As per case facts, the Petitioner trust challenged lower court orders that declared Ms. Katty J. Mistry a tenant of certain premises following the death of the original tenant, Baji ...
WP-3944-2000 (J) C2.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3944 OF 2000
1. Mr. Jamshed Nusserwanji Guzder )
2. Mr. Minoo Rustomji Shroff )
3. Mrs. Silloo Kaikhushroo Kavarana )
4. Mr. Dinshaw Rusi Mehta )
5. Mr. Dadi Bejonji Engineer )
6. Mr. Rustom Sheriar Tirandaz )
7. Mr. Dinshaw Tamboly )
all Trustees of the Pari )
Punchayet Funds and Properties, )
Bombay having its Office at 209, )
Dr.D.N.Road, Fort, Mumbai 400001.)
Parsi Punchayet Funds and Properties,)
Bombay having its Office at 209, )
Dr.D.N.Road, Fort, Mumbai 400 001. )
through its present Trustees )
1. Armaity Rustom Tirandaz )
Age 79 yrs )
2. Viraf Dinshaw Mehta )
Age 46 yrs )
3. Ervad Xerxes Vispi Dastur )
Age 53 yrs )
4. Anahita Yazdi Desai )
Age 58 yrs )
5. Hoshang J. B. Jal )
Age 65 yrs )
6. Maharukh Kobad Noble )
Age 65 yrs )
7. Adil Jiji Malia )
Age 65 ) …. Petitioners
Versus
Ms.Katty J. Mistry )
residing at Flat No.2, 1st floor, )
Building known as Patel Building, )
Husen 1
HUSENBASHA
RAHAMAN
NADAF
Digitally signed
by
HUSENBASHA
RAHAMAN
NADAF
Date:
2026.06.10
20:07:01 +0530
WP-3944-2000 (J) C2.doc
782 Mancherji Joshi Road, Parsi )
Colony, Dadar, Bombay 400 014. ) .... Respondent
***
Mr. Jamsheed Master a/w. Mr. Agnel Carneiro & Mr. Tushar Cooper
i/b Mulla & Mulla & CBC for Petitioners.
Mr. Tushar V. Dahibawkar i/b M/s Dahibawkar & Co. for the
Respondent.
***
CORAM : M.M. SATHAYE, J.
RESERVED ON : 27
th
JANUARY, 2026
PRONOUNCED ON : 10
th
JUNE, 2026
JUDGMENT :
1. The Petitioner is a trust duly represented by its Trustees. The
Petitioner is landlord in respect of the suit premises, which is Flat
No.2 situated on 1
st
Floor of building known as ‘Patel Building’ at 782
Mancherji Joshi Road, Parsi Colony, Dadar, Mumbai - 400 014. The
Respondent is claiming to be tenant is tenant.
2. This petition is filed under Articles 226 and 227 of the
Constitution of India challenging impugned judgment and order
dated 30.09.1999 passed in Appeal No. 407 of 1998 by the Appellate
Bench of the Small Causes Court at Mumbai, thereby dismissing the
appeal filed by the Petitioner, thereby confirming the judgment and
order dated 16.12.1997 passed by Small Causes Court at Mumbai in
R.A.N. No. 52/Misc. Of 1993 (‘the said Application’ for short),
thereby declaring the Respondent as tenant in respect of the suit
premises.
3. The Respondent filed the said Application under section 5(11)
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(c)(i) of Bombay Rents, Hotel and Lodging House Rates Control Act,
1947 (‘Bombay Rent Act’, for short) for being recognized as tenant of
the suit premises and for direction to transfer rent receipt in her
name. The case of the Respondent, in short, is as under.
3.1. That one Mr. Baji B. Patel is cousin of the Respondent who was
residing in the suit premises as tenant of the Petitioner. That rent
receipt stands in the name of said Baji. That said Baji expired on
23.04.1993. That the Respondent is Baji's mother's sister's daughter
(
mausi-ki-ladki) who was residing with said Baji and other family
members in the suit premises, during his lifetime up to his death.
That she has become entitled to be recognized as tenant in respect of
suit premises.
3.2. That after the death of said Baji, when she contacted the office
in charge of the Petitioner to accept rent from her, she was asked to
meet one Mr. Aibara, who gave application form to the Respondent
for signing, which was meant to be filled by ‘new allottee’ who
wanted to have accommodation in the Petitioner's building. However,
since the Respondent claimed to have become tenant on the death of
said Baji, she asked for proper application which was not entertained.
