JUDGMENT J.D. Jain, J.
(1) The facts giving rise to the above mentioned appeals succinctly are that the appellant is a tenant under the respondent Smt. Sushila Bhargava in respect of a portion comprising two rooms, one kitchen and common use of bath and latrine on the ground floor besides two rooms on the mezzanine floor of house No. 101-E, Kamla Nagar, Delhi. The said house belongs to respondent No. 1 and Shri Raj Kumar Bhargava, respondent No. 2, is her husband. Way back in June 1969 the respondents filed an eviction petition against the appellant on two grounds, namely, (i) bona fide requirement of the landlady as residence for herself and members of her family dependent on her; and (ii) non-user of the demised premises by the appellant for a period of more than six months immediately before the date of the filing of the petition, falling under clauses Ce) & (d) respectively of the proviso to Section 14(1) of the Delhi Rent Control Act (hereinafter referred to as "the Act"). Later on, in April 1974 the respondents moved another application for eviction of the appellant on the ground that the appellant had acquired vacant possession of another residential premises viz. first floor of house No. 61A, Banarasi Dass Estate, on 30th of November 1972, the said ground being covered by clause (h) of the proviso to Section 14(1). Proceedings in both the cases were consolidated. Both the eviction petitions were vehemently contested by the appellant. Eventually the Additional Rent Controller vide order dated 31st January 1979 dismissed the eviction petition on ground under clauses Ce) & (h) but allowed the same on the ground under clause (d) of the proviso to Section 14(1) of the Act.
(2) Feeling aggrieved by the said order, the appellant preferred an appeal against the same in the court of the Rent Control Tribunal being Rca No. 261/79. In the meantime, however, the respondent-landlady took out execution and dispossessed him from a part of the demised premises viz. bath room and the latrine The appellant moved an application under Section 45 of the. Act for restoration of the aforesaid amenities and the same was allowed by the Additional Rent Controller vide order dated 13th August 1979. She directed the respondents to restore the bath room and the lavatory immediately to the appellant. Dissatisfied with the same the respondents filed an appeal before the Rent Control Tribunal, being appeal No. 842179. They also filed cross-objections against the order of the Additional Pent Controller dismissing the eviction petition on grounds falling under clauses (e) & (h). The learned Rent Control Tribunal after hearing the parties set aside the finding of the trial Court with respect to the ground of eviction under clause (d) of the proviso to Section 14(1). He also held that the appellant had not acquired any other residential accommodation as of right and, therefore, the ground of eviction under clause (h) of the proviso to Section 14(1) too was not available. However, he held that title requirement of the respondent-landlady for residence of herself and members of her family was bona fide and genuine. Hence, he allowed the cross-objections and directed eviction of the appellant under clause (e) of the proviso to Section 14(1). The Rent Control Tribunal also allowed the appeal of She respondents against the order of the Additional Rent Controller directing restoration of the amenities of bath room and latrine to them. Feeling dissatisfied, the appellant has come up in second appeal against the aforesaid order of the Rent Control Tribunal, S.A.O. No. 285180 being against the order of eviction and S.A.O. No. 303180 being against the order of restoration of amenities to the respondents. The respondent landlady has, on the other hand, filed cross-objections questioning the correctness and legality of the order of the Rent Control Tribunal so far as it relates to the grounds of eviction under clauses (d) and (h) of the proviso to Section 14(1).
