It is very pertinent to note that in spite of the catena of judgments interpreting and construing the words "member of a family of the tenant and a family", the legislature has not budged from its position and has not moved to amend Section 5(11)(c) of the Act to reflect the precis of the judicial pronouncements In the Act in any manner. The Section 5(11)(c) has remained as it is though the Act has undergone surgery by way of amendments on a number of occasions at the hands of the Legislature to meet off-arising problematic situations. It is far more pertinent to note that even in the present Maharashtra Rents Act which has replaced the earlier Bombay Rents Act the Legislature has not taken cognizance of the interpretation of the words in Section 5(11)(c) and the Legislature has not enlarged the words "family and the member of a family". It would have been very easy for the Legislature to have removed all the doubts and difficulties which have created innumerable disputes giving rise to innumerable judgments by replacing the words "any member of the tenant's family" by "any person..... residing with the tenant at the time of his death." The Legislature has not enlarged the term used in the original Sub-section 5(11)(c) i.e. "any member of the tenant's family". The Legislature could have deleted the aforesaid words and could have put only one word "person" in place of "member of the tenant's family" to resolve all the so called construction and interpretation difficulties. The intention of the Legislature therefore is absolutely clear to retain the present construction in the Sub-section 5(11)(c) in the form in existence i.e. "any member of the tenant's family". It did not and it does not intend to give a wider meaning to the concept of family to include even a stranger as a member of the family. The Legislature did not and does not intend to depart from the ordinary meaning of the word "family" as understood in common parlance. We understand a family as consisting of father, mother, sons, daughters, sisters and all such blood relations and other relations arising from lawful marriages in the family. We don't include in the concept of family any one who is not related by blood and that is the whole purpose and intention of the Legislature not to remove the word "family" from the said provision. If it wanted to enlarge the meaning of the family it would have expressly said so. The Legislature wants to protect only the members of the family, who are bound by the blood relations and never any stranger however near he or she might be and however thick the love and affection bonds might exists. In my opinion the Legislature has not given any importance to such emotional and sentimental ideas In the Rent Control Act, which regulates relationship between the landlord and the tenant. It is enacted to protect the tenants and their families and not to create any rights in favour of strangers who have no blood relations with the tenant or his family. The Legislature never intended to wide open the umbrella of the Rent Act to give protection to every one who would claim to be a member of the tenant's family on one or the other ground of love and affection or close friendship or father like and son-like or such relationship. A tenant cannot be heard to say that the person residing with him is like his father or like his son or like his daughter or brother. There is no place for the words "like" or "as". The Act protects only those who were really blood relations of the tenant. The Legislature has not allowed any provision in respect of the relationship. The present protection is to the tenant and his family members with whom he has blood relations. The Legislature has been reasonable and moderate to grant protection to the tenant and extend the protection to the members of the family in the ordinary parlance as commonly understood in the society. The Legislature is fully conscious of the fact that it cannot fly at tangent to give protection to all such occupants of the tenanted premises at the cost of the landlord and the valuable property rights of the owners of the premises. The landlord rents out his premises to a tenant on certain terms and conditions which the tenant must observe and if such terms and conditions are observed by the tenant the landlord cannot evict him at his sweet will and in contravention of the provisions of the Rent Act. The Act protects the tenants at the same time controls the property rights of the landlords by imposing reasonable restrictions on them within the four corners of the Act. The rights of the landlords are not given a complete go by and are not extinguished altogether. If the Legislature intended that a tenant and all those who claim through him should be granted protection from eviction at any cost that would result in total extinguishment of the rights of the landlords and that would mean that the landlord has to write-off his property forever, as the tenants and all such strangers who would claim to be the members of their families talking love and affection would have grabbed the property forever and the same would be bequeathed for such love and affection at the cost of the landlord.
IN THE HIGH COURT OF BOMBAY
F.A. No. 490 of 1996
Decided On: 04.03.2002
Jaysen Jayant Rele Vs. Shantaram Ganpat Gujar and Ors.
Hon'ble Judges:
R.J. Kochar, J.
Citation: (2002) 6 Bom Rent cases 415
1. Like economics very often law also makes common sense difficult. The economists expound several theories and the lawyers formulate several propositions of law based on Judicial pronouncements and their own legal acumen. Otherwise the word "family" is not difficult to comprehend as legislated in Section 5(11)(c) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (the Bombay Rents Act). Both the learned counsel have cited innumerable Judgments in support of their respective contentions for interpretation of simple words "any member of the tenant's family........" occurring in that section.
