# Sardar Garneet Singh & Anr v. Smt. Raj Katyal

- **Citation:** (2021) 10 ILRA 561
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-29
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sardar-garneet-singh-anr-v-smt-raj-katyal-46375
- **Pages:** 16

## Headnote

Order declaring vacancy and rejecting a
review of vacancy order and granting
release of demised premises-challengedshops in dispute was let out to one Sundar
Singh-who died issue less and unmarriedthereupon
application
was
made
for
declaration of deemed vacancy-objection
by
petitioners
claiming
they
carried
business jointly with the deceased-no will
executed in their favour-tenancy cannot
be bequeathed to them-further claim of
application being barred by the limitationno conclusive evidence to indicate at
what point of time Petitioners came to
occupy the shops-impugned orders are
flawless.

Held, This Court must also remark that the RC
& EO has very validly taken note of the fact that
there is not a solitary rent receipt placed on
record to show that the petitioners ever paid
rent for the shops in dispute to the respondentlandlady. This Court also finds that there is no
material to show that at any stage in point of
time, the petitioners paid rent to whoever was
the landlord for the time being. Until his death,
it was Sardar Sundar Singh alone who was the
lawful and recorded tenant of the shops in
dispute. His heirs entitled to inherit having not
come forward to claim it, the finding of a
vacancy must logically follow. If the petitioners'
occupation at some point of time after Sardar
Sundar Singh fell ill is to be taken note of, where
they claim to carrying of business separately in
the two shops, the finding of deemed vacancy is
inescapable, as the petitioners are not members
of Sardar Sundar Singh's family.(para 35).
562 INDIAN LAW REPORTS ALLAHABAD SERIES
W.P. dismissed. (E-9)

List of Cases cited:

## Text

_Characters 0–39,680 of 54,937. This is a partial read: ask again with offset=39680 for what follows._

10 All. Sardar Garneet Singh & Anr. Vs. Smt. Raj Katyal
561
may be said to be "Goonda", if he is
habitual in committing crime. An accused
in a criminal case arising out of
matrimonial dispute does not indicate
that such a person, is a habitual
offender. Thus the notices issued by
respondent no. 2 to the petitioners were
wholly without jurisdiction and a glaring
example of abuse of power. It is only after
we passed the orders dated 17.8.2021
and 18.8.2021, the respondent no. 2
withdrawn the impugned notices by
orders dated 21.08.2021 to escape from
the consequences of his illegal and
unauthorized action.

22. However the question still
remains as to whether the respondents
may escape from their responsibilities
for acting arbitrarily, illegally and
unauthorisely ? In our view they cannot
escape from the consequences. The officer
who unauthorisely, illegally and without
jurisdiction issued the impugned show
cause
notices
caused
harassment,
compelling the petitioners to file the
present writ petitions incurring expenses.

23. Therefore, considering the facts
and circumstances of the case, in its
entirety, we dispose of all the above noted
three writ petitions with costs of Rs.
10,000/- (ten thousand) awarded to each
petitioners. It is made clear that each
petitioner shall get cost of Rs. 10,000/- (ten
thousand), which shall be paid by the
respondents within six weeks from today.
----------
(2021)10ILR A561
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.09.2021

BEFORE

THE HON'BLE J.J. MUNIR, J.
Matters Under Article - 227 No. 3268 of
2020 (Civil)

Sardar Garneet Singh & Anr. ...Petitioners
Versus
Smt. Raj Katyal ...Respondent

Counsel for the Petitioners:
Sri Mohd. Aqueel Khan, Sri Chandra Bhan
Gupta

Counsel for the Respondent:
Sri C.M. Rai

Order declaring vacancy and rejecting a
review of vacancy order and granting
release of demised premises-challengedshops in dispute was let out to one Sundar
Singh-who died issue less and unmarriedthereupon
application
was
made
for
declaration of deemed vacancy-objection
by
petitioners
claiming
they
carried
business jointly with the deceased-no will
executed in their favour-tenancy cannot
be bequeathed to them-further claim of
application being barred by the limitationno conclusive evidence to indicate at
what point of time Petitioners came to
occupy the shops-impugned orders are
flawless.

