Delhi District Court
Tis Hazari Courts: Delhi vs I.M. Qureshi on 21 August, 2013
IN THE COURT OF SH. V.K.JHA: CIVIL JUDGE-10(Central):
TIS HAZARI COURTS: DELHI
SUIT NO.270/13
Delhi Dioceasan Trust Association,
(Through its Secretary)
I, Church Lane,
New Delhi
.........Plaintiff
Versus
I.M. Qureshi,
R/o H.No. 2109/6,
Church Compound,
Holy Trinity church,
Turkman Gate,
New Delhi.
...............Defendant
Date of Institution :28.09.2000
Date on which judgment was reserved: 22.07.2013
Date of Pronouncing judgment: 21.08.13
SUIT FOR RECOVERY OF POSSESSION AND MESNE
PROFITS FOR THE USE AND OCCUPATION OF
IMMOVABLE PROPERTY.
JUDGMENT:-
1. Vide this judgment I shall dispose of the suit for recovery of possession and mesne profits for use and occupation of immovable property preferred by the Plaintiff.
Suit no. 270/13 -1- Delhi Dioceasan Trust Association, v.s I.M. Qureshi
2. The plaintiff has averred that the plaintiff is a registered society under Company's Act in the name and style of "Delhi Dioceasan Trust Association," at 1 Church Lane, New Delhi - 1. The plaintiff is owner of several immovable properties situated in Delhi, Haryana and Punjab in North India. The plaintiff society is working for welfare and upliftment and benefits of Christian community. The house no. 2019/6 at Turkman Gate, Holy Trinity Church Compound (herein after the suit property) is owned and managed by plaintiff society. There are several other residential premises in the Church compound of the Holy Trinity Church occupied by other Christians. The reverend Collin Theodor was the secretary of the plaintiff society and the present suit on behalf of the plaintiff has been preferred by him. That the tenanted premises No.2109/6 consisted originally of one room, measuring 16 'xl2 ' and one verandah measuring 16 'x9 '. The verandah was converted in a room illegally by Smt. Usha Samuel without any permission from the plaintiff. Smt. Usha Samuel had made illegal construction of one room of l0'xl2', kitchen of 8 'x 12 ', combined Toilet and bathroom of 6 'x4' and covered a open of 16'x10' without any prior permission from the plaintiff society during her life time. The agreed rate of rent was Rs. 25/- per month excluding water and electricity charges between Smt. Usha Samuel and the plaintiff society. That suit property was given on rent to Smt. Usha Samuel in 1965 and Suit no. 270/13 -2- Delhi Dioceasan Trust Association, v.s I.M. Qureshi the rent was paid by Smt. Usha Samuel upto December 1996 who was the wife of one Sh. Victor R. Singh and died few years ago from filing of the suit. That the defendant occupied and trespassed into the suit property in a deceptive way. The defendant is a Muslim and has no right, interest and title in the suit property who is neither a family member nor related to Late Smt. Usha Samuel in any manner. That the defendant occupied the suit property after the death of Smt. Usha Samuel for last many years. That the secretary of the plaintiff society had sent a notice dated 28th July, 1999 to the defendant to vacate the premises and to hand-over the vacant possession ot the plaintiff society. The defendant neither gave any reply nor handed the possession of the suit property. The secretary had sent another corrigendum notice dated 19.09.2000 to the defendant for the notice dated 21.01.2000. That the plaintiff society is entitled to claim the vacant possession with mesen profits of the suit premises from the defendant as the defendant has no right, interest or title in the suit property. Further that the defendant is a trespasser and is in illegal occupation of the suit property and as the defendant is not a Christian, the defendant is not entitled to enjoy, occupy and usurp the suit premises. In these facts and circumstances the present suit has been filed by the plaintiff.
3. The defendant has taken the preliminary objection that the Suit no. 270/13 -3- Delhi Dioceasan Trust Association, v.s I.M. Qureshi suit of the plaintiff is barred under section 50 of the Delhi Rent Control Act as the defendant is the tenant in the suit property at the rent of Rs. 25 per month. The defendant averred that tenancy with respect to the suit property was created in September, 1975 in favour of Mrs. Usha Qureshi, the wife of the defendant.(It is clarified that there is no dispute between the parties that Smt. Usha Samuel and Mrs. Usha Qureshi is one and the same person). The defendant has been living in the suit premises since more than 25 years being the husband of Mrs. Usha Qureshi as the defendant succeeded to the tenancy after her demise by virtue of legal rights. Another preliminary objection taken by the defendant is that the suit preferred by the plaintiff is without any cause of action as the rent of the suit premises was paid upto December, 2001 by the defendant by making payment in the Indian Overseas Bank, New Rajender Nagar, Delhi wherein the rent had been regularly deposited since January 1997 onwards as per the consent and knowledge of the plaintiffs. Preliminary objections regarding maintainability of the suit on the ground of religion, on the fact that the plaintiff is not the owner of the property and also the fact that the suit property is situated in King Compound and not in Church Compound have also been taken. Other objection have been taken with respect to valuation of the suit and the fact that the suit has not been filed and signed by a duly authorized Suit no. 270/13 -4- Delhi Dioceasan Trust Association, v.s I.M. Qureshi person.
4. From the Written statement the substantial defense that is set up by the defendant is that the suit of the plaintiff is barred as per the provisions of the Delhi Rent Control Act as the defendant is the lawful tenant in the suit property having succeeded to the tenancy by virtue of Will of his deceased wife Smt. Usha Qureshi and the rent of the suit property is less than Rs. 3,500/- per month.
