Appeal No 459 of 1980
From the Judgment and Order dated 1011980 of the Punjab and Haryana High Court in CR No 34 of 1980 PK Banerji VC Mahajan Mrs Urmila Kapoor and Ms A Prabhawathy for the Appellant
Raja Ram Agarwal BP Maheshwari SN Agarwal and BS Gupta for the Respondent
The Judgment of the Court was delivered by SABYASACHI MUKHARJI J
This appeal by special leave is from the decision of the Punjab  Haryana High Court dated 10th January 1980
The appellant is the tenant
The appeal arises out of the summary dismissal of the revision petition filed by the tenant under section 151 of the Code of Civil 519 Procedure from the decision of the appellate authority under the Haryana Urban Control of Rent and Eviction Act 1973 being Act No 11 of 1973 hereinafter referred to as the Act 
The appellant took on rent the premises in question from the previous landlord in or about July 1962
On or about 11th October 1971 the respondent purchased the premises in question being suit No 292 of Ward No 13 District Gurgaon from the previous landlord
The premises hereinafter will be referred as the premises 
Few months prior thereto that is to say on 10th July 1971 the respondent had purchased another house near Kabir Bhavan Gurgaon
The appellant s case was that the respond ent got vacant possession of the same
The respondent however denied that assertion
On 7th August 1972 the respondent sold the said house near Kabir Bhavan
It is asserted that the sale was to one Resham Devi who is alleged to be the sister in law of the respondent
On the other hand this is disputed and it appears that she is the sister in law of the brother of the respondent
The assertion of the appellant was that this was a benami transaction
On 14th January 1974 an application for ejectment was filed before the Rent Controller by the respondent on grounds of a non payment of rent b sub letting and c bona fide requirement
So far as the grounds of non payment of rent and sub letting are concerned it has been held by all the courts in favour of the tenant
Those findings are not in dispute in this appeal
The only ground that survives is the bona fide requirement of the landlord
The Rent Controller on 7th November 1978 rejected the petition of the landlord on the ground that the landlord had not been able to prove all the ingredients of section 133ai of the Act
The respondent thereafter filed an appeal before the Appellate Authority
Before the Authority an application was made for admission of additional evidence by the respondentlandlord
Such additional evidence were permitted to be adduced and were recorded on various dates
The appeal was allowed by the appellate authority on 7th December 1979
The appellant herein filed a revision petition as mentioned hereinbefore before the High Court under section 151 of the Code of Civil Procedure and the same was dis missed by the High Court in limine on 10th January 1980
The only question that requires consideration in this appeal is whether on the facts and in the circumstances of the case the landlord came within the provisions of section 133ai of the Act
The Act which is an Act to control the increase of rent of certain buildings and rented land situated within the limits of urban areas and the eviction of tenants therefrom provides by section 13 1  that a tenant in possession of a building or a rented land shall not be evicted therefrom except in accordance with the provisions of the said 520 section
Sub section 3ai of section 13 provides as follows 3 A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession a in the case of a residential building if i he requires it for his own occupation is not occupying another residential building in the urban area concerned and has not vacated such building without sufficient cause after the commencement of the 1949 Act in the said urban area
 Before we deal with the other contentions it may be mentioned that on behalf of the appellant Shri PK Banerji learned advocate contended that the appellate authority was in error in firstly admitting additional evidence at the appellate stage in the facts and circumstances of the case and secondly the appellate authority had not considered the evidence adduced by the appellant before the Rent Control ler
We are unable to accept these submissions urged on behalf of the appellant
The appellate authority it must be mentioned has normally the same jurisdiction to admit additional evidence as the trial court if the facts and circumstances so warrant
Furthermore in the instant case section 15 of the Act deals with the powers of the appellate and revisional au thorities under the Act
Sub section 4 of the said section specifically provides that if necessary after further enquiry as it thinks fit either personally or through the Controller the appellate authority shall decide the appeal
Therefore the appellate authority has by express provision jurisdiction to admit additional evidence
Indeed in this case from the written statement it appears that the only contention that was sought to be raised was about the extent of the accommodation available to the landlord in the ances tral house of the landlord
The allegation about the alleged sale of the premises near Kabir Bhavan was not clearly spelled out
Therefore if the interest of justice so demanded the appellate authority was justified in admitting the additional evidence
The parties in this case had ample opportunity to test the veracity and to examine and submit on the value of such additional evidence
No prejudice could be said to have been caused by admission of such additional evidence
In State of Kerala vs
