Kanyalal Chandanmul vs T. Raghavalu Naidu

Ratnam, J.—The tenant is the petitioner in this civil revision petition, which is directed against the order of eviction passed by the authorities

below on an application under S. 10 (3) (a) (i) of the Tamil Nadu Buildings (Lease and Rent Control) Act 18 of 1960 as amended by Act 23 of

1973 (hereinafter referred to as the Act) filed by the respondent herein. The respondent is the owner as well as the landlord of the building bearing

door No. 70 (old No. 33). Mulla Sahib Street, G.T. Madras. 1 and the petitioner herein is a tenant in respect of the first floor as well as a room in

the second floor in the said premises on a monthly rent of Rs. 275, the tenancy being according to English calendar month. The case of the

respondent is that he is living with his daughter and son-in-law at No. 4, Mint Street, Madras, which does not belong to him, that his son-in-law is

employed as an Assistant Professor in Arts College, Nandanam, Madras and that the accommodation in the existing premises is insufficient to

accommodate his daughter and son-in-law and that the portion in the occupation of the petitioner is bona fide required for the occupation of his

daughter, a member of his family, and that of his son-in-law. Claiming that the respondent and his daughter do not own any house in the city of

Madras and that the daughter is staying with the respondent, he prayed for an order of eviction against the petitioner on the ground that he bona

fide requires the premises in the occupation of the petitioner for his daughter as well as son-in-law. That application was resisted by the petitioner,

who, while admitting the tenancy and the occupation of the first and second floors, contended that the claim of the respondent that premises No. 4,

Mint Street, is insufficient to accommodate the daughter and son-in-law of the respondent has been invented for purposes of the petition and that

the requirement by the respondent of the premises for his daughter and son-in-law is not bona fide and sustainable. A further objection was also

raised that the respondent demanded enhanced rent and since the petitioner refused to accede to that, the petition had been filed with a view to

evict the petitioner from the premises on some ground or other in order to rackrent the premises.

Before the Rent Controller (10th Judge, Court of Small Causes) Madras, the respondent besides examining himself as P.W.1, examined another

as P.W.2 and relied on Exs.P1 to P8 while the petitioner herein relied upon the evidence of Deenadayalu, examined as R.W.1 and Ex.R1. On a

consideration of the oral as well as the documentary evidence, the Rent Controller held that the requirement by the respondent of the premises in

the occupation of the petitioner for the purpose of enabling his daughter and son-in-law to stay with him in that premises is bona fide and that the

respondent is, therefore, entitled to an order for eviction. On this conclusion, the petitioner was directed to be evicted from the premises in

question granting him three months to vacate the premises. Aggrieved by this, the petitioner herein filed an appeal in H.R.A. No. 705 of 1979 to

the appellate authority (Third Judge, Court of Small Causes), Madras. The appellate authority concurred with the conclusion of the Rent Controller

that the requirement by the respondent of the premises in the occupation of the petitioner for own use and occupation of his daughter and son-in-

law is bona fide. In this view, the order of eviction passed by the Rent Controller was upheld and the appeal was dismissed. It is the correctness of

this order that is challenged by the petitioner in this civil revision petition.

The principal contention raised by the learned counsel for the petitioner is that a married daughter cannot be regarded as the ""member of the

family"" of the respondent so as to enable him to recover possession of the premises in the occupation of the petitioner on the ground that such

premises is required for the occupation of his married daughter and son-in-law. Per contra, the learned counsel for the respondent would, with

equal vigour, urge that a married daughter is not outside the definition of a ""member of the family"" as found in the Act and therefore, there is no

ground to exclude such a married daughter from the scope of the definition of a ""member of the family"" as contained in the Act to deprive the

respondent of the relief of eviction.

The question that has to be considered is whether the married daughter of the respondent would be a member of the family so as to enable the

respondent to maintain an application for eviction against the petitioner. Originally, under the Tamil Nadu Act 25 of 1949, S. 7(3)(a)(i) to (iii)

enabled only a landlord as defined in S. 2(3) of that Act to seek an order of eviction against a tenant in occupation of a residential as well as

nonresidential building on the ground the landlord requires such a building for his own occupation or business, subject to the further condition that

such a landlord should not be occupying a residential or non-residential building of his own in the city, town or village concerned. The aforesaid

provision underwent a change when the Tamil Nadu Act 18 of 1960 was enacted. Under S. 10 (3) (a) (i) to (iii) of the Tamil Nadu Act 18 of

1960, the requirement of the son of a landlord was also recognised and provision was also made enabling the landlord to secure an order for

eviction against a tenant in respect of a residential or non-residential building, provided the landlord or his son did not occupy a residential building

or a non-residential building in the city, town or village concerned which is his own. The provisions of S. 10 (3) (a) (i) to (iii) came up for

interpretation in several cases and the rationale behind the inclusion of a son in S. 10 (3) (a) (i) to (iii) was held to be that the ground of eviction

should be available to a landlord to enable his kith and kin to occupy the premises. On this reasoning, a Division Bench of this Court in K.C.

