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Tuesday, February 14, 2017

whether the appellant is an unauthorized occupant in suit premises and that he does not come within the definition of ‘family’ of the deceased tenant as per Section 3(g) nor an ‘heir’ under Section 3(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972.=The brother of a tenant is not included in the definition of “family”. However, the present one is not a case where the tenant Suraj Prasad had during his lifetime taken up residence elsewhere and/or allowed the suit premises to be occupied by his brother. Deo Narain, being the real brother of late Suraj Prasad, the tenant, had come to stay with his brother and was residing along with him as such, even at the time of death of Suraj Prasad. It will not therefore be correct to say that applicability of clause (b) of sub-section (1) of Section 12 of the Act was attracted to the suit premises during the lifetime of Suraj Prasad and a deemed vacancy had occurred. On the death of Suraj Prasad tenancy rights devolved on Deo Narain, he being the only heir. He too became a “tenant” within the meaning of clause (a) of Section 3. The decision of the High Court cannot, therefore, be faulted. 10. There is yet another reason why no interference with the impugned order of the High Court is called for. Shri Upadhyay, the learned counsel for Respondents 1 to 3 invited our attention to the pleadings and pointed out that admittedly the sale deed executed by Jagdamaba Prasad Awasthi in favour of Ganesh Trivedi, the appellant, contains recitals to the effect that the former owner-landlord was well aware of Deo Narain occupying the suit premises after the death of Suraj Prasad, that he was acknowledged by the landlord as tenant in the premises, and that rent was also paid by Deo Narain to the landlord under receipts issued by the landlord though Deo Narain had fallen into some arrears of rent at the time of sale of the suit premises in favour of the appellant. Such admissions made by Jagdamaba Prasad Awasthi are binding on Ganesh Trivedi, the appellant, inasmuch as the same are contained in the sale deed by which title has been derived by the appellant and thereunder the appellant has stepped into the shoes of the previous owner-landlord. Deo Narain’s status as tenant in occupation of the suit premises, cannot, therefore, be doubted or disputed by the appellant.”= Upon appreciation of the facts and evidence, the first appellate court and the High Court rightly held that the appellant is neither an ‘heir’ as visualized under Section 3(a) of the U.P. Act XIII of 1972 nor ‘family’ within the meaning of Section 3(g) of the Act and that the appellant is in unauthorized occupation of the suit premises and is liable to be evicted. The High Court has directed the District Magistrate to pass appropriate orders under Section 16 of the U.P. Act XIII of 1972 on the release application of the landlord without further delay preferably within three weeks from the date of judgment of the High Court that is 09.03.2015. Father-in-law of Lalita had taken the suit premises on rent in the year 1940. In the facts and circumstances of the case, without relegating the matter to the District Magistrate to pass orders on the release application of the respondent-landlord, we deem it appropriate to direct the appellant to hand over vacant possession to the respondent-landlord. 18. In the result, the appeals are dismissed.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                      CIVIL APPEAL NOS.1305-06 OF 2017


Durga Prasad                                 …..         Appellant

                                   Versus

NARAYAN RAMCHANDAANI (D) THR. LRS.      …..      Respondents



                             J U D G M E N T


R. BANUMATHI, J.


These appeals arise from the judgment of the High Court  of  Uttarakhand  at
Nainital in Writ Petition(MS) No. 2729 of 2014 dated  09.03.2015  dismissing
the writ petition and  also  the  review  petition,  thereby  affirming  the
findings of Additional District and Sessions Judge-VII,  Dehradun  that  the
appellant is an unauthorized occupant in suit premises and that he does  not
come within the definition  of  ‘family’  of  the  deceased  tenant  as  per
Section 3(g) nor an ‘heir’ under Section 3(a) of the  U.P.  Urban  Buildings
(Regulation of Letting, Rent and Eviction) Act, 1972.

