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CASE NO.:

Appeal (civil) 4731 of 1999

PETITIONER:

Dwarkaprasad

RESPONDENT:

Niranjan and another

DATE OF JUDGMENT: 04/03/2003

BENCH:

R.C. Lahoti & Arun Kumar.

JUDGMENT:

J U D G M E N T

ARUN KUMAR, J

The 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.

The trial court decreed the suit on both the grounds pleaded by

the plaintiff vide its judgment and decree dated 28th January, 1994.

The 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

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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.

The 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 :

" Section 13 (1) (g):

that 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 himself".

In 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.

The 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.

Dwarkaprasad 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.

However 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.

It is 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

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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.

In the 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.

This 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 business.

Jaiprakash's 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

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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.

Learned 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.

This 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.

This 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.

Moreover, 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.

The 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.

In 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 on him.

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The 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.

This 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.

In Balbhadra 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:

"3. 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.

In Baldev 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

house.

A beneficial provision must be meaningfully construed so as to

advance the object of the Act. The term "family" must always be

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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 accepted.

A 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.

The 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.

In the 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.

Therefore, 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.

The 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 costs.