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Muhammad and ors. Vs. Sinnamalu Amma - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 583 of 1977-1
Judge
Reported inAIR1978Ker21
ActsKerala Buildings (Lease and Rent Control) Act, 1965 - Sections 11 and 11(3)
AppellantMuhammad and ors.
RespondentSinnamalu Amma
Appellant Advocate K. Chandrasekharan and; P.N.K. Achan, Advs.
Respondent Advocate V.R. Venkitakrishnan, Adv.
DispositionRevision dismissed
Cases ReferredRadhavallabh v. Damodardas
Excerpt:
.....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 am not satisfied that any exception could be taken to the law in 1971 ker lt 119 or that there is any need to send the case to a bench for reconsidering..........of falshaw c.j. in c.l. davar v amar nath kauur. ilr (1962) 2 punj 484:'in my opinion it (the word dependent) cannot be construed as meaning nothing but wholly dependent in the sense of not earning anything at all and being entirely dependent on the father for board, lodging and food. i think the term must be construed as meaning somebody not wholly independent or self-supporting and in a position to set up a separate residence. i also consider that dependence may not in all circumstances be entirely a matter of finance...'this statement has also been followed in govind dass's case, air 1971 delhi 151, where it was further observed that to restrict the word 'dependent' to a mere financial dependent would amount to shutting our eyes to the structure of our society. (that was a case.....
Judgment:
ORDER

G. Balagangadharan Nair, J.

1. The first respondent in the revision who is the landlord sought eviction of the petitioners who were in occupation of the first floor of a two storeyed building under the tenant who was the first respondent in the petition for eviction. Apart from the allegation that rent was in arrears--that question is no longer relevant--the main ground on which the landlord claimed eviction was under Section 11 (3) of the Buildings (Lease and Rent Control) Act which provides that:

'A landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building if he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him.'

2. In support of this ground the landlord had alleged that her husband P.W. 1 was running a stationery business and a medical shop in the ground floor, that her son Balagopalan was conducting a typewriting institute in a rented building some distance away in the same town and that if the premises in question which consist of three rooms and a hall are vacated P.W. 1 could expand his business and Balagopalan could move his institute into them. This ground was accepted by the authorities below which have agreed in granting the landlord's petition for eviction.

3. The finding that the ground put forward by the landlord is true and bona fide has thus become final and is not liable to challenge in this revision. Mr. Achan for the petitioners however contended that even so the petition must fail as neither P.W, 1 nor Balagopalan is a member of the landlord's family and in any event as neither of them is dependent upon the landlord.

4. Taking the first limb of this argument, the expression 'family' has not been defined in the Act nor could counsel produce any decision of this Court where it had been considered. However the expression 'family' has been the subject of discussion in several decisions, both Indian and English In Price v. Gould, (1930) 46 TLR 411, which has beenfollowed in several subsequent cases Wright J. said:

'It has been said in A number of equity oases, relating principally to wills or to settlements under powers of appointment, that the word 'family', was a popular, loose, and flexible expression, and not a technical term, it had been laid down that the primary meaning of the word 'family' was children; but that primary meaning was clearly susceptible of wider interpretation, because the cases decided 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.' The learned Judge who was considering the meaning of 'family' in Section 12, Sub-section (1) (g) of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920 went on to say that the word- 'includes brothers and sisters of the deceased living with her (the tenant) at the time of her death. I think that that meaning is required by the ordinary acceptance of the word in this connection and that the legislature has used the word 'family' to introduce a flexible and wide term.'

5. In Brock v. Wollams, (1949) 2 KB 388, the Court of Appeal held that the defendant Mrs. Wollams who had been adopted in fact but not in legal form at the age of five or six by the tenant and had lived with him till his death, except for an interval of about three years when she resided with her husband, was a member of the tenant's family within the Rent and Mortgage Interest Restrictions (Amendment) Act, 1933. In Standingford v. Probert, (1950) 1 KB 377, the Court of Appeal held that the tenant's married sons and their wives were members of his family within the expression 'needs of the tenant and his family' under the same Act. Both these decisions followed Price v. Gould, (1930-46 TLB 411). Another case that deserves notice is Salter v. Lask, (1925) 1 KB 584 considered in Brock v. Wollams, (1949) 2 KB 388, 393, where the question was whether the husband of a tenant was a member of the tenant's family and Salter J. held that he was.

6. Turning to Indian cases, in Balabhadra v. Premchand, AIR 1953 Nag 144, a Bench Consisting of Sinha, C.J. and Mudholkar J. held that the need of a widowed daughter and her children must be deemed to be those of her landlord-father entitling him to claim possessionof a building for their residence as they were depending on him, even though by marriage she had passed out of his family and gone into that of her husband. One of the cases followed by the learned Judges was Jones v. Whitehall, (1950) 1 All ER 71, where a niece of the tenant's wife was regarded as falling within the meaning of 'members of the tenant's family'. In Govind Dass v. Kuldip Singh, AIR 1971 Delhi 151, the question arose whether the younger brothers, their wives and children were members of the family of the landlord within Section 14 (1) Proviso (e) of the Delhi Rent Control Act, 1958. A Bench consisting of H.R. Khanna, C.J. and Prakash Narain J. held that in the circumstances of the case they were. After noticing that the Act had advisedly not defined the word 'family' the learned Judges observed (at pp. 152 & 153):--

'The concept of what constitutes a family when a number of persons are related or are living together is not something static or capable of concise definition. What constitutes a family in a given set of circumstances or in a particular society depends upon the habits and ideas of persons constituting that society and the religious and socio-religious customs of the community to which such persons may belong.'

