Bombay HC: Basic principles which court should follow while declaring any one member of the family as a tenant

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."{Para 12}

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.

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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

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Bom HC: Court cannot declare more than one person as tenant U/S 5 (11) (c) of Bombay Rent Act

 In Vimalabai Keshav Gokhale vs. Avinash Krishnaji

Binjewale & ors (supra) contention of the respondents therein that

section 5 (11) (c) of the Bombay Rent Act would enable each and

every member of the tenant’s family to claim an independent right

in respect of the tenancy was rejected and it was held that any

member would mean ‘any one member.’

40. In Smt.Parvatibai w/o Bandu Marathe vs Smt Radhabai

Chaggan Bhadarkar decd by her legal heirs (supra), a learned Single

Judge of this Court held that it is only one member of the family who

can be recognized as a tenant by the Court and not all members

residing in the premises at the time of demise of the original tenant.

41. In Shamkant Tukaram Naik vs Dayanabai Shamsan

Dighodkar (supra) a learned Single Judge of this Court held that the

words “ any member of the tenant’s family residing with the tenant at

the time of his death” as used in section 5(11)(c) would not enable

each and every member of the tenant’s family to claim an

independent right in the tenancy, in respect of the tenanted premises.

It was held that ‘any member’ would mean only “one member”.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

Writ Petition No. 2371 OF 1997

Vasant Sadashiv Joshi.  Vs  Yeshwant Shankar Barve

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Whether every family member of deceased tenant can claim independent right of tenancy?

The 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.

IN THE HIGH COURT OF BOMBAY

Contempt Petn. No. 89 of 1986

Decided On: 21.02.1989

Shamkant Tukaram Naik Vs. Dayanabai Shamsan Dighodkar and Ors.

Hon'ble Judges/Coram:

A.C. Agarwal, J.

Citation : 1989 MhLJ857

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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

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Whether brother of deceased tenant is her family member entitled to get tenancy rights after her death?

 Section 3(g) defines 'family', in relation to landlord which includes the spouse that is husband or wife of a person, male lineal descendants which means his or her son, son's son, son's son's son and so on, parents, grandparents, unmarried, widowed, divorced daughter or granddaughter, etc. The definition given in the Clause is an inclusive one and is supposed to be construed in its technical meaning which implies what is not given has to be excluded as not forming part of the family of landlord or tenant. Therefore, sisters and brothers of landlord and tenant are excluded from his/her family. In the facts of present case, the Appellant being brother of deceased tenant cannot be held to be the 'family' as the inclusive list given under the Act clearly omits "brother and sister" and the same cannot be read therein as the list has to be read and interpreted strictly.

14. Assuming, for the sake of arguments that the Appellant is an heir of Lalita, for devolution of tenancy, on the death of Lalita, the Appellant has to be a 'tenant' within the meaning of Section 3(a) of the U.P. Act XIII of 1972. As per Section 3(a)(1), in the case of residential building, in the event of death of a tenant, for heirs to be treated as tenant, the statute requires them to prove that they have been normally residing with the deceased tenant at the time of his/her death. The term used in the Section is 'heir' which implies that not any of the family member residing with the tenant would succeed to the tenancy, but only the heirs of tenant normally residing with him/her. The words "normally residing with him" suggests that only those heirs would inherit the tenancy rights of deceased tenant who resided with him ordinarily in normal course and not temporarily. The legislative intent appears to be that only those heirs would inherit tenancy who normally resided with the tenant and not occasionally. In the present case, the Appellant claims that he has been carrying on business in the property along with his deceased sister Lalita and had been ordinarily living with her because of the medical business they were running. The Appellant being the brother of deceased-Lalita had no reason to normally reside with his married sister. Be it noted, in her written statement filed in the release application, Lalita has not averred that her brother-Appellant Durga Prasad was living with her and that he was taking care of her. As rightly held by the Courts below, Durga Prasad is neither a 'heir' within the meaning of Section 3(a) nor fall under the definition of 'family' as per Section 3(g) of the Act.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 1305-06 of 2017

Decided On: 07.02.2017

 Durga Prasad  Vs. Narayan Ramchandaani (D) thr. L.Rs.

Hon'ble Judges/Coram:

Dipak Misra and R. Banumathi, JJ.