5. In the replication filed by the plaintiff, essentially there is denial of the averments made by the defendant in the written statement. No rejoinder to replication was filed by the defendant.
6. On the completion of the pleadings, vide order dated 10.07.2001 following issues were framed:
1. Whether the plaint has been signed and verified and the suit has been filed by a duly authorized person? OPP
2. Whether the plaintiff is entitled to recover the possession of the premises no. 2019/6, Turkman Gate, Holy Trinity Church Compound Delhi?
OPP
3. Whether the plaintiff is also entitled to recover mesne profits for Suit no. 270/13 -5- Delhi Dioceasan Trust Association, v.s I.M. Qureshi the use and occupation of that property? If so, at what rate for what period? OPP
4. Whether the claim of the plaintiff is barred by the provision as contained under section 50 of the Delhi Rent Control Act? OPD
5. Whether the suit has not been properly vaued for the purposes of court fees and jurisdiction? OPD
6. Relief.
7. I have heard the arguments perused the record as well as the written arguments filed on behalf of both the parties.
8. The plaintiff has essentially claimed to be the owner of the suit property which is in the possession of the defendant who claims to have derived the tenancy rights in the suit property through his wife Smt. Ushal Samuel @ Mrs. Usha Qureshi after her death. The defendant, according to the plaintiff is a trespasser whereas according to the defendant, the defendant is the tenant in the property and the defendant has as per the averments in the written statement (para 11) deposited the agreed rent on 03.01.2001 in the Bank of the plaintiff upto December, 2001. From this admission one thing is very clear that it is the plaintiff is the owner of the suit property and if Suit no. 270/13 -6- Delhi Dioceasan Trust Association, v.s I.M. Qureshi somebody else is the owner of the suit property, then it was the duty of the defendant to disclose it to the court. The defendant has just simply denied the ownership and said nothing about as to who is the owner of the property according to the defendant. The fact is that the defendant has not himself claimed to be the owner of the suit property. Because of this reason, the court would not be addressing the arguments of the counsel for the defendant that in the present suit the plaintiff was bound to prove his title. When the defendant was depositing the rent as per his own averments in the Bank of the plaintiff, there was no requirement in the present suit that plaintiff should have proved his title. In the present suit because of the averments with respect to the situs of the suit property the court was in doubt whether the suit property situated at Church Compound as averred by the plaintiff or at Kings Compound as averred by the defendant. When the court sought the explanation from the counsel for the defendant if any site plan was filed by the defendant, the counsel for the defendant replied in the negative and said that filing of the site plan would have made the case of the plaintiff stronger and even if in the present suit the decree was passed in favour of the plaintiff, the plaintiff would suffer because of the confusion of the identity of the suit property. The court does not like this kind of approach and this kind of submission for the simple reason that all what the court desires Suit no. 270/13 -7- Delhi Dioceasan Trust Association, v.s I.M. Qureshi and all what the court endeavours to find out is The Truth. The trial before the court is not a game of chess where both sides have to make the move in order to win the game, but the trial is to render justice on the basis of nothing but the truth and for this purpose both the side that is the plaintiff and the defendant are under obligation to bring the truth before the court. If such be the approach of any party to the litigation as that of the defendant in present suit in the trial of the case before the court of law, all that can be said is that court is not the helpless empire which just decides who wins or loses the case, but under section 151 of Code of Civil Procedure the court has ample inherent powers to pass such orders as to meet the ends of justice. The court's function is not just to decide the case, but to render justice; to give what one deserves under the law of our land.
9. One of the cardinal principles of civil law is that in civil cases burden of proof is that of balance of probability and not that of beyond reasonable doubt. Minor inconsistencies in evidence are not relevant in civil cases in considering the question of discharge of this burden. [Ref. para 32 of Mahesh Dattatray Thirthkar v. State of Maharashtra, 2009(11) SCC 141] The issues in the civil matter have to be decided on balance of probabilities. [Ref. Sona Bala Bora v. Jyotirindra Bhatacharjee Suit no. 270/13 -8- Delhi Dioceasan Trust Association, v.s I.M. Qureshi 2005(4) SCC 501] The Hon'ble Delhi High Court in Rameshwar Dass v. Hakim Javed 2012(187) DLT 73 observed that a civil case is decided on balance of probabilities. The balance of probabilities is arrived at after weighing the respective evidence which is led by both the parties. [Also ref. Food Corporation of India v. Sarvshri Bal Karan 2012(186) DLT 97]. The various dictionaries defines probability as:
i. A measure of how likely it is that some event will occur; a number expressing the ratio of favourable cases to the whole number of cases possible.
ii. The quality of being probable; a probable event or the most probable event.
iii. Likely to be true or likely to
happen.
iv. How likely something is.
v. The quality or state of being
probable.
vi. Something (as an even or
circumstance that is probable) that is probable.
vii. A logical relation between statements such that evidence confirming one confirms the other to some degree. Taking into consideration the various definitions of the word probability, in a trial balance of probability would mean what the court believes how likely some state of facts are on the basis of which legal rights Suit no. 270/13 -9- Delhi Dioceasan Trust Association, v.s I.M. Qureshi can be determine by the court either to give or deny the relief claimed in a suit. If after weighing the evidence the court believes existence of certain fact or considers its existence probable, in civil cases rights can be determined on this basis, though the court may entertain certain doubts (nothing in life is as certain as mathematics), but such doubts should not of such quality which completely shakes the foundation of the belief about existence or non existence of certain facts. (See the definition of Proved, Disproved and Not proved in Evidence Act)
9. While deciding the issues in the present case the court would be guided by the general observations herein above, but before that a brief resume of the depositions of the witnesses so that the issues involved could be appreciated in a holistic manner.