2.    Brief facts which led to filing of these appeals are as under :

The respondent-landlord filed an  eviction  petition  before  the  Competent
Authority/Civil Judge, (Senior Division)  under  Section  21(1)(a)  of  U.P.
Urban  Buildings  (Regulation  of  Letting,  Rent  &  Eviction)  Act,   1972
(hereinafter referred to as the ‘U.P. Act XIII  of  1972’)  for  release  of
property from the tenant-Late Lalita Devi from  the  suit  property  bearing
No.6/7, Amrit Kaur Road, (New Road), Dehradun on  the  ground  of  his  bona
fide need. Father-in-law of deceased Lalita Devi–Hem Ram  Sharma  had  taken
the suit property on rent and after his death his  son  Baldev  (husband  of
Lalita) became the tenant of the  suit  property  and  after  the  death  of
Baldev, Lalita became the tenant of suit property.   The  appellant  is  the
brother of deceased Lalita, who was the tenant  of  the  respondent  herein.
The application was dismissed vide order dated 19.04.2010 by the  Prescribed
Authority. Aggrieved by the said  order,  respondent-landlord  preferred  an
appeal under Section 22 of the U.P. Act XIII of 1972  before  the  appellate
court which was transferred  to  Additional  District  Judge-VII,  Dehradun.
During  the  pendency  of  appeal,  tenant-Lalita  Devi   passed   away   on
06.07.2013. The respondent-landlord moved a substitution application  before
the appellate court with a prayer  that  the  appellant,  who  is  the  real
brother of deceased, be substituted in her place. The said  application  was
allowed and the appellant was impleaded as  a  defendant/respondent  in  the
said appeal. The appellate Court allowed the said appeal  vide  order  dated
10.10.2014 holding that during the pendency of the appeal the  sole  tenant-
Lalita passed away and Durga Prasad, who  has  been  substituted  is  not  a
member of the ‘family’ and that he has not been able to prove  that  he  was
previously residing with his sister Lalita in the said  premises.  On  those
findings  the  appellate  court  set  aside  the  order  of  the  prescribed
authority and allowed the appeal. Thereafter the appellant-tenant  preferred
a writ petition before the High Court which was dismissed vide the  impugned
order dated 09.03.2015, holding that the appellant does not come within  the
definition of ‘family’ as per Section 3(g) of U.P. Act  XIII  of  1972.  The
High Court further held that vacancy  was  liable  to  be  declared  on  the
demised  premises,  on  the  death  of  sole  tenant–  Lalita,  the   review
application filed by the appellant also came  to  be  dismissed  vide  order
dated 31.08.2015. Both the orders are impugned in these appeals.

3.    Mr. Parthiv Goswami, learned counsel for the appellant contended  that
the High Court erred in holding that the appellant is not a  legal  heir  or
representative of the deceased tenant and the said finding is  perverse  and
contrary to the materials on record. Learned counsel further submitted  that
on the death of the tenant  Lalita,  respondent-landlord  himself  filed  an
application for substitution of the present appellant as the legal  heir  of
the deceased tenant Lalita and the address of the appellant at the  time  of
filing of the application was shown  as  the  same  disputed  property  i.e.
House No.6/7, Amrit Kaur Road, Dehradun  and  which  by  itself  establishes
that appellant has been residing in the said property at the time  of  death
of tenant Lalita. The learned counsel for the appellant has placed  reliance
upon Ganesh Trivedi vs. Sundar Devi and Others (2002) 2 SCC 329  to  contend
that the brother would  inherit  the  tenancy  and  would  fall  within  the
definition of ‘family’.

