ORDER
C.M. NAYAR, J.
1. This revision petition is directed against the order dated February 22, 1997 passed by Shri J.R.Aryan, Additional Rent Controller, Delhi.
2. The respondent filed a petition under Section 14(1)(e) read with Section 25-B of the Delhi Rent Control Act, 1958 (hereinafter referred to as ‘the Act’). The point of contest was that the respondent could not be considered holding any independent right and title in the suit property so as to establish one of the essential ingredients of Section 14(1)(e) of the Act. It was, therefore, examined as to whether the respondent could be held entitled to relief of seeking petitioner’s eviction from the tenanted premises when her bona fide was not in question. The other plea which was raised before the Rent Controller as well as before this Court related to the interpretation of the provisions of Section 14(6) of the Act which will be taken up for discussion at a later stage.
3. The property bearing No.87, Jor Bagh, New Delhi is the subject matter of the tenancy and comprises of entire ground floor consisting of two bed rooms, one drawing-dining, kitchen, store, two bathrooms, one WC, one box verandah, open platform, open court-yard at the back and front along with servant quarter and garage. The same was purchased by the respondent’s father K.N.Sharma in his own name as well as in the name of his wife Smt. Puran Wati Sharma and three sons G.N.Sharma, N.N.Sharma and U.N.Sharma. Shri K.N.Sharma passed away on January 14, 1971 and the respondent’s mother Smt.Puran Wati Sharma started realising rent from the petitioner who had been inducted tenant in the suit premises under a lease-deed dated September 10, 1957 on a monthly rent of Rs.500/- entered into between the respondent’s father and the petitioner company. This lease continued to be renewed for further periods. The respondent’s mother Smt.Puran Wati Sharma also passed away on July 9, 1981 and thereafter respondent’s brother N.N.Sharma started realising rent.
4. Therespondent was stated to be about 60 years of at the time of filing of the petition and is a lady of status. Her late husband Shri M.P.Pandey was an engineer who retired in 1976 as Chief Engineer Central Ground Water Board, Government of India. After retirement he went to Nigeria and the respondent enjoyed good status financially and socially. In 1986 the respondent with her late husband contemplated to come back to India. Shri Pandey suffered mild heart attack and thus in such an old age they wanted to live in peace with relatives and friends in India. In these circumstances, other legal heirs and owners of suit property, namely, three brothers of the respondent and son of her deceased sister executed a Relinquishment Deed in July, 1986 whereby they relinquished the rights in the property in respondent’s favour. The property was got mutated in her name in the L&DO record. Respondent’s husband suffered a heart attack in Nigeria and passed away on May 8, 1987. She returned to India and found no place of her own to live and was forced to live with her married daughter at Patna or other married daughter at Surat. The respondent’s third married daughter was settled in England. Respondent further pleaded that her son-in-law Rajesh Kumar was doing business in Patna who had a liaison office in Darya Ganj and, as such, he would be staying with the respondent in the suit property. Even her married daughters were expected to look after her and would be visiting her as and when opportunity arose. In this background it was submitted that the respondent required the premises for her own need bona fide and requested the petitioner company to vacate the same but her request had not been acceded to.
5. The petitioner company contested the petition and maintained that the respondent did not have any locus standi to file the petition. Respondent’s father by whom the suit premises were let out passed away in January, 1971 and thereafter the mother of the respondent became owner. She too passed away in July, 1981 and her brother N.N.Sharma wrote a letter dated August 26, 1981 to the petitioner company informing the company that according to his mother’s Will the property had devolved upon her three sons. The petitioner company received registered notice dated December 15, 1981 on behalf of G.N.Sharma, N.N.Sharma and U.N.Sharma terminating tenancy of the company on alleged ground of bona fide needs. It was contended that the alleged bona fide need was not real and no further steps, as a consequence, were taken. In this background and particularly when the sons of Smt.Puran Wati Sharma i.e brothers of the respondent had represented to the company that they were the owners of the suit property the assertion of the respondent that she had derived a valid title could not be sustained and she, therefore, had no locus standi in the eyes of law since she was not the legal owner of the property.
6. The family arrangement which was allegedly brought into existence by the execution of the Registered Relinquishment Deed dated July 25, 1986 was brought to the notice of the petitioner company vide letter dated August 23,1986 of N.N.Sharma addressed to the company that the property had fallen to the share of Smt.Rajeshwari Pandey, the respondent herein.
