Delhi High Court
Dalip Kumar vs Om Parkash & Ors on 13 August, 2015
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 13th August, 2015.
+ RFA 73/2010
DALIP KUMAR ..... Appellant
Through: Mr. Khush Bir Singh, Adv.
Versus
OM PARKASH & ORS ..... Respondents
Through: Mr. Bhagwat Prasad Gupta, Adv. for
R-8 to 10.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. This appeal under Section 96 of Code of Civil Procedure, 1908 (CPC)
impugns the judgment and decree dated 31st August, 2009 of the Court of Sh.
Bhupesh Kumar, Additional District Judge (ADJ)-06 (West), Delhi of
dismissal of a suit filed by the appellant for partition of the estate left behind
by his father late Sh. Ram Prasad.
2. Notice of the appeal was issued. The respondents No.1, 4 & 5 died
during the pendency of the appeal and their legal representatives were
substituted vide orders dated 2nd May, 2013, 17th July, 2013 and 13th March,
2015 respectively. The Registrar (Appellate) has in orders dated 4th
December, 2014 and 20th January, 2015 recorded that all the respondents
have been served. However only the counsel for the appellant and the
RFA No.73/2010 Page 1 of 10
counsel for the respondents No.8 to 10 appear. The other respondents are
proceeded against ex-parte. Though the Trial Court record has not been
requisitioned but considering the nature of the controversy, need therefor is
not felt. The counsels have been heard.
3. The suit as aforesaid, was for the reliefs of partition and rendition of
accounts with respect to the estate of late Sh. Ram Prasad of whom the
appellant and the respondents are the legal heirs. The said estate comprises
of (i) tenancy rights in two commercial premises (shops) being at 28/24, East
Patel Nagar, New Delhi and at 4340, Ansari Road, Daryaganj, New Delhi;
(ii) tenancy rights in a residential premises at 1997, Ganj Mir Khan,
Daryaganj, New Delhi; (iii) a Maruti Car; (iv) jewellery; and, (v) cash in the
savings bank account (in Allahabad Bank, Ansari Road).
4. On the pleadings of the parties, there was no dispute that, the (i)
appellant; (ii) respondent No.1; (iii) respondents No.2 to 6 together; (iv)
respondent No.7; (v) respondents No.8 to 10 together; (vi) respondent No.11;
and, (vii) respondent No.12, have 1/7th share each in the estate of late Sh.
Ram Prasad. Only the following issues were framed in the suit:
"1. Whether the tenancy right can be partitioned? OPP.
2. Whether D-8 to the exclusion of all others has inherited
the tenancy in respect of shop no.4340, Ansari Road, Darya
RFA No.73/2010 Page 2 of 10
Ganj, N.D.? OPD-8.
3. Whether D-7 to the exclusion of all others has inherited
the tenancy right of shop no.28/24, Patel Nagar, N.D. and house
no.1997, Ganj Mir Khan, Daryaganj, Delhi? OPD-7.
4. Whether the plaintiff is entitled the decree of partition?
OPP
5. Whether the plaintiff is entitled to rendition of account?
OPP
6. Relief."
5. The learned ADJ, in the impugned judgment, has held:
(i) that the tenancy rights cannot be partitioned, owing to the small
size of the tenancy premises and owing to the landlords having not
been impleaded as parties to the suit and in the absence of the
landlords, the tenancy rights being impartible;
(ii) that the defendant No.8 and the defendant No.7 had failed to
prove Issues No.2 & 3 respectively, which were thus decided against
them;
(iii) that since the tenancy rights are impartible, the appellant is not
entitled to a decree for partition;
(iv) that the appellant, in his evidence, has not established any claim
for rendition of accounts.
6. The counsel for the appellant today also has confined his contentions
RFA No.73/2010 Page 3 of 10
to Issue No.1 only, decided against him, i.e. of the tenancy rights being not
partible.
