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Yashbir Sharma & Anr v. Sulakshna Lal & Ors .
Judgment Summary — Madan B. Lokur, J.
Factual and Procedural Background
The dispute concerns the first floor of D-35-A, Nizamuddin East, New Delhi. The premises were originally let by Smt. Tara H.K. Lal to Balbir Singh (father of the Appellants and proforma Respondents No. 5 and 6). After Smt. Tara H.K. Lal's death, the suit premises came to the share of late Lt. Col. Man Mohan Lal (father of Respondents No. 2–4 and husband of Respondent No. 1). A different portion of the property (ground floor and servants' quarter) went to Respondents No. 7 and 8 and was not in dispute.
Balbir Singh attorned to Lt. Col. Man Mohan Lal and his tenancy was terminated during his lifetime by a registered notice dated 28 June 1983; nevertheless, he continued as a statutory tenant under the Delhi Rent Control Act, 1958. Balbir Singh died on 12 August 1990. After his death, Respondents No. 1–4 served Appellant No. 1 with a notice dated 10 July 1991 to vacate the premises; Appellant No. 1 did not vacate.
Lt. Col. Man Mohan Lal died on 19 October 1995. In March 1996 Respondents No. 1–4 filed a suit for possession against Appellant No. 1 (and joined others as defendants/proforma defendants). The learned Civil Judge framed issues, recorded evidence and held that Appellant No. 1 was not financially dependent on his father and that no fresh relationship of landlord and tenant had arisen; the learned Additional District Judge affirmed that finding. The present opinion is by Madan B. Lokur, J., on a second appeal which was dismissed.
Legal Issues Presented
- Whether there is any relationship of landlord and tenant between the parties?
- Whether the suit is barred under the provisions of the Delhi Rent Control Act, 1958?
- Whether the plaintiffs (Respondents No. 1–4) are entitled to the relief of possession and damages; if so, at what rate and for what period?
- Relief.
Arguments of the Parties
Appellant's Arguments
- Appellant No. 1 contended that he was financially dependent on his father, Balbir Singh, and therefore had a right to remain in the suit premises during his lifetime.
- Alternatively, Appellant No. 1 argued that a relationship of landlord and tenant had developed: he claimed rent was being regularly paid to Respondents No. 1–4 and that either a fresh tenancy had been created in his favour or he had become a tenant by holding over under Section 116 of the Transfer of Property Act, 1882.
Respondents' Arguments
- Respondents No. 1–4 asserted that Appellant No. 1 was not financially dependent on Balbir Singh and therefore had a right of residence only for the one-year period following Balbir Singh's death (i.e., until 12 August 1991); accordingly they served notice dated 10 July 1991 to vacate.
- Implicitly, Respondents contended that acceptance of payments by them did not amount to acceptance of rent as such and did not create a fresh tenancy or holding-over tenancy under Section 116.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Kai Khushroo Bezonjee Capadia v. Bai Jerbai Hirjibhoy Warden & another, (1949) FCR 262 | Acceptance of rent must be acceptance as rent and in clear recognition of a tenancy right asserted by the person who pays it. | The court described this as the principal judgment on the subject and relied on it to state that mere payment and acceptance of money does not automatically create a tenancy unless there is acceptance as rent in recognition of tenancy. |
| Bhuneshwar Prasad & Anr. v. United Commercial Bank & others, AIR 2000 SC 2796 | Accepted an extended principle (from Ganga Dutt Murarka) that conduct of parties may justify inferring a fresh tenancy beyond an express contract. | The court cited this Supreme Court decision to show that conduct (e.g., payment of increased rent) can justify finding of a fresh tenancy on the facts of that case. |
| Ganga Dutt Murarka v. Kartik Chandra Das, AIR 1961 SC 1067 | Conduct of the parties may justify an inference that a fresh tenancy has been entered into (beyond express contract). | Referred to as the source of the extended principle accepted in Bhuneshwar Prasad; the opinion uses it to frame the possibility that conduct may create tenancy in appropriate facts. |
| Smt. Kanta Manocha v. Hindustan Paper Corporation, 74 (1998) DLT 493 | Followed the principle in Kai Khushroo regarding acceptance of rent and tenancy inference. | Cited by Appellants' counsel and noted by the court as a decision that essentially follows Kai Khushroo; not distinguished on the facts of the present case. |
| Ram Kishore v. Ambika Prasad, AIR 1966 Allahabad 515 | Followed the principle in Kai Khushroo regarding when acceptance of payments establishes tenancy. | Listed among decisions that follow the Kai Khushroo principle; used to support the general legal context but not applied to alter the factual findings here. |
| Gurcharan Singh Jodh Singh v. Chairman, Delhi Improvement Trust, AIR 1955 Punjab 34 | Followed the principle in Kai Khushroo on acceptance of rent and tenancy inference. | Cited as another decision consistent with the Kai Khushroo principle; the court treated these decisions as doctrinal support but upheld the lower courts' factual conclusions. |
| Tayabali Jaferbhai Tankiwala v. Asha & Co. & Anr., (1970) 2 SCR 554 | Followed the principle in Kai Khushroo regarding acceptance of rent and creation of tenancy by conduct. | Cited among similar authorities; the court noted these decisions essentially follow the Kai Khushroo principle and did not find them to compel a different outcome on the facts before it. |
Court's Reasoning and Analysis
The court proceeded by examining the concurrent findings of fact made by the learned Civil Judge and affirmed by the learned Additional District Judge. Two central factual legal questions governed the analysis: (1) whether Appellant No. 1 was financially dependent on his father at the time of the father's death, and (2) whether a fresh tenancy or a tenancy by holding over under Section 116 of the Transfer of Property Act had arisen between Appellant No. 1 and Respondents No. 1–4.
