Gujarat High Court
Rajendrakumar S Upadhyay Decd Through ... vs Vinodchandra Bachubhai Alias ... on 14 September, 2018
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/CRA/174/2005 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 174 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
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RAJENDRAKUMAR S UPADHYAY DECD THROUGH HEIRS
Versus
VINODCHANDRA BACHUBHAI ALIAS PURSHOTTAMDAS SONI
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Appearance:
(MR SURESHM SHAH)(805) for the PETITIONER(s) No. 1
MR. JENIL SHAH, ADVOCATE FOR MR MEHUL S SHAH(772) for the
PETITIONER(s) No. 1,1.1,1.2
MR SP MAJMUDAR(3456) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 14/09/2018
CAV JUDGMENT
1 This revision application has been filed under Section 29 of the Bombay Rents, Hotel & Lodging House Rates Control Act, 1947, by the original plaintiff. Page 1 of 36 C/CRA/174/2005 CAV JUDGMENT The respondent herein is the original defendant. The applicantplaintiff succeeded before the trial Court by a judgment and order dated 23.10.2001. The learned judge of Small Cause Court, Vadodara, decreed the suit in favour of the applicant directing the defendant to hand over vacant possession. Aggrieved by the order, the defendant approached the District Court at Vadodara. In the appeal so filed, the District Court by its judgment and order dated 07.05.2005, allowed the appeal of the defendant and set aside the judgment and decree passed by the lower Court in rent suit No. 136 of 1989.
2 The facts in brief are as under:
2.1 The applicant was a landlord of the suit property. He had filed the suit to recover possession of the property situated at Vadfadiyu, Ghee Kanta Road, Nr. Raopura Tower, Vadodara. One Purshottamdas Vrajlal Soni, was the tenant of the suit shop at a monthly rent of Rs.27.50/. The said shop was let out by the applicantplaintiff for doing job work of gold. It was the case of the plaintiff that the tenant had no son and was doing his business alone.Page 2 of 36 C/CRA/174/2005 CAV JUDGMENT
The tenant Purshottamdas Soni died on 22.11.1983. The present defendant is a son of the nephew of the deceased tenant, claiming to be a family member carrying out business at the time of the death of the tenant. On the death of the tenant, the plaintiff therefore filed a suit for recovery of possession. The defendant filed Civil Misc. Application No. 167 of 1988 for fixation of standard rent.
2.2 The present respondentdefendant filed his written statement at Exh.7 and opposed the suit. It was his case that he was doing business in the suit premises, and that the plaintiff had accepted the rent in the name of the deceased tenant from him. He denied that he was not the family member of the deceased tenant. It was his case in the written statement that the deceased tenant Purshottamdas Soni had adopted him as his son in the year 1958 and he was looking after the deceased. On 22.11.1983, he was in possession of the suit shop in the capacity as an adopted son. It was his case that since he was a legally adopted son, he acquired the tenancy rights in the suit premises under Section 5(11)(c)(ii) of Page 3 of 36 C/CRA/174/2005 CAV JUDGMENT the Bombay Rents, Hotel & Lodging House Rates Control Act, 1947. He, therefore, prayed that the suit be dismissed. Civil Misc. Application No. 167 of 1988 was filed by the defendant for fixation of standard rent.
2.3 The Trial Court framed issues at Exh.10 in the rent suit. The issue, whether the defendant could prove to be a tenant of the suit premises (and the issue whether the plaintiff could prove that the defendant was not a tenant under Section 5(11)(c)(ii) of the Bombay Rents, Hotel & Lodging House Rates Control Act, 1947) was decided against the defendant. The trial Court examined the plaintiff at Exh.15 and the defendant was examined at Exh.33. The defendant also examined one Shri Natwarlal Fakirchand Khatri at Exh.92. Documentary evidence was produced by the plaintiff at Exh.22, whereas that of the defendant was produced at Exh.30.
3 As is evident from the case narrated herein above, the plaintiff had approached the Court stating that the tenanted premises was rented out to one Shri Page 4 of 36 C/CRA/174/2005 CAV JUDGMENT Purshottamdas Soni. On his death on 22.11.1983, since he had no child and he was doing business alone in the shop and that the present defendant had illegally entered into the shop claiming to be his relative, the plaintiff sought a decree of eviction. It was the case of the defendant that he had tenancy rights under Section 5(11)(c)(ii) of the Bombay Rents, Hotel & Lodging House Rates Control Act, 1947. The plaintiff had evidence to show that in the year 1983 on the death of the tenant he had no heirs. That the present defendant was not a son of the deceased and at the time of the death, he was never doing the business in the suit premises. The defendant deposed at Exh.53 contending that he was the adoptive son, adopted in the year 1958.
