LPA 143-02.DOC

Prajakta Vartak

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

LETTERS PATENT APPEAL NO. 143 OF 2002

1. Shantaram Ganpat Gujar )

And

2. Mrs. Kirti Shantaram Gujar )

Both of Mumbai, Indian Inhabitants, )

Both residing at Shanker Bhavan, Flat No.5, )

French Bridge, Mumbai – 400 007. )...Appellants/

Respondents

(Org. Defendants)

Vs.

1. Mrs. Sarla Jaysen Rele, )

2. Dilip Jaysen Rele, )

3. Ulhas Jaysen Rele, )

4. Mrs. Latika Anil Hatkar, )

5. Mrs. Pratima Ratnadeep Karnik, )

All Nos. 1 to 5 of Mumbai, Indian Inhabitants, )

residing at Shanker Bhavan, French Bridge, )

Mumbai – 400 007. )...Respondent Nos.1 to

5/ heirs of deceased org.

Appellant/Plaintiff No.1

6. Mrs. Nirmala Bhalchandra Rele, )

7. Ashok Bhalchandra Rele, )

since deceased legal heirs respondent nos.15 & 16 )

8. Jagdish Bhalchandra Rele, )

9. Mrs. Minal Ashok Kale, )

10. Mrs. Tejoshini Prakash Malwankar, )

All Nos. 6 to 10 of Mumbai, Indian Inhabitants, )

residing at Shanker Bhavan, 34 floor, )

French Bridge, Mumbai – 400 007. )...Respondent Nos.6 to

10/heirs of deceased org.

Appellant/Plaintiff No.2

11. Prashant Raghunandan Rele, )

And )

12. Mrs. Anjali Raghunandan Rele, )

Both of Mumbai, Indian Inhabitants, )

Page 1 of 36

PRAJAKTA

SAGAR

VARTAK

Digitally

signed by

PRAJAKTA

SAGAR

VARTAK

Date:

2026.04.20

22:04:06

+0530

LPA 143-02.DOC

residing at Shanker Bhavan, French Bridge, )

Mumbai – 400 007. ) ..Respondent Nos.11

and 12/heirs of deceased

org.Appellant/Plaintiff No.3

13. Mrs. Sheela Chandrakumar Rele, )

And

14. Shankar Chandrakumar Rele, )

Both of Mumbai, Indian Inhabitants, )

residing at Shanker Bhavan, French Bridge, )

Mumbai – 400 007. )

15. Mr. Amit Ashok Rele, )

Shankar Bhavan French Bridge, Mumbai-400 007 )

16. Devika Ashok Rele, )

Shankar Bhavan French Bridge, Mumbai-400 007 )..Respondent Nos.13

and 14/Org. Appellant Nos.

4 & 5/Plaintiff Nos.4&5.

_________

Mr. Brijesh Upadhyay i/b. Mr. Jash B. Vyas for the Appellants.

Mr. Sanjeev Gorwadkar, Senior Advocate, with Ms. Swati Sagvekar for the

Respondents.

__________

CORAM:G. S. KULKARNI &

AARTI SATHE, JJ.

RESERVED ON:23 MARCH 2026.

PRONOUNCED ON :20 APRIL 2026.

Judgment (Per G. S. Kulkarni, J.):-

1.This Letters Patent Appeal is directed against the judgment and order

dated 04 March 2002 rendered by the learned Single Judge on First Appeal

No. 490 of 1996. By the impugned judgment, the appeal filed by the

respondents stands allowed, thereby setting aside the judgment and the

order passed by the learned Judge, Bombay City Civil Court, decreeing Suit

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No. 5393 of 1985 filed by the respondents, inter alia holding that the

appellant is a trespasser and liable to eviction from the suit flat.

2.At the outset, we may observe that the issue involved in the appeal is

whether the appellants, in law were entitled to assert rights of tenancy

sought to be derived by them from the original tenant, one Shri. P. S.

Athwankar in respect of the premises being Flat No.5 situated at 1

st

Floor,

Shankar Bhavan, French Bridge, Mumbai – 400 007 (for short, “the suit

flat”).

3.The respondents/owners are in Court for more than four decades i.e.

about 41 years asserting that the appellants are the trespassers qua the suit

flat having no legal rights to continue to occupy the suit flat, merely

because they had good relations with the original tenant Shri. P. S.

Athwankar (hereinafter referred to as “the tenant”) or merely as the

appellant was residing along with the original tenant, asserted by the

respondents in the capacity as a domestic servant.

4.Briefly the facts are:- The respondents/plaintiffs (for short, described

as “the owners”) filed the Civil Suit in question before the City Civil Court

at Bombay praying for a mandatory injunction against the appellants

(original defendants) to remove themselves from the suit flat and for an

order and decree to deliver peaceful, and vacant possession of the suit flat to

the owners. Four substantive reliefs were prayed for in the suit in question

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which are required to be noted which read thus:-

“(a) That the Defendants may be ordered by a mandatory

injunction of this Hon'ble Court to remove themselves from Flat

No. 5 on the 1st Floor of Shankar Bhavan situated at French

Bridge, Bombay 400007, forthwith;

(b) That the Defendants may be ordered and decreed to deliver

to the Plaintiffs peaceful, quit and vacant possession of the said flat

forthwith;

(c) That the Defendants may be ordered and decreed to pay to

the Plaintiffs a sum of Rs. 600/- by way of damage or

compensation with interest thereon at the rate of 24 per cent

annum from the date of filling of this suit till payment;

(d) That the Defendants may be ordered or decreed to pay to

the Plaintiffs future damaged or compensation or mesne profits for

the wrongful and illegal use and occupation of the said flat at the

rate of Rs. 50/- per day or at such other rate as this Hon'ble Court

may deem fit from the date of filling of this suit till vacant

possession of the said flat is decreed to the Plaintiffs.”

5.In supporting the aforesaid prayers, the case of the owners was to the

effect that one Shri. P. S. Athwankar was the monthly tenant in respect of

the suit premises for rent of Rs. 112.80 per month fixed prior to the month

of November, 1965. The owners contended that the tenancy was

terminated by the advocate’s letter dated 25 November 1965 addressed to

the appellant. However, the appellants continued to wrongfully and

illegally occupy the suit flat even after the termination of the tenancy. In

August 1982, wife of the tenant/P.S. Athwankar expired and thereafter he

was residing alone in the suit flat. Appellant no.1-Shantaram Ganpat Gujar

was brought to the suit premises being employed as a domestic servant

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along with his family i.e. appellant no.2-Mrs. Kirti Gujar, and they were

permitted to stay in the suit flat in the capacity as domestic servants. It was

the owners’ case that without prejudice to the termination of the said

tenancy of the tenant, another notice dated 12 August 1985 was addressed

by the owner to the tenant/P.S. Athwankar, calling upon him to vacate the

suit flat and hand over vacant possession thereof to the owners. Such letter

of the owners was replied by the letter of the tenant's/P.S. Athwankar’s

advocate

inter alia recording that appellant nos.1 and 2 were looking after

him and his wife (although expired in August 1982) and that appellant

nos.1 and 2 were members of his family. This letter was responded by the

letter of the owners’ advocate dated 31 August 1985 that appellant nos.1

and 2 were not related in any manner to the tenant. The owners further

denied that appellant nos.1 and 2 were the members of the family of the

tenant or that appellant nos.1 and 2 were residing in the suit flat as alleged

members of the family of the tenant-Athwankar. The owners stated that

appellant nos. 1 and/or 2 were trespassers upon the suit flat. The owners

accordingly called upon the tenant as also appellants to remove themselves

from the suit flat and hand over possession thereof to the landlords.

