Y S CHEN Vs. BATULBAI

JUDGEMENT

(1.) The second appeal by tenant-defendant by order dated 23-1-1985 was admitted for final hearing on the following substantial question of law :

(2.) The respondent-plaintiff filed suit for eviction against the defendant-tenant claiming that she had become owner of groundfloor of House No. 390 Bohra Oli, Neemuch Cant consisting of four rooms, toilet and bathroom by virtue of gift made in her favour by her mother Hussainabi on 25-8-1976. Being a Mahommedan she was governed by the Mahommedan Law in the matter of gift also. The defendant was informed of this gift by the plaintiff and her mother by letters dated 24-10-78 and 25-10-78. The plaintiff claimed eviction of the defendant on ground of arrears of rent, nuisance by keeping a ferocious dog and bona fide requirement for residence for herself and two nephews, sons of her sister dependent on her. It was also claimed that plaintiff had been residing with her brother and she bona fide required the two rooms, toilet and bathroom let out to the defendant. The defendant resisted the suit contending that plaintiff was not the owner of the suit accommodation; she did not bona fide require the same for her residence, nephews were not the members of her family within the meaning of S. 2(a) of the Act. He also denied nuisance. The trial Court, Civil Judge Class II, Neemuch, by judgment and decree dated 11-4-1983 inter alia held that plaintiff bona fide required the suit accommodation for her residence but he also held that need of two nephews could not be considered for judging plaintiffs bona fide need as they were not members of the family within the meaning of definition set out in S. 2(e) of the Act. Other grounds of nuisance and arrears of rent were held not made out. In appeal by the tenant-defendant the first appellate Court, Additional Judge to the Court of District Judge, Mandsaur, at Neemuch, by judgment and decree 29-9-84 upheld the finding of the trial Court as to plaintiffs bona fide requirement in respect of the suit accommodation. He further held that the need of the two nephews dependent on plaintiff had also to be taken into consideration for judging her bona fide need in respect of the suit accommodation. He dismissed the appeal.

(3.) At the hearing of the appeal Shri S.R. Joshi, learned Senior Advocate, representing the appellant submitted that the available material on record did not lead to inference that plaintiff-respondent's mother had made a valid gift under Mahommedan Law. Shri Joshi during arguments submitted that essential of valid gift under Mahommedan Law consisted in declaration, acceptance and delivery of possession. He submitted that while gift was allegedly made on 25-8-1976 notice of the same was given two years and four months after to the defendant-appellant on 24-10-1978. He further submitted that the alleged gift property consisted of an undivided share in a house and gift could not be said to be valid. In that connection Shri Joshi referred to relevant provisions in Mulla's Mohommedan Law, which would be referred to later. Relying on Pradyumna Kumar Mullick v. Kumar Dinendra Mullick, AIR 1937 PC 256 Shri Joshi argued that as the plaintiff-respondent claims derivative title in respect of the suit accommodation, the defendant-appellant was not estopped from challenging her title of ownership over the suit accommodation. Shri Joshi contended that plaintiff was not proved to be owner of the suit accommodation and the suit by her on ground under S.12 (1)(e) in absence of her ownership was not maintainable. He further submitted that the two nephews, sister's sons, could not be said to be members of the plaintiffs family within the meaning of definition of 'family' in Section 2(e) and their need could not be taken into consideration in judging plaintiffs requirement in respect of the suit accommodation. For the argument Shri Joshi relied on Hiranand v. Srikrishna Taval, 1979 Jab LJ (Note) 62 and Lalta Prasad v. Ramcharan, 1986 Jab LJ 713. Shri Joshi also submitted that having regard to misery due to scarcity of accommodation humanist approach in such matter should be adopted and for this he relied on Jayram Ranchhoddas Thakkar v. Tulshiram Ratanchand Mantri, AIR 1977 SC 1357. Relying on Ramswarup v. Prem Narain Verma, 1973 MPLJ 505, Shri Joshi argued that the landlord has to satisfy the Court objectively that requirement is bona fide; it is not merely plaintiff's word that will be decisive. The plaintiff is not the sole arbiter. It is not bona fide of the landlord but bona fide of the claim which must be established. That, Shri Joshi submitted, was lacking in the case. He argued that the appeal should be allowed and the suit dismissed.