In the present case, the suit property was taken on rent by the
father-in-law of deceased tenant-Lalita that is Hem Ram Sharma and
after his death, his son Baldev (husband of Lalita) became tenant of the
suit property. Upon his death, Lalita became the tenant of the suit
property. Upon death of Lalita, in terms of Section 15(2)(b) of the Hindu
Succession Act, in the absence of any son or daughter of deceased
Lalita, the tenancy would devolve upon the heirs of her husband. Since
the appellant does not fall under the category of ‘heir’ of Lalita’s
husband, the tenancy of the suit property will not devolve on him nor
can he be called as an ‘heir’ under Section 3(a) of the U.P. Act XIII of
1972.
13. Section 3(g) defines ‘family’, in relation to landlord which includes
the spouse that is husband or wife of a person, male lineal descendants
which means his or her son, son’s son, son’s son’s son and so on,
parents, grandparents, unmarried, widowed, divorced daughter or
granddaughter, etc. The definition given in the clause is an inclusive
one and is supposed to be construed in its technical meaning which
implies what is not given has to be excluded as not forming part of the
family of landlord or tenant. Therefore, sisters and brothers of landlord
and tenant are excluded from his/her family. In the facts of present
case, the appellant being brother of deceased tenant cannot be held to
be the ‘family’ as the inclusive list given under the Act clearly omits
“brother and sister” and the same cannot be read therein as the list has
to be read and interpreted strictly.
14. Assuming, for the sake of arguments that the appellant is an heir
of Lalita, for devolution of tenancy, on the death of Lalita, the appellant
has to be a ‘tenant’ within the meaning of Section 3(a) of the U.P. Act
XIII of 1972. As per Section 3(a)(1), in the case of residential building,
in the event of death of a tenant, for heirs to be treated as tenant, the
statute requires them to prove that they have been normally residing
with the deceased tenant at the time of his/her death. The term used in
the section is ‘heir’ which implies that not any of the family member
residing with the tenant would succeed to the tenancy, but only the heirs
of tenant normally residing with him/her. The words “normally residing
with him” suggests that only those heirs would inherit the tenancy rights
of deceased tenant who resided with him ordinarily in normal course
and not temporarily. The legislative intent appears to be that only those
heirs would inherit tenancy who normally resided with the tenant and not
occasionally. In the present case, the appellant claims that he has been
carrying on business in the property along with his deceased sister
Lalita and had been ordinarily living with her because of the medical
business they were running. The appellant being the brother of
deceased-Lalita had no reason to normally reside with his married
sister. Be it noted, in her written statement filed in the release
application, Lalita has not averred that her brother-appellant Durga
Prasad was living with her and that he was taking care of her.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.1305-06 OF 2017
DURGA PRASAD V NARAYAN RAMCHANDAANI (D) THR. LRS.
Citation: AIR 2017 SC 915,(2017) 5 SCC69,2017(5) All MR 468(SC)
These appeals arise from the judgment of the High Court of
Uttarakhand at Nainital in Writ Petition(MS) No. 2729 of 2014 dated
09.03.2015 dismissing the writ petition and also the review petition,
thereby affirming the findings of Additional District and Sessions
Judge-VII, Dehradun that the appellant is an unauthorized occupant in
suit premises and that he does not come within the definition of ‘family’
of the deceased tenant as per Section 3(g) nor an ‘heir’ under Section
3(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and
Eviction) Act, 1972.
2. Brief facts which led to filing of these appeals are as under :
The respondent-landlord filed an eviction petition before the
Competent Authority/Civil Judge, (Senior Division) under Section 21(1)
(a) of U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act,
1972 (hereinafter referred to as the ‘U.P. Act XIII of 1972’) for release of
property from the tenant-Late Lalita Devi from the suit property bearing
No.6/7, Amrit Kaur Road, (New Road), Dehradun on the ground of his
bona fide need. Father-in-law of deceased Lalita Devi–Hem Ram
Sharma had taken the suit property on rent and after his death his son
Baldev (husband of Lalita) became the tenant of the suit property and
after the death of Baldev, Lalita became the tenant of suit property. The
appellant is the brother of deceased Lalita, who was the tenant of the
respondent herein. The application was dismissed vide order dated
19.04.2010 by the Prescribed Authority. Aggrieved by the said order,
respondent-landlord preferred an appeal under Section 22 of the U.P.
