Bombay High Court
Dharamvir Ishwarlal Joshi vs Jayant Ramchandra Patwardhan And ... on 21 August, 2015
Bench: M.S. Sonak
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO. 225 OF 2015
ALONGWITH
CIVIL APPLICATION NO. 349 OF 2015
Dharamvir I. Joshi .. Applicant
vs.
Jayant R. Patwardhan and anr. .. Respondents
Mr. Jayesh Bhatt for the Applicant.
Mr. Girish Godbole a/w. Mr. Ajit Kocharkar for Respondent No.1
Mr. Pranay Mangharam i/b MZD Legal Consultancy for Respondent
No.2.
CORAM : M. S. SONAK, J.
Date of Reserving the Judgment : 19 August 2015.
Date of Pronouncing the Judgment : 21 August 2015.
JUDGMENT :-
1] Rule. With the consent of and at the request of learned
counsel for the parties, Rule is made returnable forthwith.
2] This Civil Revision Application is directed against the
following orders:
(i) Order dated 14 January 2015 in Review Application No.
3 of 2014 in Appeal No. 709 of 2008 made by the Division
Bench of the Small Causes Court (Appeal Court);
(ii) Order dated 23 October 2012 in Appeal No. 709 of
2008 made by the Appeal Court; and
(iii) Judgment and decree dated 8 October 2007 made in
R.A.D. Suit No. 678 of 2001 by the Small Causes Court (Trial
Court).
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3] The aforesaid impugned orders have declared the respondent
No.1, the plaintiff in R.A.D. Suit No. 678 of 2001 (Patwardhan) to be
the tenant in respect of the suit premises and the applicant herein, a
rival claimant to the tenancy of the suit premises has been directed
by a mandatory injunction to remove his lock upon the suit premises
within four months from the date of decree. The permanent
injunction as also been granted against the applicant from entering
and using the suit premises without taking recourse to the due
process of law.
4] The suit premises, in the present case, is Room No. E-30, 3 rd
Floor, Tara Baug Estate, Raja Ram Mohan Roy Marg, Mumbai - 400
004, which were originally let out by the landlord, respondent No.2
(Shah) to Shri. Vishnu D. Dabak. The said Vishnu Damodar Dabak
died on 28 February 1986. Thereafter, his son Janardhan continued
to reside in the suit premises until the date of his demise, i.e., 20
February 1998. There is dispute between Patwardhan and the
applicant (Joshi) as to the claim of tenancy in respect of suit
premises.
5] The applicant (Joshi) claims tenancy to the suit premises on
the basis of Will as allegedly left behind by the tenant Janardhan. On
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the other hand, respondent No.1 (Patwardhan) claims tenancy on
the basis that he is the member of Janardhan's family, who was
residing with Janardhan in the suit premises, at the time of demise
of Janardhan on 20 February 1998. Patwardhan instituted R.A.D.
Suit No. 678 of 2001, which has since been decreed in his favour by
the Trial Court. The Appeal and Review against the same have been
dismissed by the Appeal Court. Hence, the present Civil Revision
Application.
6] Mr. Jayesh Bhatt, learned counsel for the applicant, made the
following two submissions in support of the Civil Revision
Application:
(a) The finding that respondent No.1 (Patwardhan) was a
member of deceased tenant's family and was residing with the
deceased tenant in the suit premises at the time of his demise,
is vitiated by perversity; and
(b) The finding that the right of tenancy cannot be
bequeathed by the tenant by Will in favour of a stranger, is
contrary to the ruling of the Apex Court in case of Gaiv
Dinsha Irani & Ors. Vs. Tehmtan Irani & Ors.1.
