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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 4513-4514  OF_2017 (Arising out of SLP (Civil) Nos. 29019-29020 of 2015)

Gauri Shankar                       …. Appellant

Versus

Rakesh Kumar and Ors.               .... Respondents

J U D G M E N T

A.M.KHANWILKAR, J.

1. The Appellant filed a suit for dissolution of partnership of

a  jewellery  shop  and  rendition  of  accounts  against  Rakesh

Kumar (Respondent No. 1), Maya Devi (Respondent No. 2) and

Bal  Mukund  Verma  (predecessor  of  Respondents).  The  suit

was  decreed  in  favour  of  the  Appellant  inter  alia  with  a

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declaration that the possession of the suit shop was for the

benefit  of  the  Appellant  and  Respondent  No.  1  as

joint-tenants.

2. The Respondents filed two separate appeals which were

disposed  of  by  the  first  appellate  Court  vide  a  common

judgment on 03.02.2005. In the said appeal, the declaration

regarding the tenancy rights of the Appellant in the suit shop

was reversed on the finding that the tenancy was surrendered

by  one  partner.  The  first  appellate  court  relying  on  the

decisions in the cases of  Kanji Manji Vs. Trustee of Port of

Bombay1; H.C. Pandey Vs. G.C. Paul2; and H.C. Pandey Vs.

G. C Kaul3,  opined that notice of surrender of tenancy given

by one of  the co-tenants and a decree of  possession of  the

tenanted premises passed on that basis will  bind the other.

The first appellate court found that the tenancy surrendered

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AIR   1963 SC  468 2

AIR 1989 SC 1470 3

AIE 1995 SC 676

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by one of the joint tenants, even if without the consent of the

other, would bind the other joint tenant.   

3. Aggrieved, the Appellant filed a second appeal before the

High Court of Delhi at New Delhi being RSA 146/2005. By the

impugned judgment dated 02.12.2013, the second appeal was

dismissed by the learned Single Judge on the sole ground that

the  question  as  to  whether  the  tenancy  rights  could  be

surrendered by one of the joint-tenants without the consent or

concurrence  of  the  other  is  a  question  of  fact  and  not  a

question of law much less a substantial question of law. The

Appellant  filed  a  review/recall  application  against  the

aforementioned  impugned  judgment  before  the  High  Court,

which  was  rejected  on  22.08.2014.  The  Appellant  has

challenged  both  these  judgments  of  the  High  Court  in  the

present appeals.

4. The grievance of the Appellant is that the Appellant had

raised substantial questions of law as articulated in the Memo

of Second Appeal,  in paragraph 8(K).  The main grievance of

the Appellant was that the Respondent No. 1 – joint-tenant

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had surrendered the  entire  tenancy rights  in  the  suit  shop

without  the  consent  or  knowledge  of  the  Appellant,  in  a

deceitful and fraudulent manner.  In that, the surrender of the

tenancy was unilateral,  unauthorized and collusive  between

the landlady who is the mother of Respondent No. 1 and the

new tenant inducted in the suit shop (original defendant No. 3

before the Trial Court) who was none other than the father of

Respondent No. 1.  According to the Appellant, in the present

case, the act of surrender of joint-tenancy by the Respondent

No. 1 was a subterfuge and fraud played so as to defeat the

rights  of  the  Appellant  in  the  suit  shop.  Further,  the  first

appellate  Court,  without  dealing  with  the  finding  of  fact

recorded by the trial court on this aspect, reversed the well

considered view taken by the trial  court.  The first  appellate

court  merely  relied  upon  the  decisions  which  could  be

distinguished and not relevant to the specific plea taken by the

Appellant.   This  grievance made by the Appellant  has been

completely  glossed  over  by  the  learned  single  Judge  of  the

High Court.  The High Court proceeded to reject the second

appeal without addressing the real issues, by merely stating

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that  the  fact  as  to  whether  the  tenancy  rights  could  be

surrendered by one of the partners is a question of fact.  

