judgement:
Civil Appeal Nos.
463 and464 of 1986.
From the Judgment and Order dated 6.11.
1984 of the Patna High Court in Civil Writ Jurisdiction Case No. 3489 of 1981 & 601 of 1982.
M. Qamaruddin and Mrs. M. Qamaruddin for the Appellant.
S.N. Misra, M.K. Jha and P.C. Kapur for the Respondent.
The Judgment of the Court was delivered by 401 SINGH, J.
These two appeals are directed against the judgment and order of High Court of Patna dated November 6, 1989, quashing the order of the Bihar State Madarasa Educa tion Board dissolving the Managing Committee of the respond ent 's institution.
The State Legislature of Bihar enacted the Bihar State Madarasa Education Board Act (Act 32 of 1982) providing for the constitution of an autonomous Board for development and supervision of Madarasa education in the State of Bihar.
"Madarasa" as defined by Section 2 means an educational institution providing instructions in Islamic, Arabic and Persian studies and recognised as such by the Board.
The 'Board ' means the Board established under Sec. 3 of the Act.
Section 3 provides for the constitution of State Madarasa Education Board which is a body corporate with perpetual succession and a common seal.
The Board consists of a Chair man appointed by the State Government, Director of Education (Incharge of Oriental Education), Director, Institution of Post graduate Studies and Research in Arabic and Persian, Patna, the Principal, Madarasa Islamia, Shamsul Hoda, Patna, Chairman, Bihar Sunni Wakf Board, Patna, Chairman, Bihar Shia Wakf Board, Patna, two members of the State Legislature nominated by the Government having interest in Madarasa Education or Islamic studies, two senior teachers of recog nised Madarasa nominated by the State Government, and three other members nominated by the State Government who have interest in Madarasa education or Islamic studies.
The Board is invested with powers and functions to provide for in struction and research in Arabic, Persian and Islamic stud ies and to advise the State Government on all matters relat ing to Madarasa education.
The Act empowers the Board to direct, supervise and control Madarasa education, to grant recognition to Madarasas in accordance with the regulations framed by it, to conduct different Madarasa examination, to publish results, to make regulations prescribing conditions of employees of the Board, to provide for the constitution of the Managing Committee, to constitute academic committee, recognition committee, examination committee, and for carry ing on its powers and functions in regulating the education in Madarasa institutions.
The Board is headed by a Chairman nominated by the State Government under Sec.
10(2) of the Act, it lays down that no person shall be eligible for appointment as Chairman unless he holds adequate administra tive experience under the Central or State Government and he has teaching or research experience for not less than 10 years in post graduate educational institutions or he is regarded scholar in Arabic, Persian, Islamic studies and he is interested in Madarasa education.
The Board as constitut ed by the 402 Act is an autonomous body entrusted with the duty to grant recognition, aid, supervise and control the academic effi ciency in the Madarasa institutions, aided and recognised by it.
The members of the Board consist of those persons who are connected with or interested in the teaching and re search of Arabic, Persian and Islamic studies, and interest ed in the Madarasa education.
The Legislature has enacted the Act with the primary purpose of providing an autonomous educational authority for regulating the efficiency of Madarasa institutions where studies are carried on in Ara bic, Persian and Islamic studies.
The Hanfia Arabic College Jamalia and Madarasa Shamsul Uloom the respondent 's institutions are Madarasa institu tions aided and recognised by the Board under the provisions of the Act, as such the respondent 's institutions are sub ject to the provisions of the Act and the regulations framed by the Board in matters relating to their management and administration.
The Committees of Management of the two respondent institutions failed to comply with the directions issued by the Board with regard to payment of salary to teachers, whereupon the Board in exercise of its power under Section 7(2)(n) of the Act dissolved the Managing Committee of the respondent 's institution and appointed ad hoc Commit tee to manage the institutions.
The outgoing Managing Com mittee of the respondent 's institutions and some of the affected members of the Committee filed writ petitions before the High Court of Patna under Article 226 of the Constitution challenging the Order of the Board, dissolving the Committee of Management and appointing ad hoc Committee.
Before the High Court, the respondents submitted that Sec.
7(2)(n) of the Act which confers power on the Board to dissolve Managing Committee of a Madarasa is violative of Article 30(1) of the Constitution as it interfered with their right of management of institutions.
The High Court upheld the respondent 's plea and declared Sec.
7(2)(n) unconstitutional as it confers power on the Board to dis solve Committee of Management of a Madarasa.
The Board has preferred this appeal by leave against the aforesaid judg ment of the High Court.
Section 7(2)(n) reads thus: "7.
Power and functions of the Board: (1) It shall be the duty of the Board to provide for instruction and research in Arabic, Persian and Islamic studies and such other branches of knowledge including vocational courses and training which the Board thinks fit and to advise the State Government on all other matters relating to Madarasa Education.
403 (2) Subject to the provisions of this Act and the Rules and Regulations made thereunder the Board shall have the power to direct, super vise and control Madarasa Education and in particular have the powers (n) To get the Managing Committee of Madarasas constituted in a manner such as to include the Head Maulvi, two guardians ' representatives and one member nominated by the Board and two other persons interested in Madarasa Education or Islamic studies to be composed by the above seven members.
The power to dissolve the Managing Committee shall vest in the Board.
" The above provision confers power on the Board to pro vide for constitution and dissolution of Managing Committee of a Madarasa.
There is no dispute that the respondent Madarasas are educational institutions established by the Muslim minority community.
Article 30(1) of the Constitution protects the right of minorities to establish and administer educational institutions of their choice.
The Article in terms grants all minorities two rights (i) the right to establish and (ii) the right to administer educational institution of their choice.
The rights so granted are, however, not absolute, a minority institution obtaining financial aid and recognition is subject to reasonable restrictions to ensure excellence in the institution.
While minorities have a constitutional right to establish and to administer educational institutions of their choice, they have no absolute right to maladminister, the State has right to impose regulations made in the interest of efficiency of institution 's discipline, health, sanitation and public order even though such regulations may indirectly impinge on the exclusive right of administration and management of the institution.
A minority institution seeking aid and recogni tion must be subject to regulatory provisions which are reasonable and consistent with Article 30(1) of the Consti tution.
A minority institution which does not seek aid or recognition from the State or the Education Board need not be subject to regulatory provisions.
These principles have been settled by this Court in re Kerala Education Bill 1957, [1959] SCR 995, Sidharajbhai vs State of Gujarat, ; , , , and ; The question which arises for consideration is whether Section 7(2)(n) which confers power on the Board to dissolve the managing 404 committee of an aided and recognised Madarasa institution violates the minorities constitutional right to administer its educational institution according to their choice.
This Court has all along held that though the minorities have right to establish and administer educational institution of their own choice but they have no right to maladminister and the State has power to regulate management and administra tion of such institutions in the interest of educational need and discipline of the institution.
Such regulation may have indirect effect on the absolute right of minorities but that would not violate article 30(1) of the Constitution as it is the duty of the State to ensure efficiency in educational institutions.
The State has, however, no power to completely take over the management of a minority institution.
Under the guise of the regulating the educational standards to secure efficiency in institution, the State is not entitled to frame rules or regulations compelling the management to surrender right of administration.
