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Rajaram Brindavan Upadhyaya Vs. Ramraj Raghunath Upadhyaya - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSecond Appeal nNo. 452 of 1977
Judge
Reported in(1978)80BOMLR12; 1977MhLJ792
AppellantRajaram Brindavan Upadhyaya
RespondentRamraj Raghunath Upadhyaya
DispositionAppeal dismissed
Excerpt:
bombay rents, hotel and lodging house rates control act (bom. lvii of 1947), sections 5(11)(c), 28 and 29a - whether the provisions of section 5(11)(c) of the act are meant to supersede the right of inheritance to the tenancy vesting in. the heirs on the death of the tenant, under the personal law of the party--whether the suit fell within the purview of section 28 of the act.;b, a contractual tenant, of the suit premises died in 1961, the plaintiffs, who were the sons and grandson of b, but were found not to be residing with b at the time of his death, claimed to be declared tenants of the premises on the ground that they had acquired the tenancy rights under their personal law of inheritance. defendant no. 1, b's, nephew, was found to be residing with b at the time of the latter's.....sapre, j.1. the question of law that arises in this second appeal is whether the provisions of section 5(11)(c) of the bombay rents, hotel and lodging house rates control act, 1947 (briefly, 'the rent act') are meant to supersede the right of inheritance to the tenancy vesting in the heirs on the death of the tenant, under the personal law of the party. the present proceedings were filed as special civil application under article 227 of the constitution of india before a single judge. the learned single judge referred it to a division bench for decision not only because the point of law raised in it is of considerable importance but also because, in his view, there is a conflict between two single judge decisions of this court on the point. in minoo j. patel v. jamshedji b. aga (1966).....
Judgment:

Sapre, J.

1. The question of law that arises in this second appeal is whether the provisions of Section 5(11)(c) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (briefly, 'the Rent Act') are meant to supersede the right of inheritance to the tenancy vesting in the heirs on the death of the tenant, under the personal law of the party. The present proceedings were filed as Special Civil Application under Article 227 of the Constitution of India before a single Judge. The learned single Judge referred it to a division Bench for decision not only because the point of law raised in it is of considerable importance but also because, in his view, there is a conflict between two single Judge decisions of this Court on the point. In Minoo J. Patel v. Jamshedji B. Aga (1966) Civil Revision Application No. 1556 of 1963 decided by K.K. Desai J., as he then was, the view taken is that the provisions of Section 5(11)(c) of the Rent Act are not meant to supersede the right of inheritance to the tenancy vesting in the heirs on the death of the tenant, under the personal law of the party. According to the learned single Judge, a contrary view has been taken by Bhasme J. in Gool Rustomji v. Jal Rustomji : AIR1972Bom113 . For the reasons which will be clear hereafter, we have allowed the Special Civil Application to be converted into a Second Appeal.

2. The question of law mentioned above arises on the following facts:

One Brindavan Shivpal Upadhyaya was the tenant of the suit room bearing No. 16 in Mansukhlal Tarachandji's Chawl situate at Mouje Navghar, Taluka Bassein, District Thane. Initially, the rent was Rs. 10 per month. Later it was raised to Rs. 15 per month. Brindavan died in June 1961. The appellants are the plaintiffs and respondents Nos. 1 to 3 are the defendants in the suit filed in the Court of the Civil Judge, Junior Division, Bassein. Plaintiff No. 1 Rajaram, plaintiff No. 2 Bansraj and plaintiff No. 3 Rajkishore are the sons of Brindavan. Plaintiff No. 4 Girijashankar is the son of plaintiff No. 1 Rajaram. Defendant No. 1 Ramraj is the nephew of Brindavan. Defendant No. 2 Ajit Chandulal Pratap was the original landlord who sold the property in which the room in suit is situate to defendant No. 3 Mansukhlal Tarachand, who is at present the landlord of the suit room.

3. Defendant No. 1 Ramraj was staying with the deceased Brindavan in the suit room at the time of the latter's death. The suit of the plaintiffs was for a declaration that they are the tenants of the suit room because they are the heirs of the original tenant Brindavan. Initially, they had not claimed possession but a mere injunction as a consequential relief. But, subsequently, they amended the plaint to claim possession of the suit room from defendant No. 1. Defendants Nos. 2 and 3 were joined as parties to the suit so that, as the previous and the present landlords, the decree that might be passed in the suit should be binding on them. The plaintiffs contended that defendant No. 1 had no right to stay in the suit room because they alone as the heirs of the deceased Brindavan were entitled to inherit the tenancy right. They also had made an allegation that not only defendant No. 1 but they also were in possession of the suit room at the time of the death of Brindavan.

4. Defendant No. 1 did not say anything in his written statement about the relationship of the plaintiffs with the deceased Brindavan and did not deny that they were the heirs of Brindavan. He concentrated on the question of possession and contended that he alone was in possession of the suit room at the time of the death of Brindavan and the plaintiffs were not in possession. He, therefore, contended that having regard to the definition of 'tenant' in Section 5(11)(c) of the Rent Act, he alone was the tenant of the suit room.

