Law Web: 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

Sr.no. Contents Paragraph Nos.

1 Challenge & Introduction 1 to 6

2 Factual Antecedents 7 to 22

3 Submissions on behalf of the

Petitioner/defendant no.2

4 Submissions on behalf of the respondents/

plaintiffs

24 to 25

5 Reasons and Conclusions 26 to 54

JUDGMENT:

CHALLENGE AND INTRODUCTION

1. This petition is by tenant original defendant No.2

(Petitioner No.1). He suffers eviction from the suit premises at the

instance of the lower appellate Court under its judgment and order

dated 1 November 1997 as assailed. The other petitioners are his

family members.

2. Respondents are the legal heirs of the original plaintiffs-

Yeshwant Shankar Barve and Sadanand Shankar Barve -the

landlords. The original tenant of the suit premises was one

‘Raghunath’, father of Defendant No. 1- Shri Achyut Raghunath Joshi

(for short ‘Achyut’) who is impleaded as respondent no.3 in this

petition.. On the death of Raghunath in the year 1971 the rent

receipt came to be transferred in the name of defendant no. 1-Achyut

although Raghunath’s brother and his family members also occupied

the suit premises.

3. It so transpired that the tenant, defendant no.1-Achyut

left the suit premises in the year 1979 as he acquired alternative

premises at Pune. The suit premises hence remained in occupation of

defendant no. 2 -Vasant Sadashiv Joshi, Achyut’s (defendant no.1’s)

cousin brother along with his family members (the petitioners), who

are now pursuing these proceedings.

4. The plaintiffs landlords instituted an eviction Suit No.1682

of 1982 against Defendant no. 1- Achhut Raghunath Joshi- and

defendant no. 2 Shri Vasant Sadashiv Joshi- petitioner no. 1, before

the Small Causes Court at Pune. During the pendency of the

litigation, both the plaintiffs expired as noted above. Defendant no.1

Achyut has chosen not to assail the eviction decree.

5. For convenience, the parties are referred as they stand

before the trial Court namely the petitioners as defendants and the

respondents as plaintiffs.

6. The relevant legislation as applicable to the lis in

question is the Bombay Rents Hotel and Lodging House Rates

Control. Act, 1947 (for short the ‘Bombay Rent Act’).

FACTUAL ANTECEDENTS

7. The plaintiffs who were earlier part of a larger joint

family are the landlords of the suit premises namely ‘House Property

at CTS No.201’. In the year 1937 Six rooms ( two rooms situated on

ground floor and four rooms on the first floor) bearing Block no.7

and more particularly described in para 1 of the plaint were let out to

Raghunath (original tenant), the father of defendant no.1, on a

monthly rent on rent of Rs.22/-.

8. The suit in question was launched on 12/8/1982

against the defendants on three grounds namely that the tenant

defendant no.1-Achyut, was a defaulter in payment of monthly rent

and was in arrears of rent of Rs.1493.90 by the end of 30/4/1982.

Secondly that defendant no.1 had acquired a block/flat with all

modern amenities at Mittal Apartment, Pune and was residing in the

the said premises along with his family, for past three years before

institution of the suit, hence the defendants were absolutely not in

need of the tenanted premises. Lastly that the plaintiffs bonafide and

reasonably were in need of the premises. The plaintiffs’ children were

to be kept for education at Pune also plaintiff no.1 was to retire from

service soon and except the suit premises he had no other premises to

reside at Pune. Plaintiff no.1 was transferred to Pune and he was in

badly in need of premises and for want of premises, he was suffering

a serious inconvenience. There was also bonafide requirement of

plaintiff no.1 whose office was also to be shifted at Pune. Defendant

no.1 had already acquired at block at Pune and he was not at all in

need of the premises.

9. The plaintiffs by their advocate’s notice dated 10 May

1982 addressed to defendant no.1-Achyut, terminated the tenancy on

the above grounds and demanded possession. The defendant no.1

having failed to comply with the notice, the eviction suit came to be

instituted.