3.3. That the Respondent thereafter sought legal advice and filed
the said application for declaration that she is tenant in respect of
suit premises and for direction to Petitioner trust to transfer the rent
receipt in her name.
4. The Petitioner filed reply contending
inter alia as under.
4.1. That there is no privity of contract between the Petitioner and
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the Respondent. That the Respondent is neither tenant nor statutory
tenant in respect of suit premises.
4.2. That there are other legal heirs and representatives of deceased
Baji who are not joined as party and therefore the application must
be dismissed for non-joinder of necessary parties.
4.3. It is admitted that said Baji was tenant in respect of suit
premises, however, it is contended that he was residing alone and it is
denied that the Respondent is in any manner related to the deceased
tenant. It is also denied that Respondent was staying with said Baji at
the time of his death.
4.4. That on the death of said Baji the Petitioner's representative
visited the suit premises and locked it by putting a padlock. That
notice inviting claims from the heirs was pasted on the door. That this
was done with a view to safeguard the suit premises and also the
furniture and things lying inside suit premises. That after about one
and a half hour, when the Petitioner's representative once again
visited the suit premises, he found that the padlock on the door of the
premises was broken open and about four persons were found in the
premises. That on confronting said persons, no proper reply was
received. That therefore the matter was reported to the local police
station.
4.5. It is denied that there is any relationship between original
tenant Baji and the Respondent. It is further denied that the
Respondent was residing with deceased tenant Baji during his
lifetime or at the time of his death. It is contended that the
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Respondent is a rank trespasser who is trying to unlawfully usurp the
suit premises. It is denied that the Respondent has made any attempt
to pay rent in respect of suit premises. That the Court has no
jurisdiction to entertain the application.
4.6. On these and other grounds, the said Application was opposed.
5. The Respondent examined herself in support of the application.
The Petitioner-trust examined one Mr. Yezdi A. Pesuna in support of
its case. Documentary evidence was produced in support of rival
claims. The learned Judge of the Small Causes Court Mumbai who
heard and tried the said Application, by its judgment and order dated
16.12.1997, allowed the application declaring the Respondent as
tenant in respect of the suit premises and directed the Petitioner to
issue rent receipt in her name. The Petitioner filed said appeal
challenging the above order. The Appellate Bench of the Small Causes
Court, Mumbai, by impugned judgment and order dated 30.09.1999,
dismissed the said appeal, confirming order of the Trial Court.
However, the finding of Trial Court that ‘Respondent was staying with
said Baji in suit premises’ is set aside.
6. In these circumstances, the Petitioner has filed present petition.
The petition was admitted on 16.08.2000. During pendency of the
petition, the trustees of the Petitioner trust have changed and
accordingly, amendment is carried out.
SUBMISSIONS
7. Learned counsel Mr. Master submitted that the Respondent has
admitted that she has not produced any documents to establish her
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relationship with deceased tenant – said Baji. That she has further
admitted that after the death of said Baji, her brother and cousin
were called by Matunga Police Station for breaking of lock. That she
has further admitted that she has not produced any document in
support of occupation of Cooper family in the suit premises. Drawing
attention of the Court to a copy of ration card, it is submitted that
name of only said Baji appeared and name of the Respondent did not
appear in the ration card. Drawing attention of the Court to a
Municipal Election slip, it is pointed out that name of the Respondent
along with her family members is shown to be at the address of
ground floor of the said building and not the first floor where suit
premises is situated. Drawing attention of the Court to a letter dated
31.10.1991 written by said Baji (requesting transfer of rent receipt)
to the Joint Secretary of Petitioner Trust, it is contended that said Baji
had asserted that he is the only son and legal heir of earlier tenant
Mr. Byramji Burjorji Patel (his father) and had not mentioned the
Respondent as a family member. He further submitted that name of
the Respondent does not appear in the obituary note given on death
of deceased Baji's father. He further submitted that while giving
details of the family in the form, deceased Baji had only given his
own name and no other family member was mentioned. He further
submitted that in the voters list extract, the name of the Respondent
appears as a separate entry residing at ground floor and not first floor
where the suit premises are situated. He then submitted that in view
of the evidence indicated above, it could not have been held that the
Respondent was ‘heir’ of said Baji or that she was residing with said
Baji at the time of his death in the suit premises. He contended that
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the Respondent was only a neighbour of said Baji and not relative. He
submitted that without substantive declaratory relief, the party
cannot be declared as tenant and such issue cannot be gone into
under section 5(11)(c) of Bombay Rent Act. That a far-fetched
relationship has been accepted for holding that the Respondent is
heir of the deceased tenant - Baji. He relied on following judgments
in support of his case.
