Arti Dass vs Tirath Parkash Sharma
2002 Latest Caselaw 1443 Del

JUDGMENT

S.N. Kapoor, J.

1. Heard. In this appeal an interesting question has arisen about the status and right of divorced daughter of the deceased tenant to stay and period of stay in the tenanted premises.

2. Premises were taken in Rent by Late Sh. R.N. Das, father of the petitioner. He died in the year 1965. Tenancy of his wife Smt. Bakul Rani Das was terminated. It is submitted that notice was invalid for the petitioner also inherited tenancy rights Along with mother and other sisters. Secondly, it is argued that the appellant had never surrendered her tenancy and being daughter, she continued to be tenant and the impugned order is bad in law. Learned Counsel for the appellant

further expects this Court to accept that the pleadings were "loosely drafted" and it wrongly gives an impression that she claimed rights to stay in the premises only through her mother and not independently.

3. On the other hand it is argued that the respondent did not remain a family member after her marriage. She had already surrendered her rights in the property when the rent was paid only by Bakul Rani Das or by the appellant on her behalf. She did not have any independent right to stay in the premises.

4. I have heard the parties and gone through the record.

5. There is no dispute about certain facts. Tenancy of the deceased Bakul Rani Das had been terminated with effect from 26th July, 1989, Ex. P.W. 1/2. The appellant herself claims that right to stay in the premises through her mother Bakul Rani Dass. Consequently, the ratio of Sushil Kumar v. Bhagwanti Devi, 1989 RLR 61 and Amal Krishna Aditya v. Ganesh Chandra Das, , that on death of a tenant, his heirs inherit the tenancy jointly and would be tenants-in-common, is not attracted. She did not claim any independent right. If the appellant herself does not claim that she had got her independent right, title and interest in the property being a tenant-in-common Along with her mother Bakul Rani Dass, then at this stage, it is not possible to accept the contention that it was just a "loose drafting" and therefore, it should not be taken into consideration.

6. There is no dispute about one fact that the appellant was marred in 1981. Dispute arose within two months of her marriage and she came back to reside with her mother and ultimately the divorce took place in 1985. There is no rent receipt which is claimed to have been issued in her name. If she repeatedly does not assert her own independent right by seeking inclusion of her name in the rent receipts, then there is every reason to infer that she had surrendered her right in the tenanted premises at the time of her marriage in favor of her mother.

7. There is another aspect. The learned Counsel referred to State of Orissa and Ors. v. K. Srinivasa Rao, where the term 'family' came to be considered. The Supreme Court has held that the term 'family' means individual; the husband of wife as the case may be, of such individual and their children, whether major or minor, but does not include a major married son who as such had separated by partition or otherwise. In that case the Supreme Court further held that even in the case of divorced or separated woman living with her parents it would be difficult to hold that such a woman is member of her parental family for the purpose of agricultural land ceiling. There could not be any dispute about the fact that the Orissa case related to agricultural land ceiling.

8. Under Section 21 of the Hindu Adoption and Maintenance Act, the term 'dependant' would include the widowed daughter subject to the condition that she is unable to obtain maintenance from the estate of her husband, her son or daughter or her father-in-law or his father or estate of either of them. There is no doubt that the divorced daughter has not been mentioned under Section 21. But it has to be interpreted in a way which serves the purpose of the Act and does not defeat the purpose of providing beneficial protection which is available to a daughter and widowed daughter. Therefore, I would equate divorced daughter with a widowed daughter so long as she is not remarried. But she will become "dependant" under Section 21 only if she satisfies those very qualifications namely

that she is unable to obtain maintenance from her divorced husband, her son or daughter.

