judgement:
Civil Appeal No. 2969 of 1984.
From the Judgment and Order dated 29.5.1984 of the Punjab 241 and Haryana High Court in Civil Revision No. 1934 of 1982.
Harbans Lal and Balmokand Goyal for the Appellant.
V.C. Mahajan and K.R. Nagaraja for the Respondents.
The Judgment of the Court was delivered by: VENKATACHALIAH, J.
This appeal, by special Leave, by the tenant arises out of the proceedings for eviction instituted against him under the East Punjab Rent Restriction Act 1949 and is preferred against the judgment, dated, 29.5.1984 in Civil Revision No. 1934 of 1982 of the Punjab and Haryana High Court, reversing the judgment, dated, 30.4.1982 made by the Appellate Authority, Kapurthala, in Rent Appeal No. 130 and restoring that of the Rent Controller, dated, 17.12.1978 in rent case No. 47 of 1977, granting possession to the Respondent landlords.
Appellant was a tenant of the premises concerned in the proceedings on a monthly rent of Rs.3 having been inducted into possession on 9.12.1965 by the then owner Smt.
Manohar Kaur.
The premises in the occupation of the appellant consist of a portion of the ground floor of the building.
On 15.12.1976, the said Manohar Kaur sold the entire property in favour of respondents.
The respondents are four brothers.
Prior to the purchase, they were occupying, as tenants, other portions of the same building both in the first floor and the second floor.
They were in occupation of three rooms in the first floor and one in the second.
On 27.9.1977, respondents filed a petition for eviction of the appellant on the ground of their own bonafide requirement of the premises.
They alleged that the portion in their occupation was insufficient for their needs and that they required additional accommodation.
They said that they were in all 10 brothers who, alongwith their families, were living together with their father.
Appellant contested the claim, urging that the first respondent one of the brothers, was in occupation of other rented premises in the same town at a place called Mohalla Malka na; that the respondents ' father was himself in occupation of a separate rented premises; that the accommodation already available to the respondents was 242 more than sufficient for their requirements and that, accordingly, their projected need was fictitious and malafide.
Appellant also said that the proceedings were brought in collusion with the previous owner.
On an appreciation of the evidence, the Rent Controller upheld the claim of the landlords and made an order granting possession.
The Appellate Authority (District Judge) however, allowed appellants ' appeal and set aside the order of eviction.
The High Court in revision under Section 15(5) of the Act reversed the appellate judgment and restored that of the court of first instance.
The aggrieved tenant has come up by special leave.
In support of the appeal, Shri Harbans Lal, learned senior advocate, urged that the order of the High Court suffers from, and stands vitiated, by, two serious errors: The first, according to the learned counsel, is that the High Court, in exercise of its revisional jurisdiction, was precluded from reopening findings of facts recorded by the Appellate Authority and substituting fresh findings of its own on a reappraisal of the evidence even if the fresh findings so recorded could be said to be amongst those possible on the evidence.
Learned Counsel placed reliance on Mattulal vs Radhe Lal, ; and Phiroze Bamanji Desai vs Chandrakant M. Patel & Ors., ; The second is that the findings as to the bonafides, or the lack of it, of the alleged need for the additional accommodation recorded by the Appellate Authority were sound, proper and supportable on the evidence on record and the High Court in exercise of its revisional jurisdiction could not have reappraised the evidence afresh and that the findings so substituted by the High Court are wholly erroneous.
V.C. Mahajan, learned senior advocate for the respondent landlords, however, sought to support the order of the High Court.
Upon a consideration of the matter, we are of the view that both the contentions urged in support of the appeal are in substantial.
It is, no doubt, true that the question whether the requirement of the landlords is bonafide or not is essentially one of fact, notwithstanding the circumstance that a finding of fact is a secondary and inferential fact drawn from other primary or perceptive ones.
All conclusions drawn from primary facts are not necessarily, questions of law.
They can be, and quite often are, pure questions of fact.
The question as to bonafide requirement is one such.
243 Statutes enacted to afford protection to tenants from eviction on the basis of contractual rights of the parties make the resumption of possession by the land lord subject to the satisfaction of certain statutory conditions.
One of them is the bonafide requirement of the land lord, variously described in the statutes as "bona fide requirement", "reasonable requirement", "bona fide and reasonable requirement" or, as in the case of the present statute, merely referred to as "landlord requires for his own use".
But the essential idea basic to all such cases is that the need of the landlord should be genuine and honest, conceived in good faith; and that, further, the court must also consider it reasonable to gratify that need.
Landlord 's desire for possession however honest it might otherwise be, has inevitably a subjective element in it and that, that desire, to become a "requirement" in law must have the objective element of a "need".
It must also be such that the court considers it reasonable and, therefore, eligible to be gratified.
In doing so, that court must take all relevant circumstances into consideration so that the protection afforded by law to the tenant is not rendered merely illusory or whittled down.
On the first contention that the revisional powers do not extend to interference with and upsetting of findings of fact, it needs to be observed that, subject to the well known limitations inherent in all revisional jurisdictions, the matter essentially turns on the language of the statute investing the jurisdiction.
The decisions relied upon by Shri Harbans Lal, deal, in the first case, with the limitations on the scope of interference with findings of fact in second appeals and in the second, with the limitation on the revisional powers where the words in the statute limit it to the examination whether or not the order under revision is "according to law.
" The scope of the revisional powers of the High Court, where the High Court is required to be satisfied that the decision is "according to law" is considered by Beaument C.J. in Bell & Co. Ltd. vs Waman Hemraj, AIR 1938 Bombay 223 a case referred to with approval by this Court in Hari Shankar vs Girdhari Lal Chowdhury, AIR 1963 SC 698.
But here, Section 15(5) of the Act enables the High Court to satisfy itself as to the "legality and propriety" of the order under revision, which is, quite obviously, a much wider jurisdiction.
That jurisdiction enables the court of revision, in appropriate cases, to examine the correctness of the findings of facts also, though the revisional court is not "a second court of first appeal" (See Dattonpant Gopalvarao Devakate vs Vithalrao Marutirao).
244 Referring to the nature and scope of the revisional jurisdiction and the limitations inherent in the concept of a `Revision ' this Court in M/s. Ranalakshmi Dyeing Works & Ors.
vs Rangaswamy Chettier, (at 167) observed: ". . 2.
"Appeal" and "revision" are expressions of common usage in Indian statutes and the distinction between "appellate jurisdiction" and "revisional jurisdiction" is well known though not well defined.
Ordinarily, appellate jurisdiction involves a rehearing, as it were, on law as well as fact and is invoked by an aggrieved person.
Such jurisdiction may, however, be limited in some way as, for instance has been done in the case of second appeals under the Code of Civil Procedure and under some Rent Acts in some States.
Ordinarily, again, revisional jurisdiction is analogous to a power of superintendence and may sometimes be exercised even without its being invoked by a party.
The extent of revisional jurisdiction is defined by the statute conferring such jurisdiction . . . .
Revisional jurisdiction as ordinarily understood with reference to our statutes is always included in appellate jurisdiction but not vice versa.
These are general observations.
The question of the extent of appellate or revisional jurisdiction has to be considered in each case with reference to the language employed by the statute . " The criticism of Sri Harbans Lal that it was impermissible for the High Court in its revisional jurisdiction to interfere with the findings of fact recorded by the appellate authority, however erroneous they be, is not, having regard to the language in which the revisional power is couched, tenable.
In an appropriate case, the High Court can reappraise the evidence if the findings of the appellate court are found to be infirm in law.
Now to the second contention.
The High Court was of the view that certain findings recorded by the Appellate Authority on the question of the bonafides of the requirement of the landlords were based on material which was not quite relevant.
Secondly, the High Court took into account certain subsequent events brought on record.
In regard to the first aspect, the High Court observed: ".
According to the learned Appellate Authority there was no evidence on record to prove that the landlords were 245 ten brothers since their father had not come in the witnessbox to depose in this regard.
This approach of the learned Appellate Authority is without wrong and illegal.
There was nothing to disbelieve Ishwar Chander when he says that they are ten brothers.
No question was put to him in the cross examination to challenge the said statement of his . " The High Court noticed that so far as the premises which were said to be in the occupation of the Ishwar Chander (Respondent No. 1) were concerned, the owner of those premises was seeking resumption of possession.
Further, in respect of the accommodation in the hands of the farther, there were already proceedings for eviction against him binding decision in the High Court.
In regard to the subsequent events which the High Court took notice of it said: ". .
Thus, what has to be seen is whether the accommodation in their occupation is sufficient for their requirements or not.
Of course, out of the four landlords, one is married and the others were unmarried when the ejectment application was filed in the year 1977.
However, about seven years have passed since then.
Mean while, Surinder Kumar landlord has also been married and he has got one son aged 2 years, whereas Subhash Chand has also been recently married in March, 1984, as per the affidavit of Hukam Chand, father of the landlords, dated 27th May, 1984.
Thus, there was nothing on the record to show that the present accommodation in occupation of the landlords was sufficient to meet their requirements . ." Courts can take a `cautious cognizance of the subsequent events in order to mould the relief.
The High Court did that. ' No fault could be found with that.
CMP No. 33347 is filed by the appellant, seeking to bring certain subsequent events on record.
The alleged subsequent event is that pursuant to an agreement for purchase of another residential building entered into by the first respondent and his wife, a sale deed had subsequently come to be executed in favour of first respondent 's wife.
The contention is that having regard to this subsequent acquisition, the present claim for additional accommodation does not survive.
246 We are afraid this circumstance, even if true, will not tilt the balance in favour of the appellant.
Even if the need of the other three brothers who are co owners is taken into account, the order of eviction is supportable on the basis of ther need.
CMP is, therefore, of no practical assistance to the appellant.
In the result, we find no merit in this appeal which is accordingly dismissed, but without an order as to costs.
R.S.S. Appeal dismissed.

summary/full:
The appellant and the respondents were tenants of separate portions of the premises which was later sold by the landlord to the respondents, who were four brothers.
The respondents filed a petition for eviction of the appellant on the ground of bonafide requirement.