i. Kailasbhai Shukaram Tiwari Vs. Jostna Laxmidas Pujara and
Another (2006) 1 SCC 524.
ii. Jaysen Jayant Rele and others Vs. Shantaram Ganpat Gujar
and others 2002 SCC OnLine Bom 218.
iii. Mrs. Rati Cyrus Havewala & Anr. Vs. Minoo Shroff & Ors. Writ
Petition No.3663 of 2006 decided on 10.07.2006 (Bombay
High Court).
iv. Rajaram Brindavan Upadhyaya Vs. Ramraj Raghunath
Upadhyaya 1977 SCC OnLine Bom 73.
v. Pradeep Kumar Lalit Kumar Pandya Vs. Harisingh J. Kapadia,
(through Legal Heirs and Representatives) Ruxmani Harisingh
Kapadia and others 2024 SCC OnLine Bom 3766.
8. On the other hand, Mr. Dahibawkar, learned counsel appearing
for the Respondent supported the impudent judgment and order. He
submitted as under.
8.1. At the outset, he submitted that in the year 2000 itself, this
petition has become infructuous because the Petitioner Trust filed a
Rent Act Eviction suit (R.A.E Suit No.515 of 2000) against the
Respondent. He further submitted that if the Petitioner treated the
Respondent as ‘a trespasser’, there was no reason to file Rent Act
eviction suit, treating her as tenant. He submitted that said suit has
been recently dismissed on 06.12.2025. He submitted that the
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Petitioner trust had sought possession from the Respondent on the
grounds provided under Bombay Rent Act and this itself shows that
the Petitioner treated the Respondent as tenant.
8.2. Mr. Dahibawkar, inviting attention of the Court to paragraph
No. 4 of the said Application, contended that the Respondent has
come with a clear case that she is claiming her right both as ‘a
member of family of deceased tenant Baji’ and also as ‘his heir under
provisions of the Indian Succession Act applicable to Parsis’. He
therefore submitted that the case cannot be restricted to the first part
of section 5(11)(c) of the Bombay Rent Act and second part must
also be considered and applied.
8.3. That though the application is filed under Section 5(11)(c)(i)
of the Bombay Rent Act, it is a proceeding with substantive prayer
about declaration of tenancy and it has been contested with full
force, even by Petitioner. He submitted that the Respondent is
deceased Baji's mother's sister’s daughter (
mausi-ki-ladki) and as
such, they are first cousins and closely related. That there is no cross-
examination about the relationship asserted by the Respondent. That
there is also no evidence brought on record by the Petitioner that
anybody else or any other family member or heir was staying with
deceased Baji at the time of his death. He submitted that there is no
dispute amongst the heirs as nobody has come forward claiming
heirship of deceased Baji and therefore the Courts below have
accepted the Respondent as an heir of deceased Baji and therefore
rightly allowed the application.
8.4. He submitted that the Petitioner in its reply has admitted that a
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notice inviting claims from heirs was pasted. However, nobody has
come forward and therefore there is no dispute between other heirs.
He submitted that the pedigree/genealogy is produced on record by
the Respondent, duly supported by her evidence which is unshaken in
the cross examination. He submitted that even if the Court has held
that the Respondent was not staying with deceased Baji, since
heirship is held as proved under concurrent finding, the impugned
order requires no interference.
9. In answer, Mr. Master submitted that that suit itself is filed
subject to outcome of this writ petition and therefore this writ
petition has not become infructuous by mere filing of a Rent Act
eviction suit. He submitted that the test is whether the suit premises
was the Respondent's home and she was residing therein as such with
said Baji.
REASONS AND CONCLUSION
10. Having carefully considered the rival submissions of the parties
and after going through the record, in my considered view, this is not
a fit case to interfere in the writ jurisdiction for the reasons given
below.
11. At the outset, let us see the case made out by the Respondent.
Perusal of the said Application clearly shows that in paragraph no. 4
and 8, she has clearly pleaded that she is entitled to be recognised as
a tenant under section 5(11)(c)(i) of Bombay Rent Act as a member
of the family of said Baji and also as his heir under provisions of
Indian Succession Act applicable to Parsis. It is therefore clear that
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the case under consideration is both under first part of section 5(11)
(c)(i) and the second part.
12. It must be noted that the Appellate Court, while passing the
impugned order, has clarified that the Respondent has failed to prove
that she was staying/residing in the suit premises as ‘family member’
of deceased Baji. This observation in the imputed order is not
challenged by the Respondent and therefore it stands accepted.
