SARWARI BEGUM Vs. DISTRICT JUDGE MORADABAD

JUDGEMENT

(1.) This is a landlady's petition. It is directed against an order passed by the learned District Judge, Moradabad dated 22-5-1979 allowing an appeal filed by respondent No. 2 under Section 22 of U. P. Act No. XIII of 1972 and remanding the case to the Prescribed Authority under that Act for disposing of an application filed by the petitioner under Section 21 of the said Act according to law. These are the facts : The petitioner is admittedly the owner and landlady of the accommodation in dispute which is a residential accommodation. One Hikmatullah the father of respondents No. 2 Shrimati Bibbo was admittedly the tenant of the petitioner in the building in question. The petitioner filed an application against Hikmatullah for eviction under Section 21 (1) (a) of the aforesaid Act. Hikmatullah filed a written statement in the said application. During the pendency of the application Hikmatullah died on 14-9-1978. Thereupon, the petitioner filed an application before the Prescribed Authority to the effect that Hikmatullah had died without leaving any heirs and that; therefore, the application of the petitioner was liable to be allowed straightaway, that is without any comparison of hardship. The application was contested by respondent No. 2 who filed an application before the Prescribed Authority to the effect that she was the daughter of Hikmatullah and inasmuch as she was normally residing with him, she was entitled to be imp leaded or substituted in place of her father and to contest the application of the landlady. Both sides filed affidavits in support of their respective versions. The petitioners took the stand that respondent No. 2 was not residing with her father but in fact she was residing with her husband. The Prescribed Authority allowed the application of the landlady under Section 21 of the aforesaid Act, on the finding that Hikmatullah had died, without leaving any heir. It was held that his daughter the respondent No. 2 was not residing with her father but was living with her husband. Against the order of Prescribed Authority, the respondent No. 2 filed an appeal. The appellate Court held, on the basis of the evidence on record, that respondent No. 2 was residing with her father at the time of the latter's death and she was, therefore, an heir of the previous tenant under Section 3 (a) of the Act entitled to contest the application of the petitioner under Section 21 of the said Act. Accordingly, the appeal was allowed and the case was remanded to the Prescribed Authority for being disposed of on merits after taking into account the hardship likely to be caused to respondent No. 2. Counsel for the petitioner submitted that the order passed by the appellate Court is manifestly unsustainable in law. It was urged that even if it be assumed that respondent No. 2 was residing with her father Hikmatullah, she would not be deemed to have been normally residing with him within the meaning of Section 3 (a) of U. P. Act No. XIII of 1972. That being so, it was contended, the respondent No. 2 could not legally be regarded as the heir of Hikmatullah entitled to succeed to his tenancy rights. Having heard learned counsel for the parties, I find no merits in this petition. Learned counsel for the petitioner did not dispute that fact that respondent No. 2 was an heir of the previous tenant Hikmatullah as the latter's daughter. What he submitted was that the words "his heirs as normally resided with him" must in the context of Section 3 (a) he held to mean such heirs only of the tenant as under the personal law applicable to them or under the custom or usage prevalent among the class or community to which the tenant belonged are expected to reside with the tenant. Learned counsel quoted from common taries on Mohammadan Law by Amir Ali and Mullah in support of his conten tion that under the Muslim Law, a wife is bound or expected normally to reside with her husband. That being some it was urged that the respondent No. 2 could not be said to have been normally residing with her father when she had her husband who had a residence of his own. Having given the matter a careful thought, I am unable to accept the above contention. In order to appreciate the submission of the learned counsel for the petitioner, it would be better to have the relevant provision, namely, Section 3 (a) of the aforesaid Act extracted here; "3. Definitions.-In this Act, unless the context otherwise requires : (a) "tenant" in relation to a building, means a person by whom its rent is payable, and on the tenant's death; (1) in the case of a residential building such only of his heirs as normally resided with him in the building at the time of his death. (2) in the case of a non-residential building, his heirs; Explanation : An occupant of a room in a hotel or a lodging house shall not be deemed to be a tenant. " On the plain terms of Section 3 (a), it is clear that the statute is concerned with the factual aspect, namely, whether in point of fact; the heir of the tenant was normally reisind with him. The question has to be determined whether as a matter of fact, the said heir was normally residing with the tenant. The statute is not concerned with whether the heir was or was not expected normally to residing with the tenant. The important words in the provision under exami nation are "his heirs as normally resided with him," (emphasis supplied ). The argument of the learned counsel for the petitioner would have had some validity if the language of the statute had been "such only of his heirs as are normally expected to reside with the tenant. " Learned counsel contended that the word "normally" must be held to have been used in contradistinction with the words, "abnormally" or "exceptionally". It was contended that the normal residence of a married daughter would be her husband's place of abode and not that of her father. This argument again omits to take into account the plain language used in the statute which speaks of "heirs as normally resided with him. " In my judgment, therefore, the true and correct construction of Section 3 (a) (1) of the aforesaid Act would be that the heirs of the tenant of the aforesaid Act would be that the heirs of the tenant who were in point of fact normally residing with him would be the tenant or tenants of the accommodation after the death of the previous tenant. To my mind the term "normally" has been, used in contra distinction with "casual" or "temporary" or "occasional" stay of the heirs of the tenant with him. The heir would be deemed to have been normally residing with the tenant if he was regularly or permanently residing with the tenant. Learned counsel also made an attempt to argue that the finding of the appellate Court that the respondent No. 2 was regularly residing with Hikmatullah is unsustainable, and that the appellate Court committed an error in relying solely on the affidavit of Hikmatullah. I find no substance in this argument. Whether respondent No. 2 was residing normally and regularly with her father is indisputably a question of fact. The appellate Court has recorded a finding on this question upon a proper consideration of the evidence on record. No interference is called for with that finding in these proceed ings. In view of what has been stated above, this petition fails and is dismissed. There will be no order as to costs. .