Tuesday, 16 July 2019

Parameters for declaring one member as tenant amongst several members

Whenever persons who are members of the tenant's family start a scramble for the tenancy rights, in a sense the war of succession begins Succession to the property of the deceased is generally decided by applying the rules of succession forming part of the personal law of the parties. But the law of succession is substantially modified while resolving the disputes which arise after the death of the tenant, whether statutory or contractual. If the several members, who are residing as members of the tenant's family, fail to come to an agreement, then the Court has to make the choice and declare that one amongst them will be the tenant for claiming the protection of the Rent Act. The Court will have to take into account several relevant factors including the wishes of the deceased tenant. In all such cases the Court should have regard to the paramount collective interest of the family of the deceased tenant. The Court should make the choice in such a way that the person selected to be the tenant is likely to act in the interest of the family, like the Karta of a Hindu joint family or the paterfamilias. If the Court has in mind such considerations then it is likely that the Court will select the right person for looking after the collective interest of the tenant's family after his death. In any event the Court cannot declare more than one person as the tenant.

IN THE HIGH COURT OF BOMBAY

Spl. C. A. No 1739 of 1967

Decided On: 29.01.1971

Gool Rustomji Lala Vs. Jal Rustomji Lala

Hon'ble Judges/Coram:
S.B. Bhasme, J.
Citation:  AIR 1972 BOM 113


1. This is a dispute between the sister and her brother. The petitioner and respondent No. 1 are respectively the daughter and son of late Rustomji Lala, who was the tenant of a flat on the fifth floor of the building known as 'Joshi House', Cumballa Hill, Bombay 26. Rustomji Lala was the contractual tenant. He was residing in the flat with his wife and three children. His wife died in 1942. His one son Sohrab left India and went abroad in 1948. Since that time Rustomji stayed in the flat with the petitioner and respondent No. 1. It appears that in 1947 Rustomji gifted away his another building "Jer Mahal" to the petitioner. In 1952 he transferred his business to his son respondent No. 1. On February 19, 1954 Rustomji made a Will. Under that Will he gave away all his moveables and the tenancy right in the suit flat to the petitioner, Rustomji died on March 12, 1958. The petitioner obtained the probate of the Will on September 17, 1964. The landlord had given a notice terminating the tenancy of the petitioner and also of respondent No. 1. It appears that the petitioner had made an application No. R. A. E. 1650 of 1959 against the landlord for a declaration that she alone was the tenant. An ex parte declaration in her favour was made on August 9, 1962. On November 18, 1960 respondent No, 1 had made an application and the order passed in that application is the subject-matter of the proceedings before me. That application was given against the petitioner and also the landlord, rather the landlady, alleging that he was residing with the deceased leant at the time of the death of the tenant. As a member of the tenant's family he was entitled to a declaration under section 5 (11) (c) of the Rent Act that he was the tenant in respect of the suit flat.

2. The petitioner objected to this application on various grounds. She strongly relied on the Will and submitted that the deceased tenant had bequeathed the contractual tenancy in her favour. She alone had the right to be declared as a tenant in respect of the suit flat. In that application the petitioner also mentioned the fact that respondent No. 1 was not residing with the deceased tenant as a member of the family. He was occupying a room separately and was paying monthly charges because he was allowed to reside as a paying guest. The landlady did not file any written statement. She did engage a lawyer but the lawyer made a statement that his client was not interested in the dispute. But it appears that the landlady was examined as a witness on behalf of respondent No.1

3. The learned trial Judge considered all the facts and circumstances of the case. He came to the conclusion that respondent No. 1 was residing with the deceased tenant in the same flat as a member of his family. It is true that the deceased tenant had made a Will and bequeathed the contractual tenancy right to the petitioner. But, according to the learned trial Judge, that was not a decisive factor. Both the petitioner and respondent No. 1 were qualified to become tenants under section 5(11) (c) of the Rent Act. Accordingly, he made a declaration that the petitioner and respondent No. 1 are the tenants within the meaning of that sub-section. Respondent No. 1 appears to have accepted the finality of this adjudication. But the petitioner aggrieved by that decision approached the Division Bench of the Court of Small Causes by filing a revisional application. The Bench of the Court of Small Causes summarily rejected the revisional application on March 2, 1965.