4 The question, therefore, that was posed before the trial Court was that whether the defendant respondent herein was a tenant as defined under Section 5(11)(c)(ii) of the Bombay Rents, Hotel & Lodging House Rates Control Act, 1947, and whether he could get the protection of the twin conditions as stipulated under the section i.e. (A) that he was a Page 5 of 36 C/CRA/174/2005 CAV JUDGMENT family member of the tenant and (B) that he was carrying on business in the premises at the time of the death of the tenant. Since the defendant claimed to be a tenant in succession, the burden to prove such a fact was on the defendant. It was his case that his natural father was one Bachubhai i.e. his grandfather was one Vitthalbhai who had a brother, the deceased tenant Purshottamdas Soni. It was his case that he was the adopted son of the deceased tenant. He was legally and validly adopted by the tenant. Therefore, in his evidence at Exh.56 he had stated on oath that he was adopted in the year 1958 at the age of 3 to 4 years.
5 Referring to the provisions of Section 11 of the Hindu Adoption and Maintenance Act, 1955, the trial Court came to the conclusion that except for so stating that he was an adopted son, the defendant did not produce any documentary evidence about adoption ceremony. Though he admitted that he had photographs of the ceremony, he did not produce the same, nor did he give any explanation as to why he could not produce such photographs. The trial Court, therefore, Page 6 of 36 C/CRA/174/2005 CAV JUDGMENT drew adverse inference.
5.1 Natwarlal Fakirchand Khatri, was examined at Exh.92 as the defendant's witness. This witness merely stated that the defendant was an adopted son and that a ceremony was performed. However, he admitted in his crossexamination that he had not remained present in such ceremony and that, therefore, he had no personal knowledge about it. The trial Court, further, observed that though the defendant's real mother Vimlaben, his brother Dinesh and his sister Meenaben are alive, he did not choose to examine them as witnesses to establish that he was adopted by the deceased Purshottamdas Soni. The trial Court, accordingly held that the defendant had miserably failed to prove that the adoption ceremony was performed at the time of adoption. The adoption deed was produced by the defendant at Exh.59. On examination of such deed, the Court found that the deed was not executed and signed by the parents of defendant but just gave him as an adopted son. In accordance with the provisions of law, therefore, in the opinion of the trial Court there was no giving Page 7 of 36 C/CRA/174/2005 CAV JUDGMENT and taking ceremony. The deed showed date of registration as 27.09.1983. Obviously therefore, the trial Court observed that if the deed was executed in the year 1983 i.e. 25 years after the adoption, there was reason to believe that such a deed of adoption was not genuine. In absence of the signature of the persons giving and taking the child, the presumption that the trial Court drew was that there was no adoption. Considering these facts, the trial Court observed that since the defendant had failed to prove that he was legally and validly adopted son of the deceased tenant, he was not entitled to protection under Section 5(11)(c)(ii) of the Bombay Rents, Hotel & Lodging House Rates Control Act, 1947. 5.2 An alternative case was pleaded by the defendant that he was doing business in the premises at the time of death of the tenant. To prove this fact, he tried to show that he was residing with him and with a view to substantiate this circumstance,he suggested that he was doing job work of gold since 1975 with the deceased tenant. At Exh.23 was produced a certificate of the Bombay Shops & Establishment Act. Page 8 of 36 C/CRA/174/2005 CAV JUDGMENT The trial Court on examination of this certificate found that the name of the deceased tenant Purshottamdas Soni was deleted and that of the present defendant was inserted only on 28.11.1986 i.e. three years after the death of the tenant. The certificate had no name or the photograph of the family members in the columns so mentioned. The fact that the name of the present defendant was inserted in the year 1986 weighed with the trial Court in holding that the defendant was not doing the job work of gold in the disputed premises at the time of death but after the death of the tenant.
6 It was the case of the defendant that he used to sit in the premises and do the job work with the deceased tenant. Registration certificate of the year 1964 was produced as stated herein above. The defendant, further, pleaded that during the life time of the deceased tenant, the present plaintiff used to accept the rent from the present defendant on behalf of the deceased tenant. Rent receipts were produced from Exhs. 39 to 50. The trial Court has observed that, even if it is so accepted, it cannot Page 9 of 36 C/CRA/174/2005 CAV JUDGMENT be said that the present defendant was doing business as a tenant in the premises, because merely making payment of rent on behalf of the deceased tenant would not make him a tenant. The trial Court observed that considering all these facts, the defendant not being an adopted son, could not claim protection under section 5(11)(c)(ii) of the Bombay Rents, Hotel & Lodging House Rates Control Act, 1947, and accordingly decreed the suit in favour of the plaintiff, the applicant herein.
