1. The appellants are the heirs of the original plaintiff whose suit for possession of the suit premises has been dismissed by the city civil court, for the sake of convenience the parties will be referred hereinafter as 'plaintiff and defendant'.
2. The dispute relates to a flat in the building known as 'Shalka' situated at Shivaji park, Dadar, Bombay-28 Admittedly the plaintiff was the owner of the said flat and after his death his heirs Continued to be the owners thereof. Block No.1 on the ground floor of the said building is the subject matter of the dispute. The said block was let out by the plaintiff to one sitaram Tribhuvane sometimes prior to 1941, Sitaram was living in that block with his wife sulochana. Said sitaram Tribhuvane died in or about the month of Nov.1949, and after his death sulochana continued to occupy the said flat. The plaintiff transferred the rent receipt in respect of the suit premises in her favour. Sulochana herself had become very old and more or less helpless. There was no one to look after her in that age. Moreover, she had with. Defendant's wife was Sitaram's niece. It therefore appears that she invited the defendant and his wife to come and stay with her and occupy the premises. By about Jan., 1950, therefore, the defendant and his wife stared living in the suit premises along with plaintiff initially resented this fact and she sent a letter Exhibit, 8, dt. 11-1-50, calling upon Sulochana to remove the defendant and his wife from the premises. The plaintiff contended that they were her unlawful sub-tenants. To this letter a reply dt. 17th Jan., 1950, was sent by sulochana through one R.B. Godambe, Advocate, purporting to act on behalf of Sulochana. In the said reply it was stated that the defendant and his wife were staying with Sulochana in order to keep her company and to give her help in her old age. It was denied that they were strangers or that they were sub-tenants. A positive statement was made that the defendant's wife was Sitaram's niece and that she was not a stranger as such. The demand of removal of the defendant and his wife was resented and turned down. No further reply was given by the plaintiff to this letter and there the plaintiff to this letter and there the matter rested till the death of Sulochanabai and for quite sometime even thereafter . Sulochanabai, died on or about 22nd August 1952. The defendant and his wife continued to stay there after the death of sulochanabai and for a period of nearly 10 years the plaintiff took no proceedings for recovery of possession from the defendant. As will be presently pointed out, the plaintiff took no proceedings for recovery of possession from the defendant. As will be presently pointed out, the plaintiff recovered rent from the defendant strictly in accordance with the provisions of the Bombay Rent Act; sent him notices for payment of permitted increase as required by the Bombay Rent Act; gave him particulars of the various increases and called upon him to pay various taxes recoverable by the landlord from his tenant. It is true that sometime in the year 1954, the plaintiff gave intimation to the Accommodation controller to the effect that the suit premises had fallen vacant within the meaning of the Bombay Land Requisition Act which was in force at that time in the city of Bombay. It is common ground that pursuant to the said intimation given by the plaintiff an enquiry was made by the office of the Accommodation controller. But in the enquiry, it appears, the Accommodation controller was satisfied that the defendant was not a stranger to the premises and that the premises could not be said to have fallen 'vacant' within the meaning of the relevant Act upon the death of Sulochana. The proceedings under the BlR Act were therefore dropped. The fact,however, remains that the exact date when the proceedings were dropped does not appear to be on record. Mr. Suresh the learned counsel for the defendant was not able to post me with the information in that behalf. The fact however remains that right from the year 1952 till 1962 the plaintiff went on demanding and recovering rent from the defendant and went on giving every indication that he had accepted the defendant himself as tenant. It is true that the rent receipt continued to be in the name of Sulochana. But as will be presently pointed out this was a meaningless gesture.
