Gujarat High Court
Shams Abbas Chinwala vs Sakina Munir Basrai on 2 September, 1998
Equivalent citations: 1999 A I H C 2632, (1999) 2 RENCR 192 (1999) 2 RENTLR 500, (1999) 2 RENTLR 500
Author: H.L. Gokhale
Bench: H.L. Gokhale
JUDGMENT H.L. Gokhale, J.
1. The petitioner herein is the present landlord of house property known as Ruby Terrace situated at Haidarali Kasamji Street in the Jhampa Bazar area of city of Surat. The first floor of this property was let out by the father of the petitioner way back in the year 1947 to one Abbas Ali Karachiwala. This Abbas Ali Karachiwala with his wife Zainub bibi and their only child - a daughter named, Sakina resided in this premises. Sakina got married with one Munir Basarai in the year 1968. Abbas Ali died at the ripe age of about 92 years on 8.10.1972. Zainub bibi was suffering from paralysis for a period of over 15 - 20 years and she died two years later on 14th October 1974.
2. The petitioner-landlord filed a suit being Suit No.528 of 1976 on 14.6.1976 in the court of Small Causes at Surat against the above referred Sakina (Respondent NO.1 herein) contending that she had no business to remain on the suit premises and that she be evicted. Respondent no.2 herein was also joined in that suit right at the outset and it was contended that the premises have been illegally sublet to him by respondent no.1 and he is carrying on the business of serving meals at the said premises. The defence of the respondents was that the respondent no.2 - one Akbar was only a servant staying in the suit premises right from the time of old couple. The Respondents therefore denied the allegation contained in the plaint. They filed common written statement and pleaded protection for respondent no.1 under the provisions of Section 5(11)(C) of the Bombay Rents, Hotel and Lodge House Rates (Control) Act, 1947 (hereinafter to be referred to as the Bombay Rent Act).
3. There were various points on which the parties contested the matter and hence, the learned trial judge framed the following issues:-
"1) Is the plaintiff competent to sue?
2) What was the contractual rent and in what
manner rent is payable?
3) What is the standard rent?
4) What is due?
5) Is rent due by default of the tenant?
6) Is defendant no.1 tenant under section
5(11)(c)(i) of Bombay Rent Act?
7) Is suit premises are not used for the
purpose for which it is let without
justification or reasonable cause for six
months before the suit?
8) Has the suit premises been wasted?
9) Has the defendant no.1 sublet or assigned
or transferred her interst in tenancy to
defendnant no.2?
10) Has the user of suit premises been
changed?
11) Has the husband of defendant no.1
misbehaved with the plaintiff?
12) Have defendants committed acts of
nuisance or annoyance?
12-A) Whether the plaintiff require suit
premises reasonably and bona fide for
personal use and occupation?
12-B) If yes, who will suffer greater hardship
If decree for eviction is passed or
refused to pass?
13) What order and decree?"
The petitioner examined himself, one Prakashkumar Naik (who was an employee of the Electricity Board) and Abdulhussein Mohammedali Tapia, maternal uncle of the petitioner. Respondents examined respondent no.1 and two neighbours - one Aminaben and one Hakimbhai. Voluminous documentary evidence was produced from both the sides. Thereafter on hearing the learned advocates, the learned trial judge gave a finding in favour of the respondents on all counts and dismissed the suit.
4. Being aggrieved by that judgement and order the petitioner herein filed an appeal to the District Court under the provisions of Section 29(1)(b) of the Bombay Rent Act. The same came to be numbered as Regular Civil Appeal No.260 of 1981. After hearing the advocates on both sides, the appeal was dismissed by the judgement and order of the learned Assistant Judge, Surat, dated 10.1.1983. Being aggrieved by both these judgements and orders, this revision has been filed.
5. Mr A.J. Patel, Senior Advocate, with Mr Munshi and Mr J.M. Patel appeared for the petitioners whereas Ms Kalpana Brahmbhatt with Ms VP Shah appeared for the respondents.
6. Mr Patel, learned counsel for the petitioner, did raise the issue of alleged subletting of the premises to respondent no.2, but his principal stress was on the question as to whether the protection under section 5(11)(c)(i) could be granted to respondent no.1. These were the only two issues pressed by him into service. As far as the first submission is concerned, it has come on record that respondent no.2 was staying with the parents of respondent no.1 as their servant for over 50 years. No material evidence has been produced to prove the allegation that respondent no.2 was carrying on an independent business of providing meals from the said premises. The allegation of subletting of the premises to respondent no.2 has been discarded by the courts below by giving a concurrent finding on facts and in my view rightly so. The contention cannot therefore be entertained any further.