Citation: 2017(5) All MR 468(SC), AIR 2017 SC 915,(2017) 5 SCC69

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How to ascertain whether a person is family member of tenant?

The question as to whether a person is a member of the family of the tenant must be decided on the facts and circumstances of the case. Apart from the parents, spouse, brothers, sisters, sons and daughters, if any other relative claims to be a member of the tenant's family, some more evidence is necessary to prove that they have always resided together as members of one family over a period of time. The mere fact that a relative has chosen to reside with the tenant for the sake of convenience, will not make him a member of the family of the tenant in the context of rent control legislation.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 7161 of 2003

Decided On: 01.12.2005

 Kailasbhai Shukaram Tiwari Vs.  Jostna Laxmidas Pujara and Ors.

Hon'ble Judges/Coram:

B.P. Singh and P.K. Balasubramanyan, JJ.

Citation: AIR 2006 SC 741

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Whether family member of tenant can reside in tenanted premises after eviction of tenant?

The Ld. counsel for the appellants/defendants argued that the subject suit could not be decreed under Order XII Rule 6 CPC because it has to be determined as to whether the decree has to be passed against appellant no. 1/defendant no. 1/brother or against the appellant no. 2/defendant no. 2/sister, because it is only against a tenant that a decree can be passed.

6. The trial court, though in my opinion, has rightly observed that the fact of the matter is that either one of the appellants/defendants is a tenant and therefore such a person who is a tenant is liable to vacate the property, and therefore the decree for possession has to be passed. The trial court in this regard has rightly observed in paras 10 and 11 of the impugned judgment which read as under:-

"10. From the stand taken by both the defendants, it is clear that they are trying to create confusion regarding relationship of landlord and tenant between the parties. But, it is also manifests from the written statements of both the defendants that one of them is tenant of the plaintiff in the suit property and other is residing therein not in his/her individual capacity but as a family member of the one who is tenant in the property.

11. To the mind of this court, the question under consideration is limited whether the plaintiff is entitled for the decree of possession u/o 12 rule 6 CPC, therefore, the controversy whether it is the defendant no. 1 or the defendant no. 2 is the tenant losses its importance in the pecuniary facts of this case since, as already observed, one of the defendant admittedly is the tenant in the property and other is residing only as family member of the tenant. The defendant no. 2 has stated herself to be tenant of the plaintiff in the suit property w.e.f. 16.01.2014, on the basis of oral tenancy entered between her and plaintiff. The plaintiff has denied any such oral tenancy agreement between her and defendant no. 2. Considering, only for the purpose of point under consideration, the averments of the defendant no. 2 to be correct that she is the tenant of the plaintiff in the suit property, the ingredient of relationship of landlord and tenant between the plaintiff and defendant no. 2 stands established."

7. In my opinion, the aforesaid conclusion of the trial court is buttressed by the legal provision of Order I Rule 7 CPC which provides that where the plaintiff is in doubt from whom the relief is to be sought, the plaintiff in such a situation can add more than one parties as defendants to the suit. This provision of Order I Rule 7 CPC reads as under:-

"7. When plaintiff in doubt from whom redress is to be sought. Where the plaintiff is in doubt as to the person from whom he is entitled to obtain redress, he may join two or more defendants in order that the question as to which of the defendants is liable, and to what extent, may be determined as between all parties."

8. In my opinion, therefore, the reasoning and conclusion of the trial court is correct because in a suit for possession, a person who has no right to continue in the tenanted premises, as the tenancy of the tenant stands terminated, a decree for possession has to be passed, and the same was therefore rightly passed by the trial court by making relevant observations in paras 10 and 11 of the impugned judgment which are reproduced above, and this reasoning is buttressed by Order I Rule 7 CPC, which has also been reproduced above. The person who is the tenant is evicted and the other appellant living only as a family member of the tenant will also go when the tenant is evicted.

IN THE HIGH COURT OF DELHI

RFA No. 945/2018

Decided On: 07.12.2018

 Ramesh Chander Sethi  Vs. Shashi Grover

Hon'ble Judges/Coram:

Valmiki J. Mehta, J.

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When family member of tenant is entitled to get tenancy rights after death of original tenant?

