( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO. 150 OF 2008 Punamchand Kacharulal Parikh & Ors. .. Applicants Versus Madhukar Shankar Dambir .. Respondent Shri P.M. Shah, Sr. Advocate i/b. Shri S.P.Shah, Advocate for the applicants. Shri S.P. Deshmukh, Advocate for the respondent. CORAM : P.R. BORKAR,J. RESERVED ON : 29.09.2009 PRONOUNCED ON : 06.10.2009 O R D E R : - 1. This Civil Revision Application is filed by the original defendant Nos.1 to 3 against whom decree for eviction is passed by the Principal District Judge, Dhule, while deciding Civil Appeal No.20 of 2004 on 27.06.2008. Thereby the decree of dismissal of suit (filed by the respondent-landlord) passed by the III Jt. Civil Judge, J.D., Dhule in Regular Civil Suit No. 368 of 1993 decided on ( 2 ) 06.01.2004 is reversed. 2. Briefly stated some of the facts giving rise to this Civil Revision Application and which are not disputed at this stage are as under:- . Present respondent is owner of the suit premises which are C.T.S. No. 1874-A, Khol Galli, Dhule, fully described in plaint paragraph 2. Monthly rent was Rs. 16/-. Originally Kacharulal Kisanlal Parikh – father of revision applicant Nos. 1 and 2 was the tenant. He died in the year 1946 before the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short “the Bombay Rent Act”) came into force on 13.01.1948. Admittedly, revision applicant No.3 is son of revision applicant No.2. Originally the suit was filed by the respondents against revision applicant No.1 only and subsequently by amendment revision applicant Nos. 2 and 3 were added as defendant Nos. 2 and 3. It is also not disputed at this stage that from the original owner, present respondent has purchased the property in the year 1978. 3. On 10.11.1993 suit was filed by the respondent ( 3 ) landlord alleging that defendant No.1 (revision applicant No. 1) and/or defendant No. 2 (revision applicant No.2) and/or defendant No.3 (revision applicant No.3) had taken the premises on rent for residence. Rent of Rs.16/- and permitted increase thereon were paid by defendant No.1 (revision applicant No.1). It is further alleged that defendant No.1 and/or defendant No.2 and/or defendant No.3 have constructed a bungalow in Mohadi area of Dhule and he has (sic) went to reside there with his family and since then, the defendants have closed the suit premises and are not using the same. On the other hand the suit premises are very useful for the respondent. The respondent’s sons have completed their education. They are of marriageable age and their marriages were to be performed and therefore the premises are required bona fide by the respondent. It is also stated that defendant No.2 – Motilal has purchased 807 sq.ft. bungalow out of plot No. 43, Survey No. 315 in Ramnagar Colony at Dhule. The sale deed is executed on 04.10.2005 and purchase was for Rs. 1,60,000/-. The purchaser was shown to be Banwarilal Madan Gopal Vyas, who was son-in-law of revision applicant No.2 Motilal. In-fact, Banwarilal Vyas resides at Sendhawa (M.P.) and it is a Benami ( 4 ) transaction. It is also alleged that the revision applicant wanted to change the user of the property by converting it into pan shop. It is also alleged that the revision applicants have constructed Ota & shed and the property was given to revision applicant No.3 (original defendant No.3) on sub-lease. On these grounds the suit is filed for possession. 4. Originally there was only revision applicant No.1 as sole defendant. He filed written statement at Exh. 11 and alleged that the property was taken on rent by Kachrulal, who was his father and Kachrulal died in 1915 and he was survived by revision applicant No.1 Punamchand and younger brother Motilal. Both of them were residing with deceased Kacharulal in the suit property and both are tenants as per Section 5 (11) (c) of the Bombay Rent Act. They denied that the revision applicant Nos.1 and 2 have constructed house and both have shifted their family/ies and that the suit premises were locked. It is also denied that revision applicant No. 3 was inducted as sub-tenant. 5. After this written statement was filed, the plaint ( 5 ) was amended and revision applicant Nos. 2 and 3 were added as defendant Nos. 2 and 3. Various statements in the plaint were amended. Reference was made to revision applicant Nos. 2 and 3 as defendant Nos. 2 and 3 in the plaint. The amended pleadings are quoted above. 6. Defendant No.2 – Motilal filed his written statement at Exh.48 and denied various allegations made. He stated that it was defendant No.1 who has constructed house near Mehaboob Subhani Tekadi, which was far away from the town. Originally family consisted of Punamchand & Motilal, their wives and children. Santosh, who is son of defendant No.1 – Punamchand is also married and has a daughter. Revision Applicant No.2 has wife, two sons – Raju and Kishan. Raju is also married. The width of suit premises was 7 feet, though its length is 88 feet. It was not sufficient for the family and therefore Punamchand constructed the house and went to reside there. Rest of the family continued to reside in the suit premises. Now revision applicant No.2 – Motilal is residing in the suit premises with his family. Rest of the allegations are denied. It is also stated that there would be more hardship to respondent No.2 if he is evicted ( 6 ) from the suit premises. 