REPORTABLE

IN THE SUPREME COURT OF INDIA          CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1525 OF 2009 (Arising out of SLP©No.5312 of 2008)

M/s Kanhiya Singh Santok Singh & Ors.          ..Appellants

Versus

Kartar Singh              ..Respondent

J U D G M E N T

TARUN CHATTERJEE,J.

1. Leave granted.

2. This appeal is directed against the final judgment and

order dated 10th of January, 2008 of the High Court of

Rajasthan, at Jaipur being S.B. Civil Appeal No. 486 of

2002,  whereby  the  High  Court  had  dismissed  the

application  filed  by  the  appellants  for  being

substituted  as  legal  representatives  of  one  Santok

Singh  who  had  died  subsequently  during  the  long

drawn legal battle between the parties, and dismissed

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the  Second appeal  filed  by the appellants as having

been abated.

3. The facts leading to the filing of this appeal are stated

briefly as under : -  

The dispute relates to a shop situated at Madanganj,

District Kishangarh, Rajasthan. The appellants belonged

to a joint family consisting of Santok Singh, father of the

appellants  (now deceased),  and the appellants  namely,

Man  Mohan  Singh  and  Jaswant  Singh.  Their  third

brother  namely,  Balbeer  Singh  had  already  separated

during the lifetime of the father of the appellants and he

runs his own business.

4. The appellants along with their father were carrying

on business of motor spare parts as well as a Kerosene

Retail  outlet  business.  On 24th of  February,  1997,  the

respondent filed a suit for eviction against the father of

the appellants  Late Santok Singh (since deceased)  and

the  firm  owned  by  him  namely  M/s  Kanhiya  Singh

Santok Singh on the ground of bonafide requirement. By

an order  dated 30th of  July,  1997,  the Additional  Civil

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Judge, Kishangarh, held that the respondent had failed

to  prove  his  bonafide  requirement  and,  therefore,

dismissed the suit. Thereafter, the respondent filed a first

appeal before the Additional District and Sessions Judge,

Kishangarh,  Ajmer.  On 5th of  October,  2002,  the  First

Appellate Court allowed the appeal and decreed the suit

for eviction against the father of the appellants, Santok

Singh (since deceased)  and his firm.  Aggrieved by the

aforesaid decree, late Santok Singh  and the firm through

late Santok Singh filed a Second Appeal before the High

Court  of  Rajasthan  at  Jaipur  being  S.B.  Civil  Second

Appeal No. 486 of 2002.

5. On  18th of  September,  2006,  the  father  of  the

appellants  late  Santok  Singh  died  leaving  behind  his

widow and three sons, out of whom the appellants being

two of them, were living with late Santok Singh at the

time of his death.  The third son had already separated

from the joint family and started a business of his own.

On  26th of  October,  2006,  the  appellants  filed  an

application for being substituted under Order 22 Rule 3

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CPC as legal representatives of late Santok Singh, having

specifically mentioned in the said application that they

were  ordinarily  carrying  on  business  along  with  their

father as the members of his family till  the time of his

death.

6. On 16th of April, 2007, the respondent filed a reply

opposing  the  application  filed  by  the  appellants  for

substitution as legal representatives of late Santok Singh

and prayed that the appeal be dismissed as abated.

7. The High Court by the impugned order rejected the

application and dismissed the appeal of the appellants as

abated.   

8. It  is against this order of the High Court that the

appellants have filed this Special  Leave Petition, which

on grant of leave was heard by us in the presence of the

learned counsel appearing for the parties.

9. The relevant issue which is to be determined in this

appeal is whether the two sons of late Santok Singh

can be substituted as his legal representatives under

Order  22 Rule  3 CPC pursuant  to the provisions  of

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section  3 (vii)  of  the  Rajasthan Premises  (Control  of

Rent & Eviction) Act, 1950 (hereinafter referred to as

the “Act” in short).

10.Before delving further into the issue, it is necessary to

reproduce the above mentioned section, namely section 3

(vii) of the Act which runs as under:

3 (vii): “tenant” means-

a. the person by whom or on whose account or behalf rent is, or, but for a contract express or implied would be payable for any premises to his landlord including the person who is continuing in its possession after the  termination  of  his  tenancy  otherwise  than by  a decree for eviction passed under the provisions of this Act; and  

b. in the event of death of the person as is referred to in sub-clause  (a),  his  surviving  spouse,  son,  daughter and other  heir  in accordance  with the  personal  law applicable  to  him  who  had  been,  in  the  case  of premises leased out for residential purpose, ordinarily residing  and in the  case  of  premises  leased  out  for commercial or business purposes,  ordinarily carrying on business with him in such premises as member of his family upto his death. (emphasis supplied)

11. The  learned  counsel  appearing  on  behalf  of  the

respondent however contended at the first instance that

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the appeal in this Court itself is not entertainable as the

appellants cannot be substituted as legal representatives

of late Santok Singh in spite of the fact that they are his

sons, in view of the provisions of section 3 (vii) of the Act.

