Anita Pawar & Others v. Soma Devi Jain

1. The respondent filed an eviction petition bearing no. E-27/2012 (RC ARC no.6195/2016) titled as Soma Devi Jain V Anita Pawar & others under section 14(1)(e) read with section 25B of the Delhi Rent Control Act, 1958 (hereinafter referred to as “the Act”) on 29.03.2012 against the petitioners on the ground of bonafide requirement in respect of shop bearing no. G-14, ground floor, South Extension Part-I, New Delhi measuring 927 square feet (hereinafter referred to as “the tenanted premises”) as shown in yellow colour in the site plan annexed with the eviction petition. The petitioners filed an application for leave to defend on 29.05.2012 which was allowed vide order dated 31.08.2013 passed by the court of Mr. Manish Yaduvanshi, SCJ-cum-RC, South, Saket Courts, Delhi. The court of Ms. Surya Malik Grover, SCJ-cum-RC, South, Saket Courts, Delhi (hereinafter referred to as “the trial court”), after trial, passed an eviction order vide judgment dated 29.09.2016 (hereinafter referred to as “the impugned judgment”) in respect of the tenanted premises in favour of the respondent and against the petitioners. The petitioners being aggrieved, filed the present revision petition to challenge the impugned judgment. RC.REV. 34/2017 Page 3

2. The respondent is stated to have expired on 02.03.2020. Thereafter, Dr. (Mrs.) Sangeeta Jain (hereinafter referred to as “the applicant”) filed applications bearing nos. CM APPL. 11464/2020 and CM APPL. 11530/2020 (both applications are identical in contents) under section 151 read with Order 22 Rule 4 of the Code of Civil Procedure, 1908 (hereinafter referred to as “the Code”) for impleadment as the legal heir of the deceased respondent. The petitioners filed application bearing no. CM APPL. 21832/2020 under section 151 read with Order 22 Rule 4 of the Code for impleadment of the legal heirs of the deceased respondent. These applications are under disposal.

3. The applicant in applications bearing no. CM APPL. 11464/2020 and CM APPL. 11530/2020 stated that the petitioners filed the present revision petition to challenge the impugned judgment passed by the trial court in respect of tenanted premises as shown in yellow colour in site plan annexed with the petition. The respondent during her lifetime had executed a Gift Deed dated 27.02.2012 in respect of tenanted premises which was registered on 01.03.2012 in favour of the applicant who is the daughter-in-law RC.REV. 34/2017 Page 4 (wife of son of the respondent namely Arun Jain). The petitioners also filed said gift deed by way of application bearing no. CM APPL. 32679/2018 on record which was decided by this Court vide order dated 14.08.2018. The applicant prayed that the applicant be impleaded as the legal heir of the respondent.

4. The petitioners filed replies to the applications wherein stated that the said applications are frivolous, misleading and not maintainable. The respondent filed the eviction petition falsely claiming to be the owner and landlord of tenanted premises on the ground of bonafide need for herself and son Arun Jain (husband of applicant Sangeeta Jain). The petitioners after filing of the present petition, came to know that the respondent had executed the gift deed whereby the respondent transferred the tenanted premises in favour of the applicant before filing the eviction petition under section 14(1)(e) of the Act. The respondent with malafide intention did not disclose that she was not the owner of the tenanted premises. The petitioners moved an application under Order 41 Rule 27 read with section 151 of the Code bearing no. CM APPL. 32679/2018 for bringing on record additional evidence which was allowed by this RC.REV. 34/2017 Page 5 Court vide order dated 14.08.2018. The respondent affirmed execution of the gift deed in favour of the applicant in respect of tenanted premises and conceded that the respondent was not the owner of the tenanted premises at the time of filing the eviction petition. 4.[1] The applicant Sangeeta Jain has misled the Court by claiming to be the legal heir of the respondent being her daughter-in-law despite there being Class-I legal heirs of the respondent. The applicant does not have locus to be impleaded as the legal heir of the respondent as the applicant is not a legal representative of the deceased respondent as per section 2(11) of the Code as the tenanted premises was not a part of the estate of the respondent. The respondent was not having any legal right to file the eviction petition as the respondent was not the owner of the tenanted premises which is an essential ingredient under section 14(1)(e) of the Act. The applicant has concealed material facts from the Court as the applicant had knowledge of the gift deed in question since 2012. The applicant has become the owner of the tenanted premises under law of transfer of property and not by means of intestate succession or testamentary RC.REV. 34/2017 Page 6 succession. It was prayed that the applications be dismissed with heavy cost.