2. In addition to the rulings of the Supreme Court and our High Court both the learned counsel have extensively read out to me a recent Judgment of the Appeal Court of United Kingdom reported in (1997) 4 All ER 991 Fitzpatric v. Sterling Housing Association. With respect to the Appeal Court I am not referring to the said judgment as in my humble opinion our social and economic conditions are different and we have our own legislation to meet the problems of our society. I have therefore not preferred to rely on or follow the said judgment in any respect. The learned Judges have also referred to several past precedents of their own Courts which reflect the problems which might be frequent in that society, and therefore, the solutions to such problems have definite context and relation with the local social conditions. For example we don't have tenancy problems arising out of homosexual or heterosexual couples in the context of our own concept of an Indian Family. The entire judgment is concerning such sexual problems only. I, therefore, do not wish to draw any wisdom or strength to decide problem posed in the present appeal.
3. The present appellants were the original plaintiffs who had filed a Civil Suit before the Bombay City Civil Court for the relief of mandatory Injunction to remove the defendants from the suit premises and for a decree to deliver to the plaintiffs peaceful, quiet and vacant possession of the suit flat with damages/compensation with interest and also mesne profits alleging that the defendants were wrongfully and illegally in use and occupation of the suit premises.
4. The plaintiffs are the owners of a building known as "Shankar Bhavan" situated at French Bridge, Mumbai 400 007, (the parties would be referred to as the plaintiffs and Defendants and the original tenant). One Shri P.S. Athwankar, was the original monthly tenant of the flat In the said building (hereinafter referred to as the suit flat). Shri Athwankar was residing in the said flat with his wife. The plaintiffs appear to have once terminated his tenancy by issuing a notice on 25-11-1965. Shri Athwankar had resisted the said notice and had replied that he was not liable to, be evicted. The plaintiffs kept quiet thereafter till 12-8-1985 when the plaintiffs had sent another notice through their Advocate calling upon him to vacate the suit flat as the same was required for their personal use, In reply to the said notice Shri Athwankar had denied that he was staying alone in the said flat and had pointed out that he was staying with the Defendant Nos. 1 and 2 and their son and that the Defendant No. 1 was residing in the flat since 1948 and after his marriage with the Defendant No. 2 all of them continued to reside with him. It was also pointed out that his wife had expired in August 1982. The case of Shri Athwankar, in nutshell, was that the defendant Nos. 1 and 2 and their son form his own family and that all of them were living together as members of his family. On 23-8-1985 the said Shri Athwankar expired. In reply to the notice dated 12-8-1985 addressed by the plaintiffs advocate to Shri Athwankar, the defendant No. 1 claimed to be one of the heirs and a member of the family of the deceased Athwankar. He further stated in his reply that he was staying with the deceased Athwankar in the said flat from 1948 and with his wife after his marriage and after the death of Shri Athwankar he became entitled to the tenancy of the flat and therefore he refused to vacate and hand over possession of the suit flat to the plaintiffs.
5. The plaintiffs filed the present suit against the defendant Nos. 1 and 2 for a mandatory injunction for removal of the defendants and for a decree for possession of the suit flat and also for damages and mesne profits. During the pendency of the suit by way of interim orders the Court had appointed a Court Receiver as Receiver of the said flat who was directed only to take formal possession of the suit flat and not to dispossess the defendant Nos. 1 and 2.
6. The defendant No. 1 filed his written statement resisting the suit and the prayers made by the plaintiffs therein on various grounds. In short the case of the defendant No. 1 was that he was residing with the deceased Athwankar from 1948 and that he was treated by Athwankar family as a member of the family, like a son, and that since after Shri Athwankar was confined to bed he ran the household and took over the entire responsibility, both materially and emotionally, including medical expenses of maintaining and treating Athwankar. He had also alleged that he was paying monthly rent of the suit fiat regularly. He also claimed to be one of the heirs of Shri Athwankar and a member of his family residing with him at the time of his death, and therefore, he claimed to be the tenant of the suit flat. He also took an alternative plea that since he was residing in the suit flat and was paying rent of the suit flat as the licensee of the said flat he was deemed to be a tenant under the Bombay Rent Act.