7. As far as ground of protection available under section 5(11)(c)(i) of the Bombay Rent Act is concerned, it is desirable to note the relevant provision to begin with. Section 5(11)(c)(i) of the said Act reads as follows:-
"5(11). "tenant" means any person by whom or on whose account rent is payable for any premises and includees:--
(a) xxx xxx (b) xxx xxx
(c)(i) In relation to premises let for residence to any member of the tenant's family esiding with the tenant at the time of or within three months immediately preceding the death of the tenant, as may be decided in default of agreement by the Court, (ii) in relation to premises let for business, trade or storage, any member of the tenant's family carrying on business, trade or storage with the tenant in the said premises at the time of the death of the tenant and may continue, after his death, to carry on the business, trade or storage, as the case may be, in the said premises and as may be decided in default of agreement by the Court."
Mr Patel submitted that for obtaining the protection under section 5(11)(c)(i) in relation to any premises which are let out for residence, the person claiming the protection will have to prove two things which must simultaneously exist: (i) the person concerned has to be a member of the tenant's family and, (ii) the person concerned has to be residing with the tenant at the time of or within three months immediately preceding the death of the tenant. Mr Patel submitted that the findings of the Courts below on both these counts are not in accordance with law. It is also relevant to note at this stage that the present revision is a statutory revision provided under section 29(2) of the Bombay Rent Act which reads as follows:-
"29(2) No further appeal shall lie against any decision in appeal under sub-section (1), but the High Court may, for the purpose of satisfying itself that any such decision in appeal was according to law, call for the case in which such decision was taken and pass such order with respect thereto as it thinks fit."
8. Mr Patel took me through the entire evidence on record. As far as the first of the requirement, namely, being a member of the family of the tenant is concerned, Mr Patel submitted that respondent no.1 could no longer be considered as a member of the family of the original tenant after her marriage in the year 1968. He submitted that after the marriage, the relationship of daughter is severed from that of her parent's family and she becomes a member of her husband's family. In the instant case, the family in which she was married had a house in the same Jhampa Bazar locality in a lane known as Basrai Mohalla. Mr Patel submitted that in fact at all material times respondent no.1 stayed with her inlaws in their house at Basrai Mohalla and she visited her parents regularly because of their bad health. Much emphasis was laid on behalf of the petitioner principally on two documents. One was the birth certificate of a child born to respondent no.1, named as Murtaja. This Murtaja was born on 29.7.1971. His birth ceritifcate is produced by petitioner which was taken on record by the trial court as exh.22. That is a certificate issued by the Surat Municipal Corporation which gives the name of the child, parents' names, date of birth and address of the permanent residence as Jhampa Bazar, Basrai Street. The submission of Mr Patel is that if respondent no.1 was staying in the suit premises with her parents all through out, as contended by her, there was no occasion of the address of the child being recorded as the one of her in-laws. The other document on which emphasis is laid is the certificate from the Registrar of Firms, Surat Range, dated 21.4.1981. That certificate is concerning a firm known as Munisab Foundry Works. The principal place of business of that firm is shown as 4/1013, Begampura, Tulsi Falia, Surat. The said certificate records the names of the partners of the said firm which entry was made on 31.1.1972. The name of the husband of respondent no.1 Munir Mosimbhai Basrai appears as partner no.2. The other two partners are also relatives of this Munirbhai. The addresses of all of them are recorded as follows:-
"Address for all:-
Basrai Mohalla Jhampa Bazar SURAT"
9. Abdul Hussein Tapia who was examined as the plaintiff's witness no.3, at exh.99, has amongst others stated that the two houses are situated at a distance of about 5 minutes walk. Mr Patel submitted that there are a number of letters written to respondent no.1 at her address at her inlaw's house in Basrai Mohalla which she has received. He therefore submitted that at all material times the first respondent resided with her husband after her marriage and consequently her relationship with her parents' family having been severed due to the marriage, she could not be said to be a "member" of their family residing with them for a period of three months prior to the death of the tenant.