They contended that they were in all 10 brothers, who, alongwith their families, were living together with their father, and the accommodation in their occupation was insufficient for their needs.
The Rent Controller upheld the claim of the respondents.
The Appellate Authority (District Judge), however, allowed the appellant 's appeal.
The High Court, in revision under section 15(5), reversed the appellate judgment and restored that of the Court of first instance.
Before this Court the appellant contended: (1) That the High Court in exercise of its revisional jurisdiction was precluded from re opening the findings of fact recorded by the appellate authority; and (2) that the findings of the High Court on reappraisal of evidence were wholly erroneous.
Dismissing the appeal, it was, ^ HELD: (1) It was, no doubt, true that the question whether the requirement of the landlord was bonafide or not was essentially one of 240 fact, notwithstanding the circumstance that a finding of fact in that behalf was a secondary and inferential fact drawn from other primary or perceptive ones.
All conclusions drawn from primary facts were not necessarily, questions of law.
They could be, and quite often were, pure questions of fact.
The question as to bonafide requirement was one such.
[242G H] (2) The landlord 's desire for possession, however honest it might otherwise be, had inevitably a subjective element in it, and that "desire" to become a "requirement" in law must have the objective element of a "need".
[243C] (3) Statute had been enacted to afford protection to tenants from eviction.
In considering the reasonable requirement of the landlord the court must take all relevant circumstances into consideration so that the protection afforded by law to the tenant was not rendered merely illusory or whittled down.
[243A, C D] (4) Subject to the well known limitations of all revisional jurisdictions, the scope of revisional power essentially turned on the language of the statute investing the revisional jurisdiction.
[243E] (5) Section 15(5) of the Act enabled the High Court to satisfy itself as to the "legality and propriety" of the order under revision, which was quite obviously, a much wider jurisdiction in the exercise of which, an appropriate case, the High Court could reappraise the evidence if the finding of the appellate court was found to be infirm in law.
[243G; 244F] (6) Courts could take a 'cautious cognizance ' of the subsequent events in order to mould the relief.
[245F G] Mattulal vs Radhe Lal, ; ; Phiroze Bamanji Desai vs Chandrakant M. Patel, ; ; Bell & Co. Ltd. vs Waman Hemraj, AIR 1938 Bom. 223; Hari Shankar vs Girdhari Lal Chowdhury, (AIR ; Dattonpant Gopalvarao Devakata vs Vithalrao Marutirao, ; and M/s Ranalakshmi Dyeing & Others vs Rangaswamy, referred to.


judgement:
Civil Appeal No. 80 of 1981.
From the Judgment and Order dated 10.7.80 of the Allahabad High court in Civil Miscellaneous W.P.No.
5661 of 1979.
Manoj Swarup for the Appellant.
S.K. Bagga for the Respondent.
The Judgment of the Court was delivered by VENKATACHALIAH, J.
This appeal, by special leave, by the tenant arises out of and is directed against the Judgment dated 10.7.1980 of the Allahabad High Court in Civil Misc.
Writ Petition No. 5661 of 1979 rejecting the appellant 's challenge to of the decrees of ejectment 249 granted in favour of the third respondent landlord on the ground that there was a denial of the title of the landlord within the meaning, and for purposes, of Section 3(1)(f) of the Uttar Pradesh (Temporary) Control of Rent and Eviction Act, 1947 (Act III of 1947).
The appeal raises a short question whether, in the circumstances of the case, there was a disclaimer on the part of the appellant of the landlord 's title, so as to incur forfeiture of the tenancy.
The necessary and material facts may briefly be stated: The premises in question, i.e. No. 7/3, Shambhoo Barracks, Allahabad, originally belonged to a certain Shambhoo Lal Jain.
Shamboo Lal died in the year 1943 leaving behind him his widow Rajul Devi; his two sons, Dayachand and Dhoomchand; and a daughter Mainavati.
Dayachand, it is stated, went away in adoption to the family of one Banvarilal, a brother of Shamboo Lal.
Pursuant to and in execution of a money decree obtained by the said Mainavati against her brother Dhoomchand, she brought the said premises for sale and claimed to have purchased the same at a Court sale on 21.5.1956.
Mainavati, thereafter, conveyed the property by sale in favour of a certain Gopinath Agrawal.
Appellant who was in occupation of the premises as a tenant even prior to the sale attorned the tenancy in favour of the purchaser Gopinath and came to pay the rents to Gopinath accordingly.
Gopinath, in turn, sold the property in favour of Chhaya Gupta, the third respondent herein.
Both the vendor Gopinath and the purchaser Chhaya Gupta issued notices to the appellant to attorn the tenancy in favour of the purchaser, Chhaya Gupta.
But appellant tenant declined to do so and assailed not only the derivative title of the third respondent to the property but also the validity of the sale in favour of Gopinath himself.
The provocation for the denial on the part of the appellant of the third respondent 's title was this: It would appear that in a separate litigation which culminated in the judgment dated 6.7.1971 of the Allahabad High Court in First Appeal No. 260 of 1968 between the said Mainavati on the one hand and a certain Chamanlal on the other, it was held that what Mainavati had acquired under the execution sale of 24.4.1956 was not the totality of all rights and interests in the property, but was only such right, title and interest as the judgment 250 debtor, i.e. Dhoomchand, had and that the Court sale did not convey to Mainavati the interest of Rajul Devi, the widow of Shamboolal Jain.
It was also held that Chamanlal who obtained a decree against both Dhoomchand and the estate of Shamboolal would, notwithstanding the sale in favour of Mainavati, be entitled to bring the residuary interests in the same property for sale in his execution.
Appellant sought to raise this defect in Mainavati 's title.
But the point to note, however, is that the appellant had attorned the tenancy in favour of Gopinath Agarwal, paid rents through out the period during which Gopinath 's interest subsisted.
The question was whether despite this attornment, the appellant could assail Gopinath 's title.
Appellant sought to assert that the sale in favour of Gopinath was void and conveyed nothing.
This act, on the part of the appellant, of denial and disclaimer of the title was the foundation of the proceedings in ejectment.
The High Court, dismissing the appellant 's writ petition, has upheld the order of ejectment made by the Courts below.
We have heard Shri K.B. Asthana, learned Senior Counsel for the appellant and Shri B.D. Aggarwal, learned Senior Counsel for the contesting third respondent.
The point that Shri Asthana sought to put across was that the High Court was in error in its view that the stand taken by the appellant in his reply dated 3.4.1972 amounted in law to a denial of title of the land lord and that, at all events, the view of the High Court on the scope of a tenant 's estoppel was clearly untenable.
Learned counsel submitted that the estoppel of a tenant does not go so far as to bar him from questioning the derivative title of an assignee of the reversion or from contending, as here, that, in addition to the particular person claiming to be the successor or assignee of the reversion, there were also others who were co owners of the reversion.
On the first aspect, learned counsel submitted that where a tenant requires from the person, claiming to be assignee or successor in interest of the reversion, proof of the vestitive facts on which the claim rests or where the tenant alleges that the reversion vested not exclusively in the person so claiming, but in a body of co owners, there was no disclaimer of the position of the tenant as tenant.
On the second aspect, learned counsel submitted that estoppel of a tenant is in respect of, and confined to, the title as at the time the tenant was inducted or let into possession, that appellant could yet show that the attornment made in favour of Gopinath Agarwal, from 251 whom the third respondent claims, was in ignorance of the full facts and the result of fraud and mis representation, and that under these circumstances, appellant 's acknowledgment of Gopinath Agarwal as the landlord, would not debar him from contending that Gopinath himself was not the full owner, but had acquired only an undivided share and interest in the property.
The law as to estoppel of a tenant under Section 116 of the Evidence Act is a recognition, and statutory assimilation, of the equitable principles underlying estoppel in relation to tenants.
The section is not exhaustive of the law of estoppel.
The section, inter alia, predicates that no tenant of immovable property shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, title to such property.
Referring to the reason underlying this branch of the doctrine of estoppel Marton B said: (Cuthberton vs Irwing, ".
This state of the law in reality tends to maintain right and justice and the enforcement of contracts which men enter into with each other for so long as a lessee enjoys every thing which his lease purports to grant how does it concern him that the title of the lessor. is?" Shri Asthana may be right in his submission that a tenant who, without disclaiming his own position as tenant, however, seeks proof of title from an alleged assignee of the reversion cannot be held to have denied the landlord 's title.
It may also be true that the estoppel of a tenant is primarily in relation to his landlord who had let him into possession and that, accordingly, such tenant is not precluded from questioning the alleged derivative title of a person claiming to be the successor to, or assignee of, the reversion, for want of proof of the vestitive facts on which the claim for attornment is based.
The rule of estoppel does not also preclude a tenant from contending that the landlord 's title has since terminated by transfer or otherise or has been lost or defeated by title peramount.
In English case law there was some authority for the proposition that the tenant was only estopped from denying his landlord 's title only if at the time he took the lease from the landlord he was not already in possession of the land.
In Kumar Krishna Prasad Lal Singha Deo vs Baraboni Coal Concern Ltd. and Ors., the judicial committee noticed this contention thus: 252 "The defendant company contended before the High Court that the section only applies where it is shown that the landlord put the tenant into possession of the property, and that when a person already in possession of land becomes tenant to another there is no estoppel against his denying his lessor 's title. " However, it was held: "There is in English case law some authority for the view that a tenant is only estopped from denying his landlord 's title if at the time when he took his lease he was not already in possession of the land.
But in Section 116, the Indian Legislature has formulated no such condition.
The words 'at the beginning of the tenancy ' give no ground for it.
When a demise of land is made and acted on, when the tenant proceeds to occupy and enjoy under the grant, gets the shelter of the grantor 's title and the benefit of his covenants, it is difficult to see why 'during the continuance of the tenancy ' he should be free of this form of estoppel. 'Tenant who has occupied but not entered ' is a difficult notion to thrust into Section 116 and quite impossible to find therein.
In the present case the plea of the landlord is that the general principles of estoppel preclude the tenant from denying the title of the person to whom he has attorned.
In Kumar Krishna Prasad 's case their Lordships observed: ".