In State of Kerala vs Very Rev. Mother Provincial etc.
, [1971] I SCR 734, Section 03(1) of the Kerala University Act, 1969 which conferred power on the Government to take over the management of a minority institution on its default in carrying out the directions of the State Government was declared ultra vires on the ground that the provisions interfered with the con stitutional right of a minority to administer its institu tion.
Minority institutions cannot be allowed to fall below the standard of excellence on the pretext of their exclusive right of management but at the same time their constitution al right to administer their institutions cannot be com pletely taken away by superseding or dissolving managing committee or by appointing ad hoc committees in place there of.
In the instant case Section 7(2)(n) is clearly violative of constitutional fight of minorities under Article 30(1) of the Constitution in so far as it provides for dissolution of managing committee of a Madarasa.
We agree with the view taken by the High Court.
We have upheld the view taken by the High Court with regard to the validity of Section 7(2)(n) of the Act but we do not agree with the observations made by the High Court in paragraphs 9 and 10 of its judgment with regard to the constitution of the Board and appointment of its Chairman.
The High Court has observed that the majority of the members of the Board and its Chairman may not belong to minority community, therefore the Board 's constitution will not be in consonance with the minorities constitutional right under Article 30 of the Constitution.
In our opinion, the view taken by the High Court is not correct.
Article 30(1) does not contemplate that an autonomous Educational Board en trusted with the duty of regulating the aided and 405 recognised minorities institution, should be constituted only by persons belonging to minority community.
Article 30(1) protects the minorities right to manage and administer institutions established by them according to their choice, but while seeking aid and recognition for their institutions there is no constitutional obligation that the Board grant ing aid or recognition or regulating efficiency in minority institution should consist of members exclusively belonging to minority communities.
In the instant case the constitu tion of the Board under Section 3 of the Act ensures that its members are only those who are interested in teaching and research of Persian, Arabic and Islamic studies.
This provision fully safeguards the interest of Madarasa of the Muslim community.
We therefore hold that observations made by the High Court in paragraphs 8 and 9 of its judgment are contrary to the scope of Article 30(1) of the Constitution.
With these observations we agree with the view taken by the High Court in quashing the order of the Board dissolving the managing committee of the respondent 's institutions and appointing ad hoc committee.
The appeals fail and are ac cordingly dismissed.
There will be no order as to costs.
P.S.S. Appeals dismissed.

summary:
Section 7(2)(n) of the Bihar State Madarasa Education Board Act, 1982 confers power on the State Madarasa Educa tion Board to dissolve the managing committee of an aided and recognised Madarasa institution.
The committees of management of the respondent institutions established by the Muslim minority community failed to comply with the direc tions issued by the Board with regard to payment of salary to teachers, whereupon the Board in exercise of its power under section 7(2)(n) of the Act dissolved the said committees.
The respondents filed writ petitions under Article 226 of the Constitution assailing section 7(2)(n) of the Act as violative of Article 30(1) on the ground that it interfered with their right of management of institutions.
The High Court declared section 7(2)(n) unconstitutional It, however, observed that the majority of members of the Madarasa Educa tion Board and its Chairman may not belong to minority community, therefore, the Board 's constitution will not be in consonance with the minorities constitutional right under Article 30 of the Constitution.
Dismissing the appeals by the Board, the Court, HELD: 1. Article 30(1) of the Constitution protects the right of minorities to establish and administer educational institutions of their choice.
The rights so granted are, however, not absolute.
Minorities have no right to malamin ister.
The State has power to impose regula 400 tions made in the interest of efficiency of institution 's discipline, health, sanitation and public order even though such regulations may indirectly impinge on the exclusive right of administration and management of the institution.
The State has, however, no power to completely take over the management of a minority institution under the guise of regulating the educational standards by superseding or dissolving managing committee or by appointing ad hoc com mittees in place thereof.
[403D F; 404C E] In the instant case, section 7(2)(n) of the Bihar State Madarasa Education Board Act, 1982 in so far as it provides for dissolution of the managing committee of a Madarasa is, clearly violative of constitutional right of minorities under Article 30(1) of the Constitution.
[404E F] In re Kerala Education Bill 1957, [1959] SCR 995; Sidha rajbhai vs State of Gujarat; , ; State of Kerala vs Very Rev. Mother Provincial etc.
; , ; Ahmedabad St. Xaviers College Society vs State of Gujarat, ; ; Lilly Kurian vs Lawina, ; and All Bihar Christian Schools Assn.
vs State of Bihar, ; , referred to.
Article 30(1) of the Constitution does not contem plate that an autonomous Educational Board entrusted with the duty of regulating efficiency in the aided and recog nised minority institutions, should be constituted exclu sively by persons belonging to the minority community.
In the instant case, the constitution of the Board under section 3 of the Act ensures that its members are only those who are interested in teaching and research in Persian, Arabic and Islamic studies.
This provision fully safeguards the inter est of Madarasa of the Muslim community.
The observations made by the High Court are contrary to the scope of Article 30(1) of the Constitution.
[404H; 405A, B C]


judgement:
vil Appeal No. 135 I(N) of 1973.
From the Judgment and Decree dated 14.3.1973 of the Rajasthan High Court in S.B. Civil Second Appeal No. 201 of 1966.
K.K Jain, Pramod Dayal and A.D. Sanget for the Appellant.
U.N. Bachavat, Sushil Kumar Jain, Sudhanshu Atreya and L.C. Agarwala for the Respondents.
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
This appeal by special leave is from the judgment of the Rajasthan High Court dated March 14, 1973 in S.B. (Civil) 2nd Appeal No. 201of 1966.
The case has a long history.
It is concerned with a garden (baghichi) with temples of Sri Satyanarayanji, Sri Mahadeoji and other buildings at Motidungri Road in Jaipur.
The local Darjees (Tailors) claim that it is their community property.
According to them 359 it is known as 'Baghichi Darjian ' since it belongs to Darji community.
The property however, was the subject matter of several litigations.
It was claimed by different persons at different intervals on different grounds.
One Narayan was admittedly 'Pujari ' of the Temples.
There was allegation that Narayan purported to have sold the Baghichi in favour of one Khawas Bala Bux.
The Panchas of Darjian community filed a suit for cancellation of the sale deed and posses sion of the baghichi.
The suit was also for declaration of the right to administer the trust of the temples and the other properties.
Narayan was the first defendant in that suit.
He did not contest the suit.
He was, however, summoned and his statement was recorded on July 8, 1925, wherein he admitted that he was only the Pujari of the temples.
The other defendants in the suit set up rival title to the property relying upon the sale deed of Samvat 1932 in the name of Raghunath.
The trail court dismissed the suit but on appeal the District Judge decreed it.
That decree was af firmed by the former Chief Court, Jaipur by judgment exhibit A8 dated September 15, 1928.
Thereafter, for about 23 years there was no problem and there was no rival claimant to the property.
But the dispute started after the death of Narayan.
His eldest son Bhonrilal respondent 3 herein, made attempts to get his name mutated in the revenue records as owner of the baghichi.
It appears that Bhonrilal after the death of his father was acting as Pujari of the temples.
