Kolandaivelu Chettiar vs Koolayana Chettiar

Venkatadri, J.—This civil revision petition arises out of proceedings taken out by the respondent under the Madras Buildings (Lease and

Rent Control) Act, 1949, The respondent is the landlord. He filed an application under S. 7(1) of the Madras Rent Control Act, for eviction of the

tenant, the petitioner herein, from the suit premises bearing Door No. 118. The respondent, that is the landlord, has also got three other houses

bearing Door No. 125, which is in the occupation of himself and his second son, Door No. 119 in the occupation of his eldest son and Door No.

111 in which he has got a joint right with a third party. The reasons for the eviction as alleged in his petition are that the petitioner herein was in

arrears of rent and the second son of the respondent is married and he wants to set up for his son an independent family of his own and for the said

purpose he requires the property mentioned in the petition for the occupation of his son and for his personal use. The petitioner herein contended

that there was no necessity for the respondent herein to set up an independent family of his own for his son as he was married ten years ago and

was living with his father, who is a widower during all these years, and that the application for eviction was not bona fide for his own use, but, on

the other hand, has been filed to get an enhanced rent.

The learned District Munsif, who is the Rent Controller, gave a finding that the respondent herein, the landlord, required the suit premises bona

fide for his personal use, that is, for setting up a separate family for his second son. In the result eviction was ordered by the learned District

Munsif.

Against this order the tenant, that is the petitioner, herein, filed an appeal C. M. A. No. 32 of 1958, on the file of the Subordinate Judge''s

Court, Coimbatore. The learned Subordinate Judge decided the case on the interpretation of S. 7 (3) (a) of the Madras Buildings (Lease and Rent

Control) Act, 1949, which was then in force. S. 7 (3) (a) is as follows:

A landlord may, subject to the provisions of Cl. (d), apply to the Controller for an order directing the tenant to put the landlord in possession of the

building-

(i) in case it is a residential building, if the landlord requires it for his own occupation and if he is not occupying a residential building of his own in

the city, town or village concerned;

The learned Judge was of opinion that as the landlord, that is the respondent herein, has been occupying a residential building of his own and

even if he bona fide required the disputed premises for the occupation of his son, he would not be entitled to evict under S. 7 (3) (a). He also

found that the Act does not make any special provision for the members of a Hindu joint family and as such the joint family cannot be held to be a

landlord for the purpose of S. 7, Cl. (3) (a) of the Act. In the result, he set aside the order of eviction and dismissed the petition filed by the

respondent (landlord).

Against this judgment the respondent herein filed a civil revision petition in the District Court, Coimbatore. The learned District Judge gave a

finding that the application is bona fide and the landlord requires the suit premises for setting a separate family for his second son. The learned

District Judge took a contrary view to that of the learned Subordinate Judge and came to the conclusion that the word ""landlord"" includes a

member of the family. Therefore he held that the petition filed by the landlord for eviction is maintainable even though he requires it for setting up a

separate family for his second son in spite of the fact that the landlord himself is in occupation of a building of his own excluding the suit premises.

Against this order the tenant, that is the petitioner herein, filed the present civil revision petition. By that time the Madras Buildings (Lease and

Rent Control) Act, 1949 had been amended and the Madras Buildings (Lease and Rent Control) Act, 1960 had come into force.

Under S. 35 of the present Act, the Madras Buildings (Lease and Rent Control) Act, 1949 was repealed and all the rules made or deemed to

have been made, notification issued or deemed to have been issued, orders passed or deemed to have been passed, decisions made or deemed to

have been made, proceedings or action taken or deemed to have been taken and things done or deemed to have been done under any provision of

the said Act, shall be deemed to have been made, issued, passed, taken or done by the appropriate authority under the corresponding provision of

this Act and shall have effect accordingly.

Therefore, I have to decide the case under the relevant provision of the present Act of 1960. The relevant provision of the present Act is S. 10,

Cl. 3 (a), which is as follows :

A landlord may, subject to the provisions of Cl. (d) apply to the Controller for an order directing the tenant to put the landlord in possession of the

building-(i) in case it is a residential building, if the landlord requires it for his own occupation or for the occupation of his son and if he or his son is

not occupying a residential building of his own in the city, town or village concerned.

