2021 Supreme(SC) 178 ; 2021 Supreme(SC) 179

SUPREME COURT OF INDIA
ASHOK BHUSHAN, S. ABDUL NAZEER, HEMANT GUPTA, JJ.
Kiran Devi – Appellant
Versus
The Bihar State Sunni Wakf Board And Others – Respondent
Civil Appeal No. 6149 of 2015
Decided on : 05-04-2021

IMPORTANT POINTS
(1) Petition styled as one under Article 226 would not bar High Court to exercise jurisdiction under Act and/or under Article 227 of Constitution.
(2) Contract of tenancy is an independent contract than joint Hindu family business.
(3) Hindu Joint Hindu Family cannot be presumed to be in existence only on the basis of Ration Card unless there is evidence that funds of joint Hindu Family were invested in business in tenanted premises.

Headnote:

(A) Constitution of India – Articles 226 and 227 – Writ Petition – Nomenclature under which petition is filed is not quite relevant and it does not debar Court from exercising its jurisdiction which otherwise it possesses – Petition styled as one under Article 226 would not bar High Court to exercise jurisdiction under Act and/or under Article 227 of Constitution – Jurisdiction of High Court to examine correctness, legality and propriety of determination of any dispute by Tribunal is reserved with High Court – Nomenclature of proceedings as a petition under Article 226 or a petition under Article 227 is wholly inconsequential and immaterial. (Paras 20, 22 and 23)

(B) Wakf Act, 1995 – Sections 83(9), 85 and 85A – Transfer of declaratory suit to Wakf Tribunal – Plaintiff had filed proceedings before Civil Court itself but same was objected to by appellant as well as by Waqf Board – It is not conferment of jurisdiction by plaintiff voluntarily but by virtue of a judicial order which has now attained finality between parties – Suit was accordingly decided by Waqf Tribunal – It is not open to appellant to raise objection that Waqf Tribunal had no jurisdiction to entertain suit in facts of present case – High Court in exercise of jurisdiction conferred under proviso to sub-section (9) of Section 83 of Act does not act as appellate court – It was a contract of tenancy entered upon by great grandfather of plaintiff – Even if great grandfather was maintaining family out of income generated from hotel business, that itself would not make other family members as coparceners in hotel business – It was contract of tenancy which was inherited by grandfather of plaintiff who later surrendered it in favour of Wakf Board – Tenancy was an individual right vested with grandfather of plaintiff who was competent to surrender it to landlord – High Court has clearly erred in law by holding that since grandfather was a tenant, tenancy is a joint family asset – Contract of tenancy is an independent contract than joint Hindu family business – Act of surrender of tenancy was for benefit of Joint Hindu family – Order of High Court set aside and that of Wakf Tribunal restored. (Paras 14, 20, 32, 35, 37 and 38)

(C) Hindu Law – Joint Hindu Family – Even if a male member had taken premises on rent, he is tenant in his individual capacity and not as Karta of Hindu Undivided Family in absence of any evidence that Karta was doing business for and on behalf of Joint Hindu Family – Hindu Joint Hindu Family cannot be presumed to be in existence only on the basis of Ration Card unless there is evidence that funds of joint Hindu Family were invested in business in tenanted premises – There can be presumption of Hindu joint family property if property has been acquired by male member or if same has been treated as joint Hindu family – But no such presumption is attached to a business activity carried out by an individual in a tenanted premise. (Paras 29 and 31)

Facts of the case:

Challenge in the present appeal is to an order passed by High Court of Judicature at Patna dated 6.2.2013 whereby a writ petition filed by respondent No. 41 herein was allowed, holding that the tenant in the premises in question was representing a joint Hindu family and that Karta was not competent to surrender the tenancy rights in favour of respondent No. 1-The Bihar State Sunni Wakf Board2 and consequently the induction of appellant as a tenant by the Wakf Board was illegal. Accordingly, a direction was issued to dispossess the appellant from the suit premises and to handover the vacant possession to plaintiff.

Findings of Court:

Evidence produced by the plaintiff is payment of rent by either Ram Sewak Ram or by the grandfather of the plaintiff. Such payment of rent is not indicative of the fact that the hotel business was by the joint Hindu family.

Result : Appeal allowed.