treating the same to be a composite tenancy. Since, business was being carried on in the shop and the tenant was residing in the residential set, the tenancy was with respect to non-residential premises from which eviction cannot be sought, on the grounds stated in the petition. The tenant denied that he had acquired any vacant possession of a residential set in the property owned by him at Jakhu.
3. The Rent Controller in its order passed on 31st March, 1987, held that the tenancy with respect to shop and residential flat 80/81, The Mall, Shimla, was composite one and accordingly the petition seeking eviction from residential portion was not competent and maintainable. The Rent Controller also found that the landlord has not led any cogent evidence, nor proved that the tenant had acquired vacant possession of any residential set in the property owned by him at Jakhu. Feeling aggrieved, the landlord carried the matter in appeal. The appellate authority through its judgment dated 11thMarch, 1988, held that the tenancy with respect to shop and residential flat was not composite one but there were two separate tenancies and eviction petition seeking tenant's eviction from the residential premises was competent and maintainable. It was also found that the tenant had acquired vacant possession of three residential sets each consisting of two rooms fn the building known as 'Oakover Villa', Jakhu, Shimla, which was more spacious than the premises in dispute. In view of these findings, the landlord's appeal was allowed. The order of the Rent Controller was set aside and the tenant was ordered to be evicted from the premises in question.
4. The tenant challenged the order passed by the appellate authority by filing the instant civil revision. An application seeking amendment of the reply was also filed by the tenant. The Himachal Pradesh Urban Rent Control Act, 1971, under which the tenant's eviction was sought by the landlord was also repealed during the pendency of the litigation and was replaced by the Himachal Pradesh Urban Rent Control Act, 1987 (Act No. 25 of 1987) (hereinafter called as 'the Act'). The landlord also moved an application seeking amendment to the eviction petition so as to meet the requirement of law by taking up the ground and pleading that the tenant has acquired a residence, reasonably sufficient for his requirement. In view of the changed circumstances, both the application were allowed on 28th August, 1992 and in view of the amendment, following issue was framed and was remitted to the Rent Controller, who was called upon to take fresh evidence and submit his finding to this court:
"Whether the tenant has before or after the commencement of the Act acquired vacant possession of the residential accommodation reasonably sufficient for his requirements?"
5. The Rent Controller proceeded to record its finding on the additional issue and has returned the same to this Court. It has been held by him that the landlord has failed to establish that after the commencement of the Act, tenant Ruli Ram or his legal representatives have acquired vacant possession of residential accommodation reasonably sufficient for their requirement. These findings are now under challenge in the instant revision petition at the behest of the landlord, whereas the tenant is seeking to challenge the findings recorded by the appellate authority on the composite nature of the tenancy.
6. By filing a petition on 11th August, 1984, the landlord-respondent sought eviction of tenant Ruli Ram from shop premises known as 81, The Mall, Shimla, including a show-window, alleging that the premises were let out in the year 1951 for non-residential purposes. The tenant had committed such acts as are likely to impair materially the value and utility of the residential building whereby the tenant had rendered himself liable for eviction. The tenant resisted the petition by contending that the petition seeking eviction from part of the tenanted premises was bad in law. The tenancy was composite with respect to shop No. 81 and the residential flat above shop No. 80/81, The Mall, Shimla. The tenancy was created by virtue of the 'agreement arrived at while passing final decree on 22nd October, 1951 in Civil Suit No. 48 of 1948. The Rent Controller held that the tenancy was a composite one with respect to shop and residential flat above it. The ground for eviction was also negatived holding that the tenant was not liable to be evicted since he had not committed any acts as were likely to impair materially the value and utility of the building. The eviction petition was dismissed. The landlord carried the matter in appeal. The appeal was allowed by the appellate authority holding that the tenancy was not composite but there were, in fact, two separate tenancies -- one for shop and the other for residential premises. The ground of eviction was not pressed by the landlord. The tenant, however, carried the matter to this court by filing the civil revision challenging the finding of the appellate authority that the tenancy was not composite and that, in fact, there were two separate tenancies.
7. During the pendency of the civil revisions, tenant Ruli Ram expired. Admittedly, he is survived by his widow Smt. Pushpawanti, three major sons, namely, Ramesh Chand, Suresh Kumar and Parveen Kumar and one married daughter Ms. Saroj.
8. In Civil Revision 58 of 1988, on 11th May, 1989, an order was passed in Civil Misc. Petition No. 52 of 1989, directing the widow, three sons and married daughter to be brought on record as legal representatives of deceased tenant. The question whether all or any one of them is entitled to inherit the tenancy of the deceased Ruli Ram was directed to be considered at the time of final disposal of the civil revision.