Held, This Court must also remark that the RC
& EO has very validly taken note of the fact that
there is not a solitary rent receipt placed on
record to show that the petitioners ever paid
rent for the shops in dispute to the respondentlandlady. This Court also finds that there is no
material to show that at any stage in point of
time, the petitioners paid rent to whoever was
the landlord for the time being. Until his death,
it was Sardar Sundar Singh alone who was the
lawful and recorded tenant of the shops in
dispute. His heirs entitled to inherit having not
come forward to claim it, the finding of a
vacancy must logically follow. If the petitioners'
occupation at some point of time after Sardar
Sundar Singh fell ill is to be taken note of, where
they claim to carrying of business separately in
the two shops, the finding of deemed vacancy is
inescapable, as the petitioners are not members
of Sardar Sundar Singh's family.(para 35).
562 INDIAN LAW REPORTS ALLAHABAD SERIES
W.P. dismissed. (E-9)

List of Cases cited:

1. Hazi Naseem Ahmad Vs R.C.E.O./A.D.M.
(C.S.), Varanasi & ors.,2009 4 AWC 4174

2. Durga Prasad Vs Narayan Ramchandaani
(Dead) through Legal Representatives, (2017) 5
SCC 69

3. Om Prakash & ors. Vs The Prescribed
Authority & ors., 1984 (2) ARC 634

4. Man Singh Vs Machau Lal & ors., 1989 (1)
ARC 364

5.
Ishwar
Chand
Vs
Additional
District
Magistrate (Civil Supply)/R.C.E.O., Kanpur Nagar
& anr., 2000 (1) ARC 386

6. Ratan Lal Vs The Additional District Judge,
Bulandshahr & ors., 1979 AWC 404 All

(Delivered by Hon'ble J.J. Munir, J.)

This petition under Article 227 of the
Constitution is directed against an order
declaring
vacancy
dated
30.10.2018
followed by an order, rejecting a review of
the vacancy order and granting release of
the demised premises, passed under Section
15(1) of the Uttar Pradesh Urban Buildings
(Regulation of Letting, Rent and Eviction)
Act, 1972 (U.P. Act No. 13 of 1972)1. Also
impugned is a revisional affirmation of
both these orders by the Additional District
Judge, Court No. 13, Kanpur Nagar vide
judgment and order dated 11.09.2020
passed in Rent Revision No. 36 of 2018.

2. The issue in this petition is about
two adjoining shops located in a house
bearing Premises No. 122/229, Sarojini
Nagar, Kanpur Nagar. The said shops are
hereinafter referred to as the 'shops in
dispute'. The two shops were let out to one
Sundar Singh, who died issue-less. He was
unmarried. The owner and the landlady of
the demised premises, Smt. Raj Katyal
made an application dated 20.12.2017
before the Rent Control and Eviction
Officer,
Kanpur
Nagar,
seeking
a
declaration of deemed vacancy of the shops
in dispute on ground that the tenant Sardar
Sundar Singh had died on 21.10.2017 and
after his death, his nephews, Gurmeet
Singh and Ranjeet Singh had illegally
occupied the said shops. It was stated that
Gurmeet Singh and Ranjeet Singh were not
members of the deceased-tenant's family. It
was also said that Sardar Sundar Singh was
unmarried, and, therefore, had neither left
behind a wife or children. The occupation
of the shops in dispute by Gurmeet Singh
and Ranjeet Singh was claimed to be
unlawful, giving rise to a deemed vacancy.

3. It was also asserted that the
landlady required the shops in dispute bona
fide for her need and that of her family. It
was also said that at the appropriate stage,
the landlady would make an application
seeking release of the shops in dispute
under Section 16(1)(b) of the Act of 1972.
The Rent Control and Eviction Officer2
directed an inquiry to be made in the matter
of vacancy by the Rent Control Inspector.
The Rent Control Inspector submitted a
report dated 25.01.2018 to the RC & EO.
Gurmeet Singh and Ranjeet Singh, who are
the petitioners here and faced prospects of
the shops in dispute in their possession
being declared vacant, filed objection dated
30.04.2018 in the vacancy matter. It was in
substance said in the objection that the
shops in dispute were rented out to the
petitioners' uncle in the year 1967 by the
then landlord. The late Sundar Singh,
during his lifetime, had admitted the
petitioners, his nephews, as partners in his
business. In one of the shops, Ranjeet
Singh was carrying on trade in watches
10 All. Sardar Garneet Singh & Anr. Vs. Smt. Raj Katyal
563
along with his uncle whereas in the other,
Gurmeet Singh was carrying on the trade of
dealing in scrap, also along with his uncle.
Thus,
both
the
petitioners
were
in
occupation of the two shops as partners
with the deceased and lawful tenant
thereof, the late Sundar Singh.

4. It was also asserted in the
objections that the landlords have never
raised any objection to the petitioners
occupying and doing business in the shops
in dispute over a period as long as 45 years.
It was also asserted that after 20.12.2017,
when Sardar Sundar Singh suffered from
indifferent health, the petitioners had paid
rent to the landlady, Smt. Katyal in the sum
of Rs.25,000/-, though no receipt for the
said rent was issued under the pretext of the
plaintiff's receipt book not being by then
available. It was also the petitioners' case
set out in the objection that both of them
had their electricity meters installed on the
shop that each was doing business in
showing the length and the settled character
of their possession as the lawful occupants.