7. The counsel for the respondents No.8 to 10 contended, (a) that the rent
of the tenancy premises at Daryaganj was Rs.100/- per month; (b) however
the appellant, after the demise of the father mixed with the landlord and
purported to increase the rent to Rs.2,200/- per month and in collusion with
the landlord, got a petition for eviction under the Delhi Rent Control Act,
1958 filed against himself only; (c) that the respondent No.8 on coming to
know of the same, applied for being impleaded therein and ultimately got the
eviction petition dismissed and appeal by the landlord thereagainst was also
dismissed. The only other argument is, that considering the small size of the
two commercial tenancy premises and the business being carried on therein
i.e. of a barber shop, there is no possibility of partition. It is also contended
that it is the respondent No.8 only who has been paying / depositing the rent
of the shop at Daryaganj to the landlord.
8. On enquiry, it is informed that while the shop at Daryaganj is in the
control of the respondent No.8, the shop at East Patel Nagar and the
residential house at Daryaganj are under the control of the respondent No.7.
9. It would thus be seen that the adjudication of the present appeal is to
RFA No.73/2010 Page 4 of 10
be confined to the finding on Issue No.1 only and which is a purely legal
finding to be returned i.e. whether a suit for partition with respect to the
tenancy premises would lie or not. At this stage, the question, whether the
tenancy premises owing to its small size permits or does not permit its
partition by metes and bounds, is not to be gone into. The said exercise is to
be undertaken after a preliminary decree for partition is passed and which
stage did not arise, owing to the suit itself having been dismissed. However,
while on the subject, I may record that even if the tenancy premises, owing
to its small size or otherwise owing to the restrictions placed by the landlord
are not divisible by metes and bounds, the same can always be partitioned by
one or more of the several legal heirs appropriating the tenancy rights to
himself / themselves to the exclusions of others in consideration of payment
of ovalty or otherwise to the other legal heirs.
10. The counsel for the respondents No.8 to 10 at this stage states that all
the other heirs have already surrendered their respective rights in the shop at
Daryaganj in favour of the respondent No.8 and it is only the appellant who
is fighting.
11. The learned ADJ, in the impugned judgment, has given the following
reasons for holding the tenancy rights to be impartible:
RFA No.73/2010 Page 5 of 10
(I) that the tenancy rights are governed by the Rent Act;
(II) that after the death of the predecessor, all the legal heirs are in
joint possession of the tenancy premises as tenants;
(III) that in case the tenancy premises are partitioned, then each of
the heirs would become individual tenants of the landlord in his / her
respective share / portion of the property and the same would amount
to creating another tenancy, which is prohibited by the Rent Act;
(IV) that if the tenancy premises are partitioned, then each of the
heirs would be individually liable to pay rent of his / her respective
shares / portions and in case any one of them fails to pay the rent, the
landlord would be entitled to evict;
(V) that similarly, if the tenancy rights are partitioned, others would
also become liable for eviction owing to a default by one;
(VI) that the landlord is unlikely to agree to such partition;
(VII) that without the landlord, no decree for partition of tenancy
rights can be granted.
12. Though attention of the learned ADJ was invited by the counsel for
the appellant/plaintiff to V.N. Sarin Vs. Major Ajit Kumar Poplai
RFA No.73/2010 Page 6 of 10
AIR 1966 SC 432, Lalit Kumar Seth Vs. S.R. Seth 2008 VIII AD (Delhi)
753 and Ram Lal Sachdev Vs. Smt. Sneh Sinha AIR 2000 Delhi 92, but the
learned ADJ has held the same to be not applicable since they pertain to the
perpetual leasehold rights under the Delhi Development Authority and not to
a tenancy protected under the Rent Act.
13. I am unable to concur with the reasoning aforesaid of the learned ADJ.
A tenancy right, specially in a premises governed by the Rent Act and from
which the landlord cannot evict save on the grounds provided in the Statute,
is a valuable asset and there is no bar in any law whatsoever to partition
thereof. Of course, the said partition has to be in accordance with law and
the Court cannot direct partition in a manner prohibited by the Rent Act.
