Sharad Manohar, J.:— This second appeal arises from the suit fried by the respondent for recovery of possession of the suit premises from the appellant with a contention that the appellant is nothing but a trespasser in the suit premises and that, hence, he is entitled to recover possession of the same from him.

2. The appellant's contention was that he was one of the tenants. In respect of the suit premises within the meaning of the bombay rent act and, hence, was not liable to eviction having regard to the provisions of the said Act.

3. It is unnecessary to refer to the meandering manner in which the litigation wended its way till this Court. It is enough here to state that initially the suit was decreed by the trial Court, but the decree was set aside in appeal and it was remanded to the trial Court and after the remand, after going through the evidence lead by both the parties, the learned Judge was persuaded to take the view that the present appellant was a member of the family of the original tenant at the time of the letter's death, was residing with him at the time of his death and, hence, was entitled to protection given to the tenants under the Act.

4. In Appeal, the learned Extra Asstt. Judge has diferred from the view taken by the trial Court and, hence, has allowed the appeal and has decreed the plaintiff's suit. Hence, this second appeal.

5. The few relevant facts are set out hereafter in a chronological order.

6. The suit premises are 83, Narayan Peth (Old Number), that is to say, 26, Narayan Peth, Pune. Admittedly, the premises consist of two rooms in the house Galled “Sanapweda”. Admittedly, it belonged to one Sanap and in or about the year 1950 one Shri Padave took these premises on rent from said Shri Sanap. The present appellant is the son of Padave's widowed sister. The appellant's contention is that he lost his father sometimes in the year 1951 when he himself was a very young boy and, hence, he came to stay along with his mother with said Shri Padave and that he and his mother lived with said Shri Padave as the members of his family. In the year 1968, this house Sanapwada was sold in the insolvency proceedings and was purchased by the present respondent.

7. On 7-1-1373 Padave died. The contention of the appellant is that both he himself as well as his mother had been residing with Shri Padave at the time of his death and in fact his funeral rites and the obsequies were performed by the appellant himself. The appellant's contention is that since he was a member of the Padave's family at the time of his death and since he was residing with said Shri Padave as such member of the family at the time of his death, he was a tenant in respect of the suit premises within the meaning of the Rent Act.

8. On 19-11-1973, the respondent gave a notice to the appellant stating that he had no right to occupy the suit premises and that he was just a trespasser on the suit premises. By the notice the appellant was celled upon to vacate the suit premises and to hand over possession of the same to the respondent. In his reply dated 29-11-1973 to the notice, the appellant stated that he had been residing in the suit premises for nearly 20 years as a member of Padave's family and that, therefore, he had acquired tenancy rights in respect of the premises by virtue of the provisions of the Rent Act. In view of this stand taken by the appellant, the instant suit, out of which the present appeal arises, was filed by the respondent on 17-6-1978 for recovery of possession of the suit property from the appellant with the contention that the appellant had no right, title and interest in the premises in question; that his occupation was unlawful and that, hence; the respondent was entitled to possession of the suit premises on the strength of his title.

9. To complete the chronology of events, it may be useful stating here that after the filing of the suit, the bombay rent act underwent an amendment, brought about by Maharashtra Act No. 22 of 1978. Section 6(11) of the Act which defines the word “tenant” was amended and the original sub-clause (c) of said section 5(11) was substituted by the present clause (c). We are concerned with clause (i) of said sub-clause (c) which finds place in the statute as at present said clause (c)(i) of said section 5(11) runs as follows:

“(c)(i) in relation to any premises let for residence, when the tenant dies, whether the death has occurred before or after the commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Act, 1978, any member of the tenant's family residing with the tenant at the time of his death, or, in the absence of such member, any heir of the deceased tenant, as may be decided in default of agreement by the Court.”

10. It will be thus seen that as the law stands at present, not only an heir of the deceased tenant but even a person who was living with the deceased as a member of his family would be held by the Court to be the tenant in respect of the suit premises even if he is not the heir of the deceased tenant, provided he lived with the deceased tenant at the time of his death as a member, that is to say, as a part and parcel of his family.

11. The plaintiff has filed the instant suit on title and his plain contention is that although Padave was the tenant of the suit premises, still the present appellant had no concern whatsoever with the suit premises. It has not been denied by the respondent that the present appellant was a nephew of the original tenant Padave. But his simple contention is that the appellant is not an heir of the original tenant and, hence; the protection from the Rent Act does not extend itself to the person such as the present appellant.