4.    Learned counsel for the respondent-landlord submitted  that  the  High
Court rightly held that the appellant being brother of tenant Lalita is  not
a member of the ‘family’ as defined under Section 3(g) of the U.P. Act  XIII
of 1972 and the appellant being an unauthorized  occupant,  the  High  Court
rightly ordered to be evicted. It was further contended that the  tenant  of
the suit premises was Lalita and that tenant was a female Hindu and  on  her
death, the devolution of tenancy will be determined as per Section  15(2)(b)
of the Hindu Succession Act and since the appellant does not fall under  the
category of ‘heir’  of  the  husband  of  Lalita,  the  High  Court  rightly
dismissed the writ petition as well as the review petition and the  impugned
orders do not warrant interference.





5.    We have carefully considered the rival  contentions  and  perused  the
impugned order and the materials on record.





6.    The question for consideration is  whether  the  appellant-brother  of
the deceased tenant-Lalita is included in the definition of  ‘family’  under
Section 3(g) or an ‘heir’ under Section 3(a) of the U.P. Act XIII of 1972.





7.    For proper appreciation of the question and  the  contentions  raised,
it is apposite to refer to relevant provisions of Section 3 of the U.P.  Act
XIII of 1972 which defines the term ‘tenant’ and ‘family’ as under:-


“3 (a) “tenant”, in relation to a building, means a person by whom its  rent
is payable, and on the tenant’s death-
in the case of a residential building, such only of his  heirs  as  normally
resided with him in the building at the time of his death;
in the case of a non-residential building, his heirs;
[Explanation – An occupant of a room in a hotel or  a  lodging  house  shall
not be deemed to be a tenant];
……………
(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, grandparents 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 him or her,
and includes, in relation to a landlord, any female having a legal right  of
residence in that building.”



8.    Section 12 of the U.P. Act XIII of 1972 relates  to  deemed  vacancies
of a building which reads as under:-



“12. Deemed vacancy of building in certain cases – (1) A landlord or  tenant
of a building shall be deemed to have ceased to occupy  the  building  or  a
part thereof if-

            (a)  he has substantially removed his effects therefrom; or
            (b)  he has allowed it to be  occupied  by  any  person  who  is
      not member of his family; or
            (c)  in the case of  a  residential  building,  he  as  well  as
        members   of   his   family   have   taken   up    residence,    not
being temporary residence, elsewhere.

(2) In the case of non-residential building,  where  a  tenant  carrying  on
business in the building admits a person who is not a member of  his  family
as a partner or a new partner, as the case  may  be,  the  tenant  shall  be
deemed to have ceased to occupy the building.
(3) In the case of a residential building, 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, he shall be  deemed  to
have ceased to occupy the building under his tenancy:
……….

9.    A careful analysis of the above  provisions  indicates  that   Section
3(a) uses the word ‘heir’.   Definition  in  Section  3(a)  deals  with  the
contingency when a tenant dies.  It is significant to  note  that  the  word
“family member” is absent in  Section  3(a).   “Family  member”  is  defined
under Section 3(g) of the U.P. Act XIII of 1972 and is also referred  to  in
Section 12 of the U.P. Act XIII of 1972.  The word ‘heir’  in  Section  3(a)
is used in relation to a ‘tenant’ who has  to  succeed  as  “tenant  on  the
tenant’s death”; while ‘family’ is used in Section 12  which  deals  with  a
situation of an existing tenant.  The definition of  ‘family’  as  occurring
in Section 3(g) may not be relevant for  the  purposes  of  determining  the
question as to who would become tenant on  the  death  of  original  tenant,
since Section 3(a) uses the word ‘heir’.



10.   In the present case, we are dealing with the  case  as  to  who  would
become ‘tenant’ on the death of Lalita.  Hence, the definition  of  ‘family’
is not relevant for the purposes of  determining  as  to  who  would  become
tenant on the death  of  tenant  Lalita.   The  only  question  falling  for
consideration is whether the appellant-brother of the tenant  Lalita  is  an
‘heir’ under Section 3(a) of the U.P. Act XIII of 1972.  The word ‘heir’  is
not defined in the Act.  ‘Heir’ is a person who inherits or may  inherit  by
law.  Section 3(1)(f) of the Hindu Succession Act defines ‘heir’ as  ““heir”
means any person, male  or  female,  who  is  entitled  to  succeed  to  the
property of an intestate under this Act;”. The word ‘heir’ has to  be  given
the same meaning as would be applicable to the general  law  of  succession.
In the present case, as pointed out by the High Court, the deceased  tenant-
Lalita being a hindu female, the devolution of tenancy  will  be  determined
under Section 15 of the Hindu Succession Act.