The Darjian community authorised Kalyan Singh, the appellant herein, as well as one khawas Suraj Narayan to bring an action for ejectment of Bhonrilal.
In 1951 they instituted a suit for his ejectment.
In that suit Bhonrilal admitted the Panchayat 's right to the baghichi but raised a number of other pleas including his title by adverse possession.
In 1966 the Munsif Court (West Jaipur) decreed the suit in favour of the Darji community.
In 1958 the appeal against that decree was dismissed by the senior civil Judge, Jaipur City.
Bhonrilal preferred Second Apeal No. 8C of 1958 in the High Court of Rajasthan and obtained stay of delivery of possession on depositing mesne profits at Rs.25 per month.
On September 15, 1960, the High Court dismissed the second appeal.
Thus the title of the Darjee community in respect of the baghichi was again recog nised.
Even before disposal of the aforesaid second appeal, Ganga Ram the younger brother of Bhonrilal started another round of litigation.
On December 12, 1959, he brought a declaratory suit claiming that he is owner of the property consisting of baghichi and temples.
In this appeal we are concerned with the fight claimed by him.
The suit was pri marily against the present appellant Kalyan Singh and Suraj 360 Narayan, since deceased.
Bhonrilal was also impleaded as the third defendant.
Ganga Ram based his title to the property under a sale deed dated Baishakh Sudi 12th Samvat 1932 (about 1875 A.D.) and also on a will dated Asaj Sudi 12th Samvat 1973 (about 1916 A.D.).
It was further alleged that the bagichi belonged to Bhagala and Girdhari and they sold the same to Raghunath Brahmin.
Raghunath constructed the temple of Sri Satyanarainji and other buildings.
Raghunath had only one son called Gaurilal and he was issueless.
Garuilal executed a will giving all his properties to Ganga Ram.
It was alleged that the earlier suit against Bhonrilal was collusive between the parties.
With these allegations, Ganga Ram prayed for the following reliefs: "(a) the plaint of the plaintiff be decreed and the plaintiff be declared as the owner of the aforesaid property.
The plaintiff is the owner of the property mentioned in Para No. 1.
The decree which the defendant Nos. 1 and 2 had obtained on 20.8.
1956 against the Defend ant No. 3 and was upheld by the Senior Civil Judge on 6.2.
1958, is null and void against the claim of the plaintiff.
" The appellant the first defendant in the suit denied plaintiff 's title to the baghichi.
He also denied the title of Bhagala and Girdhari.
It was maintained that the baghichi was community property of Darjees and Narayan was only a 'Pujari ' of the temples.
Narayan continued as Pujari till his death in 1950 and thereafter his eldest son Bhonrilal was acting as Pujari.
Reference was made to the judgment of the Chief Court of Jaipur in the first suit against Narayan and judgments in the second suit against Bhonrilal.
In view of those litigations and judgments rendered therein, it was claimed that the present suit was barred by principle of res ]udicata.
It was also specifically stated that the suit against Bhonrilal was not collusive but brought on behalf of the Darjee community in a representative capacity.
The trial Judge on considering the evidence produced by the parties decreed the suit declaring the plaintiff as owner of the suit property.
It was also declared that the plaintiff is not bound by the judgment and decree dated September 15, 1928 of the Chief Court of the erstwhile State of Jaipur.
But no reference was made to the judgment and decree obtained in the suit against Bhonrilal.
No declara tion was given that it was not binding on the plaintiff though that relief was specifically sought for.
Perhaps the plaintiff did not press that point.
Kalyan Singh and Suraj Narayan appealed to the District Court.
The 361 learned District Judge dismissed the appeal.
He also did not refer to the judgment in the suit against Bhonrilal.
He only examined the validity of the said Sale deed and Will and held that they were proved to have been executed.
The de fendants approached the High Court in Second Appeal No. 201/41 Before the High Court, they sought to produce addi tional evidence.
They moved an application under Order 41 Rule 27 C.P.C. to accept a certified copy of the judgment dated September 15, 1928 of the Chief Court of the erstwhile Jaipur State and a copy of the statement of Narayan recorded in that suit.
The High Court accepted the judgment of the Chief Court of Jaipur State, but rejected the Statement of Narayan.
During the pendency of the appeal in the High Court Suraj Narain died and his name was deleted from the appeal memo.
Ganga Ram also died and his wife and son were brought on record as his legal representatives.
The principal question argued before the High Court related to the validity of sale deed (exhibit 3) and will (exhibit 4) which formed the foundation of Gangaram 's title to the suit property.
The High Court rejected both the documents.
The sale deed exhibit 3 was rejected as inadmissible in evi dence.
The will exhibit 4 was disregarded in view of the suspi cious circumstances surrounding its execution.
These conclu sions would have been sufficient for allowing the appeal and dismissing the suit.
But the High Court did not do that and instead rounded off the discussion as follows: "The plaintiff is undoubtedly in possesion of the Baghichi and it cannot be gainsaid that he was not a party to the previous litigation and he is not claiming the property though his father Narayan or his brother Bhonrilal.
Apart from everything, the suit does not seem to have been filed against Kalyan Singh and another in a representative capacity in ac cordance with Order 1 Rule 3 Civil Procedure Code.
There was no application for permission to sue them in their representative capacity.
Therefore, in spite of my having reached the conclusion regarding the document exhibit 3 and 4 against the plaintiff respondents I am not inclined to interfere with the decree of the court below though I do feel that the litiga tion against Kalyan Singh and another in their individual capacity was a fruitless exercise. ' ' 362 Kalyan Singh the defendant has now appealed challenging the decree of the High Court.
Counsel for the appellant has a two fold contention.
In the first place, it was argued that the Darjee community in their representative suit against Bhonrilal has obtained a decree declaring their title to the property and that decree could not be nullified by the present suit against individu als.
The High Court instead of holding that the plaintiffs suit was a fruitless exercise, ought to have dismissed the suit.
Secondly, it was urged that the High Court after discarding the sale deed exhibit 3 and will exhibit 4 ought to have non suited the plaintiff since there is no other material whatever to support his title to the property.
Normally, these contentions would have been accepted without much discussion, but we have to consider the submis sions of counsel for the respondents.
He challenged the correctness of the findings on all material points.
It is, therefore, necessary to examine the judgment in greater detail.
We will first consider whether the previous suit against Bhonrilal was a representative suit on behalf of the Darjee community.
It was argued for the respondents that it was only a suit on behalf of the 'Panchayat Darjian ' and not a representative suit on behalf of the Darjee community.
Our attention was drawn to the trail court order dated November 16.
1962 in the present suit.
Thereunder the trial court has rejected an application for amendment of written statement.
It was observed that the defendants in the affidavit have not denied allegations of the plaintiff that the suit against Bhonrilal was not in a representative capacity.
But the Court made that observation only on perusing the affida vits of parties for a limited purpose of considering the amendment application and not on an issue arising out of pleadings in the suit.
In fact, the court has not framed any issue on that controversy although the defendant in the written statement has asserted that it was a representative suit on behalf of the Darjee community.
The view expressed in the order dated November 1962 is therefore, unacceptable.