10. There is one more important piece of evidence on which Mr Patel laid great stress. On 13.4.1973 respondent no.1 sent the rent of the premises to the petitioner. That Money Order coupon dated 13.4.1973 was produced by her on record as exh.68. The petitioner did accept having received that money order but, he sent a reply on 17th May 1973 which was placed on record as exh.31. The said letter addressed to respondent no.1 at the address c/o Mrs. Karachiwala, Rubi Terrace, H.K. Street, Surat, records that the tenant of the premises is Mr Abbasbhai Karachiwala who is dead and has left behind Mrs Zainub Bibi, his wife, as the only person entitled to occupy the premises. It further states as follows:-
"You have no right whatsoever in the premises since you have been residing with your husband at Basrai Mohalla. It is a well known fact and there is documentary evidence. you have not tendered any rent for the premises and as such you have no right to ask for rent receipts." The said letter further states in second paragraph, "You have however very cleverly sent rent in your name and thereby you want to create evidence in your favour. You have no right to pay rent as you are not a tenant. Further, you have never stayed in the premises after your marriage. The rent memo therefore cannot be accepted."
11. This letter by the petitioner was replied by the first respondent by her letter dated 22.5.1973 (exh.24) which reads as follows:-
"I am surprised to read contents of your letter dated 17.5.1973. I would like to make it clear that my mother is an invalid and though I am married my husband's house is nearby and I have to look after my mother and have to stay with her for the purpose. I am also under the circumstances managing the affairs of my invalid mother and I accordingly sent you the rent and you will please appreciate that I am entitled to receipt for the same. I may assure you that in my circumstances there is no need for me to create evidence like this in my favour as stated by you."
12. With respect to birth certificate of the child, respondent no.1 has stated in para 10 of her cross-examination that he was born in a hospital and at that time she was staying with her father in the suit premises. She has further stated that the place of birth was not recorded in the municipal corporation. As far as the letter dated 22.5.1973 (exh.24) is concerned, she has stated in para 17 of her cross-examination that she had sent the reply on 22.5.1973, the way the petitioner has suggested it to her. She has stated that the petitioner had come down to Surat and had orally instructed her to write the letter in a particular way and accordingly she had sent the reply. Mr Patel submitted that if the birth certificate of the child produced by the petitioner was not a correct one, it was necessary for the respondent no.1 to prove as to where the child was born. That would be expected from her in view of the provision of Section 106 of the Evidence Act. Besides, he wondered as to how one could accept this statement in the evidence of respondent no.1 that she had sent the reply as dictated by the petitioner. Mr Patel therefore drew my attention to the said letter dated 22.5.1973 and submitted that it indicated that in fact respondent no.1 was not staying with her mother. When the letter is read in totality, in the submission of Mr Patel, the last sentence of the letter is very clear. It states, "I may assure you that in my circumstances, there is not need for me to create any evidence like this in my favour as you stated." Mr Patel states that thus the respondent no.1 was explaining as to why rent receipt could be issued by the petitioner to respondent no.1 and assuring him that there was no need for her to create evidence in her favour as her husband's house was nearby. Mr Patel therefore submitted that the aforesaid material on record showed that although respondent no.1 must have attended her ailing parents, she was staying at the nearby residence of her husband and used to come over to parents' place as and when required. The place of birth of her child is at her inlaws' place, residential address of her husband shown in the certificate issued by the Registrar of Firms was at her inlaws place and the aforesaid letter indicated admission on her part that in fact she was staying at her in-laws place.
13. Ms Brahmbhatt, the learned counsel appearing for the respondent, on the other hand, drew my attention to the fact that it has clearly come on record that the father of respondent no.1 Abbasali died at the ripe age of 92 in October 1972. It has also come on record that he was suffering for a number of years from Asthma. Aminaben, plaintff's witness no.2, who is a next door neighbour, has stated that Abbasali was suffering from Asthma for the last over 17 years prior to his death. It has also come on record that Zainub-Bibi was suffering from paralysis and this is accepted by the petitioner in his cross-examination that she was so invalid for a period of about 15 years prior to her death (para 11 of his cross-examination). Aminaben has also stated in her examination-in-chief in para 1 that Zainub Bibi was bedridden for 10-12 years prior to her death and used to pass urine and stools in the bed itself and that respondent no.1 used to attend her. This aspect of her evidence has gone uncontroverted. The case of respondent no.1 is that although she was married in the year 1968, she had to reside with her parents along with her husband because of the aforesaid ailing conditions of her parents. She has produced her Graduation Certificate issued in the year 1970 and a number of letters including those received from the petitioner right from the year 1966 to 1973 (Exh.106-114 and 120). She has also relied upon the evidence of petitioner's witness no.2 one Prakash Naik, an employee of the Electricity Board. In his deposition, he has accepted that the respondent no.1 had applied for the power connection in her name on 3.1.1974 which application was produced at exh.89. He has further stated that when he visited the premises he found respondent no.1 residing over there. For that matter, the petitioner himself has stated in his cross-examination that when he vistied the suit premises after the death of Zainub Bibi he saw respondent no.1 residing over there. The case of respondent no.1 is that the condition of her parents was such that she had to live with them. At the time when she got married, her father was of the age of about 88 years. At this old age he could certainly not be expected to attend his wife who was paralytic and bed-ridden and was attending to her natural calls in bed itself. Respondent no.2 though a servant was also quite old at that time and he is a male servant. The submission of respondent no.1 is that she had to attend to her mother at all times. After the death of her father, it became more so necessary to attend to her mother inasmuch as her mother would be alone in the house. Respondent no.1 has also relied upon her Ration Card as renewed in the year 1975. The submission of respondent no.1 therefore is that in spite of her marriage she was not residing at Basrai Mohalla but was residing all through out with her parents along with her husband.
