{"id":12498,"date":"1986-12-11T00:00:00","date_gmt":"1986-12-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/yudhishter-vs-ashok-kumar-on-11-december-1986"},"modified":"2015-05-21T17:44:58","modified_gmt":"2015-05-21T12:14:58","slug":"yudhishter-vs-ashok-kumar-on-11-december-1986","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/yudhishter-vs-ashok-kumar-on-11-december-1986","title":{"rendered":"Yudhishter vs Ashok Kumar on 11 December, 1986"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Yudhishter vs Ashok Kumar on 11 December, 1986<\/div>\n
Equivalent citations: 1987 AIR 558, \t\t 1987 SCR (1) 516<\/div>\n
Author: S Mukharji<\/div>\n
Bench: Mukharji, Sabyasachi (J)<\/div>\n
           PETITIONER:\nYUDHISHTER\n\n\tVs.\n\nRESPONDENT:\nASHOK KUMAR\n\nDATE OF JUDGMENT11\/12\/1986\n\nBENCH:\nMUKHARJI, SABYASACHI (J)\nBENCH:\nMUKHARJI, SABYASACHI (J)\nSINGH, K.N. (J)\n\nCITATION:\n 1987 AIR  558\t\t  1987 SCR  (1) 516\n 1987 SCC  (1) 204\t  JT 1986  1021\n 1986 SCALE  (2)1044\n CITATOR INFO :\n RF\t    1991 SC1654\t (27)\n\n\nACT:\n    Haryana Urban (Control of Rent and Eviction) Act,  1973,\ns.  13(3)(a)i)\tand 15(4)--Application\tfor  ejectment--Bona\nfide  requirement of building by  landlord--Jurisdiction  of\nappellate authority to admit additional evidence.\n    Statutory\t interpretation--Rent\t Act-A\t  beneficial\nlegislation-Whether it should be read reasonably and justly.\n\n\n\nHEADNOTE:\n    On 11th October 1971, the respondent-landlord  purchased\na  house in which the appellant was a tenant since 1962.  He\nhad  also  purchased another house in the same\tdistrict  on\n10.7.1971  but\tsold away the same on 7.8.72 as it  was\t not\nvacant. On 14th January, 1974, the respondent-landlord filed\nan eviction petition against the appellant-tenant inter alia\non  the ground of bona fide personal requirement.  The\tRent\nController rejected the petition holding that all the ingre-\ndients\tof s. 13(3)(a)(i) of the Haryana Urban\t(Control  of\nRent and Eviction) Act 1973 had not been proved.\n    Aggrieved  by  the\torder of the  Rent  Controller,\t the\nrespondent  filed an appeal before the\tAppellate  Authority\nalongwith  an application for adducing additional  evidence.\nThe  Appellate Authority allowed the said  application,\t re-\ncorded\tthe  additional\t evidence and  allowed\tthe  appeal,\nholding that: (i) the need of the respondent was bona  fide;\n(ii)  that the vacant possession of the house  purchased  on\nthe  10th July 1971 by the respondent-landlord had not\tbeen\nobtained; and (iii) that the sale of the aforesaid house  by\nthe respondent was not a benami transaction. The High  Court\ndismissed the revision petition of the appellant in limine.\nDismissing the appeal by the appellant to this Court,\n    HELD: 1.1 Section 15 of the Act deals with the powers of\nthe  appellate\tand revisional authorities  under  the\tAct.\nSub-s.\t(4) of the said section specifically provides  that,\nif necessary, after further enquiry as it thinks fit. either\npersonally or through the Controller, the appellate authori-\nty shall decide the appeal. Therefore, the appellate author-\nity has by express provision jurisdiction to admit addition-\nal evidence. [520E]\n517\n    State  of Kerala v.K.M. Charia Abdullah & Co., [1965]  1\nS.C.R. 601, relied upon.\n    1.2 The document relied upon on behalf of the  appellant\nwas a registered document and recited that vacant possession\nhas  been given. The document stated 'Kabza Khali  makan  ka\ndia  hai'. It was asserted that it meant that a vacant\tpos-\nsession, in fact, had been given. The oral evidence  adduced\non behalf of the respondent indicated otherwise. The expres-\nsion  indicated\t above does not mean  that  actual  physical\nvacant possession has been handed over to the purchaser.  In\na  document of this type it can equally mean that the  legal\nright  of the possession not the actual possession has\tbeen\nhanded\tover to the purchaser. Therefore, evidence was\tper-\nmissible  to  explain  what it meant, and  there  was  ample\njustification  on  the\tevidence on record to  come  to\t the\nconclusion  that  it was 'not physically vacant'.  [524F  --\n525A]\n    In\tthe instant case, admission of\tadditional  evidence\nwas warranted by the facts and the pleadings. By such admis-\nsion of evidence, no prejudice has been caused to the appel-\nlant. Indeed reading of the order of the appellate authority\nmakes  it abundantly clear that the appellate authority\t had\nadverted  to all the facts recorded by the  Rent  Controller\nand  further considered the additional evidence. It is\ttrue\nthat  in referring to the findings of the  Rent\t Controller,\nthe  appellate authority in its order had  not\tspecifically\nreferred to the paragraphs of the order of the Rent Control-\nler  but  that does not mean nor does it indicate  that\t the\nappellate  authority  had not  considered  evidence  adduced\nbefore the Rent Controller. The criticism that there was  no\nconsideration  of  the\tevidence adduced  by  the  appellant\nbefore\tthe Rent Controller by the appellate  authority\t is,\ntherefore,  not justified in the facts and circumstances  of\nthe case. [521B -- E]\n    2.\tThough the Rent Act is a beneficial legislation,  it\nmust be read reasonably and justly. If more limitations\t are\nimposed\t upon the right to hold the property then  it  would\nexpose\titself to the vice of unconstitutionality.  Such  an\napproach  in  interpretation of beneficial statutes  is\t not\nwarranted.  It is true that one should iron out the  creases\nand should take a creative approach as to what was  intended\nby a particular provision but there is always, unless rebut-\nted,  a\t presumption  as to constitutionality  and  the\t Act\nshould be so read as to prevent it from being exposed to the\nvice of unconstitutionality. [525F -- G]\n    In the instant case, the suit for eviction for the\tneed\nof  the landlord was filed in January, 1972. The  respondent\ncould  not therefore be said, in view of the above  premises\nhaving\tbeen purchased and sold prior to the institution  of\nthe  suit, to have occupied another residential building  in\nthe urban area. The\n518\ncontention  on\tbehalf of the appellant, that the  sale\t has\ndisentitled  the respondent to the relief asked for  because\nhe had in his choice the residential building for his  occu-\npation\tbut  he sold it, is not maintainable. There  was  no\nevidence  either  before the Rent Controller or\t before\t the\nappellate authority that this sale of property was with\t the\nintention  or  with  a purpose to defeat the  claim  of\t the\nappellant or to take out the respondent from the purview  of\nthe  limitation imposed by clause (1)(a) of sub-s.(3) of  s.\n13 of the Act. As the respondent had sold the properly 1-1\/2\nyears before his suit for his need was instituted, it cannot\nbe said unless there was definite evidence that it was\tdone\nwith  the  intention to defeat the  appellant's\t claim.\t The\nappellate authority accepted the respondent's need and found\nhim  within the purview of the Act. The High Court  did\t not\ninterfere  in revision, nor shall this Court  under  Article\n136 of the Constitution. [525D -- F, 526C -- F]\n    Rani  Sartaj Kuari and Another v. Rani Deoraj Kuari,  15\nIndian Appeals, 51 in-applicable.\n    State Bank of India v. Ghamandi Ram (Dead) Through\tShri\nGurbax\tRai,<\/a> [1969] 3 SCR 681; Sundarsanam Maistri v.  Nara-\nsimbhulu Maistri and Anr., ILR 25 Mad. 149, 154; Commission-\ner of Wealth Tax, Kanpur & Others v. Chander Sen and Others,<\/a>\n[1986] 3 SCC 567; Lachhman Das v. Rent Control and  Eviction\nOfficer, Bareilly and another AIR 1953 Allahabad 458 at 459,\nparagraph 6; K.P. Varghese v. 1. T.O., Ernakulam and  Anoth-\ner[1981] 4 SCC 173 at 179-180 & Kasturi Lal Lakshmi Reddy v.\nState  of Jammu and Kashmir & Another<\/a> [1980] 3 SCR  1338  at\n1357 referred to:\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 459 of 1980.
\n    From  the  Judgment\t and Order dated  10.1.1980  of\t the
\nPunjab and Haryana High Court in C.R. No. 34 of 1980
\n    P.K.  Banerji, V.C. Mahajan, Mrs. Urmila Kapoor and\t Ms.
