1. This civil revision petition conics up before us on a reference, by Mohan J. in view of the fact that the learned Judge doubted the correctness of the decision in Hathibudi Anandar v, Govindan, : (1981)1MLJ250 , which held that a foster son of the landlord cannot claim the benefit of Section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960 (for short the Act), in view of the definition ~f 'member of his family' occurring in Section 2(6-A) of the Act. Mohan J. has expressed the opinion that The question whether a foster son can claim the benefit of Section 10(3)(a)(iii) of the Act will have to be- decided on the facts and circumstances of each case and that to lay as a rule of absolutism that a foster son will not fall under the definition would be stating the law too widely.
2. The question which arises for consideration in this revision petition is whether the definition of 'member of his family' in relation to a landlord in Section 2(6-A) of the Act would take in his foster son.
3. The building with which we are concerned in this civil revision petition, which is a non-residential one. belonged to one Gannasambandam. The respondent took the building on lease in 1972, and was conducting the same shell business in the said building. The revision petitioner purchased the building from the prior owner in 1979 under Ex. A-2. The case of the revision petitioner is that her husband Thiruvannamalai Bakt1har and she treated and brought up one Arunachala 13:~kthar as their son and member of the family. The said Thiruvannamalai, husband of the petitioner, was carrying on lime shell business. He died leaving a Will dated 30th Nov. 1970. Under the said will he has clearly admitted that he had originally married one Trusayee Ammal and that the said 1rusayee Animal died without leaving any issues. thereafter, he married the petitioner and that both of them were bringing up Arunachala Bakthar who was none other than his brother's son. The lime shell business was being carried on ' through him. Under the will he has given a life estate in respect of his house scheduled in the will to ibis wife, the petitioner and the vested remainder to the children of Arunachala Baktar. He has further directed that the lime shell business s1bould be carried on by the petitioner and Arunachala Bakthar. After the lifetime of the petitioner, Arunachala Bakthar was to carry on the lime shell business. The petitioner has filed the petition for eviction on the ground that she requires The building for the Purpose of carrying on the lime shell business. for herself and for her son Arunachala Bakthar. She has also raised the contention that the respondent has committed willful default in the payment of rent. Among others, the respondent contended that Arunachala Bakthar is not* The natural son of the petitioner and consequently he will not be a son and therefore not a member of the family within the meaning of Section 2(6-A) of the Act. Therefore. she would not be entitled to maintain the petition. The Rent Controller found that the respondent hid not committed willful default in the payment of rent. The Rent Controller on the second issue whether the petitioner requires the building for the use of her son and herself found that Arunachala Bakthar is the son of deceased Tiruvannamalai Bakthar and the petitioner and therefore, a member of the family and hence the petitioner was entitled to maintain the petition for eviction. The Rent Controller also found that the petitioner had also pleaded that she required the building both for her business itself and that of her son and consequently in any event she would be entitled to an order of eviction. He also found that the requirement of the petitioner was bonafide. In the result, he ordered eviction.
4. On appeal by the respondent in C. M. A. 557 of 1980, the Appellate Authority following the decision of this Court in Hathibudi Anandar v. Govindan, : (1981)1MLJ250 held that abhimana pu.thiram would not be a son under Sec. 2(6-A), of the Act and therefore cannot be a member of -the family. The Appellate Authority also found that the revision petitioner had not shown that she had been running any business on the date when she filed the petition. In this view, the Appellate Authority set aside the order for eviction and dismissed the eviction petition.
