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Shrinivas Vaman Karve and anr. Vs. Chandanben Jayantilal Dalal and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 515 of 1968
Judge
Reported inAIR1973Guj182; (1973)0GLR257
ActsBombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 13(1)
AppellantShrinivas Vaman Karve and anr.
RespondentChandanben Jayantilal Dalal and ors.
Appellant Advocate M.B. Shah, Adv. for; N.R. Oza, Adv.
Respondent Advocate S.B. Vakil, Adv.
Excerpt:
.....as eastern galas were carried out by defendant no. in this connection the words 'has .acquired vacant possessions of .occurring to the learned advocated for the petitioner, the present perfect tense of the verb 'acquire' would such show that the act of acquisition of vacant possession must continue upto the date of the filing of the suit in any case. 13 (1). notwithstanding anything contained in this act but subject to the provisions of section 15, a landlord shall be entitled or recover possession of any premises if the court is satisfied: acquired vacant possession of or been allotted a suitable residence'.now, the scheme of the act and in particular the scheme underlying the provision of section 12 and 13 of the act has been made clear on more than one occasion by the decisions of..........to be referred to as western gala and eastern gala was purchased in the name of petitioner no. 2. vacant possession of the ground floor of both these galas was acquired by the petitioners. however, the western gala was sold away on december 24, 1963 i.e. within a period of about 14 days. thereafter on march 31, 1964 the plaintiffs gave notice terminating the tenancy of petitioner no. 1 on the ground that this house was in fact purchased by petitioner no. 1 and that thereby petitioner no. 1 had acquired vacant possession of a suitable residence. after this notice, the suit in question was filed on june 25, 1964. thereafter on august 1, 1964 the eastern gala was also sold away to one bai chandiben. but this sale-deed was purported to have been executed in pursuance of an agreement to.....
Judgment:
ORDER

1. One of the questions raised in this revisional application by the petitioners of whom petitioner No. 1 is the tenant and No. 2 is his son relates to the interpretation of clause (1) of Section 13(1) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the `Act'). Admittedly, the suit premises are held by petitioner No. 1, the father as tenant of the opposite-parties plaintiffs. They filed suit for possession from which present proceeding arises, claiming eviction of the tenant on several grounds and the only ground which now survives for consideration is the ground falling under Section 13(1)(1) of the Act. Of course, some other contentions were also raised on behalf of the petitioners. but they are also based upon the application of clause (1) to the facts of this case. For this purpose, therefore the facts of this case most of which are December 10, 1963, a house consisting of two separate Galas, hereafter to be referred to as western Gala and eastern Gala was purchased in the name of petitioner No. 2. Vacant possession of the ground floor of both these Galas was acquired by the petitioners. However, the western Gala was sold away on December 24, 1963 i.e. within a period of about 14 days. Thereafter on March 31, 1964 the plaintiffs gave notice terminating the tenancy of petitioner No. 1 on the ground that this house was in fact purchased by petitioner No. 1 and that thereby petitioner No. 1 had acquired vacant possession of a suitable residence. After this notice, the suit in question was filed on June 25, 1964. Thereafter on August 1, 1964 the eastern Gala was also sold away to one Bai Chandiben. But this sale-deed was purported to have been executed in pursuance of an agreement to sell, dated March 4, 1964. The plaintiffs attacked this agreement as a document brought into existence after giving of the notice and the filing of the suit, and the said that this agreement was antedated. In the suit plaintiff's plea was that the entire house consisting of two Galas was purchased by their tenant petitioner No. 1 benami in the name of his son petitioner No. 2 and that having acquired possession of ground floor of both the Galas, the sale deeds were made in order to escape the consequences arising under Section 13(1)(1) of the Act. The case of the defendants was that this was not a benami purchase. but it was purchase by defendant No. 2 as owner and that defendant No. 1 had no interest in this property. With regard to the sale of western Gala. the case of the defendants was that in fact petitioner No. 2 as owner an that defendant No. 1 had no interest in this property. With regard to the sale of western Gala, the case of the defendants was that in fact petitioner No. 2 (defendant No. 2) wanted to purchase one Gala only, but in order that purchase of two Galas by the same person may procure some reduction in price. both the Galas were purchased by him, both the Galas were purchased by him. because one Thakoredas wanted to purchase the western. Gala. The substance of the contention was that the western Gala was purchased by defendant No. 2 benami for Thakoredas: and that there was an agreement of October 8, 1963 between Thakoredas and petitioner No. 2 evidencing this arrangement pursuant to which the sale of the western Gala took place on December 24, 1963. Thereby the defendants wanted to plead that vacant possession of the western Gala in no case could be said to have been acquired as a suitable residence of the defendants. With regard to the eastern Gala they took shelter under the agreement to sell the same to Chandiben on March 4. 1964 and stated that pursuant to that agreement, they had to sell this Gala. Of course, they also pleaded that the eastern Gala was not suitable for residence of the family of defendant No. 1 consisting of four members.