The principle does not apply to disentitle a tenant to dispute the derivative title of one who claims to have since become entitled to the reversions, though in such cases there may be other grounds of estoppel e.g., by attornment, acceptance of rent etc. ." "The section does not deal or profess to deal with all kinds of estoppel or occasions of estoppel which may arise between landlord and tenant . . .
Whether during the currency of a term the tenant by attornment to A who claims to have the reversion, or the landlord by acceptance of rent from B who claims to be entitled to the term is estopped from disputing the claim which he has once admitted are important questions, but they are instances of cases which are outside Section 116 altogether . " (emphasis supplied) 253 In regard to the effect of attornment Spencer Bower on Estoppel says: "192.
Where a tenant, with full knowledge of the facts, either expressly in writing, or impliedly by acts, such as the payment of rent, attorns tenant to a person other than his original landlord or one who is claiming the estate or interest of such original landlord by assignment, succession, or otherwise, he is ordinarily estopped from questioning the title of the person to whom he has so attorned.
But, here too, it is open to the party sought to be estopped to explain away the attornment, and so escape the estoppel to which is would otherwise be subject, by proof that, when he so attorned, he was labouring under mistake or ignorance as to material facts affecting the title of the person to whom he attorned, particularly if such error or ignorance was due to the fraud of that person." (emphasis supplied) (Estoppel by Representation by Spencer Bower & Turner III Edn.) The concurrent findings of facts in this case it is indeed a matter of admission of the appellant that ever since the purchase by Gopinath Agarwal the appellant attorned the tenancy in his favour and paid rent to him.
Appellant did not establish that there was misrepresentation on the part of Gopinath or mistake on the part of the appellant misleading appellant into this attornment.
High Court observes: ".
In the courts below, an attempt was made to get over the effect of the defendant having attorned to Gopinath Agrawal by trying to demonstrate that the attornment was as the result of fruad and mis representation practised by Gopinath Agrawal.
Both the Courts below have rejected this plea, which is undisputably purely one of fact.
Counsel for the petitioner made no attempt to show that the said finding of the courts below is wrong.
Now, Section 3(1)(f) which refers to one of the grounds for eviction under the Act envisages: "(f) that the tenant has renounced his character as such or denied the title of the landlord and the latter has not 254 waived his right or condoned the conduct of the tenant;" There can be a denial of the title of his landlord without the tenant renouncing his character as such where, for instance, he sets up a plea of Jus tertii.
The stance of the appellant against the third respondent 's title was not on the ground of any infirmity or defect in the flow of title from Gopinath, but on the ground that the latter 's vendor Mainavati herself had no title.
The derivative title of the third respondent is not denied on any ground other than the one that the vendor, Gopinath to whom appellant had attorned had himself no title, the implication of which is that if appellant could not have denied Gopinath 's title by virtue of the inhibitions of the attornment, he could not question third respondent 's title either.
Appellant did himself no service by this stand.
It must, accordingly, be held on both the aspects contended for by Shri Asthana that what appellant did, indeed, amounted to a denial of title and that appellant was precluded from doing so on the general principles of estoppel between landlord and tenant.
The principle, in its basic foundations.
means no more than that under certain cricumstances law considers it unjust to allow a person to approbate and reprobate.
Having regard to the circumstances of this case and the findings of fact recorded by the High Court it appears to us to be a clear case which attracted the grounds under Section 3(1) of the Uttar Pradesh (Temporary) Control of Rent and Eviction Act, 1947 (Act 3 of 1947).
The view taken by the High Court does not call for interference.
We accordingly find no merit in this appeal which is dismissed but without an order as to costs.
R.S.S. Appeal dismissed.

dataset_name: IN-Abs

summary/full:
Mainavati, who had purchased the premises in question at a court sale, conveyed the same by sale in favour of Gopinath.
The appellant who was in occupation attorned his tenancy in favour of Gopinath.
Gopinath, in turn, sold the property in favour of Chhaya Gupta, the third respondent.
The appellant tenant on being asked to attorn the tenancy in favour of Chhaya Gupta, declined to do so and assailed not only the derivative title of the third respondent to the property but also the validity of the sale in favour of Gopinath himself on the ground that Mainavati had not acquired the totality of all rights and interests in the property and, as such, her title was defective.
This act of disclaimer of the title of Gopinath to whom the appellant had attorned was the foundation of proceedings in ejectment.
The High Court, dismissing the appellant 's writ petition, upheld the order of ejectment made by the Courts below.
Before this Court it was contended by the appellant: (1) that the High Court was in error in its view that the stand taken by the appellant amounted in law to a denial of title of the landlord, and (2) that the view of the High Court on the scope of a tenant 's estoppel was erroneous.
Dismissing the appeal, it was ^ HELD: (1) The law as to the estoppel of a tenant under Section 116 of the Evidence Act was a recognition, and statutory assimilation, of the equitable principles underlying the doctrine of estoppel in rela 248 tion to tenants.
The Section was not exhaustive of the law of estoppel.
The section inter alia, predicated that no tenant of immovable property during the continuance of the tenancy, would be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, title to such property.
[251B C] (2) There could be a denial of the title of his landlord without the tenant renouncing his own character as a tenant, where, for instance, he had set up a plea of Jus tertii.
[254B] (3) The derivative title of the third respondent was not denied on any other ground than the one that the vendor, Gopinath to whom appellant had attorned had himself no title, the implication of which was that if appellant could not have denied Gopinath 's title by virtue of the inhibitions of the attornment, he could not question third respondent 's title either.
What appellant did, indeed, amounted to a denial of title which appellant was precluded from doing on the general principles of estoppel between landlord and tenant.
[254C D] (4) Having regard to the findings of fact recorded by the High Court, it appeared to be a clear case which attracted the grounds for eviction under section 3 (1) of the Uttar Pradesh (Temporary) Control of Rent and Eviction Act, 1947.
[254E F] Kumar Krishna Prasad Lal Singha Das vs Baraboni Coal Concern Ltd., , referred to.


judgement:
AppeAl No. 19 of 1956.
Appeal from the judgment and decree dated July 21, 1954, of ' the Patna High Court in Letters Patent Appeal No. 24 of 1951, arising out of the judgment and decree dated May 15, 1951, of the said High Court in Matrimonial Suit No. 2 of 1950.
M. C. Setalvad, Attorney General for India, N. C. Chatterjee and P. K. Chatterjee, for the appellant.
Both the Courts below have failed to draw the proper inference of the commission of adultery, which should legitimately have been drawn from the facts proved.
Both the Single Judge and the Appeal Court failed to take into consideration some pieces of evidence and certain other pieces of evidence which were equally important had been misread and misconstrued and as a matter of legitimate and proper inference the lower courts should not have arrived at any other 179 1412 conclusion but that the wife was guilty of adultery and in such case the interference with the finding of facts below by the Supreme Court will be called for.
State of Madras vs A. Vaidanatha Iyer, A. I. R. 1958 section C. 61 and Stephen Seneviratne vs The King, A. I. R. 1936 P. C. 289.
N.C. Chatterjee continued.
The judgment of the High Court suffers from certain serious infirmities and this Court should not act on the rigid principle that finding of fact should not be interfered with in the final court of appeal.
Sir William Scott 's dictum in Loveden vs Loveden, ; , as to " the guarded discretion of a reasonable and just man" does not mean there should be satisfactory evidence of the commission of a matrimonial offence.
Lord MacDermott has pointed out in Preston Jones vs Preston Jones, L. R. , that if a judge is satisfied beyond reasonable doubt as to the commission of the matrimonial offence relied on by the petitioner as ground for divorce, he must surely be "satisfied" within the meaning of the enactment, and no less so in cases of adultery where the circumstances are such as to involve the paternity of a child.
To succeed on an issue of adultery it is not necessary to prove the direct fact of, or even an act of adultery in time and place ; for if it were so, in many few cases would that proof be attainable.
It has been pointed out in a number of cases that rarely the parties are surprised in a direct act of adultery and such evidence will have to be disbelieved.
Rydon on Divorce, 6th Edn., P. 115; Douglas vs Douglas, In nearly every case the fact of adultery is inferred from circumstances which lead to it by fair inference as a necessary conclusion.
Unless it is so held there will absolutely be no protection to marital rights.
Allen vs Allen, [1894] p.248, approving Loveden vs Loveden.
Counsel then cited Davis vs Davis, In that case Bucknill, L. J., and Somervell, L. J., held that when husband petitions for divorce on the ground of wife 's cruelty, it is 1413 unnecessary to introduce any question of the standard of proof required of a criminal charge.
Denning, L. J., emphasised that a suit for divorce is a civil and not a criminal proceeding.
The same standard of proof as that required in criminal cases is not needed.
The stringency of proof required in a criminal court is not necessarily called for in divorce suit.
Lord Merriman 's dictum quoting Churchman vs Churchman, , that the same strict proof is required in the case of matrimonial offence as is required in connection with criminal offence has been too widely expressed and should be read in the light of later judgments.
Recent judgment of the Court of Appeal (Bucknill, L. T., and Denning, L. J.,) lays down the correct law in Gower vs Gower, , that the correct approach has been laid down by Denning, L. J., who observed that the court should not be irrevocably committed to the view that a charge of adultery must, be regarded a criminal charge, to be proved beyond all reasonable doubt.
All that the statute requires is that the court must be satisfied on the evidence that the case of the petitioner has been proved and it is submitted that Denning, L. J., has enunciated the correct principle and the statute lays down a standard and puts adultery on the same footing as cruelty, desertion or unsoundness of mind.
N. C. Chatterjee cited also Mordaunt vs Moncrieffe, section P. Varma, for the respondent.
The burden of proof is on the person alleging adultery and there is always a presumption of innocence.
In any event on a petition for divorce some strict proof is required of adultery as is required in a criminal case before a person is found guilty.
Ginesi vs Ginesi, Applying the dictum of Lord Merriman in Churchman vs Churchman, [19451 P. 44, the trial court was not satisfied of the guilt beyond all reasonable doubt.
It is for the trial judge to decide an issue of fact ; unless he has misdirected himself his finding should not be disturbed.