3. It appears that there was some correspondence between the parties in which, on some occasions, the plaintiff denied the fact remains that he detenant.But the fact remains that he described himself as a landlord and went on recovering rent and permitted increases and taxes etc., from the defendant in strict accordance with the Bombay Act which applies only to tenants. Thereafter on 10th May 1961, all of a sudden he gave a notice to the defending that he was a trespasser in the suit premises and called upon him to vacate the same. Since the defendant denied the allegation, the present suit was filed by the plaintiff for recovery of the possession of suit premises in the Bombay city civil court on 30th march 1962. The suit is on the land title and not on the basis of the landlord-tenant relationship between the parties.
4.` In the plaint it was contended that the defendant had no right, title and interest in the suit premises and that their occupation of the same was unlawful.
5. The defendant filed his written statement and contended that he was a tenant in respect of the suit premises within the meaning of the BR Act and that hence, the city civil court had no jurisdiction to entertain the said suit , no jurisdiction to entertain the said suit, He contended, in the first instance; that he was a member of the family of sulochanabai who was admittedly a tenant of the suit premises and contended future that being such a member of the family within the meaning of the B.R. Act, after her death, he had become tenant in respect of the suit premises within the meaning of the said Act, In the alternative he contended that during her lifetime itself, sulochanabai, had sublet the suit premises to him as a sublet the suit premises to him as a sub-tenant of Sulochanabai, had sublet the suit , premises to him as a sub-tenant of Sulochanabai which sub-tenancy was validated by the relevant ordinance of 21st May, 1959,. Therefore he had become a lawful sub-tenant of the suit premises and as such a lawful tenant of the plaintiff. In the alternative. He further contended that Sulochana had made a will and in that will the tenancy rights in respect of the suit premises had been bequeathed upon the defendant.
6. On these pleadings the issues were framed. The issue No.2 was as to whether the defendant was a trespasser, Issue No.3 was as to whether sulochana had sublet the suit premises to the defendant in Jan., 1950. Issue No.3 and as per the said issue it was to be examined whether the defendant was entitled to take advantage of the ordinance dt, 21St, May , 1959 so as to be clothed with the capacity of a lawful tenant of the suit premises. Issue No.5, related to the plea of the defendant that he had acquired tenancy right in respect of the suit premises by virtue of the will executed by sulochana in his favour Issue No.6 is something regarding which strenuous arguments were sought to be advanced. The Issue is as to whether the defendant was entitled to the suit premises as a tenant by virtue of section 5(11)(c) of the B.R. Act. In reality this issue is the counterpart of issue no.2 referred to above. I will presently refer to the agreement advanced in this behalf on behalf of the appellant.
7. On these issues evidence was led by the parties. The learned Judge, examined the entire evidence very carefully and upon examining the evidence he came to the conclusion that the plaintiff had himself treated the defendant as his tenant in spite of his frequent intermittent protestations that he was not his tenant. The learned Judge also recorded the finding that the defendant was also treated by Sulochanbai, as a member of her family and that at the time of her death defendant., his wife and Sulochana were living as one family. The learned Judge, therefore, held that the defendant was entitled to take advantage of the provisions of S. 5(11)(c) of the B.R. Act and was justified in contending that he was clothed with the capacity of a tenant by virtue of the said provision. The learned Judge, however, negative the defendant's plea that he was a sub-tenant of sulochana. He also negative the defendant's plea that the tenancy rights in respect of the suit premises had been bequeathed upon him by sulochanabai by her last will. However, in view of the findings recorded by him relating to the above mentioned two questions, namely that the plaintiff had himself treated the defendant to be his tenant and further that the defendant was entitled to claim tenancy by virtue of the provisions of S. 5(11)(c) of the B.R. Act , he held that the plaintiff was not entitled to any relief against the defendant in the city civil court. The plaintiff's suit was, therefore, dismissed by the learned Judge with costs.