14. There are a number of other aspects of this matter. It appears that the relations between the parties were otherwise cordial until this litigation started. After the death of Zainub Bibi, petitioner's mother had written a letter to respondent no.1 which was also written to the address of the suit premises. Just as Mr Patel has pointed out the aforesaid earlier referred conduct on the part of the respondent no.1 concerning the birth certificate as also her own letter dated 22.5.1973, Ms Brahmbhatt has drawn my attention to the pressure brought upon by the petitioner on respondent no.2, Akbar, who was servant of respondent no.1. It has come on record that the petitoner has his business in Bombay and is having his residential apartment over there to the size of around 1200 sq. ft. In Surat the ground floor and second floor of this very building viz. Ruby Terrace is with the petitioner. A statement was taken from respondent no.2 with the intervention of police. That statement was produced on record at exh.21. Therein he agreed to vacate his possession of the suit premises. In his cross-examination the petitioner has accepted in para 26 that he had lodged a complaint against respondent no.2 complaining that he had broken into petitioner's part of the house and when the statement was recorded, the police told Akbar that he should give the statement failing which he will be detained. Thus, it appers that although the relations between the parties were cordial at one point of time, the petitioner resorted to the aforesaid method to take statement from respondent no.2 on 20.10.1975.On the other hand when in Court respondent no.1 was silent as to where her child was born and has tried to explain away her letter at exh.24 by stating that letter she had written that the way it was dictated by the petitioner. Mr Patel has tried to contend that the aforesaid letter is also silent with respect to the place where the child was born and it should be read against respondent no.1 heavily. But, as stated above, the conduct of the petitioner is also not far above the board and therefore what we will have to see is the totality of the evidence which has come on record and to accept that this is rather an unfortunate way in which the parties behave when it comes to litigation although once upon a time their relations were quite cordial.
15. In my view, through all the aforesaid pieces of evidence several relevant aspects of the controversy have come on record. As far as birth of the child is concerned, in para 27 of his cross examination, the petitioner has stated that after coming to know about the birth of the child he had gone to extend good wishes to the father of respondent no.1. He has stated that father of respondent no.1 had distributed sweets and therefore he congratulated him. He has thereafter stated that he asked him (father Abbasali) as to whether respondent no.1 will come to his house (after delivery) and at that time Abbas ali had stated, "there is nobody to take care at my place and hence she will go to her in-laws place." The circumstances narrated above are very much clear which explain that respondent no.1 must have gone to her in-laws place at the time or after her delivery.
16. The case of the petitioner has been that the first respondent had her husband's house in the nearby locality and that there was sufficient accommodation available to her over there. As far as this part is concerned, the first respondent has stated in para 5 of her deposition that the ownership of the house (which is supposed to be belonging to her father-in-law) is divided amongst 8 brothers and that her husband has no share in that. It is further stated that the said house is almost 100 years old and it requires major repairs for which her father-in-law and his sons do not have sufficient funds. It is stated that on the ground floor of that building there are three shops and one factory. The three shops are rented. It is further stated that in that house families of her father-in-law and two brothers are staying. Father-in-law of respondent no.1 has seven brothers and one sister. There is no sufficient accommodation for all of them over there and five brothers of the father-in-law of respondent no.1 are staying outside that building in their places because of inadequate space. It is specifically averred, by respondent no.1 "In that house there is no place either for me or for my husband to stay". In para 15 of her cross-examination respondent no.1 has given detailed description of that house property and as to who is staying where. She has specifically denied that on the third floor of that house her husband and one other brother Shabbir are supposed to be staying. The petitioner has accepted in para 17 of his cross-examination that the said house is an old one. In para 30 of his deposition he has made a statement that he has no knowledge as to who is staying in which part of the house. It is something about which better particulars could have been obtained by seeking appointment of a Commissioner but that has not been done by the petitioner. In fact, as stated earlier, in para 19 of his cross-examination, the petitioner has stated that on the next day after death of Abbasali he had visited the suit premises and at that time he had seen respondent no.1 staying in those premises.