10. The defendants contested the suit by filing their

independent written statements. The defendant no.1-Achyut, in his

written statement while denying the case of the plaintiffs contended

that his deceased father Raghunath and the defendant no.2’s father

Sadashiv were real brothers. He contended that the suit premises

were taken on tenancy by the joint Hindu family since 1937 and since

then, it was the joint family members who are in occupation of the

said premises. His father deceased Raghunath being the Karta of the

joint Hindu family, was looking after the family who had expired in

the year 1971. He contended that after the death of Raghunath, the

rent receipts were issued in his name. However at that time, Sadashiv

(his uncle and defendant no.2’s father) with his family members

was also residing in the suit premises. Sadashiv expired in the

year 1981 and after his death his wife and children were residing

in the suit premises. Defendant No.2-Vasant is the eldest son of

Sadashiv who is now residing in the said premises with his family.

of defendant no.1 proceeded purely

on denial.

11. Defendant no.2 also filed his written statement(s). He

filed two written statements dated 23.8.1982 and an additional

written statement dated 12.4.1985. Defendant no.2 contested the suit

on all the grounds. He contended that the suit premises were taken

in tenancy for the benefit of the joint hindu family of Raghunath.

Hence all members of the joint family who were occupying the suit

premises had a right and interest in the tenancy. He contended that

for the sake of convenience, rent receipts were issued in the name of

defendant no.1-Achyut, after the death of his father Raghunath.

Defendant no.2 contended that due to growth of the defendant’s

family, defendant no.1-Achyut purchased a block/flat out of his own

funds and for last 4/5 years, was residing in the said block. He

contended that the joint family had no concern with the block. He

stated that he had also filed a standard rent application

(M.A.No.349/1982) before the Court of Small Causes at Pune, within

one month from the receipt of the suit notice dated 10.6.1982,

praying that the standard rent be fixed. He contended that he along

with his parents, brother and sisters were residing in the suit

premises, not only at the time of Raghunath’s death but before his

death and even thereafter. Hence they were also tenants, as since the

beginning, the suit premises were tenanted to the joint family and the

defendants were members of the joint family. He contended that no

notice was issued to defendant no.2 and/or to the heirs of deceased

Sadashiv terminating their tenancy. Contesting the ground of

bonafide requirement of the plaintiffs, defendant no.2 contended

that plaintiffs children were grown up and were in service and none

of them were getting educated. It was denied that plaintiff no.1 is

likely to retire and he had no other premises to reside at Pune. It was

contended that plaintiffs were in actual possession and occupation of

9 rooms in another property namely House No.193, Shukrawar Peth.

Although plaintiff no.1 and 2 were residing at another place due to

their employment these rooms were in occupation of their brother

one Narayan Shankar Barve. Defendant no 2 contended that as the

plaintiffs were part of the joint family, they cannot have a bonafide

need and requirement for the suit premises. The defendant No.2

contended that there was scarcity of accommodation in Pune and

accommodations was not available without paying exorbitant

deposits and in the event, they are required to vacate, they will suffer

greater hardship.

12. The parties led oral evidence. The learned trial Judge, by

his Judgment and Order dated 7.2.1987 partially decreed the suit.

The learned trial Judge also in the same judgment decided the

standard rent Application of the defendant thereby fixing the

standard rent at Rs.22/- per month. The learned trial Judge held that

defendant no.1 had acquired alternate suitable premises. It was held

that the plaintiff had proved the bonafide need and requirement for

the suit premises of plaintiff no.1. It was held that defendant no.2

was entitled to continue in the suit premises as a tenant in respect of

the four rooms by surrendering two rooms to plaintiff no.1. In

recording these findings, the learned trial Judge held that Raghunath

had acquired the suit premises not in his individual capacity but, as

Manager of the joint family, consisting of himself, his brothers, sister

and mother. This on the basis that plaintiff no.1 had admitted in his

deposition that Sadashiv brother of Raghunath was staying with

Raghunath as he was attending the school at that time. It was held

that plaintiff no.1 had also admitted that sons of Sadashiv were

residing with Raghunath for receiving education at Pune and hence

were members of the tenant’s family, as defined under section 5(11)

of the Bombay Rent Act. The learned trial Judge however rejected

the case of defendant no.1 that the plaintiffs were not the landlords

and it was held that there was an oral partition in the family of the

plaintiffs and clearly the suit premises had come to the share of the

plaintiffs. It was also held that the plaintiffs had no interest in the

other properties as asserted by the defendant no.2. The learned trial

Judge partly decreed the suit in following terms:-

“ The defendants are ordered to deliver the possession of the 2

rooms on the ground floor to the plaintiffs.

2. The remaining claim of the plaintiff is disallowed.

3. The parties are ordered to bear their respective costs of the

suit.

