TaxTMI 
TaxTMI 
2021 (4) TMI 1377
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....ation before the competent civil court stating that he is a tenant in the suit premises and is entitled to continue in the suit premises as a tenant on payment of monthly rent. The basis of such declaration was that Ram Sharan Ram, the great grandfather of the plaintiff, predeceased his brother Ram Sewak Ram who died issueless and his widow predeceased him. Ram Sewak Ram was carrying out joint family business of hotel in the premises of the Wakf Board. Due to advanced age, he handed over the possession of the hotel business to his nephew Devendra Prasad Sinha, the grandfather of the plaintiff. The grandfather of the plaintiff succeeded to the tenancy as member of the joint Hindu family. After his death, defendant Nos. 1 to 3 succeeded to tenancy as members of the Joint Hindu Family. The shop was being run by Surendra Kumar, son of Devendra Prasad Sinha, when the grandfather of the plaintiff fell ill. Surendra Kumar, the father of the plaintiff started paying rent to the Wakf Board. However, Surendra Kumar later joined service and the hotel was being run through the servants. The plaintiff had started running the hotel since 1988. On account of disputes over the management, the hote....
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....isions of Section 85 and 85A of the Wakf Act, 1995, For short, the 'Act'. The suit was thus transferred by the learned Munsif on 4.2.2009. Such order of transfer of the suit to the Tribunal was challenged by the plaintiff by way of a revision petition before the Patna High Court. Such revision was found to be frivolous and dismissed on 19.5.1999 with cost of Rs.3,000/-. 6. The parties went to trial on the following issues before the Wakf Tribunal: "(i) Whether Devendra Prasad was running a joint family business? (ii) Whether Devendra Prasad as Karta of joint family business has got authority to surrender the joint family business? (iii) Whether Devendra Prasad surrendered joint family business or premises of joint family business? (iv) Whether the plaintiff is entitled to any other relief?" 7. Devendra Prasad Sinha (defendant No. 1) appeared as DW-5 whereas Dilip Kumar (defendant No. 2) appeared as DW-14 before the Wakf Tribunal. The said witnesses supported their stand that the tenancy was surrendered on 31.5.1996. The learned Tribunal held that defendant No. 1 was running a hotel business and had later surrendered the shop to Mutawalli. T....
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....the Act could be preferred. Learned counsel for the appellant relies on judgment reported as Sadhana Lodh v. National Insurance Co. Ltd. & Anr. (2003) 3 SCC 524 and of Patna High Court in Md. Wasiur Rahman & Anr v. The State of Bihar & Ors. CWJC No. 14622 of 2017 dt. 25.04.2018. (3) The High Court could not have reappreciated facts in a petition under Article 227 of the Constitution. The High Court has illegally set aside findings of fact recorded by the Wakf Tribunal. The reliance was placed on Chandavarkar Sita Ratna Rao v. Ashalata S. Guram (1986) 4 SCC 447. It was also argued that in petition under Article 226 or 227 of the Constitution, no interference is permitted in tenancy matter. Reference was made to Ganpat Ladha v. Sashikant Vishnu Shinde (1978) 2 SCC 573 to support the said contention. (4) The surrender of possession of the tenanted premises by defendant No. 1 was not of a business of joint Hindu family but of the tenancy which was not been carried out for large number of years even as admitted by the plaintiff. (5) Even if it was assumed that defendant No. 1 was a Karta of the joint Hindu family, he had the right to surrender the tenancy with....
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....ant 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. 14. The argument raised by the learned counsel for the appellant that there was no estoppel against the statute as consent could not confer jurisdiction upon the Authority which did not originally have jurisdiction. Hence, it was submitted that the decision of the Tribunal was without jurisdiction. It is to be noted that the plaintiff had filed proceedings before the Civil Court itself but the same was objected to by the appellant as well as by the Waqf Board. Thus, 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. We do not f....
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....tive statutory remedy available, therefore, the Writ Petition was not maintainable. The learned Single Judge held that a petition under Article 226/227 of the Constitution of India was not maintainable but liberty was given to the petitioners to invoke the jurisdiction in terms of proviso to sub-section (9) of Section 83 of the Act. The said judgment does not show that any argument was raised that a petition under Article 226/227 of the Constitution of India could be treated as a petition in terms of proviso to sub-section (9) of Section 83 of the Act. Therefore, such judgment is also not relevant for the question arising for consideration in the present appeal. 18. A perusal of the proviso to sub-section (9) of Section 83 of the Act 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 curtai....
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....llenged in a petition under Article 226 and that the distinction between Articles 226 and 227 of the Constitution of India stood almost obliterated. This Court in Radhey Shyam held: "27. ... we are of the view that judicial orders of civil courts are not amenable to a writ of certiorari under Article 226. We are also in agreement with the view [Radhey Shyam v. Chhabi Nath, (2009) 5 SCC 616] of the referring Bench that a writ of mandamus does not lie against a private person not discharging any public duty. Scope of Article 227 is different from Article 226. xxx xxx xxx 29. Accordingly, we answer the question referred as follows: 29.1. Judicial orders of the civil court are not amenable to writ jurisdiction under Article 226 of the Constitution. 29.2. Jurisdiction under Article 227 is distinct from jurisdiction under Article 226. 29.3. Contrary view in Surya Dev Rai [Surya Dev Rai v. Ram Chander Rai , (2003) 6 SCC 675] is overruled." 20. 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, ....