7 Aggrieved by this judgment and decree, the defendantrespondent herein preferred Regular Civil Appeal No. 282 of 2001 in the Court of the Joint District Judge at Vadodara. Interestingly, as is evident from perusal of the judgment rendered by the Appellate Court in favour of the defendantrespondent herein, the Appellate Court on consideration of the case law, affirmed the findings of the trial Court by holding that the claim of the present defendant who was claiming to be so adopted was not proved. On appreciation of the evidence, the Appellate Court came to the conclusion as under:
Page 10 of 36 C/CRA/174/2005 CAV JUDGMENT
"xxx xxxxx xxxxx.
The lower Court has discuss this issue at length, therefore, I have not discuss this issue, but looking to the evidence of the defendant Vinodchandra there is no any documentary evidence regarding the adoption ceremony and registered documents Exh.59 was executed between the defendant (adoption son) and adopted father not by the natural father or mother of the defendant, therefore, defendant is unable to prove the legal and valid adoption." 7.1 In other words, the Appellate Court affirmed the findings of the trial Court that the respondent defendant herein had failed to prove that he was an adopted son, and therefore, not a member of the tenant's family.
8 An alternative submission was made by the defendant for the first time before the Appellate Court that, though he had failed to prove to be a legally adopted son, he was entitled to claim a tenancy right, as he was living with the original tenant as a family member and doing business with the deceased tenant. In support of this, the Appellate Court considered the evidence holding that the marriage of the defendant was held at Vadodara, where the deceased tenant was staying and that the place of birth of the daughter on 07.09.1978 was at the same Page 11 of 36 C/CRA/174/2005 CAV JUDGMENT place. A birth certificate of the son was also produced at Exh.60 dated 19.05.1981 showing the place of birth of the daughter and the son at the place of the deceased tenant, and therefore, it was the case projected by the appellant that he was living with the deceased tenant even before the tenant died on 22.11.1983. The Appellate Court observed that the fact that the address of the defendant and the original tenant was the same, and that therefore there is a reason to believe that he was residing with the original tenant up to death of the original tenant.
9 On the second limb that the defendant was also doing the business with the deceased tenant at the time of death of the tenant, the Appellate Court observed that since the defendant was residing on first floor of the same building since 1977 and was doing job work since 1975, the trial Court ought to have considered him as doing business at the time of the death of the tenant by virtue of certificate of registration at Exh.62. The Appellate Court also relied on the admission of the plaintiff's deposition Page 12 of 36 C/CRA/174/2005 CAV JUDGMENT by which it was contended that he had admitted that the defendant was doing the business in the suit shop in the month of October,1985 and that he had accepted rent by virtue of the rent receipts. Based on this evidence, the Appellate Court held that there was clear evidence that the defendant was doing business at the time of the death of the tenant with the tenant.
10 The Appellate Court observed that it cannot be said that the defendant was a stranger because he was the son of the nephew of the original tenant and was therefore a blood relative and therefore a family member of the deceased tenant. Being a son of the nephew of the deceased tenant, in the opinion of the Appellate Court, the trial Court committed an error in not considering the defendant as a tenant under Section 5(11)(c)(ii) of the Bombay Rents, Hotel & Lodging House Rates Control Act, 1947. The Appellate Court, therefore, reversed the judgment of the trial Court and the rent suit of the plaintiff, applicant herein was dismissed.
Page 13 of 36 C/CRA/174/2005 CAV JUDGMENT 11 It is under these circumstances that the applicant herein, original plaintiff, being aggrieved by the order of the Appellate Court reversing the decree which was in his favour is in revision. 12 Mr. Jenil M.Shah, learned advocate has appeared for the applicant. He has contended that the lower Court i.e. the first Court did not commit any error in interpreting the provisions of Section 5(11)(c)
(ii) of the Bombay Rents, Hotel & Lodging House Rates Control Act, 1947. The Appellate Court was erroneous in holding that the defendant had acquired the transmission of the tenancy right of the deceased tenantPurshottamdas Soni.
12.1 Shri Jenil Shah, learned advocate for the applicant, further contended that if the provisions of Section 5(11)(c)(ii) are read, in order to acquire tenancy rights, the incumbent has not only to be a member of the tenant's family, but also must be carrying on the business in the suit premises at the time of death of the tenant. The learned trial Judge, therefore, was correct on appreciation of the Page 14 of 36 C/CRA/174/2005 CAV JUDGMENT evidence on record that neither was the respondent herein a member of the family, nor was he carrying on the business at the time of the tenant's death. In view of a categorical finding of the trial Court that the defendant was not legally adopted and that the name of the defendant was incorporated in the registration certificate three years after death of the tenant, it could be said that these was sufficient proof to hold that the twin requirements of section 5(11)(c)(ii) of the Bombay Rents, Hotel & Lodging House Rates Control Act, 1947, were not satisfied.
