Allahabad High Court
Shyam Bihari Lal (Since Deceased) ... vs Santosh Chaturvedi on 28 November, 2007
Equivalent citations: 2008(1)AWC914
Author: Sunil Ambwani
Bench: Sunil Ambwani
JUDGMENT Sunil Ambwani, J.
1. Heard Shri K. M. Garg, learned Counsel for the petitioner-tenant. Shri Subodh Kumar appears for respondent-landlord.
2. The respondent-landlord has filed a caveat. Both the counsels were heard at the admission stage. Shri Subodh Kumar made a statement that he does not want to file counter-affidavit. With the consent of parties, the matter was heard and is finally decided.
3. The petitioners are tenant of House No. 83/72A, Tiwari Gali, Chhatta Bazar, Mathura. Shri Dwarika Prasad Chaturvedi, the father of the respondent-landlord filed an application for release of the premises for bona fide need for use and occupation under Section 21(1)(a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (in short the Act), being Suit No. 26 of 1979, Dwarika Prasad v. Shyam Bihari Lal. The prescribed authority dismissed the suit on 7.12.1979. Shri Dwarika Prasad filed a Rent Control Appeal No. 42 of 1979, which was dismissed on 16.9.1981. He filed Writ Petition No. 15416 of 1981, which was dismissed on 29.10.1999.
4. The petitioner claiming to be son and coparcener in the Hindu coparcenary from birth, of which Shri Dwarika Prasad Chaturvedi is karta filed a fresh release application on 10.2.2000 on the 41st day after the dismissal of the writ petition on the ground that he is coparcener in the Hindu coparcenary, which is the owner of the disputed shop. A partition was effected in the Joint Hindu family, recorded by registered partition deed dated 9.7.1959 in which the disputed shop and the right to practise 'jijmani' fell in the share of Dwarika Prasad and his mother Smt. Bitto Devi on one hand, and Shri Vitthal son of Shri Gopi Nath, the brother of Shri Dwarika Prasad on the other. On the date of this partition dated 9th July, 1959 the applicant Shri Santosh Chaturvedi was not born nor Shri Shyam Bihari was tenant in the shop. The partitioned joint Hindu family continued to hold shop in the Hindu coparcenary between his father and his grandmother. On his birth in the family he acquired interest in the coparcenary. A fresh partition took place between Dwarika Prasad; his son and his mother on 15.11.1999 (on the 16th day of the dismissal of the writ petition filed by Shri Dwarika Prasad) and in this family settlement recorded on 2.2.2000, as proof of oral partition dated 19.11.1999 the shop in dispute fell to the share of Shri Santosh Chaturvedi.
5. In the release application Shri Santosh Chaturvedi, claiming to be the owner and landlord stated that his wife did not keep good terms with his mother and thus he is living separately from his father and mother. He did not have any shop to start the business and served with various cloth merchants. He was engaged in the business of purchasing cloth from whole sellers and selling in commission to the retailers by moving from shop to shop. His income from the business was not sufficient to meet the needs of his family. A son and a daughter were born on 12.3.2002 and 3.4.2005 respectively increasing his family. The son is to be admitted in school and that his income of Rs. 1,500 per month was not sufficient to take care of the education and needs of his children. In between he had also served as salesman on a cloth shop for Rs. 2,500 per month upto June, 2004 and again served as salesman from 1.11.2004 for Rs. 2,500 per month. At present he is serving as salesman in a cloth shop at Rs. 3,000 per month. He does not have any income from 'jijmani' (right to practise priesthood), and which has fallen to the share of his father in the partition.