7. Revision Applicant No.3 adopted said written statement vide Exh.71. He denied that he was sub-tenant. He stated that he is son of revision applicant No.2 and resides with him. 8. The learned Civil Judge held that none of the grounds for eviction was proved. He held that the plaintiff/respondent did not require suit premises reasonably and bona fide. He also held that plaintiff/respondent would not suffer more hardship, if decree for injunction is rejected. 9. In the appeal, the Principal District Judge, took a view that as per Section 5 (11) (c) of the Bombay Rent Act, only revision applicant No.1 Punamchand was tenant of the suit premises. Revision applicant Nos. 2 and 3 were not tenants of the suit premises. Revision applicant No.1 has acquired suitable alternate accommodation. The plaintiff bona fide required suit premises for personal use. There would be more hardship to the plaintiff and in the ( 7 ) circumstances the learned District Judge allowed the appeal and decreed the suit, thereby reversed the finding of the Trial Court. Thus, the decree is passed under Section 13 (1) (g) & 13 (1) (l) of the Bombay Rent Act. It is this order, which is challenged in this Civil Revision Application. 10. The learned advocate for the applicants argued that the District Court committed error in holding that only revision applicant No.1 – Punamchand was tenant of the suit premises. It is admitted position that Punamchand has constructed a bungalow and has shifted with his family, but original case of the defendant as disclosed in the written statement Exh.11 is that it was Kachrulal – father of revision applicant Nos. 1 and 2, who was original tenant and after his death, revision applicant Nos. 1 and 2 continued to live in the suit premises with their family and since the family has grown big with passage of time, Punamchand shifted out of the premises and revision applicant No.2 Motilal continued to live in the suit premises with his family. It is also argued that the amended averments in the plaint amended were ignored. In the plaint it was abundantly made clear that both revision applicant Nos.1 and 2 were tenants ( 8 ) of the suit premises. It is alleged that both have shifted out of the premises and locked the premises and it is revision applicant No.3 who was inducted as sub-tenant. Nowhere case is made out that only revision applicant No.1 Punamchand was tenant after death of Kacharulal or after the amendment was made to Section 5 (11) (c) of the Bombay Rent Act by the Maharashtra Act, 22 of 1978. It is also argued on behalf of the applicants that introduction of Section 5 (11) (c) of the Bombay Rent Act is to expand definition of tenant so as to include more persons who were members of the family of the deceased tenant living with him, rather than conferring rights only on the legal heirs as per personal law. 11. On the other hand the learned advocate for the respondent vehemently defended the order of the District Court. He argued that tenancy is singular. It is indivisible. There cannot be more than one tenant at a time and the District Court rightly held that revision applicant No.1 Punamchand who was tenant of the premises. Since he has acquired suitable accommodation and was not living in the suit premises, the decree passed is legal and proper. ( 9 ) 12. Both sides cited several authorities. The learned advocate for the applicants relied upon case of Dattaram Shripat Khurase V/s. Laxman Bhagwanji Ghaswalla and ors., 1979 Mh.L.J.663 = 1978 U.C.R. (Bom.) 232. In that case One Shripat Arjun Khurase, who died in 1946, was original tenant. After his death, his three sons and widow who were defendant Nos. 1 to 3 and 4 respectively were treated as monthly tenants in respect of the shop premises. Plaintiff-landlord prayed for a decree of ejectment against the four defendants, after their failure to pay arrears of rent. It is observed by the Single Bench of this Court in para 19 after referring to Section 5 (11) (c) of the Bombay Rent Act, as it stood then, that as per the view taken by Division Bench in Rajaram V/s. Ramraj, 1977 U.C.R. (Bom.) 538, the provisions of Section 5 (11) (c) of the Bombay 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 and provisions of Section 5 (11) (c) of the Bombay Rent Act 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. ( 10 ) 13. Another case cited is Rajaram Brindavan Upadhyaya and ors. V/s. Ramraj Raghunath Upadhyaya and Ors., 1977 U.C.R. (Bom.) 538. In the said case, plaintiffs filed suit for declaration that they are only tenants of the suit room and defendant No. 1 has no right, title or interest. It is held that the suit is de-hors Rent Act on the basis of title and dispute is between superior and inferior claim as tenant. It is observed that the finding given by the 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 right of inheritance to tenancy vesting in the heirs. 