4. The standard rent of the suit premises is held to be Rs.22/-

p.m. which is exclusive of E.C. and other taxes.

5. The amount deposited towards rent in the standard rent

proceedings be paid to the plaintiffs.

6. There will be no order as to costs in that proceeding also.”

13. Both the parties assailed the judgment and order passed

by the learned trial Judge in their respective appeals, before the

learned District Judge, at Pune. Civil Appeal No.369 of 1987 was

filed by the plaintiffs being aggrieved by the partial decree. Civil

Appeal No.278 of 1987 was filed by the defendants, being aggrieved

by the suit being partly decreed ordering eviction from two rooms.

There was a Revision Application No.25 of 1987 filed by the

defendants challenging fixation of standard rent at Rs.22/- per

month.

14. Before the Appellate Court, defendant No.2 filed two

applications Exhibit 20 and 21, alleging that defendant no. 2 had

received knowledge, that the plaintiffs have got vacant possession of

one house property namely CTS No.171 Shukrawar Peth, Pune which

stood in the name of plaintiffs and their joint family. He contended

that plaintiff no.1’s son -Jayant had issued an advertisement in the

daily newspaper ‘Sakal’ dated 5.8.1990 calling upon purchasers to

book offices, shops, godowns etc. It was alleged that plaintiffs had

also constructed residential blocks. To bring on record these facts,

defendant no.2 prayed for amendment of the written statement. By

an order dated 4.1.1991 the learned District Judge allowed the said

application permitting amendment to the written statement and also

allowed the companion Application (Exhibit 21) permitting the

defendant no.2 to adduce additional evidence.

15. The appellate Court also permitted an amendment to the

written statement of defendant no.2 to incorporate paragraph 5 (a)

namely defendant no.2 was permitted to plead that plaintiff no.1

during the pendency of the proceedings had received possession of

two rooms in the suit premises from another tenant by name

M.K.Ranade in September 1991 and that the said premises were kept

closed.

16. Another application below Exhibit 54 was filed by

defendant no. 2 before the learned District Judge inter alia praying

that the matter be remanded to the lower Court, for recording

evidence on a fresh issue, in view of the amendment made by

respondent no.2 to the written statement. The learned District Judge

by an order dated 8.9.1993 allowed the said application by framing

an additional issue namely, ‘as to whether defendant no.2 proves that

the landlord had acquired suitable accommodation during pendency

of the Appeal’ . The trial Court was directed to record additional

evidence and proceed to try the issues so framed and return the

findings to the Appellate Court.

17. The parties being relegated to the trial Court on the said

issue as framed by the appellate Court, the trial Court recorded fresh

evidence and heard the parties. The learned trial Judge in his order

dated 7.3.1994 recorded a finding that defendant no.2 had proved

that the landlord has received possession of two rooms during

pendency of the Appeal. In recording these findings, the learned trial

Judge relied on the report of the Court Commissioner.

18. Thereafter, it was the plaintiffs who moved an

application below Exhibit 18 in the defendant’s Civil Appeal ( Civil

Appeal No.278 of 1987 ) praying that the trial Court be directed to

record evidence on the contentions as per amended para 5 (a) of the

written statement of defendant no.2 and give findings in that regard.

The contentions of defendant no.2 in para 5 of the written statement

are as under :

“5 (a) The house property bearing C.T.S.No.171 Shukrawar

Peth is in possession of the plaintiff, the said property is

owned by the joint family of plaintiffs. The son of plaintiff

no.1 Yashwant Shankar Barve viz Jayant has carried out

construction over the said property and he is selling shops,

godown and offices. The defendants have also come to

know that they have also constructed flats for residence.

The plaintiffs are already possession ample premises for

residence. Hence, it goes to prove that the plaintiffs are not

in bonafide need of suit premises so also they have more

premises than their requirement. It is the say of the

defendant that allegations of plaintiffs regarding so called

partition are false. The plaintiffs have share in the house

property bearing no.193 Shukrawar Peth.The plaintiffs, his

family members, brothers, with their families, plaintiffs’

mother are residing and doing business in the said property.

