Kerala High Court
K. Balakrishna Menon vs District Judge, Kozhikode And Ors. on 2 December, 1993
Equivalent citations: AIR1994KER158, AIR 1994 KERALA 158, (1995) 1 RENCR 568, 1995 (1) RENCR 298, (1994) 1 KER LT 102, (1994) 2 RENCJ 196, (1994) 1 KER LJ 18
ORDER K.J. Joseph, J.
1. Petitioner is the respondent in R.C.P. No. 43/1981 on the file of the Rent Control Court, Kozhikode. He was the tenant of a building belonging to the 4th respondent. The 4th respondent/landlady filed an application for eviction of the petitioner/tenant on the ground of bona fide need for the occupation of her husband's sister and her children under Section 11(3) of the Kerala Buildings (Lease & Rent Control) Act, 1965. According to the landlady, the husband of the sister-in-law died on 15-8-1979 and the sister-in-law and her children are thereafter depending on the husband of the landlady. The landlady also alleged that there is no other building in her possession for the use and occupation of her sister-in-law and her children. The claim for bona fide occupation of the landlady was disputed by the petitioner/tenant. According to him, the sister-in-law of the landlady and her children are residing at her husband's house at Koothupramba and she is not a member of the family of the landlady. He has also disputed the statement that the sister-in-law is depending on the landlady and therefore, according to the tenant, the application under Section 11(3) of the Act is not maintainable. He has further stated that till the date of death of the husband of the sister-in-law, she was staying in the husband's house without any difficulties and therefore, the petition filed by the landlady for eviction is a ruse to evict him from the tenanted premises. The tenant also claimed kudikidappu right in respect of the tenanted premises. He also alleged that he is conducting a job typing in the petition schedule house and himself and his family are depending on the income from the job typing work which is being conducted in the petition schedule building and there is no other building available in the locality for conducting the typewriting job.
2. The question of kudikidappu right was referred to the Land Tribunal by the Rent Control Court under Section 125(3) of the Kerala Land Reforms Act. The Land Tribunal after an enquiry, passed an order holding that the tenant is not entitled to get the kudikidappu right over the petition schedule building. This finding was accepted by the Rent Control Court. The landlady's sister-in-law was examined in the case as PW 2 and the landlady was examined as PW 1. The tenant was examined as RW 1 and on his behalf, 2 other witnesses were also examined as RWs 2 and 3. After trial, the Rent Control Court found that the need expressed by the landlady is bona fide and hence ordered eviction of the tenant on the ground under Section 11(3) of the Act.
3. The tenant filed an appeal before the Rent Control Appellate Authority, the 2nd respondent. The 2nd respondent considered the matter in detail. On an appreciation of the evidence adduced before the Rent Control Court, the Appellate Authority found that the sister-in-law of the 4th respondent, landlady for whose occupation the building is sought to be evicted cannot be treated as a member of the family of the landlady. The Appellate Authority also found that it was only a desire of PW 2, the sister-in-law to shift her residence from Koothuparamba to Kozhikode and the same cannot be considered as bona fide requirement of the landlady. The Appellate Authority further found that there is another house at Puthiyara belonging to the unmarried sister of PW 2, the sister-in-law of the landlady and there is no reason why she could not shift her residence from Koothuparamba to her own sister's house at Puthiyara. The Appellate Authority further found that the documents produced by the landlady to prove that her sister-in-law is depending on her husband had been created for the purpose of creating evidence for filing the eviction petition. The Appellate Authority, therefore, found that the sister-in-law was not a dependant on the landlady and by no stretch of imagination, she could be said to be a member of the landlady's family. Therefore, the Appellate Authority set aside the order of eviction passed by the Rent Control Court as per Ext. P2 order dated 17-7-1986. In Ext. P2 order, the Appellate Authority also found that the tenant is not entitled to get the right of kudikidappukaran under the Kerala Land Reforms Act and therefore, confirmed the finding of the Rent Control Court in that regard.
