Full Judgment Text
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PETITIONER:
SHRI HARISH TANDON
Vs.
RESPONDENT:
THE ADDL.DISTRICT MAGISTRATE, ALLAHABAD, U.P. AND OTHERS.
DATE OF JUDGMENT05/01/1995
BENCH:
SINGH N.P. (J)
BENCH:
SINGH N.P. (J)
SAWANT, P.B.
ANAND, A.S. (J)
CITATION:
1995 AIR 676 1995 SCC (1) 537
JT 1995 (1) 290 1995 SCALE (1)65
ACT:
HEADNOTE:
JUDGMENT:
1. This appeal has been filed against an order dated
21.9.1992 passed by the Allahabad High Court on a Writ
Petition filed on behalf of Respondent Nos.5 to 7. By the
impugned order, the High Court has quashed orders dated
13.8.1981 and 18.11.1981 passed by the Rent Controller
declaring a vacancy under Section 12(2) read with Section
12(4) of the U.P. Urban Buildings (Regulation of Letting,
Rent and Eviction) Act, 1972 (hereinafter referred to as
’the Act’).
2. The dispute is in respect of a shop bearing Municipal
No.24-34 situated at Mahatma Gandhi Marg, Civil Lines Mar-
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ket, Allahabad. In the year 1937, the shop was let out to
late Sheobux Roy by the grand father of the appellant. The
said Sheobux Roy started a business in the name and style of
"M/s. B.N. Rama & Co.". Sheobux Roy died on 3.2.1941 leav-
ing behind five sons namely Khush Bakht Roy, Sant Bux Roy,
Sampat Roy, Ganpat Roy and Sheopat Roy. In the year 1943,
there was a family partition amongst the sons of Sheobux
Roy and the shop in dispute fell to the share of Sampat Roy,
Ganpat Roy and Sheopat Roy. The other two sons ceased to
have any interest or concern with the shop in question.
Sampat Roy, Ganpat Roy and Sheopat Roy were carrying on
their business in the name and style of "M/s. B.N. Rama &
Co.". In the year 1976, Ganpat Roy and his son Ramesh Roy
constituted a new partnership firm with one Swarup Kailash,
son-in-law of Ganpat Roy under the name and style of "M/s.
B.N. Rama & Co.(Textiles)" for carrying on the business in
textile, in the premises in question. In the year 1979, the
appellant filed suit for eviction of the respondent-tenants
(hereinafter referred to as ’the respondents’) on the ground
that there was a sub-letting of the premises by induction of
Swarup Kailash, the son-in-law of Ganpat Roy as a partner
for carrying on the business in the shop in dispute.
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3. In March 1981, one Ramesh Nath Kapur and Radhey
Shyam filed an application for allotment of the said
premises to them, on the ground that there was a deemed
vacancy of the premises. The Rent Controller and Eviction
Officer by his order dated 13.8.1981 held that there was a
deemed vacancy in respect of the said premises and he
directed that the said vacancy be notified. A petition was
filed by the respondents on 11.9.1981 making prayer to
recall the aforesaid order dated 13.8.1981 and to give them
permission to file objections and to contest the proceed-
ings. That petition was allowed by the Rent Controller and
Eviction Officer by his order dated 13.9.198 1. The Rent
Controller and Eviction Officer by his order dated
18.11.1981 negatived the contention of the respondents that
there was no deemed vacancy in respect of the premises in
question. Thereafter a Writ Application was filed on behalf
of the respondents which was dismissed by the High Court
saying that it was not maintainable. The Respondents filed
a Special Leave Petition before this Court against the
aforesaid order of the High Court. This Court allowed their
appeal on 29.3.1985 and directed the High Court to rehear
the Writ Petition filed by the respondents on merits. It
was further said by this Court that pending disposal of the
writ petition before the High Court, there shall be a stay
of further proceedings in respect of the allotment of the
premises in question and the respondents shall not be
dispossessed from the same.
4. The Writ Petition, aforesaid, was ultimately allowed by
the impugned order dated 21.9.1992 by the High Court on the
finding that after the death of Sheobux Roy on 3.2.1941, his
sons became tenants in common and not joint tenants. As
such for any contravention made by Ganpat Roy one of the
sons of Sheobux Roy by inducting his son-in-law as a partner
of the firm shall not result into deemed vacancy of the
whole premises under the provisions of the Act. It is this
finding which has been put in issue before us.