5. Before we consider the question of law arising for decision, certain admitted facts may be referred to. It is not disputed that Ex. A-6 the will executed by Thiruvannamalai Bakthar on 30-11-19,70 clearly shows that Arunachala Bakthar who is none other ,than the brother's son of Thiruvannamalai Bakthar and the revision petitioner as their son and that he was looking after the lime shell business (sic). It is also clearly stated that on the , death of the testator both the reviling petitioner and Arunachala Bakthar should carry on the lime shell business and after the lifetime of the reviser petitioner, Arunachal Bakthar should carry on the lime shell business. Under the will Tbiruvannamalai Bakthar hits given a life estate over his Properties to the revision petitioner and the vested remainder to the children of Arunachala Bakthar. Ex. P-7 is a receipt given by one Shen bagalakshmi Annmal on 14-121979 and Ex. A-8 is discharged promissory note give j by Thiruvannarnalai Bakthur and others to Arunachala Bakthar. In Exhibits A-7 and A-8 Arunachala Bakthar has been described as the Bahaman puthiran of Thiruvannamalai Bakthar. This has been accepted by the appellate Court, These facts were not disputed before us and could not have been disputed by that learned counsel for the respondent. It was also freely conceded that Arunacbala Bakthar has been and is living only with the revision petitioner. The fact that under the will the revision petitioner has interest in the lime shell business along with Axunachal Bakthar was also not disputed before us.
6. It is in the context of the above facts the question whether Arunachala Bakthar is a member of the family of the petitioner and whether the petitioner can maintain the petition for eviction of the respondent for carrying on of, the business of the said Arunachala Bakthar has to be considered, Mr. M. Srinivasan did not canvass the position that Arunachala Bakthar will fall within the meaning of the term 'son' referred to in Section 2(6-A) of the Act. On the other hand, Mr. Srinivasan submitted that Section 2(6-A) was not exhaustive of the members of the family in relation to a landlord and if the *context so require a member of' the family in relation to the landlord could take in any other person also depending on the facts circumstances of each case. On the other hand* Mr. A. R. Lakshmanan, the learned counsel for the respondent te4ant relying on the judgment in Hathibudi Aran. dar v. Govindan, (1981) 1 Mad LJ 250 argued that Arunachala Bakthar is not the natural son of the revision petitioner and hence would not fall within the term 'son' in Section 2(6-A) of the Act and therefore the petitioner could not maintain the petition for eviction for the needs of the said Arunachala Bakthar for carrying, on business.
I 6-A. Section 2(6-A) of the Act reads as follows-
'in this Act, unless the context otherwise requires- 'member of his family' in relation to a landlord means his spouse, son, daughter, grand-child or dependent parent'. The opening clause in Section 2 clearly indicates that the definition will apply only. When the context to the situation does not call for any other meaning being given to the' words defined in the section. Therefore, 'member of his family' in relation to a landlord de
fined in Section 2(6-A) cannot be said always to take in only the persons 'mentioned therein viz., the spouse, son, daughter, grandchild or dependent parent. If the con.text so requires it is certainly permissible for the Court to hold that 'any other person' would also fall within the meaning of the expression 'member of his family' in relation to a landlord. 'As pointed out by Mr. Srinivasan it cannot be said that the daughter in-law of a person is not a member of the family of the landlord. -A daughter-in-law is not a person enumerated in S. 2(6-A).
However, it must be open to a landlord to maintain a petition for eviction of a tenant for the needs of his widowed daughter-in law. The opening clause in Section 2 of the Act has come up for consideration before the Supreme Court in K. balakrishna Rao v. Haji Abdulla, : 1SCR875 . There, the Supreme Court dealing with the definition clause in the Tamil Nadu Buildings (Lease and Rent Control) Act observed as follows (at p. 224) 'A definition clause does not necessarily in any statute apply in all possible contexts in which the word which is defined may be found therein. The opening clause of S. 2 of the principal Act itself suggests that any expression defined in that section should be given the meaning assigned to it therein un less the context otherwise requires.'
The Supreme Court in that case was concerned with the question whether the buildings with which the landlords were concerned was a building which fell within See, 2 o2) of the Act. It is in this context, that than above observations were made regarding the words found in the opening clause of S. 2 of the Act.
7. The word family is one of great flexibility. Sometimes the words family is used in a broad sense and would mean all those who are connected by blood relation ship or marriage and therefore Are to be considered as belonging to the family. It may be taken to mean the collective body of persons living in one house or under one
head or manager and may take within its fold household consisting of parents, children and even servants. It may also indicate persons descended from one common ancestor and having a common lineage. In a restricted sense it may take in only the children of a particular person, The question as to the meaning to be given to the expression 'family' will depend upon the context in which the word is used.
