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The Top Court in its judgment on Monday observed; (1) A petition styled as one under Article 226 would not bar the High Court to exercise jurisdiction under any special Act or under Article 227 of the Constitution (2) Contract of Tenancy is an independent contract than the joint Hindu family business; no presumption of joint Hindu family property where business activity is carried out by an individual in a tenanted premise.

A Full bench of Justice Ashok Bhushan, Justice S. Abdul Nazeer and Justice Hemant Gupta, while allowing the present appeal, noted, “The jurisdiction of the High Court to examine the correctness, legality and propriety of determination of any dispute by the Tribunal is reserved with the High Court. The nomenclature of the proceedings as a petition under Article 226 or a petition under Article 227 is wholly inconsequential and immaterial.”

With respect to the presumption of Hindu joint family in the given facts and circumstances, the bench observed, “… even if a male member had taken premises on rent, he is tenant in his individual capacity and not as Karta of Joint Hindu Family in the absence of any evidence that Karta was doing the business for and on behalf of Joint Hindu Family. The High Court has presumed the existence of the joint family of which Ram Sewak Ram was said to be the Karta from perusal of the Ration Card issued on 2.12.1949. The Hindu Joint Family cannot be presumed to be in existence only on the basis of Ration Card unless there is evidence that the funds of joint Hindu family were invested in the business in the tenanted premises.”

It was thus concluded that High Court committed a basic error in presuming that payment of rent or ration card established that the tenant was carrying out a joint Hindu Family Business.

The challenge in the present appeal is to an order passed by the Patna High Court dated 6.2.2013 whereby a writ petition filed by respondent 4 was allowed, holding that the tenant of the premises in question was representing a joint Hindu family and that the Karta was not competent to surrender the tenancy rights in favour of respondent 1, that is, The Bihar State Sunni Wakf Board and consequently the induction of the appellant as a tenant by the Wakf Board was illegal.

The cause of action is said to have been accrued on 21.3.1996 when the plaintiff’s grandfather along with others broke the lock of the suit premises and removed the belongings available in the shop.

A complaint before the CJM, Patna was subsequently lodged.

Appellant and the Wakf Board filed applications before the Civil Court for transfer of the suit for adjudication by the Wakf Tribunal in terms of provisions of Section 85 and 85A of the Wakf Act, 1995.

The suit was thus transferred by the learned Munsif on 4.2.2009.

Following issues were adjudicated by the Wakf Board, namely, (i) Whether Devendra Prasad was running a joint family business? (ii) Whether Devendra Prasad as Karta of joint family business has got authority to surrender the joint family business? (iii) Whether Devendra Prasad surrendered joint family business or premises of joint family business? (iv) Whether the plaintiff is entitled to any other relief?

It was discarded by the Tribunal that Devendra Prasad was managing a joint family business and consequently other issues were similarly determined. This came to be challenged before the High Court which set aside the findings of the Tribunal, dispossessing the appellant from the suit premises and directing handover of the vacant possession to the plaintiff.

Counsel for the Appellant submitted on five grounds, namely,

(1) The Tribunal had no jurisdiction to entertain the suit filed by the plaintiff in view of the judgment in Ramesh Gobindram v. Sugra Humayun, (2010) 8 SCC 726. Reliance was also placed on Punjab Wakf Board v. Sham Singh, (2019) 4 SCC 698.

(2) The order of the Wakf Tribunal could not be challenged by way of writ petition before the High Court under Article 226 of the Constitution of India as only a revision in terms of proviso to sub-section (9) of Section 83 of the Act could be preferred.

(3) The High Court could not have reappreciated facts in a petition under Article 227 of the Constitution.

(4) The surrender of possession of the tenanted premises by defendant 1 was not of a business of joint Hindu family but of the tenancy which was not been carried out for large number of years even as admitted by the plaintiff.

(5) Even if it was assumed that defendant No. 1 was a Karta of the joint Hindu family, he had the right to surrender the tenancy without the consent of the other coparceners as such surrender was for the benefit of the family inter-alia for the reason that no business was carried out for the last many years.

Court in its judgment, inter alia, relied and referred; Powers of Karta of a Joint Hindu Family as described in 22^nd Edition of Hindu Law by Mulla (para 240), PS Sairam v. PS Rama Rao (2004) 11 SCC 320, G. Narayana Raju v. G. Chamaraju AIR 1968 SC 1276, PKPS Pichappa Chettiar v. Chockalingam Pillai AIR 1934 PC 192, Municipal Corporation v. Ben Hiraben Manilal (1983) 2 SCC 422.

Case Title: Kiran Devi v. Bihar State Sunni Wakf Board | CIVIL APPEAL NO. 6149 of 2015