- (1.) THIS is a tenant's appeal from the Judgment and decree of the learned Senior Civil Judge No. 1 Jaipur City, dated December 2, 1963, confirming the trial Court's decree for his eviction from a shop in Jaipur City. The grievance of the appellant is that both the courts below have taken the view that Radhey Shyam, the son of the Landlord's brother, was a member of the landlord's "family" within the meaning of clause (h) (i) of sub-sec. (1) of Sec. 13 of the Rajas-than Premises (Control of Rent and Eviction) Act, 1950, hereafter referred to as the Act.
(2.) THE shop in question belongs to landlord Damodardass who purchased it on January 33, 1961 and, soon after, gave a notice (Ex. 4) to the tenant on February 1, 1961, terminating his tenancy on the ground that the shop was required by the landlord for the purpose of the business of his nephew. It was not stated in the notice that Radhey Shyam was a member of the landlord's family, but such a plea was taken in the plaint. It was also pleaded that the tenant had committed a default in the payment of the rent, but that plea was found to be false and was rejected at the trial. THE eviction of the tenant was, however, ordered on the other ground that the landlord's nephew was a member of his family and the shop was required reasonably and bonafide by the landlord for the nephew's new business. It is the landlord's case that while he is a member of the joint Hindu family consisting of himself, his brother and his father, he carries on his business separately at Jaipur, and that he purchased the shop from his own income and it is his exclusive property. The landlord has four children of his own. His nephew Radhey Shyam is 27 or 28 years old. He lives with the landlord for the last 12 or 15 years. He is unemployed and is dependant on the landlord. The landlord has, however, admitted that Radhey Shyam's father is alive and that he (landlord) did not make any contribution towards the expenses of his nephew's marriage. On his part, Radhey Shyam has admitted that he carried on his earlier iron business in some other premises and that he had taken them on rent in his own name. The trial court took the view that since the landlord and his nephew were living together and the nephew was dependant on the landlord, the shop would be ''deemed to be required for the use of the plaintiff's family". On appeal, the learned Judge of the lower appellate court addressed himself to the question whether Radhey Shyam was a member of the joint Hindu family of the landlord and as he reached the conclusion that this was so and that Radhey Shyam was dependant on the land!ord,he upheld the finding of the trial court and confirmed the decree for eviction. The material provision of the Act is as follows - "13. (1) Notwithstanding anything contained in any law or contract, no court shall pass any order, in favour of a landlord. . . . . . . . . . . . evicting the tenant. . . . . . . . . . . . unless it is satisfied, - (h) that the premises are required reasonably and bonafide by the landlord - (1) for the use and occupation of himself or his family; There is no definition of "family" in the Act. Its primary meaning is children, but that may be too narrow an interpretation. Consanguinity does not appear to be a pre-requisite of membership of a "family" and the word appears to have been used in its ordinary popular sense, and not as a technical term. A broad common sense view, taken with due regard to the facts and circumstances of each case, including the social order, the habits, the customs and the ideas of living of the community, would, therefore, be the most appropriate for the purpose of deciding whether a person is a member of another family or not. In arriving at this decision, I am much assisted by the various cases which have been cited at the Bar. I shall first refer to the English cases for they were decided earlier in point of time. In Smith Vs. Penny (1) it was held that the family is the unit of the civilisation and that the owner was entitled to an order for possession where he wanted a house as family home for the use and occupation of his two young children and a housekeeper, whether he intended to live in it himself or was unable to do so for some special reason. In Brook vs. Wollams (2) which is a leading case on the subject, Bucknill, L. J. referred to the two earlier cases of Salter Vs. Lark (3) and Price Vs. Gould (4 ). In Price Vs. Gould, Wright, J. , said that the primary meaning of 'family' is children, "but that primary meaning is clearly susceptible of wider interpretation. . . . . . " Following that view, Bucknill. L. J. saw no reason why, "giving the word 'family' its ordinary, popular meaning, an adopted child should not be included". Cohen, L. J. took the same view in his concurring judgment and laid down what, if I may say so with respect, appears to be the basic test for answering all such questions. The Lord Justice posed the question whether an ordinary man, addressing his mind to the question whether X was a member of the family or not, have answered "yes" or "no" ? He decided the controversy on his answer to that question and held that the ordinary man would not distinguish between a legally adopted child and a child adopted de facto in 1912 who lived with her adopted parents until her marriage in 1939 and returned to the house, as her home, in 1942, when she was widowed. The same test of Cohen, L. J. was adopted in Jones Vs. Whitehill (5) in answering, in the affirmative, the question whether the niece of the tenant's wife, who went to live with the tenant and nursed him and his wife until their deaths, was a member of the tenant's family when no child of their own was at any material time living with them in the house. Raymond Evershed, M. R. , however, took