R. Patnaik, for co respondent No. 1.
Submitted that 1414 the evidence in the case falls far short of the standard of proof required.
March 10.
Tile Judgment of the Court was delivered by KAPUR J. This is an appeal with a certificate under section 56 of the Divorce Act (IV of 1869) (hereinafter called the Act) against a judgment and decree dated July 21, 1954, of the High Court of Patna dismissing the husband 's suit.
The husband who is the appellant sued his wife who is respondent No. I for dissolution of marriage on the ground of her adultery with two co respondents now respondents Nos. 2 and 3.
The suit was tried in the High Court by Shearer J., who dismissed the suit and this decree was on appeal confirmed by the Appeal Court.
The question as to the legality of the certificate granted was raised but in the view that we have taken it is not necessary to decide this question.
The husband was married to the wife at Kharagpur on February 3, 1,943, and there is no issue of the marriage.
The parties thereafter resided at "Rose Villa" at Samastipur and respondent No. 2 was residing with his mother in an adjoining house called " Sunny Nook".
The husband alleged various acts of adultery between the wife and the other two respondents.
As regards allegations of ' adultery of the wife with respondent No. 3, the High Court has found against the husband and these findings have not been challenged before us.
The allegations of adultery between the wife and respondent No. 2 were also held not proved.
In appeal before us the husband has confined his case to the acts of adultery alleged to have been committed at the Central Hotel, Patna where the wife and respondent No. 2 are alleged to have resided together between July 25, 1950 and July 28, 1950, under the assumed names of Mr. and Mrs. Charles Chaplin.
The wife pleaded that she came to Patna solely with the object of having her tooth extracted and returned to Samastipur the same day and that she had to come alone as in spite of her request the husband refused to accompany her.
1415 Respondent No. 2 pleaded that he came to Patna with his mother " in connection with seeking employment under the Superintendent Of Police, Anti Smuggling Department, also in connection with mother 's tooth trouble and for house hold shopping ".
He also pleaded that he stayed with his mother in the same room under his own name and not under an assumed name.
The trial judge found that the wife and respondent No. 2 and the latter 's mother stayed in two rooms in the Hotel Nos. 9 & 10 from July 25, 1950 to July 28, 1950.
He accepted the, testimony of the Manager of the Hotel, Cardoza P. W. 3 and also of the sweeper Kira Ram P. W. 4.
He found that the Wife and respondent No. 2 were seen by Kira Rain in room No. 10 and also that the party, i.e., the wife, respondent No. 2 and the latter 's mother were served morning tea in one room which they had together but he did not infer any acts of adultery from this conduct.
The document exhibit 8 dated November 22, 1950, but actually written earlier was held by the learned Judge to contain " a large substratum of truth ".
The Appeal Court (section K. Das C. J. and Ramaswami J.) agreed with the findings of the trial judge but they also were unable to draw the inference of the commission of adultery front the evidence.
In appeal it was contended that the findings of the courts below. were vitiated because certain pieces of ' evidence had been misread, some ignored and as a matter of legitimate and proper inference the court should not have arrived at any other conclusion but that the wife was guilty of adultery with respondent No. 2.
This Court will not ordinarily interfere with findings of fact given by the trial judge and the Appeal Court but if in giving the findings the Courts ignore certain important pieces of evidence and other pieces of evidence which are equally important are shown to have been misread and misconstrued and this Court comes to the conclusion that on the evidence taken as a whole no tribunal could properly as a matter of legitimate inference arrive at the conclusion that it has, interference by this Court will be called for.
(See 1416 State of Madras vs A. Vaidanatha Iyer Purvez Ardeshir Poonawala vs The State of Bombay(2); Stephen Seneviratne vs The King (3).
The Central Hotel, Patna, which is alleged to be the scene of adultery by the wife bad only 10 rooms, which were all single, but whenever necessary additional beds were put in.
At the relevant time M. C. Cardoza P. W. 3 was employed as its Manager, Kira Ram P. W. 4 as a sweeper, Abdul Aziz P. W. 5 and Usman Mian P. W. 6 as bearers.
Kira Ram identified the wife as the lady who had stayed at the hotel with respondent No. 2 but the other hotel servants although they were shown the photograph of the wife and also saw her in court were unable to recognize her as the person who stayed with respondent No. 2.
But they did identify him as the gentleman who had stayed in the hotel along with two ladies.
Examined by counsel Kira Ram stated: Q. " (Pointing out to the wife) I ask you, do you know this lady? A. Yes.
Did they ever visit your hotel? A. Yes.
Q. How long ago? A. About 9 or 10 months ago.
Q. How long did they stay there? A.
About 4 or 5 days.
What room did they occupy? A. Room No. 10 ".
He was unable to say as to the number of beds in room No. 10 nor is there any other evidence in regard to this.
He also stated : Q. " During their stay for these 4 or 5 days in your hotel, did you go to clean their bath room ? A. Yes.
Did you see them in that room whenever you went ? A.
Yes, whenever I used to go to sweep the room I found Memsaheb and Saheb there.
" (Questioned by the Court the witness said: Q. "Can you remember was there any other Memsaheb with these two? A.
There was another Memsaheb who lived in room No. 9.
What was she like young Memsaheb or what ? A.
She was not very old, but she was old." (1) A. T. R. , 64.
(2) Cr. A.
I 22 Of 1954, decided on December 20, 1957.
(3) A.I.R. 1936 P.C. 289, 299.
1417 And this obviously refers to respondent No. 2 's mother.
The evidence of Kira Ram therefore shows that the wife and respondent No. 2 occupied one room, room No. 10.
No question was put to this witness as to his hours of duty nor was the manager Cardoza asked anything about it but another witness Abdul Aziz bearer P.W. 5, was asked about it as follows: Q. " What are the hours of work of the sweeper ? A.
He comes at 7 a.m. and he leaves in the evening.
He sometimes goes away at about 11 and 11 30 a.m.or 12 noon".
Similarly no questions were put to Kira Ram about the state of habillement of the wife and respondent No. 2 and the witness never deposed about this fact.
The learned trial Judge erroneously thought that when Kira Ram spoke of the wife and respondent No. 2 lie " speaks as if ' they ' were fully dressed and not en deshabille " and the Appeal Court took this finding to be " as if this witness 's evidence showed that both of them were fully dressed".
The Appeal Court also seems to have misdirected itself in regard to the duty hours.
It said " the sweeper concedes that he was on duty from 6 a.m. to 11 a.m. " There is also evidence which has not been rejected that morning tea was served to all the three, i.e., the wife, respondent No. 2 and the mother of the latter in the same room.
The statement of Kira Ram that the wife and respondent No. 2 occupied the same room receives corroboration from exhibit 6 the hotel bill and receipt dated July 29, 1950 for room No. 10 in the name of Mr. and Mrs. Charles Chaplin.
This document even though contempo raneous with the events under consideration and strongly corroborative of Kira Ram 's evidence and of the statement of Cardoza that when Mr. and Mrs. Charles Chaplin "stayed in the hotel, they stayed in their own room " does not seem to have been brought to the notice of either of the Courts below.
Because of the infirmities pointed out above the import of the testimony of Kira Ram which has in the main been accepted by both the Courts below has been missed and its necessary consequences ignored.
1418 Then there is the evidence as to disappearance of the entry in the Hotel Visitor 's Book which was in the handwriting of respondent No. 2.
This entry was in the assumed name of Mr. and Mrs. Charles Chaplin from Hong Kong but when he (respondent No. 2) was asked to fill in the Foreigner 's form the entry was changed from Hong Kong to Samastipur.
The entry itself could not be produced in Court because as deposed by Cardoza, respondent No. 2 came to the hotel and by managing to send the hotel servant away from the room where the Visitor 's Book was kept, he tore off the pages containing this entry.
This fact receives support from the complaint which Cardoza made to the police on December 5, 1950, and the entry in regard to this complaint made in the Station House Diary of the same date.
Both these documents have been produced as Exs.
1/1 and 1/2.
The significance of this piece of evidence lies in the fact that it was done after the husband started collecting evidence of adultery and after lie and his sister had inspected the entry which according, to his statement was in the handwriting of respondent No. 2.
The reason of the wife 's visit to Patna was tooth trouble.
After her tooth was extracted she did not ,ice her Dentist again even though he had asked her to (lo so.
Her version is that she returned to Samastipur the same evening which the Courts below have not accepted.
Thus it shows that she stayed on at the Central Hotel, Patna for four days with respondent No. 2 without any reason being given by her and so far as the hotel bill and receipt exhibit 6 goes, the hotel charges for her stay were paid by " Charles Chaplin ", i.e., respondent No. 2 and not by her.
This fact has again escaped the notice of both the Courts below.
And this is more in consonance with guilt than innocence of the wife.
There are then the statements of J. A. Baker P.W. 8 and T.H. O 'Conior P.W. 9 to the effect that in September 1950, at the house of O 'Connor respondent No. 2 in the presence of these two witnesses boasted of his having had a good time with the wife and that she was a remarkable lady ".
Respondent No. 2 1419 had also love letters purporting to be from the wife, parts of which he read out to these witnesses.
They repeated the story to the husband which set him thinking.
Shearer J. held this part of the evidence to be true and the Appeal Court also accepted it but construed it as showing that there was no adulterous connection at that time, i.e., in September or it had ended at the instance of the wife.
Even as it is this finding is not destructive of the husband 's case as to adultery at Patna in the month of July; on the other hand it supports adulterous relations.
The presence of the mother of respondent No. 2 might have been a shield against the commission of adultery at Patna but the document exhibit 8 which has been accepted by the Courts below to have a substratum of truth just strips it away.
This document is indicative of the mother 's attitude towards the wife.
The following extract from this document is relevant as showing that she wanted the wife for her son: " How nice it would have been if you had married my son David '.
On another occasion while having tea along with her she begged me to leave my husband and go away with her son who was ruining his life and health and could not settle down to a job as he could not bear to see me married to another man.
" The presence of the mother would thus be no impediment to adulterous relations between the two.
The wife in the witness box wholly denied the episode of the Central Hotel including her stay there, which has deprived the Courts of her explanation.
