S.C. Jain, J.

1. The facts giving rise to this revision petition are that Shri Ishwar Dass Rajput, petitioner herein was inducted as a tenant in respect of the ground floor portion of S-96, Greater Kailash, Part I, New Delhi, under Section 21 of the Delhi Rent Control Act for 11 months on a monthly rent of Rs. 550 by Ramji Dass Puri deceased father of the respondents. After the expiry of eleven months Ramji Dass Puri, the landlord again applied under Section 21, Delhi Rent Control Act for creation of limited tenancy for a further period of 11 months on a monthly rent of Rs. 650. Permission under Section 21 was obtained one after another till 5th February, 1976 when the application under Section 21 was rejected by the Addl. Rent Controller, but the petitioner continued to be tenant under Shri Ramji Dass Puri but the rent was increased from Rs. 650 to Rs. 800 per month from November, 1975.

2. Record shows that on 17.12.1979, Ramji Dass Puri filed an eviction petition under Section 14(1)(c) of the Delhi Rent Control Act for eviction on the allegation that he requires premises bona fide for his residence and for the members of his family members dependant upon him. Vide order dated 4.9.82 the Rent Controller allowed the eviction petition. The petitioner-tenant filed a revision petition (1078/82), which was allowed by this Court on 14.2.83 and the order of eviction was set aside. It is alleged that Ramji Dass died on 5.7.84 leaving behind four sons, Chaman Parkash Puri respondent No. 1, Ravi Dutt Puri respondent No. 2. Hashmat Rai Puri, Pran Nath Puri and two daughters who are married. Ravi Dutt, Pran Nath and Hashmat Rai are settled abroad since long. It is also alleged that Chaman Parkash Puri has been occupying the first floor and second floor of S-96, Greater Kailash. He is the only son of late Ramji Dass Puri who is living in India. Chaman Parkash Puri respondent No. 1 filed an eviction petition in September, 1984 on the ground that he and his family which consists of himself, his wife two daughters aged 18 and 16 years and that his father has left a will and according to the will he is entitled to half share in the ground floor of this property and his another brother Ravi Dutt respondent No. 2 is entitled to the other half share on the ground floor. So far as the first floor is concerned, the same has been bequeathed to Hashmat Rai and Pran Nath. He has alleged that Hashmat Rai who is settled in UK is not having any job and he has asked him to vacate the first floor and he (Chaman Parkasb Puri) wants to shift to the ground floor. Ravi Dutt is also settled in UK and he has permitted him to occupy the ground floor.

3. The tenant petitioner filed an application for leave to defend, which was allowed and he filed written statement pleading inter alia that Ramji Dass Puri the original landlord-owner left behind four sons and two daughters and all his heirs have not been impleaded as parties in the eviction petition, the eviction petition is, therefore, not maintainable. He denied the execution of any will by Ramji Dass Puri. The alleged bona fide need of the landlord was also challenged. It was further alleged that the entire first floor and the second floor are in occupation and use of Shri Chaman Parkash Puri which is more than sufficient for his residence and for the residence of his family members dependant upon him that the petition for eviction was mala fide. However the Addl. Rent Controller passed an eviction order under Section 14(1)(e) of the Delhi Rent Control Act and granted six months time to the tenant to vacate the premises in dispute.

4. Aggrieved, this revision petition has been filed.

5. A landlord may be entitled to an order of eviction under Section 14(1)(e) of the Delhi Rent Control Act if he is able to prove that (a) the premises, in question were let out for residential purpose, (b) that he is landlord and owner of the suit premises, (c) the premises are required bona fide by him for occupation as a residence for himself or for any member of his family dependant upon him or for any person for whose benefit the premises are held, and (d) that the landlord or such other person has no other reasonably suitable residential accommodation.