10. The plaintiff to prove his case has examined Sh.
Andrew Rai as PW-1 who deposition is in consonance with the case set up in the plaint. Sh. Ajay Kumar, PW-2 deposed about the marriage of Smt. Usha Mamuel with Sh. Victor R. Singh. On record there is the affidavit of evidence of one Sh. I.M. Rai, property supervisor of the plaintiff's company, but the affidavit was not tendered and this witness was not cross-examined. The Suit no. 270/13 -10- Delhi Dioceasan Trust Association, v.s I.M. Qureshi defendant examined DW-1, Sh. Om Parkash from the pension department who deposed about the nomination of the defendant in the pension account of Smt. Usha Samuel. DW-2, Sh. Sunder Pal deposed about the telephone connection installed in the suit property on 01.02.1993. DW-3, Vinod Kumar Sharma deposed about the presense of the name of the defendant being present in the voter list. DW-4, Sh. Pradeep Bhatia has deposed about certain Unit Certificates in which in which the name of Smt. Usha Samuel was mentioned as Mst. Usha Qureshi and those certificates were encashed on 16.01.1998. DW-5, Sh. Jhagar Singh deposed about monthly income scheme account which were opened in 1995 where the name of Smt. Usha Samuel was mentioned as Smt. Usha Qureshi, similar is the deposition of DW-6, Sh. Kunwar Pal Singh regarding the Bank account in Bank of Maharastra where the account was in the name of Mrs. Usha Qureshi. DW-7, Sh. Sobha Ram deposed inter-alia about PPO Book in which the defendant had been described as the husband of Usha Samuel. The defendant has been examined as DW-8 whose examination in chief which is by way of affidavit are in line which the written statement and the deposition of the witnesses who were examined earlier to the defendant. In the additional affidavit Ex. DW-8/B was also filed by the defendant by way of further examination in chief in which the defendant has deposed regarding the ownership of the property and the Suit no. 270/13 -11- Delhi Dioceasan Trust Association, v.s I.M. Qureshi depositing of the rent of the suit property by the defendant in the bank account of the plaintiff's company. DW-9, Dr. Zamiruddin Qureshi has deposed about the execution of Will (Ex. DW-1/38) executed by Smt. Usha Samuel wherein the tenancy rights in the suit property was bequeted to the defendant. All the witnesses were cross-examined by the counsel of the opposite sides. The depositions of the witnesses and cross-examination shall be referred where-ever those are relevant in detail.
Issue-wise opinion of the court Issue no. 1 "Whether the plaint has been signed and verified and the suit has been filed by a duly authorized person? OPP
11. It is the case of the Defendant that the present suit, when it was filed, the same was signed and verified by one Rev. Collin who claimed to be Secretary of the Plaintiff Company. It has been argued that since the said Secretary of the Plaintiff did not step in the witness box, the present suit is not duly singed and verified by the person competent to do so and the provisions of Order 29 CPC, have not been complied with. It has also been argued that the Plaintiff Company has not placed on record any board resolution to show as to whether the said Rev. Collin was duly authorized by the Plaintiff Company to institute the present suit.
Suit no. 270/13 -12- Delhi Dioceasan Trust Association, v.s I.M. Qureshi
12. Per contra, it has been argued by the Plaintiff that the requirement of Order 29 Rule 1 of Code of Civil Procedure related to signing and verifying of the plaint by a principal officer of a company. In law, it is argued, the said person need not also step in the witness box to prove the said suit [as is done in case of evidence]. It is also submitted that the Plaintiff is a duly incorporated Company under the provisions of section 26 of the Indian Companies Act, 1957 and as such the Certificate of incorporation is a sufficient evidence of it being a duly incorporated entity competent to sue. Furthermore when the suit has been filed, signed and verified by a person, and evidence is led by another person, the only requirement in law is that the said person so deposing shall be aware of the material facts of the case and on the same he shall then be cross examined.
13. With regard to the authority of Rev. Collin at the date of the institution, it has been argued that the said Rev. Collin was the Secretary of the Company and thus was competent under Order 29 Rule 1 to have file, sign and verify the same. Thereafter on behalf of the Company, the subsequent Secretary of the Company Rev. Z.S. Peters gave his power of attorney to PW1 viz. Andrew Rai who was thus competent to depose. At the very least, it is argued that since the case has Suit no. 270/13 -13- Delhi Dioceasan Trust Association, v.s I.M. Qureshi been all along been pursued by the Plaintiff Company, and any defect in resolution, qua authority of Rev. Collins, is a curable defect which the company in any case adopt and all such acts of Rev. Collin shall bind the company, the Defendant cannot on this ground claim that the present suit has not been duly signed or verified.
14. This is court is in agreement with the arguments of the counsel for the Plaintiff in as much as, the Company being an incorporated entity is eligible to sue and be sued in its own name. The present suit has been filed in the name of the Company. A certificate of Incorporation being Ex. PW1/8 has been proved on record. The said is a conclusive proof of the company being competent to sue. Again, the suit has been filed, signed and verified by a person described as secretary of the Company. Again, the subsequent secretary of the Company Rev. Z.S. Peters gave his power of attorney to PW1 viz. Andrew Rai which also on record as Ex. PW1/5. There was no cross examination qua this document by the Defendant. Also the authority of the secretary of the Company was also not challenged by the Defendant during the cross examination with regard to his capacity to sign or verify the present suit for and on behalf of the Plaintiff Company, or that his capacity to come and depose in evidence. That being the case, with Order 29 CPC, Suit no. 270/13 -14- Delhi Dioceasan Trust Association, v.s I.M. Qureshi specifically allowing the signing and verifying of suit by the Secretary of the Company and the suit having been so signed and verified is brought before court which fact is not put to test of cross examination [with regard to the competence of the person to so sing and verify], it has to be presumed that the said person who signed it had the necessary authority to sign it. Again when the person who derives his power from the secretary is not cross examined on the authority of the Secretary of the Company, his statement that he is competent to sign, verify and lead evidence has to be accepted by the court, in the present case PW1 viz. Andrew Rai. Thus in view of the aforesaid, the present issue no. 1 is decided in favour of the Plaintiff and against the Defendant.
