Thakurdeen v. Hero Devi — 1984 DIGILAW 318 (ALL)

JUDGMENT B.N. Sapru, J. - Thakurdeen is the petitioner in Writ Petition No. 14358 of 1981 while Smt. Mithlesh Kumari and her sons and daughters are the petitioners in Writ Petition No. 14356 of 1981. 2. Both the petitioners are the tenants of Smt. Herodevi, the respondent No. 1 in both the writ petitions, who is the owner of House No. 32/14, Chawal Mandi, Kanpur. Thakurdeen came into occupation of the accommodation by virtue of an allotment order passed in the year 1950 while the husband of Smt. Mithlesh Kumari, Sri Shekhar Nath Shukla, was a tenant in the building in dispute from the year 1938 and continued as such until he died on 6.6.1980 and after his death the petitioners in the writ petition became the tenants by operation of law. 3. Smt. Herodevi has admittedly in her possession two living rooms plus other auxiliary rooms. 4. Thakur Deen has one living room in his possession in the second floor of the house while Smt. Mithlesh Kumari and others have two rooms along with auxiliary rooms in her possession. 5. In support of her application under Section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, (hereinafter referred to as the Act), Smt. Hero Devi stated that she had a large family comprising of herself, her husband and four sons. According to her, three sons had been married and the fourth son, namely, Ram Behari is also to be married. 6. I am informed at the Bar by the counsel for Smt. Hero Devi that the marriage of Ram Behari is to take place on 9.5.1984 and this is not controverted by Sri Jagdish Swarup, the learned counsel for the petitioner. 7. It was also asserted that the family's annual income was more than Rs. 50, 000/- annually. She asserted that the accommodation in question was grossly insufficient for her need. She asserted that the accommodation needed for her own need and the need of the family. Accordingly, she filed an application under Section 21(1)(a) of the Act. 8. The application was contested both by Thakur Deen and Smt. Mithlesh Kumari and her sons. 9. Thakur Deen has a wife living and he is an employee of the State Bank of India. His family consists of two persons. 10. Accordingly, she filed an application under Section 21(1)(a) of the Act. 8. The application was contested both by Thakur Deen and Smt. Mithlesh Kumari and her sons. 9. Thakur Deen has a wife living and he is an employee of the State Bank of India. His family consists of two persons. 10. The family of Smt. Mithlesh Kumari consists of herself, her three sons and a minor daughter, Km. Nisha Swapna. 11. The Prescribed Authority after considering the evidence on record came to the conclusion that the need of the landlady was genuine and that she would suffer great hardship if the application is rejected. It further found that on a comparison of relative needs of the landlady and the tenants, the application should be allowed. The application was accordingly allowed. 12. The tenants in both the cases preferred appeals. The District Judge, Kanpur, dismissed both the appeals. 13. Aggrieved, the tenants have instituted the present writ petitions. 14. Sri Jagdish Swarup, the learned counsel for the petitioner, has pointed out that, according to Smt. Hero Devi, her family consisted of :- (1) herself, (2) her husband, (3) eldest son, Awadh Behari Agarwal, (4) wife of Sri Awadh Behari Agarwal, (5) daughter of Sri Awadh Behari Agarwal, aged about 10 years, (6) son of Sri Awadh Behari Agarwal, aged about 8 years, (7) son of Sri Awadh Behari Agarwal, aged about 6 years, (8) her son, Krishna Behari Agarwal, (9) wife of Sri Krishna Behari Agarwal, (10) eldest son of Sri Krishna Behari Agarwal, aged about 7 years, (11) daughter of Sri Krishna Behari Agarwal, aged about 5 years, (12) Sri Shyam Behari Agarwal, (13) wife of Sri Shyam Behari Agarwal, and (14) Youngest son, Ram Behari Agarwal, aged about 25 years. 15. He points out that one of the sons, namely Sri Awadh Behari Agarwal, is employed in Allahabad and as such he cannot be held to be in need of an accommodation in Kanpur. 16. He points out that the District Judge had held that Awadh Behari Agarwal was living in Allahabad with his family and he could not require the accommodation in dispute. 17. 16. He points out that the District Judge had held that Awadh Behari Agarwal was living in Allahabad with his family and he could not require the accommodation in dispute. 17. Sri Jagdish Swarup has argued that, in view of the definition of the word 'family' contained in the Act, the need of a daughter-in-law of the landlady, Smt. Hero Devi, as also the need of the minor daughters of Smt. Hero Devi cannot be taken into account while determining the application under Section 21(1)(a) of the Act, the Argument is based upon the definition of the word 'family' contained in Section 3(g) of the Act. Section 3(g) of the Act runs as follows :- "(g) 'family' in relation to a landlord or tenant of a building, means his or her - (i) spouse, (ii) male lineal descendants, (iii) Such parents, grand parents and any unmarried or widowed or divorced or judicially separated daughter or daughter of a male lineal descendants, as may have been normally residing with him or her, and includes, in relation to a landlord, any female having a legal right of residence in that building." 