ivil Appeal No 1810 of 1982
From the Judgment and Order dated 3031982 of the Delhi High Court in SAO No 204 of 1980
Ram Panjwani and Vijay Panjwani for the Appellant
Avadh Behari Rohtagi and PN Gupta for the Respondent
The Judgment of the Court was delivered by V RAMASWAMI J
The tenant is the appellant
The re spondent landlord filed a petition under section 141b of the Delhi Rent Control Act 1958 hereinafter referred to as the Act  for an order of eviction of the appellant tenant for a shop bearing No 361 Old No 467 25 A Azadpur GT Road Delhi on the ground that the tenant Duli Chand has sublet or parted with the possession of the said shop after 9th day of June 1952 to Ms Hira Lal Sri Bhagwan illegally and without the written consent of the landlord
The main contention of the tenant was that there was no sub letting or parting with the possession of the shop that Hira Lal was a relative of the tenant who died some time prior to 1958 that Sri Bhagwan is the son of the tenant and that the name of the business was given as Ms Hira Lal Sri Bhagwan in memory of the deceased relative Hira Lal
He further pleaded that the possession of the shop is with the tenant
Some other defences like the Respondent petitioner was not a landlord that he had no locus standi to file the petition for eviction and that the notice of termination of tenancy was not valid were taken in the written statement and they were overruled and do not survive for consideration in this appeal
On the main contention the tenant has taken up the defence that Sri Bhagwan is the son of the respondent and the name of the business Ms Hira Lal Sri Bhagwan is given only in memory of the deceased relative Hira Lal
A reply statement was filed by the land lord to the effect that though Sri Bhagwan was the natural son of the tenant Duli Chand he had been given in adoption to Hira Lal that on such adoption Sri Bhagwan had gone out of the family of the respondent and that it was a clear case of sub letting or parting with the possession of the shop
On the facts and circumstances of the case the question of subletting did not arise but the case was considered on the dispute whether the tenant had parted with possession of the shop
The tenant never pleaded that he had obtained any written consent from the landlord for parting with posses sion
The only question therefore for consideration in this case is as to whether the tenant had parted with pos session of the whole or part of the tenanted premises
The learned Rent Controller held that the landlord had not proved parting with possession of the tenanted shop by the tenant
On appeal by the landlord the Rent Control Tribunal held that the tenant had parted with the legal possession of the tenanted premises and in that view ordered the eviction of the tenant under section 141b of the Act
The second appeal filed by the tenant to the High Court was dismissed confirming the finding of the Rent Control Tribunal that the tenant had parted with possession of the tenanted shop
Section 141b of the Act provides that the Rent Controller may on an application made to him in the pre scribed manner make an order for recovery of possession of the premises on the ground 468 b that the tenant has on or after the 9th day of June 1952 sub let assigned or other wise parted with the possession of the whole or any part of the premises without obtaining the consent in writing of the landlord
 The parametric content and the meaning of the words parted with possession of the whole or any part of the premises had come up for consideration in a quite number of cases including some of the decisions of this Court
It is enough if we refer to the latest judgment of this Court on this point
In Jagan Nath deceased through LRs
vs Chander Bhan and Others   Mukharji J speaking for the Court held that parting with possession meant giving posses sion to persons other than those to whom possession had been given by the lease and the parting with possession must have been by the tenant user by other person is not parting with possession so long as the tenant retains the legal possession himself or in other words there must be vesting of possession by the tenant in another person by divesting himself not only of physical possession but also of the fight to possession
So long as the tenant retains the fight to possession there is no parting with possession in terms of clause b of section 141 of the Act
 The facts in this case as found by the Rent Control Tribunal which was accepted by the High Court are that the concern Ms Hira Lal Sri Bhagwan is the sole proprietary concern of Sri Bhagwan that Sri Bhagwan has been carrying on that business in the premises in dispute that Duli Chand tenant had no interest in the business that Sri Bhagwan is in exclusive possession of the property that tenant Duli Chand works at another Shop Ms Aggarwal Hard ware and Mills Stores with his younger son that there was no plea of concurrent user of the premises by the tenant nor there is any plea that Sri Bhagwan is a licensee that occasionally the tenant Duli Chand was seen sitting in the shop and that the tenant had not retained any control over the same
These facts clearly support the finding of Appel late Tribunal and High Court that the tenant had parted with legal possession of the shop to the said Sri Bhagwan