Act XIII of 1972 before the appellate court which was transferred to
Additional District Judge-VII, Dehradun. During the pendency of appeal,
tenant-Lalita Devi passed away on 06.07.2013. The
respondent-landlord moved a substitution application before the
appellate court with a prayer that the appellant, who is the real brother
of deceased, be substituted in her place. The said application was
allowed and the appellant was impleaded as a defendant/respondent in
the said appeal. The appellate Court allowed the said appeal vide order
dated 10.10.2014 holding that during the pendency of the appeal the
sole tenant-Lalita passed away and Durga Prasad, who has been
substituted is not a member of the ‘family’ and that he has not been able
to prove that he was previously residing with his sister Lalita in the said
premises. On those findings the appellate court set aside the order of
the prescribed authority and allowed the appeal. Thereafter the
appellant-tenant preferred a writ petition before the High Court which
was dismissed vide the impugned order dated 09.03.2015, holding that
the appellant does not come within the definition of ‘family’ as per
Section 3(g) of U.P. Act XIII of 1972. The High Court further held that
vacancy was liable to be declared on the demised premises, on the
death of sole tenant– Lalita, the review application filed by the appellant
also came to be dismissed vide order dated 31.08.2015. Both the orders
are impugned in these appeals.
3. Mr. Parthiv Goswami, learned counsel for the appellant contended
that the High Court erred in holding that the appellant is not a legal heir
or representative of the deceased tenant and the said finding is
perverse and contrary to the materials on record. Learned counsel
further submitted that on the death of the tenant Lalita,
respondent-landlord himself filed an application for substitution of the
present appellant as the legal heir of the deceased tenant Lalita and the
address of the appellant at the time of filing of the application was
shown as the same disputed property i.e. House No.6/7, Amrit Kaur
Road, Dehradun and which by itself establishes that appellant has been
residing in the said property at the time of death of tenant Lalita. The
learned counsel for the appellant has placed reliance upon Ganesh
Trivedi vs. Sundar Devi and Others (2002) 2 SCC 329 to contend that
the brother would inherit the tenancy and would fall within the definition
of ‘family’.
4. Learned counsel for the respondent-landlord submitted that the
High Court rightly held that the appellant being brother of tenant Lalita
is not a member of the ‘family’ as defined under Section 3(g) of the U.P.
Act XIII of 1972 and the appellant being an unauthorized occupant, the
High Court rightly ordered to be evicted. It was further contended that
the tenant of the suit premises was Lalita and that tenant was a female
Hindu and on her death, the devolution of tenancy will be determined
as per Section 15(2)(b) of the Hindu Succession Act and since the
appellant does not fall under the category of ‘heir’ of the husband of
Lalita, the High Court rightly dismissed the writ petition as well as the
review petition and the impugned orders do not warrant interference.
5. We have carefully considered the rival contentions and perused
the impugned order and the materials on record.
6. The question for consideration is whether the appellant-brother of
the deceased tenant-Lalita is included in the definition of ‘family’ under
Section 3(g) or an ‘heir’ under Section 3(a) of the U.P. Act XIII of 1972.
7. For proper appreciation of the question and the contentions
raised, it is apposite to refer to relevant provisions of Section 3 of the
U.P. Act XIII of 1972 which defines the term ‘tenant’ and ‘family’ as
under:-
“3 (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
normally resided with him in the building at the time of his
death;
(2) in the case of a non-residential building, his heirs;
[Explanation – An occupant of a room in a hotel or a lodging
house shall not be deemed to be a tenant];
……………
(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, grandparents and any unmarried or widowed
or divorced or judicially separated daughter or daughter of a
male lineal descendant, as may have been normally residing
with him or her,
and includes, in relation to a landlord, any female having a legal right
of residence in that building.”
