M/S Kanhiya Singh Santok Singh & Ors vs Kartar Singh

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

Versus

Kartar Singh ..Respondent

JUDGMENT

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

1 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

2 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

3 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

4 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

5 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.

6 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

7 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

8 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

9 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

10 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

11 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

12 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

13 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

14 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

15 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.

16

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]

17