12.2 The Appellate Court committed an error of law in, though affirming the finding of the trial Court and holding the adoption as invalid, but then, deciding the question of defendant being "a family member" in his favour though he was the deceased tenant's nephews son. Moreover, it was only on the basis of evidence that the defendant was residing with the deceased tenant. The fact of his carrying on business with deceased tenant at the time of his death, was held in his favour.
Page 15 of 36 C/CRA/174/2005 CAV JUDGMENT 12.3 The Appellate Court failed to appreciate that the tenantdefendant herein had not challenged the finding of the trial Court that he was not a legally adopted son which was against him. Even when the Appellate Court has affirmed such a finding against the respondent which is not under challenge, it is conclusively proved that the respondent is not a family member.
12.4 It was not even the case of the defendant to claim transmission of tenancy on his being the son of of the nephew of the deceased tenant, and therefore, the Appellate Court ventured into deciding the issue which was not even raised for consideration. 13 In support of these submissions, Mr.Shah, learned advocate relied on a decision in the case of Madhuben Natwarlal & Ors. vs. Prajapati Purshottam Tulsidas, reported in 1990 (2) GLR 1177. My attention was drawn to paragraphs 4 and 5 of the judgment where the Court observed that the Rent Act does not provide that the statutory tenancy will be inserted by the heirs of the deceased, but the protection of the Rent Page 16 of 36 C/CRA/174/2005 CAV JUDGMENT Act is granted to a person who is a member of the tenant's family. The Court in that case has observed that the term "family" would not include nephews' of the deceased tenant. He specifically relied on the following observations in the judgment:
" xxx xxxx xxxxx.
It is true that in the said decision the Court has held that a conspectus of the connotation of the term 'family' which emerges from a reference to the dictionaries clearly shows that the word 'family' has to be given not a restricted but a wider meaning so as to include not only the head of the family but all members or descendants from the common ancestors who are actually living with the same head. From this Mr. Bavishi submitted that as the appellants are descendants from the common ancestors, therefore the appellants would be the family members of the deceased Jamnadas. In my view, this contention cannot be accepted. Merely because the word "common ancestors" is used in the said judgment, it would not mean that distant nephews or cousins should be considered as family members. By amending Sec. 5(11)(c) the Legislature stepped in and provided a special mode of succession to the tenancy rights or lease hold rights to the extent of irremovability from possession to those who were in need of it but has limited it to the members of the tenant's family. Normally 'family' includes parents, spouse, brothers, sisters, sons or daughters or in some cases widow of a predeceased son or the issues of the predeceased sons but by no stretch of imagination it can be held that he distant nephews would be the family members howsoever broad meaning is given to the word "family". Hence the contention of the learned Advocate for the appellants cannot be accepted that eh appellants are the family members of the deceased Jamnadas who was a tenant of the suit Page 17 of 36 C/CRA/174/2005 CAV JUDGMENT room"
13.1 He further relied on a decision of the Hon'ble Supreme Court in the case of Jaspal Singh & Anr., vs. Additional District Judge, Bulandshahar., reported in AIR 1984 pg 1880. He drew my attention to the Head Note B of the judgment which says that a nephew cannot be said to be a member of the tenant's family. The relevant paragraph of the said judgment reads as under:
"9 From a survey of these provisions, it will be clear that if a tenant parts with possession of the premises in his possession, the same would be treated as vacant. There are restrictions in the case of a residential building that the tenant will live only with the members of his family and after he was allowed the same to be occupied by any person who is not a member of his family, the tenant shall be deemed to have ceased to occupy the building. In the case of a nonresidential building, when a tenant is carrying on business in the building, admits a person who is not a member of his family as a partner or a new partner, as the case may be, the tenant shall be deemed to have ceased to occupy the building. It a tenant sublets the premises, he is liable to ejectment. Obviously, therefore, there are restrictions placed by the Act on the right of the tenant to transfer or sublet the tenancy rights and he can keep possession of the building or premises for himself and for the purpose of his family, for his business and for the business of his family members. He obviously cannot be allowed to transfer a tenancy right. A fortiori, the Scheme of the Act does not warrant the transfer of the tenancy right to be effective after his lifetime. Thus, the appellant was neither a Page 18 of 36 C/CRA/174/2005 CAV JUDGMENT tenant of the disputed shop nor he was an heir of Naubat Singh, the original tenant. Besides, on a plain reading of the will it is evident in respect of other properties including his business but not in respect of the tenancy rights. The High Court also recorded a finding to the effect that there was no will in respect of the tenancy rights of the disputed shop."
