CASE – KIRAN DEVI VS. THE BIHAR STATE SUNNI WAKF BOARD & ORS
BENCH – Supreme court of India
JUDGE – Justices Ashok Bhushan Justice S. Abdul Nazeer and Justice Hemant Gupta
CITATION – 2021 SCC OnLine SC 280
INTRODUCTION
In this case a dispute regarding the induction of tenant by the Wakf Board, the Supreme Court held that payment of rent by grandfather or great grandfather cannot raise the presumption that the business being carried on is a joint family business. The present appeal was filed against an order passed by the High court of Patna allowing the writ petition filed by respondent no.4 and holding the tenant in the premises was representing a joint Hindu family and that the karta was not competent to surrender tenancy rights in favour of Respondent no. 1 (Devendra Prasad). The Bihar State Sunni Wakf Board and therefore the induction of the appellant as a tenant by the Wakf board was illegal. Based on the same, direction was issued to dispossess the appellant from the suit premises and handover the vacant possession to the plaintiff. The plaintiff’s grandfather along with others broke the lock and removed the belongings from suit premises. When the father of the plaintiff approached the police and they didn’t register the complaint, it was filed in the court of CJM Patna, which is stated to be pending. Later, the plaint was amended and the present appellant was pleaded as defendant No. 5 alleging that the lease in her favour by the Wakf Board is forged, fabricated, anti-dated and collusive paper.
FACTS
The plaintiff had filed a suit for declaration before the competent civil court stating that he is a tenant in the suit premises and is entitled to continue in the suit premises as a tenant on payment of monthly rent. The basis of such declaration was that Ram Sharan Ram, the great grandfather of the plaintiff, predeceased his brother Ram Sewak Ram who died issueless and his widow predeceased him. Ram Sewak Ram was carrying out a joint family business of a hotel in the premises of the Wakf Board. Due to advanced age, he handed over the possession of the hotel business to his nephew Devendra Prasad Sinha, the grandfather of the plaintiff. The grandfather of the plaintiff succeeded to the tenancy as a member of the joint Hindu family. After his death, defendant Nos. 1 to 3 succeeded to the tenancy as members of the Joint Hindu Family. The shop was being run by Surendra Kumar, son of Devendra Prasad Sinha when the grandfather of the plaintiff fell ill. Surendra Kumar, the father of the plaintiff started paying rent to the Wakf Board. However, Surendra Kumar later joined service and the hotel was being run through the servants. The plaintiff had started running the hotel in 1988. On account of disputes over the management, the hotel was closed and it remains closed for several years. It is the plaintiff who wanted to resume the hotel business in the premises in question and thus communicated with the Wakf Board to continue the hereditary tenancy of the shop as Karta in his name. started paying rent to the Wakf Board. However, Surendra Kumar later joined service and the hotel was being run through the servants. The plaintiff had started running the hotel in 1988. On account of disputes over the management, the hotel was closed and it remains closed for several years. It is the plaintiff who wanted to resume the hotel business in the premises in question and thus communicated with the Wakf Board to continue the hereditary tenancy of the shop as Karta in his name.Ram Sharan Ram, the great grandfather of the plaintiff, predeceased his brother Ram Sewak Ram who died issueless and his widow predeceased him. Ram Sewak Ram was carrying out joint family business of hotel in the premises of the Wakf Board. Due to advanced age, he handed over the possession of the hotel business to his nephew Devendra Prasad Sinha, the grandfather of the plaintiff. The grandfather of the plaintiff succeeded to the tenancy as member of the joint Hindu family. After his death, defendant succeeded to tenancy as members of the Joint Hindu Family. The shop was being run by Surendra Kumar, son of Devendra Prasad Sinha, when the grandfather of the plaintiff fell ill. Surendra Kumar, the father of the plaintiff started paying rent to the Wakf Board. However, Surendra Kumar later joined service and the hotel was being run through the servants. The plaintiff had started running the hotel since 1988. On account of disputes over the management, the hotel was closed and it remain closed for several years. It is the plaintiff who wanted to resume the hotel business in the premises in question and thus communicated with the Wakf Board to continue the hereditary tenancy of the shop as Karta in his name.
ISSUE
- Whether Devendra Prasad (Defendant no.1) was running a joint family business?
- Whether Devendra Prasad as Karta of joint family business has got authority to surrender the joint family business?
- Whether Devendra Prasad surrendered joint family business or premises of joint family business?
- Whether the plaintiff is entitled to any other relief?
- whether the jurisdiction of the High Court under Article 226 of the Constitution of India is invoked ?
