A  

B  

SHRI IIARISH TANDON  

v  

THE ADDL. DISTRICT MAGISTRATE, ALLAHABAD,  

U.P. AND ORS.  

JANUARY 5, 1995  

[P.B. SAWANT, DR. A.S. ANAND AND N.P. SINGH, JJ.]  

U.P. Urban Buildings (Regulation of Letting. Rent and Eviction) Act,  1972-Sections 3 (g). 12(2), 12(4), 20(2)(e) and 25-Explanation  

C (i)--Deemed vacancy-Non-residential premises-Death of original  tenant-Tenancy rights devolve on heirs of deceased tenant jointlJAdmission  of son-in-law of one of the heirs as a partner in business carried out in tenanted  premises-Tenant deemed to have ceased to occupy the building-Deemed  vacancy of premises-Deemed sub-letting-Eviction u/s 20(2)(e).  

D Interpretation of Statutes-Legal fiction-Deeming statute--Court to  examine and ascertain the purpose and persons where fiction to be resorted  to-Full effect to be given-Must be carried to its logical conclusion.  

A shop was let out to late S by the grandfather of the appellant. He  E started a business in the premises. He died in 1941 leaving behind live  

sons. In family partition amongst the sons, the shop in dispute fell to the  share of three sons. The other two sons ceased to have any interest in the  shop. In 1976, a new partnership firm was constituted with the son-in-law  of one of the sons for carrying a textile business in the suit premises. The  appellant tiled suit for eviction of the respondent tenants on the ground  

F that there was a sub-letting of the premises by induction of the son·in-law  as a partner in the business.  

The Rent Controller and Eviction Officer held that there was deemed  vacancy in respect of the said premises and he directed that the said  vacancy be notified. A Writ Application was tiled on behalf of the tenants  

G which was dismissed as not maintainable. The tenants tiled a Special Leave  Petition before this Court which was allowed and the High Court was  directed to rehear the Writ Petition on merits. The Writ Petition was  ultimately allowed by the High Court on the finding that after the death  of the original tenant, his sons became tenants In common and not joint  

H tenant and for the contravention made by one or the 10111 of the orlpnal  S6  

\

/  

TANDON v. ADDL. DIST.MAGISTRATE 57  

tenant by inducting his son-in-law as a partner or the firm, it shall not A  result into deemed vacancy or the whole premises under the provision or  the U.P. Urban Buildings (Regulation oC Letting, Rent an Eviction) Act,  1972. The High Court quashed the orders passed by the Rent Controller  

declaring a vacancy u/s 12(2) r/ws 12(4) or the Act.  

The controversy between the parties was :  

(i) as to whether in the Cacts and circumstances of the case, there  shall be a deemed vacancy because of sub-sections (2) and (4) of Section  

12;  

B  

(ii) whether because of explanation (i) of Section 25, it amounts to C  sub-letting within the meaning of Section 20(2)(e);  

(iii) even if it was held that because of the induction of the son-in-law  as a partner in the firm which amounted to a sub-letting within the  meaning of section 25 of the Act, whether the whole premises shall be D  deemed to be vacant.  

According to the respondent tenants, before It could be held that the  induction of the son-in-law amounted to sub-letting of the premises, a  finding had to be recorded that the object of bis induction as a partner  was to actually and factually sub-let the premises to him. The respondents E  urged that the expression 'deemed' occurring in sub-sections (2) and (4)  of section 12 as well as in explanation (i) of Section 25 should not be read  as conclusive. It should be read as 'deemed until the contrary was proved'.  They alleged that if such strict interpretation was given to sub-section (2)  of Section 12, then similar interpretation should be given to Section  12(1)(b) and Section 12(3) of the Act. It was also submitted that although  the son-in-law might not be held to be a member of the family within the  meaning of the definition given in Section 3(g) he shall be deemed to be a  member of the family as the expression was generally understood, and by  admitting a son-in-law or daughter-in-law as a partner, it shall not amount  to sub-letting within the meaning of the Act.  

Allowing the appeal, this Court  

F  

G  

HELD : 1.1. After the death to the original tenant, subject to any  provision to the contrary, tenancy rights devolve on the heirs of the  deceaaed tenants jointly. The Incidence of the tenancy are the 1ame a1 H

58 SUPREME COURT REPORTS [1995] 1 S.C.R.  

A those enjoyed by the original tenant. It is a single tenancy which devolves  on the heir and there is no division of the premises or of the rent payable  therefor and the heirs succeed to the tenancy as joint tenants and for any  breach committed by any of such joint tenants, all the heirs of the original  tenant have to suffer. [72-C]  

B 1.2 In the instant case, because of the admission of the son-in-law as  a partner in the business, there had been a deemed vacancy of the premises  within the meaning of sub-sections (2) and (4) of Section 12 of the U.P.  Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972 and  it shall amount to sub-letting within the meaning of section 25, explanation  

C (i), which is a ground for eviction u/s 20(2)(e) of the Act. [73-G]  

D  

Mohd. Azeem v. District Judge, Aligarh and Ors., [1985) 3 SCR 906,  overruled.  