6. The petitioner-tenant denied the plaint allegation and stated that as soon as the father lost the proceedings and failed to get the shop released in his favour, his son set up a false plea of an oral partition in which the shop fell to his share as coparcener. The [petitioner-tenant stated that with the partition of the year 1959 set up by the landlord between his father, uncle and grandmother, his father and grandmother separated with the disputed shop and 'jijmani' of Sandila District Hardoi, Firozabad and Agra in their favour. With this partition the Hindu coparcenary came to an end as there was only one surviving male member namely Shri Dwarika Prasad left in the coparcenary. The respondent-landlord was not born in the family upto 1959 and thus he would not inherit any share in the family on his birth and would not inherit during the life time of his father, to seek release of the disputed shop. In any case it was submitted that the oral partition dated 15.11.1999 and the partition deed dated 2.2.2000 to keep the records is a document manufactured only for the purpose of filing the fresh release application. Having lost the proceedings Shri Dwarika Prasad Chaturvedi set up the device to file a fresh release application.
7. The prescribed authority dismissed the release application with the finding that the shop was not a property of the Hindu coparcenary. Shri Dwarika Prasad, the father of Shri Santosh Chaturvedi did not file the release application in 1979 as karta or member of the Hindu joint family and Hindu coparcenary. He had filed the application under Section 21 (1)(a) of the Act in his individual capacity. Shri Dwarika Prasad is recorded as the owner of the property in the municipal assessment (paper No. 33Ga/22-26). The electricity bills are also in the name of Shri Dwarika Prasad (Paper No. 33 Ga/27). The partition dated 15.11.1999 does not divide all the properties between the alleged members of the Joint induHindu family. The 'jijmani' (right to practise priesthood) was not divided. The sister of the applicant was not included in the partition. The ration card included all the members of the family. Shri Santosh Chaturvedi got a new ration card prepared on 5.9.2000, within three days of the filing of the written statement, and that the offer of Shri Dwarika Prasad to give a shop in the alternative to the tenant, is not bona fide as he had lost the proceedings for release of the shop in dispute. The decree dated 3.5.2001 in Suit No. 220 of 2001 (Paper No. 52Ga/2) was made on a compromise between the parties. This suit was not filed for partition but for declaration about the validity of the family partition. The tenant was not party to these proceedings and thus the decree is not binding upon him. The trial court then held, in its judgment dated 3.8.2001 that the applicant has not proved that he sold cloth in retail to the retailers and worked as salesman. Shri Ganesh Prasad, the witness with whom the applicant is alleged to have worked as salesman, had appeared as witness in favour of the applicant's father in P.A. Case No. 25 of 1979 and appears to be in collusion with the applicant-landlord. Shri Laxman Prasad, the other witness also appears to be in collusion with the applicant's father as Shri Dwarika Prasad, the applicant's father has given statement in favour of Shri Laxman Prasad in P.A. Case No. 84 of 1979. The applicant has not given the details of his income to show that he did not have sufficient means and need to occupy the shop for carrying on the business. The assertion that the landlord is living separately since 1995 is not proved by the ration card, which was joint upto the year 2001. The findings on comparative hardship were also recorded in favour of tenant, who has seven members surviving from the income from the shop.
8. The appellate court vide judgment dated 9.10.2007 allowed P.A. Appeal No. 1 of 2002 after reversing all the findings against the landlord recorded by the prescribed authority in favour of the petitioner-tenant. The Special Judge, Mathura allowing the appeal held that in the Hindu coparcenary a person inherit from his ancestors upto three degrees and that he acquires an interest in the coparcenary on his birth under the Hindu Mitakshara Law. Section 6 of the Hindu Succession Act has not affected any change in the old Hindu law. If, however, a member of the Hindu coparcenary dies after the enforcement of Hindu Succession Act, 1956, his interest will devolve on the remaining coparceners in accordance with the Hindu Succession Act. In the present case no one has died in the family of Shri Dwarika Prasad after 17.6.1956 and thus the property in the hands of Shri Dwarika Prasad shall be treated to be coparcenary property in which Shri Santosh Chaturvedi, the applicant-landlord will get a share on his birth. The oral partition dated 15.11.1999 recorded for memory on 2.2.2000, established by the decree in Suit No. 220 of 2001, will be treated to be effective on the day, when the members of the family decided to partition the property and on this day Shri Santosh Chaturvedi would become the owner and landlord of the shop.