Besides, the above referred property, plaintiffs have rights

interest and share in the other properties of their joint

family. The defendant further contends that plaintiffs are

doing many business besides the business of construction

works. Their financial position is well to do, hence the need

of plaintiffs is not bonafide one and they are not in need of

the premises in occupation of defendants. (Amendment vide

Exhibit 20 dt 1.12.90 at appellate stage.) “

19. The learned District Judge by an order dated 12.2.1995

allowed the above application of the plaintiffs being Exhibit 18 by

directing the learned trial Judge to give an opportunity to the

plaintiffs, to lead evidence on a plea as taken by defendant no.2 in

para 5 (a) of the written statement and render its findings to that

effect and remit the same to the District Court.

20. The learned trial Judge accordingly permitted the

plaintiffs and the defendants to lead evidence and after hearing the

parties by an order dated 30.10.1995 rendered a finding that

defendant no.2 had failed to prove that plaintiffs are in possession of

sufficient accommodation in the premises standing on Plot nos.171

and 193 Shukrawar Peth,Pune. The learned trial Judge in passing

this order had made the following the observations :

(i) that the partition in respect of property no.171 stood proved

on evidence and that accordingly property no.171 had fallen to

the share of Vishwanath and House no.193 had fallen to the share of

his mother Laxmibai and brother Narayan. Thus, the plaintiffs had

nothing to do with these properties after the partition.

(ii) There is no dispute that the old structures standing on 171

and 173 stood demolished and a new complex residential and non

residential was constructed.

(iii) Laxmibai and Narayan Shankar Barve the other members of

the joint family of the plaintiffs on partition were absolutely seized

possessed and entitled to property and survey nos.193 and 171

respectively and plaintiffs had no share in it. Hence, case of

defendant no.2 that construction on plot nos.171 or 193 was owned

by plaintiffs was not true and correct.

(iv) The construction which was undertaken by M/s

Vishwabandhu Construction Pvt.Ltd was a company incorporated

under the Indian Companies Act, 1956 and as seen from past and

present members, it shows that out of 12 members 9 are from the

plaintiff’s family .

(v) The Register of Directors of the company showed that one

Narayan and plaintiff No.1-Yeshwant are Directors of the company.

However, Narayan did not hold any share in the company. But, was

paid a salary of Rs.500/- by the company.

(vi) Only because plaintiff no.1 Yeshwant was a Director of the

company would not mean that he becomes a owner or has any right

in respect of any flat constructed on CTS Nos.191 or 193.

(vii) On the evidence on record as it stands, it cannot be said that

plaintiffs are in possession of sufficient accommodation in Plot

no.193.

(viii) What is sufficient accommodation to one family may not be

so to the other. Defendant no.2 did not led any evidence on the

issues as to what would be sufficient accommodation for the

plaintiffs.

(ix) Merely because the plaintiffs were residing in the property

bearing Plot No.193 and which was only as a courtesy from other

family members, it could not be said that they do not require the suit

premises.

(x) The specific plea of defendant no.2 was that the plaintiffs

had sufficient accommodation in premises CTS Nos.171 and 193. It

was thus for the defendant to lead positive evidence about the nature

of the accommodation or to the extent of the accommodation but,

defendant no.2 has failed to discharge that burden. Defendant no.2

hence failed to prove that the plaintiffs are in possession of sufficient

accommodation in the premises standing on CTS Nos.171 and 193,

Shukrawar peth, Pune.”

21. The learned District Judge, considering the findings

which were returned by the trial Court on the additional issues as

noted above, and considering the judgment in appeal, by the

impugned judgment and order allowed the plaintiffs’ Appeal by

reversing the findings as recorded by the learned trial Judge to the

extent the reliefs were declined to the plaintiffs in respect of the four

rooms and decreed the plaintiff’s Suit. Consequently the defendant’s

appeal in respect of the defendants’ eviction in respect from the two

rooms came to be dismissed. The findings of the learned trial judge

fixing the standard rent at Rs. 22/- per month were held to be

appropriate and the order in this regard came to be confirmed. The

following is the operative order dated 1.1.1997 passed by the learned

District Judge :

1. Civil Appeal No.369/1987 instituted by the landlord is

allowed.

2. Civil Appeal No.278/87 instituted by Defendant Vasant is

dismissed.

3. Revision Petition No.25/1987 instituted by petitioner

Vasant and others is also dismissed.

4. The judgment and decree passed in Regular civil suit

no.1682/1982 is set aside, whereas the findings ni respect of

standard Rent Application i.e Misc.Civil Application

no.349/1982 are confirmed.

5. The standard rent of the suit premises is Rs.22/ per

month.

6. Defendants are directed to hand over actual and vacant

possession of the suit premises within 4 (four) months from the

date of this decree.

