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Framroze Maneckji Bilimoria Vs. Suhrid Geigy Trading Ltd. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 1746 of 1972
Judge
Reported in(1977)79BOMLR9
AppellantFramroze Maneckji Bilimoria
RespondentSuhrid Geigy Trading Ltd.
DispositionAppeal dismissed
Excerpt:
.....the second part of the section because the first petitioner has no legal right to occupy the suit premises. the petitioners cannot therefore claim to recover possession because of the bona fide requirement of the first petitioner.;nawab sardar meer v. r.p. gibson (1967) 71 bom l.r. 357 and mongibai hariram v. state (1965) 68 bom. l.r. 781 s.c. referred to.;taherbhai v. ambalal (1966) 7 guj. l.r. 981 and r.p. mehta v. i.a. sheth [1964] a.i.r. s.c. 1976, distinguished. - - 1 were as good as those of his late father. mistree says that the case of the petitioners would be as good as a case of a landlord requiring the premises for occupation by himself as laid down in section 13(1)(g). on the other hand, mr. 5. section 13(1)(g) lays down that notwithstanding anything contained in the..........benefit the premises were held. the trial court held that the notice to quit was valid, that the suit premises were reasonably and bona fide required for occupation by petitioner no. 1, that there would be no greater hardship to the respondents if the decree was passed in favour of the petitioners and that petitioner no. 1 had also a right to occupy the suit premises. the trial court, therefore, decreed the suit but that decree was challenged and the appeal was heard by the appellate bench of the small causes court, bombay. the appellate bench agreed with all the findings of the trial court except on the finding that petitioner no. 1 was entitled to occupy the suit premises. the appellate bench was of the view that petitioner no. 1 who was a trustee did not have a right to occupy the.....
Judgment:

Bhole, J.

1. The original plaintiff-trustees are the petitioners here. They are the trustees appointed under the deed of settlement dated December 23, 1953 executed by Manekji Rustomji Bilimoria and his wife Meherbai Manekji Bilimoria. The subject-matter of the suit is one of the trust properties known as 'Battery House' situate at Warden Road, Bombay. We are here concerned only with flat No. 1 on the third floor of Battery House which was leased out originally to the respondents here in 1954. There was subsequently renewal of the lease for a further period of five years. The respondents after the expiry of renewed lease continued to remain in possession and to pay rent but the petitioners terminated the tenancy of the respondents by a notice to quit in December 1964 and later filed a suit for eviction in May 1965.

2. The possession was sought by the petitioners on the ground of bona fide and reasonable requirement by petitioner No. 1, who is one of the trustees and a son of late Manekji Bilimoria. The suit was resisted challenging the validity of the notice, disputing the bona fides and reasonableness of the requirement and pleading greater hardship. It wasi also contended that the petitioners were not entitled to claim possession of the suit flat on the ground of bona fide and reasonable requirement as petitioner No. 1 was not the person for whose benefit the premises were held. The trial Court held that the notice to quit was valid, that the suit premises were reasonably and bona fide required for occupation by petitioner No. 1, that there would be no greater hardship to the respondents if the decree was passed in favour of the petitioners and that petitioner No. 1 had also a right to occupy the suit premises. The trial Court, therefore, decreed the suit but that decree was challenged and the appeal was heard by the appellate Bench of the Small Causes Court, Bombay. The appellate Bench agreed with all the findings of the trial Court except on the finding that petitioner No. 1 was entitled to occupy the suit premises. The appellate Bench was of the view that petitioner No. 1 who was a trustee did not have a right to occupy the premises in his capacity as a trustee because if he wants to occupy the premises as a tenant, it would amount to substitution of one tenant by another and that the same would not be the requirement of the person for whose benefit the premises were held by the trustees. In that view of the matter the appellate Bench allowed the appeal, set aside the decree of the trial Court and dismissed the petitioners' suit. That order passed by the appellate Bench, therefore is now challenged here.

3. The point, therefore, that arises here for consideration is whether the order passed by the appellate Bench suffers from any error apparent on the face of the record. Both the lower Courts having agreed on the issues of the validity of the notice of termination of tenancy of the respondents, on the bona fide and reasonable requirement of the suit premises for occupation by petitioner No. 1 and on the balance of relative hardship, it is not necessary for me to go into those issues. The only issue on which both the Courts differ is whether petitioner No. 1 was entitled in law to claim possession of the suit premises on the ground that the same was reasonably and bona fide required for occupation by him. Mr. Mistree, the learned Counsel for the petitioners has taken me through the contents of the deed of settlement and has contended here that the deed of settlement should be construed as a whole, that petitioner No. 1 is one of the beneficiaries under the trust along with his other four brothers, that petitioners' father was anxious to provide for his children and that the rights of the petitioner No. 1 were as good as those of his late father. It does appear after reading the deed of settlement that the petitioners' father Manekji wanted to have the trust settled for the benefit of his sons and their issues in the manner set forth in the document. The trustees, according to the defld, had to divide or keep divided the trust properties and funds without actually dividing the same in five equal parts and had to appropriate each one of such equal parts as the share of each of the five sons of the settlor. The net income had also, to be distributed amongst his five sons. There is also a provision made out of the corpus of the shares, if any one of the sons dies, for the purpose of his funeral and subsequent ceremonies attending his death for one year according to the custom of the family. It is also provided that it would be lawful for all the five sons of the settlors during their joint lives with their unanimous consent at any time after the expiration of ten years from the execution of the presents by any deed or deeds with or without the power of revocation and new appointment to revoke either wholly or partially the trust powers and provisions declared in the deed, but the most important clause, with which I think I am presently concerned is as follows:

6. The Trustees shall be at liberty to demise the buildings or other structure on the said land and premises in such separate portions or as a whole and at such rents, for such periods not being more than ten years at a time on such terms and conditions and to such person or persons including the Trustee or Trustees of these presents as they may think fit in their absolute discretion and shall utilise the net rent after payment of all rates, taxes, assessments and outgoings including expenses for repairs in the first instance in payment of the interest on the loan or loans if any borrowed by the Trustees in terms of Clause 5 above and thereafter in utilising a sum not being less than ten per cent of the balance of the net rents in payment of the principal amounts of the said loan or loans for the time being due and payable.

4. On the basis of the above declaration by the settlors Mr. Mistree says, that the ease of petitioner No. 1 should be treated as that of a landlord with a beneficial interest as per the declaration in the trust deed. Mr. Mistree also says that the corpus was granted to each of the sons and that each one can dispose it of according to his own desire; he can even revoke the trust. In other words according to Mr. Mistree petitioner No. 1 though a trustee should be treated as a landlord with a beneficial interest. In fact according to him under Clause (6) he has a right even without rent to occupy the suit premises in the trust building. on the other hand Mr. Khambatta, the learned Counsel for the respondents contends here that Section 13(1)(g) of the Rent Act does not permit a trustee to occupy the premises by himself unless he has a right to occupy the premises. But Mr. Mistree says that the case of the petitioners would be as good as a case of a landlord requiring the premises for occupation by himself as laid down in Section 13(1)(g). On the other hand, Mr. Khambatta says that the case of the petitioners cannot come under Section 13(1)(g) but would be of a person for whose benefit the premises are held. He further says that even such a person must have a right to occupy the suit premises and unless and until he has a right it will not be possible for such a person to occupy the premises. I am inclined to agree with Mr. Khambatta for the obvious reason that the Kent Act is the Act which consolidated laws relating to control of rent and for repairs of certain premises and also of eviction. It is more or less an Act to protect the interest of the tenants who, the Legislature thought, should not in normal course be driven away and whose places should not be allowed to be substituted by other tenants.

5. Section 13(1)(g) lays down that notwithstanding anything contained in the Rent Act but subject to the provisions of Section 15 and Section 15A a landlord shall be entitled to recover possession of any premises if the Court is satisfied that the premises are reasonably and bona, fide required by the landlord for occupation by himself or by any person for whose benefit the premises are held or where the landlord is a trustee of a public charitable trust that the premises are required for occupation for the purpose of the trust. Under Section 5(3) 'landlord' is defined as the person who for the time being receives or is entitled to receive rent in respect of any premises, whether on his own account or on account, or on behalf, or for the benefit of any other person. Section 13(1)(g), therefore, appears to be divided into two parts. The requirement in the first part should be reasonable and bona fide; under the second part it is not necessary that the requirement should be reasonable and bona fide but it is sufficient if a trustee of a public charitable trust proves that he requires the premises for the purpose of such a trust. The second part was added by the amending Act No. 61 of 1953. Therefore, under this clause either the landlord himself or a beneficiary or the public trust, as the case may be, must occupy the premises. Mr. Mistree for the petitioners contends here that the case of the petitioners will come under the first part of Section 13(1)(g) viz. that the premises are reasonably and tona fide required by the landlord for occupation by himself. Mr. Mistree says that since the trust deed has to be construed as a whole and since there is also a clause under which a trustee or trustees can be tenants in the suit premises and since the corpus can even be disposed of by the trustees the only conclusion on the construction of the clauses would be that petitioner No. 1 can occupy as a landlord because he has not only a beneficial interest therein but that there is also an express provision for him to occupy the premises under Clause (6) of the deed. It is, however, difficult for me to accept this contention for the obvious reason that petitioner No. 1 cannot by any stretch of imagination be said to be a landlord of the trust premises. Admittedly he is one of the trustees and the office of the trustees is a joint office. He cannot in law be the owner of the trust premises. A landlord is ordinarily a full owner having legal as well as beneficial interest combined into one. That is not the case here. Even though there may be a clause of the kind mentioned by Mr. Mistree in the trust deed, that is certainly not a clause for converting the trustees into owners. I am, therefore, unable to accept this contention of Mr. Mistree.

