Delhi High Court
Hari Sharma vs Mr. Amarjit Singh Ramana on 27 July, 1999
Equivalent citations: 1999IVAD(DELHI)794, 80(1999)DLT611, 1999(50)DRJ781, ILR1999DELHI129, 1999RLR427, 1999 A I H C 3625, (1999) 50 DRJ 781, (1999) 2 RENCR 252, (1999) 2 RENTLR 415, (1999) 80 DLT 611
ORDER Vijender Jain, J.
1. Aggrieved by the order of dismissal of the petition on the ground of Section 14(1)(h) of the Delhi Rent Control Act by the Addl. Rent Controller and Rent Control Tribunal on the ground that the petitioner has failed to made out a case under proviso (h) of Section 14(1) of Delhi Rent Control Act, the appellant/landlord has filed this second appeal.
2. Respondent is a tenant in respect of premises bearing No. 81, Pashchmi Marg, Vasant Vihar, New Delhi having five bed rooms, drawing room and dining room on a plot of land admeasuring 800 sq. yards. Premises were let out to the respondent at the rate of Rs. 1500/- per month by a registered lease-deed dated 1.4.1970 for a period of three years for residential purposes with option for another two years. Lease was finally expired in the end of March, 1975 by efflux of time.
3. Present eviction petition was filed in the year 1985. The ground taken was that the wife of the tenant Smt. Sudesh Ramana has built a very commodious residential house bearing No. S-248, Panchsheel Park, New Delhi, which was then let out at a monthly rent of about Rs. 10,000/- per month. It was further contended that the respondent and his wife were on very good terms and were living together in the property in question throughout. It was further averred in the petition that the wife of the respondent has also received another residential house (No. B-11, Swami Nagar, New Delhi) under a Will executed by her mother. The stand of the wife of tenant, Smt. Sudesh Ramana was that she was the absolute and exclusive owner of house No. S-248, Panchsheel Park, New Delhi, plot of the said house was acquired by her even prior to her marriage, she was independently assessed to income-tax and she raised the construction by her own funds on the said plot of land and her husband has no legal right to live in the house. She stated that she will not allow her husband or anybody else from his family to reside in it. It was testimony of RW 9-Smt. Sudesh Ramana before the Addl. Rent Controller that RW 9, her husband and husband's parens have a common kitchen/mess. They were living together in the suit premises as one unit. There was one kitchen and common mess. This is how the trial court has dealt:-
"To my mind there is no force in the contention of learned counsel for the petitioner. Unity of the family may require that a husband would always live with the wife. But it does not mean in law that the property of wife belongs equally to the husband. Admittedly the fact of cordial relations between the tenant and his wife of common and one mess and residence in the suit premises as a single family unit does not in law mean that the tenant would have equal right in property acquired by wife."
4. The Addl. Rent Controller on the basis of the testimony of respondent that property at Swami Nagar exclusively belongs to his son Ravinder Singh after the death of his mother-in-law on the basis of a will left by her also held that tenant had no right in the property at Swami Nagar, New Delhi. It was also on record that said Ravinder Singh was a minor at the time of execution of the will and the wife of the tenant was the sole executrix of that Will. It was further mentioned in the said Will that Smt. Sudesh Ramana shall let out the said property for the benefit of Ravinder Singh only. Therefore, the Addl. Rent Controller held that acquisition of house No. B-11, Swami Nagar, New Delhi by the said Ravinder Singh does not bring the tenant within the mischief of proviso (h) of Section 14(1) of the Delhi Rent Control Act.
5. It was held by Addl. Rent Controller that acquisition by the wife of S-248, Panchsheel Park, the respondent/tenant had no legal right to occupy the said house, Addl. Rent Controller relied his judgment on account of B.R. Mehta Vs. Smt. Atma Devi & Ors. (33) 1987 DLT 154. Rent Control Tribunal also fell in the same error applying wrongly the ratio of B.R. Mehta's case (supra). The Rent Control Tribunal held that there was no evidence to show that the respondent/tenant is exercise any control in the matter of management or use of house No. S-248, Panchsheel Park, New Delhi.