1 2015(2) ALL MR 456 (SC)
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7] Mr. Godbole, learned counsel for respondent No.1
(Patwardhan) submitted that in this case, there are concurrent
findings of fact recorded by the Trial Court and the Appeal Court
that Patwardhan was indeed a member of Janardhan's family, at the
time of demise of Janardhan. Such findings of fact are amply borne
by the evidence on record and there is absolutely no perversity
involved. Further, there is catena of decisions directly under the
Bombay Rents, Hotel and Lodging Houses Rates Control, 1947 Act
(1947 Act) that statutory tenancy cannot be bequeathed in favour of
a stranger. The ruling in case of Irani (supra), is clearly
distinguishable, as the Apex Court was not dealing with tenancy
under the Rent Act, but rather with tenancy created by the Bombay
Municipal Corporation under the legislation constituting it, where
there was no statutory provision favouring transfer only to family
members of the deceased tenant. Mr. Godbole submitted that there is
absolutely no jurisdictional error in making of the impugned orders
and therefore, this Court ought not to interfere with the same in
exercise of jurisdiction under the Article 227 of the Constitution of
India.
8] Mr. Pranay Mangharam, learned counsel counsel for the
landlord, submitted that from the material on record, it is clear that
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neither the applicant Joshi, nor the respondent No.1 Patwardhan can
be regarded as tenants in respect of the suit premises and therefore,
the suit as instituted by Patwardhan should have been dismissed,
after observing that even the applicant Joshi has no rights of tenancy
in respect of the suit premises.
9] The rival contentions now fall for determination.
10] There is no warrant to interfere with the concurrent findings
of fact recorded by the two Courts in favour of the Patwardhan being
a member of the deceased tenant's family and residing with the
deceased tenant, at the time of his demise, in the suit premises. The
findings of fact are based upon both oral as well as documentary
evidence on record. The two Courts have relied upon Ration Card
and some correspondence emanating from the suit premises in
support of such finding of fact. The jurisdiction under Article 227 of
the Constitution of India is not appellate jurisdiction. Therefore, it is
not for this Court to assess and reassess the material on record with
the view to determining whether upon reconsideration of such
evidence some different view is possible or plausible. As long as the
finding of fact is not vitiated by perversity, in the sense that the
finding is based upon no evidence or on basis of inadmissible or
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irrelevant evidence or upon exclusion of relevant evidence, there is
no scope to interfere. The two Courts have held that Patwardhan is a
relative of deceased Janardhan. The two Courts have further held
that Patwardhan was residing with deceased Janardhan at the time
of his demise in the suit premises. This finding of fact cannot be
regarded as perverse.
11] Mr. Bhatt, however, made reference to decision in case of Haji
Ismail Valid Mohmad & ors vs. Sports Club in the name of Union
Sports Club and ors.2, in which it has been held that normally,
'family' includes parents, spouse, brothers, sisters, sons or daughters
or in some cases widow of a predeceased son or the issues of the
pre-deceased sons but no stretch of imagination it can be held that
the distant nephews would be the family members howsoever broad
meaning is given to the word family. This was to contend that
Patwardhan, being a distant relative of the deceased tenant, cannot
be regarded as a member of the deceased tenant's family. At the
same time, Mr. Bhatt also placed reliance upon the decision of this
Court in case of Ramchandra G. Gharpure (since deceased, by
heirs and legal representatives) and ors. vs. Madhav Dattatraya
Phadke and ors.3 as well as another decisions, in which it has been
2 1992 Bom.R.C. 154
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held that even a mistress can be held to be a member of the decased
tenant's family. As noted earlier, in the present case, the two Courts,
on basis of the material on record, have recorded the findings of fact
that Patwardhan was indeed a family member of the deceased
tenant and was residing with the deceased tenant at the time of his
demise. In recording such finding, it cannot be said that the two
Courts have not been conscious of the legal position, particularly in
the context of expression 'resides' employed in Section 7(15) of the
Rent Act. The Apex Court, in the case of Smt. Jeewanti Pandey vs.
