judgement:
Appeal No. 756 of 1964.
Appeal from the judgment and decree dated November 19, 1957 of the Patna High Court in Appeal from Original Decree No. 258 of 1848.
Sarjoo Prasad, D. P. Singh, R. K. Garg, section C. Agarwal and M.K Ramamurthi, for the appellants.
D. Goburdhun, for the respondent.
The Judgment of the Court was delivered by Shah J.
This appeal with certificate under article 133 (1)(a) of the Constitution arises out of suit No. 17 of 1942 of the file of Subordinate Judge, Purnea, filed by Bijendra Narain son of Ishwari Narain against Mode Narain, Hari Narain and Rajballav Narain, sons of Bidya Narain, and others for a decree for partition and separate possession of a half share in the properties described in schedules A, B & C to the plaint.
The suit was decreed by the 95 Trial Court and in appeal to the High Court of Judicature at Patna the decree was confirmed with a slight modification.
The defendants in the suit have appealed to this Court.
One Mankishun had four sons: Talebar, Indra Narain, Chandra Narain and Shyam Narain.
Talebar had two sons Hanuman and Raghu Nandan.
Hanuman died leaving him surviving no lineal descendant and Raghu Nandan adopted Udit Narain grandson of his uncle Shyam Narain.
In 1923 Udit Narain and the sons of Shyam Narain instituted suit No. 27 of 1923 in the court of the Subordinate Judge, Purnea, impleading as defendants the descendants of Indra Narain and Chandra Narain as parties thereto for partition and separate possession of a half share in the properties of the joint family.
Bijendra Narain, son of Ishwari Narain who was at the date of the suit a minor was impleaded as the 8th defendant, by his guardian ad litem Bidya Narain his uncle, who was impleaded as the 4th defendant, Mode Narain, Hari Narain and Rajballav Narain, sons of Bidya Narain, were impleaded as defendants 5, 6 & 7.
A preliminary decree was passed in the suit on July, 1924 by consent of parties.
By paragraph (a) of the decree the adoption of Udit Narain as a son by Raghu Nandan was admitted and it was agreed that Udit Narain was entitled in the property in suit to a fourth share as adopted son of Raghu Nandan, and a twelfth share as heir of his natural father Shyam Narain.
The decree further provided. " (b) That the parties agree that the family estate is still joint and that the entire family estate except those that have already been partitioned as detailed below in schedule D will be partitioned by metes and bounds (according) to the shares as defined above (c) That the parties agree that a preliminary decree be passed declaring the shares of the parties as follows: Plaint No. 1 Four annas share Plaintiffs Nos.
1 3 One anna four piece share Plaintiffs Nos.
4 & 5 One anna four piece share Plaintiffs Nos.
6, 7 & 8 One anna four piece share Defendants I & 2 Two annas share Defendant No. 3 Two annas share Defendants Nos.
4, 5, 6 & 8 Two annas share Defendant No. 8 Two annas share (1) That the parties agree that at the time of partition by the arbitrators one allotment should be made for defendants Nos. 1 to 3 's four annas share, and one allotment should be made for defendants 4 to 8 's four annas share, i.e. three allotments will be made as aforesaid.
" 96 Then followed schedules setting out detailed descriptions of the properties.
A decree final was made on February 15, 1937 and the properties of the family were divided in three lots: the first lot representing an eight anna share of Udit Narain and the sons of Shyam Narain, the second representing a four anna share of the branch of Indra Narain, and the third a four anna share of defendants 4 to 8 of the branch of Chandra Narain.
Bijendra Narain attained the age of majority in 1934, and on July 10, 1942 commenced the present action for partition of a half share in the properties which were in the possession of Bidya Narain, his sons and grandsons alleging that he, Bijendra Narain came to learn in 1938 that taking advantage of his minority and inexperience his uncle Bidya Narain and the sons of Bidya Narain had purchased in their own names many properties with the aid of joint family funds and had acquired certain other properties in the name of Bashisht Narain (twentyfourth defendant in the suit), who was daughter 's son of Bidya Narain that in September, 1941 certain respectable residents of the village consented to lend their good offices to settle the dispute and to act as panchas, that at the meeting before the panchas, Bidya Narain and his sons admitted that the properties held by them including the properties acquired in their names and of Bashisht Narain were joint family estates, but they later demurred to give to the plaintiff a separate share, and hence the suit.
Sons of Bidya Narain and Bashishta Narain were the principal contesting defendants.
They submitted 'that by the decree in suit No. 27 of 1923 the joint family status between the plaintiff Bijendra Narain and Bidya Narain had come to an end, that since the decree passed in the earlier suit the parties had been holding the properties as tenants in common and not as joint tenants, that the members of the branch of Bidhya Narain were living and carrying on their business separately, and the share of the plaintiff Bijendra Narain was looked after and managed by his mother and his maternal uncle Rudra Narain, that the private properties, of the plaintiff Bijendra Narain and the defendants had also been ascertained by the compromise petition in suit No. 27 of 1923, that the defendants had been in exclusive possession of the properties purchased in their names since the date of acquisition, and that the plaintiff Bijendra Narain was never in possession of those properties.
Bashisht Narain the 24th defendant submitted that the properties purchased in his name were obtained with the aid of his own funds and that he had "no concern with the other defendants".
The trial Judge held that by the decree in suit No. 27 of 1923 there was no severance of status between the plaintiff Bijendra Narain on the one hand and Bidya Narain and his sons on the other and that the properties in suit had at all material times 97 remained joint and Bijendra Narain was on that account entitled to a decree for partition and separate possession of a half share in the immovable properties in Sch.
In regard to the movable properties described in Sch.
B to the plaint, the learned Judge directed that the Commissioner appointed by the Court do ascertain the properties and divide the same in equal shares and do award one half to the plaintiff Bijendra Narain and the other half to the defendants.
The learned Judge negatived the contention of the 24th defendant that the properties in his possession did not belong to the joint family.
He directed that an account be taken of the assets and liabilities of the family since the date of demand for partition by the plaintiff Bijendra Narain in 1941.
In appeal, the High Court agreed with the view of the Trial Court on all the questions in dispute, and confirmed the decree, subject to a modification about the direction for determination of movable properties described in Sch.
B and ordered that the case be remanded for determining the existence or otherwise of the properties mentioned in Sch.
B. It is common ground that the estate held by the four sons of Man Kishun was till the date of institution of suit No. 27 of 1923 joint family estate.
By the institution of the suit there was undoubtedly severance of status between the plaintiffs of that suit on the one hand and the defendants on the other, but counsel for the appellants contended that by the specification of shares in the preliminary decree, there was severance of status not only between the descendants of Indra Narain and the descendants of Chandra Narain but also between Bijendra Narain plaintiff in this suit and Bidya Narain.
In support of this plea he relied upon specification in the decree of the share of Bijendra Narain.
On behalf of Bijendra Narain it is contended that by this mode of specification of shares there was no severance of the joint family status, since the terms of cl.
(1) of the decree clearly provided that the division of the property was to be made in three shares one for the plaintiffs in suit No. 27 of 1923, another for the descendants of Indra Narain, and the third for the descendants of Chandra Narain.
In a Hindu undivided family governed by the Mitakshara law, no individual member of that family, while it remains un divided, can predicate that he has a certain definite share in the property of the family.
The rights of the coparceners are defined when there is partition.
Partition consists in defining the shares of the coparceners in the joint property; actual division of the property by metes and bounds is not necessary to constitute partition.
Once the shares are defined, whether by agreement between the parties or otherwise, partition is complete.
The parties may thereafter choose to divide the property by metes and bounds, or may continue to live together and enjoy the property in common 98 as before.
If they live together, the mode of enjoyment alone remains joint, but not the tenure of the property.
Partition may ordinarily be effected by institution of a suit, by submitting the dispute as to division of the properties to arbitrator 's, by a demand for a share in the properties, or by conduct which evinces an intention to sever the joint family: it may also be effected by agreement to divide the property.
But in each case the conduct must evidence unequivocally intention to sever the joint family status.
Merely because one member of a family severs his relation, there is no presumption that there is severance between the other members; the question whether there is severance between the other members is one of fact to be determined on a review of all the attendant circumstances.
In the present case, Udit Narain, adopted son of Raghu Nandan and the sons of Shyam Narain claimed collectively a half share in the property of the joint family and instituted a suit for that purpose.
By that demand, there was severance between the branches of Talebar, and Shyam Narain from the joint family and because of the specification of shares, and a direction of allotment of shares in separate lots to the descendants of Indra Narain and Chandra Narain, severance between those two branches may also be inferred, But severance between the members of the branches inter se may not in the absence of expression of unequivocal intention be inferred.
There is no evidence of expression of any such intention by Bidya Narain and his sons to divide themselves from Bijendra Narain: they made no such claim in the suit.
It is true that a compromise preliminary decree was passed in the suit.
But Bijendra Narain was a minor at the date of that decree and was represented in the suit by his uncle Bidya Narain.
There could evidently be no agreement between Bidya Narain acting in his own personal capacity and acting as a guardian ad litem of Bijendra Narain to sever the joint family status.
Specification by the decree of the shares of Bidya Narain and his sons on the one hand and of Bijendra Narain on the other, does not by itself constitute severance of Bidya Narain and his sons from Bijendra Narain.
The specification of shares must be read in the context of cl.
(1) of the decree which directed division of the estate in three lots only.
The Judicial Committee of the Privy Council observed in Palani Ammal vs Muthuvenkatacharla Moniagar & others(1) that: "In coming to a conclusion that the members of a Mitakshara joint family have or have not separated, there are some principles of law which should be borne in mind when the fact of a separation is denied.
A Mitakshara (1) L.R. 52 I. A. 83.
