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: 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." 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 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. ;