Kishan Chandra Pandey4, has held that the words 'resides' is a
flexible one and has many shades of meaning, but it must take its
colour and content from the context in which it appears and cannot
be read in isolation. In the context of the Rent Act, the term 'resides'
indicates something more than a temporary stay. A character of
residence must be more or less of a permanent nature. Again, as
noted earlier, the finding of fact in this regard is based upon both
oral as well as documentary evidence. The two Courts have taken
into consideration the documents like Ration Card and some
correspondences emanating from the suit premises. The
circumstance that late Janardhan was living alone and was afflicted
by ailments is also relevant in the context of the case set out by
4 AIR 1982 Supreme Court 3
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Patwardhan in the plaint. Accordingly, there is no reason to interfere
with the concurrent findings of fact recorded by the two Courts on
the aspect of Patwardhan being the member of the family and
residing with the deceased tenant at the time of his demises in the
suit premises.
12] As regards the second contention of Mr. Bhatt, reference is
required to be made to the provisions contained in Section 7 (15) of
the Maharashtra Rent Control Act, 1999 (Rent Act). This section
defines the expression 'tenant' to inter alia include, in relation to any
premises, when the tenant dies, whether the death occurred before
or after the commencement of the Rent Act, any member of the
tenant's family, who where they are let for residence, is 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 the
absence of agreement, by the Court. This means that upon demise of
the tenant, any member of the tenant's family, who is residing with
the tenant at the time of his death, becomes the tenant of the suit
premises. However, if there is no such member, then any heir of
deceased tenant, as may be decided, in the absence of agreement, by
the Court becomes the tenant of the suit premises. The legislature
has not included a legatee of the deceased tenant, as one of the
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persons upon whom the tenancy will devolve upon the demise of the
tenant.
13] This issue, is really no longer res integra at least in the context
of definition of the expression 'tenant' as it appears in Section 5(11)
(c) of the 1947 Act. The relevant extract of Section 5(11)(c) of the
1947 Act reads thus:-
5. (11) tenant means any person by whom or on
whose account rent is payable for any premises and includes
(a) ...
(aa) ...
(b) ...
(bb) ...
(c) (i) in relation to any premises let for residence,
when the tenant dies, ... any 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;
(ii) in relation to any premises let for the purpose
of education, business, trade or storage, when the tenant
dies, ... any member of the tenant's 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.
14] If the definition of expression 'tenant' as contained in Section
7(15)(d) of the Rent Act and the definition of the same expression as
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contained in Section 5(11)(c) of the 1947 Act is compared, then,
insofar as the material aspects are concerned, there is no material
difference.
15] The Apex Court in case of Vasant P. Pandit vs. Dr. Anant T.
Sabnis5, has in terms held that bequeath of tenancy rights under the
1947 Act is impermissible. The relevant discussion is contained in
paragraphs 14, 15 and 16, which read thus:
14. From a plain reading of Section
5(11)(c)(i) it is
obvious that the legislative prescription is first to give
protection to members of the family of the tenant residing
with him at the time of his death. The basis for such
prescription 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. 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
as well the tenancy was originally taken by the tenant. It is
for this avowed object, the legislature has, irrespective of the
fact whether such members are 'heirs' in the strict sense of the
term or not, given them the first priority to be treated as
tenants. It is only when such members of the family are not
there, the 'heirs' will be entitled to be treated as tenants as
decided, in default of agreement, by the court. In other words,
all the heirs are liable to be excluded if any other member of
the family was staying with the tenant at the time of his
death. When Section 15, which prohibits sub-letting,
assignment or transfer, is read in juxtaposition with Section
5(11)(c)(i) it is patently clear that the legislature intends
that in case no member of the family as referred to in the first
part of the clause is there the 'heir', who under the ordinary
mode of succession would necessarily be a relation of the
deceased, should be treated as a tenant of the premises
subject, however, to the decision by the court in default of
5 (1994) 3 SCC 481
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agreement. The words "as may be decided in default of
agreement by the Court" as appearing in Section 5(11)(c)(i)
are not without significance. These words in our view have
been incorporated to meet a situation where there are more
than one heirs. In such an eventuality the landlord may or
may not agree to one or the other of them being recognised as
a 'tenant'. In case of such disagreement the court has to
decide who is to be treated as 'tenant'. Therefore, if 'heir' is to
include a legatee of the will then the above-quoted words
cannot be applied in case of a tenant who leaves behind more
than one legatee for in that case the wishes of the testator can
get supplanted, on the landlord's unwillingness to respect the
same, by the ultimate decision of the court. In other words, in
case of a testamentary disposition, where the wish or will of
the deceased has got to be respected a decision by the court
will not arise and that would necessarily mean that the words
quoted above will be rendered nugatory. What we want to
emphasise is it is not the heirship but the nature of claim that
is determinative. In our considered view the legislature could
not have intended to confer such a right on the testamentary
heir. Otherwise, the right of the landlord to recover possession
will stand excluded even though the original party (the
tenant) with whom the landlord had contracted is dead.
