- (1.) U. S. Tripathi, J. The sole petitioner Abdul Raheem died on 10-3-1999. The alleged legal representatives of petitioner namely Abdul Rashid, Mohd. Rafiq, Mohd. Rais and Smt. Ishrat Bano, sons and daughter of Abdul Majeed moved sub stitution application for their substitution in place of the petitioner.
(2.) THE Respondent Nos. 2 and 3 filed objection on the ground that none of the heirs and legal representatives mentioned in the application were living with the deceased Abdul Raheem at the time of his death. Abdul Rashid, Mohd. Rafiq, Mohd. Rais, sons of Abdul Raheem are residents of Bikrauli in the State of Maharashtra and Smt. Ishrat Bano daughter of Abdul Raheem was married long back and is living with her husband Mohd. Musir in premises No. 101/121 Colonelganj, Kan pur Nagar. THErefore, the interest of deceased Abdul Raheem did not survive or devolve on any of the above said heirs and legal representatives. In this rejoinder-affidavit Mohd. Rais one of the heir of petitioner deposed that all the heirs of deceased were residing normally with the petitioner Abdul Raheem in House No. 100/87, Colonel ganj, Kanpur, the disputed accommoda tion on the date of his death. So far as Mohd. Rafiq and Mohd. Rais were con cerned they are presently residing at Bom bay, but whenever they came to Kanpur they resided in the house in dispute. Abdul Rashid and Smt. Ishrat Bano were residing in the house in dispute in Kanpur and they had never left house in dispute. It was further deposed that Smt. Ishrat Bano was not residing in house No. 101/121 Colonel ganj, Kanpur. Heard the learned Counsel for the parties and perused the record. "tenant" as defined in Section 3 (a) of U. P. Act No. 13 of 1972, hereinafter called the Act in relation to a building means a person by whom its rent is payable and on the tenants death. (1) In case of residential building such only of his heirs as normally resided with him in the building at the time of his death ; (2) In case of non-residential building his heirs.
(3.) ADMITTEDLY the premises in ques tion was residential, therefore, only those heirs of the deceased tenants who were normally residing with him in the building at the time of his death may claim to be substituted. It is not disputed that deceased had left three sons and one daughter. The con tention of the Respondent Nos. 2 and 3 was that one of the sons and daughter were normally residing with the deceased at the time of his death. In the rejoinder-affidavit it is admitted that Mohd. Rafiq and Mohd. Rais, two sons of deceased are residing in Bombay but whenever they came Kanpur they resided in house in dispute. Thus, it is admitted that Mohd. Rafiq and Mohd. Rais were not normally residing in the premises in question along with the deceased and there fore, the tenancy did not devolve on them as casual residence is not relevant. Regarding Smt. Ishrat Bano it was contended by Respondent Nos. 2 and 3 that she was married and residing with her husband. However, in rejoinder-affidavit it was contended that she was residing with the deceased in the premises in question. Normally a married daughter resides with her husband or in laws. Nothing has been shown as to why she was residing with her father. In the absence of any special cir cumstances she shall be deemed to be resid ing with her husband and in-laws and there fore, tenancy also did not devolve on her.;