9. On 19th April, 1991, an order was passed in CMP 343/1990 in Civil Revision 58/1988 and CMP 345/1990 in Civil Revision 130/1988 directing that in Civil Revision 58 of 1988, relating to residential portion, Smt. Pushpawanti and Parveen Kumar be brought on record as legal representatives of deceased Ruli Ram while in Civil Revision No. 130 of 1988, relating to shop, Smt. Pushpawanti along with two sons, Ramesh Chand and Suresh Kumar be brought on record in place of deceased tenant Ruli Ram. This order was passed, since according to the parties, the question as to who should be brought on record as legal representative, stood concluded by the judgment of this court dated 5th September, 1990 in two separate Civil Revisions 122 of 1990 and 123 of 1990 (Amar Singh v. Pushpawanti).
10. I have heard the learned counsel for the parties and also gone through the record of both the cases. It is contended on behalf of the petitioners by Mr. Ajay Kumar that the findings recorded by the appellate authority that there were two separate tenancies are vitiated due to the failure to consider vital evidence on record, namely, the final decree passed on 22nd October, 1951, as also various receipts issued till the dispute arose in the year 1986. The parties due to their conduct treated it to be a composite tenancy with respect to shop-cum-flat. It was never treated separate tenancy with respect to residential and non-residential premises. The mere fact that rent had been split up, at the time when Ruli Ram was inducted as a tenant, alone will not be a relevant factor to decide whether it was a separate tenancy or a composite tenancy. The cumulative effect of all the circumstances, including the conduct of the parties, ought to have been taken into consideration. He has also supported the findings of the Rent Controller on the additional issue framed by urging that the property, which fell to the share of Ruli Ram, in partition at Jakhu, was a joint Hindu family property in which his sons by birth had interest. It being an ancestral co-parcenary property, wherein sons of Ruli Ram got interest by birth, who got possession of vacant premises. Neither Ruli Ram nor the two petitioners, who were brought on record, after his death as his legal representatives acquired any vacant possession, the findings were perfectly justified in the facts and circumstances that the tenant had not acquired any vacant possession of a residence after the commencement of the Act.
11. Mr. Anoop Chitkara, appearing for the landlord-respondent, has questioned the findings of the Rent Controller by urging that the same are bad in law. The property at Jakhu ceased to be an ancestral property and admittedly as many as three residential sets had fallen vacant, which came in occupation of the tenant. The accommodation was many times more than the accommodation in question, which was also reasonably sufficient for the requirement of the tenant(s). In addition to the accommodation, which fell vacant, certain additions were also made and in this manner more accommodation had come in possession of the tenant. On the question of composite tenancy, Mr. Chitkara laid emphasis that there were, in fact, two separate tenancies, which would be evident from various circumstances brought on record, such as, separate electric meters for two portions, separate rent for the two portions etc. etc., while effecting increase in the rent in the year 1976, rent of the shop was increased but there was no corresponding increase in the rent of the residential portion and non-use of the word 'shop-cum-flat', while letting out the premises, in view of the agreement arrived at, at the time of passing the final decree on 22nd October, 1951.
12. Having considered the respective arguments addressed at the Bar and having gone through the record, I find much force in the submissions made by the learned counsel for the tenant that it was, in fact, a single composite tenancy with respect to shop and residential flat situate above it and that the tenant is not liable to be evicted on the ground on which his eviction was sought by the landlord. I also find that no interference is called for in the findings recorded by the Rent Controller on the additional issue.
13. It is the admitted case of the parties that in pursuance to an agreement arrived at in civil suit 48 of 1948, a final decree for partition was passed and simultaneously Ruli Ram was admitted as a tenant in shop and flat. The lease was to remain in force for a period of ten years. The relvant clause in the final decree is to the following effect:
"It is further directed that the plaintiffs agree to let out on lease shop No. 81, The Mall, Simla, and the upper flat thereon, which are at present in the possession of Shri Ruli Ram. The yearly rent for the shop and the said flat shall be Rs. 650/- and Rs. 400/-respectively per annum. The lease shall remain in force for ten years."
14. Learned counsel for the landlord contends that since rent has been separately specified it was not a composite tenancy but two separate tenancies, one for shop and the, other for residential premises. It is also the admitted case of the parties that in the year 1976, there was an increase in the rent of the shop premises, which was increased to Rs. 1010/- but the rent for the residential flat was not enhanced.
