HM Journal

Davesh Nagalya (D) vs., Pradeep Kumar (D) Thr. Lrs. On 10 August 2021

In the present appeal is to an order gone along the high court of Uttarakhand in the application no. 105/2008 on 23.04.2008. Where the factum of death of Pradeep Kumar, the ownership of the property interest of Tika Ram. The tenant wasn’t considered. The appellant argument of  partnership between Pradeep Kumar and Subhash Chand, respondent no. 4 thereafter it has come to an end automatically on the death of Pradeep Kumar on 21.05.2004. Therefore, tenancy also has come to an end seeable section 12(2) [1]of U.P. urban building act 19721. It should stated be that in  the pendency of the current appeal, Shubhash Chand, another partner, who was allowed to enter into partnership with Pradeep Kumar by the district magistrate also died on 25.06.2014. The legal contract of Pradeep Kumar and Shubhash Chand were stated that the special leave which led to be the present civil appeal. Notice of the I.A Nos. 23917, 23920, and 23921 of 2019 was order to be issued on 26.02.2020. As per the office report, notice was issued to the proposed legal hires of the deceased respondent no.4 the service was affected on the proposed legal hires as per tracking report of the postal authorities. It is there after on, 28/07.2021 the application of the legal hires respondent no. 4 was allowed. But none has put appearance on behalf of the legal hires of respondent no. 4.

Principle and statutory provision concerned:

1. Section 12(2) Act unless the context otherwise requires:

A). tenant, in respect to a building means a person by whom its rent payable, and on the tenant’s death, his heirs.

b). district magistrate, includes an politician authorized by the district magistrate to exercise , perform and discharge all or any of his power and discharge all or any of his powers, functions and duties under this Act, and different  officers is also so authorized in respect of various areas or cases or classes of cases and therefore the district magistrate mar recall any case from any such officer and either get rid of it himself or transfer it to any other such officer for disposal.

c). landlord, in a very relevance a building means someone to whom its rent is or if the building were let would be, payable and includes except in clause (g), the agent or attorney of such person.

2. Under section 107 [2]is to prove the factum of death

3. Section 41 of the Act of U.P. urban building rules 1972 have been published on 1.07.1972 every landlord give the notice of the vacancy in writing to the district magistrate, if a building had fallen vacant under section 15[3]of the Act.

4. Section 42 of the Indian partnership Act 1932when the partnership stands dissolved by operation of law. They can’t may a contract individually without any acceptance or agreement to the legal heirs of the dead partner.

Fact of the case:

The application was filled by Pradeep Kumar in July 1982 before the court rent control and eviction officer, Dehradun   the district magistrate, in terms of the Act.

Pradeep Kumar, successor-in-interest of tenant Tika Ram in support that Shubhash Chand was a divorcee and they had no children and was ready to do a full time business within the  of sale of milk, curd, ghee and butter. The application was however opposed by the landlord.

It was the another other kind of things that they would ready to do that after death of Tika Ram, he had left behind 8 legal heirs who were joint the tenant in the disputed property. It was said, that Shubhas Chand was a sub-tenant and he was involved in the structure that demolished and changing it and making a furniture for last two months, Pradeep Kumar has put that such person in proprietorship of the property.

Shubhas Chand has running the business of a dairy products in dehradun and that appeal has been filed in order to only cover the sub-tenancy.

It was argued that Pradeep Kumar had put such person has also keeping hand of the shop who wasn’t a member of their family and property will consequently be deemed to be the vacant under section 12 (2) of the Act.

The district magistrate permitted Shubhash Chand to be inducted as a partner on 15.11.1982 it was thereafter on 19.11.1982, a written partnership deed was signed between Pradeep Kumar and Shubhash Chand copied of which it is take control of now  as p-4, clause [4]6, they said partnership deed declared that all the arrangements of the partnership Act will be applicable.  

Analysis and Application

Though learned council for the appellant raised an argument that approval of the district magistrate and to hunt permission to sublet or admit a partner against the principle of suppression powers between the manager and judicial or quasi-judicial function.

Prohibition of sub-letting:

No tenant shall sub-let the full of the building under his tenancy and therefore the tenant may, with the permission in writing of the landlord and of the District Magistrate, sub-let an element of the building.

For the purpose of this section

Where the tenant come to an end , within the meaning of clause (b) of sub-section (1) of sub-section(2) of section 12 to occupied  the building or any part of it. therefore, he should be deemed to having the sub-let building or part of it.;  a person present in a hotel or in a house it shouldn’t any amount to sublet.

Conclusion:  

In there, both partners were died and not having any clause permitting maintenance of the partnership by the legal heirs, the non-residential tenanted premises is deemed to be vacant in law as the tenant is deemed to have to come to the end  settled in the  building. In view thereof, the order was passed by the high court in reviewed application dated 23.04.2008 is set aside. The civil appeal is allowed and the tenant is considered to come to the end to settle the premises question as a result, the tenanted property has fallen vacant as well. The appellants may take recourse to remedy as is also available to them and should proceed in accordance with law and the provisions of the Act.

Reference :

http://www.indialawlibrary.com/Judgement.aspx?sid=TdAHPNo//f6B8BxgjaApZw==Edite

https://indiankanoon.org/doc/175567574/

                                                  Edited by: Sakshi Vishwakarma

College: Ajeenkya D.Y. Patil University


[1] Section 12(2) in The Land Acquisition Act 1894

[2]Section 107 in The Criminal Code Procedure, 1973

[3]Section 15 In The Building And Other Construction Workers Act 1996

[4] Section 6 in The Land Acquisition Act, 1894

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