11.   Section 15 of the Hindu Succession Act lays down the general order  of
succession to the  property  of  a  female  intestate  who  dies  after  the
commencement  of  the  Hindu  Succession  Act  and  states  the  scheme   of
succession to her  property  which  is  different  from  that  of  order  of
succession to the property of a male intestate. Sub-section (2)  of  Section
15 carves out two exceptions to the general scheme and order of  succession.
 We are concerned with clause (b) of sub-section (2) of Section 15 as  noted
above which has been grafted as an exception to the provisions  relating  to
the general order of succession to  the  property  of  a  female  intestate.
Section 15(2)(b) of the Hindu Succession Act reads as under:-


“Section 15. General rules of succession in the case of female Hindus
…………
Notwithstanding anything contained in sub-section (1),-
(a)……….
(b). Any property inherited by a female Hindu from her husband or  from  her
father-in-law shall devolve, in the absence of any son or  daughter  of  the
deceased (including the children of any predeceased  son  or  daughter)  not
upon the other heirs referred to in sub-section (1) in the  order  specified
therein, but upon the heirs of the husband.”

The exception carved out in Section 15(2)(b) provides for  a  special  order
of succession in case of property inherited by her from her husband  or  her
father-in-law; but its operation is  confined  to  the  case  of  her  dying
without leaving a son or a daughter or children of pre-deceased children  to
inherit her property.  Language used in the section clearly  specifies  that
the property inherited from the  husband  and  father-in-law  would  devolve
upon  the  heirs  of  husband/father-in-law  from  whom  she  inherited  the
property.   We may usefully refer to the decision of this Court in the  case
of V. Dandapani Chettiar v. Balasubramanian  Chettiar  (Dead)  by  Lrs.  And
Others, (2003) 6 SCC 633, and the relevant para reads hereunder:-


"10. Sub-section (2) of Section 15 carves out an  exception  in  case  of  a
female dying intestate without  leaving  son,  daughter  or  children  of  a
predeceased son or daughter. In such a case, the rule prescribed is to  find
out the source  from  which  she  has  inherited  the  property.  If  it  is
inherited from  her  father  or  mother,  it  would  devolve  as  prescribed
under Section 15(2)(a). If it is  inherited  by  her  from  her  husband  or
father-in-law, it would devolve upon the heirs of her husband  under Section
15(2)(b). The clause enacts that in a case where the property  is  inherited
by a female from her father or mother, it would devolve not upon  the  other
heirs, but upon the heirs of her father. This would mean that  if  there  is
no son or  daughter  including  the  children  of  any  predeceased  son  or
daughter, then the property would devolve upon  the  heirs  of  her  father.
Result would be -- if the property is inherited by a female from her  father
or her mother, neither her husband nor his heirs would  get  such  property,
but it would revert back to the heirs of her father."

12.   In the present case, the suit  property  was  taken  on  rent  by  the
father-in-law of deceased tenant-Lalita that is Hem  Ram  Sharma  and  after
his death, his son Baldev (husband of Lalita)  became  tenant  of  the  suit
property.  Upon his death, Lalita became the tenant of  the  suit  property.
Upon death of Lalita, in terms of Section 15(2)(b) of the  Hindu  Succession
Act, in the absence of any son or daughter of deceased Lalita,  the  tenancy
would devolve upon the heirs of her husband.  Since the appellant  does  not
fall under the category of ‘heir’ of Lalita’s husband, the  tenancy  of  the
suit property will not devolve on him nor can he  be  called  as  an  ‘heir’
under Section 3(a) of the U.P. Act XIII of 1972.