The learned counsel for the appellant however contend ed that Sri Bhagwan was not the adopted son of Hira Lal and that by permitting the son to carry on business it could not be stated that he had 469 parted with the legal possession of the premises
In this connection he drew our attention to the decision of this Court in Lakshman Singh Kothari vs Smt
Rup Kanwar  wherein this Court had held that in order that an adoption may be valid under Hindu Law there must be a formal ceremony of giving and taking by the natural parent and the adopted parent after exercising their volition to give and take the boy in adoption and that such an evidence of a valid adoption is not available in this case
The Appellate Tribunal and the High Court have dealt with the evidence available in this case in detail and came to the conclusion that Sri Bhagwan was adopted by Hira Lal
It is not neces sary for us to rely on the evidence available or the find ings as proof of a valid adoption under Hindu Law but the evidence and the findings are enough to show that though Duli Chand and Sri Bhagwan are father and natural son it is not possible to invoke any presumption that they constituted a Joint Hindu Family
It may also be mentioned that in the written statement the tenant had not pleaded specifically that he and Sri Bhagwan constituted a Hindu Joint Family that they are in joint possession that either the business is joint family business or Sri Bhagwan was permitted to use the premises for carrying on any business as licensee re maining in joint possession
The evidence on adoption is thus to be treated only relevant for the purpose of consid ering the question whether the tenant has not retained any control over the premises and that he has parted with the possession and we do not think that the Courts below erred in relying on the same for this purpose
At this stage we may dispose of another point raised by the learned counsel in connection with the admissibility of certain evidence in this case
In support of the case of the landlord that Sri Bhagwan was adopted by Hira Lal he exam ined three witnesses AW 2 AW 3 and AW 4
The first wit ness was an Inspector of House Tax According to this witness in the House Tax assessment register Sri Bhagwan was shown as the son of Hira Lal and residing at 26 Sarai Peepal Thalla which was the residence of Hira Lal and not that of tenant Duli Chand
The next witness was an Upper Division Clerk of the Excise Department
His evidence was to the effect that in the licence issued under the Central Excise Act the father s name of Sri Bhagwan was shown as Hira Lal
The other witness was Upper Division Clerk in the Sales Tax Department and his evidence was that Sri Bhagwan was an assessee of the Department and as per the records in his office the father s name of Sri Bhagwan was Hira Lal
The learned counsel contended that these evidences were inadmis sible under Section 91 of the Evidence Act
Section 91 of the Evidence Act provides 470 that when the terms of a contract or of a grant or of any other disposition of property have been reduced to the form of a document and in all cases in which any matter is required by law to be reduced to the form of a document no evidence shall be given in proof of the terms of such con tract grant or other disposition of property except the document itself or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions of Evidence Act
This Court has considered the scope of section 91 in Bai Hira Devi and Others vs The Official Assignee of Bombay  it was held therein The normal rule is that the contents of a document must be proved by primary evidence which is the document itself in original
Section 91 is based on which is sometimes de scribed as the best evidence rule
The best evidence about the contents of a document is the document itself and it is the production of the document that is required by section 91 in proof of its contents
In a sense the rule enunciated by section 91 can be said to be an exclusive rule inasmuch as it excludes the admission of oral evidence for proving the contents of the document except in cases where secondary evidence is allowed to be led under the relevant provisions of the Evidence Act
 The evidence in this case is not with reference to the terms of contract or grant or any other disposition of property which has been reduced to the form of a document or a case in which the matter is required by law to be reduced in the form of a document but the evidence is to the effect that Sri Bhagwan has given his father s name as Hira Lal while claiming ownership to the House No 26 Sarai Peepal Thalla to the Municipality and similarly the evidence of the other witnesses were that while applying for a licence he had given his name as son of Hira Lal
The evidence may be worth nothing without production of the extracts from the property register or the other books maintained by the departments
However that does not make the evidence itself inadmissible
The learned counsel for the appellant then contended that Sri Bhagwan had been carrying on business right from 1958 to the knowledge of the landlord and that therefore the landlord shall be deemed to have waived his right to get order of eviction on the ground of parting with the posses sion under section 141b of the Act
