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Case Number

A.F.O.D No. 114 of 1981

Attorney(S)

Barun Kumar Roychowdhury
Susanta Chatterjee

Judges

Chittatosh Mookerjee
Mukul Gopal Mukherji, JJ.

Acts

Section 13(1)(ff) of the West Bengal Premises Tenancy Act
Section 13(1)(ff) of Act XII of 1956

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Smart Summary

Structured Summary of the Opinion (M.G. Mukherji, J., with Chittatosh Mookerjee, J. concurring)

Factual and Procedural Background

The tenant defendants (appellants) appealed against a decree for recovery of khas possession granted in favour of the plaintiff landlord (respondent) in respect of premises No. 3B, Girish Vidyaratna Lane, Calcutta-9. The landlord claimed the suit premises on the ground of reasonable requirement for his own use and occupation and that of his family.

Material facts as set out in the opinion: the plaintiff purchased the suit premises from his cousin Hrishikesh Bhattacharjee on 25 November 1970 and served a notice of attornment/determination dated 24 July 1974 asking the defendants to vacate by the end of September 1974. The plaintiff then filed Ejectment Suit No. 1256 of 1974 on 12 October 1974 claiming insufficiency of accommodation at his existing residence (premises No. 3A/3B) and setting out his need for various rooms to accommodate himself, his wife (who later died), his mother, his younger brother and his wife, a maid servant, and a daughter who was then a student and later married during pendency of the suit.

The defendants contested the suit on multiple grounds including invalidity of the notice, denial of insufficiency of accommodation, and an allegation that the conveyance to the plaintiff was collusive following earlier unsuccessful suits by the vendor to evict the defendants. The trial court held for the plaintiff, finding the notice valid and the plaintiff's requirement bona fide and reasonable. The tenant defendants appealed to the court delivering the present opinion.

Legal Issues Presented

Whether the notice of determination/ejectment served by the plaintiff on the defendants was legal, valid and sufficient.
Whether the plaintiff landlord had a bona fide and reasonable requirement of the suit premises for his own use and occupation and for the use and occupation of his family within the meaning of Section 13(1)(ff) of the West Bengal Premises Tenancy Act (Act XII of 1956).
Whether the requirement of a married daughter (and incidental presence of a son-in-law or visits by them) can be taken into account in assessing the landlord's reasonable requirement under the statute.
Whether the deed of conveyance to the plaintiff was vitiated by collusion with the vendor and thus invalid as a basis to seek eviction.

Arguments of the Parties

Appellants (Tenant Defendants) — Principal Arguments

The notice of ejectment was alleged to be not legal, valid or sufficient.
The plaintiff did not genuinely require the suit premises; the accommodation available to him at premises No. 3B (where he lived) was sufficient.
The plaintiff's vendor had earlier brought two unsuccessful suits to evict the defendants; hence the present conveyance was tainted by collusion with the plaintiff to create a sham transfer to evict the tenants.
Specifically, counsel for the tenants argued that a married daughter’s accommodation cannot be treated as part of the landlord’s reasonable requirement under Section 13(1)(ff) — reliance was placed on Division Bench decision in Kanailal Dutta v. Sadhan Chandra Santra (AIR 1977 Cal 173).

Respondent (Plaintiff Landlord) — Principal Assertions (as reflected in the opinion)

