Sunday 30 May 2021

Whether tenant can challenge the validity of the landlord's family settlement on the ground that it is not registered?

 As far as the family settlement is concerned, as held by this

Court in Harbhajan Singh (supra), the petitioners as tenants cannot challenge the same for want of registration. I may only quote from the said judgement as under:

"4. Yet again the counsel for the petitioner has agitated

these issues before me. It is argued the family settlement dated

30.11.1998 is in fact a deed of partition which requires

registration and since is not registered; could not have been

relied upon by the learned ARC. I disagree with the

contention. Firstly, because even if this partition deed is

ignored still the petitioner is a co-owner of the property as has

inherited from common ancestor; and secondly, in Gopal

Kishan vs. Ram Saroop 243 (2017) DLT 66 the Court held a

tenant has no locus standi to challenge the family settlement so

arrived at between the members of the family of the land lord

even if it is not registered. All that the respondent lastly is to

show he is having a better status than the tenant, may be he is

not an absolute owner of the premises. Admittedly, the

petitioner has been paying rent to the respondent."{Para 10}

11. There is, therefore, enough material on record to substantiate

that the respondents were the owner- landlords of the tenanted shops. I therefore, find no merit in the submission of the petitioners in this  regard.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Decision : 16.12.2020

RC.REV. 188/2020

SURENDER KUMAR GUPTA & ORS.  Vs  MAHESH 

CORAM:

 MR. JUSTICE NAVIN CHAWLA

NAVIN CHAWLA, J. (Oral)

This hearing has been held by video conferencing.

CM 20063/2020 (exemption)

Allowed, subject to all just exceptions.

RC.REV. 188/2020 & CM 20062/2020

1. This petition has been filed challenging the order dated

21.10.2019 passed by the learned Additional Rent Controller (South),

Saket Courts in Eviction Petition no.35/2017 titled Mahesh & Anr.

vs. Surender Kumar Gupta & Ors., dismissing the application of the

petitioners seeking Leave to Defend against the above eviction

petition filed by the respondents.

2. The learned counsel for the petitioners has vehemently argued

that the respondents have failed to prove themselves to be the owners

of the shops in question that is Shop Nos.368/2 and 368/3 in property

bearing No.H-368, Ward No.4, Mohalla Imambara, Delhi-110030

(hereinafter referred to as the 'tenanted shops').

3. In this regard, the learned counsel for the petitioners submits

that in the eviction petition filed by the respondents, it was asserted

that the property in question was owned by Late Sh. Hazari Lal,

grandfather of the respondents, however, no document substantiating

such claim was filed by the respondents on record. He submits that in

the eviction petition, it was further mentioned that the property was

thereafter gifted by Late Sh.Hazari Lal to his wife-Smt. Vidyawati

alias Bhuddu. The gift deed which was filed by the respondents on

record, however, is in favour of ‘Bhuddu’, who has not been identified

in the gift deed as the grandmother of the respondents and therefore,

whether this gift deed in fact named Smt.Vidywati as the owner of the

property will be a disputed question of fact to be determined in the

trial, for which Leave to Defend was to be granted in favour of the

petitioners.

4. The learned counsel for the petitioners further submits that in

the eviction petition, it was further mentioned that the shops in

question have fallen in the share of the respondents under a Family

Settlement. The Family Settlement, which is placed on record, in fact, transfers the properties in the in presentine and therefore, would not confer any title on the respondents to the said shops without the

documents being registered. He submits that therefore, the ownership

of the respondents was a disputed question of fact, which require a

trial and at least Leave to Defend be granted in favour of the

petitioners.

5. As far as the bona fide necessity of the shops set out by the

respondents, the learned counsel for the petitioners submits that the

eviction petition was filed on 20.03.2017. To set up a case of the bona

fide necessity, the respondents placed on record a lease deed dated

21.09.2016, that is a few months prior to the filing of the eviction

petition, to assert that they were tenants in another shop which needed

to be vacated by them. He submits that therefore, an artificial need for

the tenanted shops was set up by the respondents and this could not

have been believed at least at the stage of consideration of application

seeking Leave to Defend.