99 family is presumed in law to be a joint family until it is proved that the members have separated.
That the coparceners in a joint family can by agreement amongst themselves separate and cease to be a joint family, and on separation are entitled to partition the joint family property amongst themselves, is now well established law.
But the mere fact that the shares of the coparceners have been ascertained does not by itself necessarily lead to an inference that the family had separated.
There may be reasons other than a contemplated immediate separation for ascertaining what the shares of the coparceners on a separation would be.
" Counsel for the appellants submitted that the last two observations made by the Judicial Committee were unnecessary for the purpose of the decision of the case and did not correctly state the law.
Whether the observations were strictly germane to the decision of the case before the Judicial Committee is immaterial, since in our judgment they enunciate a correct statement of the law relating to the principles to be borne in mind in determining when the fact of severance is denied.
It is from the intention to sever followed by conduct which seeks to effectuate that intention, that partition results; mere specification of shares without evidence of intention to sever does not result in partition.
By cl.
(c) of the preliminary decree the shares of the various parties were specified, but by cl.
(1) a division by metes and bounds was directed between the branches of Telebar and Shyam Narain on the one hand, of Indra Narain on the second and Chandra Narain on the third.
Clause (1) did not evidence an intention to bring about severance between the members of the four branches; it is inconsistent with such intention.
Certain other pieces of evidence on which reliance was placed by counsel for the appellants in support of his claim that there was under the preliminary decree severance of the joint family status may also be referred to.
Girdhar Narain, 'grandson of Indra Narain was appointed, in suit No. 27 of 1923, receiver of the properties and he continued to hold that office till 1936.
Girdhar Narain said that he was maintaining accounts during the period of his management as receiver, and that out of the surplus which remained with him he paid to Bijendra Narain in 1944 Rs. 1,500 for his two anna share.
It was claimed that this was strong evidence indicating that Bijendra Narain 's share was not only specified but was also separated from that of Bidya Narain and his sons.
It is difficult to believe that a receiver of property could be discharged before he submitted his accounts and handed into court the collections made by him, and that Girdhar Narain was permitted to retain the surplus collections with him for eight 100 years after he ceased to be the receiver of the estate.
But assuming that the statement was true, the circumstance that he paid the plaintiff Bijendra Narain a share in the surplus collections equivalent to his share in the joint family property, after this suit was instituted in 1942, does not evidence severance by the preliminary decree in suit No. 27 of 1923.
Reliance was also placed upon certain recitals in Ext. 29 (c)a certified copy of the preliminary decree in suit No. 27 of 1923 produced by the appellants.
Under the heading "Bithnouli Khemchand Khewat Several Khasra Nos. are set out in the remarks column there is a recital "purchased from Ajab Lall Jha and others by virtue of Kewala" dated the 23rd Phagun 1329 M.S. in the name of Mode Narain Chaudhry.
Properties purchased in the name of defendants Nos. 5 and 6, are their private and separate properties.
The rest of properties are held by each of the defendants 4 to 8 in equal shares.
" It was urged that this recital also evidenced severance between Bijendra Narain and Bidya Narain of the joint family status by the preliminary decree.
But the trial court held that the recital commencing from "Properties purchased" to equal shares is an interpolation and with that view the High Court agreed.
It appears that there are several certified copies of the preliminary decree on the record, and in some of these certified copies the recital on which reliance was placed is not found incorporated.
The Trial Court on a review of the evidence came to the conclusion that this recital which is said to be made in the handwriting of Mode Narain who is a party to this litigation could not be relied upon since it was not found in the certified copies of the same decree furnished on earlier occasions.
Before the Trial Court, it appears Exts.
29 & 29(b) the certified copies of the same decree Ext.
29 obtained by Narendra Narayan Chaoudhary (defendant No. 12.
in the suit) Ext.
29(b) obtained by the Darbhanga Raj on September 19, 1934 and May 24, 1940 respectively, were produced, and they did not contain the recital.
It is true that there are certain omissions in the certified copy exhibit 29(b) obtained by the Darbhanga Raj.
That may be an infirmity in that certified copy, but Ext. 29 (at least in the parts which arc material on the point under consideration) appears to be a complete copy.
No explanation was sought to be given before the Trial Court and the High Court as to why the portion relied upon was not found in Ext.
It is admitted that the recital relied upon is in the handwriting of Mode Narain, and Mode Narain has not chosen to enter the witness box and to explain the circumstances in which that writing was made.
It was urged by counsel for the appellants that the plaintiff should have pleaded in the plaint that the certified copy of the decree which incorporated the recital relied upon by the appellants was a fabrication, and since no such plea was raised, the appellants were prejudiced by trial of that question.
It was the case of Bijendra 101 Narain, the plaintiff, that the came to know after the plaint was filed that there had been interpolations in the original decree.
This he claimed to have learnt when he obtained a certified copy on October 5, 1942, after the suit was filed.
In any event, we are unable to agree with counsel for the appellants that where the plaintiff sets up a case that a document relied upon by the defendants in support of their case is a fabrication, it is necessary for him either by his original plaint or by amendment therein to formally plead that the document is a fabrication and that unless he does so he is not entitled to ask the Court to try that plea.
The Trial Court had to try the issue of severance of the joint family status by the decree in suit No. 27 of 1923.
Whether partition had taken place had to be determined on evidence produced at the trial.
Whether evidence in support of a party 's case is reliable may be raised by the other party without incorporating the contention relating thereto in his pleading.
If the rule suggested by counsel for the appellants were to be followed, trial of suits would be highly inconvenient, if not impossible, because at every stage where a party contends that the evidence relied upon by the other side is unreliable he would in the first instance be required to amend his pleading and to set up that case.
The Code of Civil Procedure does not contemplate any such procedure and in practice it would, if insisted upon, be extremely cumbersome and would lead to great delay and in some cases to serious injustice.
The Trial Court, as we have already observed, on a consideration of the entire evidence and the subsequent conduct of the parties came to the conclusion that there was no severance of Bijendra Narain from his uncle Bidya Narain and with that view the High Court agreed.
It is true that the High Court did not enter upon a reappraisal of the evidence, but it generally approved of the reasons adduced by the Trial Court in support of its conclusion.
We are unable to hold that the learned Judges of the High Court did not, as is contended before us, consider the evidence.
It is not the duty of the appellate court when it agrees with the view of the Trial Court on the evidence either to restate the effect of the evidence or to reiterate the reasons given by the Trial Court.
Expression of general agreement with reasons given by the Court decision of which is under appeal would ordinarily suffice.
We may advert to the issue whether the properties which stood in the name of the 24th defendant belonged to the joint family of the parties.
As found by the Court of First Instance and affirmed by the High Court many items of property were acquired in the name of the twentyfourth defendant by Bidya Narain.
Some of these properties were acquired by purchases at court auctions.
The Trial Court has held that these properties were acquired with the aid of joint family funds by Bidya Narain and his sons, and with that view the High Court agreed.
Counsel for the appellants concedes 102 that on the findings recorded by the High Court, in the properties which were acquired by private treaty the plaintiff Bijendra Narain has established his claim to a share, but he contends that a share in the properties which had been purchased at court auctions cannot be given to Bijendra Narain because of section 66 of the Code of Civil Procedure.
Section 66(1) of the Code of Civil Procedure provides: "No suit shall be maintained against any person claiming title under a purchase certified by the Court in such manner as may be prescribed on the ground that the purchase was made on behalf of the plaintiff or on behalf of some one through whom the plaintiff claims." Transactions which are called 'benami ' rea lawful and are not prohibited.
When it is alleged that a person in whose name the property is purchased or entered in the public record is not the real owner, the Court may, if the claim is proved, grant relief upholding the claim of the real owner.
But section 66(1) seeks to oust the jurisdiction of the Court to give effect to real as against benami title.
The object of the clause is to prevent claims before the civil court that the certified purchaser purchased the property benami for another person.
Thereby the jurisdiction of the civil court to give effect to the real as against the nominal title is restricted and the section must be strictly construed.
Where a person alleges that a property purchased at a court auction was purchased on his behalf or on behalf of some one through whom he claims, the suit is clearly barred.
But the suit filed by Bijendra Narain is not of that nature.
By paragraph 13 of the plaint it was averred that "the defendant No. I and his brothers and their father admitted before the panchas that all the properties held by the parties (the group of the plaintiff and the defendants 1st party) including those acquired in the names of the defendants 1,3,6 and Bidya Narain Choudhary as also those acquired in the name of the defendant 24, who is the son of the sister of the defendants 1,2 and 6, were the joint properties of the plaintiff and themselves, and they also admitted that the plaintiff 's share in all the properties was half and it was suggested that a fist of all the joint properties should be drawn up for the purpose of partition and accounts and it should be looked", and by paragraph 19 the plaintiff Bijendra Narain claimed a share in the properties including the properties standing in the name of the 24th defendant.
It was not alleged by Bijendra Narain that any property was purchased by the 24th defendant on his behalf or on behalf of another person through whom he, Bijendra Narain claimed.
Bijendra Narain claimed that all properties standing in the name of Bidya Narain and his sons and also of Hashistha Narain (dependent No. 24) were joint family properties, and that properties were acquired in the name of the 24th defendant by Bidya Narain and his sons with 103 a view to defeat his claim.
He did not set up the case that the 24th defendant acquired the properties for him, nor did he plead that the properties were acquired for some person through whom he was claiming.
His claim was that the properties belonged to the joint family, because they were purchased by Bidya Narain and his sons with the aid of joint family funds in the name of the 24th defendant.
Such a claim does not fall within the terms of section 66(1).
The judg ment of this court Addanki Venkatasubbaiah vs Chilakamarthi Kotaiah(1) does not assist the case of the appellants.
