Tarawati v. Ambika Prasad Dixit — 1976 DIGILAW 81 (ALL)

JUDGMENT M. N. Shukla, J. 1. SMT. Tarawati, the landlady, has filed this writ petition under Article 226 of the Constitution challenging the order dated 21-5-1974 passed by the Appellate Authority under Section 22 of the U. P. Urban Buildings (Regulation of Letting and Eviction) Act, 1972 (hereinafter referred to as the Act) allowing the tenant's appeal and rejecting the application for release made by the landlady under Section 21 of the Act. 2. THE petitioner is the owner and landlady of house No. 105/262, Gandhi Chowk, Kanpur. The opposite party No. 1 is a tenant in a portion of the said house on a monthly rent of Rs. 90/-. The petitioner applied for, release of the accommodation in the tenancy of the opposite party No. 1 on the allegations that her family consisted of herself, her daughter, namely Smt. Prem Lata, her son-in-law Sri Shiva Nand Agnihotri, her grand daughter and her grand sons, besides a maid servant. It was alleged that Smt. Prem Lata was residing with her mother even after her marriage. She was the Principal of Guru Nanak Inter College, Kanpur and her husband was a Supervisor in the Inspectorate of Central Store, Kanpur. The grand daughter was said to be a student of M.B.B.S. (V year). One grand son was a student of III year of the Indian Institute of Technology, Kanpur while another grand-son was a student of the I year in the said Institute. The petitioner claimed to have opened a Nursery School in the adjoining premises No. 105/263, the owner of which was pressing her to vacate the same. The benefit of Explanation 4 to Section 21 of the Act was also claimed by the landlady on the ground that the accommodation occupied by the opposite party No. 1 was separated from the remaining accommodation in the house by a mere wall and the two portions were connected with each other and some portions were actually in common use of the landlady and the tenant. The opposite party No. 1 contested the petition, inter alia, on the grounds that the application was not bona fide, that it was merely a counter blast to a suit under Section 5 (4) of the U. P. Act III of 1947 filed by the tenant which was pending and which fact had been concealed. The opposite party No. 1 contested the petition, inter alia, on the grounds that the application was not bona fide, that it was merely a counter blast to a suit under Section 5 (4) of the U. P. Act III of 1947 filed by the tenant which was pending and which fact had been concealed. It was denied that the petitioner's daughter, son-in-law and their children constituted the petitioner's family. The petitioner's alleged need for additional accommodation was also denied. As regards Explanation 4 to Section 21 it was stated that there was a dividing wall between the tenant's portion and that of the landlady and the two portions were distinct and independent of each other and hence the provisions of Explanation 4 to Section 21 were not attracted. 3. THE Prescribed Authority by its order dated 22-1-1973 allowed the release application on the sole basis that the case would be governed by Explanation 4 to Section 21. It recorded a clear finding that the petitioner's family according to the definition of the term contained in the Act consisted of herself alone and the accommodation already occupied by her in the building in dispute was sufficient for her requirements and the accommodation in dispute was not bona fide needed by her. The learned III Additional District Judge, Kanpur set aside the order of the Prescribed Authority and dismissed the application for release. He confirmed the finding of the Prescribed Authority to the effect that the landlady's need was not bona fide. He reversed the finding of the Prescribed Authority on the applicability of Explanation 4 to Sec. 21 and held that it was not applicable to the facts of the present case as the two portions of the accommodation occupied by the landlady and the tenant respectively were quite independent of each other and no portion of the accommodation was in common use of the parties. It agreed with the view of the Prescribed Authority that the (landlady's family consisted of her self only and her daughter, son-in-law and her children could not be taken into account for the purposes of determining her family. On these findings the release application was dismissed. 4. It agreed with the view of the Prescribed Authority that the (landlady's family consisted of her self only and her daughter, son-in-law and her children could not be taken into account for the purposes of determining her family. On these findings the release application was dismissed. 4. AT the very outset I may point out that the finding of the Appellate Authority that the two :portions of the house are distinct and separate from each other so as to make Explanation 4 to Section 21 inapplicable is well founded and cannot be disturbed. On the question of the alleged need of the landlady the categorical finding of the Appellate Authority is that she is already in occupation of five rooms and a store besides two verandahs and a gallery which is quite sufficient for her requirements and therofore her claim for additional accommodation which is in occupation of the opposite party No. 1 is not genuine. In my opinion this finding alone is sufficient to disentitle the landlady to a release order in her favour under Section 21(1) (c) of the Act. Sri K. M. Dayal appearing for the petitioner strongly urged that the landlady's family in the instant case must be deemed to include her daughter, son-in-law and their children. He placed strong reliance on a gift deed executed by the petitioner's husband, Sri Narbada Prasad on 4-9-1944 in favour of his wife Smt. Tarawati (petitioner). My attention was specifically drawn to the crucial paragraph in the gift deed which reads as under : "That in consideration of natural love and affection of the donor for the donee and as provision for the donee after donor's death the donor does hereby freely and voluntarily and without any valuable consideration transfer to the donee free from encumbrance the house described