Bombay High Court
Cawas Dhunjishaw Saher vs Keikobad C. Batliwala on 21 July, 1994
Equivalent citations: 1995(2)BOMCR175
JUDGMENT A.V. Savant, J.
1. These two petitions can be disposed of together since they relate to the same premises and are between the same parties excepting that in Writ Petition No. 356 of 1994, the landlord H.H. Sardar Sayedina Dr. Mohamed Burhanuddin Saheb is also made respondent No. 2 but he is obviously a formal party. The main contest is between the petitioner and respondent No. 1 in both the petitions.
2. The premises consist of bedroom No. 1 with an attached bath and W.C. in a flat of approximately 3000 sq.ft. on the second floor of the building known as "Merwan Mansion" situated at Nepean Sea Road, Bombay. The petitioner in both the petitions is Cawas Dhunjishaw Saher, who will be, hereafter, referred to as "Cawas Saher". The first respondent is Dr. Keikobad C. Batliwala who will, hereafter, be referred to as "Keikobad". Respondent Keikobad is the son of the original tenant Cawas Shaw Batliwala and the petitioner Cawas Saher is the son of the sister of Keikobad, viz., Aloo Seher as will be evident from the genealogy given below.
Original tenant Cawasshaw Batliwala (tenant from 1935 died on 1-5-1943) "
"
"
Wife - Meherbai (died on 6-12-1960) | | Son Keikobad Batliwala Daughter Aloo (respondent No. 1) married to Licensor. Dhunjishaw Saher who died on 10th July 1983 (Aloo pre-deceased her mother on 16th May, 1957) | | Cawas Saher (Petitioner in both the petitions) Licensee.
3. It will thus be evident from the above geneology that the dispute is between Keikobad son of the original tenant Cawasshaw Batliwala and Cawas Saher who is the son of the daughter of the original tenant, namely, Aloo Saher. The original tenant Cawasshaw Batliwala died on 1st May, 1943 leaving behind his widow Meherbai, son Keikobad and his daughter Aloo (Mother of respondent Cawas Saher). Aloo married Dhunjishaw Saher in September, 1943. Aloo predeceased her mother Meherbai on 16th May, 1957. Meherbai having died on 6th December, 1960.
4. Respondent Keikobad is staying in the major portion of the flat alongwith his son and daughter-in-law and all of them are doctors. Petitioner Cawas Saher is staying in one bedroom which has a attached bath and he claims to be sharing the passage, living room, dining area, common passage, kitchen and the servant's room. Thus the dispute is about the bedroom which was claimed by the petitioner Cawas Saher as his exclusive room.
5. It appears from the evidence on record, that on the death of Cawasshaw Batliwala on 1st May, 1943 and more particularly, after the death of his widow Meherbai on the 6th December, 1960, the tenancy of the premises was transferred in the name of their son respondent Keikobad. He permitted Cawas Saher to occupy one bedroom merely as a gratuitous licensee since Cawas was the son of his sister (Keikobad's sister - Aloo). The evidence on record further shows that Cawas Saher's mother Aloo had her premises elsewhere and she ceased to be the member of her parent's family on her marrying Dhunjishaw Saher. Cawas Saher is doing some business and wanted to claim statutory tenancy in respect of the bedroom in his possession and in respect of the common areas shared by both the parties. Since the relations between the parties were strained, Cawas Saher filed Short-Cause Suit No. 6838 of 1987 in the City Civil Court at Bombay for injunction restraining Keikobad from interfering with his alleged exclusive possession, user and enjoyment of the bedroom alongwith the attached bath and toilet as also the common use of certain areas known as common areas. In his plaint in the City Civil Court, Cawas Saher specifically stated that Keikobad was his maternal uncle and that on the death of Keikobad's father Cawasshaw Batliwala, his widow Meherbai and two children were staying in the premises. Though petitioner Cawas Saher was born on 19th March, 1948 i.e. to say after the death of Cawasshaw Batliwala on 1st May, 1943, the petitioner claimed to have become the tenant of the suit premises alongwith Keikobad by virtue of the provisions of section 5(11)(c)(i) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (For short the Rent Act). Cawas Saher claimed that the rent was paid by respondent Keikobad to the landlord (respondent No. 2 in Writ Petition No. 356 of 1994 H.H. Sardar Sayedina Dr. Mohamed Burhanuddin Saheb).
6. In the said City Civil Court Suit No. 6938 of 1987, apart from Keikobad, his son Rusy and Rusy's wife Pervez were also made defendants. They filed their affidavit-in reply to the motion for interim relief. They raised the preliminary objection as to the maintainability of the suit in the City Civil Court, Bombay on the ground that Cawas Saher was precisely claiming to be a statutory tenant by virtue of the provisions of section 5(11)(c)(i) of the Rent Act and that in view of the provisions of section 28 of the said Rent Act, such a suit could lie only in the Court of Small Causes and not in the City Civil Court. On this plea being raised, at the time of hearing of the notice of motion for interim relief in the suit, the City Civil Court came to the conclusion that having regard to the provisions of the Rent Act, in the light of the specific case made out by Cawas Saher in the plaint itself, the suit would be barred by the provisions of section 28 of the Rent Act. Petitioner Cawas Saher was claiming exclusive tenancy of one bedroom with the attached bath and toilet and was claiming the joint tenancy in respect of the common areas of the flat. Relying upon certain decisions of the Hon'ble Supreme Court and of this Court, it was held that the question of jurisdiction has to be decided as a preliminary issue on reading the plaint. It was clear from the averments in the plaint that the petitioner Cawas Saher claimed statutory tenancy under section 5(11)(c)(i) of the Rent Act and hence, the City Civil Court was not competent to entertain the suit, which was barred by the provisions of section 28 of the said Act. In this view of the matter, the City Civil Court passed the order on 19th/20th February, 1992 directing that the plaint be returned for presentation to the proper Court, namely, the Court of Small Causes at Bombay. The notice of motion for interim relief, therefore, did not survive and was accordingly dismissed.
