It has been held by a two Judge bench of this Court in
the case of Bismillah Be(Dead) by Legal
Representatives Vs. Majeed Shah 2017 2 SCC 274:-
“24. Law relating to derivative title of the landlord (Lessor)
and challenge, if made, to such title by the tenant (Lessee)
during subsistence of tenancy in relation to demised
property is fairly well settled. Though by virtue of Section
116 of the Evidence Act, 1872, the tenant is estopped from
challenging the title of his landlord during continuance of
the tenancy, yet the tenant/lessee is entitled to challenge
the derivative title of an Assignee/Vendee of the original
landlord (Lessor) of the demised property in an action
brought by the Assignee/Vendee against the tenant for his
eviction from the demised property under the Rent laws.
This right of a tenant is, however, subject to one caveat that
the tenant/lessee has not attorned to the Assignee/Vendee.
In other words, if the tenant/lessee pays rent to the
Assignee/Vendee of the tenanted property then it results in
creation of an attornment between the parties which, in
turn, deprives the tenant/lessee to challenge the derivative
title of an Assignee/Vendee in the proceedings.”
This authority has been followed in a later case,
Company Limited [(2018) 6 SCC 744]. It has been held
in this case:-
“42... Similarly, the law relating to derivative title to the
landlord and when the tenant challenges it during
subsistence of his tenancy in relation to the demised
property is also fairly well settled. Though by virtue of
Section 116 of the Evidence Act, the tenant is estopped
from challenging the title of his landlord, yet the tenant is
entitled to challenge the derivative title of an assignee of
the original landlord of the demised property in an action
brought by the assignee against the tenant for his eviction
under the rent laws. However, this right of a tenant is
subject to one caveat that the tenant has not attorned to
the assignee. If the tenant pays rent to the assignee or
otherwise accepts the assignee’s title over the demised
property, then it results in creation of the attornment which,
in turn, deprives the tenant to challenge the derivative title
of the landlord.”
NON REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4726 OF 2010
VINAY EKNATH LAD Vs CHIU MAO CHEN
ANIRUDDHA BOSE, J.
Dated: December 18, 2019
The appellant before us is the owner of a premises
comprising of a shop room, numbered 3 in the ground floor
of Sabari Complex, Residency Road, Richmond Town,
Bengaluru 560025. This premises is the subject of dispute
in this appeal. The suit, out of which this appeal arises, was
instituted by “Sri Sabari Corporation” styled as a coownership
firm comprising of seventeen individuals. All
these individuals were also described as plaintiffs (a) to (q)
in the suit in the capacity of co-owners. They shall be
referred to later in this judgment as the “original plaintiffs”.
The mother of the sole respondent was inducted as the
lessee of the subject-premises on 10th May, 1978. At that
point of time, the owner of the premises was a partnership
firm with the same trade name. Admitted position is that
on his mother’s death in the year 1996, the respondent
became the tenant of the subject premises. The original
plaintiffs through their learned Advocates issued a notice
terminating the lease in terms of Section 106 of the Transfer
of Property Act on 25/27th September, 2006. In this notice,
the nature of occupation has been interchangeably used as
“tenancy” and “lease”, but that factor is not of much
significance for determining the rights of the parties in this
appeal. The suit was instituted in the Court of the XII City
Civil Judge, Bangalore on 15th November 2006 claiming,
inter-alia, delivery of vacant possession of the subject
premises and mesne profit. We shall subsequently refer to
the respondent as defendant. The original plaintiffs claim to
have had derived their right, title and interest to the subject
premises from the partnership firm after its dissolution. It
has been contended on their behalf that some of them are
the erstwhile partners and others are their relatives and
they came to own the subject premises as residue property
in accordance with Section 48 of the Indian Partnership Act,
1932. The Trial Court decreed the suit for possession as well
as mesne profit from the date of service of notice of
termination. The defendant was given six months’ time to
vacate the subject-premises. The defendant, however, was
successful in his appeal before the High Court and the
judgment of the Trial Court was reversed. The present
appellant is the successor-in-interest of the seventeen
individuals who had instituted the suit in the name of joint
proprietary firm. This appellant claims to have had
purchased the subject premises from the original owners.
His substitution in this appeal was allowed by this Court by
an order passed on 7th January, 2010.
