ANJANI KUMAR, J. - (1.) THIS writ petition has been filed by the petitioner -tenant against the order dated 14 -9 -2001, Annexure 2 to the writ petition passed by the Revisional Court, whereby the revisional court has allowed the revision filed by the Respondent No. 2 and set aside the order dated 27 -3 -1999 passed by the trial Court.
(2.) THE facts leading to filing of the present writ petition are that the landlord -Respondent No. 2, Sharad Chandra Mishra filed a suit bearing Suit No. 156 of 1994 for ejectment of the petitioner -tenant from House No. CK -32/1, 2, 3, Mohalla Nepali Khapra, Varanasi which is a non -residential accommodation in which one late Smt. Gangajali was the tenant. Originally it was let -out to Kedar Nath, who was tenant and after his death, tenancy was inherited by his wife. Kedar Nath had no offspring and the petitioner is his foster son. Gangajali died and the petitioner who is foster son continued in possession and he claimed inheritance in tenancy firstly on the ground of his being foster son and secondly on the strength of a will executed by Gangajali. The trial Court decreed the suit in part for arrears of rent holding the petitioner to be the heir who inherited the tenancy. Aggrieved thereby the plaintiff -landlord approached the revisional Court. The revisional Court after considering the material and evidence available on record allowed the revision by setting aside the order of the trial Court dated 27 -3 -1999 and the suit of the plaintiff -landlord was decreed for eviction of the petitioner -tenant. It is this order which has been challenged by the petitioner -tenant by means of the present writ petition. The main issue for decision which is argued by learned Counsel for the petitioner, Shri V.K.S. Chaudhary is regarding the question as to whether the petitioner can be said to be entitled to inherit the tenancy rights of deceased Gangajali or not? The trial Court has found that the petitioner cannot be said to be the sub -tenant as according to the provision of Sections 3 -a, 3 -g and 34(4) of the provisions of Hindu Succession Act and the tenancy will be devolved on the petitioner by Hindu Succession Act and the petitioner would be the heir according to the provisions of Hindu Succession Act, 1956. Learned Counsel for the respondent -landlord relied upon a decision reported in 1997 Vol. (1) ARC page 467, wherein this Court has held that if the tenant has allowed the building in dispute to be occupied by a person who is not the family member then there will be a deemed vacancy within the meaning of Sections 12(b), 20(2)(e) read with Section 3(g) of U.P. Act No. 13 of 1972. Learned Counsel for the petitioner relied upon the decision of the apex Court reported in AIR 1997 SC page 628, wherein apex Court in para Nos. 20, 21, 22, 23 and 26 has held as under : (20) Son as understood in common parlance means a natural son born to a person after marriage. It is the direct blood relationship which is the essence of the term in which Son is usually understood, emphasis being on legitimacy. In legal parlance, however, Son has a little wider connotation. It may include not only the natural son but also son's son, namely grand child and where the personal law permits adoption, it also includes an adopted son. (21) Section 3(57) of the General Clauses Act defines Son as under : son in the case of any one whose personal law permits adoption shall include an adopted son. (22) Relying upon this definition the Lahore High Court in re Divi Ditta, AIR 1931 Lahore 661, held that where the personal law of the parties permits adoption, the word Son will include an adopted son. In Adit Narayan Singh v. Mahabir Prasad Tiwari, 48 Ind. App 86 : (AIR 1921 PC 53), the Privy Council held that Sons in Mitakshara Chapter II, 6(1) include a grand -son. In the ancient Hindu law, twelve sons are mentioned by the truth seeing Sages all of whom need not be mentioned here. The attempt only is to indicate that the term Son itself is a flexible term and may not be limited to the direct descendants. Its true meaning, like the term Family discussed above, will depend upon the context in which it is used. Even illegitimate son may be treated as legitimate, as for example the son referred to in Section 16 of Hindu Marriage Act as originally enacted. (23) Coming now to 'Foster Son', it may be pointed out that a 'Foster Son' is a son who is not the real son or direct descendant of a person after his marriage. (24) In shorter Oxford Dictionary, Foster Son is defined as one brought up as a son though not a son by birth. The word Foster in the same dictionary is indicated to mean to supply with food; to nourish feed, support; to bring up with parental care; to nurse, tend with care to grow. (25) Foster Brother is a male child nursed at the same breast as, or reared with another of different parentage. Foster Father is described as one who performs the duty of a father to another's child. Foster Mother is indicated to mean a woman who nurses and brings up another's child, either as an adoptive mother or as a nurse, while Foster Sister means a female child nursed at the same breast as, or reared with another of different parentage. (26) These definitions indicates that a Foster Child need not be the real legitimate child of the person who brings him up. He is essentially the child of another person but is nursed, reared and brought up by another person as his own son.
(3.) IN this view of the aforesaid law laid down by the Hon'ble Supreme Court, petitioner can be said to be entitled to inherit the tenancy right of deceased Gangajali. So far as the right to inherit the property of deceased Gangajali is concerned the petitioner cannot claim any inheritance on the basis of a registered will said to have been executed as the will has neither been probated nor letters of administration has been issued.;