Vs. Niranjan & Anr  Insc 137 (4 March 2003)
Lahoti & Arun Kumar.
ARUN KUMAR, J
appellant as owner landlord of Premises No.79, Main Road, Nasik, instituted an eviction suit in the
court of Civil Judge, Senior Division, Nasik, for a decree of eviction against the respondents herein regarding the
suit premises comprising ground floor and first floor of house bearing
Municipal No.79, Main
Road, Nasik. According to the averments in the
plaint, a portion of the suit property was given on lease vide Lease Deed dated
16.10.1971 to the defendants. The ground floor and first floor of the property
along with some open space formed part of the lease in favour of defendants.
The defendants had given an advance of Rs.15,000/- to the plaintiff. The
advance amount was to be adjusted out of the monthly lease charges to the
extent of 50%. The monthly rent was fixed at Rs.351/-. Thus, the defendants
were liable to pay only a sum of Rs. 175.50 each month and the remaining half,
that is, Rs.175.50 per month was adjusted towards the advance of Rs.15,000/-.
The eviction suit was instituted mainly on two grounds, that is, default in
payment of rent and bona fide need of the plaintiff for use of the demised
premises by himself and members of his family. According to the averments in
the plaint, the plaintiff constitutes a joint Hindu family comprising his
widowed mother, brothers and sisters. The plaintiff required accommodation for
the purpose of setting up new business in order to settle his younger brothers.
The plaintiff also required the suit premises for settling his son in business.
The plaintiff did not have any other premises in Nasik which could be utilized for the said requirement of the
plaintiff. It was averred that plaintiff's two younger brothers were not having
any independent business. They were only attending to the restaurant business
carried on by the plaintiff. According to the plaintiff so many members of the
family in one business were neither required nor it was profitable and
advisable to have all the family members in one business. The younger brothers
were competent enough to set up their own independent business and for that
purpose the suit premises was most suitable.
trial court decreed the suit on both the grounds pleaded by the plaintiff vide
its judgment and decree dated 28th January, 1994.
respondent-tenant filed appeal against the judgment and decree of the trial
court in the court of the District Judge, Nasik. The same was disposed of by IInd Extra Joint District Judge, Nasik, vide his judgment dated 30th August, 1997. The lower appellate court rejected
the ground regarding default in payment of rent but maintained the decree of
eviction passed by the trial court on the second ground, that is, personal bona
fide need of the plaintiff- landlord regarding the suit premises. The tenant
filed a petition under Article 227 of the Constitution of India before the High
Court of Bombay. By the impugned judgment the High Court partly affirmed the
eviction decree. The personal bona fide need of the landlord qua the
requirement of half portion of demised premises for setting up business of his
son was accepted while the need for setting up of business by the brothers of
the landlord in the other half portion was rejected on the ground that
requirement of brothers could not be considered specially when they did not
have any proprietary interest in the property. This resulted in the landlord
being granted eviction decree only with respect to 50% of the demised premises.
The premises was split into two equal portions as per the decree of the High
Court - one portion goes to the landlord by virtue of the eviction decree while
the other portion remains with the tenant. The landlord has filed the present
appeal against the judgment of the High Court.
learned counsel for the appellant confined her argument to the ground of bona
fide requirement of the landlord for the entire suit premises. The other ground
regarding default in payment of rent is not required to be considered. The case
regarding bona fide requirement of members of family of the appellant-landlord
is based on requirement of his son and two younger brothers. The relevant
provision is contained in sub-section (1)(g) of section 13 of The Bombay Rents,
Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the
'Act'). The said Section is reproduced as under:
13 (1) (g):
the premises are reasonably and bona fide required by the landlord for
occupation by himself or by any persons for whose benefit the premises are held
or where the landlord is a trustee of a public charitable trust that the
premises are required for occupation for the purposes of the trust;" The
key words which are required to be interpreted are : "for occupation by
this connection, we would like to refer to the lease deed dated 16th October, 1971 which is the starting document with
respect to the relationship of the parties to the suit as landlord and tenant.
lease deed has been executed by all the family members of the plaintiff. They
are nine in all and include brothers and sisters of the plaintiff, the
plaintiff being the eldest son of late Gaurishankar Sharma. The mother of the
plaintiff is also arrayed as a party to the lease deed along with rest of the
family. Dwarkaprasad, the eldest brother of the plaintiff in the suit has been
arrayed at two places in his individual capacity as also as head and karta of
the joint family.
