JUDGMENT
I.N. Modi, J.
1. This is a second appeal by the ‘defendants Gorulal and Damodar, father and son, against the judgment and decree of the Senior Civil Judge, Jaipur City, affirming the judgment
and decree of the Additional Munsiff, Jaipur City, in a suit for rent and eviction.
2. It is admitted between the parties that the defendants appellants bad taken the shop in suit with a Chobara on it from Rampratap and Badrinarain on a rent of Rs. 6/- per mensem by a rentnote dated the 4th January, 1944, Ex. 1. It is further admitted that Rampratap and Badrinarain had made a gift of the suit property to Mst. Shantidevi, wife of the plaintiff Gopichand and that on her death, Triveni Devi, her daughter, succeeded to the property and that the latter also ‘died unmarried on the I4th of April, 1957. On the 30th December, 1955, a notice was served on behalf of Mst. Triveni Devi on the defendants terminating their tenancy and asking them to hand over possession of the suit property. Eventually, the plaintiff Gopichand brought the present suit for recovery of the arrears of rent amounting to Rs. 216/- and also for ejectment on the 18th January 1958. The sole ground on which this suit was brought was that the defendants had defaulted in the payment of rent from the 4th January, 1955 to the 4th January, 1958.
3. The defendants resisted the suit on a number of grounds. They contended that the plaintiff had no locus standi to bring the present suit as he was not the lawful heir of Mst. Triveni Devi, and in any case, there were other heirs who had not been impleaded as plaintiffs. They further contended that a sum of Rs. 70/- had been sent by them by a money-order (Ex. A-1) which was received by Mst. Triveni Devi’s counsel on the 29th January, 1956, presumably this being the rent due from the 4th January, 1955, upto some time in ‘December, 1955. It was finally contended that as the entire amount of the rent in arrears had been deposited by them on the first date of hearing, they were entitled not to be evicted from! the suit premises.
4. Both courts below repelled the contentions of the defendants and decreed the plaintiffs suit for ejectment. It is against this decision that the defendants have now come up in second appeal to this Court.
5. The first contention raised before me by learned counsel for the defendants is that the plaintiff Gopichand had no right to institute the present suit as he was not the lawful heir of Mst. Triveni Devi, his daughter who was the last holder of the property in suit and on whose behalf the notice of ejectment had been given. It was further contended in this connection that it was the admitted position between the parties that the step-mother of Mst. Triveni Devi was alive when Gopichand instituted the present suit. The contention of learned counsel is that it was this step mother who was the lawful heir of Mst. Triveni Devi and not the latter’s father Gopichand. In support of this argument, learned counsel invited my attention to paragraph 145 of the Principles of Hindu Law by Mulla, 12th Edition, at page 218.
The relevant portion of this paragraph reads as follows:
“A maiden’s property according to all the schools, passes in the following order:
(1) Uterine brother;
(2) mother;
(3) father;
(4) father’s heirs in order of propinquity; e.g.,
the full sisters of maiden’s father were
preferred to the half sisters;
(5) kinsmen of the deceased herself, that is, her mother’s heirs in order of propinquity.”
The submission of learned counsel is that the mother was a nearer heir to the maiden daughter than the father and the expression ‘mother* included step-mother also. It may be noted, however, that for this last mentioned proposition, learned counsel was unable to cite any direct authority.
6. As against this, learned counsel for the respondent relies on Clause (7) of paragraph 43 of the Principles of Hindu Law by Mulla 12th Edition at page 126, which deals with the order of succession among sapindas. Adverting to the step-mother, the learned author sums up the law like this:–
“A step-mother is not entitled to inherit to her step-son. In the Bombay State, however, she is an heir, for she is there regarded as a sagotra sapinda but she comes after the female-heirs recognised in Bombay are exhausted.”
7. My attention was further invited hi support of this view to Chattar Singh v. Roshan Singh, AIR 1946 Nag 277 and Pitra Kueri v. Ujagir Rai, AIR 1958 All 101.
