PLAINTIFF CANNOT BE TREATED AS TENANT IN RESPECT OF SUIT PREMISES: BOMBAY HIGH COURT
Category: Property Law
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FACTS OF THE CASE-
The Applicant is aggrieved by the decision of the Appellate Bench of the Small Causes Court, which has set aside the declaration made by the learned Judge relating to his tenancy in respect of the suit premises. Residential premises consisting of seven rooms, two rooms on the landing between first floor and the ground floor, two W.Cs., two bathrooms, four passages and one gallery situated at Sohni Mansion, 107 Cumballa Hill, Mumbai-400 036 are the ‘suit premises’. Ms. Dinamai Rustomji Master (Dinamai) was the monthly tenant in respect of the suit premises. Defendant Nos.1 and 2 are the original landlords. It appears that Dinamai has sub-let portion of the suit premises, being four rooms, two rooms on landing, one W.C. and one bathroom and two passages to Dr. Kaikhshroo Madan and Mrs. Banubai K. Madan in or about 1958 (sublet premises). Dinamai remained in the possession of the balance three rooms, one bathroom, one W.C. and two passages and a gallery. Dinamai passed away on 13 November 1977 in the suit premises. Plaintiff claims to be nephew of original tenant-Dinamai and further claimed that he started residing with Dinamai since the year 1974. After Dinamai’s death, Applicant continued his residence in the suit premises and addressed correspondence with the original landlord-Defendant Nos.1 and 2 for asserting his rights as tenant in respect of the suit premises. It appears that the building was auctioned by the Municipal Corporation for non-payment of taxes and Defendant Nos. 3 & 4 purchased the same on 17 May 1984. However, Defendant Nos. 1 and 2 challenged the auction sale and Court Receiver was appointed in respect of the property, which was subjected for auction sale. This prevented Respondent Nos. 3 & 4 from taking possession of the auctioned property.
ISSUES OF THE CASE-
Whether the Applicant/Plaintiff can be considered as a member of tenant’s family residing with the tenant, for the purpose of being covered by the definition of ‘tenant’ under Section 5(11)(c) of the Bombay Rent Act?
Whether tenanted premises was ‘home’ for Plaintiff and whether he was to be rendered homeless after tenant’s death?
LEGISLATION-
Bombay Rent Act, 1947- section 5 (11) (c)
CONTENTIONS OF APPLIACNT-
Mr. Vishwajit Sawant, the learned Senior Advocate appearing for the Revision Applicant submitted that the Appellate Bench of the Small Causes Court has erred in reversing well-reasoned judgment and order passed by the learned Judge of the Small Causes Court. The Revision Applicant provided evidence to prove his relation to the original tenant and his residence as a family member, entitling him to claim tenancy rights. Documents such as the Ration Card, Will, Codicil, and affidavit of the deceased tenant, along with correspondence, supported his claim. The landlords did not object to his residence until he filed a declaratory Suit in 1988, suggesting that their objections were raised as an after-thought.Mr. Sawant argues that the Trial Court correctly recognized the evidence supporting the plaintiff's status as a family member of Dinamai. He asserts that the defendants failed to provide evidence disproving the plaintiff's relationship with Dinamai. Mr. Sawant contends that the Appellate Bench's doubts about the relationship are unfounded, citing Dinamai's acceptance of the plaintiff as a close relative in legal documents. Additionally, he emphasizes that the plaintiff's relocation to Dinamai's residence in 1974 was necessary due to Dinamai's advanced age and the lack of anyone else to care for her. Furthermore, Mr. Sawant points out joint financial accounts and documentation reflecting the plaintiff's address at the suit premises. Mr. Sawant argues that the Appellate Bench made a mistake by assuming that the Plaintiff's failure to examine his deceased mother implied a lack of relationship proof. He points out that the mother passed away before the evidence was collected and that the original tenant confirmed the relationship, making further evidence unnecessary. He also criticizes the credibility of the witness presented by the Defendants. Mr. Sawant insists that the Trial Court rightfully ruled in favor of the Plaintiff based on substantial evidence, and the Appellate Bench erred in overturning the decision.