9. The appellate court held that the tenant cannot be given benefit of Section 20(4) of the Act as they have denied the title of the landlord. It further found that Shri Santosh Chaturvedi has separated from the family in 1995 and a son and daughter were born in his family on 12.3.2002 and 3.4.2005. The affidavit of the witnesses, who had employed him in the year 2004 have proved that he does not have sufficient income to maintain his family and has no other source of income. The allegations regarding shop in front of Mandir in Shyam Ghat and Shop No. 83/9Sa alleged to be vacant, are incorrect. The alleged shop in front of the temple is a place, where disciples make prayers. It is not a shop, which can be used for business. Further it was found that Shop No. 83/9Sa fallen to the share of his father measures only 2' 6" x 26'. A place with such measurements cannot be used for selling cloth. The appellate court then found that this shop measuring 2'6" x 26' has been offered in the alternative to the tenant and will serve his purpose for doing general merchandise business. The appeal was allowed and the disputed shop was released on the condition that alternate shop No. 83/9Sa area 2'6" x 26' at Chatta Bazar will be let out by the respondent-landlord to the petitioner at the rate of Rs. 100 per month giving rise to this writ petition.
10. Shri K.M. Garg, learned Counsel for the petitioner would contend that the appellate court has grossly erred in law in holding that joint Hindu family partitioned with a male member and mother after the enforcement of the Hindu Succession Act, 1956 will continue to be coparcenary in which son born to the surviving male member will acquire interest by birth in future. The making of an oral partition within 14 days of the dismissal of the writ petition upholding the orders rejecting the release application and filing of the application for release of the same shop afresh by the son claiming that shop has come into share after such a partition is a mala fide attempt to get the shop released. Shri Santosh Chaturvedi could not have acquired a share in the joint Hindu family treating to be a Hindu coparcenary on his birth in the family and then claim oral partition immediately after his father lost the proceedings to claim release of the same shop. He further submits that Shri Santosh Chaturvedi, the landlord could not prove that he was unemployed and had bona fide need for use and occupation of the shop in dispute. Shri Garg further submits that offer of the shop measuring 2'6" x 26' for general merchandise business is ridiculous and that the petitioner-tenant has not accepted the offer. The appellate court could not have written the contract of tenancy of shop, which was wholly unsuitable for him and directed him to shift that shop. The findings on comparative hardship were also arbitrary and perverse. The petitioner has greater need with family of 7 members surviving on the income from the disputed shop.
11. Shri Subodh Kumar appearing for the respondent-landlord submits that on partition in the year 1959 Shri Dwarika Prasad and his mother Smt. Bitto Devi continued to be the joint Hindu family with partitioned share in which Shri Santosh Chaturvedi would acquire interest by birth. The oral partition dated 15.11.1999 was a bona fide family settlement recorded on 2.2.2000. It was declared by civil court in Suit No. 220 of 2001 to be valid. Shri Santosh Chaturvedi became the owner and landlord of the shop in dispute on 15.11.1999. He was not engaged in any business and had bona fide need to occupy the shop and to maintain his family from the income of the cloth business proposed to be started in the shop. The hardship of the tenant was sufficiently met by the release of the shop offered by the landlord. He submits that the findings recorded by the appellate court are findings of fact, which do not require interference in writ jurisdiction.