5. On the evidence adduced before him, the learned trial Judge found that only defendant No. 1 was in possession of the suit room at the time of the death of Brindavan and the plaintiffs were not in possession. He, therefore, held that so far as the definition of 'tenant' in Section 5(11)(c) of the Rent Act was concerned, defendant No. 1 satisfied that definition because he was a member of the family of Brindavan and was also residing with him at the time of the latter's death. But the learned Judge held that the plaintiffs were also entitled to succeed to the right of tenancy which devolved on the death of Brindavan on his heirs. He, therefore, gave a declaration that the plaintiffs are the tenants of the suit room along with defendant No. 1 and they have a right to stay in the premises along with defendant No. 1 and restrained defendant No. 1 from obstructing the plaintiffs from residing in the suit room. He also directed defendant No. 3 to pass receipts of payment of rent in favour of the plaintiffs and defendant No. 1 both and to treat them both as tenants.

6. The plaintiffs and defendant No. 1 both were aggrieved by the decree of the trial Court. The plaintiffs filed an appeal in the District Court, Thane, contending that they alone should have been declared as tenants of the suit room and should have been given exclusive possession thereof. They contended that defendant No. 1 had no right to stay in the suit room because he was not a tenant. The plaintiffs had succeeded to the right of tenancy of the deceased Brindavan by inheritance to the exclusion of defendant No. 1 and, therefore, defendant No. 1 could have no right of tenancy in the suit room. Defendant No. 1, on the other hand, filed cross-objections contending that the suit of the plaintiffs ought to have been dismissed by the trial Court because of the finding recorded by that Court that the plaintiffs were not in possession of the suit room on the date of the death of Brindavan. They did not thus satisfy one of the requirements of Section 5(11)(c) of the Rent Act and could not become tenants of the suit room on the death of Brindavan.

7. The learned Joint Judge, Thane, who heard the appeal, confirmed the finding of the trial Court that the plaintiffs were not residing in the suit room at the time of the death of Brindavan. There was no dispute that defendant No. 1 was residing there. The learned Joint Judge, therefore, upheld the contention of defendant No. 1 that the plaintiffs did not satisfy one of the requirements of Section 5(11)(c) of the Rent Act and could not become tenants. On the other hand, defendant No. 1 satisfied both the requirements and, therefore, he alone could become the tenant of the suit room on the death of Brindavan. In regard to the claim of the plaintiffs that they had acquired tenancy rights in the suit room under their personal law of inheritance, the learned Joint Judge overruled the contention and observed that they could acquire such rights only if there was no tenant left in the field. According to him, the tenant who falls within the definition of 'tenant' given in Section 5(11)(c) of the Rent Act would have preference over the legal heirs of the deceased tenant. In other words, so long as there is some person who is covered by the definition of 'tenant' as mentioned above, there could be no question of the heirs of the tenant acquiring any tenancy rights in the premises in preference to that person. In the result, the learned Joint Judge dismissed the appeal filed by the plaintiffs and allowed the cross-objections filed by defendant No. 1. He set aside the decree passed by the trial Court and dismissed the plaintiffs' suit in its entirety.

8. The plaintiffs thereafter filed a Special Civil Application which a learned single Judge of this Court has referred to a division Bench as mentioned above. It appears that the point canvassed before him on behalf of the plaintiffs was that the powers under Section 5(11)(c) of the Rent Act can be exercised by the Court only in respect of a statutory tenancy and not in respect of a contractual tenancy which devolves upon the heirs of a tenant under the general law. The present was a case of a contractual tenancy. The learned single Judge thought that not only the point canvassed before him was of considerable importance but two learned single Judges of this Court in two different matters had taken a diverse view on the point.

9. Although Mr. Gole seems to have made out a point before the learned single Judge that the powers under Section 5(11)(c) of the Rent Act can be exercised by the Court only in respect of a statutory tenancy and not in respect of a contractual tenancy, he has made it clear before us that that is not the main point that he would like to canvass before us. The plaintiffs are not claiming any declaration that they are tenants under Section 5(11)(c) of the Rent Act. They have filed a substantive suit on title, although that title is not as owners but as tenants. According to them, Brindavan was the tenant of the suit room and at the time of his death that tenancy had not come to an end. It had, therefore, devolved on them by inheritance. Defendant No. 1 may have been residing with Brindavan at the time of the latter's death and he may have also been a member of his family within the meaning of Section 5(11)(c) of the Rent Act. He may have thus satisfied the requirements of Section 5(11)(c) of the Rent Act and could become a tenant under the provisions of that section. But when the plaintiffs file an independent suit based on their title and succeed in showing that they are entitled to inherit the tenancy of Brindavan as his heirs, that supersedes the claim of defendant No. 1 as tenant under Section 5(11)(c) of the Rent Act and not vice versa. The question, therefore, whether, the powers under Section 5(11)(c) of the Rent Act can be exercised by the Court only in respect of a statutory tenancy and not in respect of a contractual tenancy does not really arise in this case.

