M. N. Shukla, J. - (1.)SMT. Tarawati, the landlady, has filed this writ petition under Article 226 of the Constitution challenging the order dated 21-5-1974 passed by the Appellate Authority under Section 22 of the U. P. Urban Buildings (Regulation of Letting and Eviction) Act, 1972 (hereinafter referred to as the Act) allowing the tenant's appeal and rejecting the application for release made by the landlady under Section 21 of the Act.
(2.)THE petitioner is the owner and landlady of house No. 105/262, Gandhi Chowk, Kanpur. THE opposite party No. 1 is a tenant in a portion of the said house on a monthly rent of Rs. 90/-. THE petitioner applied for, release of the accommodation in the tenancy of the opposite party No. 1 on the allegations that her family consisted of herself, her daughter, namely Smt. Prem Lata, her son-in-law Sri Shiva Nand Agnihotri, her grand daughter and her grand sons, besides a maid servant. It was alleged that Smt. Prem Lata was residing with her mother even after her marriage. She was the Principal of Guru Nanak Inter College, Kanpur and her husband was a Supervisor in the Inspectorate of Central Store, Kanpur. THE grand daughter was said to be a student of M.B.B.S. (V year). One grand son was a student of III year of the Indian Institute of Technology, Kanpur while another grand-son was a student of the I year in the said Institute. THE petitioner claimed to have opened a Nursery School in the adjoining premises No. 105/263, the owner of which was pressing her to vacate the same. THE benefit of Explanation 4 to Section 21 of the Act was also claimed by the landlady on the ground that the accommodation occupied by the opposite party No. 1 was separated from the remaining accommodation in the house by a mere wall and the two portions were connected with each other "and some portions were actually in common use of the landlady and the tenant.
The opposite party No. 1 contested the petition, inter alia, on the grounds that the application was not bona fide, that it was merely a counter blast to a suit under Section 5 (4) of the U. P. Act III of 1947 filed by the tenant which was pending and which fact had been concealed. It was denied that the petitioner's daughter, son-in-law and their children constituted the petitioner's family. The petitioner's alleged need for additional accommodation was also denied. As regards Explanation 4 to Section 21 it was stated that there was a dividing wall between the tenant's portion and that of the landlady and the two portions were distinct and independent of each other and hence the provisions of Explanation 4 to Section 21 were not attracted.

The Prescribed Authority by its order dated 22-1-1973 allowed the release application on the sole basis that the case would be governed by Explanation 4 to Section 21. It recorded a clear finding that the petitioner's family according to the definition of the term contained in the Act consisted of herself alone and the accommodation already occupied by her in the building in dispute was sufficient for her requirements and the accommodation in dispute was not bona fide needed by her. The learned III Additional District Judge, Kanpur set aside the order of the Prescribed Authority and dismissed the application for release. He confirmed the finding of the Prescribed Authority to the effect that the landlady's need was not bona fide. He reversed the finding of the Prescribed Authority on the applicability of Explanation 4 to Sec. 21 and held that it was not applicable to the facts of the present case as the two portions of the accommodation occupied by the landlady and the tenant respectively were quite independent of each other and no portion of the accommodation was in common use of the parties. It agreed with the view of the Prescribed Authority that the (landlady's family consisted of her self only and her daughter, son-in-law and her children could not be taken into account for the purposes of determining her family. On these findings the release application was dismissed.

(3.)AT the very outset I may point out that the finding of the Appellate Authority that the two :portions of the house are distinct and separate from each other so as to make Explanation 4 to Section 21 inapplicable is well founded and cannot be disturbed. On the question of the alleged need of the landlady the categorical finding of the Appellate Authority is that she is already in occupation of five rooms and a store besides two verandahs and a gallery which is quite sufficient for her requirements and therofore her claim for additional accommodation which is in occupation of the opposite party No. 1 is not genuine. In my opinion this finding alone is sufficient to disentitle the landlady to a release order in her favour under Section 21(1) (c) of the Act.
Sri K. M. Dayal appearing for the petitioner strongly urged that the landlady's family in the instant case must be deemed to include her daughter, son-in-law and their children. He placed strong reliance on a gift deed executed by the petitioner's husband, Sri Narbada Prasad on 4-9-1944 in favour of his wife Smt. Tarawati (petitioner). My attention was specifically drawn to the crucial paragraph in the gift deed which reads as under : "That in consideration of natural love and affection of the donor for the donee and as provision for the donee after donor's death the donor does hereby freely and voluntarily and without any valuable consideration transfer to the donee free from encumbrance the house described above to hold the same to the use of the donee, her heirs, executors, administrators or assignees absolutely for ever. The donee hereby accepts the said transfer and affixes her signature in token of such acceptance." It was submitted that this was a conditional gift deed in the sense that there was an obligation attached to the gift and such obligation was permissible under the provisions of Section 127 of the Transfer of Property Act. In my opinion that section has no application to the facts of the present case. Section 127 of the Transfer of Property Act deals with onerous gifts which take place by transfer to the same person of several things of which one is, and the others are not, burdened by an obligation. In these circumstances it is provided that the donee can take nothing by gift unless he accepts it fully. In the instant case the gift does not purport to transfer anything except one piece of property, namely, the house in dispute. Moreover, it is not correct to suggest that there is any obligation attached to the gift. In other words, it does not cast any obligation on the donee. The words "to hold the same to the use of the donee, her heirs, executors, administrators or assignees absolutely for ever" cannot be construed as conferring any simultaneous interest in the heirs, executors etc. with respect to the use or occupation of the gifted property. They are merely conventional terminology used in documents evidencing transaction of gift. The effect of the said gift deed was to confer absolute title on the donee, namely Smt. Tarawati and the rights to her heirs etc. would arise only on her death and not in her life time.