5. In order to appreciate the controversy, it is necessary
to refer to certain
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provisions of the Act. Section 3(g) defines ’family’ :
"Section 3(g) "family", in relation to a
landlord or tenant of a building, means, his
or her
(i) spouse,
(ii) male lineal decedents,
(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;"
Section 12 of the Act prescribes the conditions under which
deemed vacancy shall occur. The relevant part thereof is as
follows :
Section 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 a member of his family, or
(c) in the case of a residential building,
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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 o
f
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:
Provided that if the tenant or any member of
his family had built any such residential
building before the date of commencement of
this Act, then such tenant shall be deemed to
have ceased to occupy the building under his
tenancy upon the expiration of a period of one
year from the said date.
Explanation For the purposes of this sub-
section -
(a) a person shall be deemed to have
otherwise acquired a building, if he is oc-
cupying a public building for residential
purposes as a tenant, allottee or licensee;
(b) the expression "any member of family",
in relation to a tenant, shall not include a
person who has neither been normally residing
with nor is wholly dependent on such tenant.
.................................
(4) Any building or part which a landlord or
tenant has ceased to occupy within the meaning
of sub-section (1), or sub-section (2), or
sub-section (3), subsection (3-A) or sub-
section (3-B), shall, for the purposes of this
Chapter, be deemed to be vacant.
In view of sub-section (2) of Section 12, in case of non-
residential building, if the
296
tenant admits a person who is not a member of his family as
a partner, the tenant shall be deemed to have ceased to
occupy the building and by virtue of sub-section (4) of
Section 12, such building shall be deemed to be vacated.
6. Section 25 enjoins that no tenant shall sub-let the
building under his tenancy and it also prescribes as to what
shall amount to a deemed sub-letting
"25. Prohibition of sub-letting (1) No
tenant shall sub-let the whole of the building
under his tenancy.
(2) The tenant may with the permission in
writing of the landlord and of the District
Magistrate, sub-let a part of the building.
Explanation For the purposes of this section
(i) where the tenant ceases, within the meaning
of clause (b) of sub-section (1) of sub-
section (2) of Section 12, to occupy the
building or any part thereof, he shall be
deemed to have sub-let that building or part;
(ii) lodging a person in a hotel or a lodging
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house shall not amount to subletting. "
7. In view of explanation (i) of Section 25, where the
tenant is deemed to have ceased to occupy the building under
sub-section (2) of Section 12 aforesaid, he shall be deemed
to have sub-let that building or part thereof Once a tenant
carrying on business in a non-residential building, admits a
person who is not a member of his family as a partner, the
said tenant shall be deemed to have ceased to occupy the
building and by operation of the explanation (i) of Section
25, it shall be deemed that such tenant has sub-let that
building or part thereof, which shall be a ground for
eviction of such tenant because of section 20(2)(e) which
specifically says that a suit for eviction of a tenant from
building after determination of his tenancy may be
instituted on the ground "that the tenant has sub-let, in
contravention of the provisions of Section 25, or as the
case may be, of the old Act the whole or any part of the
building".
8. It may be mentioned that before this Court, there was
no dispute in respect of the facts stated above. It is an
admitted position that the premises in question were let out
to Sheobux Roy who died in the year 1941 leaving behind five
sons. Later only three of his sons Ganpat Roy, Sampat Roy
and Sheopat Roy carried on their business in the said
premises. It is also admitted that on 19.8.1976, Ganpat Roy
inducted his son-in-law, Swarup Kallash, as one of the
partners in the firm "M/s. B.N. Rama & Co. (Textiles)" for
carrying on the business in textile in the disputed pre-
mises. The controversy between the parties is in respect of
(i) as to whether in the facts and circumstances of the
case, there shall be a deemed vacancy because of subsection
(2) and sub-section (4) of Section 12; (ii) whether because
of explanation (i) of Section 25, it shall amount to sub-
letting within the meaning of Section 20(2)(e) a ground for
eviction of the respondents; (iii) even if it is held that
because of the induction of Swarup Kailash as a partner in
the firm, which amounted to a sub-letting within the meaning
of Section 25 of the Act, whether the whole premises shall
be deemed to be vacant.
