M/s. Nopany Investments (P) Ltd v. Santokh Singh (HUF)2007 (13) JT 448

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 TARUN CHATTERJEE, J. – 2. This appeal has been preferred before us, assailing the judgment and decree dated 19th of April, 2007, passed by the High Court of Delhi, whereby, the High Court had dismissed the appeal of the appellant, thereby affirming the judgments of the courts below decreeing the eviction suit filed at the instance of the respondent against the appellant.

4. On 16th of July, 1980, the appellant entered into a lease with Dr. Santokh Singh HUF for a period of 4 years, with respect to the property situated at N-112, Panchsheel Park, New Delhi (“the suit premises”), at a monthly rent of Rs. 3500/-. Accordingly, at the expiry of the aforesaid period of 4 years, a notice of eviction dated 5th of April, 1984 was issued which was followed by filing an eviction petition No. 432 of 1984 before the Additional Rent Controller by Jasraj Singh, claiming himself to be the Karta of Dr. Santokh Singh HUF. The Additional Rent Controller passed an order directing the appellant for payment of rent at the rate of Rs. 3500/-. After coming into force of Section 6A of the Delhi Rent Control Act, a notice dated 9th of January, 1992 was sent byJasraj Singh, in the above capacity, to the appellant for enhancement of rent by 10 percent and also termination of tenancy of the appellant. In reply to this notice, the appellant denied the right of the respondent to enhance the rent. Another notice dated 31st of March 1992 was sent afresh by the respondent notifying the appellant that the rent stood enhanced by 10 percent while the tenancy stood terminated w.e.f. 16/17th of July, 1992. The aforesaid eviction petition No. 432 of 1984 was withdrawn on 20th of August, 1992 by Jasraj Singh. Thereafter, a notice dated 3rd of September, 1992 was sent by Jasraj Singh asking the appellant to vacate the suit property to which the appellant did not concede and refused to vacate the same by a reply dated 24th of September, 1992. On 6th of February, 1993, Dr. Santokh Singh HUF, through Jasraj Singh, claiming himself to be the Karta of the HUF, instituted a suit seeking eviction of the appellant from the suit premises. The trial court decreed the respondent’s suit for possession, against which an appeal was preferred before the Additional District Judge, Delhi. The first appellate court dismissed the appeal summarily. Against this order of the first appellate court, a second appeal, being R.S.A. No. 146 of 2003, was preferred before the High Court of Delhi, which remanded the matter to the first appellate court for fresh consideration. In pursuance of this direction of the High Court, the first appellate court, after fresh consideration of the matter, affirmed the judgment passed by the rial court thereby dismissing the appeal of the appellant herein. Being aggrieved and dissatisfied with the order of the first appellate court, the appellant preferred a second appeal, being R.S.A. No. 209 of 2005, before the High Court of Delhi, which, however, was also dismissed. It is this decision of the High Court of Delhi, which is impugned in this appeal and in respect of which leave has already been granted.

5. The pivotal questions, inter alia, in the facts and circumstances of this case, which warrant our determination are as follows: 33

(i) Whether Jasraj Singh could file the suit for eviction, in the capacity of the Karta of Dr. Santokh Singh HUF, when, admittedly, an elder member of the aforesaid HUF was alive?

(ii) Whether the High Court was right in concluding that the first appellate court had duly dealt with all the issues involved and re-appreciated evidence as provided under O.41 R.31 of the Code of Civil Procedure (in short “the CPC”)?

(iii) Whether the contractual tenancy between the landlord and tenant came to an end merely by filing an eviction petition and whether the landlord could seek enhancement of rent simultaneously or post termination of tenancy? (iv) Whether the landlord could issue a notice under Section 6A of the Delhi Rent Control Act, 1958 (in short “the Act”) for increase of rent without seeking leave of the rent controller during the pendency of an order under Section 15 of the Act directing the tenant to deposit rent on a month to month basis ?