18. Section 3(g)(i) the word Spouse is clear. It means either a husband or a wife of a tenant or a landlord. Clause (ii) is also perfectly clear and requires no interpretation. 19. It is a clause (III) that requires interpretation in this case. 20. According to Sri Jagdish Swrup, it is only such parents, grand parents and any unmarried or widowed or divorced or judicially separated daughter or daughter of a male lineal descendant, as may have been normally residing with the landlord, are, included therein. He submits that a daughter-in-law cannot come within the definition of 'family' under Section 3(g) of the Act. 21. Sri Jagdish Swarup has pointed out that under the Mulla's Hindu Law, it is only a widow who is entitled to reside in the family house in which she lived with her husband. Similarly, where there is an undivided family consisting of two or more males and one of them died leaving unmarried daughters, they are entitled to reside, until their marriage, in the family dwelling house in which they lived with their father. In this connection, he invited reference to Articles 573 and 574 of the Mulla's Hindu Law, 15th Edition. 22. Similarly, where there is an undivided family consisting of two or more males and one of them died leaving unmarried daughters, they are entitled to reside, until their marriage, in the family dwelling house in which they lived with their father. In this connection, he invited reference to Articles 573 and 574 of the Mulla's Hindu Law, 15th Edition. 22. He then referred to Section 23 of the Hindu Succession Act, 1956, under which in the even of a Hindu lying into state who is survived by both male and female heirs as specified in Class I of the Schedule and his property includes a dwelling house occupied by members of his or her family, then notwithstanding anything contained in this Act, the right of any such female heir to claim partition of the dwelling house shall not arise until the male heirs choose to divide their respective shares but it is provided that the female heir shall be entitled to a right of residence therein. It is further provided that where such female is a daughter, she shall be entitled to a right of residence in the dwelling house only if she is unmarried or has been deserted by or has separated from her husband or is a widow. 23. The argument of Shri Jagdish Swrup is that a daughter-in-law does not come within any of the clauses in the defends family who is entitled to be considered a member of his family and she is not female having legal right of residence in the building. 24. Sri Bharatji Agarwal, appearing on behalf of the landlady, has referred to me to the Hindu Adoptions and Maintenance Act, 1956. In the definitions section, which is Section 3, the word 'maintenance' is defined in clause (b) thereof. Sub-clause (i) of clause (b) of Section 3 says that the maintenance includes in all cases, provisions for food, clothing, residence, education and medical attendance and treatment. He then refers to Section 18 of the aforesaid Act, and under sub-section (1) thereof a Hindu wife shall be entitled to be maintained by her husband during her life time. He submits that as long as the sons of the landlady were alive and living with the landlady, their wives, by virtue of Section 18(1) are entitled to a legal right of residence in the house. He submits that as long as the sons of the landlady were alive and living with the landlady, their wives, by virtue of Section 18(1) are entitled to a legal right of residence in the house. In this way, he submits that the daughters-in-law is a female having a legal right of residence in the building in question. 25. Mr. Jagdish Swarup, in reply, has urged that the daughter's-in-law have no right of residence as against the landlady, namely Smt. Hero Devi, though they may have right to claim maintenance from their husbands. 26. It must be remembered that the Act applies to all communities in the state and not to Hindus only. Any interpretation of Section 3(g) should not, therefore, depend on the circumstances as to whether a person belongs to a particular community or not. 27. The significant words which have to be interpreted in Section 3(g) are "and includes in relation to a landlord, any female having a legal right of residence in that building". Therefore, the right of residence must be in relation to a landlord and not in relation to anyone else. Since a daughter-in-law has no legal right of residence as against her mother-in-law in this case though she undoubtedly has a legal right of residence as against her husband by virtue of certain provisions of the Hindu Law. 28. In the circumstances, Sri Jagdish Swarup is right in contending that a daughter-in-law is not a member of the family. 