Wednesday, 26 August 2020

Bombay HC: Court can declare only one member of the family as a tenant

In Miss Gool Rustomji Lala v. Jal Rustomji Lal, 73 B.L.R. 600 Section 5(11)(c) of the Rent Act was considered by this Court. In that case the dispute was between a brother and a sister. Rustomji, the original tenant died on 12.3.1958. Admittedly the tenancy rights of the suit land were willed away by him in favour of his daughter the petitioner therein. The landlord gave notice terminating the tenancy of the petitioner as also of respondent 1, the brother of the petitioner. The petitioner made an application against the landlord in the Small Causes Court at Bombay praying for declaration that she alone was a tenant. An ex parte declaration was made in her favour to the effect that she was a tenant. Respondent 1 made application against the petitioner and also the landlady that as he was residing with the deceased tenant at the time of his death, he was entitled to a declaration under Section 5(11)(c) of the Rent Act that he was a tenant of the suit flat. The court held that both the petitioner as well as respondent 1 therein were qualified to be the tenants under Section 5(11)(c) of the Rent Act. the matter travelled upto the High Court. It was argued before the High Court that word "any member" would include other members of the tenant's family residing with him. On the basis of Section 13(b) of the General Clauses Act, 1987, it was argued that singular shall include the plural. This contention was negatived by the court. It was held that under Section 13(b) of the General Clauses Act, singular shall include plural when there is nothing repugnant in the subject or context. Considering the subject and the context of the Rent Act and its object, the court was of the view that the court must declare only one person as the tenant under Section 5(11)(c) of the Rent Act 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.

10. In Shamkant Naik's case (supra) the widow of the tenant gave an undertaking before the High Court that the premises would be vacated by a particular date and in the meanwhile before that date her son and daughter instituted suit to claim tenancy under Section 5(11)(c) of the Bombay Rent Act. It was argued that the son and daughter had an independent right and they did not claim through the widow and as they were residing with the deceased tenant at the time of death, they would become tenants under Section 5(11)(c) of the Bombay Rent Act and obstruction caused by them was justified. Relying on Gool Rustomji's case (supra) this Court held that the original tenant had died as far back as in 1962 and it was respondent 1 alone who was recognized as the tenant. Till the decree was finally passed against her no claim of whatsoever nature was set up by respondent 2 and 2(a). The court observed that it was obvious that it was a belated effort on the part of respondent 2 and 2(a) to delay and defeat the execution of decree passed against respondent 1. The court then observed that phrase "any member" of the tenant's family residing with the tenant at the time of his death would not enable each and every member of the tenant's family to claim an independent right of tenancy in respect of the tenanted premises. "Any member" would mean "any one member".


12. Accommodation is a serious problem facing people. Practically in every tenanted premises along with the tenant scores of other relatives reside. After the death of the tenant there is always an attempt to claim tenancy rights in the suit premises with the help of Section 5(11)(c) of the Rent Act. It is, therefore, for the court to find out who really can get the benefit of Section 5(11)(c). For this the court has to take into consideration various factors such as who was accepted as a tenant by the landlord, whether other members who are putting up a claim had accepted that person as a tenant or whether they had resisted the claim of that person to tenancy at any time, and in some cases wishes of the deceased tenant. In this connection it is necessary to quote the relevant observations of this court in Gool Rustomji's case (supra);

"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 Act."
13. In cases such as the present one where the landlord is being denied the fruits of the decree by a member of the deceased tenant's family who had all along accepted the son's claim to tenancy the court has to be more careful. here the case of the plaintiff was that Arun Gokhale was the tenant and he resided in the suit premises along with his wife, mother and other children. This fact was not denied in the written statement. The petitioner who is his mother never resisted the acceptance of Arum as tenant. Admittedly the rent receipts were issued in the name of Arun; that was also not resisted by the petitioner. In fact in the written statement contention was taken up that the other legal heirs of Keshav Gokhale were not joined in this suit and, therefore, the suit was not tenable. That contention was negatived by the trial court. In appeal the decision of the trial court was confirmed. The matter travelled upto the supreme court and that view was confirmed. This is a case, therefore, where the judgment of this court in Gool Rustomji Lala's case (supra) and Shamkant Naik's case (supra) will squarely apply.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 2311 of 1991

Decided On: 19.06.2003

Vimalabai Keshav Gokhale Vs.  Avinash Krishnaji Biniwale and Ors.

Hon'ble Judges/Coram:
Ranjana Prakash Desai, J.

