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Nawab Sardar Meer Sultan Saheb Alim Khan Saheb Vs. R.R. Gibson - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case Number Special Civil Application No. 714 of 1967
Judge
Reported in(1969)71BOMLR357
AppellantNawab Sardar Meer Sultan Saheb Alim Khan Saheb
RespondentR.R. Gibson
DispositionPetition dismissed
Excerpt:
.....house rates control act, 1947, means that the person in question must have a right to occupy the suit premises, which right the person can enforce if denied.; sharpe v. nicholls [1945] 1 k.b. 382, parker v. rosenberg [1947] 1 all e.r. 87 and frish ld. v. barclays bank ld. [1955] 2 q.b. 541 and k.v. shetty v. surendra, gajanan joshi civil revision application no. 647 of 1944, decided by sen j., on january 18, 1945 (unrep.) referred to. - - 2 and 3 are the daughters of the settlors, and the plaintiffs are trustees as well as beneficiaries under the trust. section 13(1) lays down certain exceptional circumstances, in which the protection is either totally lost or is subordinated to the need for the protection of the interest of the landlord. enough care has been taken by sub-section (5)..........as it went to the root of the matter viz. the plaintiffs' right to recover possession of the suit premises on the ground of personal requirement. although in the petition a ground had been taken that the plaintiffs were prejudiced on account of the defendants being allowed to urge this new point, no grievance was made before me by mr. adik, learned counsel for the plaintiffs, on that score. the short question that falls for determination in this petition, therefore, is whether the plaintiffs are entitled to recover possession of the suit premises on the ground that the same arc required reasonably and bona fide for occupation by plaintiff no. 3,8. the only provision of the rent act on which the plaintiffs can rely and have relied, is section 13(1)(g), which reads:13. (1)(g) that.....
Judgment:

Bal, J.

1. This is a petition by the plaintiffs-landlords whose suit for eviction against their tenant-defendant No. ] (opponent No. 1) and alleged sub-tenant-defendant No. 2 (opponent No. 2) was decreed by the trial Court but in an appeal filed by the defendants that decree was set aside and the suit was dismissed by the appeal Court.

2. The facts of the case, in so far as they are relevant, may be briefly stated as follows:

3. The premises in dispute are a flat and a garage in a building known as 'Belha Court' in the City of Bombay and are governed by the provisions of the Rent Act (Bombay Act LVII of 1947). The building belonged to one Nawab Sardar Haji Meer Musud Alamkhan Bahadur and his wife. By a settlement deed dated February 21, 1938, which is at exh. A in the proceedings, the Nawab and his wife created a trust in respect of this property for the benefit of themselves (during their life time), and their son and three daughters and constituted themselves and their son as the first trustees. The Nawab died in 1942 and in 1952 the surviving' trustees appointed two of the daughters as additional trustees. The total number of trustees thus became four. By a deed dated February 2, 1954, the widow of the Nawab relinquished her beneficial interest in favour of her son and daughter and thereafter remained only as a trustee.

4. Defendant No. 1 has been a tenant of the premises in dispute since 1938 and a part of the premises is now occupied by defendant No. 2.

5. The suit leading to the present petition was filed by the four trustees as plaintiffs-landlords. Eviction was sought on several grounds but in this petition we are concerned with only one out of them, viz. that the plaintiffs require the premises reasonably and bona fide for occupation by plaintiff No. 3, who is also a beneficiary under the trust. It may be mentioned here that pending the proceedings the widow of the Nawab who was plaintiff No. 1 died and the plaint was amended by re-numbering plaintiffs Nos. 2 to 4 as plaintiffs Nos. 1 to 3 respectively. Plaintiff No. 1 is the son and plaintiffs Nos. 2 and 3 are the daughters of the settlors, and the plaintiffs are trustees as well as beneficiaries under the Trust.

6. The trial Court held that the premises were required reasonably and bona fide by plaintiff No. 3 for occupation by herself and that greater hardship would be caused to her, if a decree for possession was refused to her. The claim for possession was accordingly decreed.

7. On appeal by the defendants, the Appeal 'Court confirmed the findings of the trial Court but held that plaintiff No, 3 was not a person for whose benefit the premises were held and the plaintiffs were, therefore, not entitled to recover possession on the ground of her requirement. There is no reference to this point in the judgment of the trial Court. The counsel for the defendants, however, stated before the Appeal Court that the point had been argued before the trial 'Court and the appeal Court allowed it to be argued as it went to the root of the matter viz. the plaintiffs' right to recover possession of the suit premises on the ground of personal requirement. Although in the petition a ground had been taken that the plaintiffs were prejudiced on account of the defendants being allowed to urge this new point, no grievance was made before me by Mr. Adik, learned Counsel for the plaintiffs, on that score. The short question that falls for determination in this petition, therefore, is whether the plaintiffs are entitled to recover possession of the suit premises on the ground that the same arc required reasonably and bona fide for occupation by plaintiff No. 3,

8. The only provision of the Rent Act on which the plaintiffs can rely and have relied, is Section 13(1)(g), which reads:

13. (1)(g) 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;...