Counsel for the appellant however, relied upon state ments from judgments in the previous suit in support of his contention that it was representative suit on behalf of the Darjee community.
exhibit A 2 is the judgment of the trial court.
It begins with a sentence: "This is a representative suit by the plaintiffs Kalyan Singh and Suraj Narayan on behalf of the Panchayat Darjian for recovery of possession of the 363 baghichi.
" But this statement may not help counsel for the appellant, since the suit was said to be on behalf of the 'Panchayat Darjian ' and not Darjee community.
exhibit A 4 is the High court judgment in the second appeal arising out of that suit.
There the High court has stated: "That the suit was brought by Kalyan Singh and another against Bhonrilal by the representatives of Darjee community.
" Here again we do not find much support to the appellant.
The suit might have been instituted by representatives of the Darjee community, but that by itself was not sufficient to constitute the suit as a representative suit.
For a representative suit, the court 's permission under Order 1 Rule 8 of the Code of Civil Procedure is mandatory.
One does not know whether any such permission was obtained.
The pleading in that suit or the order obtained under Order 1 Rule 8 has not been produced.
There is no other evidence to support the contention of either of the parties.
In the absence of necessery material the conclusion one way or the other as to the nature of the previous suit will not be justified.
But that does not mean that the plaintiff could succeed ignoring the judgment and decree in the suit against Bhonri lal.
It must be stated that any member of a community may successfully bring a suit to assert his right in the commu nity property or for protecting such property by seeking removal of encroachments thereform.
Such a suit need not comply with the requirements of Order 1 Rule 8.
The suit against Bhonrilal even if it was not a representative suit on behalf of the Darjee community would be a suit of this category.
Kalyan Singh and another claimed that the baghichi was their community property and Bhonrilal was a trespasser.
They brought the suit to recover possession from Bhonrilal.
The suit was decreed.
The rival title claimed by Bhonrilal by adverse possession was negatived.
So long as that decree operates it would be futile to decree the present suit.
The observation of the High Court that the present suit is a fruitless exercise could therefore, be sustained on this ground if not for the reasons stated.
The validity of the will may now be considered.
On this question, the High Court said: "Having read the evidence of these witnesses I am satisfied that according to the ordinary standard of proving a document the document exhibit 4 can be said to have been proved.
Howev er, there are two disturbing elements sur rounding the execution of the will.
The first striking feature of this will is that even though the wife of Gaurilal was living at 364 the time as she had survived him, no provision whatsoever had been made regarding her by Gaurilal in the alleged will exhibit 4.
Then the second striking feature is that even though litigation had been going on almost for years this will had not been referred to by anyone.
In the first suit Narain was a defendant he had not contested the suit and the proceedings remained ex parte against him.
However, he was called by the Court and his statement was recorded.
The judgment of the Jaipur Chief Court shows that he had laid no claim to the property and took the position that he was a Pujari at the baghichi.
Then subsequently when suit was filed by the Darzi community against Bhonrilal, no reference came to be made to this will exhibit 4 Learned counsel for the re spondents, as I have already observed, sug gested that Narain or Bhonrilal could not be expected to make any reference to the will as that would be detrimental to the stand taken by them.
The argument, no doubt, looks attrac tive, but if it is examined in the light of none other than the statement of Ganga Ram himself it cannot stand the scrutiny.
Gangaram had referred to the earlier litigation in the plait, but when he entered the witnesses box he had taken a somersault.
He was asked wheth er he was aware of the previous litigation and he said, he did not know of it.
He was then questioned with reference to para 5 of the plaint as to how the facts had been mentioned by him therein and he kept mum and had no answer.
He also admitted that it was Narain who had given him the document, exhibit 4 some 5 or 7 years after the death of Gaurilal i.e. some 30 or 35 years back.
In that situation there was no mention of the alleged will in any of the two previous suits.
It is also remarkable that even upto the High Court Bhonrilal had asserted his own possession over the property and had also obtained a stay order on payment of mesne profits vide exhibit A 7.
XXXXX XXXXXX XXXXXXX The will is, therefore, not free from suspi cion and it has not been dispelled.
My con science in this regard is not satisfied and therefore, I am unable to hold that exhibit 4 was the last will of Gaurilal in favour of Ganga Ram".
Counsel for the respondents however, urged that the plain tiff has 365 proved its execution by producing one of the attestors and the scribe and their evidence has not been disbelieved by the High Court.
We were referred, in particular, to the evidence of plaintiff PW 3, Ramdeo PW 4 and Sham Sunder PW 7.
We have perused their testimony and we are of the opinion that it is far from satisfactory.
The plaintiff has deposed that Gaurilal was issueless and hence executed the will bequeathing the property to him.
Ramdeo claims to be the attesting witness to the will.
He has stated that the plain tiff was 10 11 years old when the will was executed.
But the plaintiff himself has deposed that he was then a boy of 2 3 years.
Ramdeo has given his age as 55 years when he deposed in the court on January 5, 1962.
If we go by that age Ramdeo must have been a boy of 9 years when he attested the will in 19 16 Sham Sundar claims to be the scribe of the will.
He has deposed that after he wrote the will attestation was made by witnesses but he has not named any one of them.
He has not even referred to Ramdeo as an attesting witness.
It was said that the plaintiff was adopted son of Gauri lal, and was thus the object of his affection for the exclu sive bequest.
But there is no reference in the will that he was the adopted son.
The plaint also makes no reference to his adoption by Gaurilal.
Nor there is any other material to lend credence to such relationship.
On the contrary, the Temple register shows that he was the son of Narayana.
Even if we proceed on the plea that the plaintiff was adopted son of Gaurilal, there seems to be little reason to justify the bequest exclusively m his favour.
It is now not in dispute that Gaurilal 's wife was living at the time of execution of the will, but no provision was made for her maintenance.
In the normal course, the wife would be the first to be thought of by the husband executing a will.
She should have been the first beneficiary of her husband 's bounty unless there was odium or embittered feelings between them.
But there is no such evidence and it was not even the plaintiff 's case that their relationship was strained.
Why then she should be excluded altogether? It is indeed baf fling since it runs counter to our societal values.
Yet there is another circumstance which tells against the genuineness of the will.
The will purports to have been executed in 1916 and Gangaram instituted the suit in 1959.
The will had not seen the light of the day till the institu tion of the suit.
It is not as if Gangaram or his brother or father had no opportunity to produce the will to assert rights over the property in question.
The plaintiff has stated in his evidence that his father Narayan handed over the will to 366 him.
Narayan was therefore, aware of the execution of the will.
Yet he did not disclose it to the court in the suit against him.
His statement was recorded on July 8, 1925 wherein he had admitted that he was only the Pujari of the temple and the wife of Baldeo sold the property.
He did not say that his son Gangaram became owner of the property under the will executed by Gaurilal.
In ,he second suit, Bhonrilal set up independent title to the property by adverse posses sion.
That claim was totally destructive of Gangaram 's title.
It cannot be said that Gangaram was ignorant of that litigation till he filed the suit.
His evidence does not lead to that inference.
In fact the plaint averments and his statements in the court lead to the contrary.
Gangaram, however, made no attempt to produce the will in that suit.
In the long period of 43 years, none made any attempt to rely upon the will against the claim of the Darji community when the community representatives have successfully brought two suits.