13.2 In short, Shri Shah supported the findings of the first Court which decreed the suit in favour of the applicant.
14 Mr.S.P.Majmudar, appeared for the respondent - defendant. He drew my attention to the judgment of the Appellate Court particularly paragraph 21 thereof and suggested that, though, the respondent may have been unable to prove that he was a legally adopted son, but from the evidence on record it was rightly observed by the Appellate Court that the fact that the marriage of the defendant was held at Vadodara where the deceased tenant was living, and that the daughter and the son of the defendant were born at that place on 07.09.1978 and 19.05.1981 respectively and certificates were produced at Exhs.60 & 61 respectively, the Appellate Court was right in observing that the respondent was living with the deceased tenant up to the death of the tenant on Page 19 of 36 C/CRA/174/2005 CAV JUDGMENT 22.11.1983.
14.1 On the question whether the respondent was carrying on business at the time of the death of the deceased tenant with him, Mr. Majmudar, invited my attention to the observations of the Appellate Court particularly Exh.62 which showed that the shop was registered in the name of the deceased tenant since 1964, that the present respondent was doing job work with him since 1975 and that the plaintiff himself had admitted in his deposition at Exh.15 that the present respondent was doing business in the shop in October, 1985 when he had taken objection to the respondent doing business. That the plaintiff applicant had accepted the rent of the suit shop as is evident from the rent receipts at Exhs.39 to 50. All these circumstances clearly establish that the defendant was doing business with the original tenant and also after the death of such tenant. 14.2 Mr. Majmudar, further invited my attention to paragraph 27 of the judgment of the Appellate Court which considered the fact that the respondent - Page 20 of 36 C/CRA/174/2005 CAV JUDGMENT defendant was not a stranger person, but he was son of the nephew of the original tenant and the trial Court, therefore, had committed an error in not believing the fact that the present respondent was a family member even though he was not a legally adopted son. The Appellate Court, therefore, had not committed any error in construing the provisions of Section 5(11)(c)(ii) of the Bombay Rents, Hotel & Lodging House Rates Control Act, 1947 in his favour. The Appellate Court, therefore, committed no error of jurisdiction and therefore in exercise of powers under Section 29(2) of the Bombay Rents, Hotel & Lodging House Rates Control Act, 1947, the judgment and order of the Appellate Court was not perverse to deserve any interference. According to Mr.Majmudar, merely because the Appellate Court had taken a different view, the judgment of Appellate Court would not become vulnerable.
14.3 In support of this submission, Mr.Majmudar relied on a decision of the Hon'ble Supreme Court in the case of Hindustan Petroleum Corporation vs. Dilbahar Singh., reported in (2014) 9 scc 78. He Page 21 of 36 C/CRA/174/2005 CAV JUDGMENT invited my attention to paragraphs 32 & 33 of the judgment to suggest that when the findings of fact recorded by the subordinate Court is according to law and which is based on some legal evidence, it does not warrant interference.
14.4 Mr.Majmudar, also relied on a decision in the case of Nanumal Rijumal vs. Lilaram Vensimal And Anr., reported in 1977 GLR 858, in support of his submission that the law of inheritance would prevail and that no restrictive meaning to the word tenancy can be given. Tenancy rights speaking loosely devolve not in the strict sense of succession but in the sense of right to occupy and to possess the tenancy right. Therefore, the Appellate Court did not commit any error of law in holding that the present respondent being the son of the nephew of the deceased tenant was a family member. He specifically relied on para 13 of the judgment. Mr. Majmudar, further submitted that considering the overall view of the matter, even if the Appellate Court's view that he was not legally adopted is believed, in view of the undisputed proposition that he was the son of Page 22 of 36 C/CRA/174/2005 CAV JUDGMENT the nephew of the deceased tenant, he was entitled to the protection of the Rent Act being the family member.