2. The main question which arises for determination in
this appeal is as to whether the original plaintiffs had the
locus to institute the suit or not. The suit was resisted by
the defendant on the ground that the said plaintiffs could
not have had terminated the tenancy as they did not have
jural relationship with the defendant to initiate the action. It
has been urged in support of this contention that there was
no attornment in this case and no public notice was issued
on dissolution of the firm as per the provisions of Section
45(1) of the 1932 Act. The original plaintiffs’ stand on
devolution of the subject premises has been contested by
the defendant. It is his contention that if the devolution
came through at all, the process of such devolution was
through conveyance of immovable property but without
effecting registration on payment of proper stamp duty.
Learned counsel for the defendant submitted that for this
reason, the instruments through which such devolution is
sought to be established ought not to be taken cognizance
of in a judicial proceeding. The other issues which have
been raised are ancillary to this main question. Before we
proceed to examine this question of law, we shall have to
refer to certain facts from which the present controversy
originates. At the time the lease was created, the
partnership firm comprised of seven partners and a minor
beneficiary. The original lease was for five years. The
arrangement however continued even after lapse of the five
year period. The defendant continued in possession on
paying rent and the plaintiffs’ case before the Trial Court
has been that the defendant had remained in the subjectpremises
as a tenant. According to the plaintiffs, the firm
stood dissolved with effect from 7th December, 1978.
3. In the plaint, there is no specific pleading showing the
manner in which the plaintiffs derived title or interest to the
subject-premises. The defendant contested the suit by filing
written statement. Proper service of termination notice was
also denied and certain other points were raised, but the
suit was mainly contested on the issue of lack of jural
relationship between the original plaintiffs and defendant.
4. The Trial Court, upon going through a Deed of Coownership,
marked as exhibit “P-5” came to the finding that
there was no transfer of the subject-premises to any third
party. This instrument carries the title “CO-OWNERSHIP
DEED OF SRI SABARI CORPORATION: BANGALORE –
AGREEMENT DECLARING INDIVIDUAL INTEREST IN COOWNERSHIP
PROPERTY” and is dated 5th May 2007. The
Trial Court found formation of the co-ownership to be only a
family arrangement. Finding of the Trial Court on the issue
of attornment of tenancy was that such exercise would have
been required in case there was transfer of property but
constitution of co-ownership was on the basis of mutual
understanding among the erstwhile partners and their
relatives. The Trial Court also held that the defendant was
aware of Sri Sabari Corporation coming into existence as a
co-ownership concern from a notice issued by the plaintiffs
to the defendant in the year 2004. We shall deal with this
aspect of the controversy in subsequent paragraphs of this
judgment.
5. The case run by the plaintiffs before the Trial Court was
that the partnership firm stood dissolved with effect from 7th
December, 1978. The notice of the dissolution of the firm,
however, was given to the Registrar of Firms on 7th June,
1995. After dissolution of the firm, an agreement was
entered into among the erstwhile partners and their family
members and some of the family members of the erstwhile
partners were recognised as co-owners of the properties of
the dissolved partnership firm and a delineated portion of
the property of the firm was given to the co-owners. An
agreement was registered as co-ownership agreement. The
subject premises comes within the scope of the assets
given to the co-owners. In the intervening period, mother
of the defendant passed away and the defendant was
allowed to continue as the tenant. Before the Trial Court,
dispute was raised as to whether the notice of termination
was properly served or not. The defendant however had
replied to the notice of termination on 29th November, 2006
casting doubt on locus of the individuals on whose behalf
the notice to terminate the tenancy was issued. The same
defence has been taken in written statement to the suit. As
regards service of the termination notice, the Trial Court on
fact did not find any defect on service of the notice.