It was his contention that since the original tenant had

died  during  the  pendency  of  the  Second  Appeal,  the

Second Appeal  filed by him before  the High Court  was

bound to have been abated, unless his heirs and legal

representatives  who  satisfied  the  requirements  under

section  3  (vii)  of  the  Act,  were  brought  on  record.

Therefore  he argued that the High Court had correctly

rejected  the  application  of  the  appellants  finding  them

unfit  to  be  declared  as  legal  representatives  of  late

Santok Singh under Order 22 Rule 3 of the CPC, since

they did not come within the category of “tenants” under

section 3 (vii) of the Act. The respondent contended that

a  partition  had  already  taken  place  by  way  of  family

settlement in the family of the original tenant on 1st of

August, 1974, and this fact was categorically admitted by

him in his statement recorded on 31st of March, 1990.

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Therefore, the appellants were not ordinarily carrying on

business  as the  members  of  the  family  of  late  Santok

Singh till the time of his death, to be substituted in his

place and thus were not eligible to be brought on record

as his  heirs  and legal  representatives  under  Section 3

(vii)  of  the  Act.  This  is  so  because  only  those  legal

representatives  would  become  tenants  in  case  of

premises  leased  out  for  commercial  or  business

purposes, who were ordinarily carrying on business with

late  Santok  Singh  as  members  of  his  family  upto  his

death. It is relevant to mention at this stage that simply

because the appellants claimed to be in business at the

time of his death with late Santok Singh, would not bring

them within the definition of “tenant” unless they were

carrying  on  business  in  the  suit  premises  with  late

Santok Singh at the time of his death as a member of his

family. Therefore, it was the contention of the respondent

that since a partition amongst the members of the family

of  Late  Santok  Singh  and  the  appellants  had  already

taken place by virtue of a family settlement dated 1st of

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August, 1974 and the members of the family including

the appellants had started their own business, it could

not  be  said  that  the  appellants  were  entitled  to  be

substituted as legal representatives of late Santok Singh

to prosecute the second appeal filed by him against the

eviction  decree  nor  they  could  be  entitled  to  file  this

appeal in this Court.   

12. The  learned  counsel  appearing  on  behalf  of  the

appellants  on the  other  hand argued  that  the  High

Court was wrong in placing reliance only on one part

of the deposition of Late Santok Singh where he had

stated that all his three sons had separate business

and he had his own individual  business, before the

Court  of  Civil  Judge  and  Additional  Chief  Judicial

Magistrate,  Kishangarh,  on  31st of  March,  1990.

Based  on  this,  the  High  Court  concluded  that  the

appellants had separate business and were not part

of the same business of Santok Singh at the time of

his death, to be substituted as tenants in his place

and  thus  could  not  be  substituted  as  his  legal

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representatives  who could  carry  forward  the  appeal

filed by late Sanotk Singh against the eviction decree

passed  against  him.  The  learned  counsel  appearing

for the appellants contended that the High Court had

erroneously  overlooked  another  part  of  the  same

deposition where late  Santok Singh had mentioned,

“Man  Mohan  Singh  is  my  second  son  who  is  the

manager  of  my  shop”.   Therefore,  according  to  the

appellants,  this  in  fact  directly  proved  that at  least

one son namely Man Mohan Singh was helping his

father in his own business at the time of his death

and thus he fell within the meaning of “tenant” under

Section 3 (vii) of the Act.  From the deposition, it is

not clear whether the appellants were in fact a part of

the business of late  Santok Singh and were carrying

on business with him till the time of his death or not.

On  one  hand,  it  is  apparent  that  one  son  namely

Balbeer  Singh  had  a  separate  business,  but  the

status  of  the  other  two sons cannot  be  ascertained

clearly from the records before us. The fact that one of

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the appellants’  was a manager of the disputed shop

can have two meanings. The first one being that he

was actually carrying on the business along with his

father  Santok  Singh  till  the  time  of  his  death.  The

other being that the appellant Man Mohan Singh was

only working as an employee in the shop of his father,

his designation being that of a manager and was not a

part  of  the  same  business.  The  High  Court  had

overlooked  this  disputed  question  of  fact  and  held

that the three sons had separate business for which

they  could  not  fall  under  the  category  of  “tenant”

under  the  provisions of  the  Act.   Furthermore,  this

question of fact cannot be decided without permitting

the  parties  to  lead  evidence  in  respect  of  their

respective cases and without coming to a finding on

such question  of  fact  by the  court.  In  this  state  of

affairs, pending the disposal of the Second Appeal, the

High Court ought to have sent the case to the trial

court  to  determine  the  status  of  the  appellants  as

legal  representatives  of  late  Santok  Singh  after

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permitting the parties to adduce evidence, under the

provisions  of  Order  22  Rule  5  of  CPC,  which deals

exclusively  with the determination of question as to

the legal representatives of a deceased. For a proper

understanding  of  the  above  stated  position,  it  is

necessary to reproduce the provision which runs as

follows:

“Rule  5:  Determination  of  question  as  to legal representative- Where a question arises as to whether any person is or is not the legal representative  of  a  deceased  plaintiff  or  a deceased  defendant,  such  question  shall  be determined by the Court.

