The Delhi High Court has observed that registration is not required where the family arrangement is oral and is only required if the terms of the arrangement are in writing.
“It is well established that registration would only be necessary if the terms of the family arrangement are in writing. Here too, a distinction should be made between a document containing the terms and recitals of a family arrangement concluded under the document and a simple memorandum prepared after the family arrangement has already been concluded either for the purposes of the file or for information from the court to make the necessary transfer. In such a case, the memorandum itself does not create or extinguish any rights in immovable property and therefore does not fall under section 17(2) of the Registration Act and is not therefore not necessarily recordable.” Judge Najmi Waziri reiterated.
Raise was placed on Korukonda Chalapathi Rao v. Korukonda Annapurna Sampath Kumar.
The Court was seized of a plea filed by two persons contesting the order made by the controller of additional rents granting the respondent tenant leave to defend. The development had ensued in the petitioner’s application for the tenant’s eviction under s. 14(1)(e) of the Delhi Rent Control Act, 1958.
Since 1983, the tenant occupied the rented premises. Petitioner #1’s son and daughter-in-law were professionals. Since 2009, the son was a practicing lawyer in Delhi, his wife was a chartered accountant. They depended on petitioner no. 1 for their offices.
According to them, there could be no other place more suitable, convenient and a more prestigious address than the rental premises that were present in the heart of New Delhi, ie Connaught Place.
The existence of a landlord-tenant relationship was not contested. The owners of the petitioners had brought archival documents to show their right and title to the property.
The only reason the authorization to defend was granted was that the tenants had established a justiciable case concerning the plaintiff landlords who had another dwelling nearby.
In the application for authorization to defend, the respondent tenant had argued that the authorization to defend had been correctly granted because the landlord was looking for additional accommodation when he already had possession of another vacant space in the same building that was previously occupied by the bank, now left vacant.
In the eviction petition, the petitioners’ landlords had explained in detail why the ground floor store, although larger than the rented premises, was unsuitable.
The solicitor representing the claimant owners argued that the two stores that would have been available with them were so small that a table and chair could barely fit in them, let alone be used as a solicitor’s consulting office. or a chartered accountant.
Furthermore, it was argued that the said store did not have and there was no possibility of constructing a toilet or a conference room or waiting room or space for office staff, the pantries and other conveniences, which were necessary for a modern law. office and/or CA office.
“It is well established law that as regards the suitability of the rented premises for the real needs of the owners, the landlord is the best judge. It is the prerogative of the landlord to determine the suitability of the land / the space available with him for the need espoused. The lessee may not dictate or instruct a landlord as to how and what property of the latter shall be used for what purpose” said the court.
The Court noted that the owner’s need was commercial and that the property was used for residential purposes and could not be used for commercial purposes. Therefore, the Court declared that ex-facie the said property could not be considered as an alternative accommodation available with the owner.
The Court also took note of the comprehensive family arrangement that had been reached regarding residential and commercial properties belonging to the family and which was subsequently crystallized and registered.
“A family arrangement can even be an oral arrangement, in which case no registration is necessary. It is only necessary if the terms of the family arrangement are put down in writing”, said the court.
The court was therefore of the view that the impugned order erred in granting leave to defend because there was no litigable issue raised by the tenant, which had to be decided.
“The Claimants had honestly disclosed all the properties they owned and the fact that of all these properties none were available or suitable as alternative accommodation,” he added.
While allowing the motion, the Court however added that under the terms of art. 14(7) of the Delhi Rent Control Act 1958, the order will not be enforceable for a period of six months.
Case title: DR. SANJIV GUPTA & ANR. v. SH. VERMA SS
Citation: 2022 LiveLaw (Deleted) 390
Click here to read the order