Thus, the assumption by the learned ADJ, of the tenancy rights being per se
impartible, is found to be erroneous.
14. I have already recorded hereinabove, one of the manners in which the
tenancy premises can be partitioned. Similarly, if the tenancy premises and
the number of heirs permit, partition can also be by devising modalities for
use thereof by the heirs, without infringing the law governing the tenancy
premises or the terms and conditions of the agreement, if any, of tenancy.
Just like it has been held in judgments supra vis-a-vis constructions on
RFA No.73/2010 Page 7 of 10
leasehold land, that the bar to subdivision of the leasehold rights in land is
not a bar to subdivision of superstructure constructed thereon, with leasehold
rights in land continuing to jointly vest in all the heirs, the tenancy rights in a
premises can be partitioned by allocating exclusive use of different portions
thereof (if possible) to different heirs, with the tenancy rights jointly vesting
in all the heirs.
15. However as aforesaid, this is not the stage to consider the different
modes in which the tenancy premises can be partitioned.
16. If a valuable asset as tenancy rights is held to be impartible, it would
lead to the heir in control thereof appropriating the same to himself / herself,
to the detriment of others. Physical impartibility of an asset does not make it
impartible as the asset can always be permitted to be appropriated by an heir
who bids the maximum for the same.
17. This Court, in Iresh Duggal Vs. Virender Kumar Seth
MANU/DE/3068/2014 also held that tenanted premises can always be
partitioned for inter se use among the tenants and merely because there is an
inter se division amongst the tenants, for convenience of use of the tenanted
property, the same will not amount to subletting, assigning or parting with
possession of the tenanted premises inter se the tenants. It was further held
RFA No.73/2010 Page 8 of 10
that mere inter se division amongst co-tenants, for the purpose of user of the
tenanted premises, will not amount to subletting qua the landlord. It was yet
further held that tenanted premises are bound to be partitioned for inter se
use, without destroying the common tenancy rights. Reference in this regard
can also be made to Bharat Insulation Co. Vs. Suraj Parkash 221 (2015)
DLT 216.
18. The finding of the learned ADJ on Issue No.1 is accordingly set aside.
19. The onus of Issues No.2&3 was on the respondents/defendants No.7 &
8 respectively, who have been held to have not discharged the said onus and
to have not proved the said issues, which in the impugned judgment, have
been decided against the respondents No.7&8. No arguments in that respect
have been addressed today.
20. The counsel for the appellant has not pressed for partition qua the
other movable property or monies qua which also the suit was filed or for
rendition of accounts of any of the assets.
21. The appeal thus succeeds to the aforesaid extent. The judgment and
decree of the learned ADJ is set aside and a preliminary decree for partition
is passed declaring the (i) appellant, (ii) respondent No.1, (iii) respondents
No.2 to 6 together, (iv) respondent No.7, (v) respondents No.8 to 10
RFA No.73/2010 Page 9 of 10
together, (vi) respondent No.11 & (vii) respondent No.12 to be having 1/7th
share each in the two commercial tenancy premises at 28/24, East Patel
Nagar, New Delhi and at 4340, Ansari Road, Daryaganj, New Delhi and in
the tenancy rights in the residential premises at 1997, Ganj Mir Khan,
Daryaganj, New Delhi.
22. No costs.
23. Decree sheet be drawn up.
24. The parties to appear before the District Judge (West) on 28th
September, 2015 for further proceeding in accordance with law. The District
Judge (West) to either proceed further himself or mark the suit to any other
Judge.
25. Both counsels seek reference to mediation. The Court, before which
the suit is pending, shall make efforts for amicable settlement, either himself
or herself or through the Mediation Cell attached thereto.
Dasti.
RAJIV SAHAI ENDLAW, J.
AUGUST 13, 2015 bs (corrected & released on 5th September, 2015) RFA No.73/2010 Page 10 of 10