KAN SINGH, J. - (1.) THIS is a tenant's second appeal.
(2.) ONE Onkar was the landlord and Vishandas was his tenant in respect of a shop situated at Udaipur on a monthly rent of Rs. 20/ -. Onkar was murdered by none other than his son Bherulal. At the relevant time Bherulal was undergoing the sentence of life imprisonment. Plaintiff Smt. Niji Bai was Bherulal's wife. It seems to have been disputed whether Smt. Niji Bai was Bherulal's wife by remarriage (Nata) or otherwise, but eventually it was accepted that Smt. Niji Bai was Bherulal's wife. Onkar was survived by three daughters besides his murderer son Bherulal. After Onkar's death and Bherulal's detention in jail the tenant started paying rent to Smt. Niji Bai. According to the tenant, Smt. Niji Bai refused accepting rent as she was motivated to enhance the rent. Consequently the tenant made an application on 17-8-65 (Ex. 1) before the Munsif Udaipur under sec. 19a of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, hereinafter to be referred as the "act". In that application the tenant named Smt. Niji Bai and the three daughters of Onkar as the opposite parties and admitted that a doubt had been created in his mind as to who was entitled to take the rent from him. The proceedings resulted in an order of the court (Ex. 2 on record) which is dated 8-1-66 According to it, on account of the submissions made by learned counsel for the parties learned Munsif ordered that the deposited rent be paid to Smt. Niji Bai. Thereafter Smt. Niji Bai determined the tenancy of the defendant by a notice, Ex. 4 on record, and then on 16. 12. 67 commenced the action in the court of the Munsif, Udaipur for arrears of rent and eviction of the defendant-tenant. The defendant contested the suit. He denied that Smt. Niji Bai was entitled to receive the rent or to file the suit. He also pleaded that the notice Ex. 4 determining the tenancy was not valid. He further denied that he was a defaulter in the payment of rent. The daughters of Onkar who were made proforma defendants filed a joint written statement. They averred that though the plaintiff had no right in the property, they had given a direction to the tenant, defendant No1, to pay rent to Smt. Niji Bai as provision had to be made for her maintenance on account of Niji Bai still continuing as the wife of Bherulal who was in jail at the time. The learned Munsif framed a number of issues. It is not necessary to advert to all of them, as the questions surviving for consideration at this stage are : (1) about the right of Smt. Niji Bai to file the suit against the tenant, (2) about the validity of the notice, and (3) about the default in the payment of rent. Both the courts were one in holding that the notice was not invalid, Smt. Naji Bai could bring the suit against the defendant seeking his eviction and that the defendant was defaulter in the payment of rent and was consequently liable to be evicted. In assailing the judgment and decree of the lower appellate court (Additional Civil Judge, Udaipur), learned counsel for the appellant-tenant contends (1) that the notice that was given by Smt. Niji Bai was invalid on two grounds; firstly, she had no authority to determine the tenancy as she had no right, title or interest in the property of deceased Onkar, and according, as the tenancy was not determined in accordance with sec. 105 of the Transfer of Property Act effective from the last day of the month of tenancy 2) that the suit could not have been filed by Smt. Niji Bai particularly about the relief of possession and (3) that the defendant was not a defaulter in the payment of rent counsel made reference to a number of cases to fortify himself namely, J. C. Chatterjee vs S. K. Tandon (l), State of U. P. vs. Satya Narain (2), H. S. Rikhy vs. New Delhi Municipility (3), Babu Bhai vs. Bhagwandas (4), Rameshwar vs. Rame-shwar (5) and Calcutta L & S. Co. vs. Victor Oil Co. (6 ). Now, in the plaint it was averred that as the defendant was not paying the rent regularly the plaintiff served a notice through her Advocate Shri Sunderlal Sharma on 11. 10. 67 calling upon the defendant to hand over possession of the property upto 1. 11. 67. In his written statement the defendant denied the relevant para 8 of the plaint asserting that the plaintiff had no right to get the shop vacated and further that the notice was received from her, but was suitably replied. It was further averred that the notice was not in accordance with sec. 106 of the Transfer of Property Act. It is evident from the tenor of para 8 of the written statement of defendant No. 1 that the authority of the plaintiff to give the notice determining the tenancy was not specifically questioned. All that was stared regarding the validity of the notice was that it did not comply with the provisions of sec. 106 of the Transfer of Property Act. In a case recently decided by me S. B. Civil Second Appeal No. 831 of 1972 Kalyanmal vs. Vimalchand, on 18-9-73 I had occasion to consider the point whether all the co-owners of the property were not alleged to have joined in the giving of notice for determining the tenancy. It