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Civil Appeal Nos. 1305-1306 of 2017

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.1305-06 OF 2017

DURGA PRASAD ….. Appellant

Versus

NARAYAN RAMCHANDAANI (D) THR. LRS. …..     Respondents

J U D G M E N T

R. BANUMATHI, J.

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.

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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

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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

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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

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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,

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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

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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.

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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

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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

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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

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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

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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

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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.”

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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.

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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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