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HIGH COURT OF MADHYA PRADESH
A.P. Sen, J.
Gauribai and others
v.
Ranidan.
S. A. No. 673 of 1973 against appellate decree passed by A.K. Pandey, Additional District Judge, Raipur, confirming the decree passed by Shri S. K. Tiwari, I Civil Judge, Class II, Dhamtari,
Decided on : 26-4-1976.
The only changes brought about by section 14 (1) of the Hindu Succession Act were that (1) the limited estate of the widow in the joint family property, became her absolute estate, and she became a fresh stock of descent and consequently, (ii) the right of survivorship of the coparceners which under section 3 (2) of Hindu Women's Right to Property Act, 1937, remained suspended during her life time, was destroyed, She was therefore, brought some what at par with coparceners, but she still did not get the status of a coparcener, as that status can only be acquired by birth or adoption. She was still a member of a joint Hindu family and, therefore, subject to the ordinary incidents of a joint family, viz., the right of the kart a to represent the family and to be in management of its affairs. [Para 17]
(2) Transfer of Property Act, 1882-S. 106-Karta of joint Hindu family giving notice to quit - one of the coparceners dying leaving a widow-right of the karta to give notice not affected. [Para 17]
(3) Hindu Law-partition-may be partial-partition of joint business-does not result in disruption of joint Hindu family.
It was open to the members of a joint family to make a division and a severance of interest in respect of a part of the joint estate while retaining their status as a joint family and holding the rest as the properties of a joint undivided family. It must, accordingly, be held that the partial partition in the family by making a division of the business and converting it into a partnership did not result in a disruption of the joint status. [Para 21]
(4) Accommodation Control Act, 1960 (MP) – Ss. 12 (1) and 2 (i)-defences under section 12 (1) - are not open to the legal representatives of a statutory tenant.
The Act does not give any protection to the legal representatives of the deceased statutory tenant and they cannot claim the statns of a "tenant" as defined in section 2 (i) of the Act. The defences of want of bona fide requirement by the landlord, or the absence of any unlawful sub-letting on his part, was personal to the statutory tenant, and on his death the same was not open to his legal representatives. [Para 22]
(5) Civil P.C, 1908-S. 100-finding as to bonafide requirement of the landlord-is a finding of fact-cannot be disturbed in second appeal. [Para 23]
(6) Accommodation Control Act, 1961 (MP)-S. 12 (1)(b)-sub-tenancy-burden of proof -duty of the defendant tenant to plead necessary facts.
The question whether there is unlawful sub-letting is, in most cases, a matter of inference to be drawn from the facts of each case. The initial onus of proving unlawful sub-letting in the first instance, lies upon the plaintiff. Sub-tenancy can hardly be proved by direct evidence. All that the plaintiff can do is to place on record certain circumstances from which an inference has to be drawn. When such circumstances are proved, prima facie, the burden placed on the plaintiff is discharged, and the onus shifts on the defendant not to prove any negative fact but to establish a positive aspect about the capacity in which the alleged sub-tenant is occupying the premises, and that he has not parted with the whole or a part of the tenanted accommodation. It follows that the pleading of the defendant must be clear and explicit as the facts, which a third person has been inducted into the whole or any part of the premises, are within his knowledge. The defendant must, therefore, specifically plead all the facts necessary to disprove the inference of sub-letting. [Para 28]
A. P. Sen, J,- 1. This appeal by the defendant is directed against a judgment of the IInd Addl. District Judge, Raipur dated 19the Jnly 1973, affirming the judgment and decree of the 1st Civil Judge, Class II, Dhamtari dated 31st January, 1972, decreeing the plaintiff's claim (or eviction under section 12-(1) (b) and (f) of the M. P. Accommodation Control Act, 1961.
2. The facts of the case, in brief, are as follows: The plaintiff is the Karta of a joint Hindu family engaged in wholesale cloth business under the name ‘M/s Bhomraj Askaran,’ Dhamtari. The joint family owns a double-storied building at Motor Stand, Dhamtari, just in front of its business premises. The plaintiff's father Askaran who was the then Karta had in 1948 inducted the defendant into the demised premises, i.e., the double storied building, which was let for non residential purposes where he opened a shop, but since many years before the suit it had been closed down. In the year 1960-61, the family effected a partial partition by making a division of the business and it was converted into a partnership business. This was evidently done for income tax purposes.
3. The plaintiff on 20-7-1970, brought the suit for ejectment of the defendant under clauses (b) and (f) of sub-section (1) of section 12 of the Act. alleging that he was in bona fide need of the demised premises for continuing his whole business as a cloth dealer which had sufficiently grown during the recent years, and as a result of this there was a felt need for addisional accommodation for storage of cloth purchased from mills and for its display to the customers and, therefore, it became necessary to hire a shop of one Bhawerlal which is far away from hi. business premises while the suit accommodation being just opposite to his shop was most suitable to the demand of his expanded business, as looking to its situation, it would be more convinient to manage and control both the shops from one place. It was further alleged that the defendant was not in need of the demised premises and had unlawfully sub let portion, thereof to one Fattelal Maheshwari and Bisahuram', tailor.
4. The defendant contested the plaintiff's claim and denied all the allegations made. He pleaded that the plaintiff alone could not determine the lease. nor bring the suit. He denied that he was the tenant of the joint family styled M/s Bhomraj Askaran, while alleging that he was a tenant of the joint owners of the house. the owners being Smt. Dhapubai widow of Askaran and her two sons, Ranidan, and Phoolchand with whom he had been dealings for many years after the death of Askaran who was the owner of the suit premises. He further pleaded that the plaintiff and the other two heirs of Askaran did not form a joint Hindu family but were members of a divided Hindu family, and asserted that the plaintiff be put to strict proof of their jointness.
It was alleged that the house was originally let for residential purposes and, therefore, could not be had for a non residential purpose u/s 12 (1)(f) of the Act. It was further alleged that the present shop of the plaintiff with the attached godowns and interior portions are more than sufficient even if his business has expanded, as alleged, and. therefore, the plaintiff does not require any further accommodation. The plaintiff's alleged need was, therefore, stated to be just a pretence to secure his eviction. It was denied that any portion of the demised premises had been sub-let to Fattelal Maheshwari or Bisahuram, tailor. The Courts below have, however, found that the plaintiff has established his case, and, accordingly, decreed his claim.
5. During the pendency of the appeal, the defendant, Ramnarayan died on 14-1-1974, and his L. Rs. have been substituted. In the absence of a provision in the Act, the right that the deceased defendant had as a statutory tenant to remain in possession, i.e. by virtue of the protection given to him u/s 12(1) of the Act, was personal to him and such r
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