4. The tenant filed a revision before the District Judge, who was the revisional authority at that time against the finding of the Rent Control Court and of the Appellate Authority regarding the nature of the Kudikidappu right of the tenant and the landlord against the finding under Section 11(3) of the Act. Both these revisions were considered by the revisional authority and the revisional authority passed Ext. P3 order on 31-7-1989 wherein he has re-appraised and appreciated the evidence adduced in the case and found that PW 2 and her family were depended on the husband of the landlady. But the re-visional authority did not consider the need for PW2, who wanted to transfer her residence from Koothuparamba to Kozhikode. Revisional authority found that the sister-in-law could be a member of the family of the landlady and therefore, the petition under Section 11(3) of the Act is maintainable. The revisional authority further found that the claim for kudikidappu right was negatived on the ground that the cost of the building at the time of its construction was Rs. 906/- and probable rent it could have fetch at the time was at Rs. 7/ - and this is based on the report filed by the Revenue Inspector, marked as Ext. C1 in the case. The revisional authority found that the commission report relied on by the Land Tribunal does not disclose as to how the Revenue Inspector took the house having been constructed in the year 1942 and the Land Tribunal has summarily disposed of the petition without giving sufficient opportunity to the tenant for proving that he is entitled to get the benefit of kudikidappukaran. Therefore, for determination of the question of kudikidappu right, the matter was remanded to the Rent Control Court for a fresh finding by the Land Tribunal, by the revisional court.
5. The tenant has now come up in this writ petition under Article 227 of the Constitution questioning the validity of Ext. P 3 order passed by the Rent Control Revisional Court under Section 20 of the Kerala Buildings (Lease & Rent Control) Act, 1965 and prayed for issuance of a writ of certiorari or other appropriate writ or direction to quash the same. He has also prayed for restoration of the order, Ext. P 2 passed by the 2nd respondent, the Appellate Authority.
6. I heard the learned counsel appearing on behalf of the petitioner/tenant in the case in detail. Even though, notice was served on the respondents including the Landlady, they did not appear or contested the case. They also did not file any counter-affidavit in the case. According to the learned counsel appearing on behalf of the tenant, the Rent Control petition itself is not maintainable on the ground under Section 11(3) of the Act. According to the learned counsel, a petition under Section 11(3) is maintainable only if the landlord bona fide needs the building for his own occupation or for the occupation of any member of his family depending on him. According to the learned counsel, the sister-in-law of the landlady is not a member of the family of the landlady. He has also contended that the said sister is not depending on the landlady and therefore, the finding arrived at both by the Rent Control Court and the revisional court regarding the maintainability of the petition under Section 11(3) of the Act is absolutely illegal and Exts. P 1 and P 3 orders are, therefore, without authority of law. The learned counsel has further argued that there is absolutely no justification or authority for the revisional court to reappraise the evidence adduced in the case and the Appellate Authority is the ultimate fact finding authority and there is no justification to re-appreciate the entire evidence adduced in the case and setting aside the finding of fact arrived at by the ultimate fact finding authority in the matter regarding bona fide need viz. the Appellate Authority who passed Ext. P 2 order. Therefore, the order (sic) passed by the revisional authority in exercise of its powers under Section 20 of the Act is totally illegal and improper. The learned counsel also urged that the revisional authority did not even consider the question whether the sister-in-law is depending on the landlady and even if the landlady's husband has given some financial assistance to his own sister, that cannot be considered to be a fact to arrive at a conclusion that the sistet-in-law is depending on the landlady. It is only on proof that the bona fide need is for occupation of any member of her family depending on her, an order of eviction can be passed. This fact has not been even found by the revisional court while passing Ext. P 3 order. The landlady is governed by Hindu Mitakshara Law and therefore, on marriage, she becomes a member of her husband's family and therefore, she cannot claim any right in her own family. What she can claim is only the right of her husband in the husband's property. These aspects of the matter even though relevant, have not considered by the revisional authority. Therefore, the learned counsel submits that the order of eviction passed by the Rent Control Court as well as the revisional court is absolutely illegal and without justification.
