Baleshwar Dayal Sharma v. Bimla Gupta & Ors

RAJIV SAHAI ENDLAW, J. NOVEMBER 06, 2017/"bs" (corrected & released on 6th January, 2018)

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 6th November, 2017. + BALESHWAR DAYAL SHARMA ..... Petitioner Through: Mr. C.S. Bhandari, Adv. Versus BIMLA GUPTA & ORS ..... Respondents Through: None. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW CM No.39567/2017 (for exemption) 1. Allowed, subject to just exceptions. 2. The application is disposed of. CM(M) 1246/2017 & CM No.39568/2017 (for stay) 3. This petition under Article 227 of the Constitution of India impugns the order [dated 24th August, 2017 in RCT No.30500/2016 of the Rent Control Tribunal (Headquarter), Tis Hazari Courts, Delhi] of dismissal of the appeal under Section 38 of the Delhi Rent Control Act, 1958 filed by the petitioner against the order [dated 19th September, 2016 in E No.65/2014 of the Court of Additional Rent Controller (ARC) (Central), Tis Hazari Courts, Delhi] holding the six respondents to have made out a ground for eviction of the petitioner (from a portion of property No.64, Gali No.2, Prem Nagar, Subzi Mandi, Delhi) under Section 14(1)(a) of the Act. 4. The order of the ARC, after holding so, listed the proceedings to determine whether the petitioner was entitled to benefit of Section 14(2) of the Act. 5. The counsel for the petitioner, on enquiry, states that the said proceedings are still underway and it has still not been determined whether the petitioner is entitled to the said benefit or not. 6. The counsel for the petitioner does not dispute that the petitioner was a tenant in the said portion of the property under one Khazan Singh who died leaving the six respondents as his daughters or that the said Khazan Singh left a Will whereunder he bequeathed the said property, a portion of which is in the tenancy of the petitioner, to his said six daughters. The counsel for the petitioner/tenant has however drawn attention to the following clauses at pages 36 and 38 of the paper book in the said Will: "I hereby GIVE, DEVISE AND BEQUEATHE my aforesaid House No.64, Prem Nagar, Subzi Mandi, Delhi, in favour of my wife Smt. Angoori Devi, for life and, thereafter the said property shall belong to and vest in my six daughters referred to above in proportion stated below. My younger daughter Mrs. Geeta Jain will get the share of 20% of the said property. The balance 80% of the property will be divided equally to my remaining five daughters, i.e. Bimla, Usha, Santosh, Munni and Anita will get 16% each. ..... 4. I appoint my son-in-law, Shri Nawal Kishre Gupta, who is married to my eldest daughter Bimla Gupta, as the executor of this my will and he shall be entitled to probate of this Will, if necessary, without furnishing security. Liability, if any, including liability to pay Income Tax, Wealth tax and any other kind of liability shall be discharged by the executor Shri Nawal Kishore Gupta out of my estate." It is not the contention that wife of Khazan Singh is alive. 7. The only argument of the counsel for the petitioner/tenant is that though on the demise of Khazan Singh the property, a portion of which is in the tenancy of the petitioner/tenant, devolved on the six respondents who sued for eviction of the petitioner/tenant but owing to the aforesaid clauses in the Will, till the property is partitioned between the six daughters or any family settlement is executed, it cannot be known as to which of the six daughters/respondents is the owner/landlord of the portion of the property in the tenancy of the petitioner/tenant. 8. On my asking, which law is the counsel for the petitioner/tenant applying, he has frankly stated "my law". 9. To say the least, the argument appals me. It is settled position in law (see Vijay Manchanda Vs. Ashok Manchanda 2010 (114) DRJ 467 SLP(C) No.8872-8873/2010 whereagainst was dismissed on 1st April, 2010 and Manita Khurana Vs. Indra Khurana AIR 2010 Del 69) that none can be compelled to partition the property and jointness is a concept of Hindu families. 10. In the present case, in terms of admitted Will of Kha