(3) I will first take up the grounds of bona fide requirement. The only ground on which the finding of the learned Rent Control Tribunal is assailed is that the existing accommodation with the respondent-landlady is more than sufficient as resident for herself and members of her family dependent on her. He has not challenged the findings of the courts below that respondent No. I is the owner-landlady and that the letting purpose was residential. In order, however, to show that the existing accommodation with the respondents is more than sufficient to meet her requirements, the appellant moved an application dated 24th August 1982 (C. M. No. 2819182) under Order Xli Rules 27 read with Section 151 of the Code of Civil Procedure (hereinafter referred to as 'the Code'). He contended that after the filing of this appeal the respondent-landlady acquired additional accommodation comprising two rooms, a kitchen, bath and latrine on the first floor of the premises in question and the said portion adjoined the portion already in occupation of the respondent-landlady on the said floor. So, he urged that the changed circumstances although a subsequent event may be taken into consideration for just and proper decision of the appeal. The respondent-landlady has filed a fresh affidavit dated 15th July 1985 slating therein the names and ages of all the members of her family who are living with her at present and she also filed a site-plan indicating the entire accommodation in her occupation as also in the possession of the appellant and one more tenant.
(4) A perusal of the affidavit of the respondent discloses that she has got three sons and three daughters, all of whom arc married. Her eldest son Vijay Kumar has a daughter aged 12 years and a son aged 9 years. Both of them are studying in school. Her second son Naveen Bhargava too has a daughter but he is living in the United States at present. Her third son Kapil Bhargava too has a daughter and a son. His daughter is studying in school while his son is still an infant. Both the sons of the respondent viz., Vijay Kumar and Kapil Bhargava are living with the respondent in the house in question Along with their families. Besides that Mrs. Kusum Bhargava, a married daughter of the respondent and her son aged about 9 years have been living with the respondent permanently for the last seven years. The said daughter is employed in Indian Institute of Public Administration as a research officer and her son is studying in a school. Her second daughter Mrs. Malti Bhargava is married to one Pramod Bhargava of Saharanpur and had been living there. However, on account of losses in the, business. Pramod Bhargava could not support his wife financially and, therefore, Mrs. Malti Bhargava has been staying with the respondent with her two children for the last two years. She is employed as a school teacher at Roop Nagar and her children are studying in a school at Kamla Nagar. Her third daughter, Mrs. Alka Bhareava is married to an advocate at Sitapur in Uttar Pradesh. They often come to Delhi and stay with the respondent. She has further sworn that her husband had a serious heart attack in March 1984 and he had been ailing since then. Her own health too was bad because eye-sight was continuously faring and she could not see beyond 3 4 on account of her undergoing an operation for retinal detachment as far back as 1968.
(5) As for the accommodation in the possession of the. respondent the site-plan shows that she is occupying the whole of the first floor which comprises five living rooms besides two kitchens, a store and bath etc. She is also in occupation of two rooms on the ground floor, rest of the accommodation on the said floor being with the appellant and one more tenant. Further, there, are a barsati and amount on the second floor which are also in the possession of the respondent.
(6) An opportunity was afforded to the appellant to file a rejoinder affidavit if he so wished. He has not filed any affidavit in rejoinder controverting the facts sworn by the respondent in her affidavit. He has not filed any site-plan wither to show that the site-plan filed by the respondent-landlady is incorrect in any way. Hence, I see no reason to doubt the veracity of the facts stated by the respondent in her affidavit. Likewise, I assume that the site-plan filed by her showing the entire accommodation in her occupation is correct.
(7) The question which falls for determination, therefore, is whether under the circumstances the existing accommodation with the respondent-landlady is insufficient and whether her need for additional accommodation is bona fide. Needless to say that in appropriate cases the Court must have regard to events as they present themselves at the time when it is hearing the proceeding before it and mould the relief in the light of those events. It is more so in an eviction case grounded on bona fide requirement because the need of the landlord or for that matter his family for additional accommodation keeps on changing on account of births, marriages and deaths etc. occurring in the family. As observed by the Supreme Court in Hasmat Rai & Another v. Raghunath Prasad, (1981)13 Unreported Judgments (SC) 477(1), that : "THEREFORE when an action is brought by the landlord under Rent Restriction Act for eviction on the ground of personal requirement, his need must not only be shown to exist at the date of the suit, but must exist on the date of the appellate decree, or the date when a higher court deals with the matter. During the progress and passage of proceeding from court to court if subsequent events occur which if noticed would not suit the plaintiff, the court has to examine and evaluate the same and mould the decree accordingly. This position is no more in controversy. in view of a decision of this Court in Pasupuleti Venkateswarlu v. The Motors & Gen. Traders (2).