In this connection the learned counsel for the appellant relied on the 471 evidence of the landlord and some of his witnesses
The landlord in his evidence as AW 1 has stated that Sri Bhag wan has been to his knowledge sitting at the shop since the year 1968 that he has seen the board of Ms Hira Lal Sri Bhagwan since 1972 and that he was residing in the same building behind the shop in dispute
AW 5 who is the Uncle of the landlord who came to depose on behalf of the landlord in his evidence had stated that the firm Ms Hira Lal Sri Bhagwan is doing the business in premises since 1960 61
The tenant in his evidence has stated that the firm Ms Hira Lal Sri Bhagwan is functioning in the disputed premises for the last 18 years
The Rent Controller found that Shri Bhagwan was doing business in the said premises since 1962 ie after the death of Hira Lal
On the basis of this evidence the learned counsel contended that the landlord was aware that Shri Bhagwan was carrying on business for at least 16 years prior to the filing of the petition for eviction and in the circumstance he shall be deemed to have waived his claim for eviction under section 141b
The learned counsel for the landlord however contended that the land lord had not received the rent after he came to know of the parting with the possession by the tenant that he was col lecting rent till about 1972 only from the tenant Duli Chand that the tenant defaulted in payment of the rent subsequent to 1972 and the petition for eviction was filed thereafter in 1976 and in such circumstances there could be no question of waiving of his right with knowledge of part ing with possession by tenant could arise in this case
He also contended legally no such waiver could be pleaded on the language used in section 141b of the Act
In Associated Hotels of India Ltd Delhi vs SB Sardar Ranjit Singh  this Court held that a waiver is an intentional relinquishment of a known right
There can be no waiver unless the person against whom the waiver is claimed had full knowledge of his right and of facts enabling him to take effectual action for the enforce ment of such right
In the present case though there is some evidence to show that the sign board Ms Hira Lal Sri Bhagwan was seen in the premises since 1972 and the landlord had seen Sri Bhagwan sitting in the shop since the year 1968 there is no positive evidence to show when the landlord had came to know of Sri Bhagwan getting the exclusive possession and doing business in the premises
In fact since the question of waiver has not been raised in this form in the courts below there is no definite finding as to when the landlord came to know of such parting with possession and Sri Bhagwan doing business in the pre 472 mises as the sole proprietor of Ms Hira Lal Sri Bhagwan and whether he had received rent after such knowledge
We can not therefore permit this point to be raised for the first time in this Court nor can we go into this question of fact
That apart section 141b requires a consent in writing of the landlord in order to avoid an eviction on the ground of sub letting assigning or otherwise parting with the possession of the whole or any part of the premises
This Court considering the need for obtaining a consent in writ ing under the provision in Ms Shalimar Tar Products Ltd vs
HC Sharma and Others  quoted with ap proval the following passage from the judgment of the High Court in Delhi Vanaspati Syndicate vs Ms Bhagwan Dass Faquir Chand Section 16 of the Act of 1958 holds the key to the interpretation of provisions of clause b of sub section 1 of section 14 of this Act as well as of clause b of sub section 1 of section 13 of the Act of 1952
It deals with restrictions on sub letting
Sub section 1 of section 16 makes sub letting lawful though it was without the consent of the landlord provided that the sub letting has taken place before June 9 1952 and the sub tenant is in occupation of the premises at the time when the Act of 1958 came into force
Sub section 2 of section 16 reiterates the provisions of clause b of sub section 1 of section 13 of the Act of 1952 and lays down that the sub letting after June 9 1952 with out obtaining the consent in writing of the landlord shall not be deemed to be lawful
It does not say that the requisite consent should be obtained before sub letting the premises and the consent obtained after sub letting will not enure for the benefit of the tenant
However sub section 3 of Section 16 prohib its subletting of the premises after commence ment of Act of 1958 without the previous  consent in writing of the landlord
The use of the word previous  in this sub section shows that where it was the intention of the legis lature that the consent in writing should be obtained before sub letting it said so specif ically
The absence of the word previous  in sub section 2 shows that it was not the intention of the legislature that the consent in writing could be obtained before sub letting
Before the Act of 1952 a tenant could successfully show acquiescence of the landlord in subletting of escape forfeiture of tenancy
