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PETITIONER: MST. SURAYYA BEGUM, ETC.

       Vs.

RESPONDENT: MOHD. USMAN AND ORS., ETC.

DATE OF JUDGMENT26/04/1991

BENCH: SHARMA, L.M. (J) BENCH: SHARMA, L.M. (J) VERMA, JAGDISH SARAN (J)

CITATION:  1991 SCR  (2) 517        1991 SCC  (3) 114  JT 1991 (2)   435        1991 SCALE  (1)810

ACT:     Delhi   Rent   Control   Act.  1958/   Code   of   Civil Procedure,1908:  Section 25 Section 11,  Explanation VI  and 47,  and Order 1,Rule 8-Decree for eviction -Execution of  - All  legal  heirs  of  original  tenants  not  impleaded  in evication proceedings-Whether Person not impleaded  entitled to  contest  execution petition-Principle  of  represention- Applicability  of-Succession to the tenancy of the  deceased Section 19 of the Hindu Succession Act, 1956-Scope of.

HEADNOTE:     The  respondents-landlords in the two  appeals  obtained decrees of eviction against the legal representatives of the original   tenants  of  the  premises  in  dispute  .     In execution,  the appellants objected, contending  that  since they  were  not  impleaded  as  parties  in  the    eviction proceedings,   their   right  to  tenancy,  which   was   an independent  one, could not be put to an end  by  permitting the  decrees to be executed, and that the  decrees  obtained against other members of the family would not bind them.     While  the  courts below rejected the objection  in  one case,  in  the other case the executing court held  that  in view  of the controversy on questions of fact involved,  the appellants objection could be finally decided only after  the parties  were allowed to  lead evidence, and hence  fixed  a date  for  trial of the dispute. However, on appeal  by  the landlord, the High Court held that the appelant was bound by the decree and her objection was filed with the sole  object of  delaying the execution. Hence, the appellant  filed  the appeal,by  special leave,contending that since she was  left out of the proceeding,the decree was not only not binding on her, but it could not be kept alive even against the others.     On  behalf of the decree-holders it was  contended  that when  the tenancy rights devolved the heirs of a  tenant  on his  death,  the incidence of tenancy remained the  same  as earlier  enjoyed by the original tenant and it has a  single tenancy which devolved on them. There was no division of the premises or of the rent payable, and the position as between the  landlord and tenant continued unaltered,  andthe  heirs succeeded to the tenancy as joint tenants.                                                   518     Allowing  civil  Appeal No.2056 of 1991  and  dismissing