H.C. Pandey v. G.C. Paul, [1989) 3 SCC 77, relied on.  

1.3 A son-in-law shall not be deemed to be a member of the family  within the defmition u/s 3 (g) of the Act as there is no scope for interpreting  that expression in a different manner. [73-E)  

1.4 The primary object of sub-section (2) of section 12 is to check  E and restrict sub-letting of premises or part there of by the original tenant  

by inducting any person who is not a member of the family within the  meaning of the Act as a partner In the business. But, the special feature  of the deeming clause in the said sub-section leaves no scope for investiga·  lion and examination as to whether in the process of inducting such person  

F as a partner, in fact there has been a sub-letting of the premises. [64·F·G]  

2. When a statute creates a legal fiction saying that something shall  be deemed to have been done which in fact and truth has not been done,  the Court has to examine and ascertain as to for what purpose and between  what persons such a statutory fiction is to be resorted to. Thereafter, full  

G effect has to be given to such statutory fiction and it has to be carried to  its logical end. [65-D)  

East End Dwelling Co. Ltd. v. Finbsbury Borough Council, (1952) AC  109 (B), referred to.  

H State of Bombay v. Pandurang Vinayak and Ors., AIR (1953) SC

TANDON v. ADDL. DIST. MAGISTRATE (N.P. SINGH,J.] 59  

244 = [1953) SCR 773; M/s. J.K Cotton Spi1111ing and Weaving Mills Ltd. and A  Am: v. Unio11 of India a11d Ors., [1988) l SCR 700=AIR (1988) SC 191  and M. Vennugopal v. The Divisio11a/ Manager, Life I11sura11ce Corporation  of India, Machilipatta11am, AP andAnr., JT (1994) l SC 281 = [1994) 2 SCC  323, relied on.  

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 574 of B  1993.  

From the Judgment and Order dated 21.9.92 of the Allahabad High  Court in C.M.W.P. No. 14310 of 1981.  

P.C. Jain, D.K. Garg and P. Choudhary for the Appellant.  

Prashant Bhushan, Jayant Bhushan, C. Mohan Rao and Ms. Ritu  Gupta for the Respondents.  

The Judgment of the Civil was delivered by  

N.P. SINGH, J. This appeal has been filed agianst an order dated  21.9.1992 passed by the Allahabad High Court on a Writ Petition filed on  behalf of Respondent Nos. 5 to 7. By the impugned order the High Court  

c  

D  

has quashed orders dated 13.8.1981 and 18.11.1981 passed by the Rent  Controller declaring a vacancy under Section 12(2) read with Section 12(4) E  of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction)  Act, l9n (hereinafter referred to as 'the Act').  

The dispute is in respect of a shop bearing Municipal No. 24-34  situated at Mahatma Gandhi Marg, Civil Lines Market, Allahabad. In the  year 1937, the shop was let out to late Sheobux Roy by the grand father of F  the appellant. The said Sheobux Roy started a business in the name and  style of "M/s. B.N. Rama & Co.". Sheobux Roy died on 3.2.1941 leaving  behind five sons namely Khush Bakht Roy, Sant Bux Roy, Sampat Roy,  Ganpat Roy and Sheopat Roy. In the year 1943, there was a family partition  amongst the sons of Sheobux Roy and the shop in dispute fell to the share  of Sampat Roy, Ganpat Roy and Sheopat Roy. The other two sons ceased G  to have any interest or concern with the shop in question. Sampat Roy,  Ganpat Roy and Sheopat Roy were carrying on their business in the name  and style of "M/s. B.N. Rama & Co." In the year 1976, Ganpat Roy and his  son Ramesh Roy constituted a new partnership firm with the one Swarup  Kailash, son-in-law of Ganpat Roy under the name and style of "M/s. B.N. H

60 SUPREME COURT REPORTS [1995] 1 S.C.R.  

A Rama & Co. (Textiles)" for carrying on the business in textile, in the  premises in question. In the year 1979, the appellant filed suit for eviction  of the respondent-tenants (hereinafter referred to as 'the respondents') on  the ground that there was a sub-letting of the premises by induction of  Swarup Kailash, the son-in-law of Ganpat Roy as a partner for carrying on  

B the business in the shop in dispute.  