7. On the basis of the aforesaid pleadings the learned judge of the City Civil Court framed as many as 10 issues and answered the same against the plaintiffs after recording and considering the oral and documentary evidence adduced by both the parties. The learned Judge did not accept the case of the plaintiffs that the Defendant No. 1 was a domestic servant of the deceased Athwankar. He also held that since the Defendants No. 1 and 2 were occupying the suit premises with the express permission of the deceased Athwankar they could not be said to be in illegal possession of the suit flat and therefore, they could not be called as trespassers. The learned Judge however, found on the basis of two different castes of the deceased Athwankar and the defendants that the Defendant No. 1 could not be called and was not an heir of the said Shri Athwankar. It was specifically observed by the learned Judge that Shri Athwankar was a Brahmin by caste while the defendants were Marathas. He therefore observed that by no stretch of imagination it could be said that they were the heirs of the tenant Athwankar. The learned Judge, therefore, was clear in his conclusion that the Defendant No. 1 was not an heir of the deceased Athwankar. He was also not the domestic servant of Shri Athwankar. He was also not a trespasser of the suit flat. After recording the aforesaid findings the learned Judge proceeded to decide the next crucial issues whether the Defendant Nos. 1 and 2 were the members of Athwankar family as contemplated under Section 5(11)(c) of the Bombay Rents Act.
8. The learned Judge was impressed by the demeanour of the Defendant No. 1, Defendant No. 2 and Defendant No. 3. From their evidence the learned Judge firmly concluded that they were treated as members of the tenant's family. To come to the said conclusion the learned Judge had taken Into account several factors, namely, all of them were taking lunch and dinner together. The defendants looked after and took care of the deceased tenant and his wife for their daily needs and this was mentioned by the deceased tenant in his Will dated 2-10-1982 that the Defendant No. 1 had taken care of the deceased Athwankar and his wife, as if he was his son. Shri Athwankar had love and affection not only for the defendants but also the other two brothers of the defendant no. 1 who were also brought by Shri Athwankar from their village to Mumbai for education and employment and that they were also residing in the same flat. On account of the thick relationship with the deceased tenant a mutual bond of family was created and therefore, the defendants became members of the family of the deceased Athwankar.
As such the defendant No. 1 was handing over his entire pay package to Shri Athwankar and that he was also spending from his own income for the entire household.
Further, the Defendant No. 1 and the deceased Athwankar had opened a Joint bank account and that their names were also recorded in the ration card. From the aforesaid circumstances found from the record the learned Judge also gave emphasis to the Will left by the deceased Athwankar whereunder Shri Athwankar had not only bequeathed 25% of share of the Estate viz. fixed deposits in the Bank which amounted to Rs. 50,000/-, furniture, fixtures and other house hold utensils etc. but also the tenancy of the suit flat. Another fact which was referred to by the learned Judge was that it was the Defendant No. 1 who was requested by the nephew of the deceased Athwankar to light pyre of the deceased Athwankar. Shri Athwankar had no issues and therefore, it was the defendant No. 1 who was treated as the son of the deceased Athwankar to perform the death ceremony of Shri Athwankar. Considering the aforesaid circumstances the learned Judge held the Defendant No. 1 and his wife as the members of the family of the deceased tenant Shri Athwankar. He accounted the period of long association of 37 years between both of them to confer the tenancy rights on the Defendant Nos. 1 and 2.