8. The word 'family' has been the subject-matter of decision in some of the Englisb cases. In Price v. Gould, (1930) 143 LT 333, Wright J. observed thus 'It has been said In a number of equity cases, relating principally to wills or to settlements under powers of appointment, that the word 'family' is a popular, loose. find 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. Thus. in Sum v. Tead, (1871) 23 LT 303, it was hold that the word 'family' could be extended beyond not merely children but even beyond the statutory,next of kin . ... ... ... I hold that in section now under consideration ice word 'family' includes brothers and sisters of the deceased living with her at the time of her death. I think that that meaning is required by the ordinary acceptation of the word in this connection and that the legislature had used the word 'family' to produce a flexible and wide terms'.
9. Again in Jones v. Whitehill, (1950) 1 All ER 71, Sir Reymond Eveqhed M.. A. after extracting the above observation of Wright J. has stated-
'I am not suggesting necessarily that all nephews and. niece's by marriage should be regarded as members of the tenant's family. But be it observed here that the defendant, a niece of Mr, Bailey ... ... . . (His Lordship considered the facts of that case) .... ... . . On these facts, I think that, if ft were asked in an ordinary conversation. Was the defendant a member of Mr. Bailey's family? an affirmative answer would be given'.
In the ' said case the question for determination was whether a niece of the tenant's wife who was living in the dwelling house to which the Rent Act applied and nursed him and his wife until their deaths was included
in the word's member of the tenant's family'.
10. The word 'family' was considered in Shah Maidej Islam v. Commr. of, Wakfs : AIR1943Cal635 , Pal, J. in his concurring judgment has served thus:
'The word 'family' is really one of great flexibility and is lapable of many differgrit meanings according to the connection in which it is used. Even when used in a statute it may indeed be of narrow or broad meaning as the irtention of the Legislature using it may be made to appear. in - its ordinary sense the term signifies the, collective, body of persons living in one home, or under one Head or manager, or 41ne domestic government, It may include all members of the household living under the authority of the head thereof, as also the servant ten' played in the house. The tam is often used to include those descended or claming from a common ancestor.'
11. In Ram Pershad v. Mukund Lai, a landlord applied for eviction of his tenant on ground that the existing accommodation was insufficient for him and his two nephew's (brother's sons) who were his only heirs. The landlord had set his nephews in business at Lahore by advancing them money and had got them married. One, of them was actually living with him at Delhi,, The question was whether the nephews were members of the, family. A learned Judge of the Punjab High Court after referring to the above English cases and also a. decision of the Calcutta High Court in Pushpalata Debi v. Binesh Chandra, (1950) 85 CLJ 74 observed thus (at P. 190):
'In this particular case, the two nephews for whom the landlord wishes to get this house are his only heirs. He set them up in business in Lahore and also got them married, and one of them is actually living with the plaintiff and the accommodation, it is submitted, on the evidence of Chandu Lal is insufficient for the purposes of the landlord and his nephews, which evidence I am prepared to accept as indeed the learned Senior Subordinate Judge accepted. In these circumstances, my opinion is that the nephews are members of the family of The landlord and he is entitled to evict the tenant for the purposes of these nephews. Taking. the words of the learned Master of Rolls and considering the circumstances of the case, I am of the opinion that the learned Senior Subordinate Judge rightly held that the nephews in this case should be included in the word 'family' as used in the Act.'
1I.A. In Asha Bibi v. Nabissa Sahib, : AIR1957Mad583 , Ramaswami J. observed thus (at p. 587):
'Techinically the -word family may be taken to mean the collective body of persons who live in one house and under one head or manager; and includes within its fold a house hold consisting of parents, children and servants and as the case may he lodgers or boarders. Under the Mussalaman Wakf Validating Act, it is intended to be used in a broad and popular sense. Popularly however the term indicates persons descended from one-common progenitor and having a common lineage. It will take in both agnates and cognates and relations by blood or marriage. The nephews of the settlor are in this sense the members of his family. Similarly daughters-in-law, the son of a half brother or the son of a half-sister.'