The decision of the case turned on the true interpretation of section 66(2).
It was found in Addanki Venkatasubbaiah 's case by the Trial Court and by a single Judge of the High Court of Madras that the property in dispute was purchased at a court auction by the defendant as agent for the plaintiff and with the funds belonging to the plaintiff, but it was purchased in the defendant 's name without the consent of the plaintiff 's father who was the real purchaser.
The case fell squarely within the terms of sub section
(2) of section 66.
A Full Bench of the High Court of Madras on a reference made in an appeal under the Letters Patent held that such a suit was not maintainable.
This Court pointed out that on the facts proved, there was no doubt that the auction purchaser had acted as agent of the plaintiff and had taken advantage of the fact that the plaintiff 's mother placed confidence in him and had entrusted to him the management of the plaintiff 's estate and the suit could not be dismissed under section 66(1), for it was expressly covered by the terms of section 66(2) which provides that nothing in sub section
(1) shall bar a suit to obtain a declaration that the name of any purchaser certified as mentioned in cl.
(1) was inserted in the certificate fraudulently or without the consent of the real purchaser.
The contention raised by the appellants must therefore fail.
Finally, it was urged that since defendants Mode Narain and Rajballav Narain had died during the pendency of the proceedings,, the High Court was incompetent to pass a decree for account against their estates.
Rajballav who was defendant No. 6 died during the pendency of the suit in the Trial Court and Mode Narain who was, defendant No. 1 in the suit died during the pendency of the appeal in the High Court.
But a claim for rendition of account is not a personal claim.
It is not extinguished because the party who claims an account, or the party who is called upon to account dies.
The maxim "actio personalis moritur cum persona" a personal action dies with the person has a limited application.
It operates in a limited class of actions ex delicto such as actions for damages for defamation, assault or other personal injuries not causing the death of the party, and in other actions where after the death of the party the relief granted could not be enjoyed or granting it would be nugatory.
An action for account is not an action for damages, (1) C.A. No. 120 of 1964 decided on August 12, 1965.
104 ex delicto, and does not fall within the enumerated classes.
Nor is it such that the relief claimed being personal could not be enjoyed after death, or granting it would be nugatory.
Death of the person liable to render an account for property received by him does not therefore affect the liability of his estate.
It may be noticed that this question was not raised in the Trial Court and in the High Court.
It was merely contended that because the plaintiff Bijendra Narain was receiving income of the lands of his share no decree for accounts could be made.
The High Court rejected the contention that no account would be directed in favour of the plaintiff on that account.
They pointed out that the mere fact that the plaintiff was in possession of some portion of properties of the joint family since 1941 cannot possibly absolve the defendants, who were in charge of the management of the properties, from rendering accounts of their dealings with the joint family estate.
The plaintiff was since September 1941 severed from the joint family in estate and also in mess and residence, and he was entitled to claim an account from the defendants from September 1941, but not for past dealings.
The fact that the plaintiff is in possession of some of the properties will, of course, have to be taken into account in finally adjusting the account.
The appeal fails and is dismissed with costs.
G.C. Appeal dismissed.

summary/full:
The appellants and the respondent were collaterals and belonged to the same branch of a Hindu undivided family.
The said family had four branches.
Two branches filed in 1923 a joint suit for partition of the family estate impleading the other two branches as defendants.
In 1924 the court passed a preliminary decree in which not only tile shares of the branches but also the shares inter se of the members of the branches were separately shown.
The two branches to which the plaintiffs belonged were jointly allotted a share of eight annas while the other two branches to one of which the appellants and the respondent belonged were given four annas each.
The shares of the appellants and the respondent were mentioned as two annas each.
In 1936 the respondent came of age and in 1942 he filed a suit claiming partition of his share from that of the appellants.
He alleged that the appellants taking advantage of his minority had purchased properties out of family funds in their own names as well as benami, and that these properties were also liable to be partitioned.
The appellants denied that the said properties were purchased from family funds.
They further contended that the respondent was holding his share of the property separately and that the family property of the branch already stood partitioned as a result of specification of shares in the preliminary decree of 1924.
The trial court decreed the respondent 's suit.
The High Court confirmed the decree with some modifications.
The appellants came to this Court with certificate, The main contention on behalf of the appellants were : (i) that the specification of shares of the appellants and the respondent in the preliminary decree resulted in partition between them and (ii) that the suit in respect of alleged benami property was barred by section 66(1) of the Code of Civil Procedure.
HELD: Specification by the decree of the shares of the appellants on the one hand and of the respondent on the other did not by itself constitute severance of the appellants from the respondent.
[98 F G] Partition may ordinarily be effected by institution of a suit, by submitting the dispute as to division of the properties to arbitrators, by a demand for a share in the properties, or by conduct which evinces an intention to sever the joint family; it may also be effected by agreement to divide the property.
But in each case the conduct must evidence unequivocally intention to sever the joint family status.
Merely because one member of the family severs his relation, there is no presumption that there is severance between the other members : The question whether there is severance between the other members is one of fact to be determined on a review of all the attendant circumstances.
[98 B] 94 Palani Ammal vs Muthuvenkatacharla Moniagar & Ors.
L.R. 52 I.A. 83, relied on.
In the present case the partition suit of 1923 and the preliminary decree therein making three allotments of the property led to severance of status of the plaintiffs as well as the other two branches of the larger family.
But severance between the members of the branches inter se may not in the absence of expression of unequivocal intention be inferred.
There was no evidence of expression of any such intention either by the appellants or the respondent.
(ii) The respondent 's claim was that the properties belonged to the joint family, because they were purchased by the appellants with the aid of joint family funds benami in the name of a third party.
Such a claim does not fall within the terms of section 66(1).
[103 B] Addanki Venkatasubbaiah vs Chilakamerthi Kotaiah, C.A. No. 120 of 1964 dated 12 8 1965, relied on.
(iii) It was not necessary for the respondent to mention in his plaint that the recital in the preliminary decree showing severance of status between the appellants and the respondent was an interpolation.
The question whether evidence in support of a party 's case is reliable may be raised by the other party without incorporating the contention relating thereto in his pleading.
[101 B D] (iv) It is not the duty of the appellate court when it agrees with the view of the trial court on the evidence either to restate the effect of the evidence or to reiterate the reasons given by the trial court.
EXpression of general agreement with reasons given by the court decision of which is under appeal would ordinarily suffice.
[101 F G] (v) A claim for rendition of account is not a personal claim.
It is not extinguished because the party who claims an account or the party who is called upon to account dies.
The maxim "actio personal moritur cum persona" does not apply to such cases.
[103 G]


judgement:
Appeals Nos. 19 & 20 of 1963.
Appeals from the judgment and decree dated July 31, 1959 of the Patna High Court in Appeals from Original Decree Nos. 30 and 40 of 1953 respectively.
section T. Desai and R. C. Prasad for appellant.
Sarjoo Prasad and D. Goburdhan, for the respondents Nos.1 to 4 [In C. A. No. 19 of 1963].
Sarjoo Prasad and K. K. Sinha, for respondents Nos.
5 7 and 9 [In C. A. No. 19 of 1963] and 1 3 and 5 [In C. A. No. 20 of 1963].
2 The Judgment of the Court was delivered by Bachawat, J.
One Ramyad Singh was a member of a joint family and has eight annas interest in the joint family properties.
He was a Hindu governed by the Mitakshara school of Hindu law.
He died issueless, leaving his widow, Mst.
Bhagwano Kunwar.
The date of his death is in dispute.
After his death, Bhagwano Kunwar filed the present suit for partition of the joint family properties claiming eight annas share therein.
She contended that Ramyad Singh died in 1939 after the passing of the Hindu Women 's Rights to Property Act, 1937, and she was entitled to maintain the suit for partition.
The defendants contended that Ramyad Singh died ill 1936 before the passing of the Act and she was entitled to maintenance only.
The trial Court accepted the plaintiff 's contention aid decreed the suit.
The defendants filed two separate appeals to the High Court.
On December 15, 1958, Bhagwano Kunwar died.
The High Court passed orders substituting one Ram Gulam Singh in her place.
Later, the High Court recalled these orders, as it was conceded that Ram Gulam Singh was not her legal representative.
By a deed dated March 14, 1958, Bhagwano Kunwar had sold lands measuring 1 bigha 5 kathas to the appellant.
The High Court allowed the appellant 's application for substitution under 0.22 r. 10 of the Code of Civil Procedure and proceeded to hear the appeals.
The High Court accepted the defendants ' contention, reversed the decree passed by the Subordinate Judge, and dismissed the suit.
The appellant has now filed these appeals under certificates granted by the High Court.
The main point in controversy is, did Ramyad Singh die in 1936 or did he die in 1939? If he died in 1936, Bhagwano Kunwar was not entitled to maintain the suit for partition and the suit was liable to be dismissed.
But if he died in 1939, she was entitled to eight annas share in the joint estate and was entitled to maintain the suit for partition under the Hindu Women 's Rights to Property Act, 1937 read with the Bihar Hindu Women 's Rights to Property ,(Extension to Agricultural Land) Act, 1942.
Moreover, it is ,conceded by counsel for the respondents that in that event after 1956 she held her eight annas share in the joint estate as full owner by virtue of section 14 of the , and on the strength ,of the sale deed dated March 14, 1958 executed by Mst.
Bhagwano Kunwar the appellant was entitled to continue the suit for partition .after her death.
There is conflicting oral evidence with regard to the date of ,death of Ramyad Singh.
The appellant relied strongly upon an admission made by the main contesting defendants, Janki Singh and Kailashpati Singh, in a plaint signed and verified by them and filed in Title Suit No. 3 of 1948.