In March 1981, one Ramesh Nath Kapur and Radhey Shyam filed an  application for allotment of the said premises to them on the ground that  there was a deemed vacancy of the premises. The Rent Controller and  Eviction Officer by his order dated 13.8.1981 held that there was a deemed  

C vacancy in respect of the said premises and he directed that the said  vacancy be notified. A petition was filed by the respondent on 11.9.1981  making prayer to recall the aforesaid order dated 13.8.1981 and to. give  them permission to file objections and to contest the proceedings. That  petition was allowed by the Rent Controller and Eviction Officer by his  

D order dated 13.9.1981. The Rent Controller and Eviction Officer by his  order dated 18.11.1981 negatived the contention of the respondents that  there was no deemed vacancy in respect of the premises in question.  Thereafter a Writ Application was filed on behalf of the respondents  which was dismissed by the High Court saying that it was not maintainable.  The Respondents filed a Special Leave Petition before this Court against  

E the aforesaid order of the High Court. This Court allowed their appeal on  29.3.1985 and directed the High Court to rehear the Writ Petition filed by  the respondents on merits. It was further said by this Court that pending  disposal of the writ petition before the High Court, there shall be a stay  of further proceedings in respect of the allotment to the premises in  

F question and the respondents shall not be dispossessed from the same.  

The Writ Petition, aforesaid, was ultimately allowed by the impugned  order dated 21.9.1992 by the High Court on the finding that after the death  of Sheobux Roy on 3.2.1941, his sons became tenants in common and not  joint tenants. As such for any contravention made by Ganpat Roy one of  

G the sons of Sheobux Roy by inducting his son-in-law as a partner of the  firm shall not result into deemed vacancy of the whole premises under the  provisions of the Act. It is this finding which has been put in issue before,  us.  

H In order to appreciate the controversy, it is necessary to refer to

....  TANDON v. ADDL. DIST. MAGISTRATE [N.P. SINGH. J.J 61  

certain provisions of the Act. Section 3(g) defines 'family' :  

"Section 3(g) . "family", in relation to a landlord or tenant of a  

building, means, his or her ·  

(i) spouse,  

(ii) male lineal descedants,  

(iii) such parents, grandparents and any unmarried or widowed  or divorced or judicially separated daughter or daughter of a male  lineal descendant, as may have been normally residing with him or  

her,  

and includes, in relation to a landlord, any female having a legal  right of residence in that building;"  

Section 12 of the Act prescribes the conditions under which deemed  

A  

8  

c  

vacancy shall occur. The relevant part thereof is as follow : D  

Section 12 · "Deemed vacancy of building in certain cases - (1)  a Landlord or tenant of a building shall be deemed to have ceased  to occupy the building or a part thereof if-

( a) he has substantially removed his effects therefrom, or E  

{b) he has allowed it to be occupied by any person who is not  a member of his family, or  

( c) in the case of a residential building, he as well as members  of his family have taken up residence, not being temporary  residence, elsewhere.  

F  

(2) In the case of non-residential building, where a tenant  carrying on business in the building admits a person who is not a  member of his family as a partner or a new partner, as the case G  may be, the tenant shall be deemed to have ceased to occupy the  building.  

(3) In the case of a residential building, if the tenant or any  member of his family builds or otherwise acquires in a vacant state  or gets vacated a residential hnilding in the same city, municipality, H

A  

B  

c  

D  

E  

F  

62 SUPREME COURT REPORTS [1995] 1 S.C.R.  

notified area or town area in which the building under tenancy is  situated, he shall be deemed to have ceased to occupy the building  under his tenancy :  

Provided that if the tenant or any member of his family had  

built any such residential building before the date of commence- ment of this Act, then such tenant shall be deemed to have ceased  to occupy the building under his tenancy upon the expiration of a  period of one year from the said date.  

Explanation - For the purposes of this sub-section -

(a) a person shall be deemed to have otherwise acquired a  building, if he is occupying a public building for residential pur- poses as a tenant, allottee or licensee ;  

(b) the expression "any member of family", in relation to a  tenant, shall not include a person who has neither been normally  residing with nor is wholly dependent on such tenant  

( 4) Any building or part which a landlord or tenant has ceased  to occupy within the meaning of sub-section (i) or sub-section (2),  or sub-section (3), sub-section (3-A) or sub-section. (3-B), shall for  the purposes of this Chapter, be deemed to be vacant.  

In view of sub-section (2) of Section 12, in case of non-residential building,  if the tenant admits a person who is not member of his family as a partner,  the tenant shall be deemed to have ceased to occupy the building and by  virtue of sub-section ( 4) of Section 12, such building shall be deemed to be  

vacated :  

Section 25 enjoins that no tenant shall sub-let the building under his  G tenancy and it also prescribes as to what shall amount to a deemed  

sub-letting.  

H  

"25. Prohibition of sub-letting - (1) No tenant shall sub-let the  whole of the building under his tenancy.  

(2) The tenant may with the permission in writing of the

TANDON v. ADDL. DIST. MAGISTRATE [N.P.SJNGH,J.] 63  

landlord and of the District Magistrate, Sub-let a part of the A  building.  

Explanation - For the purposes of this section -

(l) where the tenant ceases, within tho meaning of clause (b)  of sub-section (1) of sub-section (2) of Section 12, to occupy the  building or any part thereof, he shall be deemed to have sub-let  that building or part;  

(ii) lodging a person in a hotel or a lodging house shall not  amount to sub-letting."  

