Bombay High Court
Hansaben Purshottam Parmar (Deceased) ... vs Smt. Kamlaben Babulal Bhatt (Delted) ... on 11 September, 2019
Author: S.C. Gupte
Bench: S.C. Gupte
sat cra 540-2019.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO. 540 OF 2019
Hansaben Purshotam Parmar (since deceased)
through legal heirs
1(a) Heena Kanaiyalal Maru & Ors. ...Applicants
vs.
Smt.Kamlaben Babulal Bhatt (deleted)
1(a) Mr.Jagdish Chandrakant Sevak & Ors. ...Respondents
Mr.N.P. Wagle for Applicants.
Ms.P.J. Thorat for Respondents Nos.1(a) and 1(b).
CORAM : S.C. GUPTE, J.
DATE : 11 SEPTEMBER 2019
ORAL JUDGMENT :
This civil revision application challenges an order passed by the appellate bench of the Court of Small Causes in an execution appeal. The appeal was against an order passed on an obstructionist notice. The Applicants herein were the obstructionists. The trial court, by its order dated 14 October 2016, allowed the obstructionist notice declaring the obstruction made by them to the execution of the warrant of possession issued in favour of the Applicants/ Appellants as illegal. That order has been confrmed by the appellate bench of the Court of Small Causes.
2 Respondent Nos.1(a) to 1(b) are legal heirs of original Respondent No.1 (since deceased and deleted from the cause title, who was the original Plaintif in the eviction suit). The deceased Plaintif claimed to be the landlord of the suit premises, being Room No.8 at Krishna Bhuvan, 14/16 Sindhi Galli, Mumbai - 400 004 and sought eviction of Respondent No.2 herein (original Defendant). The predecessor of the Defendant was a tenant of the suit premises. The 1 / 11 ::: Uploaded on - 11/10/2019 ::: Downloaded on - 18/04/2020 20:33:35 ::: sat cra 540-2019.doc suit was fled against the Defendant, as a tenant on transmission, on two grounds, namely, default in payment of rent and bona fde need of the Plaintif landlord. The suit was decreed on 4 November 2004, directing the Defendant to handover possession of the suit premises to the Plaintif. The order of eviction passed by the trial court was carried in appeal before the appellate bench of Court of Small Causes by the Defendant. The appeal was dismissed on 22 December 2006. Against the judgment and decree of the appellate bench, the Defendant fled a CRA (Civil Revision Application No.42/2007) in this court. This court, by its order dated 5 May 2008, dismissed the CRA. On an undertaking submitted by the Defendant to vacate the suit premises by 31 October 2008, this court, whilst dismissing the CRA, granted time to the Defendant to vacate the suit premises. The undertaking was, accordingly, fled by the Defendant on 13 May 2008. She, however, did not vacate the suit premises as per that undertaking. The Plaintif, accordingly, applied for a warrant of possession in execution proceedings. The warrant was ordered to be issued. On 9 February 2009, when the bailif of the court went to execute it, the warrant of possession was obstructed by the Applicants / Obstructionists. The obstructionists are, respectively, mother and brother of the Defendant. Based on their obstruction, the Plaintif fled an obstructionist notice. It was the case of the Plaintif that the obstructionists have no independent right to stay in the suit premises and could not obstruct the warrant of possession issued by the court. During the pendency of the obstructionist notice, the original Plaintif died and her legal heirs (Plaintif Nos.1(a) and 1(b), who are Respondent Nos.1(a) and 1(b) in the present application) were brought on record.
3 The case of the obstructionists before the trial court was that the Plaintif had played a fraud on court by knowingly not joining them as party defendants to the suit, though they were both legal 2 / 11 ::: Uploaded on - 11/10/2019 ::: Downloaded on - 18/04/2020 20:33:35 ::: sat cra 540-2019.doc heirs and family members of the original tenant (since deceased). It was submitted that both obstructionists had been residing in the suit premises along with deceased tenant and had continued to do so as of the date of the obstructionist notice. It was submitted that they were protected joint tenants in respect of the suit premises and could resist eviction in their own right as such protected tenants. The obstructionists claimed ignorance about the fling of the eviction suit. They claimed to have obtained knowledge of the same only in the course of execution of the eviction decree. It was claimed by the obstructionists that after the death of the original tenant, Applicant No.1 herein (obstructionist No.1) was paying rent of the suit premises to the Plaintif. It was submitted that the Plaintif knew this fact very well and despite such knowledge, did not join her or Applicant No.2 herein (obstructionist No.2) as party defendants. It was submitted that the Applicants could resist eviction in their own independent right as protected tenants upon transmission of tenancy from the original deceased tenant.
