Full Judgment Text
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PETITIONER:
MST. SURAYYA BEGUM, ETC.
Vs.
RESPONDENT:
MOHD. USMAN AND ORS., ETC.
DATE OF JUDGMENT26/04/1991
BENCH:
SHARMA, L.M. (J)
BENCH:
SHARMA, L.M. (J)
VERMA, JAGDISH SARAN (J)
CITATION:
1991 SCR (2) 517 1991 SCC (3) 114
JT 1991 (2) 435 1991 SCALE (1)810
ACT:
Delhi Rent Control Act. 1958/ Code of Civil
Procedure,1908: Section 25 Section 11, Explanation VI and
47, and Order 1,Rule 8-Decree for eviction -Execution of -
All legal heirs of original tenants not impleaded in
evication proceedings-Whether Person not impleaded entitled
to contest execution petition-Principle of represention-
Applicability of-Succession to the tenancy of the deceased
Section 19 of the Hindu Succession Act, 1956-Scope of.
HEADNOTE:
The respondents-landlords in the two appeals obtained
decrees of eviction against the legal representatives of the
original tenants of the premises in dispute . In
execution, the appellants objected, contending that since
they were not impleaded as parties in the eviction
proceedings, their right to tenancy, which was an
independent one, could not be put to an end by permitting
the decrees to be executed, and that the decrees obtained
against other members of the family would not bind them.
While the courts below rejected the objection in one
case, in the other case the executing court held that in
view of the controversy on questions of fact involved, the
appellants objection could be finally decided only after the
parties were allowed to lead evidence, and hence fixed a
date for trial of the dispute. However, on appeal by the
landlord, the High Court held that the appelant was bound by
the decree and her objection was filed with the sole object
of delaying the execution. Hence, the appellant filed the
appeal,by special leave,contending that since she was left
out of the proceeding,the decree was not only not binding on
her, but it could not be kept alive even against the others.
On behalf of the decree-holders it was contended that
when the tenancy rights devolved the heirs of a tenant on
his death, the incidence of tenancy remained the same as
earlier enjoyed by the original tenant and it has a single
tenancy which devolved on them. There was no division of the
premises or of the rent payable, and the position as between
the landlord and tenant continued unaltered, andthe heirs
succeeded to the tenancy as joint tenants.
518
Allowing civil Appeal No.2056 of 1991 and dismissing
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Civil Appeal No. 2057 of 1991, this Court,
HELD: 1.1 The principle of representation of the
interest of a person, not impleaded by name in a judicial
proceeding, through a named party is not unknown. A Karta of
Joint Hindu Family has always been recognised as a
representative of the other members of the Joint Hindu
Family, and so has beenatrustee. In cases where the
provisions of order 1,Rule 8 of the Civil procedure Code
1908 are attracted, a named party in a suit represents the
other persons interested in the litigation, and likewise a
receiver appointed in one case represents the interests of
the litigating parties in another case against a stranger.
Similarly, the real owner is entitled to the benefits under
a decree obtained by his benamidar against a stranger and at
the same time, is also bound by the decision. Examples can
be multiplied. [522B-C]
1.2 Under Explanation VI to Section 11 of the Code of
Civil Procedure,1908 where persons litigate bonafide in
respect of a public right or of a private right claimed
in common for themselves and others, all persons interested
in such right shall, for the purposes of this section, be
deemed to claim under the persons so litigating, subject of
course,to the essential condition that the interest of a
person concerned has really been represented by the
others in other words, his interest has been looked after in
a bona fide manner. If there be any clash of interests
between the person concerned and his assumed representative,
or if the latter, due to collusion or for any other reason,
mala fide neglects to defend the case, he cannot be
considered to be a representatve.The issue, when it becomes
relevant has, therefore, to be answered with reference to
the facts and circumstances of the individual case. [522D-F]
1.3 So far as Section 19 of the Hindu Succession Act,
1956, is concerned, when it directs that the heirs of a
Hindu dying intestate shall take his property as tenants-in-
common, it is dealing with the rights of the heirs inter se
amongst them, and not with their relationship with a
stranger having a superior or distinctly separate right
therein. The relationship between the staranger and the
heirs of a deceased tenant is not the subject matter of the
section. Similar is the situation when the tenant is
Mohammedan. [524E-F]
1.4 In the instant case, in the first appeal, since
disputed questions of fact are involved, including the
parentage of the appellant and her allegations of collision
between the landlord and the other legal heirs, the High
Court, should not have closed the mater finally without
519
waiting for the evidence, as directed by the executing
Court. The judgement of the High Court is, therefore, set
aside and the matter remitted to the executing court for a
fresh decision after permitting the parties to lead
evidence. [522H,523A-B]
1.5 In the other appeal, although adequate liberty was
given by the Additional Rent Controller and the Tribunal to
lead evidence in support of their cases , appellant never
availed of the same and went on delaying the proceedings by
repeated prayers of adjournment. There were also other
circumstances adverse to the case of the appellants,
including the facts that the rent was paid to the landlord
by their mother and brothers and never by them , and they
are young girls in the family who are being looked after by
the elders. In the circumstances, they must be held to be
effectively represented by the named judgement
debtors.[523C-D]
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Textile Association (India) Bombay Unit v.Balmohan Gopal
Kurup and Another, [1990] 4SCC 700 and Kanji Manji v. The
Trustees of the Port of Bombay, [1962]Supp. 3 SCR 461,
referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2056-
2057 of 1991.