12. In Ramubai v. Jiyaram : AIR1964Bom96 the Bombay High Court had to interpet the word 'family' occurring in Section 106 of the Transfer of Property~ Act. One of the contentions that was urged was that married daughters in a Hindu family but who had gone out of the family could not be considered to be of the family ot the remaining members. The Bombay High Court observed thus (at p. 100):
'Thus, it cannot be said that merely because the' parties to this litigation are Hindus the word 'family' should receive a restricte4 interpretation. The Word seems to be used in a broad sense and would mean all those who are connected by blood relationship or marriage, and are therefore to be considered as belonging to the family. It is not also possible to accept this contention that even in the case of Hindu families girls who are married and go to the husband's families are not of the family of their father or cease to belong to the family of their father. What. ever may be the concept at the time, under the existing law, even married daughters take substantial interest in the family. and the family property. Thus, the prevailing concept as to family, far from being restricted, has been considerably expanded by creating interest in the family and substantial interest for many persons who had no such interest in the property, 4wh as widows of predeceased heirs, -or even married or unmarried daughters or widowed daughters. Thus the whole concept has been enlarged by legislation and it would be putting too narrow a construction on the concept of the word 'family' in Hindu Law if married daughters are considered to be outside the family. I am inclined to accept the literal interpretation and hold that even married daughters may be said to be of the family.'
13. In Nagpur Corporation v. Nagpur Handloom Cloth Market Co., : AIR1963SC1192 the Supreme Court was called upon to interpret the word 'family' occuring in Rule 10 (a) of the Rules for assessment of conservancy tax under that City of Nagpur Corporation Act, 1948, The Supreme Court observed thus (at p. 1197):
'But the expression 'family' has according to the context in which it occurs, a variable connotation. 1, does not in the sating of the rules postulate the existence of relation. ship either of blood or by marriage between the persons residing in the tenement. Even a single person may be rgarded its a family, a master and servant would also be so regarded. The word 'occupy' used in R. 10 (a) is not restricted either expressly or by
anything contained in the context of the rule suggesting it that the occupation is to be only for' residential purposes and in the absence of any such implication the rule must be deemed to be of general application L e., it applies to uses as non-residential as well as residential. The expression 'family' must therefore take colour from the expression 'occupy' used in the same rule. In our view, the expression 'family', in the context in which it occurs, means, no more than a person or group of persons'.
14. In Sukumar v. Naresh Chandra, : AIR1968Cal49 , Section 13(A)(f) of the West Bengal Premises Tenancy Act 12 of 1956 arose for consideration. The said section permitted a decree for recovery of possession being passed against the tenant on the ground that the premises wore reasonably required by the landlord among others for his occupation if he is the owner. It was accepted by counsel for the tenant that reasonable requirement by. the landlord for his own occupation included the accommodation reasonably necessary for occupation by not only the owner of the premises, but also his members of the family. The further queastion that arose was whether second degree cousins like father's sister's sons could be considered to be a member of the family far less the wives and children of such cousins and a paternal cousin of such a cousin. It was in this context the question as to the meaning to be attached to the expression 'members of the family' arose for decision. The learned Judge observed thus (at p. 55):
'On this point I need only say that in my view the extent of the boundaries of the family depends on particular facts of each case and the structure and outlook of each family. No one can be dogmatic either way on such matters. Upon the evidence in the present case I consider that the Courts below acted rightly in accepting the plaintiffs' case that the two cousins of the plaintiffs were members of the family and that being so their wives and children must also be reckoned as members of the family, The paternal cousin of the aunt's son has no direct blood relation with the plaintiffs. But the person also has been shown by evidence in this case to have been -living with the funnily of the plaintiffs and can very well be considered to be a dependent, though not a blood-relation.'