Devassay v. The State of Madras, Represented by the Secretary, Home Department and another 1970-1-M.L.J. 533=83 L.W. 20, considering

the question whether the word ""son"" under S. 10 (3) (a) (i) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 18 of 1960 would include

within its scope the requirement of a daughter, held that there is no reason or justification for differentiating a son from a daughter and that the need

of the nearest kith and kin to occupy the premises may be viewed as the necessity of the landlord''s own occupation. In doing so, the Bench

observed as follows (page 534):

In our view, in delimiting the scope of this provision, regard must be had to the social set up and the family life with its surroundings. An undivided

son who is married naturally may desire to live apart and the father may possibly regard that as a requirement of the premises for his own

occupation. But, since the Legislature has also used the language ""for the occupation of his son"" it is urged that this is an indication that, at least, a

daughter is not taken into account. The rationale behind the inclusion of the son is that the ground of eviction should be available to a landlord for

the occupation of his nearest kith and kin. Where to draw the line may be left to particular cases. But the case of a daughter is to our mind

afortiorari and, we can see no reasonable justification for differentiating a son from a daughter in the matter of requirement of the landlord for

purposes of his own occupation. It should not be lost sight of that the statutory protection of tenancy is a departure from the normal provision

controlling the relationship of landlord and tenant under the Transfer of Property Act. and, we should think that, for that reason, it should receive a

liberal interpretation so as to mitigate, where necessary, the rigour on the landlord. That is not to say that, on a matter like that, one is expected to

lean in favour of a landlord. We suggest no such thing at all, but balancing the facts, a reasonable view should be taken as to who is the nearest kith

and kin the necessarily of whose occupation in the premises may be viewed as the necessity of the landlord''s own occupation.

In view of the aforesaid pronouncement, it was thought fit to provide for the eviction of a tenant from a building, if it is required for the use of not

only the landlord and his son, but also to any member of the landlord''s family, and that is how S. 2 (6-A) came to be introduced by S. 3 of the

Tamil Nadu Act 23 of 1973 defining who the members of a landlord''s family are. S. 2 (6-A) of the Act defines ""members of his family"" in relation

to a landlord to mean his spouse, son, daughter, grand-child or dependent parent. It is obvious that the enumeration of the persons who would

constitute members of the family of a landlord is based solely on relationship except in the case of the parent, in which case dependency of the

parent is also a factor to be taken into account. The definition of ""member of his family,"" as it stands, does not exclude either a son or a grandchild

on the ground of marital status of that person. This is an important aspect to be taken note of since in some comparable legislations akin to this,

care has been taken to define a daughter as an unmarried daughter, which is not the case in so far as the Tamil Nadu Buildings (Lease and Rent

Control) Act is concerned. The word ""family"" has not been defined in the Act and the extent of the boundaries of the family depends on particular

facts of each case and the structure and outlook of each family. The concept of what constitutes a family when a number of persons are related or

are living together is something which cannot be static or capable of a precise definition and what constitutes a family in a given set of

circumstances or in a particular society depends upon the ideas and habits of the persons constituting that society, the religious and socio-religious

customs of the community to which such persons may belong. Though the word ""family"" is a popular and flexible expression, yet, its primary

meaning is children, but even such meaning is susceptible of wider interpretation, because the scope of the word must depend upon the context and

other provisions as well. It may even be that in a given set of circumstances, a family may include persons, who may not in another given set of

circumstances be regarded as member of one family and therefore, there can be nothing dogmatic, one way or the other, on such matters.

In R.V. Balasubramania Chettiar and others v. J.B.M. Mohammad Yahaya and others 1977-1-M.L.J. 40=89 L.W. 606, Ramaprasada Rao,

J., (as he then was) had to consider the question whether a co-owner can be equated to the word ""landlord"" which precedes the parenthesis ""any

member of his family"" in S. 10 (3) (a) (iii) of the Act. The learned Judge observed at page 42 thus :

The context in which the parenthesis ''any member of his family'' appears, read in conjunction with the word ''landlord'' which precedes it, compels

the Court to interpret the same liberally instead of putting a rigid, matter of fact interpretation, on the expression ''family'' appearing in S. 10 (3)(a)

(iii). The word ''family'' means, according to the Oxford Dictionary, members of a house-hold, parents, children, servants, etc. Again, the

dictionary would say that a family means people from common stock or brotherhood of persons united by some common objects.