9. It cannot be disputed that a son-in-
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law shall not be deemed to be a member of the family within
the definition as given in the Act under Section 3(g).
Section 12(2) says that in case of non-residential building,
where tenant admits a person who is not a member of his
family as a partner, the tenant shall be deemed to have
ceased to occupy the building. By induction of Swarup
Kailash, the son-in-law of Ganpat Roy, as a partner in the
firm, sub-section (2) of Section 12 is attracted.
10. According to the learned counsel for the respondent
tenants, the object of sub-section (2) is to exclude and
restrict the unauthorised induction of persons as partners
in a firm with primary object to pass on the tenancy to such
persons after their induction. In other words, sub-section
(2) of Section 12 imposes a restriction on the tenant in
sub-letting the premises or part thereof, by the device of
inducting any person as a partner in the business. As such,
before it is held that the induction of Swarup Kailash
amounted to sub-letting of the premises, a finding has to be
recorded that the object of inducting Swarup Kailash as a
partner of the firm was, to actually and factually sub-let
the premises to him. His induction as a partner was a
design and device to circumvent the consequence provided
under Section 20(2)(e) ejectment from the premises.
11. It is true that the primary object of sub-section (2)
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of Section 12 appears to be to check and restrict sub-
letting of premises or part thereof by the original tenant
by inducting any person who is not a member of the family
within the meaning of the Act as a partner in the business.
But the special feature of sub-section (2) of Section 12 is
that there is a deeming clause in the said subsection. If
the said sub-section ha provided that where a tenant
carrying on business in the building admits a person who is
not a member of his family as a partner, it shall amount to
sub-letting of the premises, then there was scope for
investigation and examination as to whether, in the process
of inducting such person as a partner in the business in
fact there has been a sub-letting of the premises. But sub-
section (2) says in clear and unambiguous words that once a
person who is not a member of the family is admitted as a
partner in the business by the tenant, ’the tenant shall be
deemed to have ceased to occupy the building’.
12. On behalf of the respondents, it was urged that the
expression ’deemed’ occurring in sub-sections (2) and (4) of
Section 1.2 as well as in the explanation (i) of Section 25
should not be read as conclusive. It should be read as
’deemed until the contrary is proved. Reference was made to
the cases Gray v. Kerslake, (1957) Vol.II Dominion Law
Reports (2nd Series) page 225 (at p. 239); Robert Batcheller
& Sons. Limited v. Batcheller, (1945) 1 Chancery Division
169; and Spencer v. Kennedy (1926) 1 Chancery Division 125,
where it was observed that if the word ’deemed’ is held to
be conclusive, then it shall amount to imputing to the
Legislature the intention of requiring the Court to hold as
a fact something directly contrary to the true fact. It was
also said that such deemed clauses should be read to mean as
required by the statute, until the contrary is proved.
13. The role of a provision in a statute creating legal
fiction is by now well settled. When a Statute creates a
legal fiction saying that something shall be deemed to have
been done which in fact and truth has not been done, the
Court has to examine and
298
ascertain as to for what purpose and between what persons
such a statutory fiction is to be resorted to. Thereafter
full effect has to be given to such statutory fiction and it
has to be carried to its logical conclusion. In the well
known case of East End Dwellings Co. Ltd. v. Finbsbury
Borough Council, (1952) A.C. 109(B), Lord Asquith while
dealing with the provisions of the Town and County Planning
Act, 1947, observed :
"If you are bidden to treat an imaginary state
of affairs as real, you must surely, unless
prohibited from doing so, also imagine as real
the consequences and incidents which, if the
putative, state of affairs had in fact
existed, must inevitably have flowed from or
accompanied it..... The statute says that you
must imagine a certain state of affairs; it
does not say that having done so, you must
cause or permit your imagination to boggle
when it comes to the inevitable corollaries of
that state of affairs."
That statement of law in respect of a statutory fiction is
being consistently followed by this Court. Reference in
this connection may be made to the case of State Bombay v.