In view of explanation (i) of Section 25, where the tenant is deemed  

B  

c  

to have ceased to occupy the building under sub-section (2) of Section 12  aforesaid, he shall be deemed to have sub-let that building or part thereof.  Once a tenant carrying on business in a non-residential building, admits a  person who is not a member of his family as a partner, the said tenant shall D  be deemed to have ceased to occupy the building and by operation of the  explanation (i) of Section 25, it shall deemed that such tenant has sub-let  that building or part thereof, which shall be a ground for eviction of such  tenant because of section 20(2)( e) which specifically say that a suit for  eviction of a tenant from building after determination of his tenancy may  be instituted on the ground "that the tenant has sub-let, in contravention E  of the provisions of Section 25, or as the case may be, of the old Act the  whole or any part of the building".  

It may be. mentioned that before this Court, there was no dispute in  respect of the facts stated above. It is an admitted position that the F  premises in question were let out to Sheobux Roy who died in the year  1941 leaving behind five sons. Later only three his sons Ganpat Roy,  Sampat Roy and Sheopat Roy carried on their business in the said  premises. It is also admitted that on 19.8.1976, Ganpat Roy inducted his  son-in-law, Swarup Kailash, as one of the partners in the firm "M/s.  B.N.Rama & Co. ·(Textiles)" for carrying on the business in textile in the G  disputed premises. The controversy between the parties is in respect of (i)  as to whether in the facts and circumstances of the case, there shall be a  deemed vacancy because of sub-section (2) and sub-section ( 4) of Section  12; (ii) whether because of explanation (i) of Section 25, it shall amount to  sub-letting within the meaning of Section 20(2)( e) - a ground for eviction H

64 SUPREME COURT REPORTS [1995] 1 S.C.R.  

A of the respondents; (iii) even if it is held that because of the induction of  Swarup Kailash as a partner in the firm, which amounted to a sub-letting  within the meaning of Section 25 of the Act, whether the who premises  

shall be deemed to be vacant.  

B  

c  

It cannot be disputed that a son-in-law shall not be deemed to be a  member of the family within the definition as given in the Act under  Section 3(g). Section 12(2) says that in case of non-residential building,  

where tenant admits a person whG is not a member of his family as a  partner, the tenant shall be deemed to have ceased to occupy the building.  By induction of Swarup Kailash, the son-in-law of Ganpat Roy, as a partner  in the firm, sub-section (2) of Section 12 is attracted.  

According to the learned counsel for the respondent tenants, the  object of sub-section (2) is to exclude and restrict the unauthorised induc- tion of persons as partners in a firm with primary object to pass on the  

D tenancy to such persons after their induction. In other words, sub-section  (2) of Section 12 imposes a restriction on the tenant in sub-letting the  premises or part thereof, by the device of inducting any person as a partner  in the business. As such, before it is held that the induction of Swarup  Kailash amounted to sub-letting of the premises, a finding has to be  recorded that the object of inducting Swarup Kailash as a partner of the  

E firm was, to actually and factually sub-let the premises to him. His induc- tion as a partner was a design and device to circumvent the consequence  provided under Section 20(2)( e) - ejectment from the premises.  

It is true that the primary object of sub-section (2) of Section 12  F appears to be to check and restrict sub-letting of premises or part thereof  

by the original tenant by inducting any person who is not a member of the  family within the meaning of the Act as a partner in the business. But the  special feature of sub-section (2) of Section 12 is that there is a deeming  clause in the said sub-section. If the said sub-section had provided that  where a t~nant carrying on business in the building admits a person who  

G is not a member of his family as a partner, it shall amount to sub-letting of  the premises, then there was scope for investigation and examination as to  whether, in the process of inducting such person as a partner in the  business - in fact there has been a sub-letting of the premises. But sub-sec- tion (2) says in clear and unambiguous words that once a person who is  

H not a memoor of the family is admitted as a partner in the business by the

TANDON v. ADDL. DIST. MAGISIBATE [N.P. SINGH, J.] 65  

tenant, 'the tenant shall be deemed to have ceased to occupy the building'. A  

On behalf of the respondents, it was urged that the expression  'deemed' occurring in sub-sections (2) and (4) of Section 12 as well as in  the explanation (i) of Section 25 should not be read as conclusive. It should  be read as 'deemed until the contrary is proved'. Reference was made to  the cases Gray v. Kerslake, (1957) Vol. II Dominion Law Reports (2nd B  Series) page 225 (at p. 239); Robert Batcheller & Sons, Limited v. Batcheller,  (1945) 1 Chancery Division 169; and Spencer v. Kennedy [1926] 1 Chancery  Division 125, where it was observed that if the word 'deemed' is held to be  conclusive, then it shall amount to imputing to the Legislature the intention  of requiring the Court to hold as a fact something directly contrary to the C  true fact. It was also said that such deemed clauses should be read to mean  as required by the statute, until the contrary is proved.  