6. Mr. Ishwar Sahai, learned counsel for the petitioner has contended that Prem Chand's case (supra) was a decision rendered by three Hon'ble Judges of Supreme Court and the latter judgment in B.R. Mehta's case was a judgment delivered by two Hon'ble Judges of the Supreme Court and he has contended that the proper course for the High Court is to find out and follow the opinion expressed by the larger bench of the Supreme Court in preference to those preferred by the smaller Benches of the Supreme Court. In support of his submission has cited The State of U.P. Vs. Ram Chandra Trivedi . In this case, the Supreme Court held as under:
"Thus on a conspectus of the decisions of this Court referred to above, it is obvious that there is no real conflict in their a ratio decidendi and it is no longer open to any one to urge with any show of force that the constitutional position emerging from the decisions of this court in regard to cases of the present nature is not clear. It is also to be borne in mind that even in cases where a High Court finds any conflict between the view expressed by larger and smaller benches of this Court, it cannot disregard or skirt the views expressed by the larger benches. The proper course for a High Court in such a case, as observed by this Court in Union of India Vs. K.S. Subramaniam [Civil Appeal No. 212 of 1975, decided on July 20, 1976] to which one of us was a party, is to try to find out and follow the opinion expressed by larger benches of this court in preference to those expressed by smaller benches of the Court which practice, hardened as it has into a rule of law is followed by this Court itself."
7. In support of this contention Mr. Sahai has also cited another judgment of this Court V.K. Malhotra & Anr. Vs. Smt. Ranjit Kaur reported in 1985 (1) RCJ 250, which has been relied upon in Prem Chand's case.
8. This matter only requires the interpretation of the case of Prem Chand Anr. Vs. Sher Singh 1981 DRJ 287 and B.R. Mehta's case (supra). Former was a decision of three Hon'ble Judges of the Supreme Court and the latter was the judgment of two Hon'ble Judges of the Supreme Court. In Prem Chand's case (supra), the Supreme Court was very much conscious of the provisions of clause (h) of proviso to sub-section (1) of Section 14 of the Act.
It is a short judgment. I would like to a quote it. Y.V. Chandrachud, C.J. spoke for the Bench :
"The respondent-tenant is out of possession since October 9, 1976. He was dispossessed during the endency of the appeal before the Rent Control Tribunal.
The respondent's son is a business executive, who was, at one time, allotted a flat by his employers. On December 12, 1980 the respondent's wife purchased a flat at Saket from the Delhi Development Authority, at a cost of about Rs. 1,20,000/-. The flat is available to the respondent though his explanation is that it has been let out by his wife to their son. The respondent has now no case to be put back in possession of the flat in dispute.
"We had allowed the appellants to amend their application for possession by pleading that the respondent has acquired possession of a vacant residence within the meaning of Section 14(1)(h) of the Delhi Rent Control Act, 1959 of 1958. The respondent has filed his reply to the amended application. Having considered the averments of the parties on the point at issue we are satisfied that the respondent has through his wife acquired vacant possession of a residence in Delhi. The application of the appellants for possession of the flat is therefore allowed and the judgment of the High Court is set aside. There will be no order as to costs throughout."
9. The learned counsel for the respondent has argued at length to bring home the point that there is no domain of the tenant over the property of his wife. Mr. Makhija has taken great pains in explaining that the evidence which was brought before the Addl. Rent Controller overwhelmingly suggested that the total money on construction was spent by the wife of the tenant. The plot at Panchsheel Park was acquired by the wife of the tenant prior to the marriage and, therefore, there was no legal right on the basis of which it could be said that there was any acquisition of a vacant residential accommodation by the tenant and, therefore, tenant could not be brought within the mischief of Section 14(1)(h) of the Act.
