Bombay HC: Joint family of deceased tenant can not claim tenancy right in respect of tenanted premises

From a plain reading of section 5 (11) (c) (i) of the Act,

it is difficult to accept the contention as urged on behalf of the

petitioner/defendant no.2 that the provisions recognize that every

member of the joint family or the joint family itself becomes a tenant

for the purposes of the Bombay Rent Act. The introductory words of

section 5 (11) defining tenant are crystal clear when it describes a

“tenant” to mean “any person” by whom or whose account, rent is

payable and would include as defined in sub-clause (c) of subsection

5 (11) any member of the tenants family residing with the

tenant at the time of his death. Sub-clause (c) is required to be read

in conjunction with the preceding relevant sub-clauses namely sub

clauses (aa), (b) which also uses a similar phrase ‘any person’. Thus

a tenant necessary has to be any person as recognized by section

5(11) and not otherwise and certainly not a joint family as a unit.

The legislature has avoided to include any such incident to include a

joint family to be a tenant within the meaning of section 5(11).

33. In the present context, to interpret the phrase ‘any person’

as used in section 5 (11) of the Act to include any member of the

joint family as asserted by the petitioner/defendant no.2, would lead

to an absurdity. This more particularly contrary to the election as

exercised by the family of the deceased tenant Raghunath, in

choosing Achyut –defendant no.1 (Raghunath’s son) to succeed to

the tenancy. The absurdity would be two fold firstly it would amount

to reading something into the definition of tenant, (Section 5(11) (c)

(i)), what has been not provided for and/or excluded by the

legislature; secondly it would be contrary to the conduct of the

parties who wholeheartedly accepted, chose and elected that the

tenant for the suit premises after the death of Raghunath would be

defendant no 1–Achyut. Once this is a factually established position

on record the petitioner/ defendant no.2 was not permitted and/or

was estopped from taking a contrary stand.

34. In my opinion, such an assertion as made on behalf of

the petitioner/defendant No.2 would lead to another absurdity

namely, that it would create an insurmountable uncertainty for the

landlord in pursuing eviction proceedings against a tenant as

permissible in law. This for the reason that when a landlord grants

the premises on tenancy it is a contract of tenancy as entered with a

specific person (tenant). The landlord expects fulfillment of legal

obligations from the tenant. The law therefore does not envisage

that the landlord would be required to deal with all members of the

joint family, a situation as in the present case when on the death of

the original tenant he is replaced by another named member of a

family. Hence, if such an argument by the petitioner/defendant no.2

to recognize him as a tenant, is accepted the landlord would never

obtain an eviction of a tenant as may be permissible to him in law as

every successive member of the tenant’s family would start claiming

legal rights and protection under the provisions of the Bombay Rent

Act. Such can never be the object and intention of this rent

legislation.

35. In the present case, the intention and conduct on the

part of the defendants, in my opinion was quite clear namely to

permit defendant no.1-Achyut to inherit tenancy after the death of

the original tenant his father–Raghunath. The rent receipts were

accordingly issued in favour of Achyut on the death of Raghunath.

Certainly, on two occasions namely when the original tenant-

Raghunath expired in the year 1971, and secondly when in 1979

defendant no.1-Achyut moved out of the suit premises, it was

available to the father of defendant no.2 Sadashiv to assert a position

that he had become the lawful tenant of the plaintiff’s landlords.

Sadashiv however, chose not to assert any such right. He throughout

accepted the defendant no.1- Achyut to be the tenant since the year

1971 that is from the death of his father Raghunath. Resultantly, it

was no defence for defendant no.2 to assert that he would be now

the lawful tenant having independent rights merely because his

father Sadashiv was a member of Raghunath’s joint family. It needs to

be observed that there is no legal foundation to the assertion of the

petitioner/defendant no. 2 referring to section 5(11) (c) in as much

as this provision is attracted only when a tenant dies. In the present

case defendant no.1 –Achyut who was accepted to be the tenant by

the petitioner/ defendant no.2 is surviving and has moved out of the

suit premises. In this situation it is difficult to comprehend, as to how

section 5(11) (c) can be pressed into service by the petitioner, to

assert any legal right to be a tenant .

36. The inevitable consequence in law on defendant no.1-

Achyut , (the tenant) moving out of the suit premises, brought

about a situation that defendant no.2-Vasant could not have asserted

any legal rights as a tenant, so as to contest the eviction proceedings

as instituted by the plaintiffs in the present Suit. In any event earlier

to the filing of the present suit petitioner/defendant no. 2 even qua

the plaintiffs never asserted any independent rights of tenancy in any

proceedings as could be brought by him.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

Writ Petition No. 2371 OF 1997

Vasant Sadashiv Joshi.  Vs  Yeshwant Shankar Barve

CORAM : G.S.Kulkarni, J.