5. Parties exchanged pleadings and
evidence in the vacancy matter and the RC
& EO vide order dated 30.10.2018 passed
in Case No. 2 of 2018, under Section 15(1)
of the Act of 1972, declared the shops in
dispute
to
be
vacant.
He
ordered
publication of the vacancy in a Hindi and
English Daily, directing the matter to come
up on 12.11.2018 for consideration of the
release/ allotment matter. At this stage, the
landlady made an application under Section
16(1)(b) of the Act of 1972 with a prayer to
release the shops in dispute in favour of her
daughter, Km. Charu Katyal.

6. Pending the release application, the
petitioners moved an application for review
before the RC & EO, seeking a review of
the vacancy order dated 30.10.2018. The
RC & EO rejected the review by means of
his order dated 04.12.2018 and directed
release of the shops in dispute in favour of
the landlady. The petitioners challenged
both the orders dated 30.10.2018 and
04.12.2018, last mentioned, by carrying a
revision under Section 18 of the Act of
1972 to the District Judge, Kanpur Nagar.
The revision aforesaid was registered on
the file of the learned District Judge as
Revision no.36 of 2018. The revision, on
assignment, came up before the Additional
District Judge, Court no.13, Kanpur Nagar,
who proceeded to dismiss the same by his
judgment and order dated 11.09.2020.

7. Aggrieved, Gurmeet Singh and
Ranjeet Singh have instituted the present
petition
under
Article
227
of
the
Constitution.

8. Pending this petition, Gurmeet
Singh died and his heirs and legal
representatives have been substituted as
petitioner nos. 1/1, 1/2 and 1/3.

9. Heard Mr. Mohd. Aqueel Khan,
learned Counsel for the petitioners and Mr.
C.M. Rai, learned Counsel appearing on
behalf of the sole respondent-landlord. He
waived his right to file a counter affidavit.

10. It appears from a wholesome
detail of the case that the petitioners
pleaded before the two Courts below that
Sardar Sundar Singh and the petitioners'
father, Sardar Kesar Singh, who were
brothers, were joint tenants of the shops in
dispute. Since Sardar Sundar Singh was the
elder of the two brothers, rent receipts were
issued in his name, but both brothers
carried on business jointly in the shops in
dispute.
Sardar
Sundar
Singh
was
unmarried
and
had
no
issues.
The
564 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioners' father and the petitioners looked
after Sundar Singh, taking care of his
needs, including lodging, board, facilitating
medical treatment etc. Sardar Sundar Singh
died on 21.10.2017. It was after that event
that the respondent launched the present
proceedings seeking to declare a vacancy
and asking for release of the shops in
dispute. It was said that the Rent Control
Inspector served notice under Rule 8(2) of
the
Uttar
Pradesh
Urban
Buildings
(Regulation of Letting, Rent and Eviction)
Rules, 19723. Both parties, including the
petitioners made their statements before the
Rent Control Inspector. The Inspector
found the petitioners to be in possession of
the shops in dispute. The Inspector was
informed that the shops in dispute were
earlier owned by one Jagat Ram Thakur,
who had rented them out to Sardar Sundar
Singh. The petitioners along with Sardar
Sundar Singh carried on business jointly in
the shops in dispute.

11. There are assertions about the
petitioners being paid compensation in the
year 1986, on account of their property
housed in the shops in dispute along with
Sardar Sundar Singh being pillaged, during
the 1984 anti-Sikh riots. It is on the basis of
collateral evidence, like the compensation
that the petitioners received from the
Government for the loss sustained during
the 1984 riots, the electricity meters
installed in their name in the shops in
dispute, that the petitioners seek to show
that they were into some kind of a
partnership business with Sardar Sundar
Singh, who was nominally or formally the
tenant of the shop along with the petitioners
and their father, being the family elder.

12. In substance, it is the endeavour
of the petitioners to establish that they,
along with Sardar Sundar Singh, were
carrying on business in partnership, where
their father too was a partner ever since
inception of the tenancy. They urged that
the shops in dispute were the business
premises
of
a
partnership
enterprise
comprising Sardar Sundar Singh, the
petitioners' father Sardar Kesar Singh and
the petitioners. This case is urged in order
to place the shops in dispute beyond the
mischief of the provisions of Section 12(2)
of the Act of 1972. Section 12(2) reads :

"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 part
thereof if-

(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 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.