This would not have been the natural conduct of person if the will had been really in existence.
It has been said almost too frequently to require repe tition that a will is one of the most solemn documents known to law.
The executant of the will cannot be called to deny the execution or to explain the circumstances in which it was executed.
It is, therefore, essential that trustworthy and unimpeachable evidence should be produced before the court to establish genuineness and authenticity of the will.
It must be stated that the factum of execution and validity of the will cannot be determined merely by considering the evidence produced by the propounder.
In order to judge the credibility of witnesses and disengage the truth from false hood the court is not confined only to their testimony and demeanour.
It would be open to the court to consider circum stances brought out in the evidence or which appear from the nature and contents of the documents itself.
It would be also open to the court to look into surrounding circum stances as well as inherent improbabilities of the case to reach a proper conclusion on the nature of the evidence adduced by the party.
In H. Venkatachala lyengar vs B.N. Thimmajamma & Ors., [1959] Supp. 1 SCR 426 Gajendragarkar, J., as he then was, has observed that although the mode of proving a will did not ordinarily differ from that of proving any other docu ment, nonetheless it requires an element of solemnity in the decision on the question as to whether the document pro pounded is proved as the last will and testament of departed testator.
Where there are suspicious circumstances, the onus would be on the propounder to explain them to the satisfac tion of the court before the will could be accepted as genuine.
Where there are 367 suspicious circumstances, the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator.
These principles have been reiterated in the subsequent decisions of this Court in Rani Purnima Devi & Anr.
vs V. Kumar Khagendra Narayan Dev & Anr., and Smt.
Indu Bala Bose & Ors.
vs Manindra Chandra Bose & Anr., ; The Privy Council in Mr. Biro vs Atma Ram & Ors., AIR 1937 PC 10 1 had an occasion to consider an analogous case where the wife was practically disinherited and there was unexplained delay in producing the will in public.
There the alleged will by a testator gave only a life estate to his daughter who was the only child and who was to get some property at her marriage.
The bulk of the estate was vested in the widow of the testator and three other women, namely, his mother, his step mother and his paternal aunt.
These women though entitled under the Hindu Law only to mainte nance, were made joint owners equally with the widow of the testator.
None of the devisees could get the estate parti tioned or alienate it for necessity.
It was however, provid ed that the lady, who survived the other three devisees, would become the absolute owner of the estate.
The widow of the testator would not get her husband 's estate, if she predeceased any of her co devisees.
The will was not pro duced until 22 years after its execution though there were occasions to produce it, had it been in existence.
Consider ing these circumstances, the Privy Council observed (at 104): "It is most unlikely that a person having a wife and a minor unmarried daughter, who should be the objects of his affection, would make a will which would practically disinherit them.
That the testament is unnatural and runs counter to the ordinary sentiments of persons, having a status in society similar to that of Harbans Lal, cannot be seriously disputed.
But this is not the only circum stances which tells against its genuineness.
The will purports to have been executed on 24th August 1900, and the testator died within a month of that date.
But it is strange that it was not produced until 1922, after the com mencement of the present litigation.
During this long period of 22 years, which inter vened, there were occasions when the widow or her advisers could have produced the document, if it had been in existence; but they did not do so . " 368 ,The will in the present case, constituting the plaintiff as a sole legatee with no right whatever to the testator 's wife seems to be unnatural.
It casts a serious doubt on genuine ness of the will.
The will has not been produced for very many years before the court or public authorities even though there were occasions to produce it for asserting plaintiff 's title to the property.
The plaintiff was re quired to remove these suspicious circumstances by placing satisfactory material on record.
He has failed to discharge his duty.
We therefore, concur with the conclusion of the High Court and reject the will as not genuine.
This takes us to the validity of the sale deed exhibit 3.
The High Court rejected the document with the following observations: "exhibit 3 is neither a certified copy given under any of the provisions of the Evidence Act nor is it a copy made from the original by any mechanical process.
It also does not appear to have been made or compared from the original as there is no verification or endorsement of the kind and it does not come under clauses 1 or 5 of section 63 ei ther.
No one has given the oral account of the contents of the original document.
If in place of primary evidence secondary evidence is admitted without any objection at the proper time then the parties are precluded from raising the question that the document has not been proved by primary evidence but by second ary evidence.
But where there is no secondary evidence as contemplated by Section 66 of the Evidence Act then the document cannot be said to have been proved either by primary evidence or by secondary evidence.
" The basis of the plaintiff 's title relates back to the sale deed dated Baisakh Sudi 12 Samvat 1932 (1875 A.D.).
It was said to be a registered sale deed by which Bhagala Girdhari purported to have sold the baghichi to Raghunath Brahmin.
The plaintiff has not produced the original sale deed.
Nor a certified copy of it has been produced.
All that we find from the record is an ordinary copy of a sale deed exhibit 3 produced by Gopal Prasad PW 1.
Gopal Prasad has stated that exhibit 3 was a copy submitted by the parties along with the original sale deed for registration.
The original sale deed was said to have been returned to the party after its registration and a copy was kept in the file.
But Gopal Prasad has no personal knowledge about the registration of the sale deed, nor he has produced the register to indicate that that sale deed was registered and a copy was kept in the record.
exhibit 3 produced 369 by him does not bear any endorsement to the effect that it was a true copy of the original.
The High Court said, and in our opinion very rightly, that exhibit 3 could not be regarded as secondary evidence.
Section 63 of the Evidence Act mentions five kinds of sec ondary evidences.
Clause (1), (2) and (3) refer to copies of documents; clause (4) refers to counterparts of documents and clause (5) refers to oral accounts of the contents of documents.
Correctness of certified copies referred to in clause (1) is presumed under Section 79; but that of other copies must be proved by proper evidence.
A certified copy of a registered sale deed may be produced as secondary evidence in the absence of the original.
But in the present case exhibit 3 is not a certified copy.
It is just an ordinary copy.
There is also no evidence regarding contents of the original sale deed.
exhibit 3 cannot, therefore, be considered as secondary evidence.
The appellate Court has a right and duty to exclude such evidence.
In the result, the appeal is allowed, modifying the judgment and decree of the High Court.
The judgment and decree of the trial court as affirmed by the District Court are set aside and the plaintiff 's suit is dismissed.
Since the original plaintiff died leaving behind his widow during pendency of the appeal before the High Court, we make no order as to costs.
R.N.J. Appeal allowed.

dataset_name: IN-Abs

summary:
This case is concerned with a garden with temples and other buildings at Jaipur claimed to be the property of Darjee (Tailors) community popularly known as 'Bagichi Darjian '.
It was claimed by different persons at different intervals on different grounds.
One Narayan, Pujari on the temples was said to have sold the Bagichi in favour of one Khawas Bala Bux.
Darjee community filed a suit for cancella tion of that sale and declaration of its right to administer the property.
The Trial Court dismissed the suit but on appeal District Judge decreed it and this decree was af firmed by the Chief Court of Jaipur.
But after 23 years on the death of Narayan his eldest son Bhonrilal respondent No. 3 herein who became the Pujari attempted to get his name mutated in revenue records as owner of the Bagichi.