RELEVANT PROVINSION OF LAW
* Section 85 and 85A of the wakf Act,1995
* Article 226 of the constitution
CONTENTION FROM BOTH THE PARTIES
SUBMISSION BY THE APPELLANT
- Appellant submitted that the Tribunal had no jurisdiction to entertain the suit filed by the plaintiff in view of the judgment of this Court in Ramesh Gobindram V. Sugra Humayun Mirza Wakf has considered the amendment in the Act, wherein, the proceedings instituted prior to the amendment were to continue as per the unattended provisions of the Act. Therefore, a suit for declaration of the plaintiff as a tenant was not maintainable before the Wakf Tribunal as there was no estoppel against the statute and that the consent would not confer jurisdiction on the Wakf Tribunal, which it did not have in view of the judgments referred.The order of the Wakf Tribunal could not be challenged by way of writ petition before the High Court under Article 226 of the Constitution of India as only a revision in terms of proviso to sub-section (9) of Section 83 of the Act could be preferred.
- Appellant submitted that the High Court could not have re appreciated facts in a petition under Article 227 of the Constitution. The High Court has illegally set aside findings of fact recorded by the Wakf Tribunal. The reliance was placed on Chandavarkar Sita Ratna Rao Ashalata S. Guram. It was also argued that in petition under Article 226 or 227 of the Constitution, no interference is permitted in tenancy matter. Reference was made to Ganpat Ladha v. Sashikant Vishnu Shinde to support the said contention. The surrender of possession of the tenanted premises by defendant No. 1 was not of a business of joint Hindu family but of the tenancy which was not been carried out for large number of years even as admitted by the plaintiff. Even if it was assumed that defendant No. 1 was a Karta of the joint Hindu family, he had the right to surrender the tenancy without the consent of the other coparcener as such surrender was for the benefit of the family inter-alia for the reason that no business was carried out for the last many years.
- Appellant submitted that he had been inducted as a tenant on a monthly rent of 600.When the grandfather along with others broke the lock of the suit premises and removed the belongings available in the shop. The father of the plaintiff went to the Police for lodging of the report but they refused to register the case. A complaint was subsequently filed in the court of Chief Judicial Magistrate, Patna, which is stated to be pending. Later, the plaint was amended and the present appellant was impleaded as defendant alleging that the lease in her favour by the Wakf Board is forged, fabricated, anti-dated and collusive paper. Subsequently, the appellant had been inducted as a tenant on a monthly rent. In a separate written statement filed on behalf of defendant No.1 and 2, it was asserted that defendant No. 1 was making payment of rent to the landlord Mutawalli of the Wakf and that he had surrendered the shop premises on 31.5.1996 to the landlord/Mutawalli of the Wakf as he was unable to continue the business due to old age. It was denied that the plaintiff and his father went to lodge FIR on account of opening of the locks by defendant. It was asserted that the plaintiff had no occasion of claiming the shop on 21.3.1996 as the said shop was never in his possession nor under his lock and key.
SUBMISSION BY THE DEFENDANT
- Defendant submitted that Salimuddin was the duly appointed Mutawalli of the Janki Bibi Wakf and the appellant is a tenant duly inducted by the Management Committee. It was also pleaded that the defendants had no knowledge that Ram Sewak Ram was carrying any business of hotel but that Devendra Prasad Sinha was a tenant in the suit premises who had surrendered his tenancy rights in favour of Md. Salimuddin through a written letter dated 31.5.1996 and thereafter handed over vacant possession of the premises.
JUDGEMENT
The Supreme Court held that mere payment of rent by great grandfather or the grandfather of the plaintiff can raise no presumption that It was a joint family business. The Court further held that the letter of the surrender of tenancy cannot be held unreliable merely because the signatures in the translated copy do not tally with the Urdu. Furthermore, it cannot be held unreliable on the basis of the statement of the plaintiff who was not even part of the transaction. The supreme court held the letter of the surrender of tenancy document was validly proved and accepted by the Wakf Board. Therefore, the same was for the benefit of the Joint Hindu family. The Supreme Court concluded by holding The order of the High Court is set aside and that of the Wakf Tribunal is restored with no order as to costs.