10. The point that arises is the one we have mentioned in the beginning of this judgment. But if we are called upon to record our views on the point, which finds place in the referring judgment of the learned single Judge, namely, whether the powers under Section 5(11)(c) of the Rent Act can be exercised by the Court only in respect of a statutory tenancy and not in respect of a contractual tenancy, we see no reason why the powers could not be used in respect of a contractual tenancy. There is nothing in the language of Section 5 or otherwise in the Rent Act to indicate that the provisions in Section 5(11)(c) will apply only in respect of a statutory tenancy. It is also not that the occasion to invoke the provisions of Section 5(11)(c) can arise only in the case of statutory tenancy. A contingency can arise even in the case of a contractual tenancy to invoke the provisions of the section. Take for example the case of a contractual tenant who dies before the tenancy comes to an end. Suppose a distant relative of the tenant is residing with him at the time of his death. He may not be quite sure of his position visa-vis the premises and does not know whether he would be acceptable to the landlord as tenant. He may even suspect the landlord to play some mischief in order to oust him from the premises. In order to make his position safe and clear, he applies to the Court under the Rent Act for a declaration that he is a tenant within the meaning of Section 5(11)(c) of the Rent Act. Can the Court refuse to go into that question on the ground that the tenancy is contractual and has not been terminated? We do not think that the Court can refuse to go into that question. A contingency can thus arise even in the case of a contractual tenancy for a Court to invoke the provisions of Section 5(11)(c) of the Rent Act. There is nothing in the language of Section 5 or in the other provisions of the Rent Act to show that the provisions in Section 5(11)(c) will be applicable only in the case of a statutory tenancy. If we are, therefore, required to express our opinion on the question mentioned by the learned single Judge in his referring judgment, we hold that the powers under Section 5(11)(c) can be exercised by the Court not only in respect of a statutory tenancy but also in respect of a contractual tenancy. However, that question does not fall for our consideration in the present case.

11. Turning to the merits, the main point canvassed by Mr. Gole is that he cannot go behind the finding recorded by the two Courts below that at the time of the death of Brindavan the plaintiffs were not residing in the suit room and it was only defendant No. 1 who was residing there. For a person to be declared a tenant under Section 5(11)(c) of the Rent Act, he must be a member of the tenant's family and he must be residing with him at the time of his death. As the nephew of the deceased Brindavan, defendant No. 1 could also be regarded as a member of his family for the purposes of Section 5(11)(c). Defendant No. 1 thus satisfied both the requirements of Section 5(11)(c) because he was a member of Brindavan's family and was also residing with Brindavan at the time of his death. On the other hand, the plaintiffs did not satisfy one of the requirements of Section 5(11)(c), inasmuch as the two Courts below had found that they were not residing with Brindavan at the time of his death. Defendant No. 1 could thus alone be regarded as tenant within the meaning of Section 5(11)(c) of the Rent Act. But that declaration was only for the purposes of the Rent Act. If the plaintiffs were simply to apply to the Court under the Rent Act that as legal heirs of the tenant they had a preferential claim to be declared as tenants, they would, of course, not succeed. But they are not basing their claim of tenancy under the provisions of Section 5(11)(c) of the Rent Act. Their suit was on title, although that title was not of ownership but was of tenancy. Their case was that Brindavan was the tenant of the suit room. The right of tenancy in Brindavan was a heritable right and the heirs could inherit it. The plaintiffs as the heirs of Brindavan had thus inherited the right of tenancy. Their was a superior right on title as against the limited right of defendant No. 1, which accrued to him under Section 5(11)(c) of the Rent Act. The plaintiffs alone are, therefore, entitled to be declared tenants, of the suit room and are alone entitled to the possession of the said room to the exclusion of defendant No. 1.

12. In our view, Mr. Gole is right in his submission that the provisions of Section 5(11)(c) of the Rent Act are not meant to supersede the right of inheritance to the tenancy vesting in the heirs on the death of the tenant, under the personal law of the party. In paragraph 2 of the plaint, the plaintiffs have alleged that Brindavan was the father of plaintiffs Nos. 1 to 3 and the grand-father of plaintiff No. 4. In paragraph 3 of the plaint, they have alleged that after the death of Brindavan, the plaintiffs have become the tenants as, his heirs and legal representatives. Defendant No. 1 in his written statement did not dispute either the relationship of the plaintiff with Brindavan or the claim that they are the heirs and legal representatives of Brindavan. On the rules of pleadings, therefore, defendant No. 1 must be deemed to have admitted both these allegations of facts. The plaintiffs' suit is for a declaration that they alone are the tenants of the suit room and defendant No. 1 has no right, title or interest therein, and for possession to the exclusion of defendant No. 1. The suit is de hors the Rent Act on the basis of title and the dispute is between the superior and the inferior claim as tenant.