Provided  that  where  such  question  arises before  an  Appellate  Court,  that  Court  may, before  determining  the  question,  direct  any subordinate Court to try the question and to return  the  records  together  with  evidence,  if any,  recorded  at  such  trial,  its  findings  and reasons  therefore,  and  the  Appellate  Court may  take  the  same  into  consideration  in determining the question.”

13. Thus considering the ambiguous position regarding

the status of  the  appellants  relating to their  status as

tenants, it was necessary for the High Court to remit the

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matter to the trial Court for a proper determination of the

factual  aspects  whether  the  appellants  were  in  fact

carrying on business with late Santok Singh at the time

of his death by taking evidence and thereafter, come to a

finding  whether  the  appellants  shall  be  brought  on

record in the second appeal as the legal representatives

of late Santok Singh.  

14. We need to take note of another aspect in this matter.

It was contended by the respondent that even if it is

proved that the appellants were carrying on business

with the original tenant late Santok Singh, this would

not fulfill the requirements laid down under section 3

(vii) of the Act which necessitates that the heirs and

legal representatives of the tenant should have been

carrying on business with him as his family members

upto  the  time  of  his  death.  Therefore,  it  was  his

contention that going by the settlement arrived at by

the family on 1st of  August,  1974,  it  is  amply clear

that the family had partitioned and the brothers were

living independently of late Santok Singh and running

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their own business.  At this stage, we cannot accept

this  argument  advanced  by  the  learned  counsel

appearing on behalf of the respondent. In any view of

the matter,  the alleged settlement arrived at by the

family and signed by its members do not conclusively

point out to the fact that the members had separated

and they ceased to exist as a Joint Hindu family of

late Santok Singh. It  is evident from the settlement

deed  that  at  the  time  of  the  execution  of  the  said

document, the appellants namely Jaswant Singh and

Man Mohan Singh were minors and it was signed by

Santok Singh himself on their behalf. Moreover, it is

apparent that the said document only distributed the

capital of the business and did not in any way divide

the business among the members of the family. Thus

the said document indicated shares of each party in

the business to be carried on. Again if we go through

the statement of the second witness who was a part of

the settlement arrived as a witness, and had put his

signature  thereof  as  the  same,  it  further  illustrates

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that the settlement was for the partition of capital of

the business and not the business in itself. The above

mentioned statement is produced herein for a better

understanding:

“ In my presence partition of capital of Joint Hindu Family of Kanhaiya Singh Santok Singh has been done in equal 5 shares of  Rs.  33, 923.64 today on 1.8.74  which they all  have accepted  before  me  having  received  and credited in  books  and  I  have  signed  in  the capacity of witness as desired by them.”

Therefore it is evident that the appellants were the

members of the same family to which late Santok Singh

belonged. The only thing that needs to be determined is

whether they were ordinarily carrying on business at the

time of his death. This according to us should be decided

by the trial Court according to the provisions of Order 22

Rule  5  of  CPC  as  has  already  been  stated  here  by

production of oral and documentary evidence before the

trial Court.    

15.However, we make it clear that any observation made

by us  in this  judgment  on the  above  aspect  of  the

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matter and also of the High Court, would not be taken

as conclusive  and it  would be open to the court  to

come  to  a  finding  without  being  influenced  by  the

aforesaid  observations  made  in  this  judgment  and

also the observations made by the High Court in the

impugned judgment.  It may be mentioned here that

the  parties  would  be  at  liberty  to  rely  on  any

documentary  evidence  including  the  deed  of

settlement if not already produced in the court which

may be permitted to be produced and the trial Court

shall  also  permit  the  parties  to  adduce  evidence  in

support of the respective cases and thereafter, come

to a finding on the status of the appellants and send

such  findings  along  with  the  records  to  the  High

Court for final disposal of the second appeal.   

16.In  view  of  our  discussions  made  hereinabove,  the

impugned Judgment of the High Court is liable to be

set aside and, accordingly, it is set aside.   

17.The matter is now remitted back to the High Court,

who  in  turn,  shall  direct  the  trial  Court  to  take

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evidence  in  the  manner  indicated  above  and  after

considering  the  evidence  (documentary  and  oral)

brought on record by the parties shall make a finding

on  the  status  of  the  appellants  and  the  record,

thereafter may be sent back to the High Court with

the findings and the evidence that would be adduced

and already on record and only thereafter, the High

Court shall dispose of the second appeal.  If the High

Court  is  of  the  view  that  the  appellants  shall  be

substituted in place of late Santok Singh, in that case,

the High Court shall decide the appeal on merits after

giving  hearing  to  the  parties  and  after  passing  a

reasoned judgment  in accordance  with law.   In  the

event, the High Court finds that the appellants cannot

be substituted in place of late Santok Singh, then the

High  Court  shall  pass  an  order  disposing  of  the

appeal  as  abated.   The  High Court  shall  direct  the

trial Court to take evidence and send the records with

its findings within six weeks from the date of receipt

of a copy of an order of the High Court to it.   

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18.The  appeal  is  accordingly  allowed  to  the  extent

indicated above. There will be no order as to costs.

     ……………………J.       [Tarun Chatterjee]

New Delhi;      …………………….J. March 04, 2009.       [Aftab Alam]

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