From the judgment and Order dated 23.7.1990 &15.11.90 of
Delhi High Court in C.M.(M.) Nos 288/89 and 357 of 1990.
Rajinder Suchher, Rajinder Mathur and Narain for the
Appellant.
Avadh Behari and B. Dutta, Raju Ramchandrean and Mrs.
Kiriti Misra for the Respondents.
The judgment of the Court was delivered by
SHARMA,J. 1. Special leave is allowed in both the cases.
Since they involve decision of some common questions of law
they are being disposed of together by this judgment.
2. The appellant Surayya Begum in the first case claims
herself as one of the nine legal representatives of Khalil
Raza, the original tenant of the premises in question, and
is objecting to the execution of the decree of eviction
obtained by the landlord-respondent No. 1 against the
respondent Nos. 2 to 9 who are sons, daughters and wife of
Khalil Raza . Her case is that she is also a daughter of
Khalil Raza, which is
520
denied by the respondent No. 1; and it is contended on her
behalf that since she was not impleaded as a party to
eviction proceeding started by the respondent, her right in
the tenancy which is an independent right, cannot be put to
an end by permitting the decree obtained to be executed. She
alleges collusion between them and the decree holder.
3. The landlord -decree holder has denied the existence
of another daughter of Khalil Raza by the name of Surayya
Begum. It is averred that the appellant who is an
objector has been set up by the respondent Nos. 2 to 9 to
defeat the decree against them which was contested for a
decade upto the stage of Supreme Court.
4. The executing court heard the parties and held that
in view of the controversy on questions of fact arising in
the case the appellant’s objection can be finally decided
only after the parties are allowed to lead evidence. A date
was accordingly fixed for trial of the disputed issue. The
respondent No 1 challenged this order before the Delhi High
Court. The High Court agreed with the decree holder
respondent holding that the appellant was bound by the
decree and her objection was filed with the sole object of
delaying the execution. Her application under secs. 47 and
151 of C.P.C. and sec.25 of the Delhi Rent Control Act was
accordingly dismissed . The appellant has challenged the
High Court’s decision in the present appeal.
5. It has been contended on behalf of the appellant that
she was as much a tenant as her mother, brothers and
sisters, and it is not sufficient for the landlord-
respondent to have obtained an eviction decree against the
others leaving out the appellant, as a result of which the
decree is not binding on her . Heavily relying upon the
decision in Textile Association (India) Bombay Unit v.
Balmohan Gopal Kurup and Another, [1990] 4 SCC 700 it was
urged that the decree could not be kept alive even against
the others and so the landlord cannot be put in possession
of the premises at all.
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6. In the civil appeal arising out of Special Leave
Petition No. 15021 of 1990 Shri Shiv Kumar Sharma, who was
a tenant in possession of the shop under dispute, died in
1982 leaving behind his widow, three sons and four daughters
as his heirs and legal representatives. Thereafter the
respondent-landlord commenced an eviction proceeding in
1985, out of which the present matter arises, and impleaded
only the wife and the sons of the deceased. Two of the four
daughters were married and the remaining two daughters,
appellants in the present
521
appeal, were staying in the house but not joined as parties.
The suit was contested by the mother and the brothers of the
appellant but,ultimately a decree for eviction was passed.In
execution, the unmarried daughters filed an objection inter
alia contending that they have independent title in the
tenancy and the decree obtained against the other members of
the family would not bind them. Reliance has been placed
upon the decision in the aforementioned Textile
Association’s case read with sec. 19 (b) of the Hindu
Succession Act.