In Ashok Chintaman (supra), the Apex Court, while dealing with the provisions of Section 5(11)(a) of the Bombay Rent Act, observed as under:

"In the present case we are concerned with clause (c) of sub-section (11) of Section 5 which provides that "tenant" includes 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. There are two requisites which must be fulfilled before a person is entitled to be called a "tenant" under clause (c); firstly, he must be a member of the tenant's family and secondly, he must have been residing with the tenant at the time of his death. Besides fulfilling these conditions he must have been agreed upon to be a tenant by the members of the tenant's family; in default of such agreement the decision of the court shall be binding on such members."

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 2387 of 1992

Decided On: 09.08.2005

Shaikh Abdul Reheman Mohammad Ashraf and Shri Shaikh Jafar Mohamed Ashraf

Vs.

 Shri Shaikh Mohamad Haji Papamiya

Hon'ble Judges/Coram:

Anoop V. Mohta, J.

Citation : 2005 (5)BomCR 6

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Whether relative of deceased tenant is entitled to get tenancy rights as per S 7(15)(d) of Maharashtra rent control Act?

The question still arises as to whether respondent No. 2 can be considered to be a member of the family of respondent No. 1. It is not in dispute that respondent No. 2 is the cousin of the husband of respondent No. 1. It also cannot be disputed that he came to reside with tenant-respondent No. 1 and her husband in the year 1980, and was not residing with them since the commencement of the tenancy some time in the year 1973 or 1975, (the precise year when the tenancy commenced is not clear from the record). It is also admitted by respondent No. 2 that he had his own separate and independent business and that he was not looking after the business of the husband of respondent No. 1. The husband of respondent No. 1 has a trading business in coal, whereas respondent No. 2 claims to have a transport, business and he owned a truck which he was plying for gain.

12. It was sought to be argued before us that since the father of the husband of the tenant-respondent No. 1 and the father of respondent No. 2 are real brothers, there is blood relationship between the two and therefore it must be held that respondent No. 2 is a member of the family of respondent No. 1. This submission overlooks the fact that the tenant in question is not the husband of respondent No. 1 but the respondent No. 1 herself. It cannot be said that respondent No. 1 and respondent No. 2 are blood relations. That apart, the question still remains as to whether in the facts and circumstances of the case it can be held that respondent No. 2 is a member of the family of respondent No. 1. It is futile to attempt to lay down a strait, jacket formula as to who can be considered to be the member of the family of the tenant, particularly in the absence of definition of 'family' in the Act. Having regard to relevant considerations, the question must be decided on the facts and circumstances of each case. The High Court has relied upon some decisions of this Court wherein the question raised was whether the brother was a member of the family, or a case where the tenant had to go to a foreign country on business, leaving behind his parents and family members, including brothers and sisters. In such a factual situation, this Court held that the persons who occupied the premises were the members of the family of the tenant. Such is not the case here.

13. It is not the case of the respondent No. 2 that the family of the husband of respondent No. 1, including his uncles and cousins, always resided together. In fact the evidence on record discloses that respondent No. 1 resided in the premises with her husband only. Respondent No. 2 joined them sometime in the year 1980, and he had his own separate business. There is nothing to show that they ever resided together at any earlier point of time or that their fathers ever lived together. In fact the evidence on record is to the contrary. After he came to reside with respondent No. 1 in the year 1980, an alternate premises was acquired by the tenant and she shifted to those premises sometime in the year 1981. Soon thereafter this dispute arose, because the tenant having shifted to another premises at Borivili, the premises in question continued to be occupied by respondent No. 2. In the facts and circumstances, it is difficult to hold that respondent No. 2 is a member of the family of respondent No. 1, the tenant.

14. The question as to whether a person is a member of the family of the tenant must be decided on the facts and circumstances of the case. Apart from the parents, spouse, brothers, sisters, sons and daughters, if any other relative claims to be a member of the tenant's family, some more evidence is necessary to prove that they have always resided together as members of one family over a period of time. The mere fact that a relative has chosen to reside with the tenant for the sake of convenience, will not make him a member of the family of the tenant in the context of rent control legislation.