7. Being aggrieved by the above order passed by the City Civil Court in the 1987 suit, petitioner Cawas Saher had filed Civil Rev. Application No. 153 of 1992 in this Court. It was held by this Court that there was neither any error of law or of jurisdiction in the impugned order returning the plaint for presentation to the proper Court, namely, the Court of Small Causes at Bombay. Hence, it was held, that no case was made out for interference in the limited jurisdiction under section 115 of the Code of Civil Procedure. Civil Rev. Application filed by Cawas Saher was, therefore, rejected on the 12th March, 1992. It is common ground before me that the order passed by this Court on 12th March, 1992 was not challenged in the Supreme Court. In the result the petitioner, Cawas Saher, resorted to his remedy in the Court of Small Causes and filed R.A. Decl. Suit No. 2064 of 1992 on 22nd April, 1992. It is out of the dismissal of Cawas Saher's R.A. Decl. Suit No. 2064 of 1992 by both the courts that Writ Petition No. 356 of 1994 arises.
8. However, while the petitioner Cawas Saher had approached the City Civil Court, Bombay in Suit No. 6838 of 1967, respondent Keikobad initiated proceedings under section 41 of the Presidency Small Causes Court Act, 1882 for ejectment of his gratuitous licensee Cawas Saher. These proceedings were initiated in 1988 being L.E. Suit No. 396/454 of 1988. The ejectment application, registered as a suit, was filed in November, 1988. The said application filed by Keikobad for ejectment of the petitioner Cawas Saher, who was merely a gratuitous licensee, has been allowed by both the courts and it is against the said concurrent findings that the said Cawas Saher has filed Writ Petition No. 354 of 1994.
9. I have heard both the learned Counsel at great length, namely, Shri Jahagirdar for the licensee Cawas Saher and Shri Reis for the licensor Keikobad Batliwala. The evidence that has been led in the two courts below has been common. The case of the licensor Keikobad in his application for ejectment is to the effect that on the death of his father Cawasshaw Batliwala, he became the tenant of the premises since he was the only male member in the family. At any rate, on the death of his mother Meherbai on 6th December, 1960, he was the only member of the family residing with the tenant at the time of her death. Admittedly, Aloo, the mother of Cawas Saher, who had already been married in September, 1943, was not a member of the family of the deceased Meherbai and, at any rate, she had predeceased Meherbai since Aloo died on 16th May, 1957. Thus, it was contended that on the death of Meherbai on 6th December, 1960, her son Keikobad was the only member of her family residing with her at the time of her death as contemplated by sub-clause (i) of section 5(11)(c) of the Rent Act and he was, therefore, alone entitled to become the statutory tenant of the premises. Keikobad has contended that he alone has paid the rent in respect of the premises to the landlord and that the entire contribution for repairs raised by the tenants' association was made by him alone. Only because Cawas Saher was his nephew - (son of his married sister Aloo who had predeceased her mother Meherbai) - there was a gratuitous licence in favour of Cawas Saher. It was specifically contended in the application for ejectment that even Cawas Saher's mother Aloo (sister of Keikobad) was the gratuitous licensee in respect of the said portion of one bedroom alongwith attached bath and toilet. Even Aloo had never contributed towards the payment of rent and was never regarded as the tenant of the premises by the landlord. At all relevant times, the landlord had regarded Keikobad alone as the tenant of the premises. Reliance has been placed on some documentary evidence in this behalf, to which I will make a reference later. It was further stated that the licence stood revoked on 16th August, 1988 pursuant to which Keikobad was entitled to obtain possession of the said portion consisting of one bedroom alongwith the attached bathroom and toilet.
10. In his written statement in the Ejectment Application filed by Keikobad, petitioner Cawas Saher contended that it was not true that Keikobad alone was the tenant on the death of his father Cawasshaw Batliwala. Petitioner Cawas Saher contended that his mother Aloo was also entitled to be regarded as a tenant though it is clear that the provisions of the Rent Act had not come into force on 1st May, 1943 when Cawas Batliwala died. Admittedly, the said Rent Act came into force in 1948. It was contended that during her life time, petitioner's mother Aloo and after Aloo's death, petitioner Cawas himself contributed towards the payment of rent and at times paid the rent to the landlord. Unfortunately, there is not a scrap of paper to substantiate such a case. Further the benefit of the amended section 15A of the Rent Act was also claimed by Cawas Saher contending that on 1st February, 1973 when the said amendment came into force and section 15A was inserted, he was in possession of an area which was not less than a room and that he was in possession as a licensee but was not a gratuitous licensee. Petitioner Cawas Saher, therefore, also claimed the benefit of the amended provisions of section 15A of the Rent Act and contended that in respect of the area of one bedroom which was in his exclusive possession, he would be entitled to be a deemed tenant independently of his claim under section 5(11)(c)(i) of the Rent Act. More or less similar pleadings have been filed in the 1992 suit filed by Cawas Saher and I need not repeat the said pleadings. The evidence that was led in both the proceedings was common and the same can be summarised as under.