In that plaint, Janki Singh and Kailashpati Singh claimed partition of the joint family properties, implead 3 ing Bhagwano Kunwar as defendant No. 8 and other members of the joint family as defendants Nos.
1 to 7.
In this plaint, Janki Singh and Kailashpati Singh stated: "2.
That the properties described in Schedule 1 to 2 in the plaint belong to the joint family.
As the said Babu Ramyad Singh died in 1939 the defendant No. 8 also became entitled to life interest in the properties of the joint family.
The defendant No. 8 surrendered her life estate to the plaintiffs and the defendants Nos. 1 to 7 and she gave up her possession of the joint family properties.
The plaintiffs and the defendants Nos. 1 to 7 have been coming in joint possession of the properties under partition.
That the defendant No. 8 is also made a defendant in this suit as she is entitled to maintenance," The plaint contained a clear admission that Ramyad Singh died in 1939.
The High Court ruled that Bhagwano Kunwar could not rely on this admission.
The High Court said that she could not rely upon the statement that Ramyad Singh died in 1939, as she was not prepared to admit the correctness of the statement that she had surrendered her estate and was entitled to maintenance only.
We are unable to accept this line of reasoning.
It is true that Bhagwano Kunwar relied only upon the statement that Ramyad Singh died in 1939 and was not prepared to accept the statement that she had surrendered her share to the other members and was entitled to maintenance only.
But she tendered the entire plaint, and she did not object to the admissibility or proof of any of the statements made therein.
All the statements in the plaint are,.
therefore, admissible as evidence.
The Court is, however, not bound to accept all the statements as correct.
The Court may accept some of the statements and reject the rest.
In the presented suit, it is common case that Bhagwano Kunwar did not surrender her share in the estate.
We must, therefore, reject the statement with regard to the alleged surrender and the consequential allegation that she was entitled to maintenance only.
The statement in the plaint as to the date of death of Ramyad Singh must be read as an admission in favour of Bhagwano Kunwar.
The High Court also observed that an admission in a pleading can be used only for the purpose of the suit in which the pleading was filed.
The observations of Beaumont, C.J. in Ramabai Shriniwas vs Bombay Government(l) lend some countenance to this view.
But those observations were commented upon and explained by the Bombay High Court in D. section Mohite vs section I Mohite(2).
An admission by a party in a plaint signed and verified by him in a prior suit is an admission within the meaning of section 17 of the Indian (1) A.I.R. 196O Bom.
(2) A.I.R. 1941 Bom.
4 Evidence Act, 1872, and may be proved against him in other litigations.
The High Court also relied on the English law of evidence.
In Phipson on Evidence, 10th Edn, article 741, the English law is thus summarised: "Pleadings, although admissible in other actions, to show the institution of the suit and the nature of the case put forward, are regarded merely as the suggestion of counsel, and are not receivable against a party as admissions, unless sworn, signed, or otherwise adopted by the party himself." Thus, even under the English law, a statement in a pleading sworn, signed or otherwise adopted by a party is admissible against him in other actions.
In Marianski vs Cairns(1), the House of Lords decided that an admission in a pleading signed by a party was evidence against him in another suit not only with regard to a different subject matter but also against a different opponent.
Moreover, we are not concerned with the technicalities of the English law.
Section 17 of the makes no dis tinction between an admission made by a party in a pleading and other admissions.
Under the Indian law, an admission made by a party in a plaint signed and verified by him may be used as evidence against him in other suits.
In other suits, this admission cannot be regarded as conclusive, and it is open to the party to show that it is not true.
The explanation of Janki Singh and Kailashpati Singh that the plaint was drafted by their lawyer Ramanand Singh at the instance of the panchas including one Ramanand and they signed and verified the plaint without understanding its contents cannot be accepted.
There is positive evidence on the record that the plaint was drafted at the instance of Janki Singh and was filed under his instructions.
The plaint was signed not only by Janki Singh and Kailashpati Singh but also by their lawyer, Ramanand Singh.
Neither Ramanand Singh nor the panch Ramanand was called as a witness.
Even in this litigation, Ramanand Singh was acting as a lawyer on behalf of some of the defendants.
Kailashpati Singh is a Homeopathic medical practitioner and knows English.
The plaint was read over to Janki Singh.
Both Janki Singh and Kailashpati Singh signed the plaint after understanding its contents and verified all the statements made in it as true to their knowledge.
They then well knew that Ramyad Singh had died in 1939 after the passing of the Hindu Women 's Rights to Property Act.
It is not shown that the admission in the plaint as to the date of death of Ramyad Singh is not true or that it was made under some error or misapprehension.
This admission must be regarded as a strong (1) 5 piece of evidence in this suit with regard to the date of death of Ramyad Singh.
Bhagwano Kunwar and her witnesses, Ram Gulam Singh, Ram Saroop Singh and Sheo Saroop Singh gave evidence in Sep tember, 1952.
They all swore that Ramyad Singh died 13 years ago.
In agreement with the trial Judge, we accept their testimony.
Learned counsel commented on the testimony of Sheo Saroop Singh, who had said that the last earthquake took place 15 to 16 years ago and Ramyad Singh died 2 years 8 months thereafter.
The last earthquake took place on January 15, 1934, and counsel, therefore, argued that Ramyad Singh could not have died in 1939.
Clearly, there is some confusion in the evidence of Sheo Saroop Singh.
He gave evidence in September, 1952, and his statement that the earthquake took place 15 to 16 years ago could not be correct and his further statement that Ramyad Singh died 2 years 8 months after the earthquake was not accurate.
He swore positively that Ramyad Singh died 13 years ago.
Bhagwano Kunwar said that there were receipts to show that Ramyad Singh died 13 years ago.
On her behalf rent receipts for 1339, 1341, 1342, 1343, 1345, 1348, 1356 and 1359 faslis were tendered.
The rent receipts are in respect of certain lands held by her as a tenant.
The first four rent receipts show that Lip to 1343 fasli corresponding to 1936 the rent used to be paid by her through Ramyad Singh.
Payment of the rent for 1345 fasli was made in 1346 fasli corresponding to 1939 through Janki.
The rent for the subsequent years was paid through Janki and other persons.
The High Court thought that the rent receipts showed that Ramyad Singh died in 1936 and because of his death, rent was subsequently paid through other persons.
But the rent receipt for 1344 fasli is not forthcoming, and it is not known who paid the rent for 1344 fasli (1937).
Moreover, assuming that Ramyad Singh did not pay rent in 1937 and 1938, it does not follow that he must have died in 1936.
Kailashpati Singh, Janki Singh and other witnesses called on behalf of the defendants said that Ramyad Singh had died 16 years ago.
In agreement with the trial Court, we do not accept their testimony.
Janki Singh and Kailashpati Singh gave false explanations with regard to the admission made by them in the plaint in the previous suit.
Moreover, for the purpose of defeating the title of Bhagwano Kumar they set up a compromise decree passed in that suit.
The trial Court found that the compromise decree was obtained by them by practising fraud on Mst.
Bhagwano Kunwar, and this finding is no longer challenged.
We, therefore, hold and find that Ramyad Singh died in 1939.
It follows that Bhagwano Kunwar was entitled to eight annas share in the joint family estate, and was entitled to maintain the Suit.
The trial Court, therefore, rightly decreed the suit.
6 But in view of the death of Bhagwano Kunwar during the pendency of the appeal in the High Court, the decree passed by the trial Court must be modified.
The appellant purchased from Bhagwano Kunwar 1 bigha 5 kathas of land under the deed dated March 14, 1958, and he can claim only the rights of an alienee of a specific property from a co owner on a general partition of the undivided properties.
All the parties appearing before us conceded that on such a partition the appellant is entitled to allotment and separate possession of the lands purchased by him under the deed dated March 14, 1958.
The deed is not printed in the Paper Book.
It will be the duty of the trial Court now to ascertain full particulars of the aforesaid lands.
The appeals are allowed with costs in this Court and in the High Court.
The decree passed by the High Court is set aside.
There will be a decree in favour of the appellant allotting to him the lands purchased by him under the deed dated March 14, 1958 and awarding to him separate possession thereof.
The trial Court will draw up a suitable decree after ascertaining the particulars of the aforesaid lands.
Y. P. Appeals allowed.

dataset_name: IN-Abs

summary/full:
The plaintiff tendered in evidence a plaint in an earlier suit and relied on an admission made by the defendants with regard to a fact in issue in the later suit.
The High Court ruled that the plaint was not admissible in evidence on two grounds, viz., (i) the plaintiff could not rely on a state ment in the plaint as an admission, as she was not prepared to accept the correctness of the other statements in the plaint and (ii) an admission in a pleading could be used only for the purposes of the suit in which the pleading was filed.
On appeal to this Court.
HELD : (1) All the statements in the plaint are admissible in evidence.
The plaintiff can rely upon a statement in the plaint with regard to a matter in issue as an admission, though she is not prepared to accept the correctness of the other statements in the plaint.
Nor is the Court bound to accept all the statements as correct.
The court may accept some of the statements as correct and reject the rest.
[3 F] (2) Section 17 of the makes no distinction between a admission made by a party in a pleading and other admissions.
An admission made by a party in a plaint signed and verified by him may be used as evidence against him in other suits.
In other suits, this admission cannot be regarded as conclusive and it is open to the party to show that it is not true.
[4 D] D. section Mohite, vs section I. Mohite, A.I.R. 1960 Bom.
153, Marianski vs Cairns, and Ramabai Shriniwas vs Bombay Government,A.I.R. , referred to,


judgement:
Appeal No. 469 of 1966.
