# J - SHANTILAL THAKORDAS & ORS v. CHIMANLAL MAGANLAL TELWALA

- **Citation:** [1977] 1 S.C.R. 341
- **Court:** Supreme Court of India
- **Decided:** 1976-08-23
- **Bench:** A. N. Ray, N. L. Untwalia, P. N. 3Hinghal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/j-shantilal-thakordas-ors-v-chimanlal-maganlal-telwala-6914
- **Pages:** 5

## Headnote

341
Bombay Rents, H(lfel and Lodging House Rates Control Act 1947--Sectioll,
13(1) (b)-Suit for eviction on the ground of bona fide and personal need of a
landlord-Whether right to sue survives to his heirs-Requirement of firm in
which landlord is a partner whether his requirement-Whether decree
passed
in favour of landlord can be disturbed on his death.
Tkakordas, father .Qf 3 appellants, was the owner of the suit premises. He
was a part11er in a firm which had 3 other partners. One of the partners was
appellant No. 1, the soil of Thakordas and two partners were ol!lsiders.
A
suit for eviction was filed against the respondent on the ground that Thakordas
required the premises fer th!l said firm reasonably and bona tide within the
meaning of s. 13 (I )(g) of the Bombay Rent Act, 1947. The trial court passed
a decree for eviction in respect ot a portion of the premises.
Thereafter,
Thakordas died an<i the present appellants who are his sons filed ai1 appeal.
Likewise the tenant also filed an appeal. Appellants No. l and 2 together with
some outsiders continued the firm.
However, appellant No. 3 a minor son of
Thakorda~ was not admitted to the benefit of the partnership. The First Appellate Court conRI-med the decree of the trial court. The revision application fil~
by the tenant was allowed and one filed by the appellants was dismissed by the
High Court relying on the decision of this Court in Phu! Rani & Ors. v.
Naubat Rai Ahluwalia [1973] 3 SCR 679.
In an appeal by special leave, tho appellants contended :
1. Phul Rani's case was not correctly decided and the right of Thakordu
A
B
c
D
sunived in favour of the appellants.
E
2. The requirement of the firm in which the landlord is a partner will be
the requirement of the landlord.
3. Since the decree had already been passed in favour of Thakordas
before his death it could not be disturbed on his death either in appeal
or in revision.
Dismissing the appelll,
HELD: (1) Phul Rani's case was wrongly deciaed. If the law permitted
the eviction of the tenant for the requirements of the landlord "for occupation
as a residence for himself and members of his family" then the requirement wu
bo!h of the landlord and the members of his family. On his death, the right to
~ue did survive to the members of the family of the deceased landlord. After
the death of the original landlord the senior member of his family takes his
place, ud is well competent to continue the suit for eviction for his occupation
and the occupation of the other members of the family. [343 H, 344 A-BJ
,
(2) It is doubtful whether the requirement of the premi~es by the landlord
for occupation by the firm in whioh he is a partner will tantameunt to occupation by himself. Even if it is assumed that it will amount to occupation by the
iandlord, since in the new firm the minor son of Thakordas was not admitted
to the benefits of the partnership he had no interest in the said firm. Therefore,
as far as appellant No. 3 is concerned, he could iu no sense be said to require
the premises. [344 C-G]
_ , (3) The conclusion in Phu! Rani's case that if a decree had been already
passed in favour of the plaintiff that could not be disturbed on his death is not
correctly decided.
In fact, no final opinion was expressed in Phu! Rani's case
on that question. [344 H, 345 A]
F
G
H
A
342.
SUPREME COURT REPORTS
[1977) 1 S.C.R.
Phu/ Rani & Ors. v. Nau/wt Rai Alilull'alia [1973] 3 S.C.R. 679, over1t.icu.
CtYJL APPELLATE JuRISDICTJON : Civil Appeals Nos. 487-.+tiS of
1976.
.
.
(AppC'al by Special Leave l'rom che Judrrment
and Order
t:<!tcd
19.12.1973 of the Gujarat High Court in Civil Revision Application
B
No. 540 and 678 of 1970).
c
D
E
F
H
S. K. Dholakia and R. C. Bhatia, for the appeliants.
R. P. Bhatt and H. S. Pa.rihG" for /. N. Shro/]. for the respondent.
The Judgment <:f the Court was delivered by
UNTWALIA, J.-In these appeals by special leave-• the question
which falls for our determination is whether the decision of a Bench
of this Cour

## Text

J -
SHANTILAL THAKORDAS & ORS.
v.