(8) The converse of the foregoing legal position would equally hold good inasmuch as an increase in the family of the landlord may justify need for additional accommodation even though the landlord has acquired some more accommodation during the pendency of eviction proceedings or appeal. As would be seen from the affidavit of the respondent, adverted to above. at least two rooms will be required by her eldest son Vijay Kumar and his children both of whom are school going. Likewise. two rooms will be required by her son Kapil Bhargava. No dobut, both his children are very young at present but even then they will need a separate room for their studies etc. as they grow in age. But even assuming that they can sleep in the room of their parents for the present, the need of the respondent-landlady for additional accommodation, as shall be presently seen, is still there. One room each will be required by the respondent for herself and her two married daughters who, as stated above, are at present living with her. It is true that in Hindu society married daughters are not normally considered to be members of the family of their parents and strictly speaking they cannot be said to be dependent on their parents for residence. However, the concept of family is not that rigid as to always exclude the married daughters from the family of their parents inasmuch as there can be genuine cases where married daughters are in fact living with their parents for one reason or the other and they may be said to be dependent on their parents for residential accommodation. It is now well settled that the expression "family" has to be interpreted reasonably and fairly giving due regard to the social, religious and economic conditions of life in our country as also peculiar circumstances of each case. As held by a Division Bench of this Court in Gobind Dass & others v. Kuldip Singh, 1970 R.C.R. 511(3), an extended meaning is to be given to the word "family". Observed the Division Bench : "THE word "family" has not been defined in the Act and we feel advisedly so. The concept of what constitutes a family when a number of persons are related or are living together is not something static or capable of concise definition. What constitutes a family in a given set of circumstances or in a particular society depends upon the habits and ideas of persons constituting that society and the religious and socio-religious customs of the community to which such persons may belong."
(9) Their Lordships further said that, A remote relation may, in a given set of circumstances, be treated as a member of the family, whereas in another set of circumstances the same relation may not be legitimately called as a member of the family." In Lala Ram v. Kalawati. 1975 R.L.R. (Note) 112.C4) the landlady was living in the house with her married daughter and her husband as a family It was held by Yogeshwar Dayal. J. that "the requirement of the daughter and her husband will be treated as the requirement of the landlady". I am ill respectful agreement with this observation of His Lordship. So, having regard to the fact that both the married daughters who have been living continuously with the respondent because they could not live with their husbands for some reason or the other will be deemed to be members of her family. On a parity of reasoning they will also be considered to be dependent on her for residential accommodation even though both of them are earning hands. It is now well settled that the word "dependent" cannot be construed as wholly dependent in the sense of earning nothing at all and being entirely dependent on parents for board, lodging or maintenance but in the context in which that term appears in clause (e) of the proviso to Section 14(1) it connotes a wider concept and covers a larger field. So, it takes in a person who is not financially dependent upon the landlord but who would in the normal course look up the landlord to provide him with the facility of a house possessed by the landlord, though in strict legal parlance dependent may mean looking up for support or finance So looked at the matter from this angle, both the married daughters of the respondent can well be said to be members of her family. Even though both of them are earning hands they have to look to their parents for residential accommodation because they are not living with their husbands and for reasons of security etc. they would be finding it difficult to live all alone at Delhi and set up an independent establishment of their own.
