Heard learned counsel for the parties and perused the record.
Sushil Kumar Srivastava, husband of petitioner no. 1 Rajkali Devi filed suit no. 291 of 1993 Sushil Kumar Srivastava vs. Heera Lal was for arrears of rent and eviction of the tenant respondent no.2 from two rooms of house no. 352 Badshahi Mandi, Allahabad. A decree dated 25.5.1993 was issued directing the tenant to pay the arrears of rent and damages @ Rs.25/- per month instead of Rs.50/- per month as claimed by the plaintiff. Aggrieved by the decree dated 25.5.1993, Civil Revision no. 219 of 1993 was preferred by Heera Lal the tenant. Revision No.226 of 1993 was also preferred by Sushil Kumar Srivastava the landlord against the decree of the trial court aforesaid for arrear of rent at the rate claimed by the plaintiff. Both the revisions after admission were transferred and were pending in the Court of XI Additional District Judge, Allahabad.
During the pendency of the revisions the plaintiff Sushil Kumar Srivastava died on 16.10.1995. Substitution application 7-C was moved by his widow, two sons and three married daughters, namely Smt. Ranjana Srivastava, Smt. Anjana Srivastava and Smt. Karuna Srivastava in revision no. 226 of 1993 filed by the landlord. Another substitution application 13-C was moved by the tenant Heera Lal in revision no. 219 of 1993 filed by him for substitution of Smt. RajKali Devi(wrongly typed as Rawali Devi) the widow of the landlord, and his two sons namely Sri Deepak Kumar Srivastava and Sri Sameer Kumar Srivastava stating them to be the only legal heirs and representatives without mentioning daughters of the deceased.
Objection to the effect that estate of the deceased was also succeeded by his three married daughters who had not been brought on record by revisionist tenant Heera Lal in Civil Suit no. 219 of 1993 though he knew about as such the said revision stood abated after lapse of more than 90 days since the death of the landlord.
On 1.5.1997 the Court allowed the substitution applications filed by the parties in both the revisions aforesaid, for substitution of legal heirs and representatives of the deceased landlord. It appears that at the time of passing the order allowing the substitution application, counsel for the plaintiff landlord was not in the Court. It is claimed that petitioners had gone to call the counsel but in the meantime order had been passed in both the revisions. It appears that thereafter learned counsel for the petitioner came and pointed out the matter in controversy and after hearing him the Court observed that this question can be raised at the time of hearing of the revisions. The case was thereafter taken upon 12.8.1997. In the meantime, the presiding Officer was transferred, and when the aforesaid fact was brought to the notice of the new incumbent, he directed the petitioners to move an application bringing all these facts on record. Consequently, application Paper No. 19-C was moved on 12.8.1997 by the learned counsel for the petitioner with a prayer that revision no. 219 of 1993 be abated under Order 22 Rule 4 C.P.C. and the file may be consigned to the record. Objections were invited by the Court from the opposite parties and the matter was heard on 23.5.1998. The application Paper No. 19-C filed by the petitioners was rejected on the ground that in the rent control matters married daughters do not fall within the definition of 'Family' as defined in section 3(g) of U.P. Act 13 of 1972 hence they cannot be substituted as legal heirs and representatives of the deceased landlord. The Court further held that since order on this substitution application had not been challenged, therefore it cannot be said that legal heirs and representatives have been incorrectly substituted.
In the aforesaid backdrop the petitioners moved another application Paper No. 21-C under Section 151 read with section 152 C.P.C. with prayer to recall order dated 23.5.1998 and to allow the application 19-C moved by the petitioners earlier interalia on the ground that order dated 23.5.1998 suffers from an error committed by the Court apparent on face of record. An objection was filed by opposite party no. 2 in which it was averred that since order allowing substitution application 19-C dated 12.8.1998 moved by the petitioners and the objections against it bearing paper no. 20-C were heard and disposed of after hearing both the parties have become final between the parties as such the application 21-C is bared by time and is liable to be rejected.
The application Paper 21-C was rejected by the Court after hearing, by order dated 13.11.1998 on the ground that since order dated 1.5.1997 allowing the substitution application was not challenged, by way of any revision or writ in the High Court, hence it cannot be reviewed. It was further observed that if petitioners are aggrieved, they may pray for relief from the High Court. Consequently, petitioners have challenged order dated 13.11.1998 in the present writ petition praying for relief by issuing a writ of certiorari quashing the impugned order dated 13.11.1998 passed by XI Additional District Judge, Allahabad, appended as annexure 8 to the writ petition by which application paper no. 21-C has been rejected.
The moot point for consideration by this Court is as to whether married daughters of landlord are necessary and proper parties in the suit and it would abate if married daughters are not impleaded as party in the facts and circumstances of this case for evidence of tenant under Act no. XIII of 1972.
The contention of learned counsel for respondents is that since married daughters are excluded from the definition of 'Family' under Section 3(g) of UP Act No. XIII of 1972 therefore application moved by tenant was bona fide and daughters are not required to be impleaded as legal heirs and representatives of landlord.
Per contra, learned counsel for the petitioners stated that the daughters though may not fall within Section 3(g) of definition of 'Family" under the U.P. Act No. XIII of 1972 yet married daughters in the Hindu community have independent share in the property of their father. Therefore irrespective of the definition of 'Family" contained in U.P. Act No. XIII of 1972, married daughters were essentially required to have been substituted also as legal heirs and representatives alongwith two sons and the widow of the deceased.
I have given considerable thought to the rights of married daughters to the estate of a deceased Hindu. The law is well settled that the daughters of a Hindu have respective shares in the ancestral as well as the property earned by their father. Even if the argument of learned counsel for the tenant is accepted on its face value that married daughters do not fall within the definition of 'Family' in U.P. Act No. XIII of 1972 even then all the married daughters would be entitled to their respective share in their father's property alongwith other legal heirs and representative.
It may be that apart from objections of learned counsel for the respondents the landlord in their application had not averred that even if daughters have not been substituted being legal heirs of their share in the estate of the deceased landlord, even the revision was sufficiently represented by the widow Rajkali Devi and two sons of the deceased and there could be no abatement.
Note may also be taken of the fact that Court below had allowed both the applications for substitution in the respective revisions filed by the landlord and the tenant. The application filed by landlord mentions widow Rajkali Devi, two sons and three married daughters of the deceased whereas in the substitution application filed by the tenant the three married daughters have not been mentioned. Both the revisions had been consolidated and having been filed by the landlord and the tenant against a common judgment. In my considered opinion any defect in the substitution application filed by the tenant stood cured by the very order passed on the application of the landlord whereby the Court had allowed the substitution application for substitution of widow, two sons and three married daughters of the deceased. Hence, in any event, the substitution of three married daughters having share in the property of the deceased are necessary and proper parties as they also represent the estate of the deceased. They having been substituted in revision no. 226 of 1993, and both the revisions having been consolidated could be proceeded with as all the legal heirs and representatives of the deceased landlord are represented.