(2) In the case of a nonresidential
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
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
building in the same city, municipality,
notified area or town area in which the
10 All. Sardar Garneet Singh & Anr. Vs. Smt. Raj Katyal
565
building under tenancy is situate, 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
commencement 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.

(4) Any building or part which a
landlord or tenant has ceased to occupy
within the meaning of sub-section (1), or
sub-section (2) , or sub-section (3), shall,
for the purposes of this Chapter, be deemed
to be vacant."

13. The petitioners want this Court to
accept that their family comprising their
father, Sardar Kesar Singh, Sardar Sundar
Singh and the two petitioners, were tenants
of the shops in dispute jointly from the
inception of the tenancy. It is not that
Sardar Sundar Singh alone was the tenant
of the shops in dispute but also had the
petitioners as partners in his business,
housed in the two shops. It is also urged on
behalf of the petitioners that they being
tenants in occupation of the shops in
dispute, with the consent of the landlady
much before the commencement of the
Uttar Pradesh Urban Buildings (Regulation
of
Letting,
Rent
and
Eviction)
(Amendment) Act, 1976 w.e.f. 05.07.1976,
against whom no suit or proceedings for
eviction were pending before any Court or
Authority
on
the
date
of
such
commencement, their tenancy would stand
regularized under Section 14 of the Act of
1972, even if it is otherwise in breach of
Section 12(2). It is also urged that
proceedings for declaration of vacancy are
time barred as the respondent was aware,
since 1998 about the business being carried
on by the petitioners in the shops in
dispute,
whereas
the
application
for
declaration of vacancy was moved much
after 12 years, that is to say, on 12.12.2017.
In support of this rule of limitation, vis-avis the right of the landlady to initiate
proceedings for declaration of vacancy,
reliance has been placed on the decision of
this Court in Hazi Naseem Ahmad v.
R.C.E.O./A.D.M. (C.S.), Varanasi &
Others4. The said decision lays down a
rule of limitation barring proceedings for
declaration of vacancy being initiated after
lapse of a period of 12 years from the date
of accrual of the cause of action. In Hazi
Naseem Ahmad (supra), it has been held:

"6. On a plain reading of the
relevant provision of the Act, it does appear
that no period of limitation for declaration
of a vacancy actually or deemed has been
prescribed under the Act. The question,
then, arises if no period of limitation has
been
prescribed,
an
application
for
declaration of vacancy can be filed within a
reasonable period. It has been held in
Abdul
Khaliq
v.
Additional
District
Magistrate, Varanasi, 2007 (2) ARC 629,
that with respect to the proceedings under
Section 12 of the Act, a period of 12 years
should be taken as reasonable time for
initiating the proceedings under the Statute
from the date of cause of action arises. In
this case, the Court has relied upon a
decision of the Apex Court in the case of
Mansha Ram v. S. P. Pathak and others,
AIR 1983 SC 1239. In Anil Kumar Dixit v.
Smt. Maya Tripathi and another, 2006 (1)
ARC 377 : 2006 (1) AWC 649, the above
view has been reiterated.

7. The aforesaid pronouncements
have been constantly followed by this
566 INDIAN LAW REPORTS ALLAHABAD SERIES
Court as is apparent from Sarla Devi v.
Shailesh Kumar and Ors. 2008 (3) ARC
632 and Jamuna Devi v. District Judge,
Kanpur Nagar and others, 2009 (1) ARC
266. There is, thus, no reason for me to
take a contrary view.

8. In Shambhu alias Shambhu
Dayal (supra) it has been held by this Court
that a conjoint reading of Sections 11 and
13 of the U.P. Act No. 13 of 1972 prohibits
the letting without order of allotment and it
can safely be concluded that the Act
restrains the landlord for giving the
accommodation on rent without a valid
order or allotment and none can occupy
without issuance of valid allotment order in
his favour.

9. It appears that the attention of
the Court was not drawn to the earlier
decision of this Court in the case of Anil
Kumar Dixit v. Smt. Maya Tripathi (supra).
Nor the attention of the Court was invited
towards the judgment of the Apex Court in
the case of Mansha Ram v. S. P. Pathak
(supra). Therefore, the decision laid down
therein should be read and understood in
the context of the fact of that case."

14. The learned Counsel for the
respondent, on the other hand, has opposed
the submissions made by the petitioners
and said that given the provisions of
Sections 12(1) and 12(2) of the Act of
1972, the petitioners, who are not members
of the tenant's family, cannot be inducted as
partners or new partners in any business,
nor can the tenant permit occupation of a
tenanted premises by a person, who is not a
member of his family. It is urged that the
brother's son does not fall within the
definition of family in relation to a tenant
of a building as defined under Section 3(g)
of the Act of 1972. Therefore, occupation
by the petitioners clearly attracts the fiction
under Sections 12(1) and 12(2) of the Act
of 1972 leading to a deemed vacancy in the
shops in dispute. It is also argued that there
is no evidence led on behalf of the
petitioners to show that they were carrying
on business in the shops in dispute as a
partnership from inception of the tenancy,
along with Sardar Sundar Singh.

