Hindu Law: Hindu joint family property – Presumption of – Held: There can be presumption of Hindu joint family property if the property has been acquired by the male member or if the same has been treated as joint Hindu family – However, no such presumption is attached to a business activity carried out by an individual in a tenanted premise – Even if a male member had taken premises on rent, he is tenant in his individual capacity and not as Karta of Hindu Undivided Family in the absence of any evidence that Karta was doing the business for and on behalf of Joint Hindu Family – Hindu Joint Hindu Family cannot be presumed to be in existence only on the basis of Ration Card and payment of rent unless there is evidence that the funds of joint Hindu Family were invested in the business in the tenanted premises – On facts, High Court held that the payment of rent or the Ration Card proves that the tenant was carrying business as a Joint Hindu Family Business, and also rejected the surrender of tenancy – Facts would show that it was the contract of tenancy which was inherited by the grandfather of the plaintiff who later surrendered it in favour of the Wakf Board – Even if the great grandfather was maintaining the family out of the income generated from the hotel business, that itself would not make the other family members as coparceners in the hotel business – Tenancy was an individual right vested with the grandfather of the plaintiff who was competent to surrender it to the landlord – Thus, the order by the High Court that the tenant in the premises was representing a joint Hindu family and that the Karta was not competent to surrender the legacy rights in favour of Wakf Board and consequently the induction of the appellant as a tenant by the Wakf Board was illegal and thus, issuance of direction to dispossess the appellant from the suit premises and to handover the vacant possession to the plaintiff, is not sustainable and set aside, and that of the Wakf Tribunal is restored – Wakf Act, 1995 – ss. 85, 85A, 83(9).
Constitution of India: Arts. 226 and 227 – Writ petition – Petition u/Art. 227 filed against an order of the Wakf Tribunal before the High Court – Petition titled as writ petition – Jurisdiction of High Court – Held: Nomenclature of the title of the petition filed before the High Court is immaterial – It is wholly immaterial that it is titled as a writ petition – Petition styled as one u/Art. 226 would not bar the High Court to exercise jurisdiction under the Act and/or u/Art. 227 – In certain High Courts, petition u/Art. 227 is titled as writ petition and in certain other High Courts as revision petition or as miscellaneous petition – On facts, keeping in view the nature of the order passed in the light of proviso to sub-section (9) of s. 83 of the Act, the High Court exercised jurisdiction only under the Act, which was restricted to only examine the correctness, legality or propriety of the findings recorded by the Wakf Tribunal – Wakf Act, 1995 – ss. 85, 85A, 83(9).
Allowing the appeal, the Court
HELD: 1.1 The plaintiff had invoked the jurisdiction of the Civil Court in the year 1996. It is the Wakf Board and the appellant who then filed an application for transfer of the suit to the Wakf Tribunal. Though, in terms of Ramesh Gobindram’s case, the Wakf Tribunal could not grant declaration as claimed by the plaintiff, but such objection cannot be permitted to be raised either by the Wakf Board or by the appellant as the order was passed by the Civil Court at their instance and was also upheld by the High Court. Such order has thus, attained finality inter-parties. The parties cannot be permitted to approbate and reprobate in the same breath. The order that the Wakf Tribunal has the jurisdiction cannot be permitted to be disputed as the parties had accepted the order of the civil court and went to trial before the Tribunal. It is not a situation where plaintiff has invoked the jurisdiction of the Wakf Tribunal. [Para 13][97-F-H; 98A-B]
1.2 It is not conferment of jurisdiction by the plaintiff voluntarily but by virtue of a judicial order which has now attained finality between parties. The suit was accordingly decided by the Waqf Tribunal. It is not open to the appellant to raise the objection that the Waqf Tribunal had no jurisdiction to entertain the suit in the facts of the instant case. [Para 14][98-C-D] Ramesh Gobindram (Dead) through LRs. v. Sugra
Humayun Mirza Wakf (2010) 8 SCC 726:[2010] 10 SCR
945 – referred to.