Appeal by special leave from the judgment and decree dated November 25, 1965 of the Bombay High Court in Civil Revision Application No. 1579 of 1962.
section G. Patwardhan and M. V. Goswami, for the appellant S.T. Desai and K. L. Hathi, for respondent No.1 The Judgment of the Court was delivered by Bachawat, J.
The question arising in this appeal by special leave is whether in a case falling under sub s.(3)(a) of section 12 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Act No. 57 of 1947), a tenant can claim protection from eviction by showing his readiness and willingness to pay the arrears of rent before the date of the institution of the suit.
The appellant 's husband was a tenant of a flat The rent was in arrears 136 for a period of more than six months.
On December 22, 1956, the landlord served a notice on the tenant demanding the rent.
The tenant neglected to pay the rent within one month of the notice.
On January 11, 1957, he died.
On February 4, 1957, the appellant sent the arrears of rent to the landlord by money order, but the landlord refused to accept the payment.
On February 5, 1957, the landlord instituted the present suit for eviction of the appellant.
The trial Court decreed the suit.
The appellant filed a revision application before the Bombay High Court, but this application was dismissed by the High Court.
It is to be noticed that the rent was in arrears for a period of more than six months.
The tenant neglected to make payment of the arrears of rent within one month of the service of the notice by the landlord under sub section
(2) of s.12.
The rent was payable by the month, and there was no dispute regarding the amount of the rent.
The case was, therefore, precisely covered by sub section
(3)(a) of section 12.
Nevertheless, the appellant submitted that as she was ready and willing to pay the rent before the institution of the suit, she could claim protection under sub section
(1) of section 12.
She submitted that the decided cases support this conten tion.
In Mohanlal vs Maheshwari Mills Ltd.( '), P. N. Bhagwati, J. held that even in a case falling under sub section
(3) (a), a tenant could, by paying or showing his readiness and willingness to pay the arrears of rent before the institution of the suit, claim protection from eviction under sub section
A similar opinion was expressed by a Divisional Bench of the Gujarat High Court in Ambalal vs Babaidas(2).
The judgment under appeal dissented from the view expressed by the Gujarat High Court.
The Bombay High Court held, and, in our opinion, rightly, that in a case falling under sub section
(3)(a), the tenant could not claim protection from eviction by showing his readiness and willingness to pay the rent before the institution of the suit.
Sub section (1) of section 12 imposes a general restriction on the landlord 's right to recover possession of the premises so long as the tenant pays or is ready and willing to pay the rent and observes and performs the other conditions of the tenancy.
Subsection (2) of section 12 imposes the further restriction that no suit for recovery of possession on the ground of non payment of rent shall be instituted by the landlord until the expiration of one month after a notice in writing demanding the rent.
Sub section (3)(a) provides for the consequences which will follow where the rent is payable by the month, there is no dispute regarding the amount of rent, the rent is in arrears for a period of six months or more, and the tenant neglects to make payment within one month of the service of the notice under sub s (2).
In such a case, the tenant (1) (1962) 3 Gujarat Law Reporter, 574 at pp. 618 to 62).
(2) (1962) 3 Gujarat Law Reporter 625, 644.
137 cannot claim any protection under sub section
(1), and the Court is bound to pass a decree for eviction.
At the material time, sub section
(3) (a) of section 12 read : "Where the rent is payable by the month and there is no dispute regarding the amount of standard rent or permitted increases, if such rent or increases are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in sub s (2), the Court may pass a decree for eviction in any such suit for recovery of possession.
" The word "may" in this sub section has the effect of "shall".
In Bhatya Punjalal Bhagwanddin vs Dave Bhagwatprasad Prabhuprasad(l), this Court held that where the requirements of sub section
(3)(a) were satisfied, the Court was bound to pass a decree for eviction.
The section has now been suitably amended, and the word "shall" has been substituted for the word "may" by Maharashtra Act No. 14 of 1963.
If the conditions of sub section
(3)(a) are satisfied, the tenant cannot claim any protection from eviction under the Act.
By terdering the arrears of rent after the expiry of one month from the service of the notice under sub section
(2), he cannot claim the protection under sub section
It is immaterial whether the tender was made before or after the institution of the suit.
In a case falling within sub section
(3)(a), the tenant must be dealt with under the special provisions of sub section
(3)(a), and he cannot claim any protection from eviction under the general provisions of sub section
The landlord is vested with the right to recover possession of the premises if the rent is in arrears for a period of six months or more, "the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in sub section
(2)", and the other conditions of sub section
(3)(a) are satisfied.
This right cannot be defeated by showing that the tenant was ready and willing to pay the arrears of rent after the default, but before the institution of the suit.
In effect, the appellant asks us to rewrite the section and to substitute in it the following condition : "the tenant neglects to make payment thereof until the date of the institution of the suit.
" It is not possible to rewrite the section in the manner suggested by the appellant.
The appellant 's case fell precisely within sub section
(3)(a) and she could not obtain immunity from eviction by tendering the rent before the institution of the suit.
The appeal is dismissed with costs.
V.P.S. Appral dismissed.
(1) ; ,330 331.

summary/full:
The tenant of a flat was in arrears of rent for more than six months.
The landlord served a notice on the tenant demanding the rent.
The tenant did not pay it within one month of the notice, but tendered it after the expiry of the month.
The landlord refused to receive it and filed a suit for eviction under section 12(3) (a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947.
The tenant claimed the protection of section 12(1) of the Act on the ground that she was ready and willing to pay the rent before the institution of the suit.
HELD : Under section 12(3) (a), the landlord is vested with the right to recover possession of the premises if the rent is in arrears for six months or more, the tenant neglects to pay it until after the expiry of one month after notice demanding the rent and other conditions of sub s.(3) (a) are saitisfied.
This right cannot be defeated by showing that the tenant was ready and willing to pay the rent after the default but before the institution of the suit.
In a case falling within sub section
(3) (a), the tenant must be dealt with under its special provisions and he cannot claim any protection from eviction under the general provisions of sub section
(1): and the court was bound to pass a decree for eviction.
[137 E, F] Bhaiya Punjalal Dhagwanddin vs Dave Bhagwat Prosad Prabhuprasad, [19631 3 S.C.R. 312, followed.
Mohanlal vs Maheshwari Mills Ltd. and Ambala, vs Babaldas, , overrules.


judgement:
Appeal No. 981 of 1964.
M 14 Sup.
C1166 11 154 Appeal from the judgment and decree dated December 22, 1961 of the Patna High Court in Appeal from Original Decree No. 223 of 1957.
Bishan Narain and U. P. Singh, for the appellant.
Sarjoo Prasad, B. K. Saran, A. B. section Sinha, section K. Mehta and K. L. Mehta for respondent No. 2.
The Judgment of the Court was delivered by Wanchoo, J.
This is an appeal on a certificate granted by the Patna High Court.
A suit was brought by the plaintiffs respondents for a declaration, and in the alternative for possession, in respect of certain properties.
It was prayed that a deed of gift executed on July 31, 1953 by Mst.
Phuljhari Kuer in favour of the appellant Ramrati Kuer was not binding on the plaintiffsrespondents.
Phuljhari Kuer was originally a defendant but died during the pendency of the suit.
The case of the respondents was that the common ancestor of the parties Ramcharan Singh had three sons, namely, Ramruch, Uttim Narain and Basekhi Singh.
After the death of Ramcharan Singh, his three sons separated in status though the properties were not divided by metes and bounds.
Uttim Narain died sometime before 1900 leaving a widow Mst.
Zira Kuer but no children, and Mst.
Zira Kuer in her turn died in 1943.
Ramruch had a son Basudeo Narain.
According to the respondents, Basudeo Narain died during the life time of his father sometime about the revisional settlement which took place between 1917 1920.
As Basudeo Narain was the only son of Ramruch the latter was greatly grieved on his premature death and he left his home about a month after Basudeo Narain 's death and thereafter disappeared from the village.
Basudeo Narain had married twice.
One of his widows was Mst.
Phuljhari Kuer who executed the gift deed of 1953 which was challenged in the suit.
The other was Mst.
Sakala who died in 1950.
Phuljhari had no children while Mst.
Sakala had a daughter Ramrati Kuer who is the appellant before us.
Thus at the time of his death, Basudeo Narain left two widows and a daughter.
The case of the respondents further was that as Basudeo Narain had pre deceased his father, Basekhi Singh inherited the properties of the share of Ramruch and that the two widows and the daughter of Basudeo Narain had no right to the properties except that they were entitled to maintenance.
Further on the death of Mst.
Zira Kuer, Uttim Narain 's share of the properties also came to Basekhi Singh.
On July 31, 1953 however Mst.
Phuljhari Kuer was prevailed upon by the appellant 's husband to execute a gift deed in favour of Ramrati Kuer, though she had no right whatsoever to the properties.
Consequently the suit out of which the present appeal has arisen was filed on October 5, 1953.
Thus the main case of the plaintiffs 155 respondents was that Basudeo Narain died in the life time of his father and his widows and daughter had no right to any property in which he might have had a share along with his father Ramrach with whom he was joint and that on the death of Ramruch the entire share of Ramruch was inherited by Basekhi Singh.
It may be mentioned that Basekhi Singh died in 1948 and the suit was filed by his two sons.
The appellant contested the suit.
The case of the appellant was that there had been no separation during the life time of Uttim Narain and that after the death of Uttim Narain there was a joint family consisting of Ramruch and Basekhi Singh.
It was sometime before the revisional settlement that Ramruch and Basekhi Singh separated and each had half share, though many of the properties still remained joint.
It was further contended by the appellant that Ramruch died before his son.
Therefore Basudeo Narain succeeded to and came into possession of half of the properties of Ramruch 's share and on Basudeo Narain 's death, his two widows came into possession of the same After the death of Mst.