Issue no. 2; Issue no. 3 and Issue no. 4:
15. These issues are taken up together for the decision on Issue no. 4 shall necessarily affect the jurisdiction of this Court to decide and adjudicate upon the other two issues viz. Issue no. 2 and Issue no. 3.
16. From the aforesaid pleadings and the documents placed and proved by either of the parties on record it is very clear that the Plaintiff is the owner of the suit property and Smt. Usha Samuel @ Usha Qureshi was the tenant of the Plaintiff. There was no written contract creating tenancy in Suit no. 270/13 -15- Delhi Dioceasan Trust Association, v.s I.M. Qureshi favour of Smt. Usha Samuel @ Usha Qureshi. It is also not in dispute that during the lifetime of Smt. Usha Samuel @ Usha Qureshi, the rate of rent last paid by her was Rs. 25/- per month.
17. It is the case of the Defendant that he has succeeded to the tenancy rights of Smt. Usha Samuel @ Usha Qureshi after her death. Smt. Usha Samuel @ Usha Qureshi died on 23.02.1996. In support of his case, the defendant claims to be the legally wedded husband of Smt. Usha Samuel @ Usha Qureshi. In this regard the Defendant has relied upon Ex DW8/38 which is a handwritten Will dated 25/02/1990 by Smt. Usha Samuel @ Usha Qureshi. The said Will, is being relied upon by the Dfendant inter-alia to claim that he is the husband of the deceased Smt. Usha Samuel @ Usha Qureshi . He further relies on the said Will to the effect that vide the said Will, Smt. Usha Samuel @ Usha Qureshi has bequeathed the tenancy rights of the suit property in favour of the Defendant.
18. Thus the Defendant is setting up a case of being the legal heir under the Will and in the alternative, it has been argued, that if the court is of the opinion that the said Will has not been properly executed or proved in evidence, the Defendant claims to have succeeded by way of intestate succession being the legally wedded husband of the late Smt. Suit no. 270/13 -16- Delhi Dioceasan Trust Association, v.s I.M. Qureshi Usha Samuel @ Usha Qureshi .
19. The Plaintiff has denied that the Defendant was ever married to the said Smt. Usha Samuel @ Usha Qureshi and have placed on record and have proved a marriage certificate Ex. PW2/1. As per the case of the Plaintiff, the said Smt. Usha Samuel @ Usha Qureshi married one Victor sometime in the year 1965 and therefore there is no question of Smt. Usha Samuel @ Usha Qureshi having married to the Defendant, as alleged. Thus, the argument is that Plaintiff is not the husband of the said Smt. Usha Samuel @ Usha Qureshi and therefore he cannot claim succession.
20. As has already been noted that the Defendant is placing his claim on dual footing claiming testamentary succession based on Ex DW8/34 and also on the relationship of husband and wife between the Defendant and Smt. Usha Samuel @ Usha Qureshi. This court is of the opinion that in case, on evidence of the Defendant, the said Ex DW8/34 is duly proved and the contents of the same shall then lead this court to the conclusion that the Defendant has been bequeathed as the legal heir of the tenancy right in the said property in question, the question of marriage between the parties shall become inconsequential. But even prior to deciding the question whether the said will where the tenancy rights of the suit property are Suit no. 270/13 -17- Delhi Dioceasan Trust Association, v.s I.M. Qureshi sought to be bequeathed to the Defendant are considered, the primary question shall be whether there were any rights in the said Smt. Usha Samuel @ Usha Qureshi herself which she could have by way of bequeath / Will to her husband or anybody for that matter. Therefore before going in the rival contentions of the parties, the moot question that falls for consideration, in the opinion of the court, in the present case is the nature of tenancy of Smt. Usha Samuel @ Usha Qureshi. In other words, before this court can reach to the conclusion as to whether the Defendant can or cannot succeed to the tenancy rights of his alleged wife viz. Smt. Usha Samuel @ Usha Qureshi it shall be necessary to determine as to what was the nature of tenancy of Smt. Usha Samuel @ Usha Qureshi?
21. It is an undisputed position between the parties, as stated earlier also, that Smt. Usha Samuel @ Usha Qureshi was tenant of the Plaintiff. Though there is some dispute between the parties with regard the name which she used to be referred to with. The Plaintiffs claim her to be known by the name of Usha Samuel while the Defendant claims that after her marriage to him she was known as Usha Qureshi. Be that as it may, as already clarified herein above there is no dispute with regard to the identity of the person whose tenancy rights are discussed herein and on which basis the Defendant claims.
