GAUTAM CHAND VS. LAL CHAND (S.B.CIVIL WRIT PETITION NO.9541/08) 1 GAUTAM CHAND VS. LAL CHAND (S.B.CIVIL WRIT PETITION NO.9541/08) Dated :- 21st July,2009 HON'BLE MR.JUSTICE SANGEET LODHA Mr. K.C.Samdariya,for the petitioner. Mr. Anjay Kothari, for the respondent. 1. In this writ petition, the petitioner has assailed the order dated 5.8.08 passed by the Rent Tribunal, Pali in Rent Case No. 18/07, whereby an application preferred by the petitioner (tenant) seeking direction against the respondent (landlord) to produce an earlier Will referred to in the Will dated 10.5.84 produced on record , stands rejected. 2. The respondent filed an application before the Rent Tribunal , Pali against the petitioner for eviction from the disputed premises i.e. a shop, on the grounds in terms of Section 9(b) to (d), (g) & (m)(ii) of the Act of the Rajasthan Rent Control Act,2001( in short “the Act of 2001” hereinafter). The application is being contested by the petitioner by filing a reply thereto. 3. The respondent has filed rejoinder, affidavits and a document i.e. Will dated 10.5.84 executed by his mother in his favour. The petitioner preferred an application before the Tribunal to struck off the aforesaid rejoinder, affidavits and the document from record and also made an alternative prayer that the respondent herein may be directed to produce earlier Will GAUTAM CHAND VS. LAL CHAND (S.B.CIVIL WRIT PETITION NO.9541/08) 2 referred to in the Will dated 10.5.84 produced on record. The application was contested by the respondent by filing a reply. 4. After due consideration, the application has been rejected by the learned Tribunal vide order dated 26.10.07, which is impugned in this writ petition. 5. It is submitted by the learned counsel for the petitioner that admittedly, in Will dated 10.5.84 produced on record by the respondent before the learned Tribunal, there is a reference of an earlier Will executed by the testator Smt. Badami Bai, therefore, the learned Tribunal has seriously erred in rejecting the application seeking direction for production of the earlier Will , especially, when from very inception,the petitioner had raised the question of ownership of the respondent over the premises inasmuch as, the rent receipts were issued in the name of Smt. Badami Bai. It is submitted by the learned counsel that as per provisions of Section 64 of the Indian Succession Act, 1925, if a testator, in a Will or a codicil duly attested, refers to any other document then actually written as expressing any part of his intentions, such document, shall be deemed to form a part of the Will or codicil in which it is referred to, therefore, the Will produced without such referred document is incomplete document and cannot be relied upon. The learned counsel submitted that the order impugned passed by the learned GAUTAM CHAND VS. LAL CHAND (S.B.CIVIL WRIT PETITION NO.9541/08) 3 Tribunal ignoring the provisions of Section 64 of the Act of 1925 is ex facie illegal and cannot be sustained. 6. It goes without saying that a contract of tenancy between landlord and tenant must exist before the landlord can file an application for eviction under the provisions of Act of 2001. The words “landlord” and “tenant” stand defined under Section 2(c) & 2(i) of the Act of 2001 respectively. In order to appreciate the issue involved, it will be appropriate to reproduce the provisions of Section 2(c) & 2(i) of the Act of 2001, which read as under:- “2(c) “landlord” means any person who for the time being is receiving or is entitled to receive the rent of any premises, whether on his own account or as an agent,trustee, guardian or receiver for any other person, or who would so receive or be entitled to receive the rent, if the premises were let to a tenant; 2(i) “tenant” means- (i)the person by whom or on whose account or behalf rent is, or but for a contract express or implied, would be payable for any premises to his landlord including the person who is continuing in its possession after the termination of his tenancy otherwise than by an order or decree for eviction passed under the provisions of this Act; and (ii) in the event of death of the person referred to in sub-clause(i), (a) in cases of premises let out for residential purposes, his surviving spouse, son, daughter, mother and father who had been ordinarily residing with him in such premises as member of his family upto his death; (b) in case of premises let out for commercial or business purposes, his surviving spouse, son, GAUTAM CHAND VS. LAL CHAND (S.B.CIVIL WRIT PETITION NO.9541/08) 4 daughter, mother and father who had been ordinarily carrying on business with him in such premises as member of his family upto his death.” 7. A bare perusal of the definition of “landlord” quoted hereinabove makes it abundantly clear that the ownership of the premises is not the essential characteristic of a landlord, rather, it is the receipt of the rent or the entitlement to receive the rent. The definition of “landlord” as set out u/s 2(c) is very wide and it includes in itself even the persons who are not actual landlords in common parlance. Thus, for the determination of the question of landlord and tenant relationship in a suit for eviction under the provisions of the Act of 2001, the question of title or ownership of the premises is not required to be gone into, but , the questions with regard to the landlord and tenant relationship, their rights and liabilities arising in the matter have to be determined. 8. In the instant case, a perusal of the reply to the Rent Application filed on behalf of the petitioner goes to show that the relationship of the landlord and tenant between the plaintiff and the defendant has not been denied. Rather, it is stated that after the death of Smt. Badami Bai, her sons and daughters have automatically become the landlord. Further, it has also been admitted that for last few years , the rent of the premises was being collected from the petitioner by the respondent only. GAUTAM CHAND VS. LAL CHAND (S.B.CIVIL WRIT PETITION NO.9541/08) 5 Moreover, if the respondent is not able to establish the landlord and tenant relationship in terms of the provisions of the Act of 2001, the application for eviction filed by him is bound to fail. But, if the petitioner is occupying the premises as tenant of the respondent-landlord then, he has no right to question his title over the premises in question in a suit for eviction and Rent Tribunal is not required to determine the question of title or ownership over the disputed premises. Therefore, non production of alleged earlier Will, existence whereof has been denied by the respondent is not going to prejudicially affect the petitioner in any manner. 9. That apart, a perusal of the Will dated 10.5.84 (Annexure 4) reveals that the earlier Will has not been referred to for the purpose of making its content as part of the Will. It appears to have been referred in general terms that the earlier Will executed by the testator Smt. Badami Bai with regard to her movable and immovable properties shall be treated to be cancelled so far as the shop covered by the subsequent Will is concerned. The genuineness of the Will has not been disputed before the learned Tribunal by the petitioner therefore, in a matter of eviction of tenant from suit premises wherein question of landlord's title over the premises is not required to be determined, the question of directing the respondent to produce GAUTAM CHAND VS. LAL CHAND (S.B.CIVIL WRIT PETITION NO.9541/08) 6 the earlier Will referred in the Will 10.5.84 even otherwise, does not arise. That apart, in considered opinion of this court, if on account of non existence or non availability of th earlier Will referred is not produced then too, the Will produced by the petitioner so as to establish his ownership over the premises in question cannot be held to be inadmissible in evidence. Therefore, viewed from any angle, the contentions raised on behalf of the petitioner are devoid of any merit. 10. In the result, the writ petition fails, it is hereby dismissed. No order as to costs. (SANGEET LODHA),J. Aditya/-