5. The petitioners filed CM APPL. 21832/2020 for impleadment of legal heirs of the respondent as mentioned in para 7 of the application. The petitioners, besides reiterating the factual position and the contents of replies filed on behalf of the petitioners to applications bearing nos. CM APPL. 11464/2020 and CM APPL. 11530/2020, stated that the respondent filed the present eviction petition in her personal capacity. The trial court passed eviction order vide impugned judgment while observing that the respondent was owner of the tenanted premises. The respondent prior to the filing of eviction petition had already transferred the tenanted premises in favour of the applicant and did not disclose that she was not owner of the tenanted premises on the date of filing of the present eviction petition. The respondent expired during the pendency of the present revision petition on 02.03.2020 and no right survives in favour of the legal heirs of the respondent to continue with the present proceedings as the respondent herself could not have maintained the petition. If the right to sue is held to be personal right which extinguishes on the RC.REV. 34/2017 Page 7 death of a person and does not devolve upon the legal representatives of the deceased person, then it is the end of the suit. The petitioners prayed that CM APPL. 21832/2020 be allowed and the legal heirs of the respondent as detailed in para no. 7 of the application be impleaded in place of the respondent being Class-I legal heirs as per the Schedule of the Hindu Succession Act, 1956.

6. Sh. Manish Vashisht, the learned Senior Counsel for the applicant advanced arguments and written submissions were also submitted on behalf of the applicant. He stated that the respondent was the owner and admittedly was landlord of the tenanted premises which was let out to the predecessor-in-interest of the petitioners by the respondent in the year 1963. The petitioners filed an application bearing no. CM APPL. 32679/2018 wherein alleged that the respondent, prior to filing of present eviction petition in year 2012, transferred tenanted premises vide gift deed dated 27.02.2012 in favour of the applicant and as such the respondent was not owner of the tenanted premises on the day of filing of present eviction petition and the said application was allowed vide order dated 14.08.2018. RC.REV. 34/2017 Page 8 6.[1] Sh. Vashisht further stated that the respondent filed an application bearing no. CM APPL. 52161/2019 wherein stated that the gift deed was purely a family arrangement and the respondent had already bequeathed the tenanted premises in favour of her son Arun Jain vide Will dated 17.06.2010. The respondent executed the gift deed to save her son Arun Jain from litigation as there was serious acrimony between her two sons. The petitioners did not file any reply. The respondent expired on 02.03.2020. The applicant filed CM APPL. 11464/2020 (and CM APPL. 11530/2020) being the legal representative of the deceased respondent on basis of gift deed executed by the respondent in favour of the applicant. The petitioners filed application bearing no. CM APPL. 21832/2020 to delay proceedings of the present revision petition. 6.[2] Sh. Vashisht also highlighted the arguments advanced on behalf of the petitioners that the respondent was neither owner nor landlord of the tenanted premises on the date of filing of present eviction petition due to execution of gift deed on 27.02.2012 in favour of the applicant. Sh. Vashisht to counter the arguments advanced on behalf of the petitioners, argued that application bearing RC.REV. 34/2017 Page 9 no. CM APPL. 21832/2020 is contradictory in nature and the petitioners do not have locus standi to challenge the status of the applicant as legal representative of the respondent as the petitioners themselves filed application bearing no. CM APPL. 32679/2018. There is no violation of section 14(6) of the Act as the gift deed was not executed in favour of a stranger but it was executed in favour of wife of beneficiary of Will dated 17.06.2010. The respondent filed application bearing no. CM APPL. 52161/2019 to highlight the background of execution of gift deed dated 27.02.2012 and the respondent also deposed about execution of Will dated 17.06.2010 before the trial court during trial. Rajiv Jain, the other son of the respondent was not having good relations with the applicant and Arun Jain. The gift deed was purely an internal family arrangement and tenanted premises was never transferred to any stranger. Sh. Vashisht placed reliance on V. N. Sarin V Major Ajit Kumar Poplai, AIR 1966 SC 432. Sh. Vashisht further countered the argument advanced on behalf of the petitioners that eviction petition under section 14(1)(e) of the Act can only be filed by a person who is owner as well as landlord of the tenanted premises and after referring RC.REV. 34/2017 Page 10 Kanaklata Das & others V Naba Kumar Das & others, (2018) 2 SCC 352, argued that it is only the landlord who can file eviction petition and not the owner and only two persons are necessary parties for the decision of the eviction petition which are landlord and tenant. Sh. Vashisht also argued that the applicant and Arun Jain appeared as witnesses during trial before the trial court but they never challenged the title or entitlement of the respondent as landlord and/or owner of the tenanted premises and there was no conflict of interest between them. The petitioners always accepted the respondent as their landlord till her demise and the petitioners do not have any right either to challenge the Will or the family arrangement after death of the respondent. Sh. Vashisht also referred Custodian of Branches of Banco National Ultra Marino V Nalini Bai Naque, 1989 Supp. (2) SCC 275 and Hans Raj and another V Jeet Kaur, 2002 (61) DRJ 314.