7. In the circumstances of the case, parties to bear their

own costs.

8. Enquiry under Order 20 Rule 12 of CPC is directed for

the determination of future mesne profits.”

Dt.1.1.1997 S/d

10th Addl.D.J.Pune*

22. In allowing the plaintiff’s Appeal, the learned District Judge

held, that the plaintiffs have proved that defendant no.1 had acquired

suitable accommodation. It was held that the plaintiffs have also

proved that they required the suit premises reasonably and bonafide.

In regard to the case of defendant no.2, that the plaintiffs possessed

sufficient accommodation in the premises standing on plot nos.191

and 193 Shukrawar Peth, Pune it was held that the same could not be

proved by defendant no.2. In regard to possession taken over from

Mr.M.K.Ranade, it was held that this was not sufficient to satisfy the

bonafide need of the plaintiffs to have the suit premises. It was

observed that the area which was in possession of Mr.Ranade was of

two rooms and both the rooms were in a dilapidated condition. The

learned District Judge observed that taking into consideration the

living standard of the plaintiffs, the possession of these rooms would

not mean that the need of the landlords stood satisfied. It was

observed that the premises of Mr. Ranade were not sufficient for use

and occupation of the landlord/plaintiffs, when all members of the

plaintiffs were adults and their sons married.

Submissions on behalf of the petitioner/Defendant no.2

23. Mrs.Agarwal learned counsel for the petitioners, in

assailing the impugned judgment and order passed by the learned

District Judge, has made the following submissions :

(i) The suit premises in the year 1937 were let out to the

joint family of Raghunath which comprised of his mother, brothers,

and sisters which included defendant no.2’s father Sadashiv who was

Raghunath’s brother. All these members were residing in the suit

premises in respect of which there was ample evidence on record.

The trial Court rightly held that Raghunath being the elder brother

and karta of the joint family, the rent receipts were issued in his name

and after the death of Raghunath in 1971, Sadashiv defendant no.2’s

father was residing in the suit premises who also died in the suit

premises. The defendant no.2 along with his brothers and sisters was

residing in the suit premises after the death of Sadashiv. Thus,

defendant no.2 was the member of the family residing with the

tenant at the time of his death and therefore, he becomes a tenant

within the meaning of Section 5 (11) (c) (i) of the Bombay Rent Act.

(ii) The learned trial Judge considering the documents and

the evidence has correctly held that defendant no.2’s father Sadashiv

was staying with Raghunath at the time of his death in 1971.

Sadashiv continued to stay in the suit premises till the year 1981

when he died in the suit premises. Therefore, under section 5 (11)

because rent receipt was issued in the name of Achut (Original

defendant no.1) this did not deprive defendant no.2 to assert joint

tenancy rights. In support of these contentions, reliance is placed on

the decision of the learned Single Judge of this Court in Zahid Ahmed

Ali Mazgaonwalla and Anr vs Smt Gulshan Pyarali Mazgaonwalla1,

decisions of the Supreme Court in Textile Association (India) Bombay

unit vs Bal Mohan Gopal Kurup & anr2, Watanmal vs Kailashnath3,

Ashok Chintaman Juker & ors vs Kishore Pandurang Mantrai & anr4,

Vasant Pratap Pandit vs Dr.Anant Trimbak Sabnis5.

(iii) That defendant no.1-Achyut having acquired another

premises, it will not amount to acquiring suitable alternate premises

for the entire family. The word ‘family’ has to be given wider

meaning, so as to include not only the head of the family but, all the

members of the family as descendants, from common ancestors who

are actually living with same head.

1 2006 (5) MhLJ 522

2 1990 (4) SCC 700

3 1989 SCC 79

4 2001 (5) SCC page 1

5 1994 (3) SCC page 481

(iv) The beneficial provisions of the Bombay Rent Act are

required to be meaningfully construed so as to advance the objects of

the Act.

(v) The appellate Court in para 15 of the impugned judgment, has

also held that Raghunath father of defendant no.1 was a tenant of

the suit premises, and at that time, the father of defendant no.2

Sadashiv was residing with him and that defendant no.2 after the

death of his father-Sadashiv was paying rent by drafts, although the

rent receipts were issued in the name of defendant no.1- Achyut. It is

submitted that when these findings are recorded, the learned District

Judge could not have observed that after the death of Sadashiv, the

defendants had chosen Achyut to be the tenant of the suit premises.

