KESHAR BAI Vs. DISTRICT JUDGE MATHURA

JUDGEMENT

(1.) This is a petition under Article 226 of the Consti tution challenging the order of the District Judge, Mathura dated August 30, 1978. The relevant facts are as follows: Shop Nos. 523/2 and 423/3 Jawaharganj, Mathura belonged to Surajbhan and Radha Kishan, who transferred shop No. 523/2 to Ashok Kumar and shop No. 523/3 to Srnt. Omwati Agarwal, by sale-deed dated August 14, 1978. There was no dispute that formerly Gobardhan Das and his son Phool Chand were the tenants of these shops and were carrying on business in the name of M/s. Gobardhan Das Phool Chand. In 1944, Phool Chand died leaving behind his widow Smt. Keshar Bai. Gobardhan Das died in 1954. After the death of Gobardhan Das in 1954, Ram Dayal, who claimed himself to be the adopted son of Phool Chand, continued doing business in these shops. In April, 1963, Ram Dayal entered into partnership with one Laxman Das who was not a member of the family of Gobardhan Das or Phool Chand. Both Ram Dayal and Laxman Das, continued business in these shops in the name of M/s. Ram Dayal Laxman Das, till November 9, 1971 when Ram Dayal and Keshar Bai, started a new business in one of these shops in partnership with Davendra Prasad Garg, his wife Smt. Laga Rani and Son Raj Kurnar. The rent, however, continued to be paid to the landlord in the name of M/s. Gobardhan Das Phool Chand. On 14th August, 1975, two sale-deeds were executed by Surajbhan and Radh Kishan. Through one of the sale-deeds, shop No. 52 V2 was transferred to Ashok Kumar whole by another sale-deed shop No. 523/3 was transferred to Omwati Agarwal. On Septeirber 20,1976, Smt. Omawati filed an application for release, under Section 16 read with Section 12 of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, (Act No. 13 of 1972) (hereinafter referred to as the Act), of shop No. 523/3 on the ground that since the firm M/s. Gobardhan Das Phool Chand had illegally allowed the aforesaid shops to be occupied by M/s. Ram Dayal Laxman Das, without the consent of the landlord and permission of the District Magistrate, the said shop was liable to be deemed vacant under Section 12. The landlady asserted that she required the shop for genuine need. The application was contested by Ram Dayal on behalf of Firm M/s. Ram Dayal Laxman Das. The said respondent denied that shop was vacant or could be deemed to be vacant. He alleged that in 1943, he had been adopted by the widow of deceased Phool Chand and an adoption-dead had also been written in respect of the same on 30th March, 1943. On these allegations, the case taken by the petitioners was that he was the lawful tenant of the disputed shop and the application filed by the respondent Omwati was liable to be dismissed. On 5-7-1977, the Rent Control and Eviction Officer allowed the application of Smt. Omwati Agarwal declaring vacancy of shop No. 323/3. " In the order, the Rent Control and Eviction Officer, however, observed that since the adoption of Ram Dayal had not been proved. Ram Dayal could not be treated to be a family member of Phool Chand and his possession was, thus, unauthorised. It, however, appears that another application for release on the same grounds, as those which had been taken in respect of shop No. 523/3, was filed by Ashok Kumar. The Rent Control and Eviction Officer declared the aforesaid shop also to be vacant on 7-7-1977. The line adopted was the same as in respect of shop No. 523/3. The Rent Control and Eviction Officer held that after the death of Gobardhan Das in 1954, the tenancy was inheri ted by Smt. Keshar Bai. She had no right to adopt Ram Dayal and as such, the theory of adoption set up by her was not established. The Rent Control and Eviction Officers further observed that since the adoption-deed had not been proved, the plea that Ram Dayal had been adopted could not be accepted. Against the aforesaid orders passed by the Rent Control and Eviction Officer, declaring the shops No. 523/3 and 523/2 being vacant on 5th July, 1966, and 7th July, 1977 respectively. Smt. Keshar Bai filed two objections. She asserted that in one out of the two shops business was being done in the name of M/s. Ram Dayal Laxmi Das since 1963 while in the other Davendra Prasad and Ram Dayal started business from November 9, 1971, His partnership was dissolved on 24th January, 1974. She also alleged that Ram Dayal was adopted by her with the prior permission which had been given to her by her husband during his life time. She claimed that since- partnership was not prohibited before the commencement of the New Act No. 13 of 1972, the Rent Control and Eviction Officer erred in holding the premises to be vacant on the ground of admission of person other than the family members as partners. In the mean time, however, it appears that Ram Dayal also filed two review applications under Section 16 (4) before the Rent Control and Eviction Officer. The ground taken for the review of the order was the same as