On financial dependence, the Civil Judge relied on Appellant No. 1's own evidence: that he had worked in a company (office at Ashoka Hotel) earning Rs. 8,000 per month until 1988; that he owned a house in Sunder Nagar (approximate value, as he stated, Rs. 5 crores); that he had daughters in school and was paying school fees; and his professional background as a film journalist since 1973. The Civil Judge concluded, and the Additional District Judge affirmed, that Appellant No. 1's financial status was sound and that he was not financially dependent on his father. The present court treated this as a concurrent fact-finding and declined to disturb it.
On the contention of creation of tenancy by payment and acceptance of rent or holding over under Section 116, the court examined legal authority (notably Kai Khushroo) emphasizing that acceptance of rent must be acceptance "as rent" in recognition of a tenancy right. The court considered the factual matrix:
- Respondents had served a notice to vacate on 10 July 1991 because the one-year period (if any) after Balbir Singh's death was due to expire on 12 August 1991; this demonstrated that Respondents did not intend to create a fresh landlord-tenant relationship.
- Although Appellant No. 1 paid amounts to Respondents and Respondents accepted them, that fact alone did not prove acceptance as rent with recognition of tenancy. The court noted practical reasons why Respondents might accept payment (to avoid unnecessary dispute) and observed that no rent receipts were issued or insisted upon by either party.
- Both lower courts found there was no clear intention by the parties to treat the payments as rent for use and occupation; this was a concurrent finding of fact and was not shown to be perverse.
- Procedurally, the court noted that Appellants had not pleaded necessary facts in the written statement to support a claim that Appellant No. 1 was a tenant; there was only a solitary sentence claiming occupation "as a tenant in his own independent right" without factual particulars.
On these bases, the court concluded that (a) there was no freshly established tenancy nor a tenancy by holding over in favour of Appellant No. 1, and (b) the second appeal did not raise any substantial question of law requiring interference with the concurrent findings below.
Holding and Implications
Holding: The second appeal was DISMISSED.
Direct consequences stated in the opinion:
- The dismissal of the second appeal upholds the concurrent factual findings that Appellant No. 1 was not financially dependent on his father at the time of the father's death and that no fresh tenancy or tenancy by holding over had been created.
- The Appellant was ordered to pay costs of Rs. 5,000/- to Respondents No. 1–4.
Broader implications: The court expressly held that the second appeal did not raise any substantial question of law for consideration. The opinion does not purport to lay down any new legal principle beyond applying established authorities (notably the principle in Kai Khushroo and related decisions) to the facts of this case.
End of summary. This summary is confined strictly to the materials and conclusions set out in the provided opinion and does not add or infer facts beyond the text.
Madan B. Lokur, J.:— The Appellants, particularly Appellant No. 1, are aggrieved by judgment and decree dated 31st May, 2003 passed by the learned Additional District Judge in an appeal being RCA No. 143/2002.
2. The premises in question, namely, the first floor of D-35-A, Nizamuddin East, New Delhi were let out by one Smt. Tara H.K Lal to Balbir Singh, the father of the Appellants and proforma Respondents No. 5 and 6. After the death of Smt. Tara H.K Lal, the suit premises came to the share of late Lt. Col. Man Mohan Lal, the father of Respondents No. 2 to 4 and the husband of Respondent No. 1. Another portion of the premises on the ground floor and a servants quarter on the terrace floor went to the share of Respondents No. 7 and 8. This portion of the property is not in dispute. The only dispute is with regard to the first floor consisting of a drawing-cum-dining room, three bedrooms, two bathrooms and a kitchen along with one big room, bath and toilet.