\nA. Prabhawathy for the Appellant.\n<\/p>\n
    Raja Ram Agarwal, B.P. Maheshwari, S.N. Agarwal and B.S.
\nGupta for the Respondent.\n<\/p>\n
The Judgment of the Court was delivered by
\n    SABYASACHI MUKHARJI, J. This appeal by special leave  is
\nfrom  the decision of the Punjab & Haryana High Court  dated
\n10th January, 1980. The appellant is the tenant. The  appeal
\narises out of the summary dismissal of the revision petition
\nfiled by the tenant under section 151 of the Code of Civil
\n519<\/span>
\nProcedure from the decision of the appellate authority under
\nthe  Haryana Urban (Control of Rent and Eviction) Act,\t1973
\nbeing  Act  No. 11 of 1973 (hereinafter referred to  as\t the
\n‘Act’).\n<\/p>\n
    The appellant took on rent the premises in question from
\nthe  previous landlord in or about July, 1962. On  or  about
\n11th October, 1971, the respondent purchased the premises in
\nquestion being suit No. 292 of Ward No. 13, District Gurgaon
\nfrom the previous landlord. The premises hereinafter will be
\nreferred as the ‘premises’.\n<\/p>\n
    Few\t months prior thereto that is to say on\t 10th  July,
\n1971, the respondent had purchased another house near  Kabir
\nBhavan, Gurgaon. The appellant’s case was that the  respond-
\nent  got  vacant  possession of the  same.  The\t respondent,
\nhowever,  denied  that assertion. On 7th  August,  1972\t the
\nrespondent  sold  the said house near Kabir  Bhavan.  It  is
\nasserted that the sale was to one Resham Devi who is alleged
\nto be the sister-in-law of the respondent. On the other hand
\nthis  is disputed and it appears that she is the  sister-in-
\nlaw  of the brother of the respondent. The assertion of\t the
\nappellant  was that this was a benami transaction.  On\t14th
\nJanuary, 1974, an application for ejectment was filed before
\nthe  Rent  Controller by the respondent on  grounds  of\t (a)
\nnon-payment  of\t rent, (b) sub-letting, and  (c)  bona\tfide
\nrequirement.  So far as the grounds of non-payment  of\trent
\nand sub-letting, are concerned, it has been held by all\t the
\ncourts\tin favour of the tenant. Those findings are  not  in
\ndispute in this appeal. The only ground that survives is the
\nbona  fide requirement of the landlord. The Rent  Controller
\non 7th November, 1978 rejected the petition of the  landlord
\non  the ground that the landlord had not been able to  prove
\nall  the ingredients of section 13(3)(a)(i) of the Act.\t The
\nrespondent  thereafter filed an appeal before the  Appellate
\nAuthority.  Before the Authority, an, application  was\tmade
\nfor    admission    of\t additional    evidence\t   by\t the
\nrespondent\/landlord. Such additional evidence were permitted
\nto be adduced and were recorded on various dates. The appeal
\nwas  allowed  by the appellate authority  on  7th  December,
\n1979.  The  appellant herein filed a  revision\tpetition  as
\nmentioned  hereinbefore before the High Court under  section
\n151  of the Code of Civil Procedure, and the same  was\tdis-
\nmissed by the High Court in limine on 10th January, 1980.