CHIMANLAL MAGANLAL TELWALA
August 23, 1976
[A. N. RAY, C.J., N. L. UNTWALIA AND P. N. 3HINGHAL, JJ.]
341
Bombay Rents, H(lfel and Lodging House Rates Control Act 1947--Sectioll,
13(1) (b)-Suit for eviction on the ground of bona fide and personal need of a
landlord-Whether right to sue survives to his heirs-Requirement of firm in
which landlord is a partner whether his requirement-Whether decree
passed
in favour of landlord can be disturbed on his death.
Tkakordas, father .Qf 3 appellants, was the owner of the suit premises. He
was a part11er in a firm which had 3 other partners. One of the partners was
appellant No. 1, the soil of Thakordas and two partners were ol!lsiders.
A
suit for eviction was filed against the respondent on the ground that Thakordas
required the premises fer th!l said firm reasonably and bona tide within the
meaning of s. 13 (I )(g) of the Bombay Rent Act, 1947. The trial court passed
a decree for eviction in respect ot a portion of the premises.
Thereafter,
Thakordas died an<i the present appellants who are his sons filed ai1 appeal.
Likewise the tenant also filed an appeal. Appellants No. l and 2 together with
some outsiders continued the firm.
However, appellant No. 3 a minor son of
Thakorda~ was not admitted to the benefit of the partnership. The First Appellate Court conRI-med the decree of the trial court. The revision application fil~
by the tenant was allowed and one filed by the appellants was dismissed by the
High Court relying on the decision of this Court in Phu! Rani & Ors. v.
Naubat Rai Ahluwalia [1973] 3 SCR 679.
In an appeal by special leave, tho appellants contended :
1. Phul Rani's case was not correctly decided and the right of Thakordu
A
B
c
D
sunived in favour of the appellants.
E
2. The requirement of the firm in which the landlord is a partner will be
the requirement of the landlord.
3. Since the decree had already been passed in favour of Thakordas
before his death it could not be disturbed on his death either in appeal
or in revision.
Dismissing the appelll,
HELD: (1) Phul Rani's case was wrongly deciaed. If the law permitted
the eviction of the tenant for the requirements of the landlord "for occupation
as a residence for himself and members of his family" then the requirement wu
bo!h of the landlord and the members of his family. On his death, the right to
~ue did survive to the members of the family of the deceased landlord. After
the death of the original landlord the senior member of his family takes his
place, ud is well competent to continue the suit for eviction for his occupation
and the occupation of the other members of the family. [343 H, 344 A-BJ
,
(2) It is doubtful whether the requirement of the premi~es by the landlord
for occupation by the firm in whioh he is a partner will tantameunt to occupation by himself. Even if it is assumed that it will amount to occupation by the
iandlord, since in the new firm the minor son of Thakordas was not admitted
to the benefits of the partnership he had no interest in the said firm. Therefore,
as far as appellant No. 3 is concerned, he could iu no sense be said to require
the premises. [344 C-G]
_ , (3) The conclusion in Phu! Rani's case that if a decree had been already
passed in favour of the plaintiff that could not be disturbed on his death is not
correctly decided.
In fact, no final opinion was expressed in Phu! Rani's case
on that question. [344 H, 345 A]
F
G
H
A
342.
SUPREME COURT REPORTS
[1977) 1 S.C.R.
Phu/ Rani & Ors. v. Nau/wt Rai Alilull'alia [1973] 3 S.C.R. 679, over1t.icu.
CtYJL APPELLATE JuRISDICTJON : Civil Appeals Nos. 487-.+tiS of
1976.
.
.