7. Sh. J. P. Sengh, the learned Senior Counsel for the petitioners argued that the respondent executed gift deed dated 27.02.2012 in favour of the applicant before filing the present eviction petition and as such, the eviction petition filed by the respondent was illegal, RC.REV. 34/2017 Page 11 non-est and void ab initio. The respondent never disputed execution of gift deed dated 27.02.2012. The tenanted premises was not a part of the estate of the respondent and hence, the right to sue does not survive in favour of the applicant. The petitioners came to know about execution of gift deed only after filing of present revision petition. Sh. Sengh further argued that the applicant is neither a legal representative under section 2(11) of the Code nor the applicant can claim herself to be sole legal heir in present petition and relied on Mercy V Aisha Ummal, (1987) 2 KLT 166. It was argued that no right to sue survives after death of the respondent and as such, no legal representative can be substituted.

8. It is reflecting that the respondent was owner and landlord of tenanted premises which was let out to the predecessor-in-interest of the petitioners in the year 1963. The respondent filed an eviction petition titled as Soma Devi Jain V Anita Pawar & others bearing no. E-27/12 (RC ARC no.6195/2016) on 29.03.2012 under section 14(1)(e) of the Act on ground of bonafide requirement against the petitioners. The trial court passed an eviction order against the petitioners after trial vide impugned judgment. The petitioners being RC.REV. 34/2017 Page 12 aggrieved, filed the present revision petition. The respondent was having two sons namely Rajiv Jain and Arun Jain who is husband of the applicant. Rajiv Jain allegedly was not having good relations with the respondent and Arun Jain and his family. The respondent had executed a Will dated 17.06.2010 in favour of Arun Jain whereby she bequeathed the tenanted premises to Arun Jain. The respondent also executed a Gift Deed dated 27.02.2012 which was registered on 01.03.2012 in favour of the applicant in respect of tenanted premises i.e. before filing the present eviction petition. The respondent did not disclose the execution of Gift Deed dated 27.02.2012 in favour of the applicant in eviction petition. The petitioners came to know about execution of Gift Deed dated 27.02.2012 only after passing of eviction order against them vide the impugned judgment. The petitioners have filed an application bearing no. CM APPL. 32679/2018 under Order 41 Rule 27 of the Code for placing on record the Gift Deed dated 27.02.2012 which was allowed by this Court vide order dated 14.08.2018 and the Gift Deed was taken on record. The respondent also filed an application bearing no. CM APPL. 52161/2019 wherein stated that execution of Gift Deed in RC.REV. 34/2017 Page 13 favour of the applicant in respect of tenanted premises was purely a family arrangement due to acrimonious relations between Arun Jain and Rajiv Jain and that she had already executed a Will dated 17.06.2010 in respect of tenanted premises in favour of Arun Jain. The respondent had expired on 02.03.2020 leaving behind legal heirs as detailed in para no. 7 of CM APPL. 21832/2020 filed by the petitioners.

9. Issue which needs judicial consideration is that whether the applicant is entitled for substitution in place the respondent on the basis of Gift Deed dated 27.02.2012 which was stated to have been executed before filing of present eviction petition.