10. I am afraid that would not be proper course to decide as to whether any acquisition of a vacant residential house by wife would amount to acquisition by tenant. There was nothing on record suggesting that there was a dispute between the wife and the husband either in terms of their living together or otherwise. There was nothing on record to show that they were not sharing the common mess, rather, the evidence on record was to the contrary. It was brought on the record that wife of the tenant and other children were living together under the same roof, they had a common kitchen. In such a case the ratio of B.R. Mehta's case (supra) regarding domain has to be construed. Whether, that domain which B.R. Mehta's case spoke of, would be in the nature of domain in terms of contribution of finances towards acquisition of alternative accommodation? Let us go to the ethos of our society in the realm of marriage, according to which the husband will have domain over wife not only in respect of physical terms but also to what she is possessed of including property. But we may not adopt that definition. What has to be seen in such a context to determine whether the family as a unit is living together, sharing a common kitchen and mess we have to see ground realities.
11. In a broader conspectus of universe family is the smallest unit and when husband, wife, parents and children hold the property jointly, they would be considered ordinarily as members of one unit and the requirement of one would be the requirement of the other. In view of the evidence on record that the tenant and his wife were living together one has acquired suitable residential accommodation and there is no evidence to the effect that they had not been looking upon themselves as one unit the acquisition of suitable residential accommodation by wife would be considered to be the acquisition of a suitable residential accommodation by the tenant. As has been stated earlier, there is nothing on record which has been brought to show that the husband and wife were not having cordial relations or there was inter se dispute between both of them or they were not living as one unit. Look at the testimony of respondent-RW 4. He has stated that his wife and son and his parents were living with him. In cross-examination he has further admitted that his wife and his son are living with him permanently in the suit premises since the time they took the premises on rent in 1975. He further stated in the cross-examination that they had a common kitchen. In this case the wife of the tenant Smt. Sudesh Ramana also appeared in the witness box as RW 9. Specifically in the cross-examination she deposed:-
"It is correct that relation between myself and my husband and our son has always been cordial."
12. That being the situation can it be said that the acquisition of residence at Panchsheel Park by wife wherein she is realising rent at the rate of Rs. 50,000/ per month, whereas the husband tenant before me is paying rent at the rate of Rs. 1,500/- per month be permitted to do business on account of protection provided under the Act? The answer is in the negative.
13. There is no dispute between husband and wife. They constitute normal Hindu family where husband would have domain over his wife's property until disharmony, distrust or separation is pleaded. This view was taken by Punjab & Haryana High Court in the case of Laxmi Dass Aggarwal Vs. A.K. Bahal 1986(1) RCJ 190. Similar view was taken by Gujarat High Court in Hamukhlal Raichand Shah Vs. Arvind bhai Mohanlal Kapadia 1988 (2) RCJ 573.
14. As a matter of fact, the law has been succinctly reflected in the judgment of N.K. Rastogi Vs. karori Lal 1993 RLR 358 :
"The close analysis of this judgment given in case of B.R. Mehta (supra), which was a judgment given by two Hon'ble Judges, would show that ratio of which can be called from the judgment given in the case of Prem Chand's case (supra) a judgment given by three Hon'ble Judges, had not been in any manner whittled down. The legal position of now very clear that it is not that every acquisition of a residential accommodation by the wife would mean acquisition of a residence by the tenant, but it will depend upon the facts of each case in order to decide whether alternate residential accommodation has become available to the tenant over which the tenant and his family members have a domain."
15. I am of the considered view that in B.R. Mehta's case (supra) the supreme Court has not whittled down the decision of Prem Chand's case (supra). In B.R. Mehta's case, Supreme Court held:-
"The said decision rested on the facts of the case. There in that case, this Court found that the respondent's wife had purchased a flat in Saket and further found that the flat was available to the respondent. In those circumstances it was held that there was acquisition of vacant possession of a residence and as such Section 14(1)(h) of the Act would be attracted. It cannot howev er he laid down as a general proposition of law that acquisition of flat by the wife in all circumstances would amount to acquisition of flat by the tenant."
What is necessary is that unless there is a positive evidence and here there is none, of acquisition of property prima facie in the name of the tenant or allotment or flat to the tenant, it cannot be said to have been acquired by or allotted to some members of the tenant's family other than the wife in her name. That cannot defeat the tenant's right under Clause (h) of Section 14(1). If there is such an acquisition by or on behalf of the tenant then the tenant and members of the tenant's family would have dominion over the acquired residence. Such acquisition would bring to the tenant the mischief of Section 14(1)(h) of the Act.