KM Charia Abdullah  Co  this Court was dealing with similar power under Madras General Sales Tax Act 1939 and observed at page 610 of the report that by sub section 4 of section 250 of the Income Tax Act 1961 which is similar to section 334 of the Indian Incometax Act 1922 the Commissioner was authorised for disposing of the appeal to 521 make such further enquiry or to direct the Income tax Offi cer to make further enquiry as he thought fit and report upon them
This Court held that it could not denied that the said sub section conferred upon the appellate or revising authority power to make such enquiry as it thought fit for fair disposal of appeal
We are therefore clearly of the opinion that in the facts and circumstances of a particular case the appellate authority has jurisdiction under the Act in question to admit additional evidence
We are further of the opinion that in this case admission of such additional evidence was warranted by the facts and the pleadings in this case
We are satisfied that by such admission of evi dence no prejudice has been caused to the appellant
Indeed reading of the order of the appellate authority makes it abundantly clear that the appellate authority had adverted to all the facts recorded by the Rent Controller and further considered the additional evidence
It is true that in referring to the findings of the Rent Controller the appel late authority in its order had not specifically referred to the paragraphs of the order of the Rent Controller but that does not mean nor does it indicate that the appellate au thority had not considered evidence adduced before the Rent Controller
We are therefore unable to sustain the objec tions urged on behalf of the appellant by Shri Banerji on admission and consideration of the additional evidence
The appellate authority noted that the party had led evidence before the Rent Controller and after hearing the party the Rent Controller held in the manner he did
The appellate authority therefore was conscious of the evidence adduced by the appellant before the Rent Controller
The criticism that there was no consideration of the evidence adduced by the appellant before the Rent Controller by the appellate authority is therefore not justified in the facts and circumstances of the case
The Rent Controller as noted hereinbefore held that the appellant had proved the bona fide requirement
The appellate authority had noted the evidence adduced by the respondent before the appellate authority
It is clear that the residential house of the family of the petitioner was having two rooms only and there was large number of persons occupying the two rooms
The family of the petitioner consisted of really seven brothers and one sister
Admittedly two brothers and their families were occupying the said premises
The premises in question belonged to the grand father of the respondent
The grand father was an advocate
He died
After his death his chamber was let out to Laxmi Commercial Bank
It was contended that the respondent was a co parcener in the said joint family house
It was submitted that if the said chamber which was a big room was available then it could not be said that there was dearth of the accommodation in the ancestral house
It is true that the appellate authority had proceeded on the basis that the two rooms for occupation were avail able in the said house for the father and the two sons including the respondent and 522 his family in the ancestral house
But assuming that even if we take into consideration the chamber of the late grand father which had been let out to Laxmi Commercial Bank that will also be wholly insufficient to meet the reasonable and bona fide requirement of the respondent
The appellate authority further held that the appellant was a licensee in respect of the ancestral house and he was staying there with the permission or the licence given by his father and he had no right and as such his interest in the ancestral house could not be considered to be occupying another residential house in terms of Clause 1 of sub section 3a of section 13 of the Act
It was submitted before us that this is incorrect because a co parcener in respect of the ancestral house was a co owner and an owner could not be considered to be a licensee of the father in respect of a house belonging to Mitakshara joint family
There is no dispute that the family in question is governed by the Mitakshara School of Hindu Law
It is abundantly clear that Ashok Isher and Jagadish being the brothers of the appellant and the family belonging to the joint family of the respondent with their children were staying in the ancestral house
Lalit another brother had another house
As mentioned hereinbefore there were other persons but about their stay there was no clear evi dence
It is asserted by the respondent that they are seven brothers and one sister
But even assuming that Ashok Isher and Jagadish and the children stay in the ancestral house and assuming that the big room which had been let out to Laxmi Commercial Bank is taken into consideration the accommodation is still very inadequate for reasonable and bona fide requirement of the landlords
The question there fore whether the respondent was a licensee of his father or a co owner of the property namely the ancestral house is not really necessary to be decided
But it was contended on behalf of the appellant that this approach of the appellate authority had vitiated the conclusion
It is therefore necessary to allay the grievance of the appellant on this score
Our attention was drawn to a decision of the Judicial Committee in Rani Sartaj Kuari and Another vs Rani Deoraj Kuari 15 Indian Appeals 51 Mother and Guardian of Lal Narindur Bahadur Pal
That case was in respect of an impat ible estate governed by the Mitakshara School of Hindu Law