7. The photostat copy of the Relinquishment Deed was also provided to the petitioner company. The contention is sought to be raised that Relinquishment Deed was ex facie illegal,null and void. The question of release, relinquishment or disclaimer of share of three sons of Smt.Puran Wati Sharma could arise only if respondent had already some right, title or interest in the property and on the contrary respondent’s three brothers were owners of the property. The respondent, therefore, could not maintain her eviction petition which was manipulation since three brothers of the respondent had no bonafide need and by showing respondent as owner they tried to build up a case of bona fide requirement. It was further argued that respondent did not have any other dependent family member for whose requirement she could seek the property. She had three daughters who were all married. The requirement of whole big house was with ulterior purposes and real intention behind that was to sell the property. Lastly, it was contended that even if Deed of Relinquishment was treated to be transfer of property then Section 14(6) of the Act came in operation and the present eviction petition having been filed before expiry of five years of such transfer was not maintainable. The pleas of the respondent (petitioner in the eviction petition) as well as evidence are referred to in paragraphs 12 and 13 of the impugned judgment and the same may be reproduced as under:
“12. Petitioner has deposed in her statement that she is owner of suit property. On the death of her father she along with her mother, brothers and sister become co-owners. She further deposed that even her mother did not left behind any Will. She proved original sale deed of this property as Ext.A.3 and then deposed that she along with her husband lived in Nigeria upto 1987 when her husband passed away on 5.5.87. She proved his death certificate as A-4. She then deposed that all her brothers had their own house and they relinquished rights in the suit property in petitioner’s favour. She proved certified copy of the relinquishment deed as Ex.A6 to A8. Original had been submitted with L&DO which record was got produced. The property was mutated in L&DO record in petitioner’s name vide letter Ext.A-9.She then deposed about bonafide need that she had been staying with her married daughter.She further deposed that first floor of the suit property along with barsati was in the tenancy of Hindustan Petroleum. She proved site plan of the suit premises as Ext.A 11 and site plan of the first floor and Barsati as Ext.A12. Witness was then cross-examined and in his cross examination she deposed as incorrect that her mother Smt.Puran Wati Sharma had left behind a Will. She deposed that she could identify signature of Sh.N.N.Sharma but when confronted with document mark A and other documents mark B & G, she deposed that she could not say if these were bearing signature of her brother Sh.N.N.Sharma.She also deposed that she could not identify signature of her mother on the Will. She admitted the suggestion as correct that she was suffering blood pressure, heart disease and mental depression. She however, identified signature of Shri N.N.Sharma on Ext.A6. She re-asserted that her father had never executed any Will in respect of suit property or that after his death petitioner mother become owner of her husband’s share by virtue of any such Will. Rest of the cross examination got conducted through Local Commissioner on 8.2.89 was concerning petitioner’s bonafide and finally suggestion that after the death of her father his share fell in favour of petitioner’s mother to which she replied as correct. In this cross examination petitioner deposed ignorance about fact if her mother had left behind Will and she deposed that she could not identify her mother signature as she had never seen her signing.
13. Respondent’s evidence has been deposed on material facts by RW4 whereas other three witnesses were of formal character. RW4 deposed hat he was branch Legal Manager in the respondent company from 1956 to May 1990 when he retired. He then deposed that lease deed of suit premises was executed by Sh.K.N.Sharma with the respondent company through one Sh.P.G.Daftri. On death of Sh.K.N.Sharma respondent company was advised by his son Sh.N.N.Sharma that property 87 Jor Bagh had been left to them and they also sent a letter to the respondent company dated 2nd February, 1971 under signature of Sh.N.N.Sharma which was received in normal course of business. He proved that letter as Ext.RW4/2. He further deposed that according to Will of Sh.K.N.Sharma his three sons namely N.N.Sharma, V.N.Sharma and G.N.Sharma become the owner of the suit property. He further deposed that Sh.N.N.Sharma had also sent intimation of respondent’s company regarding the death of smt.Puran Wati Sharma vide letter dated Ext.RW4/3 whereby copy of the Will of Smt.Puran Wati Sharma was also sent, according to which and arrangement between the brothers, rent was paid to Sh.N.N.Sharma. Lastly he deposed that to the best of his ability petitioner was neither the owner nor the landlady of the suit premises and nor did she have any bona fide need of the suit premises. Witness was then cross examined and with that respondent evidence was closed.”
8. The learned Additional Rent Controller examined the matter further in paragraph 16 which reads as follows:
“Even otherwise if we have to accept this evidence on behalf of respondent company witness has deposed that according to the Will of Sh.K.N.Sharma, his three sons namely Sh.N.N.Sharma, V.N.Sharma and G.N.Sharma become owner of the suit property. He further deposed that according to the arrangement between the brothers, affidavits were sent and rent was paid to Sh.N.N.Sharma but then he tried to correct himself by deposing that above sons become owner of the property after the death of their mother Smt.Puran Wati in January 1981 and in fact Smt.Puran Wati Sharma become owner of the suit property after the death of Shri K.N.Sharma. What this evidence suggests is not a fact deposed in specific and categorical terms that on death of Shri K.N.Sharma a representation was made over to the respondent company that share of Sh.K.N.Sharma had fallen to his wife Smt.Puran Wati Sharma exclusively by virtue of any such event like a Will. Witness rather deposed that after the death of Sh.K.N.Sharma his three sons become owner. He then rectifies himself by a mere statement that these three sons of Sh.K.N.Sharma become owner after the death of their mother. It is true the Will left behind by Smt.Puran Wati Sharma which was registered document could be said duly proved on record as attesting witness of this Will has been examined as RW2 besides its certified copy got produced from the office of Sub Registrar, but then question arises should contents of this Will be accepted as true and correct not debarring legal heirs from succession to the property of their predecessor-in-interest merely because the Will referred to testator bequeathing 2/5th share to her three sons. Ld. counsel for respondent argued that very fact that by this Will Smt.Puran Wati Sharma bequeathed 2/5th share corroborated the fact that she had inherited 1/5th share of her husband also after his death as per the Will and that fact had also been disclosed and conveyed to the respondent company by Sh.N.N.Sharma. Counsel argued that letter