CONTENTIONS OF RESPONDENTS-
Mr. Pradeep Thorat, the learned counsel appearing for Defendant No.3 would oppose the Revision Application submitting that the case clearly involves an attempt to transmit the tenancy by original tenant-Dinamai in favour of Plaintiff, between whom, there is no relationship. The documents such as Ration Card, Will, Codicil, and affidavit were created to transfer tenancy rights to an unrelated person, the Plaintiff. The Plaintiff deliberately claimed residence with Dinamai before her death to acquire the suit premises, despite living with his parents at Cusrow Baug, Colaba. This deliberate attempt to claim residence with Dinamai was highlighted as an important admission by the Plaintiff. Discrepancies in the relationship between the Plaintiff and Dinamai in the Will, Codicil, and affidavit were also pointed out. The Will, Codicil, and affidavit were created solely to establish a relation and residence with Dinamai for the purpose of claiming tenancy rights. The Ration Card entry is insufficient to prove the plaintiff's relation or residence with the original tenant. There is evidence of collusion between the original tenant and the plaintiff to transfer tenancy rights to the defendant. The plaintiff's close relation to Dinamai is questioned, as no cogent evidence is presented to prove the alleged relationship. No other family members were examined as witnesses to prove the said relationship.
Mr. Agnel Carneiro, the learned counsel appearing for Respondent Nos. 6B and 6C would also oppose the Revision Application adopting the submission of Mr. Thorat. Additionally, he would submit that the parents of Defendant Nos.6 to 8 resided in the neighbor of the suit premises in 1958. Defendant No.6 provided crucial evidence about the relationship and residence of the Plaintiff with Dinamai. DW1 stated that the Plaintiff did not occupy the suit premises during Dinamai's lifetime and only started residing there after her death. It was argued that the absence of relationship and residence of the Plaintiff with the deceased tenant was both pleaded and proven before the Trial Court. He prayed for dismissal of the Revision Application.
CONCLUSION/ COURT ANALYSIS-
It is an admitted position that Plaintiff is not a Class-I heir of deceased tenant-Dinamai and there is serious dispute between the parties about his relationship with Dinamai. For establishing tenancy under Section 5(11)(c) of the Bombay Rent Act, a person must prove that he resided with the tenant as part of his family for a substantial period of time. In the present case, even if Plaintiff’s case of shifting to Dinamai’s house is to be believed, the residence is hardly of 2 to 3 years. There is nothing in evidence to suggest that Plaintiff used to regularly visit Dinamai or that Dinamai used to treat him as his son or that during the course of residence with his parents at Cusrow Baug, he used to intermittently reside with Dinamai prior to the year 1974. Therefore, it is wholly unbelievable that Plaintiff would leave lock stock and barrel from his parents’ residence in the year 1974 snipping all connections with his parents and reside with old lady-Dinamai, while he was still taking education. The theory of residence with Dinamai appears to have been woven for the sole purpose of claiming tenancy rights in respect of the suit premises. The Trial Court heavily relied on documentary evidence including the Ration Card, Will and Codicil, and the affidavit of Dinamai. The authenticity of the entry of the plaintiff's name in Dinamai's Ration Card was questioned, and it was noted that the addition of the plaintiff's name shortly before Dinamai's death raised doubts about the purpose. The Will, Codicil, and affidavit were deemed insufficient to conclude the plaintiff's continued residence with Dinamai for a substantial period of time. It was suggested that Dinamai's eagerness to ensure the transmission of tenancy rights could have been the reason for the execution of these documents. Therefore, the Appellate Court's assessment of the situation was considered appropriate.
Thus, the court held that considering the overall conspectus of the case, Plaintiff cannot be treated as tenant in respect of the suit premises under the provisions of Section 5(11)(c) of the Bombay Rent Act. No interference therefore is warranted in the decree passed by the Appellate Bench of the Small Causes Court. Civil Revision Application is accordingly dismissed.
In view of disposal of the Civil Revision Application, Civil Application does not survive and hence, stands disposed of.
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WRITTEN BY: ALOK G. CHHAPARWAL
GUIDED BY: ADVOCATE ANIK