(10) Besides that, the respondents would be in need of a dining and a drawing room. The mere fact that she owns a double storeyed building in a thickly populated locality like Kamla Nagar would speak Volumes for her affluence. Even otherwise the affidavit filed by her shows that her sons arc well educated and very well placed in life. Hence, the requirement of the respondent for additional accommodation cannot be said to be fanciful of mala-fide. On the other hand, her bona fides are apparent from the fact that she has not let out any portion of her house although various portions thereof have been falling vacant from time to time on the exit of her tenants and now only the appellant and one more tenant are left. All that the landlord is to prove is that he needs the premises and that his need is genuine and not sham Or frivious. Further, it is to be seen whether the landlord is motivated by extraneous considerations in his endeavor to recover possession from the tenant. In the instant case, no oblique motive has even been alleged by the appellant.
(11) The learned counsel for the appellant has pointed out that the learned Tribunal did not fake into consideration the barsati on the second floor of the house in question while determining the need of the respondent-landlady for additional accommodation. However, I notice that the learned Tribunal was fully aware of the fact that the barasati on the second floor was in the occupation of the respondent. It has been held in several cases of this Court that ordinarily barasati is not meant for user as a living room, more so when there is no bath room or toilet on the second floor. (See Banmali Raut v. Pushpa Sakasena, 25(1984) Dlt 87(5) and Joginder Singh v. Smt. Unia Vati, (1985)2 Rcj (l)(6). I am in respectful agreement with the view expressed in the said cases. It is for the reason that normally barsati is constructed for a specific purpose i.e. for better enjoyment of the terrace adjoining it and also for placing household articles needed for sleeping at night or basking in the sun during day time. Of course, there may be cases where people are believed to use the barsati as a living room under compelling circumstances, but that would not warrant the view that the same is to be treated as a regular living room. Hence, paucity of accommodation with the respondent-landlady stands amply proved and I find no cogent ground to interfere with the finding of the learned Rent Control Tribunal.
(12) That brings me to the cross objections filed by the respondent-landlady against the dismissal of her eviction petition on grounds under clauses (d) and (h) of the proviso to Section 14(1). In order to claim eviction of the tenant under clause (d) it is imperative for landlord to prove that neither the tenant nor any member of his family has been residing in the premises for a period of six months immediately before the date of the filing of the eviction petition. The contention of the respondent-landlady is that the appellant was formerly employed in a firm at Delhi. However, in March 1968 he got employment with M/s. Rohtas Industries Limited at Dalmia Nagar in Bihar and he remained out of Delhi right up to November" 1969 as a whole-time employee. Thus, during the said period neither the appellant nor any member of his family lived in the house in question and they went to reside with the parents of the appellant at house No. 61 A, Banarsi Dass Estate. Shri C. M. Bhagchandani, Legal Assistant of M/s. Rohtas Industries Limited (AW1) testified to the effect that the appellant was employed with M/s. Rohtas Industries Limited as an Assistant Controller of Accounts from Inarch 1968 to October 1969. He was a whole-time employee of the said concerned. This fact is not disputed by the appellant and his whole case is that even though he was serving with M/s Rohtas Industries Ltd. at Dalmia Nagar and then at Calcutta during the said period, his family which means his wife and daughters etc. were living in the premises in question regularly in his absence and they went to Banarsi Dass Estate, the house of his father, only occasionally.
(13) Shri Raj Kumar, respondent No. 2, appeared in the witness box as AW7 to support the case of the respondent-landlady. He, inter alia, asserted that neither the appellant nor any member of his family resided in the premises in question during the aforesaid period and it was only in November 1969 i.e. after the eviction petition had been filed that the appellant and members of his family returned to the premises in question. She also examined one, Om Parkash, who was formerly a tenant of the father of the appellant at 61A, Banarsi Dass Estate, to depose that during the period June 1968 to October/November, 1969 the wife and children of the appellant were living with the father of the appellant at Banarsi Dass Estate. Further, according to him, even the name plate of the appellant, who is a Chartered Accountant, was affixed on the main gate of Banarsi Dass Estate house of his father. Besides that, the respondent examined Shri S. K. Goel, Legal Assistant in Delhi Electricity Supply Undertaking as AW4. He deposed that the meter reading of electric connection in the demised premises was 1,851 on 3rd June 1968. It was 1,852 on 3rd September 1968 as also on 4th November 1968. However, it was found to be 1,858 on 3rd January, 1969 and it continued to be the same right uptil 4th July 1969. Eventually the electricity was disconnected on 25th July 1969. However, the electric connection was revived in November, 1969.