14. It may be noted that both the cases of Dattaram Khurase (Supra) and Rajaram (Supra), were decided prior to amendment to Section 5 (11) (c) of the Bombay Rent Act. The case of Dattaram Khurase (Supra) was decided on 19.09.1977 and case of Rajaram (Supra) was decided on 01.07.1977. The amendment by the Maharashtra Act 22 of 1978 came into force thereafter. So, both the cases do not refer to amended provisions of the Bombay Rent Act. Section 5 (11) (c) of the Bombay Rent Act, as it stands today as follows :- ( 11 ) “5. In this Act unless there is anything repugnant to the subject or context, x x x x x x (11) “tenant” means any person by whom or on whose account rent is payable for any premises and includes,- x x x x x x (c) (i) in relation to any premises let for residence when the tenant dies whether the death has occurred before or after the commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Act, 1978 any member of the tenant’s family residing with the tenant at the time of his death, or in the absence of such member, any heir of the deceased tenant, as may be decided in default of agreement by the Court; (ii) in relation to any premises let for the purposes of education, business, trade or storage, when the tenant dies, whether the death has occurred before or after the commencement of the said Act, any member of the tenant’s family using the premises for the purposes of education of carrying on business, trade or storage in the premises with the tenant at the time of his death, or, in the absence of such member any heir of the deceased tenant, as may be decided in default of agreement by the Court.” Explanation – The provisions of this clause of transmission of tenancy shall not be restricted to the death of the original tenant, but shall apply, and shall be deemed to always have applied, even on the death of any subsequent tenant, who becomes tenant under these provisions on the death of the last proceeding tenant.” ( 12 ) 15. In the case of Firdose Mohamed Khan V/s. Siddique Begum Abdullakhan Khilji and ors., 1982 (1) Bom.C.R.212, Single Bench of this Court took view relying on earlier authorities that provisions of Section 5 (11) (c) of the Bombay Rent Act could not supersede the right of inheritance to the tenancy vesting in the heirs on the death of the tenant under the personal law of parties and the case of Rajaram (Supra), which was referred in the Dattaram Khurase (Supra) was referred. 16. Fourth case cited is Budhmal Khushalchand and anr., V/s. Bansilal Gulabchand Agarwal and ors., 1983 (1) Bom.C.R. 11, decided on 19.01.1980, in which it is held that provisions of Section 5 (11) (c) of the Bombay Rent Act, covers wider field than restrictive field of inheritance under the general law. 17. In the case of Ramchandra Govind Wadkar and ors. V/s. Ganesh Digambar Puranik, 1984 Bom.R.C.63, as can be seen from para 10, it is observed that even right of a statutory tenant is heritable even irrespective of Section 5 (11) (c) ( 13 ) of the Rent Act and in this view of matter also, all the four brothers would be the tenants and in this background, even if it is held that if only one of them built a new house and shifted there, it cannot be said that the need of the other tenants has also ended and it cannot be also held that the other tenants have secured another suitable accommodation for them. In that case deceased father who was tenant had four sons. Elder son built his own house. It is held that it cannot be said that all four sons have secured alternate premises. Reliance was placed on the case of Dattaram Khurase (Supra) referred to above. In para 9 of the case it is observed after referring paragraphs 20, 21 and 22 of Dattaram Khurase (Supra), that all the heirs get tenancy right and in view of that matter also, all the four defendants get the rights of their deceased father. 18. The learned advocate for the respondents Shri Deshmukh says that law has changed and after amendment to Section 5 (11) (c) by the Maharashtra Act, 22 of 1978, it cannot be said that there will be multiple tenants. He relied upon case of Ashok Chintaman Juker and ors., V/s. Kishore Pandurang Mantri, 2001 AIR SCW 2142. In that case in ( 14 ) paras 10 and 11, following observations are made :- “10. In sub-section(11) of section 5 of the Act the expression tenant means any person by whom or on whose account rent is payable for any premises and include -(a) such sub-tenants and other persons as have derived title under a tenant before the coming into operation of this Act; (b) any person remaining, after the determination of the lease, in possession, with or without the assent of the landlord, of the premises leased to such person or his predecessor who has derived title before the coming into operation of this Act; (c) any member of the tenants family residing with him at