There was a custom that the estate was impartible and was descendible to single heir by the rule of primogeniture
It was held that in order to render alienations by the rejah in that case invalid as made without the consent of his son it must be shownthat the rajah s power of alienation was excluded by the custom or by the nature of the tenure
In such a raj the son is not a co sharer with his father
The Judicial Committee further observed that property in ances tral estate acquired by birth under the Mitakshara law is so connected with the fight to partition that it does not exist independently of such fight
At 523 page 64 of the report the Judicial Committee observed that the property in the paternal or ancestral estate acquired by birth under the Mitakshara law is in the opinion of the Judicial Committee so connected with the fight to parti tion that it did not exist where there was no right to it
We are of the opinion that no much support can be sought for by the appellant from the said decision Here in the instant case the question is whether the respondent who undoubtedly was governed by the Mitakshara School of Law had acquired a fight to ancestral property by his birth
But this question has to be judged in the light of the 
Reliance was also placed on State Bank of India vs Ghamandi Ram Dead Through Shri Gurbax Rai at page 686 of the report this Court observed that accord ing to the Mitakshara School of Hindu law all the property of a Hindu joint family was held in collective ownership by all the coparceners in a quasi corporate capacity
The Court approved the observations of Mr Justice Bhashyam Ayyanger in Sundarsanam Maistri vs Narasimhulu Maistri and Anr
ILR 25 Mad
149 154
But the question in the instant case is the position of the respondent after coming into operation of the 
Shri Banerji drew our attention to Mulla s Hindu Law  15th Edition at page 924 where the learned commentator had discussed effect in re spect of the devolution of interest in Mitakshara coparce nary property of the coming into operation of the 
This question has been considered by this Court in Commissioner of Wealth Tax Kanpur and Others vs Chander Sen and Others  where one of us Sabyasachi Mukharji J observed that under the Hindu Law the moment a son is born he gets a share in father s property and become part of the coparcenary
His fight accrues to him not on the  death of the father or inheritance from the father but with the very fact of his birth
Normally therefore whenev er the father gets a property from whatever source from the grandfather or from any other source be it separated property or not his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him
This Court observed that this position has been affect ed by section8 of the and there fore after the Act when the son inherited the property in the situation contemplated by section 8 he does not take it as Kar of his own undivided family but takes it in his individual capacity
At pages 577 to 578 of the report this Court dealt with the effect of section 6 of the Hindu Suc cession Act 1956 and
the commentary made by Mulla 15th Edn
pages 924 926 as well as Mayne s on Hindu Law 12th Edition pages 918919
Shri Banerji relied on the said obser vations of Mayne on Hindu Law  12th Edn
at pages 918 919
This Court observed in the aforesaid decision that the views expressed by the Allahabad High Court the Madras High Court the Madhya Pradesh High Court and the Andhra Pradesh High Court appeared to 524 be correct and was unable to accept the views of the Gujarat High Court
To the similar effect is the observation of learned author of Mayne s Hindu Law 12th Edn page 919
In that view of the matter it would be difficult to hold that property which developed on a Hindu under section 8 of the would be HUF in his hand vis a vis his own sons
If that be the position then the property which developed upon the father of the respondent in the instant case on the demise of his grandfather could not be said to be HUF property
If that is so then the appellate authority was fight in holding that the respondent was a licensee of his father in respect of the ancestral house
But as mentioned hereinbefore even if we proceed on the assumption that the respondent was a member of the HUF which owned the ancestral house having regard to his share in the property and having regard to the need of other sons of the father who were living in the ancestral house along with their families the appellate authority was still fight in holding hat the need of the respondent was bona fide
The second aspect of the matter which was canvassed before us was that the respondent had purchased another house near Kabir Bhavan in 1971 and there were nine rooms in the said house
It was the appellant s contention that it was sold to Smt
Resham Devi which was a benami transaction
It was further his contention that in respect of the said house the respondent had got vacant possession
Thirdly it was contended that the respondent had within his choice to keep the said premises but he sold the said premises in question
Therefore he does not come within the conditions stipulated in section 133ai of the Act
The appellate authority on appraisal of evidence before the Rent Control ler as well as before it came to the conclusion that vacant possession had not been obtained
There was evidence on record to come to that conclusion
Our attention was drawn to the document on behalf of the appellant in support of contention that the document which was registered document recited that vacant possession has been given
The document stated Kabza Khan maken ka dia hai 
