Tenancy of Joint Hindu Family Property by Karta is in Individual Capacity: SC

It was further argued that Ram Sewak Ram was inducted as a tenant and therefore, the plaintiff has a right by birth in the tenancy which could not be surrendered by the then Karta, defendant No. 1 without the consent of the other coparceners. Since the possession was delivered to the appellant as a consequence of illegal surrender of tenancy rights, therefore, the order of the High Court is just and proper [Para 11].

KIRAN DEVI Vs THE BIHAR STATE SUNNI WAKF BOARD & ORS.

[Civil Appeal No.6149 of 2015]

Decided on April 5, 2021

This case was decided by a bench of the Supreme Court consisting of Justice Ashok Bhushan, Justice S Abdul Nazeer and Justice Hemant Gupta.

The issue in this case is regarding tenancy of a land. The plaintiff sought a direction to the appellant to vacate the suit premises and handover the possession to the plaintiff. The plaintiff, Devendra Prasad, alleged that the property belonged to his joint Hindu family. On the other hand, the Wakf Board, in its written statement, asserted that Md. Salimuddin was the duly appointed trustee of the property, and the appellant is the tenant inducted by the Management Committee.

The High Court of Patna had observed that the plaintiff could not have surrendered the tenancy in favor of the Mutawalli without the consent of other members of the joint family. Consequently, it issued a direction to the appellant to dispossess the premises and handover the vacant property to the plaintiff.

Learned counsel for the appellant raised the following points. The Tribunal had no jurisdiction to entertain the suit of the plaintiff based on Ramesh Gobindran V. Sugra Humayun Mirza Wakf and Punjab Wakf Board V. Sham Singh Harike. Therefore, a suit for declaration of the plaintiff as the tenant was not maintainable before the Wakf Tribunal as there was no estopped against the statute, and that the consent would not confer jurisdiction on the Wakf Tribunal.

Further, only a revision order can be preferred by the HC under Section 83(9) of the Wakf Act, and a writ petition cannot be filed to challenge the order. This was said in Sadhana Lodh V. National Insurance Co. Ltd. Further, in Chandavarkar Sita Ratna Rao V. Ashalata S Guram, it was held that the HC cannot set aside findings of fact recorded by the Wakf Tribunal, in a petition under Article 227 of the Constitution.

Lastly, it was argued that the plaintiff had the right to surrender the tenancy without the consent of other coparceners as such surrender was for the benefit of the family.

Learned counsel for the plaintiff argued that the HC has the jurisdictions to pass an order in this regard. This was clarified in Pepsi Foods Ltd. V. Special Judicial Magistrate.

It was further argued that Ram Sewak Ram was inducted as a tenant and therefore, the plaintiff has a right by birth in the tenancy which could not be surrendered by the then Karta, defendant No. 1 without the consent of the other coparceners. Since the possession was delivered to the appellant as a consequence of illegal surrender of tenancy rights, therefore, the order of the High Court is just and proper [Para 11].

Considering the arguments, the Supreme Court observed that 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. It is not open to the appellant to raise the objection that the Waqf Tribunal had no jurisdiction to entertain the suit.

On the issue of remedy available to the appellant, the Court observed that, in L Chandra Kumar V. UOI, the Court had held that the provision under Section 83(9) is acceptance of the principle that the jurisdiction of the HC under Article 226/227 cannot be curtailed.

Therefore, 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 [Para 20].

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 jurisdiction of the High Court to examine the correctness, legality and propriety of determination of any dispute by the Tribunal is reserved with the High Court. The nomenclature of the proceedings as a petition under Article 226 or a petition under Article 227 is wholly inconsequential and immaterial [Para 23].

As to the issue of whether the plaintiff was allowed to enter into a contract with a stranger, the Court referred to PKPS Pichappa Chettiar V. Chockalingam Pillai, wherein it has been held that when a manager of a joint family enters into a partnership, that would not ipso facto make the other members of his family as partners.

The next question was as to whether the plaintiff was running the business, or whether the act of surrender was of the joint family business, or only the tenancy; or whether as a Karta, the surrender of tenancy was for the benefit of the family. The Court observed that, even if a male member had taken premises on rent, he is a tenant in his individual capacity, not as the Karta, in the absence of any evidence that he was doing business for the HUF. The HC had presumed that the plaintiff was conducting business on behalf of the family based on a Ration Card. But this was a basic error of law. There can be presumption of HUF 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.

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 favor 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 has clearly 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].

For it to be joint family business, it has to be shown that the business grew at the hands of the coparceners, using the joint family property or funds, or that the earnings were blended with the estate.

Thus, the order of the HC was set aside, and the appeal was allowed.

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Navyaa Shukla