Bombay High Court
Teena Hoshang Jilla @ (Teena Mohammed ... vs Jayshree Shah on 14 September, 2021
Author: G. S. Patel
Bench: G.S. Patel
37-IAL-15230-2021 IN SL-15227-2021.DOC
Arun
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO. 15230 OF 2021
IN
SUIT (L) NO. 15227 OF 2021
Teena Hoshang Jilla Alias Teena Mohammed ...Plaintiff
Roshan
Versus
Jayshree Shah ...Defendant
Mr Pradeep Thorat, with Ms Aditi Naikare, for the Applicant/
Plaintiff.
Mr NP Wagle, for the Defendant.
CORAM: G.S. PATEL, J
DATED: 14th September 2021
PC:-
1.This is an application for interim relief in a trespass action in regard to Room No. 13, first floor, Sonawala Building, Marwadi Chawl, Tardeo, Mumbai 400 007.
2. On 27th July 2021 I passed an ad-interim order which reads thus:
Digitally signed by ARUN RAMCHNDRA "1. The dispute is in regard to Room No.13 on the first ARUN RAMCHNDRA SANKPAL SANKPAL Date: floor, Sonawala Building, Marwadi Chawl, Tardeo, Mumbai 2021.09.15 10:16:26 +0530 400 007. I am not concerned with the exact sq ft area of the Page 1 of 10 14th September 2021 37-IAL-15230-2021 IN SL-15227-2021.DOC premises. The Plaint says that one Dorabji Siganporia was the tenant of a corporate entity, Tardeo Properties Private Limited which was the owner of the building. Tardeo Properties has been a litigant in this Court in several matters before, some of them relating to Sonawala Building.
Dorabji died and was survived by his widow, Almai, and their two daughters Mani and Raty. Raty was married to one Peshotan Chaina. They had a daughter named Roshan. She married one Hoshang Jilla. Roshan and Hoshang had two daughters, Peenaz and Teena. The latter, Teena, is the present Plaintiff.
2. Mani (the Plaintiff's grandaunt) died unmarried and without lineal descendants.
3. It seems that after Dorabji's death, Tardeo Properties or its predecessor-in-title transferred the rent receipt to the name of his widow, Almai. On her death it was transferred to the name of the unmarried daughter Mani. After Mani's death, Tardeo Properties has not issued rent receipts after the year 2013. The Plaint proceeds on this basis and then goes on to say that other utilities such as telephone and electricity bills are also in Mani's name. Teena says that she and her sister, Peenaz were looking after Mani. They appointed the Defendant, Jayshree, as a caretaker to look after Mani from 2008 to 2016. Jayshree lived nearby and needed work. She provided care for Mani and also cooked at the residence. Jayshree then left the services of Mani and thereafter a neighbour, Tehmi Gandhi, looked after Mani until the end of her days. Teena says that she and her husband took care of Mani's medical needs. In May 2021 Mani suffered a fall. She fractured her hip joint. She was hospitalized. Ultimately she passed away were recently on 27th June 2021.
4. In paragraph 8, Teena says that after Mani died she and her sister, Peenaz visited Room No. 13 to prepare for Page 2 of 10 14th September 2021 37-IAL-15230-2021 IN SL-15227-2021.DOC Mani's last rites. She requested her driver to lock Room No.13. He did so and this was in the presence of the neighbour Tehmi Gandhi. On 28th June 2021, according to Teena, she was told by Tehmi that Jayshree and her nephew, Kaushil Deepak Shah, had broken open the lock on Room No.13 and forcible entered the flat. On making enquiries, Jayshree claimed that she was the "owner" of Room No.13. She demanded a large sum to vacate the premises. Teena says that Jayshree did not permit her to remove Mani's personal belongings. All attempts to reason with Jayshree fails. Teena filed an FIR on 3rd July 2021 with the Tardeo Police Station.
5. The case is that Jayshree has no right whatsoever in respect of this flat.
6. Mr Wagle appears for Jayshree on notice. His instructions are to state that one of Jayshree's ancestors, one Hansraj H Shah, was a "joint tenant" with Mani in respect of Room No.13. Prima facie, that seems inconceivable for Mani had other family. But Mr Wagle's states that he has documents to show this and requests time to file an Affidavit in Reply bringing this material on record. He also says that there are no belongings of Mani in the flat and that Teena's sister, Peenaz has taken away everything that belong to Mani.