15. Construing the provisions of the Delhi and Ajmer Rent Control Act (Act No. 38 of 1952), the Supreme Court in Miss S. Sanyal v. Gian Chand, AIR 1968 SC 438, held that where the building let for residence is the entire premises, it is not open to the court to further sub-divide the premises and order eviction with respect to part thereof. Similar view expressed by a Division Bench of the Punjab High Court in Kanwar Behari v. Smt. Vindhya Devi, AIR 1966 Punj 481, while construing Section 14(1)(e) of the Delhi Rent Control Act (59 of (1958), were approved and it held that in the absence of a specific provision incorporated in the statute the court has no power to break up the unity of the contract of letting and attribute incidents and obligations to a part of the subject-matter of the contract which are not applicable to the rest.
It was also held that contract of tenancy, when it is a single and indivisible contract, in the absence of any statutory provision to that effect, it is not open tot he court to divide into two contracts one of letting for residential purpose and the other for non-residential purpose.
16. Admittedly, the contract of tenancy in the instant case is one but separate rent specified for two portions, namely, one for residence and the other for shop. At the relevant time when Ruli Ram was inducted as tenant, provisions of the Punjab Urban Rent Restriction Act, 1947 with East Punjab Amendment Act, 1948, were applicable and the same were repealed and substituted by the East Punjab Urban Rent Restriction Act 1949. The provisions of both the enactments were pan materia with those of the Delhi and Ajmer Rent Control Act, 1952 as also of the Delhi Rent Control Act, 1958, which came up for consideration in the aforementioned two judgments. In Sanyal's case (supra), where the premises had been let out for running a school and for residence, the High Court had held that where there was a composite letting, it is open to the court to discard the contract of tenancy and if the landlord proves his case of bona fide requirement for his own occupation to pass a decree in ejectment limited to that part which "is being used" by the tenant for residential purposes. These findings of the High Court were set aside by the Supreme Court holding that the jurisdiction of the court may be exercised in ordering eviction only when the premises are let for residential purposes and when the premises are left for composite purposes, since the contract of tenancy is single and indivisible contract and in the absence of any statutory provision to that effect, it is not open to the court to divide it into two contracts.
17. Having noticed that the contract was one, what is required to be seen is that how the parties dealt with it as to whether it was treated to be a tenacy with respect to two separate premises, namely, one for commercial purpose and the other for residential purpose or othewise. Reference may now be made to number of receipts placed on record authenticity of which is not in dispute. Exs.R/20 to R/59 are the various receipts admittedly having been issued by the mother of the landlord, namely, Smt. Sushila Devi or her general attorney Shri Kirpa Ram. The same are for the period from 1953 to 28th February, 1964. The same are almost similarly worded. None of the receipt is with respect to the full amount of rent. The rent has been paid and received in part. Almost all the receipts are with respect to both the premises, namely, shop and upper flat, it is recited that the amount has been received as part payment of rent for shop 81. The Mall, Shimla and upper flat 80/81. The Mall, Shimla. In most of the receipts, it has been stated that the amount has been received towards the part payment of shop-cum-flat. Ex.R/3 is the receipt dated 15th July, 1964, which recites as under:
"Received Rs. 573/- (Five hundred and seventy three only) after accounting and settling up to 28th Feb., 1964 in full, on account of rent of the shop cum flat, 81. The -Mall, Shimla, from Shri Ruli Ramji, as detailed given below."
Exhibit R/2 dated 10th June, 1973 is towards the payment of rent for the year 1973-74 and reads:
"Received Rs. 300/- (three hundred only) from Shri Ruli Chand Ji on account of rent of shop-cum-flat 81. The Mall, Shimla,for the current year 1973-74."
In the year 1977, landlord Ajmer Singh himself issued receipt Ex.R/1 accepting part payment of the rent for the year 1977-78, by stating that;
"Received with thanks cheque No. 687342 dated 27-6-77 of H. P. State Co-operative Bank of Rs. 800/- (Rupees eight hundered only) from Shri Ruli Ram on account of part payment of rent for the year 1977-78 for shop No. 81. The Mall, Simla and upper flat 81. The Mall, Simla."
Similar receipts have been issued by the landlord on 13th November, 1979 and 11th November, 1980, which are Exs. R/4 and R/3, respectively on the record of rent petition, giving rise to Civil Revision No. 58 of 1988. The other receipts referred to are on the record of rent case giving rise to Civil Revision No. 130 of 1988. During the year 1951, the landlord was minor and was under the guardianship of his mother Smt. Sushila Devi, who had agreed for letting the premises.