6.It so transpired that on 23 August 1985, the tenant (Shri. P. S.

Athwankar) expired. It was the owners’ case, as set out in the plaint of the

civil suit in question, that upon the death of the tenant/P.S. Athwankar,

Page 5 of 36

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appellant nos.1 and 2 became liable to remove themselves from the suit flat

forthwith, as they had no authority to use or to continue to occupy the suit

flat in the absence of any independent legal right or any right which could

be recognized in law, as appellant nos.1 and 2 were trespassers on the suit

flat. The relevant averments in the plaint are required to be noted which

read thus:-

“6 The Plaintiffs say that said Athwankar died in Bombay on

or about 23rd August, 1985. The Plaintiffs say that upon the death

of the said Athwankar, the Defendants become liable to remove

themselves from the said flat forthwith thereafter. The Plaintiffs say

that the Defendants have wrongfully and illegally continued to

remain in occupation of the said Flat. The Plaintiffs deny that the

Defendants or any of them have any legal right or authority to use

or to continue to remain in occupation of the said Flat on any part

thereof from and after the date of the death of the said Athwankar.

The Plaintiffs submit that the Defendants have become trespassers

upon the said flat. The Plaintiffs therefore submit that the

Defendants should be ordered by a Mandatory Injunction of this

Hon'ble Court to remove themselves, their servants and agents and

all their belongings, articles and things from the said flat forthwith.”

7.The suit was resisted by the appellants by filing a written statement in

which quite peculiarly a defence was taken that the suit was filed by the

owners to deprive appellant nos.1 and 2 of their tenancy rights in the suit

flat and hence, there was no cause of action to maintain the civil suit.

Without prejudice to such primary contention of asserting tenancy rights, it

was next contended that the Court had no jurisdiction to entertain and try

the suit, as the appellants were the protected licencees in respect of the suit

flat, hence the Small Causes Court would have jurisdiction to try and

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entertain the suit. Hence, the suit needs to be transferred to the proper

Court for adjudication. The next defence of the appellants was quite vague

when the appellants without prejudice to the first two pleas, contended that

appellant no.1 had been in occupation of the suit flat since the year 1948, it

was hence contended that he had derived right in respect of the suit flat and,

therefore, was deemed to be a tenant and accordingly, entitled to protection

under the provisions of the Bombay Rents, Hotel and Lodging House Rates

Control Act, 1947 (for short, “Rent Act”). Such were the basic pleas taken in the

written statement.

8.In support of the said plea that appellant no.1was residing in the suit flat

since 1948, it was stated that he began residing in the suit flat in 1948 when he

was 7 years old and, by the date of filing of the suit, his occupation of the suit flat

had extended over a period of 37 years. Appellant no.1 also contended that he

and his two brothers were brought up by the tenant (Mr. Athwankar) and after

the marriage of plaintiff no.1, his two brothers Kashinath and Madhav took up

residence elsewhere and appellant no.1 continued to reside in the suit flat. He

contended that the tenant and his wife had always treated, cared and brought up

appellant no.1 as his own son since they did not have any issue of their own.

Thus, the following statements as made in the written statement are quite

significant:-

“

Since 1948 the Defendant no. 1 looked after and took care of Mr. and Mrs.

Athavankar as his own father and mother. The Defendants used to run the

household and they took over the entire responsibility, both materially and

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emotionally including all the medical expenses in maintaining and treating the

said deceased Mr. Athavankar. The Defendant also regularly paid the monthly

rent in respect of the suit premises. The Defendant shared the weals and woes of

Athavankar since they were always a member of one family who lived and

messed with one another as members of one household. The Defendant states

that the bond that existed between them was greater and stronger that that of

consanguinity and as a result the Defendant No. 1was brought up by Mr.

Athavankar as his own son, so much so, that Mr. Athavankar had complete

borned and met the entire marriage expenses of the Defendant. The Defendant

therefore says, that he is one of the heirs and member of the family residing with

the late Mr. Athavankar at the time of his death and he is therefore entitled to

continue to stay in the premises and is further entitled to the tenancy at the suit

premises.

Without prejudice to the above and in the alternative the

Defendant No. 1 state and submit that he had been residing in the suit premises

since 1948 and since Mr. Athavankar was seriously bed ridden the Defendant

No. 1 had been regularly paying the monthly rent or compensation in respect of

the Suit Premises to the said Mr. Athavankar as licensee thereof. Hence the

Defendant No. 1 state and submit that in view of his occupation of the suit

premises since the year 1948 to this date as licensee thereof he is deemed to be

the tenant of the suit premises under the provisions of the Rent Act.

Without prejudice to the above and in the alternative this

Defendant submit that in view off his residence and occupation of the suit

premises since the year 1948 he has derived the necessary title to the suit

premises and hence he is deemed to be a tenant of the suit premises and entitled

to the protection under the provisions of Bombay Rent Act

.”

9.Quite peculiarly, qua the record of the suit it is clear that the appellants

(defendants) being trespassers was pleaded by the respondent in the plaint, and

when a clear defence was taken by the appellants that they have become tenant or

protected tenant. In such context, Section 28 of the Rent Act being a provision

in relation to the jurisdiction of the Court in the present case could have been

applied, which provides that in Greater Bombay, the Court of Small Causes,

Bombay, shall have jurisdiction to entertain and try any suit or proceedings

between the landlord and the tenant in relation to the recovery of rent or

possession of any premises. Nonetheless the Civil Court proceeded to adjudicate

Page 8 of 36

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the suit on several issues to which we would advert to hereafter. However, before

the issues as framed are stated, it would be imperative to note the provisions of

Section 28, being a provision touching the jurisdiction of the Civil Court in

adjudicating the suit in question. Section 28 of the Rent Act reads thus:

“28. Jurisdiction of Courts. (1)] Notwithstanding anything contained in any law

and notwithstanding that by reason of the amount of the claim or for any other

reason, the suit of proceeding would not, but for this provision, be within its

jurisdiction.-

(a) in Greater Bombay, the Court of Small Causes, Bombay, (as) in any area for

which, a Court of Small Causes is established under the Provincial Small Cause

Courts Act, 1887, such Court and]

(b) elsewhere, the Court of the Civil Judge (Junior Division) having jurisdiction

in the area in which the premises are situate or, if there is no such Civil Judge,

the Court of the Civil Judge (Senior Division) having ordinary jurisdiction, shall

have jurisdiction to entertain and try any suit or proceeding between a land-lord

and a tenant relating to the recovery of rent or possession of any premises to

which any of the provisions of this Part apply for between a licensor and a

licensee relating to the recovery of the licence fee or charge] and to decide any

application made under this Act and to deal with any claim or question arising

out of this Act or any of its provisions and [subject to the provisions of sub-

section (2),] no other court shall have jurisdiction to entertain any such suit,

proceeding or application or to deal with such claim or question.

(2) (a) Notwithstanding anything contained in clause (aa) of sub-section (1), the

District Court may at any stage withdraw any such suit, proceeding or

application pending in a Court of Small Causes established for any area under

the Provincial Small Cause Courts Act, 1887, and transfer the same for trial or

disposal to the DX Court of the Civil Judge (Senior Division) having ordinary

jurisdiction in such (8) Where any suit, proceeding or application has been

withdrawn under clause (a), the Court of the Civil Judge (Senior Division)

which thereafter tries such suit, proceeding or application, as the case may be,

may either re-try it to proceed from the stage at which it was withdrawn.

