Mulkh Raj vs Amar Nath and others

J.M. Tandon, J.—The premisses in dispute is house-cum-shop in Lakkar Bazar, Ludhiana. It was owned by Sita Ram (three-fourth share) and Kundan Lal (one-fourth share). Amar Nath respondent is the son of Sita Ram. Kundan Lal has three sons, namely, Lal Chand respondent,: Ram Nath respondent and Kulwant Rai,: Dharam Vir and Raj Kumar respondents are the sons of Kulwant Rai.

Sita Ram died in August, 1948, and Kundan Lal in November, 1949. On February 7, 1948, Lal Chand respondent allegedly took the premises in dispute on rent at Rs. 20/- per month from Sita Ram vide rent deed (Exhibit A-1) which was signed both by Lal Chand and Sita Ram. After the death of Kundan Lal in November, 1949, Lal Chand respondent-also inherited a share in the premises in dispute. In March, 1953, Lal Chand rented out the premises in dispute (or the shop portion) to Mulkh Raj. In March, 1973, Amar Nath, Ram Nath, Dharam Vir and Raj Kumar (respondents Nos. 1 to 4) filed ejectment petition against Mulkh Raj petitioner and Lal Chand respondent on the grounds of non-payment of rent since April, 1970, sub-1etting by Lal Chand respondent in favour of Mulkh Raj petitioner.

Lal Chand did not tender the arrears of rent nor did be contest the ejectment petition. The arrears tendered by Mulkh Raj petitioner was not accepted. The Rent Collector vide order dated November 4, 1974, held that the rent Exhibit A-1 is admissible inasmuch as it being compulsorily registrably is unregistered. It was also held that Lal Chand was a co-owner of the premises in dispute in 1953, and as such he was competent to let it out to the petitioner. The petitioner, was, therefore, not a sub-tenant under Lal Chand. The ejectment petition was dismissed. Respondents Nos. 1 to 4 filed appeal against the order of the Rent Controller which was allowed by the appellate Authority Ludhiana vide order dated April 27, 1977. The learned appellate Authority has held that Lal Chand was a tenant of the premises and he sub-1et the same in favour of Mulkh Raj in 1953. The contrary finding of the learned Rent Controller on this point was reversed. It is against this order of the appellate Authority that the present revision has been filed.

Lal Chand has appeared as a witness for the respondents. He proved the rent deed Exhibit A-1 which was objected to by the petitioner. He further stated that he was paying three-fourth share of the rent received by him at the rate of Rs. 20/- per month to Amar Nath respondent and the remaining to Dharam Vir, Raj Kumar and Ram Nath. He admitted that he was in arrears of rent claimed by the respondents with effect from April, 1970. He did not obtain permission from Amar Nath respondent when he sublet the shop to Mulkh Raj petitioner. In his cross-examination he stated that the property has already been partitioned. He denied that the ejectment application has been got filed by him nor did he tell the petitioner that he was letting out the property to him as owner. He admitted to have received rent from the petitioner till September, 1973 (The statement of Mulkh Raj was recorded on September 3, 1973) Amar Nath respondent also appeared as a witness and he stated that Lal Chand had given the shop on rent to Mulkh Raj petitioner without his consent. Lal Chand was in arrears since April 1, 1970. In his cross-examination he stated that one room and one shop had been given on rent to Lal Chand.

Mulkh Raj petitioner stated that the premises had been let out to him by Lal Chand in the presence of Amar Nath respondent. Lal Chand is the owner thereof. He was paying rent at the rate of Rs. 65/-per month to Lal Chand, who wanted that it should be increased to Rs. 100/- per month.

The rent deed Exhibit A-I is for the period February 1, 1948 to July 31,1948 It has been signed by Lal Chand as tenant and Sita Ram as landlord. Section 107 of the Transfer of Property Act which is applicable to Ludhiana reads:

Leases how made.--A lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent can be made only by a registered instrument.

All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession

Where a lease of immovable property is made by a registered instrument such instrument or, where there are more instrument then one, each such instrument shall be executed by both the lessor and the lessee;

* * * * *

In the instant case the lease in favour of Lal Chand is alleged to have been made by rent deed Exhibit A-1. It was thus not by oral agreement. The lease deed having been scribed and executed by both the lessor and the lessee it required compulsory registration u/s 107 of the Transfer of Property Act. A similar view was taken in Choeth Ram v. Siri Deep Chand Jain and another (1977) 79 P.L.R. 243. The Rent Controller as also the appellate Authority have rightly found that the lease deed A-1 being compulsorily registerable is in admissible in evidence becuase it is not registered.

The learned counsel for the petitioner has argued that the rent deed Exhibit A-1 is a forged document and it has been prepared collusively by the respondents to make the ground of sub-1etting by Lal Chand in favour of the petitioner for the latter''s ejectment, The contention of the learned counsel for the respondents is that the rent deed Exhibit A-1 is genuine and it has been duly proved to have been scribed by A. W. Babu Ram, Petition Writer, Ludiana. and executed by Lal Chand respondent and Sita Ram deceased. The genuineness of this document was not seriously challenged by the petitioner at the time the evidence was led. It is signed by Sita Ram who had died in August 1948. There could be no possible motive during the life-time of Sita Ram to forge the rent deed Exhibit A-1 for the reason that the petitioner occupied the shop under Lal Chand in 1953. It is thus proved that the rent deed Exhibit A-1 is a genuine document and has been rightly used for collateral purpose by the appellate Authority for ascertaining the status of Lal Chand in 1953 when he let out the shop to the petitioner.