Gaurishankar Sharma is described in the lease deed as an exclusive owner of the
suit property. He alone is recorded as the owner of the property in the
Government and Municipal records.
as per Para 3 of the lease deed at the insistance of the tenant all the
brothers and sisters of the plaintiff, that is, all the heirs of deceased Gaurishankar
Sharma father of the plaintiff, were included as party No.1 in the lease deed.
Further, it is averred in the lease deed that Dwarkaprasad Gaurishankar Sharma,
his brothers and sisters are members of joint Hindu family of which Dwarkaprasad
Gaurishankar Sharma, that is, the plaintiff is the Karta.
further stated in the lease deed that for the needs of the joint Hindu family,
that is, for marriages of two sisters of the plaintiff, settling brothers in
business and for some renovations in the family property some money was taken
as advance. A sum of Rs.15,000/- was taken as advance from the tenant to meet
such requirements of the family. The lease deed is an admitted document. It
follows from the lease deed that the plaintiff constituted a joint Hindu family
with his mother and younger brothers and sisters. They were joint in residence
as well as in business. The property was being let out for meeting the
financial requirements of joint Hindu family.
background of these facts what is to be seen is : Does the case fall within the
ambit of sub-section (g) of Section 13(1) of the Act to enable the
plaintiff/appellant to succeed in this case ? We have already quoted the said
provision. The question for consideration would be : Are the premises in suit
reasonably and bone fide required by the landlord for occupation by himself ?
Really the question would be to interpret the word "himself", that
is, what meaning is to be given to the word "himself" ? Is it to be confined
to the plaintiff alone or can it include the requirement of family members of
the plaintiff, that is, his son, brothers and sisters etc.? According to the
learned counsel appearing for the appellant, the word "himself" has
to be liberally construed so as to include the requirements of the family
members of the plaintiff and the said word cannot be confined to the plaintiff
alone. While according to the learned counsel appearing for the
respondent-tenant the need of brothers of the landlord cannot be taken into
consideration specially in view of the fact that the property is owned by the
landlord, that is Dwarkaprasad exclusively. Before the High Court, the counsel
appearing for the tenant conceded that the need of the son of the landlord
could be taken into consideration but not that of the brothers.
fact is recorded in the impugned judgment. The High Court took the view that
since the plaintiff was the sole owner of the property he could not plead the
requirement of his brother as a ground of eviction, that is, no eviction decree
could be passed for the requirement of the brothers of the plaintiff. It is
observed by the High Court that there was no warrant for taking into
consideration the need of the brothers of the landlord who have no interest in
the suit premises. Since it was stated in the plaint itself that the son of the
plaintiff would need half of the suit premises adjacent to the main road and
having frontage on the main road, the High Court accepting that the plaintiff
could seek eviction regarding the need of his son, passed a decree for eviction
for the half portion of the tenanted portion of the property having frontage on
the main road. The eviction decree passed by the courts below was thus
modified. From the impugned judgment of the High Court, it is apparent that so
far as factual aspect of the bona fide need of the plaintiff qua his son and
his younger brothers is concerned, there was no dispute. The only contest was
with respect to the need of the brothers. According to learned counsel for the
tenant their need could not be taken into consideration since they did not have
any right, title or interest in the suit property. This is purely a legal
question. Since there is no dispute regarding the factual aspect of bona fide
need qua the brothers, we need not go into the evidence on this aspect in
detail. A broad reference to the evidence on record in this behalf will
suffice. Plaintiff who appeared as P.W.1 stated that he and his brothers are
members of a joint family. Plaintiff is the eldest brother and Karta of the
joint family. The plaintiff had four younger brothers. He also had four sons
and there was need for premises for his son Jaiprakash for setting a separate
age at the time of deposition by the plaintiff was given as 27 years. He
further stated that there were about 11-12 male members in his family. The
present business was not sufficient to provide work to all the family members.
