Holding

The brother of a deceased tenant, who was residing with him and is the sole heir, becomes a tenant under the Act, so the premises are not deemed vacant.

Summary

Ganesh Trivedi bought a residential premises in Kanpur from landlord Jagdamba Prasad Awasthi. The premises had been let to Suraj Prasad, who died in 1985 leaving his brother Deo Narain as the sole heir and occupant. Vikas Shukla applied to the Rent Controller to have the premises declared "deemed vacant" on the ground that the tenant had expired; the Controller ordered vacancy. Deo Narain objected and the Allahabad High Court set aside the order, holding that tenancy passed to Deo Narain as an heir and that he became a "tenant" within the meaning of the Act. The purchaser‑landlord appealed, arguing that a brother is not a member of the tenant’s family and therefore the premises should be deemed vacant. The Supreme Court upheld the High Court, observing that tenancy is a heritable right, that Deo Narain was residing with the deceased tenant and was the only heir, and that the sale deed expressly acknowledged him as tenant, binding the purchaser. Consequently, the appeal was dismissed.

Issues considered

Whether the death of a tenant creates a deemed vacancy when the premises are occupied by the tenant's brother, who is not defined as a member of the tenant's family under the Act.
Whether the definition of "tenant" in Section 3(a) of the UP Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, allows the brother to inherit tenancy rights.
Whether recitals in the sale deed acknowledging the brother as tenant bind the subsequent purchaser‑landlord.

Legislation cited

U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972s. 12(1)(b), s. 3(a)

Subjects

tenancydeemed vacancyfamily definitionheritable rightrent controlsale deedU.P. Urban Buildings Act

Judgment

y

GANESH TRIVEDI A
v.
SUNDAR DEVI AND ORS.

JANUARY 11, 2002

[R.C. LAHOTI AND BRIJESH KUMAR, JJ.] B

•
UP. Urban Buildings (Regulation of Letting, Rent and Eviction) Act,
1972 :

Ss. 3(a) and 12(J)(b)- 'Tenant '-Deemed vacancy '-Tenant in C
residential premises-Brother and sole heir of tenant residing with him till
his death and thereafter-Application by a stranger filed before Rent
Controller for allotment of the premises declaring it to be deemed vacant
since tenant of premises had expired-Brother of original tenant filing
objection and on its rejection filing writ petition before High Court-Writ D
petition allowed-Appeal by purchaser-landlord-Held, tenancy is a heritable
right and the only limitation imposed by definition of 'tenant' given in the
Act is that in case of residential building such of the heirs of the tenant as
did not normally reside with him in the building at the time of his death
would be excluded from inheriting tenancy rights-On death of original
tenant tenancy rights devolved on his brother, he being the only heir-He E
too became 'tenant' within the meaning of s.3(a)-Besides, the sale deed
executed by former landlord contained recitals that former landlord
acknowledged the brother of original tenant as tenant in the premises-
Therefore his status as tenant cannot be doubted or disputed by sub-sequent
purchaser-landlord. p
Words and Phrases :

Word 'tenant' occurring in s.3(a) of UP. Buildings (Regulation of
Letting, Rent and Eviction) Act, 1972-Meaning of
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. I 97-198 of G
2002.

From the Judgment and Order dated 2.8.2000 & 29.8.2000 of the Allahabad
High Court in C.M.W.P. No. 37152/98 and C.M.R.A. No. 68401 of2000.

A.K. Srivastava, A.N. Sinha and Rakesh K. Sharma for the Appellant. H
189
190 SUPREME COURT REPORTS [2002] l S.C.R.

A Giridhar G. Upadhyay, Syed Ali Ahmad, Syed Tannweer Ahmed, A. Rab,
Vikas Bansal and R.D. Upadhyay for the Respondents.

The following Order of the Court was delivered :

Leave granted.
B
The controversy in this case centres around Section 12(l)(b) of U.P.
Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972,
hereinafter 'the Act', for short.

Ganesh Trivedi, the appellant has purchased the suit premises situated '
C in Deo Nagar, Kanpur city in the State of U.P. under registered deed of sale
dated 18.12.1996 from Jagdamba Prasad Awasthi who was till then the owner-
landlord of the suit premises. The premises which are residential in nature
were let out by Ja:gdamba Prasad to one Suraj Prasad for the purpose of
residence. Deo Narain and Suraj Prasad were real brothers. Suraj Prasad died
D some time in the year 1985. During his lifetime Deo Narain had come to stay
with him and till his death was living in the suit premises along with his
brother. Suraj Prasad died issueless survived by Deo Narain as the only here
of the fonner. He remained in occupation of the suit premises after the death
of his brother. During the pendency of the proceedings before the High Court
Deo Narain expired and respondent nos. 1 to 3 being respectively his widow,
E son and daughter have been brought on record by substitution in place of
Deo Narain. These are undisputed facts.