8. So far as the present appeal is concerned I find no reason or justification for finding fault with the decree passed by the learned judge. So far as the two points upon which the learned Judge has held that the defendant was entitled to claim benefits available for a tenant, under the B.R. Act are concerned, I find absolutely no reason to find fault with the reasoning of the learned Judge. The learned Judge has held that the entire conduct of the plaintiff shows that the even while protesting that the defendant was not his tenant, he had conducted his affairs with him in his capacity as a tenant, he had conducted his affairs with him in his capacity as a tenant. As for instance, the learned Judge has referred to the letter Exhibit 1, dt, 31.3.1954. The letter is addressed by the plaintiff to the defendant as occupant of the suit premises in his capacity as 'landlord' of the suit premises. He has not stated that he is the 'owner' of the suit premises. What he has stated is that he is the 'landlord'. Hence, it is possible to hold that according to him, qua the defendant, he is a landlord, because the landlord and tenant relationship is after all between two parties; but it must be said that this is more a matter of nomenclature and the circumstance cannot be used all by itself . But if we take this circumstances coupled with the other circumstances no doubt is left that the plaintiff wanted to foist every liability upon the defendant to which liability only a tenant can be subjected, The said letter has been set out in extension by substance, the letter informs the defendant that the rent that the defendant was paying for the suit premises is increased under the provisions of the B.R.Act. He had increased it to the extent of 71/2 % from 1st April, 1974, Evidently such a thing could not have been done by him unless, according to him, the defendant was having some kind of relationship with him as that of a tenant.
9. Next, the learned Judge has relied upon the circular Exhibit 2, dt, 26th july, 1958. The said circular is nothing but a letter written by the plaintiff to all the tenants meaning thereby to all the persons who were admittedly his tenants. The significant fact is that this letter was circulated also to the defendant. By the said letter, the defendant was informed that his monthly rent from April ,1958 onwards would be Rupees 27.92 p. It is noteworthy that under the previous letter dt. 31st March1954, on the intimation that was given to the defendant was that the rent inclusive of the permissive increase was to be Rs.27.6.0. whereas the circular letter Exhibit 2, dt. 26th July , 1958 gave an intimation of increase of only a few paise ; but even such a paltry increase which could be claimed by the defendant (plaintiff?) Even this letter has been set out by the learned Judge in extent in his Judgment.
10. A number of Similar letters have been produced by the learned Judge. It is unnecessary to examine each of them there here. It is sufficient to observe that the only inference that could be drawn from these letters is that (a) the defendant was in occupation of the suit premises exclusively during the time of death of Sulochana; (b) he was in occupation by asserting his right which right was even noted by the plaintiff and (c) even, according to the plaintiff, the defendant was subject to the liabilities which are imposed by the statute namely the B.R. Act only on tenants. If this is the position, is futile on the part of the plaintiff to contend that the defendant had no tenancy right in respect of the suit premises. I would like to emphasise that this position emerges by virtue of the unequivocal conduct of the plaintiff. It is independent of the fact that defendant must be deemed to have got the tenancy right through Suclochana. What I mean to say is that even if it was held that the defendant was not entitled to avail of the rights conferred by S. 5(11)(c) of the B.R. Act, still the above mentioned conduct of the plaintiff and the state of mind of both the parties for the period of about 10 years would itself in the effect that the defendant's right in the suit premises as a tenant could not be called in question by the plaintiff by the time he filed the suit.
But in addition to this aspect of the defendant's right, the learned Judge has held that the defendant could be justifiably and legitimately considered to be a member of sulochana's family for some time before her death and since he was admittedly staying with her at the time of her death, the learned Judge was perfectly justified in coming to the conclusion that the defendant had acquired the rights of a tenant contemplated by B.R. Act under S. 5(11)(c) of the B.R. Act.