Suit no. 270/13 -18- Delhi Dioceasan Trust Association, v.s I.M. Qureshi
22. There is a clear difference between a "tenancy at will" and "month to month tenancy". In the case of Shiv Nath v. Ram Bharosey [AIR 1969 ALLAHABAD 333], the full bench of the Hon'ble High Court has elucidated the difference between "tenancy at will" and "a month to month tenancy". Hon'ble V. G. Oak, J. in the said judgment, while relying on various texts observed:
"8. Nature of tenancy at will has been explained in Halsbury's Laws of England, 3rd Edn., Vol. 23 on p. 505 under para 1150. A tenancy at will is a tenancy under which the tenant is in possession, and which is determinable at the will of either landlord or tenant. It is further stated in paragraph 1151 that a tenancy at will is implied when a person is in possession by the consent of the owner, and is not held in virtue of any tenancy for a certain term.
9. The expression "tenancy from year to year" and "tenancy at will'' have been explained in Cheshire's Modern Law of Real Property, 9th Edn. on p. 354 :
"A tenancy from year to year differs from a tenancy for a fixed number of years, in that, unless terminated by a proper notice to quit, it may Suit no. 270/13 -19- Delhi Dioceasan Trust Association, v.s I.M. Qureshi last indefinitely; and from a tenancy at will, in that the death of either party or the alienation of his interest by either party does not affect its determination......A tenancy from year to year will arise by operation or presumption of law whenever a person is in occupation of land with the permission of the owner, not as a licensee nor for an agreed period, and he pays rent measured by reference to a year."
10. The expression "tenancy at will"
has been explained in Foa's General Law of Landlord and Tenant, 10th Edn., under Section 5 :-
Tenancies at will are tenancies which endure at the will of the parties only, i. e., at the will of both . . . This, however, is only where no term is fixed in the demise between the parties, except the will of either or both". Tenancy from year to year and other periodic tenancies have been explained in Section 6 :
"Tenancies from year to year, like tenancies at will, may be created by express agreement, or may arise by implication of law. They belong to the class of 'periodic' tenancies, i.e., tenancies which, while the holding continues, repeat themselves from period to period. Other common instances of this are tenancies from Suit no. 270/13 -20- Delhi Dioceasan Trust Association, v.s I.M. Qureshi quarter to quarter, from month to month, and from week to week; and both in yearly tenancies (in which the tenant is regarded in law as having an interest for a year certain, with a growing interest during every year thereafter springing out of the original contract and parcel of it,) and in all others of a periodic nature, the holding, while the tenancy lasts, is continuous from period to period".
Tenancy at will has been discussed in Woodfall's Law of Landlord and Tenant on pages 280 and 281 :-
"A tenancy at will is where lands or tenements are let by one man to another, to hold at the will of the lessor; in this case the lessee is called tenant at will, because he has no certain or sure estates: for the lessor may put him out at any time he pleases. Either party may at any time determine a strict tenancy at will, although expressed to be held at the will of the lessor only, and the landlord may determine it by demand of possession or otherwise without a previous formal notice."
(Emphasis supplied.) Again Hon'ble V. G. Oak, J. further elucidated the Suit no. 270/13 -21- Delhi Dioceasan Trust Association, v.s I.M. Qureshi manner in which a "tenancy at will" can be determined and also with regard to the inheritable nature of tenancy at will as distinguished from month to month tenancy.
In Woodfall's Law of Landlord and Tenant it is stated on page 464 that a tenancy does not determine by the death of the lessee, but will vest in his legal personal representatives, who are entitled to give or receive the usual notice to quit. In AIR 1950 All 583 it was pointed out on page 586 that the interest of a tenant from year to year is heritable. A tenant from month to month is in the same position.
(Emphasis supplied.) Also Hon'ble S. N. Singh, J., in the aforesaid case, in a separate opinion, has further, while quoting the various texts on the subject, has reiterated the aforesaid position. The Lordships held:
43. 1154. Determination of tenancy at will: A tenancy at will is determinable by either party on his expressly or impliedly intimating to the other his wish that the tenancy should be at an end. Until the intimation is thus given the tenant is lawfully in possession, and accordingly the landlord cannot Suit no. 270/13 -22- Delhi Dioceasan Trust Association, v.s I.M. Qureshi recover the premises in an action for recovery of land without a previous demand of possession or other determination of the tenancy. Where rent is payable under a tenancy at will, and the tenancy is determined between the rent days, the rent is apportioned.
44. Foa, in his book "The Relationship of Landlord and Tenant", Fifth Edition at pages 579 and 580 has dealt with as follows as to how tenancies at will are determined:
A tenancy at will may be determined at any time and by either party during the tenancy. The right, however, is subject to this limitation, that such determination by one party will not be allowed to operate to the prejudice of the other. Thus, if the tenancy be determined by the lessor, the lessee, being possessed only of an uncertain interest, will be entitled to emblements (whilst if determined by the lessee it is otherwise), and may claim to have a reasonable time allowed to him to remove his goods from the premises, though not to retain exclusive possession for that purpose. So, on the other hand, if under a tenancy at will rent were made payable periodically, the lessee could not by determining the tenancy deprive the lessor of his right to rent for the Suit no. 270/13 -23- Delhi Dioceasan Trust Association, v.s I.M. Qureshi current period whilst if the tenancy were determined by the lessor the rent would be lost; but cases of this kind would now fall within the Apportionment Act.
By the lessor :- A demand of possession, or anything equivalent thereto, made on the land by the lessor is sufficient; . . . .... So an agreement between the lessor and lessee that the latter shall purchase the reversion also operates as a determination of the will. And the tenancy is likewise determined by the death of the lessor.
By the lessee:- A notice by the lessee, followed by his giving up possession, is a valid determination of the tenancy by him. And so is any act done by him which is inconsistent with his will that the tenancy should continue: assigning or underletting the premises, for instance, is a determination of his estate, although in order to bind the lessor notice thereof must have been given to him. If the lessee die, or commit voluntary waste, the tenancy is also determined.
