- (1.) SATISH Chandra, C. J. Shri Srivastava, respondent No. 2 was landlord of the accommodation in dispute. He applied for a declaration that the accommodation was vacant and that the same be released in his favour. The Rent Control Tribunal on July 27, 1977 passed an order dismissing the application. Aggrieved, Sri Srivastava went up in revision. The Additional District Judge held that S. R Shakya was the tenant of the accommodation since 1958. The tenant died in May 1973 leaving behind his widow and five sons. The tenancy devolved on the widow and her five sons. One of the sons, Dr. R. R. P. Singh applied for allotment of another house for himself and three of his brothers. The rent control authorities passed an order of-allot ment of that house in 1975. Dr. R. R. P. Singh obtained possession of the allotted house in June, 1975. He alongwith his own family and at least one of his brothers shifted to the allotted house. It was also held that Dr. R. R. P. Singh was normally residing with his father S. R. Shakya, the original tenant. Considering the definition of the term 'tenant' in the Rent Control Act of 1972 the learned Judge held that Dr. R. R. P. Singh was an heir who was normally residing with him in the building at the time of the death of the original tenant. Since he got another building allotted: to himself the accommodation in dispute will be deemed to have become vacant under Section 12 (3) of the Rent Control Act 1972. Since the Tribunal had not recorded any finding on the personal need of the landlord, the matter was remanded to it for consideration of the release application.
(2.) AGGRIEVED, the widow and three sons of the erstwhile tenant have come to this Court under Article 226 of the Constitution. When the Writ Petition came up for hearing before the learned Single Judge, it was argued that allot ment of another building under the Rent Control Act did not amount to "acquiring it" within meaning of Section 23. The learned Single Judge repelled this submission and, in our opinion, correctly. Another submission made on behalf of the petitioners was that a per son can be deemed to be a member of the family of the tenant only if he was normally residing with the tenant and was also wholly dependent on the tenant. In the present case there is no finding that Dr. R. R. P. Singh was wholly dependent on the tenant. Hence because of his acquiring another accommoda tion, the tenanted accommodation could not be deemed to be vacant. In this connection the learned Single Judge noticed a Division Bench decision of this Court in Shri Nath Tandon v. Rent Control and Eviction Officer (1979 A. R. C. 351) in which it was observed that if a member of the tenant's family has not been normally residing with the tenant or that he has not been wholly dependent on the tenant, the deeming provision would not apply. The learned Single Judge felt doubtful as to the correctness of the view expressed in that case. Another submission made on behalf of the petitioners was that after the death of the original tenant Dr. R. R. P. Singh could at best be treated as member of the family of his mother who had become one of the tenant but he also became a tenant in his own right as having succeeded to a share in the tenancy, On the death of the original tenant, the tenancy devolved on his widow and his five sons. Each one of them had a distinct share in the tenancy rights. They were all tenants in common. Hence by acquisition by way of allotment of another house by one of the co-tenants, namely Dr. R. R. P. Singh the tenancy rights of the other co-tenants, could not be adversely effected and the accommodation could not, in law, be deemed vacant. In support of this submission that co-tenants were tenants in common and not joint tenants, reli ance was placed upon Budhsen v. Sheel Chandra Agarwal (1977 (3) A. L. R. 76), and Ramesh Chand Bose v. Gopeshwar Prasad Sharma (1976 (2) A. L. R. 711 ). The learned single Judge felt that these decisions did not take into consideration the Supreme Court decision in Badri Narain v. Rameshwar Dayal (A. I. R. 1951 S. C. 186) and so they needed reconsideration. In this situation, the learded Single Judge referred to a larger Bench the following ques tion: 1. (a) Whether the view expressed in Budhsen v. Sheel Chandra Agarwal (supra), and Ramesh Chand Bose v. Gopeshwar Prasad Sharma (supra) to the effect the heirs of a tenant are tenants in common and not joint tenants, is consistent with the view expressed by the Supreme Court in Badri Narain v. Rameshwar Dayal (supra) ? (b) Do such heirs of a tenant become tenants in common inter se but remain joint tenants qua the landlord ? (c) What is the effect of one such heirs acquiring another building as mentioned in Section 12 (3) of U. P. Act No. 13 of 1972? 2. Whether the view expressed in Sri Nath Tandon v. Rent Control and Eviction Officer (supra) to the effect that a member of the family who acquires another building should both have been normally residing with the tenant and also been wholly dependent on him for Section 12 (3) to be attracted is consistent with Explanation (b) to Section 12 (3)?"
(3.) WE may take up the second question first. Section 12 (3) reads;- " (3) In the case of a residential building if the tenant or any member of his family builds or otherwise acquires in a vacant state or gets vacated a residential building in the same city, municipality, notified area or town area in which the building under tenancy is situate, he shall be deemed to have ceased to occupy the building under his tenancy. Provided that if the tenant or any member of his family had built any such residential building before the date of commencement of this Act, then such tenant shall be deemed to have ceased to occupy the building under his tenancy upon the expiration of a period of one year from the said date. The Amending Act No. 28 of 1976 added the following Explanation to Section 12 (0:- Explanation-For the purpose of this sub-section (a) a person shall be deemed to have otherwise acquired a building if he is occupying a public building for residential purposes as a tenant, allottee or licensee. (b) the expression any member of family "in relation to a tenant, shall not include a person who has neither been normally residing with nor is wholly dependent on such tenant. Clause (a) of Section 3 defines a 'tenant' It says- " (a) 'tenant' in relation to a building means a person by whom its rent is payable and on the tenant's death- (1) in the case of a residential building, such only of his heirs as nor mally resided with him in the building at the time of his death: (2) in the case of a non-residential building, his heirs. Clause (g) of Section 3 defines 'family' as follows:- " (g) family" in relation to a landlord or tenant of a building, means his or her- (i) Spouse,- (ii) male lineal descendants, (iii) such parents, grand parents, and any unmarried or widowed or divor ced or judicially separated daughter or daughter of a male lineal descendant as may have been normally residing with him or her, and includes in rela tion to a landlord, any female having a legal right or residence in that building; In view of the definition of the term 'tenant' it is evident that such of his heirs as normally resided with him in the building at the time of his death, became a tenant after his death, in case of a residential building. An heir who was not normally residing with him will not, for purposes of the Rent Control Act. become a tenant; but nonetheless he would be a member of the family of the tenant if he falls within one of the sub-clauses of clause (g ). A son of a tenant who was not normally residing with him will not become a tenant after his death though he will be all the while a member of the family of the tenant.;