11. In this connection it is to be noted that the learned Judge has given very good reasons to hold that the defendant was not a stranger to sulochanabai, There is evidence on record to show that the defendant's wife was the niece of Sulochana's husband. In this connection reply given on behalf of sulochanabai to the plaintiff's letter dt. 11th Jan., 1950 is eloquent. In the letter, in the first place, it is specifically stated that the defendant's wife was the niece of the husband of Sulochana. There is no reply given by the plaintiff to that letter denying such relationship. In the second place. Most significant aspect of the matter is that in the said letter dt. 11th Jan. 1950 the plaintiff had called upon sulochana to remove the defendant and his wife from the suit premises , because according to him, they were strangers. Sulochanabai stoutly denied that allegation and refused to oblige the plaintiff by removing the defendant and his wife from the suit premises. No action was taken by the plaintiff against such gesture on the part of Sulochanabai, for the full period of 10 years, and on the other hand, he went on making claim against a tenant governed by the B.R. Act. If an inference, therefore, was raised that even the plaintiff had reconciled himself to the fact that the defendant was always treated by sulochana as a member of the family, no fault could be found with such an inference and this the precise inference raised by the learned Judge and I for one am in full agreement with the conclusion arrived at be him in this behalf.
12. Mr. Walawalkar, the learned Advocate for the plaintiff, however, tried to rely upon the judgment in Langdon v. Horton (1951) 1 All ER 60. The said authority has been referred by the learned judge also. It has been held in that case that even a first cousin is not a member of the tenant's family, I will deal with the said Authority presently. But I have no doubt that the other Authority relied upon by the learned judge in Jones v. Whitehill (1950) 1 All ER 71, is one which is more apposite. In that case the niece of the tenant's wife went to reside with the tenant. She nursed him and his wife and looked after them till their deaths for a period of about 18 months to two years. In these circumstances it was held that she must be deemed to have been considered and treated as a member of the tenant's family and it was held that she was entitled to inherit the tenancy right in pursuance of the provisions of the B.R. Act . The learned Judge has also analysed the ingredients of the concept of 'family' . They fall in three categories. A person may be a member of the family by virtue of the relationship resulting from consanguinity or kinship or just heredity , (b) a person may be related by virtue of matrimonial relationship ; and (c) there may be special circumstances which bring about ties of a family . The Learned Judge noted the special circumstances bringing about the family tie , viz., the fact that the defendant and his wife were treated by Sulochanabai as members of her family. I have already pointed out above that in reply to the plaintiff's notice dated 17th Jan, 1950, Sulochanabai had herself asserted that the defendant was her husbands cousin and that the defendant and his wife were helping her in her enfeebled health and on that account she had even refused to accede to the plaintiff's demand to remove the defendant and his wife from the suit premises . In addition to this the learned judge has noticed the fact that Sulochanabai had left a document. If compliance with the technicalities of a will was sufficiently proved, the document could be proved as a will. But admittedly those requirements which are conditions precedent for proving a will are not complied with. Hence the document Exhibit 9, dt. 7th Aug 1952, cannot said to be proved as a will. That was the reason why the defendant could not succeed in his contention that he had acquired the tenancy rights by virtue of the will executed by Sulochanabai . But the fact remains that Sulochanabai executed a document, the execution of a document by her not as a will but as a document is borne out by the evidence on record and in that document Sulochanabai has clearly stated that the defendant was considered by her as her own son .It is significant that at that time the defendant was staying with Sulochanabai herself or rather Sulochanabai was staying with him because it was he who was maintaining her and he who was defraying all the family expenses including that of Sulochanabai . These certainly are the special circumstances which engender and foster the ties of family.