was argued on behalf of the tenant in that case that the notice was invalid, as one of the co-owners alone could not have determined the tenancy. The plea regarding the invalidity of the notice taken in the written statement was of a general nature and it was not pleaded that the notice was bad because it was given by one of the co-owner only. Relying on the observations made in 1973 R. C. R. 561 Nanalal Girdharilal vs. Gulamnabi Jamalbhai Motorwala which was cited by learned counsel for the tenant himself I reached the conclusion that the authority of one of the co-owners to give such notice has to be disputed and when it is so disputed it will have to be established to the satisfaction of the court. It was further pointed out that the invalidity of the notice may arise on a number of grounds; some may be purely legal, but others may be factual. Lack of authority on the part of the person giving the notice would turn on a question of fact and, therefore, a dispute has to be raised about the authority of the person giving the notice, moreso when an advocate was giving the notice. Granting that on account of his committing the murder of his own father Onkar, Bherulal would not be entitled to inherit such of the property as belonged to Onkar, there could be no doubt that in that event Bherulal's property would devolve on his three daughters All the three daughters were party to the proceedings u/s 19a of the Act, initiated by none other than the tenant himself and, there they had taken the stand that the deposited rent be paid to Suit. Niji Bai. Likewise, in the present suit not only they did not question the authority of Smt. Niji Bai to take the rent of the property, but they stared that though Smt. Niji Bai had no right over the property yet they had made provision for her maintenance and had accordingly given a direction to the tenant, defendant No. 1, to pay rent to Smt. NCI Bai. Therefore, it is quite clear that even the real heirs of the deceased Bherulal had authorised Smt. NCI Bai to take the rent and appropriate it for her own maintenance. Here I should not be understood to express any opinion regarding the rights of Bherulal in the property. Though according to sec. 25 of the Hindu Succession Act, 1956 he disqualified from inheriting his father's property, if the property is found to be the joint family property or any other kind of joint property of Bherulal and his father. Whereas Smt. Naji Bai may have no claims for maintenance on the property belonging to Onkar, she would according to sec. 13 of the Hindu Maintenance and Adoptions Act, 1956 be entitled to get maintenance from the property of her husband. It is understandable that the daughters of deceased Onkar would agree to Smt. Naji Bai having the rent of the suit property for her own maintenance. In this context the question has to be considered whether she could file the suit for eviction against the tenant. Before, however, I embark on the consideration of this question I may dispose of the other contention of the learned counsel that the notice Ex. 5 was bad, because the tenancy was not determined from the end of the month of the tenancy. I may read the relevant portion of the notice: *** The governing words in notice regarding the point of termination of the tenancy are that the possession of the shop be made over upto 1st of November, 1967. To my mind, it means that the tenancy came to be determined with the end of preceding day i. e. , October 1, 1967 which was the last day of the calender month, the tenancy being a monthly one commencing from the 1st. Learned counsel relied on Calcutta L. & S. Co. vs. Victor Oil Go. (6) for showing that such a direction in the notice would mean that the tenancy would end not on the 31st October, but on the 1st of November. In the cited case the tenancy was an oral one. It was monthly and started from the 1st of June, 1936. The tenant company went into possession on the 1st of June, 1963. On 13th November, 1940 the landlord Company served a notice upon the tenant Company to give up possession of the premises "on the expiry of 1st December, 1940. " The words within inverted commas make all the difference. The handing over of the possession was desired by the landlord company on the expiry of the 1st i. e. from the commencement of the 2nd of December, 1940. In the present case the handing over of possession was desired upto the 1st of November, 1957. Therefore, the notice cannot be said to be invalid on this ground. Learned counsel argued that this notice does not state that the tenancy was being determined. It is true, in so many word, it is not stated that the tenancy was being determined, but the notice in unmistakable terms points out that the plaintiff did not want to keep the tenant and he was, therefore, called upon to hand over possession of the property upto 1st of November, 1967. This manifests the clear intention on the part of the plaintiff to put an end to the tenancy with effect from the date preceding the 1st of November, 1967. The notice is, therefore, not invalid on any of the grounds taken by learned counsel for the appellant.