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Civil Appeal No. 2057 of 1991, this Court,     HELD:  1.1  The  principle  of  representation  of   the interest  of a person, not impleaded by name in  a  judicial proceeding, through a named party is not unknown. A Karta of Joint   Hindu  Family  has  always  been  recognised  as   a representative  of  the  other members of  the  Joint  Hindu Family,  and  so  has  beenatrustee.  In  cases  where   the provisions  of  order 1,Rule 8 of the Civil  procedure  Code 1908  are attracted, a named party in a suit represents  the other  persons interested in the litigation, and likewise  a receiver  appointed in one case represents the interests  of the  litigating parties in another case against a  stranger. Similarly, the real owner is entitled to the benefits  under a decree obtained by his benamidar against a stranger and at the  same time, is also bound by the decision. Examples  can be multiplied. [522B-C]     1.2  Under Explanation VI to Section 11 of the  Code  of Civil  Procedure,1908  where persons  litigate  bonafide  in respect  of  a public right or of a  private  right  claimed in common for themselves and others, all persons  interested in  such right shall, for the purposes of this  section,  be deemed to claim under the persons so litigating, subject  of course,to  the  essential condition that the interest  of  a person   concerned  has  really  been  represented  by   the others in other words, his interest has been looked after in a  bona  fide  manner. If there be any  clash  of  interests between the person concerned and his assumed representative, or  if the latter, due to collusion or for any other reason, mala  fide  neglects  to  defend  the  case,  he  cannot  be considered to be a representatve.The issue, when it  becomes relevant  has, therefore, to be answered with  reference  to the facts and circumstances of the individual case. [522D-F]     1.3  So far as Section 19 of the Hindu  Succession  Act, 1956,  is  concerned, when it directs that the  heirs  of  a Hindu dying intestate shall take his property as tenants-in- common, it is dealing with the rights of the heirs inter  se amongst  them,  and  not  with  their  relationship  with  a stranger  having  a superior or  distinctly  separate  right therein.  The  relationship between the  staranger  and  the heirs of a deceased tenant is not the subject matter of  the section.  Similar  is  the  situation  when  the  tenant  is Mohammedan. [524E-F]     1.4  In  the instant case, in the  first  appeal,  since disputed  questions  of  fact are  involved,  including  the parentage of the appellant and her allegations of  collision between  the  landlord and the other legal heirs,  the  High Court, should not have closed the mater finally without                                                     519 waiting  for  the  evidence, as directed  by  the  executing Court.  The judgement of the High Court is,  therefore,  set aside  and the matter remitted to the executing court for  a fresh   decision  after  permitting  the  parties  to   lead evidence. [522H,523A-B]     1.5  In the other appeal, although adequate liberty  was given by the Additional Rent Controller and the Tribunal  to lead  evidence in support of their cases ,  appellant  never availed of the same and went on delaying the proceedings  by repeated  prayers  of  adjournment. There  were  also  other circumstances   adverse  to  the  case   of the  appellants, including  the facts that the rent was paid to the  landlord by  their mother and brothers and never by them ,  and  they are young girls in the family who are being looked after  by the  elders. In the circumstances, they must be held  to  be effectively    represented    by   the    named    judgement debtors.[523C-D]

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   Textile Association (India) Bombay Unit v.Balmohan Gopal Kurup  and Another, [1990] 4SCC 700 and Kanji Manji  v.  The Trustees  of  the  Port of Bombay, [1962]Supp.  3  SCR  461, referred to.

JUDGMENT:     CIVIL   APPELLATE JURISDICTION : Civil Appeal No.  2056- 2057 of 1991.     From the judgment and Order dated 23.7.1990 &15.11.90 of Delhi High Court in C.M.(M.) Nos 288/89 and 357 of 1990.     Rajinder  Suchher,  Rajinder Mathur and Narain  for  the Appellant.     Avadh  Behari and B. Dutta, Raju Ramchandrean  and  Mrs. Kiriti Misra for the Respondents.     The judgment of the Court was delivered by     SHARMA,J. 1. Special leave is allowed  in both the cases. Since they involve decision of some common questions of  law they are being disposed of together by this judgment.     2. The appellant Surayya Begum in the first case  claims herself  as one of the nine legal representatives of  Khalil Raza,  the original tenant of the premises in question,  and is  objecting  to the execution of the  decree  of  eviction obtained  by  the  landlord-respondent  No.  1  against  the respondent  Nos. 2 to 9 who are sons, daughters and wife  of Khalil  Raza  . Her case is that she is also a  daughter  of Khalil Raza, which is                                                    520 denied by the respondent No. 1; and  it  is contended on her behalf  that  since  she was not impleaded  as  a  party  to eviction proceeding started by the respondent, her right  in the tenancy which is an independent right, cannot be put  to an end by permitting the decree obtained to be executed. She alleges collusion between them and the decree holder.     3. The landlord -decree holder has denied the  existence of  another daughter of Khalil Raza by the name  of  Surayya Begum.  It    is  averred  that  the  appellant  who  is  an objector  has  been set up by the respondent Nos. 2 to  9 to defeat  the  decree against them which was contested  for  a decade upto the stage of Supreme Court.     4.  The executing court heard the parties and held  that in  view of the controversy on questions of fact arising  in the  case the appellant’s objection can be  finally  decided only after the parties are allowed to lead evidence. A  date was accordingly fixed for trial of the disputed issue.   The respondent No 1 challenged this order before the Delhi  High Court.  The  High  Court  agreed  with  the  decree   holder respondent  holding  that  the appellant was  bound  by  the decree and her objection was  filed with the sole object  of delaying  the execution. Her application under secs. 47  and 151  of C.P.C. and sec.25 of the Delhi Rent Control Act  was accordingly  dismissed  . The appellant has  challenged  the High Court’s decision in the present appeal.     5. It has been contended on behalf of the appellant that she  was  as  much  a tenant as  her  mother,  brothers  and sisters,  and  it  is  not  sufficient  for  the   landlord- respondent  to have obtained an eviction decree against  the others leaving out the appellant, as  a result of which  the decree  is  not binding on her . Heavily  relying  upon  the decision  in  Textile  Association (India)  Bombay  Unit  v. Balmohan  Gopal Kurup and Another, [1990] 4 SCC 700  it  was urged  that the decree could not be kept alive even  against the others and so the landlord cannot be put in   possession of the premises at all.