Since the absence of 473 consent in writing by a landlord for sub letting gave rise to Unnecessary litigation between a landlord and a tenant the Act of 1952 required the consent of the landlord in writing after its commencement
The purpose seemed to be that the consent of the landlord evidenced by a writing would cut out litiga tion on this ground
After all a landlord could always agree to sub letting either before or after sub letting of the premises
For that reason no condition was laid down that such consent should be obtained before sub letting the premises
 In the aforesaid view it was held that it was necessary for the tenant to obtain the consent in writing to sub letting the premises
The mere permission or acquiescence will not do
The consent shall also be to the specific sub letting or parting with possession
This Court further observed that the requirement of consent to be in writing was to serve a public purpose ie to avoid dispute as to whether there was consent or not and that therefore mere permission or acquiescence will not do
While noting that everyone has a right to waive and to agree to waive the advantage of a law made solely for the benefit and protec tion of the individual in his individual capacity in the context of the statutory provision of the Delhi Rent Control Act this Court further held that the requirement as to the consent being in writing was in the public interest and that therefore there cannot be any question of waiver of a right dealing with the rights of the tenants or landlord
The words used in the section are without obtaining the consent in writing of the landlord
 If the words were without consent of the landlord it might mean without consent express or implied and in that sense question of waiver may arise
The question of implied consent will not arise if the consent is to be in writing
The learned counsel for the appellant referred to a number of decisions of the English Courts in support of his contention
We do not think it necessary to refer to them in view of the direct decision of this Court on this point
In the circumstances there are no grounds to interfere with the decisions of the courts below
This appeal is accordingly dismissed with costs
Y Lal Appeal dis missed


Summary:
Section 72n of the Bihar State Madarasa Education Board Act 1982 confers power on the State Madarasa Educa tion Board to dissolve the managing committee of an aided and recognised Madarasa institution
The committees of management of the respondent institutions established by the Muslim minority community failed to comply with the direc tions issued by the Board with regard to payment of salary to teachers whereupon the Board in exercise of its power under section 72n of the Act dissolved the said committees
The respondents filed writ petitions under Article 226 of the Constitution assailing section 72n of the Act as violative of Article 301 on the ground that it interfered with their right of management of institutions
The High Court declared section 72n unconstitutional It however observed that the majority of members of the Madarasa Educa tion Board and its Chairman may not belong to minority community therefore the Board s constitution will not be in consonance with the minorities constitutional right under Article 30 of the Constitution
Dismissing the appeals by the Board the Court HELD 1 Article 301 of the Constitution protects the right of minorities to establish and administer educational institutions of their choice
The rights so granted are however not absolute
Minorities have no right to malamin ister
The State has power to impose regula 400 tions made in the interest of efficiency of institution s discipline health sanitation and public order even though such regulations may indirectly impinge on the exclusive right of administration and management of the institution
The State has however no power to completely take over the management of a minority institution under the guise of regulating the educational standards by superseding or dissolving managing committee or by appointing ad hoc com mittees in place thereof
403D F 404C E In the instant case section 72n of the Bihar State Madarasa Education Board Act 1982 in so far as it provides for dissolution of the managing committee of a Madarasa is clearly violative of constitutional right of minorities under Article 301 of the Constitution
404E F In re Kerala Education Bill 1957 1959 SCR 995 Sidha rajbhai vs State of Gujarat   State of Kerala vs Very Rev Mother Provincial etc
   Ahmedabad St Xaviers College Society vs State of Gujarat   Lilly Kurian vs Lawina  and All Bihar Christian Schools Assn
vs State of Bihar   referred to
Article 301 of the Constitution does not contem plate that an autonomous Educational Board entrusted with the duty of regulating efficiency in the aided and recog nised minority institutions should be constituted exclu sively by persons belonging to the minority community
In the instant case the constitution of the Board under section 3 of the Act ensures that its members are only those who are interested in teaching and research in Persian Arabic and Islamic studies
This provision fully safeguards the inter est of Madarasa of the Muslim community
The observations made by the High Court are contrary to the scope of Article 301 of the Constitution
404H 405A B C