15. in Gavinda, Dan v. Kuldip Singh AAR 1971 Delhi 151, the landlords filed an application under Section 14 of the Delhi Rent Control Act 1956 seeking eviction of tile tenant from the premises on the ground that they required the same for occupation by themselves and for members of their family dependent on them. The application was. resisted by the tenant stating that only one of the applicants was the landlord and owner of the premises, that the other two were his brothers and that consequently the first applicant would not be entitled to require the premises for the occupation of his brothers. In this context, the question arose whether the brothers, their wives and childien of the first applicant were members of his family and if so whether they were dependent upon him. Prakash Narain J. (as he then was) speaking for the Bench consisting of himself and Chief Justice H. R. Khanna.observed thus (paras 7 & 9)-
'The word 'family' has not been defined in the Act and we feet 'advisedly so. The concept of what cotistitutes 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. In the case of Ram Pershad Singh v. Mukund Lal, , J. L. Kapur, J. held that in a given set up of social structure even nephews could be regarded as member of a landlord's family within.the meaning of Section 9(1)(c) of the Delhi and Ajmer Merwara Rent Control Act 1947 .. ... ... We are in respectful agreement wilt the observationF in all the decisions and we have noticed above and would hold that in a given set of circumstances and according to the particular structure of a society a family may be constituted of per-sons who may not in another given set of circumstance-, be regarded as being members of one, family. Applying this principle to the facts of the present case, there is no doubt that the members of the family of Gobind Dass would include his brothers, their wives and children, These persons belong to the Hindu community where the normal concept is that of a joint Hindu family and as has been observed by the Supreme Court in l1barat Singh v. Ms Bhagirathi, ILR 1966 SC 405. there is a strong presumption in favor of Hindu brothers constituting a joint family, and it is for the persons alleging severance of the joint Hindu family to establish it. Even if it be assumed that there is no joint Hindu family as such in the technical sense, Gobind Dass is a bachelor and the eldest brother and his nearest kith and kin in the person of his brothers, their wives and their children would undoubtedly be his family.'
16. The scope of the expression 'family' again arose for interpretation before Rangarajan, J. of the Delhi High Court in Abdul Hamid v. Nur Modid., : AIR1976Delhi328 . It was contended that a Muslim brother was not a member of the family within the meanings of Section 14(1)(d) of the Delhi Rent Court Act. The learned Judge after referring to the concept of family as explained in Govind Dass v. Kuldip Singh, : AIR1971Delhi151 , observed as follows (at p. 333)-
'The term 'family' is not capable of concise definition because what constitute$ 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. A remote relation may in a given set of circumstances be treated as a member of the family, whereas in another set of circumstances the same relation may not be legitimately called a member of the family. In that case the expression 'family' was hold to include brothers, their wives and children; the -discussion was in the context of the Delhi Rent Control Act of 1958.'