It ought to have been held that defendant No.2 Vasant, son of

Sadashiv also had an independent tenancy rights in respect of the

premises.

(vi) It is submitted that the Courts below ought not to have

believed the oral partition of the plaintiffs family to record a finding

that the Suit property had come to the share of the plaintiffs and that

they had no interests in any other joint family properties, and more

particularly CTS Nos.193 and 171. The theory of oral partition in the

year 1980 canvassed on behalf of the plaintiffs, before the trial Court

was not pleaded in the plaint. No document has been placed on

record regarding partition except the 7/12 Extract and the city civil

extracts.

(vii) The learned District Judge ought to have accepted the

findings of the learned trial judge on the additional issue that

defendant No.2 had failed to prove that the plaintiffs were having

sufficient accommodation in premises standing on plot nos.171 and

193 Shukrawar peth, Pune.

(viii) The learned District Judge ought to have held that the

plaintiffs were blowing hot and cold in the same breath, as it suited

their purpose. The plea of bonafide requirement as taken by the

plaintiffs was a plea taken for the benefit of the joint family of the

plaintiffs and later on, pleaded to be the bonafide requirement of

plaintiff nos.1 and 2.

(ix) The learned District Judge failed to appreciate that

during the pendency of this petition, the plaintiffs had acquired the

premises of Mr.Ranade. It is submitted that amendment in written

statement was permitted that actual possession of two rooms was

obtained by the plaintiffs from Mr.Ranade in September 1991 and

that they were not put to use. The Court Commissioner’s report, in

this regard that these two rooms were not habitable should not have

been accepted by the learned District Judge.

(x) The contention of defendant no.2 that bonafide

requirement of the plaintiffs was bogus as they had already 9 rooms

in CTS No.193 and had constructed additional buildings around 1994

consisting of ground plus three floors, ought to have been accepted.

(xi) The learned District Judge ought to have accepted the

case of defendant no.2 that the plaintiffs had formed a private limited

company namely M/s Vishwabandhu Developers consisting of all the

family members and that the plaintiff no.1 was appointed as a

Director of the company receiving big remuneration. Thus, the

financial status of the plaintiff was much better than the defendant

no.2 who is a retired employee from Bharat Forge requiring to

maintain his family. Even otherwise during the pendency of the

proceedings, additional premises were acquired from the other

tenants which was huge area for the landlord for his occupation as

the bonafide requirement of the landlord is met from the other

tenants.

(xii) It ought to have been held that greater hardship would

be caused to petitioner/defendant no.2 who is now occupying part of

the premises and who has handed over possession of two rooms to

the plaintiff at the time of admission of the present writ petition

which are also kept locked and not used.

(xiii) In the alternative, even if the plaintiff is held to have proved

bonafide requirement, on the basis of comparative hardship, the

plaintiff’s Suit ought to have been dismissed considering the

provisions of section 13 (2) of the Bombay Rent Act, which is an

exception, to eviction under section 13 (1) (g). This submission is

supported by relying on the decisions in Badrinarayan Chunilal

Bhutada vs Govindram Ramgopal Mundada 2003 (3) BCC 527 and

Gafur vs Hirabai Kolte 2001 (4) BCR 691.

(xiv) Lastly, and in the alternative it is contended that the trial Court

has rightly granted a partial decree of two rooms which ought not to

have been interfered with by the learned District Judge.

Submissions on behalf of the plaintiffs (landlords)/respondents

24. Mr. Patil, learned counsel for plaintiff (respondent nos.1

and 2) has made the following submissions :

(i) It is not correct for the petitioners to contend that after

the death of Raghunath, Sadashiv had become the tenant as it was

accepted by the defendants that defendant no.1-Achyut would

succeed to the tenancy and rent receipts were accordingly issued, in

favour of defendant no.1 -Achyut as permissible under provisions of

section 5 (11) (c) of the Bombay Rent Act.

(ii) It is submitted that Achyut had admitted acquisition of

alternate suitable premises. Hence, the plaintiffs had succeeded in

establishing the grounds of eviction under section 13 (1) (k) and 13

(1) (l) of the Bombay Rent Act namely on the grounds of non-user

and the tenant having acquired alternative premises respectively.