The role of a provision in a statute creating legal fiction is by now  well settled. When a Statute creates a legal fiction saying that something  shall be deemed to have been done which in fact and truth has not been D  done, the Court has to examine and ascertain as to for what purpose and  between what persons such a statutory fiction is to be resorted to. There- after full effect has to be given to such statutory fiction and it has to be  carried to its logical conclusion. In the well known case of East and  Dwellings Co. Ltd. v. Finbsbury Borough Counci~ (1952) AC. .109(B), Lord E  Asquith while dealing with the provisions of the Town and County Planning  Act, 1947, observed :  

''If you are bidden to treat an imaginary state of affairs as real,  you must surely, unless prohibited from doing so, also imagine as  real the consequences and incidents which, if the putative, state of F  affairs had in fact existed, must inevitably have flowed from or  accompanied it... ... The statute says that you must imagine a certain  state of affairs; it does not say that having done so, you must cause  or permit your imagination to boggle when it comes to the in- evitable corollaries of that state of affairs."  

That statement of law in respect of a statutory fiction is being consistently  followed by this Court. Reference in this connection may be made to the  case of State of Bombay v. Pandurang Vinayaka and Others, AIR (1953) SC  

G  

244 = (1953) SCR 773. From the facts of that case it shall appear that  Bombay Building (Control on Erection) Ordinance, 1948 which was ap- H

66 SUPREME COURT REPORTS [1995] 1 S.C.R.  

A plicable to certain areas mentioned in the schedule to it, was extended by  a notification to all the areas in the province in respect of buildings  intended to be used for the purposes of cinemas. The Ordinance was  repealed and replaced by an Act which again extended to areas mentroned  

in the schedule with power under sub-section (3) of Section 1 to extend its  

B  operation to other areas. This Court held that the deemed clause in Section  15 of the Act read with Section 25 of the Bombay General Clauses Act has  to be given full effect and the expression 'enactment' in the Act will cover  the word 'Ordinance' occurring in the notification which had been issued.  

In that connection it was said :  

C "The corollary thus of declaring the provisions of S.25, Bombay  General Clauses Act, applicable to the repeal of the ordinance and  of deeming that ordinance an enactment is that wherever the word  "ordinance" occurs in the notification that word has to be read as  an enactment."  

D In the case of Chief Inspector of Mines and another etc. v. Karam  

E  

F  

G  

H  

Chand Thaper etc., AIR (1961) SC 838 = [1962] 1 SCR 9, it was said :  

"Were these regulations in force on the alleged date of con- travention? Certainly, they were, in consequence of the provisions  of S.24 of the General Clauses Act. The fact that these regulations  were deemed to be regulations made under the 1952 Act does not  in any way affect the position that they were laws in force on the  alleged date of contravention. The argument that as they were  "regulations" under the 1952 Act in consequence of a deeming  provision, they were not laws in force on the alleged date of  contravention is entirely misconceived."  

In the case of Mis J.K Cotton Spinning and Weaving Mills Ltd. and  another v. Union of India and others, AIR (1988) SC 191 = [1988] 1 SCR  700, it was said :  

"It is well settled that a deeming provision is an admission of  the non-existence of the fact deemed. Therefore, in view of the  deeming provisions under Explanations to Rr. 9 and 49, although  the goods which are produced or manufactured at an intermediate  stage and, thereafter, consumed or utilised in the integrated  process for the manufacture of another commodity is not actually

TANDON v. ADDL. DIST. MAGISTRATE [N.P. S!NGH,J.] 67  

removed shall be construed and regarded as removed. The Legis- A  lature is quite competent to enact a deeming provision for the  purpose of assuming the existence of a fact which does not really  exist. 1'  

Recently in the case of M. Venugopal v. The Divisional Manager, Life  Insurance Corporation of India. Machilipatanam, Andhra Pradesh, & Anr., B  JT (1994) 1 SC 281 = (1994] 2 SCC 323 after referring to the case of East  End Dwellings Co. Ltd. v. Finsbury Borough Council (supra) it was said that  when one is bidden to treat an imaginary state of affairs as real, he must  surely, unless prohibited from doing so, also imagine as real the consequen- ces and incidents which, must inevitably have flowed. C  

