RAJASTHAN HIGH COURT

                                          Motilal Pannalal

                                                  Vs.

                                           Kailash Narain

Second Appeal No. 47 of 1957, Decided on 29-10-1959 from decree of Addl. Dist. J.,
                                                Bhilsa

                                (A.H. Khan and Shiv Dayal, JJ.)
                                      20.02.1957. 29.10.1959
                                            JUDGMENT

A.H. Khan J.

1. The only question involved in this second appeal is whether a decree passed in
favor of the plaintiff on the ground of personal necessity under section 4(g) of the M.
B. Control of Accommodation Act No. 23 of 1955 must be set aside if the plaintiff
dies during the pendency of the appeal from that decree.

2. The respondent's father Banwarilal instituted this suit against Motilal appellant on
the ground that he required that house for himself because he wanted to shift from his
village Barkheda to Biaora, where the disputed house is situated. It was also alleged in
the suit that the portion A, B, C, D of the house was actually let out to the defendant
while he took wrongful possession of the other portion E, F, G, H. The suit was
resisted by the defendant but he has been unsuccessful in both the Courts below.

3. In this second appeal the learned counsel for the defendant contends that the
personal requirement must continue upto the date of the judgment in the final Court of
appeal, otherwise no decree can be passed for eviction of the tenant and, if one is
already passed by the lower Court, it must be set aside by the superior Court. On this
argument it is urged by Sri Gupta that because of Banwarilal's death during the
pendency of the appeal, the decree should have been set aside by the first appellate
Court. The learned counsel relies on the decision reported in Savitridevi v. Ramsarup1
. I am of the opinion that this argument ignores the fact that the expression 'personal
requirement' in Section 4(g) of the Act must be construed to mean the requirement of
the accommodation for his own body as also his wife and dependant children, because
they cannot be separated from him so far as the question of residence is concerned. I
am, therefore, clearly of the opinion that the requirement for his own residence cannot
be construed so narrowly as to confine the requirement for the person of the single
individual, namely, the landlord alone. I am supported in my view by the decision in
Smith v. Penny, 2 where it is laid down :

       "The words "for himself" in the Rent and Mortgage Interest Restrictions
       (Amendment) Act, 1933, Schedule I, (h)(i), should not be strictly interpreted as
       meaning occupation for residence by the landlord personally, but should be
       interpreted as covering the case of his wanting the house as a family home,
       whether he intends to live in it himself or is unable to do so for some special
       reason."

If Banwarilal wanted to shift from Barkheda to Biora it necessarily implied that his
house at Biaora was required for himself, his minor son Kailash Narain (respondent in
this Court) and his wife Bhavari Bai, guardian of the minor. The decree passed by the
trial Judge in favor of the landlord Banwarilal cannot be set aside on the ground that
he has died. The decree enures to the benefit of his son and widow.

4. The next contention is that no decree can be passed in this suit for the portion E F G
H because the plaintiff complained in the suit wrongful occupation of that portion.
Since the defendant contested that part of the suit on the ground that the said portion
was also rented to him along with the other portion A B C D and the trial Judge found
in his favor, the contention is now untenable. It is then urged that the notice for
eviction was not according to law. The argument is that under section 106 T. P. Act the
notice must be so served that it should not be for one day more nor one day less than
15 days prior to the commencement of the next month of tenancy. In my opinion this
argument is to be mentioned only to be rejected. It is uncontested that the notice was
served on May 11, 53 determining the tenancy on May 30, 1953 and the next month of
tenancy was to commence on June 1, 1953. It is undoubted law that if a notice gives at
least 15 days to the tenant and if it expires with the end of the month of tenancy it is a
good notice to determine the lease. The period should not be less than 15 days but
there is no outside limit; the notice can be given several months before the date on
which the landlord desires to determine the lease.

5. It is lastly urged that the plaintiff's requirement was not proved to be genuine. That
is a question of fact and concurrent findings of the Courts below cannot be disturbed
in second appeal.
6. For these reasons the appeal is dismissed with costs.

Appeal dismissed.

Cases Referred.

1. MBLJ 1954 HCR 1719
2. (1946) 2 All England Reporter 672