15.

I
have
considered
rival
submissions advanced by the learned
Counsel for parties and perused the record.

16. The petitioners' case that the two
along with their father and the tenant, late
Sardar Sundar Singh, were all tenants
together in the shops in dispute, where they
were doing business as partners, is difficult
to accept. Admittedly, the tenancy stood in
the name of late Sardar Sundar Singh
alone, about which the petitioners say that
the tenancy was recorded formally in his
name as he was the senior most member of
the family. They want this Court to accept
that Sardar Sundar Singh was a karta of
sorts of a joint family, where all the four
persons were carrying on business in
partnership; and, this partnership of ''four'
was the tenant in the shops in dispute.
There is no rent deed or rent note or rent
receipt in the name of the petitioners, their
father and Sardar Sundar Singh. There is no
document either to show that there was any
partnership firm, comprising these men in
existence,
let
alone
being
that
the
partnership firm was inducted as a tenant in
the year 1967.

17. To the contrary, it is accepted that
it was Sardar Sundar Singh who contracted
a tenancy of the shops in dispute in the year
1967 with the then owner/ landlord. There
is also no municipal assessment record that
may show the tenancy to stand jointly in
10 All. Sardar Garneet Singh & Anr. Vs. Smt. Raj Katyal
567
the name of Sardar Sundar Singh, his
brother Kesar Singh and the petitioners.
There is also no case that there was an
order of allotment issued by the competent
Authority way back in the year 1967,
allotting the shops in dispute to Sardar
Sundar Singh, his brother Kesar Singh and
the petitioners together, as joint tenants or
as a partnership for the purpose of doing
business. To the contrary, the tenor of the
evidence shows that the shops in dispute
were in the exclusive tenancy of Sardar
Sundar Singh for the purpose of carrying
on his business, that he had divided into
two departments, one relating to some kind
of a trade in watches and the other in scrap.

18. Evidence is also eloquent about
the fact that Sardar Sundar Singh was an
unmarried and issue-less man. The two
petitioners being his brother's sons, helped
him with his business. The petitioners
appear to have grown dominant in that
business with an aging Sundar Singh. They
later on divided the business in the two
shops between them with Sundar Singh
occupying the back seat until his demise on
21.10.2017. What does not appear to be in
doubt is the fact that till the end of his life,
it was Sardar Sundar Singh, who was the
lawful tenant of the shops in dispute.
Tenancy, even in case of one that is
regulated or governed by Statute, is a
matter of contract between the landlord and
the tenant. Unless there be evidence to
show that there is an underlying contract
between the tenant and the landlord that
constitutes a demise of the tenanted
premises, it is difficult to infer tenancy
from mere incidents of occupation of a
premises by one who claims that status.

19. The evidence offered by the
petitioners about receiving compensation in the
year 1986 for the 1984 Anti-Sikh Riots on
ground of their business and property being
damaged, that was placed in the shops in
dispute, cannot lead to an inference of tenancy
of any kind in favour of the petitioners. All that
would show is that the petitioners were lending
a helping hand to Sardar Sundar Singh in his
business, who was their father's brother. One
inference could be that taking advantage of this
fortuitous
circumstance,
they
claimed
compensation for damages to property, that
were lawfully the effects of their uncle's
business. The other would lead to a result
hardly favourable to the petitioners, and that
would be that the petitioners indeed entered into
a partnership with Sardar Sundar Singh, when
their property was destroyed during Anti-Sikh
Riots, for which they received compensation
from the Government. If that be so, it brooks
little doubt that the petitioners not being
members of Sardar Sundar Singh's family as
defined under Section 3(g) of the Act of 1972,
the act of Sardar Sundar Singh in permitting the
petitioners, constitutes admission of persons as
partners or new partners, who were not
members of Sundar Singh's family. It would
clearly attract the fiction under Section 12(2) of
the Act of 1972, leading to a deemed vacancy.
On the evidence that has figured on record, if it
is held that Sundar Singh did not admit the
petitioners as partners to his business, but with
aging years, allowed them to occupy the shops
in dispute to carry on their own business, the
tenant would still be deemed to have ceased to
occupy the shops in dispute under Section
12(1)(b) of the Act of 1972. Section 3(g) of the
Act of 1972 enlists, who would be members of
the tenant's family for the purposes of the Act. It
reads:

"3.
Definitions.--In
this
Act,
unless the context otherwise requires--

(g) "family", in relation to a
landlord or tenant of a building, means, his
or her--
568 INDIAN LAW REPORTS ALLAHABAD SERIES

(i) spouse,

(ii) male lineal descendants,

(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;"

20. Clearly, the petitioners, who are
collaterals of Sardar Sundar Singh and not
his lineal descendants, do not qualify as
members of his family. Whichever way, the
petitioners' entry in the shops in dispute is
viewed during the lifetime of Sardar
Sundar Singh, the inference of a deemed
vacancy is inescapable.

