1. This first rent appeal has been filed by the appellant against the order, dated 18-9-1997 passed by 3rd Rent Controller, Karachi, Central in Rent Case No,350 of 1995 filed by the respondents herein, allowing the same.
2. The brief facts as per the eviction application, are that Property No,925/2, situated in Azizabad, Karachi was originally owned by Muhammad Zakaria Khawaja who gifted the said property to his wife Begum Shamsa Khawaja. The said Muhammad Zakria Khawaja died on 1-6-1974. One Mehrunnisa alleging herself to be the widow of the deceased, filed Suit No,283 of 1977 for administration and accounts against Begum Shamsa Khawaja, which was dismissed vide order, dated 4-2-1991. According to the respondents, the said Begum' Shamsa Khawaja let out a portion of the said property to the appellant on monthly rent of Rs,450. On 1-11-1989, the said Begum Shamsa Khawaja expired and, thereafter, the said property was inherited by the respondents who informed the appellant about the change in ownership. However, since the appellant stopped paying rent to the respondents, they filed Rent Case No,350 of 1995 on the ground of default in payment of rent, for the personal bona fide use of the co-owners and alteration and addition to the rented premises resulting damage to the premises impairing utility and causing nuisance.
3. However, the last ground was not pressed. The notice of the said rent application was issued to the appellant/tenant who filed written statement denying the allegations contained therein and stated that he had paid rent first to one of the respondents then to Mehrunnisa who claimed to be the wife of late M.Z. Khawaja and produced a will in her favour and then coming to know about the dispute between the legal heirs he deposited the rent in the Court as such no wilful default was committed.
4. Anis Ahmed respondent No,1 herein, one of the co-owners and attorney filed his affidavit-in- evidence and was cross-examined while the appellant examined himself. On the basis of pleadings the following issues were framed:-- "(1) Whether there exist relationship of landlord and tenant between the parties?
(2) Whether the opponent has committed wilful default in payment of rent by not paying/tendering/depositing rent to the applicant since January, 1995 to May, 1995?
(3) Whether the applicants require the premises in question for personal bona fide use for one of the applicant, Fakhar Jehan?
(4) What should the order be?"
5. After hearing the parties the learned Rent Controller passed the impugned order allowing the rent application.
6. The contention of the learned counsel for the appellant/tenant is that the learned Rent Controller erred in passing the impugned judgment and holding the appellant as wilful defaulter in spite of the fact that all efforts were made to tender rent and finally it was deposited in Court. It was further submitted that although the dispute was in regard to relationship of landlord and tenant yet no tentative rent order was passed by the learned Rent Controller, and relied on the case of Mst. Latifa Khanum v. Syed Zahoorul Hassan 1984 CLC 1009. His next contention was that the finding of the Rent Controller in regard to the ownership of the property is based on the mutation which is not equitable as mutation does not confer any title.
7. On the other hand Mr. Syed Zahir Hussain Chishti, the learned counsel for the respondent contended that the appellant failed to tender rent to the respondent/landlord although a notice under section 18 of the Sindh Rented Premises Ordinance was served on them. According to him, the subject property was inherited by the respondents from Begum Shamsa Khawaja being the only serviving legal heir and that the said property was gifted to her by her husband late M.Z.
8. Khawaja through an oral gift. His contention is that according to Muhammadan Law once an oral gift is made and the donee is already in constructive possession no further steps are necessary for the transfer of the property in the name of donee and he relied on the case of Muhammad Zaman Khan v. The Additional Chief Land Commissioner 1986 SCM R 1121.
9. I have heard both the counsels and have considered the contentions raised before me.
10. The facts as per record are that the property stood in the name of the original owner M.Z. Khawaja even after his death till 1-11-1989 when Mst. Shamsa Khawaja died. It has also come on the record that a notice under section 18 of the SRPO was served by the respondents on the appellant/tenant directing him to pay the rent to them being the legal owners of the plaintiffs after the death of Mst.
11. Shamsa Khawaja. The record also indicates that one Mst. Mehrunnisa had filed a case against Shamsa Khawaja for Administration and accounts bearing Suit No,283 of 1977, which was dismissed for. Non-prosecution. Apart from the issues framed by the learned Rent Controller the main issue which arises is whether the respondents being legal heirs of Shamsa Khawaja could inherit and can be held as real owners/landlords of the property which stood in the name of M.Z.
12. Khawaja on the day when Mst. Shamsa Khawaja sister of the respondents expired. Admittedly, no succession certificate or heirship certificate or any other such document has been produced by the respondents to indicate that they are the only surviving legal heirs of Shamsa Khawaja.
13. Although the 'contention raised on behalf of the respondents is that Mst. Mehrunnisa was set up by the interested persons and that M.Z. Khawaja never married anybody else except Mst. Shamsa Khawaja but it was not disclosed as to who could be the interested person. No independent witnesses were produced by the respondents who could vouch that the respondents are the only surviving legal heirs or the fact that Mst. Shamsa Khawaja was the only legally-wedded wife of the deceased M.Z. Khawaja. It is under these circumstances that the case is to be dealt with.
14. It has not been denied by respondent No,1 that the rent for the month of November, 1989, was not paid to him. However, it is alleged by the appellant/tenant which has not been denied by the respondent that the rent for subsequent month was not accepted by the said respondent.