DATE : 3 JANUARY, 2020

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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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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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Whether plaint filed by brothers claiming interest in property purchased in the name of one brother can be rejected?

 The first and foremost of the circumstance relevant to the question at hand is the fact that the property in question was tenanted by Smt. Stella Martins-mother of the parties before us. It is common ground that at the time of her demise she had not left behind any Will nor is there any other material to suggest that she intended that the tenancy right held by her in the suit property should be transferred to the Appellant to the exclusion of her husband, C.F. Martins or her daughters, Respondents in this appeal, or both. In the ordinary course, upon the demise of the tenant, the tenancy rights should have as a matter of course devolved upon her legal heirs that would include the husband of the deceased and her children (parties to this appeal). Even so, the reason why the property was transferred in the name of the Appellant was the fact that the Corporation desired such transfer to be made in the name of one individual rather than several individuals who may have succeeded to the tenancy rights. A specific averment to that effect was made by Plaintiffs-respondents in para 7 of the plaint which was not disputed by the Appellant in the written statement filed by him. It is, therefore, reasonable to assume that transfer of rights in favour of the Appellant was not because the others had abandoned their rights but because the Corporation required the transfer to be in favour of individual presumably to avoid procedural complications in enforcing rights and duties qua in property at a later stage. It is on that touchstone equally reasonable to assume that the other legal representatives of the deceased-tenant neither gave up their tenancy rights in the property nor did they give up the benefits that would flow to them as legal heirs of the deceased tenant consequent upon the decision of the Corporation to sell the property to the occupants. That conclusion gets strengthened by the fact that the parties had made contributions towards the sale consideration paid for the acquisition of the suit property which they would not have done if the intention was to concede the property in favour of the Appellant. Superadded to the above is the fact that the parties were closely related to each other which too lends considerable support to the case of the Plaintiffs that the Defendant-appellant held the tenancy rights and the ostensible title to the suit property in a fiduciary capacity vis-à-vis his siblings who had by reason of their contribution and the contribution made by their father continued to evince interest in the property and its ownership. Reposing confidence and faith in the Appellant was in the facts and circumstances of the case not unusual or unnatural especially when possession over the suit property continued to be enjoyed by the Plaintiffs who would in law and on a parity of reasoning be deemed to be holding the same for the benefit of the Appellant as much as the Appellant was holding the title to the property for the benefit of the Plaintiffs.

25. The cumulative effect of the above circumstances when seen in the light of the substantial amount paid by late Shri C.F. Martins, the father of the parties, thus puts the Appellant in a fiduciary capacity vis-à-vis the said four persons. Such being the case the transaction is completely saved from the mischief of Section 4 of the Act by reason of the same falling under Sub-Section 3(b) of Section 4. The suit filed by the Respondents was not, therefore, barred by the Act as contended by the Learned Counsel for the Appellant. The view taken by the High Court to that effect is affirmed though for slightly different reasons.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 6645 of 2003

Decided On: 27.04.2012

 Marcel Martins  Vs. M. Printer and Ors.

Hon'ble Judges/Coram:

T.S. Thakur and Gyan Sudha Misra, JJ.

Citation: (2012) 5 SCC 342.

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Whether tenancy rights of other legal heirs of deceased tenant are wiped off if rent receipt is in name of one legal heir?

 This ratio raises the logical question as to whether bequest of tenancy by a will, deed or gift, will deprive another of a statutory right under Section 5(11)(c)? This question has been succinctly answered in the case of Ramesh S. Kale v. Madhav B. Wadnere (2001) Supp. Bom.C.R. 321 by this very Court. "Merely because the person in whose name, receipts are issued happened to be one of the legal heirs of the original tenant, the right of the other heirs are not wiped off. In fact, the law in this regard is well established as already stated above, i.e. upon the death if the original tenant, tenancy rights are inherited by all the legal heirs.

IN THE HIGH COURT OF BOMBAY

First Appeal No. 46 of 2000 in L.C. Suit No. 1743 of 1992

Decided On: 11.07.2006

 Zahid Ahmedali Mazgaonwalla Vs. Gulshan Pyarali Mazgaonwalla

Hon'ble Judges/Coram:

Dr. S. Radhakrishnan, J.