8. Section 12 of the U.P. Act XIII of 1972 relates to deemed
vacancies of a building which reads as under:-
“12. Deemed vacancy of building in certain cases – (1) A landlord
or tenant of a building shall be deemed to have ceased to occupy the
building or a part thereof if-
(a) he has substantially removed his effects therefrom; or
(b) he has allowed it to be occupied by any person who is
not member of his family; or
(c) in the case of a residential building, he as well as
members of his family have taken up residence, not
being temporary residence, elsewhere.
(2) In the case of non-residential building, where a tenant carrying on
business in the building admits a person who is not a member of his
family as a partner or a new partner, as the case may be, the tenant
shall be deemed to have ceased to occupy the building.
(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:
……….
9. A careful analysis of the above provisions indicates that Section
3(a) uses the word ‘heir’. Definition in Section 3(a) deals with the
contingency when a tenant dies. It is significant to note that the word
“family member” is absent in Section 3(a). “Family member” is defined
under Section 3(g) of the U.P. Act XIII of 1972 and is also referred to in
Section 12 of the U.P. Act XIII of 1972. The word ‘heir’ in Section 3(a) is
used in relation to a ‘tenant’ who has to succeed as “tenant on the
tenant’s death”; while ‘family’ is used in Section 12 which deals with a
situation of an existing tenant. The definition of ‘family’ as occurring in
Section 3(g) may not be relevant for the purposes of determining the
question as to who would become tenant on the death of original tenant,
since Section 3(a) uses the word ‘heir’.
10. In the present case, we are dealing with the case as to who would
become ‘tenant’ on the death of Lalita. Hence, the definition of ‘family’ is
not relevant for the purposes of determining as to who would become
tenant on the death of tenant Lalita. The only question falling for
consideration is whether the appellant-brother of the tenant Lalita is an
‘heir’ under Section 3(a) of the U.P. Act XIII of 1972. The word ‘heir’ is
not defined in the Act. ‘Heir’ is a person who inherits or may inherit by
law. Section 3(1)(f) of the Hindu Succession Act defines ‘heir’ as ““heir”
means any person, male or female, who is entitled to succeed to the
property of an intestate under this Act;”. The word ‘heir’ has to be given
the same meaning as would be applicable to the general law of
succession. In the present case, as pointed out by the High Court, the
deceased tenant-Lalita being a hindu female, the devolution of tenancy
will be determined under Section 15 of the Hindu Succession Act.
11. Section 15 of the Hindu Succession Act lays down the general
order of succession to the property of a female intestate who dies after
the commencement of the Hindu Succession Act and states the scheme
of succession to her property which is different from that of order of
succession to the property of a male intestate. Sub-section (2) of
Section 15 carves out two exceptions to the general scheme and order
of succession. We are concerned with clause (b) of sub-section (2) of
Section 15 as noted above which has been grafted as an exception to
the provisions relating to the general order of succession to the property
of a female intestate. Section 15(2)(b) of the Hindu Succession Act
reads as under:-
“Section 15. General rules of succession in the case of female
Hindus
(1) …………
(2) Notwithstanding anything contained in sub-section (1),-
(a)……….
(b). Any property inherited by a female Hindu from her husband or
from her father-in-law shall devolve, in the absence of any son or
daughter of the deceased (including the children of any predeceased
son or daughter) not upon the other heirs referred to in sub-section (1)
in the order specified therein, but upon the heirs of the husband.”
The exception carved out in Section 15(2)(b) provides for a special
order of succession in case of property inherited by her from her
husband or her father-in-law; but its operation is confined to the case of
her dying without leaving a son or a daughter or children of
pre-deceased children to inherit her property. Language used in the
section clearly specifies that the property inherited from the husband
and father-in-law would devolve upon the heirs of husband/father-in-law
from whom she inherited the property. We may usefully refer to the
decision of this Court in the case of V. Dandapani Chettiar v.
