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1981 Supreme(All) 543
IN THE HIGH COURT OF ALLAHABAD
S. D. Agarwala, J.
HUKUM CHAND - Appellant
Versus
SMT.HAZRA BEGUM - Respondents
Second Appeal 329 Of 1975
Decided On : 12/01/1981
B.N.AGRAWAL, S.N.Verma
A lease deed executed by a lessor with the knowledge that they will cease to be the owner of the property shortly thereafter is void and not binding on the subsequent transferee.
Headnote:
LEASE DEED - VALIDITY - FRAUDULENT EXECUTION - EFFECT ON SUBSEQUENT TRANSFEREE - U. P. URBAN BUILDINGS (REGULATION OF LETTING, RENT AND EVICTION) ACT, 1972, SECTION 29-A.
Fact of the Case:
Plaintiffs filed a suit for ejectment against the defendant from the property in dispute and for recovery of damages for use and occupation. The defendant admitted entering into a lease agreement for 10 years but claimed that the property was sold to his wife, who granted him a fresh lease. The plaintiffs argued that the sale was a mortgage by conditional sale and that the property was reconveyed to them. The trial court and the lower appellate court found in favor of the plaintiffs.
Finding of the Court:
The High Court held that the lease deed executed by the defendant's wife in his favor was not binding on the plaintiffs since it was executed with the knowledge that she would cease to be the owner of the property shortly thereafter. The court found that the execution of the lease deed was an act of fraud and that the subsequent transferee, the plaintiffs, were not bound by it.
Issues: 1. Whether the suit was prematurely instituted. 2. Whether the tenancy had assumed the complexion of a permanent tenancy. 3. Whether the plaintiffs were entitled to any relief.
Ratio Decidendi: 1. The court held that the suit was not prematurely instituted since it was based on the original lease deed executed in 1960, not the lease deed executed by the defendant's wife in 1968. 2. The court held that the tenancy had not assumed the complexion of a permanent tenancy since the defendant had not acquired any permanent or occupancy rights in the property. 3. The court held that the plaintiffs were entitled to relief in the form of ejectment and damages for use and occupation.
Final Decision: The appeal was dismissed, and the parties were directed to bear their own costs.
( 1 ) THIS is a defendants second appeal arising out of a suit filed by the plaintiffs-respondents against the appellant for ejectment from, the property No. 179 situate in Mohalla Basdeo, Jhansi and for recovery of Rs. 900/- as damages for use and occupation.
( 2 ) THE respondents case was that on 2-8-1960 the respondents granted a lease, in respect of a khandhar, the property in dispute in favour of the appellant Hukum Chand for a period of 10 years subject to the condition inter alia that Hukum Chand shall vacate the property on the expiry of the above date. It was further alleged that after the expiry of 10 years the tenancy of the appellant was terminated with effect from 1-8-70 by a notice which was served upon the appellant on 9-9-70 and since in spite of service of notice the property had not been vacated, hence the suit was filed.
( 3 ) THE suit was contested by the appellant. He admitted that he entered into an agreement of lease on 2-8-1960 for a period of 10 years on a monthly rent of Rs. 30/ -. It was, however, alleged by him that on 30-10-1963 the respondents executed a sale deed in favour of his wife prema Bai and Prema Bai became an absolute owner of the property on 30-10-1963. Prema Bai granted a fresh lease in his favour in respect of the property in dispute by a written document and hence it was alleged that the suit was premature and no decree for ejectment can be passed against him.
( 4 ) IT is further admitted between the parties that on 25-11-1968 Smt. Prema Bai executed a sale deed which was in the nature of reconveyance in favour of the respondents again transferring back the property absolutely in favour of the respondents.
( 5 ) THE trial court framed a number of issues. Three main issues framed by the trial court were as to whether the plaintiffs were entitled to get the property vacated, whether the notice for ejectment was valid and whether the plaintiffs had the right to file the suit. The trial court after examining the evidence on record recorded a finding that the plaintiffs-respondents were entitled to evict the appellant from the property in dispute. The notice served by the respondents on the appellant was valid and that the plaintiffs-respondents had a right to file the suit. In view of the above finding the suit was decreed for the eviction of the appellant as well as for damages. Aggrieved by the said decision of the trial court dated 30th Sept. 1972, an appeal was filed before the lower appellate court. In appeal the appellate court considered mainly two points; firstly, on the question whether the suit has been prematurely instituted and secondly on the question as to whether the tenancy in question has assumed the complexion of a permanent tenancy on account of erection of some construction on the disputed property by the defendant-appellant during the period of tenancy and the third question of course was as to whether the plaintiffs-respondents were entitled to any relief or not. The appellate court after examining the evidence on record recorded a categorical finding that an outright sale was effected on 30-10-1963 in favour of Smt. Prema Bai by virtue of the sale deed which is Ext. 2 on the record. The contention raised by the respondents that the deed was a mortgage by conditional sale was not accepted. The appellate court further recorded a finding that Smt. Prema Bai had, in fact, agreed to reconvey the property to the plaintiffs-respondents on the expiry of the period of five years, i. e. by 30th Oct. 1968 but the said agreement for reconveyance was not incorporated in the deed Ext. 2. It has been further found that on 25th Nov. 1968 the property was in fact, reconveyed to the plaintiffs-respondents. The appellate court further recorded a finding that the plaintiffs-respondents were not bound by the lease deed dated 23-11-1968 Ext. A-1 by virtue of which Smt. Prema Bai had executed the lease in favour of her husband, the appellant, for a period of 10 years.