On behalf of the Darjee community the appellant herein together with one Khawas Suraj Narayan filed a suit in 1951 for his ejectment.
This suit was decreed in favour of the Darjee community.
Appeal against that decree by Bhonrilal was dismissed by the Senior Civil Judge, Jaipur.
Second appeal in the High Court too failed.
However, even before the disposal of the aforesaid Second appeal, Gangaram the younger brother of Bhonrilal started another round of litigation.
He filed a declaratory suit claiming the ownership of the Bagichi and temples on the basis of sale deed dated Baishakh Sudi 12th Samvat 1932 (about 1875 A.D.) and a Will purported to be executed in 1916 A.D. in his favour.
357 The Trial Judge decreed the suit in his favour.
The defendants ' appeal was dismissed by the District Judge upholding the validity of the said Sale Deed and the Will.
On further appeal, the High Court rejected the validity of the Sale Deed as well as that of the Will which formed the foundation of Ganga Ram 's title.
But instead of allowing the appeal and dismissing the suit the High Court declined to interfere with the decree of the Court below though holding that the plaintiff 's suit was a fruitless exercise.
Kalyan Singh the defendant challenged the decree of the High Court in this Court on two counts.
Firstly that the suit against Bhonrilal was of a representatives character which could not be nullified by the present suit against individuals.
Secondly the High Court after discarding the Sale Deed and the Will ought to have non suited the plain tiff since there was no other material whatever to support the title.
While allowing the appeal and modifying the judgment and decree of the High Court, this Court, HELD: In the absence of permission under Order I Rule 8 CPC to file a representative suit which is mandatory any member of the community may successfully bring a suit to assert his right in the community property or for protecting such property.
Such a suit need not comply with the require ments of Order I Rule 8 C.P.C. and the suit against Bhonri lal even if it was not a representatives suit on behalf of the Darjee Community would be a suit of this category.
[363D E] It is essential that trust worthy and unimpeachable evidence should be produced before the Court to establish genuineness and authenticity of the Will.
It must be stated that the factum of execution and validity of the Will cannot be determined merely by considering the evidence produced by the propounder.
In order to judge the credibility of wit nesses and disengage the truth from falsehood the Court is not confined only to their testimony and demeanour.
It would be open to the court to consider circumstances brought out in the evidence or which appear from the nature and contents of the documents itself.
It would be also open to the Court to look into surrounding circumstances as well as inherent improbabilities of the case of reach a proper conclusion on the nature of the evidence adduced by the party.
[366E F] The Will in the instant case, constituting the plaintiff as a sole legatee with no right whatever to the testator 's wife seems to be unnatural.
It casts a serious doubt on the genuineness of the Will.
The Will has not been produced for very many years before the Court or 358 public authorities even though there were occasions to produce it for asserting plaintiff 's title to the property.
The plaintiff was required to remove these suspicious cir cumstances by placing satisfactory material on record.
He has failed to discharge his duty.
This Court concurs with the conclusion of the High Court and rejects the Will as not genuine.
[368A B] Section 63 of the Evidence Act mentions five kinds of secondary evidence.
Clauses (1), (2) and (3) refer to copies of documents; clause (4) refers to counter parts of docu ments and clause (5) refers to oral accounts of the contents of documents.
Correctness of certified copies referred to in clause (1) is presumed under section 79 but that of other copies must be proved by proper evidence.
A certified copy of a registered sale deed may be produced as secondary evidence in the absence of the original.
[369B C] H. Venkatachala lyengar vs B.N. Thimmajamma & Ors., [1959] Supp.
I SCR 426; Rani Purnima Devi & Anr.
vs V. Kumar Khagendra Narayan Dev & Anr., ; Smt.
Indu Bala Bose & Ors.
vs Manindra Chandra Bose & Anr., ; and Mst.
Biro vs Atma Ram & Ors., AIR 1937 PC 101.


judgement:
ivil Appeal No. 1810 of 1982.
From the Judgment and Order dated 30.3.1982 of the Delhi High Court in S.A.O. No. 204 of 1980.
Ram Panjwani and Vijay Panjwani for the Appellant.
Avadh Behari Rohtagi and P.N. Gupta for the Respondent.
The Judgment of the Court was delivered by V. RAMASWAMI, J.
The tenant is the appellant.
The re spondent landlord filed a petition under section 14(1)(b) of the Delhi Rent Control Act, 1958 (hereinafter referred to as 'the Act ') for an order of eviction of the appellant tenant for a shop bearing No. 361 (Old No. 467 25 A) Azadpur, G.T. Road, Delhi, on the ground that the tenant Duli Chand has sub:let or parted with the possession of the said shop after 9th day of June, 1952 to M/s Hira Lal Sri Bhagwan illegally and without the written consent of the landlord.
The main contention of the tenant was that there was no sub letting or parting with the possession of the shop, that Hira Lal was a relative of the tenant who died some time prior to 1958, that Sri Bhagwan is the son of the tenant, and that the name of the business was given as M/s Hira Lal Sri Bhagwan in memory of the deceased relative Hira Lal.
He further pleaded that the possession of the shop is with the tenant.
Some other defences like the Respondent petitioner was not a landlord, that he had no locus standi to file the petition for eviction, and that the notice of termination of tenancy was not valid, were taken in the written statement and they were overruled and do not survive for consideration in this appeal.
On the main contention, the tenant has taken up the defence that Sri Bhagwan is the son of the respondent and the name of the business M/s Hira Lal Sri Bhagwan is given only in memory of the deceased relative Hira Lal.
A reply statement was filed by the land lord to the effect that though Sri Bhagwan was the natural son of the tenant Duli Chand, he had been given in adoption to Hira Lal, that on such adoption Sri Bhagwan had gone out of the family of the respondent and that it was a clear case of sub letting or parting with the possession of the shop.
On the facts and circumstances of the case, the question of subletting did not arise but the case was considered on the dispute whether the tenant had parted with possession of the shop.
The tenant never pleaded that he had obtained any written consent from the landlord for parting with posses sion.
The only question, therefore, for consideration in this case is as to whether the tenant had parted with pos session of the whole or part of the tenanted premises.
The learned Rent Controller held that the landlord had not proved parting with possession of the tenanted shop by the tenant.
On appeal by the landlord the Rent Control Tribunal held that the tenant had parted with the legal possession of the tenanted premises and in that view ordered the eviction of the tenant under section 14(1)(b) of the Act.
The second appeal filed by the tenant to the High Court was dismissed confirming the finding of the Rent Control Tribunal that the tenant had parted with possession of the tenanted shop.
Section 14(1)(b) of the Act provides that the Rent Controller may on an application made to him in the pre scribed manner make an order for recovery of possession of the premises on the ground 468 "(b) that the tenant has, on or after the 9th day of June, 1952, sub let, assigned or other wise parted with the possession of the whole or any part of the premises without obtaining the consent in writing of the landlord.
" The parametric content and the meaning of the words "parted with possession of the whole or any part of the premises" had come up for consideration in a quite number of cases including some of the decisions of this Court.
It is enough if we refer to the latest judgment of this Court on this point.