9. There is no dispute that plaintiff No. 3 is a beneficiary under the trust created by the trust-deed, exh. A. What is contended is that that is not enough to bring her within the expression 'person for whose benefit the premises arc held.' In order to make her a person for whose benefit the premises are held she must further have a right as such beneficiary to occupy the premises, which she could enforce if denied. Apart from authority, the contention appears to be sound. The object of the Rent Act evidently is to afford protection to the tenants against eviction and against certain malpractices by landlords. The protection against eviction is embodied in Section 12, Sub-section (1) of which reads:

12. (1) A landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay, the amount of the standard rent and permitted increases, if any, and observes and performs the other conditions of the tenancy, in so far as they are consistent with the provisions of this Act.

Section 13(1) lays down certain exceptional circumstances, in which the protection is either totally lost or is subordinated to the need for the protection of the interest of the landlord. The various clauses of Sub-section (1) of Section 13 can be broadly classified into two classes, viz. those which take away the protection totally and those which subordinate it to the requirements of the landlord. Clauses (a) to (f), (k) and (l) fall in the first class. These clauses provide for cases where the tenant is either guilty of some illegal act or default or is placed in such a position that he no longer needs the protection of the Bent Act, Thus, for instance, Clause (a) takes away the protection given to the tenant by Section 12, if he has committed any act contrary to the provisions of Clause (o) of Section 108 of the Transfer of Property Act. Similarly, Clause (b) provides for a case where the tenant has without the landlord's consent given in writing, erected on the premises any permanent structure. These are instances of cases where the tenant is guilty of an illegal act or default. Clause (k) provides for a case where the premises have not been used without reasonable cause for the purposes for which they were let for a continuous period of six months immediately preceding the date of the suit, while Clause (I) provides for a ease where the tenant after coining into operation of the Rent Act has built, acquired vacant possession of or been allotted a suitable residence. These are instances of cases where the tenant is no longer in need of the protection afforded by the Rent Act,

10. Clauses (g), (h), (hh), (hhh), (i), (ii) and (iii) fall into the second class. These clauses contemplate cases where the need to provide for the landlord's requirements outweighs the tenant's need for protection, though the tenant is, not guilty of any illegal act or default. In cases governed by these clauses the protection is not absolutely lost. Enough care has been taken by Sub-section (5) to see that a decree is not passed unless the landlord satisfied certain conditions which would ensure that his need requires to be attended to first. Care has also been taken by enacting Sections 17 to 17C to provide for cases in which from the subsequent conduct of the landlord it becomes apparent that the representations made by him for obtaining the decree must not have been true.

11. Turning to the clause which is in point, viz. Clause (g) of Sub-section (1) of Section 13, the Legislature thought fit to subordinate the tenant's need to the requirements of the landlord because greater hardship would be caused to the landlord if effect was given to the protection afforded to the tenant. A landlord is ordinarily the full owner having the legal as well as the beneficial interest combined in him. Cases will, however, arise where the legal and beneficial interests in the premises vest in different persons. In such a case, it would be reasonable to suppose that the Legislature intended to protect the interests of the person in whom the beneficial interest vests. Clause (g) is really in three parts. First part applies to a landlord who is the full owner, second part applies to a case where the landlord is something like a trustee of a private trust and the third part provides for a case where the landlord is a trustee of a public trust. No difficulty arises in the application of the first part because if the landlord who is the full owner of the premises needs them and would be put to greater hardship if a decree is refused to him, his interests will certainly have to be preferred to those of the tenant. The position is, however, different in the other two cases. In those cases the landlord comes to Court to espouse the cause of one who is the beneficiary under the trust. The question that arises is whether the Legislature could have thought of providing-for the beneficiary in such cases irrespective of the nature of his beneficial interest under the trust. It is possible, as I will presently point out, that the beneficiary may have merely a right to share in the income and not a right to the occupation of the premises or a right in the premises themselves. Surely the Legislature could not have intended to deprive the tenant of the protection available to him under the Rent Act for giving to such a beneficiary what he is not entitled to under the trust. That this is so can be seen from the explanation to Section 13(2) also. Section 5(3) of the Kent Act defines 'landlord' as follows: ' 'landlord' means any person who is for the time being, receiving, or 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 or as a trustee, guardian, or receiver for any other person or who would so receive the rent or be entitled to receive the rent if the premises were let to a tenant; and includes any person not being a tenant who from time to time derives title under a landlord; and further includes in respect of his sub-tenant a tenant who has sub-let any premises; ' It has been held that even a Rent Collector falls within this definition of 'landlord'. It would be surprising if the Legislature had provided for recovery of possession by a Bent Collector because he falls within the definition of that term under the Rent Act, but the Legislature was conscious of this position and has, therefore, enacted the explanation to Section 13(2) which reads:

Explanation.-For the purposes of Clause (g) of Sub-section (1)-...

(b) the expression 'landlord' shall riot include a rent-farmer or rent-collector or estate-manager.Evidently the reason for excluding these persons from the definition of 'landlord' for the purposes of Clause (g) is that they have no right to occupy the premises. This would suggest that in enacting Clause (g) to Sub-section (1) of Section 13 the Legislature wanted to provide and. was providing for the cases of persons who are entitled to occupy the premises and who satisfy the other conditions laid down therein.

12. The point involved in this case does not appear to be covered by authority. Mr. Chitale, learned Counsel for the defendants, has however, invited my attention to certain English decisions which may be of some assistance in arriving at the correct conclusion. The cases relied on by him are: Sharpe v. Nicholls [1945] 1 K.B. 382, Parker v. Rosenberg [1947] 1 All E.R. 87 and Frish Ld. v. Barclays Bank Ld. [1955] 2 Q.B. 541

13. In Sharpe v. Nicholls the widow and nephew of the deceased landlord filed a suit as his personal representatives for eviction on the ground that the widow wanted the house which was in the occupation of a tenant, for her personal occupation. In the trial Court the case proceeded as if the widow alone was the plaintiff and the Judge of the county Court awarded her a decree on certain conditions. The tenant having appealed, the Appeal Court held that personal representatives were not 'landlords' within the meaning of Para, (h) of Schedule I to the Rent and Mortgage Interest Restrictions (Amendment) Act, 1933, and could not claim possession under that paragraph on behalf of one of their number who required possession for her own occupation without proof of her beneficial interest. There is no discussion in the case as to what the nature of the beneficial interest should be; but it appears evident that the beneficial interest that the plaintiff was expected to have in order to succeed was such as would entitle him or her to occupy the premises. The point had not been taken in the trial Court by the defendant but the Court of Appeal held that the decree passed by the county Court being illegal in other respects the case should be remanded and the defendant should be allowed to raise that point. The case was accordingly remanded.

14. In Parker v. Rosenberg the suit had been filed by three plaintiffs, two of whom were trustees under the will of one Emma Jessie Marsh and the third plaintiff was the sister of the testatrix as well as a beneficiary under the will. Following the decision in Sharpe v, Nicholls it was held that the trustees being personal representatives having no beneficial interest in the house, could not avail themselves of the provisions of the Act of 1933, which entitled a landlord to recover possession of a dwelling house if it was reasonably required by him for occupation as a residence for himself. It was also held that the third plaintiff, who was the beneficiary, not being party to the tenancy agreement nor entitled to the reversion of the property was not the 'landlord' within the meaning of Section 12(1)(g) of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920, which defines the term 'landlord' as follows:

The expression 'landlord' also includes in relation to any dwelling-house any person, other than the tenant, who is or would but for this Act be entitled to possession of the dwelling-house,...

She was, therefore, not entitled to sue for ejectment. This again, though not in very express terms, indicates that a person who is neither the full owner nor entitled to occupy the premises cannot recover possession from a tenant protected under the Kent Act.

