Bombay High Court
Mr. Romeo Pascol Kinny And Ors vs Smt.Savitri W/D Of Dr. Umashankar ... on 25 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. 471 OF 2015
Mr. Romeo Pascol Kinny and ors. .. Applicants
vs.
Smt. Savitri w/d. of Dr. Umashankar Dwivedi . Respondents
Mr. A. Tripathi a/w. Ms. Veera Shinde for the Applicants.
Mr. R.K. Desai for Respondent.
CORAM : M. S. SONAK, J.
DATE : 25 AUGUST 2015.
ORAL JUDGMENT:
1]
This Civil Revision Application impugns the judgment and
decree dated 10 April 2015 made by the Division Bench of the Small
Causes Court at Mumbai (Appeal Court), inter alia, declaring the
respondent as the tenant in respect of the suit premises.
2] Mr. Tripathi, learned counsel for the applicants, submitted that
under the scheme of Section 7 (15) of the Maharashtra Rent Control
Act, 1999 ( Rent Act), which defines the expression 'tenant' only such
member of the tenant's family or such legal heir of the tenant, who,
where the suit premises were let out for commercial purposes, is
using the suit premises for any such purpose at the time of demise of
the original tenant, can qualify to be a tenant of the suit premises.
Mr.Tripathi submitted that if the legislature has deemed it
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appropriate to impose a condition upon any member of the tenant's
family, that such member uses the suit premises for commercial
purposes, at the time of death of the original tenant, in order to
claim tenancy to the suit premises, then it is only logical that the
same condition should also apply to a legal heir of the deceased
tenant, who claims tenancy to the suit premises. Mr. Tripathi submits
that such interpretation adopted by the Small Causes (Trial Court),
was unjustifiably upset by the Appeal Court. Therefore, Mr. Tripathi
contends that the impugned order is without jurisdiction or in any
case, in excess of jurisdiction.
3] Mr. Tripathi submits that the view taken by the Appeal Court is
contrary to the law and therefore, the impugned order should be set
aside, at least on grounds of illegality and material irregularity by
exercising revisional powers under Section 115 of the Code of Civil
Procedure, 1908 (CPC).
4] In order to appreciate Mr. Tripathi's contention, reference is
required to be made to the extract of relevant provisions contained
in Section 7(15)(d) of the Rent Act, which reads thus:
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7. (15) "tenant" means any person by whom or on
whose account rent is payable for any premises and includes-
(a) ...................
(b) ...................
(c) ..................
(d) in relation to any premises, when the tenant dies,
whether the death occurred before or after the commencement
of this Act, any member of the tenant's family, who, -
(i) where they are let for residence, is residing or
(ii) where they are let for education, business, trade
or storage, is using the premises for any such
purpose,
with the tenant at the time of his death, or, in the absence of
such member, any heir of the deceased tenant, as may be
decided, in the absence of agreement by the court;
Explanation - The provisions of this clause for transmission
of tenancy shall not be restricted to the death of the original
tenant, but shall apply even on the death of any subsequent
tenant, who becomes tenant under these provisions on the
death of the last preceding tenant.
5] From the plain reading of the aforesaid provisions, it is clear
that the legislature has merely granted a priority in the matter of
claim of tenancy rights to any member of the tenant's family, who,
where the suit premises are let for commercial purposes, is using
such premises for any such purpose with the tenant at the time of his
death. Further, the provisions in Section 7(15)(d) of the Rent Act
proceed to lay down that in the absence of any member, any heir of
the deceased tenant, as may be decided, in the absence of
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agreement by the Court, will qualify to be the tenant in respect of
the suit premises. The legislature has not provided any condition of
user of the suit premises by the legal heir alongwith the tenant at the
time of his demise. This omission is obviously deliberate and the
same shall have to be respected when interpreting the statutory
provisions.
6] The Apex Court, in case of Vasant P. Pandit vs. Dr. Anant T.
Sabnis1, has interpreted the provisions contained in Section 5(11)
(c) of the Bombay Rents, Hotel and Lodging Houses Rates Control,
1947 Act (1947 Act), which defines the expression 'tenant'. The
definition of the expression 'tenant' as contained in Section 5(11)(c)
of the 1947 Act and the definition of the same expression as
contained in Section 7(15)(d) of the Rent Act is same, insofar as the
material aspects are concerned. The Apex Court, in the context of
definition in Section 5(11)(c) of the 1947 Act, has held that from
plain reading of the statutory provision, 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
1 (1994) 3 SCC 481
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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.