11. In support of his case that Cawas Saher is not entitled to claim the benefit of the provisions of either section 5(11)(c)(i) or section 15A of the Rent Act, respondent Keikobad has examined himself as witness No. 1. He has, in short, deposed that when his father Cawasshaw Batliwala died on 1st May, 1943, he was the only male member in the family and was, as such, regarded as the tenant. At any rate, on the death of his mother Meherbai on 6th December, 1960, he was the only member of her family residing with her since her daughter (Keikobad's sister and petitioner's mother Aloo) had already died on 16th May, 1957. Keikobad claimed that he alone had paid the entire rent. There was no contribution by Cawas Saher towards the payment of rent. On her marriage, Aloo - mother of Cawas Saher - had always stayed in her own flat. Keikobad claimed to have alone contributed to the repairs undertaken by the tenants' association. He deposed categorically that Aloo was not contributing anything towards the payment of rent nor was Cawas Saher contributing anything. It was further deposed that even in respect of the transaction of a mortgage by his father Cawasshaw Batliwala, Keikobad alone had stood as the guarantor. He further pointed out that the landlord of the building had always treated him alone as the tenant in respect of which reliance was placed on a notice issued by the Advocate for the landlord on 10th September, 1949 which is at Exh. A.
12. The second witness examined by Keikobad is Shabbir Shaikh Tayabbhai Diwanji. He is the son of the Advocate for the landlord - Tayabbhai Diwanji - who had issued the notice at Exh. A on 10th September, 1949 to Keikobad alone treating him as a tenant of the entire premises. The third witness examined by Keikobad is Dhan Jahangir Mistry who deposed to the fact that Keikobad alone paid the contribution towards the repairs of the building when the fund was raised by the tenants of the building in which the premises were situated. Dhan Mistry is another tenant in the building.
13. As against this, the evidence of Cawas Saher consists of his own deposition and one more witness. Petitioner Cawas Saher does claim to be the statutory tenant by virtue of section 5(11)(c)(i) of the Rent Act or a deemed tenant by virtue of the newly inserted section 15A of the Rent Act. However, he concedes that the rent receipts of the premises stood in the name of Keikobad alone. The receipts that have come on record are from 1968 and they are all in the name of Keikobad. Petitioner Cawas Saher concedes that his wife Jestna had independent premises of her own. He confirms the instructions given in the written statement where there is some confusion regarding the question as to whether he was occasionally paying the rent to the landlord directly or was paying his alleged contribution to the respondent Keikobad. Cawas Saher, however, admits that he has no receipt for either the payment of rent, the contribution therefor or the contribution for running the household in the suit premises. This leads one to the inevitable conclusion that he was staying in the premises as a gratuitous licensee of his maternal uncle - respondent Keikobad. He admits that in respect of the Hari Niwas flat at Mathews Road, Bombay-4 there was a litigation between him and the landlord of the said premises. The suggestion in the cross-examination of Cawas Saher was that on his mother - Aloo's marriage, she had stayed at her husband's Hari Niwas premises and not in the suit premises. The second witness Narsinha W. Bagwe is an employee of the telephone exchange and he has been examined in connection with the telephone connection in the premises.
14. On the above background, both the suits were tried together. It has been held by the learned Trial Judge that Keikobad alone was regarded as a tenant of the premises on the death of his father Cawasshaw Batliwala and that Keikobad had permitted his sister Aloo to occupy a part of the premises as a gratuitous licensee. On the question as to whether petitioner Cawas had made out a case that he was entitled to claim the benefit of the provisions of section 5(11)(c)(i), the answer has been given in the negative. Further, on the question as to whether Aloo, the mother of Cawas, could have claimed the benefit of the provisions of section 5(11)(c)(i), the answer is obviously in the negative. In the first place, when Aloo's father Cawasshaw Batliwala died on 1st May, 1943, the Rent Act had not come into force and, secondly, before Aloo's mother Meherbai died on 6th December, 1960, Aloo herself had expired on 16th May, 1957. It was further held that both Aloo and her son Cawas Saher were permitted to occupy the bedroom merely in the capacity of a gratuitous licensee and that none of them could claim the benefit of the provisions of either section 5(11)(c)(i) or section 15A of the Rent Act. It is not necessary to reproduce the issues and the findings verbatim. The sum and substance was that petitioner Cawas Saher had failed to make out a case for grant of protection of either section 5(11)(c)(i) or section 15A of the Rent Act. In the result, it was held that the 1988 ejectment suit filed by the respondent Keikobad was liable to be decreed and the 1992 declaratory suit filed by the petitioner Cawas Saher was liable to be dismissed.