29. I am reinforced in the view that I am taking by certain provisions in the Act. Under Section 12 of the Act, there is a provision for deemed vacancy. Under sub-section (1) thereof, a landlord or a tenant shall be deemed to have ceased to occupy the building or part thereof in certain circumstances Under sub-section (3) of Section 12 of the Act is provided that if the tenant or any member of his family builds or otherwise acquires in a vacant state or gets vacated a residential building in the same city, municipality, notified area or town area in which the building under tenancy is situate she shall be deemed to have ceased to occupy the building under his tenancy. Now if the interpretation, as suggested by Sri Bharatji Agarwal, it accepted where the daughter-in-law of a tenant builds or otherwise acquires a residential building, the tenant will be deemed to have ceased to occupy the building or portion thereof under his tenancy. The Legislature do not contemplate that a daughter-in-law can, by her act of acquiring a building, lead to the loss of tenancy right on the part of her mother-in-law or father-in-law. 29A. As far as the daughter is concerned, the words in Section 3(g)(ii) are 'male lineal descendants' and cannot include female lineal descendant. However, under Section 3(g)(iii) a daughter of a male lineal descendants who is normally residing with him or her, is a member of the family. It does not matter whether the son is also living or not with the landlady as in the instant case, as the requirement is normal residence with the landlord of the landlady and it does not speak of excluding such daughter of a male lineal descendants who live with the landlord or the landlady, as the case may be, in the life time of the male lineal descendants who may also be living with the landlord or the landlady. 30. Thus, Sri Jagdish Swarup has established that the daughter-in-law are not the members of the 'family' within the meaning of Section 3(g) of the Act. 31. This will not mean that the impugned orders are erroneous. It is Section 21(1)(a) that we have to consider in order to determine as to whether the application under Section 21(1)(a) of the Act was rightly allowed. Section 21(1)(a) of the Act runs as follows :- "21. 31. This will not mean that the impugned orders are erroneous. It is Section 21(1)(a) that we have to consider in order to determine as to whether the application under Section 21(1)(a) of the Act was rightly allowed. Section 21(1)(a) of the Act runs as follows :- "21. Proceedings for release of building under occupation of tenant :- (1) The Prescribed Authority may, on an application of the landlord in that behalf, order the eviction of a tenant from the building under tenancy or any specified part thereof, it is satisfied that any of the following grounds exists, namely - (a) that the building is bonafide required either in its existing form or after demolition and new construction by the landlord for occupation by himself or any member of his family, or any person for whose benefit it is held by him, either for residential purposes, or for purposes of any profession, trade or calling, or where the landlord is the trustee of a public charitable trust for the object of the trust." 32. A son is undoubtedly a member of the family of the landlady. The crucial words are 'for occupation by himself or any member of his family.' The word 'occupation' in the context in which it is placed in Section 21(1)(a), means occupation by the landlord or the members of his family along with those persons who would normally reside with him. It does not mean that a landlord or a member of the family of a landlord, must need the accommodation for his occupation alone in the sense that he cannot bring with him any other person who would normally live with him. 33. There are certain authorities of this Court in relation to Section 21(1)(a) of the Act. 34. In the case of Smt. Rani Chaturvedi v. Shiv Narain and others, 1979 A.R.C. 479, the landlord was a widower. The tenant urged that the need of the married daughter of Shiv Narain Das and the children of the daughters could not be considered as they were not the members of the family of the landlord within the meaning of Section 3(g) of the Act. It had been that Shiv Narain Das had a judicially separated daughter, Smt. Savitri Devi who was permanently residing with the landlord. It had been that Shiv Narain Das had a judicially separated daughter, Smt. Savitri Devi who was permanently residing with the landlord. Besides, there was another daughter of the landlord, namely Smt. Saraswati Devi, her husband and her children and Ram Kumar, sons of third daughter, had been living with the landlord permanently. It was held that the Court had to examine the need of the landlord and in such a case the fact that the relations of the landlord were permanently residing with the landlord would be a relevant consideration