Skip to content


Prabhakar Raghunath Dixit Vs. B.S. Kothare - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 1869 of 1969
Judge
Reported in(1974)76BOMLR240
AppellantPrabhakar Raghunath Dixit
RespondentB.S. Kothare
DispositionAppeal dismissed
Excerpt:
.....under the landlord, the tenant should be evicted. the emphasis of the legislature is on the word 'suitable'.;merely because the landlord has failed to recover possession under section 13(1)(1) of the act, it cannot be said that he would be permanently debarred from recovering possession on that ground, if in future, it may be found that the premises, which the tenant has acquired, having regard to the change in the position of the members and progress of his children can be suitable accommodation.;krishnaji v. dr. shankar abhyankar (1965) 67 bom. l.r. 690 referred to. - - the appellate bench also held that the petitioner failed to prove the ground under section 13(1)(1). 2. the said decision was challenged by the petitioner in the above special civil application under article..........the areas of the premises in the society with the suit premises. mr. sawant submitted that the word 'suitable' in section 13(1)(1) meant suitable to the reasonable needs of not only the tenant himself but all the members of his family and this aspect of the matter has been completely ignored by the two courts below.5. mr. pratap, learned counsel for the landlord, on the other hand sought to repel these contentions, firstly, on the basis that the areas have been properly calculated and secondly he argued that the two courts considered the evidence led; and that in the absence of any additional evidence by the nephew of the tenant, they found as a fact that the premises in the society is a suitable residence within the meaning of section 13(1)(1) and that finding being a concurrent.....
Judgment:

Vaidya, J.

1. The petitioner is a landlord. Respondent No. 1 is his tenant. The subject matter in dispute between them is a block of four rooms in 'Parvati Sadan', 14th Road, Khar, Bombay-52. The petitioner filed a suit to recover possession under Section 13(1)(g) and Section 13(1)(1) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. The suit was decreed by the trial Court. The said decree was set aside by the appellate Bench of the Small Causes Court on the ground that the petitioner required the suit premises bona fide, while greater hardship would be caused to the tenant if he is evicted from the suit premises wherein he was living with his sister's son, his wife and children along with his own family. The appellate Bench also held that the petitioner failed to prove the ground under Section 13(1)(1).

2. The said decision was challenged by the petitioner in the above Special Civil Application under Article 227 of the Constitution of India. While confirming all the findings of the appellate Bench of the Small Causes Court at Bombay, Malvankar J. by his order dated September 28, 1972, called for findings of the lower Courts on two points making observations as tinder:

The fact remains that it is necessary to have findings on the questions (1) whether respondent No. 1 has acquired suitable residence being a block of two bed-rooms admeasuring 670 square feet in the building belonging to Suvarna Rekha Co-operative Housing Society Ltd., Mahant Road, Extension, Vile Parle (East), and (2) whether he has left the suit premises with all his bag and baggage and has gone to stay in these newly acquired premises. Surely, if the findings recorded on these two points are found to be in favour of the petitioner, it is likely that he may be entitled to a decree in ejectment under Section 13(1)(1) of the Act. It has, therefore, become necessary to call for findings from the trial Court on these two issues.

3. After this remand, the petitioner examined K.R. Karve, the Secretary of the Suvarna Rekha Co-operative Housing Society Limited, Mahant Road Extension, Vile Parle (East), the petitioner himself and his son Vasant in support of his contention that respondent No. 1-tenant had acquired an alternate suitable accommodation in the Society. Respondent No. 1 gave additional evidence denying the allegations of the petitioner. The two Courts below have concurrently found that the tenant has acquired or taken possession or has been allotted a suitable residence in the Society.

4. The said concurrent finding of the two Courts below is challenged by Mr. Sawant, learned Counsel for the tenant, on the ground that the two Courts have failed to consider the needs of the tenant and all the members of his family and have ignored the balconies and verandahs of the suit premises while making comparison between the areas of the premises in the Society with the suit premises. Mr. Sawant submitted that the word 'suitable' in Section 13(1)(1) meant suitable to the reasonable needs of not only the tenant himself but all the members of his family and this aspect of the matter has been completely ignored by the two Courts below.

5. Mr. Pratap, learned Counsel for the landlord, on the other hand sought to repel these contentions, firstly, on the basis that the areas have been properly calculated and secondly he argued that the two Courts considered the evidence led; and that in the absence of any additional evidence by the nephew of the tenant, they found as a fact that the premises in the Society is a suitable residence within the meaning of Section 13(1)(1) and that finding being a concurrent finding of fact must not be interfered with by this Court in exercise of its powers under Article 227 of the Constitution.