(c) The Court of the Civil Judge trying any suit, proceeding or application with-

drawn under clause (a) from the Court of Small Causes, shall, for purposes of

such suit, proceeding or application, as the case may be, deemed to be the Court

of Small Causes.]

Explanation. In this section "proceeding" does not include an execution

proceeding arising out of a decree passed before the coming into operation of

this Act.”

10.Having noted the provisions of Section 28, the issues as framed by the

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learned Trial Judge are required to be noted which read thus:

“(1) Whether Hon'ble Court this has jurisdiction to entertain the suit as alleged ?

(2) Whether the suit is properly valued ?

(3) Whether the 1st Defendant was employed as a domestic servant by the said

M . Athavankar, as alleged in paragraph 4 of the Plaint ?г

(4) Whether the Plaintiffs prove that the Defendants are tresspassers and have

got no right, title or interest in the suit premises?

(5) Whether the 1" Defendant is an heir or a member of the family of

Athavankar as alleged in paras Nos. 3 and 4 of the Written Statement?

(6) Whether the 1 Defendant is a tenant or protected licencee of the suit

premises under provisions of the Bombau Rent Act, as alleged in paragraphs

Nos. 4 and 5 of the Written Statement?

(7) Whether the said Athavankar left a will dated 2nd October, 1982, as alleged

in para 7 of the written Statement?

(8) Whether the said Mr. Athavankar bequeathed the right of tenancy in respect

of the suit premises to the 1 Defendant as alleged in paragraph 7 of the Written

Statement?

(9) Whether the Plaintiffs are entitled to any future damages, compensation or

mesne profits and if so, what amount?

(10) Whether the Plaintiffs are entitled to any reliefs, and if so, what reliefs?”

11.The learned Trial Judge having conducted a full fledge trial of the suit on

the aforesaid issues, and most importantly, on the issues on tenancy, in regard to

which it would be difficult to accept that the Civil Court had jurisdiction to

adjudicate the dispute, as such jurisdiction to decide any dispute of the nature,

considering the contention as urged on behalf of the appellant/defendant would

fall within the jurisdiction of the Small Causes Court. The learned trial judge

dismissed the suit by judgment and order dated 09 January 1996.

12.The respondent being aggrieved by the judgment and order passed by the

learned Trial Judge filed a first appeal under Section 96 of the Code of Civil

Page 10 of 36

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Procedure before this Court, which has been allowed by the learned Single Judge,

by the impugned judgment and order dated 4 March 2002. The first appeal filed

by the owners/respondents has been decreed in terms of prayer clause (c) and (d).

The operative portion of the order is required to be noted which reads thus:

“23. I therefore quash and set aside the impugned judgment and order of the

city civil court and decree the suit in terms of prayer clauses (a) and (b) I am

however in the given circumstances not inclined to grant any other relief prayed

for by the plaintiffs in terms of prayer clauses (c) and (d). If the defendants

would vacate the suit premises and deliver to the plaintiffs peaceful, quiet and

vacant possession of the suit flat on or before 51.5.2002, if they do not comply

with this order in that case the suit would also stand decree in terms of prayer

clauses (c) and (d) also The Appeal is allowed with no order as to costs. Certified

copy is expedited.”

13.In passing the aforesaid order, the learned Single Judge did not accept the

plea of the appellant/defendant that they being the members of the tenant’s

family, they would be entitled to benefit under the provisions of Section 5(11)(c)

of the Rent Act, which defines the word ‘tenant’

inter alia qua the position of the

members of the family who would be entitled, after the tenants dies. The

provision ordains that any member of the tenant’s family residing with the tenant

at the time of his death and in the absence of such member, any heir of the

deceased tenant, as may be decided in default of agreement by the Court, would

be recognized as a tenant. The relevant observations as made by the learned

Single Judge in such context are required to be noted which read thus:

13. It is very pertinent to note that inspite of the catena of judgments

interpreting and constructing the words "member of a family of the tenant and a

family", the legislature has not budged from its position and has not moved to

amend section 5(11) (c) of the Act to reflect the précis of the judicial

pronouncements in the Act in any manner. The Section 5(11) (c) has remained

as it is though the Act has undergone surgery by way of amendments on a

number of occasions at the hands of the Legislature to meet off-arising

problematic situations. It is far more pertinent to note that even in the present

Maharashtra Rent Act which has replaced the earlier Bombay Rents Act the

Page 11 of 36

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Legislature has not taken cognizance of the Interpretation of the words in

Section 5(11) (c) and the Legislature has not taken cognizance of the

interpretation of the words in Section 5 (11) (c) and the Legislature has not

enlarged the words "family and the member of a family ". It would have been

very easy for the Legislature to have removed all the doubts and difficulties

which have created innumerable disputes giving rise to innumerable

judgments_by replacing the words "any member of the tenant's family" by "any

Person……. residing with the tenant at the time of his death." The Legislature

has not enlarged the term used in the original sub-section 5(11) (c) i.e. "any

member of the tenant's family". The Legislature could have deleted the aforesaid

words and could have put only does not intend to give a wider meaning to the

concept of family to include even a stranger as a one word "Person" in place of

"member of the tenant's family" to resolve all the so called construction and

interpretation difficulties. The intention of the Legislature therefore is absolutely

clear to retain the present construction in the sub-section 5(11) (c) in the form in

existence i.e. "any member of the tenant's family". It did not and it member of

the family. The Legislature did not and does not intend to depart from the

ordinary meaning of the word "family" as understood in common parlance. We

understand a family as consisting of father, mother, sons, daughters, sisters and

all such blood relations and other relations arising from lawful marriages in the

family. We don't include in the concept of family any one who is not related by

blood and that is the whole purpose and intention of the Legislature not to

remove the word "family" from the said provisions. If it wanted to enlarge the

meaning of the family it would have expressly said so. The Legislature wants to

protect only the members of the family, who are bound by the blood relations

and never any stranger howsoever near he or she might be and how so ever near

he or she might be and howsoever thick the love and affection bonds might

exists. In my opinion the Legislature has not given any importance to such

emotional and sentimental ideas in the Rent control Act, which regulates

relationship between the landlord and the tenants and their families and not to

create any rights 8 in favour of strangers who have no blood relations with the

tenant or his family. The Legislature never intended to wide open the umbrella

relationship. A tenant cannot be heard to say that the person residing with him is

like his father or like only those who were readly blood relations of the tenant.

The Legislature has not allowed any provision in respect of the relationship. The

present protection is to the tenant and his family members with whom he has

blood relations. The Legislature has been reasonable and moderate to grant

protection to the tenant and extend the protection to the members of the family

in the ordinary parlance as commonly understood in the society. The Legislature

is fully conscious of the fact that it cannot fly at tangent to give protection at the

cost of the landlord and the valuable property rights of the owners of the

tenanted premises at the cost of the landlord and the valuable property rights of

the owners of the premises. The landlord rents out his the owners of the

premises. The landlord rents out his premises to a tenant on certain terms and

conditions which the tenant must observe and if such terms and conditions are

observed by the tenant the landlord cannot evict him at his sweet will and in

contravention of the provisions of the Rent Act. The Act protects the tenants at

the same time controls the property rights of the landlords by imposing

reasonable restrictions on them within the four corners of the Act. The rights of

the landlords are not given a complete go by and are not extinguished altogether.