those set up by Smt. Keshar Bai. By an order dated November 28, 1977, the application filed by Smt. Keshar Bai for setting aside thu orders declaring vacancy, were rejected. While rejecting the application, the Rent Control and Eviction Officer held that the only person competent to give Ram Dayal in adoption could be the father and/or mother of the child. Admittedly, Ram Dayal had no parents alive at the time of adoption in 1944. Therefore, his brother Ramji Lal, who was only 20 years of age and being below 21 years, was not competent to give Ram Dayal in adoption to Smt. Keshar Bai. Having found that Ram Dayal's adoption was invalid, the Rent Control and Eviction Officer held that he did not inherit any interest in the tenancy of Gobardhan Das Phool Chand. On the next question of partnership, the view taken was that since Keshar Bai held no interest or share in the firm M/s. Ram Dayal Laxman Prasad, her applications for recalling the orders declaring vacancy were frivolous. The plea of Section 14 of U. P. Act No. 13 of 1972 raised by Ram Dayal was also rejected on the ground that there was no evidence to show that the firm had been in occupation of the shop in' dispute with the consent of the landlord as a tenant on 15-7- 1972. After having rejected the review applications on 28th November, 1977, the Rent Control and Eviction Officer passed a release order in respect of shop No. 523/3 on 16-12-1973. Another order of the release of shop No. 523/2 was made by the Rent Control and Eviction Officer on the same day. Being aggrieved Keshar Bai and Ram Dayal preferred four revisions before the District Judge, Mathura. All of these revisions were dismissed on 30th_ August, 1978. Thereafter, the present writ petition was filed challenging the" aforesaid order of the District Judge. This writ petition was listed before Hon'ble S. P. Agarwal, J. who on having failed that the writ petition involved impor tant questions of law, referred the same to Full Bench. Thereafter, a full bench was constituted. The full bench gave its opinion on 11-2- 1980 the question referred to the full bench was "whether Clauses (a) and (b) of sub-section (1) and sub- section (2) of Section 12 of U. P. Act No. 13 of 1972 are retrospective or not. " The full bench held that Clause (a) of sub-section (1) and sub-section (2) of Section 12 were prospective but found that Clause (b) of sub-section (1) of Section 12 was retrospective. The aforesaid provisions are quoted below:- 12 (1) (a):-He has substantially removed his effects there from or (b) he had allowed it to be occupied by any person who is not a member of his family or, (c ). (2) In the case of a non-residential building where a tenant carrying on business in the building admits a person who is not a member of his family as a partner or a new partner, as the case may be, the tenant shall be deemed to have ceased to occupy the building. Sri R. N. Bhalla, counsel for the petitioners, however, raised the following points before me: That the Rent Control and Eviction Officer being an authority having limited jurisdiction, could not decide the question of validity or invalidity of adoption of Ram Dayal, the petitioner, and hold it to be invalid. In the alternative, counsel contended that the finding of invalidity of adoption was erroneous. The second argument was that Ram Dayal, being in possession of the disputed shops on the 15th July, 1972, was entitled to the regularization of his tenancy under Section 14 of U. P. Act No. 13 of 1972. The third argument was that the District Judge and the Kent Control and Eviction Officer erred in holding the shops to be vacant on erroneous ground that the require ments of Clause (b) of sub-section (1) of Section 12 had beed made out. The first question that may now be considered is whether Rarn Dayal had been adopted by Smt. Keshar Bai and was this adoption valid. The objects of the adoption are two-fold. The first is religious and the second is secular. For a valid adoption there are basic requirements. Some of those requirements are:- (i) the person adopting is lawfully capable of taking him in adoption. (ii) the person giving is lawfully capable of giving in adoption. (iii) the person adopted is lawfully capable of being taken in adoption. (iv) that the adoption is completed by an actual giving and taking. In the instant case, Keshar Bai's allegations were that during his lifetime her husband had authorised to adopt a son. On the basis of the authority given to her, she adopted Ram Dayal. A widow can be given an authority to adopt by her husband. The authority may be given verbally or in writing. To prove the theory of authority, Smt Keshar Bai filed her own affidavit and also the copy of the adoption-deed which was registered in March, 1943. The adoption-deed mentions that the authority had been conferred on the widow to adopt. She pleaded that it is in pursuance of this authority that Ram Dayal had been adopted. The case of the landlords, however, was