9. Shri Parikh, the learned counsel appearing for the plaintiffs has assailed the Judgment from different angles. According to him, the defendant No. 1 had failed to bring on record any evidence that he was residing in the suit flat from 1948. He also pointed out that the case of the defendant No. 1 that he was running the household and was supporting Athwankar financially was disproved. According to Shri Parikh, the plaintiffs had proved that the Defendant No. 1 initially was the domestic servant of Shri Athwankar and after his marriage with the defendant No. 2 she also was engaged as domestic servant of the husband and wife Athwankar. The learned counsel, further stressed the point that there was no blood relationship or consanguinity between the deceased Athwankar and the Defendant No. 1 and they belonged to different castes or communities. Shri Parikh alternatively submitted that assuming that the Defendants were not domestic servants of the deceased Athwankar in no case they could be held as members of the Athwankar family within the meaning of Section 5(11)(c) of the Bombay Rents Act. The learned counsel emphasises the fact that even in the Will the Defendant No. 1 was mentioned as a trusted friend and helper. According to Shri Parikh, the Section 5(11)(c) of the Act gives protection to "any member of the tenant's family residing with the tenant at the time of his death, or, in the absence of such member, any heir of the deceased tenant". The learned counsel has submitted that the word "family" cannot be given an enlarged and very wide meaning to include one and all who might claim to be the members of the family. According to Shri Parikh, only blood relations are contemplated by the Legislature to be protected in the definition of family. According to the learned counsel, no strangers and not outsiders having no blood relation can be put under the Umbrella of a family. Shri Parikh has pointed out that to be a son of his father is different from to be like a son or like a father. According to Shri Parikh there is vest difference between the two concepts. The learned counsel finally submitted that the Act gives full protection to a tenant and to his family or any member of his family residing with him at the time of his death in the suit premises. The Act cannot be construed so widely to give protection to the strangers or outsiders who have absolutely no blood relation with the tenant or his family and therefore they cannot be Intended to be protected by the legislature. According to Shri Parikh the tenants were not the members of the Athwankar family, and therefore, they had no right to continue to occupy the suit flat and therefore, they were trespassers liable to be evicted from the suit flat.
10. Shri Navin Parekh, the learned counsel appearing for the original defendants has vehemently submitted that the definition of a member of the tenant's family should be construed as widely as possible so as to include any person who is found to be residing with the tenant at the time of his month. Shri Navin Parekh has pointed out that the Act is a beneficial piece of legislation needed to protect the tenants and in view of paucity of accommodation the Courts should give a liberal meaning to the words used in the Act so that the tenants being the weaker section of the society would get protection. Shri Parekh has pointed out from the evidence of all the factors enumerated by the learned trial Judge to conclude that the relationship between the deceased tenant Athwankar and the defendants was very very thick and there was a strong bond of love and affection between them and that such relationship was thicker than the blood relationship. Shri Parekh has pointed out that the Defendants were devoted to Athwankar couple as their own parents. Shri Parekh has further emphasised the fact that Defendant No. 1 was brought from the Village by Shri Athwankar when the Defendant No. 1 was seven years old in the year 1948 and since then he was continuously residing with Shri Athwankar. He was doing one and all things for Shri Athwankar. He had served him not only physically during his illness period but had also supported him financially. Shri Parekh also pointed out that even the Defendant No. 2 after her marriage with the Defendant No. 1 helped and served Mr. and Mrs. Athwankar till their death . Shri Navin Parekh criticised the evidence of the plaintiffs as not wholly trustworthy and that there were several statements on oath which go to discredit their testimony. Shri Parekh has attacked the theory of the plaintiffs that the Defendant No. 1 was called the domestic servant of Shri Athwankar merely because he was found doing some work in the house. Shri Parekh has also pointed out that the Defendant No. 1 was independently employed and was getting good salary, and therefore, there was no need or question for him to do the work of a domestic servant. Shri Parekh further pointed out that both the Athwankar couple was treating the Defendant No. 1 as their son and the Defendant No. 2 as their daughter-in-law. Shri Parekh has further pointed out that Shri Athwankar had not only got the Defendant No. 1 to go to school but also got him married and spent all the expenses and had also given marriage gifts to the young couple. The learned counsel further pointed out that during the Illness of both the defendants had taken every care and had nursed both of them like their own children. Shri Athwankar had appreciated the services of the defendants and the love and affection between them and as a token thereof he had bequeathed not only the tenancy rights but also a share in the fixed deposits and also the entire furniture, fixtures and utensils in the suit flat. Shri Parekh also pointed out that as a son the defendant No. 1 was required to light the pyre of the deceased and perform the last rites of the deceased Athwankar. In the circumstances and also relying on several authorities Shri Parekh supported the conclusions drawn by the learned trial Judge that the defendants were not the domestic servants of the deceased Athwankar family and they were the members of their family and that they could not be treated as trespassers and therefore, they cannot be evicted and are fully protected by the Bombay Rents Act.
11. Both the learned counsel have exhaustively referred to the oral evidence on record and both of them have cited and referred to more than 25 judgments including the judgment of the Court of Appeal of UK which has also referred to a number of old decisions of that country.