of Shri N.N.Sharma had been marked duly an exhibit and accompanying document which was photo copy of the Will behind by Shri K.N.Sharma must also be held duly proved and be read in evidence and now particularly when respondent company had issued a notice under Order XII R 8 CPC to the petitioner to produce original Will and in the absence of such Will have not been produced, respondent company must be found to have proved the document by secondary evidence. The question then arises if such Will photo copy of which is marked RYB was produced on record could be considered a document proved whereby fact that Sh.K.N.Sharma bequeathed 1/5th share in favour of his wife was liable to be accepted. Now look on this document reveals that this is not the photo copy of the Will but rather photo copy of the draft representing to be a Will not bearing either signature of executant or signature of the witness, and rather it shows to be true copy. It is relevant to observe that respondent company disputing having become aware of attesting witness to this Will one of whom is represented to be an Advocate and the second one the resident of specific particular address i.e. 10 Babar Lane, New Delhi, did not to make any efforts to get either of the attesting witness examined in evidence to atleast deposed fact that Sh.K.N.Sharma had executed a Will and these witnesses were attesting witness. Now could the only circumstances that Smt.Puran Wati Sharma bequeathed 2/5th share in favour of her son where her son had already 3/5th share in the property be accepted so as to exclude the other legal heirs of Shri K.N.Sharma from inheritance to share of their predecessor-in-interest Sh.K.N.Sharma. I find this appreciation of factual issue must be appreciated in the subsequent attending facts and circumstances to the effect that all the three brothers relinquished their rights in favour of petitioner by registered deed meaning thereby they recognised a right already existing in petitioner’s favour which she inherited after the death of her father, she claims, died intestate. There was a strong arguments from ld. respondent counsel that relinquishment deed was just a device to create a ground for respondent’s eviction when real owner of the property i.e. three brothers of the petitioner were not in a position to assert their bonafide since they owned their individual properties where they were residing and thus was malafide exercise. I pause for a moment and put a proposition that suppose petitioner’s father was alive and he being one of the co-owner of the suit property with his three sons filed an eviction petition on a bonafide need on a plea that he required the suit tenancy premises for his dependent widowed daughter. Further suppose that he had enough and sufficient accommodation even to accommodate widow daughter but for the presence of his daughter in law in the house he was enable to accommodate widowed daughter then could he be said precluded from establishing that bonafide need and to my opinion answer would be `no’. Now even for the sake of worst for the petitioner we accept respondent’s case that three brothers become owner of the property by virtue of Will left behind by their mother could one of such brother be considered precluded from asking for respondent’s eviction on a bonafide need for his widowed sister for the reasons that though in his independent house he had got sufficient accommodation but for presence of his wife and children he would not like his widowed sister to live in that house and to my opinion the court would have considered such the need as a bonafide one. The question would have arisen at the maximum that could widowed sister be considered a dependent family member of her married brothers. Now in such circumstances should respondent’s case that deed of relinquishment was executed by brothers of the petitioner whereby right and title in the suit property is represented to have been conferred by them upon their sister petitioner who was asserted already holding a right in the property after the death of her father as malafide device only to create a ground for respondent’s eviction. I hope no such argument is acceptable in a glaring fact that this widowed sister of her three brothers is homeless living with her married daughter or other such relative after the death of her husband. I do not find in the given circumstances law requires that petitioner has to be the owner of the property as to be read with such rigors that merely petitioner’s brother happened to have written a letter to the respondent company that her father had left behind a Will bequeathing his share in favour of his wife and when that Will has not been proved and even the factum of execution of such Will has not been proved then petitioner has to be held holding no right in the property which was owned by his father and mother. Onus required to be discharged by petitioner on the issue that she was the owner of suit property I find is discharged by the petition in the present case that she deposed that her father died intestate and she became one of the co-owner in the suit property with other legal heirs and I do not find respondent has been able to refute the petitioner’s case by proving fact that petitioner has been deprived of any such right in the property by the factum of Will left behind by her father which fact respondent asserts.”
9. The Court then proceeded to state that the respondent being the widow was even entitled to the benefit of the provisions of Section 14D of the Act on the basis of the judgment as referred to in V.Rajaswari Vs. Bombay Tyres Intl. Ltd. 54(1994) Delhi Law Times 494. The Additional Rent Controller, accordingly, allowed the petition of the respondent under Section 14(1)(e) of the Act and passed an eviction order.
10. The contentions of the petitioner as advanced by the learned counsel are two fold. The Deed of Relinquishment dated December 12, 1986 executed in favour of the respondent is an instrument of conveyance and, therefore, it conferred no title on the respondent to maintain the petition under Section 14(1)(e) of the Act and assuming without admitting that a Deed of Release can transfer a title to one who before the transfer had no interest in the property, the present eviction petition was barred under Section 14(6) of the Act as it was filed on December 19, 1987 and the minimum period of five years had not elapsed from the date of Transfer/acquisition of property by the respondent. The Deed of Relinquishment was executed in favour of the respondent on July 25, 1986. The Releasers relinquished all their claims in respect of the suit property in view of the following terms as contained in the document:
“And whereas the Releasee, release, relinquish, disclaim and give up their share in favour of the releasee her all right, title and interest in the aforesaid property.
NOW THIS RELINQUISHMENT DEED WITNESSETH AS UNDER:
1. That the releaser do hereby release, relinquish, disclaim and give up their entire share in the aforesaid property in favour of the releasee absolutely and forever.
2. That the releasor assure the releasee that the property hereby released is free from all kinds of encumbrances such as sale, gift, mortgage, court litigation etc.
3. That the Releasor admit that he has been left with no right, title and interest in the aforesaid property and the same now vest with the Releasee.