15. Against the said judgment and decree dated 19th January, 1993, the petitioner, Cawas Saher, filed two appeals before the Appellate Bench of the Court of Small Causes. Appeal No. 83 of 1993 arose out of the ejectment suit filed by respondent Keikobad in the year 1988 and Appeal No. 84 of 1993 arose out of the declaratory suit filed by petitioner Cawas Saher in the year 1992. Both the appeals were heard and disposed of together by a common judgment and decree dated 14th October 1993 which judgment is impugned in the present petitions. In the meanwhile it seems that respondent Keikobad had approached this Court and had sought the directions for an early disposal of the appeals in view of his advanced age. He is stated to be aged about 89 years today.
16. Under the impugned judgment the Appellate Bench has held that there was no error in holding that the petitioner, Cawas Saher, had failed to prove that either his mother Aloo or he himself was entitled to the benefit of the provisions of either section 5(11)(c)(i) or section 15A of the Rent Act. It was held that at all relevant times, petitioner Cawas's mother Aloo, and after her death in 1957, the petitioner himself was only permitted to occupy the premises, namely, one bedroom purely in the capacity of a gratuitous licensee and that, therefore, the petitioner was not entitled to the benefit of the provisions of section 15A of the Rent Act. In view of the arguments advanced before me, it is not necessary for me to refer to the other findings which are either consequential or insignificant. In the result, both the appeals filed by petitioner Cawas Saher were dismissed and the decree for eviction in favour of respondent Keikobad has been confirmed. There is thus a concurrent findings on the main issues that were sought to be agitated in this petition before me.
17. At the hearing of the petition, however, Shri Jahagirdar has raised four contentions. In the first place, he contended that having regard to the averments in the application for ejectment, namely, the 1988 suit filed by respondent Keikobad, the relationship of licensor and licensee having come to an end, an application under section 41 of the Presidency Small Causes Courts Act, 1882 was not at all maintainable. Secondly, it was contended that the mother of the petitioner Cawas namely Aloo Saher was the member of the family of her father Cawasshaw Batliwala and on the death of Cawasshaw Batliwala on 1st May, 1943, she was one of his heirs. It was contended that despite her marriage, Aloo Saher continued to be member of her parent's family and was entitled to live in the premises in dispute. Thirdly, it was contended that under section 5(11)(c)(i) of the Rent Act, the petitioner, Cawas Saher, was himself entitled to be regarded as a member of the family of his grand mother namely Meherbai when she died on 6th December, 1960. Since the petitioner's Cawas's mother Aloo, had died earlier on 16th May, 1957, the petitioner himself claims the benefit of the provisions of section 5(11)(c)(i). Thus the grand son of Meherbai claims to be a member of her family residing with her at the time of her death within the meaning of the provisions of section 5(11)(c)(i) of the Rent Act. Lastly, it was contended that, independently of his claim under section 5(11)(c)(i) of the Rent Act, and in the alternative, the petitioner, Cawas, was also entitled to be a deemed tenant under section 15A of the Rent Act, since he was in possession of the premises as a licensee on 1st February 1973 and the premises are not less than a room.
18. In reply, Shri Reis has submitted that none of the four contentions have any merit. In the first place, on the averments in the application for ejectment, the 1988 suit filed by respondent Keikobad was maintainable under section 41 of the Presidency Small Causes Courts Act, 1882. Secondly, it was contended that, on her marriage, Aloo had ceased to be the member of the family of her parents and since she had predeceased her mother Meherbai (Aloo died on 16th May, 1957 whereas Meherbai died on 6th December, 1960), Aloo could not claim the benefit of the provisions of section 5(11)(c)(i) of the Rent Act. It was then contended that the petitioner could neither claim the benefit of the provisions of section 5(11)(c)(i) nor of the provisions of section 15A of the Rent Act. Petitioner Cawas could not oust the claim of his maternal uncle Keikobad who was the only surviving child of his parents on the death of Meherabai on 6th December, 1960. It was then contended that neither Aloo, the mother of the petitioner, nor the petitioner, Cawas, had contributed anything either towards the payment of rent or repairs or the maintenance of the household to claim the benefit of the provisions of either section 5(11)(c)(i) or section 15A of the Rent Act. At any rate the petitioner, Cawas, was merely a gratuitious licensee on 1st February 1973 and, therefore, he could not claim the benefit of the provisions of section 15A of the Rent Act.
19. On the above submissions, both the learned Counsel have invited my attention to a number of decisions which are usually cited at the hearing of such cases. I may make a brief reference to some of them since, in my view, it is not necessary to make a reference to each and every decision that is cited before me. Some of them relate to the general law of inheritance and succession. I am confining myself to the question arising under section 5(11)(c)(i) of the Rent Act.
20. On the first point that Keikobad's ejectment suit under section 41 of the Presidency Small Cause Courts Act was not at all maintainable, my attention has been invited to the wording of section 41 of the Presidency Small Cause Courts Act, 1882 which is reproduced below for ready reference.
Section 41 : Suits or proceedings between licensors and licensee or landlords and tenants for recovery of possession of immovable property and licence fees or rent, except to those to which other Acts apply to lie in Small Causes Court ---(1) Notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force, but subject to the provisions of sub-section (2), the Court of Small Causes, shall have jurisdiction to entertain and try all suits and proceedings between a licensor and licensee, or a landlord and tenant, relating to the recovery of possession of any immovable property situated in Greater Bombay, or relating to the recovery of any licence fee or charges or rent therefor, irrespective of the value of the subject matter of such suits or proceedings.