Citation: 2006(5) ALLMR 49

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When legal heirs of deceased tenant will be entitled to get tenancy rights?

In Romeo Pascol Kinny and Ors. v. Savitri wd/o Dr. Umashankar Dwivedi, this Court held:46

"17. Similarly, in the context of the definition of the term 'tenant' under section 5(11)(c) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 ("1947 Act"), the Division Bench of this Court in the case of Rajaram Brindavan Upadhyaya & Ors. vs. Ramraj Raghunath Upadhyaya & Ors., MANU/MH/0236/1977 : 1977 Mh.L.J. 792 has held that the said provisions were not meant to supersede the right of inheritance to the tenancy vesting in the heirs on the death of the tenant under the personal law of the parties. The provisions contained in section 5(11)(c) were however amended by the Bombay Rent Act No. XXII of 1978 which entered into force on 23 October 1978. In the context of the amended provisions, the learned Single Judge of this Court in the case of C.J. Ghadiali & Ors. vs. Z.B. Wadiwalla, MANU/MH/0465/1981 : 1981 Mh.L.J. 876 held that there was complete change in law since the decision in the case of Rajaram (supra) and after the 1978 Amendment, it is only in the absence of member of the tenant's family residing with the tenant at the time of the death of the original tenant, that any heir of the deceased tenant acquires tenancy rights under the Rent Act. From this, it follows that under the un-amended 1947 Act, the Division Bench of this Court had recognized that the provisions of 1947 Act were not made to supersede the rights to inheritance of tenancy vesting in the heirs on the death of the original tenant. Further, after the amendment, such rights shall accrue to the legal heirs of the deceased tenant, only in the absence of member of the tenant's family residing with the tenant at the time of his demise. In both situations, therefore, devolution of the tenancy upon the heirs was contemplated, except that after the 1978 amendment, the devolution upon the heirs in accordance with law of inheritance was made subject to absence of any member of the tenant's family using the tenanted premises for the purposes for which they were let out along with the original tenant, at the time of the demise of such original tenant."

IN THE HIGH COURT OF BOMBAY

First Appeal No. 514 of 2003

Decided On: 04.08.2017

Namdeo Dashrath Naik and Ors. Vs. Bhagwan Mahadeo Parab and Ors.

Hon'ble Judges/Coram:

G.S. Patel, 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 legal heirs of deceased tenant who was not residing with him are entitled to get tenancy rights?

 Undisputed position is that Gulabchand was a contractual tenant of the suit premises at the time of his death. If so, consequence must follow that the heirs of Gulabchand would be entitled to inherit and succeed to this contractual tenancy. He consequently was also entitled to protection under the Bombay Rent Act. This inheritance of contractual tenancy did not depend upon whether Bansilal actually did or did not reside with his father Gulabchand, the original tenant, in the suit premises. There was no provision in the Rent Act contrary to such inheritance. Indeed the Rent Act provides additional protection to those residing as members of the tenant's family at the time of his death. The provision of section 5(11)(c) of the Bombay Rent Act covers a much wider field than the restricted field of inheritance under the general law.

Bombay High Court

Budhmal Khushalchand And Anr. vs Bansilal Gulabchand Agarwal And ... on 19 January, 1980

Equivalent citations: 1983 (1) BomCR 11

Bench: S Pratap

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Whether tenancy rights will be extinguished if tenanted building is destroyed?

The tenancy cannot be said to have been determined by attracting applicability of the doctrine of frustration consequent upon demolishing of the tenancy premises. Doctrine of frustration belongs to the realm of Law of Contracts; it does not apply to a transaction where not only a privity of contract but a privity of estate has also been created inasmuch as lease is the transfer of an interest in immovable property within the meaning of Section 5 of the Transfer of Property Act (wherein the phrase 'the transfer of property' has been defined), read with Section 105, which defines a lease of immovable property as a transfer of a right to enjoy such property. (See observations of this Court in this regard in Raja Dhruv Dev Chand Vs. Raja Harmohinder Singh & Anr., MANU/SC/0179/1968 : 1968 (3) SCR 339). It is neither the case of the appellants nor of the respondents No.2 and 3 that the subject matter of lease was the building and the building alone, excluding land whereon the building forming subject matter of tenancy stood at the time of creation of lease.

