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17. Mr. Tulzapurkar submitted that in 1997 when the Award was being made, the business of deceased Vinayakrao was not in existence. Shri Vinayakrao died in the year 1958. Much prior thereto, he had stopped his participation in the activities of the studio. It was only Brahmesh who was carrying on the activity as a Sculptor. Even Mahabaleshwar was a Painter. Admittedly, since 1963-64,Mahabaleshwar had left the residential premises and stopped his participation in the studio and had started his own studio in a different name at Mahim. The profession of a sculptor depends on personal skill. Thereafter Brahmesh alone is running the business in these premises. The Suit is filed in the year 1990 and the Award was being made in the year 1997. He further submitted that thus in the guise of sale of business, stock-in-trade, goodwill etc. what was being sold along therewith were the tenancy rights in the studio and in the godown. Mr. Tulzapurkar then submitted that apart from the fact that there was no such goodwill of Shri Vinayakrao remaining in 1997, the studio and the godown were in the exclusive possession of Brahmesh who was running them. It was he, who was paying the rent to the landlord, may be in the name of WFAS. It was, therefore, his tenancy which was protected under Section 5(11)(c)(ii) of the Rent Act inasmuch as it was he who was running the business and using the premises for that business at the time of the death of Shri Vinayakrao and even thereafter exclusively. He pointed out that the Statement of Claim contained a submission that the tenancy rights devolved on all heirs. As against that, it was specifically pleaded in Para-13 of the Written Statement that the estate of the deceased did not include the tenancy. Thus, whether the tenancy devolved on all the heirs or whether only Brahmesh got the protection under Section 5(11)(c)(ii) of the Rent Act was a question squarely arising in the proceedings. Mr. Tulzapurkar submitted that under Section 28 of the Bombay Rent Act, it was the Small Causes Court alone which had jurisdiction to decide this question and the Arbitrator had no jurisdiction to decide it.

It was submitted that by virtue of Section 5(11)(c) and by conduct of the parties, it is only Brahmesh, on whom tenancy rights had devolved excluding all other heirs and he cannot be divested of his tenancy under the garb of selling business in an arbitration arising out of a suit for administration of the estate of the deceased. In any event, the part of the Award, to the extent it pertained to the tenancy rights, was beyond the jurisdiction of the Arbitrator.

19. (a) Reliance was placed in this behalf upon a judgment of the Apex Court in the case of Natraj Studios (P) Ltd. v. Navrang Studios and Anr. reported in AIR 1981 SC 537. That was a case where the Appellant was given the suit premises of the Respondent on leave and licence basis and the Appellant claimed the protection of the amended Section 15-A of the Rent Act, which came into force on 1st February 1973. This Court had appointed an Arbitrator at the instance of the 1st Respondent to decide their claim for the premises. That order was challenged in a Civil Appeal to the Apex Court. The Apex Court examined the scheme of the Rent Act and in Para-24 of the judgment held that both by reason of Section 28 and by reason of the broader considerations of public policy, the Court of Small Causes has and the Arbitrator did not have the jurisdiction to decide the question whether the Respondent-licensor or landlord is entitled to seek possession of the two studios and other premises together with machinery and equipment form the Appellant-liensee. Later, in that very paragraph, the Court observed that this is the real dispute between the parties is abundantly clear from the petition filed by the Respondents in the High Court which referred to the notices exchanged between the parties seeking possession of the premises and the Appellant claiming to be tenant thereof.

28. In the present case, the submission of the tenancies being outside the inheritance as per Hindu Law was specifically raised in Para 13(k) of the Written Statement. That apart, it is also submitted that this was an issue within the special jurisdiction of the Court of Small Causes and outside that of the regular Civil Court and, therefore, also outside the authority of the Arbitrator. As per the judgment in Natraj Studio (Supra), such a plea when raised in the Written Statement had to be decided when it was related to the question of jurisdiction of the Arbitrator. And as per the judgment in Rajasthan Mines (supra), even in the case of a non-speaking Award, if there is a lack of jurisdiction in the arbitrator then such a question can always be raised since it goes to the root of the authority of the Arbitrator to deal with the particular controversy. Here the question is whether the Arbitrator could claim such an authority and the answer will have to be in the negative. We make it clear that for a moment we are not holding that Brahmesh exclusively succeeded to the tenancy of WFAS. All that we are saying is that he has raised this plea and there are factors in support thereof. Thus, he alone was a sculptor from amongst the sons of Shri Vinayakrao and he continued to run that very business in those premises. He has paid the rent may be from the account of WFAS) after Shri Vinayakrao died in 1958. The only other person who could claim to be running the business was Mahabaleshwar. He was a Painter and not a sculptor. Admittedly, he left the joint family house in 1963, went to stay in the Central suburb at Mahim and set up his studio there in 1963. In 1988, he claims to have been excluded from the business and in 1990 he filed the Suit. The writing of Shri Vinayakrao, a joint account and one cheque jointly issued in 1988 is the material in his support. As against this, it is submitted by Brahmesh that at the highest, business may be construed as common but not the tenancy. And then in a claim between two of them for tenancy, the Small Causes Court is given the special jurisdiction to decide it. All that we say in that this issue will have to be decided and the Small Causes Court alone has the authority to decide it. It may as well decide that the tenancy continued to be joint and did not devolve exclusively on Brahmesh, and then pass appropriate orders. (We again make it clear that for a moment we are not suggesting that the order should be one or the other). It is within the exclusive jurisdiction of that Court to decide this issue and not that of the Arbitrator. By "agreeing to refer all disputes", the substantive right to claim exclusive inheritance cannot be said to be given up nor the authority to decide the submission of exclusive succession to tenancy can be said to be conceded to the Arbitrator. In fact, Brahmesh has squarely raised these issues. the Statute (Rent Act) confers the exclusive jurisdiction to decide such controversy on the Court of Small Causes. If the Appellants were to give up their claim to exclusive inheritance (as in Melanie's case by implication) it was another matter. If they raise such an issue, the Arbitrator cannot decide it.

30. As noted above, under Section 5(11)(c)(ii) of the Bombay Rent Act, a tenant is defined to mean a member of the tenant's family using the premises for the purposes of business with the tenant at the time of his death. Brahmesh has made that claim that he was the one who was carrying on the business of the deceased Vinayakrao at the time of his death in the year 1958 and has continued to carry it on thereafter. The last portion of Section 5(11)(c)(ii) provides that in the absence of any such member, any heir of the deceased tenant, as may be decided by an agreement or in absence thereof an heir decided by the Court, can claim this tenancy. This Court is Small Causes Court. It is the case of Brahmesh that the tenancy has exclusively devolved on him. If Mahabaleshwar and others are of the view that the tenancy did not so devolve only on Brahmesh and that it remained joint or that it devolved only on Mahabaleshwar,it is for them to establish that. The last part of Section 28(1)(b) of the Bombay Rent Act provides exclusive jurisdiction to the Small Causes Court "to decide any application made under this Act and to deal with any claim or question arising out of this Act or any of its provisions". This part also declares that subject to the provision of Sub-section (2), no other Court shall have jurisdiction to entertain any such suit, proceeding or application or to deal with such claim or question. Sub-section (2) of Section 28 gives the power to the District Court to withdraw any such suit, proceeding or application pending in the Small Causes Court in certain circumstances, with which we are presently not concerned. This being the position, and since the question has been raised, it will have to be decided in the proper forum only and not else where. In this connection, it is material to note that in the case of P.V. Raheja v. Life Insurance Corporation of India and Ors. , a learned Single Judge (Smt. Sujata Monohar, J. as The Hon'ble Judge then was in this Court) has held as under:-