2. Both the trial Court and the appellate Court accepted plaintiff's case that both Galas were purchased benami in the name of the defendant No. 2 by plaintiffs' tenant-defendant No. 1'. Both the Courts below differed as regards the suitability of the eastern Gala which was vacant and was in possession of defendant No. 1. According to the trial Court, this eastern Gala was not suitable for the family of defendant No. 1. But this finding of fact of the trail Court was reversed by the learned appellate Judge who held. on taking several circumstances into consideration. that it was suitable. One of the contentions raised in this revisional application is also that no inference can be drawn reasonably that the eastern Gala was suitable for the residence of the family of defendant No. 1 from the facts held proved in this case by the learned appellate Judge.

3. The trail Court dismissed plaintiffs' suit for possession on two grounds: firstly on the ground that the eastern Gala was not suitable and secondly on the interpretation of Clause (1) of Section 13(1) of the Act. According to the learned trail Judge. the material date for the operation of that clause would be the date of institution of the suit. On that date, admittedly, western Gala was already sold away: whereas the eastern Gala, as per the finding of the Courts below, was with defendant No. 1 The learned trial Judge therefore examined the question of suitability or otherwise of this eastern Gala and came to the conclusion that the same was not suitable for the residence of the defendant No. 1's family. In view of this finding on the question of suitability of the eastern Gala. the learned trail Judge dismissed plaintiff's suit for possession on this ground. Against this decree. the plaintiffs went in appeal to the District Court at Surat. The learned appellate Judge negatived the contention of the defendants that the suit property was not purchased benami in the name of defendants No. 2 by defendant No. 1. The learned appellate Judge also negatived the contention that the western Gala was purchased benami by defendant No. 2 for Thakoredas. In this connection. he discarded, the agreement dated October 10, 1963 between defendant No. 2 and Thakoredas. In this connection. he discarded, the agreement dated October 10. 1963 between defendant No. 2 and Thakoredas relating to the western Gala as an unreliable document. All the same the fact remained that the western Gala was disposed of in favour of one Vasantlal, who is the brother's son of Thakoredas before the issue of notice terminating the tenancy by the plaintiffs. The learned appellate Judge interpreted the provisions of Clause (1) and differing from the interpretation of the learned trail Judge. he came to the conclusion that the said clause would be operative 'immediately when after coming into operation of this Act tenant had acquired vacant possession of a suitable residence.' Thus, his view was that on the event of acquisition of vacant possession which is inter alia one of the events contemplated by clause (1). the clause would be operative: and the subsequent disposal of that property would not take the case out of the clause (1) which immediately entitles the landlord to recover possession from the tenant on the ground mentioned in this clause. This interpretation of clause (1) has not been challenged in this revisional proceeding, by the petitioners. In the opinion of the learned appellate Judge the mere act of purchase of these two Galas and acquisition of vacant possession of the ground floor portions to obtain possession of the rented premises from the defendants on the ground mentioned in clause (1). The learned appellate Judge then in the alternative considered the position on the basis that the material date would not be the date of acquisition of vacant possession. He considered the question whether the eastern Gala which was in possession of defendant No. 1 on the date of the notice and on the date of the filing of the suit. was suitable for the residence of the family of defendant No. 1. As observed earlier he negatived the plea of the defendants that he sale of the eastern Gala had taken place pursuant to a previous agreement to sell executed on March 8, 1964 in favour of Chandiben and therefore, before the notice terminating the tenancy. He held this agreement to be fabricated just like the agreement Exh. 95 between defendant No. 2 and Thakoredas. In view of these findings. he came to the conclusion that the eastern Gala was in possession of defendant No. 1 and it could be occupied by him. He also found that it was suitable for residence of the family of defendant No. 1. In this view of the matter, he allowed the appeal and gave a decree for eviction to the plaintiff. Against that decree the petitioners have come in revision to this Court.