13. Section 29A of the Rent Act gives a clear indication that the finding given by a Court under the Rent Act that a certain person is a tenant within the meaning of Section 5(11)(c) is not meant to supersede the right of inheritance to the tenancy vesting in the heirs on the death of the tenant, under the personal law of the party. That section provides:

29A. Nothing contained in Section 28 or 29 shall be deemed to bar a party to a suit, proceeding or appeal mentioned therein in which a question of title to premises arises and is determined, from suing in a competent court to establish his title to such premises.

In the instant case, for example, let us suppose that some proceedings were taken in the special Court under the Rent Act on the death of Brindavan to decide who was the tenant within the meaning of Section 5(11)(c) of the Rent Act and in those proceedings, the finding was given that defendant No. 1 was the tenant and not the plaintiffs. On the plain language of Section 29A, the plaintiffs were not debarred from suing in a competent Court to establish their title to the suit room on the ground that, as the heirs of the original tenant, they alone were entitled to inherit the right of tenancy in the suit room. If there were no bar to the plaintiffs filing such a suit, it is clear that on their succeeding in establishing their title, the declaration given in favour of defendant No. 1 under Section 5(11)(c) will cease to operate and the plaintiffs alone will have to be regarded the tenants. In other words, the provisions of Section 5(11)(c) of the Rent Act are not meant to supersede the right of inheritance to the tenancy vesting in the heirs on the death of the tenant, under the personal law of the party. On the other hand, the provisions of Section 5(11)(c) must yield to the superior right of inheritance to the tenancy vesting in the heirs on the death of the tenant under the personal law of the party.

14. The above question arose for decision before our learned brother Tulzapurkar J. in Mehroo S. Cooper v. Dina J. Section Fanibanda (1964) First Appeal No. 164 of 1963. In that case, the plaintiff and defendant No. 1 were sisters being daughters of one Jamshedji Hirjibhoy Shroff who died intestate on December 5, 1953. Jamshedji was a tenant of Flat No. 7 on the third floor of a certain building in Bombay. The flat consisted of a drawing room, dining room and three bedrooms. According to the plaintiff, one of the bedrooms was sub-let by Jamshedji to the plaintiff's husband. Out of the two remaining bedrooms, one was in the occupation of Jamshedji, while the other was in the occupation of defendant No. 1. The plaintiff and defendant No. 1 were the only heirs of Jamshedji. Defendant No. 1 with the consent and concurrence of the plaintiff applied for and obtained from the High Court letters of administration to the estate of the deceased. In the schedule of assets annexed to the petition for letters of administration, defendant No. 1 had shown the tenancy rights in respect of flat No. 7 as being part of the estate of the deceased. It appears that defendant No. 1 filed an application under Section 5(11)(c) of the Rent Act for being declared a tenant in respect of the flat. The trial Court held that both the plaintiff and defendant No. 1 were tenants. But, on appeal preferred by defendant No. 1, it was held that because defendant No. 1 and not the plaintiff was residing with the deceased at the time of the latter's death, it was only defendant No. 1 who could be a tenant under Section 5(11)(c). The plaintiff preferred a revisional application to the High Court, but that was dismissed. The finding given by the Rent Court in that case thus was that defendant No. 1 was the tenant of the flat in question within the meaning of Section 5(11)(c) of the Rent Act. The plaintiff, therefore, filed a declaratory suit in the City Civil Court out of which the appeal before Tulzapurkar J. arose. In that suit, the plaintiff alleged that she and defendant No. 1 were both the heirs of the deceased and were as such entitled to half share in the tenancy rights of the deceased in flat No. 7. She, therefore sought a declaration that she was the joint tenant along with defendant No. 1, and prayed for an injunction restraining defendant No. 1 from interfering with the plaintiff's right of using the said flat.

15. Amongst the several defences raised by defendant No. 1 in the suit, one was that in view of the decision of the Court under the Rent Act that defendant No. 1 and not the plaintiff was the tenant of the flat, the plaintiff was, precluded from claiming any tenancy in respect of the flat as an heir of the deceased Jamshedji. The trial Court having overruled the defence and having passed a decree in favour of the plaintiff, defendant No. 1 preferred the appeal in question in the High Court. Before Tulzapurkar J. a submission was made on behalf of defendant No. 1 that once a declaration had been made in favour of defendant No. 1 by the Court of Small Causes under Section 5(11)(c) of the Rent Act to the effect that defendant No. 1 was the tenant of the suit flat, there could be no devolution of the tenancy rights upon the plaintiff under the general law. It was also contended that even if there was a devolution of the tenancy rights upon the plaintiff, such a devolution of interests could not include the right to physical possession. In the alternative, it was contended that the rights and obligations under the general law, which devolved upon the plaintiff, were suspended by reason of the rights created under the Rent Act.

