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Hathibudi Anandar Vs. Govindan - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1981)1MLJ250
AppellantHathibudi Anandar
RespondentGovindan
Excerpt:
- - 3. i uphold this contention as well-founded......the tenant of a non-residential building in woraiyur, tiruchirapalli. the landlord applied to the rent controller for an order of eviction under section 10(3)(a) (iii) of the tamil nadu buildings (lease and rent control) act, 1961. the landlord stated in his petition that he required the building bona fide for setting up therein a retail business in rice to be carried on by his foster son. the tenant resisted the petition. but the rent controller ordered eviction. the order was confirmed in appeal by the appellate authority.2. in this revision, the tenant questions the validity of the order or eviction on the ground that a tenant cannot be evicted to accommodate a land lord's foster son. the argument is that a foster son is not comprehended within the ambit of the expression, 'member of.....
Judgment:

V. Balasubrahmanyan, J.

1. The petitioner is the tenant of a non-residential building in Woraiyur, Tiruchirapalli. The landlord applied to the Rent Controller for an order of eviction under Section 10(3)(a) (iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1961. The landlord stated in his petition that he required the building bona fide for setting up therein a retail business in rice to be carried on by his foster son. The tenant resisted the petition. But the Rent Controller ordered eviction. The order was confirmed in appeal by the appellate authority.

2. In this revision, the tenant questions the validity of the order or eviction on the ground that a tenant cannot be evicted to accommodate a land lord's foster son. The argument is that a foster son is not comprehended within the ambit of the expression, 'member of the family' occurring in Section 10(3) (a) (iii) and defined in Section 2(6-A), of the Act.

3. I uphold this contention as well-founded. While a landlord can apply for an order for possession under Section 10(3) (a) (iii) either for his own benefit or for that of a member of his family, the Act takes care to enumerate who are all the persons who can be regarded as members of the landlord's family for the purposes of the Act. The enumeration of members of a landlord's family is rendered in Section 2(6-A). Under that enumeration, the landlord's son, daughter, grand-child and dependent-parent would all be members of his family. The contention of the tenant in this revision is that a landlord's foster son cannot be regarded as a son within the meaning of the provision.

4. I must uphold this contention as a matter of construction. The legislature has left the expression 'son' undefined, but I do not think the lack of a definition raises any difficult problem of construction or application. A son, in the generally accepted sense, is one who is begotten. Most legal systems also recognize, as a son, one who is taken in adoption. But a foster son is neither begotten, nor taken in adoption. He is merely fostered, that is So say, brought up by his foster parent. He lacks the vital element which attaches to a natural-born son. He lacks too the legal cognition which is accorded to an adopted son. His relationship to the foster parent is not a jural relationship; it is a sentimental relationship, pure and simple. A foster son is thus no son at all. The suffix 'son' is permitted to him only as a matter of common courtesy. It follows, therefore, that he cannot be held to be a member of the landlord's family within the meaning of Section 2(6-A) of the Act. It follows further that a landlord cannot invoke Section 10(3)(a) (iii) of the Act to compel his tenant to make way for his foster son, however close the landlord may feel towards that foster son. The landlord's plaint for eviction of the tenant in this case ought properly to have been rejected on the very face of the landlord's pleadings to the effect that the building was required to set up his foster son in business. The order passed by the Rent Controller and the appellate authority to the contrary must therefore be vacated.

5. Mr. R. Srinivasan, learned Counsel appearing for the landlord, objected to the revision being disposed of on the ground aforesaid. He said that this point about a foster son not being a son was not put forward by the tenant before the Rent Controller or the appellate authority.

6. I do not, however, think it has very much mattered at ail in this case that the question of law is being raised and considered for the first time now in revision. It certainly could not have put the landlord at a disadvantage as a party to the proceedings, For the inquiry in the revision has involved no more than an examination of the very provision which the landlord has invoked as being applicable to the very facts which he has pleaded in his petition for eviction. Learned Counsel's objection cannot therefore be sustained on any view of procedural technicalities.

7. In the result, the civil revision petition is allowed. The order of eviction passed by the Rent Controller and confirmed by the appellate authority is set aside. The eviction petition filed by the landlord is dismissed. There will, however, be no order as to costs.


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