If the Legislature intended that a tenant and all those who claim through him

should be granted protection from eviction at any cost that would result in total

extinguishment of the rights of the landlords and that would mean that the

landlord has to write - off his property forever, as the tenants and all such

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strangers who would claim to be the members of their families talking love and

affection would have grabbed the property forever and the same would be

bequeathed for such love and affection at the cost of the landlord.

14. The Legislature has not given up the concept of protection to the family is

permanent and basic structure in the scheme of protection of tenant. There is no

departure from the scheme though there are hundreds of the judgments under

this Act construing the provisions of Section 5(11) (c). The Legislature has not

budged even by changing a coma. It could have very well incorporated the

judicial liberal pronouncements in the newly enacted Rent Act. The Legislature

wants to maintain the legitimate balance and equilibrium between the rights if

the landlord and the protection to be given to the lawful tenants tenants within

the frame work of the Act.”

14.It is on the aforesaid backdrop, we have heard learned counsel for the

parties.

15.Learned counsel for appellant has made submissions assailing the

impugned judgment and order, that the same deserves to be quashed and set

aside, primarily for the reason that the appellant was required to be held to be a

‘tenant’ within the meaning of Section 5(11)(c) of the Rent Act. It is submitted

that in the present case, admittedly, P.S. Athwankar was the tenant, and the

appellants were staying with the tenant since the age of seven years i.e., since the

year 1948, and therefore, necessarily when P.S. Athwankar/tenant passed away on

23 August 1985, appellant No.1 was residing with the tenant, and was considered

to be a member of the tenants family at the time of his death, he was therefore

entitled to the protection of the Rent Act, and hence could not be held to be a

trespasser.

16.It is next submitted that as appellant No.1 was like a son of the tenant –

P.S. Athwankar, and therefore, even otherwise the appellant's case fell within the

definition of tenant as defined under Section 5(11)(c) of the Rent Act, as the said

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provision includes heir of the deceased tenants. Also by virtue of the will of the

tenant, the appellant had become the legal heir.

17.It is submitted that only blood relations cannot be regarded to be the heirs

and/or it is not a

sine qua non that blood relation can only be the heirs. It is

submitted that there was substantial evidence as recorded by the trial Court, that

the appellants were residing with the tenant and who had conferred all love and

affection on him, and for such reason, also a Will was executed (although not

probated) as the law would mandate under which appellant No.1 would be

required to be recognized as a tenant.

18.On the other hand, Mr. Gorwadkar, learned senior counsel for the

respondent has opposed this appeal by making the following submissions:-

(i) It is submitted that the impugned judgment and order passed by

learned Single Judge would not warrant interference. It has been rightly

held by the learned Single Judge that appellant No.1 could not be held to

be a tenant within the meaning of Section 5(11)(c) of the Rent Act, as he

was neither a member of the tenants family nor he was a heir of the

deceased tenants, as the law would accept. As rightly held, the appellants

were trespassers, as contended by the respondents/owners in the plaint.

(ii) It is next submitted that the case of the appellant of any tenancy

being conferred on the appellant on the death of the tenant, in the context

of requirement of Section 5(11)(c) of the Act in no manner whatsoever has

been proved.

(iii) In any event, it was not relevant for the learned Trial Judge and/or

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the requirement to undertake any inquiry to decide any issue on tenancy

including under Section 5(11)(c) of the Rent Act, considering the

provisions of Section 28 of the Rent Act (supra), which conferred the

exclusive jurisdiction to adjudicate the issues under the Rent Act with the

Small Causes Court, i.e., to decide any dispute between the respondent and

tenant.

(iv) In such context, it is submitted that at no point of time appellant

No.1 asserted any rights of tenancy by filing a declaratory suit, in as much

as appellant No.1 could have established tenancy in proceedings by

approaching the Small Causes Court, and therefore, had sought to take

such defence in the eviction suit as filed by the respondent.

(v) This is also clear from the fact that appellant never raised a

preliminary objections under the provisions of Section 9A of the Code of

Civil Procedure on the maintainability of the suit, however, asserted all

issues of tenancy before the Civil Court which was not permissible, and in

fact, against the provisions of Section 28 of the Rent Act.

(vi) The consequence of such plea being raised, and even if it was so

decided by the Civil Court, such adjudication can only take place before

the Small Causes Court. The suit in question as filed by the

owners/respondents was thus maintainable, considering the averments as

made in the plaint wherein a clear case that the appellant was a trespasser of

the suit flat, were asserted.

(vii) It is submitted that as held by the Supreme Court in Raidas

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Topandas and Another Vs. M/s. Gorakhram Gokalchand

1

, the defendant

cannot force the plaintiff to go to a forum, discarding the averments in the

plaint. For such reason, the suit filed by the respondents before the City

Civil Court was maintainable. Further considering the averments in the

plaint, the decisions as relied on behalf of the appellants are wholly not

applicable in the facts of the present case.

Analysis:-

19.On the aforesaid backdrop, we have heard learned counsel for the parties,

we have also perused the record.

20.At the outset, we may observe that the case of the plaintiffs as pleaded in

the plaint was a clear case of the appellants/defendants being trespassers upon the

suit flat, on the basis that no legal right whatsoever in respect of the suit flat could

be claimed by the defendant in a manner as recognized by law. Contesting such

contentions as asserted by the plaintiff, the appellants/defendants have taken

inconsistent pleas, however, the same are quite consistent to any plea which

would fall under the Rent Act, namely, the appellants/defendants asserting rights

of tenancy. The following discussion would throw more light on the issue:-

21.The appellants/defendants at the first instance asserted that they have

become the tenants of the suit flat after the demise of the original tenant/P.S.

Athwankar on the ground that the appellants/defendants were residing along

with P.S. Athwankar, at the time of his death. However, the appellants were

1 AIR 1964 SC 1348

Page 16 of 36

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residing with the tenant in what capacity, becomes relevant in the context of

Section 5(11)(c) of the Rent Act, under which the defendant is asserting rights as

noted hereinabove, provides that any member of the tenants 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.

22.Thus, the defence to the respondents/plaintiffs plea, of the defendants

being the trespassers, could have been of a protection under Section 5(11)(c) that

is the appellants/defendants asserting that they were recognized as the members

of the tenant’s family as they were residing with the tenant at the time of his

death or the defendants establishing that they were the legal heirs of the deceased

tenant.

23.In our opinion, the appellants/defendants however miserably failed to

satisfy both the conditions in asserting tenancy under Section 5(11)(c) for the

reason that as defendant No.1 was neither a member of the tenant’s/P.S.

Athwankar’s family nor he was a heir of the deceased tenant as the law would

accept. It is well settled that the word ‘family’ is susceptible to varied meanings

and interpretation.

24.In Ramubai Vs. Jayram Sharma

2

, this Court held that the word ‘family’

includes all those who are connected by blood relation or by marriage with each

other, and in that sense, and that the requirement of blood relationship is

essential and that a stranger is excluded. In Baldev Sahay Vs. R. C. Bhasin, the

2 AIR 1964 Bom 96

Page 17 of 36

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Supreme Court included all members or descendants from the common ancestor,

who are normally and actually living with the head of the family. In Ross Vs.

Collins

3

, an unpaid housekeeper caring for and nursing the tenant as a devoted

friend was held not to be a member of the family of the tenant as there was no

relationship. Thus, the defendant asserting that he was a member of the tenant’s

family, itself was untenable.