16. Tulzapurkar J. overruled all the submissions made on behalf of defendant No. 1. He held that simply because defendant No. 1 had been declared to be a tenant of the suit flat under Section 5(11)(c) of the Rent Act, the rights of the plaintiff which she claimed under the general law of inheritance were not abrogated. The reasoning adopted by Tulzapurkar J. was a follows:.It cannot be forgotten that the Rent Act is a piece of legislation which affords protection to tenants and Section 5(11)(c) in particular enacts that protection would be afforded to any member of the deceased tenant's family against eviction, at the hands of the landlords, if such member of the deceased tenant's family was residing with the deceased tenant at the time of the death of such tenant. It is very clear and it was not disputed by Mr. Chagla before me that the Rent Act did not deal with the questions of inheritance or heirship to the estate left by a deceased and since the leasehold interest or tenancy rights are heritable property, the heirs of the deceased tenant would automatically become entitled to that heritable asset left by the deceased tenant under the general law of inheritance and it is difficult to accept Mr. Chagla's contention that simply because there is a special definition of 'tenant' given in Section 5(11)(c) of the Act the rights of the heirs under the law of inheritance are abrogated. In the absence of any express provision to that effect, it is difficult to hold that because the 1st defendant was declared to be a tenant within the meaning of Section 5(11)(c) of the Rent Act to the suit flat, the rights of the plaintiff, who claimed the said tenancy rights as an heir of the deceased tenant under the general law of inheritance stand abrogated or that because of such special definition of 'tenant' and the declaration that was granted in favour of the 1st defendant there could in law be no devolution of tenancy rights upon the plaintiff as contended by Mr. Chagla.

After citing some of the trial Court's observations with approval, Tulzapurkar J. came to the conclusion:.it is quite clear that in the present suit the plaintiff is seeking to establish her title to the tenancy under the General Law of inheritance and the title under the General Law of inheritance remains unaffected by any of the provisions of the Rent Act. In my view, the learned Judge was right in the view which he has taken that the decision which was given by the Small Causes Court by its Appellate Bench in Appeal No. 199 of 1957 does not debar the plaintiff from filing the present suit.

Tulzapurkar J. also overruled the other two submissions made on behalf of defendant No. 1 that the devolution of interest upon the plaintiff would not include the right to physical possession and that the rights and obligations under the general law should be held to have been suspended so long as there was a decision of the Small Cause Court in favour of defendant No. 1 that he was a tenant under Section 5(11)(c) of the Rent Act. We entirely agree with the reasoning and conclusion of Tulzapurkar J. in the abovementioned decision.

17. In Minoo J. Patel v. Jamshedji B. Aga, the facts were these. The petitioner filed an application under the Rent Act against the landlords for a declaration under Section 5(11)(c) of the Rent Act that he was a tenant in place of his deceased mother. The petitioner's mother Aimai J. Patel and one Karwa as co-tenants occupied a block on the first floor of an immovable property belonging to the landlords. The petitioner was residing in that block along with his mother. The other occupants of the block on the date of the death of Aimai were the co-tenant Karwa and his wife, who was the sister of the petitioner. The petitioner claimed that he was a member of the tenant Aimai's family residing with, her at the time of her death. He was accordingly a tenant within the meaning of Section 5(11)(c) of the Rent Act. It was held in that case that the provisions of Section 5(11)(c) were not attracted. Aimai was not the sole tenant of the premises but only a co-tenant of Karwa. Contractual tenancy in favour of Aimai and Karwa had never come to an end. On the death of Aimai, her rights as co-tenant of Karwa would survive to her heirs. That is because the tenancy is heritable estate. The question which must arise in connection with any one being declared a tenant in the right of Aimai must deal with the question about the rights of Aimai's heirs to the tenancy. Those rights could be established by the petitioner by resorting not to summary proceedings but by filing a substantive suit on title.

In that context K.K. Desai J. observed:.It would be extremely difficult to hold that by reason of the provisions in Section 5(11)(c) rights of heirs of a deceased contractual tenant were sought to be extinguished. In spite of the provisions in Section 5(11)(c), it would require to be held that the rights of heirs of a deceased tenant must be preferred to the rights of mere members of the tenant's family as referred to in Section 5(11)(c). It is not possible that mere members of a tenant's family would be declared to be tenants under that section so as to defeat the rights of heirs of a deceased tenant in the contractual tenancy.

The view taken in the above decision is also thus to the effect that the provisions of Section 5(11)(c) of the Rent Act are not meant to supersede the rights of inheritance to the tenancy vesting in the heirs on the death of the tenant, under the personal law of the party.