4. That the releasee can get the aforesaid plot transferred, mutated and substituted in her own names in the records of L&DO/MCD or any other concerned authority on the basis of this Relinquishment Deed or its certified true copy.
5. That the Releasor has executed this Relinquishment voluntarily without any outside pressure and in his full senses.”
The above information was passed on to the petitioner company and he following communication dated August 23, 1986 was addressed in this regard:
“N.N.SHARMA
Regional Manager Francis Klein Co.
Residence: Pvt. Ltd.
23, Jindal House, 1-India Exchange
8A, Alipore Road, Place,P.O.2267
Calcutta-700027 CALCUTTA-700 001
Dated: August 23, 1986
REGISTERED WITH A/D
M/s Hindustan Lever Limited,
Express Building,
Bahadurshah Zafar Marg,
P.O.Box 7003,
NEW DELHI 110 002
Kind Attention: Mr.P.N.Mongia, Legal Adviser.
Dear Sirs,
As per family arrangement, and Registered relinquish deed dated 25th July, 1986 at Delhi, the entire property 87, Jorbagh, New Delhi, Block No.172 has fallen into the share of Mrs.Rajeshwari Pandey w/o Shri M.P.Pandey and D/o late Sri Kedarnath Sharma. Now that she is the absolute owner of the property above mentioned, you are requested to negotiate with her or through her Attorney in respect of the above property on the following address:
Smt.Rajeshwari Pandey,
C/o Mr.Rajani Ranjan Sahu, M.P.,
8, Feroz Shah Road, New Delhi.
Please be informed that any payment hereafter other than Mrs.Rajeshwari Pandey or any matter concerning with the aforementioned property other than Mrs.Rajeshwari Pandey will be void.
Yours faithfully,
Sd/-
(N.N.Sharma)”
The petitioner company acknowledged the same vide communication dated September 2, 1986 which reads as follows:
“REGISTERED A/D
September 2,1986Mr.N.N.Sharma
Regional Manager,
M/s Francis Klein & Co. Pvt. Ltd.,
1, India Exchange Place,
P.O.2267,
CALCUTTA-700 001
Dear Sir,
Re:Ground floor, 87,Jor Bagh,New Delhi
This has reference to your Registered A.D.letter dated 23rd August, 1986, intimating that the entire property bearing No.87, Jor Bagh, New Delhi, has fallen into the share of Mrs.Rajeshwari Pandey, W/o Shri N.P.Pandey and D/o late Sri Kedarnath Sharma, in terms of Registered Relinquish Deed dated 25th July, 1986.
By your letter under reference, you have further intimated us that she is now the absolute owner of the above property and that in respect of the said property, we have to deal with her or through her Attorney.
As you are aware that we are the tenant of the Ground Floor of the above premises.
In order to enable us to pay the rent of the above premises to Smt.Rajeshwari Pandey, we would request you to please let us have a photo copy of the Registered Relinquish Deed dated 25th July, 1986, together with the particulars. This request for photo copy of the Registered Relinquish Deed is being made with a view to satisfy ourselves that we will be paying the rent to the rightful owner and that there would be no claim upon us from any other persons. As soon as we receive the said document from you, we shall start paying the rent to Smt.Rajeshwari Pandey.
Thanking you and assuring you of our best co-operation.
Yours faithfully,
Hindustan Lever Limited,
Sd/-
P.N.Mongia)
Branch Legal Manager and
Duly Constituted Attorney
Copy to:
Smt.Rajeshwari Pandey, C/o Mr.Rajani
Ranjan Sahu, M.P., 8, Feroz Shah Road,
New Delhi.
Since you are based in Delhi, it will expedite the matters if you could send us the Certified Copy/Photo copy of the Registered Relinquish Deed dated 25th July, 1986 in order to enable us to pay the rent to you. We shall further request you to please let us know whether we should send the rent to you by cheque or the same should be deposited directly with your bankers and if so, kindly furnish us your banker’s name with bank account number.
Sd/-
(P.N.Mongia)
Branch Legal Manager &
Duly Constituted Attorney”
11. The Land and Development Office, Government of India on March 31,1987 also mutated the property in the name of the respondent as will be indicated from the communication dated March 31, 1987 which may be reproduced as follows:
“Regd. A.D.
Government of India
Ministry of Urban Development
Land & Development Office
Nirman Bhawan: New Delhi
No.LIV-9/172(87)/87/286 dated 31.3.87
To
Smt.Rajeshwari Pandey,
8- Feroz Shah Road,
New Delhi.
Sub:Substitution of lease hold rights in property No.87-Jorbagh, New Delhi.
With reference to her application dated 8.10.86 on the above cited subject regarding substitution of lease hold rights in respect of property No.87, Jorbagh, New Delhi. I am directed to say that consequent upon the death of Smt.Puran Wati Sharma, Smt.Rajeshwari Pandey is hereby informed that the lease hold rights in property No.87-Jorbagh, New Delhi have been substituted in her name on the same terms and conditions as laid down in the lease deed executed on 18.8.1955 and duly registered at Sr.No.3284 in addl. Book No.I Volume No.270 on pages 17 to 21 dated 30.8.1959 with the Sub-Registrar New Delhi on the basis of affidavits, death certificate and Relinquishment Deeds registered on 25.7.86 and 12.12.86 etc. furnished by you.