We are, therefore unable to get any assistance from her or as a matter of that from respondent No. 2 as to what happened in the hotel at Patna.
The appellant contends that the only conclusion to be arrived at upon the evidence taken as a whole is that the wife was guilty of adultery with respondent No. 2.
In other words the evidence was in quality and quantity such that it satisfies the requirements of section 14 of the Act which provides: section 14 "In case the Court is satisfied on the 180 1420 evidence that the case of the petitioner has been proved. . . . . . . . . ." The important words requiring consideration are "satisfied on the evidence ".
These words imply that the duty of the Court is to pronounce a decree if satisfied that the case for the petitioner has been proved but dismiss the petition if riot so satisfied.
In section 4 of the English Act, Matrimonial Causes Act of 1937 the same words occur and it has been there held that the evidence must be clear and satisfactory beyond the mere balance of probabilities and conclusive in the sense that it will satisfy what Sir William Scott described in Loveden vs Loveden (1), as " the guarded discretion of ' a reasonable and just man ".
Lord MacDermott referring to the description of Sir William Scott said ' in Preston Jones vs Preston Jones (2): " The jurisdiction in divorce involves the status of the parties and the public interest requires that the marriage bond shall not be set aside lightly or without strict enquiry.
The terms of the statute recognise this plainly, and I think it would be quite out of keeping with the anxious nature of its provisions to hold that the court might be "satisfied " in respect of a ground for dissolution, with something less than proof beyond reasonable doubt.
I should, perhaps, add that I do not base my conclusion as to the appropriate standard of proof on any analogy drawn from the criminal law.
I do not think it is possible to say, at any rate since the decision of this House in Mordaunt vs Moncrieffe (3) that the two jurisdictions are other than distinct.
The true reason, as it seems to me, why both accept the same general standard proof beyond reasonable doubt lies not in any analogy but in the gravity and public importance of the issue with which each is concerned.
" The Act lays down in section 7 that Courts in all suits and proceedings under the Act shall act and give relief on principles and rules which in the opinion of the (1) ; , 649; (1810) 2 Hag.
Con. 1, 3.
(2) , 417.
(3) 1421 Court are as nearly as may be conformable to the principles and rules on which the Court for Divorce and Matrimonial Causes in England for the time being acts and gives relief.
In our opinion the rule laid down by the House of Lords would provide the principle and rule which Indian Courts should apply to cases governed by the Act and the standard of proof in divorce cases would therefore be such that if the judge is satisfied beyond reasonable doubt as to the commission of the matrimonial offence he would be satisfied within the meaning of section 14 of the Act.
The two jurisdictions, i.e., matrimonial and criminal are distinct jurisdictions but the terms of section 14 make it plain that when the Court is to be satisfied on the evidence in respect of matrimonial offences the guilt must be proved beyond reasonable doubt and it is on that principle that the Courts in India would act and the reason for adopting this standard of proof is the grave consequence which follows a finding of guilt in matrimonial causes.
Gower vs Gower (1) was pressed before us by counsel for the appellant as to the approach that the court should have to a matrimonial offence.
But in view of the decision in Preston Jones Case (2) it is unnecessary to discuss that case.
In a suit based on a matrimonial offence it is not necessary and it is indeed rarely possible to prove the issue by any direct evidence for in very few cases can such proof be obtainable.
The question to be decided in the present case therefore, is whether on the evidence which has been led, the court can be satisfied beyond reasonable doubt that adultery was committed by the wife with respondent No. 2 at Patna between July 25, 1950, and July 28, 1950.
In our opinion the facts proved are quantitatively and qualitatively sufficient to satisfy the test laid down by the House of Lords in Preston Jones Case (2).
The wife went to Patna and stayed with respondent No. 2 under an assumed name.
They occupied the same room, i.e., room No. 10.
There was undoubtedly a guilty inclination and passion indicated by the conduct of respondent No. 2 and there is no contrary indication as to (1) (2)[1951] A.C. 391, 417.
1422 the inclination and conduct of the wife.
On the other hand her conduct as shown by the evidence is so entirely consistent with her guilt as to justify the conclusion of her having committed adultery with respondent No. 2 and therefore the finding of the Courts below as to the guilt should be reversed.
We would, therefore, allow this appeal, set aside the judgment and decree of the High Court and pass a decree nisi for dissolution of marriage.
As adultery has been proved respondent No. 2 shall pay the costs in this Court and in the Courts below.
Appeal allowed.

summary/full:
The appellant sued his wife for dissolution of marriage on the ground of her adultery.
On the evidence the trial court found that it was not possible to hold that adultery had been committed, though it found that one of the letters contained "a large substratum of truth".
The High Court in appeal concurred with the decision.
On appeal to the Supreme Court it was contended for the appellant that the finding of the courts below was vitiated because certain pieces of evidence had been misread, and some others ignored.
As a matter of legitimate and proper inference the Court should not have arrived at any other conclusion, but that the wife was guilty of adultery with respondent NO. 2.
The evidence showed that the wife went to Patna and stayed in a hotel with respondent NO. 2 under an assumed name, that they occupied the same room in the hotel, that the conduct of the respondent indicated a guilty inclination, and that so far as the wife was concerned, her conduct was entirely consistent with her guilt : Held, that, the nature of the evidence adduced was such as would satisfy the requirements of section 14 of the Divorce Act, and that the finding of the Courts below that an inference of adultery could not be drawn therefrom must be set aside.
Although it is not usual for the Supreme Court to interfere 1411 on questions of fact, where, however, the courts below ignore or misconstrue important pieces of evidence in arriving at their finding, and this Court is of the opinion that no tribunal could have come to such a finding oil the evidence taken as a whole, such finding was liable to be interfered with by this Court.
Held, further, that the words "satisfied on the evidence" in section 14 Of the Divorce Act, 1869, imply that it is the duty of the (Court to pronounce a decree only when it is satisfied that the case lhas been proved beyond reasonable doubt as to the commission of a matrimonial offence.
The evidence must be clear and satisfactory beyond mere balance of probabilities.
It is not neccessary and rarely possible, to prove the issue by any direct evidence.
The rule laid down in Preston Jones vs Preston Jones, , lays down the principle that should be followed by tile courts under section 7 Of the Divorce Act.
State of Madras vs A. vaidanatha Iyer; , , Purvez Ardeshir Poonawala vs The State of Bombay, Cr. A. 122 Of 1954, decided on December 20, 1957, Stephen Seneviratne vs The A.I.R. 1936 P.C. 289, Mordaunt vs Moncrieffe, (1874) 30 649 and Gower vs Gower [1950] 1 All.
E.R. 804, referred to.
Loveden vs Loveden, ; (1810) 2 Hag.
1,3, referred to.
Preston Jones vs Preston Jones, , relied upon.


judgement:
Civil Appeal No. 1127 of 1985.
From the Judgment and order dated 29.8.84 of the Delhi High Court in S.A.O. No. 40 of 1984.
Rajinder Sachhar and Mrs. Rani Chhabra for the Appellants.
A.K. Ganguli and E.M.S. Anam for the Respondents.
The Judgement of the Court was delivered by 327 SABYASACHI MUKHARJI, J.
This appeal by special leave is directed against the judgement and order of the High Court of Delhi dated 29th August, 1984.
One Jagan Nath, since deceased, was the original tenant of the premises in question.
He died during the pendency of this appeal here.
His sons have been substituted.
The tenancy in question started on 1st January, 1962.
It appears that on 7th November, 1967 notice was addressed to Shri Baldev Raj, describing him as sole proprietor of M/s Bindra Tent House, New Delhi, for eviction.
There was an increase in rent in July, 1970.
The respondent herein filed the petition against the appellant herein Jagan Nath under section 14(1)(a) and 14(1)(b) of the Delhi Rent Control Act, 1958 (hereinafter called the Act) for eviction of the appellant from the premises consisting of one room forming part of premises No. N 80, Kirti Nagar, New Delhi, as the appellant herein had not paid rent with effect from 1st May, 1975 till 30th April, 1977 at the rate of Rs.75 per month despite service of the demand notice dated 8th January, 1976.
It was the further case of the respondent herein that the appellant had after 9th June, 1962 sublet, assigned or otherwise parted with possession of the premises to Shri Baldev Raj Bindra and Sat Pal Bindra without the consent in writing of the respondent landlord.
The suit was filed before the Additional Rent Controller and the same was contested on various grounds.
It was contended that the petition was not maintainable because of non joinder of Shri Baldev Raj Bindra and Sat Pal Bindra.
The premises in question is residential cum commercial.
It was stated that Shri Baldev Raj Bindra and Sat Pal Bindra are the sons of the original appellant, since deceased.
The said tenant was in exclusive possession of the premises and was carrying on his business therein with which, it was stated, Baldev Raj and Sat Pal had no concern.
They are the sons of the tenant, since deceased, and had constituted a Hindu Undivided Family.
No demand notice was ever served upon the tenant.
The tenant tendered the rent to the landlord by money order for an amount of Rs.450 which he refused to accept.
The Additional Rent Controller so far as the ground of nonpayment of rent was concerned held that there was a compliance with the order passed under section 15(1) of the Act.
The Additional Rent Controller gave the tenant the benefit under section 14(2) of the Act.
The petition of the landlord on the ground of non payment of rent was, therefore, dismissed.
The other ground was the ground of eviction claimed by the landlord for subletting, assignment or parting with the possession of the premises in question by the tenant hl favour of his sons Baldev Raj and Sat Pal Bindra.
The landlord in his deposition had stated that since 328 1st July, 1971 Baldev Raj and Satpal were running their business in the name of M/s. Bindra Tent House in partnership and they were in possession of the premises in question.
The tenant had no concern with the business carried on in the demised premises and the tenant had retired.
The tenant in his cross examination had stated that he had sent partnership document and Form II to the Income tax Department.
13 The landlord had denied the suggestion that the said Jagan Nath was in possession of the premises and his sons had been helping him from the very beginning.