21. It is alternatively argued that the
petitioners being brother's sons of Sundar
Singh, who was an issue-less man, were
entitled to inherit his tenancy, upon his
demise as they are his heirs under the law of
succession applicable to parties. In this
connection, it is emphasized that for the
purpose of inheriting the tenancy, Section
3(g) of the Act of 1972 is not at all relevant.
The definition of ''family' there with reference
to the provisions of Sections 12(1) and 12(2)
would apply, if the petitioners' rights are to be
determined as tenants, entering the shops in
dispute during the lifetime of Sundar Singh.
If they are to be regarded as mere helping
hands during Sundar Singh's lifetime, but his
heirs entitled to inherit the tenancy upon his
demise, Section 3(g) is not at all relevant. In
that case, their rights would be governed by
Section 3(a)(2) of the Act of 1972. Section
3(a) reads:

"3.
Definitions.--In
this
Act,
unless the context otherwise requires--

(a) "tenant", in relation to a
building, means a person by whom its rent
is payable, and on the tenant's death--

(1) 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;

(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;"

22. In support of their contention,
reliance has been placed by Mr. Mohd.
Aqueel Khan on behalf of the petitioners on
the decision of the Supreme Court in
Durga
Prasad
v.
Narayan
Ramchandaani (Dead) through Legal
Representatives5 where it has been held:

"9. A careful analysis of the
above provisions indicates that Section 3(a)
uses the word "heir". Definition in Section
3(a) deals with the contingency when a
tenant dies. It is significant to note that the
words "family member" are absent in
Section 3(a). "Family member" are defined
under Section 3(g) of U.P. Act 13 of 1972
and is also referred to in Section 12 of U.P.
Act 13 of 1972. The word "heir" in Section
3(a) is used in relation to a "tenant" who
has to succeed as "tenant on the tenant's
death"; while "family" is used in Section 12
which deals with a situation of an existing
tenant. The definition of "family" as
occurring in Section 3(g) may not be
relevant for the purposes of determining the
10 All. Sardar Garneet Singh & Anr. Vs. Smt. Raj Katyal
569
question as to who would become tenant on
the death of the original tenant, since
Section 3(a) uses the word "heir".

10. In the present case, we are
dealing with the case as to who would
become "tenant" on the death of Lalita.
Hence, the definition of "family" is not
relevant for the purposes of determining as
to who would become tenant on the death
of tenant Lalita. The only question falling
for consideration is whether the appellant
brother of the tenant Lalita is an "heir"
under Section 3(a) of U.P. Act 13 of 1972.
The word "heir" is not defined in the Act.
"Heir" is a person who inherits or may
inherit by law. Section 3(1)(f) of the Hindu
Succession Act defines "heir" as--

"3. (1)(f) "heir" means any
person, male or female, who is entitled to
succeed to the property of an intestate
under this Act;"

The word "heir" has to be given
the same meaning as would be applicable
to the general law of succession. In the
present case, as pointed out by the High
Court, the deceased tenant Lalita being a
Hindu female, the devolution of tenancy
will be determined under Section 15 of the
Hindu Succession Act."