care to make the following observations, which have a special bearing on the present case : - "i am not suggesting necessarily that all nephews and nieces by marriage should be regarded as members of the tenant's family, but be it observed here that the defendant, a niece of Mrs. Dailey, assumed, out of natural love and affection, the duties and offices particularly attributable to members of a family, namely, they went to live with her uncle and aunt and looked after them in their declining years. On these facts I think that, if it were asked in an ordinary conversation : was the defendant a member of Mr. Bailey's family ?, an affirmative answer would be given. " Again, in Gammans Vs. Skins (6), the same question was posed and answered. The defendant had lived with the tenant of a dwelling-house for some twenty years. , but he had never been married to her although he had adopted her name and had posed as her husband. It was observed by Asquith, L. J. that the material decisions limit membership of the same family to three relationships - first, that of children ; secondly those constituted by way of legitimate marriage between husband and wife ; and thirdly. , relationships whereby one person becomes in loco parentis to another. The lord justice specifically remarked that "beyond that point the law has not gone". Accordingly, the defendant's claim was negatived. The question posed by Cohen, L. J. in Brook Vs. Wollams (2) was again taken to be the test in Langdon Vs. Mordon (7) where the tenant lived with her husband in the house till he died. There were no children and after her husband's death, the tenant invited the defendants, two of her first cousins, to live with her on a sharing basis. They did so until the tenant's death. It was held that the defendants were not members of the tenant's family. Evershed, M. R. , while dealing with the case, observed that the question for decision may arise in two distinct and rather different classes of case. "the first is where the only really relevant consideration is that of a blood relationship or consanguinity. The second is where, apart from or in addition to consanguinity (if any), there are special circumstances which require in that context an affirmative answer to the material question. *' The learned Master of the Rolls held that if the consanguinity test were treated as satisfied in the case it would "extend it to relatives of every degree, and, indeed, would mean that we were substituting for the word 'family' in the paragraph the word 'relations. " These English cases have been followed, more or less, in this country as well.
(3.) IN Shankarlal Shionarayan Rathi V. Additional Deputy Commissioner, Nagpur (8), the son was separate in residence but was joint in estate with the father and wanted to occupy the joint house for his own residence. It was held that his need could not be brushed aside as that of a mere relation of the landlord. IN V. M. Deshmukh Vs. K. M. Kothari (9), the wife wanted to run a maternity-home and it was held the business was of the husband. The learned judges made a reference to Smith V. Ponny (1 ). Ram Pershadsingh V. Mukandlal (10) was a case in which the premises were required by the landlord for the use of his nephews who were his only heirs and were the persons whom the landlord wanted to benefit. Besides, there was evidence to show that he set them by in business and got them married, and that oue of them was actually living with the landlord. It was in these circumstances that the nephews were regarded as the members of the landlord's family. IN giving his judgment Kapur J. , as he then was, referred, with approval, to the English cases of Brook Vs. Wollams (2) and Jenes Vs. Whitehill (5 ). IN Belabhadra Beharilal Vs. Premchand Lalchand (11) it was held that where a father affords support to his widowed daughter and her children, their needs become his needs. IN that case also, their Lordships referred to the cases of Smith V. Penny (1) and Jones Vs. Whitehill (5 ). IN B. N. Gupta Vs. Dr. Satyawati (12), the owner was a widow who had no son. She had an unmarried daughter, and a son-in-law at Agra. She wanted the premises for another son-in-law who was married to her husband's adopted daughter and it was pleaded that he would look after in her old age as she was suffering from heart trouble and he was a medical practitioner. The claim was, however, negatived and it was held that an adopted daughter and her husband could not be said to be members of the landlord's family in the circumstances of the case. The next case is that of D. R. Godse Vs. K. S. Ramachandra Iyer (13 ). It was held therein that the landlord was entitled to eviction of a tenant on the ground that the premises were required for the bonafide use of his mother and undivided brothers and their children. The decision, however, turned on the definition of the expression "member of his family" appearing in the Mysore House Rent and Accommodation Control Act of 1951 and the decision is therefore of no relevance for purposes of the present controversy although it was made use of by the learned Senior Civil Judge in justification of his finding against the present appellant. IN Bidhubhusan Sen Vs. Commissioner, Patna Division (14), the sister's son was not only living with the landlord, but was maintained by him. Their Lordships allowed the claim of the landlord on the ground that the premises were required for the occupation of the nephew for whose maintenance the landlord was found to be responsible. Then there is the case of Motilal Pannalal V. Kailash Narain (15) in which the expression ''personal requirement" was construed to mean the requirement of the accommodation for the landlord as also his wife and dependant children. The learned judge who decided