Case: SANTOSH CHATURVEDI Vs. KAILASH CHANDRA

Shyam Bihari that all the averments are concocted and have been framed just to give colours to the matter, I am not satisfied with this argument. Because, the evidence has been filed on record that oral partition occurred on 15.11.1999 amongst Dwarka Prasad and his sons Vijay and Santosh Chaturvedi and his mother which was reduced in writing by a memorandum of family settlement dated 02.02.2000 which was confirmed by the decree of the original suit No.220/01. It is well settled law on this point that the partition can be oral and even written amongst the members of Hindu families. The Hindu Law is very much clear that if one coparcener expresses his desire for the partition then legally the partition/severance of the coparcenary property takes its effect from the same day i.e. from the day, coparcener had expressed his desire for the partition. 14. Though such detailed examination with regard to the nature of the right to the property has been made in the present case, we are of the opinion that the same was wholly unnecessary in a summary proceeding of the present nature when the tenant had not set up title to the premises in question. Irrespective of the fact as to whether the property was the coparcenary property or had become the absolute property of Shri Dwarka Prasad, the fact remains that a family settlement dated 15.11.1999 was entered into, to which Shri Dwarka Prasad who was the owner was himself a party and had given a portion of his property to his son. Pursuant to such oral family settlement dated 15.11.1999 a Memorandum dated 02.02.2000 was also drawn up. Subsequent thereto the appellant had also filed an Original Suit No.220/2001 seeking that the family settlement be declared as valid. The said suit was disposed of on 19.04.2001 based on the compromise. 15. Whether the share given by Shri Dwarka Prasad to the appellant who is his son is justified or as to whether the nature of the document under which the settlement was recorded was as per requirement of law and valid are all issues which can only be raised by any other member of the family who would feel deprived and could have claimed right over the such property. But in a circumstance where Shri Dwarka Prasad who admittedly was the owner of the property had made a settlement in favour of the appellant who is his son, the title thus acquired, in any event, cannot be called in question by the person who is in occupation of the premises as a tenant when Shri Dwarka Prasad who admittedly was his landlord did not continue to claim to be the landlord. If that be the position as rightly noticed by the Appellate Authority, in view of the provision as contained in Section 8 and Section 109 of Transfer of Property Act, on transfer of the property by the owner the tenant would automatically become the tenant of the transferee. The further observation of the Appellate Authority contained in its order to notice the relationship of landlord and tenant is as hereunder; ………………Even if, Shyam Bihari Lal has denied himself to be the tenant of the applicant, but here it is more important that another suit was pending amongst the parties for the eviction of tenant Shyam Bihari Lal where Shyam Bihari Lal had accepted himself to be the tenant of Santosh Chaturvedi and had deposited the rent on the first date of hearing of the suit and has also requested for extending the benefit of Section 20(4) of Act No.13 of 72, to him in that case. It will indicate that the respondents at this juncture cannot dispute the ownership of the appellant over the property or the jural relationship. 16. The aspect which is also necessary to be taken note is that the predecessor of the respondents late Shyam Bihari had initiated a proceeding in Suit No.113/2011 (Annexure R-12) before the Rent Control and Eviction Officer, Mathura wherein he had sought for allotment of alternate premises by indicating that the case bearing No.6/2010 had been initiated by the appellant herein against him. This would indicate that at the first instance, the predecessor of the respondents did not have any issue with regard to the ownership and was making an attempt to secure an alternate premises but has only thereafter raised the contention despite the relationship being indisputable. Therefore, taking into consideration all these aspects we are of the opinion that the view expressed by the Appellate Court is appropriate in the present facts and circumstance. 17. Having arrived at the above conclusion we have taken into consideration the nature of the claim made by the appellant for release of the property. From the evidence as tendered, the appellant had contended that he is doing wholesale business of cloth for which he does not have premises due to which he, his wife and two children are experiencing hardship. In a circumstance where there is no material available on record to indicate that the appellant has any other alternate premises, the bonafide need of the appellant as claimed will have to be accepted and even though the respondents would face some hardship, as compared to the same the hardship to be faced by the appellant would be greater if the premises is not released to the appellant. Though at this juncture the learned counsel for the respondents would submit that the alternate premises bearing No.83/9-C Chhatta Bazar, Mathura ordered to be made available to the respondents is not suitable, it is in fact an order made by the Appellate Court only in order to minimize the hardship. In that circumstance, if the said premises is not suitable, it is open to the respondents to not opt for the same. However, when the appellant has established that he is the owner of the property and the same is required for his bonafide occupation, the release of the premises in any event, is required to be made.