7. While I will give Mr Wagle time to file a Reply, evidently the property needs to be preserved and protected from further alienation, claims or complications. Neither party is prejudiced if the property itself is protected. I am not disturbing anyone's possession. The Court Receiver will stand appointed of Room No.13 on the first floor of Sonawala building, Marwadi Chawl, Tardeo, Mumbai 400 007 with immediate effect. He is take symbolic possession. He is to make a report as to who is found in possession. The person in possession will be required by virtue of this order Page 3 of 10 14th September 2021 37-IAL-15230-2021 IN SL-15227-2021.DOC to produce before the Court Receiver all documents showing the entitlement of that person to be in possession.
8. As to the belongings, the Court Receiver will while taking symbolic possession allow representatives of both sides to remain present. The Plaintiff will be asked to identify any personal items of Mani Siganporia. If there are any disputed items, the Court Receiver will have these placed in a secure cupboard or closet which the Court Receiver will lock and seal, and which neither party will open without leave of this Court. If there any items that are without controversy identified as belonging to Mani, then Teena or her sister, Peenaz, will be entitled to remove them and the Defendant, Jayshree is not to obstruct. I am making it clear that I will not permit any person other than Jayshree to claim rights in respect of Room No.13. It makes no difference how Jayshree says that she has reentered or entered Room No.13 or whether she claims she was always there. Jayshree herself through her Advocate makes no case that other than her anyone else has a right in respect of the room.
9. This order is without prejudice to the rival rights and contentions. All contentions on behalf of Jayshree are kept open.
10. Mr Wagle says "other heirs" of Hansraj "come and go". Today there are no particulars of these persons, or their connection to Jayshree. If any "heirs" of Hansraj Shah have any claim, they are at liberty to make an appropriate application before this Court. They cannot simply claim those rights by force.
11. The Affidavit in Reply is to be filed and served on or before 17th August 2021.
12. All further and future filings will conform to the Full Court decision of 16th June 2021, now notified by the Government on 14th July 2021: they are to be on good Page 4 of 10 14th September 2021 37-IAL-15230-2021 IN SL-15227-2021.DOC quality A4 white paper of 75 GSM with an inner margin of 5 cm, an outer margin of 3 cm, in Times New Roman or Georgia font, with a font-size not less than 14 point. The margin and font specifications do not apply to facsimile reproductions of annexures (i.e. similar to photocopies), but all annexures must also be on white A4 paper.
13. List the matter on 23rd August 2021.
14. This order will be digitally signed by the Personal Assistant of this Court. All concerned will act on production of a digitally signed copy of this order."
3. On 23rd August 2021, I noted that the Receiver had taken symbolic possession. The Receiver's Report was taken on record and noted.
4. There is now an Affidavit in Reply filed by the Defendant. I have heard both sides. Mr Wagle on behalf of the Defendant draws my attention to the documents annexed to the Affidavit in Reply. The first of these is an Aadhar card in the Defendant's name at this address. Then there are other government documents at page 35 including an electoral card, a senior citizen card etc. There is also a ration card. The passport at page 42 also shows this address. It appears that the Defendant had various banking and investment transactions as also certain insurance including Mediclaim. All these documents show the address of the Defendant in this room.
5. But the document on which Mr Wagle most heavily relies is a set of rent receipts at pages 59, 60 and 61. These are issued by the landlord, Tardeo Properties Private Limited. They show the rent receipt in the name of Smt Mani Dorabji and Shri Hansraj H Shah.
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6. Mr Wagle submits that the Defendant, Jayshree was "like a sister" to Hansraj Shah and possibly to both Mani and Hansraj. But that is not the ambit of the Maharashtra Rent Control Act. Section 7(15)(d)(i) of the Act does not speak of people who are protected because they are "like a" family member of the deceased tenant. A person who seeks that a tenancy be protected must be an actual member of the tenant's family. There is no fiction that is permitted in this behalf.
7. Prima facie, therefore, Jayshree's claims to a tenancy title which is what was expressly argued and is pleaded, i.e. of a joint tenancy, is not tenable.
8. In paragraph 26 of the Affidavit in Reply, Jayshree says that she was residing in the suit premises "as a sister of both the deceased". This is clearly incorrect and cannot be correct.
9. She then claims that both Mani and Hansraj made testamentary documents saying that Jayshree should be allowed to use the premises for her lifetime. Such testamentary dispositions obviously cannot apply to tenanted premises.
10. This leaves the question of a consideration of the other documents that Jayshree has annexed to her Affidavit in Reply, and to which I briefly referred earlier. These are independent of any claim of tenancy. They are used by Jayshree to set up her defence that she is not a trespasser in the premises. In other words, she contends that her initial entry was indeed juridical, i.e. such as the Page 6 of 10 14th September 2021 37-IAL-15230-2021 IN SL-15227-2021.DOC law recognizes. She says that her use and occupation of the premises was permitted by both Mani and Hansraj in their lifetimes and this is evidenced by the large number of financial and other documents including government-issued documents that stand in her name even today and which show the address in question.