6. In appeal by the defendant, the High Court reversed
the finding on the point of locus of the original plaintiffs. It
was held by the High Court :-
“13.Sabari Corporation was registered as per
Ex.P1. Seven partners were its partners for the
purpose of its business and if they had to
dissolve, the plaintiffs should have taken
pleadings in their suit. No such pleadings have
been taken in the plaint. After the dissolution of
the firm, the property of the firm has been
devolved as it is stated by the plaintiff by its
members of the partnership firm. From the
registration of the firm as per Ex.P1, 7 persons
were partners however there are as many as 18
plaintiffs who represent the Co-ownership. On the
dissolution of the firm, its business cease to
operate and in case of transfer of its properties of
its partners, there should have been pleading in
the plaint. Nature of partition among the partners
and how these strangers have come into picture
as the co-owners of the properties of the
partnership firm should have been narrated. It is
the contention of the defendant that u/a 40-C of
the Karnataka Stamp Act, while the property is
being partitioned among strangers, there shall
have been stamp duty paid to the Government. In
the instant case, no such thing has been done. In
response to the same, the respondents counsel
submitted that no transfer has been effected by
virtue of the dissolution of the firm and what has
been done is only a partition of the partnership
property among its members and the newcomers
are their brothers, sons and wives of the partners.
Under Section 243 of the Indian Contract Act,
widow or child of deceased partner receive share
out of the profits is not a partner. In view of the
said provision while transferring the property of
the partnership firm to the non partners of the
firm, it is nothing but conveyance for which
necessary stamp duty should have been paid.
However, there is no such things coming out from
the plaint. Hence it is held that the partnership
firm has not properly conveyed its properties on
the plaintiffs through the procedure known to law.
The court below has framed issues relating to
jural relationship. The Trial Court came to the
conclusion that partition of the firm’s property is
only a family arrangement and there is no
transfer of any right, title or interest in favour of
the third parties. It is only an internal
arrangement made by co-owners of the Sabari
Corporation. It is further referred that legal notice
Ex.P9 was issued in the name of co-owners of the
property and the defendant has been paying rent
to the plaintiff continuously. Therefore, the
plaintiffs have been declared as landlords of the
suit schedule property and the defendant is the
tenant. In view of the fact that the court has held
that there is no transfer of property, application of
attornment of tenancy was also denied. The court
has not answered the question raised in respect
of the jural relationship between the parties.
When the lease agreement entered into between
the parties is Sabari Corporation partnership firm
with the defendant’s mother and till the filing of
the suit, the existence of Sabari Corporation, coownership
has not been declared and no notice
was issued to the defendant or even to the public
and exhibits referred above show the name of
Sabari Corporation as a firm. Therefore, | am of
the view that the court below has not properly
answered the question of jural relationship
properly.
14. Consequent upon the dissolution of the
partnership firm, the partners should have issued
notice to the public and also to the persons who
involved in the business of the partnership firm.
Notice u/s 45(v) of the Partnership Act will help
the third parties that the firm who had no notice
of dissolution and on the other it also seeks to
protect the partners of a dissolved firm from
liability to third parties for acts of the other
partners subsequent to dissolution. Post
dissolution activities of the partners and its
business will cease to affect by virtue of the
dissolution. In such case, where notice is issued,
it made clear to the public and also to the
customers for the purpose of their transactions. In
the instant case, no notice has been produced by
the plaintiff and no averment to substantiate this
dissolution has been made. In view of the above,
the plaintiffs have no legal authority to pose
themselves as Co-ownership of Sabari
Corporation. As it already referred, the LRs.
cannot become the part of the partnership firm.
At the most, they are entitled for the profits and
benefit out of it. Without assigning proper reasons
the court below has held that the Sabari
Corporation, a partnership firm has been
transferred into co-ownership firm, hence the
plaintiffs have got legal right to file the suit.
Hence the said finding of the Trial Court on issue
No.1 is not proper. Accordingly Point No.1 is
answered in the negative.”
7. The High Court had sustained the plea of the
defendant that there was improper stamping of the deed of
co-ownership. The defendant’s case on this point has been
that birth of the co-ownership firm was not on the basis of
distribution of assets after dissolution of a partnership firm
but there was conveyance of the assets of the firm. For this
purpose, registration of the instrument of conveyance on
proper payment of stamp duty was not effected. The High
Court accepted the defendant’s stand that the plaintiffs
could not establish their locus standi to institute suit for
recovery of possession. Finding of the High Court on this
count is that the property of the partnership firm, on
dissolution, stood partitioned among seventeen persons,
including persons who were not members of the firm. On
the question of proper issue of the termination notice as
contemplated in Section 106 of the Transfer of Property Act,
the finding of the Trial Court has not been upset by the High
Court. The judgment under appeal does not deal with this
point.
8. We accept the plaintiffs’ stand that the principle of
estoppel bars a tenant from questioning the title landlords.
