PRAJAPATI MANUBHAI MULJIBHAI Vs. PRAJAPATI AMBALAL JETHABHAI

JUDGEMENT

(1.) This Civil Revision Application is filed by the petitioners landlords against the judgment and decree of Assistant Judge, in Appeal No. 22 of 1976 dated 13th March, 1980, whereby he allowed the appeal and set aside the judgment and decree passed by the Trial Court directing defendant tenant to hand over peaceful and vacant possession of the suit premises. The lower appellate Court, thus, dismissed the suit of the petitioners landlords for possession.

(2.) In order to appreciate the legal submissions made by the learned Counsel appearing for the petitioners landlords, it would be relevant to set out few relevant facts hereunder :

(3.) Mr. K. C. Shah, learned Counsel appearing for the petitioners landlords has strenuously urged before this Court that the Courts below were not justified in holding that petitioners plaintiffs were not landlords within the meaning of the said term as defined by Explanation to Sec. 13(1)(g). In his submission, a person who has acquired his interest in the premises subsequent to 1st of January, 1964 or if the interest has devolved on him by inheritance or succession on or after 1st of January, 1964, shall not be regarded as a landlord for the purposes of Clause (g) of sub-sec. (1) of Sec. 13 of the Bombay Rent Act. He submitted that this explanation was introduced by Gujarat Act No. 57 of 1963 with specific intention so as to protect tenants from their eviction by dubious transfer of properties in urban areas. He submitted that even landlords, on whom the interest has devolved by inheritance or succession subsequent to 1st of January, 1964 were also precluded from instituting the suit on the ground of reasonable and bona fide requirement under Sec. 13(1)(g) of the Bombay Rent Act. However, the explanation nowhere refers to recognition of subsisting or existing interest of co-parcener in a Joint Hindu Family property by a subsequent deed of partition whereby properties are divided by metes and bounds and property falls to the share of the person, who reasonably and bona fide requires the premises for his personal occupation, submits Mr. K. C. Shah. Under Hindu Law, if the properties belong to a Joint Hindu Family, all co-parceners of undivided Joint Hindu Family have interest in the property. Such interest is unascertained equal interest liable to fluctuate. Nonetheless, all members of undivided Hindu Joint family have interest in the joint family property. Such interest is unascertained and gets specified and ascertained only on properties being partitioned by metes and bounds. Therefore, when partition of the property takes place amongst the members of undivided Joint Hindu Family, it cannot be said that interest in the property is acquired by the person to whose share the property has fallen. Partition is only recognition of the existing or subsisting right of members of Joint Hindu Family, whose share in the undivided property gets clearly earmarked and specified. Such a person, to whose share, a particular property has fallen, is not one who has for the first time acquired interest in the property. His interest was existing or subsisting and to such a situation Explanation to Sec. 13(1)(g) is not attracted. Such a coparcener whose interest is earmarked or specified cannot be said to be a person who has for the first time acquired interest in the property either by inheritance or by succession.