The plaintiff became owner of premises No. 3B by purchase on 25 November 1970 and served notice of determination properly through his solicitor.
The accommodation at his then-occupied premises was insufficient for his own use and that of various family members; accordingly he required additional rooms including bedroom(s), drawing-room, storeroom, two kitchens (veg and non-veg), and a study room for his daughter who was a student.
During trial the plaintiff gave evidence about his occupation, family composition, the daughter’s occasional stays (weekends), and the presence of a whole-time maid servant who lived with him, which supported the claimed need for the additional premises.
The conveyance was not collusive in law and the low price alleged by the defendants (in the Deed of Indenture Ext. 2) did not permit them to impeach the deed successfully.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Kanailal Dutta v. Sadhan Chandra Santra, AIR 1977 Cal 173	Cited for the proposition that the son-in-law's requirement cannot be taken into account for assessing bona fide requirement under Section 13(1)(ff) (i.e., limits on considering in-laws as family).	The court considered the precedent but distinguished it on facts: the present case involved the landlord's only child (a married daughter) who stays with him episodically and the case is factually different; hence the Division Bench decision was held not to apply.
Anil v. Niranjan, (1955) 59 Cal WN 989	Illustrates a broader approach where a son who was a resident student and visited at weekends was taken into account for landlord's requirement.	Cited to support the view that family concept has been given wider meaning by courts and weekend visits by family members may be relevant to requirement.
S. N. Sundalaimuthu v. Palani Yandavan, AIR 1966 SC 469	Supreme Court interpretation of "landlord's own requirement" liberally; held that a son-in-law could be regarded as a member of the family in appropriate circumstances.	Adopted as persuasive authority for a liberal construction of "own occupation" and to show that in some contexts in-laws may be counted when assessing reasonable requirement.
Mohanlal v. Smt. Punjiben, 1976 Ren CJ 326 (Gujarat High Court)	Followed the Supreme Court decision to hold that a person can be regarded as a member of his wife's family (supporting broader familial consideration).	Relied upon to reinforce the proposition that membership of family for the purpose of requirement can be interpreted broadly.
Mohammad Illiyas v. Syed Ali Nawab, AIR 1979 NOC 194 (Allahabad H.C., Lucknow Bench)	Holds that in overall assessment of landlord's need the fact that a married daughter stayed with him might be considered.	Used to support the court's conclusion that married daughter's stays may be relevant in assessing bona fide requirement.
Ram Prakash Saroj v. Mohindar Singh, AIR 1982 NOC 50 (Delhi H.C.)	Interpreted "residence for himself" liberally, rejecting the idea that landlord must live "in isolation"; held that requirement of daughter-in-law or married daughter who visits could be taken into account.	Relied on to justify considering visiting married daughters/daughters-in-law when assessing the landlord's accommodation needs.
Chiranjilal Agarwalla v. Bandhuram Panwala, ILR (1966) 1 Cal 673	Held that requirement for a sister who was not a family member or dependent but a regular visitor with husband and children was not to be taken into account.	Distinguished by the court: contrasted a visiting married sister with the present case of the landlord's only married daughter (only child), concluding the latter is materially different and may be considered.

Court's Reasoning and Analysis

The court proceeded by examining and applying statutory language, factual evidence and relevant precedents to the central questions.

Validity of Notice: The learned trial judge had found that the notice dated 24 July 1974 was duly served and was legal, valid and sufficient; the appellate court accepted that factual finding and did not disturb it.

Assessment of Bona Fide Requirement: The court emphasized that the question of reasonable requirement is primarily a question of fact and each case must be decided on its own facts. It reviewed the plaintiff's evidence about family composition, the daughter's status (student, later married), the death of plaintiff's wife during pendency, and the daughter's occasional stays (weekend visits). The court accepted the trial judge's finding that the daughter's weekend stays were genuine and that the plaintiff had a whole-time maid servant whose need for accommodation could be taken into account (both parties had adduced evidence on the maid).

Precedents and Interpretation of "Family" and "Own Occupation": The court observed that statute does not use the word "family" and the test is whether premises are required for the landlord's "own occupation." It surveyed authorities showing a liberal approach in numerous decisions (including Supreme Court and various High Courts) that family must be given a wider meaning and that visits or presence of relatives (including in some decisions in-laws) have been considered. The court analyzed Kanailal Dutta (relying on it as cited by appellants) but found it distinguishable, holding that it did not control the facts here where the landlord's only child (a married daughter) occasionally stayed with him and her presence (and consequent need for a room) could legitimately be taken into account.

Fact-specific Accommodation Analysis: The court examined measured dimensions and numbers of rooms in premises Nos. 3A and 3B (detailed room measurements appear in the record) and performed a practical allocation: allowing one room for the plaintiff's brother and his wife; one for the plaintiff as bedroom; one for the mother; one for the maid servant; one on ground floor for plaintiff's work and parlour-cum-sitting room; and one for the daughter and son-in-law when they visit. Given the adjacency and inter-communication between premises 3A and 3B, the court found that the plaintiff had shown insufficiency of his existing accommodation and a bona fide need for premises 3B for his own occupation and that of his family.

Collusion/Conveyance Attack: The court dealt with the defendants' assertion that the conveyance to the plaintiff was collusive following two unsuccessful suits by the vendor. Other than noting the low consideration in the deed, the court held defendants could not successfully assail the deed in the manner attempted and rejected the collusion argument as unsustainable in law and on the facts.

Equity and Practical Considerations: While upholding the landlord's claim as bona fide, the court recognized the defendants' long possession and large family. The court therefore tempered immediate execution by granting a time window for defendants to find alternative accommodation subject to conditions (see Holding and Implications below).