This is incorporated in Section 116 of the Evidence Act. But
this principle cannot be made applicable in the present case
straightaway as the main defence set up by the tenant is
that he had acknowledged the said partnership firm as the
landlord but questioned the locus standi of the plaintiffs,
who operated under the same trade name. In absence of
attornment or public notice of dissolution, the defendant
had no way of having knowledge of change of landlord of
the subject-premises from partnership firm to a coownership
concern. The co-ownership firm admittedly was
not the defendant’s landlord at the time of commencement
of the lease. Thus, identity of the landlord stood altered,
though the seventeen individuals continued to operate
under the same trade name. For this reason, the very fact
that rent was continued to be paid to Sri Sabari Corporation
cannot constitute acceptance of the original plaintiffs as the
landlord by the defendant. On the question of attornment,
learned counsel for the appellants have argued before us
that title could be acquired in terms of Section 109 of the
Transfer of Property Act and in such a situation, attornment
would not be necessary. The said provision reads:-
109. Rights of lessor’s transferee.--If the lessor
transfers the property leased, or any part thereof, or
any part of his interest therein, the transferee, in
the absence of a contract to the contrary, shall
possess all the rights, and, if the lessee so elects, be
subject to all the liabilities of the lessor as to the
property or part transferred so long as he is the
owner of it; but the lessor shall not, by reason only
of such transfer cease to be subject to any of the
liabilities imposed upon him by the lease, unless the
lessee elects to treat the transferee as the person
liable to him:
Provided that the transferee is not entitled to
arrears of rent due before the transfer, and that, if
the lessee, not having reason to believe that such
transfer has been made, pays rent to the lessor, the
lessee shall not be liable to pay such rent over
again to the transferee.
The lessor, the transferee and the lessee may
determine what proportion of the premium or rent
reserved by the lease is payable in respect of the
part so transferred, and, in case they disagree, such
determination may be made by any Court having
jurisdiction to entertain a suit for the possession of
the property leased.”
9. It has been held by a two Judge bench of this Court in
the case of Bismillah Be(Dead) by Legal
Representatives Vs. Majeed Shah 2017 2 SCC 274:-
“24. Law relating to derivative title of the landlord (Lessor)
and challenge, if made, to such title by the tenant (Lessee)
during subsistence of tenancy in relation to demised
property is fairly well settled. Though by virtue of Section
116 of the Evidence Act, 1872, the tenant is estopped from
challenging the title of his landlord during continuance of
the tenancy, yet the tenant/lessee is entitled to challenge
the derivative title of an Assignee/Vendee of the original
landlord (Lessor) of the demised property in an action
brought by the Assignee/Vendee against the tenant for his
eviction from the demised property under the Rent laws.
This right of a tenant is, however, subject to one caveat that
the tenant/lessee has not attorned to the Assignee/Vendee.
In other words, if the tenant/lessee pays rent to the
Assignee/Vendee of the tenanted property then it results in
creation of an attornment between the parties which, in
turn, deprives the tenant/lessee to challenge the derivative
title of an Assignee/Vendee in the proceedings.”
This authority has been followed in a later case,
Company Limited [(2018) 6 SCC 744]. It has been held
in this case:-
“42... Similarly, the law relating to derivative title to the
landlord and when the tenant challenges it during
subsistence of his tenancy in relation to the demised
property is also fairly well settled. Though by virtue of
Section 116 of the Evidence Act, the tenant is estopped
from challenging the title of his landlord, yet the tenant is
entitled to challenge the derivative title of an assignee of
the original landlord of the demised property in an action
brought by the assignee against the tenant for his eviction
under the rent laws. However, this right of a tenant is
subject to one caveat that the tenant has not attorned to
the assignee. If the tenant pays rent to the assignee or
otherwise accepts the assignee’s title over the demised
property, then it results in creation of the attornment which,
in turn, deprives the tenant to challenge the derivative title
of the landlord.”