6. The finding that the nephew or sister's son of the tenant, his wife and children were members of the respondent's family, which was earlier recorded by the appellate Bench does not appear to have been challenged before Malvankar J. It is well established that under rent legislation the word 'family' must be interpreted on the basis of the test as to whether an ordinary man, were he asked if the relations in question living with the tenant were members of his family, would answer--'yes'. In Standing ford v. Probert [1950] 1 K.B. 377 the Court of Appeal in England consisting of Evershed, Master of Rolls, Cohen and Asquith. L.JJ., relying on a decision of Wright J. in Price v. Gould (1930) 143 L.T. 333, 46 T.L.R. 411 held that the meaning of the word 'family' in the context of rent legislation is wider than what is required by the ordinary acceptation of the word in this connection, and that the Legislature has used the word 'family' to introduce a flexible and wide term. Reference was also made in this connection to the case in Brock v. Wollams [1949] 2 K.B. 388 decided by Bucknill, Cohen and Denning L.JJ. In that case Bucknill L.J. observed as follows (p. 394) :

The primary meaning of the word 'family' therefore is 'children'. But if you interpret the word 'children' in the flexible and wide way suggested by Wright J., in Price v. Gould, it seems to me that in the ordinary, popular sense of the word this woman would be considered the child of the man with whom she had lived, except for three years of her married life, ever since she was 5 years of age. There really is no more to be Said about it than that, except perhaps the question as to the policy which underlies this sub-section; and if the policy is of the same kind as the policy which deals with alternative accommodation, and protects also a member of the family who has resided with the tenant at the time of his death for six months or more, I would think that in a case of this kind this adopted child clearly comes within the meaning to be given to the word 'family.' In the course of argument, I asked what was to be said about an illegitimate child, for instance, of the wife or of the husband, who had lived all his life with his father or with his mother. Surely the Act was intended to cover a case of that kind; and, if so, I cannot see why, giving the word 'family' its ordinary popular meaning, an adopted child in a case of this kind should not also be included. I cannot think that it is a question entirely of fact as to what is the meaning of the word 'family'; I think that must be a question partly of law.

Cohen L.J. observed as follows (p. 394) :.Mr. Widgery has said all that could be said to support the decision of the county court judge. He submitted that there were only two possible meanings of the word 'family' in Section 12, Sub-section (1)(g) of the Act of 1920. The first meaning he suggested was 'relations by blood or marriage,' and his second meaning was 'household,' including all living on the premises, relatives, servants and lodgers. He excluded, and I think rightly excluded, the second sense. I do not think it can have been the intention of the legislature to protect servants and lodgers; but I am not prepared to hold that the two meanings suggested by Mr. Widgery are exhaustive. I think there is a third meaning. I respectfully agree with what was said by Wright J. (as he then was) in Price v. Gould in the passage which my Lord has already read. The question the county court judge should have asked himself was this: Would an ordinary man, addressing his mind to the question whether Mrs. Wollams was a member of the family or not, have answered 'yes' or 'no'? To that question I think there is only one possible answer, and that is 'yes'. To accept Mr. Widgery's narrow view would mean, excluding adopted children, children legally adopted under the Adoption of Children, 1926, and I think that the ordinary man would not distinguish between a legally adopted child and a child adopted de facto in 1912, who lived with the late Mr. and Mrs. Lofty until her marriage in 1939 and returned to the house, as her home, in 1942, when she was widowed as a result of enemy action.

Denning L.J. as he then was, observed (p. 396) :

I agree. It Seems to me that 'members of the tenant's family' within Section 12, Sub-section 1(g) of the Act of 1920, include not only legitimate children but also step-children, illegitimate children and adopted children, whether adopted in due form of law or not.

Relying on the decision in Brock v. Wollams, therefore, Cohen L.J. applied the test in Standing ford v. Probert and observed (p. 383) :

I think that that is a fair test to apply when considering the meaning of the words, 'the tenant and his family' in Section 3 of the Act of 1933 for the purposes with which we are now concerned. Obviously, having regard to the subject-matter, no member of the family who is not permanently living--I will use that expression for the moment, though it is not entirely accurate--with the tenant would fall within the meaning of the word 'family'; but, subject to fulfilling the conditions of residence, I think that the proper question to ask oneself is this: if an ordinary man were told that this tenant had living with her the relations of whom we know, would he or would he not have said, 'those are the members of her family'? If he would--and I think that he would answer that question in the affirmative--I see no reason why they should not be treated as 'family' for the purposes of Section 3.

Asquith L.J. added (p. 385) :

I agree, and would only add two sentences. On the main point Mr. Comyn relied strongly on the fact that, on marrying, a son becomes the head of a new family. It does not follow that on marrying he ceases to be a member of the original family. Nothing short of that will avail the landlord. And this seems to me no more to follow from Mr. Comyn's' promises than it follows, as I ventured to point out in the argument, from the fact that a man on marrying becomes his wife's husband that he ceases to be his mother's son. One can be a member of two families simultaneously.