13.   Section 3(g) defines ‘family’, in relation to landlord which  includes
the spouse that is husband or wife of  a  person,  male  lineal  descendants
which means his or her son, son’s son, son’s son’s son and so  on,  parents,
grandparents, unmarried, widowed, divorced daughter or  granddaughter,  etc.
The definition given in the clause is an inclusive one and  is  supposed  to
be construed in its technical meaning which implies what is  not  given  has
to be excluded as not forming part of the  family  of  landlord  or  tenant.
Therefore, sisters and brothers of landlord and  tenant  are  excluded  from
his/her family.  In the facts of present case, the appellant  being  brother
of deceased tenant cannot be held to be the ‘family’ as the  inclusive  list
given under the Act clearly omits “brother and sister” and the  same  cannot
be read therein as the list has to be read and interpreted strictly.



14.   Assuming, for the sake of arguments that the appellant is an  heir  of
Lalita, for devolution of tenancy, on the death  of  Lalita,  the  appellant
has to be a ‘tenant’ within the meaning of Section  3(a)  of  the  U.P.  Act
XIII of  1972.    As  per  Section  3(a)(1),  in  the  case  of  residential
building, in the event of death of a tenant, for  heirs  to  be  treated  as
tenant, the statute requires them to prove  that  they  have  been  normally
residing with the deceased tenant at the time of his/her death.    The  term
used in the section is ‘heir’ which implies  that  not  any  of  the  family
member residing with the tenant would succeed to the tenancy, but  only  the
heirs of  tenant  normally  residing  with  him/her.   The  words  “normally
residing with him” suggests that only those heirs would inherit the  tenancy
rights of deceased tenant who resided with him ordinarily in  normal  course
and not temporarily.  The legislative intent appears to be that  only  those
heirs would inherit tenancy who normally resided with  the  tenant  and  not
occasionally.  In the present case, the appellant claims that  he  has  been
carrying on business in the property along with his deceased  sister  Lalita
and had been ordinarily living    with her because of the  medical  business
they were running.  The appellant being the brother of  deceased-Lalita  had
no reason to normally reside with his married sister.  Be it noted,  in  her
written statement filed in the release application, Lalita has  not  averred
that her brother-appellant Durga Prasad was living with her and that he  was
taking care of her.  As rightly held by the Courts below,  Durga  Prasad  is
neither a ‘heir’ within the meaning of  Section  3(a)  nor  fall  under  the
definition of ‘family’ as per Section 3(g) of the Act.





15.    As  discussed  earlier,  originally  Lalita’s  father-in-law-Hem  Ram
Sharma took the premises on rent in the year 1940.  After his death,  Lalita
Devi’s husband-Baldev became the tenant  of  the  suit  property  and  after
Baldev’s death, Lalita become the tenant of the suit property.   During  the
pendency of the appeal before the First Appellate Court, Lalita  expired  on
06.07.2013.  Thereafter,  the  respondent-landlord  moved   a   substitution
application before the appellate court to substitute the  appellant  who  is
the real brother of deceased-Lalita.  On  that  application,  the  appellant
was impleaded as a defendant-respondent in the said appeal.  As pointed  out
by the High  Court,  the  present  appellant  may  have  been  ‘rightly’  or
‘wrongly’ substituted after the demise of his sister.   Merely  because  the
appellant has been substituted in the place of tenant-Lalita, the  appellant
cannot become a ‘heir’ who normally resided with the tenant Lalita.





