Delhi High Court
Ashok Kumar & Anr vs Ram Avtar Gupta on 12 July, 2017
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 12th July, 2017
+ RC.REV. 308/2017
ASHOK KUMAR & ANR ..... Petitioners
Through: Mr. Sachin Puri, Mr. Sanjeev
Nasiar and Ms. Mehak Tanwar,
Advs.
Versus
RAM AVTAR GUPTA ..... Respondent
Through: Mr. T.S. Ahuja, Mr. Varun Ahuja
and Mr. Abhishek Gupta, Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
Caveat No.624/2017
1. The counsel for the caveator/respondent has appeared.
2. The caveat stands discharged.
CM No.23962/2017 (for exemption)
3. Allowed, subject to just exceptions.
4. The application is disposed of.
RC.REV. 308/2017 & CM No.23961/2017 (for stay)
5. This Revision Petition under Section 25-B(8) of the Delhi Rent
Control Act, 1958 impugns the order (dated 27th March, 2017 of
Additional Rent Controller (ARC)-02, Central District, Tis Hazari
Courts, Delhi) of dismissal of the application filed by the two
petitioners/tenants for leave to defend the petition for eviction [being E-
68/16 (New No.77368/16)] filed by the respondent/landlord under
Section 14(1)(e) of the Act for eviction of the petitioners/tenants from
shop No.2915, Arya Pura, Sabzi Mandi, Delhi-07 as well as the
consequent order of eviction.
RC.REV. 308/2017 Page 1 of 7
6. Having gone through the paper book, I have at the outset enquired
from the counsel for the respondent/landlord, whether not the petition for
eviction itself was barred by Section 14(6) of the Act.
7. Section 14(6) of the Act provides that "where a landlord has
acquired any premises by transfer, no application for the recovery of
possession of such premises shall lie under sub-section (1), on the
ground specified in clause (e) of the proviso thereto, unless a period of
five years have elapsed from the date of the acquisition".
8. The respondent/landlord in para 18(a)(i) of the petition for
eviction from which this petition arises has inter alia stated as under:
"18(a)(i) BONAFIDE PERSONAL NECESSITY
That petitioner is the absolute owner of the property bearing
no.2912 to 2919, Arya Pura, Subzi Mandi, Delhi-110007 &
tenanted suit premises i.e. Shop No.2915 is one of the parts of the
above stated property. That the late father of the petitioner i.e. Sh.
Baisakhi Ram Gupta has purchased the above said property from
Lt. Sh. Bal Krishan Dass. Thereafter, Late father of petitioner
who died on 30/03/2000 left a will made on 12.05.1976 wherein
the shop no.2912 and 2913 of aforesaid property along with the
residential accommodation was inherited to petitioner and shop
no.2914 to 2919 of aforesaid property with residential
accommodation was inherited to Sh. Ghan Shyam Dass Gupta,
brother of the petitioner.
That on 25th July, 2014, the Elder brother of petitioner who was
previously co-owner of the aforesaid property relinquished,
release and renounces his all right, Title and interest of the above
mentioned property in the name & favour of the petitioner through
relinquished deed making the petitioner the absolute owner of the
above stated property. That Late father of the petitioner has
RC.REV. 308/2017 Page 2 of 7
purchased the aforesaid property along with the continuing
tenancy with all rights..."
9. It being the plea of the respondent/landlord, (a) that the father of
the respondent/landlord was the owner/landlord of the shop in the
tenancy of the petitioners/tenants; (b) that the father of the
respondent/landlord died leaving a Will dated 12th May, 1976
whereunder the shop in the tenancy of the petitioners/tenants was
bequeathed to Sh. Ghan Shyam Dass Gupta, brother of the
respondent/landlord; (c) that the said Sh. Ghan Shyam Dass Gupta,
brother of the respondent/landlord vide deed dated 25 th July, 2014
relinquished and released all his right, title and interest in the said shop
in favour of the petitioners/tenants, the respondent/landlord acquired the
shop in the tenancy of petitioner/tenants by transfer, on execution of
relinquishment deed dated 25th July, 2014 and could not have maintained
a petition for eviction under Section 14(1)(e) of the Act for a period of
five years therefrom i.e. till 24th July, 2019.
10. The only response of the counsel for the respondent/landlord is
that the Will of the father was under challenge and that the respondent /
landlord acquired the shop in tenancy of petitioners/tenants not by
transfer but by inheritance.
11. However the same is not the pleaded case in para 18(a)(i) as
reproduced above, where it is categorically stated that the father of the
respondent/landlord, who was the owner, died bequeathing the shop in
the tenancy of petitioners/tenants to the brother of the
respondent/landlord who has on 25th July, 2014 executed a
relinquishment deed thereof in favour of the petitioners/tenants.
RC.REV. 308/2017 Page 3 of 7
12. The counsel for the respondent/landlord elsewhere also is unable
to show any such plea having been taken.
