Kanhiya Singh Santok Singh & Ors. Vs. Kartar Singh  INSC 480 (4 March
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.1525 OF
2009 (Arising out of SLP)No.5312 of 2008) M/s Kanhiya Singh Santok Singh &
Ors. ..Appellants Versus Kartar Singh ..Respondent
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.
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.
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.
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.
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.
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.
The High Court by the impugned order rejected the application and
dismissed the appeal of the appellants as abated.
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.
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).
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:
"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)
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.
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
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.
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.
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.
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
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"
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
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.
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."
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.
We need to take note of another aspect in this matter.
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:
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."
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.
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.
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.
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.
The appeal is accordingly allowed to the extent indicated above.
There will be no order as to costs.
........................J. [Tarun Chatterjee]