The landlord had produced on the record one statement made by the appellant herein, Jagan Nath before the Income Tax officer, photostat copy of which is Exhibit A.W. 3/1 on the record which indicated that Jagan Nath who was the proprietor of the Bindra Tent House sold the same for Rs.18,000 on 1.1.1970 to his sons Baldev Raj and Sat Pal and he got cash of Rs.8,000 and he gifted the other amount into two equal shares to his sons Baldev Raj and Sat Pal.
In his statement, Jagan Nath had stated that Sat Pal and Baldev Raj had entered into a partnership in the same name M/s. Bindra Tent House in the same premises.
This document was heavily relied upon before us by Shri Sachhar in aid of his submissions that the tenant had parted with possession.
There is another document Exhibit A.W 2/1.
According to this document which is a photostat copy of the stamp vendor register, non judicial papers for Rs.13, Rs.2 and Rs.20 were purchased by Baldev Raj for partnership purposes in the name of M/s. Bindra Tent House.
Our attention was also drawn to the fact that an application for electricity connection was made by Sat Pal Bindra in the name of M/s. Bindra Tent House on 25th July, 1975 as the sole proprietor of the same.
From these and other documents, it was contended that there was parting of possession and as such the tenant was liable to be .
evicted.
The Additional Rent Controller ordered the eviction under section 14(1)(b) of the Act.
He held that there was no subletting by the tenant, Jagan Nath since deceased but he had unlawfully parted with the possession of the demised premises in favour of his sons Sat Pal and Baldev Raj without the consent in writing of the landlord.
During the pendency of the appeal the tenant preferred an application under order 6 Rule 17 of the Code of Civil Procedure seeking permission to amend his written statement.
The appellant contended that the landlord filed eviction petition in respect of the said premises against the appellant and his two sons which was assigned to Shri A.P. Chaudhary, Additional Rent Controller.
Another objection raised was that the property was taken on rent by M/s.
Bindra Tent House 329 and, therefore, the petition for eviction was not maintainable.
The application had been contested in which it had been admitted that the earlier petition for eviction was filed but according to the respondent it was not properly instituted and the same was withdrawn.
It was denied that the application was not maintainable.
The Tribunal on an analysis of the matter came to the conclusion that belated amendment could not be permitted.
It was emphasised that the tenant had admitted in the written statement that he was a tenant in the property in question.
He could not subsequently be allowed to wriggle out of this situation and withdraw the admission.
If the amendment was allowed, they would take valuable right of the other side and altogether a new plea would be taken, it was held.
This cannot be permitted.
In this connection, the Rent Tribunal relied upon the observations of the Assam High Court in Subashini Majumdar and another vs Krishna Prasad Mahatoo and Ors., A.I.R. 1956 Assam 79.
The same view was reiterated by this Court in M/s. Modi Spinning and Weaving Mills Co. Ltd. and another vs M/s. Ladha Ram and Co., [1977] l SCR 728 where the proposed amendment introduced an entirely new case seeking to displace the other side completely from the admission made then.
It was held that such an amendment could not be allowed.
We are of the opinion that the Rent Tribunal was therefore right in refusing the amendment on the basis of the aforesaid principle.
The Tribunal on an analysis of evidence and facts came to the conclusion that there was no merit in the appeal and dismissed the appeal and affirmed the eviction order.
The High Court on an analysis of the evidence and relevant authorities came to the conclusion that there was no substantial question of law and dismissed the second appeal.
Hence this appeal.
The question for consideration is whether the mischief contemplated under section 14(1)(b) of the Act has been committed as the tenant had sublet, assigned, or otherwise parted with the possession of the whole or part of the premises without obtaining the consent in writing of the landlord.
There is no dispute that there was no consent in writing of the landlord in this case.
There is also no evidence that there has been any subletting or assignment.
The only ground perhaps upon which the landlord was seeking eviction was parting with possession.
It is well settled that parting with possession meant giving possession to persons other than those to whom possession had been given by the lease and the parting with possession must have been by the tenant; user by other person is not parting with possession so long as the tenant retains the legal possession himself, or in other words there 330 must be vesting of possession by the tenant in another person by divesting himself not only of physical possession but also of the right to possession.
So long as the tenant retains the right to possession there is no parting with possession in terms of clause (b) of section 14(1) of the Act.
Even though the father had retired from the business and the sons had been looking after the business, in the facts of this case, it cannot be said that the father had divested himself of the legal right to be in possession.
It the father has a right to displace the possession of the occupants, i.e., his sons, it cannot be said that the tenant had parted with possession.
This Court in Smt.
Krishnawati vs Shri Hans Raj, had occasion to discuss the same aspect of the matter.
There two persons lived in a house as husband and wife and one of them who rented the premises, allowed the other to carry on business in a part of it.
The question was whether it amounted to sub letting and attracted the provisions of sub section (4) of section 14 of the Delhi Rent Control Act.
This Court held that if two persons live together in a house as husband and wife and one of them who owns the house allows the other to carry on business in a part of it, it will be in the absence of any other evidence, a rash inference to draw that the owner has let out that part of the premises.
In this case if the father was carrying on the business with his sons and the family was a joint Hindu family, it is difficult to presume that the father had parted with possession legally to attract the mischief of section 14(1)(b) of the Act.
Shri Ganguly appearing for the landlord contended that the con duct of the tenant, Jagan Nath had been as sitting on the fence and avoiding the issue.
It is true that Shri Ganguly rightly pointed out that Jagan Nath, the erstwhile tenant had not been fair and frank.
But this is no ground to disentitle him to the benefit of the law if the facts have been proved that he had not parted with possession.
After all, it has to be borne in mind that this is a residential cum commercial premises.
Jagan Nath was carrying on business in part of the building with his two sons.
Jagan Nath had died, therefore, it will be just and proper to presume that they were carrying on business, though perhaps the stand of the Jagan Nath was not always fair.
In these days of acute shortage of accommodation both for living and for vocation, one has to take the reality with a pinch of salt and the manner in which Shri Jagan Nath has conducted himself would not disentitle him the benefit of the law in the present climate.
In the view we have taken, this appeal must be allowed and the judgment and order of the High Court of Delhi and the Courts below are set aside.
The eviction order is accordingly set aside.
331 It has, however, to be borne in mind that rent in these areas has increased enormously.
So while exercising our jurisdiction under Article 136 of the Constitution, we will enhance the rent to four times.
We are told that the mesne profit at present payable was Rs.75 per month.
We direct that mesne profit/rent should be Rs.300 per month.
We further direct that this will not prejudice the rights of the respondent herein to file any proceedings for eviction on the ground of bona fide need, if there is such a need or on any other ground available to the respondent for eviction under the Act.
We give this direction in view of the facts alleged in the affidavit of Shri Chander Bhan Mehta affirmed on '6th April, 1988.
About the correctness or validity of the statements made therein, we had no occasion to examine in this appeal.
We have also taken into consideration the affidavit of Shri Baldev Raj Bindra affirmed on the 2nd May, 1988 about the veracity of which also we express no opinion.
In the facts of this case, the appellants will pay to the respondent the costs of the appeal.
R.S.S. Appeal allowed.

summary/full:
The respondent landlord had filed a petition against the appellant tenant under section 14(1)(a) and 14(1)(b) of the Delhi Rent Control Act, 1958 for eviction from a residential cum commercial premises, inter alia, on the ground that the appellant had sublet, assigned or otherwise parted with possession of the premises to his sons who were running their partnership business in the name of Bindra Tent House with which the tenant had no concern.
The tenant contested the petition on the ground that he was in exclusive possession of the premises and was carrying on his business therein with the help of his sons who were members of his Joint Hindu Family.
In support of his plea that the tenant had parted with possession, the landlord had produced documentary evidence which included copy of a statement made by the tenant before the Income Tax officer, which indicated that the tenant had sold his proprietary business to his sons.
The Additional Rent Controller held that there was no subletting by the tenant, but he had unlawfully parted with the possession of the premises in favour of his sons and as such was liable to be evicted.
During the pendency of the appeal the tenant sought permission under order 6 Rule 17 of the Code of Civil Procedure to amend his written statement to state that the property was taken on rent by M/s Bindra Tent House.
The Tribunal did not permit this belated amendment as this would have introduced an entirely new case.
On merits, the Tribunal dismissed the appeal of the tenant.
The High Court did not find any substantial question of law in the tenant 's second appeal and dismissed the same.
Allowing the appeal, it was, 326 ^ HELD: (1) The only ground perhaps upon which the landlord A was seeking eviction was parting with possession.
It is well settled that parting with possession meant giving possession to persons other than those to whom possession had been given by the lease and the parting with possession must have been by the tenant.
User by other person is not parting with possession so long as the tenant retains the legal possession himself, or in other words, there must be vesting of possession by the tenant in another person by divesting himself not only of physical possession but also of the right of possession.
So long as the tenant retains the right to possession there is no parting with possession in terms of clause (b) of section 14(1) of the Act.
[329G H; 330A] (2) Even though the father had retired from business and the sons had been looking after the business in the facts of this case, it cannot be said that the father had divested himself of the legal right to be in possession.
[330B] (3) In the instant case, if the father was carrying on the business with his sons and the family was a joint family, it is difficult to presume that the father had parted with possession legally to attract the mischief of section 14(1)(b) of the Act.
[330D E] (4) In these days of acute shortage of accommodation both for living and for vocation, one has to take the reality with a pinch of salt and the manner in which the original tenant has conducted himself in shifting his defence would not disentitle him to the benefit of the law.
[330Gl Subashini Mojumdar vs Krishna Prasad Mahatoo, A.I.R. ; M/s Modi Spinning and Weaving Mills Co. Ltd. vs M/s Ladha Ram and Co., ; and Smt.
Krishnawati vs Shri Hans Rai, , referred to.


judgement:
Civil Appeal Nos.
740 to 743 of 1975.
From the Judgment and Order dated 30.8.1974 of the High Court of Madhya Pradesh in Miscellaneous Civil Case No. 352 of 1971.
B.B. Ahuja, Ms. A. Subhashini and K.C. Dua for the Appellant.
T.A. Ramachandran, Vinek Gambhir, Sanjay Sareen and S.K. Gambhir for the Respondents.
The Judgment of the Court was delivered by VENKATACHALIAH, J.