8. In the first case, after, a fairly elaborate discussion of the law relating to the position of a step-mother which I consider it unnecessary to sepeat here, it was laid down that according to Mitakshara, the step-mother was not entitled to succeed to her step-son, though it was pointed out that in Bombay, the step-mother did so succeed being the wife of a gotraja sapinda.
9. The same view was adopted by the Allahabad High Court in the next case mentioned above, and it was laid down that so far as the Banares School of Mitakshara Law was concerned, it was the settled law for almost about a century then that in the matter of inheritance a step-mother was not an heir to her step-son.
10. It is true that both these cases related to the right of a step-mother to succeed to her stepson. But in the absence of any cogent reasons to the contrary, (and none have been pointed out me,) I am disposed to hold that the position of a step mother qua her step-daughter in the matter of inheritance should rest on an identical footing and no higher. That being so, I am clearly of the opinion that the father Gopichand was perfectly entitled to bring the present suit as the next heir of his daughter Mst Triveni Devi. This contention, therefore, has no force and I hereby overrule it.
11. It was next contended by learned counsel for the defendants appellants that the Courts below had fallen into an error of law in not dismissing the plaintiff’s suit for ejectment despite the fact that the defendants had deposited the entire amount of rent which was in arrear on the first date of tearing in the suit in the trial Court. The position taken up by him is that the defendants were entitled to the benefit of S. 13(4) of the Rajasthan
Premises (Control of Rent and Eviction) Act, 1950 (Act No. XVII of 1950) as it stood before it was amended in 1958. Learned counsel strongly relies in support of his submission on the decision of a learned single Judge of this Court in Labhchand v. Ganpatlal, 1961 Raj LW 458.
12. I have carefully considered this contention and have arrived at the conclusion that it is without any substance. Having regard to the facts and circumstances of this case, I am disposed to hold that it falls directly to be governed by a bench decision of this Court in Shambhoo Ram v. Mangal Singh, ILR (1958) 8 Raj 501: (AIR 1959 Raj 59) and a subsequent decision in Moti Ram v. Parma Nand, ILR (1960) 10 Raj 625. The effect of these two decisions undoubtedly is that where and in so far as a suit for eviction is based on Section 13(1)(a) and a defendant expresses his intention to contest the same on the first date of hearing fixed for such a suit, he renders himself disentitled to the benefit of Sub-section (4) of Section 13. It is also clear from these decisions that the defendant must be deemed to have contested the suit if he disputes his liability to pay rent which is claimed from him or contests that he is a defaulter or raises any other dispute in that connection and this result would be avoidable only where the dispute may happen to be as to a mere arithmetical error in the calculation of the rent due or a similarer error in the calculation of interest or costs.
13. I have carefully read the judgment of Bhargava, J. in Labhchand’s case, 1961 Raj LW 458 (supra), and do not think that the learned Judge intended to lay down any thing to the contrary. The effect of that decision, to my mind, is simply this that where a plaintiff brings his suit for ejectment on a number of grounds including the one of default in the payment of rent due, then by the mere circumstance that he has brought such a composite suit, it cannot be held that the defendant cannot raise any contest with regard to the other grounds on which the suit has been based except on pain of losing the protection which Section 13(4) affords to him and that he would still be entitled to the benefit of the last-mentioned subsection if he (the defendant) has not chosen to raise any contest in so far as the suit ts brought against him on the ground of default. I do not think that that decision lays down anything more as a matter of principle than this. But if it does go beyond that, as learned counsel for the defendants appellants suggests, then, with all respect, I should like to point out that would be contrary to the law laid down in the two Bench decisions to which I have referred above and to that extent I am unable to hold that I am bound by it.
