DR RS GREWAL & Ors. v. CHANDER PARKASH SONI & Anr.

R. K. Dhawan, V. K. Teng, Ms. Richa Dhawan, Anuj Chaturvedi, Ms. Kanika Greval, M. A. Chinnasamy, Advs. for the Appellants. Dr. Krishan Singh Chauhan, Ajit Kumar Ekka, Chand Kiran, Ravi Prakash, S. P. Singh, Advs. for the Respondents. The Judgment of the Court was delivered by DR. DHANANJAYA Y CHANDRACHUD, J.

#1. This appeal arises from a judgment of a learned Single Judge of the High Court of Punjab and Haryana at Chandigarh dated 21 January 2016 in a second appeal. The High Court reversed the judgment and the decree of the trial Court, which was confirmed in first appeal, by which a suit for possession of certain property in the occupation of the defendants as tenants had been decreed.

#2. Dr Hira Singh was the owner of a residential house (shown in the site plan filed together with the suit) together with some shops constructed on property bearing Municipal No B-XX-69 (Old) 515 (New) at College Road, Civil Lines, Ludhiana. The family pedigree is depicted below: Late Dr. Hira Singh (Died in 1945) Late Lt. Col. Dr. Shiv Dev Singh Grewal (Died on 14.08.1968) Late Dayawant Kaur (Died in 1922) Late Dr. Shiv Dev Kaur (issueless widow) (Died on 15.02.1988) Late Dr. Jaswant Kaur (Died issueless) Late Dr. J. S. Grewal (Issueless, widower) (Died on 09.07.1993) Dr. R. S. Grewal Dr. Gagandeep Ramandeep Er. Amandeep A B C D E F G H 134 SUPREME COURT REPORTS [2019] 6 S.C.R. A B C D E F G H On 16 September 1944, Dr Hira Singh executed a will by which he bequeathed his property to his son, Shiv Dev Singh Grewal, subject to a right of residence for his widowed daughter, Shiv Dev Kaur Grewal in the property situated at Civil Lines, Ludhiana. The will contains the following recital: “I own a kothi on Iqbal Road opposite to Govt. College in Civil Lines. I have myself purchased its land and I also reside in this Kothi and some outer portion thereof has been given on rent.” The testator made a disposition in the following terms in favour of his son: “After my death, my son Shivdev Singh will be the absolute owner of my property, mentioned above, situate in village Gujarwal i.e. land and houses owned by me as well as the mortgaged land. My son Shivdev Singh will also be the owner of the money which is due to me.” The will adverted to the fact that some portion of the property at Civil Lines was in the occupation of tenants. According to the will, the rent recovered was to be spent for the education and maintenance of a young child - Shiv Charan Kaur, who was brought up by the testator. A life interest in the property at Civil Lines was created in favour of Shiv Dev Kaur, the daughter of the testator in the following terms: “My daughter Bibi Shivdev Kaur will get this Kothi situated on Iqbal Road till her life time subject to the abovesaid rights of Bibi Shiv Charan Kaur and that after my death Shivdev Kaur would be entitled to settle and reside in this Kothi as and when necessary and can spend the income from rent on herself. But these rights shall ensure to her till her life time. She will not be entitled to transfer or burden this Kothi along with the attached land nor could she mortgage, gift the same, nor could she sell or exchange it. This Kothi shall also be the sole ownership of my son Shivdev Singh subject to the above mentioned rights. Through this will I appoint my aforesaid son Shivdev Singh as my executor but he shall act according to the recitals in this will and shall arrange for the maintenance and marriage of Bibi Shiv Charan Kaur and after recovering the rent of the concerned portion of the Kothi, he shall spend the same in accordance with the above mentioned directions.” DR RS GREWAL v. CHANDER PARKASH SONI [DR. DHANANJAYA Y CHANDRACHUD, J.] 135 The testator’s son, who was a legatee under the will, was also appointed as an executor. The testator died in 1945. His son died on 14 August 1968. The first appellant is the grandson of the testator, while the second and third appellants are the sons of the first appellant.