4 The learned trial Judge considered whether the obstructionists had any independent right of tenancy, that is to say, independent of the Defendant's tenancy, in respect of the suit premises. The court found that the original Defendant had taken a stand in the suit that the obstructionists were also legal heirs of the deceased original tenant and had been residing in the suit premises along with the deceased. Their contention, however, that they were living in the suit premises in their personal capacity after the death of the original tenant, was not accepted by the trial court. The trial court found that admittedly, the notice issued by the Plaintif landlord under Section 12(1) of the Old Rent Act, demanding arrears of rent, was received by Applicant No.2 herein (obstructionist No.2). The eviction suit was fled admittedly after receipt of that notice. The proceedings 3 / 11 ::: Uploaded on - 11/10/2019 ::: Downloaded on - 18/04/2020 20:33:35 ::: sat cra 540-2019.doc in the suit went on from 1994 to 2007. The trial court observed that the Defendant ought to be held to be defending the eviction suit and execution proceedings not only on behalf of himself but also on behalf of the obstructionists; the latter had allowed him to do so. After dealing with the law cited at the Bar, the trial court held that the obstructionists were not strangers to the decree passed; that the decree passed against the person arraigned as tenant bound them as much as the judgment debtor tenant. The trial court, accordingly, allowed the obstructionist notice and ordered execution of warrant of possession against the obstructionists or any other person found in the suit premises.
5 This order was carried by the obstructionists before the appellate bench of the Court of Small Causes. The appellate bench, by its impugned order dated 4 July 2019, dismissed the appeal. The appellate bench held that from the record of the case, an inference could be drawn that the Defendant was dealing with the landlord Plaintif on behalf of the whole family of the deceased tenant consisting of himself and the obstructionists and the latter had allowed him to do so on their behalf. The court observed that obstructionist no.1, who was the mother of the Defendant, was a housewife; her health was not good due to her old age; obstructionist no.2 was the younger brother of the Defendant still taking education at that time. The trial court observed that inference could, accordingly, be drawn that the Defendant, being the elder son of the deceased tenant, was looking after the afairs of the suit premises and efectively represented all family members occupying the suit premises after the death of the deceased and it was not, accordingly, necessary to implead the obstructionists as parties to the suit. The appeal court observed that in view of Section 5(11)(c) of the Rent Control Act, as held by this court in the case of Vimalabai Keshav Gokhale vs. 4 / 11 ::: Uploaded on - 11/10/2019 ::: Downloaded on - 18/04/2020 20:33:35 ::: sat cra 540-2019.doc Avinash Krishnaji Biniwale1, only one member of the family could be considered as a tenant and not all family members. The court observed that the obstructionists themselves allowed the Defendant to act as a tenant in relation to the suit premises and that the Defendant had, accordingly, resisted the suit and the execution proceedings on behalf of himself as also on behalf of the obstructionists. The appeal court, accordingly, held that the obstructionists did not have any independent tenancy rights other than the rights of the Defendant in the suit premises and these rights were already decided fnally in the eviction suit when the civil revision application from the appellate decree of the Court of Small Causes was dismissed by this court. The court, accordingly, held the obstruction to be illegal and dismissed the appeal, agreeing with the trial court.
6 Whatever may be the incidents of a lease or a tenancy under the general law of transfer of property, so far as a tenant under the provisions of the rent control law, where the tenancy is known as statutory tenancy, is concerned, the position is peculiar. Ordinarily, tenancies are held in two capacities: tenancy-in-common and joint tenancy. These two capacities have diferent incidents. Joint tenancy denotes unity of commencement of title, unity of interest in the joint estate and unity of possession together with right of survivorship; tenancy-in-common of more than one tenants, on the other hand, has a divided estate, each tenant in common having estate in the whole of the tenancy and to the extent of such estate, having privity with the landlord in respect of such estate. In case of a statutory tenancy under the law of rent control, the tenancy is inherited in the former capacity, namely, as a joint tenant, and not as a tenant-in-common where each heir becomes an independent tenant in his own right. This has been succinctly explained by the Supreme Court in the case of Suresh 1 2003(4) ALL MR 884 5 / 11 ::: Uploaded on - 11/10/2019 ::: Downloaded on - 18/04/2020 20:33:35 ::: sat cra 540-2019.doc Kumar Kohli vs. Rakesh Jain2. Before this judgment, there was a dichotomy of opinions between diferent courts, based on an apparent conflict between two judgments of the Supreme Court on the issue of transmission of tenancy upon the death of the original tenant. In Mohamed Azeem vs. District Judge, Aligarh3 case, the Supreme Court had held that the defnition of tenancy in Rent Control law did not warrant a view that all legal heirs of the original tenant, upon his death, would become a body of tenants to give rise to the concept of joint tenancy; each heir, satisfying the particular qualifcation in the Act, becomes a tenant in his own right; the words "tenant or any member of his family" used in Section 12(3) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 would accordingly refer to the heir who has become a tenant under the statutory defnition and members of