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IN THE HIGH COURT OF BOMBAY
Bhimrao N. Naik, J.
Kanti Bhattacharya others.... Petitioners.
Versus
K.S. Parmeshwaran another.... Respondents.
Writ Petition No. 1420 of 1982, decided on 23-2-1993.
Advocates appeared :
M.D. Angal, for petitioners.
K.C. Nichani with P.L. Nain, for respondents 1 2.
Held, such family agreement need not be in writing but can be inferred from conduct of parties. Since it was agreed to treat widow as tenant, notice served on her is valid and binding on all family members.
Under Section 5 (1) (c) an agreement need not be in writing. An agreement amongst members of the tenants family can be inferred on the basis of the conduct of the parties and in this matter Miss N was justified in containing that after the death of husband for a period of almost 4 years widow went on paying rent, the suit notice was served on the address where all the members of the tenants family were residing and therefore it was reasonably presumed that they would know that their mother has received a notice of demand, so also it is reasonable to hold that when the suit notice was served upon the suit premises where every member of the tenants family was residing was aware of the filing of the suit against their mother. Notwithstanding this nobody raised any objection till they were brought on record as legal heirs or legal representatives. Even the objection raised is so erupted that nowhere it is contained by them that there were no agreement arrived at by them amongst the members of the tenants family. From the various circumstances narrated above there was an agreement between the members of the tenants family and widow was treated as the member of the tenants family and therefore the notice served upon her is binding on all the members, because every member of the tenants family cannot be a tenant and only member of the tenants family, either by an agreement or by a declaration by a Court of law can be a tenant.
2. Few facts which are relevant for the purpose of this petition are as follows:
3. One K.K. Bhattacharya the father of the present petitioners and the husband of original defendant - Smt. Usha Rani Devi, was admittedly the tenant of Block No. 1, Bhaskar Bhuvan, Plot No. 222, Sir Bhalchandra Road, Matunga, Bombay 19. Respondents Nos. 1 and 2 are the landlords. K.K. Bhattacharya died on 21st December, 1966, leaving behind his wife Usha Rani Devi and the present petitioners and one deceased Geeta. It appears that at the time of the death of K.K. Bhattacharya all the petitioners including deceased Usha Rani Devi was residing in the suit house as the members of his family. It is not in dispute that the rent was paid by Usha Rani Devi and on some occasions by petitioner No. 3. It is also not in dispute that the rent receipts which was issued in the name of K.K. Bhattacharya was not transferred in the name of any of the members of the tenant's family but continued to be in the name of deceased K.K. Bhattacharya.
4. Since no rent was received from 1st September, 1969 on 19th August, 1970 the respondents sent notice of demand both under registered A.D. and under certificate of posting, to Smt. Usha Rani Devi. The notice was a composite notice, one of terminating the tenancy and the notice of demand of arrears. The notice clearly pointed out that Smt. Usha Rani Devi was a tenant of block No. 1 and she was most irregular in payment of rent and she was in arrears of rent from September, 1969 to July, 1970, amounting to Rs. 464.20. In the last but one paragraph of the said notice they demanded arrears of rent amounting to Rs. 426.20, Rs. 35.42 for building repair cess and Rs. 138.85 for electricity charges and Rs. 80/- for operating the pump. It is not in dispute that this notice of demand and notice of termination was received by deceased Usha Rani Devi.
5. Since as per the demand the possession was not handed over, the respondents filed R.A.E. Suit No. 5153 of 1970 for possession against the deceased Usha Rani Devi. It is important to note that even in the suit, it was specifically the case of the respondent that plaintiffs are the landlords and the deceased - defendant - Usha Rani Devi was the tenant, until the termination of her tenancy. It is mentioned in the said plaint that though deceased Usha Rani Devi received the said notice of demand on 21st August, 1970, the amount was not sent by her. Thus it was their case that they are entitled to get possession under the provisions of section 12(3)(a) of the Rent Act. The suit was filed on 8th October, 1970.
6. The suit was contested by deceased - defendant Usha Rani Devi who filed her points of defence on 17th February, 1971. She denied the proper termination of the tenancy. She also denied proper service of notice to quit. She pointed out that the rent demanded in the suit is excessive and unreasonable and is more than the standard rent. She pointed out that there is a dispute about the standard rent and permitted increases. She denied that she ever agreed to pay for operating the Booster pump which the plaintiffs put up when they constructed a third floor to the building at the rate of Rs. 10/- per month from 1-12-1969. In paragraph 7 of the points of defence it was deceased Usha Rani Devi's specific case that on receipt of the notice to quit she approached plaintiff No. 1 through her son and complained about the excessive and illegal demand and charges and raised a dispute regarding the rent and other charges and offered to pay the standard rent together with permitted increases, which the plaintiffs denied to accept. It is important to note that in the points of defences filed by deceased Smt. Usha Rani Devi she showed her re
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