12. Before recording my findings and conclusions I may clarify that I have not discussed any of the aforesaid precedents though I have gone through the same with the help of learned counsel. One fact is certain that all the aforesaid precedents have their own peculiar facts and circumstances on which the conclusions and the ratios are based. There was no binding precedent or judgment which was cited by the learned counsel that the definition of a member of family of the tenant should be construed as widely as even to include a stranger not having any blood relation with the tenant.
13. It is very pertinent to note that in spite of the catena of judgments interpreting and construing the words "member of a family of the tenant and a family", the legislature has not budged from its position and has not moved to amend Section 5(11)(c) of the Act to reflect the precis of the judicial pronouncements In the Act in any manner. The Section 5(11)(c) has remained as it is though the Act has undergone surgery by way of amendments on a number of occasions at the hands of the Legislature to meet off-arising problematic situations. It is far more pertinent to note that even in the present Maharashtra Rents Act which has replaced the earlier Bombay Rents Act the Legislature has not taken cognizance of the interpretation of the words in Section 5(11)(c) and the Legislature has not enlarged the words "family and the member of a family". It would have been very easy for the Legislature to have removed all the doubts and difficulties which have created innumerable disputes giving rise to innumerable judgments by replacing the words "any member of the tenant's family" by "any person..... residing with the tenant at the time of his death." The Legislature has not enlarged the term used in the original Sub-section 5(11)(c) i.e. "any member of the tenant's family". The Legislature could have deleted the aforesaid words and could have put only one word "person" in place of "member of the tenant's family" to resolve all the so called construction and interpretation difficulties. The intention of the Legislature therefore is absolutely clear to retain the present construction in the Sub-section 5(11)(c) in the form in existence i.e. "any member of the tenant's family". It did not and it does not intend to give a wider meaning to the concept of family to include even a stranger as a member of the family. The Legislature did not and does not intend to depart from the ordinary meaning of the word "family" as understood in common parlance. We understand a family as consisting of father, mother, sons, daughters, sisters and all such blood relations and other relations arising from lawful marriages in the family. We don't include in the concept of family any one who is not related by blood and that is the whole purpose and intention of the Legislature not to remove the word "family" from the said provision. If it wanted to enlarge the meaning of the family it would have expressly said so. The Legislature wants to protect only the members of the family, who are bound by the blood relations and never any stranger however near he or she might be and however thick the love and affection bonds might exists. In my opinion the Legislature has not given any importance to such emotional and sentimental ideas In the Rent Control Act, which regulates relationship between the landlord and the tenant. It is enacted to protect the tenants and their families and not to create any rights in favour of strangers who have no blood relations with the tenant or his family. The Legislature never intended to wide open the umbrella of the Rent Act to give protection to every one who would claim to be a member of the tenant's family on one or the other ground of love and affection or close friendship or father like and son-like or such relationship. A tenant cannot be heard to say that the person residing with him is like his father or like his son or like his daughter or brother. There is no place for the words "like" or "as". The Act protects only those who were really blood relations of the tenant. The Legislature has not allowed any provision in respect of the relationship. The present protection is to the tenant and his family members with whom he has blood relations. The Legislature has been reasonable and moderate to grant protection to the tenant and extend the protection to the members of the family in the ordinary parlance as commonly understood in the society. The Legislature is fully conscious of the fact that it cannot fly at tangent to give protection to all such occupants of the tenanted premises at the cost of the landlord and the valuable property rights of the owners of the premises. The landlord rents out his premises to a tenant on certain terms and conditions which the tenant must observe and if such terms and conditions are observed by the tenant the landlord cannot evict him at his sweet will and in contravention of the provisions of the Rent Act. The Act protects the tenants at the same time controls the property rights of the landlords by imposing reasonable restrictions on them within the four corners of the Act. The rights of the landlords are not given a complete go by and are not extinguished altogether. If the Legislature intended that a tenant and all those who claim through him should be granted protection from eviction at any cost that would result in total extinguishment of the rights of the landlords and that would mean that the landlord has to write-off his property forever, as the tenants and all such strangers who would claim to be the members of their families talking love and affection would have grabbed the property forever and the same would be bequeathed for such love and affection at the cost of the landlord.
14. The Legislature has not given up the concept of protection to the family of a tenant. The family is a permanent and basic structure in the scheme of protection of tenant. There is no departure from the scheme though there are hundreds of the judgments under this Act construing the provisions of Section 5(11)(c). The Legislature has not budged even by changing a coma. It could have very well incorporated the Judicial liberal pronouncements in the newly enacted Rent Act. The Legislature wants to maintain the legitimate balance and equilibrium between the rights of the landlord and the protection to be given to the lawful tenants within the frame work of the Act.