his family. On the other hand, another bench of the Supreme Court in the case of H.C. Pandey vs. G.C. Paul4 had held that on the death of the original tenant, subject to any provision to the contrary either negativing or limiting the succession, the tenancy rights devolve on the heirs of the deceased tenant, and the incidents of such tenancy are the same as those enjoyed by the original tenant; it is single tenancy which devolves on the heirs; there is no division of the premises or of the rent payable therefor. In other words, according to the decision in H.C. Pandey, the heirs succeed to the tenancy as joint tenants. The appeal in Harish Tandon vs. Additional District Magistrate, Allahabad 5 was referred, having regard to the apparent conflict between the two judgments, referred to above, to a bench of three judges. The Supreme Court observed in that case that it was difcult to hold that after the death of the original tenant, his heirs become tenants-in-common and each one of the heirs should be deemed to be an independent tenant 2 (2018) 6 SCC 708 3 (1985) 2 SCC 550 4 (1989) 3 SCC 77 5 (1995) 1 SCC 537 6 / 11 ::: Uploaded on - 11/10/2019 ::: Downloaded on - 18/04/2020 20:33:35 ::: sat cra 540-2019.doc in his own right. The court observed that if it was held that after the death of the original tenant, each of his heirs became independent tenant, then as a corollary it would also have to be held that after the death of the original tenant, the otherwise single tenancy would split up into several tenancies and the landlord could get possession of the tenanted premises only if he established one or the other grounds of eviction against each of the heirs of the original tenant. The court held that it was a settled rule of interpretation of statutes that they should be interpreted in a manner which would not lead to an absurd situation. The Supreme Court in Suresh Kumar Kohli (supra) afrmed this proposition in the following words (para 24) :
"We are of the view that in the light of H.C. Pandey6, the situation is very clear that when original tenant dies, the legal heirs inherit the tenancy as joint tenants and occupation of one of the tenants is occupation of all the joint tenants. It is not necessary for the landlord to implead all legal heirs of the deceased tenant, whether they are occupying the property or not. It is sufcient for the landlord to implead either of those persons who are occupying the property, as party. There may be a case where landlord is not aware of all the legal heirs of the deceased tenant and impleading only those heirs who are in occupation of the property is sufcient for the purpose of fling of eviction petition. An eviction petition against one of the joint tenants is sufcient against all the joint tenants and all joint tenants are bound by the order of the Rent Controller as joint tenancy is one tenancy and is not a tenancy split into diferent legal heirs."
7 In view of this position in law, which does not admit of any doubt whatsoever, the Appellants cannot urge that as legal heirs of the deceased original tenant they are entitled to succeed to the tenancy in their independent rights. The applicable provision of law, so far as transmission of tenancy is concerned, under the old Rent Control law, i.e. the Bombay Rents, Hotel and Lodging House Rates Control 6 H.C. Pandey v. G.C. Paul, (1989) 3 SCC 77 7 / 11 ::: Uploaded on - 11/10/2019 ::: Downloaded on - 18/04/2020 20:33:35 ::: sat cra 540-2019.doc Act, 1947, which was then applicable, was contained in Section 5(11)
(c) of that Act. The section was in the following terms :
"5(11) "rent" means any person by whom or on whose account rent is payable for any premises and includes, -
(c)(i) in relation to any premises let for residence, when the tenant dies, whether the death has occurred before or after the commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Act, 1978, any member of the tenant's family residing with the tenant at the time of his death or, in the absence of such member, any heir of the deceased tenant, as may be decided in default of agreement by the Court;
(ii) in relation to any permission let for the purposes of education, business, trade or storage, when the tenant dies, whether the death has occurred before or after the commencement of the said Act, any member of the tenant's family using the premises for the purposes of education of carrying on business, trade or storage in the premises, with the tenant at the time of his death, or, in the absence of such member, any heir of the deceased tenant, as may be decided in default of agreement by the Court.
Explanation.- The provisions of this clause for transmission of tenancy, shall not be restricted to the death of the original tenant, but shall apply, and shall be deemed always to have applied, even on the death of any subsequent tenant, who becomes tenant under these provisions on the death of the last preceding tenant."
This clearly is in keeping with the law laid down by the Supreme Court in the case of Harish Tandon (supra) and Suresh Kumar Kohli (supra). What is passed on after the death of the deceased tenant is one unitary tenancy to such of the members of his family, who is residing with him at the time of his death or in default such member, any member or legal heir, who may be chosen by agreement between the family members or legal heirs, as the case may be, or in default of such agreement by the court. In the present case, both courts below 8 / 11 ::: Uploaded on - 11/10/2019 ::: Downloaded on - 18/04/2020 20:33:35 ::: sat cra 540-2019.doc have concurrently come to a conclusion of fact that the original Defendant was to be treated as a tenant on transmission of tenancy in accordance with these provisions of law. It was he, who was entitled to represent the tenancy and, to that extent, represent the interests of the other family members or legal heirs who were residing in the suit premises with the deceased tenant at the time of his death.