Pandurang Vinayak and others, AIR 1953 SC 244 = 1953 SCR
773. From the facts of that case it shall appear that
Bombay Building (Control on Erection) Ordinance, 1948 which
was applicable to certain areas mentioned in the schedule to
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it, was extended by a notification to all the areas in the
province in respect of buildings intended to be used for the
purposes of cinemas. The Ordinance was repealed and
replaced by an Act which again extended to areas mentioned
in the schedule with power under sub-section (3) of Section
1 to extend its operation to other areas. This Court held
that the deemed clause in Section 15 of the Act read with
Section 25 of the Bombay General Clauses Act has to be given
full effect and the expression ’enactment’ in the Act will
cover the word ’Ordinance’ occurring in the notification
which had been issued. In that connection it was said :
"The corollary thus of declaring the
provisions of S.25, Bombay General Clauses
Act, applicable to the repeal of the ordinance
and of deeming that ordinance an enactment is
that wherever the word "ordinance" occurs in
the notification, that word has to be read as
an enactment. "
14. In the case of Chief Inspector of Mines and another
etc. v. Karani Chand Thapar etc., AIR 1961 SC 838 = 1962(1)
SCR 9, it was said:
"Were these regulations in force on the
alleged date of contravention? Certainly,
they were, in consequence of the provisions of
S.24 of the General Clauses Act. The fact
that these regulations were deemed to be
regulations made under the 1952 Act does not
in any way affect the position that they were
laws in force on the alleged date of
contravention. The argument that as they were
"regulations" under the 1952 Act in
consequence of a deeming provision, they were
not laws in force on the alleged date of
contravention is entirely misconceived."
15. In the case of M/s J.K Cotton Spinning and Weaving
Mills Ltd. and another v. Union of India and others, AIR
1988 SC 191 = 1988(1) SCR 700, it was said:
"It is well settled that a deeming provision
is an admission of the non-existence of the
fact deemed. Therefore, in view of the
deeming provisions under Explanations to Rr.9
and 49, although the goods which are produced
or manufac-
299
tured at an intermediate stage and, there-
after, consumed or utilised in the integrated
process for the manufacture of another
commodity is not actually removed shall be
construed and regarded as removed. The
Legislature is quite competent to enact a
deeming provision for the purpose of assuming
the existence of a fact which does not really
exist."
16. Recently in the case of M. Venugopal v. The Divisional
Manager, Life Insurance Corporation of India, Machilipatnam,
Andhra Pradesh, & Anr., JTF 1994(1) SC 281 = 1994 (2) SCC
323 after referring to the case of East End Dwellings Co.
Ltd. v. Finsbury Borough Council (supra) it was said that
when one is bidden to treat an imaginary state of affairs as
real, he must surely, unless prohibited from doing so, also
imagine as real the consequences and incidents which, must
inevitably have flowed.
17. When sub-section (2) of Section 12 provides that
whenever a tenant carrying on business in a building admits
a person, who is not a member of his family, as a partner,
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the tenant shall be deemed to have ceased to occupy the
building, full effect has to be given to the mandate of the
Legislature. There is no escape from the conclusion that
such tenant has ceased to occupy the building. No
discretion is left to the Court to enquire or investigate as
to what was the object of such tenant while inducting a
person as partner who was not the member of his family. It
can be said that the aforesaid statutory provision requires
the Court to come to the conclusion that by the
contravention made by the tenant, such tenant has ceased to
occupy the building. The framers of the Act have not
stopped only at the stage of Section 12(2) but have further
provided in Section 25, Explanation (i) another legal
fiction saying that where the tenant ceases to occupy the
building within the meaning of 11 sub-section (2) of Section
12 ’he shall be deemed to have sub-let that building or
part’. In view of the three deeming clauses introduced in
sub-section (2) of Section 12, sub-section (4) of Section 12
and Explanation (i) to Section 25, no scope has been left
for the Courts to examine and consider the facts and
circumstances of any particular case, as to what was the
object of admitting a person who is not the member of the
family, as partner and as to whether, in fact, the premises
or part thereof have been sub-let to such person.