6. On the other hand, the learned counsel for the respondents,

placing reliance on the judgment of this Court in Harbhajan Singh @

Bhajji vs. Mahavir Singh MANU/DE/0553/2019 and Rajender

Kumar Sharma & Ors. vs. Leela Wati & Ors. MANU/DE/1386/2008,

has submitted that the petitioners cannot challenge the Family

Settlement. He further submits that the predecessor in interest of the

petitioners have in fact admitted to the status of being tenants under

Smt. Vidyawati in form of a compromise that was recorded before the

learned Sub-Judge, Delhi in a Suit filed by Smt. Vidyawati.

7. He further submits that the petitioners have acted in a mala fide

manner inasmuch as they are not in occupation of the tenanted shops

and in fact are filing this petition merely to retain possession thereof

so as to extract money from the respondents.

8. I have considered the submissions made by the learned counsels

for the parties.

9. As far as the ownership of Smt.Vidyawati is concerned, the

respondents have placed on record the compromise recorded before

the learned Sub-Judge, Delhi in Suit no.608/1958, wherein the

predecessors in interest of the petitioners have admitted themselves to

be tenants under Smt.Vidyawati with respect to the tenanted shops.

The respondents have also placed on record the Gift Deed executed in

favour of Smt.Vidyawati. Though, it may be correct that the same

describes the donee to be ‘Buddhu’, it also records that ‘Buddhu’ is

the wife of Sh.Hazari Lal. The insistence of the petitioners qua the

respondents to prove even the ownership of Sh.Hazari Lal cannot be

accepted as a ground to grant them leave to defend. The

landlord/landlady cannot be expected to prove the case to such

exactitude.

10. As far as the family settlement is concerned, as held by this

Court in Harbhajan Singh (supra), the petitioners as tenants cannot

challenge the same for want of registration. I may only quote from the said judgement as under:


"4. Yet again the counsel for the petitioner has agitated

these issues before me. It is argued the family settlement dated

30.11.1998 is in fact a deed of partition which requires

registration and since is not registered; could not have been

relied upon by the learned ARC. I disagree with the

contention. Firstly, because even if this partition deed is

ignored still the petitioner is a co-owner of the property as has

inherited from common ancestor; and secondly, in Gopal

Kishan vs. Ram Saroop 243 (2017) DLT 66 the Court held a

tenant has no locus standi to challenge the family settlement so

arrived at between the members of the family of the land lord

even if it is not registered. All that the respondent lastly is to

show he is having a better status than the tenant, may be he is

not an absolute owner of the premises. Admittedly, the

petitioner has been paying rent to the respondent."

11. There is, therefore, enough material on record to substantiate

that the respondents were the owner- landlords of the tenanted shops. I therefore, find no merit in the submission of the petitioners in this

regard.

12. As far as the bonafide necessity is concerned, the respondents

had pleaded the use of the shop taken on rent by them. The petitioners

apart from stating that the lease deed was executed just prior to filing

of the eviction petition, have not disputed the use of such property by

the respondents. I therefore, find no merit in this submission as well.

13. I further further find merit in the submission of the respondents

that the present petition has been filed with a mala fide intent of

somehow blackmailing the respondents. The respondents in the

eviction petition had asserted that the tenanted shops are not being

used by the petitioners and are in fact in dilapidated condition. The

petitioners in the Leave to Defend admitted that a portion of the shop

has fallen down and did not dispute that they are not in use of the

tenanted shops. Clearly, the petitioners are wanting to hold on to the

tenanted shops wanting to extract consideration from the respondents

for vacating the same.

14. In view of the above, I find no merit in the present petition The

same is dismissed with cost quantified at Rs.25,000/-.

NAVIN CHAWLA, J

DECEMBER 16, 2020


Print Page

No comments:

Post a Comment