23. The aforesaid guidance of their
Lordships in Durga Prasad shows without
doubt that in the event the tenancy is
regarded as one that was exclusively held
by Sundar Singh until his death, Section
3(g) of the Act of 1972 would not be
relevant to decide, who would inherit the
tenancy. That would be governed by
Section 3(a) of the Act of 1972. A perusal
of Section 3(a) (2) shows that in case of of
a non-residential building, it would be the
heirs of the tenant. The decision in Durga
Prasad clearly holds that the word 'heir'
under Section 3(a) of the Act of 1972 has to
be given the same meaning as would be
applicable under the general law of
succession. Admittedly, the parties being
Sikhs, their right to succession would be
governed by the Hindu Succession Act,
19566. Section 8 of the Act of 1956
provides that the property of a male Hindu
dying intestate shall firstly devolve upon
his heirs, specified in Class I of the
Schedule and if there be none in Class I,
upon the heirs, specified in Class II of the
Schedule. Section 9 of the Act of 1956
provides for the order of succession
amongst heirs in the Schedule. It lays down
the rule that various heirs in Class II shall
take in the manner that an heir placed in the
higher entry, shall be preferred to those in
the lower entry. Now, Sundar Singh died
intestate leaving behind his brothers, Sardar
Kesar Singh and Sardar Balbir Singh. The
fact that these two brothers of Sundar Singh
were alive at the time of his death, had
been recorded for a finding of fact by the
learned Additional District Judge in the
order impugned. There is no issue about it
for a fact. Brothers and brother's sons, both
qualify as Class II heirs under the Schedule
appended to the Act of 1956. Brothers of a
deceased Hindu male instate are placed in
Entry II, whereas brother's son is placed in
Entry IV. Clearly, therefore, upon death of
Sardar Sundar Singh, if any one would
have inherited his tenancy, it would be his
brothers, Kesar Singh and Balbir Singh.
Though, there is a case to begin with that
Kesar Singh, Sundar Singh and the
petitioners, together had entered the shop in
dispute as joint tenants doing business in
partnership, it has already been held that
there is absolutely no evidence about it.
There is no case that Sardar Kesar Singh or
for that matter Sardar Balbir Singh, ever
laid a claim to succeed to the tenancy of the
570 INDIAN LAW REPORTS ALLAHABAD SERIES
late Sundar Singh. It is not the case of the
petitioners either that they claim through
Sardar Kesar Singh in any way. The
unexceptionable inference is, therefore, that
during lifetime of Sardar Kesar Singh and
Sardar Sundar Singh, the petitioners could
not have succeeded to the tenancy of Sardar
Sundar Singh.

24. It was urged on behalf of the
petitioners that Sardar Sundar Singh and
Sardar Balbir Singh, being Class II heirs in
Entry II of the Schedule, if they did not claim
rights to the tenancy they inherited from
Sardar Sundar Singh, it would pass to the
next available Class II heirs, that is to say, the
petitioners, who figure in Entry IV. This
submission is not tenable. The correct
position of the law is that so long as the heir
entitled to inherit is alive, the heir lower
down in the order of inheritance cannot
inherit. There is no passing over of the heir
entitled in the order of priority under the
Schedule appended to the Act of 1956, as if it
were, if the heir immediately entitled on the
death of a Hindu intestate does not assert his
right. In this regard, reference may be made
to the proposition about a tenancy being
inherited by a person lower in order of
priority than the heir available and entitled to
inherit, that fell for decision of this Court in
Om Prakash & Others v. The Prescribed
Authority & Others7. In Om Prakash
(supra) it was held :

"12. In view of the clear and
specific meaning of the word "heir" what has
to be seen is whether the petitioners would
inherit the properties of Ganpat Ram
(assuming that he was the original tenant).
Succession to the property of a Hindu dying
intestate has been indicated in the Hindu
Succession Act, 1956. Section 8 of the said
Act provides that the property shall devolve
upon the heirs specified in Class I of the
Schedule and if there was no heir of Class I
then upon the heirs specified in Class II and
so on. A grandson in the life-time of his
father would not inherit the properties of the
grandfather dying intestate. Tenancy right is
immovable property. It is heritable as any.
other immovable property.

13. On the death of Ganpat Ram
(assuming that he was the original tenant), the
tenancy right would devolve upon his heir in
accordance with the provisions of the Hindu
Succession Act and consequently Chhotu
Ram alone, in his capacity as son and heir of
Ganpat Ram, would become the tenant of the
premises in question. The petitioners in their
capacity as grand children of Ganpat Ram
would not inherit the tenancy right in the
presence of their father, Chhotu Ram. In any
case since it was at no time pleaded that the
petitioners along with their father and grand
father constituted a joint Hindu family, it is
not required of me to look to the provisions
of Section 6 of the Hindu Succession Act
under which the interest of the deceased
devolves upon the surviving members of
coparcenary,
The
Prescribed
Authority,
therefore, does not appear to have committed
any error in rejecting the application of the
petitioners on the ground that they have not
inherited tenancy rights and that they were
not necessary parties to the proceedings
under Section 21 of the Act."