It was asserted that it meant that vacant possession in fact had been given
The oral evidence adduced indicated otherwise
Indeed the expression aforesaid does not mean that actual physical vacant possession had been handed over to the purchaser
In document of this type it can equally mean that the legal right of possession not the actual possession had been handed over to the purchaser
Therefore evidence was permissible to explain what it meant
Reliance for this purpose was placed on a decision of the Division Bench of the Allahabad High Court in Lachhman Das vs Rent Control and Eviction Officer Bareilly and another
 AIR 1953 Allahabad 458 at 459 paragarph 6
Therefore in the instant case even if the legal right of occupation had passed on which in our opinion was sought to be conveyed by the expression noted 525 hereinbefore then whether the premises in question was actually vacant to be occupied by the respondent is a ques tion on which the oral evidence could be adduced
There was ample justification on the evidence on record to come to the conclusion that it was not physically vacant 
The expres sion noted above therefore on this aspect is really non sequetur and evidence would clinch the issue
There was the evidence for the appellate authority to come to the conclu sion that the house near Kabit Bhavan was not vacant
It acted on the same and in our opinion it did not commit any error in so doing
The next aspect urged was that it was benami transaction because the father of the respondent has gone to the Regis tration office
In view of the evidence discussed by the appellate authority specially the income tax records and other records to which it is not necessary to advert in detail as well as the oral testamoney in this case the appellate authority rejected the contention that the sale was a henami transaction by the respondent
The most impor tant aspect however as was highlighted by the respondent was that the said property was purchased in July 1971 and sold in August 1972 because it was not in vacant posses sion
In the instant case suit for eviction in question for the need of the landlord was filed in January 1972
There fore the respondent could not be said in view of the said premises having been purchased and sold by him prior to the institution of the suit to have occupied another residen tial building in the urban area
It was contended that by sale the respondent has disentitled himself to the relief asked for because he had in his choice the residential building for his occupation but he sold it
We are unable to accept this contention
There is no evidence either before the Rent Controller or before the appellate authority that this sale to Resham Devi was with an intention or with a purpose to defeat the claim of the appellant or to take out the respondent from the purview of the limitation imposed by clause  1  a of sub section 3 of section 13 of the Act
If we read in such manner the Act in question the Act would expose itself to the vice of unconstitutionality
It is well settled that though the Rent Act
is a beneficial legislation it must be read reasonably and justly
If more limitations are imposed upon the right to hold the property then it would expose itself to the vice of unconstitutional ity
Such an approach in interpretation of beneficial stat utes is not warranted
It is true that one should iron out the creases and should take a creative approach as to what was intended by a particular provision but there is always
unless rebutted a presumption as to constitutionality and the Act should be so read as to prevent it from being ex posed to the vice of un constitutionality
State is also presumed to act fairly
See in this connection the observa tions in State of Karnataka and Another vs Ms Hans Corpo ration  at 704  706 and KP Varghesev
Income Tax Officer Ernakulam and Another 1981 4SCC 173 at 179 180 526 Paragraphs 5  6
See also the observations of this Court in Kasturi Lal Lakshmi Reddv vs State of Jammu and Kashmir  Another  at 1357
In fact the respondent did not have a house in his possession
He purchase one before but as it was not va cant he sold away before the institution of the suit
There was no restriction by the Act on sale and alienation of property
At the relevant time the respondent fulfilled all the requirements to maintain an action for eviction
Shri Raja Ram Agarwala counsel for the respondent submit ted before us that we should take a creative reasonable and rational approach in interpreting the statute
We should not he submitted put such an interpretation as would prevent sale or mortgage of the property by the owner and in this case he was justified in saying that the landlord respondent did not have vacant possession
As the facts of this case warrant and in fact the respondent had sold away the property 1 12 years before his suit for his need was instituted it cannot be said unless there was definite evidence that it was done with the intention to defeat the appellant s claim so as to be read that the landlord occu pied another residential house at the relevant time ie at the time of institution of the suit
The appellate authority accepted the respondent s need and found him within the purview of the Act
The High Court did not interfere in revision nor shall we under Article 136 of the Constitution
The appeal therefore fails and is accordingly dis missed
Interim orders are vacated
In the facts and circum stances of the case however the parties will pay and bear their own costs
MLA Appeal dismissed


Summary:
On 11th October 1971 the respondent landlord purchased a house in which the appellant was a tenant since 1962
He had also purchased another house in the same district on 1071971 but sold away the same on 7872 as it was not vacant
