Cawas Dhunjishaw Saher vs Keikobad C. Batliwala

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1994 Supreme(Bom) 346

IN THE HIGH COURT OF BOMBAY
A.V. Savant, J.
Cawas Dhunjishaw Saher.... Petitioner.
Versus
Dr. Keikobad C. Batliwala.... Respondent.
Writ Petition Nos. 354 356 of 1994, decided on 21-7-1994.
Advocates appeared :
Y.S. Jahagirdar, for petitioner in W.P. No. 354 356 of 1994.
Joaquim Reis with G.A. Tamse, for the respondent in W.P. No. 354 356 of 1994.

Headnote:Sections (5) (11) (c) (i), 15-A and 28-Presideney Small Cause Courts Act, 1882, Section 41 (1)-Petitioner licensee-Approaching City Civil Court Small Cause Courts has application.
       Petitioner had himself approached the City Civil Court, Bombay in the year 1987 when he had filed the S. C. Suit No. 6383 of 1987. At the stage of hearing of the notice of motion it was held by the Civil Court that having regard to the leadings of petitioner himself. The City Civil Court had no jurisdiction to entertain the matter if the relationship was that of a tenant and landlord or even if the relationship was that of the licensor and licensee. Even if it was held that the relationship between the petitioner and respondent was that of a tenant and landlord or a licensee and licensor, in either case it would be the Court of Small Causes either under the Bombay Rent Act or the same Court under the P. S. C. C. Act which alone would be competent to entertain the proceedings. The order was passed by the City Civil Court on 19/20ih February, 1992 returning the plaint to Cawas Saher for presentation to the proper Court and the same was upheld by this Court in C. R. A. No. 153 of 1992 on 12th March, 1992 which order has been accepted by the parties as final. It was pursuant to this order that the petitioner Cawas Saher himself approached the Court of Small Causes claiming protection under Section 5 (ii) (c) (i) or in the alternative under Section 15-A of the Rent Act. At any rate, having regard to the averments in the application for ejectment, namely, the 1988 suit filed by respondent.
       The application under Section 41 of P. S. C. C. Act was maintainable and has been properly entertained.
       Held For the purchase of Section 5 (11) (c) (i) of the Rent Act, it is only one person who can claim to be a tenant by virtue of the his being a member "f the tenants family residing with the tenant at the time of his/her death. Two or more claimants cannot claim the transmitted tenancy as joint tenants. This is necessary to avoid fearful confusion and absurd consequences. To this limited extent the provisions of Section 5 (11) (c) (i) of the Rent Act make a departure from the right of succession under the general law of in heritance and succession. It is open to the parties to agree that anyone of the members of the tenants family residing With him at the time of his death could be treated as a tenant for the purpose of Section 5 (11) (c) (i) of the Rent Act. At any rate, there cannot be more than one tenant for the purpose of Section 5 (11) (c) (i) of the Rent Act. Further, as stated by the Supreme Court in the case of Bhavarlal Shah (supra) it is not open to the Court by judicial construction to extend such right to persons who are not the members of the tenants family who claim under testamentary succession.
       All heirs are liable to be excluded, if any other member of the family was residing with the tenant at the time of his/her death. In a situation where there are more than one heirs, the landlord mayor may not agree to one or the other of them being recognized as a tenant. In case of such disagreement, the Court has to decide who is to be treated as a tenant. In certain contingencies as contemplated in Section 5 (11) (c) (i) of the Rent Act, certain heirs are unable to succeed to such a tenancy. To this extent, a departure is made from the general law.
       Section 41 (1).
       See Bombay Rents, Hotel and Lodging House Rates Control Act 1947 Sections 5 (II) (c) (i), 15-A and 28].

JUDGMENT- A.V. SAVANT, J.:---These two petitions can be disposed of together since they relate to the same premises and are between the same parties excepting that in Writ Petition No. 356 of 1994, the landlord H.H. Sardar Sayedina Dr. Mohamed Burhanuddin Saheb is also made respondent No. 2 but he is obviously a formal party. The main contest is between the petitioner and respondent No. 1 in both the petitions.

2. The premises consist of bedroom No. 1 with an attached bath and W.C. in a flat of approximately 3000 sq.ft. on the second floor of the building known as "Merwan Mansion" situated at Nepean Sea Road, Bombay. The petitioner in both the petitions is Cawas Dhunjishaw Saher, who will be, hereafter, referred to as "Cawas Saher". The first respondent is Dr. Keikobad C. Batliwala who will, hereafter, be referred to as "Keikobad". Respondent Keikobad is the son of the original tenant Cawas Shaw Batliwala and the petitioner Cawas Saher is the son of the sister of Keikobad, viz., Aloo Seher as will be evident from the genealogy given below.

Original tenant Cawasshaw Batliwala

(tenant from 1935 died on 1-5-1943)

Wife - Meherbai (died on 6-12-1960)

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Son Keikobad Batliwala Daughter Aloo

(respondent No. 1) married to Licensor. Dhunjishaw Saher who died on 10th July 1983 (Aloo pre-deceased her mother on 16th May, 1957)

Cawas Saher (Petitioner in both the petitions) Li censee.

3. It will thus be evident from the above geneology that the dispute is between Keikobad son of the original tenant Cawasshaw Batliwala and Cawas Saher who is the son of the daughter of the original tenant, namely, Aloo Saher. The original tenant Cawasshaw Batliwala died on 1st May, 1943 leaving behind his widow Meherbai, son Keikobad and his daughter Aloo (Mother of respondent Cawas Saher). Aloo married Dhunjishaw Saher in September, 1943. Aloo predeceased her mother Meherbai on 16th May, 1957. Meherbai having died on 6th December, 1960.

4. Respondent Keikobad is staying in the major portion of the flat alongwith his son and daughter-in-law and all of them are doctors. Petitioner Cawas Saher is staying in one bedroom which has a attached bath and he claims to be sharing the passage, living room, dining area, common passage, kitchen and the servants room. Thus the dispute is about the bedroom which was claimed by the petitioner Cawas Saher as his exclusive room.

5. It appears from the evidence on record, that on the death of Cawasshaw Batliwala on 1st May, 1943 and more particularly, after the death of his widow Meherbai on the 6th December, 1960, the tenancy of the premises was transferred in the name of their son respondent Keikobad. He permitted Cawas Saher to occupy one bedroom merely as a gratuitous licensee since Cawas was the son of his sister (Keikobads sister - Aloo). The evidence on record further shows that Cawas Sahers mother Aloo had her premises elsewhere and she ceased to be the member of her parents family on her marrying Dhunjishaw Saher. Cawas Saher is doing some business and wanted to claim statutory tenancy in respect of the bedroom in his possession and in respect of the common areas shared by both the parties. Since the relations between the parties were strained, Cawas Saher filed Short-Cause Suit No. 6838 of 1987 in the City Civil Court at Bombay for injunction restraining Keikobad from interfering with his alleged exclusive possession, user and enjoyment of the bedroom alongwith the attached bath and toilet as also the common use of certain areas known as common areas. In his plaint in the City Civil Court, Cawas Saher specifically stated that Keikobad was his maternal uncle and that on the death of Keikobads father Cawasshaw Batliwala, his widow Meherbai and two children were staying in the premises. Though petitioner Cawas Saher was born on 19th March, 1948 i.e. to say after the death of Cawasshaw Batliwala on 1st May, 1943, the petitioner claimed to have become the tenant of the suit prem

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1994 Supreme(Bom) 346

Cases Referred (2)