These appeals, by special leave, by the Commissioner of Wealth tax, Bhopal, arise out of the opinion rendered by the High Court of Madhya Pradesh, Bhopal, in fourconsolidated wealth tax references under Section 27(1) of the .
They raise a short but interesting question touching the 230 incidents of what is described as the 'Quaraza e Hasana ' said to be a transaction known in and peculiar to the personal law of the muslims.
The matters arise out of the proceedings concerning the assessment to wealth tax of the respondent, Abdul Hussain Mulla Mohammad Ali ( 'the assessee ') for the four assessment years 1957 58 to 1960 61.
In the original returns for the assessment year 1957 58 relevant to the valuation date 31.3.1957, the assessee filed a return of net wealth of Rs.8,57,910 which included a sum of Rs.4,00,000 representing the principal value of the loan advanced by the assessee to a certain Faizullabhai Mandlawala, Sidhpur.
Both the assessee and the said Faizullabhai Mandlawala were partners of a firm carrying on business under the name and style 'Rising Sun Flour & Oil Mills ' at Ujjain.
The borrower had employed this sum as part of his capital in the firm.
In the revised return, filed by him, the assessee, however, sought to have the value of that loan excluded from his wealth, on the claim that this loan was what was known to Muslim Law as 'Quaraza e Hasana ' a debt of good faith and goodwill carrying with it no legal obligation on the part of the debtor to repay and correspondingly, no right on the part of the assessee to expect, much less enforce a repayment.
The claim for the non inclusion of this asset in the wealth of the assessee was sought to be supported by the declaration dated 26.3.1965 furnished by the debtor that the sum was received by him 'without any obligation and without any rate of interest and without any consideration '.
Reliance was also placed on some extracts of the Quran said to relate to this transaction.
Both the Wealth tax Officer and the Appellate Assistant Commissioner in the appeal found it difficult to accept this claim and, accordingly, brought this sum of Rs.4,00,000 to tax on the respective valuation dates.
However, the Income tax Appellate Tribunal, Indore Bench, accepting the assessee 's appeals held that the loan partook of the character of 'Quaraza e Hasana ' with its special incidents as known to Muslim Law; that the transaction was one of good faith and goodwill and lacked the concomitants of a legally enforceable claim for repayment and that, therefore, the amount was not a debt due to the assessee.
The High Court before which the Tribunal, at the instance of 231 the Revenue, stated a case and referred two questions of law for opinion upheld the view that had commended itself to the Tribunal and answered the questions against the Revenue.
The two questions so referred were: (1) "Whether on the facts and in the circumstances of the case, the Tribunal was justified in holding that the amount of Rs.4 lakhs cannot be included in the total assets of the assessee?" (2) "Whether on the facts and in the circumstances of the case the Tribunal was justified in accepting that the amount of Rs.4 lakhs was in the nature of 'Quaraza e Hasana ' particularly when Rs.1,21,500 out of Rs.4 lakhs has been repaid?" 4.
Shri B.B. Ahuja, learned counsel for the Revenue, contended that the Tribunal as well as the High Court fell into a serious error in their acceptance of the hypothetical incidents of a supposedly peculiar institution of the personal law of the muslims, respecting which nothing tangible by way of evidence as to the existence of such rule or tenet of muslim law was forthcoming.
Learned counsel invited our particular attention to the following observations of the Tribunal: "The learned counsel for the assessee, Mr. Chitale, has also stated before us that he has not come across any judicial decision defining or describing the exact characteristics of the expression 'Quaraza e Hasana ' nor has become across any discussion on this matter in any of the treaties on Mohammedan Law.
We are, therefore, satisfied that on the facts and circumstances of this case, the amount of Rs.4 lakhs cannot be treated as a debt due to the assessee and the same cannot be included in the total asset of the assessee." Learned counsel submitted that the inference drawn does not only not flow from the premise but would clearly be antithetical.
If the concept of 'Quaraza e Hasana ' and the peculiar incidents attributed to it are not established, the plea that there is a debt but yet there is no obligation to repay becomes mutually contradictory.
In regard to the subsidiary or supporting reasons for the acceptance by the Tribunal to hold that there was no debt which could be said to be due and owing to the assessee, the learned counsel invited our attention to the following reasoning of the Tribunal: 232 ". .Faizullabhai in a declaration dated 26.3.1965 has stated that this amount was received by him without any obligation and without any rate of interest and without any consideration.
Therefore, the question that arises for consideration is whether under this peculiar circumstance it can be said that this sum of Rs.4 lakhs which was given by the assessee to Faizullabhai prior to 1950 for which there is no document and for which there is no obligation to repay can be treated as a debt due to the assessee. .
Learned counsel submitted that neither the circumstance that the loan was advanced prior to 1950 nor the self serving declaration by the borrower; nor even that no repayment had been made during the accounting years or earlier would, by themselves, detract from the existence and incidents of a debt which was, otherwise, admitted.
Learned counsel pointed out that, admittedly, on 24.7.1961, a sum of Rs.1,21,821 had been repaid by the borrower to the assessee.
Learned counsel said that both the Tribunal and the High Court, while rightly noticing that the special incidents of what was called 'Quaraza e Hasana ' had not been established, however, by excluding the sum from the wealth, gave the benefit of this doubt as to the very existence of this institution of 'Quaraza e Hasana ' to the assessee.
Referring to the reliance by the High Court on the incidents 'Hiba ba shart ul evaz ' learned counsel submitted that the reasoning of the High Court based on this form of a mussalman gift was destructive of the assessee 's case inasmuch as the kind of gift envisaged by 'Hiba ba Shart Ul Evaz ' expressly stipulated contemporaneous liability for a return.
Shri Ramachandran, learned counsel for the assessee, sought to support the conlusion of the High Court also another independent ground that, at all events, by entering into this transaction the parties did not intend to create a legal obligations between them and that, therefore, the debt remained a debt of honour.
We will presently refer to the possibilities of this contention in the facts of this case.
No authoritative texts nor any principle or precedent recognised in Muslim Law was cited before the High Court to show that a transaction of this nature and incidents is known to and recognised by the personal law of the Muslims.
As no material was placed before the High Court, or before us, to establish the content and incidents of this 233 idea of what is referred to 'Quaraza e Husana ' it is not possible to say, one way or the other, whether Courts can recognise and act upon such a rule of Muslim Law much less afford relief to the proponent of that rule.
Indeed literature on the Principles of Islamic Banking "Unlawful gain and legitimate profit in Islamic Law" (Nibil A. Saleh, Cambridge University Press, 1986) does not appear though we do not want to be understood to have pronounced on the subject finally to support the particular incidents of the non existence of the element of repayability attributed to this kind of loans.
Learned author says that Sharia distinguishes between two types of loans: one the 'Ariya ' the 'loan for use ' which transfers the usufruct of the property temporarily and gratuitously while ownership of the loaned object remains with the lender; and the second, the 'qard '.
In regard to this second type of loan, the 'qard ' the author says (at pages 35 and 36): "The second type of loan recognished by Sharia is the qard, which 'involves the loan of fungible commodities; that is, goods which may be estimated and replaced according to weight, measure or number.
In this case, the borrower undertakes to return the equivalent or likes of that he has received but without any premium on the property, which would, of course, be construed as interest.
The most likely object of a qard loan would be currency or other standard means of exchage." (emphasis supplied) On the question whether the lender of 'Qard ' is entitled to derive any advantage from it, the learned author refers to the views of the different schools namely, Hanafia, Hanbalis, Malikis, Shafi and Ibadis.
(See pages 41 to 43).
Again, the learned author refers to 'Qard Hasan ' as interest free loan.
Explaining its incidents the author says: "Qard Hasan means an interest free loan, which is the only loan permitted by Sharia principles.
We have seen previously that not only can interest not be charged on the lent capital, but no advantage whatsoever should be derived by the lender from the loan.
Of course, each school of law has its own interpretation of what constitutes 'advantage ' and that we have already seen in detail . .
One may wonder how lending could be a business 234 proposition once interest is abolished . . " (emphasis supplied) (see page 89) The learned author also proceeds to enumerate the circumstances in which the Islamic Financial Institutions are advised to make use of 'Qard Hasan '.
From what is gatherable from the author 's observations of course, if the concept of 'Qard Hasan ' is the same as that 'Quaraza e Hasana ' the obligation on the part of the debtor of the loan to repay nor the right of the creditor to repayment are excluded.
The only incident appears to be that it is 'interest free '.
However, we do not want to be understood to have pronounced on this question finally as neither side has produced nor relied upon any literature of Islamic Law on the point.
The extracts of the Quran relied upon merely calls some loan a beatific loan which blesses the giver.
The incidents of the transactions are not found in the passages.
Nor does the reliance by the High Court on the well recognised institution in Muslim Law, of Hiba ba Shart ul Iwaz ' advance the case of the assessee any further.
In Principles of Mohammadan Law (Mulla, 16th Edition page 165) this kind of gift is explained: "Where a gift is made with a stipulation (shart) for a return, it is called hibaba shart ul iwaz . .
The main distinction between Hiba bil Iwaz as defined by older jurists and Hiba ba shart ul Iwaz is that in the former iwaz proceeds voluntarily from the donee of the gift while in the latter it is expressly stipulated for between the parties.
" Referring to what distinguishes Hiba bil Iwaz from Hiba ba shart ul Iwaz, the learned author, Syed Ameer Ali, in 'Mahommadan Law ' (4th Edition), Vol.
I, p. 158 excerpting from Fatawai Alamgiri, says: Iwaz or consideration was of two kinds: one which was subsequent to the contract (of gift), the other which was conditioned in it." "In the other kind, the consideration was expressly stipu 235 lated in the contract, and when once it was received the transaction acquired the legal character of a sale.
The modern hiba ba shart ul iwaz has unquestionably sprung from the above.
" Then, in the last analysis what follows as a logical consequence is that the debt, though a 'passive debt ' would require to be treated as due and payable to the assessee.
It was not the assessee 's case that the debt was a bad and irrecoverable debt.
The declaration of the debtor itself establishes its existence.