14.5 In support of this submission, Mr.Majmudar, also relied on a decision of the Supreme Court in the case of Vasant Pratap Pandit vs. Dr. Anant Trimbak Sabins., reported in (1994) 3 SCC 481. Relevant paragraph of the said judgment reads as under:
"14 From a plaint reading of Section 5(11)(c)
(i) it is obvious that the legislative prescription is first to give protection to members of the family of the tenant residing with him at the time of his death. The basis for such prescription seems to be that when a tenant is in occupation of premises the tenancy is taken by him not only for his own behalf but also for the benefit of the members of the family residing with him. Therefore, when the tenant dies, protection should be extended to the members of the family who were participants in the benefit of the tenancy and for whose needs as well the tenancy was originally taken by the tenant. It is for this avowed object, the legislature has, irrespective of the fact whether such members are 'heirs' in the strict sense of the term or not, given them the first priority to be treated as tenants. It is only when such members of the family are not there, the 'heirs' will be entitled to be treated as tenants as decided, in default of agreement, by the court. In other words, all the heirs are liable to be excluded if any other member of the family was staying with the tenant at the time of his death. When Section 15, which prohibits subletting, assignment or transfer, is read in juxtaposition with Section 5(11)(c)(i) it is Page 23 of 36 C/CRA/174/2005 CAV JUDGMENT patently clear that the legislature intends that in case no member of the family as referred to in the first part of the clause is there the 'heir', who under the ordinary mode of succession would necessarily be a relation of the deceased, should be treated as a tenant of the premises subject, however, to the decision by the Court in default of agreement. The words "as may be decided in default of agreement by the Court" as appearing in Section 5(11)(c)(i) are not without significance. These words in our view have been incorporated to meet a situation where there are more than one heirs. In such an eventuality the landlord may or may not agree to one or the other of them being recognised as a 'tenant'. Therefore, if 'heir' is to include a legatee of the will then the abovequoted words cannot be applied in case of a tenant who leaves behind more than one legatee for in that case the wishes of the testator can get supplanted, on the landlord's unwillingness to respect the same, by the ultimate decision of the Court. In other words, in case of a testamentary disposition, where the wish or will of the deceased has got to be respected a decision by the court will not arise and that would necessarily mean that the words quoted above will be rendered nugatory. What we want to emphasis is it is not the heirship but the nature of claim that is determinative. In our considered view the legislature could not have intended to confer such a right on the testamentary heir. Otherwise, the right of the landlord to recover possession will stand excluded even though the original party(the tenant) with whom the landlord had contracted is dead. Besides, a statutory tenancy is personal to the tenant. In certain contingencies as contemplated in Section 5(11)(c)(i) certain heirs are unable to succeed to such a tenancy.
To this extent, a departure is made from the general law".
14.6 Reliance was also placed on a decision in the case of Hirak Chowdjury vs. Dulal Chowdhury & Ors., Page 24 of 36 C/CRA/174/2005 CAV JUDGMENT of the Kolkata High Court reported in 2001 SCC Online Cal 391, in support of his stand that the son of the nephew of the deceased tenant is a family member.
15 Based on these rival submissions, we have to consider whether the defendantrespondent could claim the benefit of transmission of tenancy right on the basis of he being the son the nephew of the deceased. Before we dwell into the facts of the case, the provisions of the Bombay Rents, Hotel & Lodging House Rates Control Act, 1947 defines the word tenant. The word "tenant" is defined in Section 5 subsection 11 Clause C(ii) of the same, which reads as under:
"in relation to premises let for business, trade or storage, any member of the tenant's family carrying on business, trade or storage with the tenant in the said premises at the time of the death of the tenant as may continue, after his death, to carry on the business, trade or storage as the case may be, in the said premises and as may be decided in default of agreement by the Court"
16 On reading the said section, what becomes evident is that for claiming tenancy in the business premises by succession, not only has one to be a member of the tenant's family, but also run business Page 25 of 36 C/CRA/174/2005 CAV JUDGMENT with the tenant at the time of the death of the tenant and may continue to do so after his death. In other words, the provision is categorically clear that both the conditions i.e. he has to be a member of the family and should be carrying on business at the time of his death in the same premise need to be simultaneously satisfied.