7. The relevant portion of Section 11(3) of the Act is extracted below:
"Section 11(3): A landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building if he bona fide needs the building for his own occupation of for the occupation by any member of his family dependant on him."
Therefore, an application under Section 11 (3) of The Act can be filed by a landlord, if (a) he bona fide needs the building for his own occupation; or (b) he bona fide needs the building for the occupation by any member of his family, dependent on him.
8. Therefore, the main question to be decided in this case is whether the petition filed by the landlady in this case for eviction of the tenant on the grounds under Section 11(3) of the Act is maintainable or not, when the eviction sought is for the use and occupation of the landlady's sister-in-law (husband's sister) for her children who are depending on her husband.
9. The expression family has not been defined in the Act. However, the expression 'family' has been the subject-matter of the decision in Civil Court, both Indian and English. In Price v. Gould, (1930) 16 ITR 411, which has been followed in several subsequent decisions, Wright, J. held--
"It has been said in a number of equity esses, relating principally to wills or to settlements under powers of appointment, that the word 'family', was a popular, loose and flexible expression, and not a technical term. It had been laid down that the primary meaning of the word 'family' was children; but that primary meaning was cleary susceptible of wider interpretation, because the cases decided that the exact scope of the word must depend on the context and the other provisions of the will or deed in view of the surrounding circumstances."
10. While considering the meaning of the expression 'family' in Section 12(1)(g) of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920, it is said that the word 'family' includes brothers and sisters of the deceased living with her (tenant) at the time of her death, and that the meaning is required by the ordinary acceptance of the word in this connection and that the legislature has used the word 'family' to introduce a flexible and wide term.
11. In the decision reported in Brock v. Wollams, (1949) 2 KB 388, the Court of Appeal held that--
"the defendant Mrs. Wollams who had been adopted in fact but not in legal form at the age of five or six by the tenant and had lived with him till his death, except for an interval of about three years when she resided with her husband, was a member of the tenant's family within the Rent and Mortgage Interest Restrictions (Amendment) Act, 1933."
12. In Slandingford v. Probert, (1950) 1 KB 377, the Court of Appeal held that the tenant's married sons and their wives were members of his family within the expression "needs of the tenant and his family" under the same Act. Both these decisions followed Price v. Gould, 1930-46 TLR 411 and in Sailer v. Lask, (1925) 1 KB 584 considered in Brock v. Wollams, (1949) 2 KB 388 and 393, where the question was whether the husband Of a tenant was a member of the tenant's family and Salter, J. held that he was.
13. In Jones v. Whitehill, (1950) 1 All ER 71, it was held that a neicce of the tenant's wife was regarded as falling within the meaning of 'members of the tenant's family'.
14. In Govind Dass v. Kuldip Singh, AIR 1971 Delhi 151, referring to Section 14(1) proviso (e) of the Delhi Rent Control Act, (Act 59 of 1958) a Division Bench held that the word 'family' must be construed with reference to the habits and deas of the persons constituted in a particular society and the religious and socio-religious customs of the community to which such persons belong and therefore found that the family of a Hindu may consist of his brothers, their wives and their children. It was further held that at page 152--
"the concept of what constitutes a family when a number of persons are related or are living together is not something static or capable of concise definition. What constitutes a family in a given set of circumstances or in a particular society depends upon the habits and ideas of persons constituting that society and the religious and socio-religious customs of the community to which such persons may belong."
The learned Judges followed two decisions of the Punjab High Court in coming to the above conclusions.
15. In the decision reported in Muhammad v. Sinnamalu Amma, AIR 1978 Ker 21, a learned Single Judge of this Court held that at page 23--
"it is obvious that the expression 'family' which is undefined by the Act is elastic and that ambit has to be determined in all the circumstances of the case, having regard to the habits, ideas and socio-economic milieu of the parties. In the present case the concerned relations are the husband and son of the landlord. Going even by its primary meaning the word 'family' includes the son. The husband although the head is certainly part of the family, even if he is not and cannot be a member of the tarwad of his marumakkathayee wife."