Sakala, Mst.
Phuljhari remained in sole possession of Basudeo Narain 's properties.
She executed the deed of gift of 1953 in favour of the appellant, since then the appellant had been in possession.
Further it was stated that the appellant being the only daughter of Basudeo Narain was his legal heir and was entitled as of right to the entire share of Basudeo Narain after the death of Mst.
Phuljhari Kuer.
It will thus be seen that the main question in dispute in this case was whether Basudeo Narain died before or after the death of his father Ramruch.
It is not in dispute that if Basudeo Narain died before Ramruch, the plaintiffs respondents suit must succeed; on the other hand, if Basudeo Narain died after the death of his father Ramruch the suit must fail because Basudeo Narain would succeed to Ramruch and his two widows and daughter would in their turn succeed to him.
On a review of the entire evidence and the conduct of the parties for about 30 years after the revisional settlement, the trial court came to the conclusion that Basudeo Narain had died after his father.
In that view the trial court dismissed the suit.
There was an appeal to the High Court by the plaintiffs respondents and the High Court allowed the appeal.
The High Court reconsidered the entire evidence produced by the parties and was of opinion that the oral evidence produced was far from satisfactory and held that if oral evidence was equally balanced or equally worthless the side which got support from unimpeachable or reliable docu mentary evidence should succeed.
The High Court then consi dered the documentary evidence and held that most of the documentary evidence was inconclusive one way or the other as to the 156 order in which Basudeo Narain and Ramruch died.
But in the opinion of the High Court there was a statement made by Mst.
Phuljhari as far back as 1925 in a mortgage suit brought by her and in that suit she categorically said that Ramruch left his home a month after the death of Basudeo Narain and bad not been heard of since.
The High Court strongly relied on this statement made by Mst.
Phuljhari Kuer in 1925 and held on its basis that Basudeo Narain had predeceased his father.
In this view the High Court allowed the appeal and declared the gift deed made by Mst.
Phuljhari Kuer invalid.
It also held that the appellant could not succeed to the properties which belonged to Ramruch as the last male holder and therefore finally decreed the suit of the plaintiffs respondents.
As the judgment was one of reversal, the High Court granted a certificate to the appellant to appeal to this Court; and that is how the matter has corn before us.
No reliance has been placed on behalf of the parties oil the oral evidence, and tile estimate of the High Court that the oral evidence on both sides is far from satisfactory is not disputed before us.
Learned counsel for the appellant however relies on certain circumstances appearing from the evidence to show that Basudeo Narain must have died after his father.
It may be mentioned that there is no evidence as to the actual date or year of death of Basudeo Narain or Ramruch.
But it is urged that certain circumstances show that Basudeo Narain must have died after his father Ramruch.
We shall consider these circumstances one by one.
[After considering the circumstances his Lordship proceeded:] It will thus be seen that none of the circumstances relied on behalf of the appellant is conclusive to show that Basudeo Narain must have died after his father; at the same time it may be conceded that if all these circumstances stood by themselves without any counter balancing documentary evidence on the other side the balance might have tilted in favour of the appellant 's case.
But as against all this there is a statement of Mst.
Phuljhari Kuer made in 1925 which categorically shows that Basudeo Narain died during the life time of his father and it was thereafter that his father left his village as he was very grieved on the premature death of his son and thereafter he disappeared from the village.
If this statement is admissible in evidence and if it can be relied upon, it completely demolishes any inference in favour of the appellant which might otherwise have been drawn from the circumstances to which we have referred above.
It is therefore necessary to turn to the circumstances in which this statement was made in 1925 and to consider its admissibility as well as the value to be attached to it.
It appears that a suit was brought by Mst.
Phuljhari Kuer and Mst.
Sakala Kuer widows of Basudeo Narain against Mukhlal 157 Singh and others in 1924.
The suit was based on a mortgage bond in favour of Basudeo Narain and the case of the widows was that money had been advanced out of the personal fund of their husband and that was how they were claiming a decree on the basis of the mortgage.
The defence was that Basudeo Narain had no personal fund of his own and that money was advanced out of joint family fund and therefore Ramruch and other members of the joint family should have filed the suit or should have been made parties and as that had not been done the suit was not maintainable.
Two of the issues in the case were : (i) whether the suit as framed was maintainable, and (ii) whether the plaintiffs in that suit had any cause of action.
In that suit Mst.
Phuljhari Kuer made a statement and she stated that her husband was :In the service of one Nandan Babu and the money which was advanced was out of his earnings as such servant and that the joint family had no concern with that money.
While making a statement in that suit Mst.
Phuljhari Kuer stated as follows : "My husband died nine years ago.
Ramruch Singh father of Basudeo Narain Singh went away from this place one month after the latter 's death and he has not been heard of since then and is traceless.
" It has been urged on behalf of the appellant that it was unnecessary for Mst.
Phuljhari Kuer to make such a statement in that suit after she had already stated that the money had come out of the earnings of Basudeo Narain, who was in the service of Nandan Babu, and that this statement was made at the instance of Basekhi Singh in order to establish his right to the property of Ramruch 's branch.
It is true that Mst.
Phuljhari Kuer had stated that money came out of the earnings of her husband and was his personal property; even so we cannot say that this statement was entirely uncalled for She had to meet the case that the money did not come from the joint family fund and that it was unnecessary therefore to implead other members of the family.
It seems to us that to explain why other members of the family and particularly Ramruch was not joined in the suit she stated about the death of her husband and about the disappearance of Ramruch soon after her husband 's death.
The appellant tried to prove that this statement was made ,.at the instance of Basekhi Singh.
In that connection one witness, namely, Jagdamba Sahai (D.W. 11) was examined and he tried to make out that Mst.
Phuljhari Kuer was tutored by her counsel in that case at the instance of Basekhi Singh to make this statement so that Basekhi Singh 's interest in the properties of Ramruch might not be defeated.
We have read the statement of Jagdamba Sahai and are in agreement with the High Court that it is impossible to believe that statement.
It is enough to say that though Jagdamba Sahai pretended to be the clerk of the counsel he had to 158 admit that he had no card to work as clerk in 1924 and 1925.
He bad also to admit that he was sitting outside in the verandah while the talks which he says he heard took place in a room five or six yards away.
He also admitted that the counsel and Mst.
Phuljhari were not talking loudly and that he heard something and not everything.
His evidence is clearly false and we cannot believe that the statement in question was made at the instance of Basekhi Singh.
Further if it were true that Basekhi Singh was keen to get this statement in order that his right to the properties left by Ramruch might not be jeopardised, it is strange that be took no steps for about 23 years that he lived after this statement was made to get his name mutated in revenue papers.
As we have already indicated there was no trouble in this family so long as Basekhi Singh was alive and in the circumstances we are not prepared to believe that this statement was made at the instance of Basekhi Singh who at any rate took no advantage of it during his lifetime.
It is however urged that this statement is not admissible and in any case no value should be attached to it, firstly because it is not proved that Mst.
Phuljhari Kuer knew that she was making a statement against her interest, and secondly, because this statement is contradicted by her in her statement in the gift deed of 1953.
Under section 32 (3) of the , No. 1 of 1872, a statement of a person who is dead is admissible when the statement is against the pecuniary or proprietary interest of the person making it, or when if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages.
Now there is no doubt that this statement of Mst.
Phuljhari Kuer is against her proprietary interest.
Therefore it would be admissible in evidence under section 32 (3) as she is dead.
Of course, it would not be an admission so far as the appellant is concerned; but it would certainly be a piece of evidence to be taken into consideration.
But it is said that before the statement can be admissible it must be shown that the person making it knew that it was against his pecuniary or proprietary interest.
In this connection reliance has been placed on Srimati Savitri Debi vs Raman Bijoy(l) where it has been held that "the principle upon which hearsay evidence is admitted under section 32 (3) is that a man is not likely to make a statement against his own interest unless true, but this sanction does not arise unless the party knows the statement to be against his interest.
" This statement of law is based on two earlier English decisions in Tucker vs Oldburry Urban District Council(2) and Ward vs H.S. Pitt.(3) Accepting this to be the correct statement (1) L.R.(1949) LXXVI I.A. 255.
(2) (3) 159 of law with respect to admissibility of statements under section 32 (3) of the , we may add that the question whether the statement was made consciously with the knowledge that it was against the interest of the person making it would be a question of fact in each case and would depend in most cases on the circumstances in which the statement was made, except when the statement is categorical in terms as for example, "I owe so much to such and such person.
" There can hardly be any direct evidence to show that the person making the statement in fact knew that the statement was against his interest and so in most cases knowledge would have to be inferred from the surrounding circumstances.
We have therefore to see whether Mst.
Phuljhari Kuer can be said to have known when she made the statement in 1925 that it was against her proprietary interest.
There was no dispute in the family at the time when the statement was made.
The law at the time was perfectly clear that a predeceased son 's wife had no interest in the property left by her father in law, except of course the right to maintenance.
There is no reason to suppose that Mst.
Phuljhari did not know that by making such a statement she would become the widow of a predeceased son of her fatherin law and if that was so there is no reason to suppose that she would not know the well established Hindu law that a predeceased son 's widow has no interest in her father in law 's property except for maintenance.
In the circumstances once it is held that the statement was not made at the instance of Basekhi Singh it must follow in the absence of proof that Mst.
Phuljhari Kuer did not know the effect of what she had stated that she had made the statement consciously knowing what she was stating and also knowing that the effect of her statement that her husband predeceased her father in law, would be against her proprietary interest.
We are therefore of opinion that the statement in question was made by Mst.