(2) Nothing contained in sub-section (1) shall apply to suits or proceedings for the recovery of possession of any immovable property, or of licence fee or charges of rent thereof to which the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, the Bombay Government Premises (Eviction), Act, 1955, the Bombay Municipal Corporation Act, the Bombay Housing Board Act, 1948 or any other law for the time being in force applies.
Petitioner's Counsel contended that unless there was an admitted relationship of licensor and licensee, application under section 41 of P.S.C.C. Act could not be maintainable. He further contended that, if on the date of institution of the suit, the licence had been terminated, the licensee ceased to be a licensee and became a trespasser and hence the provisions of section 41 of the said Act would not be attracted, meaning thereby, that the Court of Small Causes will have no jurisdiction and the suit must be filed in the City Civil Court. It is not possible to accept this submission. It is no doubt true that section 41 contemplates an application by the licensor for ejectment of the licensee. The words "licensor and licensee" have been used in the section to identify the particular right or obligation which arises out of the relationship which subsists or which subsisted prior to the termination of licence namely the erstwhile relationship. Shri Jahagirdar's reliance on the decision in the case of Vishwanath Sawant v. Gandabhai Kikabhai, reported in 1990 Mah.L.J. 1145 is totally misplaced. In Vishwanath's case, as is evident from para 3 of the judgment, the plaintiff himself approached the Court with a specific case that the defendant was in unauthorised use and occupation of the suit premises and that he was a trespasser. It may be that the defendant claimed to be a licensee but the plaintiff had gone to the Court with a specific case that the defendant was in unauthorised use and occupation of the suit premises and that he was a trespasser. It may be that the defendant claimed to be a licensee but the plaintiff had gone to the Court with a specific case that the defendant was in unauthorised use and occupation of the premises and was a trespasser. This is also clear from the conclusions of Agarwal, J., in para 29 of the judgment in Vishwanath's case at page 1159 of the report (1990 Mh.L.J. 1145).
21. As against the above decision of the learned Single Judge in Vishwanath's case, Shri Reis is justified in placing reliance on a decision of the Division Bench of this Court in the case of Nagin Mansukhlal Dagli v. Haribhai Manibhai Patel, , Deshmukh, C.J. and Madon, J., (as he then was) held that the use of the words "Licensor and licensee" and "landlord and tenant" in section 41 of P.S.C.C. Act had no such particular significance or effect as was canvassed before the Division Bench. These words have been used in accordance with a very well settled and normal legislative drafting practice. In various statutes dealing with rights and obligations arising out of jural or contractual relationship and enforcement of such rights and obligations, the parties are described by the legal character they bear. These observations are to be found in para 8 of the Division Bench judgment at page 128 of the report. .
22. Shri Reis is also justified in placing reliance on the decision of Pendse, J., in the case of Eknath Vithal Ogale v. Mansukhlal Dhanraj Jain, . Analysing the scheme of the provisions of the Rent Act and the P.S.C.C. Act, it was held that where "A" who claimed to be in exclusive possession on the basis of relationship of licensor and licensee, filed a suit simplicitor for injunction to protect the possession before the City Civil Court, it could not be said that City Civil Court had jurisdiction to entertain and try such a suit as the Small Cause Court alone had jurisdiction to try such a suit. It is now well settled that in order to determine which Court has jurisdiction to try the suit, the Court should read the plaint as a whole and ascertain the real nature of the suit and what in substance the plaintiff has asked for, whatever may be the form of the relief claimed. Therefore, when "A" had alleged the relationship of a licensor and licensee and the relief claimed in substance related to recovery of possession, it would be the special Court that would have jurisdiction to decide the suit. Amended section 41(1) clearly prescribes that the Court of Small Causes has the jurisdiction to entertain and try all suits and proceedings between the licensor and the licensee relating to, the recovery of possession of any immoveable property situated in Greater Bombay.
23. Shri Reis also placed reliance on the judgment of Saldhana, J., in the case of C.K. Talwar v. M/s Rallis India Ltd., reported in where a similar view has been taken. Thus, in view of the ratio of the Division Bench judgment in Nagin Mansukhlal Dagli's case (supra), the ratio of the decision in Eknath Ogale's case (supra) and in C.K.Talwar's case (supra), it must be held that the suit filed by the respondent Keikobad under section 41 of P.S.C.C. Act, in the facts and circumstances of the present case, was perfectly maintainable.
24. As stated earlier, petitioner Cawas Saher had himself approached the City Civil Court, Bombay in the year 1987 when he had filed the S.C. suit No. 6838 of 1987. At the stage of hearing of the notice of motion it was held by the City Civil Court that having regard to the pleadings of Cawas Saher himself, the City Civil Court had no jurisdiction to entertain the matter if the relationship was that of a tenant and landlord or even if the relationship was that of the licensor and licensee. Even if it was held that the relationship between the petitioner and respondent was that of a tenant and landlord or a licensee and licensor, in either case, it would be the Court of Small Causes either under the Bombay Rent Act or the same Court under the P.S.C.C. Act which alone would be competent to entertain the proceedings. This order was passed by the City Civil Court on 19/20th February, 1992 returning the plaint to Cawas Saher for presentation to the proper Court and the same was upheld by this Court in C.R.A. No. 153 of 1992 on 12th March, 1992 which order has been accepted by the parties as final. It was pursuant to this order that the petitioner Cawas Saher himself approached the Court of Small Causes claiming protection under section 5(11)(c)(i) or in the alternative under section 15A of the Rent Act.