12. The appellant's contention, on the other hand, has been that as a member of the family of Shri Padave, the appellant resided with him till the time of his death and, hence, under the amended Rent Act he gets full protection extended by the Act to every tenant vis-a-vis the landlord.

13. In order to establish this case, however, it was necessary for the Appellant to establish:

(a) in the first instance, that he was residing with Padave as a member of the latter's family till the time of his death;

(b) that he resided with him at the time of his death as a member of his family:

(c) that he continued to reside in the premises thereafter with intention and readiness to pay rent.

14. The last condition must be deemed to be implicit in the definition.

15. In order to establish these facts, the appellant produced documentary evidence consisting of various letters showing that he had been residing in the suit premises right from the year 1951. He also produced the electoral roll showing that he, his mother and Padave stayed in the suit premises and as such were enrolled in the electoral rolls as the residents of the suit premises. He also produced the Ration Card showing that he himself, his mother and Shri Padave were residing in the same premises as one family. In the Ration Card, the name of the appellant's mother is shown to be the head of the family and the appellant is named as Aba Shankar Chavan and not as Baban Shankar Chavan. Padave is shown just as a member of the family.

16. In addition to this evidence, the appellant also produced other documentary evidence to show that his own children had been residing in the premises along with him. The School Leaving Certificates of the schools in which his children were admitted were produced, which showed that his children were shown to have been staying in the suit premises only.

17. In addition to these documentary evidence, the appellant examined himself and stated that he had been residing in the suit premises as a member of Padave's family for the last about 25 years. He also led the evidence of his brother-in-law (sister's husband). It is to be noted that his sister would admittedly be the heir of Padave under the general law, because Padave had no issue end was probably a widower. The appellant's sister as wall as her husband could, therefore, have made a sustainable claim for the said premises as heirs of deceased Padave. However, Shri Shinde, brother-in-law of the appellant was examined by the appellant as his witness and he admitted that the appellant had been staying in the premises since long before the death of Padave as a member of his family. He even stated that the funeral rites and obsequies were performed by none other that the appellant himself. The tenor of his evidence shows that he was married to appellant's sister in the year 1951 end since that time Shinde knows the present appellant and since that time itself, the appellant had been staying, with Padave as a member of his family.

18. It was on the basis of this evidence that the trial Court held that the appellant was a member of the family of deceased Padave and had been residing with him at the time of his death as such member end as such became a tenant of the suit premises within the meaning of the bombay rent act. In view of the conclusion arrived at by the Court, the Court had no other option but to dismiss the plaintiff's suit so far as the relief of possession was concerned.

19. In Appeal, the learned Extra Asatt. Judge has taken a somewhat strange view of the matter. The learned Judge has held that the appellant might have been staying with Padave, but his stay did not amount to residence within the meaning of the Rent Act. Secondly, the learned Judge held that the letters (Exhs. 33 to 38) which were produced by the appellant showing his residence in the suit premises were not, proved, because the persons who had sent the letters had not been examined. He also field that the letters which showed the suit premises to be the address of the recipient, at the most indicated his stay, but that could not be the evidence for his residence. So far as the Ration Card was concerned, the learned Judge held that the appellant had just not produced the Ration Card. The electoral roll was plainly ignored by the learned Judge and likewise the evidence of the appellant's brother-in-law, Shinde was totally ignored by him. By this process of reasoning, the learned Judge came to the conclusion that the appellant had failed to establish the fact that he had been residing in the suit premises for a sufficiently long time before the date of the death of original tenant as a member of his family. The Appeal was, therefore, allowed by him and the plaintiffs suit for possession was decreed by him.

20. I have gone through the entire evidence and I am satisfied that the decree passed by the learned Extra Asstt. Judge cannot be sustained.