6. We have heard the learned counsel for the parties. As regards the first issue, as noted hereinabove, the learned senior counsel Mr. Gupta appearing on behalf of the appellant had questioned the maintainability of the suit filed at the instance of Jasraj Singh, claiming himself to be the Karta of Dr. Santokh Singh HUF. The learned counsel Mr. Gupta strongly argued before us that in view of the settled principal of law that the junior member in a joint family cannot deal with the joint family property as Karta so long as the elder brother is available, the respondent herein, who is admittedly a junior member of the family, could not have instituted the eviction suit, claiming himself to be the Karta of the family. In support of this argument, the learned senior counsel Mr. Gupta has placed reliance on the decisions of this court in Sunil Kumar v. Ram Prakash[(1988) 2 SCC 77] and Tribhovan Das Haribhai Tamboliv. Gujarat Revenue Tribunal [(1991) 3 SCC 442]. Before we look at the views expressed by the High Court on this question, it would be pertinent to note the ratios of the two authorities cited before us. In Sunil Kumar v. Ram Prakash, this court held as follows: – In a Hindu family, the Karta or Manager occupies a unique position. It is not as if anybody could become Manager of a joint Hindu family. As a general rule, the father of a family, if alive, and in his absence the senior member of the family, is alone entitled to manage the joint family property. From a reading of the aforesaid observation of this court in Sunil Kumar v. Ram Prakash, we are unable to accept that a younger brother of a joint Hindu family would not at all be entitled to manage the joint family property as the Karta of the family. This decision only lays down a general rule that the father of a family, if alive, and in his absence the senior member of the family would be entitled to manage the joint family property. Apart from that, this decision was rendered on the question whether a suit for permanent injunction, filed by co-parcerners for restraining the Karta of a joint hindu family from alienating the joint family property in pursuance of a sale agreement with a third party, was maintainable or not. While  considering that aspect of the matter, this court considered as to when could the alienation of joint family property by the Karta be permitted. Accordingly, it is difficult for us to agree with Mr. Gupta, learned senior counsel appearing for the appellant, that the decision in Sunil Kumar v. Ram Prakash [supra] would be applicable in the present case which, in our view, does not at all hold that when the elder member of a joint hindu family is alive, the younger member would not at all be entitled to act as a manager or Karta of the joint family property. In Tribhovandascase, this court held as follows: The managership of the joint family property goes to a person by birth and is regulated by seniority and the karta or the manager occupies a position superior to that of the other members. A junior member cannot, therefore, deal with the joint family property as manager so long as the karta is available except where the karta relinquishes his right expressly or by necessary implication or in the absence of the manager in exceptional and extraordinary circumstances such as distress or calamity affecting the whole family and for supporting the family or in the absence of the father whose whereabouts were not known or who was away in remote place due to compelling circumstances and that his return within the reasonable time was unlikely or not anticipated From a careful reading of the observation of this court in Tribhovandas case, it would be evident that a younger member of the joint hindu family can deal with the joint family property as manager in the following circumstances:- (i) if the senior member or the Karta is not available; (ii) where the Karta relinquishes his right expressly or by necessary implication; (iii) in the absence of the manager in exceptional and extra ordinary circumstances such as distress or calamity affecting the whole family and for supporting the family; (iv) in the absence of the father: – (a) whose whereabouts were not known or (b) who was away in a remote place due to compelling circumstances and his return within a reasonable time was unlikely or not anticipated. Therefore, in Tribhovandas case, it has been made clear that under the aforesaid circumstances, a junior member of the joint Hindu family can deal with the joint family property as manager or act as the Karta of the same.