Holding and Implications

Holding: The appeal was dismissed and the decree for recovery of khas possession in favour of the plaintiff-landlord was upheld. The court expressly dismissed the appeal "without any order as to costs" with Chittatosh Mookerjee, J. agreeing.

Direct Consequences and Orders:

The defendants were granted time till May 1984 initially to vacate; this would be extended till July 1985 provided the defendants jointly gave an undertaking before the court to deliver peaceful vacant possession by the expiry of July 1985.
As a condition of this indulgence, the defendants were ordered to deposit mesne profits of Rs. 65 per month according to English calendar by the 15th day of each month, the first deposit to be made by 15 March 1984.
The court clarified that this deposit does not confer upon the defendants any right or interest as tenants or licensees.
In default of the stipulated deposit payments, the decree for recovery of khas possession would be executable at once.

Broader Implications: The court applied existing authorities in a fact-sensitive way and reiterated that reasonable requirement is primarily a question of fact. The opinion distinguishes earlier authorities relied upon by the appellants and affirms that married daughters (and in some precedents in-laws) may, depending on factual circumstances, be taken into account when assessing landlord's own requirement. The judgment does not purport to lay down a novel, general rule of law beyond these fact-specific conclusions; its principal implication is to reaffirm a liberal, contextual approach to "own occupation" under Section 13(1)(ff) of the West Bengal Premises Tenancy Act.

Final Disposition: Appeal dismissed; decree for recovery of khas possession upheld; conditional extension of time to vacate subject to deposits and undertaking; dismissal without costs.

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Sm. Parimal, Bala Roy And Others v. Santosh Kumar Bbattacharya .

M.G Mukherji, J.:— The tenant defendants are the appellants before us impugning the decree for recovery of khas possession in favour of the plaintiff landlord respondent in respect of the premises No. 3B, Girish Vidyaratna Lane, P.S Amherst Street, Calcutta-9, on the ground of reasonable requirement for the use and occupation of the landlord and his family.

2. The case as made but by the plaintiff landlord respondent in the Court below was that be became the owner of the premises No. 3B, Girish Vidyaratna Lane by virtue of his purchase from his cousin Hrishikesh Bhattacharjee ore the 25th Nov., 1970. After his purchase he duly sent a letter of attornment on the defendants who paid rent to him in respect of the suit premises at the rate of Rs. 65/- per month payable according to English Calendar. The plaintiff was living with his family members at premises No. 3B, Girish Vidyaratna Lane which is adjacent to the suit premises, but the accommodation there was absolutely insufficient for him as well as the members of his family. By a notice dated 24th July, 1974 duly served on the defendants through his Solicitor, Shri Sunil Kumar Mitra, the tenancy stood determined and he asked them to vacate and give up peaceful vacant possession of the suit premises on the expiry of the month of Sept. 1974. On the 12th Oct., 1974 he filed Ejectment Suit No. 1256 of 1974 against the tenant defendants wherein he claimed that the existing accommodation at 3B, Girish Vidyaratna Lane was insufficient for him and that he required one bedroom for him and for his wife, one bedroom for his mother and daughter, one bedroom for his younger brother and his wife, one drawingroom, one storeroom two kitchens one for vegetarian and other for non-vegetarian and one studyroom for his daughter who was then a student reading in Class X and was to appear at the School Final Examination in 1975. During the pendency of the suit the plaintiff's wife died and his daughter was married off. In course of deposition made at the trial the plaintiff deposed inter alia to the effect that he was an Office Superintendent of Electrical Manufacturing Co. Ltd. and was putting up in three rooms in the ground and first floors and an asbestos room on the second floor of premises No. 3B, Girish Vidyaratna Lane. His only daughter was a student of B.A Class. The said daughter lived with his son-in-law in a tenanted house at Dum Dum and he came and stayed with him for two days in a week i.e on Saturdays and Sundays.

3. The defendants contested the suit contending inter alia that the notice of ejectment was not legal, valid and sufficient and that the suit premises was not reasonably required by the plaintiff for the use and occupation of his and his family, members and that the accommodation available to him at premises No. 3B, Girish Vidyaratna Lane where he lived with his mother, younger, brother and younger brother's wife was not insufficient for him. The vendor of the plaintiff Harisbikesb Bhattacharjee filed unsuccessfully two suits against the defendants and hence a novel design was hatched up in collusion with the plaintiff to make out a sham document of transfer for further attempt to evict them.