4. The petitioner had first filed a Civil Revision Application in this Court. On June 28, 1966 she was allowed by this Court to convert that Civil Revisions! Application into a Special Civil Application. The Special Civil Application has thus come before me for final disposal

5. Mr. Abhyankar, who appears for the petitioner, contends that the learned Judge was not justified in holding that both the persons are entitled to be declared as tenants The petitioner, in addition to her being a legatee under the Will in respect of the tenancy rights, was the only member residing with the deceased tenant and she alone has a right to become the tenant of the suit flat. As the petitioner got the tenancy right under the Will, she alone will have to be considered as the person entitled to a declaration under section 5 (11) (c) of the Rent Act Lastly, Mr. Abhyankar submitted that the learned Judge has committed an error of law in declaring both the persons tenants Under the relevant part of the sub-section only one person can be declared to be the tenant.

6. Mr. Abhyankar first relies upon the Will under which the petitioner gets the tenancy rights. He says that under the first part of section 5 (11) (c) of the Rent Act it is petitioner is the person, who can be considered to be the tenant. Once it is held that the petitioner has become the tenant under the first part of the section, then it is not necessary to consider the various other clauses. These clauses will have to be considered only when the statutory tenant dies and the question arises as to who should succeed to his interest in the property. This will not be a correct reading of that sub-section. It is true that section 5 (11) (c) begins with the following definition of the tenant:

5 (11) tenant' means any person by whom or on whose account rent is payable for any premises and includes
If the expression "tenant" means only a person who acquires the tenancy rights of the deceased tenant, either as a heir or under the Will, then the other clauses will become redundant. It is true that as a person who gets the contractual tenancy rights under the Will the petitioner may claim to be the tenant within the meaning of the first part of section 5(11). But that by itself will not take away the rights which can be claimed by the various other persons under the clauses which follow. Mr. Abhyankar strongly relies on an unreported judgment of this Court for the proposition that under section 5 (11) (c) of the Rent Act the legal heir of a deceased tenant has the right to exclude other claimants who may claim tenancy rights by relying upon the other clauses of section 5 (11). Mr. Abhyankar referred to the unreported decision of K. K. Desai J- in Minoo J. Patel v. Jamshedji B Ago. (1966) Civil Revision Application No 1556 of 1963, decided by K K. Dcsai J., on February 9, 1966 (Unrep.)

7. Although the learned Judge was deciding a different point, he did make certain observations which suggest that under section 5 (11) (c) the rights of the heirs of a deceased tenant must be preferred to the rights of mere members of the tenant's family as referred to in section 5(11) (c). The learned Judge also made certain observations that the question of tenancy as under section 5 (11) (c) in favour of mere members of a tenant's family can arise only when the contractual tenancy is found to have been terminated before the death of a tenant and the heirs entitled to continue in occupation are unable to settle their disputes regarding their claim to be held tenants K. K, Desai J. who made the aforesaid observations, had not quoted any authority in support of this proposition. The wording of the section does not warrant any such restrictive interpretation. It is now well settled that the expression 'tenant' appearing in section 5 (11) (c) leaving behind the members of his family, at any rate, includes both statutory and contractual tenants. It may be that the opening words of section 5 (11) (c) are used to denote only a contractual tenant. The decision of the Supreme Court in Anand Nivas (P) Ltd v. Anandji MANU/SC/0231/1963 : AIR 1965 S. C. 414 cited by Mr. Andhyarujina contains certain observations about the scheme of section 5 (J 1) (c) and the Rent Act. Mr. Justice Shah (as he then was) has explained at page 424 the expression 'tenant' as appearing in the different clauses of section 5 (11) of the Act. According to the learned Judge in the principal definition the expression 'tenant' means only a person who is a contractual tenant because rent is payable by a contractual tenant and not by a statutory tenant. On that view of the matter, Mr. Abhyankar is right when he says that according to the opening words of section 5 (11) (c) 'The petitioner will become the contractual tenant in respect of the suit flat by virtue of her title under the Will.

8. It appears that on June 28, 1960 the respondent-landlady addressed a notice to the petitioner and also respondent No 1. terminating their tenancy on certain grounds. As the notice was addressed to the petitioner, who had acquired the contractual tenancy tight under the Will, it is clear that after the expiry of the month of tenancy the petitioner became the statutory tenant for all purposes.