#3. A suit for possession was instituted by the appellants and by proforma respondent no 2 against the first respondent in the Court of the Civil Judge, Senior Division, Ludhiana. The first respondent is a tenant inducted by Shiv Dev Kaur Grewal. The foundation of the suit was that Shiv Dev Kaur Grewal was only entitled to a life interest in the property in terms of the will executed by her father and upon her death the appellants were entitled to possession of the shop from the defendant. The plea that was set up in paragraphs 14 and 15 of the plaint was in the following terms: “14 That Dr Shivdev Kaur Grewal has died on 15.2.1998 and on her death her right to live in the main kothi alongwith right to utilize the usufruct of the main house and the shops came to an end. The plaintiffs became entitled to the possession of the main house and the shops came to an end. The plaintiffs became entitled to the possession of the main house as well as the shops on the main road being the owners of property No.B-XX 69 (od) 515(new), college road, civil lines, Ludhiana. 15 That defendant claims that he has taken the shop in his possession on rent as a tenant from Dr Shivdev Kaur Grewal and as such refuses to vacate the shop and deliver its vacant possession to the plaintiffs who are the real owners. The claim of the defendant is false. Defendant has no right in shop and cannot claim himself to be a tenant. Dr Shivdev Kaur Grewal had no right to let out the property. She could only enjoy the usufruct of the main house. In any case any tenancy is created by Dr Shivdev Kaur Grewal, that shall not bind the plaintiffs who are the absolute owners of the property. Without prejudice to the plea of the plaintiffs that Dr Shivdev Kaur Grewal could not let the property, it is submitted that even if any tenancy existed as being claimed by the defendant which had allegedly been created by Dr Shivdev Kaur Grewal, that comes to an end with the death of Dr Shivdev Kaur Grewal and the possession of the defendant is become unlawful only from date of death of Dr Shivdev Kaur and as such the defendant is not entitled to continue in occupation of shop as a A B C D E F G H 136 SUPREME COURT REPORTS [2019] 6 S.C.R. tenant. The alleged tenancy stood terminated and extinguished with the death of Dr Shivdev Kaur Grewal. The plaintiffs being the lawful owners are entitled to possession of the shop. The plaintiffs are being denied possession of the shop by the defendant.” In the written statement, a plea was raised that Shiv Dev Kaur was not a limited owner of the property. Moreover, it was pleaded that the defendant was in occupation as a tenant and a suit for possession was not maintainable. Assuming that the appellants had become owners as alleged, it was contended that the tenancy shall stand attorned to them after the death of Shiv Dev Kaur. On these grounds, it was urged that the suit for possession was not maintainable.

#4. The suit for possession was decreed and the first appeal was dismissed. The basis of the decree for possession was that Shiv Dev Kaur had only a limited right in the property which had not converted into an absolute ownership and hence on her death the property would revert back to Dr Shiv Dev Singh. The judgment of the trial Court as confirmed in appeal was the subject matter of a second appeal before the High Court. The second appeal was admitted on the following substantial questions of law:

#1. Whether the defendants continue to be tenants even after the change of the ownership; and

#2. Whether the possession of the tenant becomes unlawful the moment there was a change of ownership. The High Court while setting aside the judgment of the first appellate Court held that Shiv Dev Kaur had created a tenancy in favour of the defendant and the relationship of landlord and tenant did not cease to exist on her death. The remedy of the appellants as owners was to seek eviction under prevailing rent control legislation and not by means of a suit for possession, treating the first respondent as trespasser. On this ground, the decree for possession was set aside, though with the observation that this would not preclude the appellants from seeking ejectment of the first respondent on any of the grounds available under the applicable rent control legislation.

#5. Learned counsel appearing on behalf of the appellants submits that the life interest which was created in favour of the daughter of the testator was personal in nature. In a judgment inter partes rendered by A B C D E F G H DR RS GREWAL v. CHANDER PARKASH SONI [DR. DHANANJAYA Y CHANDRACHUD, J.] 137 this Court in Shivdev Kaur (Dead) by LRs v RS Grewal1, it has been held that the limited interest acquired by Shiv Dev Kaur during her life time under the will of the testator had not fructified into full ownership under Section 14(1) of the Hindu Succession Act 1956. This was because in terms of the exception contained in sub-section (2) of Section 14, Shiv Dev Kaur had acquired only a limited interest in the property of her father by virtue of the will. Learned counsel submitted that that in consequence, Shiv Dev Kaur enjoyed an interest that continued through her life time. It was urged that she was not entitled under the testamentary disposition of her father to create a tenancy in the property. In any event, any tenancy so created would have no existence after her life time, having due regard to the fact that the restricted interest which she acquired was personal to her. Finally, it was also urged that the shops were constructed by Shiv Dev Kaur after the execution of the will, as noticed by the High Court and that in consequence the creation of the tenancy had no legal effect.