12. The Hindu Succession Act, 1956 has brought about radical change in law of succession without abolishing Joint family and joint family properties. Section 6 of the enactment recognises the rights on death of a coparcener of certain of his preferential heirs to claim an interest in the property, that would have been allotted to him, if there had in fact been a partition immediately before his death. A Hindu coparcenary is much narrower body than the joint family and includes only those persons, who acquire an interest in the joint or coparcenary property by birth. Sons, grandsons and great grandsons of the holder of the joint property, three generation next to the holder in any unbroken male descent form such a coparcenary. A coparcenary is purely a creature of law. It cannot be created by the act of parties except in the case of adoption. According to D.F. Mulla in the Principles of Hindu Law, Section 216, the essence of a coparcenary under the Mitakshara law is unity of ownership. In the undivided family governed by Mitakshara law no individual member can predicate any definite share in the undivided property. It is only on partition that he becomes entitled to definite share. The females according to D.F. Mulla in Section 207 cannot be coparceners under Mitakshara law. The mother is not coparcener with her son nor mother-in-law with her daughter-in-law.
13. In Commissioner of Wealth-tax, Kanpur v. Chander Sen , the Supreme Court held that Hindu Succession Act, 1956 was enacted to amend and codify the law relating to intestate succession among Hindus. The Schedule indicates heirs in Clause 1 to include son and does not include sons' son but does include son of predeceased son, to say that when son inherits the property in situation contemplated by Section 8, he takes it as karta of his own undivided family, would mean that though the son of a predeceased son and not son of son, who is intended to be included under Section 8 to inherit, the later would, applying the old Hindu law get a right by birth of the said property contrary to the scheme outlined in section. It would amount to creating two classes among the heirs mentioned in Class I.
14. In Yudhishter v. Ashok Kumar . following the Commissioner of Wealth-tax, Kanpur v. Chander Sen, (supra), it was observed that the right accrues to a son not on the death of the father or inheritance from the father but with the very fact of his birth. Whenever father gets the property from whatever source from the grandfather or from any source, be it separate property or not, his son should have a share in that and that it will become part of joint Hindu family of his son and grandsons and other member, who form joint family with him. This position has been affected by Section 8 of the Hindu Succession Act, 1956. When the son inherits the property in situation contemplated by Section 8, he does not take it as a member of his own undivided family but takes it in his individual capacity. The Supreme Court observed:
This Court observed that this position has been affected by Section 8 of the Hindu Succession Act, 1956 and, therefore, after the Act, when the son inherited the property in the situation contemplated by Section 8, he does not take it as karta of his own undivided family but taken it in his individual capacity. At pages 577 to 578 of SCC at p. 1760 of AIR of the report this Court dealt with the effect of Section 6 of the Hindu Succession Act, 1956 and the commentary made by Mulla, 15th Edn. Pages 924-926 as well as Mayne's on Hindu Law 12th Edition pages 918-919. Shri Banerji relied on the said observations of Mayne on 'Hindu Law', 12th Edn. at pages 918-919. This Court observed in the aforesaid decision that the views expressed by the Allahabad High Court and Madras High Court, the Madhya Pradesh High Court and the Andhra Pradesh High Court appeared to be correct and was unable to accept the views of the Gujarat High Court. To the similar effect is the observation of learned author of Mayne's Hindu Law 12th Edn. Page 919. In that view of the matter it would be difficult to hold that property which devolved on a Hindu under Section 8 of the Hindu Succession Act, 1956 would be H.U.F. in his hand vis-avis his own sons. If that be the position then the property which devolved upon the father of the respondent in the instant case on the demise of his grandfather could not be said to be H.U.F. property. If that is so, then the appellate authority was right in holding that the respondent was a licensee of his father in respect of the ancestral house.
15. The same view was taken in Sheela Devi and Ors. v. Lal Chand and Anr. .
16. Shri Subodh Kumar has relied upon Valliammai Achi v. Nagappa Chettiar and Anr. and Sher Singh and Ors. v. Gamdoor Singh . In this case, it was held that right in a Mitakshara family, which a son takes on his birth in the joint family in ancestral property, is wholly independent of his father and that the property held by the family assumes character of coparcenary property. Once existence of joint family was not in dispute, necessarily property held by the family assumes the character of coparcenary property and every member of the family would be entitled by birth to a share in the coparcenary property unless there is separate pleading and proof that some of the properties or all of the properties are his self acquired properties. In Eramma v. Veerupana and Ors. , the Supreme Court held that Section 8 of the Hindu Succession Act, is not retrospective in operation and where male Hindu died before the Act came into force, that is where succession opened before the Act, Section 8 of the Act will have no application.