Citation: MANU/MH/0343/2003


1. The petitioner has challenged in this petition judgment and order dated 28.3.1991 passed by the III Additional District Judge, Pune in Civil appeal No. 293 of 1989 filed against the order dated 21.2.1989 passed by IV Additional Small Causes Judge Pune, being Exhibit-17 and 29 in Darkhast No. 90 of 1988. The fact of the case may be shortly stated as under:

2. Respondents 1 to 7 filed Regular Civil Suit No. 1445 of 1980 for possession of the suit premises. In that suit it was contended that one Keshav Gokhale was the original tenant of the suit premises and after his death Arun Keshav Gokhale became the tenant of the suit premises. The suit was filed inter alia on grounds of default, bonafide requirement as well as acquisition of alternative accommodation.

3. The suit was decreed on 8.10.1986. An appeal carried therefrom was dismissed. I am informed that the matter travelled up to the Supreme Court and the decree passed by the trial court was confirmed.

4. Respondent filed Regular Darkhast No. 90 of 1988, for execution of the said decree. The trial court ordered issuance of possession warrant under Order XXI Rule 35 of the Code of Civil Procedure ("the Code" for short). That warrant was returned unserved due to the obstruction by the present petitioner who is the mother of Arun Gokhale, the tenant. The Decree-holder preferred an application for removing the obstruction caused by the petitioners on the ground that she had no right to obstruct.

5. The trial court by its order dated 21.2.1989 ordered re-issuance of warrant of possession in respect of the suit premises and the possession of the suit premises was ordered to be delivered to the decree-holder by removing the obstruction caused by the petitioner. In the appeal carried therefrom the appellate court endorsed the view taken by the trial court and dismissed the appeal. Hence this petition.

6. I have heard Mr. Dhakepalkar, the learned counsel appearing for the petitioner and Mr. Deshpande, learned counsel appearing for the respondents.

7. Mr. Dhakepalkar urged that inasmuch as the present petitioner is the wife of the original tenant Keshav Gokhale, under Section 5(11)(c) of the Bombay Rent Act she has inherited tenancy right of the suit premises on the death of the original tenant Keshav Gokhale. He submitted that Arun Gokhale alone can never be treated as the tenant of the suit premises and the present petitioner who was not made a party to the suit having inherited the tenancy has a right to obstruct the execution of the decree and, therefore, the courts below erred in ordering that possession of the premises be handed over to the respondents. In support of his submission the learned counsel relied on Textile Association (India) Bombay Unit v. Balmohan Gopal Kurup and Anr., A.I.R. 1990 S.C. 205.

8. As against that Mr. Deshpande, learned counsel for the respondents relied heavily on the judgment of learned Single Judge of this Court in Shamkant Tukaram Naik v. Smt. Dayanabai Shamsan Dighodkar and Ors., 1981 (1) Bom. C.R. 554 and contended that Section 5(11)(c) of the Bombay Rent Act, would not enable each and every member of the tenant's family to claim an independent right of tenancy in respect of the tenanted premises. Any member would mean any one member. He submitted that, it was Arun Gokhale who was recognized as a tenant of the premises. Admittedly all the rent receipts were issued in his favour and, therefore, the courts below committed no illegality in ordering that the possession be handed over to the respondents by removing the obstruction caused by the petitioner. The learned counsel submitted that the Supreme Court's judgment in Textile Association (India) case (supra) is not applicable to the facts of the present case.

9. In Miss Gool Rustomji Lala v. Jal Rustomji Lal, 73 B.L.R. 600 Section 5(11)(c) of the Rent Act was considered by this Court. In that case the dispute was between a brother and a sister. Rustomji, the original tenant died on 12.3.1958. Admittedly the tenancy rights of the suit land were willed away by him in favour of his daughter the petitioner therein. The landlord gave notice terminating the tenancy of the petitioner as also of respondent 1, the brother of the petitioner. The petitioner made an application against the landlord in the Small Causes Court at Bombay praying for declaration that she alone was a tenant. An ex parte declaration was made in her favour to the effect that she was a tenant. Respondent 1 made application against the petitioner and also the landlady that as he was residing with the deceased tenant at the time of his death, he was entitled to a declaration under Section 5(11)(c) of the Rent Act that he was a tenant of the suit flat. The court held that both the petitioner as well as respondent 1 therein were qualified to be the tenants under Section 5(11)(c) of the Rent Act. the matter travelled upto the High Court. It was argued before the High Court that word "any member" would include other members of the tenant's family residing with him. On the basis of Section 13(b) of the General Clauses Act, 1987, it was argued that singular shall include the plural. This contention was negatived by the court. It was held that under Section 13(b) of the General Clauses Act, singular shall include plural when there is nothing repugnant in the subject or context. Considering the subject and the context of the Rent Act and its object, the court was of the view that the court must declare only one person as the tenant under Section 5(11)(c) of the Rent Act 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.