In Jagan Nath (deceased) through L.Rs.
vs Chander Bhan and Others, ; , Mukharji, J. speaking for the Court held that: "parting with possession meant giving posses sion to persons other than those to whom possession had been given by the lease and the parting with possession must have been by the tenant; user by other person is not parting with possession so long as the tenant retains the legal possession himself, or in other words there must be vesting of possession by the tenant in another person by divesting himself not only of physical possession but also of the fight to possession.
So long as the tenant retains the fight to possession there is no parting with possession in terms of clause (b) of section 14(1) of the Act.
" The facts in this case as found by the Rent Control Tribunal which was accepted by the High Court are that the concern M/s Hira Lal Sri Bhagwan is the sole proprietary concern of Sri Bhagwan, that Sri Bhagwan has been carrying on that business in the premises in dispute, that Duli Chand tenant had no interest in the business, that Sri Bhagwan is in exclusive possession of the property, that tenant Duli Chand works at another Shop, M/s Aggarwal Hard ware and Mills Stores with his younger son, that there was no plea of concurrent user of the premises by the tenant nor there is any plea that Sri Bhagwan is a licensee, that occasionally the tenant Duli Chand was seen sitting in the shop and that the tenant had not retained any control over the same.
These facts clearly support the finding of Appel late Tribunal and High Court that the tenant had parted with legal possession of the shop to the said Sri Bhagwan.
The learned counsel for the appellant, however, contend ed that Sri Bhagwan was not the adopted son of Hira Lal and that by permitting the son to carry on business it could not be stated that he had 469 parted with the legal possession of the premises.
In this connection, he drew our attention to the decision of this Court in Lakshman Singh Kothari vs Smt.
Rup Kanwar, ; wherein this Court had held that in order that an adoption may be valid under Hindu Law there must be a formal ceremony of giving and taking by the natural parent and the adopted parent after exercising their volition to give and take the boy in adoption and that such an evidence of a valid adoption is not available in this case.
The Appellate Tribunal and the High Court have dealt with the evidence available in this case in detail and came to the conclusion that Sri Bhagwan was adopted by Hira Lal.
It is not neces sary for us to rely on the evidence available or the find ings as proof of a valid adoption under Hindu Law but the evidence and the findings are enough to show that though Duli Chand and Sri Bhagwan are father and natural son, it is not possible to invoke any presumption that they constituted a Joint Hindu Family.
It may also be mentioned that in the written statement the tenant had not pleaded specifically that he and Sri Bhagwan, constituted a Hindu Joint Family, that they are in joint possession, that either the business is joint family business or Sri Bhagwan was permitted to use the premises for carrying on any business as licensee re maining in joint possession.
The evidence on adoption is thus to be treated only relevant for the purpose of consid ering the question whether the tenant has not retained any control over the premises and that he has parted with the possession, and we do not think that the Courts below erred in relying on the same for this purpose.
At this stage we may dispose of another point raised by the learned counsel in connection with the admissibility of certain evidence in this case.
In support of the case of the landlord that Sri Bhagwan was adopted by Hira Lal he exam ined three witnesses, AW 2, AW 3, and AW 4.
The first wit ness was an Inspector of House Tax According to this witness in the House Tax assessment register Sri Bhagwan was shown as the son of Hira Lal and residing at 26 Sarai Peepal Thalla, which was the residence of Hira Lal and not that of tenant Duli Chand.
The next witness was an Upper Division Clerk of the Excise Department.
His evidence was to the effect that in the licence issued under the Central Excise Act the father 's name of Sri Bhagwan was shown as Hira Lal.
The other witness was Upper Division Clerk in the Sales Tax Department and his evidence was that Sri Bhagwan was an assessee of the Department and as per the records in his office the father 's name of Sri Bhagwan was Hira Lal.
The learned counsel contended that these evidences were inadmis sible under Section 91 of the Evidence Act.
Section 91 of the Evidence Act provides 470 that when the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such con tract, grant or other disposition of property except the document itself or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions of Evidence Act.
This Court has considered the scope of section 91 in Bai Hira Devi and Others vs The Official Assignee of Bombay, ; it was held therein: "The normal rule is that the contents of a document must be proved by primary evidence which is the document itself in original.
Section 91 is based on which is sometimes de scribed as the "best evidence rule".
The best evidence about the contents of a document is the document itself and it is the production of the document that is required by section 91 in proof of its contents.
In a sense, the rule enunciated by section 91 can be said to be an exclusive rule inasmuch as it excludes the admission of oral evidence for proving the contents of the document except in cases where secondary evidence is allowed to be led under the relevant provisions of the Evidence Act.
" The evidence in this case is not with reference to the terms of contract or grant or any other disposition of property which has been reduced to the form of a document or a case in which the matter is required by law to be reduced in the form of a document but the evidence is to the effect that Sri Bhagwan has given his father 's name as Hira Lal while claiming ownership to the House No. 26, Sarai Peepal Thalla to the Municipality and similarly the evidence of the other witnesses were that while applying for a licence he had given his name as son of Hira Lal.
The evidence may be worth nothing without production of the extracts from the property register or the other books maintained by the departments.
However, that does not make the evidence itself inadmissible.
The learned counsel for the appellant then contended that Sri Bhagwan had been carrying on business right from 1958 to the knowledge of the landlord and that therefore, the landlord shall be deemed to have waived his right to get order of eviction on the ground of parting with the posses sion under section 14(1)(b) of the Act.
In this connection, the learned counsel for the appellant relied on the 471 evidence of the landlord and some of his witnesses.
The landlord in his evidence as AW 1 has stated that Sri Bhag wan has been to his knowledge sitting at the shop since the year 1968 that he has seen the board of M/s Hira Lal Sri Bhagwan since 1972, and that he was residing in the same building behind the shop in dispute.
AW 5 who is the Uncle of the landlord who came to depose on behalf of the landlord in his evidence had stated that the firm M/s Hira Lal Sri Bhagwan is doing the business in premises since 1960 61.
The tenant in his evidence has stated that the firm M/s Hira Lal Sri Bhagwan is functioning in the disputed premises for the last 18 years.
The Rent Controller found that Shri Bhagwan was doing business in the said premises since 1962, i.e., after the death of Hira Lal.
On the basis of this evidence the learned counsel contended that the landlord was aware that Shri Bhagwan was carrying on business for at least 16 years prior to the filing of the petition for eviction and in the circumstance he shall be deemed to have waived his claim for eviction under section 14(1)(b).
The learned counsel for the landlord, however, contended that the land lord had not received the rent after he came to know of the parting with the possession by the tenant that he was col lecting rent till about 1972 only from the tenant Duli Chand, that the tenant defaulted in payment of the rent subsequent to 1972, and the petition for eviction was filed thereafter in 1976 and in such circumstances there could be no question of waiving of his right with knowledge of part ing with possession by tenant could arise in this case.
He also contended legally no such waiver could be pleaded on the language used in section 14(1)(b) of the Act.
In Associated Hotels of India Ltd. Delhi vs S.B. Sardar Ranjit Singh, ; this Court held that, a waiver is an intentional relinquishment of a known right.
There can be no waiver unless the person against whom the waiver is claimed had full knowledge of his right and of facts enabling him to take effectual action for the enforce ment of such right.