that Smt. Keshar Bai had no authority to adopt and secondly that Ram Dayal being orphan could not be given in adoption. The other ground taken in this connection was that Ramji Lal, the brother of Ram Dayal, was not entitled under the law to give his brother in adoption. The Rent Control and Eviction Officer gave different findings on different occasions. In his judgment dated 5th July, 1977, the Rent Control and Eviction Officer, found that ceremonies of giving and taking had not taken place. But in the subsequent judgment, he held that since the adoption-deed had not been filed, the theory of ad option could not be accepted while on another occasion disposing of the review application, the Rent Control and Eviction Officer found that the brother Ramji Lal was incompetent to give Ram Dayal in adoption. The learned District Judge, however, was of the opinion that since an orphan could not be adopted, the adoption of Ram Dayal was invalid. After having heard counsel for the parties, I find that the law, on the question that the adoption of an orphan is not valid, is settled. Mulla in 'hindu Law' at page 551 dialing with this controversy said that the adoption of an orphan is not valid except by custom. Another aspect which is required to be mentioned was that the only persons who could lawfully give the boy in adoption were his father and his mother. In the instant case, Ram Dayal had been given in adoption by his brother Ramji Lal. Lnder the Hindu Law, one brother could not give another brother in adoption. The primary right to give in adoption is that of the father. Counsel for the petitioners drew my attention to the objection filed as Annexure 5 to the writ petition and contended that since the adoption of an orphan was permissible by a custom of the family or caste to which the petitioners belong, the finding given to the contrary by the authorities below was erroneous. It may be true that an adoption though prohibited by rule, is invalid, could be recognised by custom, but the petitioners brought no evidence on record to prove the custom. The custom according to the submission of the petitioner's counsel, permitted Smt. Ksshar Bai who adopted Ram Dayal, who was orphan. In the absence of any evidence, it is not possible to uphold the submission. It is admitted on all hands that the principle of factum valet did not apply to such a matter. What was necessary, therefore, by the petitioners, was to bring evidence on record to establish that the adoption of an orphan was permitted by the custom prevailing in his family or community. The further requirement was to establish that the custom of giving of a brother in adoption by another brother was also in vogue. The second question that was required to be considered was about the applicability of Section 14 of U. P. Act No. 13 of 1972. Section 14 of the aforesaid Act had been amended by the U. P. Act No. 28 of 1976. This section provides for regularization of occurrence' of existing tenants. As it stood on the date of enforcement of U. P. Act No. 13 of 1972, it enabled a tenant in occupation of a building with the consent of the landlord imme diately before the commencement of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 to get his occupation regularised. The learned District Judge held that the petitioner Ram Dayal was not entitled to regularization of his occupation on the ground that there was nothing to show that the previous landlords by their conduct or by any act on their part ever accepted Ram Dayal or M/s. Ram Dayal Laxman Das or Mis. Devendra Prasad Ram Dayal as tenants of the shops. From the fact of payment of rent of these two shops in the name of original tenant M/s. Gobardhan Das Phool Chand, the learned District Judge concluded that Ram Dayal was not entitled to get the benefit of Section 14. It may be noted here that the benefit of Section 14 had been claimed by Ram Dayal in his individual and personal capacity. It was correct that the business in the two shops was being done in the names of Ram Dayal Laxman Prasad and Davandra Prasad Ram Dayal but the benefit could not be given to the firms. A firm is not a juristic person It is only a convenient name to call a group of persons by a common name. The firm, therefore, was neither entitled to the benefit of Section 14 nor was any benefit claimed on its behalf. The benefit had been claimed by Ram Dayal. The Rent Control and Eviction Officer rejected the prayer of regularisation of occupa tion by holding that since there is no evidence to show that the firm had been in occupation of the shops in dispute with the consent of the landlords on 13-7-1972, the date of commencement of U. P. Act No. 13 of 1972, on 5th July, 1976, the date of commencement of amending Act of 1976, so the firm M/s. Ram Dayal Laxman Prasad would not be protected under Section 14. To the same effect was the conclusion arrived at by the learned District Judge. Section 14 of U. P. Act No. 13 of 1972 uses the