6. In this case, Ramji Dass Puri (deceased) father of respondent No. 1 was landlord-owner of the tenanted premises, who died on 5.7.84 leaving behind four sonsviz., Chaman Parkash Puri, respondent No. 1, Ravi Dutt respondent No. 2, Hashmat Rai Puri and Pran Nath Puri and two daughters who are married. Ravi Dutt, Hashmat Rai Puri and Pran Nath Puri are settled abroad since long. The ground floor of the property which is the premises in dispute is in occupation of the petitioner as tenant, while the entire first floor of the property, as admitted by the respondent Chaman Parkash Puri is in his occupation and use. The petitioner also alleges that the second floor of this property is also in occupation of respondent No. 1. Whatever may be the position, it is not disputed that the entire building S-96, Greater Kailash, Part-1 consists of ground floor, first floor and barsati floor on the second floor. The ground floor is in occupation of the petitioner tenant. Respondent No. 1 and his family are residing on the first floor and also using the second floor portion of this property as the other sons of Ramji Dass Puri (deceased) are living abroad and settled there and his daughters are married and are living with their in-laws. If this position, as it exists now, continues it cannot be said that respondent No. 1 is in need of any additional accommodation. The accommodation in his possession is more than sufficient for himself and members of his family dependant upon him. Respondent No. 1 filed eviction petition against the petitioner qua the tenanted premises on 19.12.1984, i.e., after the death of his father alleging himself to be the co-owner-landlord of the premises in dispute on the ground floor which has come to his share as per the will executed by his father Ramji Dass Puri. As per his contention, his father bequeathed the first floor to Hashmat Rai and Pran Nath Puri and the ground floor to him add Ravi Dutt. Barsati floor has been given in common to all the four sons, which consists of one room and store and is used as Puja room, store room-cum-servant quarter. As per the contention of respondent No. 1 his brother Hashmat Rai, who is staying in U.K is not having any job there and he has also been bequeathed by his father the business at Delhi and he is coming to Delhi permanently with his family and has asked him to vacate the first floor of the premises which belongs to him which necessitated him to file the eviction petition for the ground floor which has come to his share along with Ravi Dutt. Ravi Dutt is settled abroad and he has permitted the respondent No. 1 to occupy the entire ground floor.

7. Counsel for the petitioner challenged the validity and genuineness of the alleged will and argued that this will has been set up only to get the premises vacated from the petitioner on the false and frivolous ground. He pointed out that the eviction petition was filed with mala fide intention to force the tenant petitioner herein either to vacate the premises or to increase the rent. Even in the year 1979, when the tenant petitioner herein refused to increase the rent Ramji Dass Puri father of the petitioner herein had filed an eviction petition on the ground of bona fide need which was dismissed by the High Court in 1983. After the death of Ramji Dass, again increase in rent was sought and when refused, this eviction petition was filed by fabricating this will and creating artificial need. Learned Counsel further submitted that respondent No. 1 Chaman Parkash Puri failed to prove himself to be the owner of half portion on the ground floor and legatee under the alleged will of his father. The said will is false, fabricated and there is no will at all. Counsel pointed out that the eviction petition was filed in September, 1984 and respondent No. 1 did not give the dale of the will not vaguely stated that the property was bequeathed to him under the will. It shows that there was no will in existence at that time and it was fabricated later on. He also pointed out that the first page of the will which is mark-A is unsigned and the operative part is on the first page. It is an unregistered document. The alleged will shows that it was attested by R.L. Sharma and Veena Luthra The testimony of R L. Sharma is unbelievable. R.L. Sharma has stated that Ramji Dass Puri signed the will in his presence and he stated that Ramji Dass had told him that one more witness was required and R.L Sharma called his colleague Veena Luthra. He further stated that Ramji Dass signed the will in the presence of both of them. He stated that he also signed as a witness and his signature are mark-Y and signature of Veena Luthra are Mark-Z Both of them signed in the presence of Ramji Dass. According to the Counsel, this statement is unbelievable. As per the alleged will mark A Ramji Dass had signed only at one place. If the statement of R.L. Sharma is correct, then the signature of Ramji Dass should have been on two places Counsel contended. Veena Luthra was not known to Ramji Dass Puri. Counsel for the petitioner submitted that in view of the fact that the will has not been proved the same is fabricated and forged one. Respondent No. 1 has no locus standi to file the eviction petition in respect of the tenanted premises without impleading all the legal heirs of the deceased Ramji Dass Puri.