25.The next contention of the appellants whether they were the heirs of the

deceased tenant also cannot be accepted considering the settled position in law.

The definition of the word ‘heir’ is required to be understood in the context of a

person who is entitled to succeed to the property of the deceased. The meaning

attributed to the word ‘heir’ in the context of Section 5(11)(c)(1) is no more

res

integra

in view of the authoritative pronouncements.

26.A Division Bench of this Court in Dr. Anant T. Sabnis vs. Vasant Pratap

Pandit

4

has found approval of the Supreme Court as discussed hereafter. The

question which had fell for consideration of this Court was whether the words

‘assign’ and ‘transfer’ in Section 15 of the Rent Act include ‘bequest’, so as to

render disposal of tenancy rights, in any premises under a Will, ineffective? In

deciding the said question, the Division Bench held that relations between

landlord and tenant are ordinarily the creatures of contract and are regulated by

the Transfer of Property Act, 1882. It was observed that prohibition against

transfer of tenancy rights by the tenants is just a corollary to the restrictions on

the land lords and is aimed at protecting them, in turn, by preventing the tenants

3 (1964) 1 W.L.R. 425

4 AIR 1980 Bom 69

Page 18 of 36

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from abusing these protections by thrusting uncontemplated strangers as tenants

on the landlords, willy nilly, for monetary gain or favouring any friend or relative

of theirs, and thus ensuring, that the immunity against eviction is not expanded

into licence to dispose of premises as if it were their own and landlords rights are

not invaded beyond what is strictly necessary. It was observed that the

contemplated protection is intended for the benefit of the tenants inducted by

the landlords voluntarily and the members of his family residing with them and

not for their unauthorised as signs, transferees or favourite strangers. The

Division Bench further elaborated that even all his lawful heirs are not included

within the sweep of this protection. It was held that such prohibition appears to

have been aimed at the very disposing power of the tenant over his tenancy rights

and includes every voluntary transfer, contractual or otherwise. The relevant

observations as made by the Court are required to be noted with read thus:-

“10. The underlying object of Section 15 also militates against

legislature having intended to import such a restricted concept of the

words therein. Relations between landlord and tenant are ordinarily the

creatures of contract and are regulated by the T. P. Act. The growing

scarcity of accommodation needed some protection to the tenants against

evictions and exorbitant rents. The Rent Act was enacted to meet these

needs, as indicated in the preamble. Section 12 affords immunity to the

tenants against evictions, notwithstanding any contract to the contrary.

While Section 7 prevents the landlord from claiming anything in excess

of the standard rent and permitted increases from the tenants, to ensure

that the afforded immunity is not rendered illusory. Section 13 seeks to

relax this immunity where landlord himself is the victim of the scarcity

and needs the premises for his residence or for certain other relevant

purposes or when the tenant renders himself unworthy of the extended

protection due to his own acts or omissions, as indicated therein.

11. Prohibition against transfer of tenancy rights by the tenants is

just a corollary to the restrictions on the land lords and is aimed at

protecting them, in turn, by preventing the tenants from abusing these

protections by thrusting uncontemplated strangers as tenants on the

landlords, willy nilly, for monetary gain or favouring any friend or

relative of theirs, and thus ensuring, that the immunity against eviction is

Page 19 of 36

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not expand ed into licence to dispose of premises as if it were their own

and land lords rights are not invaded beyond what is strictly necessary.

Contemplated protection is intend ed for the benefit of the tenants

inducted by the landlords voluntarily and the members of his family

residing with them and not for their unauthorised as signs, transferees or

favourite strangers. Even all his lawful heirs are not included within the

sweep of this protection. Prohibition appears to have been aimed at the

very disposing power of the tenant over his tenancy rights and includes

every voluntary transfer, contractual or otherwise. That the legislature

legalised certain unlawful sub-leases, or made even licensees as tenants in

an anxiety to eradicate the identical evils, is besides the point.

12. Request of tenancy rights in this context stands of the same

footing as any other transfer by sub-lease, sale, assignment gift, volition of

the tenant in inducting uncontemplated strangers in the premises and

thrusting them on the landlord, being the common element of these

dispositions. It makes little difference to the invasion on the landlord's

right whether such uncontemplated stranger is so inducted by the tenant

for gain or just as a favour-- invasion in either case having no nexus with

the object underlying these protections. It is difficult to imagine why the

legislature could have in- " tended to exclude such bequests from the

sweep of the prohibited assignments and transfers under Section 15,

when bequest is pregnant with the same evils as other transfers. The

words 'transfer in any manner' in this context only go to signify inclusion

of 'bequest' also therein,

13. It is not without significance that legatee is not included in the

definition of the word 'tenant'. Section 5(11) of the Act defines it to

mean 'a person who is liable to pay the rent or on whose account the rent

is payable for any premises'. Under Sub-clauses (a) to (c) it is enlarged to

include some others whom legislature considered it necessary to protect.

Clause (c) provides for the succession to tenancy rights on the death of

the tenant. Thus, this Sub-clause (c) by providing for the mode of

succession, impliedly excludes successors from the purview of the width

of the main clause. Secondly, it restricts the succession even by operation

of law of inheritance to the persons and situations indicated therein and

impliedly excluding all other heirs. In fact, 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. Thirdly and more importantly, legatee is not

included either in this sub-clause or any other sub-clauses. This

demonstrates legislative intent to prohibit testamentary disposition of the

tenancy rights. There is no other express provision to this effect in the

Rent Act. It shall have to be traced only in Section 15 thereof by

interpreting the words 'assign' and 'transfer' in their generic sense. This

also fortifies our interpretation of these words.

14. There was some doubt if this definition excludes the heirs

otherwise entitled to succession under the law of inheritance concerned.

It was held by this Court in the case of Rajaram v. Ramraja (1978) 80

BLR 12, and other cases cited therein that Clause (c) could not have any

effect on the heritability of the tenancy rights by the law of succession

concerned and title of such heirs is not intended to be affected. In some

of the cases, Clause (c) is held to be applicable to statutory tenancies

Page 20 of 36

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alone. In his commentary on the "Law of Rent Control" (1974 edition) at

page 237, the learned Author Andhyarujina has relied on these cases in

support of his view that bequests not being transfers, are not prohibited

under Section 15 thereof. The legislature has, however, now nullified this

judicial interpretation by substituting Sub-clauses (c-1) and (c-2) in place

of the original Sub-clause (c), under the Amendment Act of 1978 with

retrospective effect and declaring such interpretation to be contrary to its

true intent. Legatees are excluded under new Sub-clauses (c-1) and (c-2)

in the same manner as they were excluded under the original Sub-clause,

(c). Amended provisions, however, declare unequivocally Sub-clauses (c-

1) and (c-2) to be the only modes of succession to the tenancy rights.”

…..

…..

23. The provision of the Will bequeathing the tenancy rights of

Tarabai to Gopal Masurkar is, thus, hit by prohibition against transfers

contained in Section 15 of the Rent Act and is, therefore, ineffective,

inoperative and void. No probate could have been granted in respect of

such tenancy rights and the plaintiff Executor can claim no legal right

whatsoever in respect of the same. Consequently, the plaintiff cannot be

held to have any right to claim eviction of the defendant from the said

premises. To this extent, this suit is liable to be dismissed.”