RATIO DECIDENDI
The evidence produced by the plaintiff is payment of rent by either Ram Sewak Ram or by the grandfather of the plaintiff. Such payment of rent is not indicative of the fact that the hotel business was of the joint Hindu family. In the judgment of the case- G. Narayana Raju (Dead) by his Legal Representative v. G.Chamaraju & Others – AIR 1968 SC 1276, the SC has held that there is no presumption under Hindu law that business standing in the name of any member of the joint family is a joint business even if that member is the manager of the joint family, unless it could be shown that the business in the hands of the coparcener grew up with the assistance of the joint family property or joint family funds or that the earnings of the business were blended with the joint family estate.The SC has also held in the judgment of the case P.S Sairam & Another v. P.S. Rama Rao Pissey & Others that so far as immovable property is concerned , there would be a presumption that the same belongs to joint family , provided it is proved that the joint family had sufficient nucleus at the time of its acquisition, but no such presumption can be applied to a business. Thus, mere payment of rent by great grandfather or by the grandfather of the plaintiff raises no presumption that it was a joint Hindu family business. The HC has clearly erred in law to hold so without any legal or factual basis.Even if Devendra Prasad Sinha is considered to be representing the joint Hindu family, while running the hotel business in the tenanted premises , the question as to the act as Karta to surrender of tenancy was for the benefit of the joint Hindu family. The challenge in this appeal was to an order passed by the Patna High Court on February 6, 2013 whereby a writ petition filed by respondent no.4 herein (the plaintiff) was allowed, holding that the tenant in the premises in question was representing a joint Hindu family and that the Karta was not competent to surrender the tenancy rights in favour of the respondent- Bihar State Sunni Wakf Board and consequently the induction of the appellant as a tenant by the Wakf Board was illegal. Accordingly, a direction was issued to dispossess the appellant from the premises and to handover the vacant possession to the plaintiff.The plaintiff had started running the hotel since 1988.On account of disputes over the management, the hotel was closed and it remained so for several years. It is the plaintiff who wanted to resume the hotel business in the premises in question and thus communicated with the Wakf Board to continue the hereditary tenancy of the shop as Karta in his name. The Wakf Tribunal held that the Defendant No.1, the Devendra Prasad Sinha – the grandfather of the plaintiff was running a hotel business and had later surrendered the tenanted shop to the Mutawalli (landlord) of the Wakf. The writing on paper to surrender the possession was admitted by the witness. It was also observed that there was no oral or documentary evidence that Devendra Prasad Sinha had surrendered the premises, where he was running joint family business. The Tribunal noted that the plaintiff even did not suggest that Devendra Prasad was managing a joint family business and thus in absence of such suggestion it was difficult or rather impossible to believe that Devendra Prasad was managing a joint family business . Consequently, the Wakf Tribunal dismissed the suit.In the judgment impugned before the Supreme Court, the HC had held that the existence of joint family is established from the Ration Card issued on April 2, 1949 and from payment of rent for the period 1947-1955 that the premises were let out to joint family .The HC also rejected the surrender of tenancy on the ground that it was without the consent of other coparceners. In conclusion, the Supreme Court has held that the impugned order passed by the High Court is not sustainable for the reasons recorded in the judgment, consequently, it has allowed the appeal, set aside the judgment of the High Court and restored the Order of the Wakf Tribunal.
CONCLUSION
The suit premises was let out to Ram Sewak Ram who carried joint family hotel business in the said premises until his death in January, 1960 where after Defendant No. 1 became the Karta of the family and succeeded to the joint family business including the suit premises along with his sons and grandsons constituting the joint family, as such, without the consent of the other members of the joint family could not have surrendered the tenancy in favour of Mutawalli of the Wakf Estate through the so-called surrender letter dated 31.5.1996.” Therefore we drawn a conclusion that Where members of a joint Hindu family hold bhumidhari rights in any holding, they hold the same as tenants in common and not as joint tenants. The notions of Hindu law cannot be invoked to determine that status Where in certain class of tenancies, such as permanent tenure holders, the interest of a tenant was both heritable and transferable in a limited sense and such a tenancy could, prior to the enforcement of the Act, be described as Where in certain class of tenancies, such as permanent tenure holders, the interest of a tenant was both heritable and transferable in a limited sense and such a tenancy could, prior to the enforcement of the Act, be described as Each member of a joint Hindu family must be considered to be a separate unit for the exercise of the right of transfer and also for the purposes of devolution of bhumidhari interest of the deceased member. The right of transfer of each member of the joint Hindu family of his interest in bhumidhari land is controlled only by Sec. 152 of the Act and by no other restriction. The provisions of Hindu law relating to restriction on transfer of coparcenary land, example existence of legal necessity, do not apply any business being run by a “Karta” of a Hindu Undivided Family (HUF) would not give rise to a presumption of that being a joint business of HUF, unless there is a solid evidence in its support.
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