Shantilal Thakordas & Ors Vs.
Chimanlal Maganlal Telwala  INSC 188 (23 August 1976)
RAY, A.N. (CJ) SHINGAL, P.N.
CITATION: 1976 AIR 2358 1977 SCR (1) 341 1976
SCC (4) 417
CITATOR INFO :
E 1987 SC2199 (2) R 1990 SC1133 (6)
Bombay Rents, Hotel and Lodging House Rates
Control Act 1947--Section 13(1) (b)--Suit for eviction on the ground of bona
fide and personal need of a landlord--Whether right to sue survives to his
heirs--Requirement of firm in which landlord is a partner whether his
requirement--Whether decree passed in favour of landlord can be disturbed on
Thakordas, father of 3 appellants, was the
owner of the suit premises. He was a partner in a firm which. had 3 other
partners. One of the partners was appellant No. 1, the son of Thakordas and two
partners were outsiders. A suit for eviction was filed against the respondent
on the ground that Thakordas required the premises for the said firm reasonably
and bona fide within the meaning of s.
13(1)(g) of the Bombay Rent Act, 1947. The
trial court passed a decree for eviction in respect of a portion of the
premises. Thereafter, Thakordas died and the present appellants who are his
sons filed an appeal. Likewise the tenant also filed an appeal. Appellants No.
1 and 2 together with some outsiders continued the firm. However, appellant No.
3 a minor son of Thakordas was not admitted to the benefit of the partnership.
The First Appellate Court confirmed the decree of the trial court. The revision
application filed by the tenant was allowed and one filed by the appellants was
dismissed by the High Court relying on the decision of this Court in Phul Rani
& Ors. v.
Naubat Rai Ahluwalia [19731 3 SCR 679.
In an appeal by special leave, the appellants
1. Phul Rahi's case was not correctly decided
and the right of Thakordas survived in favour of the appellants.
2. The requirement of the firm in which the
landlord is a partner will be the requirement of the landlord.
3. Since the decree had already been passed
in favour of Thakordas before his death it could not be disturbed on his death
either in appeall or in revision.
Dismissing the appeal,
HELD: (1) Phul Rani's case was wrongly
decided. If the law permitted the eviction of the tenant for the requirements
of the landlord "for occupation as a residence for himself and members of
his family" then the requirement was both of the landlord and the members
of his family. On his death, the right to '.sue did survive to the members of the
family of the deceased landlord. After the death of the original landlord the
senior member of his family takes his place, and is well competent to continue
the suit for eviction for his occupation and the occupation of the other
members of the family. [343 H, 344 A--B] (2) It is doubtful whether the
requirement of the premises by the landlord for occupation by the firm in which
he is a partner will tantamount to occupation by himself. Even if it is assumed
that it will amount to occupation by the landlord, since in the new firm the
minor son of Thakordas was not admitted to the benefits of the partnership he
had no interest in the said firm. Therefore, as far as appellant No. 3 is
concerned, he could in no sense be said to require the premises. [344 C---G]
(3) The conclusion in Phul Rani's case that if a decree had been already passed
in favour of the plaintiff that could not be disturbed on his death is not
correctly decided. In fact, no final opinion was expressed in Phul, Rani's case
on that question. [344 H, 345 A] 342 Phul Rani & Ors. v. Naubat Rai
Ahluwalia  3 S.C.R.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 487-488 of 1976.
(Appeal by Special Leave from the Judgment
and Order 19.12.1973 of the Gujarat High Court in Civil Revision Application
No. 540 and 678 of 1970).
S.K. Dholakia and R.C. Bhatia, for the
R.P. Bhatt and H.S. Parihar for 1. N. Shroff,
for the respondent.
The Judgment of the Court was delivered by
UNTWALIA, J. In these appeals by special leave the question which fails for our
determination is whether the decision of a Bench of this Court consisting of
two learned Judges in Phul Rani & Ors. v. Naubat Rai Ahluwalia(1) is
correct. If not, whether the appellants are entitled to get a decree for
eviction in respect of the suit premises against the defendant respondent.
Thakordas Bhagwandas--the father of the three
appellants was owner of the suit premises. He was a partner in a partnership
firm styled as Jai Hind Silk Weaving Works. There were three more partners in
the firm-one of whom was Shantilal Thakordas, appellant No. 1, son of Thakordas
The other two were outsiders. The suit was
filed against respondent Chimanlal Maganlal Telwala for his eviction from the
premises on several grounds. The only ground which need to be mentioned for the
purpose of the disposal of this appeal is Thakordas's claim of requiring the
reasonably and bona-fide for occupation by
himself within the meaning of section 13(1)(g) of the Bombay Rents, Hotel and
Lodging House Rates Control Act, 1947. The necessity pleaded by the original
plaintiff was that he required the premises for the use of the partnership firm
aforesaid in which he was a partner. The Trial Court decreed the suit in part
on April 30, 1965 and passed a decree for eviction of the tenant from a portion
of the suit premises. Both sides went up in appeal before the First Appellate
Thakordas was dead and his heirs, namely, the
present appellants were the appellants in one appeal and respondents in the
other. The first Appellate Court by its judgment dated November 10, 2966
maintained the partial decree made by the Trial Court with slight modification.
Both the parties went in revision before the Gujarat High Court. The High Court
set aside the decree dated November 10, 1966 of the First Appellate Court and
remanded the case to it for a fresh disposal of the appeal after trying out an
additional issue of comparative hardship of the landlord and the tenant as also
the question as to whether the substituted heirs of the original plaintiff
required the premises reasonably and bona-fide for their occupation.
