ORDER
K.S. Radhakrishnan, J.
1. Can there be a degree of comparison between mother and brother while claiming dependency of a member of the family under Section 11(3) of Act 2 of 1965, is the question that has come up for consideration in this case.
2. Landlord’s elder brother contended that his younger brother is dependent on him so far as the tenanted premises is concerned to start a business in electrical equipments, while the tenant took up the stand that even if younger brother is a dependent he could be dependent only on the mother and not with the elder brother since mother is also having a building of her own. Rent Control Court took the view that since younger brother and the landlord are residing with the mother, it should be taken that younger brother is dependent on the mother and not on the brother. Further it was held that brother of the petitioner cannot be considered as dependent on the landlord who is elder brother and that husband, wife and children can only be considered as member of the family unless it is a joint family. Since family of the landlord is not a joint family, Rent Control Court took the view that younger brother is not dependent on the elder brother. The Rent Control Appellate Authority however took the view that younger brother is dependent on the elder brother and held that the need is bona fide.
3. Section 11(3) uses the expression “any member of his family dependent on him”. The word “dependent” is used as an adjective and it literally means person who depends on or looks to another for support or favour or for his maintenance or livelihood. Since dependent means depending upon something else, that is, dependent has to satisfy that he is a member of the family. Dependent member must be a member of the landlord’s family. With regard to that, two tests have to be satisfied; that he must be a member of the family and consequently that member must be dependent on the landlord and dependency is not financial dependency, but dependency so far as the tenanted premises is concerned. The word “family” has not been defined in the Act. In its ordinary and primary sense family living in one house or under one head or manager, or one domestic servant; the relations between such persons necessarily being of a permanent or domestic character, not that of persons, abiding temporarily together as strangers. The word “family” sometimes used to include those descended or claiming descent from a common ancestor; it has very often, a much wider import; it is often used to indicate a body of persons formed by those who are merely connected by blood or affinity; it is sometimes used to include even a body of persons who live in one house or under one head. Since “family” has not been defined in the Rent Control Act, it would not be possible to give a well defined, broad or comprehensive meaning to the word. It would all depend upon the facts and circumstances of each case. However, so far as our social set up is concerned, father, mother, children married or unmarried all would constitute members of the family. There may also be cases where sisters, brothers, brothers-in-law, sisters-in-law be treated as members of the family. It all depends upon the family relations and family bonds. A domestic servant who served the family throughout his life could also in a given situation be treated as member of the family. Such being the relationship in our social set up, we are not prepared to say that younger brother is not dependent on the elder brother for his needs. Rent Control Court took the view that if at all younger brother has got a bonafide need he must look upon his mother rather than the elder brother. Mother has also got the tenanted premises and the mother could have then proceeded against her tenanted premises for the dependent son. According to the Rent Control Court, younger brother cannot be dependent on the elder brother.
4. We find it difficult to agree with the reasoning of the Rent Control Court. So far as this case is concerned, it has come out in evidence that one of the brothers is married. He is residing along with the mother in the family. Mother will have to look after other sons also. So far as this case is concerned, we are inclined to take the view that younger brother is dependent on the elder brother, who is elder member of the family. Contention was raised by the counsel that there is no sufficient pleading to show that younger brother is dependent on the elder brother. We have perused the objection filed by the tenant and the evidence adduced in this case which would show even though there was no meticulous pleading regarding the dependency no prejudice has been caused to the tenant, since he was aware of the case which he has to defend.
5. We have gone through the oral and documentary evidence and the commission report and also the petition filed by the tenant. Before the Rent Control Court contention was raised by the tenant that the son is not dependent on the landlord and that there was lack of pleadings. The evidence of P.Ws.1 and 2 would show that PW.2 is a dependent of PW. 1 so far as the tenanted premises is concerned. Further it has come out in evidence that PW.2 has no avocation. No evidence has been adduced by the tenant to show that he has got other building of his own. In the absence of any evidence to show that he is otherwise employed or that he has got other building of his own, we are inclined to take the view that PW.2 is dependent on PW.1 and the need urged by the landlord is bonafide.
6. The Rent Control Court found that tenant is entitled to get the benefit of the second proviso to Section 11(3). Tenant contended that the income derived from the business conducted in the tenanted premises is the main source of his livelihood. He has also stated that there is no suitable building available in the locality so as to shift his shop. Rent Control Court proceeded as if it is for the landlord to show about the availability of buildings. A Full Bench of this Court in Francis v. Sreedevi Varassiyar (2003 (2) KLT 230) held that burden is entirely on the tenant to prove both the limbs of the second proviso. Tenant has not adduced any independent evidence to show that the income that he derives from the watch repairing shop is the main source of his livelihood. Landlord asserted that the tenant has got other source of income. It is then for the tenant to disprove the same by producing the details and other records. No attempt has been made by the tenant to establish the said fact. In such circumstances we are in agreement with the court below that the need urged is bonafide and the landlord is entitled to get an order of eviction under Section 11(3), We therefore uphold the order of the Appellate Authority and dismiss this Revision Petition. At the same time, tenant is given time upto 30.9.2004 for vacating the premises on condition that he should file an undertaking in the form of an affidavit before the Rent Control Court within one month from today that he would vacate the premises and pay arrears of rent, if any, and future rent.