17. There are two salient features of the explanation of respondent no.1. Firstly, that her parents were extremely invalid and needed day-today and constant presence of petitioner. Secondly, on the other hand the house of her father-in-law was an old one and that a large number of persons were staying over there whereby there was not much accommodation for the respondent no.1 and for her husbant to stay there. No doubt, it is true that in the extract from the Registrar of Firm the residential address of respondent no.1 is shown as in Basrai Mohalla, but, that is in the year 1971-72. It is also true that there is hardly any documentary evidence to show that the husband of respondent no.1 was staying with her in the suit premises. But, there is oral evidence of two neighbours who were staying in houses adjoining the suit premises for years together. The supporting witness Aminaben has stated that she has seen the old couple in dire need and respondent no.1 and her husband were attending to them and staying with them and looking after their medical treatment and expenses right from the marriage of respondent no.1. The second witness Hatimbhai has supported the version of respondent no.1 that she used to take tuition to support the family income. This Hatimbhai has stated that his children were going to respondent no.1 for taking tuitions. Respondent no.1 has produced her renewed Ration Card of the year 1975 and the petitioner in para 14 of his cross examination has stated that in the year 1969 the name of respondent no.1 was very much there in her father's Ration Card. He has further stated that in the year 1972 the entry in the fair price shop with respect to Abbas ali showed that there were three members of his family residing in the suit premises. All these factors are considered by the trial court. The learned trial judge has also noted in para 16 of his judgement that the petitioner did not examine any witness of the locality or adjoining neighbours. Further, in para 16 of the judgement the learned trial judge has accepted the evidence of Aminaben by stating that there were no reasons for discarding the evidence of this witness inasmuch as nothing is alleged against this witness by the plaintiff. The learned judge has given credit to her inasmuch as she was residing just opposite to the suit premises and had personal knowledge. The learned judge has also accepted the evidence of Hatimbhai, other supporting witness of respondent no.1. The reliance on the evidence of these two witnesses by the learned judge is approved by the appellate court in para 11 of its judgement by stating, "the trial court has rightly relied upon the testimony of Aminaben. The testimony of the defendant no.1 is also corroborated by Shri Hatimbhai. His evidence disclosed that defendant no.1 was residing in the suit premises at the time of death of Abbasali in the year 1972. He has supported the version of defendant no.1. His two children were taught by defendant no.1 in the suit premises and he had therefore occasions to visit the suit premises and he saw the defendant no.1 and her husband residing in the suit premises. There is no reason to disbelieve the evidence of Hatimbhai Taiyebali."
18. It is also material to note that petitioner's second witness one Prakash Naik, an employee of Electricity Board, who had visited the suit premises on application given by respondent no.1 has stated that when he visited the premises, he saw respondent no.1 residing over there. The parties have also laid much emphasis on the income of either of them. The petitioner tried to show that the father of respondent no.1 had income from his erstwhile business and investment in shares. That was probably with a view to discard the submission of respondent no.1 that she was required to take tuitions to support the income of the family. The petitioner has also tried to show that the husband of respondent no.1 has a small business from which he must be having good income. As far as the income of the father of respondent no.1 is concerned, it is possible that he must be having some income from his investments but what is relevant to note is that for a very long time he has been suffering from asthma. It should be noted that when respondent no.1 got married, her father was aged around 88 years. The mother of the respondent no.1 was completely bedridden and paralytic. All these ailments require good amount of expenditure and respondent no.1 has deposed that she used to spend for these medical expenses. On the other hand, it has come on record that the petitoner is quite well off, having residential and office premises in Bombay and he has accepted that his annual income must be not less than Rs.48,000/- or so. It is relevant to note that this deposition is given way back in September 1980.