The premises was let out to the petitioner by Lal Chand in 1953. Amar Nath respondent had inherited three-fourth share therein on the death of his father in August, 1948. Lal Chand and his two brothers owned the remaining one-fourth share. The petitioner paid Rs 65/- per month as rent from 1953 onwords till March, 1973. No objection was raised by any of the respondents, including Amar Nath who held the major share. It was for the first time in March, 1973, when the respondents excluding Mulkh Raj filed ejectment petition that the plea of sub-1etting by Lal Chand in favour of Mulkh Raj was raised. It is significant that Lal Chand did not contest the ejectment proceedings. He did not tender (he arrears of rent since, 1970. at the rate of Rs. 20/- per month on the first date of hearing, thus allowing the petition to succeed even on the ground of non-payment of rent. Lal Chand has otherwise admitted in his statement that he was in arrears of rent since 1970. The collusion between Lal Chand and the remaining respondents to the detriment of the petitioner is no secret.

The rent deed Exhibit A-1 purports to be dated February 7, 1984. On the back of the rent deed as also on the paper annexed there are 46 entries made in Urdu regarding the payment of rent by Lal Chand. Except two entries purporting to have been made in 1954 all the entries are in the handwriting of Lal Chand. The entries relate to the years 1948 to 1970. The colour of the ink used for making some of the entries is different from that of the other entries. It is, however, significant that the entry purported to have been made in 1948 looks as fresh as that made in 1969 or 1970 In fact, all the entries regarding the payment of rent for the years 1948 to 1970 made on the back of the rent deed as also on the paper annexed have been written at one time and to give the colour of genuineness thereto different ink has been Used. This glaring characteristic of the rent deed Exhibit A-1 supports the inference that it had not been executed in 1948 and that in fact it had been prepared at the time of filing the ejectment petition in 1973 with ulterior motives.

It is true that the rent deed Exhibit A-1 purports to have been signed by Sita Ram. Sita Ram died in 1948 whereas Mulkh Raj came in the picture in 1953. Mulkh Raj has not admitted the signatures of Sita Ram on rent deed as genuine. It was for the respondents including Lal Chand to establish that the rent deed Exhibit A-1 is genuine. No attempt has been made to yet the signatures of Sita Ram compared with some of his undisputed signatures. The contention of the learned counsel for the respondents that the rent deed Exhibit A-1 should be treated as genuine because it is signed by Sita Ram who died in August, 1948, cannot be upheld. The rent deed Exhibit A-1 has been prepared by the respondents to establish the ground of sub-1etting for ejectment of the petitioner It is a fake document. No reliance can be placed thereon even for collateral purposes to determine the status of Lal Chand as a tenant in 1953, when he let out the premises to the petitioner.

The learned counsel for the petitioner has argued that Lal Chand inherited 1/12th share in the premises in November, 1949, and as such he was a co-owner thereof in 1953 when he inducted the petitioner in the shop. A co-owner is competent to let out the joint property. The contention of the learned counsel for the petitioner must prevail. Lal Chand was admittedly a co-owner of the premises and as such he had a right to let out the shop to the petitioner. It is pertinent to note that Amar Nath who owned three-fourth share in the premises as also the brothers of Lal Chand did not object at any time before March, 1973, to the letting out of the shop by the latter to the petitioner.

Another point argued by the learned counsel for the petitioner is that the ejectment petition is liable to be dismissed because the respondents had sought the ejectment of the petitioner from 11/12th share and not from the whole. The respondents cannot split the tenancy. The only remedy open to them is to seek partition. In this context reliance has been placed on paragraph 5 of the ejectment application. This contention is without merit.

Paragraph 5 of the ejectment applicationreads :--

That in this way respondent No. 1 is tenant of petitioners of 11/12th share of the premises in dispute and respondent No. 1 is liable to pay Rs 18/34 per month as rent to the petitioners.

The averment made in paragraph 5 of the ejectment application is essentially restricted to the claim of the respondents to the arrears of rent The ejectment application had been filed by the respondents against Lal Chand and Mulkh Raj. The arrears of rent was claimed from Lal Chand. Lal Chand himself was a co-owner in the premises. He was also entitled to retain the rent of the shop to the extent of his share. It is under these circumstances that the respondents claimed arrears at the rate of Rs 18/34 per month being 11/12th share of Rs. 20/-. It may be added that in the relief paragraph, the respondents sought the ejectment of Lal Chand and Mulkh Raj from the entire premises in dispute and not from the 11/12th share therein.

In view of the discussion above, it is proved that Lal Chand was not a tenant of the premises when he let out the shop to the petitioner in 1953. Lal Chand being a co-owner could let out the shop to the petitioner. The petitioner is in occupation of the shop as a teuant and not as a sub tenant. He is not liable to be ejected on the ground of sub- letting in his favour. The petitioner did tender the arrears of rent claimed on the first date of hearing which was not accepted. The learned counsel for the petitioner has stated that the petitioner has paid upto date rent to Lal Chand which the latter has accepted. The petitioner is not liable to be ejected even on the ground of non-payment of arrears of rent.

In the result, the revision is allowed with costs throughout and the impugned order of the appellant Authority set aside and that of the Rent Controller dismissing the ejectment petition of the respondents restored.