18. It was then urged that if such strict interpretation is
given to sub-section (2) of Section 12, then similar
interpretation should be given to Section 12(1)(b) and to
Section 12(3) of the Act which prescribe other conditions
under which the tenant shall be deemed to have ceased to
occupy the building under his tenancy. It was pointed out
that sub-Section (1)(b) of Section 12 says that a landlord
or tenant of a building shall be deemed to have ceased to
occupy the building or a part thereof if he has allowed it
to be occupied by any person who is not a member of his
family. According to the learned counsel for respondents if
the daughter-in-law or son-in-law of the landlord or tenant
comes to reside in the building in occupation of such
landlord or tenant, then it shall be deemed to have ceased
to be in occupation of such landlord or tenant, which shall
lead to an absurd result. Clause (b) of sub-section (1) of
Section 12 shall not be applicable to such occupation by
daughter-in-law or son-in-law or even outsider with the ten-
ant himself The words ’allowed’ and ’occupy’ are
significant. The landlord or the
300
tenant, as the case may be, shall be deemed to have ceased
to occupy the building only if he has allowed it to be occu-
pied by any person who is not a member of his family. The
words "allowed to be occupied" indicate that the possession
of such building has been given to a person who is not a
member of the family. It shall not be attracted when any
person who is not a member of the family resides in such
building either along with the landlord or the original
tenant. If the landlord or the tenant allows any person,
who is not a member of the family within the meaning of the
Act to occupy the premises, with the object that such person
shall occupy such premises in his own rights, in that event,
clause (b) of sub-section (1) of Section 12 shall be
attracted.
19. So far as sub-section (3) of Section 12 is concerned, it
says that in case of 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, the tenant
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"shall be deemed to have ceased to occupy the building under
his tenancy". It was submitted that if full effect is given
to the deeming clause, then in a house where the tenant was
living with his four sons, one of his sons getting any
accommodation in the same city or town, the tenant along
with his remaining three sons have to be evicted which shall
lead to an absurd result. Although we are not concerned in
the present case with the scope of sub-section (3) of
Section 12, but in order to appreciate the submission made
on behalf of the respondents, we may point out that sub-
section (3) of Section 12, does not conceive that if one of
the sons living with the tenant, who is not wholly dependent
on such tenant, acquires any other residential building in
the same city or town, then even the original tenant shall
be deemed to have ceased to occupy the building in question.
This is apparent from Explanation (b) to said sub-section
(3) which says:
"the expression "any member of family", in
relation to a tenant, shall not include a
person who has neither been normally residing
with nor is wholly dependent on such tenant."
In view of the explanation any member of the family
mentioned in sub-section (3) shall not include a person who
has neither been normally residing with nor is wholly
dependent on such tenant. As such, if a son of the tenant
who is not wholly dependent on such tenant acquires or gets
any residential building in the same city or town, there is
no question of the tenant deeming to have ceased to occupy
the building under sub-section (3) of Section 12.
20. The Act with which we are concerned is a Statute which
purports to regulate the relationship between the landlord
and the tenant and in many respects contains provisions for
achieving that object which are different from the Transfer
of Properties Act. As such it was open to the framers of
the Act to look to the interest of the tenant as well as the
landlord and to prescribe conditions under which the tenant
can continue to occupy a building and having contravened any
of the conditions prescribed shall be deemed to have ceased
to occupy the building.
21. On the question as to whether any contravention by
Ganpat Roy, one of the
301
heirs of Sheobux Roy, will be a ground for eviction from the
whole premises, the High Court was of the opinion that after
the death of Sheobux Roy, his five sons became tenants in
common and not joint tenants of the premises because of
which contravention by one of the tenants shall not be a
ground for eviction, so far the other co-tenants are
concerned. In support of this finding, reliance was placed
by the High Court on a judgment of this Court in Mohd.
Azeem v. District Judge, Aligarh and Ors., 1985(3) SCR 906.
From the facts of that case it appears that the original
tenant had died in 1969 leaving behind a widow, three sons
and a daughter. In connection with sub-section (3) of
Section 12, after making reference to the Full Bench
Judgment of Allahabad High Court it was said:
"The Full Bench proceeded on the basis that
the heirs become joint tenants and answered
the main problem by saying that if any member
of the family of such joint tenants built or
acquired a house in vacant state the tenancy
would be deemed to have ceased. In framing
these questions for reference and in answering
the referred questions, the definition of
’tenant’ was lost sight of. All the heirs as
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normally reside with the deceased tenant in
the building at the time of his death become
tenants. The definition does not warrant the
view that all the heirs will become a body of
tenants to give rise to the concept of joint
tenancy. Each heir satisfying the further
qualification in s.3(a)(1) of the Act in his
own right becomes a tenant and when we come to
s. 12(3) of the Act, the words "the tenant
or any member of his family" will refer to
the heir who has become a tenant under the
statutory definition and members of his
family."
