MOTILAL PANNALAL Vs. KAILASH NARAIN

JUDGEMENT

(1.) The only question involved in this second appeal is whether a decree passed in favour of the plaintiff on the ground of personal necessity under Section 4(g) of the M. B. Control of Accommodation Act No. 23 of 1955 must be set aside if the plaintiff dies during the pendency of the appeal from that decree.

(2.) The respondent's father Banwarjlal instituted this suit against Motilal appellant on the ground that he required that house for himself because he wanted to shift from his village Barkheda to Biaora, where the disputed house is situate. It was also alleged in the suit that the portion A, B, C, D of the house was actually let out to the defendant while he took wrongful possession of the Other portion E, F, G, H. The suit was resisted by the defendant but he has been unsuccessful in both the Courts below.

(3.) In this second appeal the learned counsel for the defendant contends that the personal requirement must continue up to the date of the judgment in the final Court of appeal, otherwise no decree can be passed for eviction of the tenant and, if one is already passed by the lower Court, it must be set aside by the superior Court. On this argument it is urged by Shri Gupta that because of Banwarilal's death during the pendency of the appeal, the decree should have been set aside by the first appellate Court. The learned counsel relies on the decision reported in Savitridevi v. Ramsarup MBLJ 1954 HCR 1719. I am of the opinion that this argument ignores the fact that the expression 'personal requirement' in Section 4(g) of the Act must be construed to mean the requirement of the accommodation for his own body as also his wife and dependant children, because they cannot be separated from him so far as the question of residence is concerned. I am, therefore, clearly of the opinion that the requirement for his own residence cannot be construed so narrowly as to confine the requirement for the per- son of the single individual, namely, the landlord alone. I am supported in my view by the decision in Smith v. Penny, (1946) 2 All ER 672 where it is laid down: "The words "for himself" in the Rent and Mortgage Interest Restrictions (Amendment) Act, 1933, Schedule I, (h)(i), should not be strictly interpreted as meaning occupation for residence by the landlord personally, but should be interpreted as covering the case of his wanting the house as a family home, whether he intends to live in it himself or is unable to do so for some special reason." If Banwarilal wanted to shift from Barkheda to Biora it necessarily implied that his house at Biaora was required for himself, his minor son Kailash Naraiu (respondent in this Court) and his wife Bhavari Bai, guardian of the minor. The decree passed by the trial fudge in favour of the landlord Banwarilal cannot be set aside on the ground that he has died. The decree enures to the benefit of his son and widow.