4. The learned Judge, 10th Bench, City Civil Court, Calcutta found that the notice was duly served upon the defendants and the same was legal, valid and sufficient. As regards the question of the plaintiff's reasonable requirement for himself and the members of his family, the learned trial Judge found the same to be real, bona fide and reasonable. As regards married daughter Arunima, the learned trial Judge held inter alia that since she happened to be the only surviving child of the plaintiff, considering the circumstances of the plaintiff who was a widower himself, the story of the said daughter Arunima coming to his house and staying two days in a week was genuine. Despite no specific requirement for the whole time maid servant being made out in the plaint, in view of both the parties having adduced evidence in that regard, the learned trial Judge held that the plaintiff had one maid servant who was a whole time one, staying in the plaintiff's house and the requirement of a room for her could be taken into account. As regards the allegations made by the defendants that the deed of conveyance in favour of the plaintiff in respect of the suit premises was an outcome of collusion with his cousin Hrishikesh Bhattacharjee after the latter's unsuccessful efforts in evicting the defendants in two previous suits, barring the fact that a very low price was given out in the Deed of Indenture Ext. 2, the defendants could not assail the same in any manner whatsoever and he discarded the said contention as unsustainable in law and on facts.

5. Mr. Barun Kumar Roy Chowdhury, learned Advocate appearing on behalf of the tenant defendants appellants urged before us that the plaintiff did not require any accommodation for his married daughter Arunima, inasmuch as, she was staying with her husband at Dum Dum. The case made out by the plaintiff that the daughter Arunima goes to stay with her father and grandmother on Saturdays and Sundays would be an incredible one. We have before us the evidence that the son-in-law Saurendra Bhattacharjee was a inhabitant of Majilpur near about Joyoagar in the District of 24-Parganas and the said son-in-law lived in a tenanted house at Dum Dum. It is not at all unlikely that the son-in-law could go over to his family bouse at Majilpur on Saturdays and Sundays leaving the daughter (i.e his wife) in the custody of her father and grandmother. That apart, Arunima being the only child of the plaintiff, it is nothing unnatural or improbable that she might come and stay with her father and grandmother on different occasions and for that she would indeed require one room for herself.

6. Mr. Barun Kumar Roy Chowdhury submitted that a married daughter's requirement is not reasonable requirement within the meaning of Section 13(1)(ff) of Act XII of 1956 and in support of the proposition he cited the Division Bench decision reported in AIR 1977 Cal 173, Kanailal Dutta v. Sadhan Chandra Santra. His contention had been that in the said case it was decided that the son-in-law's requirement could not be taken into consideration for the purpose of assessing the bona fide requirement within the meaning of Section 13(1)(ff) of the West Bengal Premises Tenancy Act inasmuch as the son-in-law was not treated as a member of the family of the father-in-law. We are of the view that the said decision does not apply in the facts of the present case inasmuch as here the landlord's claim of a room for the purpose of accommodating his only child, a married daughter, who comes and stays with her father (i.e the plaintiff) and her grand mother is a question at issue. It is settled law that question of reasonable requirement is primarily a question of fact. Each case has to be decided on its own facts and the said decision would not be applicable in the present case and we hold that on facts, the said case is quite distinguishable.

7. The statute nowhere uses the expression “family”. The requirement for the purpose of evicting a tenant is for the landlord's “own occupation”. Time and again the different High Courts held that the concept of a family must be given a wider meaning. In (1955) 59 Cal WN 989, Anil v. Niranjan apart from requirement of a widowed sister, a son who is a resident student of Shibpur College visiting his parents during weekend, was taken into consideration in judging the ladlord's own requirement. The Supreme Court while deciding a case under the Madras Act (XXV of 1955) in S.N Sundalaimuthu v. Palani Yandavan reported in AIR 1966 SC 469 interpreted the landlord's own requirement very liberally where it went so far as to hold that a son-in-law could also be regarded as a member of the family. Gujarat High Court in the case of Mohanlal v. Smt. Punjiben reported in 1976 Ren CJ 326 followed the Supreme Court decision so as to hold that a person could also be properly regarded as being a member of his wife's family and not merely of his father's family. In the decision of Mohammad Illiyas v. Syed Ali Nawab, reported in AIR 1979 NOC 194, the Lucknow Bench of the Allahabad High Court held that in overall assessment of the landlord's need, the fact that married daughter stayed with him might also be considered. Delhi High Court in the case of Ram Prakash Saroj v. Mohindar Singh, reported in AIR 1982 NOC 50, interpreted the expression ‘residence for himself and held inter alia that it could not mean or imply the residence for the landlord “living in isolation”. In the said case it was held inter alia that the requirement of a daughter-in-law or a married daughter who visits the landlord could be legally taken into consideration since he was to provide accommodation for them. In Chiranjilal Agarwalla v. Bandhuram Panwala, ILR (1966) 1 Cal 673 decided by P.N Mookerjee, J.: the requirement for a sister who was not a member or a dependent on the brother but was a regular visitor with her husband and children to her brother's family was not taken into consideration for assessing the plaintiff's reasonable requirement. We hold that there is a considerable difference between a married sister and the only married daughter who is eventually the only child of the plaintiff landlord's family, since it is not accepted as a proposition that the plaintiff as a father could never have the daughter or the son-in-law with him or the grandmother would be deprived of the company of her only grand child (the other brother of the plaintiff living with him having no child at all). Hence in the facts and circumstances of the present case, we hold that the requirement of the plaintiff landlord is bona fide and is not made out for an oblique motive to evict a tenant and could validly be reckoned for the purpose of his own use and occupation within the meaning of S. 13(1)(ff) of the W.B.P.T Act.