When sub-section (2) of Section 12 provides that whenever a tenant  carrying on business in. a building admits a person, who is not a member  of his family as a partner, the tenant shall be deemed to have ceased to  occupy the building, full effect has to be given to the mandate of the D  Legislature. There is no escape from the conclusion that such tenant has  ceased to occupy the building. No discretion is left to the Court to enquire  or investigate as to what was the object of such tenant while inducting a  person as partner who was not the member of his family. It can be said  that the aforesaid statutory provision requires the Court to come to the  conclusion that by the contravention made by the tenant, such tenant has E  ceased to occupy the building. Tlie framers of the Act have not stopped  only at the stage of Section 12(2) but have further provided in Section 25,  Explanation (i) another legal fiction saying that where the tenant ceases to  occupy the building within the meaning of sub-section (2) of Section 12 'he  shall be deemed to have sub-let that building or part'. In view of the three F  deeming clause introduced in sub-section (2) of Section 12, sub-section ( 4)  of Section 12 and Explanation (i) to Section 25, no scope has been left for  the Courts to examine and consider the facts and circumstances of any  particular case, as to what was the object of admitting a person who is not  the member of the family, as partner and as to whether, in fact, the  premises or part thereof have been sub-let to such person. G  

It was then urged that if such strict interpretation is given to sub-sec- tion (2) of Section 12, then similar interpretation should be given to S~ction  12(1)(b) and to Section 12(3) of the Act which prescribe other conditions  under which the tenant shall be deemed to have ceased to occupy the H

68 SUPREME COURT REPORTS [1995] 1 S.C.R.  

A building under his tenancy. It was pointed out that sub-section (l)(b) of  Section 12 says that a landlord or tenant of a building shall be deemed to  have ceased to occupy the building or a part thereof if he has allowed it  to be occupied by any person who is not a member of his family . According  to the learned counsel for respondents if the daughter-in-law or son-in-law  

B of the landlord or tenant comes to reside in the building in occupation of  such landlord or tenant, then it shall be deemed to have ceased to be in  occupation of such landlord or tenant which shall lead to an absurd result.  Clause (b) of sub-section (1) of Section 12 shall not be applicable to such  occupation by daughter-in-law or son-in-law or even outsider with the  tenant himself. The words 'allowed' and 'occupy' are significant. The  

C landlord or the tenant, as the case may be, shall be deemed to have ceased  to occupy the building only if he has allowed it to be occupied by any  person who is not a member of his family. The words "allowed to be  occupied" indicate that the possession of such building has been given to  a person who is not a member of the family. It shall be attracted when any  

D person who is not a member of the family resides in such building either  along with the landlord or the original tenant. If the landlord or the tenant  allows any person, who is not a member of the family within the meaning  of the Act to occupy the premises, with the object that such person shall  occupy such premises in his own rights, in that event, clause (b) of sub- section ( 1) of Section 12 shall be attracted.  

E  So far as sub-section (3) of Section 12 is concerned, it says that in  

case of residential building, if the tenant or any member of his family builds  or otherwise acquires, in a vacant state or gets vacated a residential  building in the same city, municipality, notified area or town area, in which  

F the building under tenancy is situate, the tenant "shall be deemed to have  ceased to occupy the building under his tenancy". It has submitted that if  full effect is given to the deeming clause, then in a house where the tenant  was living with his four sons, one of his sons getting any accommodation  in the same city or town, the tenant along with his remaining three sons  have to be evicted which shall lead to an absurd result. Although we are  

G not concerned in the present case with the scope of sub-section (3) of  Section 12, but in order to appreciate the submission made on behalf of  the respondents, we may point out that sub-section (3) of Section 12, does  not conceive that if one of the sons living with the tenant, who is not wholly  dependent on such tenant, acquires any other residential building in the  

H same city or town, then even the original tenant shall be be deemed to have  

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TANDONv. ADDL. DIST. MAGIS1RATE [N.P. Sll':fGH,J.] 69  

ceased to occupy the building in question. This is apparent from Explana- A  tion (b) to said sub-section (3) which says :  

"the expression "any member of family", in relation to a tenant,  shall not include a person who has neither been normally residing  with nor is wholly dependent on such tenant."  

In view of the explanation any member of the family mentioned in sub-sec- B  

tion (3) shall not include a person who has neither been normally residing  with nor is wholly dependent on such tenant. As such, if a son of the tenant  who is not wholly dependent on such tenant acquires or gets any residential  building in the same city or town, there is no question of the tenant C  deeming to have ceased to occupy the building under sub-section (3) of  Section 12.  

The Act with which we are concerned is a Statute which purports to  regulate the relationship between the landlord and the tenant and in many  respects contains provisions for achieviilg that object which are different D  from the Transfer of Properties Act. As such it was open to the framers  of the Act to look to the interest of the tenant as well as the landlord and  to prescribe conditions under which the tenant can continue to occupy a  building and having contravened any of the conditions prescribed shall be  deemed to have ceased to occupy the building.  