\n    The\t only question that requires consideration  in\tthis
\nappeal, is whether on the facts and in the circumstances  of
\nthe case, the landlord came within the provisions of section
\n13(3)(a)(i)  of the Act. The Act which is an Act to  control
\nthe  increase of rent of certain buildings and\trented\tland
\nsituated within the limits of urban areas, and the  eviction
\nof  tenants  therefrom, provides by section 13( 1 )  that  a
\ntenant\tin possession of a building or a rented\t land  shall
\nnot  be\t evicted  therefrom except in  accordance  with\t the
\nprovisions of the said
\n520<\/span>
\nsection.  Sub-section  (3)(a)(i) of section 13\tprovides  as
\nfollows:\n<\/p>\n
“(3)  A\t landlord may apply to the Controller for  an  order
\ndirecting the tenant to put the landlord in possession–\n<\/p>\n
(a) in the case of a residential building, if—\n<\/p>\n
(i) he requires it for his own occupation, is not  occupying
\nanother residential building in the urban area concerned and
\nhas not vacated such building without sufficient cause after
\nthe commencement of the 1949 Act in the said urban area.”\n<\/p>\n
    Before  we\tdeal with the other contentions, it  may  be
\nmentioned that on behalf of the appellant, Shri P.K. Banerji
\nlearned advocate contended that the appellate authority\t was
\nin  error  in firstly admitting additional evidence  at\t the
\nappellate stage in the facts and circumstances of the  case,
\nand secondly, the appellate authority had not considered the
\nevidence  adduced by the appellant before the Rent  Control-
\nler.  We  are unable to accept these  submissions  urged  on
\nbehalf of the appellant. The appellate authority, it must be
\nmentioned,  has\t normally  the same  jurisdiction  to  admit
\nadditional  evidence  as the trial court if  the  facts\t and
\ncircumstances so warrant.\n<\/p>\n
    Furthermore,  in the instant case section 15 of the\t Act
\ndeals  with the powers of the appellate and  revisional\t au-
\nthorities under the Act. Sub-section (4) of the said section
\nspecifically  provides\tthat  if  necessary,  after  further
\nenquiry\t as it thinks fit either personally or\tthrough\t the
\nController, the appellate authority shall decide the appeal.
\nTherefore, the appellate authority has by express  provision
\njurisdiction  to admit additional evidence. Indeed  in\tthis
\ncase  from the written statement, it appears that  the\tonly
\ncontention that was sought to be raised was about the extent
\nof the accommodation available to the landlord in the ances-
\ntral house of the landlord.\n<\/p>\n
    The\t allegation about the alleged sale of  the  premises
\nnear Kabir Bhavan was not clearly spelled out. Therefore, if
\nthe interest of justice so demanded, the appellate authority
\nwas  justified\tin admitting the  additional  evidence.\t The
\nparties\t in  this  case had ample opportunity  to  test\t the
\nveracity  and  to examine and submit on the  value  of\tsuch
\nadditional evidence. No prejudice could be said to have been
\ncaused by admission of such additional evidence. In State of
\nKerala\tv.K.M. Charia Abdullah & Co., [1965] 1 SCR 601\tthis
\nCourt  was dealing with similar power under  Madras  General
\nSales  Tax Act, 1939 and observed at page 610 of the  report
\nthat  by  sub-section (4) of section 250 of the\t Income\t Tax
\nAct,  1961 which is similar to section 33(4) of\t the  Indian
\nIncometax  Act,\t 1922, the Commissioner was  authorised\t for
\ndisposing of the appeal to
\n521<\/span>
\nmake such further enquiry or to direct the Income-tax  Offi-
\ncer  to\t make further enquiry as he thought fit\t and  report
\nupon them. This Court held that it could not denied that the
\nsaid  sub-section conferred upon the appellate\tor  revising
\nauthority  power to make such enquiry as it thought fit\t for
\nfair  disposal of appeal. We are, therefore, clearly  of-the
\nopinion that in the facts and circumstances of a  particular
\ncase, the appellate authority has jurisdiction under the Act
\nin question to admit additional evidence. We are further  of
\nthe  opinion that in this case admission of such  additional
\nevidence  was  warranted by the facts and the  pleadings  in
\nthis  case. We are satisfied that by such admission of\tevi-
\ndence, no prejudice has been caused to the appellant. Indeed
\nreading\t of  the order of the appellate authority  makes  it
\nabundantly  clear that the appellate authority had  adverted
\nto all the facts recorded by the Rent Controller and further
\nconsidered  the\t additional  evidence. It is  true  that  in
\nreferring to the findings of the Rent Controller, the appel-
\nlate authority in its order had not specifically referred to
\nthe paragraphs of the order of the Rent Controller but\tthat
\ndoes  not mean nor does it indicate that the  appellate\t au-
\nthority had not considered evidence adduced before the\tRent
\nController. We are, therefore, unable to sustain the  objec-
\ntions  urged on behalf of the appellant by Shri Banerji,  on
\nadmission and consideration of the additional evidence.