17. It is in the context of the above principles laid down by the various decisions regarding the concept of the expression 'family' that we have to decide whether Arunachala Bakthar is a member of the family of the. petitioner. As already stated, it is that disputed that Arunachala Bakthar is the brother's son of the petitioner's nusband. Therefore. Arunachala Bakthar is a blood relation of the petitioner's husband. Under Mitakshara Law of succession, the brother's son is a Sapinda and will be an heir. Under the Hindu Succession Act, the brother's son is one of the heirs specified in Entry 4 of' Class 11 of the Schedule to Section 8. Further, admittedly, Arunachala Bakthar who is none other than the brother's son of the petitioner's husband, has been brought up by the petitioner and her husband and has been and is living with the petitioner. The Will executed by the the petitioner's husband clearly states that Arunachala Bakthir was being brought up by him and has been looking after the lime shell business. The testator has bequeathed the vested remainder in respect of his properties to the children of the said Arunachala Bakthar. In Exs. A-7 and A-8 receipts Arunachala Bakthar is referred to as the Abhimana Puthiran of the petitioner's husband. On the facts and circumstances of the case, we axe convinced that the said ArunachaI4 Bakthar will be a member of the family of the petitioner. It is not disputed that if Arunachala Bakthar is a member of the family of the petitioner, then the petitioner would be entitled to obtain an order of eviction in respect of the premises from the respondent,
18. The petitioner will also be entitled to an order of eviction on another ground as well, The . petitioner is also carrying on the business in lime shell. This is clear from the Will itself under which the business has been given to the petitioner and Arunachala Bakthar. The petitioner has raised this plea in the additional written statement filed before the Kent Controller. In fact, point No. 2, as framed by the Rent Controller is to the effect 'whether the requirement of the petition building for the own use of the petitioner and her own is bonafide. In the circumstances. there is no merit in the observation of the appellate authority that the petitioner did not raise this plea in the eviction petition but raised the plea only by 'Way of an additional written statement. When the Will itself says that the business has been bequeathed to the petitioner and Arunachal Bakthar and Arunachala Bakthar him self has been examined and the Will also is marked as an exhibit, it is unnecessary for the petitioner to get into the box and prove that she is also carrying on the business. As a matter of fact, the fact that the petitioner and Arunachala Bakthar are owners of the, business was not disputed and could not have been disputed before the authorities below in view of the Will. The fact that Arunachala Bakthar might be looking after the business on behalf of the petitioner as be was originally doing even whom the petitioner's husband was alive, cannot detract from the fact that the petitioner has an interest in the -lime shell business.
19. On merits, the respondent did not contend that the petitioner and Arunachala Bakthir did not require the building bona fide for their own businesses. The only argument on behalf of the respondent was that Arunachala Bakhtar is only a foster son of the petitioner and therefore in law the petitioner could not maintain a petition
for eviction of the tenant on the ground that the premises were required for the lime shell business carried on by Arunacbala Bakhtar, For this the learned counsel for the respondent heavily relied on the decision of Balasubrahmanyan, J . in Hathibudi Anandar v, Govindan, (198 1) 1 Mad U 250. The learned Judgc held that a foster son will not be a son. The learned Judge also held that inasmuch as the foster son will not fall within the term 'son' under Section 2(6-A) of the Act be will not be a member of the family and therefore a petition for eviction by a landlord for setting up therein a retail business in rice to be carried on by his foster son, would not be maintainable. Mr. M. Srinivasan very rightly took the stand that a foster son or Abhimana Puthiran, as Arunachala Bakhtar is styled in this case, might not fall within the expression 'son' as found in S. 2(6-A) of the Act. But Mr. Srinivasan argued that notwithstanding the fact that a foster 'son might not be a son within the meaning of Sec. 2(6-A) of the Act, he would be a member of the family depending on the context of each case. We have accepted the position! that on the facts and circumstances of the case, Arunachala Bakhtar who is said to be a foster son would be a member of the family of the petitioner. We are unable to subscribe to the view of the learned Judge, if we may say so with respect, that a foster son cannot be said to be a member of the landlord's family within th4; meaning of S. 2(6-A) of the Act. In fact. the learned Judge has not considered the scope of the word 'family' in the said decision. No argument seems to have been advanced before the learned Judge that if the context so requires a member of the family in relation to a landlord for the purposes of the Act would take any persons other than those I'll combated in S. 2(6-A) of the Act. The learned Judge obviously proceeds on the basis that the definition of 'members of the family' in relation to a landlord is exhaustive and no other person could fall within the expression member of the family in relation to a landlord defined in Sec. 2(6-A) of the Act. This certainly overlooks the opening clause of Sec. 2. we therefore hold that the decision in Hathibudi Anandar v. Govindan, (1981) 1 M U 250 to the extent it says that a foster son would not be a member of the family and therefore the landlord would not be competent to maintain a petition for eviction of the tenant from a building for the purpose of the business of the foster son is not correct. We overrule the decision to this extent.
20. In the result, we set aside the- order of the Appellate Authority and restore that of the Rent Controller. there will be no order as to costs. Time granted for eviction will be three weeks from today.
21. Reference answered accordingly.