Their Lordships followed among other cases Ram Pershad Singh v. Mukand Lal, AIR 1952 Punj 189, where J.L. Kapur, J. held that in & given set up of social structure even nephews could be regarded as members of a landlord's family. It might be mentioned that AIR 1952 Punj 189 and a subsequent case Shri Nanak Chand v. Smt. Tara Devi, AIR 1953 Punj 156, also noticed by the Judges, followed the observations of Wright J. in Price v. Gould (1930-46 TLR 411).

7. It is unnecessary to quote further decisions except to mention that Radhavallabh v. Damodardas, ILR (1965) 15 Raj 149, contains a review of several cases on the point and that Andhyarujina's 'The Law of Rent Control' has a full and illustrated discussion of term 'family' under the commentaries to Section 5 (11) (c) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947.

8. From the above discussion it is obvious that the expression 'family' which is undefined by the Act is elastic and that its ambit has to be determined in all the circumstances of the case, having regard to the habits, ideas and socio-eco-nomic milieu of the parties. In the present case the concerned relations are the husband and son of the landlord. Going even by its primary meaning the word 'family' includes the son. The husband although the head is certainly part of the family, even if he is not and cannot be a member of the tarwad of his niaru-oiakkathayee wife. I reject this part of the contention.

9. The more important point urged on behalf of the petitioners is that the landlord is not entitled to claim eviction as neither the husband nor the son is dependent on her. Counsel contended that Anthony Kochuvariathu v Chakkulinga Nadar, 1971 Ker LT 119, followed expressly by the Rent Control Court and the Appellate Authority and by reference by the Revisional Court, has unduly enlarged the scope of the word 'dependent' and that it requires reconsideration. Now in that case the landlord-father who was residing with his family in a house which contained three rooms sought to evict a tenant from another building for the occupation of his two married sons who though not financially dependent on him had no houses themselves and could not afford to take independent buildings for themselves. Upholding the landlord's claim as bona fide Sadasivan J. rejected the tenant's contention that the sons were not depending on their father, observing that dependency contemplated by the sub-section has to be viewed from a broader and humane angle and that it is not mere financial dependency. The learned Judge noted that for their residence the sons were depending entirely on the father because they could not afford to find separate buildings for their residence and that considering the position of the father the claim was bona fide. On the connotation of the word 'dependent' the learned Judge quoted with approval the following observation of Falshaw C.J. in C.L. Davar v Amar Nath Kauur. ILR (1962) 2 Punj 484:

'In my opinion it (the word dependent) cannot be construed as meaning nothing but wholly dependent in the sense of not earning anything at all and being entirely dependent on the father for board, lodging and food. I think the term must be construed as meaning somebody not wholly independent or self-supporting and in a position to set up a separate residence. I also consider that dependence may not in all circumstances be entirely a matter of finance...'

This statement has also been followed in Govind Dass's case, AIR 1971 Delhi 151, where it was further observed that to restrict the word 'dependent' to a mere financial dependent would amount to shutting our eyes to the structure of our society. (That was a case where two Hindu brothers and their wives and children were held in the circumstances to be dependent for their residence upon the eldest brother). In my view it would be an undue restriction of the word 'de-I pendent' to limit it to one who is only financially dependent upon the landlord. The Legislature has not undertaken to define the word and one has to determine its meaning keeping in view the context and the circumstances of each case. Section 11 deals with eviction of tenants and Sub-section (3) must therefore be related to cases where the member of the family is dependent upon the landlord for the building -- whether residential or non-residential, as when although financially independent of the landlord, he -might have no building or a building that will answer his needs and the landlord bona fide needs to provide that member with a building. It is not possible nor would it be prudent to formulate tests that would govern all situations which might arise under Sub-section (3); I the answer must depend upon the facts and circumstances of each case. I am not satisfied that any exception could be taken to the law in 1971 Ker LT 119 or that there is any need to send the case to a Bench for reconsidering it. On the facts, neither P.W. 1 nor Balagopalan has any non-residential building in the town and they have necessarily to depend upon the landlord. P.W. 1 has been doing so because he has been running his stationery business and medical shop in the ground floor of this building for long. Balagopalan's typewriting institute is in a rented building which is some distance from the premises in question. If the first floor is vacated P.W. 1 could expand his business and Balagopalan could establish his institute there and thereby save the rent which he has now to pay. Both of them are living with the landlord and Balagopalan's financial independence itself is in doubt for P.W. 1 swears that he is looking after the affairs of his daughter-in-law also. Under these facts the landlord's claim that she needs the first floor for the occupation--for business purposes -- of her husband and son has been rightly upheld as bona fide.

I dismiss the revision but without costs.


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