for the Court to consider while examining the case of the landlord. The learned Judge referred to a decision of Mr. Justice K.C. Agarwal in the case of Smt. Satya Misra and others v. II Additional District Judge and others, 1978 U.P. R.C.C. (Supplement) 738, wherein the following passage was quoted :- "The expression 'for occupation by himself' does not mean that the landlord should live in isolation. If the state of health of a landlord or his age is such that he cannot live alone and would need the company or assistance of any other person, then the need of such other person whose assistance, he needs, would also be covered by this phrase. Similarly, if the landlord, is invalid, an accommodation required for a helper may also be considered as a need of the landlord......... A distinction has, therefore, to be maintained between classes of cases where a landlord does not need an assistance of a man but still he wants to keep some one with him, in such a case the need for occupation would not be that of the landlord but of that other person. But where, as here, the landlord keeps his daughter and her son-in-law to look after his business and for his help, it will have to be held that requirement of these persons to have an accommodation to live with the landlord is bonafide need of the landlord himself." 35. There is another decision to which a reference may be usefully made and that is the decision in the case of Smt. Kamala Ahuja v. VI Additional District Judge, Meerut and others, 1981 U.P. R.C.C. 199. There is another decision to which a reference may be usefully made and that is the decision in the case of Smt. Kamala Ahuja v. VI Additional District Judge, Meerut and others, 1981 U.P. R.C.C. 199. It was held in that case that where a person residing permanently with the landlord though he did not come within the definition of 'family' under Section 3(g) nevertheless if the landlord sought the release of the accommodation under Section 21(1)(a), the landlord's need would include the need of the person. In that case, it was held, as in the instant case it has been found by the Prescribed Authority, and also by the Appellate Authority, that the landlady is in occupation of one kitchen, latrine bath room, one drawing room, one dining room, one store room, one big room for sitting and sleeping of the family members of the landlady and one small room on the outer side of entertaining the strangers. The resultant effect is that if the drawing and dining room are excluded there are only two rooms left according to both the Courts below, viz one big room and the other small outer room. The Court was, therefore, required to consider whether in the presence of this accommodation the requirement was bonafide or not. A general non acceptance of the case of the petitioner was not sufficient consideration of the case. Even on the facts founded by the appellate Court the eldest daughter-in-law of the landlord was teaching in Meerut and, therefore was stying with the family. The landlady along with her husband are admittedly also staying in the said accommodation. It has been found that the mother-in-law of the landlady is also staying in the accommodation. A young daughter-in-law cannot be expected to live in the same room where the father-in-law and the mother-in-law reside. Similarly the old mother and the landlady and her husband cannot possibly be expected to live together. These were all relevant considerations. 36. In the circumstances, in this view of the law, it cannot be held that the authorities below committed any manifest error of law in holding that the landlady's need did not include the need of the sons and the daughter-in-law to be accommodated in the building in question. 37. These were all relevant considerations. 36. In the circumstances, in this view of the law, it cannot be held that the authorities below committed any manifest error of law in holding that the landlady's need did not include the need of the sons and the daughter-in-law to be accommodated in the building in question. 37. The next submission of Sri Jagdish Swarup is that a Commissioner had been appointed at the request of the tenant to report about the extent of accommodation available in the building. The Commissioner had submitted a report which is on record here. The tenant filed an objection. It is Mr. Jagdish Swarup's grievance that the Prescribed Authority did not pass any order on the Commissioner's report and proceeded to decide the case straight-way and as such committed a grave irregularity which prejudiced the case of the landlord. The order of the Prescribed Authority is dated 29.1.1979. The order says that the objections were heard. Thereafter, it goes on to add that the objection is almost factual and the report was admitted subject to evidence already on record. 