8. There are three living rooms in premises No. 3B, Girish Vidyaratna Lane, one measuring 10′ 3″ × 9′ 5″ on the ground floor, another room measuring 10′ 3″ × 16′ on the first floor, and another room measuring lift. 6½″ × 7′ on the second floor. In premises No. 3B, Girish Vidyaratna Lane which the plaintiff is now occupying with his brother, they have altogether four rooms including one with asbestos sheet roof on the second floor. The room on the ground floor measures 9′ 1″ × 8′ 6″. In the first floor, one room measures 9′ 3″ × 8′ 7″ and another room measures 15′ 1½″ × 6′ 9″ which is on the second floor. If one room is left for the use and occupation of the plaintiff's brother and his wife, one for the plaintiff himself as his bedroom, one for his mother, one for the maid servant, one on the ground floor to be used for the plaintiff's own work and also for the purpose of user as a parlour-cum-sitting room and one is kept for his daughter and, son-in-law when they do come and stay in the plaintiff's house, we find that a case of reasonable requirement is indeed made out by the plaintiff. Regard being had to the composition of his family and his existing accommodation in premises No. 3A, Girish Vidyaratna Lane and the fact that the two houses viz. premises Nos. 3A and 3B, Girish Vidyaratna Lane are adjacent to each other, there having been inter-communicating doors in between the two premises, even if the brother's wife stays in premises No. 3A, Girish Vidyaratna Lane, she can very well attend to her old mother-in-law at premises No. 3B, Girish Vidyaratna Lane. The maid servant can also come and attend her in like manner, in the circumstances we find no other alternative but to hold that the plaintiff had made out a case for insufficiency of his existing accommodation at 3A, Girish Vidyaratna Lane and his bona fide requirement of premises No. 3B, Girish Vidyaratna Lane for his own use and occupation and for the use and occupation of the members of his family.

9. We have taken into consideration the fact that the defendants constitute a large family consisting of a widow mother, seven brothers and five sisters. Mr. Roy Chowdhury candidly submits that the defendants' entire family could not be allowed to be split up by agreeing to a case of partial eviction.

10. We are conscious of the fact that the defendants are in the suit premises for a very long time and they require some reasonable time to find out a suitable accommodation for them elsewhere. We therefore grant defendants appellants time till May 1984 at the first instance, which would be extended till July 1985 provided they give an undertaking jointly before this Hon'ble Court to deliver peaceful vacant possession of the suit premises with the expiry of July 1985 and to continue depositing before the trial Court towards mesne profits a sum of Rs. 65/- per month according to English Calendar by the 15th day of every month, the first of such deposits to be made by the 15th Mar. 1984. It is made clear that this deposit @ Rs. 65/- per month would not confer on the defendants appellants any eight or interest as tenants or licensees. In default of payment of any such amount at the rate of Rs. 65/- per month as stipulated above, the decree for recovery of khas possession would be executable at once.

11. The appeal is accordingly dismissed without any order as to costs.

Chiitatosh Mookerjee, J.:— I agree.

Appeal dismissed.

Sm. Parimal, Bala Roy And Others v. Santosh Kumar Bbattacharya .

Structured Summary of the Opinion (M.G. Mukherji, J., with Chittatosh Mookerjee, J. concurring)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellants (Tenant Defendants) — Principal Arguments

Respondent (Plaintiff Landlord) — Principal Assertions (as reflected in the opinion)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Sm. Parimal, Bala Roy And Others v. Santosh Kumar Bbattacharya .

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