13. Mr. Walawalkar tried to criticise the view of the learned judge by referring to the evidence given by the defendant in his cross-examination wherein he has stated as follows :- ' Suman is the daughter of Dwarkanath Hazare who is my father-in-law, Dwarkanath's mother whose name I do not know had a brother . I do not know the name of this person also , but Sitaram was the son of Dwarakanath's mother's brother. Sitaram and Dwarakanath were therefore cousin brothers. That is why that I have been saying that Suman - my wife was the niece of Sitaram'. Mr. Walawalkar contended that this is not an evidence of relationship at all. According to him , if the defendant did not remember the names of his distant in-laws , it must be held that there existed no relationship at all. He further contended that if at all any such relationship is to be found from the evidence, the relationship is so distant that such relationship could not be invoked for the purpose of spelling the status of the rights, (sic) member of the family upon such relationship. To my mind both these criticisms are wholly unjustified. What the defendant has stated in the above mentioned evidence is that he did not remember the names of his wife's relation but that fact did not mean that the relationship did not itself exist,. The learned judge did not find any difficulty in relying upon the evidence of the defendant in spite of the fact that he was not remembering the names of the particular relations , through whom the relationship was claimed. The evidence read as a whole gives a picture of candidness and straightforwardness . The evidence perfectly justifies the conclusion that the defendant wife was the niece of Sitaram . Even the second contention of Mr. Walawalkar cannot be accepted. What we have to see is not the degree of the relationship but the nearness felt by the tenant for the relationship concerned . As a matter of fact , in the instant case the relationship which is proved has got to be considered in conjunction with the special circumstances, namely, that Sulochanabai was a helpless and enfeebled person and it was in that state of condition that she got help from the defendant and his wife, who were her husband's relations. There was possibly an understanding among all the three of them that they would live as members of one family and an easily conceivable implicit understanding was that the defendant would maintain and look after Sulochanabai in her old age and she would allow them to stay with her as members of one family . The totality of all this implicit arrangement that remained in the back of the mind of all the three of them could give rise to the situation that they became one family , and if such was the position which in fact resulted , the provision of S. 5(11)(c) could be legitimately invoked by the defendant to contend that he had acquired the tenancy right as contemplated by the said provisions. I am therefore of the view that the plaintiff's suit must fail even on this short second ground.
14. This brings us to the examination of the Authorities which were cited before the Lower Court and also relied upon before me. It may be mentioned here that no Indian Authority has been cited. Only the two English Authority which have been referred by the learned Judge were once again relied upon before me, One reported in (1959) 1 All ER 71, Jones v. Whitehill has been partially discussed by me above, Mr. Walawalakr, however, strongly relied upon Langdon v. Horton (1951) 1 AII ER 60. Reading, apparently, the facts of the case, an impression likely to be conveyed is that two of the first cousins of the deceased tenant who were sisters of each other were not to be held as members of the family of the deceased lady who was the tenant and with whom the two ladies resided for quite a long period. The facts which are to be found from the reported case are as follows:-
One Mr. Mary wakefield Prior was a statutory tenant of the premises governed by the Rent Act and her two first cousins - two sisters Miss Horton and Mr. Selly were residing with her for 29 years, and they stayed with her at the time of her death. The question was whether they were members of the family of the deceased tenant within the meaning of S. 12(1)(g) of the Rent Act in question. After considering the various aspects of the evidence the High Court came to the conclusion that they could not be considered to be the members of the family, of the deceased tenant, and in the Court of Appeal Sir Singleton and Sir Daneckwerts concurred with the ultimate conclusion arrived at by Sir Raymond Evershed M. R. But what is to be noted is that it was not the view of the Court that in every case the first cousin not be considered to be the members of the family of the decease tenant, In this connection the judgment of Sir Evershed M. R. Himself, delivered by him in Jones V. Whitehill was examined by them. It was not dissented from. But after considering that Judgment and after examining the entire evidence on record in the light of the fact that the High court Court had arrived at the conclusion that two sisters did not reside with the deceased as members of the family, they concurred that the conclusion was a finding of fact in the context of the peculiar facts of that case, Sir Raymond Evershed, M. R. While comparing the question with the one which they were dealing with in Brock v. Wollams (1949) 1 All ER 715 stated as follows:-
'I think, however, that in posing the question, which I have taken from its original formulation in Brock v. Wollams, there may be two distinct and rather different classes of cases. The first is where the only really relevant consideration is that of blood relationship of consanguinity. The second is whether, apart from or in addition to circumstances which require an affirmative answer to the material question.'