\n    The\t appellate  authority noted that the party  had\t led
\nevidence  before the Rent Controller and after\thearing\t the
\nparty,\tthe Rent Controller held in the manner he  did.\t The
\nappellate authority therefore was conscious of the  evidence
\nadduced\t by  the appellant before the Rent  Controller.\t The
\ncriticism  that there was no consideration of  the  evidence
\nadduced\t by the appellant before the Rent Controller by\t the
\nappellate  authority  is, therefore, not  justified  in\t the
\nfacts and circumstances of the case. The Rent Controller  as
\nnoted  hereinbefore held that the appellant had\t proved\t the
\nbona fide requirement. The appellate authority had noted the
\nevidence  adduced  by the respondent  before  the  appellate
\nauthority.  It\tis clear that the residential house  of\t the
\nfamily of the petitioner was having two rooms only and there
\nwas  large  number of persons occupying the two\t rooms.\t The
\nfamily of the petitioner consisted of really seven  brothers
\nand  one sister. Admittedly two brothers and their  families
\nwere  occupying the said premises. The premises in  question
\nbelonged  to the grand father of the respondent.  The  grand
\nfather was an advocate. He died. After his death his chamber
\nwas let out to Laxmi Commercial Bank. It was contended\tthat
\nthe  respondent was a co-parcener in the said  joint  family
\nhouse. It was submitted that if the said chamber which was a
\nbig  room  was available, then, it could not  be  said\tthat
\nthere  was  dearth  of the accommodation  in  the  ancestral
\nhouse. It is true that the appellate authority had proceeded
\non  the basis that the two rooms for occupation were  avail-
\nable  in  the  said house for the father and  the  two\tsons
\nincluding the respondent and
\n522<\/span>
\nhis family in the ancestral house. But assuming that even if
\nwe  take  into consideration the chamber of the\t late  grand
\nfather which had been let out to Laxmi Commercial Bank, that
\nwill also be wholly insufficient to meet the reasonable\t and
\nbona  fide  requirement\t of the\t respondent.  The  appellate
\nauthority further held that the appellant was a licensee  in
\nrespect of the ancestral house and he was staying there with
\nthe permission or the licence given by his father and he had
\nno  right  and as such his interest in the  ancestral  house
\ncould not be considered to be “occupying another residential
\nhouse” in terms of Clause (1) of sub-section 3(a) of section
\n13  of\tthe  Act. It was submitted before us  that  this  is
\nincorrect because a co-parcener in respect of the  ancestral
\nhouse was a co-owner and an owner could not be considered to
\nbe a licensee of the father in respect of a house  belonging
\nto  Mitakshara\tjoint family. There is no dispute  that\t the
\nfamily\tin question is governed by the Mitakshara School  of
\nHindu Law.\n<\/p>\n
    It\tis abundantly clear that Ashok, Isher  and  Jagadish
\nbeing the brothers of the appellant and the family belonging
\nto  the joint family of the respondent with  their  children
\nwere staying in the ancestral house. Lalit, another brother,
\nhad  another  house. As mentioned  hereinbefore\t there\twere
\nother  persons but about their stay there was no clear\tevi-
\ndence. It is asserted by the respondent that they are  seven
\nbrothers and one sister. But even assuming that Ashok, Isher
\nand  Jagadish and the children stay in the  ancestral  house
\nand  assuming  that the big room which had been let  out  to
\nLaxmi  Commercial  Bank\t is taken  into\t consideration,\t the
\naccommodation  is still very inadequate for  reasonable\t and
\nbona fide requirement of the landlords. The question, there-
\nfore, whether the respondent was a licensee of his father or
\na  co-owner of the property, namely the ancestral  house  is
\nnot really necessary to be decided. But it was contended  on
\nbehalf of the appellant that this approach of the  appellate
\nauthority  had\tvitiated  the conclusion.  It  is  therefore
\nnecessary  to allay the grievance of the appellant  on\tthis
\nscore.\n<\/p>\n
    Our\t attention was drawn to a decision of  the  Judicial
\nCommittee  in Rani Sartaj Kuari and Another v.\tRani  Deoraj
\nKuari,\t[15] Indian Appeals, 51 (Mother and Guardian of\t Lal
\nNarindur Bahadur Pal). That case was in respect of an impat-
\nible estate governed by the Mitakshara School of Hindu\tLaw.
\nThere  was a custom that the estate was impartible  and\t was
\ndescendible to single heir by the rule of primogeniture.  It
\nwas held that in order to render alienations by the rejah in
\nthat case invalid as made without the consent of his son  it
\nmust  be  shown.that  the rajah’s power\t of  alienation\t was
\nexcluded  by the custom or by the nature of the\t tenure.  In
\nsuch  a raj the son is not a co-sharer with his father.\t The
\nJudicial Committee further observed that property in  ances-
\ntral estate acquired by birth under the Mitakshara law is so
\nconnected with the fight to partition that it does not exist
\nindependently of such fight. At
\n523<\/span>
\npage 64 of the report, the Judicial Committee observed\tthat
\nthe property in the paternal or ancestral estate acquired by
\nbirth  under  the Mitakshara law is, in the opinion  of\t the
\nJudicial  Committee, so connected with the fight  to  parti-
\ntion, that it did not exist where there was no right to\t it.