25. At any rate, having regard to the averments in the application for ejectment, namely, the 1988 suit filed by respondent Keikobad and having regard to the law laid down by the Division Bench in Nagin Mansukhlal Dagli's case (supra) and also in Eknaths Ogale's case (supra) the application under section 41 of P.S.C.C. Act was maintainable and has been properly entertained. There is thus no substance in the first contention raised by Shri Jahagirdar.
26. On the second contention regarding the petitioner's mother Aloo being the member of the family of the deceased tenant Cawasshaw Batliwala, I find that there is a concurrent finding to the effect that on her marriage Aloo ceased to be a member of the family of her parents. Further on the death of Meherbai on 6th December, 1960 her only child, respondent Keikobad, was staying in the premises with her as a member of her family. Aloo unfortunately had predeceased her mother on 16th May, 1957. The evidence further shows that it was Keikobad alone who was recognised as a tenant of the premises. Notice at Exh.A dated 10th September 1949 supports this contention of Keikobad. The rent receipts which are produced on record from 1968 onwards are in the name of Keikobad alone. There is nothing on record to show that in the life time of Aloo, she had either paid the rent or made any contribution to Keikobad towards the payment of rent or had made any contribution towards the repairs of the building. On the contrary, the entire evidence on record shows that every one had treated and regarded Keikobad alone as a tenant of the premises and even the landlord of the premises had treated Keikobad alone as a tenant and it was Keikobad alone who was contributing towards the repairs of the building when funds were raised by the tenants' association as deposed to by Dhan Mistry. There is not a single receipt produced on record showing any payment of rent by petitioner Cawas's mother Aloo, or for any contribution for repairs of the building. Beyond the ipse-dixit of Cawas Saher there is nothing on record to corroborate his version on this point. His evidence is not at all satisfactory and has been rightly rejected by both the courts.
27. Thus, as far as the mother of the petitioner Cawas Saher, namely, Aloo is concerned, it is not possible to hold, on the evidence on record, that she continued to be a member of her parent's family even after her marriage in 1943. Unfortunately, she predeceased her mother on 16th May, 1957. Thus, when Meherbai died on 6th December, 1960 her son, respondent Keikobad, was the only member of her family residing with her in the premises within the meaning of section 5(11)(c)(i) of the Rent Act. It is thus not possible to accept the second contention of Shri Jahagirdar that the mother of the petitioner, Cawas Saher, would be entitled to claim the benefit of the provisions of section 5(11)(c)(i) of the Rent Act. As stated earlier, when Cawasshaw Batliwala died on 1st May, 1943, the Rent Act of 1947 had not come into force and there was no question of the petitioner's mother Aloo claiming the benefit of the provisions of section 5(11)(c)(i) of the Rent Act. Apart from the evidence on record which shows that Keikobad alone was treated as the tenant, in a series of judgments, this Court has taken a consistent view that for the purpose of section 5(11)(c)(i) of the Rent Act, it can only be one person who can be regarded as a tenant. This has been so held all along right from the first case of Gool Rustomji Lala upto the recent Supreme Court decision in the case of Vasant Pratap Pandit v. Dr. Anant Trimbak Sabnis, . The consistent view reflected in these judgments is that for the limited purpose of section 5(11)(c)(i) of the Rent Act the general law of inheritence is to some extent departed from. This has been so held in many cases to which I propose to make a brief reference while dealing with the third contention of the petitioner. The second contention has, thus, no merit.
28. Coming to the third contention that the petitioner Cawas was himself entitled to claim the benefit of the provisions of section 5(11)(c)(i) of the Rent Act, I propose to discuss the case law in brief as under.
29. In the case of Miss Gool Rustomji Lal v. Jal Rustomji Lala, , Bhasme, J., took the view that having regard to the scheme of the provisions of the Bombay Rent Act, the Court must declare only one person as a tenant under section 5(11)(c)(i) after considering the claim of all those persons who say that they are the members of the tenant's family and were residing with him at the time of his death. Reliance was placed on an English decision in the case of Dealex Properties Ltd. v. Brooks, reported in (1966)1 Q.B. 542 and on para (d) at page 217 of the 10th edition of the Rent Acts by the learned author R.B. Megarry. I have checked the said quotation in the latest edition available here, namely, the eleventh edition - 1. Text-published in 1988 where para (d) at page 281 of the Rent Acts R.B. Megarry reads as under:
(d) No joint tenancy by transmission. "It has been held, and is now clearly enacted, that two or more claimants cannot take the transmitted tenancy as joint tenants, thus avoiding "fearful confusion" and "absurd consequences".---The Court is also slow to infer that the original tenancy was granted to joint tenants. But where it was , and one of the joint tenants died after the other had left the premises, a sole resident relative has been held to be entitled to a transmitted tenancy."