Emphasis and underlining Suit no. 270/13 -24- Delhi Dioceasan Trust Association, v.s I.M. Qureshi supplied.
24. Thus from the aforesaid it is very clear, that while a month to month tenancy is inheritable and shall pass on to the legal heirs of the tenant as per law. The said view is in consonance with section 108 of the Transfer of Property Act which stipulates:
"Section 108: 108. Rights and liabilities of lessor and lessee .In the absence of a contract or local usage to the contrary, the lessor and the lessee of immovable property, as against one another, respectively, possess the rights and are subject to the liabilities mentioned in the rules next followed, or such of them as are applicable to the property leased:
(A) Rights and liabilities of the lessor
(a) The lessor is bound to disclose to the lessee any material defect in the property, with reference to its intended use, of which the former is and the latter is not aware, and which the latter could not with ordinary care discover;
(b) the lessor is bound on the lessees request to put him in possession of the property:
(c) the lessor shall be deemed to contract with the lessee that, if the latter pays the rent reserved by the lease and performs the contracts Suit no. 270/13 -25- Delhi Dioceasan Trust Association, v.s I.M. Qureshi binding on the lessee, he may hold the property during the time limited by the lease without interruption.
The benefit of such contract shall be annexed to and go with the lessees interest as such, and may be enforced by every person in whom that interest is for the whole or any part thereof from time to time vested........"
This is contra distinguished with a "tenancy at will"
which determines with the death of the tenant and thus cannot be inherited by the legal heirs nor the tenant can dispose of the tenancy rights in case of "tenancy at will,"
by way of executing a Will.
25. On the facts of the case, it is an admitted position that there was no written contract between the parties. In case there was one, none has been placed on record by either of the parties. Thus the court is called upon to determine the nature of tenancy based on the averments made in the pleading, evidence led and the documents relied and proved by either of the parties on which the nature of tenancy of Smt. Usha Samuel @ Usha Qureshi is to be decided.
26. In this regard reference may be had to para 4 of the plaint wherein the Plaintiff stated thus:
Suit no. 270/13 -26- Delhi Dioceasan Trust Association, v.s I.M. Qureshi "That the premises no. 2109/6 in the Church Compound of the Holy Trinity Church, Turkman Gate, New Delhi was given on rent to Smt. Usha Samuel in 1965. The agreed rent was Rs. 25/- per month excluding water and electricity consumption charges. The rent was paid by Smt. Usha Samuel upto December 1996...."
Again the Plaintiff has proved a legal notice Ex. PW1/2 [placed on record and proved by witness of the Plaintiff PW1 viz. one Andrew Rai] where para 3 of the said exhibit reads:
"3. That the agreed rate of rent was Rs. 50/- p.m. excluding the water and electricity consumption charges. The tenancy commenced from the first of each Georgian calendar month. That the rent was paid to the D.D.T.A. society upto December, 1975....."
27. It appears from the above that the tenancy of Smt. Usha Samuel @ Usha Qureshi was a month to month tenancy and not a tenancy at will. It follows from the following: One, that there appears to be no pleading in the plaint with regard to the nature of tenancy save and except that the rent of the said premises was paid on a monthly basis by Smt. Usha Samuel @ Usha Qureshi till her death. Again in the notice, as stated above, the tenancy is stated to have "commenced from the first of each Georgian calendar month". This is a document of the Plaintiff's themselves. That being the case, it appears that the Plaintiff's Suit no. 270/13 -27- Delhi Dioceasan Trust Association, v.s I.M. Qureshi themselves treated Smt. Usha as there month to month tenant.
28. Secondly, the various rent receipts proved on record Ex. PW1/D2; Ex. PW1/D3; Ex. PW1/D4; Ex PW1/D5; Ex. PW1/D7 and Ex. PW1/D8. The said receipts were admittedly issued by the Plaintiff [this fact was admitted in the cross examination of PW1 viz. Andrew Rai]. Reliance was also placed on the said receipts by the Defendant. The said receipts records the factum of payment of rent on behalf of Miss Usha Samuel. The rent paid in the said receipts is calculated on a month to month basis. Though, the same does not record as to the terms of tenancy by the fact remains that the averment made in the pleadings by the plaintiffs themselves along with the receipts made, leads this could to only one conclusion that the Plaintiff was treating Smt. Usha Samuel as a "month to month" tenant.
29. Thirdly, the said aforesaid issue can be viewed from another perspective. Neither the Plaintiff nor the Defendant has made a specific pleading on the issue of the nature of tenancy. That being the case, presuming that there was no contract to decide the nature of tenancy, then under section 106 of the Transfer of Property Act, it shall be presumed that the tenancy of the parties was on a month to month basis. According to Section 106, Transfer of Property Act, in the absence of a contract to the contrary, a lease of immovable property for a Suit no. 270/13 -28- Delhi Dioceasan Trust Association, v.s I.M. Qureshi purpose other than agricultural and manufacturing purposes shall be deemed to be a lease from month to month. There is, therefore, a presumption that the relationship between the Plaintiff herein and Miss/Smt. Usha Samuel @ Usha Qureshi was tenancy from month to month.
30. It has already been decided that while a "tenancy at will" shall terminate with the death of the tenant but in case of tenancy on a month to month, tenancy does not determine by the death of the lessee, but will vest in his legal personal representatives.