10. In Shamkant Naik's case (supra) the widow of the tenant gave an undertaking before the High Court that the premises would be vacated by a particular date and in the meanwhile before that date her son and daughter instituted suit to claim tenancy under Section 5(11)(c) of the Bombay Rent Act. It was argued that the son and daughter had an independent right and they did not claim through the widow and as they were residing with the deceased tenant at the time of death, they would become tenants under Section 5(11)(c) of the Bombay Rent Act and obstruction caused by them was justified. Relying on Gool Rustomji's case (supra) this Court held that the original tenant had died as far back as in 1962 and it was respondent 1 alone who was recognized as the tenant. Till the decree was finally passed against her no claim of whatsoever nature was set up by respondent 2 and 2(a). The curt observed that it was obvious that it was a belated effort on the part of respondent 2 and 2(a) to delay and defeat the execution of decree passed against respondent 1. The court then observed that phrase "any member" of the tenant's family residing with the tenant at the time of his death would not enable each and every member of the tenant's family to claim an independent right of tenancy in respect of the tenanted premises. "Any member" would mean "any one member".

11. In my opinion reliance on Textile Association's case (supra) is also misplaced. In that case one Gopal Kurup was the tenant. He left behind a widow and two sons and a daughter. After his death the landlord filed a suit for eviction on the ground of bonafide requirement and default in payment of rent. In that suit respondent 1 i.e. the son of Gopal Kurup was not made a party. The suit was decreed ex parte on the ground of arrears of rent. The decree was executed. Respondent 1 filed a suit that he was one of the tenants living in the suit premised and ex parte decree obtained by the landlord was not binding upon him. The trial court found that he was also one of the tenants who lied along with the father and declared that the ex parte decree was not binding on him. An appeal against the said decree was dismissed. The writ petition filed against that order was also dismissed by the High court. It was argued before the Supreme Court that the ex pare decree obtained against the joint tenant was equally binding on the respondent son who was not made a party. While dealing with this question the court referred to the finding recorded by the trial court that the respondent son was as much a tenant as the mother and the brother and hence ex parte decree which was passed without impleading him in that suit had to be set aside. The trial court's finding that the respondent son was as much a tenant as the mother and other brother was merely referred to while considering whether the ex parte decree should be set aside or not. The court did not consider Section 5(11)(c) of the Rent Act. This judgment, therefore, will not be applicable to the question involved in this case.

12. Accommodation is a serious problem facing people. Practically in every tenanted premises along with the tenant scores of other relatives reside. After the death of the tenant there is always an attempt to claim tenancy rights in the suit premises with the help of Section 5(11)(c) of the Rent Act. It is, therefore, for the court to find out who really can et the benefit of Section 5(11)(c). For this the court has to take into consideration various factors such as who was accepted as a tenant by the landlord, whether other members who are putting up a claim had accepted that person as a tenant or whether they had resisted the claim of that person to tenancy at any time, and in some cases wishes of the deceased tenant. In this connection it is necessary to quote the relevant observations of this court in Gool Rustomji's case (supra);

"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 Act."
13. In cases such as the present one where the landlord is being denied the fruits of the decree by a member of the deceased tenant's family who had all along accepted the son's claim to tenancy the court has to be more careful. here the case of the plaintiff was that Arun Gokhale was the tenant and he resided in the suit premises along with his wife, mother and other children. This fact was not denied in the written statement. The petitioner who is his mother never resisted the acceptance of Arum as tenant. Admittedly the rent receipts were issued in the name of Arun; that was also not resisted by the petitioner. In fact in the written statement contention was taken up that the other legal heirs of Keshav Gokhale were not joined in this suit and, therefore, the suit was not tenable. That contention was negatived by the trial court. In appeal the decision of the trial court was confirmed. The matter travelled upto the supreme court and that view was confirmed. This is a case, therefore, where the judgment of this court in Gool Rustomji Lala's case (supra) and Shamkant Naik's case (supra) will squarely apply.

14. I am of the opinion, therefore, that there is no substance in the petitioner. The petition deserves to be dismissed and it is dismissed as such.

15. At this stage Mr. Dhakepalkar states that interim relief which was granted by this court at the stage of admission may be continued for a further period of four weeks. Mr. Deshpande opposes this. In the facts of this case, further proceeding in Regular Darkhast No. 90 of 1989 pending before the Court of Additional Small Causes Judge, Pune are stayed for a period of four weeks from today subject to the petitioner and other members of the family filing the usual undertaking in this Court within two weeks from today.




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