15. The universal epigrammatically adage of "Vasudhaiva Kutumbkamb" was and is not unknown to the Legislature. The whole world is my family is the eternal message given by the age old sages. The Legislature however has not adopted or borrowed the said concept of family to include every one in its compass. It has in my opinion rightly restricted to the commonly known and plainly understood concept of family. Though there is no definition of a family in the Rent Act, the Legislature has explained in Section 6 of the Maharashtra Co-operative Societies Act, 1960 who is a member of a family. For the purposes of this Section and the explanation under Section 8 a member of a family means a wife, husband, father, mother, son or unmarried daughter. The context in which the aforesaid explanation is given is a membership of a Co-operative Housing Society to hold a flat or tenement in such a society. The Legislature has indicated that by a member of a family it contemplates only blood relations and no strangers are included as a member of a family. It cannot be contemplated that the legislative intention would take radical departure from one Act to another Act In respect of the terms which are normally used and understood in the society without making it explicitly clear.
16. In a judgment of the Supreme Court given under the Uttar Pradesh Urban Building (Regulation of Letting, Rent and Eviction) Act. 1972 in the case of Mohd. Azeem v. District Judge, Aligarh MANU/SC/0385/1985 : [1985]3SCR906 . The Legislature has wisely defined a family as under (at page 1119 of AIR) :
"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 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".
In my humble opinion the Legislature has clearly indicated what is meant by a family in the scheme of Rent Control and Eviction. There is no place for a stranger in the said definition. In a similar situation under the Delhi Control Act, 1958 a family is defined as spouse, son, daughter, parents, daughter-in-law. In paragraph 17 of the judgment in the case of Baldev Sahal Bangla v. R. C. Bhasin MANU/SC/0216/1982 : [1982]3SCR670 the Supreme Court has summarised what would consist a family, as under (at page 1093 of AIR) :
17. A conspectus of the connotation of the term 'family' which emerges from a reference to the aforesaid dictionaries clearly shows that the word 'family' has to be given not a restricted but a wider meaning so as to include not only the head of the family but all members or descendants from the common ancestors who are actually living with the same head. More particularly, in our country, blood relations do not evaporate merely because a member of the family -- the father, the brother or the son -- Leaves his household and goes out for some time. Furthermore, in our opinion, the legislature has advisedly used the term that any member of the family residing therein for a period of six months immediately before the date of the filing of the action would be treated as a tenant. The stress is not so much on the actual presence of the tenant as on the fact that the members of the family actually live and reside in the tenanted premises. In fact, it seems to us that Clause (d) of the proviso to Section 14(1) of the Act is a special concession given to the landlord to obtain possession only where the tenanted premises have been completely vacated by the tenant if he ceased to exercise any control over the property either through himself or through his blood-relations."
The Supreme Court has considered in the context of the aforesaid Rent Act definitions of family given in different Dictionaries the Supreme Court has specifically observed the real interpretation of a family and that is the national heritage. It is very significant to note that under the emphasis given by the Supreme Court to blood relations to construe a family. By construing the term family widely the Supreme Court has not included within the family those who do not have blood relations. Blood is the limit to consider a family relationship.
17-A. In the case of C. Krishna Prasad v. CIT Bangalore MANU/SC/0240/1974 : [1974]97ITR493(SC) , while considering the question under Income Tax Act the Supreme Court has accepted the meaning of family as is commonly understood. It is observed in paragraph 6 that "family" connotes a group of people related by blood or marriage. The Supreme Court has further referred to the meaning of family in the Shorter Oxford English Dictionary where the word "Family" is spelled out as the group consisting of parents and their children, 'whether living together or not, in wider sense, all those who are nearly connected by blood or affinity; a person's children regarded collectively; those descended or claiming descent from a common ancestor; a house, kindred, lineage; a race; a people or group of peoples. In another Judgment MANU/SC/0472/1988 : [1988]2SCR1068 , State of Gujarat v. Jat Laxmanji Talasji the Supreme Court has considered the meaning of family in the context of Gujarat Agricultural Land Ceiling Act, 1960. In paragraph 7 the Supreme Court has observed as under, (at page 828 of AIR) :
7. This reasoning is obviously fallacious. The expression 'family' has not been defined in the Act. One has therefore to go by the concept of family as it is commonly understood, taking into account the dictionary meaning of the expression. Collins, English Dictionary defines family as :
"a primary social group consisting of parents and their offspring, the principal function of which is provision for its members."