Though the word ""daughter"" is a familiar one it connotes a female in relation to her parent and such relationship resulting from her birth cannot

be, in any manner, negated even by marriage. Marriage would, no doubt, result in the daughter living with her husband, in some cases away from

her parents or in some cases even along with her parents. But eve a so, a daughter does not cease to be the daughter of a parent merely because

she is married and, as stated earlier, the definition in S. 2 (6-A) of the Act does not exclude a married daughter. In its absence, the word

daughter"" occurring in S. 2 (6-A) of the Act has got to be given the widest amplitude to include unmarried daughter, married daughter and even a

widowed daughter. Since dependency is not one of the criteria under S. 2 (6-A) of the Act in so far as a daughter is concerned, that would again

indicate that irrespective of the status of such a daughter, she would nevertheless be a daughter within the meaning of the expression ""member of

the family"". It is not an uncommon feature that a married daughter, along with her husband and children, lives with her father in a premises which is

not the father''s own. It may be that the father is old and he needs to be looked after by the married daughter. In such cases, the dependency is of

the parent on the daughter and if the father requires a premises of his own for living with his married daughter and other members of her family so

that he can be either looked after or better taken care of, there is nothing in the provisions of the Act which compels that the landlord/parent cannot

recover possession of a building in the occupation of a tenant. Indeed, it might even be a case which falls under S. 10 (3) (a)(i) of the Act as the

requirement of the landlord himself. The aforesaid considerations, in my view, would certainly enable a land lord/parent to recover possession of a

house in the occupation of a tenant on the ground that he requires the premises bona fids for the occupation of his daughter who is a member of the

family under S. 2(6-A) of the Act.

Though some decisions were referred to by the learned counsel on either side, it is unnecessary to make a detailed reference to any of them as

those cases have been decided with reference to the language employed in the enactment that came up for interpretation. However, the learned

counsel for the petitioner placed considerable reliance upon a judgment of Madhya Pradesh High Court reported in Manorama Bahadur and

others v. A.C.M. Swami 1979 (1) R.C.J. 90, for the position that it is not open to the landlord to seek an order for eviction on the ground that the

premises is required for his married daughter. It was hold therein that a married daughter is not included within the definition ""member of the family

and that her need cannot be set up for eviction of a tenant. Having regard to the definition of ""member of the family"" in S. 2 (e) of the Madhya

Pradesh Accommodation Control Act (41 of 1961), which excludes a married daughter, that decision cannot be pressed into service by the

petitioner. Under these circumstances, the petition for eviction filed by the respondent herein should be held to be maintainable. It is not in dispute

that the respondent is residing in a premises which is not his own. It is also not in dispute that the daughter of the respondent was married in

February 1978 and that the son-in-law of the respondent is working as an Assistant Professor in the Government Arts College at Nandanam,

Madras. That the married daughter and son-in-law of the respondent are living with the respondent has been established beyond doubt by the

evidence of the respondent examined as P.W.1 and that of a neighbour residing in the opposite house, examined as P.W.2. In addition, Exs. P7

and P8, a telegram as well as a post-card addressed to the son-in-law of the respondent to his college address and the address of the respondent

would also establish the fact that the daughter and the son-in-law of the respondent are living with the respondent as members of one family. It is

also the evidence of the respondent examined as P.W.1, that his daughter is not occupying any residential building in the city of Madras as her

own. Before filing the application for eviction, the respondent issued a notice Ex.P1 determining the tenancy and requiring the petitioner to

surrender possession, Ex.P3 is the acknowledgment for the receipt of that notice by the petitioner. The petitioner has not even sent a reply

challenging the claim that had been made by the respondent in that notice. Further, the petitioner has also carefully avoided the box. On a careful

consideration of the evidence of P.W. and R.W.1, it does not appear that the petition for eviction filed by the respondent lacks bona fides or that it

has been motivated owing to a refusal by the petitioner to pay enhanced rent. Therefore, on the evidence of P.W.1, as well as the total lack of

evidence on the part of the petitioner to show that the application filed by the respondent for eviction is not bona fide, the conclusion is irresistible

that the requirement of the premises in the occupation of the petitioner for the use and occupation of his daughter and son-in-law is bona fide. The

result is, the order of eviction passed by the authorities below is upheld and the civil revision petition is dismissed with costs.