21. In the first place, legal Errors of a gross character have been committed by the learned Judge in keeping away from his mind the various piece a of documentary evidence which have direct bearing upon the question in issue I am referring firstly to the letters (Exhs. 33, 34 and 37). Exh. 33 is an Inland Letter purporting to have been written by one Kalavari Nagesh More to appellant Baban Shankarrao Chavan. The letter shows the suit premises to be the address of the appellant. The learned Judge has held that because this Kalavati was not examined by the appellant, this letter had no evidential value. What the learned Judge has lost sight of is that it is not the contents of the letter that have any bearing upon the question. The letter was produced exclusively with a view to satisfy the Court that this was the residential address of the appellant as early as in the year 1961. One of the postal stamps on the letter is absolutely clear. The stamp is dated 22-6-1961. This means that this letter was written by somebody to Baban Shankarrao Chavan, present appellant, on the address 83, Narayan Peth, Sanspwada, Pune-2 some time before that date. This surely is an important piece of evidence for the appellant to prove his residence in the said premises. The contents of the letter might have been further useful for the appellant. But in the absence of the writer of the letter being examined, it may be possible for the Court to take the view that the contents have not been proved. But the contents need not be proved so far as the appellant's purpose is concerned. All that is relevant for him is the fact that as early as in the year 1961 somebody had addressed to the appellant a letter on the address of the suit premises.

22. Similar is the position of the other two postal documents (Exits. 34 and 37). The postal stamps on these two documents are clear. Letter (Exh. 34) was addressed to the appellant on the address of the suit premises. The postal stamp on the same shows that it was sent sometimes in October 1962. The postal stamp on the other postal document which is a postal acknowledgment receipt is dated 5th May 1965. It is, thus, clear that all these three documents go a long way to prove that the plaintiff had been residing in the suit premises at least from the year 1861.

23. The other letters (Exhs. 30, 35 and 38) have the same evidential effect. So far as these letters are concerned, there is some difficulty arising from the fact that the postal stamp is not as clear as is the case of the documents mentioned earlier. But the letters (Exhs. 35 and 36) are just post cards, bearing the dates 25-9-1962 and 10-1-1964 respectively written by the writers in their hand. It was contended on behalf of the petitioner that these dates are not the contents of the documents as such and, hence, must be held as proved even though the hand-writing is held as not proved. I do not wish to enter into the fray of that controversy because even assuming that these dates cannot be held as admissive in evidence, still the year on the postal stamps make it clear that they are of the year 1962 and 1964 respectively and that much indication is sufficient for the purpose of the appellant to contend with justification that he had been residing in the suit premises in those years.

24. So far as the letter (Exh. 38) is concerned, it purports to have been written by the Registrar of Poona University to the appellant on 10-7-1965. The letter is a printed document, only signed by somebody on behalf of the Registrar. That letter shows the address of the appellant to be 83, Narayan Peth, Pune-2. But so far as this letter is concerned, it does not bear any postal stamp as such and I am prepared to assume that letter may not be taken into consideration in evidence. However, the five postal documents which are already produced are strong pieces of evidence to prove that the appellant had been residing in the suit premises at that time. All these documents are brushed aside by the learned Judge on the ground that the writers of these letters have not been examined by the appellant, losing sight of the fact that the contents of the fetter have no relevance whatsoever so far as the question in Issue is concerned. The contents of the letter are not relied upon by the appellant for the purpose of proving that he was residing in the suit premises. It is only the postal address written on the documents that is important for his purpose and that much part is certainly proved by the appellant on the basis of the postal stamps. It is nobody's contention that there had been any effecting or any tampering with the name and address written on the documents. Keeping these documents out of consideration, without any legal justification, is to my mind, a grave and patent legal error committed by the learned Judge.

25. So far as the electoral roll is concerned, that is even a stronger piece of evidence for the appellant. The electoral roll shows that in the suit premises, in all four persons were residing at the time when the entry was made in the electoral roll. The date of this electoral roll entered is 2-5-1971, long before the death of the origins tenant Padave. The following four persons have been shown to be staying in the suit premises at that time:

(1) Baban Shankarrao Chavan (appellant).

(2) Radha Baban Chavan (evidently the wife of the appellant).

(3) Yamunabai Shankarrao Chavan, (mother of the appellant); and

(4) Madhav Vishram Padave (original tenant).