4. The learned advocate for the petitioner contended firstly that the findings of fact arrived at by the lower appellate Court with regard to the purchase of both the Galas by defendant No. 1 in the name of defendant No. 2. do not lead to an inference that the intention of defendant No. 1 in purchasing these two Galas was to treat his son as benamidar, and to treat himself as the owner. This contention is not tenable. There was overwhelming evidence bearing upon this intention. The facts found by the learned appellate Judge were as under:

(1) Both the Galas belonged to a public trust: and initially permission to sell these galas was obtained from the Charity Commissioner in the name of defendant No. 1: but later on he applied to the trustees to obtain permission in the name of defendant No. 2 and therefore. the permission was issued in the name of defendant No. 2.

(2) The first defendant admitted in his evidence that all negotiations for the sale were carried out by him.

(3) The property was purchased for Rs. 15.999/- and some amount was spent for improvement with the result that the total cost came to Rs. 17.700/- and as against this, the second defendant had only an amount of Rs. 1,000/- with him. It was pointed out that the first defendant admitted that the rest of the amount was provided by him. his brother and his wife.

(4) The second defendant was a boy of 21 years who had furnished his studies just before the purchase in question and he was serving in the Surat Electricity Co.

(5) Nearly whole of the amount of consideration was provided by defendant No. 1 and was paid by defendant No. 1. Though it may be that part of this amount was taken by defendant No. 1 from his brother and part from his wife.

(6) The negotiations for the sale of the western as well as eastern galas were carried out by defendant No.1. defendant No. 2 knew nothing about these sales except that he passed the documents whenever required to the purchasers.

(7) Defendant No. 2 admitted in his evidence that his father i.e. defendant No. 1 knew about the proposed sale of the property and all the transactions with regard to them were done by him.

(8) Defendant No. 2 also admitted that Thakorades had purchased the western gala from his father.

(9) The defendant No. 2 admitted that he did not know how many rooms were there in the house purchased on the first floor and also did not know who were the tenants thereof.

(10) Defendant No. 2 also admitted that his father had built up a room in the back portion of one of the galas. Lastly the said defendant admitted that he did not know whether any profit was made out of this transaction of purchase and sale carried out by his father. He also said that his father was keeping all accounts and he had never asked his father to give accounts to him.

5. The inference on these facts is irresistible and clear. The intention of the defendant No. 1 was to purchase these two Galas as owner benami in the name of defendant No. 2 possibly because he was aware of the eventuality that he would be evicted from the rented premises as soon as the document was taken in his name. Mr. Shah. the learned advocate for the petitioners. at the revisional stage attempted to raise a contention which shows a complete change of front as regards the case with which the defendants went to trail of this suit. He wanted to urge that even if the intention of the defendant No. 1 was to purchase this premises himself that was done by the said defendant in order to benefit defendant No. 2 who was to be accommodated there. Thus. runs the agreement, by this purchase defendant No. 1 wanted to benefit defendant No. 2 and therefore, the act of defendant No. 1 in purchasing these premises and obtaining vacant possession would not fall under clause (1). Now, the case fought by the defendants before the trial Court and the lower appellate Court was that the defendant No. 1 had nothing to do with this purchase and that this was a purchase in the name of defendant No. 2 case was pleaded to the effect that the purchase assuming to have been made by the defendant No. 1 with his own funds, was made by way of advancement to defendant No.2. Such a new plea therefore, cannot be allowed to be taken up in revisional proceedings.

6. The next contention relates to the interpretation of Clause (1). It was urged relying upon the word 'residence' in clause (1) that the landlord in order to succeed in a suit falling under Clause (1). should establish that the vacant possession of another house was acquired by the tenant with the intention of having his permanent abode in that house. If this intention was not there. Clause (1) would not be applicable. It was pointed out that the word 'residence' is used in Clause (1) and not the words 'residential premises'. According to the submission of the learned advocate for the petitioners. if the latter words were used. then mere act of acquiring vacant possession of a suitable premises would entitle the landlord to a decree for ejectment irrespective of the question of intention with which vacant possession was acquired by the tenant. It was pointed out by way of an illustration that a tenant may be doing business of purchasing and selling residential premises vacant or otherwise. In such a case he has no intention to go and reside in the vacant premises purchased by him. His intention in the act of purchase and in the act of acquiring vacant possession of the premises is to sell the same and earn profit. It is urged, to such a case the provisions of clause (1) would not be made applicable because to do so would virtually prevent a tenant from carrying on that business. On the question of intention. it was pointed out on behalf of the petitioners that there is no finding by the Court below to the effect that the intention of defendant No. 1 in purchasing the two gals was to go and reside there with his family and to make the same his place of permanent abode. The next contention on the construction of clause (1) was that the relevant date with regard to the operation of clause (1) must be the date of filing of the suit and the passing of the decree. In this connection the words 'has .......... acquired vacant possessions of ...........' occurring to the learned advocated for the petitioner, the present perfect tense of the verb 'acquire' would such show that the act of acquisition of vacant possession must continue upto the date of the filing of the suit in any case. These are the only contentions as regards interpretation of clause (1) and we will first deal with the contention as regards the intention of the tenant in purchasing and acquiring vacant possession of the suit premises. Section 13(1)(1) for this purpose may be reproduced:

'13 (1). Notwithstanding anything contained in this Act but subject to the provisions of Section 15, a landlord shall be entitled or recover possession of any premises if the Court is satisfied:

xx xx xx

(1) that the tenant after the coming into operation of this Act has built. acquired vacant possession of or been allotted a suitable residence'.

Now, the scheme of the Act and in particular the scheme underlying the provision of Section 12 and 13 of the Act has been made clear on more than one occasion by the decisions of the Supreme Court as well as this Court . Under the general law of landlord and tenant a landlord on validly terminating the tenancy of a tenancy or on termination thereof in accordance with other modes described in the Transfer of Property Act . becomes immediately entitled to possession of the rented premises. Section 12 of the Act places an embargo upon this right of the landlord. It confers protection on the tenant from being evicted from rented premises notwithstanding the fact that the contractual tenancy between him and the landlord has been terminated. But the Legislature in enacting the provisions relating to protection conferred on the tenants under the Act , also wanted to balance the interest of the landlord so that they may not virtually be deprived of the enjoyment of their property. Therefore Section 13 was enacted and the opening portion of sub-section (1) of that section which has been reproduced above itself shows that once the Court is satisfied that any of the events mentioned in clauses (a) to (1) had happened, the embargo imposed by Section 12 is lifted and the landlord becomes entitled to recover possession of the rented premises. Therefore it is the decision of the Court as regards the happening of one of the events contemplated in bringing about the happening of that event. If the Court is satisfied that the tenant has acquired vacant possession of a suitable residence as in this case the question of intention of the tenant in acquiring such vacant possession is not relevant. To import intention of the tenant as a necessary ingredient in clause (1) would virtually leave the landlord (and as a necessary consequence others who need rented premises) to the vagaries of a tenant who, having acquired vacant possession of a suitable residence. would say that the he had no intention to go to reside there nor did he entertain that intention at the date of institution of the suit. The intention of the Legislature in enacting clause (1) is to see that residential premises are made available to those who are in greater need of them than those who acquire vacant possession of suitable residential premises. The tenant who acquires such vacant to possession of a suitable residence, has to hand over possession of the rented premises to the landlord so that others who need the rented premises from which he is sought to be evicted may get them. Therefore is it the act of acquiring vacant possession of a suitable residence which inter alia is determinative of the operation of clause (1). The other acts which are determinative of this question are the act of building a suitable residence or the act of a third party or agency of allotting suitable residence to the tenant. The illustration given by the learned advocate for the petitioners of a person doing business of purchasing and selling residential houses would not be a governing factor on the construction of clause (1) looking to the object underlying the said clause stated earlier. Such a person would be better placed financially as compared to other in need of rented residential accommodation. There is no reason why such a person should not vacant the rented premises and shift to the residential premises which he has built or which has been allotted to him or of which he has acquired vacant possession. It is obvious that under the provisions relating to restriction of rent, the landlord even after obtaining possession of this residential premises cannot charge higher rent from other tenants. The very fact that Section 13 provided for recovery of possession of rented premises from the tenant by the landlord on ground other than present need of the landlord. to occupy those premises personally is suggestive of the intention of the Legislature to make rented premises available from time to time to other needy present as and when the events specified in clause (a) to (f) and (h) to (1) occur. In this view of the matter, the contention based on intention of the tenant in acquiring vacant possession is not a relevant consideration for the purpose of clause (1). As observed earlier, it is the act of acquiring vacant possession of a suitable residence which forfeits the protection given to the tenant under Section 12 to the Act and entitles the landlord to obtain possession of the rented premises from the such a tenant. In growing cities and towns most of which are now covered by the Act more and more persons would be in need of residential premises. The Legislature by lifting the embargo on the landlord's right to recover possession under Section 12 on grounds other than the need of the premises by the landlord himself, for his occupation, has tried to provide for these helpless persons who come to growing cities and towns.