In April 1998, Vikas Shukla, the respondent no. 4 filed an application
before the Rent Controller and Eviction Officer, Kanpur for allotment of the
suit premises declaring them to be 'deemed vacant' on the ground that the
F tenant of the premises had expired. The Rent Control Inspector inspected the
premises and submitted a report that the tenant who was living in the suit
premises for last forty years, had expired and presently the premises were in
possession of his brother. Deo Narain filed his objections in the proceedings.
However, vide order dated 31.10.1998 the Rent Controller and Eviction Officer
G ('RCEO', for short) declared the suit premises to be vacant. Deo Narain filed
a writ petition in the High Court of Allahabad putting in issue the order of
RCEO. On 2.8.2000 the High Court has allowed the writ petition and set aside
the order of RCEO. Though a review of the order of the High Court was
sought for by the landlord but the same was rejected.

H The purchaser-landlord has filed these appeals by special leave.
GANESH TRIVEDI v. SUNDAR DEVI 191
Shri Ashok Shrivastava, the learned senior counsel for the appellant A
has submitted that under the Act a brother is not a member of the family of
the tenant and therefore on the death of the tenant the premises will be
deemed to be vacant. Such deemed vacancy had occurred during the lifetime
of late Suraj Prasad itself inasmuch as he had allowed his brother to enter into
occupation of the suit premises and therefore the factum of late Suraj Prasad B
being survived by his brother Deo Narain alone at the time of the fonner's
death would not make any difference. He submitted that the High Court ought
not to have set aside the order of RCEO. Shri R.D. Upadhyay, the learned
counsel for the respondents in occupation of the premises has supported the
;
impugned order of the High Court.
c
Sub-section (I) of Section 12 reads as under:

12. Deemed vacancy of building in certain cases.-( I) A landlord or
tenant of a building shall be deemed to have ceased to occupy the building
or a part thereof if-
D
(a) he has substantially removed his effects therefrom, or
(b) he has allowed it to be occupied by any person who is not a
member of is 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, E
elsewhere.
xxx xxx xxx xxx
'Tenant' and 'family' have been defined in Section 3 of the Act as
under: F
(a) "tenant', in relation to a building, means a person by whom its rent
is payable, and on the tenant's death-

(I) In the case of a residential building, such only of his heirs as
normally resided with him in the building at the time of his death; G
(2) In the case of a non-residential building, his heirs;

Explanation-An occupant of a room in a hotel or a lodging house
shall not be deemed to be a tenant.

xxx xxx xxx xxx H
L

192 SUPREME COURT REPORTS [2002) I S.C.R.

A (g) "family", in relation to a landlord or tenant of a building, means,
.,...
his or her-

(i) spouse,
(ii) male lineal descendants,
B (iii) such parents, grandparents and any unmarried or widowed or
divorced or judicially separated daughter or daughter of a 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; ,
C It is not disputed at the Bar that tenancy is a heritable right and the only
limitation imposed, by the definition of 'tenant' given in the Act as abovesaid
is that in the case of residential building such of the heirs of the tenant as
did not normally reside with him in the building at the time of his death would
be excluded from inheriting the tenancy rights.
D The brother of a tenant is not included in the definition of 'family'.
However, the present one is not a case where the tenant Suraj Prasad had
during his lifetime taken up residence elsewhere and/or allowed the suit
premises to be occupied by his brother. Deo Narain, being the real brother
of late Suraj Prasad, the tenant, had come to stay with his brother and was
E residing along with him as such, even at the time of death of Suraj Prasad.
It will not therefore be correcl to say that applicability of clause (b) of sub-
section (I) of Section 12 of the Act was attracted to the suit premises during
the lifetime of Su raj Prasad and a deemed vacancy had occurred. On the death
of Suraj Prasad tenancy rights devolved on Deo Narain, he being the only
F heir. He too became 'tenant' within the meaning of clause (a) of Section 3.
The decision of the High Court cannot, therefore, be faulted.

There is yet another reason why no interference with the impugned
order of the High Court is called for. Shri Upadhyay, the learned counsel for
respondent nos. I to 3 invited our attention to the pleadings and pointed out
G that admittedly the sale deed executed by Jagdamba Prasad Awasthi in favour
of Ganesh Trivedi, the appellant, contains recitals to the effect that the former
landlord-owner was well aware of Deo Narain occupying the suit premises
after the death of Suraj Prasad, that he was acknowledged by the landlord as
tenant in the premises, and that rent was also paid by Deo Narain to the
landlord under receipts issued by landlord though Deo Narain had fallen into
. H some arrears of rent at the time of sale of the suit premises in favour of the
y
GANESH TRIVEDI v. SUNDAR DEVI 193
appellant. Such admissions made by Jagadamba Prasad Awasthi are binding A
on Ganesh Trivedi, the appellant, inasmuch as the same are contained in the
deed by which title has been derived by the appellant and thereunder the
appellant has stepped into shoes of the previous owner-landlord. Deo Narain's
status as tenant in occupation of the suit premises, cannot, therefore, be
doubted or disputed by the appellant.
B
The proceedings out of which these appeals arise were not initiated by
the landlord; they were initiated by a third person who was interested in the
allotment of the suit premises in the event of their being declared 'deemed
vacant' and after an adverse decision by the High Court he has chosen not
to pursue his claim. He has not filed any petition seeking leave to appeal C
against the decision of the High Court.

For the foregoing reasons, the appeals are held liable to be dismissed
and are dismissed accordingly. No order as to the costs.

RP. Appeals dismissed.