7. The learned advocates representing the decree holders
in these two appeals have argued that when the tenancy
rights devolve on the heirs of a tenant on his death, the
incidence of tenancy remains the same as earlier enjoyed by
the original tenant and it is a single tenancy which
devolves on them. There is no division of the premises or of
the rent payable, and the position as between the landlord
and the tenant continues unaltered. Relying on Kanji Manji
v. The Trustees of the Port of Bombay, [1962]Supp. 3 SCR 461
and borrowing from the judgment in H.C.Pandey’s case (Supra)
it was urged that the heirs succeed to the tenancy as joint
tenants . The learned counsel for the appellants have
replied by pointingout that as the aforesaid two decisions
were distinguished by this Court in the latter case of
Textile Association (Supra), it was not open to the
landlords to support the impugned judgements by relying upon
the earlier two cases.
8. So far sec. 19 of the Hindu Succession Act is
concerned, when it directs that the heirs of a Hindu dying
intestate shall take his property as tenants-in-common, it
is dealing with the rights of the heirs inter se amongst
them ,and not with their relationship with a stranger having
a superior or distinctly separate right therein. The
relationship between the stranger and the heirs of a
deceased tenant is not the subject matter of the section.
Similar is the situation when the tenant is a Mohammedan .
However, it is not necessary for us to elaborate this aspect
in the present appeals . The main dispute between the
parties, as it appears from their respective stands on the
courts below , is whether the heirs of the original tenants
who were parties to the proceeding,represented the objector-
heirs also . According to the decree holder in Miss Renu
Sharma’s case their interest was adequately represented by
their mother and brothers and they are as much bound by the
decree as the named judgment debtors. In Surayya Begum’s
case the respondent No.1 has denied the appellant’s claim of
being one of the daughters of Khalil Raza, and has been
contending that the full estate of Khalil Raza which
devolved upon his heirs on his death was completely
represented by the respondent Nos. 2 to 9. In other words,
even if the
522
appellant is held to be a daughter of Khalil Raza the
further question as to whether her interest was represented
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by the other members of the family will have to be answered.
9. The principle of representation of the interest of a
person, not impleaded by name in a judicial proceeding,
through a named party is not unknown. A Karta of a Joint
Hindu Family has always been recognised as a representative
of the other members of the Joint Hindu family, and so has
been a trustee. In cases where the provisions of Order 1,
Rule 8 of the Civil Procedure Code are attracted a named
party in a suit represents the other persons interested in
the litigation, and likewise a receiver appointed in one
case represent the interest of the litigating parties in
another case against a stranger . Similarly the real owner
is entitled to the benefits under a decree obtained by his
benamidar against a stranger and at the same time is also
bound by the decision . Examples can be multiplied. It is
for this reason that we find explanation VI in the following
words in sec. 11of the Code of Civil procedure:
"Explanation VI-Where persons litigate bona fide in
respect of a public right or a private right
claimed in common for themselves and others, all
persons interested in such right shall, for the
purposes of this section, be deemed to claim under
the persons so litigating."
This of course, is subject to the essential
condition that the interest of a person concerned
has really been represented by the others; in other
words his interest has been looked after in a
bona fide manner. If there be any clash of
interests between the person concerned and his
assumed representative or if the latter due to
collusion or for any other reason, mala fide
neglects to defend the case, he can not be
considered to be a representative. The issue when
it becomes relevant has, therefore , to be
answered with reference to the facts and
circumstances of the individual case. There may be
instances in which the position is absolutely clear
beyond any reasonable doubt one way or the other
and the question can be settled without any
difficulty; but in other cases the issue may have
to be decided with reference to relevant evidence
to be led by the parties. Surayya Bagum’s case is
of this class while Renu Sharma’s appeal belongs to
the first category .
10. In surrayya begum’s case disputed questions of fact
are involved including the parentage of the appellant and
her allegations of collision between the landlord and the
respondents 2 to 9, and the
523
executing court had, therefore , invited the parties to lead
their evidence in support of their respective cases. The
High Court in the circumstances, should not have closed the
matter finally without waiting for the evidence. We,
therefore, set aside the impugned judgment and remit the
matter to the executing court for decision in the light of
the observations made above, after permitting the parties to
lead evidence. Her appeal is accordingly allowed but the
parties shall bear their own costs of this Court.
11. So far Renu Sharma’s matter is concerned, the situation
is very different. The judgments of the Additional Rent
Controller, Delhi and the Rent Control Tribunal, Delhi,
indicate that although the adequate liberty was given to the
present appellant to lead evidence in support of their cases,
they never availed of the same and went on delaying the
proceedings by repeated prayers of adjournment . They have
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also pointed out to the other circumstances adverse to the
case of the appellants, including the facts that the rent
was paid to the landlord by their mother and brothers and
never by them, and they are young girls in the family who
are being looked after by the elders. We are,in the
circumstances, of the view that they must be held to be
effectively represented by the named judgment-debtors. Their
appeal is accordingly dismissed with costs.
N.P.V. Appeal dismissed.
524