19. In the light of this evidence and the findings of the Courts below, Mr Patel firstly submitted that the testimony of respondent no.1 ought to be discarded and the Courts below had committed error in law in arriving at the finding that they have. He relied upon the judgement in the case of C.S.D. SWAMI V. THE STATE reported in A.I.R. 1960 S.C. at page no.7. That is a case in the context of prevention of Corruption Act and in view of the submission that the prosecution has not led the evidence to show as to what was the known sources of appellant's income, the Hon'ble Supreme Court has observed in para 6 of that judgement as under:-
"The prosecution cannot, in the very nature of things, be expected to know the affairs of an accused person. Those will be matters `specifically within the knowledge' of the accused, within the meaning of Section 106 of the Evidence Act"
Mr Patel therefore submitted that if the entry with respect to birth of the child of respondent no.1 was in any way wrong, it was for the respondent no.1 to give the necessary evidence. He further submitted that her letter at exh.24 clearly gave away the truth. That is particularly to be seen in the background of her trying to disown that letter. Mr Patel states that the said letter can be read in the context that respondent no.1 was staying in her inlaws' house and a person in such circumstances was not required to create any evidence.
20. Mr Patel secondly relied upon the judgement of the Hon'ble Supreme Court in the case of BALDEV SAHAI V. R.C. BHASIN reported in AIR 1982 SC 1091. In paragraphs 13 and 14 of that judgement the Hon'ble Supreme Court has referred to various definitions of the concept of "family". Mr Patel submitted that although concept of "family" is required to be broadly construed, what was relevant for the purpose of Rent Control law was that the persons concerned must be those "who are actually living with the same head" as stated in para 17 of that judgement. Mr Patel also relied upon a judgement of single judge of this Court reported in 1997 (2) GLR 929 in the case of STATE OF GUJARAT V.RAMAGAURI HARIKISHANDAS wherein in the context of the Urban Land (Ceiling & Reguation) Act, 1976, the learned judge has held that "a daughter ceases to be a member of her family when she becomes member of her husband's family." That also in the context of a Hindu Undivided Family.
21. Ms Brahmbhatt on the other hand relied upon a number of authorities firstly, to contend that what one has to see is the purpose for which the particular provision has been introduced in the Rent Act and also that there is no reason why married daughter should be excluded from the coverage as long as if she continues to stay with her parents. She relied upon a judgement of Madras High Court in the case of P. MAYAN V. KRISHNA NAIR reported in AIR 1945 Mad. 248 (D.B.). In that case it was contended that under Marumakattayyam law a son could not be regarded as a member of his father's family. Yet, the Division Bench observed that "the word `family' must be given the meaning which it has in the English language. Moreover, it has to be remembered that the object of the section is to prevent a tenant who has been in possession of kudiyiruppu for ten years from being evicted; and it would be a strange thing if the father's occupation could not be tacked on the son's occupation when the son followed his father as the tenant. We agree with the District Judge and Mockett, J. that the word "family" is not used in the restricted sense suggested by the appellant. To give it such a restricted meaning would, in our opinion, defeat the intention of the Legislature."
22. Ms Brahmbhatt thereafter relied upon the judgement in the case of RAMUBAI V. JIYARAM reported in AIR 1964 Bom. 96. In that matter a question had come up as to whether notice given to some of the descendants of a lessee could also be considered as notice to the married daughters who also claim share in the property though they were staying away. That was in the context of Section 106 of the Transfer of Property Act. The learned single judge has held, "even assuming that it may be right to hold in certain circumstances that a daughter who is married goes out of the family, I am not persuaded to give a restricted interpretation to the word "family" in the context in which the word is used under Section 106 of the Trnasfer of Property Act." Then, in para 17 the learned judge has observed as follows:-
"Thus, it cannot be said that merely because the parties to this litigation are Hindus the word `family' should receive a restricted interpretation. The word seems to be used in a broad sense and would mean all those who are connected by blood relationship or marriage, and are therefore to be considered as belonging to the family. It is not also possible to accept the contention that even in the case of Hindu families girls who are married and go to the husband's families are not of the family of their father or cease to belong to the family of the father. Whatever may be the concept at one time, under the existing law, even married daughters take substantial interest in the family and the family property. Thus, the prevailing concept as to `family', far from being restricted, has been considerably expanded by creating interest in the family and substantial interest for many persons who had no such interest in the property, such as widows of predeceased heirs, or even married or unmarried daughters or widowed daughters. Thus, the whole concept has been enlarged by legislation and it would be putting too narrow a construction on the concept of the word `family' in Hindu law if married daughters are considered to be outside the family. I am inclined to accept the literal interpretation and hold that even married daughters may be said to be of the family."