31. That being the case, at the death of Smt. Usha Samuel @ Usha Qureshi her rights in the property shall vest in the legal representatives. Thus the question of Ex. DW8/38 being a valid legal testament of Smt. Usha Samuel @ Usha Qureshi become relevant. This is because, vide the said Will, Smt. Usha Samuel @ Usha Qureshi has bequeathed all her rights in her movable and immovable properties in favour of the Defendant. In this regard reference may be had of 'Para V'of the said Will dated 25/02/1990 Ex. DW8/38 which reads:
(Translated from Hindi to English) "V... Sh. Mohammed Ibrahim Qureshi has provided all the necessities in the house situated at Turkman Gate.......... Therefore I am making this Will in his favour. After my Suit no. 270/13 -29- Delhi Dioceasan Trust Association, v.s I.M. Qureshi death all my belongings including movables and valuables, house hold items, jewellery, clothings shall belong and owned by Sh. Mohammed Ibrahim Qureshi. Further, besides the aforesaid, all my rights and interests shall vest in Mr. Qureshi including my tenancy rights, and including the electricy, water and gas connections which he can get transferred in his name."
32. Thus under the said Will dated 25/02/1990 Ex. DW8/38, all the rights and interests qua the suit property in question, were bequeathed in the name of Sh. Mohammed Ibrahim Qureshi i.e. the Defendant herein.
33. The Defendant herein produced the said Will in original and placed the same on record as Ex. DW8/38. He further proved the signatures of the Smt. Usha Samuel @ Usha Qureshi in his examination in chief [affidavit in evidence Ex. DW8/A] wherein he has stated to have seen Smt. Usha Samuel @ Usha Qureshi writing and also to have seen her signing. The testimony of DW8 went unrebutted on this aspect and no cross examination was done by the Plaintiff in this regard. Further, to prove the Will an attesting witness of the said Will Ex. DW8/34 also stepped in the witness box as DW9 Sh. Zamiruddin Qureshi. He placed on record his affidavit in evidence Ex. DW9/A and therein stated on oath that Smt. Usha Samuel @ Usha Qureshi signed the said Will Ex. DW8/38 in presence of Suit no. 270/13 -30- Delhi Dioceasan Trust Association, v.s I.M. Qureshi one Parvez Ali [the other attesting witness of the will] and himself. He further deposed that thereafter he, at the instance of Smt. Usha Samuel @ Usha Qureshi, signed the said Will Ex. DW8/38. The said witness DW9 also identified the signatures of Smt. Usha Samuel @ Usha Qureshi in the said Will Ex. DW8/38 at point 'A' and also his signatures at point 'C'.
34. Thus the said witness duly proved the Will Ex. Dw8/38. This court is of the view that the Defendant has, as per law, been successful in proving the said Will and that the said Will have been so proved, can be and is admissible in evidence. Furthermore that the Will, as already noted above makes a testament in favour of the Defendant, and thus, this being the last Will, the last wish of the deceased Smt. Usha Samuel @ Usha Qureshi shall have to be given effect to under the law of this country.
35. Thus, it follows from the above that, while Smt. Usha Samuel @ Usha Qureshi was a month to month tenant of the Plaintiff, on her death, under the said Will Ex. DW8/38, the Defendant shall succeed to the said tenancy rights held by the said Smt. Usha Samuel @ Usha Qureshi and therefore by operation of law, such rights as placed in the Smt. Usha Samuel @ Usha Qureshi shall now, after her death, vest in the Defendant. The natural corollary of the same shall mean that on Suit no. 270/13 -31- Delhi Dioceasan Trust Association, v.s I.M. Qureshi the death of the said Smt. Usha Samuel @ Usha Qureshi, the Defendant became a month to month tenant of the Plaintiff herein and all right and liabilities as were attached to the Smt. Usha Samuel @ Usha Qureshi shall attach to the Defendant also. Since it has been held that the Defendant can place his case on the Will Ex. DW8/38, the question and dispute of marriage between the Defendant and Smt. Usha Samuel @ Usha Qureshi is of no consequence and this court does not deem it necessary, for the adjudication of issues involved in this case, to render any opinion on the same.
36. Now with the defendant having been so become entitled and having been already held as the tenant of the Plaintiff, it shall follow that the said Defendant cannot be held to be an illegal trespasser or an illegal occupant in the said suit premises.
37. Thus with the admitted rent between the parties in this suit being Rs. 25/- and with the case of the Plaintiff being that the predecessor in interest of the Defendant Smt. Usha Samuel @ Usha Qureshi having been inducted in the property in 1965 [thus the suit property being more than 10 years old when the present suit was filed in 2000] , the inescapable conclusion shall be that the present suit property shall be governed by the provisions of the Delhi Rent Control Act, 1958 Suit no. 270/13 -32- Delhi Dioceasan Trust Association, v.s I.M. Qureshi and therefore the Plaintiffs can recover possession of the said suit premises only if they can make out the grounds of eviction of the tenant [presently the Defendant herein] as laid therein. Again under section 50 of the said Act, the jurisdiction of a Civil Court, is barred with regard to the grounds of eviction and thus a Civil Court cannot pass an order of eviction against a tenant under the said Act.
38. Before parting with the Issues under consideration in the present case, there is another argument on behalf of the Plaintiff which has been argued with some force before this court. The Plaintiff has argued, that even if the said Smt. Usha Samuel @ Usha Qureshi is treated as the tenant and from whom the present Defendant has derived his rights as a tenant and further presuming that the Defendant is a tenant under the provisions of Delhi Rent Control Act, 1958, it is the argued that since the said Defendant was not dependent on the said Smt. Usha Samuel @ Usha Qureshi and even in the case if the defendant is considered to be the Husband of the said Smt. Usha Samuel @ Usha Qureshi, then the tenancy rights under the DRC Act, 1958 shall extinguish after the period of one year from the death of Smt. Usha Samuel @ Usha Qureshi and therefore at the time of filing of the present suit in 2000 [admittedly after a period of more than one year from the death Suit no. 270/13 -33- Delhi Dioceasan Trust Association, v.s I.M. Qureshi of Smt. Usha Samuel @ Usha Qureshi], the present suit before the Civil Court is maintainable and therefore the civil court shall have jurisdiction to adjudicate the present suit.