11. The averments in the Plaint are that Jayshree was a caretaker or a caregiver for Mani. It is claimed that she left the premises and after Mani's death has re-entered the premises and is therefore a trespasser.
12. Mr Thorat says that this is evidenced by the fact that all the documents that Jayshree has produced are before 2018 and are of the years 2017, 2016 and earlier. Mani herself died on 27th June 2021. It is after that, Mr Thorat asserts, that Jayshree re-entered the flat; and therefore she is a 'trespasser'. It would be difficult to accept this immediately. This is a prima facie view, needless to say. The plaintiff may well have to lead evidence. Until then, the documents produced by Jayshree cannot simply be disregarded or discarded out of hand. There is no question at this prima facie stage of holding that those documents are somehow 'time-barred', that is to say that they are no longer valid. If Mr Thorat's case is that Mani, from whom the Plaintiff claims descent and title, permitted Jayshree to use this address for obtaining these documents and to stay in the flat, then that prima facie cannot sustain a case of trespass at least for the purposes of interim relief. . Further, prima facie, the documents that are annexed, (for example, the Aadhar card, the PANcard, the election card, the driving license, a mediclaim card etc) do not indicate a transitory residence or occupancy.
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13. The reliefs sought in the Interim Application are:
"(a) That pending the hearing and final disposal of the suit, the Court Receiver, High Court, Bombay be appointed as a Receiver under Order 40 Rule 1 of Code of Civil Procedure 1908 in respect of the suit property i.e. Room No. 13, admeasuring about 400 sq. ft. situated on the 1st floor, Sonawala building, Marwadi Chawl, Tardeo, Mumbai 400 007 with further directions to take possession of the suit property;
(b) That pending the hearing and final disposal of the suit, the Defendant, her agents, servants and persons claiming through her be temporarily restrained by an Order of Injunction of this Hon'ble Court from transferring or alienating or creating any third party rights and/or carry out any construction of any nature on the suit property, Room No. 13, admeasuring about 400 sq. ft. situated on the 1st floor, Sonawala building, Marwadi Chawl, Tardeo, Mumbai 400 007;
(c) That pending the hearing and final disposal of the present Suit the Defendants be ordered and directed to hand over to the Plaintiff all the original documents and belongings of Late Ms Mani Dorabji Siganporia which are lying in the suit premises, i.e. Room No. 13, admeasuring about 400 sq. ft. situated on the 1st floor, Sonawala building, Marwadi Chawl, Tardeo, Mumbai 400 007;
(d) That pending the hearing and final disposal of the present Suit the Defendants be ordered and directed to deposit in this Hon'ble Court an amount of Rs. 25,000/-
(Rupees Twenty Five Thousand Only) per month towards the interim mesne profits in respect of the suit property."
14. There is no question of evicting Jayshree from the premises summarily. That is not even a relief sought in the Interim Page 8 of 10 14th September 2021 37-IAL-15230-2021 IN SL-15227-2021.DOC Application. A Receiver has already been appointed. The injunction sought in prayer clause (b) must necessarily follow. Even if Jayshree is in the premises, the nature of her right to the premises is yet to be determined. She cannot be permitted to create third party rights or alienate the premises. Mr Wagle readily accepts that this is a reasonable restraint.
15. Prayer clause (c) may not survive in view of the Receiver's Report.
16. As regards the question of mesne profits sought in prayer clause (d), that is undoubtedly a prayer that can be taken up even at the final hearing of the Suit.
17. The Interim Application is thus disposed of with an order in terms of prayer clause (a) and (b).
18. Since there is a Receiver, Jayshree will have to be appointed as an agent of the Receiver. At present this agency will be without a royalty, but Receiver will make a Report as to an appropriate royalty and I will make a separate order on that Receiver's Report after both sides have dealt with that Report and filed their respective Replies.
19. Jayshree will execute the agency agreement by 30th September 2021. The Receiver to place his Report on 11th October 2021.
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20. This is without prejudice to the rights and contentions of the landlord, Tardeo Properties Private Limited which may take all steps both against the Plaintiff and Jayshree.
21. Leave also granted to the landlord, Tardeo Properties to join the Court Receiver in any proceedings the landlord may initiate in the Small Causes Court.
22. This order will be digitally signed by the Private Secretary of this Court. All concerned will act on production of a digitally signed copy of this order.
(G. S. PATEL, J) Page 10 of 10 14th September 2021