JANARDAN PRASAD Vs. GIRJA PRASAD SETH

JUDGEMENT

(1.) When this plaintiffs' Second Appeal arising out of a suit for recovery of arrears of rent, damages for use and occupation and for ejectment of the defendant-respondent came up for hearing before a learned single Judge, he referred the following question for the opinion of a Division Bench:--

(2.) The two plaintiff-appellants were minors when the property in dispute was gifted to them by their maternal grandmother. In the deed of gift which was a registered document she mentioned that their mother would manage the property of the donees during their minority. The defendant-respondent is the tenant of the property. A composite notice under Section 3 (1) (a) of the U. P. (Temporary) Control of Rent and Eviction Act (U. P. Act No. III of 1947) and Section 106 of the Transfer of Property Act was served on the defendant by the appellants' mother. Since the defendant neither paid the rent within the time permitted by law nor delivered possession of the property to the landlords the father of the plaintiffs who was their natural guardian as their next friend instituted the suit giving rise to this appeal. The claim was resisted on various grounds including certain legal pleas, inter alia that the notice served by the mother of the plaintiffs was invalid. The trial court dismissed the suit for ejectment but decreed the claim for arrears of rent in part. The lower appellate court partly allowed the plaintiffs' appeal and modified the decree for the amount realisable as arrears of rent by decreeing it for a larger sum. It held that since the plaintiffs were over five years of age in view of the provisions of Hindu Minority and Guardianship Act 1956 (hereinafter referred to as the Act), their natural guardian was their father who was alive. It was found that in the absence of any evidence on the record that the plaintiff-appellant had appointed their mother as their agent for the purpose of issuing the notice in view of the provisions of the Act the notice served by her was invalid and the defendant's tenancy had not been terminated in accordance with law.

(3.) When the appeal came up for hearing before a learned single Judge, it was argued before him that the act of issuing a notice under Section 3 (1) (a) of U. P. Act No. III of 1947 did not amount to 'disposing of, or dealing with, the property' of the minors within the meaning of Section 11 of the Act and consequently the courts below had gone wrong in holding that the notice was invalid. Relying on the decision of the Supreme Court in V. Dhanapal Chettiar v. Yasodai Ammal (AIR 1979 SC 1745) the learned single Judge held that service of a notice under Section 106 of the Transfer of Property Act was not necessary since the suit accommodation was governed by the provisions of a State Rent Control Act and thus assuming that the notice under Section 106 was invalid it would not be a bar to decreeing the claim for ejectment if the case fulfils the requirement of Section 3 of U. P. Act No. III of 1947. According to Section 2 (c) of U. P. Act No. III of 1947 "landlord" means "a person to whom rent is payable by a tenant in respect of any accommodation and includes the agent, attorney, heir, or assignee of such person." The learned single Judge appears to have been of the view that the mother by reason of the fact that she had been appointed guardian of the property of the minors by the donor could not be considered to be their agent as would appear from the following observations made in the referring order :--