38. Thereafter the Prescribed Authority considered the matter in detail and referred, in his order, to the report of the Commissioner. The petitioner made no grievance of the fact that his objection had not been considered or that the objections had not been properly disposed of before the Appellate Authority. The grounds of appeals were produced before this Court and there was no grievance made about the procedure adopted by the Prescribed Authority in the Commissioner's report. The petitioner has also been unable to show that actually any prejudiced has been caused to him. In the circumstances, this objection on behalf of the petitioner cannot be sustained. This Court in a number of cases has held that if an objection to the Commissioner's report is not taken before the Court below, the petitioner cannot take the objection in this Court. See in this connection the decisions of this Court in the cases of Pitambar Dutt v. District Judge, Almora and others, 1982 A.R.C. 127, Begum Saeada Wajahat Hussain v. V. Additional District Judge, Lucknow, and others, 1983 A.R.C. 344 and Behari Lal v. District Judge, Pilibhit, and others, 1984 A.R.C. 481. 39. See in this connection the decisions of this Court in the cases of Pitambar Dutt v. District Judge, Almora and others, 1982 A.R.C. 127, Begum Saeada Wajahat Hussain v. V. Additional District Judge, Lucknow, and others, 1983 A.R.C. 344 and Behari Lal v. District Judge, Pilibhit, and others, 1984 A.R.C. 481. 39. Another argument advanced by Sri Jagdish Swarup on behalf of the petitioner is that the authorities did not take into consideration the provisions of Rule 16(1)(d) which provides that where the tenants' need would be adequately met by leaving with him a part of the building under tenancy and the landlord's needs would be served by releasing the other part, the Prescribed Authority shall release only the latter part of the building. He submits that because of the failure of the Prescribed Authority and the Appellate Authority, the tenant's claim has been grossly prejudiced. The living space in the accommodation consists of five main rooms, two of which are in possession of the landlady and three with the tenants. The family of the landlady was large and it is obvious that each of the two married sons living with the landlady required living room. The husband of the landlady required a room. There were six children in the family and thus the whole accommodation in the building was required by the landlady and it was, in these circumstances the Court did not address itself to the question as to whether the release of part of accommodation would suffice the need of the landlady and will meet the requirement of the landlady. 40. Shri Jagdish Swarup, in the end, has urged that under the provision of Rule 16(2)(a) it is provided that where the greater the period since when the tenants opposite party or the original tenant whose heir the opposite party is, has been carrying on his business in that building, the less the justification for allowing the application. He urges that similar consideration should apply to an application under Section 21(1)(a) of the Act for release of an accommodation required for residential purposes. In the first place, there is no provision parallel to rule 16(2)(a) to be found in Section 16(1). He urges that similar consideration should apply to an application under Section 21(1)(a) of the Act for release of an accommodation required for residential purposes. In the first place, there is no provision parallel to rule 16(2)(a) to be found in Section 16(1). I am not saying that the length of the tenant's occupation of the building is immaterial while deciding an application under Section 21(1)(a) but the duration of a tenancy in a residential building cannot be given a comparable importance as in a case where the building is occupied for a commercial or business purpose. In the facts of the present case, the length of the tenancy of the tenant is not such as to justify, in the facts and circumstances of the case, the rejection of the application filed by the landlady under Section 21(1)(a) of the Act. 41. Sri Jagdish Swarup made on oral offer on behalf of the petitioner, Thakur Deen, (in Writ Petition No. 14358 of 1981) to the effect that if the petitioner is allowed to continue in possession, he would leave one store-room and one box room on the second floor in favour of the landlady. Those rooms cannot serve as living rooms and it will not be possible to throw out the landlady's application on the ground that the need of the landlady would be met by the accommodation offered by the Thakurdeen. No such offer was made on behalf of the petitioner, Smt. Mithlesh Kumari (in Writ Petition No. 14356 of 1981). 42. In these circumstances, I find no error or defect in the judgment of the Prescribed Authority and the Appellate Authority. 43. In the result, the writ petitions fail and are dismissed. However, in order to give time to the tenants to find out an alternative accommodation, I direct that the order of Prescribed Authority directing the eviction the tenants would not be given effect to for a period of the three months from today's date.