13. The senior counsel for the petitioners/tenants on asking has
handed over from his file a copy of the relinquishment deed filed by the
respondent/landlord before the Additional Rent Controller and which is
taken on record. A perusal of the same also shows mention of the Will
dated 12th May, 1976 of the father therein. There is no mention of any
challenge to the Will in the said relinquishment deed either. Rather, a
perusal of the Will of the father of the respondent/landlord, filed by the
respondent/landlord before the Additional Rent Controller and copy of
which is also handed over in the Court and taken on record, shows that
the shop in the tenancy of the petitioners/tenants was given exclusively
to Sh. Ghan Shyam Dass Gupta and not jointly to Sh. Ghan Shyam Dass
Gupta and respondent/landlord as stated in the relinquishment deed,
obviously to avoid payment of ad valorem stamp duty and to have the
transfer effected by payment of stamp duty of Rs.100/- only.
14. Once the father of the respondent/landlord under his Will
bequeathed separate portions of his property to the respondent/landlord
and his brother, the respondent/landlord and his brother, on demise of
their father, became exclusive owners of the respective portions
bequeathed to them and would not in law be joint owners of the entire
property. Such separate property could be transferred to the other or to
any other person, only by sale or gift and both of which would be
„transfer‟ within the meaning of Section 14(6) supra.
15. Undoubtedly acquiring property by inheritance, even if under a
Will, does not fall within the meaning of „transfer‟ in Section 14(6) but
RC.REV. 308/2017 Page 4 of 7
the respondent/landlord, owing to the Will pleaded of the father, did not
inherit the shop in the tenancy of petitioner/tenants.
16. Though the respondent/landlord in the petition for eviction as well
as in the relinquishment deed, has described himself and his brother as
„co-owners‟, but once separate portions of the property had been willed
to them, it cannot be said that the respondent/landlord had any share in
the portion bequeathed to his brother and vice versa.
17. I may mention, a relinquishment deed on a stamp paper of
Rs.100/- can be executed and registered only when both parties have a
share in the same property and when share of one is being surrendered
and other being enlarged. That, as aforesaid, is not the case. The
respondent/landlord, on demise of the father, did not acquire any share in
the shop in tenancy of petitioners/tenants, for the same to be enlarged to
exclusive share by his brother surrendering his share in favour of the
respondent / landlord. Even otherwise, when the true character of the
deed, though titled as a Deed of Release or Relinquishment, is of transfer
or conveyance of the property in favour of one who prior thereto had no
share in the property conveyed, it would amount to a transfer /
conveyance notwithstanding the nomenclature given thereto. Reference
in this regard may be made to Kuppuswamy Chettiar Vs. A.S.P.A.
Arumugam Chettiar AIR 1967 SC 1395. Reference may also be made
to Srichand Badlani Vs. Govt. of N.C.T. of Delhi 2013 SCC Online Del
5128.
18. The respondent/landlord as per his own admission did not become
owner/landlord of the shop in tenancy of the petitioners/tenants on the
RC.REV. 308/2017 Page 5 of 7
death of his father but became so only on execution of relinquishment
deed on 25th July, 2014.
19. In view of the aforesaid admitted position, the respondent/landlord
cannot file a petition for eviction under Section 14(1)(e) of the Act till
expiry of five years from 25th July, 2014.
20. The purport of Section of Section 14(6) is to prevent abuse of
Section 14(1)(e), by owners/landlords to whom ground of eviction under
Section 14(1)(e) is not available, transferring their properties in favour of
persons who can invoke the same. The possibility of the brother of
respondent/landlord transferring shop in tenancy of petitioners/tenants to
the respondent/landlord, being unable to invoke Section 14(1)(e)
himself, cannot be ruled out.
21. The counsel for the respondent/landlord at this stage has drawn
attention to the rent receipt at 177 of the paper book filed by the
petitioners/tenants along with their application for leave to defend and
has contended that in the said rent receipt, the property is described as of
Sh. Ghan Shyam Dass Ram Avtar.
22. The said description in the rent receipt, in view of the categorical
averments in the petition for eviction filed, is of no avail.
23. Though the petitioners/tenants, neither in the leave to defend
application nor before the ARC nor in the Memorandum of this petition
nor before this Court have taken the said ground and did not even bother
to file the copy of the relinquishment deed or the Will along with the
paper book but the aforesaid being a legal ground and it being the duty
of the Court to ensure that the order of eviction is in accordance with
law, this Court is entitled to consider the said aspect.
RC.REV. 308/2017 Page 6 of 7
24. Rather, I am surprised that the learned Additional Rent Controller,
inspite of being a specialised Tribunal, glossed over the said fact and
even without the petitioners/tenants taking the said ground not
considering the same before passing an order of eviction.
25. A copy of this order be forwarded to the Annual Confidential
Report (ACR) Committee of this Court of the learned Additional Rent
Controller.
26. Thus, not only is this petition entitled to succeed but the eviction
petition is liable to the dismissed on the ground of being barred by
Section 14(6) of the Act.
27. Accordingly, the impugned order is set aside by setting aside the
order of eviction and by dismissing the petition for eviction under
Section 14(1)(e) of the Act as barred by Section 14(6) of the Act.
No costs.
RAJIV SAHAI ENDLAW, J.
JULY 12, 2017 „bs‟..
RC.REV. 308/2017 Page 7 of 7