27.The aforesaid judgment finds approval of the Supreme Court in the case of

Vasant Pratap Pandit Vs. Dr. Anant T. Sabnis

5

. In this case, one Tarabai who was

the tenant of the premises died issue-less. She left behind a will bequeathing her

properties including tenancy right in the said premises to her sister’s son Gopal,

by appointing the plaintiff/appellant, her brother’s son as executor thereof. The

respondent who happened to be the grandson of a sister of the legatee and his

wife was staying with Tarabai in the disputed premises. After her death, the

appellant called upon the respondent to vacate the premises and on his refusal,

instituted a suit for eviction before the City Civil Court at Bombay. The

respondent resisted the suit on the principal ground that the bequeath of the

tenancy rights amounted to transfer, which was impermissible under Section 15

of the Rent Act. Consequently, the respondent urged that appellant could not

5 (1994) 3 SCC 481

Page 21 of 36

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claim his eviction. Such contention of the respondent was negatived by the Trial

Court which decreed the suit. Aggrieved thereby, the respondent preferred an

appeal before High Court. The appeal was allowed by the High Court resulting

into the dismissal of the suit. The High Court held that the word "heir"

appearing in Section 5(11)(c) of the Rent Act did not include legatee and that the

word "assign" and transfer appearing in Section 15 of the Rent Act were used in a

generic sense to include bequest. The High Court accordingly concluded that the

appellant had no right to file a suit. It is in such context, the Supreme Court

considering the definition of tenant as defined under Section 5(11)(c)(i) and on a

survey of the legal procedures, held that the legatee of the Will was not the heir,

and hence, not a tenant after the death of the original tenant. It was also observed

that if the word ‘heir’ is to be interpreted to mean a legatee, even a stranger may

have to be inducted as a tenant or there is no embargo upon a stranger being a

legatee. The Supreme Court also negatived the contention as urged on behalf of

the appellant that heir under a “Will” would remain confined to only the

members of the family. Referring to Section 15 of the Rent Act, the Court also

held that the word "assign" or ‘transfer’ appearing in Section 15 was qualified by

the words “in any other manner” and that there was no reason why it should be

restricted to be in only transfer inter vivos. It was held that the High Court was

right in its conclusion that the Transfer of Property Act limited 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. The Supreme Court

also approved the earlier view as taken in Bhavarlal L. Shah Vs. Kanaiyalal

Page 22 of 36

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Nathalal Intawala

6

, while approving the findings recorded in the case of Dr.

Anant T. Sabnis Vs. Vasant Pratap Pandit (supra). The following observations as

made by the Supreme Court are required to be noted which read thus:-

“9. Having given our anxious consideration to the contentions

raised by Mr Sorabjee we are unable to accept the same.

10. In Partington's Landlord and Tenant at p. 80 (2nd Edn.) it is

stated "Statutory tenants cannot assign their premises in any event."

Again at p. 429 it is stated :

“Statutory tenants cannot assign (Rent Act 1977, Section 2)."

13. Now, we may look at the meaning of the words heirs, heir at law

and heir testamentary as stated in Black's Law Dictionary, 6th Edn. at pp.

723 and 724:

“Heirs. At common law, the person appointed by law to succeed

to the estate in case of intestacy. One who inherits property, whether real

or personal. A person who succeeds, by the rules of law, to an estate in

lands, tenements, or hereditaments, upon the death of his ancestor, by

descent and right of relationship. One who would receive his estate under

statute of descent and distribution. Faulkner's Guardian v. Faulkner4.

Moreover, the term is frequently used in a popular sense to designate a

successor to property either by will or by law.

Heir at law. At common law, he who, after his ancestor dies

intestate, has a right to all lands, tenements, and hereditaments which

belonged to him or of which he was seised. The same as 'heir general'.

A deceased person's 'heirs at law' are those who succeed to his

estate of inheritance under statutes or descent and distribution, in

absence of testamentary disposition, and not necessarily his heirs at

common law, who are persons succeeding to deceased's realty in case of

his intestacy.

Heir testamentary. In the civil law, one who is named and

appointed heir in the testament of the decedent. This name distinguishes

him from a legal heir (one upon whom the law casts the succession), and

from a conventional heir (one who takes it by virtue of a previous

contract or settlement)."

In the light of the above we may consider the object and scheme

of the Act to ascertain in which sense the word 'heir' applies here.

6 (1986) 1 SCC 571

Page 23 of 36

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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 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 the 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

Page 24 of 36

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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 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.

17. For the foregoing discussion we do not find any justification to

take a view different from the view expressed by this Court in the case of

Bhavarlal L. Shah while approving the findings recorded in the case of

Anant T. Sabnis (Dr) v. Vasant Pratap Pandit which is under challenge

before us (Civil Appeal No. 2584 of 1980). Incidentally, we may

mention that while approving the above judgment this Court pointed out

in Bhavarlal case that the reasons given therein were perfectly justified in

the context of the object and scheme of the Act (emphasis supplied); and

the question that is left open by this Court therein is to be considered in

the light of the provisions of the Rent Act as in force in the State of

Gujarat which has given a different meaning to the word 'tenant'.

(emphasis supplied)

28.In Ross and Another vs. Collins (supra), the plaintiffs were the landlords of

premises of which M. was the statutory tenant. Originally M. had sublet part of

the premises to the defendant, but after the death of his wife, in 1950, when he

was 80, the defendant had acted as his unpaid housekeeper, performing all

household duties for him, nursing him and arranging his holidays, in

consideration of which he remitted her rent and provided her with free

accommodation. M. and the defendant never addressed each other by their

Christian names nor had they passed themselves off, as father and daughter. She

regarded him as an elder relative – partly as an elder brother, partly as a father.

She wrote lively and affectionate letters to him when on holiday which he

Page 25 of 36

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cherished and retained in his possession until his death in 1962. On a claim for

possession by the plaintiffs, the defendant relied on the protection given by

Section 12(1)(g) of the “Increase of Rent and Mortgage Interest (Restrictions)

Act, 1920”, to a member of the deceased statutory tenant’s family residing with

him at the time of his death. It was held that she was not a member of M.’s

family and made an order for possession. Dismissing the appeal, the Court of

appeal held that there was no kind of family relationship between the defendant

and M. (the deceased statutory tenant). It was held that she was not a member of

his family within section 12(1)(g) of the “Increase of Rent and Mortgage Interest

(Restrictions) Act, 1920”, and accordingly, it was held that the plaintiffs were

entitled to possession. In reaching such conclusion, the observations as made by

the Court of Appeals in the majority judgment of Pearson L.J. held as under:-

“The question here is whether she was a member of McRae’s family at

the time of his death. The question arises under section 12(1)(g) of the

Increase of Rent and Mortgage Interest (Restrictions) Act, 1920, as

amended by subsequent Acts.

In the present case, however, there was no family relationship of any kind

and the defendant for that reason must fail to qualify as a member of

McRae's family. She was in no sense his daughter, neither de jure nor de

facto, nor in any other way; and no other family relationship can be

suggested, except (as Mr. Lawson put it) something intermediate between

a daughter and a sister, or, on the other side, something intermediate

between a father and an elder brother. But, in my view, that is not a

possible method of arriving at a decision in this case.