"a group of persons related by blood, a group descended from a common ancestor."
"all the persons living together in one household."
(Emphasis is given by me)
It is therefore crystal clear that the Supreme Court has always followed the meaning of "family" as is commonly understood without artificial stretching it to bring under the roof of family who are never related by blood or marriage. In no case the domestic servant is included as a member of the family, howsoever long association there might be and howsoever thick relationship there might be. In my humble opinion even liberalise and benevolence have their inherent limitations. Benevolence to one cannot harm another.
18. It is therefore not possible for me to interpret the Bombay Rent Act taking a radical or complete departure from the meaning given to the word "family" in the context of the common man and the national heritage. We cannot forget that the Bombay Rent Act like any other Rent Act is an enactment to control and define the relationship between a landlord and a tenant. It does not abolish or extinguish the property rights of the landlords or the property owners. The Rent Acts are enacted to balance the property rights and such balance cannot be disturbed by a so-called liberal interpretation for the word "family" by giving to it an artificial and unnatural meaning which was never intended by the Legislature. To include total a stranger on the basis of even real love and affection between the tenant and such a stranger would amount to violence to the natural meaning of a family. Such love and affection cannot be at the cost of the landlord or any other person who would be required to sacrifice his property in favour of those who are totally unknown and strange to him. The tenant can return his love and affection to such stranger in any other form of sacrifice of his own property. In the present case Shri Athwankar has demonstrated his love and affections towards the defendants by bequeathing the tenancy rights in his will on oath. In law he could not just bequeath the tenancy rights to any one. Fairly and rightly both he learned counsel have agreed to this legal position. What the original tenant has done was at the cost of the landlord and he had nothing to lose by showing his love and affection to them. 19. The original tenant had bequeathed 25% of his fixed deposits to the defendant No. 1 and not even the whole. The larger amounts were given to his nephew. No doubt the defendants have received old furniture, fixtures and utensils in the Will as a token of love and affection of the deceased tenant. Even if he were to give the entire moveable property to the defendants that would not have created a blood relationship between them which is the basis of the formation of a family. It is therefore not possible for me to enlarge the definition of a member of tenants family to include the defendants. The defendants therefore cannot claim the tenancy rights of the deceased tenant. The permission given by the landlord to the deceased tenant and his wife had come to an end with their death. There was no other relative or legal heir of the said tenant and therefore, the contention of the defendants to occupy the said premises without lawful authorisation or permission by the landlords amounts to trespassing and therefore, the defendants are trespassers on the suit premises and they are therefore liable to be evicted by the plaintiffs-landlords. The defendants might not be domestic servants but they were certainly not blood relations of the deceased tenant, and therefore, they did not become members of his family who were residing at the time of his death. The defendants therefore are not entitled to get protection of Section 5(11)(c) or any other provision of the Act.
19A. If we probe deeper in the facts without any emotional attachment it does appear that the defendant No. 1 was brought by the deceased tenant from his village for the purpose of help in his household affairs. In old age days that was a practice prevalent In middle class or higher middle class families to bring young boys from villages in the garb of giving them schooling and some employment. It was normal for the village people to send their boys to the City places like Bombay where they would earn and learn. The villagers had their poverty problem and therefore they were always obliged to their friends in Bombay who would take their boys to Bombay with a hope in their heart that instead of rusting in the village he would make his life better in the City. The same thing appears to have happened even in the present case. The original tenant Shri Athwankar brought the defendant No. 1 who happened to be a son of his friend for further education and employment. The theory that the deceased tenant has treated he defendant No. I as his son is belied by the very fact that the defendant No. 1 was not given schooling beyond VIIth Std. It appears that the defendant No. 1 had even failed at VIIth Std. It is possible that the defendant No. 1 might not be good at study but if the deceased tenant had treated him as his own son in the real sense he would have insisted for him to complete his higher education at least upto the stage of Graduation as he would have done in the case of his own son. He would have definitely pushed the defendant No. l upto matriculate if not upto graduation. He would have got him a good job but he would certainly not have liked his son to be a peon. If indeed the deceased tenant had really brought the defendant No. 1 for further and proper education being the son of his friend from the village he would have treated him differently as he would have done in the case of his own son. It was not unusual that such boys who were brought from the villages to do part time domestic work and in turn they got lodging and boarding and some meagre earning to be sent to their villages. I am, therefore, not totally averse to the idea of the plaintiffs when they have said that the defendant No. 1 was doing domestic work at the house of the deceased tenant. I simply totally cannot rule out that the defendant No. 1 was doing some kind of domestic work when at home. It is of course possible that the defendant No. 1 was "a 24 hours company" for the deceased tenant, and on account of stay together both had developed bondage of love and affection mutually and therefore, the deceased tenant had got him married and did whatever he could do as faithful friend of the father of the defendant No. 1. At this stage we also cannot lose sight of another fact that the defendant No. 1 was handing over his whole salary to the deceased tenant. It is always a case of give and take. It therefore cannot be ruled out that the defendant No. 1 was not a domestic servant. On account of 37 years company both were in love with each other and both regarded mutual requirement of love and affection. At the time of (sic) Mr. and Mrs. Athwankar both the defendants might have taken proper care of the patients. That still however does not create blood relationship between them.