10. The defendant’s stand on this point is that since it
continued to pay rent in favour of the same landlord by the
same trade name, notice of the change of ownership cannot
be attributed to him. On this count, argument has been
advanced on behalf of the original plaintiffs before the Trial
Court that on 17th May, 2004 a termination notice was
issued to the defendant by them. Though the said notice
was not ultimately given effect to, the defendant from the
said notice must have had acquired knowledge of plaintiffs
having become owner of the subject premises. This issue
has been dealt with by the Trial Court in Paragraph 11 of the
judgment in the following manner:-
“11.....The plaintiff has also produced Xerox copy of
notice dated 17.5.2004 issued to defendant by the
present plaintiffs. Issue of this notice has been
admitted by the Defendant herein. On perusal of this
notice, which is not marked, however not denied by the
defendant, it clearly goes to show that it was brought
to the notice of the defendant in the year 2004 itself,
that Sri Sabari Corporation came to be converted into a
co-ownership concerned and all the names of plaintiffs
herein are mentioned in the said notice. Therefore,
now the defendant cannot contend that he is not aware
of formation of Sri Sabari Co-ownership. The learned
counsel for the plaintiff also argued that Sri Sabari
Corporation partnership firm came to be dissolved and
notice of the same was recorded on 7.6.1985 with
effect from 7.12.1978 as per form No.A.1, issued by the
Registrar of Firm as per Ex.P-6. It is not denied by the
Defendant. Therefore, it is clear that Sri Sabari
Corporation came to be dissolved with effect from
7.12.1978 and the notice of the same was given to the
concerned authority. The names of 7 partners are
mentioned in Ex.P-8 and after dissolution of the
partnership firm, a co-ownership was constitute.
Therefore, there is no question of transfer of any right,
title or interest over the schedule property to others.
Because it is only an internal arrangement. Therefore,
for the reasons stated above, I am of the opinion that
the plaintiffs are entitled to recover possession of
schedule premises from the defendant and hence, my
findings on issue No.3 is also in the affirmative.”
(quoted verbatim)
11. The receipt of the notice dated 17th May, 2004 has
been accepted by the defendant in paragraph 7 of his
written statement in the following terms:-
“7. The defendant humbly submits that on an
earlier occasion namely on 17th May 2004 Sri Sabari
Corporation has attempted to terminate the
tenancy, defendant’s mother opposed the
termination notice. Thereafter Sri Sabari
Corporation has demanded a sum of Rs.2,00,000/-
(as additional advance) from defendant, since there
was a threat of eviction, defendant has paid of sum
of Rs.2,00,000/- (Rs.Two lakhs) to Sri Sabari
Corporation. After receiving a sum of Rs.2,00,000/-
from the defendant Sri Sabari Corporation has
withdrawn the notice dated 17th May, 2004, assured
him that it will not terminate the tenancy and
allowed him to continue to carry the business as per
the agreement of lease dated 10.5.1978. On the
assurance of the plaintiff that it will not terminate
the tenancy, he has borrowed a sum of Rs.7,00,000/-
and spent for the interiors as well as the furnitures in
the schedule premises.
12. Plaintiffs’ argument on law is that in an eviction suit,
title need not to be proved in a manner required in a suit for
declaration of title. On this count, the following passage
from the case of Apollo Zipper (supra) has been cited:-
“40… It is a settled principle of law laid down by this
Court that in an eviction suit filed by the landlord
against the tenant under the rent laws, when the
issue of title over the tenanted premises is raised,
the landlord is not expected to prove his title like
what he is required to prove in a title suit.”
Two earlier authorities, Sheela vs. firm Prahlad rai
Premm Prakash [(2002) 3 SCC 375] and Boorugu
Mahadev & sons vs. Srigiri [(2016) 3 SCC 343] broadly
lay down the same principle of law. It is not the law that in a
landlord-tenant suit the landlord cannot be called upon at
all to prove his ownership of a premises, but onus is not on
him to establish perfect title of the suit property.
13. The other limb of defence of the tenant related to
admissibility of Exhibit P5, which in substance is a
modification instrument of an earlier co-ownership
agreement of the year 1993. Exhibit P5 however, is a
document that came into existence after the suit was
instituted on 15th November, 2006. This document is dated
5th May, 2007. There is reference in this document to an
earlier co-ownership agreement effected on 10th March,
1993. The necessity of executing Exhibit P5 appears to be
demise of two of the co-owners, who were parties to the
aforesaid document of 1993 and their shares were
transferred to their respective widows. But the suit cannot
turn solely on the basis of this document. Neither this
document per se establishes plaintiffs’ ownership of the
subject property.