expression 'consent'. The expression 'consent' means voluntary agreement by a person in the possession and exercise of sufficient mentality to make an intelligent choice to do some thing proposed by other (See Black's Dictionary ). Consent is an act of active acquiescence, an active circumstance of concurrence. Sometimes consent is synonymous merely with waiver. It can be express or implied. An ex press consent is that which is declaration given, either viva voca or in writing. It is positive, direct and unequivocal consent. Implied consent, to the contrary, is that which is manifested by signs, acts or facts, or by inaction or silence, which raised a presumption that the consent has been given. In the present case, the word 'consent' has to be understood as implying within its ambit both express and implied consent. For invoking Section 14, the tenant need not establish express consent. Section 14 can be taken advantage of, even by a person who is liable to demonstrate that he had implied consent of the landlord in his favour. In the present case, the learned District Judge refused to give the benefit of Section 14 to Ram Dayal on the ground that the receipts were given by the previous landlord in the name of Gobardhan Das Phool Chand. From the fact of issuing receipts to the said firm, the learned District Judge concluded that the landlords did not know the actual position regarding changes in the family of original tenants. This view of the learned District Judge appears to be erroneous. On the same ground, the Rent Control and Eviction Officer also found that Section 14 was not applicable. A firm is not a person. It is not a legal entity. It is merely a compend ious form of the relationship between the partnership. Firm means name, title or style under which a company transacts business. Accordingly, what was required to be found by the Rent Control and Eviction Officer and also the learned District Judge as about the persons who were manning the partners of the firm M/s. Gobardhan Das Phool Chand. If it was the sole proprietory concern, then its consequences. In Malabar Fisheries Co. v. /. T. Commissioner Kerala, A. I. R. 1980s. C. 176 the Supreme Court held: ". . . . . . . . . and equally in law the firm as such has no separate rights of its own in the partnership assets when one talks of the firm's property or firm's assets all that is meant is property or assets in which all partners have a joint or common interest. " If an enquiry on that question would have been made, the authorities would have found the persons who were occupying the premises on the relevant dates. It was, thereupon, that the authorities should have examined as to whether Ram Dayal was entitled to the benefits of Section 14. In Dr. (Mrs ). Cyan Thappa v. District Judge, 1978 U. P. Rent Control Cases, 677 this Court held that the legal fiction created by Section 14 of the Act could be taken help of by a person who had entered into a possession of a premises with the consent of the landlord. The expression of occupation used in Section 14, was interpreted to mean as including a case of control over the property. From this angle, the Court below having not considered the question of Section 14 of U. P. Act No. 13 of 1972, their judgments are liable to be set aside. The Rent Control and Eviction Officer may consider the said question and if asked for, it could also give an opportunity of adducing evidence to the parties on this controversy. The judgments of the two authorities are liable to be quashed on account of holding that the two shops were liable to be treated as vacant under Section 12 (2) of U. P. Act No. 13 of 1972. Section 12 (2) has been held to be prospective. It did not apply to taking of persons as partners before coming into force of U. P. Act No. 13 of 1972. Since the two autho rities thought that Section 12 (2) applied to the present case also, they did not give any clear finding on the applicability of Clause (b) of sub-section (1) of Section 12. The Rent Control and Eviction Officer is now directed to consider the case of deemed vacancy by confining himself to Clause (b) of sub-section (1) of Section 12. For what I have said above, the judgments of the two authorities are liable to be set aside. It may be observed here that I have given a finding above that an orphan could not be adopted. This question has been decided for a limited purpose of this case. It will not effect the right of Ram Dayal in other respects. In the result, the writ petition succeeds and is allowed. The judgment of the District Judge dated 30th August, 1978 and those of the Rent Control and Eviction Officer dated 5-7-1977, 7-7-1977, (Annexures 8 and 10), the release orders passed by the Rent Control and Eviction Officer, Mathura dated 16-12-1977 (Annexures 13 and 14) are quashed. The rent control and eviction Officer is directed to reconsider the questions pointed out above. In the circumstances, the parties shall bear their own costs. .