On the question as to whether any contravention by Ganpat Roy, one  

E  

of the heirs of Sheobux Roy, will be a ground for eviction from the whole  premises, the High Court was of the opinion that the death of Sheobux  Roy, his five sons become tenants in common and not joint tenant of the  premises because of which contravention by one of the tenants shall not be F  a ground for eviction, so far the other co-tenants are concerned. It support  of this finding, reliance was placed by the High Court on a judgment of  this Court in Mohd. Azeem v. District Judge, Aligarh and Ors., (1985] 3 SCR  906. From the facts of that case it appears that the original tenant had died  in 1969 leaving behind a widow, three sons and a daughter. In connection G  with sub-section (3) of Section 12, after making reference to the Full  Bench Judgment of Allahabad High Court it was said :  

"The Full Bench proceeded on the basis that the heirs become  joint tenants and answered the main problem by saying that if any  member of the family of such joint tenants built or acquired a H

A  

B  

c  

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70 SUPREME COURT REPORTS [1995] 1 S.C.R.  

house in vacant state the tenancy would be deemed to have ceased.  In framing these questions for reference and in answering the  referred questions, the definition of 'tenant' was lost sight of . All  the heirs as normally reside with the deceased tenant in the  building at the time of his death become tenants. The definition  does not warrant the view that all'the heirs will become a body of  tenants to give rise to the concept of joint tenancy. Each heir  satisfying the further qualification in s.3(a)(l) of the Act in his own  right becomes a tenant and when we come to s.12(3) of the Act,  the words "the tenant or any member of his family" will refer to  the heir who has become a tenant under the statutory definition  and members of his family."  

Bowever, this Court in the case of H.C. Pandey v. G.C. Paul, [1989]  3 SCC 77, in connection with the same Act said:  

"It is now well settled that on the death of the original tenant,  subject to any provision to the contrary either negativing or limiting  the succession, the tenancy rights devolve on the heirs of the  deceased tenant. The incidence of the tenancy are the same as  those enjoyed by the original tenant. It is a single tenancy which  devolves on the heirs. There is no division of the premises or of  the rent payable therefore. That is the position as between the  landlord and the heirs of the deceased tenant. In other words, the  hefrs succeed to the tenancy as joint tenants."  

The attention of the learned Judges constituting the Bench in the  F case of H.C. Pandey v. G.C. Paul (supra) was not drawn to the view  

expressed in the case of Mohd. Azeem v. District Judge, Aligarh (supra).  There appears to be an apparent conflict between the two judgments. It  was on that account that the present appeal was referred to a Bench of  three Judges. According to us, it is difficult to hold that after the death of  the original tenant his heirs become tenant in common and each one of the  

G heirs shall be deemed to be an independent tenant in his own right. This  can be examined with reference to Section 20(2) which contains the  grounds on which a tenant can be evicted. Clause (a) of Section 20(2) says  that if the tenant is in arrears of rent for not less than four months, and  has failed to pay the same to the landlord within one month from the date  

H of service upon him of a notice of demand, then that shall be a ground on  

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TANDON v. ADDL. DIST.MAGISTRATE[N.P.SINGH,J.] 71  

which the landlord can institute a suit for eviction. Take a case where the A  original tenant who was paying the rent dies leaving behind four sons. It  need 001 be pointed out that after the death of the original tenant, his heirs  must be paying the rent jointly through one of his sons. Now if there is a  

default as provided in clause (a) of sub-section (2) Section 20 in respect  of the payment of rent, each of the sons will take a stand that he has not B  committed such default and it is only the other sons who have failed to pay  the rent. If the concept of heirs becoming independent tenants is to be  introduced, there should be a provision under the Act to the effect that  each of the heirs shall pay the proportionate rent and in default thereto  

such heir or heirs alone shall be liable to be evicted. There is no scope for  such division of liability to pay the rent which was being paid by the original C  tenant, among the heirs as against the landlord what the heirs do interse,  is their concern. Similarly, so far as ground (b) of sub-section (2) of Section  20, which says that if the tenant has wilfully caused or permitted to be  caused substantial damage to the building, then the tenant shall be liable  to be evicted; again, if one of the sons of the original deceased tenant D  wilfully causes substantial damage to the building, the landlord cannot get  possession of the premises from the heirs of the deceased tenant since the  damage was not caused by all of them. Same will be the position in respect  of clauses ( c) which is another ground for eviction, i.e. the tenant has  without the permission in writing of the landlord made or permitted to be  made, any such construction or structural alternation in the building which E  is likely to diminish its value or utility or to disfigure it. Even if the said  ground is established by the landlord, he cannot get possession of the  building in which construction or structural alterations have been made  diminishing its value and utility, unless he establishes that all the heirs of  the deceased tenant had done so. Clause (b) do sub-section (2) of Section F  20 prescribes another ground for eviction - that if the tenant has without  the consent in writing of the landlord, used it for a pursose other than the  purpose for which he was admitted to the tenancy of the building or has  been convicted under any law for the time being in force of an offence of  using the building or allowing it to be used for illegal or immoral purposes;  the landlord cannot get possession of the building unless he establishes the G  said ground individually against all the heirs. We are of the view that if it  is held that after the death of the original tenant, each of his heirs becomes  independent tenant, then as a corollary it Ii.as also to be held that after the  death of the original tenant, the otherwise single tenancy stands split up  

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72 SUPREME COURT REPORTS (1995] 1 S.C.R.  