We are, therefore, satisfied that the courts below were justified in holding, on the basis of the evidence on record, that the premises in question was let out to respondent No. 1 which was occupied by her and her husband. She acquired another premises at Borivili where she shifted in the year 1981. Before that, in the year 1980 itself, respondent No. 2 had come to reside with them and he continued to occupy the demised premises even after respondent No. 1 and her husband shifted to another accommodation at Borivili. Respondent No. 2 cannot be said to be a member of the family of respondent No. 1, in the facts and circumstances of the case, and in the context of rent control legislation, with which we are concerned in the instant case.
IN THE SUPREME COURT OF INDIA

Civil Appeal No. 7161 of 2003

Decided On: 01.12.2005

Kailasbhai Shukaram Tiwari  Vs. Jostna Laxmidas Pujara and Anr.

Hon'ble Judges/Coram:

B.P. Singh and P.K. Balasubramanyan, JJ.

Citation: AIR 2006 SC 741

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Whether execution of eviction decree obtained against tenant can be resisted by his family members?

 In the case on hand, as noted earlier, on the death of the original tenant Chintaman the rent bills in respect of the premises in question were issued in the name of his elder son Kesrinath and on his death the rent bills were issued in the name of the widow Smt. Kishori Kesrinath Juker. It is not the case of the appellant no. 1 that there was any division of the premises in question or that rent was being paid to the landlord separately by him. Indeed the appellant no.1 took the plea that he was paying the rent through Smt. Kishori Kesrinath Juker. Thus the tenancy being one, all the members of the family of the original tenant residing with him at the time of his death, succeeded to the tenancy together. In the circumstances the conclusion is inescapable that Smt. Kishori Kesrinath Juker who was impleaded as a tenant in the suit filed by the landlord represented all the tenants and the decree passed in the suit is binding on all the members of the family covered by the tenancy. In the circumstances the decree passed in terms of the compromise entered between the landlord and Smt. Kishori Kesrinath Juker can neither be said to be invalid nor inexecutable against any person who claims to be a member of the family residing with the original tenant, and therefore, a 'tenant' as defined in section 5(11)(SIC). The position that follows is that the appellants have no right to resist on the ground that the decree is not binding on them. Further, the trial court and the appellate court concurrently held that the appellant no.1 has not been residing in the premises since 1962 i.e. when his elder brother Kesrinath was alive. Therefore, when the suit was filed in the year 1992 there was no necessity for the landlord to implead appellant no.1 or members of his family in the suit since he (landlord) had no cause of action for seeking a decree of recovery of possession from them. In that view of the matter the decree under execution does not suffer from any illegality or infirmity. Viewed from any angle the appellants have no justification on the facts as well as in law to resist execution of the decree for possession of the premises by the landlord. The Executing Court rightly rejected the objection filed by the appellants against execution of the decree and the appellate court and the High Court rightly confirmed the said order. 

IN THE SUPREME COURT OF INDIA

Appeal (civil) 3759 of 2001

Decided On: 09.05.2001

Ashok Chintaman Juker and Ors. vs. Kishore Pandurang Mantri and Anr.

Hon'ble Judges/Coram:

D.P. Mohapatra and Brijesh Kumar, JJ.

Citation:  (2001) 5 S.C.C. 1,AIR 2001 SC 2251

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Whether definition of tenant includes member of family of deceased tenant residing with him at time of his death in case of business premises?