(iii) It is submitted that defendant no.1-Achyut who had

become the tenant after his father Raghunath expired, has not

challenged the eviction decree. Defendant no.2 can have no locus in

law in the facts of the case to assail the judgment and order passed

by the learned District Judge, in the absence of any legal right of

tenancy.

(iv) It is submitted that only one person can be considered as

a tenant under the Bombay Rent Act considering the definition of

“tenant” as defined under section 5 (11) (c) of the Act. It is

submitted that if there was to be any dispute, between the heirs and

family members of a deceased tenant, then it was necessary for such

family member to obtain appropriate declaration under section 5

(11) (c) of the Act.

(v) It is submitted that this is a case where the family

members elected and accepted Achyut to be the tenant on the death

of his father Raghunath (original tenant) and till the filing of the

Suit, rent was paid by defendant no.1-Achyut who had in fact vacated

the suit premises. The defendant no.2/petitioner was never treated

as a tenant by the plaintiffs either before or after the death of the

original tenant- Raghunath.

(vi) It is submitted that there is no concept of joint family

tenancy under the Act, and more particularly considering the

definition of a tenant as contained in section 5 [11] (c) of the Act.

Even otherwise, the rent receipt was issued firstly in the name of

Raghunath and later on in the name of Achut it was never issued in

the name of the HUF.

(vii) The findings of facts recorded by the trial Court as also

confirmed by the District Court on bonafide requirement cannot be,

held to be perverse requiring interference in writ proceedings.

(viii) Both the Courts below have correctly held that the

premises which were available during the pendency of the

proceedings, are not suitable. The premises are more than a hundredyears-

old without having the facility of toilet and bathrooms and that

after the death of original plaintiffs, the family members of the

plaintiffs bonafide required the suit premises.

25. In support of the above contentions, reliance is placed

on the following decisions in (i) Gool Rustomji Lala vs Smt

Rustomji Lala6; (ii) Kanti Bhattacharya & ors vs K.S.Parmeshwaran &

anr7 (iii) Vimalabai Keshav Gokhale vs Avinash Krishnaji Binjewale &

ors8; (iv) Smt Parvatibai w/o Bandu Marathe vs Smt Radhabai

Chaggan Bhandarkar (decd) by her legal heirs9; (v) Shamkant

Tukaram Naik vs Dayanabai Shamsan Dighodkar (Smt)10; (vi) Urmi

Deepak Kadia vs State of Maharashtra11; (vii) Ramesh Ramgopal Daga

vs Prashant Baburao Khandare12; (viii) Nandkishor Savalaram Malu

vs Hanumanmal G.Biyani13; (ix) Vasant Pratap Pandit vs Dr.Anant

Trimbak Sabnis14;

REASONS AND CONCLUSIONS:

26. I have heard learned counsel for the parties, with their

assistance, have perused the records and proceedings and the

judgments of the Courts below.

6 AIR 1973 Bom 113

7 1994 (3) Bom CR 100

8 2004 (1) Bom C R 839

9 W.P.No.4969/1998 (Aurangabad Bench)

10 1989 1 Bom CR 554

11 WP no.1853/2014

12 2006 (1) Bom C.R.844

13 2017 (3) Mh.L.J. (Supreme Court) page 37

14(1994) 3 Supreme Court Cases 481

27. At the outset, some admitted facts are required to be

noted. The tenancy of residential premises comprising of six rooms

in the suit property was created in the year 1937 in favour of

defendant no.1’s father Raghunath Ganesh Joshi. Raghunath

expired in the year 1971. Till his death, the rent receipts were issued

in his name. After Raghunath‘s death, the rent receipts were

transferred in the name of his son defendant no.1-Achyut, who

continued to reside in the suit premises till the year 1979 when he

shifted his residence to a newly purchased flat. As seen from the

record, it appears to be not in dispute that Raghunath was residing in

the tenanted premises along with his family members which included

Sadashiv-defendant no.2’s father. Sadashiv expired in the year 1981.

Even after Raghunath expired, Sadashiv although continued to reside

in the suit premises, till he expired in 1981, he had accepted that the

tenancy be held by defendant no.1-Achyut and accordingly rent

receipt be issued by the plaintiff in favour of Achyut –Defendant

No.1, (son of Raghunath). After defendant no.1 moved out of the

suit premises, in the year 1979 defendant no.2 Vasant along with his

father and family members however continued to occupy the suit

premises. The record indicates that it is Defendant No. 2 who has

really contested the proceedings before the courts below by claiming

independent right as a tenant. Admittedly, defendant no.1 has not

assailed the eviction decree passed by the learned District Judge.