8 Learned Counsel for the Appellants submits that the Appellants had no notice of the landlord's case for eviction. That is clearly unbelievable. In fact, as both courts below have noted, the notice under Section 12(1) of the Bombay Rent Act was in fact received by Appellant No.2; it was he who signed the acknowledgement of receipt of this notice. Besides, the ground that, apart from himself, there were other family members or legal heirs of the deceased tenant who were residing in the suit premises and that they had to be accordingly impleaded as parties to the eviction suit, was urged by the original Defendant in his written statement as well at the Bar. This ground was in terms considered and negatived by both courts below, when the eviction suit was decided. In fact, the appellate bench of the Court in its judgment considered the Defendant's contention that the rent of the suit premises was being paid by Appellant No.1 herein to the Plaintif as the head of the family and that the demand notice addressed to the Defendant was illegal and bad in law. The court held that it was Appellant No.2 herein, who had admittedly received the notice and being the brother of the Defendant, was staying along with him and the mother in the suit premises. The appellate bench observed that since all the heirs were staying together, it had to be presumed that the contents of this notice had been known to all the heirs of the deceased tenants and yet they did not make any application to implead themselves as party defendants to the suit. The appellate bench observed that in the premises, issues 9 / 11 ::: Uploaded on - 11/10/2019 ::: Downloaded on - 18/04/2020 20:33:35 ::: sat cra 540-2019.doc involved in the suit could be decided in the absence of other legal heirs "as they are being efectively represented by the defendant in the present suit and therefore, under such circumstances, though the other heirs are proper parties to the suit, they cannot be termed as necessary parties to the suit and therefore, under such circumstances, the suit is very much maintainable in the absence of other heirs of deceased tenant". Two courts concurrently holding so and this court having refused to interfere with the CRA, the decision noted above has become fnal; it does not admit of any challenge. If that is so, the same ground that it was the other legal heirs of the deceased, who are the Applicants in the present CRA, who were tenants in their own right and could resist the decree of eviction passed against the original tenant, is clearly untenable. It has been negatived by two courts below as well as this court in the CRA when the original decree of eviction passed against the Defendant was confrmed; it cannot now be urged again in an obstructionist notice.
9 Learned Counsel for the Applicants submits that the original Defendant was in fact not staying in the suit premises; he was staying elsewhere separate from the obstructionists. Whether the Defendant was residing with the obstructionists or separately is essentially a question of fact. Two courts below having rendered a concurrent fnding on this question against the Applicants herein, there is a very limited scope of scrutiny in the CRA. The Applicants' case was that the Defendants had left the suit premises. The appeal court noted that Obstructionist No.2 (O.W.1) had not specifed the year in which the Defendant had so left; that according to O.W.2, he had left after one and half years of the demise of the original tenant, that is to say, around 1991-92 (the tenant having died on 13.10.1990). The obstructionists, on the other hand, had claimed in their FIR before the police fled in November 2008 that the Defendant, along with his wife 10 / 11 ::: Uploaded on - 11/10/2019 ::: Downloaded on - 18/04/2020 20:33:35 ::: sat cra 540-2019.doc Shilpa, was residing jointly with the obstructionists in the suit premises before November 2008, but had left the premises in November 2008 as he thought he would loose the eviction suit fled by the landlord (I.e the present suit). This completely falsifed the case of the Defendant having left the suit premises in 1991-92. The court also noticed that the voters' lists (Ex. 81 to 84) published in 1995, 1998, 2002 and 2007 showed him (Defendant) as residing at the suit premises with the obstructionists. The court also observed that though it was the case of the obstructionists that the Defendant went to reside at Borivali, no documentary proof was tendered in support of the Defendant's residence at any place other than the suit premises. The court, in the premises, did not accept the obstructionists' contention that the Defendant did not reside in the suit premises and had no concern with it. There is no infrmity in the fnding of the court, much less any perversity. Besides, the timing of the FIR (November 2008), considering that the Defendant's CRA from the decree of eviction was dismissed by this court on 5 May 2008 and time was given to the Defendant to vacate the suit premises by 31 October 2008, is highly suspect. It is legitimate to infer from the course of events leading upto that FIR that after their last attempt to resist a decree of eviction on merits was repelled by this court, the legal heirs of the original deceased tenant were devising a strategy to resist execution by ofering obstruction.
10 The courts below, accordingly, cannot be said to have committed any error in passing the impugned orders. There is, thus, no merit in the CRA. The application is dismissed.
(S.C. GUPTE, J.) 11 / 11 ::: Uploaded on - 11/10/2019 ::: Downloaded on - 18/04/2020 20:33:35 :::