22. However, this Court in the case of H.C. Pandey v.
G.C. Paul, 1989(3) SCC 77, in connection with the same Act
said:
"It is now well settled that on the death of
the original tenant, subject to any provision
to the contrary either negativing or limiting
the succession, the tenancy rights devolve on
the heirs of the deceased tenant. The
incidence of the tenancy are the same as those
enjoyed by the original tenant. It is a
single tenancy which devolves on the heirs.
There is no division of the premises or of the
rent payable therefor. That is the position as
between the landlord and the heirs of the
deceased tenant. In other words, the heirs
succeed to the tenancy as joint tenants."
23. The attention of the learned Judges constituting the
Bench in the case of H.C. Pandey v. G.C. Paul (supra) was
not drawn to the view expressed in the case of Mohd. Azeem
v. District Judge, Aligarh (supra). There appears to be an
apparent conflict between the two judgments. It was on that
account that the present appeal was referred to a Bench of
three Judges. According to us, it is difficult to hold that
after the death of the original tenant his heirs become
tenant in common and each one of the heirs shall be deemed
to be an independent tenant in his own right. This can be
examined with reference to Section 20(2) which contains the
grounds on which a tenant can be evicted. Clause (a) of
Section 20(2) says that if the tenant is in arrears of rent
for not less than four months, and has failed to pay the
same to the landlord within one month from the date of
service upon him of a notice of demand, then that shall be a
ground on which the landlord can institute a suit for
eviction. Take a case where the original tenant who was
paying the rent dies leaving behind four sons. It need not
be pointed out that after the death of the
302
original tenant, his heirs must be paying the rent jointly
through one of his sons. Now if there is a default as
provided in clause (a) of sub-section (2) of Section 20 in
respect of the payment of rent, each of the sons will take a
stand that he has not committed such default and it is only
the other sons who have failed to pay the rent. If the
concept of heirs becoming independent tenants is to be
introduced, there should be a provision under the Act to the
effect that each of the heirs shall pay the proportionate
rent and in default thereto such heir or heirs alone shall
be liable to be evicted. There is no scope for such
division of liability to pay the rent which was being paid
by the original tenant, among the heirs as against the
landlord what the heirs do inter se, is their concern.
Similarly, so far as ground (b) of sub-section (2) of
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Section 20, which says that if the tenant has wilfully
caused or permitted to be caused substantial damage to the
building, then the tenant shall be liable to be evicted;
again, if one of the sons of the original deceased tenant
wilfully causes substantial damage to the building, the
landlord cannot get possession of the premises from the
heirs of the deceased tenant since the damage was not caused
by all of them. Same will be the position in respect of
clause (c) which is another ground for eviction, i.e. the
tenant has without the permission in writing of the landlord
made or permitted to be made, any such construction or
structural alteration in the building which is likely to
diminish its value or utility or to disfigure it. Even if
the said ground is established by the landlord, he cannot
get possession of the building in which construction or
structural alterations have been made diminishing its value
and utility, unless he establishes that all the heirs of the
deceased tenant had done so. Clause (d) of subsection (2)
of Section 20 prescribes another ground for eviction that
if the tenant has without the consent in writing of the
landlord, used it for a purpose other than the purpose for
which he was admitted to the tenancy of the building or has
been convicted under any law for the time being in force of
an offence of using the building or allowing it to be used
for illegal or immoral purposes; the landlord cannot get
possession of the building unless he establishes the said
ground individually against all the heirs. We are of the
view that if it is held that after the death of the original
tenant, each of his heirs becomes independent tenant, then
as a corollary it has also to be held that after the death
of the original tenant, the otherwise single tenancy stands
split up into several tenancies and the landlord can get
possession of the building only if he establishes one or the
other ground mentioned in sub-section (2) of Section 20
against each of the heirs of original tenant. One of the
well settled rules of interpretation of statute is that it
should be interpreted in a manner which does not lead to an
absurd situation.