Thereafter he considered the position that obtained in Jones v. Whitehill (1950) 1 All ER 71 and with reference to that he stated as follows:-
'An illustration of the second class is Jones v. Whitehill. The claimant there was a niece by marriage of the statutory tenant, but she had by her conduct assumed, as it were, a filial character, and it was in the light of those facts that this court concluded that she qualified within para (g) I am not sure that certain passages in my own judgment may not have suggested a wider extension of this formula than Is justified. Accordingly, the judgment should be read as meaning that I was not expression any view on the general question whether nephews and nieces as such were within the compass of the formula.'
After considering the facts Sir Evershed M. R. Held as follows:-
'The present case, I venture to think, is of the first class. It must be deter, mined by considering whether first cousins of the same generation, as these two defendants are, of the statutory tenant can be within the intendment of this phrase 'the tenant's family'. The matter is, perhaps, largely one of first impression, and I think the learned Judge came to the right conclusion, for, it the consanguinity test is satisfied in the present case, it will extend the formula to relations of every degree, and indeed, would mean that we were substituting for the word 'family' in para (g) the word 'relations'.
It will thus be seen that Sir Raymond Evershed, M. R. Was making the distention between the concept of family and the concept of relations and has implicitly held that every relation does not constitute family. But that is far from saying that only consanguinity brings about family. As a matter of fact, the Court of Appeal was faced also with the question as to whether it was not ultimately a question of fact and this is what they observed in this connection:
'I would and that in one of two of the earlier cases the question was raised whether this is not a question of fact? I am not saying whether or not in the present case or in other cases it is a question of fact. There is much to be said for the view that it is a matter of the construction of the paragraph. On the other hand, where, as here, a county court Judge has plainly put to himself the right question, and it is a matter of suggesting the answer that an ordinary man would give to a question put in ordinary conversation. I am disposed to think that this Court should be a little slow to reverse him. It is the policy of the Act to protect persons in all occupation of their homes. I think it also, in general, is the policy of the Act to leave for the determination of the county court the numerous difficult problems requiring, as has been said in connection with the word 'reasonable'. The application of a broad, commonsense, man-of-the-world view. On these grounds, therefore, as the question posed by the Judge was right, I should he slow myself to differ on a matter of this kind from his conclusion.'
15. It will thus be noticed that in Langdon v. Horton (1951) 1 All ER 60. The dictum lain down by the Court of appeal dictum laid down by the Court of Appeal in Jones v. Whitehill (1950) I All ER 71 was not whittled down in the slightest degree. On the other hand, after examining the ratio of threat decision, the Court of Appeal compared the findings of facts of that case with the facts with which they were dealing themselves, it is therefore futile to contend that it has been held that as a matter of principle or as a matter of rule of law the first cousin could not constitute a family.
16. The decision of the Court of Appeal in Jones v. Whitenhill, is however, on all fours with the case with which I an dealing. The facts of the case are already set out by me above though very briefly. The judgment in that case also was given by Sir Raymond Evershed M. R. The relevant facts which are set out in the judgment are as follows:-
'The defendant, Mrs. Whitehill, was the niece of a Mrs, Bailey, the wife of the tenant of the premises here in suit, Mr. Bailey died in July, 1948, and here husband some five months later. At the time of his death he had become a statutory tenant of the premises. He died intestate. The defendant went to live with Mr. And Mrs. Bailey early in 1947 to look after them because they were in poor health. No child of their own was at any material time living with them in the house. There is no question that the residence qualification required by S. 12(1)(g) is satisfied, but there remains the point whether the defendant is fairly and property to be described as a member of the tenant's family'.
