Supreme Court of India
M/S KANHIYA SINGH SANTOK SINGH & ORS.versusKARTAR SINGH
- Citation
- 2009 INSC 313
- Decided
- 4 March 2009
- Disposal
- Case Partly allowed
- Bench
- TARUN CHATTERJEE
Holding
The question of the appellants' status as "tenants" under the Act is a factual issue that must be determined by the trial court, and therefore the matter is remitted for evidence.
Summary
The dispute concerned a shop in Kishangarh where an eviction suit was filed against the tenant, late Santok Singh, and his firm. Santok Singh died during the pendency of a second appeal, and his two sons applied to be substituted as his legal representatives under Order 22 Rule 3 of the CPC, invoking section 3(vii) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. The Rajasthan High Court dismissed the application and held the appeal abated, finding the sons were not "tenants" within the meaning of the Act. The Supreme Court examined whether the sons qualified as legal representatives, noting that the statutory requirement is that heirs must have been ordinarily carrying on business with the deceased as family members up to his death. Because the factual position regarding their business involvement was ambiguous, the Court set aside the High Court judgment, remitted the matter to the High Court to direct the trial court to take evidence, and partially allowed the appeal.
Issues considered
- Whether the two sons of the deceased tenant can be substituted as his legal representatives under Order 22 Rule 3 CPC in view of section 3(vii) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950.
Legislation cited
- Code of Civil Procedure, 1908s. Order 22 Rule 3, s. Order 22 Rule 5
- Rajasthan Premises (Control of Rent and Eviction) Act, 1950s. 3(vii)
Subjects
evictionsubstitution of legal representativestenantjoint Hindu familypartitionOrder 22 CPCRajasthan Premises Actsecond appealabated appeal
Judgment
[2009] 3 S.C.R. 1111
MIS KANHIYA SINGH SANTOK SINGH & ORS. A
v.
KARTAR SINGH
(Civil Appeal No. 1525 of 2009)
MARCH 4, 2009
B
[TARUN CHATTERJEE AND AFTAB ALAM, JJ.]
-+
Code of Civil Procedure, 1908 - 0.22 r.3 - Substitution
of legal representatives - Eviction decree against tenant and
his firm - Death of tenant during pendency of second appeal c
- Application for substitution of legal representatives of
deceased - Dismissal of application and abatement of
second appeal as applicants not tenant uls. 3(vii) since they
were not ordinarily carrying on business as members of family
of deceased till time of his death - On appeal, held: Status D
.f
of appellants as tenants was ambiguous - Hence, matter
remitted to High Court- Rajasthan Premises (Control of Rent
and Eviction) Act, 1950 - s. 3(vii).
The question which arose for consideration in this
E
appeal was whether the two sons of the deceased-tenant .
could be substituted as his legal representatives under
{
0. 22 r. 3 CPC to prosecute the second appeal filed by
deceased against the eviction decree, pursuant to the
provisions of s. 3 (vii) of the Rajasthan Premises (Control
of Rent and Eviction) Act, 1950. F
Partly allowing the appeal, the Court
HELD: 1.1 Considering the ambiguous position as
regard the appellants relating to their status as tenants, G
it was necessary for the High Court to remit the matter
to the trial court for a proper determination of the factual
aspects. [Para 13) [1119-B]
1111 H
1112 SUPREME COURT REPORTS [2009] 3 S.C.R.
A 1.2. Even if it is proved that the appellants were
carrying on business with the original tenant late SS, this
would not fulfill the requirements laid down under section
3 (vii) of the Rajasthan Premises (Control of Rent and
Eviction) Act, 1950 which necessitates that the heirs and
B legal representatives of the tenant should have been
carrying on business with him as his family members
upto the time of his death. The submission that going by
the settlement arrived at by the family it is amply clear that "
the family had partitioned and the brothers were living
c independently of late SS and running their own business,
cannot be accepted at this stage. 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 SS. It is evident from the settlement deed that at
0
the time of the execution of the said document, the *
appellants were minors and it was signed by SS 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
E members of the family. Thus the said document indicated
shares of each party in the business to be carried on. 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 illustrates that the settlement was for
F the partition of capital of the business and not the
business in itself. It is evident that the appellants were the
members of the same family to which late SS belonged.
The only thing that needs to be determined is whether
they were ordinarily carrying on business at the time of
G his death. This should be decided by the trial court
according to the provisions of 0. 22 r. 5 CPC by .,
production of oral and documentary evidence before the
trial court. [Para 14] [1119-E, F, G, H; 1120-A,B; 1120-E]
H 1.3. The impugned Judgment of the High Court is set
M/S KANHIYA SINGH SANTOK SINGH & ORS. v. 1113
KARTAR SINGH
~
aside. The matter is remitted back to the High Court, who A
in turn, would direct the trial court to take evidence in the
manner indicated 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 1 thereafter may be sent back to the High Court 8
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. [Paras 16 and 17)
[1121-B; 1122-C, DJ
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
c
1525 of 2009.
From the Judgment & Order dated 10.01.08 of the High
Court of Judicature for Rajasthan, Jaipur Bench, Jaipur in S.8.
_, Civil Second Appeal No. 486/2002. D
Sushil Kr. Jain, Puneet Jain, Ashwin Kothmath and
Pratibha Jain for the Appellants.