(14) In rebuttal the appellant deposed that during his absence to Dalmia Nagar and Calcutta, his family continued living in the premises in question. He also examined his brother Shri P. K. Bhatnagar in support of his contention that during the aforesaid period the family of the appellant continued to live in the premises in question and they never stayed at 61A, Banarsi Dass Estate, except for a day or so.
(15) The entire evidence on the record has been appraised by the learned Tribunal and he came to the conclusion that the non-consumption of electricity during the relevant period certainly gives some inkling that the appellant was not residing in the property in question and even the members of his family were not living there. He further remarked that there was nothing on the record to show that the meter had been tampered with or that there was any leakage. However, he noticed that there was consumption of electricity to the extent of six units during that period. No, he concluded that : "MAY be that I the appellant or any member of his family came to reside in the property for a single day but that would be enough to defeat the ground of eviction."
(16) He was also of the view that no adverse inference could be drawn against the appellant from the fact that in the register of the Chartered Accountants' Association the address of the appellant had been given as of Banarsi Dass Estate because no such register was placed on the record and no judicial notice of this fact could be taken.
(17) Silting in second appeal I am not called upon to reappraise the entire evidence on record. However, I am constrained to say that the conclusion arrived at by the learned Tribunal that the consumption of six electric units during he said period may be on account of visit of the appellant or any member of his family for a day or so is based on. pure conjecture and surmise. It was neither the case of the appellant nor is there an iota of evidence on record to suggest that either the appellant or any member of his family went to reside in the premises in question for a day or so during the period of six months immediately preceding the institution of the eviction petition. As observed by Falshaw, C.J., in Smt. Shakuntia Bawa v. Ram Parshad and others, (1963)65 Plr 103(7) "I find it difficult to understand what sort of occupation of a house there can be when not even a light is switched on over a period of several months, and in arriving at ."
His Lordship further observed that 'occupation' means occupation in the sense of actual user. This view was echoed by D. K. Mahajan, J. in Kimti Lal v. Seth Nanak Chand, (1967) 69 Plr 799(8), the following the observations of the learned Chief Justice, held that; the word "occupation" connotes occupation in the senses of actual user. I am in respectful agreement with this view.
(18) Obviously this aspect of the matter has been lost sight of by the learned Tribunal. It is true that non-consumption of electricity by a tenant over a long period may not in itself be sufficient to warrant an inference of non-residence by the tenant but it is certainly an important piece of corroborative evidence and it tilts the balance in favor ui the respondent landlady when the entire evidence is evaluated on the touch stone of preponderance of probabilities. No doubt, the daughters of the appellant who were studying at Delhi continued attending their school, viz. Presentation Convent, as would appear from the testimony of RW3 but that would not countenance the further conclusion that they were actually living in the premises in question. Being fully conscious of this lacuna the appellant examined one Roshan Lal, who was then residing in 32-E, Kamla Nagar, as RW2. He deposed that he used to see the daughters of the appellant boarding the school bus from the same bus stop from where his daughters used to catch the bus. However, the said evidence fails to carry conviction when it is seen that he did not even know that the appellant was out of Delhi for such a long period. It is indeed not comprehensible that there would have been virtually no consumption of electricity during the whole period of about a year and a half had the family of the appellant been actually residing in the house in question. They would have surely paid electricity bills/charges to the landlady. But hone has come forward to depose to this fact. Perhaps the wife of the appellant would have been the best witness to throw light on all these facts which were within her special knowledge but for reasons best known to the appellant, she has not been examined. It is settled law that although the initial burden lies upon the landlord to establish that the condition stipulated in clauses (a) to (1) of the proviso to Section 14(1) exist, the onus of proof keeps on shifting in the sense that it there are circumstances which would