28. It is also quite clear that neither Sadashiv the late father

of defendant no.2 nor for that matter Vasant- defendant no.2 thought

it appropriate to assert that they had become tenants after the

original tenant- Raghunath expired in the year 1971 and/or when

defendant no.1-Achyut moved out of premises in the year 1979.

They never took a position that even if the rent receipt was issued in

the name of defendant no.1-Achyut, they can be said to be real

tenants of the suit premises. This more pertinently when defendant

no. 2 had asserted before the Courts below that the suit premises

were taken in tenancy for the joint family of Raghunath and

Raghunath being the ‘Karta’ at the relevant time the rent receipt was

issued in his name. If this contention of defendant no.2 is to be

accepted, then after the death of Raghunath, his brother Sadashiv

became the ‘Karta’ of the joint family and the rent receipts should

have been transferred in his name, however this never happened and

the rent receipts came to be transferred and issued in favour of

defendant no.1-Achyut to the knowledge of Sadashiv as also

defendant no.2-Vasant.

29. This indisputed position taken by deceased Sadashiv

after the death of his brother Raghunath (original tenant) or for that

matter defendant no.2-Vasant, after the death of his father Sadashiv

who expired in 1981, assumes significance so as to consider as to

who was the actual tenant for the purposes of the eviction

proceedings as launched by the plaintiffs/landlords by way of the suit

in question.

30. The landlord in law and as recognized under the

provisions of section 13 of the Bombay Rent Act, is entitled to recover

possession on the grounds, as available under the said provisions.

Section 13 (1) which inter alia provided that the landlord shall be

entitled to recover possession of the tenanted premises, on various

grounds. A perusal of sub-clauses (a) to (l) of sub-section 13 (1)

would indicate that it is “the tenant” from whom the possession

would be required to be recovered. The word ‘tenant’ would be

required to be understood as defined under section 5 (11) of the

Bombay Rent Act which reads thus :

Section 5 (11)

“tenant” means any person by whom or on whose account rent

is payable for any premises and includes-

(a) such sub-tenants and other persons as have derived title,

under a tenant before the commencement) of the Bombay

Rents, Hotel and Lodging House Rates Control (Amendment)

Ordinance, 1959.

(aa) any person to whom interest in premises has been

assigned or transferred as permitted or deemed to be permitted,

under section 15.

(b) any person remaining, after the determination of the

lease, in possession with or without the assent of the landlord,

of the premises leased to such person or his predecessor who

has derived title (before the commencement) of the Bombay

Rents, Hotel and Lodging House Rates Control (Amendment)

Ordinance 1959).

(bb) such licensees as are deemed to be tenants for the

purposes of this Act by section 15A)

the tenant dies whether the death has occurred before or after

the commencement of the Bombay Rents Hotel and Lodging

House Rates Control (Amendment) Act 1978 a member of the

tenant’s family residing 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 default of agreement by the Court;

(I) in relation to any premises let for the purposes of

education, business, trade or storage when the tenant dies,

whether the death has occurred before or after the

commencement of the said Act any member of the tenants’

family using the premises for the purposes of education or

carrying on business, trade or storage in the premises 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

default of agreement by the Court.

Explanation-The provisions of this clause for transmission of

tenancy shall not be restricted to the death of the original

tenant, but shall apply and shall be deemed always to have

applied even on the death of any subsequent tenant who

becomes tenant under these provisions on the death of the last

preceding tenant.” (emphasis supplied)

31. It would also be relevant to note the provisions of

Section 15 of the Bombay Rent Act as the same deals with the right

of a tenant to assign his rights in the tenancy. Section 15 reads as

under :-

“15. (1) Notwithstanding anything contained in any law (but

subject to any contract to the contrary) it shall not be lawful

after coming into operation of this Act for any tenant to sub-let

the whole or any part of the premises let to him or to assign or

transfer in any other manner his interest therein (and) after the

date of commencement of the Bombay Rents, Hotel and Lodging

House Rates Control (Amendment) Act, 1973 for any tenant to

give on licence the whole or part of such premises).”

Provided that the (State) Government may by

notification in the Official Gazzetee, permit in any area the

transfer of interest in premises held under such (leases or class

of leases) (or the giving on licence any premises or class of

premises) and to such extent as may be specified in the

notification)…………………………...”

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