9. Then Mr. Abhyankar relies upon the wording of section 5(11) (c) and submits that at any rate at the death of the deceased tenant the petitioner was having the contractual tenancy rights. She was also residing as a member of the tenant's family with him at the time of his death As against respondent No. 1. she had a better title and the Court should have named her as the sole statutory tenant under section 5 (11) (c). Mr. Abhyankar relies upon a decision reported in Troyfoot v Lock. (1957) 1 All E. R. 423 In that case a similar point arose under identical provisions of the English Rent Act. The son and the step-daughter were both members of the tenant's family when the tenant died. The tenant had, before his death, by a writing expressed his wish that the tenancy rights should devolve on the step-daughter The learned Judge while considering the claim of the step-daughter based on the writing and also the other circumstances of the case, expressed that the crucial factor would be the deceased tenant's wishes. He also made it clear that such wishes may not always have an over-riding consideration but they may in some cases have decisive effect. Mr. Abhyankar says that in the present case the deceased tenant before his death had disposed of his entire property according to his wishes. He had transferred his business to his son in his lifetime. He had also given away another building to the petitioner, and in the Will he had expressed a wish that the tenancy rights in respect of the flat should devolve on the petitioner. It is true, as stated by the learned Judge in the above case, the wish of the deceased tenant will be considered as relevant and having regard to the other circumstances, at times that may be accepted as decisive. But I am of the opinion that it will not affect the unfettered discretion vested in the Court to elect one of the several contestants in exercise of its powers under section 5 (11) (c) of the Rent Act.

10. While this matter was argued before me there was some interesting discussion about the rights of the contractual tenant as against the tenant who would be declared as a statutory tenant by the Court under section 5(11) (c) of the Act. Mr. Andhyarujina referred to a decision in Modie v.Hosegood. 1952 A. C. 61 It was held in that case that under the relevant provisions of the English Rent Act the widow of a deceased tenant, (whether the tenant is contractual or statutory), who was residing with her husband at the date of his death is entitled to the protection given by the Act. It was also held that if a contractual tenancy is still subsisting at her husband's death and devolves upon the some one other than the widow, it is not destroyed but the rights and obligations which ordinarily devolve upon the accessory-in-title of the contractual tenant are suspended so long as the widow retains the possession of the dwelling house. It was further made clear in that decision that the contractual tenancy is determinable by notice. The landlord or the contractual tenant can determine it by giving the appropriate notice but the determination will not affect the widow's rights and obligations. If no notice is given the contractual tenancy will come into full operation when the widow gives up possession. In the present case admittedly a quit notice was given terminating the contractual tenancy which vested in petitioner No, 1 after the death of the tenant. It is for this reason that the question about the position of the contractual tenant pending the statutory tenancy vesting in someone else either under the Rent Act or as a result of the declaration made by the Court under section 5 (11) (c) of the Rent Act need not be debated further in this case. Similarly, there was some discussion about the extent of the transmission of the tenancy rights after the death of the statutory tenant who derives his rights under a declaration made by the Court under section 5(11) (c). That presents a vexed problem and will have to be resolved in a proper case.

11. Mr. Abhyankar lastly submitted that the learned Judge was in clear error when he declared both the petitioner and respondent No. 1 tenants under section 5 (11) (c) of the Rent Act. Mr. Abhyankar argues that the wording of the section clearly postulates that the Court can declare only one person as the tenant in respect of the deceased tenant's premises. When more than one person claim such a right and there is no agreement between them inter se then the Court must make a choice and declare that only one person is the tenant of the premises. For appreciating the point raised by Mr. Abhyankar, it will be desirable to reproduce the relevant part of the sub-section.

'5. (11) 'tenant' means any person by whom or on whose account rent is payable for any premises and includes.

(a)

(aa)

(b)

(c) 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;

Mr. Abhyankar emphasises the words "any member of the tenant's family" and submits that the Court must pick up one of the several claimants as the fit person to be tenant and make the declaration accordingly. Mr. Andhyarujina, on the other hand, submits that the singular used in the section includes the plural He strongly relies upon section 13 (b) of the Bombay General Clauses Act. That section reads thus:

13. In all Bombay Acts (or Maharashtra Acts), unless there is anything repugnant in the subject or context,-

(a)....