5. We have heard the learned counsel for the parties. With

their  able  assistance,  we have  perused the relevant records

and  the  judgments  impugned  in  the  present  appeals.   We

agree with the Appellant that the learned single Judge of the

High Court has failed to refer to the substantial questions of

law formulated  by  the  Appellant  in  the  Memo of  Appeal  in

Paragraph  8(K).  Further,  the  specific  plea  taken  by  the

Appellant,  that  the  alleged  surrender  of  joint  tenancy  by

Respondent  No.  1  was  a  deceitful  and  fraudulent  act  not

binding on the Appellant nor could impact the joint tenancy in

respect of the suit shop, has not been examined by the High

Court.  The  material  facts  to  establish  that  plea  have  been

brought on record by the Appellant and duly noticed by the

trial  court.  However,  the  efficacy  thereof  has  not  been

considered  either  by  the  first  appellate  Court  or  the  High

Court.  The  High  Court  was  obliged  to  examine  the

aforementioned pleas taken by  the  Appellant  including  that

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the decisions of this Court relied upon by the first appellate

Court  to  answer  the  issue  against  the  Appellant  were

inapplicable to the fact situation of the present case and could

be distinguished.   

6. As  a  result,  we  find  merit  in  the  argument  of  the

Appellant that the parties be relegated before the High Court

for a fresh consideration of the second appeal on its own merit

in accordance with law and more so, the substantial questions

of law formulated by the Appellant which are as under:-   

“i. Whether the tenancy of Respondent No. 1 and  2  as  created  w.e.f.  01.09.1975  in respect  of  Suit  premises  No.  47,  UB, Jawahar  Nagar,  Delhi  –  11006  jointly  in their name can be said to be joint tenancy as contemplated in the judgment AIR 1988 SC 1470 “S.C.  Pandey  versus  G.C.  Paul” which were passed in the context  of  joint tenancy conferred on the body of the legal heir of deceased or not?

ii.  Whether the Ld. Appellate Court was duty bound  to  address  all  issues  and  give finding  therein  after  re-appraisal  of  the facts and was not competent to uphold the finding summarily as sought to be done by the judgment dated 03.02.2005 or not?

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iii. Whether the Ld. Appellate Court was duty bound  to  deal  with  other  issues  except Issue No. 6?

iv. Whether  the  Judgment/Decree  of  the  Ld. Appellate  Court  dated  03.02.2005  was perverse and in breach of its jurisdiction as the  appellate  court  by  not  giving independent finding passed on re-appraisal of pleading and evidence on record?

v. Whether the Ld. Appellate Court upholding other  issues  ought  to  have  passed  such further  direction  for  passing  of  the preliminary decree of rendition of account to its  logical  end  as  appointment  of  Local Commissioner and its terms set lapsed by then or not?”

7. We may not be understood to have formulated the above

noted questions while remitting the second appeal. It will be

open  to  the  High  Court  to  reformulate  the  substantial

questions  of  law  or  permit  the  parties  to  urge  any  further

substantial questions of law that may require consideration by

the High Court.  

8. Accordingly,  we  set  aside  the  judgments  and  orders

passed by the High Court dated 02.12.2013 and 22.08.2014

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and instead restore the second appeal to the file of the High

Court to its original number for fresh consideration on its own

merit in accordance with law. The parties shall appear before

the High Court on 17th April, 2017 when the High Court may

assign a suitable date for hearing of the second appeal.  We

request the High Court to expeditiously dispose of the second

appeal.

9. The appeals are allowed in the above terms.  No order as

to costs.  

                                      …..……………………………..J.         (Dipak Misra)

                                       .…..…………………………..J. (A.M.Khanwilkar)

                                        .…..…………………………..J. (Mohan M. Shantanagoudar)

New Delhi, Dated: March 29,  2017

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