25. This question whether an heir
lower down in order of preference was
entitled to inherit the tenancy, arose in the
context of Act of 1972 in Man Singh v.
Machau Lal & Others8. The facts giving
rise to the issue in Man Singh are
succinctly narrated in paragraph nos. 2 and
3 of the report, which read :

"2. The facts found by the Courts
below and which are not in dispute, lie
10 All. Sardar Garneet Singh & Anr. Vs. Smt. Raj Katyal
571
within a narrow compass. One Smt. Kashi
Devi was admittedly residing in the
accommodation in dispute as its tenant. The
Plaintiff-Respondents were the landlords of
the same. At the time of her death in the
year 1973, the Appellant who is the son of
the brother of Smt. Kashi Devi's husband,
was residing with Smt. Kashi Devi. The
Appellant's father Gopal Singh, though
alive at that time, was, however, not
residing with Smt. Kashi Devi. Gopal
Singh also died in 1975. On the death of
Smt. Kashi Devi the present suit was
brought
by
the
Plaintiff-Respondents
against the Appellant on the ground that the
Appellant was residing with Smt. Kashi
Devi only as the latter's licensee and
inasmuch as he was not an heir of Kashi
Devi he did not inherit her tenancy rights.
With the result that after her death the
Appellant had ceased to have any legal
claim to remain in possession over the
disputed accommodation.

3. The defence of the Appellant,
on the other hand, was that, firstly, he had
legally inherited the tenancy rights of Kashi
Devi as one residing with her normally and
also being an heir and consequently till his
tenancy was determined the Plaintiff could
not seek a decree for dispossession; and,
secondly, he having been adopted by
Nanhe Singh and his wife Smt. Kashi Devi,
he became a tenant of the disputed
accommodation after the death of Smt.
Kashi Devi, Nanhe Singh the original
tenant having predeceased Kashi Devi."

26. In the context of the said facts, it
was held in Man Singh (supra) dealing
with a similar contention as the one now
raised before us thus :

"10. The question that, however,
falls , for determination is whether we should
import the considerations of the U.P. Urban
Buildings (Regulation of Letting, Rent and
Eviction) Act, 1972, as suggested by Sri.
S.M. Dayal, in determining the question as to
who was the heir of Smt. Kashi Devi entitled
to claim the tenancy rights after the death of
Kashi Devi. Sri. Dayal submitted that as
Gopal Singh was not residing with Smt.
Kashi Devi, he did not inherit her tenancy
rights. Consequently this Court should hold
that there was no heir available among those
mentioned in the second entry of Class II.
That being so, the heirs mentioned in the
fourth entry of Class II should be deemed to
have inherited the tenancy rights of Smt.
Kashi Devi.

11. I find it difficult to accept the
contention. The submission can be accepted
only by stretching the language of the statute,
viz. Section 3(a)(1) of U.P. Act No. 13 of
1972 beyond permissible limits. In fact, what
the learned Counsel wants this Court to hold
is that in construing the term 'heirs' in Clause
(1) we should read further that if a
preferential heir was not residing with the
deceased tenant then the heir next in order of
preference as prescribed under the Hindu
Succession Act who was residing with the
tenant, should be deemed to be the heir of the
tenant within the meaning of that clause.
Such a construction is not warranted either by
the language or the scheme or purpose of
U.P. Act No. 13 of 1972. On a plain and
simple construction of Section 3(a)(1) of this
Act, only that heir would be entitled to inherit
the tenancy rights in respect of residential
accommodation who was actually residing
with the tenant and the heir would be one
who is entitled under the personal law to
inherit the rights of the deceased............"

27. The question again came up for
consideration before this Court in a much
later decision in Ishwar Chand v.
572 INDIAN LAW REPORTS ALLAHABAD SERIES
Additional District Magistrate (Civil
Supply)/R.C.E.O., Kanpur Nagar &
Another9. It was, again, a case where a
grandson laid claim to the inheritance of
the grandfather's tenancy, because he was
living with him, whereas the tenant's son
was not. The question that arose, therefore,
was whether the grandson, who was living
with the tenant in the residential building,
was entitled to inherit as his heir, because
the tenant's son was not normally residing
with him. In Ishwar Chand (supra) is was
held :

"6. The contention of the learned
counsel for the petitioner is that after the
death of the tenant, any of his heirs who
normally resided with him at the time of his
death is entitled to inherit the tenancy rights
and where a person who is entitled to inherit
the tenancy was not normally residing with
the tenant at the time of his death, such other
person who comes in the category of an heir
under the law is entitled to Inherit the tenancy
if he was residing with the tenant at the time
of his death. The personal law will determine
as to who is the person under the law to
inherit the tenancy. Section 8 of the Hindu
Succession Act. 1956 provides that the
property of a male Hindu dying intestate shall
devolve
according
to
the
provisions
mentioned under the Act-

(a) firstly, upon the heirs, being
the relatives specified in class 1 of the
Schedule ;

(b) secondly, if there is no heir of
class I, then upon the heirs, being the
relatives specified in class II of the
Schedule ;

(c) thirdly, if there is no heir of
any of the two classes, then upon the
agnates of the deceased ; and

(d) lastly, if there is no agnate,
then upon the cognates of the deceased.

7.