(3.) I may come back to the question whether Smt Niji Bai could have sued for the eviction of the tenant. There are three distinct circumstances which go to show that Smt Niji Bai was the landlord of the appellant at the relevant time and could not only recover the rent, but sue for eviction. The first is that ever since the death of Onkar in 1958 or 1959 it was Smt. Niji Bai to whom the tenant on his own showing bad been paying the rent. Then came the stage when the tenant felt constrained to make the application before the learned Munsif under sec. 19a of the Act (Ex1 on record ). In para 5 of that application it was stated by the tenant that after Onkar had been murdered by Bherulal Smt. Niji Bai, Bherulal's wife had been taking rent from him. In para 6 he made grievance of the fact that from 1-4-1965 Bherulal's wife had stopped taking rent from him and even the amount of rent sent by money order had been refused. In that way 5 months rent had fallen in arrears. In para 7 of the application he stated that deceased Onkar had three daughters who were named in the petition and they, according to the tenant, were the heirs of Onkar and a doubt had, therefore, arisen in the tenant's mind as to who would be entitled to take the rent from him. He, therefore, prayed that the rent be deposited and pud to the person entitled to receive the rent. This resulted in order Ex. 2 which I may read *** The above order shows that the parties were agreed that as rent was being taken by Smt. Niji Bai in the past she should be paid the rent lying in deposit. Therefore, there is reason to think that the doubt of defendant as to who was entitled to receive the rent from him was not removed. It will be a rare case when such a doubt would arise second time, because the requirement for invoking the procedure under sec. 19a of the Act is that there should be bona fide doubt in the mind of the tenant as to who was entitled to receive the rent from him, when there were more than one claimants demanding rent from him. Then after the suit was filed the three daughters of Onkar had submitted a joint written statement. Though in this written statement they asserted their own claim over the property of their father, the daughters of Onkar yet conceded that it was the plaintiff who was entitled to receive the rent from the defendant-tenant to whom also they had given a direction to pay the rent to the plaintiff. In view of the this clear stand taken by the three daughters of Onkar who, undoubtedly, were his heirs according to the defendant himself there could be no manner of doubt that the plaintiff was entitled to recover the rent from the defendant. The next question is whether this would entitle the plaintiff to evict the tenant. Learned counsel for the appellant took the stand that at best the position of Naji Bai was that of a rent collector or an agent and, therefore, although she might be entitled to sue for recovery of rent she could not be entitled to ask for the tenant's eviction. In elaborating his argument learned counsel pointed out that in sec. 13 of the Act several grounds of eviction were peculiar in a landlord who was having the property for himself in contradistinction to such of the landlords who might come within the enlarged definition of the term "landlords' in sec. 3 of the Act yet they would not be entitled to sue for eviction. I may read the relevent definition: " Sec. 3 (iii) "landlord" means any person who for the time being is receiving or is entitled to receive the rent of any premises whether on his own account or as an agent, trustee, guardian or receiver for any other person, or who would so receive or be entitled to receive the tent if the premises were let to a tenant; it includes a tenant in relation to a sub-tenant. " Now, Smt. Niji Bai is a person who for the time being is receiving the rent. She is also entitled to receive the rent of the premises. This definition comprises such of the persons who receive or are entitled to receive the rent whether of their own account or in their capacity as agent, trustee, guardian or receiver or any other person. The definition also includes a tenant in relation to a sub-tenant. Now there is no doubt that Smt. Niji Bai was receiving the rent on her own account, that was to be utilised for her own maintenance in receiving the rent she was not accountable to any other person. Therefore, she is a landlord in her own right within the meaning of this sub-section. It is true. sec. 13 deals with several grounds of eviction and many of the grounds for example, one of bona fide personal necessity of the landlord, will be peculiar to the landlord who sues for eviction and it will be requirement of that landlord which will have to be established. An agent, trustee, guardian or receiver who acts for others may not be entitled to seek eviction on account of their own personal needs even though such persons fall under the definition of the term "landlord", but they would certainly be entitled to seek the eviction on the ground of default. ;