16. In the decision reported in Balabhadra v. Premchand, AIR 1953 Nag 144 a Division Bench of Nagpur High Court held that--
"the need of a widowed daughter and her children must be deemed to be those of her landlord father entitling him to claim possession of a building for their residence as they were depending on him, even though by marriage she had passed out of his family and gone into that of her husband."
17. Again a Division Bench of this Court in Rajamma v. Leela, 1991 (2) Ker LT 862 has held that it cannot be said that Section 11(3) of the Act makes an absolute distinction between the needs of the landlord himself and any member of his family dependant on him. The need of the dependant who is a member of the family can also be that of the landlord, the need is related to the dependants.
18. Placing reliance on the decision of the Allahabad High Court reported in Mahendra Sen Jain v. Ratanlal, 1978 All LJ 778, the learned counsel appearing on behalf of the petitioner/tenant has submitted that a brother of the tenant is found to be not a member of the family of the tenant within the meaning of Uttar Pradesh Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 and therefore, the finding of the revisional authority in Ext. P-3 order that PW 2 is a member of the family of the landlady is erroneous. But in the said Act, the word 'family' has been defined under Section 3(g) of the Act and enumerates the category of persons coming under the said definition;
"(i) spouse;
(ii) male lenial 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."
19. As stated by the learned Judge, obviously a brother does not come in the definition of family and hence the above decision will not be of any help to the petitioner/tenant in this case. Even though under the Hindu Mitakashara Law, the married woman ceased to be a member of her family and becomes a member of her husband's family, for the intention and purpose of Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, in the light of the various decisions of this Court, other High Courts in India and of the English Courts referred to earlier, I hold that the husband of the landlady and his sister, PW 2 will come within the wider expanded meaning of the expression 'any member of the family of the landlord' used under Section 11(3) of the Act.
20. Therefore, the further question to be considered in this case is even if, PW2 is found to be a member of the family of the landlady, whether that member is dependant on the landlady so as to get the benefit under Section 11(3) of the Act. All members of the family of the landlord are not entitled to the benefit under Section 11(3) of the Act and the landlord is not entitled to maintain a petition under Section 11(3) of the Act for a member of his family not in any way dependant on him. True, the dependency stated in the above Section is not confined to financial dependancy alone. Still there should be dependancy in one form or other with the landlord. In the absence of any such dependancy pleaded and proved in the case, there cannot be an order of eviction of the tenant under Section 11(3) of the Act.
21. In the decision reported in Anthony Kochuvariathu v. Chakkalinga Nadar, 1971. Ker LT 119, this Court held that the landlord who sought eviction of the tenant for his two married sons and have their own source of income, but badly in need of separate accommodation for their residence is entitled to seek for eviction of the tenant under Section 11(3) of the Act, holding that the dependancy contemplated under Section 11(3) of the Act fetched from a broader humane angle. Again, the same view was taken by the Delhi High Court in the decision reported in Govind Dass v. Kuldip Singh, AIR 1971 Delhi 151, wherein the learned Judges have held that the meaning of the word 'dependant' is not restricted to persons financially dependant, but in comprehensive enough to include persons who are depending on the landlord for residential accommodation. Again, this Court following the decision reported in Anthony Kochuvariathu v. Chakkalinga Nadar, 1971 Ker LT 119 referred to earlier, has held in the decision reported in Muhammad v. Sinnamalu Amma, AIR 1978 Ker 21 and held that--
"that it would be an undue restriction of the word 'dependent' to limit the one who is only financially dependent upon the landlord. The Legislature has not undertaken to define the word and one has to determine its meaning keeping in view the context and the circumstances of each case. Section 11 deals with eviction of tenants and Sub-section (3) must therefore be related to cases where the member of the family is dependent upon the landlord for the building whether residential or non-residential, as when although financially independent of the landlord, he might have no building or a building that will answer his needs and the landlord bona fide needs to provide that member with a building. It is not possible nor would it be prudent to formulate tests that would govern all situations which arise under Sub-section (3); the answer must depend upon the facts and circumstances of each case."