6. The plain reading of Section 13(1)(g) of the Bombay Rent Act shows that it consists of three parts. The first part applies to a landlord who is the full owner; the second part applies to the case of a landlord who is more or less a trustee of a private trust with a beneficial interest and the third part provides for the case where the landlord is a trustee of a public trust. The Legislature could not therefore have thought of protecting a beneficiary under the trust irrespective of the nature of his beneficial interest under the trust. In so far as the present case is concerned, the trust deed declares that the trustees can demise the building in separate portions, as they want on rent. The terms and conditions of lease would be decided by the trustees and they have absolute discretion to subject the demise to whatever conditions they want. The trustees, therefore under Clause (6) can insist on the tenants to pay rent subject to such terms and conditions as are given by the trustees. The only difference between a usual trust deed and this trust deed is that the instant trustees are also allowed to give on rent the premises to a trustee or trustees on the same terms and conditions as those provided for other tenants. In other words, the trustees cannot only induct strangers as tenants but also a trustee or trustees as tenants. Therefore, if the petitioners' case is accepted, it is as good as driving out the present tenants and substitute them by other tenants though in this case he is a trustee. I think such a thing cannot be allowed to happen under the provisions of the Rent Act.

7. A plain reading of Section 13(1)(g) clearly shows that according to the first part a landlord who has a right to occupy the premises because he is a owner, can always seek possession of the premises for hia personal occupation. The case of the petitioners, in my view cannot be stretched to come within this part of the section. It cannot also come under the second part because petitioner No. 1 has no legal right to occupy the suit premises. If the trustees in their absolute discretion refuse to give him the premises on rent, he cannot assert that he has a right to occupy.the premises. If that is so, then in my view the petitioner cannot complain that he is entitled to occupy because of his bana fide requirement. Such a view, which I am taking, is also taken by Bal J. in Nawab Sardar Meer v. R.R. Gibson (1967) 71 Bom. L.R. 357, and I respectfully agree with him. There are also certain useful observations by the Supreme Court in Mongibai Hariram v. State (1965) 68 Bom. L.R. 781 That was a case in which Bombay Land Requisition Aet was considered along with the provisions of the Bombay Rent Act. The Supreme Court in the context of the facts of that case was also considering Section 13(1)(g) of the Rent Act, with which we are now concerned. The relevant observation is as under (p, 787):

Section 13(1)(g) of the Rent Act entitles the landlord to recover possession of the premises if the Court is satisfied that the premises are reasonably and bona fide required by the landlord for occupation by himself or by any person for whose benefit the premises are held or where the landlord is a trustee of a public charitable trust that the premises are required for occupation for the purposes of the trust. It is open to doubt whether a trustee-landlord, as the plaintiffs-appellants are, can be said to require the premises for occupation for himself. The first part of Section 13(1)(g) appears to contemplate persons who receive or are entitled to receive rents on their own account and not to persons who receive or are entitled to receive rents as a trustee. A trustee-landlord can require the premises under Section 13(1)(g) for occupation for purposes of the trust. The trustee-landlord himself need not be a homeless person. No occasion arose in the ejectment suit for the Court to determine whether reasonable accommodation was available for the tenant and whether greater hardship would be caused to the landlord if no ejectment be ordered as the suit was uncontested.

8. Though the Supreme Court was not directly concerned with the construction of Section 13(1)(g) of the Rent Act, the above observations regarding the rights of trustees, I think, are very instructive,

9. I am, therefore, quite clear in my mind that the case of the petitioners will not come within the purview of the first part of Section 13(1)(g) of the Rent Act although Mr. Mistree insists that it does; their case also will not come within the purview of the second part of the section because the person for whose benefit the premises are held within the definition of Section 13(1)(g) of the Rent Act is the person who must have a right to occupy the suit premises, which right he can enforce ipso faoto.

10. Mr. Mistree after relying on certain observations about joint owners in Taherbhai v. Ambalal (1966) 7 Guj. L.R. 981 says that the requirement of the personal use in the case of joint owners may be only of one or some of them and need not necessarily be of all of them. But the trustees cannot be said to be the joint owners. One of the trustees also cannot be said to be one of the joint owners. The observations made in the context of different facts which obtained in Gujarat case therefore will not help Mr. Mistree: Mr. Mistree, then, relies upon the ruling of the Supreme Court in B.P. Mehta v. I.A. Sheth : [1964]8SCR1 . In that case the question was whether a decree in ejectment should be passed on the ground of personal requirement under Section 13(1)(g) of the Rent Act when it was proved that the landlord wanted to pull down the premises, and build another and occupy it. It is in the context of those facts that the Supreme Court observed that once a landlord establishes that he bona fide required the premises for his own occupation, he is entitled to recover possession from the tenant in view of the provisions of Sub-clause (g) of Section 13(1) irrespective of the fact whether he occupied the premises without making any alteration to it or after making alterations. So the question there, was different and having regard to those facts the Supreme Court has made the observations relied on by Mr. Mistree, but we are here concerned with the case of a trustee, who wants to occupy the premises although he has no right to occupy.

11. For the aforesaid reasons, therefore, the petition fails and is dismissed. Rule discharged with costs.


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