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]. However, keeping in view the fact that the High Court in the instant case while examining the matter had two views before it, one taken by the Prescribed Authority and the other by the Appellate Authority which were divergent, one of the views was required to be accepted by examining the matter in that regard. Therefore, in the instant facts if that aspect of the matter is taken note, since the Prescribed Authority while examining the claim of the appellant herein had adverted to the manner in which the claim of ownership was made to the property and had held that the appellant cannot be considered as a coparcener to be accepted as the landlord, the High Court has also made a consideration in that regard to accept such view9. In order to examine that aspect of the matter a perusal of the papers would indicate that at the first instance the father of the appellant Shri Dwarka Prasad had become the owner of the property under a partition deed dated 09.07.1959. In that capacity, the predecessor of the respondents was the tenant under him and the said Shri Dwarka Prasad instituted an eviction petition against the predecessor of the respondents on 10.03.1979. In the said proceedings there was no dispute whatsoever with regard to the ownership of the property or the jural relationship of landlord and tenant between the father of the appellant and the predecessor of the respondents. It is no doubt true that the father of the appellant had failed in the said proceedings and presently the Petition bearing No.6/2000 was instituted by the appellant, who is his son, claiming to be the owner of the property14. Though such detailed examination with regard to the nature of the right to the property has been made in the present case, we are of the opinion that the same was wholly unnecessary in a summary proceeding of the present nature when the tenant had not set up title to the premises in question. Irrespective of the fact as to whether the property was the coparcenary property or had become the absolute property of Shri Dwarka Prasad, the fact remains that a family settlement dated 15.11.1999 was entered into, to which Shri Dwarka Prasad who was the owner was himself a party and had given a portion of his property to his son. Pursuant to such oral family settlement dated 15.11.1999 a Memorandum dated 02.02.2000 was also drawn up. Subsequent thereto the appellant had also filed an Original Suit No.220/2001 seeking that the family settlement be declared as valid. The said suit was disposed of on 19.04.2001 based on the compromise15. Whether the share given by Shri Dwarka Prasad to the appellant who is his son is justified or as to whether the nature of the document under which the settlement was recorded was as per requirement of law and valid are all issues which can only be raised by any other member of the family who would feel deprived and could have claimed right over the such property. But in a circumstance where Shri Dwarka Prasad who admittedly was the owner of the property had made a settlement in favour of the appellant who is his son, the title thus acquired, in any event, cannot be called in question by the person who is in occupation of the premises as a tenant when Shri Dwarka Prasad who admittedly was his landlord did not continue to claim to be the landlord. If that be the position as rightly noticed by the Appellate Authority, in view of the provision as contained in Section 8 and Section 109 of Transfer of Property Act, on transfer of the property by the owner the tenant would automatically become the tenant of the transferee16. The aspect which is also necessary to be taken note is that the predecessor of the respondents late Shyam Bihari had initiated a proceeding in Suit No.113/2011 (Annexure R-12) before the Rent Control and Eviction Officer, Mathura wherein he had sought for allotment of alternate premises by indicating that the case bearing No.6/2010 had been initiated by the appellant herein against him. This would indicate that at the first instance, the predecessor of the respondents did not have any issue with regard to the ownership and was making an attempt to secure an alternate premises but has only thereafter raised the contention despite the relationship being indisputable. Therefore, taking into consideration all these aspects we are of the opinion that the view expressed by the Appellate Court is appropriate in the present facts and circumstance17. Having arrived at the above conclusion we have taken into consideration the nature of the claim made by the appellant for release of the property. From the evidence as tendered, the appellant had contended that he is doing wholesale business of cloth for which he does not have premises due to which he, his wife and two children are experiencing hardship. In a circumstance where there is no material available on record to indicate that the appellant has any other alternate premises, the bonafide need of the appellant as claimed will have to be accepted and even though the respondents would face some hardship, as compared to the same the hardship to be faced by the appellant would be greater if the premises is not released to the appellant. Though at this juncture the learned counsel for the respondents would submit that the alternate premises bearing No.83/9-C Chhatta Bazar, Mathura ordered to be made available to the respondents is not suitable, it is in fact an order made by the Appellate Court only in order to minimize the hardship. In that circumstance, if the said premises is not suitable, it is open to the respondents to not opt for the same. However, when the appellant has established that he is the owner of the property and the same is required for his bonafide occupation, the release of the premises in any event, is required to be made.