The property now stands substituted in the books of this office in the name of Smt.Rajeshwari Pandey w/o Sh.M.P.Pandey.
The revision of ground rent of the premises was due on 1.1.82 and you would be required to pay the revised ground rent as and when
Sd/-
Dy.Land & Development Officer For and on behalf of the President of India”
12. By a subsequent communication of October 13, 1986 the representative of the petitioner company further insisted that the respondent should send a photo copy of the Registered Relinquishment Deed dated July 25, 1986 together with the particulars and later on receipt of the same informed the respondent of acceptance of the same by communication dated May 25, 1987 which is self explanatory and reads as follows:
“HINDUSTAN LEVER LIMITED
EXPRESS BUILDING, BAHADURSHAH ZAFAR MARG,
P.O.BOX 7003
NEW DELHI- 110 002
Regd.Office:Hindustan Lever House,
165/166, Backbay Reclamation,
Bombay- 400 020
May 25, 1987
Mrs.Rajeshwari Pandey,
C/o Shri Rajani Ranjan Sahu,
8, Feroz Shah Road,
New Delhi.
Dear Madam,
Re: Ground Floor, 87, Jor Bagh, New Delhi
We refer to Mr.Rajesh Kumar’s letter dated 15th May, 1987, sent on your behalf.
Under cover of the above letter, photocopies of relinquishment deeds have been forwarded as well as letter dated 31st March, 1987, from the Land & Development Officer.
In view of the documents furnished, we are advising our Accounts
Department to remit to you rent for the premises from the month of September, 1986, till date.
In the letter under reference, it has been stated that the rent should be sent by bank draft on any scheduled bank in New Delhi. Sending of rent by Demand Draft will not only cause inconvenience but will also delay the remittance of the rent. We normally send the rent to the landlord/landlady either by cheque drawn on a scheduled bank at New Delhi or directly deposit the same in the account of the landlord/landlady.
We would suggest that if you let us have your banker’s name and your account number, we would henceforth deposit the rent with your bankers, or in alternative, send the rent through cheque as was being done hitherto before. Kindly let us know as to how future rent may be paid to you. In the meanwhile, the rent for the past period will be sent to you to our Accounts Department by a demand draft.
Assuring you of our best cooperation at all times.
Yours faithfully,
Hindustan Lever Limited
(P.N.Mongia)
Branch Legal Manager
cc: Branch Accounts/Delhi
The rent for the above house was withheld from the month of September, 1986 onwards. Now that the documents have been provided, the rent may be paid to Mrs.Rajeshwari Pandey from September, 1986 till date by demand draft. Till we hear further from the landlady future rent should be paid by demand draft.”
13. The question now arises is that as the respondent has been accepted as a landlady/owner of the premises on the basis of the Relinquishment Deed is it proper for the petitioner company to resile from their stand and raise questions which are patently mala fide and have hardly any basis on the admitted facts on record as well as the settled law on the subject. Too much is being said that the plea of attornment by the company in favour of the petitioner has already been negatived by the judgment of Arun B.Saharya,J. which was delivered on October 17,1989 between the same parties. Shri V.K.Shali, the then Additional Rent Controller, Delhi held vide his Order made on July 29, 1989 as follows:
“…..
From this correspondence, it is clear that rent of the premises in question was stopped by the respondent company as it wanted to satisfy itself regarding the ownership of the premises in question and when it had satisfied itself after receipt of relinquishment deeds that Rajeshwari Pandey was the owner of the premises in question, they had directed their Accounts branch to release the rent in her favour. Thus the respondent company had by their conduct attorney and admitted the petitioner to be
the owner-landlady of the premises in question which they are now estopped from denying in view of section 116 of the Evidence Act. It would be pertinent here to refer to the observations of Hon’ble Delhi High Court in Khurshid Haider Vs. Subeda Begum, 1979(2) RCR 61 (page 65 para 14),wherein, it has been observed,
“First of all having admitted ownership of the landlady it was not open to the tenant to raise question of title belatedly simply because late Khan Bahadur Mirza Hamid Ali Khan had made a Will. It is not open to the tenant to question the landlady’s title after the trial has begun. If in a fishing enquiry in cross-examination it transpires that landlady’s husband had made a Will in his life time, it does not mean that landlady’s title is displaced, it having been admitted once as she was the owner of the property. A party cannot be taken by surprise. And summersaults are always a surprise.”
The observations of Hon’ble Delhi high Court clearly fit in with the facts of the present case. In the instant case, the respondent has admitted by its conduct the petitioner to be the owner of the property in question and if during a fishing enquiry in cross-examination of the petitioner in another petition it is transpired that her father had made a will that would not displace her title/ownership in respect of the property in question because the respondent is now estopped from denying the ownership of the petitioner.”
14. Arun B.Saharya, J. reversed the above judgment and refuted the plea of estoppel as raised by the respondent. The following paragraph from that judgment may be reproduced as follows:
“The first ground of challenge has considerable force in it. The petitioner has denied the ownership of the respondent and is defending the eviction petition on this plea, among others. The plicability of the concept of estoppel depends upon various facts and circumstances which have to be examined in their totality to reach any conclusion one way or the other. An essential requirement of this concept is representation by one person to another and the other person acting to his detriment on the basis of that representation. Since the controversy between the parties on this aspect has yet to be tried, it would not be fair or proper to make any comment or to dilate upon this subject at this stage as it may prejudice the case of one or the other party at the trial. Suffice it to say that the correspondence which has been mentioned in the impugned order appears to have been exchanged between the petitioner and N.N.Sharma (not the Respondent) and it is not sufficient, by itself, to decide this issue. In any event, there is no justification for the Controller to discuss or to rule upon this question at this stage of the proceedings, especially, while dealing with an application under Order 13 Rule 2 CPC. The finding with regard to estoppel is, therefore, set aside.”