#6. On the other hand, learned counsel appearing on behalf of the first respondent submitted that though Shiv Dev Kaur had a life interest in the property, the will empowered her to create a tenancy. The first respondent is a tenant protected under the East Punjab Urban Rent Restriction Act 1949, having due regard to the definition of the expression ‘landlord’ in Section 2(c). It has been urged that the tenancy created by Shiv Dev Kaur does not come to an end and with her death, the tenant does not become a trespasser. Learned counsel submitted that the adjudication rendered by this Court in 2013 to the effect that Shiv Dev Kaur continued to have a restricted interest in the property does not render the answering respondent a trespasser. In other words, it has been urged that the answering respondent being a tenant, a suit for possession was not maintainable and an order for eviction can only be obtained by resorting to the provisions of the East Punjab Urban Rent Restriction Act 1949.

#7. While dealing with the rival submissions it is necessary at the outset to clear the ground in regard to the nature of the interest which Shiv Dev Kaur obtained under the will executed by her father, Dr Hira Singh, on 16 September 1944. This issue has been the subject of an adjudication by this Court in Shivdev Kaur (supra). A brief background of the circumstances leading up to the adjudication by this Court would 1 (2013) 4 SCC 636 A B C D E F G H 138 SUPREME COURT REPORTS [2019] 6 S.C.R. be necessary. Shiv Dev Kaur, claiming rights under the will, instituted a suit against her nephew for a mandatory injunction seeking his eviction from the suit premises. She asserted a right of absolute ownership by virtue of the provisions of Section 14 of the Hindu Succession Act 1956. The suit was contested. During the pendency of the suit the defendant instituted a suit against Shiv Dev Kaur for a permanent injunction restraining her from alienating the property. The trial Court held that Shiv Dev Kaur did not have absolute ownership over the property and that she was not entitled to interfere in respect of the agricultural lands and other property. The trail Court held that she could not be dispossessed from the suit premises, subject to the final decision of another suit. The appellate court confirmed the view that Shiv Dev Kaur did not have an absolute right of ownership. The High Court held against Shiv Dev Kaur in a second appeal. In appeal, this Court had to construe the provisions of Section 14 of the Hindu Succession Act 1956. Section 14 reads thus: “10. Section 14 of the 1956 Act reads as under:

#14. Property of a female Hindu to be her absolute property.— (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. *** (2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.” (emphasis added) The aforesaid statutory provisions provide for conversion of life interest into absolute title on commencement of the 1956 Act, however, sub-section (2) carves out an exception to the same as it provides that such right would not be conferred where a property is acquired by a Hindu female by way of gift or under a will or any other instrument prescribing a restricted estate in that property.” A two Judge Bench of this Court held that since Shiv Dev Kaur had acquired only a life interest under the will of her father, the provisions A B C D E F G H DR RS GREWAL v. CHANDER PARKASH SONI [DR. DHANANJAYA Y CHANDRACHUD, J.] 139 contained in sub-section (2) of Section 14 would apply and her restricted interest had not been crystallised into absolute ownership. Dr Justice BS Chauhan, J, speaking for the two Judge Bench held thus: “14. Thus, in view of the above, the law on the issue can be summarised to the effect that if a Hindu female has been given only a “life interest”, through will or gift or any other document referred to in Section 14 of the 1956 Act, the said rights would not stand crystallised into absolute ownership as interpreting the provisions to the effect that she would acquire absolute ownership/ title into the property by virtue of the provisions of Section 14(1) of the 1956 Act, the provisions of Sections 14(2) and 30 of the 1956 Act would become otiose. Section 14(2) carves out an exception to the rule provided in sub-section (1) thereof, which clearly provides that if a property has been acquired by a Hindu female by a will or gift, giving her only a “life interest”, it would remain the same even after commencement of the 1956 Act, and such a Hindu female cannot acquire absolute title.” Hence, the concurrent finding that Shiv Dev Kaur did not acquire an absolute title was affirmed.

#8. The adjudication in the present case must hence proceed on the foundation that Shiv Dev Kaur had a life interest in the property.

