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Baldev Sahai Bangia Vs. R.C. Bhasin - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 149 of 1979
Judge
Reported inAIR1980Delhi145; 17(1980)DLT461; 1980(1)DRJ60; 1980RLR319
ActsDelhi Rent Control Act, 1958 - Sections 14(1)(D)
AppellantBaldev Sahai Bangia
RespondentR.C. Bhasin
Advocates: R.K. Makhija,; Alok Kumar,; H.L. Sabarwal and;
Cases ReferredDev. v. Amar Chand
Excerpt:
.....rent control act, 1958 - section 14 (1) (d) tenant setting abroad with his wife and childrens; mother brother and sister continuing to live in the premises. held : those remaining behind cannot claim protection from eviction. - - the tenant and his family are well accommodated. but the tribunal found as a fact that he has gone for good. (15) granted that 'family' would always comprehend cases of a strict legal familial nexus, i cannot agree that it extend to a case such as this granted that cases of blood relations and consanguinity are ordinarily covered by the term 'family',i do not think that there are any familial thinks with the tenant who has departed from this country and has no intention to resume residence in this house either for love or money. amar chand, (supra). in..........of the tenant on clause (d). now the tenant appeals to this court. (5) the real question is: are mother, brother and sister, members of the tenant's family and entitled to the protection of the act the tribunal has found as a fact that the tenant has permanently settled in canada. he was in government service in india which he left in 1972, because he did (6) but then it is said that the mother, brother and sister who are living in these premises since the inception of the tenancy must also be regarded as members of the tenant's family and entitled to protection of the act. the validity of this defense is the sole question to be decided in this appeal. (7) the word 'family' is in itself a word of a mosloose and flexible description green v. marsden , 'it is a popular and not a.....
Judgment:

Avadh Bihari Rohatgi, J.

(1) The short question that arises for decision in this appeal is whether the tenant is liable to ejectment under section 14(1)(d) of the Delhi Rent Control Act, 1958, Section 14(1)(d) in these terms:

'THAT the premises were let for use as a residence and neither the tenant nor any member of his family has been residing therein for a period of six months immediately before the date of the filing 'of the application for the recovery of possession thereof'.

(2) The undisputed facts are these. The premises in question consisting of four rooms are situated in Kalkaji ( 94A and 94B in K Block). The appellant Baldev Sahai took them on rent on May 12, 1961 at the monthly rent of Rs. 95.00 He lived in this home with his father, mother, two sisters and a brother. When he took the premises he was a bachelor. On November 15, 1961, he married. Later on his father died in this house. His one sister was married from this very house.

(3) In 1971 the tenant went to Canada. His wife and children followed him. Since then he and his wife have both taken up employment in Canada. They have four children. They go to school in Canada. After 1971 the tenant has not visited India. It is in evidence of the mother and brother that he does not communicate with them by interchange of letters. Nor does he remit any money to them.

(4) On September 27, 1972, the landlord brought an ejectment application on grounds of bonafide requirement and non-residence of the tenant under clauses (e) and (d) of section 14(1) of the Act. The Additional Controller dismissed the application. On appeal the Rent Control Tribunal ordered eviction of the tenant on clause (d). Now the tenant appeals to this court.

(5) The real question is: Are mother, brother and sister, members of the tenant's family and entitled to the protection of the Act The tribunal has found as a fact that the tenant has permanently settled in Canada. He was in Government service in India which he left in 1972, because he did

(6) But then it is said that the mother, brother and sister who are living in these premises since the inception of the tenancy must also be regarded as members of the tenant's family and entitled to protection of the Act. The validity of this defense is the sole question to be decided in this appeal.

(7) The word 'family' is in itself a word of a mosloose and flexible description Green v. Marsden , 'it is a popular and not a technical expression.' Bart v. Hellyar In the popular sense of the term in which an ordinary man understands it there can be no doubt that his widowed mother, unmarried brother and sister are members of his family. That they are living in this house since the beginning of the tenancy is also not in dispute. But the notable features of this case are two. First the tenant founded his own family in 1961 when he married. At the moment of marriage, there is a change in status of the contracting parties from that of single persons to that of husband and wife. Their change of status and personal relationship mirks and advent of a new social unit-the family-which now embraces them and their children. Family is the collective noun we use to describe them. The tenant became the head of his family. It does not the original family of his father. The man of marrying becomes his wife's husband. But he does not cease to be his mothers's son. One can be a member of two families simultaneously.

