DAULAT RAM Vs. KALAVATI DEVI

JUDGEMENT

(1.) This second appeal has arisen from the judgment passed by the Additional District Judge, Delhi, thereby reversing the judgment and 473 decree of the Trial Court and directing the appellant to vacate the shop under his occupation. The appellant Shri Daulat Ram (defendant No. 2 before the Trial Court) has challenged the judgment of the first Appellate Court on the grounds that respondent No. I herein (plaintiff before the Trial Court) was not the owner of the shop in question, in fact her husband, respondent No. 2 herein (defendant No. I before the Trial Court) was the actual owner. The respondent No. I was only Benami and that these two respondents in collusion with each other in order to evict the appellant from the shop in question filed the suit. That the partnership between him and the respondent No. 2 was never acted upon. He was in fact inducted as a tenant by respondent No. 2 and being a tenant he was protected by the provisions of Delhi Rent Control Act. Civil Suit was not maintainable.

(2.) In order to appreciate the contentions of the appellant, brief facts of the case are that respondent No. I (plaintiff before the Trial Court) filed a suit for mandatory injunction against the appellant and her husband, respondent No. 2 herein with direction to vacate the shops under their possession. She proclaimed herself to be the owner of the shops as the same were purchased by her from Shri 0m Prakash, vide registered sale deed dated 10th December,1959. She allowed her husband, respondent No. 2 herein to use these shops which were in front portion of the property. Her husband was running his radon shop in two shops and in the third shop, he started business in partnership with the appellant. Vide notice dated 14th July, 1967, she terminated the licence of use and occupation of her shops by her husband and the appellant and called upon them to remove the goods lying in these three shops and handover vacant possession. The respondent No. 2 herein admitted the claim of the plaintiff and sought time to handover the possession. However, the appellant herein contested the suit and denied the title of the plaintif to the property in question. According to the appellant, plaintiff was only Benami, actual ownership vested in defendant No. I, her husband. Her husband had been projecting before the appellant to be the owner of the property. As owner he was dealing with the appellant. Wife/ plaintiff remained silent spectator to the dealings her husband had with the appellant She never raised any objection. Hence she acquiscence to the acts of her husband claiming himself to be the owner of the property in question. It was her husband who had been recovering the rent from the appellant. She at no stage asserted herself to be the owner, nor ever refuted her husband's being projected as owner of the property. Hence, she is estopped from alleging to be the owner of the property. The Trial Court rightly concluded the husband to be the owner and the plaintiff only to be Benami. The first Appellate Court without appreciating the evidence on record set aside the findings of the. Trial Court, hence the decision of the first Appellate Court is erroneous on the face of it and against the facts which have come on record. In fact the respondent No. I (plaintiff before the Trial Court) had no independent source of income nor she could have purchased this property. It is in fact the husband who paid the money before the Sub-Registrar and purchased the property in the name of his wife. He was already owner of the other half of the property and being the owner of the other half he purchased this portion of the property in the name of his wife. Husband of the plaintiff inducted the appellant as tenant on a monthly rent of Rs. 100.00 . lt was respondent No. 2 (defendant No. I before Trial Court), who on account of nonpayment of rent, filed a suit earlier against the appellant. The respondent No. 1 474 (plaintiff before the Trial Court) was a consenting party to all these dealings. Now, she cannot be allowed to say that the appellant was a licencee with repondent No. 2 (Defendant No. I before Trial Court). The first Appellate Court without considering these aspects reversed the finds of the Trial Court. Even the finding of the first Appellate Court that on termination of the licence of respondent No. 2 (defendant No.l before Trial Court), the tenancy of the appellant stood automatically terminated is against law. These observations are contrary to the facts and against the law, hence this appeal.