Similarly, the learned Judge reversed the findings with regard to the requirement under Order 13 Rule 2 CPC. The judgment of the Additional Rent Controller was, accordingly, set aside by arriving at the following conclusions:
“17. For the above reasons, the impugned order dated 29th of July, 1989 is set aside. The application of the petitioner under Order 13 Rule 2 CPC is hereby allowed. The documents sought to be produced by the petitioner shall be taken on record. The respondent shall have the option to lead additional evidence with regard to these documents.”
15. The reading of the above will not, however, establish that the plea of attornment taken by the respondent was categorically disallowed. The learned Judge merely set aside the order and directed consideration of documents sought to be produced by the petitioner and gave the option to lead additional evidence with regard to such documents. Similarly, the benefit of leading further evidence and cross-examination was granted. It will be reading too much in the judgment to reiterate that the finding on attornment was totally reversed. The petitioner company has taken a stand to suit its convenience and to cling to the premises which it has been occupying for over four decades. The communication which was exchanged between the parties clearly would establish that the petitioner accepted the respondent as a tenant and even continued to pay the rent/damages for use and occupation of the premises to her and exercised its option to accept her as the landlady. The plea in this regard, accordingly, fails.
16. The last question which has been vehemently convassed is with regard to interpretation of provisions of Section 14(6) of the Act. This provision reads as follows:
“14.(6) Where a landlord has acquired any premises by transfer, no application for the recovery of possession of such premises shall lie under sub-section(1) on the ground specified in clause (e) of the proviso thereto, unless a period of five years has elapsed from the date of the acquisition.”
The legislative intent of the above provision is that a landlord who himself was unable to evict a tenant for some reason, should be deprived of the temptation of transferring the premises to another person who would not be prevented. This was to prevent a possible mischief which may be caused to the tenants by transfers made by landlords to circumvent the provisions of Section 14(1)(e) of the Act.
17. In Dr. R.C.Sakhuja and others Vs. R.P.Kholi and another 1970 (2) Rent Control Reporter 226 it was held that the devolution of property in the normal way by succession, whether testamentary or non-testamentary, was not intended to be covered by the expression “acquired ….. by transfer” as used in sub-section (6) of Section 14 of the Act. Paragraph 3 of the judgment may be reproduced as follows:
“In this Court, the main argument pressed by Shri Avadh Behari on behalf of the appellants is that a will is a transfer and, therefore, is covered by section 14(6) of the Act, I am wholly unable to sustain this submission. A will really means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. It regulates the devolution of property of the testator on his death. It is in my opinion not a transfer as is contemplated by Section 14(6). This sub-section appears to me to have been placed on the statute-book with the object of discouraging or making ineffective mala fide transfer of premises for the purpose of evicting tenants on the ground specified in clause (e) of the proviso to sub-section (1) of section 14. It is for this purpose that a transferee from a landlord is debarred from maintaining an application for ejectment for the period specified in sub-section (6). The devolution of property in the normal way by succession, whether testamentary or non-testamentary, is in my opinion, not intended to be covered by the expression “acquired… by transfer”, as used in the sub-section in question. The decision of the Andhra Pradesh High Court in Ollala Ambiah Vs. Avdhnula Mallanna in my opinion, does not help us in construing the word “transfer” as used in section 14(6) of the Act. In this connection, it may be remembered that the purpose and object of a legislative enactment has always to be looked at for guiding the meaning of the words used therein, when those words are capable of both narrow and wide meaning. It is true that the decision of the Punjab High Court in V.N.Sarin Vs. A.K.Poplai and the judgment of the Supreme Court on appeal in the same case reported as V.N.Sarin Vs. A.K.Poplai cited on behalf of the respondents, does not directly deal with the case of a will, as it is concerned with the partition of joint Hindu family, but the devolution of property by operation of law, such as on death cannot in my opinion be assumed to have been intended the Parliament to be covered by the word “transfer” as used in the sub-section in question. It was the mischief sought to be done to the tenants by the landlords by utilising by transfer intervolves some other person better circumstanced for the purpose of evicting the tenant, which was intended to be remedied Bald literal meaning, divorced from the purpose, object and scheme of the statutory provision, is likely to be misleading in the present case. The intention of the Legislature is best gathered by construing the word “transfer” in the background of the legislative purpose. No persuasive argument of any cogency has been addressed at the Bar to persuade me to hold that devolution of property by a will could have been intended by the Parliament to fall within the purview of section 14(6). No principle has been relied upon in support of the appellants’ submission and of course no precedent has been cited. The argument is, refore, repelled.”