In these circumstances, the question arose for decision whether the present respondent, whose residence is given in the special leave petition as "Agakhan Building, Haines Road, Bombay", could possibly claim to be a tenant in respect of the shop which admittedly constitutes business premises by reason of Section 5(11)(c) of the Act. The High Court took the view that Section 5(11)(c) applies not only to residential premises but also to business premises and therefore, on the death of a tenant of business premises, any member of tenant's family residing with him at the time of his death would become a tenant. We do not think this view taken by the High Court is correct. It is difficult to see how in case of business premises, the need for showing residence with the original tenant at the time of his death would be relevant. It is obvious from the language of Section 5(11)(c) that the intention of the legislature in giving protection to a member of the family of the tenant residing with him at the time of his death was to secure that on the death of the tenant, the member of his family residing with him at the time of his death is not thrown out and this protection would be necessarily only in case of residential premises. When a tenant is in occupation of business premises, there would be no question of protecting against dispossession a member of the tenant's family residing with him at the time of death. The tenant may be carrying on a business in which the member of his family residing with him may not have any interest at all and yet on the construction adopted by the High Court, such member of the family would become a tenant in respect of the business premises. Such a result could not have been intended to be brought about by the legislature. It is difficult to discern any public policy which might seem to require it. The principle behind Section 5(11)(c) 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 and 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 inter alia the tenancy was originally taken by the tenant. This principle underlying the enactment of Section 5(11)(c) also goes to indicate that it is in respect of residential premises that the protection of that section is intended to be given. We can appreciate a provision being made in respect of business premises that on the death of a tenant in respect of such premises, any member of the tenant's family carrying on business with the tenant in such premises at the time of his death shall be a tenant and the protection of the Rent Act shall be available to him. But we fail to see the purpose the legislature could have had in view in according protection in respect of business premises to a member of the tenant's family residing with him at the time of his death. The basic postulate of the protection under the Rent Act is that the person who is sought to be protected must be in possession of the premises and his possession is protected by the legislation. But in case of business premises, a member of the family of the tenant residing with him at the time of his death may not be in possession of the business premises; he may be in service or he may be carrying on any other business. And yet on the view taken by the High Court, he would become tenant in respect of the business premises with which he has no connection. We are, therefore, in agreement with the view taken by one of us (Bhagwati J.) in the Gujarat High Court about the correct meaning, of Section 5(11)(c) in Parubai Manilal Brahmin and Ors. v. Baldevdas Zaverbhai Tapodhan (1964) 5 Gujarat L.R. 563, in preference to the view adopted in the subsequent decision of the Gujarat High Court in Heirs of deceased Darji Mohanlal Lavji v. Muktabai Shamji (1971) 12 Guj L.R. 272 which decision was followed by the Bombay High Court in the judgment impugned in the present appeals before us.

8. It is significant to note that after the decision of Gujarat High Court in Parubai Manilal Brahmin and Ors. v. Baldevdas Zaverbhai Tapodhan (supra) the Gujarat legislature amended the Rent Act by substituting the following provision for Section 5(11)(c) :

5(11)(c)(i) in relation to premises let for residence, any member of the tenant's family residing with the tenant' at the time of, or within three months immediately preceding, the death of the tenant as may be decided in default of agreement by the Court, and

(ii) in relation to premises let for business, trade or storage, any member of the tenant's family carrying on business, trade or storage with the tenant in the said premises at the time of the death of the tenant as may continue, after his death, to carry on the business, trade or storage, as the case may be, in the said premises and as may be decided in default or agreement by the Court.

9. This amendment was of course necessitated by the decision in Parubai Manilal Brahmin and Ors. v. Baldevdas Zaverbhai Tapodhan (supra) and it cannot, therefore, be relied upon for the purpose of supporting the view taken in that decision. But what is of significance is that when the legislature enacted a provision in regard to business premises in Clause (ii) of Section 5(11)(c), the legislature made it clear that the protection in respect of business premises was intended to be given, not to any member of the tenant's family residing with him at the time of his death, but to a member of the tenant's family carrying on business with him in such premises at the time of his death. The legislative intent, therefore, never was to confer protection; in respect of business premises on a member of the tenant's family residing with him at the time of his death. This is also a circumstance which supports the view taken by the Gujarat High Court in the earlier decision in Parubai Manilal Brahmin and Ors. v. Baldevdas Zaverbhai Tapodhan and shows that the view taken in the subsequent decision in Heirs of deceased Darji Mohanlal Lavji v. Muktabai Shamji is not correct. Of course, the amendment made in Rent Act in the State of Gujarat cannot assist us in interpreting Section 5(11)(c) of the Rent Act in the Act of Maharashtra, but it is not wholly irrelevant, since the judgment of the Bombay High Court in appeal before us relies heavily on the decision of the Gujarat High Court in Heirs of deceased Darji Mohanlal lavji v. Muktabai Shamji (supra) and if that decision is incorrect, the judgment in appeal before us must also likewise be held to suffer from same infirmity. We must, therefore, hold that Section 5(11)(c) applies only in respect of residential premises and since the premises in question before us were admittedly business premises in the respondent, who was son of the original tenant, could not claim to be a tenant under section

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1717 of 1975

Decided On: 21.02.1978

Ganpat Ladha Vs. Sashikant Vishnu Shinde

Hon'ble Judges/Coram:

M. Hameedullah Beg, C.J., Jaswant Singh and P.N. Bhagwati, JJ.

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Whether tenant will be evicted from tenanted premises if his wife has acquired alternative accommodation?