16. In B.R. Mehta's case, the Supreme Court was considering allotment of a house to a wife who was a Government employee and was allotted a residential flat by Government due to her being in employment as a teacher in a Government school. The fact of that case was that the wife had started living in the said flat alone. In that case, the plea was taken that the relations between the husband and wife were not amicable as there was difference of opinion. Therefore, the Supreme Court in that case held that it cannot be laid down as general proposition of law that acquisition of a flat by the wife in all circumstances would amount to acquisition of flat by the tenant. To my mind the word 'domain' occurring in B.R. Mehta's case (supra) was in view of the special facts and circumstances of that case. That is how the Supreme Court has summed up in paragraph six of the judgment :
".......The premises in question which the wife occupied was indisputably not the matrimonial home. It is nobody's case. The husband would not, therefore, have any statutory or legal right against the Government to use and enjoy the allotted premises to the wife of the tenant because of her job. Looked at any point of view, the tenant cannot be made to lose his tenancy because of wife acquiring possession of a flat or allotment of a flat because of her official duties over which the husband has no right or domain or occupation."
17. Therefore, the word 'domain', is not with regard to acquisition of flat or allotment of a flat but on allotment of a flat because of her official duties over which husband cannot have any domain. Whereas in this case in view of the clear and unambiguous stand of the tenant as well as his wife RW 9 that they are living together there is no dispute between them can it be said that in spite of harmonious relationship between the wife and the husband, the husband will not have domain over his wife or the property of his wife. Wife is earning fifty thousand rupees on account of letting out of the accommodation and the husband is paying Rs. 1,500/- as rent of a property in Vasant Vihar constructed on 800 sq. yds. of plot. Wife is living in the tenanted property along with her husband.
18. I do not find any force in the argument of learned counsel for the respondent that this second appeal is not maintainable as there is a finding of fact by the Rent Controller as well as the Rent Control Tribunal. This appeal only involves the interpretation of the judgments of Supreme Court in Prem Chand and B.R. Mehta's cases. Therefore, it is a pure and simple question of law and nothing more. Therefore, I do not find any force in the submission of the learned counsel for the respondent and the authority cited by the leaned counsel in this regard of Satya Gupta (Smt.) Alias Madhu Gupta, Vs. Brijesh Kumar is not applicable to the facts of this case. Even the authority cited by learned counsel for the respondent Shiv Nandan Prasad Jain Vs. Dr. Sushil Gupta & Ors. (1998) DLT 287 is of no help to him. As a matter of fact, it goes against him. In this case the Court held :
"......The submission of learned counsel for the petitioner that the petitioner and his wife were not expected to make a public display of their strained relations and, as such, there was no pleading to that effect, does not inspire confidence or appear credible. The strained relationship, even if it is assumed, was not pleaded, would have manifested by separate residence or separate establishments."
19. Another contention was raised by Mr. Makhija before me that in view of the Hindu Succession Act particular Section 14(1) property acquired by a Hindu female and after the codification of Hindu Succession Act is held by the female as full owner and in his support has cited Jagannathan Pillai Vs. Kunjithapadam Pillai and others . There cannot be any dispute to the proposition of law but how that is relevant in the proceedings under Section 14(1)(h) of the Delhi Rent Control Act.
20. In view of the above discussion, Addl. Rent Controller as well as Rent Control Tribunal fell in error in mis-interpreting the case of B.R. Mehta (supra). The respondent cannot be permitted to do business on account of protection of Section 14(1)(h) when admittedly, his wife has acquired suitable residential accomodation at S-248, Panchsheel Park, New Delhi. The Property being constructed by her own independent funds would not be material insofar as the evidence on record was that they were living as a unit in complete harmony, sharing common roof as well as mess.
21. I, therefore, set aside the orders of the Addl. Rent Controller as well as the Rent Control Tribunal and pass a decree of eviction under Section 14(1)(h) against the respondent/tenant.
22. Appeal is allowed with cost throughout.