14. The plaint, exhibits and deposition of the plaintiffs’
witness do not adequately explain the journey of the
subject premises from the erstwhile partnership firm, which
had inducted mother of the present defendant as a tenant,
to the seventeen individuals operating as a co-ownership
firm. What has been argued on behalf of the appellant is
that upon dissolution of the firm, there was sharing of
residue assets thereof under Section 48 of the Partnership
Act 1932 among the partners or their legal representatives.
On the controversy of inadequate payment of stamp duty, it
was argued on behalf of the appellant, relying on a decision
of this Court in the case of S.V. Chandra Pandian Vs. S.
V. Sivalinga Nadar (1993) 1 SCC 589 that in such cases
of sharing of residual assets of a partnership firm, payment
of stamp duty equivalent to that of transfer or conveyance
of property is not necessary. It has been held in this case:-
“16… From the foregoing discussion it seems clear
to us that regardless of its character the property
brought into stock of the firm or acquired by the
firm during its subsistence for the purposes and in
the course of the business of the firm shall
constitute the property of the firm unless the
contract between the partners provides otherwise.
On the dissolution of the firm each partner
becomes entitled to his share in the profits, if any,
after the accounts are settled in accordance with
Section 48 of the partnership Act. Thus in the
entire asset of the firm all the partners have an
interest albeit in proportion to their share and the
residue, if any, after the settlement of accounts on
dissolution would have to be divided among the
partners in the same proportion in which they were
entitled to a share in the profit. Thus during the
subsistence of the partnership a partner would be
entitled to a share in the profits and after its
dissolution to a share in the residue, if any, on
settlement of accounts. The mode of settlement of
accounts set out in Section 48 clearly indicates
that the partnership asset in its entirety must be
converted into money and from the pool the
disbursement has to be made as set out in clause
(a) and sub-clauses (i), (ii) and (iii) of clause (b)
and thereafter if there is any residue that has to be
divided among the partners in the proportions in
which they were entitled to a share in the profits of
the firm. So viewed, it becomes obvious that the
residue would in the eye of the law be movable
property i.e. cash, and hence distribution of the
residue among the partners in proportion to their
shares in the profits would not attract Section 17 of
the Registration Act. Viewed from another angle it
must be realised that since a partnership is not a
legal entity but is only a compendious name each
and every partner has a beneficial interest in the
property of the firm even though he cannot lay a
claim on any earmarked portion thereof as the
same cannot be predicated. Therefore, when any
property is allocated to him from the residue it
cannot be said that he had only a definite limited
interest in that property and that there is a transfer
of the remaining interest in his favour within the
meaning of Section 17 of the Registration Act.
Each and every partner of a firm has an undefined
interest in each and every property of the firm and
it is not possible to say unless the accounts are
settled and the residue or surplus determined what
would be the extent of the interest of each partner
in the property. It is, however, clear that since no
partner can claim a definite or earmarked interest
in one or all of the properties of the firm because
the interest is a fluctuating one depending on
various factors, such as, the losses incurred by the
firm, the advances made by the partners as
distinguished from the capital brought in the firm,
etc., it cannot be said, unless the accounts are
settled in the manner indicated by Section 48 of
the Partnership Act, what would be the residue
which would ultimately be allocable to the
partners. In that residue, which becomes divisible
among the partners, every partner has an interest
and when a particular property is allocated to a
partner in proportion to his share in the profits of
the firm, there is no partition or transfer taking
place nor is there any extinguishment of interest of
other partners in the allocated property in the
sense of a transfer or extinguishment of interest
under Section 17 of the Registration Act. Therefore,
viewed from this angle also it seems clear to us
that when a dissolution of the partnership takes
place and the residue is distributed among the
partners after settlement of accounts there is no
partition, transfer or extinguishment of interest
attracting Section 17 of the Registration Act.”
15. The documents through which the plaintiffs claim to
have come to own the property were not adequately
stamped and for that reason, such document could not be
relied upon. To this argument of the defendant, stand of the
plaintiffs has been that once a document has been admitted
without objection, in view of Section 35 of the Karnataka
Stamp Act (a provision similar to Section 36 of the Indian
Stamp Act 1899) such objection could not be taken at the
appellate stage. The case of Dr. Chiranji Lal (D) (supra)
Vs. Haridas 2005 SCC 746 was cited on behalf of the
defendant. But we need not enter into this controversy
while examining the rival claims in this appeal as the
document which was effectively made exhibit and relied
upon, is exhibit P5. This document came into existence
after filing of the suit. We are to determine the position as it
subsisted prior to the institution of the suit and existence of
this document in isolation does not have any impact on the
case of either of the parties.