15. Meanwhile, Mst. Mehrunnisa claiming to be the legally-wedded wife of deceased M.Z. Khawaja approached him and also produced a copy of will and demanded rent. Under the circumstances the tenant had no option but to make payment to her. Subsequently, after service of notice, dated 2-1-1992 by Mehrunnisa and keeping in view of refusal by the respondent No,1 the appellant/tenant deposited rent in Miscellaneous Rent Case No,103 of 1990 from December, 1989. But when again approached by the respondents rent was deposited under Miscellaneous Rent Case No,168 of 1992 under the joint names of respondent No,1 and Mst. Mehrunnisa and the appellant continues to deposit the same in Court. It has also come on record that another application was filed previously by the present respondents claiming default for December, 1989 till filing of the application in 1992 which was withdrawn. The claim of default in the present case is from January, 1995 to May, 1995.
16. The respondent No,1 in his evidence has admitted that the disputed premises remained in the name of M.Z. Khawaja throughout and it was transferred/mutated in their names from him. The entire evidence indicates that the appellant/tenant was trying to locate and ascertain as to who was the real owner/landlord to whom he could pay rent and being so confused tendered rent to two different persons and then deposited the same in Court. The above efforts not only support the contention of the appellant/tenant that he was making all possible efforts to ascertain the real owner/landlord of the premises as defined in the Sindh Rented Premises Ordinance, 1979 to tender the rent, and in the absence of such clarification he adopted the only option left to him i,e, to deposit the same in Court. Legal notices served on the tenant have not been denied. The rent receipts for the month of January to May, 1995 are on the record and the rent has been deposited under Miscellaneous Rent Case No,168 of 1992.
17. The respondent through their first notice, dated 8-12-1991 intimated the appellant/tenant that they are the legal heirs of Mst. Shamsa Khawaja and have inherited the disputed property and further that the rent be paid to them since 1-11-1989. In the same notice allegations were also made against the tenant that he has trespassed into a locked room of Mst. Shamsa Khawaja and misappropriated the house-hold articles lying therein. A request was also made to vacate and hand over the vacant possession of the premises to the respondents. The tenant/appellant through his letter (undated) demanded from the respondents some evidence in support of their claim to be the legal heirs of Mst. Shamsa Khawaja and their title to the property.Through this letter he also informed them that he has received a notice from Messrs Mahmud & Co., Advocate claiming to be representing Mst. Mehrunnisa and her children allegedly to be the wife and children of deceased M.Z. Khawaja and demanding payment of rent. This letter must be of some date after 2nd January, 1992 as the notice from Mst. Mehrunnisa's counsel is so dated. Be that as it may, according to the appellant/tenant he deposited the rent for the month of December, 1989 onwards in Court under Miscellaneous Rent Case No,103 of 1990 in the name of Mehrunnisa as he was confused due to the claim of two persons posing themselves as the legal heirs. It is pertinent to note that the tenant alleged that Mehrunnisa approached him with the copy of Will in the year 1990 the legal notice served on him is dated 2-1-1992. There is nothing on record to show as to the amounts and the dates of the said deposits. The next plea taken by the appellant/tenant is that due to the claim of two persons i,e, by Mst. Mehrunnisa and the respondents he deposited the same in Miscellaneous Case No,168 of 1992 under the joint names of Mst. Mehrunnisa and the respondents and rent was deposited from January, 1995 till October, 1996. In the circumstances it cannot be said that the tenant is a wilful defaulter for the period of January, 1995 to May, 1995 as pleaded in the application. The learned Rent Controller has neither passed any tentative rent order nor looked into this aspect. Even the Nazir's report were not called to consider the entire deposits and as to dates when such deposits were made. There is no doubt that in such situation where there are more than one claimants of the disputed property and the rent is being demanded by the said claithants it is difficult for a tenant to choose between the two and in the circumstances the only recourse left is to deposit rent in Court. In the circumstances, the appellant cannot be termed as wilful defaulter.
18. In the case of Mst. Latifa Khanum and others v. Syed Zahoorul Hassan (represented by legal heirs)
19. 1984 CLC 1009, it was held as under-- ".. Under section 13(2) of Urban Rent Restriction Ordinance the Controller 'may' eject a tenant on ground of non-payment of rent. Therefore, the eviction of tenant on such ground is a matter of discretion with the Controller. But such discretion should not be exercised arbitrarily or capriciously.
20. If the facts and circumstances do not justify a clear default the discretion should be exercised in favour of the tenant."
21. Similarly under section 15 of Sindh Rented Premises Ordinance, 1979, it is the discretion of the Rent Controller to look into all the aspects of the case and use his discretion.
22. In regard to payment of rent to the respondents it is enough to say that they have not produced any document whatsoever to establish their ownership in regard to the property and the mere mutation in their names as held in various judgments of this Court and superior Courts is not enough as to establish title as contemplated under the Transfer of Property Act. The appellants are claiming their title through Mst. Shamsa Khawaja to whom the property was alleged to have been gifted but it remained in the name of M.Z. Khawaja throughout. Section 17(1)(a) of Registration Act, 1866 provides that instrument of gift of immovable property shall be registered and section 49 envisage as under:-- "Section 49. Effect of non-registration of documents required to be registered.--- No document required to be registered under this Act or under any earlier law providing for or relating to registration of documents shall-
(a) operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, to or in immovable property, or
(b) confer any power to adopt unless it has been registered."
23. As such in view of above provisions of law the contentions raised on behalf of the respondent are untenable.
24. Considering the above facts the appeal is allowed, impugned judgment, dated 18-9-1997 is set aside and the case is remanded back to the Rent Controller to decide the issue (1) Whether the appellant/tenant has defaulted in payment of rent and is a wilful defaulter, and (2) whether in the circumstances or the case rent application is maintainable on the ground of personal bona fide need of the alleged co-owners? The respondents will not be entitled to withdraw the rent till proper title documents are submitted by them to establish their ownership and, thus, entitling them to receive the rent.