20. It is further pertinent to note that along with the defendant No. 1 his other two brothers have also staked their claim for the tenancy of the suit flat. It is on record in the evidence of another brother of the defendant No. 1 (page 147 of the paper Book) that they have also expressed their desire to have share in the flat. Can we expand the definition of family or the definition of a member of family of the tenant to such an extent to include even the two brothers of the defendant No. 1? According to me, it would be ridiculous to stretch the law to this extent. Once we accept the definition of a member of a family as canvassed by Shri Parekh we will have to yield- to the demands of the two brothers of the defendant No. 1 and then there will be no end. Demands and the result would be that the plaintiffs-landlords would lose their valuable property forever. This certainly is not the intention of the Bombay Rents Act or any Rent Act for that matter. To read in the definition of 5 (11)(c) a person who has not a blood relation or marriage relations would mean to legislate which the Courts are forbidden. We cannot read the words which are not given or which are not used and which are specifically omitted to be used by the Legislature.
21. To construe a definition liberally is not to put any words in the mouth of Legislature. The intention of the Legislature has to be reasonably gathered from the history of the legislation and the circumstances which existed and which did not impel the Legislature to toe the line of the judicial pronouncements, though however there is no decision of any Court under this Act to include a stranger as a member, of the tenant's family. There is no decision under this Act whereby any person having no blood relation or relation out of marriage is treated as a member of the family merely on the basis of love and affection. I repeat, to do so would be to encroach upon the legislative area which the Courts cannot tread.
22. I am therefore not able to agree with the submission of Shri Navin Parekh that the defendants were the family members of the deceased tenant though they were not his blood relations. Even if he was not, a trespasser when he was allowed to occupy the suit premises by the deceased tenant, on the death of the tenant there was no authorisation or authority in him to continue to squat on the suit premises. The authorisation given by the deceased tenant had come to and end with him death. The defendants therefore were trespassers on the suit premises after the death of the deceased tenant. They had no right of any nature either as a tenant, lessee or licensee and therefore, the Bombay Rent Act did not apply to them and therefore they cannot be directed under the Rent Act and the plaintiffs landlord cannot be denied or deprived of the possession of their own property i.e. the suit flat. I am not able to agree with the findings recorded by the learned Trial Court to the effect that the defendants were the members of the deceased tenant's family even if they may not be exactly called as domestic servants. They were certainly not blood relations of the deceased tenant and therefore they were and they are liable to hand over quiet, peaceful and vacant possession of the suit flat to the plaintiffs-landlords.
23. I therefore quash and set aside the impugned Judgment and order of the City Civil Court and decree the suit in terms of prayer clauses (a) and (b) I am however in the given circumstances not inclined to grant any other relief prayed for by the plaintiffs in terms of prayer clauses (c) and (d). If the defendants would vacate the suit premises and deliver to the plaintiffs peaceful, quiet and vacant possession of the suit flat on or before 31-5-2002, if they do not comply with this order in that case the suit would also stand decreed in terms of prayer Clauses (c) and (d) also. The Appeal is allowed with no order as to costs. Certified copy is expedited.
24. Court Receiver to hand over the possession of the suit premises to the appellants.
25. Stay is refused.
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