18. In the eviction petition, it was statd by the landlord that the premises were let out in the year 1951 for a period of ten years but no rent note was executed. The tenant in the reply took up a specific plea of composite tenancy by saying that it was a single contract of tenancy under which premises were let out and it has always been treated as composite tenancy. In rejoinder, the landlord simply denied these allegations. There is no other evidence adduced on record as to the contract. The dispute arose only when the tenant remitted rent in the year 1986 by sending pay order through letter Ex.R/1 on 7th April, 1986, which was immediately refuted by the landlord by saying that the tenancy is not composit but separate.
19. Under the Act, the residential building has been defined in Clause (h) of Section 2 to mean any building, which is not a non-residential building. Non-residential bulding has been defined in Clause (e) of Section 2 to mean a building being used--
(i) mainly for the purpose of business or trade; or
(ii) partly for the purpose of business or trade and partly for the purpose of residence, subject to the condition that the person who carried on business or trade in the buildig resides therein:
Provided that if a buildinng is let out for residential and non-residential purposes, separaely to more than one person, the portion thereof let out for the purpose of residence shall not be treated as non-residential building.
Explanation.-- Where a building is used mainly for the purpose of business or trade, it shall be deemed to be a non-residential building even though a small portion thereof is used for the purpose of residence;
The proviso added to Sub-clause (ii) makes it clear that it is lettig purpose, which is the dominant factor. The building has been separately defined under Clause (b) to mean, any building or part of a buildig let out for any purpose whether being actually used for that purpose or not, including any land, godowns, out-houses or furniture let out therewith, but: does not include a room in a hotel, hostel or boarding house.
20. Construing the clause in the final decree, what has to be held is that it was 'a building', which was let out to the tenant. The letting purpose under the contract was specified that part of it to be used for non-residential purpose and part for residential purpose. It was not let under separate contracts of tenancy. Under the Act, when a building is used mainly for the purpose of business or trade it shall be deemed to be a non-residential building even though a small portion thereof is used for the purpose of residence. This is because of the Explanation to Clause (e) of Section 2. The residential building means only that building, which is not a non-residential building. Applying the ratio of Ms. Sanyal's-case (supra) that the tenancy being indivisible namely, one contract, it is not permissible for the courts to split up the same in two parts, it has to be held that it is one single tenancy for both the parts. The fact that the rent having been specified separately for two portions will not make it two separate tenancies, more especially, in view of the subsequent conduct of the landlord, who treated it to be one single tenancy. The rent has been received from time to time describing the premises as shop-cum-residence. In this view of the matter, the findings recorded by the appellate authority are liable to be set aside and it has to be held that the premises involved in both the cases is one composite tenancy of shop No. 80 with flat 80/81. The Mall, Shimla. The nature of which under the Act is non-residential and for this reason the petition for eviction, on the ground that the tenant has after the commencemen of the Act acquired vacant possession of a residence will not be maintainable.
21. On the additional issue framed, it is not disputed on behalf of the tenant that in the property located at Jakhu there are four residential sets, which were ocupied by four separate tenants, namely, Shri D. D. Awashi, Shri B. S. Jhalta, Shri B. R. Chopra and Shri M.S. Thakur. In addition thereto there are four servant quarters. According to tenant, Shri D. D. Awasthi vacated a residential set in 1980, consisting of two rooms, kitchen, bath and latrine which is now occupied by Ramesh Chand son of Ruli Ram, since 1981, and presently he is residing therein along with his wife, three daughters and a son. The residential set occupied by tenant Shri B. S. Jhatla consisting of two rooms, kitchen, bath and latrine fell vacant in the year 1987-88 and was occupied by Suresh Kumar, who is residing therein with his wife and two children. This residential set has now been renovated as per the plan Ex.PX and one more floor has been added with almost similar accommodation but the same is not yet complete and fit for occupation. The other two sets are still in occupation of tenants Shri B. R. Chopra and after the death of Shri M. S. Thakur by his widow. Out of the four servant quarters three are in occupation of old tenants and one is in occupation of Ramesh Chand and the same is being used as a godown.