Phuljhari Kuer consciously and not at the instance of Basekbi Singh and she must in the circumstances of the case be presumed to know that that statement was against her proprietary interest, for thereby she became the widow of the predeceased son of her father in law.
Then we come to the gift deed executed by Mst.
Phuljhari Kuer in favour of the appellant in 1953.
It is urged that the statements made by her in this gift deed would be admissible in view of section 158 of the .
Section 158 lays down that "whenever any statement, relevant under section 32 or 33, is proved, all matters may be proved either in order to contradict or to corroborate it, or in order to impeach or confirm the credit of the person by whom it was made, which might have been proved if that person had been called as a witness and had denied upon 160 cross examination the truth of the matter suggested.
" It is urged that the statements made in the gift deed would be relevent to contradict the statements she made in 1925.
We shall assume for present purposes that the statements in the gift deed would be admissible in view of section 158.
But two questions arise in that connection.
The first is what is the statement made in the gift deed of 1953 and whether it contradicts the earlier statement and the second is the value to be attached to the statement in the gift deed.
It is remarkable that in the gift deed it is not stated in so many words that her husband had died after her father in law; all that is stated is that her husband died in a state of separation from his pattidars leaving behind Herself and her co widow Mst Sakala and after his death she and the co widow entered into possession and occupation of the property left by him.
Thus there is no categorical statement by her in the gift deed that her husband died after her father in law.
What is urged is that her statement that after her husband 's death she came into possession of all the property left by her husband implies that her husband must have died after her father in law.
Thus there is no direct contradic tion of the statement made in 1925 in the gift deed of 1953.
Secondly as to the value to be attached to what is stated in the gift deed it must be remembered that the statement in 1925 was made when there was no trouble whatsoever in the family and therefore that statement is entitled to great weight.
On the other hand the statement made in the gift deed was apparently made at the time when troubles had begun and in any case a person making a gift of property would say how she had title to the property and such a statement would in the circumstances have little value.
We are therefore in agreement with the High Court that the statement made in 1925 by Mst.
Phuljhari Kuer carries great weight as it was made at a time when there was no trouble.
We have no doubt that Mst.
Phuljhari was conscious of what she was stating in 1925 and that it was done at her own instance and not at the instance of Basekhi and that she must have known that by that statement she became the widow of a predeceased son and would therefore not be entitled to the property of her father in law.
In the circumstances we hold in agreement with the High Court that that statement is admissible and it completely overweighs the circumstances on which the appel lant relies.
In this view of the matter we hold that Basudeo Narain died after the death of his father Ramruch and it was one month or so after his death that Ramruch left the village as he was greatly grieved on the premature death of his son and afterwards disappeared.
As Ramruch has not been heard of for more than seven years after he disappeared from the village, he must be presumed to be dead and the plaintiffs respondents would in the circumstances be entitled to the property of which he was the last male holder.
The appeal therefore must fail except with respect to one item of property to which we shall refer just now.
161 [His lordship then held that in so far as this item of property was concerned the appellant was entitled to half share.] The appeal is hereby dismissed with costs subject to the modification indicated above.
Y.P. Appeal dismissed with modification.

summary/full:
The appellant 's mother executed a gift deed in favour of the appellant claiming that she inherited the property in 1920 on the death of her husband, who had inherited it from her father in law.
The respondents claiming title to the property filed a suit challenging the gift deed on the ground that the father in law of the donor (mother) had survived the husband and therefore she could not have inherited the property under the Hindu Law as then prevailing.
For this purpose the respondents relied upon a statement, that the father in law had survived the husband, made by the donor in a mortgage suit in 1925, to establish her case.
When this statement was made there was no dispute in the faimly.
On the questions whether, (i) this statement in the mortgage suit was admissible in evidence and (ii) the statement made by the donor in the gift deed was admissible to contradict the statement she made in the mortgage suit, HELD : (i) This statement in the mortgage suit, which was against proprietary interest of the mother would be admisible in evidence under section 32(3) of the Evidence Act, as she was dead.
It could not be an admission.
so far the appellant was concerned, butit would certainly be a piece of evidence to be taken into consideration, The admissibility of statements under s.32 (3) of the Evidence Act does not arise unless the party knows the statementto be against his interest.
But the question whether the statement was made consciously with the knowledge that it was against the interest of the person making it would be a question of fact in each case and would depend in most cases on the circumstances in which the statement was made.
[158 F G; 159 A B] Srimati Savitri Debi
Raman Bijoy, L.R. (1949) LXXVI I.A. 255,Tucker vs Oldburry UrbanDistrict Council, L.R. [19121 2 K.B. 317 and Ward vs H. section Pitt , relied on.
The statement in question was made by the mother consciously and not at the instance of any one and she must, in the circumstances of the case, be presumed to know that the statement was against her proprietary interest, for thereby she became the widow of the predeceased son of her father in law.
[159 G] (ii) Assuming that the statements in the gift dead would be admissible under section 158 of the Evidence Act the statement made in the mortgage suit in 1925 carries greater weight as it was made at a time when there was no dispute in the family.
[160 E F]


judgement:
Appeal No. 467 of 1966.
Appeal by special leave from the judgment and decree dated March 4, 1965 of the Punjab High Court (Circuit Bench) at Delhi in Civil Regular Second Appeal No. 125 D of 1964.
168 A.K. Sen, E. C. Agarwal and P. C. Agarwala, for the appellant.
Gauri Dayal for the respondents.
The Judgment of the Court was delivered by Subba Rao, C. J.
This appeal by special leave raises the question of the construction of some of the provisions of the Delhi Rent Control Act, 1958 (Act 59 of 1958), hereinafter called the Act.
Appellant 1st defendant is the owner of premises No. 6022, Gali Mandir Wali, Arya Samaj, Delhi.
Ram Saran Das, res pondent No. 2 herein, was the tenant of the appellant in respect of the said premises and Ram Kishan Das, respondent No. 1 herein, was a sub tenant.
On January 30, 1959 the appellant obtained a decree for ejectment against the 2nd respondent from the court of the Subordinate Judge, Delhi.
To that suit the 1st respondent, the sub tenant, was not made a party.
When that decree was sought to be executed against the 2nd respondent, the 1st respondent obstructed delivery of possession of the premises on the ground that he, as a sub tenant, had become a tenant under the provisions of the Act.
The executing court rejected his claim.
Thereafter, on May 22, 1962, the 1st respondent filed a suit in the Court of the Senior Subordinate Judge, Delhi, against the appellant and respondent 2 praying for a decree for a permanent injunction against the appellant and the 2nd respondent restraining the appellant from taking possession of the said premises.
The appellant inter alia contended that section 50 of the Act was a bar to the main tainability of the suit in a civil court.
It is not necessary to state the other defences, as nothing turns on them in this appeal.
The said plea was rejected in the first instance by the learned Subordinate Judge, on appeal by the learned Senior Subordinate Judge and on Second Appeal by the High Court.
Hence the appeal.
The only question that arises in this appeal is, whether section 50 of the Act is a bar to the maintainability of the suit filed by the 1st respondent against the appellant.
The learned counsel for the appellant contended that section 50 of the Act was a bar to the maintainability of the suit, as section 17 of the Act empowered the Rent Controller to decide a dispute in regard to the question whether a person was a sub tenant or not.
The learned counsel for the 1st respondent contended that section 17(3) of the Act applied only to a case where a dispute arose during the subsistence of tenancy, that in the instant case the tenancy had come to an end before the Act came into force, that the 1st respondent became a tenant under Sub section
(2) of section 18, that a dispute 169 in regard to the question whether he had become a statutory tenant thereunder was not a dispute triable by the Rent Controller and that, therefore section 50 of the Act was not a bar to the maintainability of the suit.
Alternatively, the learned counsel for the 1st respondent contended that the 1st respondent had become a tenant under section 20 of the Delhi and Ajmer Rent Control Act, 1952, that there was no provision in the Act conferring exclusive jurisdiction on the Rent Controller in respect of the said right vested in him before the Act and that, therefore, the suit for a declaration of the said pre existing right was maintainable in the civil court.
The solution to the rival contentions depends on the true construction of the relevant provisions of the Act.
Under section 50 of the Act, no civil court shall entertain any suit in respect of a matter which the Controller is empowered by or under the Act to decide.
If the Controller, in exercise of the power conferred on him under the Act, can decide the dispute in respect of the claim of the 1st respondent to a statutory tenancy, there cannot by any doubt that his suit is not maintainable in a civil court.
section 17(3) of the Act on which reliance is placed for invoking the aid of section 50 reads: "Where in any case mentioned in sub section (2), the landlord contests that the premises were not lawfully sublet, and an application is made to the Collector in this behalf, either by the landlord or by the sub tenant, within two months of the date of the receipt of the notice of subletting by the landlord or the issue of the notice by the tenant or the sub tenant, as the case may be, the Controller shall decide the dispute." Under this sub section, the Controller is empowered to decide a dispute between the landlord and his sub tenant in respect of any case mentioned in sub section
(2) of section 17.
Sub section (2) of section 17 of the Act says : "Where, before the commencement of this Act, any premises have been lawfully sub let either in whole or in part by the tenant, the tenant or the sub tenant to whom the premises have been sub let may, in the prescribed manner, give notice to the landlord of the creation of the subtenancy within six months of the commencement of this Act, and notify the termination of such sub tenancy within one month of such termination." To invoke this sub section three conditions shall be complied with, namely, (i) the premises shall have been lawfully sub let by the tenant, (ii) the sub letting shall have been before the commence Sup.
Cl/66 12 170 ment of the Act, and (iii) such tenant or sub tenant shall have given a notice to the landlord of the creation of the sub tenancy within six months of the commencement of the Act and notified the termination of such sub tenancy within one month of such termination.