17 It is in the background of this proposition of law, that we need to decide the question raised before this Court. It was the case of the applicant before the trial Court that on the death of the tenant Purshottamdas Soni, in 1983, since he had no son or heir carrying on any business in the premises, the landlord plaintiff was entitled to evacuation of the business premises. The suit was accordingly filed for such eviction. The present respondent who was the defendant filed a written statement before the trial Court claiming the benefit of Section5(11)(c)(ii) of the Rent Act on the ground that he was an adopted son of the deceased tenant Purshottamdas Soni. Since it was he who had come out with such a specific case, the trial Court rightly put the burden to prove this Page 26 of 36 C/CRA/174/2005 CAV JUDGMENT fact on him. Considering the provisions of Section 11 of the Hindu Adoption and Maintenance Act, 1956 and the evidence of the defendant at Exh.56 and that of one Natwarlal Fakirchand Khatri at Exh.92, the trial Court found that except bare recitals in his evidence that he had photographs to prove the adoption, he had not produced any such photograph. In fact, even the adoption deed which was produced on record at Exh.59, the Court rightly found that in the document so executed between the deceased tenant Purshottamdas Soni and the parents of the defendant, there was no signature of the giving parents i.e. the parents of the defendant, and therefore, the mandate of Section 11 of the Hindu Adoption and Maintenance Act, 1956, was not satisfied. There was no giving and receiving ceremony which was undertaken, and therefore, the adoption was held to be invalid. The trial Court did not believe the story that the defendant was an adopted son of the deceased tenant. The trial Court, therefore, held that the defendant could not be held to be a member of the tenant's family in view of the failure to prove his case that he was a legally adopted son. The trial, therefore, held that it can Page 27 of 36 C/CRA/174/2005 CAV JUDGMENT safely be said that there was no adoption deed in eyes of law because the mandatory condition i.e. signing of the adoption deed by the person giving and taking the child in adoption were not satisfied. The contention of the defendantrespondent herein that the term "family" has to be given a wider meaning was in my opinion rightly accepted.
18 I am fortified in taking this view particularly in view of the fact that even in the appeal, at the instance of the respondent herein, the Appellate Court affirmed the findings of the trial Court that the respondentdefendant was not a legally adopted son. Be it noted that, as against this finding, the defendant has not challenged the same by way of revision before this Court, and therefore, the same has to be accepted to have become final and binding. 19 Curiously, though the Appellate Court approved such a finding that the respondent herein was not a legally adopted son, it held that since the respondent was the son of the nephew of the original tenant, he could be described as a family member of Page 28 of 36 C/CRA/174/2005 CAV JUDGMENT the deceased tenantPurshottamdas Soni. From the judgment of the trial Court, it is evident that the issue whether the defendant, respondent herein can claim transmission of tenancy by virtue of being the son of the nephew of the deceased tenant was not at all raised before the Court. It was not the case of the defendant in the written statement so filed that he claimed transmission of tenancy on the basis of he being a nephew of the son of the deceased. The only case pleaded by him to claim protection and transmission of tenancy was that he was a legally adopted son, and therefore, fell within the first condition of Section 5(11)(c)(ii) of the Act, "being members of the tenant's family". Obviously, when both the Courts below held that he was not a legally adopted son, and in absence of the claim of the defendantrespondent of tenancy on the ground of he being a nephew, it was not a matter in issue and therefore the Appellate Court clearly exceeded the jurisdiction vested in it.
20 Even otherwise, as rightly contended by Shri Jenil Shah, learned counsel for the applicant and as Page 29 of 36 C/CRA/174/2005 CAV JUDGMENT held by this Court in the case of Madhuben Natwarlal (supra), that the term family though may not have a restricted meaning, the distant nephews or cousins, cannot be considered as family members as normally "family includes parents, spouse, brothers, sisters, sons or daughters or in some cases widow of a pre deceased son".
21 The judgment relied by Shri S.P.Majmudar in the case of Vasant Pratap Pandit(supra), and in the case of Nanumal Rijumal (supra), would not be applicable to the facts of the case. In that case, the context was with regard to the law of succession. On facts, both the Courts below have held that the defendant respondent herein has failed to prove that he was a legally adopted son. Therefore, the question of heirship or bequeathment of tenancy was not an issue which can be pleaded by the respondent in absence of any challenge. Therefore what is clear and evident from the perusal and close scrutiny of the orders below, that is of the first Court and that of the Appellate Court, is that first primary condition of claiming transmission of tenancy on the ground of the Page 30 of 36 C/CRA/174/2005 CAV JUDGMENT defendant/respondent being a member of the tenant's family has not been satisfied.
22 This brings us to the second limb of the section which states that, in addition to being a member of the tenant's family, such a tenant should be carrying on business in the said premises at the time of the death of the tenant and may continue to do so after his death. The trial Court on examination of the evidence has found that the registration of the shop, the document which is produced at Exh.62, being a certificate, shows that the shop was registered in the year 1964. The name of the defendant was inserted in the year 1986 i.e. after three years of death of the deceased tenant. No plausible explanation came forth from the respondentdefendant to suggest as to why his name was not inserted immediately on the death of the deceased tenantPurshottamdas Soni. In my opinion, therefore, the trial Court committed no error in observing that it can be safely said that the respondentdefendant had failed to establish that he was continuously doing the job work in the suit premises after the death of the deceased Page 31 of 36 C/CRA/174/2005 CAV JUDGMENT Purshottamdas Soni.