(3.) At the outset, it must be understood that under Section 100 of the Code of Civil Procedure, the appeal to this Court would lie only if it involves substantial quesion of law. What we have .to see is whether in this appeal any substantial question of law has been raised. Contention of Mr. Rohtagi that since the Respon- dent No. I (plaintiff before the Trial Court) was Benami owner and it was in fact her husband who being the real owner inducted the appellant as the tenant, hence the appeal arises substantial question of law regarding benami ownership. I am constrained to say that this argument is without force. When the appeal was filed in the year 1974 Benami Transaction (Prohibition) Act,1988 (hereafter called the Act) had not come on the Statute Book. Therefore, at that time, it may have been a substantial question of law, but now on account of the Act coming into force, the appellant's plea that respondent No. I (plaintiff before Trial Court) was Benami of her husband in respect of the property in question cannot be put to issue being prohibited under Section 4 of the said Act. The question of respondent No. 2 (defendant No. I before Trial Court) having purchased the propertyin the name of his wife is no more open to the appellant in view of the prohibition under the Law created by the Act. Hence, to my mind, it is not open nor permissible for the appellant to urge that respondent No. I (plaintiff before the Trial Court) was not the owner of the property. The Act is retrospective in operation and would apply to even pending cases. Hence, the plea of Benami ownership cannot be allowed to be agitated in this second appeal. Even otherwise sufficient evidence has come on record which establishes beyond doubt that the property in question was purchased by the respondent No. I (plaintiff before the Trial Court) and that respondent No. 2 her husband was only managing the same. In the case of Kanakarathanammal, v. V. S. Loganatha Mudalia and Anr. AIR 1965 SC 271 the Supreme Court observed that when the property is purchased by the wife it cannot be held to be benami for husband even though consideration for sale transaction proceeded from husband. The fact that husband was in possession and managing the property or that he was receiving the rent does not affect the position that the property was purchased by the wife. In ordinary Hindu families property belonging exclusively to a female member is normally managed by the manager of the family and in this case the husband acted as a manager for the wife. Therefore, the contention of the appellant that the respondent No. I herein (plaintiff before the Trial Court) was only a benami has no force. On merit also the appellant has no case. Even otherwise a finding of fact by the first Appellate Court is not to be interfered in the second appeal particularly when that finding is based upon an appreciation of relevant evidence. There is no jurisdiction to entertain a second appeal on the grounds of erroneous finding of fact, however gross error may seem to be. It has come on record that respondent No. I (plaintiff before the Trial Court) 475 purchased this property with her own savings and also took loan from her brother, who appeared as her witness and supported her version. He reiterated that he gave loan to respondent No. I (plaintiff before the Trial Court) to purchase this house. Her husband, however, accompanied him before the Sub Registrar for registration of the Sale Deed of the property which was purchased by respondent No. I (plaintiff before the Trial Court). The respondent No. I (plaintiff before the Trial Court) at no stage gave impression that she was not the owner. When partnership transaction took place between the appellant and respondent No. 2, (the plaintiff) respondent No. I herein, was not present then therefore, it cannot be said that she acquiscenced in any manner. Moreover, in order to create an estoppel there must be a duty owning by the person to speaker to act which she failed to perform. There must be something like wilful misleading on her part by some breach of duty. She neither mislead the appellant nor duty was caste upon her speak at any stage. The reliance of the Counsel for the appellant, on the decision of the Supreme Court in the case of Syed Abudl Khader v. Rami Reddy and Others reported in AIR 1979 SC 553 is misplaced. In that case, the Supreme Court was dealing with the facts where owner of the immovable property allowed transfer of his property by another person proclaiming himself to be the owner, the sale was effected and entered into in the presence of the owner and still he never raised any objection. It was considered to be implied consent. Hence held that such an owner was estopped by his conduct from challenging the sale.That is not the case in hand. Patnership transaction between appellant and her husband never took place in her presence nor her husband proclaimed himself to be the owner in her presence. It had all along been the case of respondent No. I (plaintiff before the Trial Court) that the appellant was inducted as a partner of her husband in the third shop. That her husband was given licence to run the shops and that the partnership was also not entered into her presence. However, she was informed about the same subsequently. Therefore, there was no question of giving her implied consent of the appellant to be inducted as a tenant by the respondent No. 2 (defendant No. I before Trial Court). In fact, being not a party to the transaction between the appellant and respondent No. I nor having enjoyed the benefits of that transaction she cannot be forced to be bound by the terms of such a contract. It is only when she had been a party to the contract and enjoyed the benefits of the same, she could have been forced to adhere to the terms of such a contract. Neither by word of mouth nor by any of her conduct she conveyed to the appellant that not she but her husband was the real owner. Hence, neither principle of estoppel noracquiscence, will apply to the facts of this case. For the question of acquiscence it is not enough to show the abstainance from interference by the lessor, but he should prove something more namely that by implication the respondent No. I (plaintiff before the Trial Court)granted the superior right claimed by him. Nothing of this sort has been proved on record. Hence, contention of the appellant on this account merits rejection.