On 14th January 1974 the respondent landlord filed an eviction petition against the appellant tenant inter alia on the ground of bona fide personal requirement
The Rent Controller rejected the petition holding that all the ingre dients of section 133ai of the Haryana Urban Control of Rent and Eviction Act 1973 had not been proved
Aggrieved by the order of the Rent Controller the respondent filed an appeal before the Appellate Authority alongwith an application for adducing additional evidence
The Appellate Authority allowed the said application re corded the additional evidence and allowed the appeal holding that i the need of the respondent was bona fide ii that the vacant possession of the house purchased on the 10th July 1971 by the respondent landlord had not been obtained and iii that the sale of the aforesaid house by the respondent was not a benami transaction
The High Court dismissed the revision petition of the appellant in limine
Dismissing the appeal by the appellant to this Court HELD 11 Section 15 of the Act deals with the powers of the appellate and revisional authorities under the Act
Sub section
4 of the said section specifically provides that if necessary after further enquiry as it thinks fit
either personally or through the Controller the appellate authori ty shall decide the appeal
Therefore the appellate author ity has by express provision jurisdiction to admit addition al evidence
520E 517 State of Kerala vs
KM Charia Abdullah  Co   relied upon
12 The document relied upon on behalf of the appellant was a registered document and recited that vacant possession has been given
The document stated Kabza Khali makan ka dia hai 
It was asserted that it meant that a vacant pos session in fact had been given
The oral evidence adduced on behalf of the respondent indicated otherwise
The expres sion indicated above does not mean that actual physical vacant possession has been handed over to the purchaser
In a document of this type it can equally mean that the legal right of the possession not the actual possession has been handed over to the purchaser
Therefore evidence was per missible to explain what it meant and there was ample justification on the evidence on record to come to the conclusion that it was not physically vacant 
524F 525A In the instant case admission of additional evidence was warranted by the facts and the pleadings
By such admis sion of evidence no prejudice has been caused to the appel lant
Indeed reading of the order of the appellate authority makes it abundantly clear that the appellate authority had adverted to all the facts recorded by the Rent Controller and further considered the additional evidence
It is true that in referring to the findings of the Rent Controller the appellate authority in its order had not specifically referred to the paragraphs of the order of the Rent Control ler but that does not mean nor does it indicate that the appellate authority had not considered evidence adduced before the Rent Controller
The criticism that there was no consideration of the evidence adduced by the appellant before the Rent Controller by the appellate authority is therefore not justified in the facts and circumstances of the case
521B E 2
Though the Rent Act is a beneficial legislation it must be read reasonably and justly
If more limitations are imposed upon the right to hold the property then it would expose itself to the vice of unconstitutionality
Such an approach in interpretation of beneficial statutes is not warranted
It is true that one should iron out the creases and should take a creative approach as to what was intended by a particular provision but there is always unless rebut ted a presumption as to constitutionality and the Act should be so read as to prevent it from being exposed to the vice of unconstitutionality
525F G In the instant case the suit for eviction for the need of the landlord was filed in January 1972
The respondent could not therefore be said in view of the above premises having been purchased and sold prior to the institution of the suit to have occupied another residential building in the urban area
The 518 contention on behalf of the appellant that the sale has disentitled the respondent to the relief asked for because he had in his choice the residential building for his occu pation but he sold it is not maintainable
There was no evidence either before the Rent Controller or before the appellate authority that this sale of property was with the intention or with a purpose to defeat the claim of the appellant or to take out the respondent from the purview of the limitation imposed by clause 1a of sub s3 of section 13 of the Act
As the respondent had sold the properly 1 12 years before his suit for his need was instituted it cannot be said unless there was definite evidence that it was done with the intention to defeat the appellant s claim
The appellate authority accepted the respondent s need and found him within the purview of the Act
The High Court did not interfere in revision nor shall this Court under Article 136 of the Constitution
525D F 526C F Rani Sartaj Kuari and Another vs Rani Deoraj Kuari 15 Indian Appeals 51 in applicable
State Bank of India vs Ghamandi Ram Dead Through Shri Gurbax Rai  Sundarsanam Maistri vs Nara simbhulu Maistri and Anr
 ILR 25 Mad
149 154 Commission er of Wealth Tax Kanpur  Others vs Chander Sen and Others   Lachhman Das vs Rent Control and Eviction Officer Bareilly and another AIR 1953 Allahabad 458 at 459 paragraph 6 KP Varghese vs 1
TO Ernakulam and Anoth er1981 4 SCC 173 at 179 180  Kasturi Lal Lakshmi Reddy vs State of Jammu and Kashmir  Another  at 1357 referred to