16.   Learned counsel for the appellant placed reliance  on  Ganesh  Trivedi
(supra), wherein this Court found, as a matter of  fact,  that  brother  was
residing in the  tenanted  premises  and,  therefore,  tenancy  rights  will
devolve upon him on the death of  original  tenant  within  the  meaning  of
Section 3(a)(g) read with Section 12(1)(b) of the U.P.  Act  XIII  of  1972.
This is evident from the following observation made in paras  (9)  and  (10)
of judgment which are reproduced as under:




“9. The brother of a tenant is not included in the definition  of  “family”.
However, the present one is not a case where the  tenant  Suraj  Prasad  had
during his lifetime taken up residence elsewhere  and/or  allowed  the  suit
premises to be occupied by his brother. Deo Narain, being the  real  brother
of late Suraj Prasad, the tenant, had come to stay with his brother and  was
residing along with him as such, even at the time of death of Suraj  Prasad.
It will not therefore be correct to say that applicability of clause (b)  of
sub-section (1) of Section 12 of the Act was attracted to the suit  premises
during the lifetime of Suraj Prasad and a deemed vacancy  had  occurred.  On
the death of Suraj Prasad tenancy rights devolved on Deo  Narain,  he  being
the only heir. He too became a “tenant” within the meaning of clause (a)  of
Section 3. The decision of the High Court cannot, therefore, be faulted.
10. There is yet another reason why no interference with the impugned  order
of the High Court is called for. Shri  Upadhyay,  the  learned  counsel  for
Respondents 1 to 3 invited our attention to the pleadings  and  pointed  out
that admittedly the sale  deed  executed  by  Jagdamaba  Prasad  Awasthi  in
favour of Ganesh Trivedi, the appellant, contains  recitals  to  the  effect
that the former owner-landlord was well aware of Deo  Narain  occupying  the
suit premises after the death of Suraj Prasad, that he was  acknowledged  by
the landlord as tenant in the premises, and that rent was also paid  by  Deo
Narain to the landlord under receipts issued  by  the  landlord  though  Deo
Narain had fallen into some arrears of rent at the time of sale of the  suit
premises in favour of the  appellant.  Such  admissions  made  by  Jagdamaba
Prasad Awasthi are binding on Ganesh Trivedi,  the  appellant,  inasmuch  as
the same are contained in the sale deed by which title has been  derived  by
the appellant and thereunder the appellant has stepped  into  the  shoes  of
the previous owner-landlord. Deo Narain’s status as tenant in occupation  of
the suit  premises,  cannot,  therefore,  be  doubted  or  disputed  by  the
appellant.”


The aforesaid decision has been rendered in view  of  proven  facts  in  the
said case and, therefore, has no application to the  facts  of  the  present
case.

17.   Upon appreciation of the  facts  and  evidence,  the  first  appellate
court and the High Court rightly held  that  the  appellant  is  neither  an
‘heir’ as visualized under Section 3(a) of the U.P. Act  XIII  of  1972  nor
‘family’ within the meaning  of  Section  3(g)  of  the  Act  and  that  the
appellant is in unauthorized occupation of the suit premises and  is  liable
to be evicted.  The High Court has directed the District Magistrate to  pass
appropriate orders under Section 16 of the U.P. Act  XIII  of  1972  on  the
release application of the landlord without further delay preferably  within
three weeks from the date of judgment of the High Court that is  09.03.2015.
 Father-in-law of Lalita had taken the suit premises on  rent  in  the  year
1940.  In the facts and circumstances of the case,  without  relegating  the
matter to the District Magistrate to pass orders on the release  application
of the respondent-landlord, we deem it appropriate to direct  the  appellant
to hand over vacant possession to the respondent-landlord.

18.   In the result, the appeals are dismissed.  We direct the appellant  to
hand over the vacant possession of the  suit  premises  to  the  respondent-
landlord within four weeks from the date of this  order  failing  which  the
appellant shall be liable for contempt of this Court.


                                                             ...……………………….J.
                                                [DIPAK MISRA]


                                                              .………………………..J.
                                                [R. BANUMATHI]

New Delhi;
February 07, 2017.

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