(b) words in the singular shall include the plural, and vice versa" Mr. Andhyarujina also brought it to ray notice that at one time while interpreting a similar provision of the English Act it was held that the singular under that Act included the plural. Mr. Andhyarujina was fair enough to refer to a recent contrary ruling reported in Dealex Properties Ltd. v. Brooks. (1966) 1 Q. B. 542 The Court of appeal was considering a similar provision of the English Rent Act, i. e. section 12 (1) (g) of the Act of 1920. The relevant part of that section was to the following effect:

12 -(1) (g)".. and the expression 'tenant' includes the widow of a tenant dying intestate who was residing with him at the time of his death, or, where a tenant dying intestate leaves no widow or is a woman, such member of the tenant's family so residing as aforesaid as may be decided in default of agreement by the county court,

The expression ''such member" was construed to be not plural but singular. It was argued that the Court should construe the word "member" as "members" because under the Interpretation Act a singular included a plural. But the learned Judge brushed aside that suggestion by saying that that was to be done only when the statute did not evince a contrary intention. Any other interpretation would have undesirable consequences. The learned Judge admirably sums up some of the consequences in these words :

To my mind a fearful confusion ensues once it is supposed that there can be a plurality of members who may agree together, and so have a sort of tontine which will last for so long as the survivor of them is in existence. I think that under the Rent Acts a tenant must be a single person because it is a status of irrevocability which belongs to him, and I do not think to anyone but him.
So, according to the learned Judge, the member of the family of the tenant who can inherit the right could be only one person This position appears to be accepted even by the learned author, R. E. Megarry, in his recent book, The Rent Acts, 10th Edn., at page 217, para. (d). The relevant portion from that paragraph may be reproduced here:

(d) No joint tenancy -It has been held that two or more claimants cannot take the transmitted tenancy as joint tenants, thus avoiding 'fearful confusion' and 'absurd consequences.
So Mr. Andhyarujina cannot rely too much on section 13 (b) of the General Clauses Act. Under that clause of the General Clauses Act singular shall include the plural when there is nothing repugnant in the subject or context. Considering the subject and context of the Rent Act and its object, I am of the view that the Court must declare only one person as the tenant under section 5(11) (c) after considering the claims of all those persons who say that they are members of the tenant's family and were residing with him at the time of his death. This interpretation found favour with Patel J. in Hari Dattatraya Khandtkar v. Bhalchandra Dattatiaya Khandtkar 1965) Civil Revision Application No. 1511 of 1962, decided by Patel J., on September 17, 1965 (Unrep)

12. Whenever persons who are members of the tenant's family start a scramble for the tenancy rights, in a sense the war of succession begins Succession to the property of the deceased is generally decided by applying the rules of succession forming part of the personal law of the parties. But the law of succession is substantially modified while resolving the disputes which arise after the death of the tenant, whether statutory or contractual. If the several members, who are residing as members of the tenant's family, fail to come to an agreement, then the Court has to make the choice and declare that one amongst them will be the tenant for claiming the protection of the Rent Act. The Court will have to take into account several relevant factors including the wishes of the deceased tenant. In all such cases the Court should have regard to the paramount collective interest of the family of the deceased tenant. The Court should make the choice in such a way that the person selected to be the tenant is likely to act in the interest of the family, like the Karta of a Hindu joint family or the paterfamilias. If the Court has in mind such considerations then it is likely that the Court will select the right person for looking after the collective interest of the tenant's family after his death. In any event the Court cannot declare more than one person as the tenant under section 5(11) (c) of the Rent constitution of The learned trial Judge was clearly in error when he made a declaration that both the petitioner and respondent No. 1 are tenants under section 5 (11) (c) of the Rent Act.

13. Despite this finding in favour of the petitioner, I do not propose to interfere with the order of the learned trial Judge for certain good reasons. The petitioner is a younger sister of respondent No. 1. They were residing together under the same roof for several years. During the life time of the father and even after his death respondent No. 1 is paying a substantial amount by way of contribution towards the family expenses. After the death of the deceased tenant the landlady treated both as tenants and served them with quit notices. Even when the dispute started between the brother and sister, the landlady had not shown any interest in the proceedings. After the learned trial Judge made the declaration the landlady accepted that as final and binding. In view of the circumstances, I am of the view that no interference is called for in exercise of my powers under Article 227 of the Constitution of India.

14. In the result the application fails and the rule is accordingly discharged. There will be no order as to costs.

15. The rule issued on the Civil Application is discharged with no order as to costs.


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