Besides, a statutory tenancy is personal to p-1-wp-11710-
14the tenant. In certain contingencies as contemplated in
Section 5(11)(c)(i) certain heirs are unable to succeed to
such a tenancy. To this extent, a departure is made from the
general law.
15. The matter may be viewed from another angle also. If
the word 'heir' is to be interpreted to include a 'legatee' even a
stranger may have to be inducted as a tenant for there is no
embargo upon a stranger being a legatee. The contention of
Mr Sorabjee that 'heir' under a will may be confined to only
members of the family cannot be accepted for there is no
scope for giving such a restrictive meaning to that word in the
context in which it appears in the Act as earlier noticed,
unlike in other Rent Acts.
16. Coming now to the meaning of the words 'assign' or
'transfer' as appearing in Section 15 we find that 'transfer'
has been qualified by the words 'in any other manner' and we
see no reason why it should be restricted to mean only
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transfer inter vivos. As has been rightly pointed out by the
High Court in the impugned judgment the Transfer of
Property Act limits its operation to transfer inter vivos and,
therefore, the meaning of the word 'transfer' as contained
therein cannot be brought in aid for the purpose of the Act.
On the contrary, the wide amplitude of the words 'in any
other manner' clearly envisages that the word 'transfer' has
been used therein in a generic sense so as to include transfer
by testament also. (emphasis supplied)
16] Mr. Bhatt, the learned counsel for the applicant, has however,
placed reliance upon the decision of the Apex Court in case of Irani
(supra), in which it is held that in the absence of any specific
provision, general law of succession will apply and tenancy can be
bequeathed by will in favour of a stranger, particularly, when there
are no statutory provision favouring transfer only to family members
of the deceased tenant.
17] Mr. Bhatt contends that unlike 1947 Act, the Rent Act contains
no provision prohibiting the transfer or assignment of tenancy rights
in the suit premises. On the contrary, Mr. Bhatt contends that the
provisions contained in Section 56 of the Rent Act specifically permit
or at least recognise the assignment and the transfer of tenancy
rights, as long as such transfer or assignment is in writing and
registered under the Registration Act, 1908. The contention of Mr.
Bhatt cannot be accepted. In the first place as noted earlier, there is
no appreciable difference, at least insofar as material aspects are
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concerned between the definition of the expression 'tenant' as
contained in Section 5(11)(c) of the 1947 Act and Section 7(15) of
the Rent Act. In the context of such definition, the Apex Court in
case of Vasant Pandit (supra) as well as Bhavarlal L. Shah vs.
Kanaiyalal N. Intawala6, has held that bequest of tenancy rights is
impermissible. Secondly, Section 56 of the Rent Act merely provides
that it shall be lawful for the tenant to claim or receive any sum or
any consideration, as a condition of the relinquishment of the
transfer or assignment of his tenancy of any premises. Under the
1947 Act, there was prohibition to receive any sum or any
consideration, which prohibition has now been lifted under the Rent
Act. Both 1947 Act as well as the Rent Act, however, provide that
sub-letting , assignment, or, transfer of interest, in the suit premises
without the consent of the landlord, is a ground available to the
landlord to seek recovery of possession. Thus, on the basis of
provisions contained in Section 56 of the Rent Act, it cannot be said
that there exists no statutory provisions favouring transfer only to
family members of the deceased tenant. The decision of the Apex
Court, in case of Vasant Pandit (supra), will therefore, hold good
even in the context of the provisions contained in Section 7(15) of
the Rent Act.