His Son Jaiprakash intended to set up a TV shop where other electrical goods
were also to be sold, besides doing repair work. His brother Chanderbhan wanted
to start a separate restaurant. The brothers were quite familiar with the
restaurant business as this was the family business started by their father
which was continued by the eldest brother Dwarkaprasad. He stated that he was
ready to provide finances to Chanderbhan and Jaiprakash for new starting
businesses. The plaintiff also examined his son Jaiprakash as P.W.2 and brother
Manoharprasad as P.W.3. They supported the case of the plaintiff.
counsel for the appellant also tried to build up a case that the suit property
was a Joint Hindu Family property and therefore the requirements of the
brothers for their independent business could be pleaded and the suit was liable
to be decreed for that reason.
argument is contrary to the specific averment in the lease deed to the effect
that Dwarkaprasad is the sole owner of the property. For the view that we
intend to take regarding the meaning of the word "himself" occurring
in sub-section (g) of Section 13(1) of the Act, it is not necessary for us to
go into this question about the ownership of the suit property any further. In
our view, even as exclusive owner of the suit property plaintiff Dwarkaprasad
is entitled to seek eviction decree against the tenant qua the requirement of
his brothers who are joint with him as one family.
brings us to the legal question about the meaning to be given to the word
"himself" used in sub-section (g) of Section 13(1) of the Act.
Normally, the rent legislations are meant for the benefit of the tenants but
the rent statutes contain exceptions in favour of the landlord which give him a
right to evict the tenant, the most important being to ensure that he gets
payment of rent regularly and promptly and that in case the tenanted premises
is required by him for his personal need, he is able to get its possession from
the tenant. So the provision regarding eviction of tenant to meet the personal
requirement of the landlord with respect to the premises is a provision for the
benefit of the landlord. The question arises that should such a provision be
construed strictly so as to confine it to the requirement of the landlord alone
or can it be extended to include the requirement of members of landlords'
family. In the present case, the plaintiff has pleaded right from the beginning
that he constitutes a joint family with his mother and brothers and sisters. It
is also in evidence that the plaintiff holds the property for the benefit of the
entire family. Even when the plaintiff is sole owner of the property, it is
open to him to use the property for the benefit of his larger family which
includes his brothers and sisters. The respondent-tenant cannot dispute the
fact about the plaintiff's constituting a joint family because it is
specifically provided in the lease deed which is an admitted document.
the defendant had not led any evidence to contradict or dispute this plea. The
way the case has been argued before the courts below also clearly suggests that
the only objection raised on behalf of the tenant was a legal objection that
the need of the brothers and sisters of the landlord cannot be considered under
sub- section (g). The fact that the plaintiff constituted a joint family with
his brothers and sisters was never disputed.
ground of eviction contained in sub-section (g) of Section 13(1) of the Act has
to be liberally construed. Confining it to the landlord alone will defeat the
very object of the provision. At this stage, we may refer to some of the
judgments of this court as well as of various High Courts which almost
unanimously take the view that such a provision has to be liberally construed.
Institute of Radio Technology and others vs. Pandurang Baburao [ AIR (33) 1946
Bombay 212] the relevant words used in the Bombay Rent Restriction Act, 1939
were: "own occupation". It was argued on behalf of the tenant that
this meant that the premises must be required by the landlord for his
occupation. Repelling the argument it was observed that the words "his own
occupation" mean occupation of himself and all persons who are dependant
landlord had appeared as a witness in this case and had stated that his family
consisted of his son, his widowed sister, her two daughters, two daughters of
his daughter and his cousin. The Court was satisfied that those persons were
the plaintiff's dependants and therefore, were entitled to live alongwith him.
We have already made a reference to the evidence of plaintiff in the case in
hand. The plaintiffs have stated that he constitutes a joint Hindu family alongwith
his mother, brothers and sister besides his own wife and children.
evidence has gone unrebutted. Therefore the word 'himself' occurring in the Act
which is subject matter of the present case has to be read as himself and
members of his family.
Beharilal vs. Premchand Lalchand and others [AIR 1953 Nagpur 144 (vol.40)] a
Division Bench of the High Court was considering the need of the widowed
daughter and her children as members of family of landlords. It was observed:
The main point canvassed before us was that the need of the widowed daughter
and her children must be deemed to be the need of the landlord. In our opinion,
the contention of the petitioner is correct and must be upheld. No doubt, after
marriage the daughter passes out of the father's family and goes into that of
the husband. But the fact of marriage does not sever the blood relationship
which exists between a father and his daughter. The existence of this
relationship does give rise to certain moral obligations. Where, in pursuance
of such moral obligations, a father affords support to his daughter and her
children, their needs become his needs." In Bidhubhusan Sen vs.