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....r power under which Government could lawfully do that act. See also the observations of the Supreme Court in the case of Nani Gopal Biswas v. Municipality of Howrah [AIR 1958 SC 141 : 1958 SCR 774, 779 : 1958 SCJ 297 : 1958 Cri LJ 271]." 22. Later, in Pepsi Foods Ltd., this Court held that nomenclature under which the petition is filed is not quite relevant and it does not debar the Court from exercising its jurisdiction which otherwise it possesses. If the Court finds that the appellants could not invoke its jurisdiction under Article 226, the Court can certainly treat the petition as one under Article 227 or Section 482 of the Code. This Court held as under: "26. Nomenclature under which petition is filed is not quite relevant and that does not debar the court from exercising its jurisdiction which otherwise it possesses unless there is special procedure prescribed which procedure is mandatory. If in a case like the present one the court finds that the appellants could not invoke its jurisdiction under Article 226, the court can certainly treat the petition as one under Article 227 or Section 482 of the Code. It may not however, be lost sight of that provisions exist ....
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....dn.) at page 398, as follows: "Where a managing member of a joint family enters into a partnership with a stranger the other members of the family do not 'ipso facto become partners in the business so as to clothe them with all the rights and obligations of a partner as defined by the Indian Contract Act. In such a case the family as a unit does not become a partner, but only such of its members as in fact enter into a contractual relation with the stranger: the partnership will be governed by the Act." In this passage reference is made to the Indian Contract Act, which would be applicable to the facts of this case. It is to be noted that the sections referring to partnership in the said Act have been repealed and are now embodied in the Indian Partnership Act, 1932. Even assuming, therefore, that Virappa was the manager of his joint Hindu family in 1908, his entering into partnership with the Chetties in that year would not "ipso facto" make the other members of his family partners ..." 26. The next question is as to whether Shri Devendra Prasad Sinha was running the joint family business and/or whether the act of surrender of possession was that of a joint Hi....
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....ating payment of rent for the suit premises by the tenant Ram Sewak Ram. xxx xxx xxx 43. Rent receipts, Water Board receipt and electricity bill receipt aforesaid obtained by Defendant No. 1 are subsequent to the death of the original tenant i.e. Karta of the joint family Ram Sewak Ram from whom Defendant No. 1 succeeded to the tenancy along with the other coparceners of the joint family. On the basis of the subsequent receipts it cannot be said that the tenancy is created only in favour of Defendant No. 1 ignoring the other descendants/successors of Ram Sewak Ram. Reference in this connection is also required to be made to the statement of Defendant No. 4 who examined himself as D.W. 2 paragraph 24 wherein he has categorically stated that in the Wakf Board there is no Kirayanama executed in favour of Devendra Babu, Defendant No. 1. 44. The case set out by the defendants regarding surrender letter dated 31.5.96 is also fit to be rejected as after the death of Ram Sewak Ram, the Karta of the Hindu undivided family, Defendant No. 1 became the Karta of the Hindu undivided family and as per the tenets of Hindu Law Defendant No. 1 was not entitled to surrender the t....
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....property either for legal necessity or for the benefit of the estate. xx xx xx 45. Our conclusions can, therefore, be briefly summarised as follows:- (1) Where members of a joint Hindu family hold bhumidhari rights in any holding, they hold the same as tenants in common and not as joint tenants. The notions of Hindu law cannot be invoked to determine that status. (2) Where in certain class of tenancies, such as permanent tenure holders, the interest of a tenant was both heritable and transferable in a limited sense and such a tenancy could, prior to the enforcement of the Act, be described as joint family property or coparcenary property, the position changed after Act 1 of 1951 came into force. Thereafter the interest of each bhumidhar, being heritable only according to the order of succession provided in the Act and transferable without any restriction other than mentioned in the Act itself, must be deemed to be a separate unit. (3) Each member of a joint Hindu family must be considered to be a separate unit for the exercise of the right of transfer and also for the purposes of devolution of bhumidhari interest of the deceased member. ....
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....he joint family estate. This Court held as under: "3. ... It is well established that there is no presumption under Hindu Law that business standing in the name of any member of the joint family is a joint business even if that member is the manager of the joint family. Unless it could be shown that the business in the hands of the coparcener grew up with the assistance of the joint family property or joint family funds or that the earnings of the business were blended with the joint family estate, the business remains free and separate. ....... xxx xxx xxx 6. ... It is a well-established doctrine of Hindu Law that property which was originally self-acquired may become joint property if it has been voluntarily thrown by the coparcener into joint stock with the intention of abandoning all separate claims upon it. The doctrine has been repeatedly recognised by the Judicial Committee (See Hurpurshad v. Sheo Dayal, (1876) 3 Ind App 259 (PC) and Lal Bahadur v. Kanhaia Lal, (1907) 34 Ind App 65 (PC). But the question whether the coparcener has done so or not is entirely a question of fact to be decided in the light of all the circumstances of the case. It must be est....
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............." 35. 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. 36. Even if Devendra Prasad Sinha 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. The powers of Karta of a Joint Hindu Family have been described in 22nd Edition of Hindu Law by Mulla (para 240) inter alia to the following effect: "Alienation by manager of coparcenary property for legal necessity. - (1) The power of the manager of a joint Hindu family to alienate the joint family property is analogous to that of a manager for an infant heir, as defined by the Judicial Committee. (2) The manager of a joint Hindu family has the power to alienate for value, joint family property, so as to bind the interest of both adult and minor coparceners in the property, provided that the alienation is made for legal necessity, or for the benefit of the es....