6 (1986) 1 SCC 571
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18] In the case of Irani (supra), the Apex Court was concerned
with tenancy created by the Bombay Municipal Corporation (BMC)
under the Act which constituted the Corporation. The provisions of
the Rent Act, admittedly, did not apply to any premises belonging to
Local Authority , which would inter alia, include the BMC. It is in
this context, the Apex Court has held that the tenancy can be
bequeathed by Will in favour of a stranger in the absence of
statutory provision favouring transfer only to family members of the
tenancy deceased tenant. In fact, the Apex Court, has taken note of
its earlier decisions in the case of Bhavarlal Shah (supra) and
Vasant Pandit (supra) and thereafter, at paragraph 26 observed
thus:
26. The aforementioned cases indicate that in general
tenancies are to be regulated by the governing legislation,
which favour that tenancy be transferred only to family
members of the deceased original tenant. However, in light of
the majority decision of the Constitution Bench in Gian Devi
vs. Jeevan Kumar (supra), the position which emerges is that
in absence of any specific provisions, general laws of
succession to apply, this position is further cemented by the
decision of this Court in State of West Bengal Vs. Kailash
Chandra Kapur (supra) which has allowed the disposal of
tenancy rights of Government owned land in favour of a
stranger by means of a Will in the absence of any specific
clause or provisions.
(emphasis supplied)
19] From the aforesaid extract, it is clear that the Apex Court, far
from making any dent to the decisions in cases of Bhavarlal Shah
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(supra) and Vasant Pandit (supra) has acknowledged that general
tenancies are to be regulated by the governing legislations, which
favour that the tenancy can be transferred only to the family
members of the deceased original tenant. The Apex Court, in Irani
(supra) has however, held that in the absence of any specific
provision, general law of succession will apply and there would be
no bar to disposal of tenancy rights in favour of a stranger by means
of a Will. In the present case, as noted earlier, the provisions
contained in Section 7(15) of the Rent Act favours the interpretation
that tenancy can be transferred only to family members of the
deceased tenant. Accordingly, there is no question of tenancy in
respect of suit premises, being disposed in favour of the applicant by
a Will allegedly made by the deceased tenant.
20] In these proceedings, there is really no scope to consider the
contentions of Mr. Pranay Mangharam, learned counsel for the
landlord. This is because, the landlord has not chosen to file any
written statement in the suit instituted by Patwardhan. The landlord
neither led any evidence nor availed of opportunity to cross-examine
either Patwardhan or Joshi. The landlord had not instituted any
appeal against the decree made by the Trial Court. Accordingly, it is
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too late a stage to consider the landlord's contention that neither
Patwardhan nor Joshi are the tenants in respect of the suit premises.
21] In the concluding stages, Mr. Bhatt did attempt to urge that
the suit as instituted by Patwardhan was not at all maintainable
before the Small Causes Court, because this was basically a dispute
between the two persons claiming tenancy rights to the suit premises
and the landlord was merely a formal party. Neither in the written
statement nor in the memo of appeal, such contention, appears to
have been raised by the applicant. That apart, Patwardhan, in his
suit seeks declaration that he is the tenant in respect of the suit
premises and it is for this purpose that the landlord has been
impleaded as a defendant in the suit. If the provisions contained in
Section 33 of the Rent Act are taken into consideration, there is no
scope to entertain this objection raised by Mr. Bhatt to the very
maintainability of the suit instituted by Patwardhan.
22] For the aforesaid reasons, there is no case made out to
interfere with the impugned orders. This Civil Revision Application
is, accordingly, dismissed. There shall be no order as to costs.
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23] In view of disposal of Civil Revision Application No. 225 of
2015, Civil Application No. 349 of 2015 does not survive and same is
disposed of accordingly.
(M.S. SONAK, J.)
24] At this stage, learned counsel for the applicant seeks a stay on
the judgment and order now pronounced, for a period of three
weeks. Considering that for the past few years, the suit premises are
locked by both the applicant as well as the respondent No.1, the
parties are directed to maintain status quo for a period of three
months from today.
(M.S. SONAK, J.)
