RADBAVALLABH Vs. DAMODARDAS

JUDGEMENT

(1.) THIS is a tenant's appeal from the Judgment and decree of the learned Senior Civil Judge No. 1 Jaipur City, dated December 2, 1963, confirming the trial Court's decree for his eviction from a shop in Jaipur City. The grievance of the appellant is that both the courts below have taken the view that Radhey Shyam, the son of the Landlord's brother, was a member of the landlord's "family" within the meaning of clause (h) (i) of sub-sec. (1) of Sec. 13 of the Rajas-than Premises (Control of Rent and Eviction) Act, 1950, hereafter referred to as the Act.

(2.) THE shop in question belongs to landlord Damodardass who purchased it on January 33, 1961 and, soon after, gave a notice (Ex. 4) to the tenant on February 1, 1961, terminating his tenancy on the ground that the shop was required by the landlord for the purpose of the business of his nephew. It was not stated in the notice that Radhey Shyam was a member of the landlord's family, but such a plea was taken in the plaint. It was also pleaded that the tenant had committed a default in the payment of the rent, but that plea was found to be false and was rejected at the trial. THE eviction of the tenant was, however, ordered on the other ground that the landlord's nephew was a member of his family and the shop was required reasonably and bonafide by the landlord for the nephew's new business.

(3.) IN Shankarlal Shionarayan Rathi V. Additional Deputy Commissioner, Nagpur (8), the son was separate in residence but was joint in estate with the father and wanted to occupy the joint house for his own residence. It was held that his need could not be brushed aside as that of a mere relation of the landlord. IN V. M. Deshmukh Vs. K. M. Kothari (9), the wife wanted to run a maternity-home and it was held the business was of the husband. The learned judges made a reference to Smith V. Ponny (1 ). Ram Pershadsingh V. Mukandlal (10) was a case in which the premises were required by the landlord for the use of his nephews who were his only heirs and were the persons whom the landlord wanted to benefit. Besides, there was evidence to show that he set them by in business and got them married, and that oue of them was actually living with the landlord. It was in these circumstances that the nephews were regarded as the members of the landlord's family. IN giving his judgment Kapur J. , as he then was, referred, with approval, to the English cases of Brook Vs. Wollams (2) and Jenes Vs. Whitehill (5 ). IN Belabhadra Beharilal Vs. Premchand Lalchand (11) it was held that where a father affords support to his widowed daughter and her children, their needs become his needs. IN that case also, their Lordships referred to the cases of Smith V. Penny (1) and Jones Vs. Whitehill (5 ). IN B. N. Gupta Vs. Dr. Satyawati (12), the owner was a widow who had no son. She had an unmarried daughter, and a son-in-law at Agra. She wanted the premises for another son-in-law who was married to her husband's adopted daughter and it was pleaded that he would look after in her old age as she was suffering from heart trouble and he was a medical practitioner. The claim was, however, negatived and it was held that an adopted daughter and her husband could not be said to be members of the landlord's family in the circumstances of the case. The next case is that of D. R. Godse Vs. K. S. Ramachandra Iyer (13 ). It was held therein that the landlord was entitled to eviction of a tenant on the ground that the premises were required for the bonafide use of his mother and undivided brothers and their children. The decision, however, turned on the definition of the expression "member of his family" appearing in the Mysore House Rent and Accommodation Control Act of 1951 and the decision is therefore of no relevance for purposes of the present controversy although it was made use of by the learned Senior Civil Judge in justification of his finding against the present appellant. IN Bidhubhusan Sen Vs. Commissioner, Patna Division (14), the sister's son was not only living with the landlord, but was maintained by him. Their Lordships allowed the claim of the landlord on the ground that the premises were required for the occupation of the nephew for whose maintenance the landlord was found to be responsible. Then there is the case of Motilal Pannalal V. Kailash Narain (15) in which the expression ''personal requirement" was construed to mean the requirement of the accommodation for the landlord as also his wife and dependant children. The learned judge who decided the case took support for his view from the decision in Smith V. Penny (1 ). IN Kolandaivelu Chettiar V. Koolayana Chettiar (16) it was held that the landlord was entitled to apply for the eviction of the tenant on the ground that he required the building for establishing a separate residence for his son. IN G. L. Davar V. Amar Nath Kapur (17) it was held that a landlord could obtain the leased premises on the ground that he required them for his own accommodation or for the occupation of any dependent member of his family. The case was decided on the provisions of sec. 14 (1) (e) of the relevant Act which provided for the landlord's possession if he could, inter alia, show that the premises were required for any member of his family dependent on him. The decision is therefore not directly in point.