above to hold the same to the use of the donee, her heirs, executors, administrators or assignees absolutely for ever. The donee hereby accepts the said transfer and affixes her signature in token of such acceptance." It was submitted that this was a conditional gift deed in the sense that there was an obligation attached to the gift and such obligation was permissible under the provisions of Section 127 of the Transfer of Property Act. In my opinion that section has no application to the facts of the present case. In my opinion that section has no application to the facts of the present case. Section 127 of the Transfer of Property Act deals with onerous gifts which take place by transfer to the same person of several things of which one is, and the others are not, burdened by an obligation. In these circumstances it is provided that the donee can take nothing by gift unless he accepts it fully. In the instant case the gift does not purport to transfer anything except one piece of property, namely, the house in dispute. Moreover, it is not correct to suggest that there is any obligation attached to the gift. In other words, it does not cast any obligation on the donee. The words "to hold the same to the use of the donee, her heirs, executors, administrators or assignees absolutely for ever" cannot be construed as conferring any simultaneous interest in the heirs, executors etc. with respect to the use or occupation of the gifted property. They are merely conventional terminology used in documents evidencing transaction of gift. The effect of the said gift deed was to confer absolute title on the donee, namely Smt. Tarawati and the rights to her heirs etc. would arise only on her death and not in her life time. 5. I am fortified in the construction that I am placing on the gift deed by the following observations contained in Mulla's commentary on Section 10 of the Transfer of Property Act (Mulla on the Transfer of Property Act, 1882, Fifth Edition, Page 96) : "Section 10(2). Transfer subject to a condition or limitation-The condition referred to in this section must be a condition subsequent as defined in Section 31 which divests an estate which has already vested. "Condition" must be distinguished from "limitation". The word "limitation" is a term of English law. It refers to words used in a conveyance to limit or define the nature of the estate created. In the case of In re Machu, (1882) 21 Ch. D. 838, 842-843 Chitty, J., defined a limitation as "the definition or circumscription in any conveyance of the interest which the grantee is intended to take." Thus in a transfer to "A and his heirs and assigns" the heirs and assigns are not transferees, but the words are words of limitation indicating an estate in fee simple or an absolute estate. Words of "limitation" such as "and his heirs", or "from generation to generation" denote an absolute estate. These words are said to denote an "estate of inheritance", by which is meant that the heirs of the grantee take by inheritance from the grantee". 6. SRI K. M. Dayal on behalf of the petitioner submitted in the alternative that this document was substantially in the nature of a gift by will and was intended to take effect after the donor's death. This argument is also untenable. On a correct construction this must be held to be a transfer in presenti. It purports to come into effect immediately, making the donee absolute owner of the property. The words occurring in the earlier part of the paragraph extracted from the gift deed namely "as provision for the donee after donor's death.........freely and voluntarily.........transfers to the donee..." are not intended to create anything in the nature of gift by will. These words properly construed are merely recitals of the objects of the gift. The gift was made by the husband in favour of his wife in order to make provision for her after she was deprived of the protection and assistance of her husband. It does not, however, and cannot run counter to the unavoidable legal incident of a gift, namely, that it divests the donor of the property with immediate effect. In the circumstances in my opinion the gift deed dated 4-9-1944 made Smt. Tarawati alone the owner of the property and her heirs did not derive any right or interest through this deed during the life time of the donee. It is a necessary corollary from the above finding that in computing the family of the petitioner Smt. Tarawati the other members mentioned by her, namely, her daughter, son-in-law and their children cannot be taken into account. The definition of the term 'family' contained in the Act applies only to the male lineal descendants. On the facts of the present case and in the view that I have taken about the transfer her family can be said to consist of herself alone. The petitioner cannot derive any assistance from the following words occurring in the definition of 'family' provided in the Act :- "Section 3(g) :- (iii) ..................... On the facts of the present case and in the view that I have taken about the transfer her family can be said to consist of herself alone. The petitioner cannot derive any assistance from the following words occurring in the definition of 'family' provided in the Act :- "Section 3(g) :- (iii) ..................... "and includes, in relation to a landlord, any female having a legal right of residence in that building." On a proper interpretation of the gift deed it must be inferred that Smt. Tarawati's daughter does not derive any legal right of residence in the building. The rights flowing from that document were at the relevant time confined to Smt. Tarawati. 7. SO far as her needs are concerned, the concurrent finding of both the authorities is that the accommodation held by her is sufficient to cope with her need. On this finding the application under Section 21 of the Act for release of the accommodation in dispute was rightly dismissed by the Appellate Authority. The impugned order, therefore, does not suffer from any legal infirmity. 8. IN the result I find no force in this writ petition and it is accordingly dismissed with costs. Petition dismissed.