Mr. Joshi, learned Advocate for the petitioner, however, submitted that if such alternative accommodation is not available on the date of filing of the suit, the suit was required to be dismissed. In this behalf, he has relied upon the decision of the Division Bench of this Court in Shivlal Nathuram Vaishnav v. Harshadrai Haribhai Oza and others (heirs of decd.) Smt. Sulochana, w/o Harshadrai Haribhai Oza 1980 GLR 99. In the aforesaid case, the tenant, who had acquired alternative accommodation, disposed of the same before filing of the suit. The Division Bench of this Court has held that in order that a landlord may successfully claim a decree for eviction under Section 13(1)(l) of the Rent Act, it should be necessary that a tenant has acquired or been allotted a suitable residence and that the acquisition or allotment continued in existence till the date of filing of the suit. In the facts of that case, the Division Bench held that, if, at the time of filing the suit, such accommodation is not available, naturally, there is no cause of action and no decree can be passed on the aforesaid ground. In the instant case, it is an admitted fact that at the time when the court decided the suit, such alternative accommodation was already available. Even in a given case, before passing a decree, even if there is subsequent event, that event can be taken into consideration. It is an admitted fact that such accommodation is still available. Not only that, it has been occupied also by the tenant as per the evidence on record. I am not impressed by the argument of Mr. Joshi that some of the family members as well as the present petitioner are residing in the rented premises and other family members are residing in the newly acquired premises. When it is in evidence that both the husband and wife, in the instant case, are residing together and the rented premises was not used even for a considerable period, as per Exhibit 52, which shows that no electricity consumption charges were recorded in the meter and when the evidence on record is clear that the wife of the defendant-tenant had no other income worth the name, the only inference that could be drawn is that the house in question has been purchased by the petitioner, may be, in the name of his wife, or, in any case, such accommodation is available for the purpose of occupying the same for residence. Even if in a given case, wife or even a family member of the tenant has acquired any premises and if it is proved, on evidence, that the tenant himself has shifted his residence, along with his family members, it is enough to attract the provisions of Section 13(1)(l). Ultimately, the object of the Section is that, if a tenant vacates the suit premises and is residing elsewhere, he cannot legitimately put his claim over the rented premises.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

Civil Revision Application No. 395 of 2003

Decided On: 25.02.2004

 Vrajlal Dwarkadas Vs. Girdharlal Kalidas Dhruve

Hon'ble Judges/Coram:
P.B. Majmudar, J.

Citation:2005(2) RCJ 45

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Whether strangers can be granted tenancy rights considering them to be family members of tenant?