17. The other judgments cited by the parties are in respect of bona fide need and comparative hardships. Whereas the petitioner-tenant has alleged that there was no proof of income, the respondent-landlord has relied upon those judgments in which the need of landlord for setting up a business in a shop, where he did not have any suitable alternative accommodation and the fact that the tenant has not made any attempt to find out an alternative shop were held to be findings of fact with which the writ court should not ordinarily interfere.
18. A female cannot be a coparcener in Mitakshara family. D.F. Mulla in the Principles of Hindu Law, Section 217 has summed up the rights of a female in coparcenary. In the partition in 1959 after the enforcement of Hindu Succession Act, 1956 between two brothers and the mother Shri Dwarika Prasad Chaturvedi separated alongwith his mother. Shri Santosh Chaturvedi, the respondent was not born at that time. The Joint family continued but with this partition the coparcenary came to an end. The mother could not be a member of coparcenary and that coparcenary could not have existed with the father of the petitioner alone. Shri Santosh Chaturvedi, his son could not have acquired a share in the property and Interest in the property as coparcener and would not become the member of joint Hindu family before his birth. The partition as such set up after Shri Dwarika Prasad lost the proceedings by oral partition dated 15.11.1999 recorded on 2.2.2000 could not have given the shop in the share of Shri Santosh Chaturvedi, who was not born at the time, when his father and grandmother had separated from the joint family. He would inherit only after the death of his father. The question of law decided by the appellate court that Hindu coparcener would continue and that the petitioner would acquire interest in the coparcenary by birth and could have claimed partition in 1999, is based on the reasoning that the Hindu Succession Act, 1956 would be applicable only after any person dies and legal representatives claiming interest under Section 8 of the Act.
19. The reasoning does not take into account that the coparcenary came to an end with only one male member in the divided interest in 1959. The grand mother could not be a member of coparcenary. The Hindu coparcenary did not survive to allow a male member to acquire interest by birth on any future date. The existence of coparcenary could not have waited for his son to be born in the family in future. Shri Santosh Chaturvedi as such did not have any right to seek partition of the property in the year 1999.
20. Further I find substance in the findings recorded by the prescribed authority that the evidence on record did not support existence of the Joint Hindu family after 1959. The property was recorded in the individual name of the father of the respondent and all property taxes and bills were paid individually in the name of the father. Having lost the proceedings upto High Court he set up a story of the existence of Hindu coparcenary in which his son has acquired interest on his birth and filed fresh application for bona fide need claiming to be owner and landlord of the property on the 41st day of the dismissal of the writ petition by the High Court. He did not set up any case of joint Hindu family or Hindu coparcenary in the earlier release application, which he lost upto High Court. The son as such was not entitled to plead that the joint family continued and that there was coparcenary still in existence in which he acquired interest by birth. The attempt to again seek release of the accommodation by treating the son as the owner and landlord of the shop in dispute was not bona fide.
21. I also find that the appellate court committed a mistake in law in directing the alternative shop with the landlord to be let out to the tenant. When he found the shop measuring 2'6" x 26' to be unsuitable for cloth business, he could not have held the same shop to be suitable for general merchandise business. The reasoning was overstretched to make the same shop suitable for the tenant. The tenant did not accept the offer. The appellate court as such could not have written the contract between them by judicial order directing letting of the shop and fixing presumptive rent without the consent of the parties.
22. The writ petition is allowed. The judgment and order dated 9.10.2007 passed by the special Judge, Mathura, in P.A. Appeal No. 1 of 2002, Santosh Chaturvedi v. Shyam Bihari Lal, is set aside. The judgment of the prescribed authority dismissing the release application is affirmed. The release application under Section 21(1)(a) of the Act shall stand dismissed.