While dealing with the question Sir Raymond Evershed M. R, referred to the judgment of the Court of Appeal in Brock v, Wollams (1949) 1 All ER 715 and the following passage was relied upon by him with approval:
'It has been said in a number of equity cases, relating principally to will or to settlements under powers of appointment, that the word 'family' is a popular, loose, and flexible expression, and not a technical term. It has been laid down that the primary meaning of the word 'family' is children. But that primary meaning is clearly susceptible of wider interpretation, because the cases decide that the exact scope of the word must depend on the context and the other provisions of the Will or deed in view of the surrounding circumstances ...........I hold that in the section now under consideration the word 'family' includes brothers and sisters of the deceased living with her at the time of her death. I think that meaning 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 the term.'
The argument that the word 'Family' connoted either only consanguinity which was the narrow view or extended to cover anybody in the household which was the wider view was rejected, one being too narrow and other being too wide. After setting out his reasoning in that behalf he stated as follows:-
'I am not suggesting necessarily that all nephews and nieces by marriage should be regarded as members of the tenant's family, but be it observed here that the defendant, a niece or Mrs. Bailey, assumed, out of natural love and affection, the duties and offices peculiarly attributable to members of a family namely, she went to live with her uncle and aunt and looked after them in their declining years. On those facts I think that, if it were asked in all ordinary conversation. Was the defendant a member of Mr. Bailey's family?. An affirmative answer would be given. I, therefore, come to the conclusion that the defendant should be regarded as within the protection of Sec. 12(1)(g) and that this appeal should be allowed.' This is the reasoning which has prevailed upon the learned Judge of the Lower Court and I, for one, am in complete agreement with the same.
17. After discussing the above case law, a few words of our own on the concept of 'Family' may not be out of place. The concept is not a rigid one. It is and it has always been an elastic one. Its content varies with reference to both time and place, historically as well as geographically. In the Indian Society the concept quite often embraces relations quite substantially remote from the Peter Families. The concept of family consisting exclusively of the Peter Families, his spouse and lineal descendants, is or occidental origin, out oriental. But it was not adhered to very stringently even in the West. Here in India the concept of family is of even wider signification. The variations in the contents of the concept are denoted by various qualification.Out of these, the concept of family is of the widest amplitude. In the instant case, Sulochanabai, the defendant and his wife could not be considered to be members of any joint family, they were certainly not corparceners, but there is certainly no reason to hold that they did not live as members of one family. They shared each other weal and woe. They messed together and shared the house-hold expenses tougher. A bond of family get engendered. Such a bond may not always result by joint residence. A paying guest living with a landlady does not become a member of the family of the landlady and this would be so even it he were a relation of the landlady. There is not family bond in that case, only a strictly business relation ship. She gives him shelter, he pays the proceeds. He gets a better or cheaper accommodation, he lives with her, she gets someone who pays more price, she gets rid of him. No family bond. But in the case such as the instant one, price is not the prime consideration. The prime consideration is the mutual bond. This is what converts their joint residence into one of family.