 It is very pertinent to note that in spite of the catena of judgments interpreting and construing the words "member of a family of the tenant and a family", the legislature has not budged from its position and has not moved to amend Section 5(11)(c) of the Act to reflect the precis of the judicial pronouncements In the Act in any manner. The Section 5(11)(c) has remained as it is though the Act has undergone surgery by way of amendments on a number of occasions at the hands of the Legislature to meet off-arising problematic situations. It is far more pertinent to note that even in the present Maharashtra Rents Act which has replaced the earlier Bombay Rents Act the Legislature has not taken cognizance of the interpretation of the words in Section 5(11)(c) and the Legislature has not enlarged the words "family and the member of a family". It would have been very easy for the Legislature to have removed all the doubts and difficulties which have created innumerable disputes giving rise to innumerable judgments by replacing the words "any member of the tenant's family" by "any person..... residing with the tenant at the time of his death." The Legislature has not enlarged the term used in the original Sub-section 5(11)(c) i.e. "any member of the tenant's family". The Legislature could have deleted the aforesaid words and could have put only one word "person" in place of "member of the tenant's family" to resolve all the so called construction and interpretation difficulties. The intention of the Legislature therefore is absolutely clear to retain the present construction in the Sub-section 5(11)(c) in the form in existence i.e. "any member of the tenant's family". It did not and it does not intend to give a wider meaning to the concept of family to include even a stranger as a member of the family. The Legislature did not and does not intend to depart from the ordinary meaning of the word "family" as understood in common parlance. We understand a family as consisting of father, mother, sons, daughters, sisters and all such blood relations and other relations arising from lawful marriages in the family. We don't include in the concept of family any one who is not related by blood and that is the whole purpose and intention of the Legislature not to remove the word "family" from the said provision. If it wanted to enlarge the meaning of the family it would have expressly said so. The Legislature wants to protect only the members of the family, who are bound by the blood relations and never any stranger however near he or she might be and however thick the love and affection bonds might exists. In my opinion the Legislature has not given any importance to such emotional and sentimental ideas In the Rent Control Act, which regulates relationship between the landlord and the tenant. It is enacted to protect the tenants and their families and not to create any rights in favour of strangers who have no blood relations with the tenant or his family. The Legislature never intended to wide open the umbrella of the Rent Act to give protection to every one who would claim to be a member of the tenant's family on one or the other ground of love and affection or close friendship or father like and son-like or such relationship. A tenant cannot be heard to say that the person residing with him is like his father or like his son or like his daughter or brother. There is no place for the words "like" or "as". The Act protects only those who were really blood relations of the tenant. The Legislature has not allowed any provision in respect of the relationship. The present protection is to the tenant and his family members with whom he has blood relations. The Legislature has been reasonable and moderate to grant protection to the tenant and extend the protection to the members of the family in the ordinary parlance as commonly understood in the society. The Legislature is fully conscious of the fact that it cannot fly at tangent to give protection to all such occupants of the tenanted premises at the cost of the landlord and the valuable property rights of the owners of the premises. The landlord rents out his premises to a tenant on certain terms and conditions which the tenant must observe and if such terms and conditions are observed by the tenant the landlord cannot evict him at his sweet will and in contravention of the provisions of the Rent Act. The Act protects the tenants at the same time controls the property rights of the landlords by imposing reasonable restrictions on them within the four corners of the Act. The rights of the landlords are not given a complete go by and are not extinguished altogether. If the Legislature intended that a tenant and all those who claim through him should be granted protection from eviction at any cost that would result in total extinguishment of the rights of the landlords and that would mean that the landlord has to write-off his property forever, as the tenants and all such strangers who would claim to be the members of their families talking love and affection would have grabbed the property forever and the same would be bequeathed for such love and affection at the cost of the landlord.

IN THE HIGH COURT OF BOMBAY

F.A. No. 490 of 1996

Decided On: 04.03.2002

 Jaysen Jayant Rele Vs.  Shantaram Ganpat Gujar and Ors.

Hon'ble Judges: 

R.J. Kochar, J.

Citation: (2002) 6 Bom Rent cases 415

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Whether heirs of tenant will acquire tenancy rights if other members of family residing with tenant at time of his death are available?

If we consider this provision, we find that the scheme of the Act recognizes only the person with whom the contract is made as tenant for the purposes of this Act and after his death, if other members of the family are residing with him, then all those family members get tenancy rights and are recognised as tenants. In the absence of any such member residing along with the tenant at the time of his death, then only heirs of the tenant will come into picture and would be entitled to tenancy rights of the premises. When other members of family were residing along with the tenant at the time of his death, and they are available, then no other heir of the tenant can be brought in to bestow upon him the tenancy rights. Similarly, unless all the tenants who were residing at the time of his death are exhausted, question of consideration of rights -of the heirs of tenant does not arise. In the case at hand, it is not in dispute that at the time of death of Bhikchand, the defendants, except defendant No. 5, were residing along with Bhikchand. The decree is passed against Ramchandra who was one of those family members residing at the time of death of Bhikchand. Since decree was submitted for execution, only Ramchandra and Dhanabai came forward to file their objections. Ramchandra's objection was rightly rejected and Dhanabai's objection petition was also rejected by the learned trial Judge. The propriety of the said order would have been considered by this Court in the light of the aforesaid observations. Dhanabai died during the pendency of this revision and her heirs have been brought on record. Though the tenancy rights are heritable, they can be inherited by heirs of the original tenant and not by heirs of other members of the family who were residing: along with the tenant at the time of his death. When Bhikchand died his sons and wife were living along with him and those were entitled for the tenancy rights under the Act and one of them was Ramchandra against whom decree is passed. Another person entitled for tenancy rights was Dhanabai. She is now dead. Therefore, her objection petition has become infructuous.