8. Regarding the need of the respondent No. 1, he is in occupation of the first floor and second floor of the building which is more than sufficient for his residence and for the residence of the members of his family dependant upon him. Ravi Dutt, Hashmat Rai and Pran Nath Puri, the other sons of late Ramji Dass Puri are settled abroad and they are foreign national and they do not require the premises. The daughters of late Ramji Dass are married and residing with their respective husbands.

9. The Counsel for the respondent countered the argument advanced by the Counsel for the petitioner and submitted that the petitioner tenant cannot challenge the factum and validity of the will. Relying upon an interlocutory order of this Court, passed in CM 56/91 in Revision Petition in which stay of the eviction order was sought, which is reported as 1991 RLR 322 [LQ/DelHC/1991/427] , the learned Counsel submitted that the petitioner tenant cannot challenge the will and in view of the law as laid down the petitioner tenant cannot re-agitate this point again. According to the Counsel, this will was otherwise been proved to be valid one. Under Section 63 of the Succession Act it is not obligatory that the testator must sign before the attesting witness. Acknowledgment of the signature by the testator is enough. The only requirement of the Section is that both the witnesses sign in the presence of the testator. The statement of R.L. Sharma to the effect that the testator signed in the presence of both the witnesses was not challenged in the cross examination. According to the Counsel, in a revision petition it is beyond the province of the High Court to enter into merits of the evidence. Reliance has been placed on a decision of this Court in International Building and Furnishing Pvt. Ltd. v. J.S. Rikhi, 1985 (2) RCR 289 and that of the Supreme Court in Kanta Goel v. B.P. Pathak, 1977 (2) SCC 814 [LQ/SC/1977/165] , wherein it was held that it was not permissible for a tenant to challenge the validity of a will.

10. In support of his oral submissions in application (CM 3126/91) alleged to be under Order 16 Rule 27 and Section 151, CPC has also been filed by the Counsel for the respondent. When this application was listed for hearing none-appeared for the applicant-respondent. The prayer for resummoning R.L. Sharma as additional evidence to fill up the inherent lacuna and defect in his statement cannot be allowed. There is no Rule 27, under Order 16, CPC. It is only Order 41, rule 27, which relates to production of additional evidence in appeal in certain circumstances. The additional evidence can be allowed by the appellate Court only in specific circumstances. No case is made out from the averment in the application entitling the applicant for resummoning the witness (PW2) as additional evidence.

11. Before commenting upon the factum and validity of the said will it is to be seen whether the tenant can challenge the will before the Rent Controller in the eviction proceedings. In an eviction petition under Section 14(1)(e), of the Act the petitioner has to prove not only that he is landlord but also owner of the premises in dispute. In this case the respondent No. 1 says that the ground floor has been bequeathed to him and to his brother Shri Ravi Dutt. He says that the half portion of the premises on the ground floor has come to his share by virtue of the will executed by his father. All the natural heirs of the deceased have not been made parties to this eviction petition and all of them have not come forward to say about the existence of the will as claimed by the respondent No. 1. In these circumstances it has become all the more necessary to find out whether the will is genuine or fabricated or whether there exists any such will. The plea of the Counsel for the respondent that in view of the law laid down by this Court while dismissing CM 56/91 which has been reported in 1991 RLR 322, the petitioner cannot reagitate this point is not tenable. There cannot be any estoppel against law. Besides this, that order was interlocutory order passed on an application for stay and the same was not maintained by the Supreme Court in SLP 10032/91 arising out of CR 15/91 decided on 14.5.91. The other decision in Kama Goels case (supra) relied upon by the respondent also does not help in the circumstances of this case. In that case, the father had made a will in favour of his sons. The challenge to that will was not allowed in the eviction proceedings because the other co-sharers were the parties to those proceedings and there was nothing on record to show that they challenged the will. It was in those circumstances that the Supreme Court held that as all the heirs of the deceased father had been impleaded and they did not object to the said will so the tenant could not challenge the will. It was not held by the Supreme Court that if the question about the factum and validity of the will is raised before the Rent Controller he cannot decide it.