26. It is clear that all these persons were staying together in the same premises on 2-5-1971. It is not disputed that Yamunabai Shankarrao Chavan was the sister of Madhav Vishram Padave. That much evidence of the appellant has not been even disputed. The further fact that Yamunabai had lost her husband end that she was staying with Madhav Vishram Padeve as his widowed sister is not disputed. It is not un-known in our country that when a widowed sister comes to reside with her brother and when she starts residing with him she resides not as a servant or a stranger, but resides as part and parcel of the family. This is the rule. There may be exceptions. But if there are exceptions, the exceptions have got to be proved by special evidence. In the absence of any such evidence to the contrary, it must be assumed that a widowed sister who comes to stay with her brother along with her, young ton would be staying with him not as a stranger but as brother's family. Likewise her young son would be a part of that very family. Moreover, it is to be noted that in the year 1971 Padave was having neither a chick nor a child not was he having any wife at that time. I am informed that he was a widower, but my attention was not invited to any particular piece of evidence on record which establishes this particular fact that he was a widower. But, if he was not a widower he was a bachelor, because it is nobody's case that he was survived by a wife at the time of his death. If this was the position, then it beats imagination as to how it can be held that Baban, the appellant and his mother Yamuna were not heirs of Padave as also the members of his family.

27. The Ration Card is also produced by the appellant. The Ration Card, appears not to have been taken on record, because it does not show the name of Baban as the member of the family. Significantlly enough, the Ration Card shows the name of Aba Shankar Chavan and the name of Yamuna Shankar Chavan is shown as the name of the Head of the family. It is in evidence that Shri Padave was suffering from paralysis for three years before his death. The evidence of his son-in-law Shri Shinde leaves no room for doubt that it was the present appellant who was in fact looking after the entire household for some time before the death of Padave. In these circumstances, if Yamunabai was shown to be the head of the family of herself of appellant Baban and of Padave, that much of fact is not a very amazing fact. She was the elderly person in the family and that is why her name was shown as the Head of the family. As a matter of fact, the very fact that she is shown as the Head of the family goes a long way to indicate that ell of them were living as one family unit.

28. There is some difficulty as regards the appellant's name. The name of the appellant is Baban, but the Ration Card shows his name to be Aba. This position has been explained by the present appellant in this appeal by filing an affidavit. The correctness of the fact is not disputed by the counter affidavit filed on behalf of the respondent. A person having his christian name Baban being addressed in the house by the domestic alias such as Aba is too familiar a situation in our country not to be taken judicial notice of by the Courts. It is, thus, clear that the Ration Card ought to have been taken on record in evidence and if it is taken on record, it goes a long way to prove that the appellant had been residing with the deceased tenant Padave as a member of his family at the time of the latter's death.

29. I now turn to the evidence of Shinde, who is the appellant's brother-in-law. It is to be noted that this Shri Shince would in fact be having an interest conflicting with that of the appellant and as such would be interested in giving evidence against the appellant, because in the absence of the appellant it would be his wife who might have become the tenant in respect of the suit premises. In spire of this position, Shri Shinde has come forward before the Court and stated frankly that the appellant had been residing as a member of the Padave's family at the time of his death, Shri Shinde has stated in his evidence that the funeral riles were performed by none other than the appellant himself. He also stated that the household was run at the this of Padave's death by the present appellant, in fact the evidence of this witness indicates that the appellant had been residing in the house as a member of Padave's family since about the year 1951.

30. As against all this evidence, there exists practically no evidence on the part of the respondent to rebut this evidence. Some sort of affidavit is sought to be filed in this Court to prove that the appellant was not residing along with Padave at the time of his death. But the evidence is parently useless. The evidence is brought in the form of an affidavit by some person who has stated that the appellant had been residing in some shop for the last 10 years. No documentary evidence is produced to establish this fact. This affidavit cannot have the effect of undoing the evidential value of documentary evidence adduced by the appellant.

31. In this view of the matter, I am of the opinion that the lower Appellate Court has committed grave legal error in disturbing the findings of facts recorded by the trial Court based on sound evidence, both oral and documentary while arriving at the conclusion that the appellant had not been residing with the deceased tenant, Shri Padave at the time of his death as a member of the family. The distinction sought to be made by the lower Court between the concept of “stay” and “residence” is, in the context of the facts of the case, wholly untenable. The finding of the Appellate Court has, therefore, got to be set aside.

32. The Appeal is, therefore, allowed. The decree passed by the Appellate ‘Court is set-aside and decree of dismissal passed by trial Court is hereby restored.

33. The respondent shall pay the costs of the appeal in this Court as well as in the lower appellate Court.