13. However, both the Courts below have held that the Respondent
has proved that she is a heir of deceased tenant Baji being first
cousin, in as much as, mother of deceased tenant Baji (Ms. Najoo
Byramji Patel) and mother of the Respondent (Ms. Frenny Jalejar
Patel) were real sisters (being daughters of Munchersha Jeevanji
Patel). It is important to note that there is no cross examination of
the Respondent about this relationship asserted along with the
genealogy. The Petitioner in their affidavit-in-reply though contended
that there are other heirs and legal representatives of deceased
tenant Baji, Petitioner has failed to establish that any other person
was the heir or legal representative of deceased tenant.
14. The Respondent has produced on record three Unit Trust
Certificates dated 31.07.1988, 17.07.1992 and 11.03.1992 showing
that the name of the Respondent appeared as a joint-holder with the
deceased tenant Baji. The Respondent has not been cross-examined
on this aspect. Said Baji expired on 23.04.1993 and as such these
investments reflected in the certificates from July 1988 till March
1992 cannot be said to have been prepared only for the purpose of
establishing Respondent’s claim on the suit premises. The Courts
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below have concurrently held that the Respondent is a relative/heir
of the deceased tenant Baji. In this respect, the Appellate Court has
even considered section 50 and 55 of the Indian Succession Act, 1925
with Schedule – II, (Part II)- clause 4 thereof and has held that
Respondent is covered as a legal heir of said Baji.
15. The Courts below have also considered the ration card,
obituary note, application by said Baji for transfer of tenancy, voters
list, election slip. The aspect of ration card or voter list or election slip
has bearing on the residence of the Respondent with the deceased
tenant Baji. The Appeal Court has already held/clarified that she has
not proved that she was staying with the deceased tenant Baji.
Therefore, those documents need not be considered further.
16. So far as said Baji's application dated 31.10.1991 to Petitioner
is concerned, assuming that it is written by said Baji, the same only
indicates that he asserted that he is the only son and legal heir of his
father - deceased Byramji. This has nothing to do with the
relationship of the Respondent with deceased Baji. The Respondent is
not claiming that she is legal heir of deceased Byramji. Though Baji
can be only son and legal heir of his father – Byramji, in the absence
of any other legal heir brought on record of deceased Baji himself,
the relationship and claim as made by the Respondent that she is first
cousin seems to be rightly accepted by the Courts below. There is no
perversity in the said finding.
17. The form filled by said Baji apparently is a list/details of
persons staying with tenant as family members. Admittedly in this
form only Baji’s name is given. The Appellate Court has already held
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that the Respondent was not staying with the deceased tenant Baji.
Therefore, this document need not be considered any further.
18. At this stage, it will be apposite to reproduce the said section
below :
“5. Definitions -
xxxx.
11. “tenant” means and includes any person by whom or on whose
account rent is payable for any premises and includes-
xxxx
(c)(i) in relation to any premises let for residence, when 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, 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;”
(emphasis supplied)
19. It is therefore clear that section 5(11)(c)(i) of the Bombay Rent
Act has two parts. First part deals with family member residing with
tenant at the time of tenant’s death. But the second part applies in
the absence of such member and in that case, ‘any heir of deceased
tenant’ can be decided by the Court as tenant. The ‘or’ separating the
second part of 5(11)(c)(i) will have to be read as disjunctive, thereby
separating ‘any heir of deceased tenant’ from earlier ‘family member
residing with tenant at the time of tenant’s death’. The legislature has
not qualified the ‘any heir of deceased tenant’ with any condition of
‘residing with tenant at the time of tenant’s death’. Therefore in
absence of family member of tenant residing with tenant at the time
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of tenant’s death, any heir of tenant is not required to be residing
with tenant at the time of tenant’s death, to be included in tenant’s
definition.
20. In the present case, nobody is found to have been residing with
deceased tenant at the time of his death. Therefore, second part of
5(11)(c)(i) will apply. Nobody except the Respondent has claimed to
be the heir of deceased's tenant Baji. The only person is the
Respondent who has explained genealogy and led oral evidence
about her relationship as his first cousin. Therefore, in absence of any
other heir coming forward or found out by the Petitioner landlord,
Respondent has been held as tenant by the Court.
21. The argument that since the Respondent's name is not
appearing in the obituary note given in the newspaper on the death
of deceased Baji's father and therefore she is not relative or family
member, is a weak and far-fetched argument having no merit. An
obituary note can be given in the newspaper after death of a person
by any of his relatives and mere non-inclusion of name in the
obituary note will not take away a person's relationship.