Bombay High Court

Ramchandra Bhikchand Nahar And ... vs Narhar Maruti Udavant And Others on 1 November, 1995

Equivalent citations: AIR 1996 Bom 338, (1996) 98 BOMLR 433

Bench: N Chapalgaonkar

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Whether tenancy right can be inherited by heirs of other members of family of tenant?

Though the tenancy rights are heritable, they can be inherited by heirs of the original tenant and not by heirs of other members of the family who were residing: along with the tenant at the time of his death. When Bhikchand died his sons and wife were living along with him and those were entitled for the tenancy rights under the Act and one of them was Ramchandra against whom decree is passed. Another person entitled for tenancy rights was Dhanabai. She is now dead. Therefore, her objection petition has become infructuous.

Bombay High Court

Ramchandra Bhikchand Nahar And ... vs Narhar Maruti Udavant And Others on 1 November, 1995

Equivalent citations: AIR 1996 Bom 338, (1996) 98 BOMLR 433

Bench: N Chapalgaonkar

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Whether there is conflict between Hindu succession Act and Maharashtra rent control Act?

Therefore,   there   appears   to   be   no   conflict   in   the   two
provisions.     The   HS   Act   amends   and   codifies   the   law   relating   to
succession amongst Hindus and therefore the overriding effect given to

it   by   section   4(1)(b)   over   other   law   in   force   immediately   before
commencement of the HS Act relating to intestate succession amongst
Hindus, that law ceased to apply insofar as it is inconsistent with any
other provisions contained in the HS Act.  The reliance placed on this
clause by Mr. Thakkar is entirely misplaced.  Once we understand the
controversy in the above manner, then, we do not see how we can apply
the mandate of Article 254 of the Constitution of India.  That Article has
no application.
We have already held that nothing in clause (d) of section
7(15) of the MRC Act interferes with the rule of succession enacted by
the HS Act.   That definition of the term 'tenant' has been inserted to
mean any person by whom or on whose account rent is payable for any
premises and includes firstly such person who is a tenant or who is a
deemed tenant or who is a sub ­tenant as permitted under a contract or
by the permission or consent of the landlord or who has derived title
under a tenant or to whom interest in premises has been assigned or
transferred as permitted by virtue of or under the provisions of any of
the repealed Acts.  Secondly, it includes a person who is deemed to be a
tenant under section 25 of the MRC Act or a person to whom interest in
premises has been assigned or transferred as permitted under section 26
of the MRC Act and finally, in relation to any premises when the tenant

dies, whether the death occurred before or after the commencement of
this Act, any member of the tenant's family, who, when the premises are
let for residence, is residing or when the premises are let for education,
business, trade or storage, is using the premises for any such purpose
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 the
absence of agreement, by the Court, will step in.   If there was any
intention to interfere with the law of succession and the rule laid down
thereunder, the words “any heir of the deceased tenant” would not have
been appearing in the definition at all.  We also find that the definition
read in its entirety reveals as to how the tenant means any person by
whom   or   on   whose   account   rent   is   payable   for   any   premises   and
includes, after the death of the tenant, a member of the tenant's family.
It is not as if only a right is created by this provision in the member of
the family residing with the tenant or carrying on business with him but
there is a duty and obligation while permitting the member of the
family to step in after the tenant's demise and that is to pay rent and
other charges for the premises in terms of the MRC Act and also to
abide by it so far as the matters covered by it.  Therefore, we do not
find   that   there   is   any   substance   in   the   contentions   of   the   learned
Counsel appearing for the Petitioner.
IN  THE  HIGH  COURT  OF  JUDICATURE  AT  BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1853 OF 2014

Urmi Deepak Kadia  Vs State of Maharashtra 

CORAM :­ S. C. DHARMADHIKARI &
G. S. KULKARNI, JJ.

PRONOUNCED ON :­ AUGUST 11, 2015
Citation;2015 (6) MHLJ 462 Bom

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