(AppC'al by Special Leave l'rom che Judrrment
and Order
t:<!tcd
19.12.1973 of the Gujarat High Court in Civil Revision Application
B
No. 540 and 678 of 1970).
c
D
E
F
H
S. K. Dholakia and R. C. Bhatia, for the appeliants.
R. P. Bhatt and H. S. Pa.rihG" for /. N. Shro/]. for the respondent.
The Judgment <:f the Court was delivered by
UNTWALIA, J.-In these appeals by special leave-• the question
which falls for our determination is whether the decision of a Bench
of this Court consisting of two learned Judges in Phul Rani & Ors.
v. Naubat Rai Ahluwalia(1) is correct. If not, whether the appellants are entitled to get a decree for eviction in respect of the suit
premises against the. defendant respondent.
Thakordas Bhagwandas-the father 'of the three a~pellants was
owner of the suit premises.
He was a partner in a partnership firm
styled as Jai Hind Silk Weaving Works.
There were tlliee more
partners in the firm-one of whom was Shantilal Thakordas, appellant No. 1, son of Thakordas Bhagwandas.
The
other two
were
outsiders.
The suit was filed against respondent Chimanlal Maganlal
Telwala for his eviction from the premises on several ground3.
The
only ground which need to be mentioned for the purpose of the disposal of this appeal is Thakordas's claim of requiring the
premises
reasonably and bona-fide for occup:.i.tion by himself within the meaning of section 13 (1) (g) of the Bombay Rents, Hotel and Lodging
House Rates Control Act, 1947. The necessity pleaded by the original plaintiff was that he required the premises for the use. of the
partnersfuip firm aforesaid in which he
was a
partner.
The Trial
Court decreed the ·suit in part on April 30, 1965 and passed a deeree
for eviction of the tenant from a portion of the suit premises. Both
sides went up in appeal before the First Appellate Court. Thakordas
was dead and his heirs, namely, the present appellants were the appellants in one appeal and respondents in the other. The first Appellate
Court by its judgment dated November 10, 1966 maintained
the
parfofi decl't!e made by the Trial Court with slight modification. B<;lth
the parties went in revision before the Gujarat High Court. The H~gh
C@urt set aside the decree dated November 10, 1966 of the
FJrst
Appellate Court ar.id remanded thl' case to it for a fresh disposal of
the appeal after trying out an adclitional issue of c?mparative hardship of the landlord and the tenant as also the question as to whether
the substituted heirs of the original plaintiff required the
premises
reasonably and bona-fide for their occupation.
The first Appellate Court after remand again passed a decr.:c for
eviction from a portion of the suit premises on Marc'h 31, 1970. Two
(1) (1973)3 S.C.R. 679.
' \
·-<
SHANTILAL THAKORDAS \I, CHIMANLAL (Untwalia, !.)
343
revisions were taken to the High Court-one by the appellants
and
the other by the respondent. Following the decision of this
Court
in Phul Ran!s case (supra) the High Court allowed the respondent's
revision, rejected that of the appellants and .dismissed their suit fQr
eviction in toto. Hence these appeals.
The foremost and the first question urged before. us by Mr. Dholakia was that Phul .Rani's case was not correctly decided. We agree
with this contention and say with respect that we do not subscribe to
the view expressed by the Bench of this Court in that case.
The
•original plaintiff in that case had filed the application for eviction
under section 14(1) (e) of the Delhi Rent Control Act, 1958. _The
application was dismissed in the first instance by the Additional Rent
Controller, Delhi on the ground that the notices Ito quit were. not
valid.
Plaintiff filed an appeal but died during its' pendency.
His
widow, son and two married daughters and two children of a deceas-
·ed daughter were allowed to be substituted by the Rent ·Control
Tribunal where the appeal was pending. The case was remanded by
the Tribunal and after remand the Additional Rent Controller held
that some of the substituted persons require the premises bona-fide
for their occupation.
The tenant's appeal to the Tribunal
failed.
The High Court of Delhi on a further appeal by the tenant took the
view that the right to sue did not survive to the heirs of the plaintiff
and on that ground it dismissed 'the ejectment application·. The case
came up to this Court.
The view of the High Court was affirmed.
The relevant words of personal requirement of tl)e premises in section
14(1) (e) of the Delhi Act are: "for occupation as a residence for
himself and members of his family."
The
original
plaintiff
had
pleaded:
"The premises are required bonafide by the petitioner
for occupation as a residence for himself and members of
his family and that the petitioner has no other reasonably
suitable residential accommodation."