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   6.  In  the civil appeal arising out  of  Special  Leave Petition No. 15021 of 1990 Shri Shiv Kumar Sharma, who   was a  tenant in possession of the shop under dispute,  died  in 1982 leaving behind his widow, three sons and four daughters as  his  heirs  and legal  representatives.  Thereafter  the respondent-landlord  commenced  an  eviction  proceeding  in 1985, out of which the present matter arises, and  impleaded only the wife and the sons of the deceased. Two of the  four daughters  were  married and the  remaining  two  daughters, appellants in the present                                                  521 appeal, were staying in the house but not joined as parties. The suit was contested by the mother and the brothers of the appellant but,ultimately a decree for eviction was passed.In execution, the unmarried daughters filed an objection  inter alia  contending  that they have independent  title  in  the tenancy and the decree obtained against the other members of the  family  would not bind them. Reliance has  been  placed upon   the   decision   in   the   aforementioned    Textile Association’s  case  read  with sec. 19  (b)  of  the  Hindu Succession Act.     7. The learned advocates representing the decree holders in  these  two  appeals have argued that  when  the  tenancy rights  devolve on the heirs of a tenant on his  death,  the incidence of tenancy remains the same as earlier enjoyed  by the  original  tenant  and  it is  a  single  tenancy  which devolves on them. There is no division of the premises or of the  rent payable, and the position as between the  landlord and  the tenant continues unaltered. Relying on Kanji  Manji v. The Trustees of the Port of Bombay, [1962]Supp. 3 SCR 461 and borrowing from the judgment in H.C.Pandey’s case (Supra) it was urged that the heirs succeed to the tenancy as  joint tenants  .  The  learned counsel  for  the  appellants  have replied  by pointingout that as the aforesaid two  decisions were  distinguished  by  this Court in the  latter  case  of Textile  Association  (Supra),  it  was  not  open  to   the landlords to support the impugned judgements by relying upon the earlier two cases.     8.  So  far  sec.  19 of the  Hindu  Succession  Act  is concerned,  when it directs that the heirs of a Hindu  dying intestate  shall take his property as tenants-in-common,  it is  dealing  with the rights of the heirs inter  se  amongst them ,and not with their relationship with a stranger having a  superior  or  distinctly  separate  right  therein.   The relationship  between  the  stranger  and  the  heirs  of  a deceased  tenant is not the subject matter of  the  section. Similar  is the situation when the tenant is a Mohammedan  . However, it is not necessary for us to elaborate this aspect in  the  present  appeals . The main  dispute   between  the parties,  as it appears from their respective stands on  the courts below , is whether the heirs of the original  tenants who were parties to the proceeding,represented the objector- heirs  also  . According to the decree holder in  Miss  Renu Sharma’s  case their interest was adequately represented  by their mother and brothers and  they are as much bound by the decree  as  the named judgment debtors. In  Surayya  Begum’s case the respondent No.1 has denied the appellant’s claim of being  one  of the daughters of Khalil Raza,  and  has  been contending  that  the  full  estate  of  Khalil  Raza  which devolved  upon  his  heirs  on  his  death  was   completely represented  by the respondent Nos. 2 to 9. In other  words, even if the                                                  522 appellant  is  held  to be a daughter  of  Khalil  Raza  the further question as to whether her interest was  represented