Commissioner, Patna Division and another [AIR 1955 Patna 496] the Division
Bench held that expression "his own occupation" in Section 11(3)(a)
of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 cannot be
restricted only to the occupation of the landlord himself but should be given
wider and liberal meaning so as to include the occupation of persons who are
living with the landlord and are economically dependant on him. In this case
the requirement of the landlord for premises to settle his sister's son in business
who was living with him was upheld.
Sahai Bangia vs. R.C. Bhasin [AIR 1982 SC 1091] the landlord had shifted
permanently to Canada, he left behind his parents and two sisters and a brother
to continue to occupy the suit premises. The Delhi Rent Control Act under which
the case had arisen contains a provision under sub-Section (d) of Section 14(1)
to the effect that if a premises let for residence is not occupied by the
tenant or any member of his family for a period of six months immediately
preceding the date of filing of the eviction application, the landlord is
entitled to a decree of eviction. The question arose whether in these facts
could it be stated that neither the landlord nor any member of his family was
residing in the tenanted premises for the past six months. It was held that the
word "family" has to be given not a restricted but a wider meaning so
as to include not only the head of the family but all members or descendants
from the common ancestor who are actually living with together in the same
beneficial provision must be meaningfully construed so as to advance the object
of the Act. The term "family" must always be liberally and broadly
construed so as to include near relations of the head of the family. A Division
Bench of the Bombay High Court in Kanhaiyalal vs. Bapurao [1989 (1) All India
Rent Control Journal 161] held that the term "family" must always be
liberally and broadly construed so as to include near relatives of the head of
the family. It would include not only the members of the landlord family but
also those persons who are dependant on him and whose responsibility he has
latest decision of this Court in Joginder Pal vs. Naval Kishore Behal reported
in 2002 (5) SCC 397 to which one of us (R.C. Lahoti, J.) was a party takes the
same view. In fact, this judgment contains a detailed resume of the entire case
law on this point and holds that the expression for "his own use"
occurring in Section 13(3)(a)(ii)(a) of the East Punjab Urban Rent Restriction
Act, 1949 has to be liberally construed and should be given a wide and useful
meaning rather than a strict and narrow construction. The requirement of a
member of family of the landlord who is dependant on the landlord for purposes
of residence or for economic consideration can be considered as a requirement
of the landlord.
learned counsel for the respondents was unable to dispute the aforesaid legal
position nor he challenged the findings of fact arrived at by the courts below
regarding the family of the landlord being a joint Hindu family and the
requirement of the plaintiff-landlord to settle his son and younger brothers in
business in the demised premises. He cited Kumbhar Pragji Bechar vs. Parekh Harilal
Jagjivan reported in AIR 1974 Gujarat 84 in which it was held that requirement
of a member of a family who has separated from the landlord is not the
requirement of the landlord even though he is living with the landlord. This
authority in fact supports the case of the appellant in as much as it is
observed that where a family unit consists of a joint family wherein all
members of the joint family reside together and do business in the name of the
joint family, requirement of all members of the family shall be taken into
consideration. The facts of the case in hand present a picture which completely
fits in these observations. The exception is created when a member of the
family separates from the family. In such a case requirement of such a member
cannot be considered as a requirement of the landlord.
case in hand the landlord is the head of the family being the eldest amongst
the brothers. All the brothers and sisters including mother of the landlord
live with him as members of the joint Hindu family. It is his obligation to
settle his younger brothers in business as it is his obligation to settle his
children in business.
he can legitimately seek eviction of a tenant by pleading that he needs demised
premises to settle his son and his younger brothers in business. This being the
legal position, the conclusion is inevitable i.e. the plaintiff landlord must
succeed and a decree for eviction is liable to be passed in his favour for the
entire demised premises. Accordingly this appeal is allowed. The impugned
judgment of the High Court which has granted only a decree for half portion of
the suit premises is hereby modified. The landlord is held entitled to decree
for possession of the entire demised premises.
decree for possession passed by the lower appellate court with respect to the
entire suit premises is hereby restored. The respondents are granted three
months time to vacate the suit premises and hand over its peaceful vacant
possession to the plaintiff-landlord. Parties are left to bear their respective