18. In Shri Onkar Singh and another Vs. Shri Saheb Ditta Mal Kohli 1970(2) Rent Control Reporter 18 it was held that an acquisition of the property by inheritance can by no stretch of imagination be said to be such a voluntary transfer even if the property comes to the heir by means of a Will. Paragraph 5 of the judgment reads as under:
“It is clear from the language particularly in view of the background of the object of sub-section (6) that the transfer must be by a voluntary act of the landlord who transfers. An acquisition of the property by inheritance can by no stretch of imagination be said to be such a voluntary transfer even if the property comes to the heir by means of a will. According to the argument advanced, even in a case where the landlord filed a petition on the ground of personal bona fide requirement and died during the pendency of the petition wherein his heirs are brought on the record as his legal representatives, the petition will be defeated because the heirs have obtained the property by transfer and will not have completed the requisite period of five years after acquisition of the property. In my opinion, the word “transfer” in sub-section (6) of section 14 of the Act contemplates only a voluntary transfer and not a transfer by inheritance. That being so, there is no substance in the objection as to the maintainability of the petition by the respondent before the expiry of five years from the date when he acquired the property by inheritance.”
19. In J.C.Gupta and another Vs. The District Judge, Dehradun and others 1979(1) R.C.J. 239 the learned Single Judge of Allahabad High Court held that an oral family settlement can be entered into by a member of the family to put an end to a dispute amongst themselves. Such a family settlement does not amount to a transfer inasmuch as by the settlement no interest in the property is created.
20. The learned Single Judge of this Court in Shrimati Nand Kaur and others Vs. Pt. Taleshwar Ji 1972(4) Rent Control Reporter 924 also held that relinquishment of right by a co-owner in favour of other co-owners is not a transfer of the nature contemplated by Section 14(6) of the Act. Paragraph 9 of this judgment reads as follows:
“Mr. G.N.Aggarwal contended that under section 14(6) “where a landlord has acquired any premises by transfer, no application for recovery of possession of such premises shall lie under subsection (1) on the grounds specified in clause (e) of the provison thereto, unless a period of five years has elapsed from the date of the acquisition”. Clause (e) of the proviso deals with the bona fide requirement of the premises by the landlord for occupation as a residence for himself or members of his family dependent on him. The learned counsel contended that after the death of Balwant Singh, the original owner, his widow, his sons and all his daughters inherited his property. Three of his married daughters, namely, Bhagwati Devi, Shanti Devi and Krishna Kumari relinquished their rights in the property in favour of the appellants on November 4, 1959. The appellants, therefore, acquired the share of the aforesaid three married daughters of Balwant Singh in the premises in dispute on that date. The relinquishment was nothing else than a transfer of the right, title and interest of the said daughters of Balwant Singh. No application for recovery of possession of the said premises could lie under section 14(6) until after a period of five years elapsed from November 4, 1959. The present eviction petition was filed on June 9, 1964, i.e. before the period of said five years had elapsed. The contention of the learned counsel is, however, incorrect. The transfer referred to in sub-section (6) of section 14 of the Act cannot be considered to include the case of relinquishment by aco-owner in favour of the other co-owners. The appellants were co-owners of the said property along with the said three married daughters of Balwant Singh. The property had not been partitioned between them by metes and bounds. They were, therefore, owners of the entire property in proportion to their shares. With the relinquishment executed by the aforesaid three married daughters of Balwant Singh, the appellants became full owners of the entire property. This cannot be said to be a transfer of the nature contemplated by sub-section (6) of section 14 of the Act. The contention of the learned counsel, therefore, is without any substance.”
21. The respondent is the daughter of late Shri K.N. Sharma and Smt.Puran Wati Sharma and sister of G.N.Sharma, N.N.Sharma and U.N.Sharma. She is, accordingly, a natural heir and family arrangements whether oral or in writing are often entered into between the parties of this nature. For resolving the disputes once for all this concept of family arrangement is not out of place and uncommon.
22. In Kale and others Vs. Deputy Director of Consolidation and others the factum of such arrangements has been explained and recognised. Paragraphs 9 and 10 of the judgment may be reproduced as follows:
“9. Before dealing with the respective contentions put forward by the parties, we would like to discuss in general the effect and value of family arrangements entered into between the parties with a view to resolving disputes once for all. By virtue of a family settlement or arrangement members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes, settle and resolve their conflicting claims or disputed titles once for all in order to buy peace of mind and bring about complete harmony and goodwill in the family. The family arrangements are governed by a special equity peculiar to themselves and would be enforced if honestly made. In this connection, Kerr in his valuable treatise Kerr on Fraud at p.364 makes the following pertinent observations regarding the nature of the family arrangement which may be extracted thus:
The principles which apply to the case of ordinary compromise between strangers do not equally apply to the case of compromises in the nature of family arrangements. Family arrangements are governed by a special equity peculiar to themselves, and will be enforced if honestly made, although they have not been meant as a compromise, but have proceeded from an error of all parties, originating in mistake or ignorance of fact as to what their rights actually are, or of the points on which their rights actually depend.
The object of the arrangement is to protect the family from long-drawn litigation or perpetual strifes which mar the unity andsolidarity of the family and create hatred and bad blood between the various members of the family. Today when we are striving to build up an egalitarian society and are trying for a complete reconstruction of the society, to maintain and uphold the unity and homogeneity of the family which ultimately results in the unification of the society and, therefore, of the entire country, is the prime need of the hour. A family arrangement by which the property is equitably divided between the various contenders so as to achieve an equal distribution of wealth instead of concentrating the same in the hands of a few is undoubtedly a milestone in the administration of social justice. That is why the term “family” has to be understood in a wider sense so as to include within its fold not only close relations or legal heirs but even those persons who may have some sort of antecedent title, a semblance of a claim or even if they have a spes successionis so that future disputes are sealed for ever and the family instead of fighting claims inter se and wasting time, money and energy on such fruitless or futile litigation is able to devote its attention to more constructive work in the larger interest of the country. The courts have, therefore, leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds. Where the courts find that the family arrangement suffers from a legal lacuna or a formal defect the rule of estoppel is pressed into service and is applied to shut out plea of the person who being a party to family arrangement seeks to unsettle a settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits. The law in England on this point is almost the same. In Halsbury’s Laws of England, Vol.17, Third Edition, at pp.215-216, the following apt observations regarding the essentials of the family settlement and the principles governing the existence of the same are made:
A family arrangement is an agreement between members of the same family, intended to be generally and reasonably for the benefit of the family either by compromising doubtful or disputed rights or by preserving the family property or the peace and security of the family by avoiding litigation or by saving its honour.