1.3 A perusal of the proviso to sub-section (9) of Section 83 of the Wakf Act, 1995 shows that it confers power on the High Court to call for and examine the records relating to any dispute, question or other matter which has been determined by the Tribunal for the purpose of satisfying itself as to the correctness, legality or propriety of such determination. In fact, the statutory provision is acceptance of the principle that the jurisdiction of the High Court under Article 226 or 227 of the Constitution of India cannot be curtailed in terms of L. Chandra Kumar v. Union of India & Ors. [Para 18][99-F-H]
Sadhana Lodh v. National Insurance Co. Ltd. & Anr. (2003) 3 SCC 524:[2003] 1 SCR 567 – distinguished. L. Chandra Kumar v. Union of India & Ors. (1997) 3 SCC 261:[1997] 2 SCR 1186; Md. Wasiur Rahman & Anr v. The State of Bihar & Ors. CWJC No. 14622 of 2017 dt. 25.04.2018; Radhey Shyam & Anr. v. Chhabi Nath & Ors. (2015) 5 SCC 423: [2015] 3 SCR 197; Surya Dev Rai v. Ram Chander Rai & Ors. (2003) 6 SCC 675:[2003] 2 Suppl. SCR 290 – referred to
1.4 When a petition is filed against an order of the Wakf Tribunal before the High Court, the High Court exercises the jurisdiction under Article 227 of the Constitution of India. Therefore, it is wholly immaterial that the petition was titled as a writ petition. It may be noticed that in certain High Courts, petition under Article 227 is titled as writ petition, in certain other High Courts as revision petition and in certain others as a miscellaneous petition. However, keeping in view the nature of the order passed, more particularly in the light of proviso to sub-section (9) of Section
83 of the Act, the High Court exercised jurisdiction only under the Act. The jurisdiction of the High Court is restricted to only examine the correctness, legality or propriety of the findings recorded by the Wakf Tribunal. The High Court in exercise of the jurisdiction conferred under proviso to sub-section (9) of Section 83 of the Act does not act as the appellate court. Nomenclature of the title of the petition filed before the High Court is immaterial. Therefore, the petition styled as one under Article 226 would not bar the High Court to exercise jurisdiction under the Act and/or under Article 227 of the Constitution. The nomenclature of the proceedings as a petition under Article 226 or a petition under Article 227 is wholly inconsequential and immaterial. [Para 20, 21 and 23][101-D-G; 103-B]
Pepsi Foods Ltd. & Anr. v. Special Judicial Magistrate & Ors. (1998) 5 SCC 749: [1997] 5 Suppl. SCR 12 – relied on.
Municipal Corporation of the City of Ahmedabad v. Ben Hiraben Manilal (1983) 2 SCC 422: [1983] 2 SCR 676 – referred to.
1.5 The plaintiff has pleaded that when father of the plaintiff joined service, the shop was being run through the servants and that the plaintiff began to run the hotel since 1988. Thereafter, the disputes cropped up over the management and accounting of the income and the hotel was closed for many years. The High Court held that the existence of joint family is established from the Ration Card issued on 2.4.1949 and from the payment of rent for the period 1947-1955 that the premises were let out to joint family. The High Court also rejected the surrender of tenancy on the ground that it was without the consent of other co-parceners. Thus, even if a male member had taken premises on rent, he is tenant in his individual capacity and not as Karta of Hindu Undivided Family in the absence of any evidence that Karta was doing the business for and on behalf of Joint Hindu Family. The High Court has presumed the existence of the joint family of which brother of great grand father of plaintiff was said to be the Karta from perusal of the Ration Card issued on 2.12.1949. The Hindu Joint Hindu Family cannot be presumed to be in existence only on the basis of Ration Card unless there is evidence that the funds of joint Hindu Family were invested in the business in the tenanted premises. Thus, the High Court committed a basic error of law and fact that the payment of rent or the Ration Card proves that the tenant was carrying business as a Joint Hindu Family Business. There can be presumption of Hindu joint family property if the property has been acquired by the male member or if the same has been treated as joint Hindu family. But no such presumption is attached to a business activity carried out by an individual in a tenanted premise. [Para 27-29 and 31][104-E; G-H; 105-A; 106-C-D; 107-F-G]