\nWe are of the opinion that no much support can be sought for
\nby the appellant from the said decision; Here in the instant
\ncase, the question is whether the respondent who undoubtedly
\nwas governed by the Mitakshara School of Law, had acquired a
\nfight to ancestral property by his birth. But this  question
\nhas  to be judged in the light of the Hindu Succession\tAct,
\n1956.  Reliance\t was also placed on State Bank of  India  v.
\nGhamandi Ram (Dead) Through Shri Gurbax Rai<\/a> [1969] 3 SCR 681
\nat page 686 of the report, this Court observed that  accord-
\ning  to the Mitakshara School of Hindu law all the  property
\nof a Hindu joint family was held in collective ownership  by
\nall the coparceners in a quasi-corporate capacity. The Court
\napproved  the observations of Mr. Justice Bhashyam  Ayyanger
\nin Sundarsanam Maistri v. Narasimhulu Maistri and Anr.\t[ILR
\n25  Mad. 149, 154. But the question in the instant  case  is
\nthe  position of the respondent after coming into  operation
\nof  the\t Hindu Succession Act, 1956. Shri Banerji  drew\t our
\nattention  to Mulla’s ‘Hindu Law’ 15th Edition at  page\t 924
\nwhere  the learned commentator had discussed effect  in\t re-
\nspect  of the devolution of interest in Mitakshara  coparce-
\nnary  property\tof the coming into operation  of  the  Hindu
\nSuccession Act, 1956.\n<\/p>\n
    This  question  has\t been considered by  this  Court  in
\nCommissioner of Wealth Tax, Kanpur and Others v. Chander Sen
\nand  Others,<\/a>  [1986] 3 SCC 567 where one of  us\t (Sabyasachi
\nMukharji, J) observed that under the Hindu Law, the moment a
\nson is born, he gets a share in father’s property and become
\npart  of  the coparcenary. His fight accrues to him  not  on
\nthe’ death of the father or inheritance from the father\t but
\nwith the very fact of his birth. Normally, therefore whenev-
\ner the father gets a property from whatever source, from the
\ngrandfather  or\t from  any other  source,  be  it  separated
\nproperty or not, his son should have a share in that and  it
\nwill  become part of the joint Hindu family of his  son\t and
\ngrandson and other members who form joint Hindu family\twith
\nhim. This Court observed that this position has been affect-
\ned by section8 of the Hindu Succession Act, 1956 and, there-
\nfore, after the Act, when the son inherited the property  in
\nthe situation contemplated by section 8, he does not take it
\nas  Kar\t of  his own undivided family but takes\t it  in\t his
\nindividual capacity. At pages 577 to 578 of the report, this
\nCourt  dealt with the effect of section 6 of the Hindu\tSuc-
\ncession\t Act, 1956 and. the commentary made by\tMulla,\t15th
\nEdn.  pages  924-926 as well as Mayne’s on  Hindu  Law\t12th
\nEdition pages 918919. Shri Banerji relied on the said obser-
\nvations of Mayne on ‘Hindu Law’, 12th Edn. at pages 918-919.
\nThis Court observed in the aforesaid decision that the views
\nexpressed  by  the  Allahabad High Court,  the\tMadras\tHigh
\nCourt, the Madhya Pradesh High Court and the Andhra  Pradesh
\nHigh Court appeared to
\n524<\/span>
\nbe correct and was unable to accept the views of the Gujarat
\nHigh  Court.  To the similar effect is\tthe  observation  of
\nlearned author of Mayne’s Hindu Law, 12th Edn. page 919.  In
\nthat view of the matter, it would be difficult to hold\tthat
\nproperty  which developed on a Hindu under section 8 of\t the
\nHindu  Succession Act, 1956 would be HUF in his hand  vis-a-
\nvis his own sons. If that be the position then the  property
\nwhich  developed  upon the father of the respondent  in\t the
\ninstant\t case on the demise of his grandfather could not  be
\nsaid  to be HUF property. If that is so, then the  appellate
\nauthority  was\tfight in holding that the respondent  was  a
\nlicensee of his father in respect of the ancestral house.