The agreement may be implied from a long course of dealing, but it is more usual to embody or to effectuate the agreement in a deed to which the term “family arrangement” is applied.
Family arrangements are governed by principles which are not applicable to dealings between strangers. The court, when deciding the rights of parties under family arrangements or claims to upset such arrangements, considers what in the broadest view of the matter is most for the interest of families, and has regard to considerations which, in dealing with transactions between persons not members of the same family, would not be taken into account. Matters which would be fatal to the validity of similar transactions between strangers are not objections to the binding effect of family arrangements.
10. In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions:
(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;
(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;
(3) The family arrangement may be even oral in which case no registration is necessary;
(4) It is well-settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act and is, therefore, not compulsorily registrable;
(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same;
(6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement.”
23. The validity of Deed of Relinquishment cannot be called in question by the petitioner company, particularly, when it has also accepted the respondent as a landlady of the premises and started paying her the rent. The Supreme Court in a judgment reported as Smt. Kanta Goel Vs. B.P. Pathak and others has held that even a co-heir of the deceased landlord can sue for eviction in absence of other co-heirs who have no objection. Paragraphs 6 and 7 of this judgment make the following reading:
“6. Nor do we set much store by the submission that the Ist respondent is not a landlord, being only a co-heir and the will in his favour having been disputed. Equally without force in our view is the plea that one co-lesser cannot sue for eviction even if the other co-lessers have no objection. Section 2(e) of the Act defines `landlord’ thus:
“2 (e) `Landlord’ means a person who, for the time being is receiving, or is entitled to receive, the rent of any premises, whether on his own account or on account of or on behalf of, or for the benefit of, any other person or as a trustee, guardian or receiver for any other person or who would so receive the rent or be entitled to receive the rent, if the premises were let to a tenant.”
“Tenant’, by definition (Sec. 2(1)) means any person by whom or on whose account or behalf the rent of any premises is payable. Read in the context of the Rent Control law, the simple sense of the situation is that there “should be a building which is let. There must be a landlord who collects rent and a tenant who pays it to the one whom he recognizes as landlord. The complications of estoppel or even the concepts of the Transfer of Property Act need not necessarily or inflexibly be imported into the proceedings under the rent control law, tried by special Tribunals under a special statute. In this case, rent was being paid to the late Dass who had let out to the appellant, on the death of the former, the rent was being paid to the Ist respondent who signed the receipts in his name and added that it was on behalf of the estate of the deceased Dass. At a later stage the rent was being paid to and the receipts issued by the Ist respondent in his own name. Not that the little change made in the later receipts makes much of a difference, but the fact remains that the tenant in this case had been paying the rent to the Ist respondent. Therefore, the latter fell within the definition of `landlord’, for the purposes of the Act. We are not impressed with the investigation into the law of real property and estoppel between landlord and tenant, Shri Nariman invited us to make. A fair understanding of the relationship between the parties leaves little room for doubt that the appellant was the tenant of the premises. The Ist respondent, together with the other respondents, constituted the body of landlords and, by consent, implicit or otherwise, of the plurality of landlords, one of them representing them all, was collecting rent. In short, he functioned, for all practical purposes as the landlord, and was therefore entitled to institute proceedings qua landlord.
7. This Court, in Sri Ram Pasricha, clarified that a co-owner is as much an owner of the entire property as any sole owner of the property is:
“Jurisprudentially, it is not correct to say that a co-owner of property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part owner or a fractional owner of the property ….. It is, therefore, not possible to accept the submission that the plaintiff who is admittedly the landlord and co-owner of the premises, is not the owner of the premises within the meaning of S. 13(1)(f). It is not necessary to establish that the plaintiff is the only owner of the property for the purpose of S. 13(1)(f) as long as he is a co-owner of the property, being at the same time cknowledged landlord of the defendants.” That case also was one for eviction under the rent control law of Bengal. The law having been thus put beyond doubt, the contention that the absence of the other co-owners on record disentitled the first respondent from suing for eviction, fails. We are not called upon to consider the piquant situation that might arise if some of the co-owners wanted the tenant to continue contrary to the relief claimed by the evicting co-owner.”
24. The concept of the definition of landlord squarely fits in the definition as enunciated by the provisions of the Act and no objection can be raised by the petitioner-tenant merely to stay in possession of the premises for which a valid cause for eviction has been made out by the respondent.
25. No other point has been urged by the learned counsel for the petitioner.
In view of the above the present petition is misconceived and is devoid of any force. The same is, accordingly, dismissed with costs which are quantified at Rs.10,000/- which shall be paid to Delhi State Legal Services Authority, New Delhi.