prima facie make the existence of the conditions envisaged in the relevant clause i.e. clause (d) in the instant case, probable it would be for the opposite side to prove facts which are within their special knowledge. Hence, it was incumbent upon the appellant to produce the best evidence on this aspect of the matter. So taking into account all the material on the record, I hold that the learned Rent Control Tribunal slipped into a grave error in coming, to the conclusion that the appellant or any member of his family may have resided in the house for a day or so on mere surmise and conjecture. The landlord would, therefore, be entitled to an order of eviction under. clause (d) of the proviso to Section 14(1) too, (19) As for eviction on the ground covered by clause (h) by the proviso to Section 14(1) is concerned, there is a concurrent finding of both the courts below that the said ground is not available to the respondent-landlady because of the will dated 27th March 1972 left behind by, the deceased father of the appellant under which house No. 61A, Banarsi Dass .Estate, was bequeathed to the mother of the appellant for her life time and the appellant was entitled to get his portion of the said house only on her death. The said will has been proved by one of the attesting witnesses Shri K. A. Bhatnagar (RW4) who deposed in unequivocal terms that the said will was signed by the testator in his presence and he too appended his signatures at the same time. During cross-examination it was elicited from him that Brij Behari Lal Bhatnagar and one Dr. Sengupta were also present at that time. Further, according to him, the testator was in complete senses and was not ailing at the time of the execution of the will. The learned counsel for the respondent-landlady has canvassed with considerable vigour that the proof of attestation of the will by only one witness would not satisfy the statutory requirement of attestation of a will and so long as it is not proved that the document was attested by two attesting witnesses it cannot have the legal sanctity of a will. So even though it is not necessary to have more than one witness to prove the will in view of Section 68 of the Evidence Act it was necessary for the appellant who was propounding the will and claiming there under to prove due execution of the will as required under Section 63(c) of the Indian Succession Act. Reliance in this context is placed on T. Venkat Sitaram Rao and another v. T. Kamakshiamma and others, Air 1978 Orissa 145.(9) (20) It is true that RW4 has not in terms stated that the other attesting witnesses signed the will in his presence at the same time but from the very fact that the second attesting witness B.B.L. Bhatnagar was present at the time when the appellant attested the will, it can be well inferred that the second attesting witness must have appended his signatures at the same time. Further the will bears a certificate by Dr. Sengupta about the state of health of the testator. So the very fact that the said doctor was present at the time of the execution of the will would countenance the case of the appellant that the will was duly executed by his father. Moreover, it has to be borne in mind that the persons who are really affected by the will which tends to divert the natural course of succession. have accepted the will. This is obvious from the statement of RW6 who is a brother of the appellant. That apart, the will is a registered document. Hence, the will cannot be thrown over-board merely on hyper-technical grounds. Under the circumstances, a cannot b& said that the appealed has acquired vacant possession of any other residential accommodation at present. Hence, I endorse the finding of the courts below on this point.
(21) To sum. up, therefore, this appeal tails being totally devoid of any merit. However, cross-objections filed by the respondent-landlady succeed in part to the extent that she is entitled to an order of eviction even on the ground covered by clause (d) of the proviso to Section 14(1). Hence, I order accordingly. The cross-objection with regard to the ground tailing under clause (h), however, is dismissed as being without any substance. Keeping in view, the tact that there is acute shortage of residential accommodation in this metropolis and the appellant may take some time in finding out alternative suitable residence for himself and members of his 'family, I allow three months to the appellant to surrender peaceful and vacant possession of the premises in question to the respondent-landlady failing which she can obtain possession of the premises in question through Court. Under the circumstances, no order is made as to costs.
(22) The second appeal S.A.O. No. 303/80 for restitution of bath and lavatory too is liable to be dismissed in view of the foregoing decision. It is dismissed accordingly.