12. In M/s. International Building and Furnishing (P) Ltd. (supra), Goswamy, J. did not grant leave to contest the eviction petition in view of the peculiar facts of that case. Facts of that case were different from the facts of this case. The father had bequeathed the property in favour of his wife and after her death in favour of his sons. There were relinquishment deeds which were sent to the tenant on demand and thereafter he started paying rent to J.S. Rikhi legatee. It was held that there was no ground to grant leave to defend to the tenant. This was also a case on its own facts and does not help the respondent in the circumstances of this case.

13. As against all these decisions, there is a decision of the Supreme Court in Devi Dass v. Mohan Lal, AIR 1982 SC 1213 [LQ/SC/1980/135] . In that case the plea of the tenant was that the sale was a sham transaction. The Court below was of the view that the tenant could not raise this objection. The Supreme Court held that he was entitled to challenge the sale transaction as sham.

14. There is an other decision of this Court in Savitri Devi v. Ram Bhaj, 1977 Rent Law Reporter 464 wherein B.C. Misra. J,. held that under Section 50 of the Delhi Rent Control Act it is the Rent Controller alone who has to decide whether the petitioner is the owner of the property in dispute. In another decision reported in 1988 (1) Rent Control Journal 287, the facts were that the an eviction petition was filed on the ground that the property had been partitioned between the sons and the father and the son required the premises as he was not in possession of suitable accommodation. That partition was held to be collusive and the eviction petition was dismissed. No Court has decided that the Rent Controller has no jurisdiction to decide the validity of a will. If such a question is raised before the Rent Controller, the Rent Controller is within its competence to decide this question when the eviction petition is for bona fide need under Section 14(1)(e) of the Delhi Rent Control Act where one of the ingredient to be proved is that of ownership. Here the Addl. Rent Controller has gone wrong while holding that the tenant cannot challenge the will.

15. Now, coming to the question whether the will is valid and genuine, the evidence which has come on record is not sufficient to prove that Ramji Das Puri (deceased) left a valid will as set up by the respondent in the eviction petition. Eviction petition was filed in September, 1984 the will is alleged to be of the prior period but the respondent did not give the date of the will and vaguely stated that the property was bequeathed to him under the will. It appears that the will was not in existence at that time otherwise the date of the will would have been given in the eviction petition. The will is not exhibited in the evidence before the Addl. Rent Controller. It was only marked. This unexhibited document though cannot be read in evidence, yet this will cannot be said to be validly executed will on the face of it. Its first page shows that the operative part is mentioned on this page but it is not signed by the testator or by the witnesses. Out of the two attesting witnesses, only R L. Sharma appeared as P.W. 2 and his statement also does not inspire confidence. From the evidence on record, I find that respondent No. 1, Chaman Parkash Puri cannot be said to be co-owner to the extent of half of the tenanted premises by virtue of the will. No doubt, being the son of the deceased Ramji Dass Puri and being one of the heirs is co-owner of the property in dispute and a co-owner undoubted can file an eviction petition, but the bona fide need has to be proved in a petition under Section 14(1)(e) of the Delhi Rent Control Act. In this case the eviction petition has not been filed on behalf of all the heirs of Ramji Dass Puri have not been impleaded as parties. The accommodation in possession and use of Chaman Parkash Puri respondent No. 1 who has filed the eviction petition is more than sufficient for his residence and for the residence of his family members dependant upon him and so he is not entitled to get an eviction order with respect to the tenanted premises. The Addl. Rent Controller has not correctly appreciated the law and facts while allowing the eviction petition and I, therefore, set aside the impugned order dated 19.11.1990 and accept this revision petition with costs.