This Court took the view :
"Thus, the requirement pleaded in the ejectment application and on which the plaintiff has founded his right to
relief is his requirement, or to u~e an expression which will
effectively bring out the real point, his personal
require~
ment.
If the ejectment application succeeds-we will foriet for a m01'.1ent that the plaintiff is dead-the premises
m th~ possess10n of the tenant may come to
be occupied
by the plaintiff and the members of his family but that
does not make the requirement pleaded in the application
any the less a personal requirement of the plaintiff.
That
the members of his family must reside with him is his requirement, not theirs. Such a personal cause of action must
perish with the plaintiff."
1n our consi?ered opinio~ in face of the wordings of section 14(1) (e)
of the Delhi Act, the view expressed in Phul Rani's case, as stated
6-1104SCI/76
.
A
B
c
D
E
F
G
H
A
B
c
D
E
F
G
H
344
SUPREME COURT REPORTS
[1977] 1 S.C.lt.
above, is not correct. If the law permitted the
eviction
of
the
tenant. for the requirement of the landlord "for occupation as
a
residence for himself and members of his family", then the requirement was both of the landlord and the members of his family.
On
his death the right to sue did survive to the members of the family of
the deceased landlord.
We are unable to take the view that the
requirement of the occupation of the members of the family of the
original landlord was his requirment and ceased to be the requirement
of the members of his family on his death.
After the death of the
original landlord the senior member of his family takes his place and
is well competent to continue the suit for evktion for his occupation
and the occupation of the other members of the family.
Many of
the substituted heirs of the deceased landlord were undoubtedly the
members of his family and the two married daughters and the children of a deceased daughter in the circumstances could not be held
to be not members of the family of the deceased landlord.
But even so the appellants cannot succeed in this appeal. Firstly
it is doubtful whether the requirement of the premises by the landlord for occupaticm by the partnership firm in which he is a partner
will be tantamount to "occupation by himself" i.e. by the landlord.
Certain decisions of some .High Courts were brnught to our notice
taking the view that it is so. we refrain from expressing our opinion
in that regard.
We assume, as seems to have been the view of the
High Court in this case, that the requirement of the premises for the
use of a partnership firm by the landlord in which he is a partner is
covered by section 13(1) (g) of the Bombay Act. Yet ort the facts
of this case there is an insurmountable difficulty in the way of the
appellants.
From the judgment dated March 31, 1970 of the First
Appellate Court it would appear that on the death of Thakordas in
June, 1965 a new partnership was constituted. One of his sons Shantilal who was . a 'partner from before was taken as a partner in the new
partnership alongwith Thakordas's another son Dhanvantlal Thakordas, appellant No. 2.
There were some outsider partners.
Harish
Thakordas, appellant No. 3, a minor son of Thakordas had not been
admitted to the benefits of the partnership.
He had, therefore, no
interest in the partnership firm Jai Hind Silk Weaving Works.
The
Appollate Court took the view that the substituted plaintiffs wanted
to use the suit premises for .the purpose of godown for keeping the
yarn clothes and machinery articles and also for a retail shop
and
show room of tke partnership. This in no sense could be the requirement of appellant Harish even assuming that it could be said to be the
requirement of his two elder brothers appellants 1 and 2. In that
view of the matter we have got to dismiss the appeal althougli Mr. ll>holakia, learned counsel for the appellants succeeded in persuading us
to differ from the ratio of Phul Rani's case.
Counsel for the appellants endeavoured to bring their case within
one of the exceptions noted in Phul Rani's case. He submitted t~at a
decree had already been passed in favour of the original plaintiff by
the Trial Court and that could not be disturbed on his death either
in appeal er revision.
We do not accept the contention as sound or
\
\
/
f
SHANTILAL THAKORDAS v. CHIMANLAL (Untwalia, !.)
345
correct.
In Phu/ Rani's case no final opinion was expressed on this
question. Moreover, we find that on the earlier occasion the High
Court had set aside the decree and remanded the suit to the First Appellate Court for a fresh decision. There was, therefore, no decree in
existepce to attract the exception.
·In the result the appeals fail and are' dismissed but with0ut costs.
P.H.P.
Appeals dismissed.
A
B