1985 Supreme(Del) 354

High Court Of Delhi
LOV RAJ KUMAR - Appellant
Versus
MAJOR DAYA SHANKER - Respondent
. 27 of 1980
Decided On : 09/23/1985

Section 52 of the Transfer of Property Act, 1882 invalidates the creation of tenancies during the pendency of a suit, and the principles contained in the section are applicable even in areas where the Act is not in force, as they are based on justice, equity and good conscience.

Headnote:

SPECIFIC PERFORMANCE OF CONTRACT - DECREE - EXECUTION - POSSESSION - TENANCY RIGHTS - TRANSFER OF PROPERTY ACT, 1882, SECTION 52 - DELHI RENT CONTROL ACT, 1958 - APPLICABILITY - ESTOPPEL - WAIVER - DOCTRINE OF PROMISSORY ESTOPPEL - TRESPASSER - RIGHT TO POSSESSION - EVICTION.

Fact of the Case:

Major Daya Shankar executed an agreement to sell property No. 77, Sunder Nagar, New Delhi in favour of Shri Lov Raj Kumar. As Major Daya Shankar did not execute the sale deed in favour of the decree-holder, the latter instituted a suit on January 3, 1962 in the court of the Senior Sub Judge, Delhi. The suit was decreed in favour of the decree-holder on March 8, 1979. Brig. Bhawani Shanker, who claimed that the property was joint Hindu family one and that he had become owner on account of partition, went in appeal which was dismissed by a Division Bench of this Court on January 21, 1980. The decree-holder filed an execution petition (No. 27 of 1980) on February 7, 1980. Brig Bhawani Shanker filed Special Leave Petition in the Supreme Court which was dismissed on July 17, 1984. During the pendency of the said appeal, the execution remained stayed. After the appeal was dismissed, the decree-holder filed an application (dated July 23, 1984) which was registered as E. A. 189/84. In that application, the decree-holder prayed that a sale deed in his favour be got executed throughout the Registrar of the court because in spite of the fact that judgment-debtors Daya Shanker and Bhawani Shanker had been given ample opportunity to execute the sale deed in terms of decree dated March 8, 1979, they had failed to do so. On receipt of that application it was ordered on August 9, 1984, that the Registrar of this Court should write to the Land and Development Officer for grant of permission for conveying the property to the decree-holder. Permission of the Land and Development Officer was received on January 17, 1985, the Registrar was directed to execute a sale deed of the property on behalf of Brig. Bhawani Shanker as well as the heirs of Major Daya Shanker, who in the meantime had died. The sale deed was executed by Registrar of this Court on January 28, 1985 and got registered on February 3, 1985 with the Subregistrar, Asaf Ali Road, New Delhi. On February 4, 1985, the decree-holder filed an application registered as E. A. No. 39 of 1985. After narrating the entire facts, the decree-holder prayed that physical possession of the property be directed to be delivered to him in accordance with the provisions of Order 21 Rules 32 and 35 and section 151 Civil Procedure Code. On February 8, 1985, following order was passed on the said application: “original file has been put up. Issue warrants of possession in favour of the decree-holder and against the judgment-debtors i. e. heirs of Major Daya Shanker, namely, Smt. Har Pyari (2) Dr. Sudhir Kaicker, Dr. Sushma and Mrs. Shobha and Brig. Bhawani Shanker, returnable for 20th March 1985. Process fee within a week. Dasti.” warrants of possession were issued but possession could not be delivered on account of resistance of M/s. Batliboi and Co. Ltd. (hereinafter referred to as Batliboi) and M/s. S. M. S. Investment Corporation Pvt. Ltd. (hereinafter referred to as SMS Corporation) who came up with the objection petitions.

Finding of the Court:

1. The tenancies of the objectors created by Brig. Bhawani Shanker are not binding on the decree-holder. 2. The tenancies created by Brig. Bhawani Shanker on 1st June, 1979 in respect of ground-floor in favour of M/s. Batliboi and Co. Ltd. , New Delhi and on 23rd January, 1976 in respect of first-floor in favour of M/s. S. M. S. Investment Corporation Pvt. Ltd. are hit by Section 52 of the Transfer of Property Act and are not binding on the decree-holder. 3. The decree-holder is not estopped from challenging the right of the objectors to hold possession as alleged by the objectors. 4. The decree-holder is entitled to actual possession and is not entitled to merely a symbolic possession from objectors. 5. The sale deed executed and registered in favour of the decree-holder was not a nullity and has effect in law.

Issues: 1. Are the tenancies of the objectors created by Brig. Bhawani Shanker binding on the decree-holder? 2. Are the tenancies created by Brig. Bhawani Shanker on 1st June, 1979 in respect of ground-floor in favour of M/s. Batliboi and Co. Ltd. , New Delhi and on 23rd January, 1976 in respect of first-floor in favour of M/s. S. M. S. Investment Corporation Pvt. Ltd. not hit by Section 52 of the Transfer of Property Act and are binding on the decree-holder? 3. Is the decree-holder estopped from challenging the right of the objectors to hold possession as alleged by the objectors? 4. Is the decree-holder not entitled to actual possession and is entitled to merely a symbolic possession from objectors? 5. Was the sale deed executed and registered in favour of the decree-holder a nullity and has no effect in law? If so what is its effect?

Ratio Decidendi: 1. Section 52 of the Transfer of Property Act, 1882 invalidates the creation of tenancies during the pendency of a suit. 2. The principles contained in section 52 of the Transfer of Property Act are applicable even in areas where the Act is not in force, as they are based on justice, equity and good conscience. 3. A landlord who has received rent from a sub-tenant does not necessarily accept the sub-tenant as a tenant. 4. A letter written by the decree-holder to the objectors, calling upon them not to deliver possession to Brig. Bhawani Shanker and to deliver possession to him as and when called upon to do so, does not constitute an acceptance of the objectors as tenants. 5. An application filed by the decree-holder before the Supreme Court, seeking an injunction restraining Brig. Bhawani Shanker from taking possession of the property from the tenants, does not constitute an acceptance of the objectors as tenants. 6. The objectors, who derived their rights from Brig. Bhawani Shanker, a judgment-debtor, are bound by the decree and are liable to be dispossessed in the same manner in which Brig. Bhawani Shanker is liable to be dispossessed.

Final Decision: The objections filed by Batliboi and SMS Corporation are dismissed. The decree-holder is entitled to actual possession of the property in dispute. The warrants of possession already issued shall be executed in accordance with law.