22.1 Merely because receipts Exhs. 39 to 50 were produced on behalf of the respondent to suggest that it was the defendant who had collected rent on behalf of the deceased tenant would not support the case of the defendant that it was he who was the tenant and was carrying on business not only at the time of death, but even before the death of the tenant Purshottamdas Soni. Merely making payment of rent or acceptance of such rent would not render and satisfy the second condition of the section.
23 The trial Court has extensively discussed the case of the respondent as to whether he has been able to prove and establish that he was doing the business in the suit premises with the deceased tenant till his death, and thereafter continued doing the business in the demised premises. It was the case of the respondent that he was doing business with the deceased tenant of job work of gold since 1975. No documentary evidence has been brought on record to show the fact of his association with the deceased Page 32 of 36 C/CRA/174/2005 CAV JUDGMENT tenant. Only one witness Shri Natwarlal Fakirchand Khatri, at Exh.92 has deposed that the deceased tenant and the present defendant were staying together. This witness was a neighbouring shop owner. The certificate at Exh.23 under the Bombay Shops and Establishment Act shows that the name of the deceased tenant was deleted and the defendant's name was inserted on 28.11.1986 i.e. three years after the death of the deceased tenant. The certificate on examination was found to contain no name or the figure or the name of the family members doing business with the deceased tenant. In my opinion, therefore, the trial Court did not commit any error in concluding that the defendant, respondent herein was not doing the job work of gold in the disputed premises after the death of the deceased Purshottamdas Soni. The trial Court also has come to the conclusion that merely because the present defendant was receiving rent for which receipts from Exhs. 39 to 50 were produced, it would not make out a case to satisfy the second condition i.e. 5(11)(c)
(ii) of the Bombay Rents, Hotel & Lodging House Rates Control Act, 1947.
Page 33 of 36 C/CRA/174/2005 CAV JUDGMENT 24 The Appellate Court, while holding that the benefit of the provisions of Section 5(11)(c)(ii) had to be granted to the defendantrespondent herein has, in my opinion, travelled into the provisions of Section 5(11)(c)(i) of the Bombay Rents, Hotel & Lodging House Rates Control Act, 1947. Merely because evidence on record was produced that the marriage of the defendant was held at Vadodara and that there were birth certificates on record at Exhs.60 and 61 of 07091978 and 19051981 of the defendants daughter and son respectively, would at best suggest that the defendant was living with Purshottamdas Soni at the time of his death in November,1983. The finding of the Appellate Court, therefore, that the address of the defendantoriginal tenant is the same because they were living together, would not in any way satisfy the second requirement of Section 5(11)
(c)(ii) of the Bombay Rents, Hotel & Lodging House Rates Control Act, 1947 of the respondent carrying on the business in the premises at the time of the death of the deceased tenant. Moreover, nothing was produced on record as observed by the trial Court and when the trial Court on appreciation of evidence came Page 34 of 36 C/CRA/174/2005 CAV JUDGMENT to the conclusion that the insertion of the name of the defendant was three years after the death of the deceased tenant, and merely because rent receipts were collected by the defendant, would not substantiate his case, it was not open for the Appellate Court merely because a different view was possible to take such a view in favour of the defendant.
25 I do not agree with the submissions of Mr.Majmudar that the judgment and order of the Appellate Court cannot be set aside because a different view is possible.
26 For the reasons stated herein above, it is obvious that the Appellate Court in exercise of its jurisdiction has not only taken a different view, but has clearly exceeded it's jurisdiction inasmuch as has considered and decided the issues not only which were not raised before it, but has acted in a manner with perversity to decide contrary to the evidence which was on record and it was rightly appreciated by the trial Court while deciding the suit and decreed the same in favour of the applicant.
Page 35 of 36 C/CRA/174/2005 CAV JUDGMENT 27 For the aforesaid reasons, therefore, I am of the opinion that the learned Appellate judge in deciding Regular Civil Appeal No. 282 of 2001 and in reversing the decree dated 23.10.2001 in Rent Suit No. 136 of 1989 committed a serious error of law and of jurisdiction. I, therefore, deem it fit to quash and set aside the judgment and order dated 07.05.2005 passed by the Joint District Judge, F.T.C No.5, Vadodara in Regular Civil Appeal No. 282 of 2001 and restore the decree of the trial Court dated 23.10.2001. The present Revision Application is accordingly allowed. Rule is made absolute accordingly with no orders as to costs.
(BIREN VAISHNAV, J) After pronouncement of the judgment, learned counsel for the respondent prays that the operation of the judgment be suspended. Accordingly, the request is granted. The operation of the judgment shall be suspended till 12.10.2018.
(BIREN VAISHNAV, J) Bimal Page 36 of 36