Balasubramanian Chettiar (Dead) by Lrs. And Others, (2003) 6 SCC
633, and the relevant para reads hereunder:-
"10. Sub-section (2) of Section 15 carves out an exception in case of a
female dying intestate without leaving son, daughter or children of a
predeceased son or daughter. In such a case, the rule prescribed is to
find out the source from which she has inherited the property. If it is
inherited from her father or mother, it would devolve as prescribed
under Section 15(2)(a). If it is inherited by her from her husband or
father-in-law, it would devolve upon the heirs of her husband
under Section 15(2)(b). The clause enacts that in a case where the
property is inherited by a female from her father or mother, it would
devolve not upon the other heirs, but upon the heirs of her father. This
would mean that if there is no son or daughter including the children of
any predeceased son or daughter, then the property would devolve
upon the heirs of her father. Result would be -- if the property is
inherited by a female from her father or her mother, neither her
husband nor his heirs would get such property, but it would revert back
to the heirs of her father."
12. In the present case, the suit property was taken on rent by the
father-in-law of deceased tenant-Lalita that is Hem Ram Sharma and
after his death, his son Baldev (husband of Lalita) became tenant of the
suit property. Upon his death, Lalita became the tenant of the suit
property. Upon death of Lalita, in terms of Section 15(2)(b) of the Hindu
Succession Act, in the absence of any son or daughter of deceased
Lalita, the tenancy would devolve upon the heirs of her husband. Since
the appellant does not fall under the category of ‘heir’ of Lalita’s
husband, the tenancy of the suit property will not devolve on him nor
can he be called as an ‘heir’ under Section 3(a) of the U.P. Act XIII of
1972.
13. Section 3(g) defines ‘family’, in relation to landlord which includes
the spouse that is husband or wife of a person, male lineal descendants
which means his or her son, son’s son, son’s son’s son and so on,
parents, grandparents, unmarried, widowed, divorced daughter or
granddaughter, etc. The definition given in the clause is an inclusive
one and is supposed to be construed in its technical meaning which
implies what is not given has to be excluded as not forming part of the
family of landlord or tenant. Therefore, sisters and brothers of landlord
and tenant are excluded from his/her family. In the facts of present
case, the appellant being brother of deceased tenant cannot be held to
be the ‘family’ as the inclusive list given under the Act clearly omits
“brother and sister” and the same cannot be read therein as the list has
to be read and interpreted strictly.
14. Assuming, for the sake of arguments that the appellant is an heir
of Lalita, for devolution of tenancy, on the death of Lalita, the appellant
has to be a ‘tenant’ within the meaning of Section 3(a) of the U.P. Act
XIII of 1972. As per Section 3(a)(1), in the case of residential building,
in the event of death of a tenant, for heirs to be treated as tenant, the
statute requires them to prove that they have been normally residing
with the deceased tenant at the time of his/her death. The term used in
the section is ‘heir’ which implies that not any of the family member
residing with the tenant would succeed to the tenancy, but only the heirs
of tenant normally residing with him/her. The words “normally residing
with him” suggests that only those heirs would inherit the tenancy rights
of deceased tenant who resided with him ordinarily in normal course
and not temporarily. The legislative intent appears to be that only those
heirs would inherit tenancy who normally resided with the tenant and not
occasionally. In the present case, the appellant claims that he has been
carrying on business in the property along with his deceased sister
Lalita and had been ordinarily living with her because of the medical
business they were running. The appellant being the brother of
deceased-Lalita had no reason to normally reside with his married
sister. Be it noted, in her written statement filed in the release
application, Lalita has not averred that her brother-appellant Durga
Prasad was living with her and that he was taking care of her. As rightly
held by the Courts below, Durga Prasad is neither a ‘heir’ within the
meaning of Section 3(a) nor fall under the definition of ‘family’ as per
Section 3(g) of the Act.
15. As discussed earlier, originally Lalita’s father-in-law-Hem Ram
Sharma took the premises on rent in the year 1940. After his death,
Lalita Devi’s husband-Baldev became the tenant of the suit property and
after Baldev’s death, Lalita become the tenant of the suit property.