Applying the above test to the facts of the present case, there can be no doubt that the appellate Bench in the present ease was quite right in holding that respondent No. 1's sister's son and his family were always considered as the tenant's family and they are members of the tenant's family for the purpose of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947.

7. In the context of the words 'reasonably suitable to the tenant's means and the needs of himself and his family as regards extent and character' found in the English Bent Legislation, Wood-fall's Law of Landlord and Tenant, Vol. II 1968, 27th edn. at p. 1531, it is stated:

It is to be noted that only the needs of the tenant and his family are to be considered though extraneous matters may be relevant on the issue of reasonableness. 'Family' must be understood in this context in the sense of resident family, though not necessarily intending to live with the tenant for the rest of their lives. The expression includes, as well as wife and children, the tenant's husband, brothers and sisters, daughters-in-law and adopted, stepchildren and illegitimate children, grandchildren and nephews and nieces, if they live with the tenant as a 'family' in the ordinary sense. But the needs of lodgers are not considered, nor are a housekeeper and her own family, the tenant's family for this purpose.

In Megarry's Rent Act, 10th end., 1967 at p. 301, it is observed:

'Family' is not denned, but probably has much the same meaning as that discussed in relation to the transmission of statutory tenancies. In particular, the same test applies, namely, whether an ordinary man would have regarded the person in question as a member of the tenant's family; it is not enough that that person and the tenant can both be regarded as members of the same family. A person may be a member of two families simultaneously, e.g., his own and his parents'; but the present head extends only to those members of the tenant's family who reside with him permanently, in the sense of making their home with him, as opposed to being on a temporary visit.

At page 214 Megarry has observed:

There is no clear limit to the word 'family.' It is 'a popular, loose, and flexible expression, and not a technical term', which is used in a sense 'base, common and popular.' But although the meaning of the word is partly a question of law, the test to be applied is whether an ordinary man would have regarded the person as a member of the tenant's family; and where the trial judge applies the correct test (which he should do by 'the application of a broad, common-sense, man-of-the-world view'), the Court of Appeal will be slow to interfere with his decision. The test must be applied to the circumstances existing when the tenant dies,....

Applying also the tests found in these well-known books on the law of Landlord and Tenant, it must be held that the appellate Bench was quite right in treating the sister's son and his family as the members of the tenant's family having regard to the facts and circumstances of the case.

8. The only surviving question is as to whether the block or premises acquired by the tenant in the Suvarnarekha Co-operative Housing Society, Mahant Road Extension, Vile-Parle (East), Bombay, is a suitable residence within the meaning of Sub-clause (1) of Clause (1) of Section 13, having regard to the reasonable needs of all the members of his family, including his nephew and nephew's wife and children. When recording the finding on the issues sent down to the lower Courts, they do not seem to have appreciated that suitable in Section 13(1)(1) meant suitable to the tenant and all the members of his family. They have not considered the needs of the nephew and his children and the children of the tenant. The tenant's evidence shows that his own family consists of his wife, an unmarried daughter aged about 21, two sons aged about 15 and 13 and his nephew had a family consisting of his wife, three sons, and one daughter aged respectively 19, 15, 13 and 17. His elder daughter got married in 1966 and was residing with her husband elsewhere. The tenant has stated that it would not be possible for him to accommodate his nephew and his family in the new block, which according to Keshav Karve, the Secretary of the Society, consists of one living room, two bed-rooms, two balconies, one kitchen, bath-room, W.C. and washing place. It is clear that the six children are all growing children, There will be a great deal of over-crowding if the nephew is to live with the tenant in the new block acquired by the tenant in the Society.

9. There is also considerable force in the argument of Mr. Sawant that the two Courts ignored the balcony and the bath-room of the suit premises when calculating the total area and in comparing the total area of the suit premises with the total area of the block in the Society. The appellate Bench has further stated that because the nephew was not examined by the tenant after the remand, the tenant failed to prove that the block in the Society was not suitable for both the tenant and his nephew. The appellate Bench, however, ignored the evidence given by the nephew at the earlier stage of the suit when he stated that it would be a great hardship to himself and his family if they were compelled to stay away from the suit premises.

10. The word 'suitable' is not defined in the Bombay Rent Act, In Krishnaji v. Dr. Shankar Abhyankar : (1965)67BOMLR690 it was observed (p. 691):.Suitability cannot be only for one purpose. It must be suitability for his reasonable needs. In order, therefore, to decide suitability of the residence for the tenant, the Court has to consider the needs of the tenant and his family and consider whether or not the other accommodation that has been acquired by the tenant is suitable for his needs.