20. In Woodfall's Laws of Landlord and Tenant (28th Edition, Vol.1) the relevant law is so stated:

Where the lessee covenants to pay rent at stated period (without any exception in case of fire), he is bound to pay it, though the house be burnt down; for the land remains, and he might have provided to the contrary by express stipulation, if both parties had so intended. And this rule applies, although the lessee's covenant to repair contain an exception in case of fire. Similarly, an action for use and occupation still lies in respect of the whole period of the tenancy notwithstanding the destruction of the premises by fire." (Para 1-0778)

In a lease of land with buildings upon it the destruction of even the entirety of the buildings does not affect the continuance of the lease or of the lessee's liabilities under it, unless so provided by express contract." (Para 1-2055)

A demise must have a subject-matter, either corporeal or incorporeal. If the subject-matter is destroyed entirely, it is submitted that the lease comes automatically to an end, for there is no longer any demise. The mere destruction of a building on land is not total destruction of the subject-matter of a lease of the land and building, so the demise continues. But if by some convulsion of nature the very site ceases to exist, by being swallowed up altogether or buried in the depths of the sea, it seems clear that any lease of the property must come to an end." (Para 1-2056)

21. A lease of a house or of a shop is a lease not only of the superstructure but also of its site. It would be different if not only the site but also the land beneath ceases to exist by an act of nature. In the present case the appellants who are the successors of the tenancy right have demolished the superstructure but the land beneath continues to exist. The entire tenancy premises have not been lost. Moreover, the appellants cannot be permitted to take shelter behind their own act prejudicial to the interest of the respondent No.1 under whom the respondents no.2 and 3 were holding as tenants and then inducted the appellants.

22. In D.G. Gouse & Co. (Agents) Pvt. Ltd. Vs. State of Kerala & Anr., MANU/SC/0330/1980 : (1980) 2 SCC 410, while dealing with Entry 49 of List II of the Seventh Schedule of the Constitution, making a reference to Oxford English Dictionary, this Court has held that the site of the building is a component part of the building and therefore inheres in the concept or ordinary meaning of the expression 'building'. Referring to Corporation of the City of Victoria Vs. Bishop of Vancouver Island, AIR 1921 PC 240, it was held that the word 'building' must receive its natural and ordinary meaning as 'including the fabric of which it is composed, the ground upon which its walls stand and the ground embraced within those walls".

23. We are, therefore, of the opinion that in the event of the tenancy having been created in respect of a building standing on the land, it is the building and the land which are both components of subject matter of demise and the destruction of the building alone does not determine the tenancy when the land which was site of the building continues to exist; more so when the building has been destroyed or demolished neither by the landlord nor by an act of nature but solely by the act of the tenant or the person claiming under him. 

IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 115 of 2010

Decided On: 10.01.2012

 Pius Bonaventure Fernandes Vs. Manu Narang

Hon'ble Judges/Coram:

G.S. Godbole, J.

Citation: 2012(2) Bom CR,2012(2) ALLMR 112,2012(2) MHLJ68

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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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What are rights of legal heirs of deceased tenant in tenanted premises?

It is obvious that the provisions of section 5(11)(c) of the Rent Act provides for a right of succession different from the one under the ordinary law. It must, therefore, follow that the right of possession also will be of the person who is a tenant under section 5(11)(c). In the circumstances, even if the plaintiff may be entitled to tenancy rights as an heir of Soonabai under the ordinary law, she will have no right of possession, in any case right to immediate possession. No doubt, Bombay Rent Act is a statute which is supposed to be enacted as a temporary measure and so, it was not enacted to last till repealed but for a limited period which is being extended from time to time. It would, therefore appear that the mode of succession provided by the Rent Act is not a permanent mode and the right of the heirs or legal representatives, under the normal law is suspended and eclipsed till the preferential right conferred by section 5(11)(c) to tenancy continues. Hence, at the time of the filing of the suit and even at present, it cannot be said that the plaintiff as an heir and right to the tenancy of or to occupy block C. Her claim can only be to recognition as a tenant under section 5(11)(c) and to occupation alone or jointly with other under the provisions of Rent Act. It is held by this Court that only one person can be recognised as a tenant under section 5(11)(c). However, it is not decided that all other persons who were already staying in the premises will have to go out. I do not think that the intention of the legislature was to protect the possession of only one of the members of the tenant's family or to give a right of protected possession only to one of the heirs. This question will have to be considered when it arises.

Equivalent Citation : 1981 MhLJ876

IN THE HIGH COURT OF BOMBAY

First Appeal No. 662 of 1977

Decided On: 24.07.1981

 C.J. Ghadiali and Ors.

Vs.

 Z.B. Wadiwalla

Hon'ble Judges/Coram:

N.A. Mody, J.

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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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