23. Then in the case of S.N. SUDALAIMUTHU V. PALANIYANDAVAN reported in AIR 1966 SC 469 the question came up as to whether a son-in-law who is cultivating the land could be protected under the provisions of the Madras Cultivating Tenants' Protection Act, 1955. In that case after referring to the definition of family in Webster's New World Dictionary which stated that a family is a group of people related by blood or marriage, relatives" the Hon'ble Supreme Court held, "a person can therefore be properly regarded as being a member of his wife's family and not merely of his father's family." This judgement was subsequently relied before a Division Bench of this Court in the case of MOHANLAL MANSUKHBHAI V. PUNJIBEN reported in 18 GLR 228. That was a case where a daughter and daughter's husband both residing with the deceased tenant claimed protection under section 5(11)(c)(i) of the Bombay Rent Act. The Division Bench in terms referred to the above referred observations of the Hon'ble Supreme Court reported in AIR 1966 SC 469 in para 3 and held as under:-
"The tenant's definition is also aplicable to all persons, not only to the widow and the daughter but also to daughter's husband, or the son-in-law as held by their Lordships in the aforesaid decision."
24. Relying upon this judgement, Ms Brahmbhatt submitted that merely because the daughter is married, she cannot be excluded from the beneficial provision which is made under section 5(11)(c) of the Act. True it is that normally a daughter goes out of the family on her marriage but what one has to see is the context in which the provision is introduced in the Statute. If a married daughter continues with her parents, looks after them in their old age and attends to their requirement day-today and constantly there is no reason why she should be excluded from the protection which would otherwise be available to a son. Here, we are concerned with the intention of the tenant as to whether he construes such a person as a member of his family. We are concerned in knowing as to what is his representation. The submission of Ms Brahmbhatt is that clearly the principal tenant Abbas Ali had conveyed to his landlord (through the continuous stay of respondent no.1 with Abbas Ali despite her marriage) that his daughter was a member of his family prior to her marriage and she continued to be member of his family thereafter also. The submission of Ms Brahmbhatt is that at the time of death of father of respondent no.1, she as well as her mother both got protection under Section 5(11)(C) of the Rent Act and that the said protection continued to be available to her even after the death of her mother.
25. Ms Brahmbhatt also relied upon the judgement in the case of PANDURANG V. ANANT reported in AIR 1982 Bom. 115 wherein a distant niece who was looking after the aged tenants at the time of their death was held to be protected under the concerned provision. In para 13 of that judgement, the learned judge has observed, "What we have to see is not the degree of the relationship but the nearness felt by the tenant for the relationship concerned." Mr Patel, on the other hand, was quick to point out that in an almost similar case in the case of MADHUBEN NATWARLAL V. PRAJAPATI PARSHOTTAM reported in 1990 (2) GLR 1177 a single judge of this Court had held that the word "family" could not be interpreted so broadly as to include very distant niece or cousins. Be that as it may, in the instant case, we are not concerned with a distant relationship but a married daughter. Her statement that her husband continued to stay with her in the suit premises after their marriage was supported by two witnesses and it was believed by both the courts below. In this behalf, Ms Brahmbhatt has also relied upon the judgement reported in the case of GIRDHARBHAI V. SAIYED MOHMAD MIRASAHEB KADRI reported in AIR 1987 SC 1782. That was a case wherein the allegation against the tenant was that he had sublet the premises whereas the defence of the tenant was that he had not sublet the premises but a partnership was existing between the parties concerned. The trial court took one view whereas the appellate Court took another. The Supreme Court examined the aspect in details and accepted the submission of tenants that there was a partnership. The Supreme Court has observed in para 8 that whether there was a partnership or not was a mixed question of facts and law. But that apart, the Court held that if a possible view has been taken the High Court would be exceeding its jurisdiction to substitute its view with that of the lower court's view merely because it is considered to be a better view. In para 16 the Hon'ble Supreme Court has observed as follows:-
"We must, however, guard ourselves against permitting in the guise of revision substitution of one view where two views are possible and the Court of Small Causes has taken a particular view. If a possible view has been taken, the High Court would be exceeding its jurisdiction to substitute its own view with that of the courts below because it considers it to be a better view. The fact that the High Court would have taken a different view is wholly irrelevant."