10. Section 2(11) of the Code defines legal representative which means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued. The Supreme Court in Custodian of Branches of Banco National Ultra Marino V Nalini Bai Naque RC.REV. 34/2017 Page 14 (supra), as also referred by the learned Senior Counsel for the applicant, observed as under:-

4. After hearing learned counsel for the parties, we are of the opinion that the learned Judicial Commissioner committed serious error of law in setting aside the order of the trial judge. “Legal Representative” as defined in Civil Procedure Code, which was admittedly applicable to the proceedings in the suit, means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued. The definition is inclusive in character and its scope is wide, it is not confined to legal heirs only instead it stipulates a person who may or may not be heir, competent to inherit the property of the deceased but he should represent the estate of the deceased person. It includes heirs as well as persons who represent the estate even without title either as executors or administrators in possession of the estate of the deceased. All such persons would be covered by the expression “legal representative”. If there are many heirs, those in possession bona fide, without there being any fraud or collusion, are also entitled to represent the estate of the deceased. 10.[1] The present eviction petition was filed by the respondent under section 14(1)(e) of the Act on the ground of bonafide requirement. It is an accepted legal proposition that in order to succeed in a petition under section 14(1)(e) of the Act, the petitioner must be landlord as well as owner of the tenanted premises however, he may not be RC.REV. 34/2017 Page 15 absolute owner of the tenanted premises. The respondent was owner and landlord of the tenanted premises and there is no dispute between the parties about this factual position. The respondent admittedly executed a registered gift deed dated 27.02.2012 in favour of the applicant in respect of tenanted premises but before filing of present eviction petition. The respondent also executed a Will dated 17.06.2010 in favour of her son Arun Jain in respect of tenanted premises but before execution of gift deed dated 27.02.2012. It means that the applicant after execution of gift deed dated 27.02.2012 acquired right, title and interest in respect of the tenanted premises and execution of gift deed was also never challenged or disputed by any of the legal heirs of the respondent as detailed in para no. 7 of CM APPL. 21832/2020. Accordingly, the applicant can be legally and validly classified as legal representative/legal heir of the respondent after her death by virtue of registered gift deed dated 27.02.2012.

11. Sh. Sengh, the learned Senior Counsel for the petitioners primarily argued that the respondent was not owner and landlord of the tenanted premises at the time of filing of present eviction petition RC.REV. 34/2017 Page 16 due to execution of gift deed in favour of the applicant in respect of tenanted premises prior to the filing of present eviction petition and as such, the eviction petition was non-est, void ab initio and not maintainable. Sh. Sengh also argued that right to sue does not survive in favour of the applicant as the tenanted premises was not part of estate of the respondent and the applicant does not qualify as legal representative of the respondent. Sh. Vashisht, the learned Senior Counsel for the applicant primarily argued that the execution of gift deed dated 27.02.2021 was only an outcome of family arrangement and the applicant and Arun Jain never disputed or objected the title or entitlement of the respondent in respect of tenanted premises. The argument so advanced by Sh. Vashisht appeared to be attractive but legally cannot be accepted as after execution of gift deed in favour of the applicant, the respondent was left with no right, title or interest in respect of tenanted premises. Although the respondent also executed a Will dated 17.06.2010 in favour of Arun Jain but it was prior to execution of gift deed in favour of the applicant. The registered gift deed cannot be brushed aside on ground that it was an outcome of family arrangement and neither the applicant nor Arun Jain RC.REV. 34/2017 Page 17 challenged the right or title of the respondent in respect of tenanted premises. The written document or instrument cannot be overshadowed by oral submissions however, oral submissions may be factually correct in the background. The right, title and interest of the applicant in respect of tenanted premises came into force from date of execution of gift deed dated 27.02.2012 and not from the day of death of the respondent. The right, title and interest of the applicant in respect of tenanted premises was not contingent or enforceable on or after death of the respondent. The applicant is entitled for substitution as respondent in place of the deceased respondent Soma Devi Jain to the exclusion of legal heirs of the respondent as detailed in para no. 7 of CM APPL. 21832/2020 as the right to sue survives in favour of the applicant.

12. The legal issue which has been raised by Sh. Sengh on behalf of the petitioners that filing of present eviction petition was illegal as per section 14(1)(e) of the Act as the respondent was not the owner and landlord of the tenanted premises at that time can only be considered at appropriate stage but not in the present applications which are under consideration and disposal. RC.REV. 34/2017 Page 18

13. The arguments advanced and case laws cited by the respective learned Senior Counsel for the petitioners and the applicant are considered in the right perspective. Accordingly, in view of the above discussion, application bearing no. CM APPL. 11530/2020 (and CM APPL. 11464/2020) is allowed and the applicant is ordered to be substituted in place of deceased respondent Soma Devi Jain. The application bearing no. CM APPL. 21832/2020 filed by the petitioners is dismissed.

14. Nothing in this order shall be considered to be an expression on the final merits of the present revision petition. RC.REV. 34/2017 and CM APPLs. 52161/2019, 11465/2020, 21774/2020, 9200/2021 & 17113/2022