7. The second contention relating to the interpretation of clause (1) is based on the use of the verb 'has acquired' in present prefect tens. This contention has been raised on account of the fact the western Gala of the house purchased by defendant No. 1 was sold away prior to the date of the notice terminating tenancy issued by the landlord. It may not be necessary to decide upon this contention in view of the finding of fact arrived at by the lower appellate Court that in any case two rooms of the eastern gala were in possession of the defendant No. 2 both on the date of the notice as well as on the date of the filing of the suit. The defence that sale-deed of the eastern gala was executed because of an agreement to sell the same to Chandiben prior to plaintiff's notice, has been negatived and the learned appellate Judge has found in terms that the so-called agreement of March 4, 1964 was got up and antedate because first defendants possibly though that the material date for the operation of clause (1) would be the date of the notice terminating tenancy which in the present case is March 31, 1964. There is no reason to disturb that finding of the learned appellant Judge with regard to the aforesaid agreement of March 4, 1964. If that is the position, we must proceed on the basis that there was no agreement to sell this property on the date of the termination of the tenancy as well as on the date of the filing of the suit and that the property came to be sold on 1-8-1964 possibly with a view to avoid a decree for eviction in the present suit. In that case the only question would be whether two rooms of eastern gala of which vacant possession was with defendants No. 1 on the date of the termination of the tenancy as well as on the date of the filing of the suit were suitable for the residence of defendants No. 1 with his family. The finding of the learned appellate Judge is that they were suitable and if this finding cannot be disturbed by this Court in revision. it is obvious that the decree for possession passed on by the lower appellate Court will have to be confirmed; and the contention based on the use of the verb 'has acquired' in present prefect tense used in clause (1) would not arise for determination in this case.

8. Therefore, we must first consider the challenge to the finding as regards suitability arrived at by the lower appellate Court. The contention in this connection was that on inference can reasonably be drawn from the facts found by the lower appellate Court as regards the suability of the two room of the eastern gala for the family of defendants No. 1. Now the fact found by the lower appellate Court in this connection are to be found in paragraph 14 of the judgment and they are (1) the dimensions of the two rooms of the eastern gala were `16-10` x 9`-2`` and `17-3` x 9`-2`` with an open vada of `18-10`` at the back (2) the build up area of these two rooms was 306 square feet with the open vade behind it where as the build up area of the suit premises was 338 square feet in all. The vada behind the suit premises is quire small as compared to the vada behind the two rooms of the eastern gala: (3) the first defendants has got only 4 members in his family consisting of himself. his wife, his son i.e. second defendants and daughter's son aged about 71/2 years (4) the daughter's son cannot be considered to be a members of the family of first defendants who was bound to be accommodated in the suitable residence rented by the first defendants inasmuch as the daughter of the first defendants that is the mother of that son was staying in the same city, viz. Surat and (5) and the purchaser of this eastern gala is Chandiben and she is living with her family consisting of three adult members and four children in these two rooms. The inference drawn as to the suitability of these two rooms by the learned appellate Judge cannot be said to be unreasonable in the circumstances of this case. It is very small family consisting of the husband, wife and an adult son which can conveniently be accommodated in the two rooms. They have been accustomed to stay in a slightly in larger build up areas. It was, however, urged that the learned appellate Judge did not consider the fact the sons of the first defendants i. e. the second defendants was of marriageable age and that there was a staircase in the front room out of the two rooms of the eastern gala which would make it unusable for the purpose of residence. Looking to the dimension of the two rooms of the acquired accommodation as compared to the dimension of the three rooms of the rented premises even if the learned appellate Judge has considered the two facts urged before this Court. the conclusion to which he has reached would not be unreasonable. So far as the staircase in the front room is concerned, it does not make the use of the front room and the less exclusive of the proper partition is made. the back room of the acquired accommodation is sufficiently big, from the which a small kitchen can be carved out and the remaining portion of the room can be used as a room exclusively for the son of defendants No. 1 even after the gets married. In my opinion therefore, the consideration reached by the learned appellate Judge. If this is the position, the landlord would be entitled to a decree for eviction in the present case on the ground mentioned in clause (1) of Section 13(1) of the Act and no error of law has been committed in this case by the learned appellate Judge in giving a decree for eviction. In this view of the matter, the second contention urged by the learned advocate for the petitioner with regard to the interpretation of clause (1) based on the use of the present prefect tense in that clause will not survive, because the vacant possession of the eastern gala which is suitable for residence of defendant No. 1 has continued to remain with the said defendants till the filing of the suit and for sometime thereafter.

9. In the result, the petitioner fails and is dismissed. Rule discharged with costs. Interim stay of execution of decree will stand vacated.

10. Petitioner dismissed.


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