9. Here, in this case, there is no dispute about the fact that the appellant herself is employed and rather during the course of arguments it was submitted by the learned Counsel for the appellant that she was herself supporting her mother. Consequently, she could not be said to be dependant even under the extended meaning of the term 'dependant' by including divorced daughter under Section 21(iv) of the Hindu Adoption and Maintenance Act. I had to refer to the terms "family" and "dependant" in view of the term 'family' used in Section 2(1) of the Delhi Rent Control Act to find out the meaning of the member of family. This was essential further on account of the explanation (i) to find out the order of succession in the event of death. In the case in hand, Smt. Bakul Rani Das was a tenant within the Clause (1) of Section 2 of the Delhi Rent Control Act. There could be no dispute about the proposition that sub-Sub-clause (b), of Sub-clause (iii) of Clause (1) to Section 2 refers to "son or daughter" both, without any qualification. But one has to read this clause in terms of Explanation I and II to Clause (1) of Section 2(i) of the Delhi Rent Control Act, which read as under :-

"Explanation I. - The order of succession in the event of death of the person continuing in possession after the termination of his tenancy shall be as follows :-

(a) firstly, his surviving spouse;

(b) secondly, his son or daughter, or both, if there is no surviving spouse, or if the surviving spouse did not ordinarily live with the deceased person as a member of his family up to the date of his death ;

(c) thirdly, his parents, if there is no surviving spouse, son or daughter of the deceased person, or if such surviving spouse, son or daughter or any of them, did not ordinarily live in the premises as a member of the family of the deceased person up to the date of his death ; and

(d) fourthly, his daughter-in-law, being the widow of his pre-deceased son, if there is no surviving spouse, son, daughter or parents of the deceased person, or if such surviving spouse, son, daughter or parents or any of them, did not ordinarily live in the premises as a member of the family of the deceased person up to the date of this death.

Explanation II and II to Clause (1) to Section 2 of the Delhi Rent Control Act read as under:

Explanation II. - If the person, who acquires, by succession, the right to continue in possession after the termination of the tenancy, was not finally dependent on the deceased person on the date of his death, such successor shall acquire such right for a limited period of one year; and, on the expiry of that period, or on his death, whichever is earlier, the right of such successor to continue in possession after the termination of the tenancy shall become extinguished.

Explanation III.- For the removal of doubts, it is hereby declared that :-

(a) where, by reason of Explanation II, the right of any success or to continue in possession after the termination of the tenancy becomes extinguished, such extinguishment shall not affect the right of any other successor of the same category to continue in possession after the termination of the tenancy; but if there is no other successor of the same category, the right to continue in possession after the termination of the tenancy shall not, on such extinguishment, pass on to any other successor specified in any lower category or categories, as the case may be;

(b) the right of every successor, referred to in Explanation I, to continue in possession after the termination of the tenancy, shall be personal to him and shall not, on the death of such successor, devolve on any of his heirs ;

(c) "urban area" has the same meaning as in the Delhi Municipal Corporation Act, 1957 (66 of 1957)

10. While Section 21 of the Adoption and Maintenance Act refers to daughter, and widowed daughter, Sub-clause (b) of Sub-clause (iii) of Clause (1) of Section 2 does not keep even that distinction. Consequently, separated or divorced daughter would be included in the definition of the tenant, if such a daughter was ordinarily living in the premises as a member of the family of the deceased person up to date of death of the tenant, and only if such a daughter is finally dependant on the deceased for the whole life, otherwise she wold have a limited right to stay in the premises for one year. Accordingly, separated or divorced daughter as well in the term of daughter, subject to the condition that she otherwise fulfillls the requirements of Explanation I, II and III to Clause (1) of Section '2(i)'.

11. If the appellant was earning then she could not be said to be financially and finally dependant on the deceased Bakul Rani Dass, and as such she shall acquire limited right to occupy the premises only for a period of one year.

12. The First Appellate Court has decided the matter on 26th July 2001. So in any case one year has already expired. However, seeing the hardship of a divorced daughter, I grant the appellant time to vacate the premises by 28th February 2003, subject to filing of an undertaking within three days to the effect that the appellant undertakes to vacate the premises by handing over peaceful possession of the premise by 28th February, 2003, and the appellant shall pay the arrears within a period of one week and shall continue to pay damages as has been ordered by the Appellate Court.

13. In case the appellant fails to file affidavit by Friday, the respondent shall be entitled to proceed with the execution.