There was much discussion in several Courts in India, as to who should be included in the word ""landlord"" occurring in the Buildings (Lease and

Rent Control) Acts of the respective Provinces. When interpreting the word ""landlord"" Chagla, C. J., in an unreported case of the Bombay High

Court (cited in ''Principles of Rent Control by Andhyarjuna, 1952 Edn. at p. 257) held that one should look into the customs of society and the

nature of social ties which subsist between the different members of the family in India. A member of the family of the landlord need not necessarily

be the dependent on the landlord. Thus, where the premises belong to the joint family the requirement of anyone member of the joint family would

be the requirement of the landlord. All the cases that were decided in several Courts with regard to the interpretation to be given to the words

landlord requires it for his own occupation"" were elaborately reviewed in a Bench decision of the Patna High Court in Bidhubhusan Sen Vs.

Commissioner, Patna Division and Another, . Their Lordships held that the expression ""his own occupation"" cannot be restricted only to the

occupation of the landlord himself, but should be given a wider and liberal meaning so as to include the occupation of persons who are living with

the landlord and are economically dependent on him. In the Patna case the landlord required the premises for establishing his nephew who was

living with him and dependent on him in business.

Thus, the various Courts, in determining the expression ""his own"" have held that it does not necessarily mean the particular individual alone but

must be interpreted to include the individual''s family and also dependents. It is proper and desirable for the Court to bear in mind the context of

social order, the habits and ideas of living, the religious and socio-religious customs of the community to which the individual belongs and then

come to a conclusion on the facts of each case.

The learned District Judge on a consideration of all these circumstances came to the right conclusion that the respondent herein, that is the

landlord, will be entitled to require the disputed premises for the occupation of his son under S. 7, Cl. (3) (a).

But the learned Counsel for the petitioner, Mr. M. Natesan, has laid great emphasis on the words used in the present Act ""if he or his son is

not occupying a residential building of his own in the city, town or village concerned."" His contention is that the petitioner and his second son are

the members of a joint family. Admittedly, the second son is living with his father. Therefore, he must be deemed to be in occupation of a

residential building of his own. It is not necessary that there should be an exclusive house or a residence of his own. On the other hand, Mr. N. R.

Raghavachariar, learned Counsel for the respondent, contended that the expression ""of his own"" means that there should be a building

independently of his own He should have full ownership. The building should belong to a single individual. It is only in those circumstances it can be

called a ""a residential building of his own.

I entirely agree with Mr. N. R. Raghavachariar, the learned Counsel for the respondent, because it is well sealed under the Hindu Law, that no

coparcener is entitled to separate possession of the coparcenary estate. The actual possession and management thereof must vest in a manager. He

is the protector of the household and can prevent by obtaining an injunction a riotous member thereof from entering the family house without his

permission to disturb its peace and tranquillity. It is also well settled that all the coparceners have a community of interest and unity of possession in

the coparcenary or joint family property. A coparcener, cannot, while the family is undivided, predicate at any given moment that he, the particular

coparcener, has a definite share in the coparcenary property. Applying these principles, the learned Counsel for the petitioner is not correct in

saying that the petitioner''s second son is in occupation of a residential building of his own.

The learned Counsel for the petitioner also laid emphasis on the words ""of his own"". I am not much impressed with his arguments that the

expression ""of his own"" must be deemed to mean either constructive ownership or notional possession. The meaning to be given to the word ""own

depends upon the subject matter and circumstances surrounding it. It is a general term which varies in its significance according to its use. The

Madras Buildings (Lease and Rent control) Act, 1960 is concerned with the actual and physical possession and not with the notional and

constructive possession, and it will be foreign to the scheme of the Act to hold that occupation of one member should be construed as occupation

by another when that another is not in fact in occupation.

It has also further to be understood that occupation includes possession. Legal possession does not of itself constitute occupation. There is a

distinction between occupation and possession. Possession may be legal or constructive, but in occupation there is no legal or constructive

occupation.

Therefore, I am of opinion that the view held by the District Judge, who decided the case under the old Act, that a landlord can maintain an

application for the eviction of a tenant on the ground that he requires the premises for the setting up of a separate family for his second son is

correct. His interpretation that the words ""his own occupation"" have to be construed to include occupation of the landlord''s son is correct.

Under the present Act, the provision is made clear by inserting the words

for the occupation of his son and if he or his son is not occupying a residential building of his own in the city, town or village concerned.

The father can certainly file an application when he requires the premises to set up a separate family for his second son when his son is not

occupying a residential building of his own in the place concerned. The civil revision petition is therefore dismissed. But there will be no order as to

costs. Time for eviction three months.