In the present case, though there is some evidence to show that the sign board M/s Hira Lal Sri Bhagwan was seen in the premises since 1972 and the landlord had seen Sri Bhagwan sitting in the shop since the year 1968, there is no positive evidence to show when the landlord had came to know of Sri Bhagwan getting the exclusive possession and doing business in the premises.
In fact, since the question of waiver has not been raised in this form in the courts below there is no definite finding as to when the landlord came to know of such parting with possession and Sri Bhagwan doing business in the pre 472 mises as the sole proprietor of M/s Hira Lal Sri Bhagwan and whether he had received rent after such knowledge.
We can not, therefore, permit this point to be raised for the first time in this Court nor can we go into this question of fact.
That apart section 14(1)(b) requires a "consent in writing" of the landlord in order to avoid an eviction on the ground of sub letting, assigning or otherwise parting with the possession of the whole or any part of the premises.
This Court considering the need for obtaining a consent in writ ing under the provision, in M/s. Shalimar Tar Products Ltd. vs
H.C. Sharma and Others, ; quoted with ap proval the following passage from the judgment of the High Court in Delhi Vanaspati Syndicate vs M/s. Bhagwan Dass, Faquir Chand: "Section 16 of the Act of 1958 holds the key to the interpretation of provisions of clause (b) of sub section (1) of section 14 of this Act as well as of clause (b) of sub section (1) of section 13 of the Act of 1952.
It deals with restrictions on sub letting.
Sub section (1) of section 16 makes sub letting lawful though it was without the consent of the landlord provided that the sub letting has taken place before June 9, 1952 and the sub tenant is in occupation of the premises at the time when the Act of 1958 came into force.
Sub section (2) of section 16 reiterates the provisions of clause (b) of sub section (1) of section 13 of the Act of 1952 and lays down that the sub letting after June 9, 1952 with out obtaining the consent in writing of the landlord shall not be deemed to be lawful.
It does not say that the requisite consent should be obtained before sub letting the premises and the consent obtained after sub letting will not enure for the benefit of the tenant.
However, sub section (3) of Section 16 prohib its subletting of the premises after commence ment of Act of 1958 without the 'previous ' consent in writing of the landlord.
The use of the word 'previous ' in this sub section shows that where it was the intention of the legis lature that the consent in writing should be obtained before sub letting it said so specif ically.
The absence of the word 'previous ' in sub section (2) shows that it was not the intention of the legislature that the consent in writing could be obtained before sub letting.
Before the Act of 1952 a tenant could successfully show acquiescence of the landlord in subletting of escape forfeiture of tenancy.
Since the absence of 473 consent in writing by a landlord for sub letting gave rise to Unnecessary litigation between a landlord and a tenant, the Act of 1952 required the consent of the landlord in writing after its commencement.
The purpose seemed to be that the consent of the landlord evidenced by a writing would cut out litiga tion on this ground.
After all a landlord could always agree to sub letting either before or after sub letting of the premises.
For that reason no condition was laid down that such consent should be obtained before sub letting the premises.
" In the aforesaid view it was held that it was necessary for the tenant to obtain the consent in writing to sub letting the premises.
The mere permission or acquiescence will not do.
The consent shall also be to the specific sub letting or parting with possession.
This Court further observed that the requirement of consent to be in writing was to serve a public purpose, i.e., to avoid dispute as to whether there was consent or not and that, therefore, mere permission or acquiescence will not do.
While noting that everyone has a right to waive and to agree to waive the advantage of a law made solely for the benefit and protec tion of the individual in his individual capacity, in the context of the statutory provision of the Delhi Rent Control Act, this Court further held that the requirement as to the consent being in writing was in the public interest and that, therefore, there cannot be any question of waiver of a right, dealing with the rights of the tenants or landlord.
The words used in the section are "without obtaining the consent in writing of the landlord.
" If the words were "without consent of the landlord" it might mean without consent, express or implied and in that sense question of waiver may arise.
The question of implied consent will not arise, if the consent is to be in writing.
The learned counsel for the appellant referred to a number of decisions of the English Courts in support of his contention.
We do not think it necessary to refer to them in view of the direct decision of this Court on this point.
In the circumstances, there are no grounds to interfere with the decisions of the courts below.
This appeal is accordingly dismissed with costs.
Y. Lal Appeal dis missed.

summary:
The Respondent landlord filed a petition under section 14(1)(b) of the Delhi Rent Control Act 1958 for an order of eviction of the appellant tenant from a shop situate at G.T. Road, Delhi on the ground that the tenant Duli Chand had sub let or parted with the possession of the said shop after the 9th of June 1952 to M/s Hira Lal Sri Bhagwan illegally and without the written consent of respondent landlord.
The contention of the appellant tenant was that he had not sub let or parted with the possession of the shop in ques tion.
According to him Hiralal was his relative who died sometime prior to 1958 and that Sri Bhagwan was his son and the name of the business as M/s Hiralal Sri Bhagwan & Compa ny was given in memory of the deceased Hira Lal.
In reply, the Landlord respondent had contended that it was true that Sri Bhagwan was the natural son of Duli Chand but since he had given him in adoption to Hiralal, he had gone out of the family of the appellant and as such it was a clear case of sub letting and parting with the possession of the rented premises.
The Rent Controller, held that the land lord had failed to prove parting with possession of the tenanted shop.
On appeal by the landlord, the Rent Control Tribunal held that the tenant had parted with the legal possession of the premises and in that view ordered the eviction of the appel lant tenant under section 14( 1 )(b) of the Act.
Thereupon the appellant tenant preferred second appeal before the High Court.
The High Court having affirmed the finding of the Tribunal that the appellant tenant had parted with the possession of the premises in dispute, dismissed the appeal.
Hence this appeal by the tenant.
Dismissing the appeal, this Court, HELD: Section 14(1)(b) requires a "Consent in Writing" of the landlord in order to avoid an eviction on the ground of sub letting, 466 assigning or otherwise parting with the possession of the whole or any part of the premises.
[472B] Mere permission or acquiescence will not do.
The consent shah also be to the specific sub letting or parting with possession.
The requirement of consent to be in writing was to serve a public purpose i.e., to avoid dispute as to whether there was consent or not.
[473C] If the words were "without consent of the landlord" it might mean without consent, express or implied and in that sense question of waiver may arise.
The question of implied consent will not arise, if the consent is to be in writing.
[473E] In the instant case, though there is some evidence to show that the sign board M/s Hira Lal Sri Bhagwan was seen in the premises since 1972 and the landlord had seen Shri Bhagwan sitting in the shop since the year 1968, there is no positive evidence to show when the landlord had come to know of Sri Bhagwan getting the exclusive possession and doing business in the premises.
[471G] Jagan Nath (deceased) through L. Rs. vs Chander Bhan & Ors., ; ; Lakshman Singh Kothari vs Smt.
Rup Kanwar, ; ; Bai Hira Devi & Ors.
vs The Official Assign ee of Bombay; , ; Associated Hotels of India Ltd., Delhi vs S.B. Sardar Ranjit Singh, ; and M/s Shalimar Tar Products L,d.
vs H.C. Sharma & Ors.
, ; , referred to.