During the pendency of the appeal before the First Appellate Court,
Lalita expired on 06.07.2013. Thereafter, the respondent-landlord
moved a substitution application before the appellate court to substitute
the appellant who is the real brother of deceased-Lalita. On that
application, the appellant was impleaded as a defendant-respondent in
the said appeal. As pointed out by the High Court, the present appellant
may have been ‘rightly’ or ‘wrongly’ substituted after the demise of his
sister. Merely because the appellant has been substituted in the place
of tenant-Lalita, the appellant cannot become a ‘heir’ who normally
resided with the tenant Lalita.
16. Learned counsel for the appellant placed reliance on Ganesh
Trivedi (supra), wherein this Court found, as a matter of fact, that
brother was residing in the tenanted premises and, therefore, tenancy
rights will devolve upon him on the death of original tenant within the
meaning of Section 3(a)(g) read with Section 12(1)(b) of the U.P. Act XIII
of 1972. This is evident from the following observation made in paras
(9) and (10) of judgment which are reproduced as under:
“9. The brother of a tenant is not included in the definition of “family”.
However, the present one is not a case where the tenant Suraj Prasad
had during his lifetime taken up residence elsewhere and/or allowed
the suit premises to be occupied by his brother. Deo Narain, being the
real brother of late Suraj Prasad, the tenant, had come to stay with his
brother and was residing along with him as such, even at the time of
death of Suraj Prasad. It will not therefore be correct to say that
applicability of clause (b) of sub-section (1) of Section 12 of the Act
was attracted to the suit premises during the lifetime of Suraj Prasad
and a deemed vacancy had occurred. On the death of Suraj Prasad
tenancy rights devolved on Deo Narain, he being the only heir. He too
became a “tenant” within the meaning of clause (a) of Section 3. The
decision of the High Court cannot, therefore, be faulted.
10. There is yet another reason why no interference with the impugned
order of the High Court is called for. Shri Upadhyay, the learned
counsel for Respondents 1 to 3 invited our attention to the pleadings
and pointed out that admittedly the sale deed executed by Jagdamaba
Prasad Awasthi in favour of Ganesh Trivedi, the appellant, contains
recitals to the effect that the former owner-landlord was well aware of
Deo Narain occupying the suit premises after the death of Suraj
Prasad, that he was acknowledged by the landlord as tenant in the
premises, and that rent was also paid by Deo Narain to the landlord
under receipts issued by the landlord though Deo Narain had fallen
into some arrears of rent at the time of sale of the suit premises in
favour of the appellant. Such admissions made by Jagdamaba Prasad
Awasthi are binding on Ganesh Trivedi, the appellant, inasmuch as the
same are contained in the sale deed by which title has been derived
by the appellant and thereunder the appellant has stepped into the
shoes of the previous owner-landlord. Deo Narain’s status as tenant in
occupation of the suit premises, cannot, therefore, be doubted or
disputed by the appellant.”
The aforesaid decision has been rendered in view of proven facts in the
said case and, therefore, has no application to the facts of the present
case.
17. Upon appreciation of the facts and evidence, the first appellate
court and the High Court rightly held that the appellant is neither an
‘heir’ as visualized under Section 3(a) of the U.P. Act XIII of 1972 nor
‘family’ within the meaning of Section 3(g) of the Act and that the
appellant is in unauthorized occupation of the suit premises and is liable
to be evicted. The High Court has directed the District Magistrate to
pass appropriate orders under Section 16 of the U.P. Act XIII of 1972 on
the release application of the landlord without further delay preferably
within three weeks from the date of judgment of the High Court that is
09.03.2015. Father-in-law of Lalita had taken the suit premises on rent
in the year 1940. In the facts and circumstances of the case, without
relegating the matter to the District Magistrate to pass orders on the
release application of the respondent-landlord, we deem it appropriate
to direct the appellant to hand over vacant possession to the
respondent-landlord.
18. In the result, the appeals are dismissed. We direct the appellant
to hand over the vacant possession of the suit premises to the
respondent-landlord within four weeks from the date of this order failing
which the appellant shall be liable for contempt of this Court.
...……………………….J.
[DIPAK MISRA]
.………………………..J.
[R. BANUMATHI]
New Delhi;
February 07, 2017.
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