A into several tenancies and the landlord can get possession of the building  only if he establishes one or the other ground mentioned in sub-section (2)  of Section 20 against each of the heirs of original tenant. One of the well  settled rules of interpretation of statute is that it should be interpreted in  a manner which does not lead to an absurb situation.  

B It appears to us, in the case of H.C. Pandey v. G.C. Paul (supra) it  was rightly said by this Court that after the death of the original tenant,  subject to any provision to the contrary, the tenancy rights devolve on the  heirs of the deceased tenants jointly. The incidence of the tenancy are the  same as those enjoyed by the original tenant. It is a single tenancy which  

C devolves on the heirs and there is no division of the premises or of the rent  payable therefor and the heirs succeed to the tenancy as joint tenants.  

In the case of Smt. Gian Devi Anand v. Jeevan Kumar and others,  [ 1985] Suppl. SCR 1, the Constitution Bench of this Court in connection  

D with Delhi Rent Control Act, 1958 said :  

E  

F  

G  

"The heirs of the deceased tenant in the absence of any  provision in the Rent Act to the contrary will step into the position  of the deceased tenant and all the rights and obligations of the  deceased tenant including the protection afforded to the deceased  tenant under the Act will devolve on the heirs of the deceased  tenant. As the protection afforded by the Rent Act to a tenant  after determination of the tenancy and to his heirs on the death  of such tenant is a creation of the Act for the benefit of the tenants,  it is open to the Legislature which provides for such protection to  make appropriate provisions in the Act with regard to the nature  and extent of the benefit and protection to be enjoyed and the  manner in which the same is to be enjoyed. If the Legislature makes  any provision in the Act limiting or restricting the benefit and the  nature of the protection to be enjoyed in a specified manner by  any particular class of heirs of the deceased tenant on any condi- tion laid down being fulfilled, the benefit of the protection has  necessarily to be enjoyed on the fulfilment of the condition in the  manner and to the extent stipulated in the Act."  

The framers of the Act have clearly expressed their intention in  H Sections 12, 20 and 25 while protecting the tenant from eviction except on

TANDON v. ADDL. DIST. MAGISTRATE [N.P. SINGH,J.] 73  

the grounds mentioned in Section 20, that after the death of the original A  tenant his heirs will be deemed to be holding the premises as joint tenants,  and for any breach committed by any of such joint tenants, all the heirs of  the original tenant have to suffer. They cannot take a plea that unless the  grounds for eviction mentioned in sub-section (2) of Section 20 are estab-

lished individually against each one of them, they cannot be evicted from B  the premises in question.  

It was then submitted that although Swarup Kailash, the son-in-law  of Ganpat Roy may not be held to be a member of the family within the  

meaning of the definition given in Section 3(g), nonetheless he shall be  deemed to be a member of the family as the expression 'family' is generally C  understood, and by admitting a son-in-law or daughter-in-law as a partner,  

it shall not amount to sub-letting within the meaning of the Act. It was  

pointed out that Section 3 opens with the words "In this Act, unless the  context otherwise reqnires" and as such the definition of the family should  not be strictly construed as given in Section 3(g) and in the context of the D  present case a wider interpretation to the expression 'family' should be  

given so as to include even the sons-in-Jaw and daughters-in-law. In this  connection, reliance was placed on the judgment of this Court in the case  of Pushpa Devi and others v. Mi/khi Ram, (1990] 2 SCC 134. As has already  been pointed out that in the Act with which we are concerned, wherever E  the expression 'member of the family' has been used, it is consistent with  the definition of 'family' given in Section 3(g) and there is no scope for  interpreting that expression in a different manner in connection with  sub-section (2) of Section 12 of the Act. Once the finding of the High Court  that after the death of Sheobux Roy, his sons became tenants in common F  instead of joint tenants, is reversed for the reasons mentioned above, the  result will be that it has to be held that because of the admission of Swarup  Kailash, the son-in-law of Ganpat Roy, as a partner in the business, there  has been a deemed vacancy of the premises within the meaning of sub-sec- tions (2) and ( 4) of Section 12 and it shall amount to sub-letting within the  meaning of Section 25, Explanation (i), which is a ground for eviction under G  sub-section 2(e) of Section 20 of the Act. The judgment in Mohd. Azeem's  case, does not lay down the correct law and on the other hand we hold  that H.C. Pandey's case (supra) Jays down the correct law.  

In the result, the appeal is allowed. The judgment of the High Court H

74 SUPREME COURT REPORTS (1995] 1 S.C.R.  

A allowing the Writ Petition of the respondent-tenants is set aside and the  orders of the Rent Controller and Eviction Officer are restored. In the  

circumstances of the case, there shall be no order as to costs.  

B  

However, respondents shall not be evicted from the premises in  question upto 30th June, 1995, if they file usual undertaking before this  Court within four weeks from today.  

A.G. Appeal allowed.