18. In Gool Rustomji v. Jal Rustomji, the above question never arose and was not decided. There is, therefore, no conflict of views between Bhasme J. on the one hand and K.K. Desai J. and Tulzapurkar J. on the other. In that case, the petitioner and respondent No. 1 were sister and brother being daughter and son of one Rustomji Lala. Rustomji Lala was the tenant of the flat in suit. Under a will made by Rustomji, he gave the suit flat to the petitioner. It appears that the petitioner and respondent No. 1 were both residing with Rustomji at the time of his death. The petitioner made an application in the Court of Small Causes against the landlord for a declaration that she alone was the tenant. An ex parte declaration in her favour was made. Subsequently, respondent No. 1 made an application, alleging that he was residing with the deceased tenant at the time of his death and he was also a member of the tenant's family and, therefore, he was entitled to a declaration under Section 5(11)(c) of the Rent Act that he was the tenant in respect of the flat. The petitioner objected to that application and mainly contended that under the will, she alone had the right to be declared a tenant in respect of the suit flat. She also contended that respondent No. 1 was not residing with the deceased tenant as a member of the family. The trial Court recorded a finding that respondent No. 1 was residing with the deceased tenant as a member of his family. It was true that the deceased tenant had made a will and bequeathed the contractual tenancy right to the petitioner. The trial Court found both the petitioner and respondent No. 1 to be equally qualified to become tenants under Section 5(11)(c) of the Rent Act. Accordingly, it made a declaration to that effect. The petitioner, feeling aggrieved by that decision, approached the division Bench of the Court of Small Causes by filing a revisional application. But that was summarily rejected. The petitioner thereafter approached the High Court.

19. The two main points canvassed before Bhasme J. on behalf of the petitioner were that only one person could be declared a tenant under Section 5(11)(c) and, therefore, the order made by the Court of Small Causes that both the petitioner and respondent No. 1 were tenants was bad. Secondly, where both the petitioner and respondent No. 1 satisfied the two requirements of Section 5(11)(c), in choosing who should be declared a tenant-since only one person could be so declared-the fact that under the will of the deceased tenant the petitioner alone was entitled to succeed to the right of tenancy should have been taken into account. The petitioner had not filed a suit on title that under the will she alone was entitled to the tenancy rights in the fiat, Bhasme J. expressed a view that it is not permissible for the Court under Section 5(11)(c) to declare more than one person a tenant and, to that extent, the order of the Small Cause Court was not correct since both the petitioner and respondent No. 1 were declared tenants. On the question, when two persons fulfilled the qualifications to be declared tenants! under Section 5(11)(c) of the Rent Act, how the choice should be made to declare one of them a tenant under the said provision, Bhasme J. observed as follows (p. 605):.The Court will have to take into account several relevant factors including the wishes of the deceased tenant. In all such cases the Court should have regard to the paramount collective interest of the family of the deceased tenant. The Court should make the choice in such a way that the person selected to be the tenant is likely to act in the interest of the family, like the Karta of a Hindu joint family or the paterfamilias. If the Court has in mind such considerations then it is likely that the Court will select the right person for looking after the collective interest of the tenant's family after his death.

But Bhasme J. did not indicate on whom the choice should fall, on the facts and circumstances of the case, to be declared a tenant under Section 5(11)(c) and that was for the reason that although he held that it was not proper for the Court of Small Causes to declare two persons tenants under Section 5(11)(c), he did not propose to interfere with the order for these reasons (p. 605):.The petitioner is a younger sister of respondent No. 1. They were residing together under the same roof for several years. During the life time of the father and even after his death respondent No. 1 is paying a substantial amount by way of contribution towards the family expenses. After the death of the deceased tenant the landlady treated both as tenants and served them with quit notices. Even when the dispute started between the brother and sister, the landlady had not shown any interest in the proceedings. After the learned trial Judge made the declaration the landlady accepted that as final and binding.

In the above case, thus, a question never arose whether the provisions of Section 5(11)(c) are meant to supersede either the right of disposition under a will by the tenant or the right of inheritance to the tenancy vesting in the heirs on the death of the tenant, under the personal law of the party. No view can thus be said to have been taken by Bhasme J. contrary to the view taken by K.K. Desai J. and Tulzapurkar J.

20. Mr. Bandiwadekar on behalf of respondent No. 1 contended that the present suit was by tenants to which landlords had been made parties and it was of a nature falling under Section 28 of the Rent Act. It was, therefore, not open for the regular civil Court to entertain and try the suit. In the alternative, he contended that on the allegations in the plaint, this would be a suit under the provisions of the Rent Act and, therefore, a declaration that the plaintiffs are tenants could be given only under the provisions of Section 5(11)(c) of the Rent Act. The plaintiffs, however, did not satisfy one of the qualifications necessary under that section because both the Courts below have found that they were not residing with the deceased tenant at the time of the tenant's death. The plaintiffs' suit had, therefore, to be dismissed.