Shobha, Harish Sharma and Ramesh Pd for the
Respondents. E
The Judgment of the Court was delivered by
TARUN CHATTERJEE, J. 1. Leave granted.
2. This appeal is directed against the final judgment and F
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 G
drawn legal battle between the parties, and dismissed 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 : - H
1114 SUPREME COURT REPORTS [2009] 3 S.C.R.
A The dispute relates to a shop situated at Madanganj, •
Dii;trict 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
B had already separated during the lifetime of the father of the
apipellants 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
C outlet business. On 24th of February, 1997, the respondent filed
•
a ~uit for eviction against the father of the appellants Late
Santok Singh (since deceased) and the firm owned by him
namely Mis Kanhiya Singh Santok Singh on the ground of
bonafide requirement. By an order dated 30th of July, 1997,
the Additional Civil Judge, Kishangarh, held that the respondent
D had failed to prove his bonafide requirement and, therefore,
dismissed the suit. Thereafter, the respondent filed a first
appeal before the Adqitional District and Sessions Judge,
Kishangarh, Ajmer. On 5th of October, 2002, the First Appellate
Court allowed the appeal and decreed the suit for eviction
E 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.S. Civil Second Appeal No. 486 of 2002.
F
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
G had already separated from the joint family and started a
bu$iness of his own. On 26th of October, 2006, the appellants
filed an application for being substituted under Order 22 Rule
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
H
M/S KANHIYA SINGH SANTOK SINGH & ORS. v. 1115
KARTAR SINGH [TARUN CHATIERJEE, J.]
.\ members of his family till the time of his death . A
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. B
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 c
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
D
~ 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 section 3 (vii) of the
Rajasthan Premises (Control of Rent & Eviction) Act, 1950
(hereinafter referred to as the "Act" in short).
E
10. Before delving further into the issue, it is necessary to
reproduce the above mentioned section, namely section 3 (vii)
"i of the Act which runs as under:
-
3 (vii): "tenant" means-
F
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 G
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, H
1116 SUPREME COURT REPORTS [2009] 3 S.C.R.
A 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
B 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
~espondent however contended at the first instance that the
c •ppeal in this Court itself is not entertainable as the appellants
¢annot be substituted as legal representatives of late Santok
$ingh 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 hadl died during the pendency of the
D Second Appeal, the Second Appeal filed by him before the t
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
E 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 r
contended that a partition had already taken place by way of
F 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. Therefore,
the appellants were not ordinarily carrying on business as the
members of the family of late Santok Singh till the time of his
G 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
l~gal representatives would become tenants in case of
premises leased out for commercial or business purposes, who
H were ordinarily carrying on business with late Santok Singh as
MIS KANHIYA SINGH SANTOK SINGH & ORS. v. 1117
KARTAR SINGH [TARUN CHATTERJEE, J.]
-t members of his family upto his death. It is relevant to mention A
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. B
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 August, 1974 and the members
of the family including the appellants had started their own c
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 D
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 E
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 F
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, G
"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 H
11'18 SUPREME COURT REPORTS (2009) 3 S.C.R.
A 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
th~ time of his death or not. On one hand, it is apparent that
one son namely Balbeer Singh had a separate business, but
B the status of the other two sons cannot be ascertained clearly
frorn the records before us. The fact that one of 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
c other being that the appellant Man Mohan Singh was only
working as an employee in the shop of his father, his
de$ignation 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
bu$iness for which they could not fall under the category of
0
"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
E 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 permitting the parties ...
to adduce evidence, under the provisions of Order 22 Rule 5
of CPC, which deals exclusively with the determination of
F 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
G 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
H
M/S KANHIYA SINGH SANTOK SINGH & ORS. v. 1119
KARTAR SINGH [TARUN CHATIERJEE, J.]
~
Appellate Court, that Court may, before determining the A
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." B
·" 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 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
c
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.
+ D
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 E
- 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 F
~-
brothers were living independently of late Santok Singh and
running 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
G
f 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
H
1120 SUPREME COURT REPORTS (2009] 3 S.C.R.
A it was signed by Santok Singh himself on their behalf. Moreover,
it is apparent that the said document only distributed the capital ,..
of th¢ business and did not in any way divide the business
among the members of the family. Thus the said document
indic$ted shares of each party in the business to be carried
B 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 that ~
the settlement was for the partition of capital of the business
and not the business in itself. The above mentioned statement
c 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
D 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
E 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
acco~ding to the provisions of Order 22 Rule 5 of CPC as has
already been stated here by production of oral and
F 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 matter and
also of the High Court, would not be taken as conclusive and it
woulcj be open to the court to come to a finding without being
G 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
H court which may be permitted to be produced and the trial Court
M/S KANHIYA SINGH SANTOK SINGH & ORS. v. 1121
KARTAR SINGH [TARUN CHATTERJEE, J.]
-I
shall also permit the parties to adduce evidence in support of A
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.
B
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 evidence in the manner c
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
-'t and the evidence that would be adduced and already on· record D
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 E
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 F
weeks from the date of receipt of a copy of an order of the High
Court to it.
18. The appeal is accordingly allowed to the extent
indicated above. There will be no order as to costs.
G
\.- N.J. Appeal partly allowed.
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