But it should be remembered that it was a case of providing non-residential accommodation in the building belong to the landlady for her dependants viz. the husband and for her son.
22. Relying on the above two decisions of this Court, Subramonian Potti J. as he then was, held in the decision reported in Narayana Pillai v. Ponnappan Chari, 1980 Ker LT 871 that--
"though in strict legal parlance dependence may mean looking up for support or maintenance, in the context in which that term appears in Section 11 of the Kerala Buildings (Lease and Rent Control) Act it connotes a wider concept and covers a larger field. It takes in a person who is not financially dependent upon the landlord but who would in the normal course look up to the landlord to provide him with the facility of a building possessed by the landlord. Whether the landlord would do so or not to such a dependent would depend on various facts and circumstances including the financial situation in which the landlord is placed, the degree of closeness or intimacy with the dependant who seeks the provision of such building and other similar matters of relevance."
As in all the other cases, in this case also, dependancy of the member of the family was to the landlord himself and not any other person. The same view was again taken by another learned single Judge of this Court in the decision reported in Kumaran v. Kunjunni Pillai, 1991 Ker LT 148.
23. Thus to sustain an order of eviction on the ground under Section 11(3) of the Act, the landlord should prove that he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him. Admittedly, in this case, the eviction sought for is not for the occupation of the landlady, but for the occupation of PW 2, the sister of her husband. As found earlier in the light of the various decisions referred to in this judgement, even if PW 2 should be considered as a member of the landlady for the limited purpose of Section 11(3) of the Kerala Buildings (Lease & Rent Control) Act, 1965 f 01 maintaining a petition under Section 11 (3) of the Act, the landlady shall further prove that the said member of the family of the landlady is in one way or other depending on her. Neither in Ext. P1 norin Ext. P3 orders, there is any finding to the effect that PW 2 is in any way depending on the landlady of the building for whose benefit the eviction is sought for. On the other hand, the positive evidence adduced by the landlady and accepted by the Rent Controller and the revisional authority is that PW 2 is a dependant of the husband of the landlady for financial assistance as well as for her separate residence and not a dependant of the landlady of the building in any manner even though she is now residing in her husband's house. The specific finding of the revisional court also is to that effect. In paragraph 11, what the revisional Court has stated that --
"there is absolutely no reason as to why PW 2 cannot be considered for the purpose of the above provision as a member of the family. Therefore, the finding of the appellate Authority that they cannot be considered as members of the family and claim for eviction is bona fides has to be reversed."
The Revisional Authority also found that --
"it is obvious that the case of the landlady that PW 2 and her children are depending solely for their maintenance of the husband of the landlady is not in any way successfully impeached. There is also no case that there is any other person who is capable of looking after the widowed sister and her children,"
The above finding will clearly establish that the dependancy of PW 2 is to the husband of the landlady alone and that too for financial help and not to the landlady in any manner. Such a dependancy is not what is contemplated in Section 11(3) of the Act. The person for whose benefit the eviction is sought for shall be the dependant of the landlady and not a dependant of the member of the family of the landlady. For the benefit of such a person, no petition for eviction on the ground under Section 11(3) of the Act is maintainable. No order of eviction also can be legally passed on such petition. Ext. P3 order of eviction passed by the revisional authority on the ground under Section 11(3) is, therefore, clearly illegal and unsustainable. In the light of the above finding, it is not necessary for me to consider the other contentions raised by the petitioner in this Original Petition. Ext. P3 order is, therefore, set aside and it is declared that the petition for eviction of the tenant filed by the 4th respondent/ landlady on the ground under Section 11(3) of the Act is not maintainable and the Original Petition is allowed, but without any order as to costs.