18. In this view of the matter, it is really unnecessary for me to consider the correctness of the view of the learned Judge that the defendant could not be said to be a sub-tenant of Sulochanabai. The learned Judge has no doubt given reasons to come to the conclusion that the kind of evidence said by the defendant would not justify the inference that he was inducted by Sulochanabai as sub-tenant. But I may briefly state that the evidence on record was not insufficient for even coming to the opposite conclusion, namely that Sulochanabai sub-let the suit premises to the defendant. The evidence has been led that from the time when the defendant started living with Sulochanabai he started paying to the landlord that requisite rent. The fact that he in fact paid rent to the plaintiff for and on behalf of Sulochanabai cannot be seriously contravened. The question is whether such conduct on his part could give raise to the inference that the defendant has been constituted as a sub-tenant of the suit premises by Sulochanabai. It was argued that Sulochanabai was staying with the defendant and hence inference of sub-tenancy was impossible. I am not sure about the correctness of this proposition,. There are occasions when a tenant becomes landlord and the previous landlord starts living with the erstwhile tenant as his licensee or tenant. For illustration. 'A' may be the owner of the building in which 'B' is the tenant. 'A' might sell the building to 'b' from which date 'B' s tenancy would vanish but 'B' may allow 'A' to occupy the portion of the building, previously occupied by him as owner, as tenant Likewise in the present case it is not inconceivable that when their mutual relations became perfectly smooth. Sulochanabai decided to create a right in favour of the defendant to live in those premises in his own right. Such a carving out of the right would be nothing but a sub-tenant continued to stay along with the sub-tenant who has been permitted to stay in the premises as a matter of right and not as a mere licenses would nor mean that sub-tenancy was impossible or inconceivable. There is evidence on record to be found in the above mentioned reply given on behalf of Sulochanabai D/- 17th Jan., 1952, from which it is found that Sulochanabai was in no frame of mind to disturb the right of defendant and his wife who resided in the suit premises. No doubt the defendant himself has not stated all these things in his evidence. But from the very nature of things these are the matters of result which takes place not after deep deliberations. The result materialises in the course of time, It is therefore possible to take the view that the defendant defrayed all the house-hold expenses including those for the maintenance of Sulochanabai and in return Sulochanabai sublet the suit premises to him. The defendant's admission that he did not pay rent to Sulochanabai but paid directly to the landlord plaintiff would not in any way weaken any such reasoning. If instead of paying the amount of rent to Sulochanabai as sustenance which amount was to be paid by Sulochanabai to the plaintiff's landlord, the defendant chose the modus of paying rent directly to the landlord, the effect of sub-tenancy would not, merely on that count, be in any way wiped off.
19. Mr, Walawalkar naturally tried to contest this process of reasoning by relying heavily upon the reply dated 17th Jan., 1952. In which it was stated by Sulochanabai that the defendant was not her sub-tenant. But I am not at all sure that the defendant could be bound down by that statement. At that time sub-tenancy was prohibited. It was validated on 21-5-1959 retrospectively. The very fact that an ordinance had to be promulgated for that an ordinance had to be promulgated for validation of transactions of such sub-tenancies speaks volumes for the fact that sub-tenancies were being created clandestinely and that they had to be protected though they were unlawful. But the point is that not tenant was admitting or was likely to admit, before 21-5-1959 that he had created a sub-tenancy. He was creating it clandestinely and was keeping it a closely guarded secret so far as the landlord was concerned. It was only after 21-5-1959 that the tenant or the sub-tenants started admitting openly the sub-tenancy which was previously created clandestinely. It is futile condemning such gestures as acts of dishonesty. The legislature saw dishonesty but decided to perfect it and to give bonus to those who indulged in such unlawful transactions. It is futile for the Courts condemn such dishonesties when the legislature thought it fit and proper to protect the same.
20. Moreover, Mr. Walwalkar's argument overlooks the fact that if Sulochanabai had denied the sustenance, the plaintiff has himself asserted the same. If the defendant was to be bound down to Sulochanabai's statement there is no reason why the plaintiff should not be bound and pinned down to his own statement contained in his notice dated 11th Jan., 1952.
21. However I may make it, clear that I am only presenting the other side of the picture with a view to show that it is possible to accept even the 3rd contention of the defendant that he was a sub-tenant of Sulochanabai during her lifetime. If this contention was accepted then the fact that the continued to be in possession on 21st May 195, would mean that he had become lawful subtenant of Sulochanabai retrospectively and by virtue of the provisions of S. 14 of the B.R. Act he became direct tenant of the plaintiff landlord. The defendant, therefore, might be entitled to claim protection under the B. R. Act even on this ground, However, I and make it clear that I am confirming the decree passed by the lower Appellate Court merely on the first two grounds upon which the decree dismissing the suit has been passed by the learned Judge.
22. In this view of things, I find no reason to disagree with the final conclusion arrived at by the learned Judge.
The appeal, therefore, fails and the same is dismissed with costs.
23. Appeal dismissed.