(8) The word 'family' is 'a popular, loose and flexible expression, not a technical term' (per Wright J. in Price v. Gould. Its exact scope must depend on its context. We have now to interpret it in the context of the Rent Act.

(9) Secondly And this is decisive of this case, the tenant has permanently settled abroad. He has no links with the family in India. He does not write to them. Nor sends any money for support. He has not visited India since 1971. He has not examined himself in this case. He has not appeared before the controller. He has not chosen to affirm on oath that has gone to Canada temporarily and that he has any intention to come back to India and reside in the demised premises with his wife and children. On these facts it must be held, as was held by the tribunal, that the brother and mother of the tenant have ceased to be members of the tenant's family within the meaning of the Act, as they have no links' with tenant.

(10) I would decide this case on a simpler view. The Act is for the protection of the tenant and his his family. But if the tenant, his wife and children have permanently settled abroad and have no animus revertendi, the protection of the Act cannot be extended to others, such as mother and brother, because the Act is not be intended for their protection to the exclusion of the tenant. The tenant and his family have transferred their centre of gravity to a new habitat in a foreign country. They do not require the protection of the Rent Act. The tenant and his family are well accommodated. They have founded a new home where they live, eat and drink. The mother, brother and sister in these circumstances will loose the protection of the Act With the tenant they were members of his family. Without him they cease to be so.

(11) There is one other point in this case. A notice to terminate the tenancy was served on the tenant on July 17, 1972. Thereafter the tenant became a statutory tenant. The Act protected him from eviction. But when the tenant himself walks away from the demised premises with his family (?) and children, he does not require any protection. And those remaining behind him such as mother, brother and sister cannot claim that they are within the protection of the section.

(12) Counsel for the tenant drew my attention to several decisions. In Govind Das v. Kuldip Singh, earlier decisions on the point have all been reviewed. In B. Dev v. Amar Chand, it was held that the mother was not a member of the tenant's family because she did not reside with the tenant's family and that she come to reside only daring his absence when neither the tenant nor his wife nor children were living in the premises. Hira Lal v. Banarsi Das, was a decision of a different hue. There the tenant had taken another premises because of paucity of accomodation. On facts it was found that the tenant was not liable to ejectment. That case is of no assistance to me in deciding this case.

(13) On a review of these decisions it appears to me that there is no general principle which applies to all cases. On the facts of each case it was decided who ought to be regarded as members of the tenant's family. The work 'family' is word of most uncertain import. It can mean many things according to its context. The decided cases show this. Different factual situations produce different legal results. The relationship of law and fact is a two-way one : each effects the other. The law is not an abstraction ; it lives only in its application, and its concepts derive colour and shape from the facts of the particular case in which they are studied, and to which they are applied.

(14) But one thing is certain. The expression 'neither the tenant nor any member of his family' used in the section show that the tenant himself is at the centre of the constellation. 'The members of his family' revolve round him. But if the tenant effaces himself and takes up an abode elsewhere in a foreign country as in this case, those who depend upon him for support and sustenance can claim the protection of the Act if they are able to show that the tenant has an animus revertendi, namely, an intention to take up residence in the premises in question. Applying this test I find that what was pleaded in this case was that the tenant has gone on a short visit to Canada for treatment. But the tribunal found as a fact that he has gone for good. That is a matter of fact which was found by the tribunal, and there was sample evidence on which he could so find.

(15) Granted that 'family' would always comprehend cases of a strict legal familial nexus, I cannot agree that it extend to a case such as this Granted that cases of blood relations and consanguinity are ordinarily covered by the term 'family', I do not think that there are any familial thinks with the tenant who has departed from this country and has no intention to resume residence in this house either for love or money. See G.C.Shukla v. Prabhu Ram Sukhram Das Ojha. Later upheld by the Supreme Court. See reference to this case in B Dev. v. Amar Chand, (supra). In these circumstances I cannot hold that his mother, brother and sister will continue to enjoy the protectron of the Act. Neither strict constructionists nor intention seekers of the Act would venture to give an affirmative answer to this question.

(16) For these reasons the appeal is dismissed. No costs. appeal dismissed


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