1.6 A perusal of the facts on record would show that it was a contract of tenancy entered upon by great grandfather of the plaintiff. Even if the great grandfather was maintaining the family out of the income generated from the hotel business, that itself would not make the other family members as coparceners in the hotel business. It was the contract of tenancy which was inherited by the grandfather of the plaintiff who later surrendered it in favour of the Wakf Board. The tenancy was an individual right vested with the grandfather of the plaintiff who was competent to surrender it to the landlord. The High Court erred in law by holding that since the grandfather was a tenant, the tenancy is a joint family asset. The contract of tenancy is an independent contract than the joint Hindu family business. [Para 32][107-G-H; 108-A-B]
1.7 The evidence produced by the plaintiff is payment of rent by either brother of great grandfather of plaintiff or by the grandfather of the plaintiff. Such payment of rent is not indicative of the fact that the hotel business was by the joint Hindu family. Thus, mere payment of rent by great grandfather or by the grandfather of the plaintiff raises no presumption that it was a joint Hindu family business. The High Court has clearly erred in law to hold so without any legal or factual basis. [Para 33 and 35] [108-B-C; 110-A-B]
1.8 Even if nephew of the plaintifff is considered to be representing the joint Hindu family while carrying out hotel business in the tenanted premises, the question as to the act Karta to surrender of tenancy was for the benefit of the joint Hindu family. [Para 36][110-B-C]
Hindu Law by Mulla 22nd Edition – referred to.
1.9 The plaintiff pleaded that the hotel was closed for several years, thus, the liability to pay monthly rent continued to accrue upon karta-nephew of the plaintiff. The High Court found that the letter of surrender was not reliable or tenable. The executor of the surrender letter has admitted such surrender letter in the written statement and while appearing as a witness as DW-5. The Mutawalli has also accepted the surrender letter in the written statement and while appearing in the witness box as DW-10. Merely for the reason that signatures in the translated copy do not tally with the Urdu copy is not sufficient to hold the surrender letter as unreliable as the translation can be incorrect but the correctness of the document has not been disputed by the executor or by the acceptor. The said document could not have been said to be unreliable on the basis of the statement of the plaintiff who is not a party to such transaction. It is one thing to say that the document is unreliable and another to say that the document does not bind the plaintiff. There is no hesitation to hold that the document was validly proved and accepted by the Wakf Board. Thus, the act of surrender of tenancy was for the benefit of the Joint Hindu family. [Para 37][111-B, C-E]
1.10 The order of the High Court is not sustainable for the reasons recorded and is set aside and that of the Wakf Tribunal is restored. [Para 38][111-F]
Punjab Wakf Board v. Sham Singh Harike (2019) 4 SCC
698 : [2019] 2 SCR 61; Chandavarkar Sita Ratna Rao v. Ashalata S. Guram (1986) 4 SCC 447: [1986] 3 SCR
866 ; Ganpat Ladha v. Sashikant Vishnu Shinde (1978)
2 SCC 573 : [1978] 3 SCR 198 ; Ram Awalamb &
Ors. v. Jata Shankar & Ors. AIR 1969 All. 526; Commissioner of Income Tax, Madhya Pradesh v. Sir Hukamchand Mannalal & Co (1970) 2 SCC 352 :
[1971] 1 SCR 646; P.K.P.S. Pichappa Chettiar & Ors. v. Chockalingam Pillai & Ors. AIR 1934 Privy Council 192; G. Narayana Raju (Dead) by his Legal
Representative v. G. Chamaraju & Ors. AIR 1968 SC 1276 : [1968] SCR 464; P.S. Sairam & Anr. v. P.S. Rama Rao Pissey & Ors. (2004) 11 SCC 320:[2004] 2 SCR
98 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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