7. From the above observations of this court in the aforesaid two decisions, we can come to this conclusion that it is usually the father of the family, if he is alive, and in his absence the senior member of the family, who is entitled to manage the joint family property. In order to satisfy ourselves whether the conditions enumerated in Tribhovandas case have been satisfied in the present case, we may note the findings arrived at by the High Court, which are as follows: –

 (i) Jasraj Singh, in his cross examination before the trial court had explained that his eldest brother Dhuman Raj Singh (supposed to be the Karta of the HUF) has been living in United Kingdom for a long time. Therefore, the trial court had rightly presumed that Dhuman Raj Singh was not in a position to discharge his duties as Karta of the HUF, due to his absence from the country.

 (ii) The respondent produced the xerox copy of the power of attorney given by Dhuman Raj Singh to Jasraj Singh.

(iii) The trial court relied upon the law discussed in the books namely, “Principles of Hindu Law” by Mulla and Mulla and “Shri S.V. Gupta onHindu Law”, wherein it has been observed that ordinarily, the right to act as the Karta of HUF is vested in the senior-most male member but in his absence, the junior members can also act as Karta.

(iv) There was no protest by any member of the joint Hindu family to the filing of the suit by Jasraj Singh claiming himself to be the Karta of the HUF. There was also no whisper or protest by Dhuman Raj Singh against the acting of Jasraj Singh as the Karta of the HUF. It may also be noted that the High Court relied on the decision of this court in Narendrakumar J. Modi v. Commissioner of Income Tax, Gujarat II, Ahmedabad [(AIR) 1976 SC 1953], wherein it was held that so long as the members of a family remain undivided, the senior member of the family is entitled to manage the family properties and is presumed to be manager until contrary is shown, but the senior member may give up his right of management, and a junior member may be appointed manager. Another decision in Mohinder Prasad Jain v. Manohar Lal Jain [2006 II AD (SC) 520], was also relied upon by the High Court wherein it has been held at paragraph 10 as follows:

10. A suit filed by a co-owner, thus, is maintainable in law. It is not necessary for the co-owner to show before initiating the eviction proceeding before the Rent Controller that he had taken option or consent of the other co-owners. However, in the event, a co-owner objects thereto, the same may be a relevant fact. In the instant case, nothing has been brought on record to show that the co-owners of the respondent had objected to eviction proceedings initiated by the respondent herein. Having relied on the aforesaid decisions of this Court and a catena of other decisions and the findings arrived at by it, as noted hereinabove, the High Court rejected the argument of the appellant that Jasraj Singh could not have acted as the Karta of the family as his elder brother, namely, Dhuman Raj Singh, being the senior most member of the HUF, was alive. In view of our discussions made herein earlier and considering the principles laid down in Tribhovandas case and Sunil Kumar case, we neither find any infirmity nor do we find any reason to differ with the findings arrived at by the High Court in the impugned judgment. It is true that in view of the decisions of this court in Sunil Kumar’s case and Tribhovandas case, it is only in exceptional circumstances, as noted herein earlier, that a junior member can act as the Karta of the family. But we venture to mention here that Dhuman Raj Singh, the senior member of the HUF, admittedly, has been staying permanently in the United Kingdom for a long time. In Tribhovandas case itself, it was held that if the Karta of the HUF was away in a remote place, (in this case in a foreign country) and his return within a reasonable time was unlikely, a junior member could act as the Karta of the family. In the present case, the elder brother Dhuman Raj Singh, who is permanently staying in United Kingdom was/is not in a position to handle the joint family property for which reason he has himself executed a power of attorney in favour of Jasraj Singh. Furthermore, there has been no protest, either by Dhuman Raj Singh or by any member of the HUF to the filing of the suit by Jasraj Singh. That apart, in our view, it would not be open to the tenant to raise the question of maintainability of the suit at the instance of Jasraj Singh as we find from the record that Jasraj Singh has all along been realizing the rent from the tenant and for this reason, the tenant is now estopped from raising any such question. In view of the discussions made herein above, we are, therefore, of the view that the High Court was fully justified in holding that the suit was maintainable at the instance of Jasraj Singh, claiming himself to be the Karta of the HUF.