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CASE NO.: Appeal (civil)  2371 of 2007

PETITIONER: Prabha Arora & Anr

RESPONDENT: Brij Mohini Anand & Ors

DATE OF JUDGMENT: 31/10/2007

BENCH: A.K. Mathur & Markandey Katju

JUDGMENT: J U D G M E N T

MARKANDEY KATJU, J.

1.      This appeal has been filed against the judgment dated 09.10.2006  passed by the Uttaranchal High Court in Writ Petition No. 337 of 2004  (M/S).  Heard learned counsel for the parties and perused the records.

2.      The appellants before us are the tenants of the premises in dispute  while the respondents are the landlords.  The landlady filed the petition  under Section 21 (1) (a) of the U.P. Urban Buildings (Regulation of Letting,  Rent and Eviction) Act, 1972.  The grounds mentioned in the release  application of the landlady was that she is a retired teacher getting only a  pension of Rs. 538/- per month which is insufficient for her needs.  Hence to  augment her income she wants to run tuition/coaching classes in the  premises in question.  The said petition was rejected by the Prescribed  Authority, but in appeal the appellate authority (ADJ Dehradun) by his  judgment dated 16.03.2004 reversed the order of the Prescribed Authority  and allowed the release application.  The said judgment dated 16.03.2004  has been upheld by the High Court by the impugned judgment dated  09.10.2006.  Hence this appeal.

3.      It may be mentioned that during the pendency of the appeal before the  appellate authority a Trust was created in respect of the property in question  vide trust deed dated 04.08.2003 (copy of which is annexed as Annexure P-8  to this appeal).

4.      Learned counsel for the appellants, Shri Dinesh Dwivedi, submitted  that in view of the aforesaid trust deed dated 04.08.2003 the very purpose for  which eviction was sought of the tenants through the release application has  disappeared.  We are in agreement with this submission.  The trust deed  nowhere mentions that any income of the Trust will be given to the  petitioner who filed the release application.  In fact, Section 51 of the Trust  Act debars a trustee from using the trust property for his own profit.

5.      In Kedar Nath Agrawal (dead) & Anr.  v. Dhanraji Devi (dead) by  Lrs. & Anr. [2004 (8) SCC 76] this Court held that the court has to consider  the changed circumstances during the pendency of the litigation.  This  decision relied on the earlier decision of this Court in Hasmat Rai v.  Raghunath Prasad [1981 (3) SCC 103: AIR 1981 SC 1711] in which it was  observed that where possession is sought for personal requirement, the said  requirement must not only exist on the date of the filing of the petition but  must also subsist till the final decree for an order for eviction is made.  If, in  the meantime, events crop up which would show that the landlord\022s  requirement no longer subsists then the action must fail.

6.      In Tulsidas Kilachand & Ors. v. Commissioner of Income Tax  

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[AIR 1961 SC 1023] it was held that on creation of a Trust the property  passes to the trustees.  Hence, in our opinion, rent is now to be paid to the  trustees who will collect it on behalf of the Trust.

7.      In M.M. Quasim v. Manohar Lal Sharma & Ors. [1981 (3) SCC  36] this Court held that on transfer of property to a person who is not a party  to the proceedings the suit for eviction will fail.

8.      Learned counsel for the respondents, Shri M.N. Krishnamani,  submitted that the petition under Section 21 for eviction was filed on the  ground that the petitioner wanted to do charitable work, and after creation of  the Trust also the purpose remains the same.  We do not agree.  In the  petition under Section 21 it is stated in paragraph nos. 3 \026 7 of the petition  that the petitioner has a monthly pension of Rs. 538/-  only and she wants to  augment her income as it is difficult for her to survive on the meager  pension.  Hence she wants to open a tutorial centre in the premises in dispute  to earn some money.  The purpose mentioned in the petition under Section  21 was not for doing charitable work.  However, after the execution of the  trust deed the premises in dispute now belongs to the Trust.  The need  mentioned in the petition under Section 21 has totally disappeared.

9.      In this view of the matter, the impugned judgment of the High Court  dated 09.10.2006 and of the appellate authority dated 16.03.2006 can not be  sustained and are set aside. 10.     Appeal is allowed, no order as to costs