22. Now let us consider various judgments relied upon by the
learned counsel for the Petitioner.
23. In Kailasbhai Shukaram Tiwari (supra), the person claiming
tenancy was a cousin of the tenant residing with the tenant in the suit
premises. From paragraph 11 of the said judgment, it is clear that it
was not disputed that said cousin was residing in the suit premises.
The question under consideration was ‘whether a cousin can be
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considered as a family member’. Therefore, the facts of the present
case are clearly distinguishable, in as much as, in the present case,
the case is based on both being family member residing with the
tenant as also based on heirship under Indian Succession Act. In
Kailasbhai (supra), a case based on heirship was not under
consideration and therefore, said judgment will not help the
Petitioner.
24. In Jaysen Jayant Rele (supra), the facts were totally different.
The person claiming tenancy was a domestic servant of the original
tenant, staying with tenant, who claimed that the relationship was
almost like a son. In such peculiar facts, this Court held that the
Bombay Rent Act cannot be construed so widely to give protection to
strangers or outsiders who have absolutely no blood relation with the
tenant or his family. In the present case, both the Courts have held
that the relationship of Respondent is proved and therefore claim
under heirship can be considered. Therefore, this judgment will also
not help petitioners.
25. In Rajaram Brindavan Upadhyaya (supra), the Court was
considering a claim by nephew of the tenant who was admittedly
staying in the suit premises. In that case, the dispute was between
sons of original tenant and a nephew of original tenant. The question
under consideration was whether provisions of section 5(11)(c)of
Bombay Rent Act can supersede the right of inheritance to tenancy
vested in the heir on the death of tenant. After considering various
provisions of Bombay Rent Act, including section 29 thereof, it was
held in concluding paragraph No. 36 that the provisions of section
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5(11)(c) of Bombay impact are not meant to supersede the right of
inheritance to tenancy vesting in the heir, on the death of tenant
under the personal law. This judgment actually supports the
Respondent as claiming she is also claiming to be heir of tenant Baji
under Indian Succession Act. In the present case, it is concurrently
held that the relationship is proved and the right of Respondent is
recognised as nearest relative by Trial Court and as an heir of tenant
Baji by the Appellate Court. For this reason, the judgment of Rajaram
Upadhyaya (Supra) supports the Respondent
26. Lastly, in Pradeep Kumar Lalit Kumar Pandya (supra), tenancy
was claimed under section 7(15)(d) of the Maharashtra Rent Control
Act, 1999 (‘MRC Act’ for short), which is
pari materia with section
5(11)(d) of the Bombay Rent Act. He was son of sister-in-law of the
tenant, which is similar to the present case. In the facts of that case,
admittedly, the consideration was whether a person can be said to be
family member of the tenant. In paragraph 19 of the judgment it is
clearly recorded that ‘plaintiff never claimed tenancy on the basis of
heirship and the claim was made solely as being family member,
residing with the tenant at the time of death’. In that view of the
matter, the issue under consideration in this case, is different being
claim under 5(11)(c) based on heirship. Therefore, the said judgment
would also not help the Petitioner.
27. Learned counsel for the Respondent has placed on record the
judgment dated 06.12.2025 passed by learned Judge of the Small
Causes Court, Mumbai in R.A.E. Suit No. 515 of 2000 which was filed
by the Petitioner trust seeking eviction of the Respondent under the
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grounds of Bombay Rent Act including non-user,
bona fide
requirement, breach of terms of tenancy and unlawful subletting.
Perusal of paragraph 7 of the plaint in R.A.E. Suit No. 515 of 2000
shows that it is filed subject to final outcome of this petition.
Therefore, the present petition cannot be considered to have become
infructuous. The learned Judge of the Small Causes Court has
dismissed the eviction suit on merits. However, that is an
independent subject matter to be decided on its own merits.
Therefore, I am not commenting anything about the merits of the
said eviction suit R.A.E. Suit No. 515 of 2000 which shall take its own
course in accordance with law. Rival contentions of both sides in that
regard are kept open.
28. In the aforesaid facts and circumstances and for reasons
indicated above, the findings of the Trial Court as well as Appellate
Court do not suffer from any perversity. The view taken is the most
probable view and conclusion drawn by the Courts below is based on
material available on record. As such, there is no reason to interfere
in the limited jurisdiction of this Court.
29.
The writ petition is accordingly dismissed. Rule is discharged.
No order as to costs.
30. All concerned to act on duly authenticated or digitally signed
copy of this order.
(M.M. SATHAYE, J.)
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