24. It appears to us, in the case of H. C. Pandey v. G. C.
Paul (supra) it was rightly said by this Court that after
the death of the original tenant, subject to any provision
to the contrary, the tenancy rights devolve on the heirs of
the deceased tenants jointly. The incidence of the tenancy
are the same as those enjoyed by the original tenant. It is
a single tenancy which devolves on the heirs and there is no
division of the premises or of the rent payable therefor and
the heirs succeed to the tenancy as joint tenants.
25. In the case of Smt.Gian Devi Anand
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v. Jeevan Kumar and others, 1985 (Suppl.) SCR 1, the
Constitution Bench of this Court in connection with Delhi
Rent Control Act, 1958 said:
"The heirs of the deceased tenant in the
absence of any provision in the Rent Act to
the contrary will step into the position of
the deceased tenant and all the rights and
obligations of the deceased tenant including
the protection afforded to the deceased tenant
under the Act will devolve on the heirs of the
deceased tenant. As the protection afforded
by the Rent Act to a tenant after
determination of the tenancy and to his heirs
on the death of such tenant is a creation of
the Act for the benefit of the tenants, it is
open to the Legislature which provides for
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such protection to make appropriate provisions
in the Act with regard to the nature and
extent of the benefit and protection to be
enjoyed and the manner in which the same is to
be enjoyed. If the Legislature makes any
provision in the Act limiting or restricting
the benefit and the nature of the protection
to be enjoyed in a specified manner by any
particular class of heirs of the deceased
tenant on any condition laid down being
fulfilled, the benefit of the protection has
necessarily to be enjoyed on the fulfilment of
the condition in the manner and to the extent
stipulated in the Act."
26.The framers of the Act have clearly expressed their
intention in Sections 12, 20 and 25 while protecting the
tenant from eviction except on the grounds mentioned in
Section 20, that after the death of the original tenant his
heirs will be deemed to be holding the premises as joint
tenants, and for any breach committed by any of such joint
tenants, all the heirs of the original tenant have to
suffer. They cannot take a plea that unless the grounds for
eviction mentioned in sub-section (2) of Section 20 are
established individually against each one of them, they
cannot be evicted from the premises in question.
27.It was then submitted that although Swarup Kailash, the
son-in-law of Ganpat Roy may not be held to be a member of
the family within the meaning of the definition given in
Section 3(g), nonetheless he shall be deemed to be a member
of the family as the expression ’family’ is generally
understood, and by admitting a son-in-law or daughter-in-law
as a partner, it shall not amount to sub-letting within the
meaning of the Act. It was pointed out that Section 3 opens
with the words "In this Act, unless the context otherwise
requires" and as such the definition of the family should
not be strictly construed as given in Section 3(g) and in
the context of the present case a wider interpretation to
the expression ’family’ should be given so as to include
even the sons-in-law and daughters-in-law. In this
connection, reliance was placed on the judgment of this
Court in the case of Pushpa Devi and others v. Milkhi Ram,
1990(2) SCC 134. As has already been pointed out that in
the Act with which we arc concerned, wherever the expression
’member of the family’ has been used, it is consistent with
the definition of ’family’ given in Section 3(g) and there
is no scope for interpreting that expression in a different
manner in connection with subsection (2) of Section 12 of
the Act. Once the finding of the High Court that after the
death of Sheobux Roy, his sons became tenants in common
instead of joint tenants, is reversed for the reasons
mentioned above, the result will be that it has to be held
that because of the admission of Swamp Kailash, the son-in-
law of Ganpat Roy, as a partner in the business, there has
been a deemed vacancy
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of the premises within the meaning of subsections (2) and
(4) of Section 12 and it shall amount to sub-letting within
the meaning of Section 25, Explanation (i), which is a
ground for eviction under subsection 2(e) of Section 20 of
the Act. The judgment in Mohd Azeem’s case, does not lay
down the correct law and on the other hand we hold that
H.C.Pandey’s case (supra) lays down the correct law.
28. In the result, the appeal is allowed. The judgment
of the High Court allowing the Writ Petition of the
respondent-tenants is set aside and the orders of the Rent
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Controller and Eviction Officer are restored. In the
circumstances of the case, there shall be no order as to
costs.
29. However, respondents shall not be evicted from the
premises in question upto 30th June, 1995, if they file
usual undertaking before this Court within four weeks from
today.
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