In Gool Rustomji Lala's case, Bhasme, J., came to the conclusion that if there are several members who are residing as members of the tenant's family, and if they fail to come to an agreement, then the Court has to make a choice and declare that one amongst them will be the tenant for claiming protection of the Rent Act. In any event, Court cannot declare more than one person as a tenant under section 5(11)(c) of the Rent Act. If one bears this basic approach in mind, on the evidence that has come before me, there is a concurrent finding of fact, that it was respondent Keikobad who was, at all relevant times, the tenant within the meaning of section 5(11)(c)(i) of the Rent Act. He was the one who was residing with his mother Meherbai as a member of her family at the time of her death. He was the one, and the only one, who was paying the rent and contributing towards the repairs of the building. Bhasme, J., has also referred to a decision rendered by D.V. Patel, J., in Hari Dattatraya Khandekar v. Bhalchandra Dattatraya Khandekar, being Civil Rev. Appln. No. 1511 of 1962 (unreported) where a similar view was taken.
30. In the case of C.J. Ghadiali and others v. Z.B. Wadiawalla, reported in 1981 Mh.L.J. 876 - 1981 Bombay Cases Reporter, 956, Modi, J., took the view that the provisions of section 5(11)(c) of the Rent Act provided for a right of succession different from the one under the ordinary law, and it must, therefore, follow that the right of possession also will be of the person who is a tenant under section 5(11)(c) of the Rent Act. It was observed that the Bombay Rent Act was a statute which was supposed to be enacted as a temporary measure and so it was not enacted to last till repealed but for a limited period which was being extended from time to time. It would, therefore, follow that the special mode of succession provided by the Rent Act was not a permanent mode and the right of the heirs or legal representatives under the normal law as suspended and eclipsed till the preferential right conferred by section 5(11)(c) of the Rent Act continued. In the light of this decision also it would follow that as far as the present controversy is concerned, for the limited purpose of section 5(11)(c) of the Rent Act, it would be respondent Keikobad alone who would be entitled to be regarded as a tenant by virtue of the provisions of section 5(11)(c) of the Rent Act,
31. In the case of Seeta Shrikrishna Sharma v. Vijaya A. Rao and another, reported in 1988 Mah.Rent C.J. 480, R.A. Jahagirdar, J., had occasion to consider the scope of the provisions of section 5(11)(c) of the Rent Act. Mangesh, the son of the tenant having earlier fought the litigation against the landlord Seeta, the daughter of the tenant got up to contest her claim also under section 5(11)(c) of the Rent Act. Interpreting the provisions of section 5(11)(c) of the Rent Act, it was held that it could only be one person under section 5(11)(c) of the Rent Act who could claim to be a tenant. In para 11 at page 485 of the report, Jahagirdar, J., observed thus:
"Under section 5(11)(c) of the Bombay Rent Act, certain persons were entitled to be the tenants of the premises, after the death of the original tenant. Naturally, the status of such persons would be regarded as of statutory tenants. Section 5(11)(c) as it then stood, provided that the tenant would include any member of the tenant's family residing with him at the time of his death as may be decided, in default of agreement, by the Court. In other works, it was open to the parties to agree that any of the members of the tenant's family residing with him at the time of his death could be treated as a tenant. This is precisely what was done by the parties when they filed the consent terms on 13th of March, 1964, on which day the Court itself puts imprimatur on the said consent terms. There cannot be more than one tenant. That is obvious from the language of section 5(11)(c) itself. This is also recognised by this Court in Gool Rustomji v. Jal Rustomji, LXXIII Bom.L.R.600. From the language of the consent terms it is clear to me and the Courts below were right in holding, that from 15th of April, 1964 all the heirs of the original tenant Kalyanpur agreed that Mangesh could continue as the tenant from that day onwards."
32. In the case of Bhavarlal Labhchand Shah v. Kanaiyalal Nathalal Intawala, , the Supreme Court had occasion to consider the scope of the provisions of section 5(11)(c) of the Rent Act. Though it was in the precise context of sub-clause (ii) of section 5(11)(c), the principle involved remains the same. In para 8 of its judgment at page 604, of the report, the Supreme Court observed thus :
"....When in the case before us the Legislature has restricted the right to inherit the right to the tenancy of the premises let out for business, trade or storage to any member of a tenant's family carrying on business, trade or storage with the tenant at the time of his death, it is not open to the Court by judicial construction to extend the said right to persons who are not members of the tenant's family who claim under testamentary succession."
33. Lastly in the recent decision of the Supreme Court in the case of Vasant Pratap Pandit v. Dr. Anant Trimbak Sabnis, , the Supreme Court has again considered the entire question and analysed the scheme of the provisions of section 5(11)(c)(i) of the Rent Act. It has been observed that 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. Relevant observations are to be found in para 14 of the judgment at page 488 of the report which can be usefully reproduced as under :
"From a plain 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 benefit 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 just a position with section 5(11)(c)(i) it is 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 that 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'. In case of such disagreement the Court has to decide who is to be treated as 'tenant'. Therefore, if 'heir' is to include a legatee of the will then the above quoted 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 emphasise is it is not the heir ship 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."