14. This being the correct state of the law, as I understand it, which must be taken to be the settled law so far as this Court is concerned, let us apply it to the facts of the present case. The plaintiff claimed arrears of rent from the 4th January, 1955, to the 4th January, 1958, i.e., for a period of three years. Prima facie, therefore, the defendants must be held to be defaulters. Apart from that, all that the defendants said in the present case was that they had remitted a sum of Rs. 70/-by money-order to Mst Triveni Devi’s counsel in January, 1956, and their further case that they
‘had tendered the rent which was due from then orally to the plaintiff has not been believed.
There can be no doubt that the defendants according to the allegations made by them in their written statement, disputed the position that they were defaulters so far as payment of rent due was concerned. This is quite definitely a contest within the meaning of Sub-section (5) of Section 13 of the Act of 1950, and it must, therefore, follow, on the authority of the decisions which I have discussed above, that they did raise a contest within the meaning of Section 13(5) and consequently concur in the conclusion of the Courts below that they were not entitled to the benefit of Section 13(4) of the Act under all the circumstances of the case. In other words, the factor that the defendants deposited the entire amount of rent in arrears due from them upto the first date of hearing of the suit does not save them from eviction, and I hold accordingly.
15. The only other ground which was raised by learned counsel before me was that upto the time the notice of ejectment had been received by the defendants, only 12 months’ rent had in any case fallen due, and, therefore, it could not be said that there was a default in payment of rent ‘on three occasions “within a period of eighteen months'” within the meaning of the proviso to Section 13(4) and therefore the plaintiff’s suit was, as it were, premature and therefore incompetent. If I may say so, without any disrespect, this argument is both involved and fallacious. The proviso in question reads as follows:
“Provided that a tenant shall not be entitled to the benefit of protection against eviction provided by this sub-section if he has made default in the payment or tender of the amount of rent due from him for any two months on three occasions within a period of eighteen months.”
Learned counsel seems to think that a suit for eviction can be brought against a defaulting tenant only at the end of eighteen months from the date of the notice of default As to the meaning of the phrase “within a period of eighteen months”, he argues that the word “within preceding the “words “a period of eighteen months” in the proviso bears the meaning of “at the end of” that period. With this interpretation, I am entirely unable to agree. According to its ordinary dictionary meaning, “within” means “inside”, “not going outside of”, or, if I may say so in plain language, “before the end of”. That being so, the meaning of the proviso with which we are concerned would legitimately be this that where a tenant has defaulted in the payment of rent on three occasions inside a period of eighteen months, then he will not be entitled to the benefit of the protection which he would otherwise have in accordance with the pro-Visions of Section 13 of the Act.
It clearly follows, therefore, that three defaults may well occur within a period of six months as one default under Section 13(1)(a) is constituted by a non-payment of rent by any two months in succession. In other words, three defaults of two months each occurring within a period of six months would be enough to satisfy the requirements of the proviso, and it is not at all necessary that the plaintiff must wait for a period of eighteen
months before he can file a suit for eviction against the defaulting tenant. Again, I am altogether unable to follow why the period of eighteen months should be counted from the date of the notice. There is nothing in the proviso which would justify the period of eighteen months being counted from the date of the notice. It is enough to point out in this connection that the proviso does not expressly specify how the period is to be counted, that is, whether from the date of suit or from the commencement of the Act. But I consider it unnecessary to go into that controversy for the purposes of this appeal as it does not properly arise for decision in this case.
It should be sufficient to say that this has nothing to do with the date of the notice of termination of the tenancy. On the view of law which I have felt persuaded to lay down above, I am certain that the defendant was guilty of three or more than three defaults on two months each “within” a period of eighteen months in this case, whether the period of eighteen months is counted from the date of the suit or from the commencement of the Act. I am, therefore, definitely of the view that there is no force in this contention; of the defendants either and it must be rejected.
16. In the result, this appeal is without any ‘force and is hereby dismissed. Learned counsel for the defendants appellants prays for reasonable “time to be able to vacate the suit premises, particularly as they have been in occupation of the suit premises for about two decades. I think that it would be sufficient if they are allowed a period of three months to vacate the suit property from today. I order accordingly. The plaintiff respondent will be entitled to his costs in all the Courts.