The dispute referred to in sub.
section (3) of section 17 is in regard to such sub tenancy.
It is manifest from the provisions of sub section
(2) that the said provision applies only during the period ,of subsistence of the tenancy created before the commencement of the Act.
But, if the tenancy itself ceased to exist before the corn mencement of the Act, the said sub section has no application.
If the tripartite relationship of landlord, tenant and sub tenant had ceased to exist before the commencement of the Act, no question of giving notice prescribed thereunder would arise.
If subs.
(2) does Dot apply to such a case, a dispute raised between them cannot be raised before the Controller under sub section
(3) of section 17 of of the Act.
If that be the construction of sub section
(2) and (3) of section 17 of the Act, section 18(1) thereof would not equally help the appellant.
Under sub section
(1) of section 18 where an order for eviction ill respect of ' any premises is made under section 14 against a tenant but not against a sub tenant referred to in section 17 and a notice of the subtenancy has been given to the landlord, the sub tenant shall, with effect from the date of the order, be deemed to become a tenant holding directly under the landlord in respect of the premises in his occupation on the same terms and conditions on which the tenant would have held from the landlord, if the tenancy had continued.
This section also applies to a case of subsisting tenancy after the Act came into force.
The reference to section 14 presupposes that an eviction order has been made against the tenant after the Act came into force.
The sub tenant mentioned therein is the sub tenant referred to in section 17 and in respect of whose sub tenancy a notice has been given to the landlord, that is to say, a sub tenant of a tenant during the subsistence of ' his tenancy.
In such a case the sub tenant becomes a statutory tenant.
This section cannot have any application to a case where the tenancy ceased to exist before the commencement of the Act.
Sub section (2) of section 18 reads: "Where, before the commencement of this Act, the interest of a tenant in respect of any premises has been determined without determining the interest of any sub tenant to whom the premises either in whole or in part had been lawfully sub let, the sub tenant shall, with effect from the date of the commencement or this Act, be deemed to have become a tenant holding directly under the landlord on the same terms and conditions on which the tenant would have held from the landlord, if the tenancy had continued.
" 171 This sub section applies to a case where the interest of a tenant had been determined before the commencement of the Act, but the interest of the sub tenant was allowed to subsist.
In such a case, the sub tenant shall with effect from the date of the commencement of the Act be deemed to have become, by a statutory fiction, a tenant under the landlord.
This situation could arise before the commencement of the Act either because of a statute, contract or a decree.
Any dispute raised by such a sub tenant does not fall under sub section
(3) of section 17 of the Act, for, as we have said, the said sub section applies only to a case where a dispute arises during the subsistence of the main tenancy after the Act came into force.
If so, as there is no other provision in the Act under which a dispute in respect of such a sub tenancy could be decided by the Controller, section 50 cannot have a bearing on the maintain ability of a suit filed in respect of such a sub tenancy.
If that be the construction of the relevant provisions of the Act, the 1st respondent is not hit by the provisions of section 50 of the Act.
The landlord by obtaining a decree for eviction against the 2nd respondent put an end to the tenancy before the commencement of the Act.
The Sub tenancy of the 1st respondent was not determined by the decree, is lie was neither a party to the suit nor his rights were put in issue therein.
He can, therefore, claim to be a tenant under section 18(2) of the Act.
As section 50 does not apply to him, he can file a Suit in a. civil Court for a declaration of his right thereunder.
The same result will flow if we look at the matter from a different aspect.
Under section 20 of the Delhi and Ajmer Reiit Control Act, 1962, on the eviction of the tenant, the sub tenant would be deemed to have become a tenant of the landlord.
The appellant obtained a decree for eviction against the 2nd respondent on January 30, 1959.
The Act came into force subsequently.
He had therefore acquired a vested right under the Act of 1952.
No provision of the Act has been pointed Out to us which took way that right.
There was also no provision under the Act empowering the Controler to decide a dispute raised in regard to the said right vested in the 1st respondent.
If so, it follows that section 50 of the Act cannot be a bar to the suit filed by the 1st respondent for a declaration of his said right.
The view expressed by us finds support in the unreported judgment of Mehar Singh, J. of the Punjab High Court, Circuit BeBench at Delhi in Smt.
Viran Wati Devi and another vs Jaswant Rai and mother(1).
There, the learned Judge, after considering the provisions of sub sections
(2) and (3) of section 17 of the Act, observed "It ippeai s to me obvious on a plain reading of those two sub sections of section 17 that the procedure provided (1)Civil Revision No. 558 D of 1961 (Decided oil 15 2 t962).
172 by those sub sections is available to a tenant and his sub tenant, during the subsistence of the tenancy and the sub tenancy, but where the tenancy has ceased to exist or the sub tenancy has ceased to exist those sub sections are apparently not attracted and resort cannot be had to their provisions." The learned counsel for the appellant relied upon a decision of this Court in Mohd. Mahmood vs Tikam Das(1) in support of his contention.
That case arose under the provisions of the Madhya Pradesh Accommodation Control Act, 1961.
The provisions of that Act, though not in pari materia with the provisions of the Act now in question, are similar to those of the Act in many respects.
There, the landlord terminated the tenancy before the said Act came into force, filed a suit for ejectment and obtained a decree for eviction on June 23, 1962, after the said Act came into force.
The said Act came into force on December 40, 1961.
On June 25 and 26, 1962, the appellants served notices on the landlord under section 15(2) of the said Act claiming that as the tenant had sub let the premises to them before the Act had come into force with the consent of the landlord, they had become his direct tenants under section 16(2) of the said Act and on June 28, 1962, the appellants filed a suit against both the landlord and the tenant in a civil court praying for a declaration that they had, in the circumstances, become direct tenants of the premises under the landlord.
On June 30, 1962, the landlord sent a reply to the notices sent by the appellants in which he denied that the sub letting by the tenant had been with his consent or was lawful.
Here it may be mentioned that section 15(2) of that Act corresponds to section 17(2) of the Act and sub section
(3) of section 15 of that Act corresponds to sub section
(3) of section 17 of the Act.
Section 45(1) of that Act, which bars a suit in a civil court is analogous to section 50(1) of the Act.
If the dispute was one that could be decided by the Rent Controlling Authority under section 15(3) of that Act, the suit in respect of the dispute would not be maintainable by reason of section 45(1) of the said Act.
Under sub section
(3) of section 15 of that Act, a sub tenant could make an application to the Rent Controlling Authority for deciding a dispute within two months of the date of issue of notice by him.
Instead of filing such an application, the tenants filed a suit in the civil court within the said time prescribed.
On those facts, this Court held by reason of section 45(1) of that Act, the suit was not maintainable.
But in so holding this Court left open the question whether such a suit could be filed in a civil court after the period of limitation prescribed under section 15(3) of that Act had expired.
This Court observed: "Another question mooted was that the two months mentioned in sub section
(3) only provided a special period of (1) ; ,131.
173 limitation for the application mentioned in it and the provision of the period did not mean that a Rent Controlling Authority had power to decide the matter only if an application had been made within that period, so that if no such application had been made, after the expiry of the period a civil court would have jurisdiction to decide a dispute as to whether a sub letting was lawful.
The point is that the real effect of section 15(3) was to deprive the civil court of the jurisdiction to decide that dispute for all time.
We do not feel called upon to decide these questions.
They do not arise in the present case and it was not said that these questions affect the question of the competence of the civil court to try the present suit.
The suit was filed within the period of two months during which admittedly the Rent Controlling Authorities had jurisdiction to decide the dispute on which it was based.
Whatever may be the jurisdiction of a civil court on other facts, in the present case it clearly had no jurisdiction to entertain the appellants ' suit.
" The decision of this Court, therefore, has a limited scope.
It has only held that during the prescribed period under section 15(3) of the said Act, no suit would lie in a civil court.
In the present case, the suit was filed in the civil court beyond the period prescribed.
In the result, the appeal fails and is dismissed with costs.
V.P.S. Appeal dismissed.

summary/full:
The landlord of the premises in dispute, obtained a decree for ejectment against his tenant before the commencement of the Delhi Rent Control Act, 1958.
The sub tenant was not a party to that suit and the sub tenancy was not determined by that decree.
In 1962, the subtenant filed a suit against the landlord claiming to have become a statutory tenant of the premises.
The landlord contended that under section 50 of the Act, no civil court shall entertain any suit in respect of a matter which the Controller is empowered by or under the Act to decide, and that as section 17(3) of the Act empowered the Controller to decide a dispute in regard to the question whether a person was a sub tenant or not, the ,suit was not maintainable.
HELD : Section 50 was not a bar to the suit.
The provision of the Act applicable to a case where the interest of a tenant had been determined before the commencement of the Act, but the interest of the sub tenant was allowed to subsist is section 18(2).
Under this sub section the sub tenant shall, with effect from the date of the commencement of the Act, be deemed to have become, by a statutory fiction, a tenant under the landlord.
There is no provision in the Act under which a dispute in respect of such a sub tenancy could be decided by the Controller.
Any dispute raised by such a sub tenant does not fall under section 17(3), for, section 17(3) applies only to a case where a dispute arises during the subsistence of the main tenancy after the Act came into force, and where the dispute was raised within two months of the issue of the notice of sub letting, by the tenant or sub tenant.
[171 A C] Mohd. Mamood vs Tikam Das, ; , explained.
Moreover, under section 20 of the Delhi and Ajmer Rent Control Act, 1952, on the eviction of the tenant, the sub tenant would be deemed to have become a tenant of the landlord.
There is no provision in the Delhi Rent Control Act, 1958, which took away that vested right or empowered the Controller to decide a dispute raised in regard to it.
Section 50, therefore could not have any bearing on the maintainability of the suit.
[171 E G]