34. In view of the above position of law, it is clear that for the purpose of section 5(11)(c)(i) of the Rent Act, it is only one person who can claim to be a tenant by virtue of his being a member of the tenant's family residing with the tenant at the time of his/her death. Two or more claimants cannot claim the transmitted tenancy as joint tenants. This is necessary to avoid fearful confusion and absurd consequences. To this limited extent the provisions of section 5(11)(c)(i) of the Rent Act make a departure from the right of succession under the general law of inheritance and succession. It is open to the parties to agree that any one of the members of the tenant's family residing with him at the time of his death could be treated as a tenant for the purpose of section 5(11)(c)(i) of the Rent Act. At any rate, there cannot be more than one tenant for the purpose of section 5(11)(c)(i) of the Rent Act. Further, as stated by the Supreme Court in the case of Bhavarlal Shah (supra) it is not open to the Court by judicial construction to extend such right to persons who are not the members of the tenant's family who claim under testamentary succession. Finally, as observed by the Supreme Court recently in the case of Vasant Pandit (supra) all heirs are liable to be excluded, if any other member of the family was residing with the tenant at the time of his/her death. In a situation where there are more than one heirs, the landlord may or may not agree to one or the other of them being recognised as a tenant. In case of such disagreement, the Court has to decide who is to be treated as a tenant. In certain contingencies as contemplated in section 5(11)(c)(i) of the Rent Act, certain heirs are unable to succeed to such a tenancy. To this extent, a departure is made from the general law.
35. Coming to the last submission of Shri Jahagirdar that, in the alternative, the petitioner, Cawas Saher, would be entitled to the protection of the amended section 15A of the Rent Act, the contention has to be stated merely for the purpose of being rejected. For claiming the benefit of the provisions of section 15A of the Rent Act, one has to be a 'licensee' in possession of the premises which are not less than a room. It is true that the petitioner Cawas Saher claims to be in possession of the premises which are not less than a room. But the word 'licensee' has been defined under section 5(4-A) of the Rent Act and it excludes a gratuitous licensee. I may only quote the relevant part of the said provisions.
Section 15A :
(1) Not withstanding anything contained elsewhere in this Act or anything contrary in any other law for the time being in force, or in any contract, where any person is on the 1st day of February, 1973 in occupation of any premises, or any part thereof which is not less than a room, as a licensee he shall on that date be deemed to have become, for the purposes of this Act, the tenant of the landlord, in respect of the premises or part thereof, in his occupation.
(2) The provisions of sub-section (1) shall not affect in any manner the operation of sub-section (1) of section 15 after the date aforesaid.
Section 5(4-A) :
"Licensee", in respect of any premises or any part thereof, means the person who is in occupation of the premises or such part, as the case may be, under a subsisting agreement for licence given for a licence fee or charge....."
36. There is a concurrent finding of fact that petitioner Cawas was staying in the premises as a gratuitous licensee and his maternal uncle respondent Keikobad had only shown the courtesy of tolerating his continuance in the premises even after the death of Cawas's mother Aloo and then, after the death of Meherbai. There is no documentary evidence on record to support the contention of petitioner Cawas Saher that he had paid any rent to the landlord or that he had contributed towards the repairs of the building or that he had contributed towards the maintenance of the household. The entire evidence has been appreciated by both the courts and on a proper appreciation of the evidence on record both the courts have recorded a concurrent finding of fact that Cawas Saher was a gratuitous licensee who was staying in the premises at the mercy of his maternal uncle - respondent Keikobad. In the circumstances, I hold that petitioner Cawas Saher is not entitled to claim the benefit of the amended section 15A of the Rent Act which was meant for protecting certain classes of licensees who were in possession on 1st February, 1973. Thus there is no merit in any of the contentions raised by Shri Jahagirdar.
37. In the light of the above discussion, I am of the view, that, firstly, the application filed by respondent Keikobad for ejectment under section 41 of the Presidency Small Cause Courts Act, 1882 was maintainable in the Court of Small Causes. Secondly, on the death of Cawasshaw Batliwala on 1st May, 1943 and more particularly, on the death of his wife Meherbai on 6th December, 1960, it was respondent Keikobad who alone was treated as the member of tenant's family residing with the tenant at the time of his/her death. Aloo Saher had ceased to be a member of her parent's family on her marriage and she had predeceased her mother on 16th May, 1957. Thirdly, petitioner Cawas Saher could not claim the status of a statutory tenant under section 5(11)(c)(i) of the Rent Act on the death of his grand mother Meherbai on 6th December, 1960. Finally, petitioner Cawas Saher is also not entitled to claim the status of a deemed tenant by virtue of the provisions of section 15-A of the Rent Act.
38. In view of the above, both the petitions stand dismissed. Rule in both the petitions is discharged. However, having regard to the relationship between the parties, there will be no order as to costs.
39. At this stage, Shri Jahagirdar prays for stay of the operation of this order for a period of six weeks. Shri Reis for the respondent says that the respondent is aged 89 years old but has no objection if some reasonable time is given subject to the petitioner filing the usual undertaking. Accordingly, petitioner Cawas Saher has today filed the requisite undertaking which is taken on record and marked as "X" for identification.
40. In view of the said undertaking at "X" operation of this judgment is stayed for a period of six weeks from today. Certified copy expedited.