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by the other members of the family will have to be answered.     9. The principle of representation of the interest of  a person,  not  impleaded by name in  a  judicial  proceeding, through  a  named party is not unknown. A Karta of  a  Joint Hindu Family has always been recognised as a  representative of  the other members of the Joint Hindu family, and so  has been  a trustee. In cases where the provisions of  Order  1, Rule  8  of the Civil Procedure Code are attracted  a  named party  in a suit represents the other persons interested  in the  litigation,  and likewise a receiver appointed  in  one case  represent  the interest of the litigating  parties  in another  case against a stranger . Similarly the real  owner is  entitled to the benefits under a decree obtained by  his benamidar  against a stranger and at the same time  is  also bound  by the decision . Examples can be multiplied.  It  is for this reason that we find explanation VI in the following words  in sec. 11of the Code of Civil procedure:          "Explanation VI-Where persons litigate bona fide in          respect  of  a  public right  or  a  private  right          claimed  in common for themselves and  others,  all          persons  interested  in such right shall,  for  the          purposes of this section, be deemed to claim  under          the persons so litigating."          This  of  course,  is  subject  to  the   essential          condition  that the interest of a person  concerned          has really been represented by the others; in other          words    his  interest has been looked after  in  a          bona  fide  manner.  If  there  be  any  clash   of          interests  between  the person  concerned  and  his          assumed  representative  or if the  latter  due  to          collusion  or  for  any  other  reason,  mala  fide          neglects  to  defend  the  case,  he  can  not   be          considered  to be a representative. The issue  when          it  becomes  relevant   has,  therefore  ,  to   be          answered   with    reference  to  the   facts   and          circumstances of the individual case. There may  be          instances in which the position is absolutely clear          beyond  any reasonable doubt one way or  the  other          and  the  question  can  be  settled  without   any          difficulty;  but in other cases the issue may  have          to  be decided with reference to relevant  evidence          to  be led by the parties. Surayya Bagum’s case  is          of this class while Renu Sharma’s appeal belongs to          the first category .    10.  In surrayya begum’s case disputed questions of  fact are  involved including the parentage of the  appellant  and her  allegations of collision between the landlord  and  the respondents 2 to 9, and the                                                      523 executing court had, therefore , invited the parties to lead their  evidence  in support of their respective  cases.  The High Court in the  circumstances, should not have closed the matter  finally  without  waiting  for  the  evidence.   We, therefore,  set  aside the impugned judgment and  remit  the matter  to the executing court for decision in the light  of the observations made above, after permitting the parties to lead  evidence.  Her appeal is accordingly allowed  but  the parties shall bear their own costs of this Court. 11. So far Renu Sharma’s matter is concerned, the  situation is  very  different. The judgments of  the  Additional  Rent Controller,  Delhi  and the Rent  Control  Tribunal,  Delhi, indicate that although the adequate liberty was given to the present appellant to lead evidence in support of their cases, they  never  availed of the same and went  on  delaying  the proceedings  by repeated prayers of adjournment . They  have

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also  pointed out to the other circumstances adverse to  the case  of the appellants, including the facts that  the  rent was  paid to the landlord by their mother and brothers   and never  by them, and they are young girls in the  family  who are  being  looked  after  by  the  elders.  We  are,in  the circumstances,  of  the view that they must be  held  to  be effectively represented by the named judgment-debtors. Their appeal is accordingly dismissed with costs. N.P.V.                                       Appeal dismissed.                                                   524