JUDGMENT S.U. Khan, J.
1. Mohd. Idris landlord respondent No. 2 filed release application under Section 16 (1) (b) of U.P. Rent Regulation Act (U.P. Act No. 13 of 1972) in respect of house No. 184C Chandari, Kanpur. In the release application it was stated that Shamim Hussain (or Shamim Ahmad), the tenant had illegally handed over the possession of the tenanted property in dispute to Javed Ashrad hence it was vacant under Section 12(1)(b) of the Act and that landlord Mohd. Idris required said house bona fidely for his personal use. Petitioner Smt. Shabana is wife of Jafar or (Zafar) Ahmad who is real brother of Javed Ashraf.
2. During the proceedings it was further stated on behalf of landlord-respondent No. 2 that Smt. Shabana the petitioner was residing in another house of the same locality bearing No. 188. She is daughter of Shamim Husain.
3. It is not disputed that initially Abid Hussain grandfather of Smt. Shabana, i.e., father of Shri Shamim Ahmad was tenant of the house in dispute.
4. Petitioner contested the proceedings and contended that she was residing along with her grant-father the tenant hence after his death she became the tenant and she was residing in the house in dispute.
5. R.C. and E.O./Additional City Magistrate (VI), Kanpur, before whom the case was registered as Case No. 38 of 1995, Mohd. Idris v. Javed Ahmad, through order dated 6.4.1996, declared the vacancy of the house in dispute. The said order is under challenge in this writ petition.
6. Under Muslim Law granddaughter of a person is not his heir if at the time of his death, his son, i.e., the father of the granddaughter is alive.
7. In case the petitioner had taken up the case that after the death of her grand-father, her father Shri Shamim Ahmad became tenant of the house in dispute and she was residing in the house in dispute as family member of Shamim Ahmad then there would not have been any vacancy even if it was found that Shamim Ahmad had completely withdrawn his possession from the house in dispute. However, the petitioner in her affidavit filed before R.C. and E.O., copy of which is Annexure-3 to the writ petition specifically took a diametrically opposite case. In paragraphs 6, 7, 8 and 9 particularly paragraph 9 of the said affidavit she very categorically stated that since before the death of her grandfather, i.e., Abid Hussain, her father, i.e., Shamim Ahmad was residing at Bombay and he never came back to Kanpur to reside in the house in dispute. In para 6 it was stated that the father of the deponent was residing at Bombay for 30 years and was employed in Indian Railways on permanent basis and it was impossible for him to become tenant of the house in dispute and thereafter leave the said house as he performed his duties without even a short break at Bombay. It was further stated in said paragraph that Abid Hussain grandfather of the deponent was tenant of the house in dispute and deponent was residing with her grand-father hence after his death she became valid tenant of the house in dispute. Para 9 of the affidavit is translated below :
That as Shamim Hussain neither ever resided in the house in dispute nor he was ever tenant thereof nor he ever gave possession of the said house to any other person.
8. After this clear admission of the petitioner there remains no doubt that the house was rightly deemed to be vacant by R.C. and E. O.
9. Absolutely no fault can be found with the residence of the petitioner in the house in dispute along with her grandfather who was the tenant as every tenant is fully authorized to keep with himself such of his relations which may not be his family members. However, after the death of the tenant, tenancy devolves only on such heirs who normally resided with him. Any other relation who may be legally entitled to reside with the tenant in the tenanted house during the life time of the tenant does not become tenant after the death of the original tenant unless he or she is tenant's legal heir also. Supreme Court in Ganesh Trivedi v. Sundar Devi , held that real brother was not included in the definition of family as provided under Section 3 (g) of U.P. Act No. 13 of 1972 however, he could very well reside with his brother tenant in the tenanted accommodation. It has further been held in the said authority that in case such brother is heir of the tenant then after the death of the tenant he becomes tenant by virtue of the definition of the tenant given under Section 3(a) of the Act. In the instant case, petitioner not being the heir of original tenant, she could therefore reside along with tenant during his life time but she did not become tenant after the. death of the original tenant Abid Hussain, petitioner's grandfather.
10. As the averments made by the petitioner herself in her affidavit completely prove vacancy hence no fault can be found with the order passed by the R.C. and E.O. The said affidavit is like a 'self goal'.
11. Accordingly, there is no merit in the writ petition hence it is dismissed.
12. Tenant-petitioner is granted six months time to vacate provided that within one month from today she files an undertaking before R.C. and E.O. that on or before the expiry of six months she will willingly vacate and handover possession of the property in dispute to the landlord-respondent No. 2.