21. We are unable to see how the plaintiffs' suit can be of the nature mentioned in Section 28 of the Rent Act. Section 28 provides what kinds of suits, proceedings or applications can be entertained and tried by the Court having special jurisdiction under the Rent Act. If we make an analysis of the section, the following kinds of suits, proceedings or applications can be entertained, tried or dealt with by the special Court under the Rent Act:

(1) a suit or proceeding between a landlord and a tenant relating to the recovery of rent or possession of premises;

(2) a suit or proceeding between a licensor and a licensee relating to the recovery of the licence fee or charge;

(3) an application made under the Rent Act; and

(4) a claim made or question raised arising out of the Rent Act or any of its provisions.

It will be seen that the plaintiffs' present suit does not fall in any of the categories mentioned in Section 28 of the Rent Act, which fall within the exclusive jurisdiction of the special Court created under the Rent Act. Although the plaintiffs are claiming to be the tenants, that is only a description of their title. But their suit is still based on title and such a suit does not fall in any of the categories of the matters that can be tried by the special Court.

22. The next submission of Mr. Bandiwadekar is that, in fact, the plaintiffs have filed the present suit under the provisions of the Rent Act and all that they are seeking is a declaration as tenants under Section 5(11)(c) of the Rent Act. In this connection, he has pointed out that the claim in suit has been valued at Rs. 180 which is the rent for twelve months and the plaintiffs have paid Court-fee on this amount. They have not valued their claim of title of tenancy. They have also alleged in the plaint that they were members of the family of Brindavan and they were residing with him at the time of his death. Both these facts had been pleaded only for the purposes of Section 5(11)(c). Thirdly, they had joined the landlords as parties to the suit, which would have been otherwise not necessary if they were simply to file a suit on title. Fourthly, if the suit had been filed as a regular suit, then against the decree of the lower appellate Court, a second appeal would have been filed in the High Court. The plaintiffs had filed a Special Civil Application, treating their original suit as having been filed under the provisions of the Rent Act. Mr. Bandiwadekar referred to certain decisions to make out his point.

23. It is true that the plaintiffs have valued their claim at Rs. 180, which is the amount of rent for twelve months. But that, at best, is an under-valuation and a case of payment of insufficient Court-fees. Although they have pleaded certain facts in the plaint which show that they are members of the family of the deceased Brindavan and they have also stated that they were residing with Brindavan at the time of his death, they have not stated that for these two reasons they have satisfied the requirements of Section 5(11)(c) of the Rent Act and that they should be declared tenants. On the other hand, in paragraph 3 of the plaint, as already noted, they have specifically pleaded that on the death of Brindavan, the plaintiffs have become the tenants as his heirs and legal representatives, which shows that they have based their claim to tenancy on their title, namely, the right to inherit the tenancy rights held by Brindavan. The joining of the landlords as parties to the suit is neither here nor there because in order to make the decree that may be passed in the suit binding on the landlords, they had to be joined. As to the plaintiffs not riling a second appeal against the decree of the lower appellate Court and instead filing a Special Civil Application, that must be on the legal, advice they had received in the matter and would not be decisive of the question whether they were basing their claim to tenancy under Section 5(11)(c) of the Rent Act or on title as the heirs of the deceased tenant Brindavan.

24. The first case relied upon by Mr. Bandiwadekar is a Full Bench decision in Dattatraya Krishna v. Jairam Ganesh : AIR1965Bom177 F.B. That decision, instead of favouring Mr. Bandiwadekar, is actually against him. It has been laid down in that case that in order to determine which Court has jurisdiction to try a suit, the Court should read the plaint as a whole and ascertain the real nature of the suit and what in substance the plaintiff has asked for. Whatever may be the form of relief claimed, if on a fair reading of the plaint it becomes apparent that the plaintiff has alleged the relationship of landlord and tenant between him and the defendant and the relief claimed in substance relates to recovery of rent or possession or raises a claim or question arising out of the Rent Act or any of its provisions, then it is the special Court alone that will have jurisdiction to decide the suit. Similarly, if the plaint does not allege the relationship of landlord and tenant and no claim or question arises out of the Rent Act or any of its provisions, then it will be the ordinary civil Court and not the special Court that will have jurisdiction to entertain the suit. In the present case, on reading the plaint as a whole, what in substance the plaintiffs have asked for is a declaration based on title that they are the tenants of the suit room. As we have pointed out, this is not one of the matters contemplated by Section 28 of the Rent Act.