15. In Frish Ld. v. Barclays Bank Ld., Frish Ld. who were the tenant of a house wherein they were carrying on a fried-fish business, were holding the premises on lease granted to them first in 1932. The lease was renewed from time to time and, after its last renewal, was to expire in September 1953. They had obtained an order under Part II of the Lease-hold Properties (Temporary Provisions) Act, 1951, for the grant of a new tenancy for one year from September 29, 1953. In the meantime the Landlord and Tenant Act, 1954, having come into force they again applied on October 11, 1954, for the grant to them of a new tenancy under the provisions of that Act. The premises in the occupation of the tenant had been settled on trust by the owner, one Nathan Parnes, by a trust for sale and to hold the proceeds of sale upon the trusts of a settlement of even date. By that settlement the landlords, i.e. the trustees, were directed to hold the income of the net proceeds of the sale upon discretionary trusts for Mr. Parnes, his children and issue. Under the provisions of the Landlord and Tenant Act, 1954, the landlords could object to the grant of new tenancy under certain circumstances. The grounds on which they could object were that on the termination of the current tenancy 'of the tenant, the landlord intended to occupy the holding for the purposes, or partly for the purposes, of a business to be carried on by him therein. That was the provision of Section 30(7), Clause (g) of that Act. By Section 1, 41(2) it was provided that where the landlord's interest was held on trust the references in para, (g) of Sub-section (i) of Section 30 of that Act were to be construed as including references to the beneficiaries under the trust or any of them. On receiving' notice of the application made by the tenants the trustees objected to the granting of new tenancy on the ground that Mr. Parnes, as beneficiary under the trusts affecting the premises, intended on the determination of the tenant's tenancy to occupy the premises himself for the purpose of a business to be carried on by him. Prior to the launching of the objection Mr. Parnes had made a proposal to the trustees for taking- the premises on lease at a much higher rate of rent than the tenants were paying. He had also undertaken to compensate the trustees for such compensation as they may have to pay to the tenants. On these facts it was held that the expression 'beneficiaries under the trust or any of them' in the context of the provisions of the Act must be limited to persons entitled to occupy by virtue of their interest as beneficiaries. It was further held that only those beneficiaries whose interest is such as to give them the right as against the trustees, to occupy the property, or is such that the 'trustees may properly within the terms of their trust let them as beneficiaries into possession, come within that expression.

16. These decisions and particularly the last one wherein practically similar provisions had to be interpreted do support, the view which I am taking in this ease.

17. Mr. Adik, learned Counsel for the plaintiffs, invited my attention to an un-reported judgment of this High Court in K.V. Shetty v. Surendra, Gajanan Joshi Civil Revision Application No. 647 of 1944, decided by Sen J., on January 18, 1945 (Unrep.) That was a case under the Bombay Kent Restriction Act, 1939, and the provision corresponding to Section 13 of the present Rent Act was Section 11 of the former Act. Even under that Act a landlord was entitled to recover possession if the premises were reasonably and bona fide required by the landlord for his own occupation or for the occupation of: any person for whose benefit the promises were held. The relevant provision was thus quite similar to d. (0) of Section 13(7) of the present Act. The plaintiff in that case had filed the suit for possession on the ground that the premises were required for occupation by his mother. The facts are not fully stated in the judgment but it appears that there was a partition between the plaintiff and his brothers and in that partition no provision had been made for the maintenance of their mother, although admittedly she was entitled to maintenance. The plaintiff had succeeded in the Courts below and the Revision Application was filed by the tenant. The contention urged on his behalf seems to have been that the mother was not a person for whose benefit the premises were held. That was negatived on the ground that the widowed mother was entitled to maintenance under the Hindu Law and maintenance necessarily included a right of residence. This case cannot, therefore, be of any help to Mr. Adik, it being held that the mother was entitled to residence and hence entitled to occupy the suit premises.

18. In my view on a correct reading of the expression 'person for whose benefit the premises are held' the only meaning that can be assigned to it would be that the person in question must have a right to occupy the suit premises, which right the person can enforce if denied. It will, therefore, have to be seen whether plaintiff No. 3 in the present case has under the trust-deed, exh. A, a right to occupy the suit premises.

19. The deed, exh. A, is styled as Wakf-alal-Aulad. The whole tenor of it, however, shows that it is a deed of trust and purports to convey the property to the trustees. It is not necessary to go into the validity of the deed because that question has not been raised by the defendants. The substance of the provisions of this trust-deed is that the trustees are to hold the property and let it out to tenants. Out of the income 17 per cent, is to be carried to a sort of reserve fund for the maintenance and repairs of the building and the balance of the income is to be paid to the Settlors during their life time. After the death of the Settlors, 3 per cent, of the balance of the income is to be used for the maintenance and upkeep of the Surat Islam Yatimkhana so long as that institution exists and. on its ceasing to exist it is to be used for the other charities mentioned in the deed. The remaining balance of the income is to be divided into five equal parts, two of which are to be given to the son and one to each of the three daughters. (We are not concerned in this case with the provisions which are to come into operation after, the life-time of the son and the daughters.) Then there is an important provision to the effect that one out of the flats along with the garage attached to it could be used by the Managing Trustee free of rent for the better management of the trust. This provision cannot, however, be of any help to the plaintiffs because admittedly flat No. 10 in the building has been already occupied by plaintiff No. 1, who is the Managing Trustee at present.