the case took support for his view from the decision in Smith V. Penny (1 ). IN Kolandaivelu Chettiar V. Koolayana Chettiar (16) it was held that the landlord was entitled to apply for the eviction of the tenant on the ground that he required the building for establishing a separate residence for his son. IN G. L. Davar V. Amar Nath Kapur (17) it was held that a landlord could obtain the leased premises on the ground that he required them for his own accommodation or for the occupation of any dependent member of his family. The case was decided on the provisions of sec. 14 (1) (e) of the relevant Act which provided for the landlord's possession if he could, inter alia, show that the premises were required for any member of his family dependent on him. The decision is therefore not directly in point. In the remaining case of Balchand V. Mst. Mohani Bai (18), the judgment is of this Court. Mohani Bai was the owner of the premises. Nor husband's cousin had died and his widow, children and mother-in-law were living in a rented house, althogh they were maintained by Smt. Mohani Bai's husband. The landlord sued for possession on the ground that the suit premises were required for her family within the meaning of clause (h) (i) of sub-sec. (1) of sec. 13 of the Act. Modi J, who decided the case examined the meaning of the word "family" and reached the conclusion that having regard to the social habits and conditions and the modes of living in our country "the intention of the Legislature would be best served by putting an extensive meaning on the word. The learned Judge was in favour of putting an "extensive meaning" on the word "family" and he reached the conclusion that, broadly speaking, the word "family" would include a person's wife or husband and their children or his or her parents living with them as members of a common household; his or her brothers and sisters constituting a joint Hindu family; a widowed daughter or her children, a widowed sister or her children, a deceased brother's wife or her children; all these being dependent on and living with him or her". The learned Judge reached the conclusion that Smt. Mohani Bai was under no obligation to maintain the widow and children of her husband's cousin and that there was no certain positive tie of close relationship between them. He therefore negatived the landlord's claim. The learned Senior Civil Judge placed reliance on this case, but I find nothing in it to justify the conclusion that a nephew, in the circumstances of a case like the present, would be a member of his uncle's family. As I have stated earlier, a perusal of all these cases leads me to conclude that a broad common sense view, taken with due regard to the facts and circumstances of the case, would best answer the point in controversy. I would therefore pose to myself the question : would an ordinary man, addressing his mind to the question whether Radhey Shyam was a member of landlord's family, answer "yes" ? Radhey Shyam is not the son of the landlord and the question is whether there are any special circumstances which require an affirmative answer. To my mind there are no special circumstances and the answer must be in negative. The landlord has admitted that he has four children of his own. He did not look after Radhey Shyam from childhood upwards and did not even make a contribution towards the marriage. Radhey Shyam's father is alive. There is also nothing to show that Radhey Shyam is one of the heirs of the landlord. The landlord has not even stated that he will invest any money to establish his nephew in the new business to be started in the suit premises; not even that he will not charge any rent from him. The uncle and nephew are therefore members of the same family or stock, and no more. The ordinary man would therefore have no hesitation in giving the answer that Radhey Shyam is not a member of the landlord's family. It will be recalled that even in his notice Ex.-4 the landlord did not state that the nephew for whose business he required the possession of the suit shop, was a member of his family. The subsequent plea to that effect is clearly an after thought and must be negatived. The two courts below failed to examine and appreciate this basic and important aspect of the case. As has been mentioned; the trial court thought it sufficient that the landlord and his nephew were living together and that the nephew was dependent on the landlord. Mere residence cannot be enough, and the doctrine of economic dependence is too narrow to be of general application, for it may even exclude the landlord's son or wife (or husband) if they are shown to be economically independent. Even otherwise, Radhey Shyam has not been shown to be economically dependent on his uncle, the landlord, when the uncle did not bring him up from his youth, did not make any contribution towards his marriage and has not ventured to state that he would provide the funds for his new business. So also, the learned Judge of the lower appellate court went astray when he proceeded to examine the question of the existence of the joint Hindu family and, in that obser-sion, ignored the true point for decision. If the word "family" in clause (h) (i) of sub-sec. (1) of sec. 13 of the Act were to include the joint Hindu family to which the landlord belonged, that would, for obvious reasons, enlarged its scope to cover even distant relations as long as it could be shown that there was no partition of the family to which they belonged. This, I have no doubt could not be the intention of the legislature. As the lower appellate court has failed to understand the real point for determination in arriving at a finding of fact and has taken an erroneous view of the law, its finding has to be set aside even in second appeal. ;