3. There is no dispute that Balbir Singh attorned to Lt. Col. Man Mohan Lal or that his tenancy was terminated during his life time by means of a registered notice dated 28th June, 1983. However, even though the tenancy of late Balbir Singh was terminated, he continued to be a statutory tenant under the provisions of the Delhi Rent Control Act, 1958 (the Act).
4. Balbir Singh passed away on 12th August, 1990. At that time, his wife had pre-deceased him and his two daughters (proforma Respondents No. 5 and 6) were living separately in their matrimonial home. Appellant No. 2, one of his sons had acquired a separate residence during the life time of his father and it appears that only Appellant No. 1 was residing in the suit premises along with his father. After the demise of Balbir Singh, Respondents No, 1 to 4 asked Appellant NO. 1 to vacate the suit property by serving him with a notice dated 10th July, 1991. However, he did not vacate the suit property.
5. Lt. Col. Man Mohan Lal passed away on 19th October, 1995. Soon thereafter in March, 1996 Respondents No. 1 to 4 filed a suit for possession against Appellant No. 1 in which they made Appellant No. 2 as well proforma Respondents No. 5 and 6 as defendants. According to Respondents No. 1 to 4, since Appellant No. 1 was not financially dependent on his father late Balbir Singh, he had a right of residence in the suit property only for a period of one year after the death of Balbir Singh, that is, till 12th August, 1991 and so they had served him a notice dated 10th July, 1991 to vacate the suit property. According to Appellant No. 1, since he was financially dependent on his father, he had a right to remain in the suit premises during his life time.
6. The suit was contested by the Appellants and on the basis of the pleadings, the learned Civil Judge framed the following issues:—
1. Whether there is any relationship of landlord and tenant between the parties?
2. Whether the suit is barred under the provision of Delhi Rent Control Act?
3. Whether the plaintiff is entitled for the relief of possession and damages? If so, at which rate and for what period?
4. Relief.
7. After recording evidence and hearing learned counsel for the parties, the learned Civil Judge held that Appellant No. 1 was not financially dependent on his father. This conclusion was based on the evidence of Appellant No. 1 that he was working in a company having an office in Ashoka Hotel, Delhi and that company was closed in the year 1988. At that time, he was earning a salary of Rs. 8,000/- per month. He admitted that he had a house in Sunder Nagar, the approximate value of which was said to be Rs. 5 crores and that he has daughters who are studying in school and he was paying a fee of Rs. 1,500/- per month for them. He stated that he started his career as a film journalist in 1973 and that his father late Balbir Singh had a business of film distribution. Based on this evidence, the learned Civil Judge found that the financial status of Appellant No. 1 was sound and it could not be said by any standard that he was financially dependent on his father. Appellant No. 1 may have been dependent on his father for his residence but that is something completely different from being financially dependent.
8. The finding of the learned Civil Judge was affirmed by the learned Additional District Judge and in view of this concurrent finding of fact, I am of the view that it must be held that Appellant No. 1 was not financially dependent upon late Balbir Singh at the time of his death. It may also be mentioned that learned counsel for the Appellants did not seriously contest this position and the thrust of his arguments was entirely different.
9. The other contention urged before the learned Civil Judge as well as before the learned Additional District Judge by Appellant No. 1 in respect of the first issue was that a relationship of landlord and tenant had developed between the parties. It was the contention of Appellant No. 1 that he was regularly paying rent to Respondents No. 1 to 4 and that a fresh tenancy was created in his favour or in the alternative that he was a tenant holding over under Section 116 of the Transfer of Property Act, 1882. This plea was negatived by both the Courts below and the thrust of the submissions of learned counsel for the Appellants was only on this issue, which I propose to deal with a little later.
10. Since Issue No. 1 was decided against the Appellants, it was held in respect of Issue No. 2 that the suit was not barred under the provisions of the Act and a suit for possession was certainly maintainable. No submissions were urged by learned counsel for the Appellants with regard to Issue No. 3.
11. The crux of the matter, therefore, is whether a relationship of landlord and tenant had developed between Appellant No. 1 and Respondents No. 1 to 4. Both the Courts below have decided this question against Appellant No. 1.
12. It was contended by learned counsel for the Appellants that Respondents No. 1 to 4 have been accepting the rent tendered to them and, therefore, a fresh tenancy had been created in favour of Appellant No. 1 or, in any case, it was a case of Appellant No. 1 becoming a tenant by holding over in terms of Section 116 of the Transfer of Property Act, 1882.