39. Per contra, the counsel for the defendant argued that the present suit is barred by the provisions of the DRC Act, 1950 in as much as that he shall fall within the definition of tenant under the ARC Act, 1958. He has argued that after the service of the notice Ex. PW1/2 and the corrigendum notice Ex. PW1/5 at best the Defendant shall be a tenant whose tenancy has been terminated and not as a spouse of the tenant whose tenancy has been terminated. He has further argued that even the service of the said notices to quit is not admitted by him and therefore he is merely a tenant under clause 2(l) and does not fall within the sub clauses of the definition of "tenant" under the DRC Act, 1958.
40. The argument of the Plaintiff is attractive but fallacious. The Delhi Rent Control Act, 1958 defines as tenant as:
"Section 2 (l) tenant means any person by whom or on whose account or behalf the rent of any premises is or, but for a special contract, would be payable, and includes
(i) a sub-tenant;
(ii) any person continuing in possession after Suit no. 270/13 -34- Delhi Dioceasan Trust Association, v.s I.M. Qureshi the termination of his tenancy; and
(iii) in the event of the death of the person continuing in possession after the termination of his tenancy, subject to the order of succession and conditions specified, respectively, in Explanation I and Explanation II to this clause, such of the aforesaid person's
-
(a) spouse,
(b) son or daughter, or, where there are both son and daughter, both of them,
(c) parents,
(d) daughter-in-law, being the widow of his pre-deceased son, as had been ordinarily living in the premises with such person as a member or members of his family up to the date of his death, but does not include, -
......"
41. It has already been held above that the Defendant is a tenant who has, under a Will succeeded to the tenancy of Smt. Usha Samuel @ Usha Qureshi. Also it is not is dispute that the said Smt. Usha Samuel @ Usha Qureshi was tenant of the Plaintiff whose tenancy was never terminated by any notice under section 106, Transfer of Property Act, 1882. It has also been held above that the said Smt. Usha Samuel @ Usha Qureshi was a month to month tenant. One the Defendant succeeded to her rights, he too became a month to month tenant of the Plaintiff. The said Defendant was then served with Suit no. 270/13 -35- Delhi Dioceasan Trust Association, v.s I.M. Qureshi a legal notice to quit Ex. PW1/3 and also a corrigendum notice Ex PW1/5 which was sent vide registered post at the address mentioned in the plaint on which the service of the present suit was effected on the Defendant. Thus under the provisions of section 27 of the General Clauses Act, this court deems due service of the said notice to quit on the Defendant. The Defendant's tenancy was thus terminated but for the protection of the DRC Act, 1958 the Defendant shall get covered with the definition of "tenant" as defined under clause 2(l) (ii) i.e. any person continuing in possession after the termination of his tenancy. Thus the Defendant falls within four corners of the said clause and not under clause 2(l) (iii) as has been argued by the Plaintiff. That being the case, the argument that the said Defendant being a spouse of the tenant whose tenancy has been terminated and there for after the expiry of a period of a year the tenancy rights in the Defendant shall extinguish cannot be accepted. The Plaintiff has placed no evidence to show that the tenancy of the said Smt. Usha Samuel @ Usha Qureshi was ever terminated as per the provisions of section 106 of the Transfer of Property Act, 1882 and thus till her death the said Smt. Usha Samuel @ Usha Qureshi was a tenant only and not a tenant whose tenancy has been terminated. There after the notice to quit was given to the said Defendant. Even otherwise, it is now settled law that the Suit no. 270/13 -36- Delhi Dioceasan Trust Association, v.s I.M. Qureshi filing of a suit for eviction by the Plaintiff against the Defendant is a sufficient notice to quit. As such the Defendant shall now have to be considered to be a tenant of the Defendant under section 2(l) (ii) of the Delhi Rent Control Act, 1958.
42. Thus in view of the aforesaid discussion, this court is of the opinion that qua the suit property the jurisdiction of this court being barred, the present suit is liable to be dismissed. Thus issue no. 4 is decided in favour of the Defendant and against the Plaintiff. It therefore follows from the above, that Issue no. 2 and Issue no. 3 cannot be decided by this court in view of the decision given on Issue no. 4.
Issue no. 5: Whether the suit has not been properly valued for the purpose of court Fee and jurisdiction? OPD
43. The onus of proof qua this issue was place on the Defendant. The Defendant has chosen not to lead any evidence on this issue and thus there is nothing on record for this Court to decide the said issue one way or the other. That being the case, the said issue is decided in favour of the Plaintiff and against the Defendant.
Issue 6: Relief Suit no. 270/13 -37- Delhi Dioceasan Trust Association, v.s I.M. Qureshi
44. In view of the aforesaid facts and circumstances, and in view of the decision on issue no. 4, the present suit is liable to be dismissed as being barred by law. Suit dismissed. Parties to bear their own costs.
Announced in the open court on 21.08.13.
(V.K.Jha) CJ-10(Central)/THC/Delhi 21.08.13 Suit no. 270/13 -38- Delhi Dioceasan Trust Association, v.s I.M. Qureshi