7] The definition of the expression 'tenant' under section 7(15)
(d) of the Rent Act, can be conveniently divided into two parts in the
matter of determining the status of tenancy, when the original tenant
expires. The first part provides that the term 'tenant', in relation to
any premises, when the tenant dies, would include any member of
the tenant's family, where the tenanted premises were let out for
commercial purposes, was using the premises for such purpose with
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the original tenant at the time of his death. Second part of this
definition, which is separated from the first part with the
preposition 'or' as well as the expression 'in the absence of such
member' provides that the term 'tenant' will also include any heir of
the deceased tenant, as may be decided, in the absence of
agreement, by the Court. The definition, therefore, includes at least
two categories of persons. The first category includes member of the
deceased tenant's family, who was carrying on business in the
tenanted premises at the time of the original tenant's death. In the
absence of any member from the first category, the second category
would include any heir of the deceased tenant, as may be decided, in
the absence of agreement, by the Court.
8] The restrictive interpretation suggested by Mr. Tripathi finds
no support either in the text or in the authorities on the subject.
Such interpretation, if is accepted, would render latter part of the
definition which is separated from the former part with the
preposition 'or' and the expression 'in the absence of such member'
completely redundant or otiose. It is settled principle in law that no
word or expression employed by the legislature is to be regarded as
surplusage or redundant. Clearly therefore, the respondent stands
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included in the latter part of the definition of the term 'tenant' under
section 7(15)(d) of the Rent Act.
9] In case of Tarachand & Anr. vs. Ramprasad2, the Apex Court
has held that the contractual tenant has an estate or property in the
leasehold interest of tenancy and its heritability is an incidence of
tenancy. The tenant, who continues to remain in possession even
after the termination of the contractual tenancy till a decree of
eviction is made against him, continues to have an interest or estate
in the tenanted premises. Therefore, in the absence of any provision
in the Rent Act regulating the rights of the heirs of the tenant to
inherit the tenancy rights in the commercial premises after the
tenant's death, tenancy rights devolve upon the heirs under the
ordinary law of succession. From this, it is clear that, despite
termination of tenancy, tenancy rights are heritable and the heirs of
the tenant are entitled to the protection of the Act. Under the Rent
Act, as it applies to the present case, this principle has found
statutory recognition to the extent indicated in section 7(15)(d) of
the Rent Act.
2 (1990) 3 SCC 526
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10] Similarly, in the context of the definition of the term 'tenant'
under section 5(11)(c) of the 1947 Act, the Division Bench of this
Court in the case of Rajaram Brindavan Upadhyaya & Ors. vs.
Ramraj Raghunath Upadhyaya & Ors.3 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 4 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 unamended 1947 Act, the Division
Bench of this Court had recognised 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
3 1977 Mh. L. J. 792
4 1981 Mh. L. J. 876
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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.
11] In view of the aforesaid, it cannot be said that the impugned
judgment and decree made by the Appeal Court is either in excess of
jurisdiction or the same is vitiated by any illegality or material
irregularity. In this case, there is no serious dispute that the suit,
which has now been decreed, was instituted by the wife of the
original tenant and consequently a legal heir of the original tenant.
Assuming, therefore, that the wife was not using the suit premises
for commercial purposes, at the time of death of her husband, the
wife can always claim tenancy on the basis of heir-ship in view of
peculiar provisions contained in Section 7(15)(d) of the Rent Act.
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12] The Appeal Court has also taken the view that the applicants
herein, having instituted R.A. E. Suit No. 274/428 of 2013 seeking
the eviction of the respondent from the suit premises, is deemed to
have admitted position that the respondent is the tenant in respect
of the suit premises. There is no necessity to decide upon such issue
though, at least, prima-facie, the learned counsel for the applicants is
right in his submission that it was always open for the applicants to
institute such suit without prejudice to the applicants claim that
none of the legal heirs of the deceased tenant can claim tenancy to
the suit premises, as they were allegedly not using the suit premises
for commercial purposes with the original tenant at the time of his
death.
13] Accordingly, Civil Revision Application is dismissed. There
shall be no order as to costs.
(M. S. SONAK, J.)
dinesh