I should add, to avoid any misunderstanding, that the existence of a

family relationship is not always in itself enough to make the surviving

person a member of the deceased person's family. The way in which the

parties acted is also to be taken into account. The two elements of

relationship and conduct are associated in a passage in the judgment of

Lord Evershed M.R., in Jones v. Whitehill, where he said : "I am not

suggesting necessarily that all nephews and nieces by marriage should be

regarded as members of the tenant's family. But be it observed here that

the defendant, a niece of the tenant's wife, assumed, as we were told, out

of natural love and affection, the duties and offices peculiarly attributable

Page 26 of 36

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to members of a family of going to live with her uncle and aunt to look

after them in their declining years. On those facts I think that, if it were

asked in ordinary conversation whether the defendant was a member "of

the tenant's family, an affirmative answer would be given. Applying that

test, I come to the conclusion that the defendant should be regarded on

these facts as within the protection of the section."

In my view, one has to have regard to each of the two elements in

understanding that passage. There were the two elements present. The

defendant was a niece of the tenant's wife; she also behaved in a certain

way out of natural love and affection, implying that there was a pre-

existing relationship between them; she "assumed the duties and offices

peculiarly attributable to members of a family." It does not in the least

follow that you can have similar protection afforded to a person who

stood in no pre-existing relationship at all to a person who was deceased

but yet behaved towards him in a filial character or some other family

character.

In my view, it is not necessary in this case to seek to limit with

any precision the extent to which a de facto relationship might be

sufficient. On the facts of this case there was no father and daughter

relationship, de facto or otherwise; and, in my view, there is no other

family relationship which can be suggested here.

On these grounds I come to the conclusion that the judge's

decision and reasoning were correct and that the appeal must fail.

I would like to add that I fully share the judge's feeling of sorrow

that we are unable to do anything to help the highly deserving defendant

in this case.”

29.Russell L. J. in his concurring judgment observed that what was necessary

was broadly recognisable

de facto familial nexus, which may be capable of being

found and recognised as such by the ordinary man where the link would be

strictly familial had there been a marriage, or where the link is through adoption

of a minor, de jure or de facto, or where the link is "step", or where the link is "in-

law" or by marriage. It was held that two strangers cannot ever establish

artificially for the purposes of the statutory provision a familial nexus by acting as

brothers or as sisters, even if they call each other such and consider their

relationship to be tantamount to that. The observations are required to be noted

Page 27 of 36

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which read thus:-

“RUSSELL L.J. I agree. The question in this ease is: was the

defendant not only residing with McRae but also a member of his family

so as to be entitled under the Act of 1920 to the continuance in her

favour of his rights of occupation?

Granted that" family" is not limited to cases of a strict legal

familial nexus, I cannot agree that it extends to a case such as this. It still

requires, it seems to me, at least a broadly recognisable de facto familial

nexus. This may be capable of being found and recognised as such by the

ordinary man where the link would be strictly familial had there been a

marriage, or where the link is through adoption of a minor, de jure or de

facto, or where the link is "step", or where the link is "in-law" or by

marriage. But two strangers cannot, it seems to me, ever establish

artificially for the purposes of this section a familial nexus by acting as

brothers or as sisters, even if they call each other such and consider their

relationship to be tantamount to that. Nor, in my view, can an adult man

and woman who establish a platonic relationship establish a familial

nexus by acting as a devoted brother and sister or father and daughter

would act, even if they address each other as such and even if they refer to

each other as such and regard their association as tantamount to such.

Nor, in my view, would they indeed be recognised as familial links by the

ordinary man.”

(emphasis supplied)

30.The aforesaid position in law, therefore, clearly establishes that even

assuming that the Civil Court had the jurisdiction to decide any issue on tenancy,

(which it did not) the appellants/defendants had miserably failed to prove that

the appellants could substantiate their case of being members of the tenant's

(Athwankar’s) family.

31.Now coming to the second limb of the requirement as to whether merely

because the appellant alleged that there was a Will made in his favour

bequeathing the tenancy rights in his favour, would in any manner, assist the

appellant. As held by the Division Bench of this Court in Anant T. Sabnis vs.

Vasant Pratap Pandit (supra), in terms of Section 15 of the Rent Act, bequeathing

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the tenancy rights under a Will is held to be hit by prohibition against transfers

contained in Section 15 of the Rent Act and is, therefore, ineffective, inoperative

and void. It is also held by the Division Bench that no probate could have been

granted in respect of such tenancy rights and the executor can claim no legal right

whatsoever in respect of the same. Thus, looked from any angle, the appellants

could not have asserted that appellant no.1 had become a legal heir by virtue of

the Will of the tenant (Athwankar), and on such ground would step into the

shoes of the tenant (Athwankar) so as to claim any protection under the Rent

Act.

32.Learned counsel for the appellants however has relied upon the Will of Mr.

P.S. Athwankar. In such context, it is submitted on behalf of the appellants that

although the said Will purports to bequeath tenancy rights in favour of the

appellants, the reliance is not placed on the Will on the proposition that tenancy

rights can at all be bequeathed under a Will as such a proposition would be

contrary to the settled position in law. It is submitted that the Will was relied

upon only to demonstrate that the testator, by executing the Will and recognizing

the Appellant as a beneficiary, considered him to be a person closely associated

with the testator/tenant. It is thus sought to be inferred that the Appellant was a

member of the family.

33.There are a number of decisions being cited on behalf of the appellant

which are wholly not applicable to the facts of the case. We do not intend to

burden the judgment by discussing all such decisions, however, taking note of the

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following decisions.

34.In Dyson Holdings Ltd v Fox

7

, the Court of Appeal was concerned with

the interpretation of the expression “member of the tenant’s family” under the

Rent Act 1968 (UK), particularly in the context of succession after the tenant’s

death. The Court considered whether a woman, who was not the lawful wife of

the tenant, could nonetheless claim protection. It was observed that the word

“family” should not be construed in a narrow or technical sense, and a person

who had been living with the tenant “as husband and wife” for a considerable

period could be treated as part of the tenant’s family, the emphasis being on a

stable domestic relationship constituting a family unit.

35.In the present case, the appellants contend that they ought to be

considered as members of the tenant’s family, in the nature of a son or foster son

of late Shri Athwankar (tenant). However, the facts are clearly distinguishable. In

Dyson Holdings, the relationship was one of persons living together “as husband

and wife”, whereas in the present case, the appellants were permitted to reside in

the suit flat only as domestic servants and for the purpose of looking after the

tenant, which was purely for his personal convenience.

36.In these circumstances, the principle laid down in Dyson Holdings does

not extend to the facts of the present case, and the appellants would not be

assisted by the said decision.

37.In Jagat Singh v. Karan Singh (Dead) by LRs & Ors

8

., the issue before the

7 1975 1 Q. B. 503

8 (1987) 2 SCC 349

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Supreme Court arose in the context of Section 6(4) of the Tehri Garhwal Bhumi

Sambandhi Adhikar Niyam, where the appellant being a sapinda (close relative)

of the deceased sub-tenant, had lived with him, shared food and shelter, besides

assisting in cultivation and on that basis claimed succession to

khaikari rights

(sub-tenancy rights). In such context, the Supreme Court observed that it was not

necessary for the appellant to be a formal member of a joint Hindu family, so

long as he lived with the deceased as a member of the family. However, the said

observations were made in the peculiar statutory framework where the existence

of a sapinda relationship formed the foundational requirement. In the present

case, the appellants are not relatives or sapindas of the tenant, but claim rights

merely on the basis of residence or association as domestic servants. Hence, the

said decision would not be applicable in the present case.