The first Appellate Court after remand again
passed a decree for eviction from a portion of the suit premises on March 31,
1970. Two (1) (1973) 3 S.C.R. 679.
343 revisions were taken to the High
Court--one by the appellants and the other by the respondent. Following the
decision of this Court in Phul Rani's case (supra) the High Court allowed the
respondent's revision, rejected that of the appellants and dismissed their suit
for eviction in toto. Hence these appeals.
The foremost and the first question urged
before us by Mr. Dholakia was that Phul Rani's case was not correctly decided.
We agree with this contention and say with respect that we do not subscribe to
the view expressed by the Bench of this Court in that case. The original
plaintiff in that case had filed the application for eviction under section
14(1)(e) of the Delhi Rent Control Act, 1958. The application was dismissed in
the first instance by the Additional Rent Controller, Delhi on the ground that
the notices to quit were not valid. Plaintiff filed an appeal but died during
its pendency. His widow, son and two married daughters and two children of a deceased
daughter were allowed to be substituted by the Rent Control Tribunal where the
appeal was pending. The case was remanded by the Tribunal and after remand the
Additional Rent Controller held that some of the substituted persons require
the premises bona-fide for their occupation. The tenant's appeal to the
Tribunal failed. The High Court of Delhi on a further appeal by the tenant took
the view that the right to sue did not survive to the heirs of the plaintiff
and on that ground it dismissed the ejectment application. The case came up to
this Court. The view of the High Court was affirmed. The relevant words of
personal requirement of the premises in section 14(1)(e) of the Delhi Act are:
"for occupation as a residence for himself and members of his
family." The original plaintiff had pleaded:
"The premises are required bonafide by
the petitioner for occupation as a residence for himself and members of his
family and that the petitioner has no other reasonably suitable residential
accommodation." This Court took the view:
"Thus, the requirement pleaded in the
ejectment application and on which the plaintiff has rounded his right to
relief is his requirement, or to use an expression which will effectively bring
out the real point, his personal requirement. If the ejectment application
succeeds--we will forget for a moment that the plaintiff is dead the premises
in the possession of the tenant may come to be occupied by the plaintiff and
the members of his family but that does not make the requirement pleaded in the
application any the less a personal requirement of the plaintiff. That the
members of his family must reside with him is his requirement, not theirs. Such
a personal cause of action must perish with the plaintiff." In our considered
opinion in face of the wordings of section 14(1)(e) of the Delhi Act, the view
expressed in Phul Rani's case, as stated 6-114SCI/76 344 above, is not correct.
If the law permitted the eviction of the tenant for the requirement of the
landlord "for occupation as a residence for himself and members of his
family",' then the requirement was both of the landlord and the members of
his family. On his death the right to sue did survive to the members of the
family of the deceased landlord. We are unable to take the view that the
requirement Of the occupation of the members of the family of the original
landlord was his requirement and ceased to be the requirement of the members of
his family on his death.
'After the death of the original landlord the
senior member of his family takes his place and is well competent to continue
the suit for eviction for his occupation and the occupation of the other
members of the family. Many of the substituted heirs of the deceased landlord
were undoubtedly the members of his family and the two married daughters and
the children of a deceased daughter in the circumstances could not be held to
be not members of the family of the deceased landlord.
But even so the appellants cannot succeed in
this appeal. Firstly it is doubtful whether the requirement of the premises by
the landlord for occupation by the partnership firm in which he is a partner
will be tantamount to "occupation by himself" i.e. by the landlord.
Certain decisions of some High Courts were brought to our notice taking the
view that it is so. We refrain from expressing our opinion in that regard. We
assume, as seems to have been the view of the High Court in this case, that the
requirement of the premises for the use of a partnership firm by the landlord
in which he is a partner is covered by section 13(1)(g) of the Bombay Act. Yet
on the facts of this case there is 'an insurmountable difficulty in the way of
From the judgment dated March 31, 1970 of the
First Appellate Court it would appear that on the death of Thakordas in June,
1965 a new partnership was constituted. One of his sons Shantilal who was a
partner from before was taken as a partner in the new partnership alongwith
Thakordas's another son Dhanvantlal Thakordas, appellant No. 2. There were some
outsider partners. Harish Thakordas, appellant No. 3, a minor son of Thakordas
had not been admitted to the benefits of the partnership. He had, therefore, no
interest in the partnership firm Jai Hind Silk Weaving Works. The Appellate Court
took the view that the .substituted plaintiffs wanted to use the suit premises
for ,the purpose of godown for keeping the yarn clothes and machinery articles
and also for a retail shop and show room of the partnership. This in no sense
could be the requirement of appellant Harish even assuming that it could be
said to be the requirement of his two cider brothers appellants 1 and 2. In
that view of the matter we have got to dismiss the appeal although Mr.
Dholakia, learned counsel for the appellants
succeeded in persuading us to differ from the ratio of Phul Rani's case.
Counsel for the appellants endeavoured to
bring their case within one of the exceptions noted in Phul Rani's case.
He submitted that a decree had already been
passed in favour of the original plaintiff by the Trial Court and that could
not be disturbed on his death either in appeal or revision.
We do not accept the contention as sound or
345 correct. In Phul Rani's case no final opinion was expressed on this
question. Moreover, we find that on the earlier occasion the High Court had set
aside the decree and remanded the suit to the First Appellate Court for a fresh
decision. There was, therefore, no decree in existence to attract the
In the result the appeals fail and are dismissed
but without costs.
P.H.P. Appeals dismissed.