This decision was set aside by the Supreme Court in Shankar Ramchadra v. Krishnaji : [1970]1SCR322 on the ground that the High Court had no jurisdiction to exercise powers under Article 227 of the Constitution in the matter, as the case was dismissed as a revision application under Section 115 of the Code of Civil Procedure by another Judge of this Court. The Supreme Court, however, did not decide in that case what exactly was the meaning of the word 'suitable.'

11. It seems that so far as English legislation is concerned, some indications are given in the legislation itself by pointing out inter alia that it should be reasonably suitable to the tenant's means and the needs of himself and his family as regards extent and character. There is also special provisions in the Housing Act, 1957. There it specifically lays down that alternative accommodation is not suitable if it would result in overcrowding within the Housing Act, 1957, even if the existing accommodation is overcrowded to a similar extent. Whether a particular alternative accommodation is suitable must necessarily depend partly on the facts of each case and partly on the legal test of the suitability indicated above viz., reasonable needs of the tenant and his family. The mere comparison of the area and the feasibility of accommodation by itself may not be sufficient to decide whether a particular accommodation is suitable or not. The alternative accommodation cannot be said to be unsuitable merely because it is inferior to the existing accommodation. Although the matter must not be decided merely on grounds of convenience, comfort, desirability or attractiveness of the existing dwelling-house compared with that of the alternative accommodation, the Court should consider the merits of each dwelling-house. (See Megarry on Rent Acts, Vol. I, 10th edn., pp. 303-304).

12. The two Courts below have not borne in mind the correct principles regarding the interpretation of the word 'suitable' under Section 13(1)(1). They have not at all taken into consideration the needs of the school and college going children of the tenant and the possibility of overcrowding to avoid which the tenant has tried to acquire additional premises. As the children grow, the needs of the tenant and. his family members become more oppressive. Needs are not fixed and static. They move forward in time. The two Courts below have completely ignored this aspect of the matter.

13. In the facts and circumstances of the case and having regard to the impeccable finding recorded by the appellate Bench, which was not challenged before Malvankar J. that the tenant's nephew and his family were members of his family, the only conclusion to which the two Courts below ought to have arrived at, having regard to the above principles, should have been that the block which the tenant had acquired in the Society was not suitable for all the members of his family, having regard to the reasonable needs of the tenant himself and the members of his family and particularly his nephew and members of his family.

14. The contention of Mr. Pratap that the two Courts below recorded a concurrent finding of fact and this Court should not interfere with such a finding, must he rejected, because, as stated above, the two Courts have not borne in mind the legal connotation and denotation of the word 'suitable'. 'Suitable' meant suitable to the reasonable needs of the tenant and members of his family. The two Courts have mechanically compared the areas and that too adopting unequal basis for the calculation ignoring certain areas of the suit premises and recorded a manifestly unjust finding after coming to the conclusion that because the suit premises was formerly suitable to -the tenant and his nephew and all the members of his family, the block in the Society should be considered suitable within the meaning of Section 13(1)(1). They have ignored the possibility of overcrowding and needs of the growing children in the family.

15. The Legislature in enacting Section 13(1)(1) did not say that as soon as the tenant gets some residence, equal or larger in area than the former residence under the landlord, the tenant should be evicted. The emphasis of the Legislature is on the word 'suitable'. The two Courts below have ignored the importance of this aspect. The word 'suitable' has acquired sufficient meaning in the English Courts and Indian Courts under the Rent Legislation and that meaning was completely ignored by the two Courts inasmuch as they tacitly assumed that the needs of the nephew of the tenant, who was living with his family with the tenant, can be ignored. Such findings ought to be interfered with by this Court in exercise of its powers under Article 227, as they are not in accordance with law and they would defeat the intention and purpose of the law enacted by the Legislature.

16. However, the landlord also needs to be protected in respect of his right under Section 13(1)(1). Merely because the landlord has failed to recover possession under Section 13(1)(1) in the present suit which gave rise to this Special Civil Application, it cannot be said that he would be permanently debarred from recovering possession on that ground, even, if in future, it may be found that the premises, which the tenant has acquired now, having regard to the change in the position of the members and progress of his children can be suitable residence. The dismissal of the present suit, therefore, will not take away the liberty of the plaintiff to file a fresh suit on the same ground under Section 13(1)(1) if he has evidence to satisfy the Court about the same and if circumstances change and enable the plaintiff to satisfy the Court that the tenant has suitable residence in the block of the Society itself in view of the said changed circumstances.

17. Subject to this liberty which the landlord must have, the above petition is dismissed. Rule is discharged. In the circumstances of the case, there will be no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //