Rajendra Alias Rajan Vs Heirs of Deceased Jayram Gangadhar Joshi

Appearance: (MR SURESHM SHAH)(805) for the PETITIONER(s) No. 1 MR MEHUL S SHAH(772) for the PETITIONER(s) No. 1 MR DHARMESH V SHAH(1050) for the RESPONDENT(s) No. 1.1 MS. SONAL M JOSHI(6550) for the RESPONDENT(s) No. 1.1 RULE SERVED(64) for the RESPONDENT(s) No. 2

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UNSERVED EXPIRED (R)(69) for the RESPONDENT(s) No. 1.2

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CORAM: HONOURABLE MR.JUSTICE BIREN VAISHNAV

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Date : 12/06/2018 ORAL JUDGMENT

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1.This petition has been filed by the
petitioner challenging the order dated 14.08.2012
passed by the learned Judge, Small Causes Court
No.6, Ahmedabad.

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2. The facts in brief are as under:

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Page 1 of 10

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2.1Respondent No.1.1 and 1.2 are the heirs of
deceased1 Jairam Gangadhar Joshi. Jairam
Gangadhar Joshi was owner of the property
situated in Bhadra area, near Laldarwaja in
Ahmedabad. The respondent No.2 herein was the
tenant of the property. Jairam Joshi therefore,
in the capacity of landlord filed HRP suit
No.1529 of 2001 in the Small Causes Court at
Ahmedabad praying for eviction of the respondent
No.2 herein/original tenant. Title of the suit
as reflected in the judgment of HRP suit
indicated that the present petitioner was the
original defendant No.2 in the said suit. The
judgment in the HRP Suit also indicated that it
was the case of the plaintiff that the present
petitioner who was the defendant No.2 was using
the suit premises as a family member. By the
judgment and order dated 05.08.2004, the suit
against the present petitioner and the original
respondent No.2 was dismissed.

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3.The heirs of the original landlord-the
present respondent No.1.1 and 1.2 in the meantime
preferred Civil Misc. Application No.812 of 1995
for fixation of rent. The original tenant
Respondent No.2 herein died on 22.09.2010. On the
death of the original tenant, the present
petitioner who was the grandson of the tenant
filed application below Exhibit 222 stating that
since he was the grandson of the deceased tenant

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Page 2 of 10

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Shushilaben and was residing with her in the suit
property which was rented to the original tenant,
he ought to be entered/arrayed as a party in the
Civil Misc. Application No.812 of 1995. The
landlord too filed an application Exhibit 217
requesting that son of the original tenant
Sharad-son of respondent No.2 be brought on
record as heir. Both applications were
simultaneously heard and vide impugned order, the
Small Causes Court allowed the application of the
landlord by which original tenant respondent
No.2’s son Sharad was brought on record as heir.
However, the application Exhibit 222 of the
present petitioner was rejected. Learned Trial
Judge in the judgment, while hearing considered
the provision of Section 5 (11(c)) of the Rent
Act and observed that since Sharad was deceased
Shushilaben’s son, he ought to be brought on
record. However, as far as the application of
petitioner was concerned that was rejected on the
ground that he was a “third person” and therefore
not a necessary party. According to the learned
judge, he was not a family member falling within
the provisions of Section 5 of the Rent Act.

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4.Mr. Jenil Shah, learned counsel for the
petitioner argued that it is evident from the
array of the parties of the suit which was
decreed in the favour of the tenant that present
petitioner was admittedly defendant of the said
suit. Drawing my attention to the averments made

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Page 3 of 10

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in the body of the judgment, it is pointed out
that it was an admitted position that the present
petitioner/original defendant No.2 in the suit
was residing with him.

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5.Mr. Shah has also pointed out a case law in
the case of Trustees Of Gopinathki Devmandir
Public Trust Versus Legal Heir Of Decd. Jadiben
Jivabhai Koli reported in 2012(1)GLR 726. This
Court while considering the issue of the term
“family member” withing the meaning of Section
5(11)(c) has considered and held as under:

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“7.1 The word “family” is nowhere
defined under the Rent Act. Therefore,
the Court has to decide that a
particular person can be considered as
a member of the family of a tenant or
not. In the case of Taraben D/o
Shivshanker Nathji Pandya Through
P.O.A. Kaushikbhai M.Bhatt vs. Manubhai
Harinarayan Pandya & Ors. as reported
in 2012 (2) GLR 1482, the Division
Bench of this Court (to which A.J.
Desai,J., was a party), the word
“family” is examined in detail with
regard to the Bombay Tenancy and
Agricultural Lands Act, 1948 is
concerned. The word “family” is also
not defined in the said Act. The
Division Bench has, after considering
severaljudgmentsanddifferent
dictionary meaning, considered that if
by a statue the word of “family” is not
defined, it must be decided on the
facts of each case. As per the
definition of Black’s Law Dictionary,

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Page 4 of 10

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9th Edition, word “family” is defined as
“(1) a group of persons connected by
blood, by affinity, or by law, esp.
within two or three generations; (2) a
group consisting of parents and their
children, and (3) a group of persons
who live together and have a shared
commitment to a domestic relationship.

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7.2As far as a person is a member of
the family or not with regard to the
Rent Act is concerned, the Apex Court
inthecaseof Kailashbhai
ShukaramTiwari vs. Jostna Laxmidas
Pujara & Anr., as reported in (2006) 1
SCC 524, has held that it would depend
upon the facts and circumstances of
each case. In para-12 it has been
observed as under:

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“12.................It is futile to
attempt to lay down a straitjacket
formula as to who can be considered to
be the member of the family of the
tenant, particularly in absence of
definition of “family” in the Act.
Havingregardtorelevant
considerations, the question must be
decided on the facts and circumstances
of each case. The High Court has relied
upon some decisions of this Court
wherein the question raised was whether
the brother was a member of the family,
or a case where the tenant had to go to
a foreign country on business, leaving
behind his parents and family members,
including brothers and sisters. In such
a factual situation, this Court held
that the persons who occupied the
premises were the members of the family
of the tenant.”

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In the case of Raghavan vs. Kelappan,

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Page 5 of 10

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as reported at 2006 (3) JCR,499, the
Larger Bench of the Kerala High Court,
while dealing with the word “family”
under the provisions of the Kerala
Buildings (Lease and Rent Control) Act,
by relying upon several decisions of
the said High Court, has held in para-5
as under:

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“5 Learned Single Judge of this Court
in Muhammad and Ors. v. Sinnamalu Amma,
1977 KLT 795, held that the expression
“family” which is undefined by the Act
is elastic and its ambit has to be
determined in all the circumstances of
the case, having regard to the habits,
ideas and socioeconomic milieu of the
parties. Same view has been taken by a
Bench of this Court in Balakrishna
Menon vs. District Judge, 1994 (1) KLT
102. Another Division Bench of this
Court followed the above decision in
Krishnan Thampi v.Sankaradas, 2002 (1)
KLT 930. Later, a Bench of this Court
in Kammancheri Janaki and Ors. v.
Karattu Govindan Nair and Ors., to
which one of us (Radhakrishnan, J.) was
a party, held as follows:

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“in the socio condition of our country,
the expression “family” has to be given
a wider meaning which is elastic and
that it has to be determined on the
facts and circumstances of each case
and the status of the dependent in the
family.

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Later another Division Bench of this
Court in Ismail v.Kesavan, held as
follows:

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Dependency does not mean financial
dependency, but dependency for the

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Page 6 of 10

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building which belongs to the landlord.
In our society, generally son,
daughter, son-in-law, daughter-in-law,
brother, sister, etc are members of the
family and would in many cases depend
upon the head of the family. The Kerala
Rent Control Act does not define the
term “family”. But what constitutes the
family in a society depends upon
ancestry, birth, blood relations,
common lineage, line of descent and the
habitsandideasofpersons
constituting the family. In short its
ambit has to be determined with regard
to the socio-economic milieu of the
parties.

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In Prathpan vs. Rama Warner, a Bench of
this Court while construing the word
“family” took the view that there may
also be cases where sisters, brothers,
brothers-in-law,sistersin-lawbe
treated as members of the family and it
all depends upon the family relations
and family bonds. A domestic servant
who has served the family throughout
his life could also in a given
situation be treated as member of the
family. Personal laws of the parties as
such may not guide us to find out the
meaning of the expression “family”. The
expression “family” has been denied in
the Chambers 20th Century Dictionary to
mean “all those who live in one house
(as parents, children, servants), the
descendants of one common progenitor
etc. The word “family” may also be
taken to mean collective body of
persons who live in one house under one
head or manager and includes within its
fold household, children and servants
as the case may be. Osborn’s Concise
Law Dictionary defines the word

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Page 7 of 10

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“family” so as to include all those
persons who were subject to the
potestas of the same individual,
whether his children, grand children,
etc. or unconnected in blood, eg.
slaves. Further all descendants of the
same ancestors, all persons connected
by agnation, slaves of the pater-family
or property of a pater-family Various
High Courts have also given a wider
meaning to the expression “family” as
well as the expression”dependent”. In
B.Balaiah v.Chandoor Lachaiah, the
Court held that it is not only
permissible but it is proper and
desirable for the Court to bear in mind
the context of the social order, the
habits and ideas of living and the
individual concerned belongs. The Delhi
High Court in Govind Dass vs. Kuldip
Singh, held that the word “family” must
be construed with reference to habits
and ideas of the persons constituting
the particular society and the
religious and the socio custom of the
community to which such persons belong.
The Bombay High Court in Kamal
ChintamanMitharivs.Ganpatrao
Ramachandra Powar, held that the
mistress of a tenant who was living
with him alongwith their children in
the disputed premises at the time of
his death must be regarded as a member
of his family for the purpose of
Section 5(11)(c) of the Bombay Rent
Hotel and Lodging House Rates Control
Act. Similar view is taken by other
High Courts, namely, in V.M. Deshmukh
v.K.M. Kothari, AIR 1951 Ng. 51, Firm
Rajnilal & Co. v. Vithal Pandurang, AIR
1953, 144; Seshanarayana Rao v.
Venkatesa Rao, AIR 1953 Mad. 531,
Kolandavel Chettiar v. Koolayana

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Chettiar, 1961 Mad.L.J. 184, Runju v.
Ahmed Unnisa Begum, 1963 (1) Mad. LJ
970, Bindhubusan v. Commissioner, Patna
Division., etc. Reference be made to a
few decisions of English Courts. In
Smith v. Penny, (1946) 2 All.E.R. 672,
it was held that children of landlord’s
friend and his wife to look after the
children are considered to be member of
the family. In Jones v. Whitehil 950
(1) All. E.R. 71, it was held that
niece of the tenant’s wife who had
nursed the tenant and his wife is also
a member of the family.”

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6.Section 5(11)(c) of the Act reads as under:-
Definition.- In this Act unless there us anything
repugnant to the subject or context,-
***

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(11)”tenant” means any person by whom or on whose
account rent us payable for any premises and
includes,-

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***

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(c)(i)in relation to premises let for residence,
any member of the tenant’s family residing with
the tenant at the time of, or within three months
immediately preceding, the death of the tenant as
may br decide in default of agreement by the
Court, and

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***

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6.1What is evident from the reading of the
provisions of Section 5(11)(c) is that any member
of the tenant’s family residing with the tenant
at the time of or within 3 months immediately

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Page 9 of 10

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preceding the death of the tenant is a “tenant”
within the meaning of Section 5(11)(c) of the
Act.

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7.From the averments made in the application
Exhibit 222 also, it becomes evident that the son
Sharad of the deceased original tenant
Shushilaben was residing in Maharashtra. It is
not the case of the respondent No.1 herein-
original landlord that the present petitioner was
not residing with deceased tenant Shushilaben
therefore, it clearly falls within the meaning of
“tenant” as defined under Section 5(11)(c).

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8.In view of the above, order dated 14.08.2012
passed below application Exhibit 222 is quashed
and set aside. In view of the quashing of the
order dated 14.08.2012 present petitioner shall
be shown in the array of parties of Civil Misc.
Application No.812 of 1995 as defendant/opponent,
being a “tenant” as defined under Section 5(11)
(c) of the Rent Act. In view of the aforesaid,
the proceedings before the Small Causes Court
No.6, Ahmedabad below Civil Misc. Application
No.812 of 1995, shall proceed further with the
aforesaid addition of the petitioner as
respondent in such application. Petition is
allowed. Rule is made absolute.

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(BIREN VAISHNAV, J)

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N.V.MEWADA

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Rajendra Alias Rajan v. Heirs of Deceased Jayram Gangadhar Joshi

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Rajendra Alias Rajan v. Heirs of Deceased Jayram Gangadhar Joshi

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