16. An application, registered as I.A. No. 1/2009 has been
taken out by the plaintiffs in connection with the present
Civil Appeal, through which the appellant seeks to introduce
to the present proceeding the following documents:-
(i) partnership deed dated 10.10.1975 constituting firm by
Name Sri Sabari Corporation
(ii) Deed of dissolution dated 7.12.1978 dissolving the firm
by name Sri Sabari Corporation.
(iii) Co-ownership agreement dated 7.12.1978
(iv) copy of registered agreement declaring interest in coownership
property dated 19.3.1993
(v) Income Tax returns of V. Sivagupta wherein income from
suit scheduled property is shown as HUF income.
(vi) Income Tax returns of S. Giridhar wherein income from
suit scheduled property is shown as HUF income.
17. These documents, however, would have to be proved
to enable the plaintiffs to show the journey path of the title
of the subject premises. At this stage, we do not think we
can enter into that exercise, which would call for proving of
these documents. We have to examine the respective
claims without reverting to the documents annexed to this
application. The permission to file these documents was
given by this Court on 16th January, 2009. Upon going
through the application however we decline to permit the
appellant to adduce fresh evidence before this Court at this
stage of the proceeding.
18. Without the aid of these documents annexed to the
aforesaid interlocutory application, the Trial Court found
plaintiffs had established title superior to that of the tenant
in respect of the subject premises. The Trial Court has
proceeded on a principle akin to admission by the
defendant of plaintiffs’ position as that of the landlords of
the subject-premises. That is the underlying reasoning of
the Trial Court’s judgment. According to the original
plaintiffs, the defendant entered into negotiation with them,
for which paragraph 7 of the written statement has been
relied upon. The said notice of 2004, however, was not
made exhibit. The High Court, in the judgment under appeal
has not dealt with finding of the Trial Court on this aspect of
the suit. This is a point which could have material impact on
adjudication of the rival claims. We hold so because the
defendant’s defence on derivative title would not survive if
the appellant can establish that from the notice of 17th May
2004 the ownership of seventeen original plaintiffs could be
established. In that event, Section 116 of the Evidence Act,
1872 would become applicable. The defendant’s continued
payment of rent thereafter would constitute acknowledging
the said plaintiffs as his landlord. This would result in
creation of attornment, as held in the cases of Bismilla Be
(supra) and Apollo Zippers (supra). To conclude this part
of the controversy, factual enquiry is necessary which the
High Court exercising its appellate jurisdiction has not gone
into.
19. We have already opined that sufficient material was
not there before the first two Courts to establish the original
plaintiffs’ claim of ownership of the subject premises on the
basis of a family arrangement after dissolution of the firm.
The appellant’s attempt to adduce additional documents to
establish his stand on that point has been rejected by us at
this stage. The ratio of the judgment in the case of
S.V.Chandra Pandian (supra) cannot be applied in the
present proceeding as there is no material before us from
which we could conclude that the original plaintiffs’ title to
the subject-premises came from residue assets of the
dissolved firm. In a landlord-tenant suit, the landlord is not
required to prove his title in the subject property as in a
title-suit. But when the landlord’s derivative title is
challenged, the same has to be established in some form.
On this point the original plaintiffs have failed before the
first two Courts.
20. In such circumstances, for the reasons already
indicated, we set aside the judgment under appeal and
remand the matter to the High Court for readjudicating the
rival claims and defence. Before the High Court the
appellant shall be at liberty to file appropriate application
for producing additional evidence and if such an application
is filed, the same shall be considered on its own merit.
21. Since substantial time has lapsed after the suit was
instituted, we request the High Court to decide the appeal
on remand as expeditiously as possible. The appeal stands
allowed in the above terms. As we are remanding the
matter, we do not consider it necessary to make a detailed
analysis of title of the original plaintiffs or their successor.
……………………………..J.
( Deepak Gupta)
New Delhi,Dated: December 18, 2019
…………………………….J.
(Aniruddha Bose)
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