25. The next decision relied upon by Mr. Bandiwadekar is of the Supreme Court in Sushila Kashinath v. Harilal Govindji (1969) 73 Bom. L.R. 320 . In that case, the plaintiff gave a loan to the defendants for the purpose of financing erection of a building on land held by the defendants as owners. The agreement was registered and it included the various conditions referred to in Section 18(5) of the Rent Act. The plaintiff filed a suit against the defendants in the Court of Small Causes, Bombay, seeking a declaration that the sum advanced as loan be a charge on the building and land on which it was constructed and that the plaintiff was entitled to recover the amounts mentioned in the agreement. The defendants contended that the claim or a charge over the properties made in the suit arose under a deed of contract evidenced by the charge and hence the proceedings initiated by the plaintiff before the Court of Small Causes could not be considered to relate to 'any claim or question arising out of the Rent Act or any of its provisions.' The Supreme Court overruled the defence and held that the question regarding the nature of the reliefs to be granted to the plaintiff were all claims or questions arising out of the Rent Act and it had to be dealt with under Section 28 of the Rent Act. We find it difficult to see the relevancy of this decision because Section 28 provides that any claim or question arising out of the Rent Act or any of its provisions can be dealt with only by the Court under the Rent Act and in that case, the claim that the plaintiff was making arose under Section 18(5) of the Rent Act.

26. The last and the third decision relied upon by Mr. Bandiwadekar is the decision of Vaidya J. in Shantilal Kalidas v. Lallubhai (1973) 77 Bom. L.R. 88. In that case, the dispute between the parties was whether the plaintiffs were the tenants of the suit premises or the defendants were the tenants of the suit premises. In that case, two points have been decided by Vaidya J. One is that where the real dispute between the parties is as to whether the plaintiffs are the tenants of the suit premises or the defendants are the tenants, that question is essentially a question arising out of the Rent Act within the meaning of Section 28. The second point decided is that for deciding the question of jurisdiction, not only the plaint but also the allegations in the written-statement have to be taken into account. This decision of Vaidya J. on the second point has been overruled by a division Bench of this Court, consisting of Apte and Joshi JJ., in Sarfarzali v. Miss Maneck Gastadji [1976] Mh. L.J. 576 : 78 Bom. L.R. 704. In support of his view on the first point, Vaidya J. has not cited any authority. He has not examined the scope of Section 29A or Section 28 of the Rent Act, but has simply relied upon some stray observations in Sushila Kashinath v. Harilal Govindji (supra). That case, however, does not lay down nor does it follow from that case that where the dispute between the parties is whether the plaintiffs are the tenants of the suit premises or the defendants are the tenants of the suit premises, such a suit raises any question arising out of the Rent Act within the meaning of Section 28. For the reasons already indicated, the view expressed by Vaidya J. on the first point is not correct and, therefore, we overrule his decision on the first point also.

27. Mr. Bandiwadekar also submitted, though faintly, that the present Second Appeal would be barred by limitation. We fail to see how this could be so. The judgment by the learned Joint Judge was given on February 1, 1972 and the Special Civil Application was filed on February 25, 1972. A Second Appeal was competent against the decision of the learned Joint Judge. We are allowing the Special Civil Application to be converted into a Second Appeal. On such conversion, the Second Appeal will be deemed to have been filed on February 25, 1972 and it is well within time. Mr. Bandiwadekar also contended that the plaintiffs' suit based on title was barred by limitation. We are unable to see how this can be so. Brindavan had died in June 1961 and the suit was filed in 1967, that is, well within twelve years of the accrual of the cause of action, It is, therefore, within limitation.

28. As for the valuation of the claim, the plaintiffs have valued it at Rs. 180, being the rent for twelve months. That is not the correct valuation. The title which the plaintiffs are claiming is of tenancy. It is not a title of full ownership but of tenancy and this Court has held in several cases that ten years' rent would be the proper valuation for such claim. The proper valuation of the suit claim would, therefore, be Rs, 1,800 and the plaintiffs ought to pay Court-fee on that valuation. They are accordingly directed to pay the deficit Court-fee on the suit in the trial Court, on the appeal in the District Court and on the Second Appeal.

29. In conclusion, for the reasons stated above, therefore, we hold that the provisions of Section 5(11)(c) of the Rent Act are not meant to supersede the right of inheritance to the tenancy vesting in the heirs on the death of the tenant, under the personal law of the party. Therefore the plaintiffs having established that they are the heirs of the deceased tenant Brindavan, the limited right of defendant No. 1 in the suit room, of his being entitled to be declared a tenant under Section 5(11)(c) of the Rent Act will come to an end. The plaintiffs alone will, therefore, be entitled to possession of the suit room as tenants. Defendant No. 1 has no right, title or interest in the suit room and, therefore, he is liable to be evicted and the plaintiffs are entitled to be put in possession.

30. We, therefore, allow this Second Appeal, set aside the decrees of the two Courts below and pass a decree in favour of the plaintiffs and against the defendants declaring that the plaintiffs are the tenants of the suit room and directing that (a) defendant No. 1 should deliver possession of the suit room to the plaintiffs and (b) defendant No. 3 should recognise the plaintiffs as his tenants and issue rent receipts in their names. The plaintiffs shall recover their costs throughout from defendant No. 1. The decree will be drawn up on the plaintiffs paying the deficit Court-fees as directed above.

31. Mr. Bandiwadekar orally applies for leave to appeal to the Supreme Court. The leave is refused. However, the operation of the decree is stayed till the end of September 1977.


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