\n    But as mentioned hereinbefore, even if we proceed on the
\nassumption that the respondent was a member of the HUF which
\nowned the ancestral house, having regard to his share in the
\nproperty and having regard to the need of other sons of\t the
\nfather\twho  were living in the ancestral house\t along\twith
\ntheir families, the appellate authority was ,still fight  in
\nholding *hat the need of the respondent was bona fide.
\n    The\t second\t aspect of the matter  which  was  canvassed
\nbefore\tus  was that the respondent  had  purchased  another
\nhouse near Kabir Bhavan in 1971 and there were nine rooms in
\nthe  said house. It was the appellant’s contention  that  it
\nwas sold to Smt. Resham Devi which was a benami transaction.
\nIt  was further his contention that in respect of  the\tsaid
\nhouse the respondent had got vacant possession. Thirdly,  it
\nwas  contended that the respondent had within his choice  to
\nkeep  the  said premises but he sold the  said\tpremises  in
\nquestion.  Therefore he does not come within the  conditions
\nstipulated in section 13(3)(a)(i) of the Act. The  appellate
\nauthority on appraisal of evidence before the Rent  Control-
\nler as well as before it came to the conclusion that  vacant
\npossession  had\t not been obtained. There  was\tevidence  on
\nrecord to come to that conclusion.\n<\/p>\n
    Our attention was drawn to the document on behalf of the
\nappellant  in support of contention that the document  which
\nwas  registered document recited that vacant possession\t has
\nbeen  given.  The document stated ‘Kabza Khan maken  ka\t dia
\nhai’.  It was asserted that it meant that vacant  possession
\nin fact had been given. The oral evidence adduced  indicated
\notherwise.  Indeed  the expression aforesaid does  not\tmean
\nthat actual physical vacant possession had been handed\tover
\nto  the purchaser. In document of this type it\tcan  equally
\nmean  that  the\t legal right of possession  not\t the  actual
\npossession had been handed over to the purchaser. Therefore,
\nevidence was permissible to explain what it meant.  Reliance
\nfor  this purpose was placed on a decision of  the  Division
\nBench  of the Allahabad High Court in Lachhman Das  v.\tRent
\nControl\t and  Eviction Officer, Bareilly and  another.,\t AIR
\n[1953]\tAllahabad 458 at 459, paragarph 6. Therefore in\t the
\ninstant\t case  even  if the legal right\t of  occupation\t had
\npassed\ton which, in our opinion, was sought to be  conveyed
\nby the expression noted
\n525<\/span>
\nhereinbefore,  then  whether the premises  in  question\t was
\nactually vacant to be occupied by the respondent is a  ques-
\ntion on which the oral evidence could be adduced. There\t was
\nample justification on the evidence on record to come to the
\nconclusion that it was ‘not physically vacant’. The  expres-
\nsion  noted  above therefore on this aspect  is\t really\t non
\nsequetur and evidence would clinch the issue. There was\t the
\nevidence for the appellate authority to come to the  conclu-
\nsion  that  the house near Kabit Bhavan was not\t vacant.  It
\nacted  on the same and in our opinion it did not commit\t any
\nerror in so doing.\n<\/p>\n
    The next aspect urged was that it was benami transaction
\nbecause the father of the respondent has gone to the  Regis-
\ntration\t office.  In view of the evidence discussed  by\t the
\nappellate  authority, specially the income-tax\trecords\t and
\nother  records\tto which it is not necessary  to  advert  in
\ndetail\tas  well as the oral testamoney in  this  case,\t the
\nappellate  authority rejected the contention that  the\tsale
\nwas a henami transaction by the respondent. The most  impor-
\ntant  aspect, however, as was highlighted by the  respondent
\nwas  that the said property was purchased in July, 1971\t and
\nsold  in August, 1972 because it was not in  vacant  posses-
\nsion.\n<\/p>\n
    In\tthe instant case suit for eviction in  question\t for
\nthe need of the landlord was filed in January, 1972.  There-
\nfore,  the respondent could not be said in view of the\tsaid
\npremises having been purchased and sold by him prior to\t the
\ninstitution  of the suit, to have occupied another  residen-
\ntial  building in the urban area. It was contended  that  by
\nsale  the respondent has disentitled himself to\t the  relief
\nasked  for  because  he had in his  choice  the\t residential
\nbuilding for his occupation but he sold it. We are unable to
\naccept\tthis contention. There is no evidence either  before
\nthe  Rent Controller or before the appellate authority\tthat
\nthis  sale  to Resham Devi was with an intention or  with  a
\npurpose to defeat the claim of the appellant or to take\t out
\nthe respondent from the purview of the limitation imposed by
\nclause\t(  1 ) (a) of sub-section (3) of section 13  of\t the
\nAct. If we read in such manner the Act in question, the\t Act
\nwould  expose itself to the vice of unconstitutionality.  It
\nis  well-settled that though the Rent Act. is  a  beneficial
\nlegislation, it must be read reasonably and justly. If\tmore
\nlimitations are imposed upon the right to hold the  property
\nthen it would expose itself to the vice of unconstitutional-
\nity. Such an approach in interpretation of beneficial  stat-
\nutes  is not warranted. It is true that one should iron\t out
\nthe  creases and should take a creative approach as to\twhat
\nwas intended by a particular provision but there is always,.