#9. The essence of the submission of the appellants is that Shiv Dev Kaur having held a right which was personal in nature, she was not entitled to create a tenancy and, in any event, the tenant would cease to have a surviving interest in that character upon her death. In this context, reliance was placed on the following observations contained in a decision of a Bench of two judges of this Court in Ranvir Dewan v Rashmi Khanna2 where, Justice AM Sapre explained the concept of a life interest in the following terms: “42.6 ... it is a settled principle of law that the “life interest” means an interest which determines on the termination of life. It is incapable of being transferred by such person to others being personal in nature. Such person, therefore, could enjoy the “life interest” only during his/her lifetime which is extinguished on his/ her death.” 2 (2018) 12 SCC 1 A B C D E F G H 140 SUPREME COURT REPORTS [2019] 6 S.C.R. A B C D E F G H

#10. Now reading the will executed by Dr Hira Singh on 16 September 1944, it is evident that while his son Shiv Dev Singh Grewal was to be the absolute owner of his properties upon the death of the testator, a life interest was created in favour of Shiv Dev Kaur. She was “entitled to settle and reside in this kothi as and when necessary” and “could spend the income from rent on herself” during her lifetime. However, she was not entitled to transfer, mortgage, sell or gift the property. In consequence, the testator directed that his son would ensure that the rent that was recovered would be spent in accordance with the directions contained in the will. The testator’s priority was to ensure that following his death his widowed daughter had adequate financial means. Expenses for the repairing of the property and for the payment of land revenue were to be paid by Shiv Dev Kaur during her lifetime. The disposition specifically contemplated her entitlement to spend the income received by way of rent on herself. Creation of a tenancy was an incident of the life interest which she had. It was means of her generating rental income to sustain herself. This was authorised by the will.

#11. But the submission which has been urged on behalf of the appellants is that the life interest being personal to Shiv Dev Kaur, the tenancy which she created would stand terminated with her death. In other words, according to the appellants, with the death of Shiv Dev Kaur, the first respondent became a trespasser on the property and was liable to be removed in consequence of the decree for possession.

#12. This submission cannot be accepted both as a matter of first principle and having regard to the precedent on the subject. The expression ‘landlord’ is defined in Section 2(c) of the East Punjab Urban Rent Restriction Act 1949 thus: “Sec.2 In this Act, unless there is anything repugnant in the subject or context, - *** (c) ‘Landlord’ means any person for the time being entitled to receive rent in respect of any building or rented land whether on his own account or on behalf, or for the benefit, of any other person, or as a trustee, guardian, receiver, executor or administrator for any other person, and includes a tenant who sublets any building or rented land in the manner hereinafter authorised, and every person, from time to time, deriving title under a landlord;” DR RS GREWAL v. CHANDER PARKASH SONI [DR. DHANANJAYA Y CHANDRACHUD, J.] 141 A landlord within the meaning of Section 2(c) is not necessarily the owner of the property. The definition of the expression ‘landlord’ is relatable to an entitlement to receive rent in respect of any building or rented land. The inclusive definition of ‘landlord’ under Section 2(c) would take in its sweep Shiv Dev Kaur who held a life interest in the property. This position in law has been explained in a decision of a two Judge Bench of this Court in KD Dewan v Harbhajan S Parihar3, where it was held thus: “8. A perusal of the provision, quoted above, shows that the following categories of persons fall within the meaning of landlord: (1) any person for the time being entitled to receive rent in respect of any building or rented land; (2) a trustee, guardian, receiver, executor or administrator for any other person; (3) a tenant who sub-lets any building or rented land in the manner authorised under the Act; and (4) every person from time to time deriving title under a landlord. Among these four categories of persons, brought within the meaning of “landlord”, Mr Sharma sought to derive support from the last category. Even so, that category refers to a person who derives his title under a landlord and not under an owner of a premises. For purposes of the said category the transferor of the title referred to therein must fall under any of the categories (1) to (3). To be a landlord within the meaning of clause (c) of Section 2 a person need not necessarily be the owner; in a vast majority of cases an owner will be a landlord but in many cases a person other than an owner may as well be a landlord. It may be that in a given case the landlord is also an owner but a landlord under the Act need not be the owner. It may be noted that for purposes of the act the legislature has made a distinction between an owner of a premises and a landlord. The Act deals with the rights and obligations of a landlord only as defined therein. Ownership of a premises is immaterial for purposes of the Act.” A B C D E F

#13. In B Bal Reddy v Teegala Narayana Reddy4, a three Judge Bench of this Court held that the interest of a protected tenant subsists so long as a protected tenancy has not been validly terminated. Moreover, (emphasis supplied) G