22. After the additional issue had been framed and the tenant permitted to amend the reply, additional evidence has been brought on record about the nature of the property held by Ruli Ram at Jakhu. It is the petitioner's stand that it was a Joint Hindu Family property held by Ruli Ram as Karta of it. Treating it to be an ancestral property, a suit for possession by partition was filed by Suresh Kumar against his mother Pushpawanti, two brothers Ramesh Chand and Parveen Kumar, one married sister Ms. Saroj. During the pendency of the suit, the matter was referred for arbitration, upon which award Ex.PW 6/A was made and signed by the arbitrator and on 4th November, 1992, the same was made the rule of the court and decree in terms of the award was passed. This evidence has been adduced by the tenant in support of the contention that Phul Chand and his four sons, as a result of the final decree passed in Civil Suit 48 of 1948, got their respective shares in the Joint Hindu Family property. Ruli Ram tenant, amongst other properties got the property at Jakhu in the said partition. As such, the property at Jakhu was ancestral qua the sons of Ruli Ram. In this background, it is contended that whatever vacant possession of the property at Jakhu was obtained, the same was obtained by Ramesh Chand, Suresh Chand and there is no evidence on record that either Ruli Ram or after his death Pushpawanti and Parveen Kumar, who have been brought on record in his place in the eviction petition pertaining to residential portion, got possession of any residential set. It is also contended that a share, which a co-parcener gets on partition in an ancestral property is, in fact, ancestral property as regards his male issues, who take an interest in it by birth.
23. There is no doubt with the legal proposition that the share which a coparcener obtains on partition of ancestral property is ancestral property, as regards Ills male issues. They take an interest in it by birth. Such share, however, is ancstral property only as regards his male issues. As regards other relations, it is separate properly, and if the coparcener dies without leaving male issue, it passes to his heirs by succession. (See Mulla's Principles of Hindu Law, Sixteenth Edition, Section 223(4) at page 248). This position of law, as existed prior to the coming into force of the Hindu Succession Act, 1956 (Central Act No. 30 of 1956) (hereinafter referred to as 'the Succession Act') has been affirmed by the apex Court in Commissioner of Wealth Tax Kanpur etc. etc. v. Chander Sen etc., AIR 1986 SC 1753 : (1986 Tax LR 1753), in the following words:--
"It is clear that under the Hindu law, the moment a son is born, he gets a share in the father's property and becomes part of the coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore whenever the father gets a property from whatever source from the grandfather or from any other source, be it separated propety or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him."
24. This position now stands affected after the Succession Act became operative in 1956. The Succession Act has brought about some fundamental and radical changes in law of succession, which applied to Hindus by virtue of any text rule or interpretation of Hindu Law or any custom or usage having the force of law prior to 1956, which ceased to have any effect with respect to all matters expressly dealt with in the Succession Act. In Chander Sen's case (supra) and in the subsequent decision in Yudhister v. Ashok Kumar, AIR 1987 SC 558, the Supreme Court dealt with the overriding effect of the express provisions of the Succession Act. In Chander Sen's case the apex court approved the view expressed by the Allahabad High Court in Commissioner of Income-tax U.P. v. Ram Rakshpal Ashok Kumar (1968) 67 ITR 164 (All) and Khudi Ram Laba v. Commissioner of Income-tax, U. P. (1968) 67 ITR 364 (All) that the income from the assets inherited by son from his father from whom he has separated by partition can be assessed as income of the son individually since under Section 8 of the Succession Act, the property of the father, who dies intestate devolve on his son in his individual capacity and not as karta of his own family.
25. In the instant case, the ratio of the aforementioned judgment of Chander Sen's case will not apply, since what is claimed by the learned counsel for the tenant herein is that prior to the coming into force of the Succession Act, in the final decree passed in the year 1951, Ruli Ram got a share in the coparcenary property, which in his hand as Karta of the Joint Hindu Family property was ancestral qua his sons, who got a right in it by birth and in exercise of their right as coparceners, possession of the residential portions were obtained by Ramesh Chand and Suresh Kumar and not by the tenant Ruli Ram. This submission made by the learned counsel for the tenant deserves acceptance in view of the fact that the share which Ruli Ram Ram got, prior to corning into force of the Succession Act, in partition of the ancestral property in the year 1951 was ancestral property as regards his male issues. In the year 1980, during the life time of Ruli Ram, possession was sought by one of his male issues as coparcener, which was made a ground seeking eviction of the tenant Ruli Ram. There is no evidence that he himself got vacant possession of a residence.
26. In these circumstances, on both the scores, there is no ground to interfere with the findings of fact recorded by the Rent Controller in his order dated 23rd January, 1993, that after the commencement of the Act neither Ruli Ram, nor his heirs, who have been brought on record in the concerned eviction petition as his legal representatives acquired vacant possession of any residential accommodation, reasonably sufficient for their requirement.
27. As a consequence of the aforementioned discussion both the petitions are allowed and the impugned orders passed, by the appellate authority, Shimla, are quashed and set aside and resultantly the petitions for eviction filed by the landlord-respondent are dismissed, leaving the parties to bear their respective costs.