Ms Brahmbhatt relied upon the observations of the Hon'ble Supreme Court in a recent case in AIR 1997 SC 107 (RAM AVTAR V. RAM DHANI) wherein in para 8 the Hon'ble Supreme Court has held as under:-
"This Court has repeatedly pointed out that howsoever wide the power under statutory revision may be in contrast to Section 115 of the Code of Civil Procedure, still while exercising that power the authority concerned cannot act as court of appeal so as to reappreciate the evidence on record for recording findings on questions of fact."
26. Having considered the material on record, as also the findings given by the courts below and the authorities cited on both the sides, in my view, the submission of Ms Brahmbhatt is well taken. Undoubtedly, there are some deficiencies in the manner in which the evidence was placed before the trial court on behalf of respondent no.1. Respondent no.1 could have examined her husband or could have produced some more documentary evidence with respect to her husband also being over there on the suit premises. But, at the same time, what is material is to see whether from the record the concurrent view taken by the courts below is a possible one. The address in her child's birth certificate is explained by the statement of the petitioner himself in his cross examination wherein he states that the father of respondent no.1 told him that his daughter had gone for delivery at her inlaws' place since there was nobody to look after her in his house. The address in the extract of Registrar of Firms is of the year 1971-72 which is just immediately after the marriage of the parties. As against that, respondent no.1 has produced a number of letters received by her at the suit premises over a number of years, her graduation certificate, ration card and even the letter from mother of the petitioner expressing condolence on the demise of her mother. She has two immediate neighbours supporting her whose evidence has been believed by the courts below. All these circumstances coupled with serious ailments of her parents cannot be ignored and brushed aside. This can only lead to an inference that she undoubtedly lived continuously with her parents after her marriage.
27. Of course, the other view as canvassed by Mr Patel is that the respondent no.1 stayed at her in-laws place and came over to her mother's place as and when necessary. Mr Patel laid stress that on respondent's own letter at exh.24 wherein she stated that there was no reason for her to create any evidence in her favour and that she tried to disown that very letter. As I have stated earlier, the case discloses that the parties had very good relations at one point of time and when they have gone to the Court they have used whatever means that were available. In any case even that letter when read carefully, contains an explanation that inasmuch as repsondent no.1 was very much staying in the suit premises there was no need for her to create any evidence. It is also material to note that the petitioner has also used undesirable means to obtain a confession from respondent no.2 who was a servant of respondent no.1 and her parents. Hence, in my view, the findings of the Courts below that respondent no.1 continued to stay with her parents at all material times will have to be accepted.
28. Mr Patel submitted that inasmuch as respondent no.1 was married, there had to be some evidence with respect to her husband staying with her. The deposition of respondent no.1 is very much to that effect and so also the deposition of two supporting witnesses. As stated above, there is some inadequacy with respect of documentary evidence but, looking to the fact that at the time when respondent no.1 got married, her father was aged 88 years old and was suffering from Asthma for more than 10 years or so before that and her mother was paralytic and completely bedridden and also that she was attending to her natural calls in bed itself, only a female member of the family was necessary at all material times. Certainly, the father of respondent no.1 could not be said to be looking after his ailing wife when he was also 88 years old and in such a situation the inference has to be drawn that respondent no.1 had through out stayed over there with her husband. The nearness of her inlaws house cannot be read against her. It is on the contrary that this nearness helped her husband to maintain continuous contacts with his father's family and as stated by father of respondent no.1 at the time of her delivery she could seek assistance from her inlaws place. As seen in AIR 1964 SC 469, a person can be properly regarded as being Member of his wife's family and not merely a father's family. What is relevant is that by continuing to stay with his wife he and his wife were accepted as members of the family of deceased Abbas ali for the purposes of protection under Rent Act. The concept of family is an elastic one and as seen in a number of judgements above, the same is capable of a broad interpretation. What is material to note is the purpose for which the relevant provision has been made. What is again material to understand is as to what one can gather from the facts on record, as to what could be said to be the representation by the principal tenant to the landlord. In the instant case by permitting his married daughter and son in law to stay with him, deceased Abbas ali had in clear terms represented to the petitioner that his married daughter continued to stay with him as a member of his family. In the circumstances, the eviction of respondent no.1 on the demise of father and mother cannot be called for. Section 5(11)(C) of the Bombay Rent Act clearly protects a member of the family of a deceased tenant so long as he is staying for a period of 3 months prior to the death of tenant. Such a member of the family is rightly entitled to claim transmission of tenancy.
29. In the circumstances, this being a revision, it cannot be said that the decisions of the Courts below were not in accordance with law, which is what one is required to scrutinise under section 29(2) of the Bombay Rent Act. This petition is therefore rejected though without any order as to costs.