13. I am afraid the position both on facts and in law does not support the contention of learned counsel for the Appellants.
14. The principal judgment on the subject is Kai Khushroo Bezonjee Capadia v. Bai Jerbai Hirjibhoy Warden and another, (1949) FCR 262. It has clearly been held in that case that acceptance of rent must be acceptance of rent as such and in clear recognition of a tenancy right asserted by the person who pays it. This is essentially a question of fact as was noted by the Federal Court on page 277 of the Report where it was found on facts that the money paid by defendants No. 2 and 3 therein to the plaintiff therein was not only paid as rent but was also received as rent. On this basis, it was held that a monthly tenancy came into existence under the provisions of Section 116 of the Transfer of Property Act.
15. In Bhuneshwar Prasad & Anr. v. United Commercial Bank & others, AIR 2000 SC 2796, the Supreme Court accepted the extended principle laid down in Ganga Dutt Murarka v. Kartik Chandra Das, AIR 1961 SC 1067 that apart from an express contract, the conduct of the parties may undoubtedly justify an inference that a fresh tenancy has been entered into between the parties. In that case, there was a payment of increased rent and, therefore, on the facts of that case it was held that a fresh tenancy had been created.
16. Learned counsel for the Appellants also relied upon Smt. Kanta Manocha…Plaintiff; v. Hindustan Paper Corpn.…Defendant., 74 (1998) DLT 493, Ram Kishore v. Ambika Prasad, AIR 1966 Allahabad 515, Gurcharan Singh Jodh Singh v. Chairman, Delhi Improvement Trust, New Delhi, AIR 1955 Punjab 34 and Tayabali Jaferbhai Tankiwala v. Asha & Co. & Anr., (1970) 2 SCR 554 in support of his contention. These decisions essentially follow the principle laid down in Kai Khushroo.
17. The facts of the present case, therefore, take on considerable importance for deciding whether a fresh tenancy was created in favour of Appellant No. 1 or if Appellant No. 1 became a tenant by holding over.
18. The admitted position is that on 10th July, 1991 a notice was given to Appellant No. 1 to vacate the suit premises, in view of the fact that the period of one year for which he was entitled to retain the premises was due to expire on 12th August, 1991. In view of this, it cannot be said (unless there is something quite substantial to the contrary) that Respondents No. 1 to 4 had any intention of initiating a relationship of landlord and tenant with Appellant No. 1.
19. It is true that rent was being paid by Appellant No. 1 to Respondent Nos. 1 to 4 and that they were unreservedly accepting this amount, but I do not think this fact by itself would indicate that a new relationship had developed between Appellant No. 1 and Respondents No. 1 to 4. After all Appellant No. 1 was using the premises belonging to Respondents No. 1 to 4 and he was under an obligation to pay for its user. On the other hand, Respondents No. 1 to 4 had no real option but to accept the amount tendered by Appellant No. 1 because refusal would have unnecessarily opened a new arena of dispute. It is perhaps in view of this that neither Appellant No. 1 insisted on any rent receipt nor did Respondents No. 1 to 4 issue any rent receipt to him. There was, under the circumstances, no clear intention of the parties to treat the payments made by Appellant No. 1 as rent for use and occupation of the suit premises. This is a concurrent finding of fact arrived at by both the courts below.
20. Both the Courts below have also noted that apart from anything else, there was no such plea taken up by the Appellants in the written statement filed by them before the learned Civil Judge. Learned counsel for the Appellants, however, pointed out one solitary sentence in paragraph 1 under the heading “reply on merits” wherein it is submitted that defendant No. 2 (Appellant No. 1) is occupying the suit premises as a tenant in his own independent right. Necessary facts on the basis of which such a conclusion has been arrived at in the written statement have not been pleaded by the Appellants in their written statement.
21. Consequently, I do not think it appropriate to disturb the concurrent finding of fact arrived at by both the Courts below to the effect that no fresh tenancy or establishment of a new relationship of landlord and tenant by holding over was pleaded by the Appellants in their written statement. Even if it was so pleaded, the facts of the case do not show any clear intendment on the part of both parties to create a tenancy which would bind them in respect of the suit premises. No perversity that has been brought to my notice in this regard in the conclusion of facts arrived at by both the Courts below.
22. I am of the opinion that the second appeal does not raise any substantial question of law which requires consideration.
23. Dismissed. The Appellant will pay costs of Rs. 5,000/- to Respondents No. 1 to 4.
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