\nunless\trebutted a presumption as to  constitutionality\t and
\nthe  Act should be so read as to prevent it from  being\t ex-
\nposed  to  the vice of un-constitutionality. State  is\talso
\npresumed to act fairly. See in this connection the  observa-
\ntions in State of Karnataka and Another v. M\/s. Hans  Corpo-
\nration; [1980] 4 S.C.C. 697 at 704 & 706 and K.P. Varghesev.
\nIncome\tTax Officer, Ernakulam and Another,  [1981]  4S.C.C.
\n173 at 179-180
\n526<\/span>
\nParagraphs  5 & 6). See also the observations of this  Court
\nin Kasturi Lal Lakshmi Reddv v. State of Jammu and Kashmir &
\nAnother,<\/a> [1980] 3 SCR 1338 at 1357.\n<\/p>\n
    In\tfact  the  respondent did not have a  house  in\t his
\npossession.  He purchase one before, but as it was  not\t va-
\ncant,  he  sold away ,,before the institution of  the  suit.
\nThere  was no restriction by the Act on sale and  alienation
\nof  property. At the relevant time the respondent  fulfilled
\nall  the  requirements to maintain an action  for  eviction.
\nShri Raja Ram Agarwala, counsel for the respondent,  submit-
\nted before us that we should take a creative, reasonable and
\nrational  approach  in interpreting the statute.  We  should
\nnot,  he  submitted,  put such an  interpretation  as  would
\nprevent sale or mortgage of the property by the owner and in
\nthis  case  he\twas justified in saying\t that  the  landlord
\nrespondent  did not have vacant possession. As the facts  of
\nthis  case warrant and in fact the respondent had sold\taway
\nthe  property 1 1\/2 years before his suit for his  need\t was
\ninstituted,  it\t cannot be said unless\tthere  was  definite
\nevidence  that it was done with the intention to defeat\t the
\nappellant’s  claim so as to be read that the landlord  occu-
\npied another residential house at the relevant time i.e.  at
\nthe time of institution of the suit.\n<\/p>\n
    The\t appellate authority accepted the respondent’s\tneed
\nand found him within the purview of the Act. The High  Court
\ndid  not interfere in revision, nor shall we  under  Article
\n136 of the Constitution.\n<\/p>\n
    The\t appeal,  therefore, fails and is  accordingly\tdis-
\nmissed. Interim orders are vacated. In the facts and circum-
\nstances of the case, however, the parties will pay and\tbear
\ntheir own costs.\n<\/p>\n
M.L.A.\t\t\t\t\t\t      Appeal\ndismissed.\n527<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Yudhishter vs Ashok Kumar on 11 December, 1986 Equivalent citations: 1987 AIR 558, 1987 SCR (1) 516 Author: S Mukharji Bench: Mukharji, Sabyasachi (J) PETITIONER: YUDHISHTER Vs. RESPONDENT: ASHOK KUMAR DATE OF JUDGMENT11\/12\/1986 BENCH: MUKHARJI, SABYASACHI (J) BENCH: MUKHARJI, SABYASACHI (J) SINGH, K.N. (J) CITATION: 1987 AIR 558 1987 SCR (1) […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-12498","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nYudhishter vs Ashok Kumar on 11 December, 1986 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/yudhishter-vs-ashok-kumar-on-11-december-1986\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Yudhishter vs Ashok Kumar on 11 December, 1986 - 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