But, then, Shri Ramachandran, anticipating the inherent infirmity of the claim based on 'Quaraza e Hasana ' sought to treat us to a resourceful argument that the conclusion of the High Court is, at all events, supportable on an independent ground that an agreement will not, by itself, yield legal obligations unless it is one which can reasonably be regarded as having been made between the parties in contemplation of legal consequences and that in the present case the parties had excluded the contemplation of legal consequence flowing from the transactions.
This proposition is stated in 'Chitty on Contracts ' (25th Edn.
Volume I para 123) thus: "An agreement, even though it is supported by consideration, is not binding as a contract if it was made without any intention of creating legal relations.
Of course, in the case of ordinary commercial transactions it is not normally necessary to prove that the parties in fact intended to create legal relations." (emphasis supplied) Learned counsel cited certain cases to illustrate the point.
In Rose and Frank Co. vs J.R. Crompton and Bros. Ltd., [1923] 2 K.B. 261 Sccutton, LJ, said: ". .
Now it is quite possible for parties to come to an agreement by accepting a proposal with the result that the agreement concluded does not give rise to legal relations.
The reason of this is that the parties do not intend that their agreement shall give rise to legal relations.
This intention may be implied from the subject matter of the agreement, but it may also be expressed by the parties.
In social and family relations such an intention is readily implied, while 236 in business matters the opposite result would ordinarily follow . " At page 293, Atkin, LJ, said: ". .
To create a contract there must be a common intention of the parties to enter into legal obligations, mutually communicated expressly or impliedly." The novelty of the clause in the contract relied upon in that case did not miss the learned Judge 's notice.
He observed: ".
I have never seen such a clause before, but I see nothing necessarily absurd in business men seeking to regulate their business relations by mutual promises which fall short of legal obligations, and rest on obligations of either honour or self interest, or perhaps both . " This contention of Shri Ramachandran was not, in this form, urged before the High Court.
It was not the case of the parties that, apart altogether from the Rule of Muslim Law relied upon, they had agreed otherwise also that no legal obligation should arise.
The contention has, no doubt, its possibilities.
But where, as here, the tax implications of large financial obligations are sought to be put an end to, the burden is heavy on the assessee to establish that what would otherwise be the incidents of the transaction were excluded from contemplation by the parties.
Here, one partner has lent a large sum to the other to be utilised as capital in the partnership venture.
The transaction is in the context of a commercial venture.
The presumption is that legal obligations are intended.
The onus is on the parties asserting the absence of legal obligations and the test is not subjective to the parties; but is an objective one.
Chitty says (para 123, supra): ". .
The onus of proving that there was no such intention 'is on the party who asserts that no legal effect is intended, and the onus is a heavy one.
Where such evidence is adduced, the Courts normally apply an objective test." (emphasis supplied) The observations of Atkin, LJ in the case cited by counsel are also worth recalling: 237 ". .
Such an intention ordinarily will be inferred when parties enter into an agreement which in other respects conforms to the rules of law as to the formation of contracts.
It may be negatived impliedly by the nature of the agreed promise or promises, as in the case of offer and acceptance of hospitality, or of some agreements made in the course of family life between members of a family as in Balfour vs Balfour, . ." In Edwards vs Skyways, at 355 Megaw J said: "In the present case, the subject matter of the agreement is business relations, not social or domestic matters.
There was a meeting of minds an intention to agree.
There was, admittedly, consideration for the company 's promise.
I accept the propositions of counsel for the plaintiff that in a case of this nature the onus is on the party who asserts that no legal effect was intended, and the onus is a heavy one.
" Again, in Bahamas Oil Refining Co. vs Kristiansands Tankrederie A/S and Others and Shell International Marine Ltd., [1978] Lloyds Law Reports 211 it was said: ".
In deciding whether or not there was any animus contrabendi in relation to a certain transaction, or whether or not sufficient notice of a certain term was given, the law applies an objective and not a subjective test . " ".
In the absence of such evidence, how can the Court assume, even if it might be relevant in law, that the master did not intend to enter into a contract . " 11.
The arguments of learned counsel proceeds on the general proposition that in addition to the existence of an agreement and the presence of consideration there is also a third contractual element in the form of intention of the parties to create legal relations.
This proposition, though accepted in English Law, has not passed unchallenged.
In Cheshire and Fifoot 's Law of Contract, 10th Edn., it is said: ". the criticism of it made by Professor Williston demands attention, not only as emanating from a distinguished American jurist, but as illuminating the whole subject now under discussion.
In his opinion, the separate 238 element of intention is foreign to the common law, imported from the Continent by academic influences in the nineteenth century and useful only in systems which lack the test of consideration to enable them to determine the boundaries of contract . " (at page 97) Be that as it may, the point, however, to note and emphasise is that this intention not to create legal obligation is not inferable from the application of any objective text.
The non enforceability of debt was pleaded not as a part of what is permissible in law of contracts, but specifically as some inexorable incident of a particular tenet peculiar to and characteristic of the personal law of the Muslims.
That not having been established, no appeal, in our opinion, could be made to the principle of permissibility of exclusion of legal obligations in the law of contracts.
We are afraid both the Tribunal and the High Court accepted, somewhat liberally perhaps, what was at best an argument of hypothetical probabilities.
The admitted existence of a debt implies an obligation to repay.
No legal bar of the remedy is pleaded.
What was set up, and unsubstantiated, was the non existence of the remedy itself.
Accordingly, the appeals are allowed and, in reversal of the view taken by the High Court, the questions referred for opinion, are answered in the negative and in favour of the Revenue, with the attendant implication that the loan would become includible in the wealth of the assessee for the relevant assessment years.
In the circumstances of the case, we make no order as to costs.
R.S.S. Appeals allowed.

summary/full:
The assessee respondent had advanced a sum of Rs.4,00,000 to his partner Faizullabhai Mandlawala which sum was employed as a part of Mandlawala 's capital in their partnership firm.
The assessee sought to have the value of that loan excluded from his wealth on the claim that this loan was what was known to Muslim Law as 'Quaraza e Hasana ' a debt of good faith and goodwill carrying with it no legal obligation on the part of the debtor to repay and correspondingly, no right on the part of assessee to expect, much less enforce a repayment.
This claim was supported by debtor 's declaration that the sum was received by him 'without any obligation and without any rate of interest and without any consideration. ' The Wealth Tax Officer and the Appellate Assistant Commissioner found it difficult to accept this claim.
The Appellate Tribunal, however, accepting the assessee 's claim held that the loan partook of the character of 'Quaraza e Hasana ' with its special incidents as known to Muslim Law; that the transaction was one of good faith and goodwill and lacked the concomitants of a legally enforceable claim for repayment and that, therefore, the amount was not a debt due to the assessee.
The High Court upheld this view.
It was contended on behalf of the Revenue (1) that the Tribunal as well as the High Court erroneously accepted the hypothetical incidents of a supposedly peculiar institution of the personal law of the Muslims, any rule or tenet of Muslim Law respecting which had not having been established; (2) that both the Tribunal and the High Court, while rightly noticing that the special incidents of what was called 'Quaraza e Hasana ' had not been established, gave the benefit of doubt as to the 228 very existence of this institution of 'Quaraza e Hasana ' to the assessee, and (3) that the reliance by the High Court on the incidents of 'Hiba ba shart ul iwaz ', a form of Mussalman gift, was misplaced as this kind of gift expressly stipulated contemporaneous liability for a return.
Counsel for the assessee, sought to support the conclusions of the High Court on an alternative and independent ground that, at all events, by entering into this transaction the parties must be held not to have intended to create a legal obligation between them and that, therefore, the debt remained a debt of honour.
It was contended that an agreement would not, by itself, yield legal obligations unless it was one which could reasonably be regarded as having been made in contemplation of creating legal consequences, and that in this case the parties must be held to have excluded the contemplation of legal consequences flowing from the transaction.
Allowing the appeal it was, ^ HELD: (1) As no authoritative text nor any principle or precedent recognised in Muslim Law was cited before the High Court or this Court, establishing the nature, content and incidents of the institution of 'Quaraza e Hasana ', it was not possible to say, one way or the other, whether Courts could recognise and act upon such a rule of Muslim Law much less afford relief to the proponent of that rule.
[232G H; 233A B] (2) If the concept of 'Qard Hasan ' was the same as that of 'Quaraza e Hasana ', the obligation on the part of the debtor of the loan to repay nor the right of the creditor to repayment were excluded.
The only incident appeared to be that it was 'interest free '.
[234C] (3) The reliance by the High Court on the concept of mussalman gift 'Hiba ba shart ul Iwaz ' did not help the assessee because this kind of gift stipulated liability for return.
[232E F] (4) The debt, though a 'passive debt ' would require to be treated as due and payable to the assessee.
It was not the assessee 's case that the debt was bad and irrecoverable.
The debtor 's declaration itself established its existence.
[235B] (5) Where, as in the instant case, the tax implications of large financial obligations were sought to be put an end to, the burden as heavy on the assessee to establish that what would otherwise be the usual incidents of the transaction were excluded from contemplation by 229 the parties.
Here, one partner had lent a large sum to the other to be utilized as capital in the partnership venture.
The transaction was in the context of a commercial venture.
The presumption therefore, was that legal obligations were intended.
The onus was on the parties asserting the absence of legal obligations.
The test was not subjective to the parties, but an objective one.
[236E F] (6) The non enforceability of debt was pleaded not as a part of what was permissible in law of contracts, but specifically as some inexorable incident of a particular tenet peculiar to and characteristic of the personal law of the Muslims.
That not having been established, no appeal could be made to the principle of permissibility of exclusion of legal obligations in the law of contracts.
In the instant case, the admitted existence of a debt implied an obligation to repay.
No legal bar of the remedy was pleaded.
What was set up, and was unsubstantiated, was the non existence of the remedy itself.
The loan would therefore become includible in the wealth of the assessee.
[238C E] Rose and Franc Co. vs J.R. Crompton and Bros. Ltd., [1923] 2 K.B. 261; Edwards vs Skyways, ; Bahamas Oil Refining Co. vs Kristiansands Tankraderie A/s and others and Shell International Marine Ltd., [1978] Lloyds Law Reports 211, referred to.