38.Reliance is placed on the decision of the learned Single Judge of Gujarat in

Karim Mohammed Fakir Mohammed v/s. Late Abdulmajid Fatehmohammed

Thru Legal Heirs (Civil Revision Application No. 6 of 2006). In such case, at

the outset, it is required to be noted that the proceedings before the Court had

arisen from the declaratory proceedings filed before the Small Causes Court

whereby in the rent application, one Rehmatbibi Fakirmohamad Pirmohamad

asserted to be a statutory tenant. It is in such context, the Court delved on the

provisions of Section 5(11)(c)(i) of the Rent Act. The Court referring to the

decision of the Supreme court in Vasant Pratap Pandit Vs. Dr. Anant Trimbak

Sabnis (supra), held that the family link is not to be altogether alien or it cannot

be totally overlooked in treating a person to be “a member of tenant's family”.

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However, in understanding the concept of ‘tenant's family’, one of the yardsticks

to be applied was of nearness felt by the tenant with the “relatives” residing with

him at the time of his death and in such context, an observation was made that

the bond relationship determines the status and not merely the blood

relationship. However, such observation is required to be understood on a

holistic reading of the decision as referred by the Court and in the context of

what would constitute to the ‘tenant's family’. Certainly such observations can

not in any manner be read to provide a different meaning to what has been held

by the Supreme Court in Vasant Pratap Pandit Vs. Dr. Anant Trimbak Sabnis

(supra). Thus, this judgment would not assist the appellants.

39.Further reliance is placed on the decision of the learned Single Judge of

this Court in Pandurang Narayan Mantri (By L. Rs) vs Anant Shankarrao

Samuel

9

. In this case, the appellants were the heirs of the original plaintiff whose

suit for possession of the suit premises was dismissed by the City Civil Court. The

suit flat was let out by the plaintiff to one Sitaram Tribhuvane sometime prior to

1941, Sitaram was living with his wife Sulochana. Sitaram died in or about

November 1949, and after his death Sulochana continued to occupy the said flat.

The plaintiff transferred the rent receipt in respect of the suit premises in her

favour. Sulochana herself had become very old and more or less helpless. There

was no one to look after her in that age. Hence Sulochana invited the defendant

and his wife who was Sitaram’s niece to come and stay with her and occupy the

premises. By about January 1950, the defendant and his wife started living in the

9 AIR 1982 Bombay 115

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suit premises along with Sulochana. The plaintiff by a letter dated 11 January

1950 called upon Sulochana to remove the defendant and his wife from the

premises. He contended that they were her unlawful sub-tenants. A reply dated

17 January 1950 was sent by Sulochana to the said letter through her advocate

stating that the defendant and his wife were staying with Sulochana in order to

give her company and to give her help in her old age. It was denied that they

were strangers or that they were sub-tenants. It is in such context, the Court has

made observations as relied on behalf of the appellant that what is required to be

seen is not the degree of the relationship but the nearness felt by the tenant for

the relationship concerned and as a matter of fact in the instant case the

relationship which is proved has got to be considered in conjunction with the

special circumstances, namely, that Sulochana was a helpless and enfeebled

person and she got help from the defendant and his wife, who were in her

husband’s relations. Thus, admittedly, the defendants were the family members

of the plaintiff, which is not the case insofar as the appellant is concerned in the

present case. Hence, this decision would not assist.

40.Learned counsel for the appellants has placed reliance on the decision in

Fitzpatrick Vs. Sterling Housing Association Limited

10

. Considering the subject

matter of consideration before the house of Lords, it is totally inapplicable in the

Indian context. The Court was confronted with an issue as to whether the person

(woman) who denied the assertion of the landlord that she was not the wife of

the deceased tenant, and hence, not a member of the family could be recognized

10 1998 2 WLR 225

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to be a member of the family of the deceased tenant as she was residing with the

tenant at the time of his death, for the purposes of Section 5(11)(c) of the Rent

Act. We thus wonder as to how this decision would in any manner assist the

appellant.

41.In K. V. Muthu Vs. Angamuthu Ammal

11

the Court in this case was

dealing with a definition of the member of the family as defined under Section

2(6)A of the Tamil Nadu Rent Act, which defined the member of the tenant’s

family in relation to a landlord means a spouse, son, daughter, grandchild or

dependent parent. It is in such context, the observations as made by the Supreme

Court are required to be considered. However, the appellants contention that the

analogy be drawn that the appellant be considered to be the son, cannot be

accepted for two reasons; firstly, the member of tenants family has not been

defined akin to the definition as contained in the Tamil Nadu Act. The facts are

also totally incomparable, and hence, this decision even remotely does not

support the appellants case that he may either be considered as the son or foster

son and would be entitled to protection under the Rent Act.

42.We find ourselves in complete agreement with the respondents case that

the appellant could not have taken the position of asserting any protection under

the provisions of Section 5(11)(c) of the Rent Act, as he was not the member of

the family of the tenant (Mr. Athwankar) nor a legal heir as discussed

hereinabove.

43.The respondents would also be correct in its contention that the appellants

11 (1997) 2 SCC 53

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resorted to inconsistent pleas in the written statement as on one hand they

asserted statutory tenancy and/or of the licensee or becoming owner. All these

were unsubstantiated defences, inasmuch as very consciously the appellants

avoided to seek any substantive relief, asserting such position that they had

become tenants of the suit flat, which could have been taken only in appropriate

proceedings to be filed before the Small Causes Court, considering the clear

provisions of Section 28 of the Bombay Rent Act read with the provisions of

Section 18 & 19 of the Presidency Small Causes Court Act, 1882.

44.Thus, we clearly find that what was sought to be set up as a defence in the

suit could purportedly be a right which was falling under the provisions of the

Bombay Rent Act, being so asserted was required to be adjudicated not by the

Civil Court, as per the mandate of the aforesaid statutory provisions. However, it

was quite peculiar that not only the Civil Court but also the High Court had

delved on such consideration, as rightly argued by Mr. Gorwadkar, learned Senior

Counsel for respondent, any such finding to be rendered in the civil suit in

question, would be without jurisdiction. In fact, the aforesaid discussion we have

undertaken was not the requirement for the proceedings in hand, except for the

fact that both the Courts have delved into such aspects of the matter, and

therefore, obviously became a bone of contention in the present proceedings. We

have, however, considered such contentions only in the context of examining

whether such contentions would at all assist the appellant in non-suiting

respondent-plaintiff, i.e. to establish that the appellants are not the trespassers.

The appellant, however, having failed on all the counts necessarily not only

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before the learned Single Judge but also in the present appeal the necessary

consequence obviously would be that the appeal would deserve to be dismissed.

It is accordingly dismissed.

45.The appellants shall vacate the suit premises within a period of eight weeks

from the date a copy of this judgment is made available.

46.Before parting we may observe that for a long period of time i.e. from the

date institution of the suit (1985), the respondents/owners of the suit flat have

been deprived of the same. The respondents were right in their suit that the

appellants were trespassers and had no legal right whatsoever to occupy the suit

flat. The present appeal itself was dismissed on three earlier occasions for non-

prosecution. This is the manner in which the appellant has pursued the present

proceedings. We find that the learned Single Judge decided the first appeal by

passing the impugned judgment and order dated 04 March 2002, it has been

about 25 years that the present appeal had remained pending as also dismissed in

default on earlier occasions. The plea under the Rent Act cannot be stretched to

such an extent, as in the present proceedings so as to extinguish the rights of the

land-lord in the premises. Such is never the intention of the beneficial legislation

like the Rent Act.

(AARTI SATHE, J.) (G. S. KULKARNI, J.)

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