20. It is not the case of Mr. Adik that exh. A expressly confers the right of occupation on plaintiff No. 3. 'What he contends is that there is no prohibition against occupation by any of the plaintiffs and, therefore, impliedly it must be assumed that plaintiff No. 3 or for the matter of that any of the beneficiaries, had such a right. In support of this contention of his, Mr. Adik relied on an unreported judgment of this High Court in Babulal K. Shah v. Panachand Kasturchand Zaveri (1946) Civil Revision Application No. 88 of 1940, decided by Gajendragadkar J., on October 28, 1946 (Unrep.). In that case the trustees had filed a suit against the tenant for recovery of possession of the premises in his occupation on the ground that the son of the author of the trust, who was the beneficiary under the trust, wanted them for his own personal residence. The suit had been decreed by the Courts below and the tenant had, therefore, come in revision to this High Court. The revision application came to be dismissed for the reason, that in that case it was clearly the duty of the executors to provide a residence for the beneficiary. The full facts of the case are not stated in the judgment and it is not clear what the provisions of the trust were. The conclusion, however, indicates that in all probability the son of the author of the trust was entitled to occupy the premises under those provisions. That decision cannot, therefore, be of any help to the plaintiffs in the present case.

21. The decision in Atmaram v. Narayan : (1921)23BOMLR972 is more in point. In that case the suit was for recovery of premises belonging to a community and let out to a tenant. The suit had been brought by the President of the community who was authorised by the resolution of the community to file it and the ground urged for ejectment was that the premises were required for letting out to the members of the community who were beneficially interested therein. The case was governed by the Bombay Rent (War Restrictions) Act, 1918 (Bombay Act II of 1918). Section 9(2) of that Act contained a provision in practically the same terms as Clause (g) of Sub-section (1) of Section 13 of the present Rent Act. The suit was decreed by the trial Court. When the matter came to the High Court, two objections were urged on behalf of the tenant; one related to the frame of the suit with which we are not concerned but the other was that the members of the community to whom the plaintiff proposed to let out the premises were not persons for whose benefit the premises were held. This objection was upheld by a Division Bench of this Court and while dismissing the application it was observed:

But the fact remains that it cannot be said that the community, assuming the property belongs to them, required the premises in suit for their own purposes reasonably and bona fide, when the intention was to turn out the existing tenant and put in one of the community...

It is not, therefore, possible to accept the contention of Mr. Adik that because there is no prohibition it must be assumed that plaintiff No. 3 has a right to occupy the suit premises as a beneficiary under the trust.

22. Mr. Adik faintly argued that even as a trustee plaintiff No. 3 would he entitled to occupy the suit premises. No such argument was urged before the Courts below and the same is prima facie untenable. It was never the case of the plaintiffs that plaintiff No. 3 wanted to occupy the premises in her capacity as a trustee. In the notice given to the tenant for the termination of his tenancy it was stated at the end:

Please further note that the premises are required for one of the beneficiary for personal use and occupation bona fide and reasonably.

Again in the plaint in para. 5 it was stated:

The plaintiff No. 4 (who subsequently became plaintiff No. 8) is a beneficiary under the said Trust Deed dated the 21st February 1938. The plaintiffs say that the said premises are reasonably and bona fide required by the plaintiffs for occupation of the plaintiff No. 4 and her family members and for purpose of their residence.

As already pointed out the trust-deed permits only the Managing Trustee to occupy one of the flats for better management of the trust and one such flat has already been occupied by the present Managing Trustee, viz. plaintiff No. 1, Again in her deposition before the trial Court, plaintiff No. 3 stated in cross-examination :

If I occupy the flat in suit, I will have to pay the rent.

That clearly shows that the plaintiffs wanted the premises for being' let out to plaintiff No. 3. That would not be occupation by plaintiff No. 3 either in her capacity as a trustee or as a beneficiary. Even otherwise, it would be illegal for a trustee unless authorised by the trust-deed to use the trust property for his or her own purpose. No claim for recovery of possession can, therefore, be founded on the plea that one of the trustees in his or her capacity as a trustee wants to occupy the suit premises.

23. In view of the conclusion I have arrived at on the merits of the case, it is not necessary for me to deal with the other points argued by Mr. Chitale, viz. that there is no error apparent on the face of the record and the petition under Article 227 of the Constitution is, therefore, not maintainable; that the trustees are merely estate-managers and, therefore, excluded from the definition of the term 'landlord' for the purposes of Clause (g) of Sub-section (1) of Section l3 by the explanation to Section 13(2), and lastly that the findings recorded by the Courts below regarding reasonable and bona fide requirement of plaintiff No. 3 and regarding comparative hardship are vitiated because the Courts below have not applied their minds to the evidence on record.

24. The result of the above discussion is, that the petition fails and the rule is discharged with costs.


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