the time of his death as may be decided in default of agreement by the Court. The language of the provision indicates that the definition of the term is an inclusive one and wide in its amplitude. In the present case we are concerned with clause (c) of sub- section(11) of section 5 which provides that tenant includes any member of the tenants family residing with him at the time of his death as may be decided in default of agreement by the Court. There are two requisites which must be fulfilled before a person is entitled to be called 'tenant under sub- clause (c); first he must be a member of the tenants family and secondly, he must have been residing with the tenant at the time of his death. Besides fulfilling these conditions he must have been agreed upon to be a tenant by the members of the tenants family; in default of such agreement the decision of the Court shall be binding on such members. The further question that arises for consideration is whether a member of the family of the original tenant who claims to have been residing with the tenant at the time of his death can resist execution of a decree passed against a member of the tenants family who undisputedly was accepted by the landlord as a tenant on the death of the original tenant. 11. The question that arises for consideration in such cases is whether the tenancy is joint or separate. In the former case notice on ( 15 ) any one of the tenants is valid and a suit impleading one of them as a defendant is maintainable. A decree passed in such a suit is binding on all the tenants. Determination of the question depends on the facts and circumstances of the case. No inflexible rule or straight- jacket formula can be laid down for the purpose. Therefore, the case in hand is to be decided in the facts and circumstances thereof.” . In para 16 it is observed that the tenancy being one, all the members of the family of the original tenant residing with him at the time of his death, succeeded to the tenancy together. In the circumstances, the conclusion is inescapable that Smt. Kishori Kesrinath Juker who was impleaded as a tenant in the suit was binding on all the members of the family covered by the tenancy. So, it was held that when decree passed against Kishori, other members of the family cannot resist execution claiming claiming that they are also tenants and entitled to resist. 19. Other case cited on same point is Vimalabai Keshav Gokhale V/s. Avinash Krishnaji Biniwale and ors., 2004 (1) Mh.L.J.450. In that case, the plaintiff landlord alleged that tenant was residing in the suit premises along with his wife, mother and children. This fact was not denied by the ( 16 ) mother in her written statement. Rent receipts were issued in the name of son, which was not objected by the mother and in the circumstances it is held that the mother had no right to obstruct execution of decree passed against the son. So, here it was a case where son represented entire family and it is held that mother could not obstruct the execution of decree. The Court referred to various authorities and ultimately observed as follows in para 12 :- "12. Accommodation is a serious problem facing people. Practically in every tenanted premises along with the tenant scores of other relatives reside. After the death of the tenant there is always an attempt to claim tenancy rights in the suit premises with the help of section 5 (11) (c) of the Rent Act. It is, therefore, for the Court to find out who really can get the benefit of Section 5 (11) (c). For this the Court has to take into consideration various factors such as who was accepted as a tenant by the landlord, whether other members who are putting up a claim had accepted that person as a tenant or whether they had resisted the claim of that person to tenancy at any time, and in some cases wishes of the deceased tenant. In this connection it is necessary to quote the relevant observations of this Court in Gool Rustomji's case (supra): "Whenever persons who are members of the tenant's family start a scramble for the tenancy rights, in a sense the war of succession begins. Succession to the property of the deceased is generally decided by applying the rules of succession forming part of the personal law of the ( 17 ) parties. But the law of succession is substantially modified while resolving the disputes which arise after the death of the tenant, whether statutory or contractual. If the several members, who are residing as members of the tenant's family, fail to come to an agreement, then the Court has to make the choice and declare that one amongst them will be the tenant for claiming the protection of the Rent Act. 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. In any event the Court cannot declare more than one person as the tenant under Section 5 (11) (c) of the Rent Act." 20. It may be noted that the point for consideration of the Court in that case was entirely different. In that case the question has arisen whether the son who was made defendant was accepted as tenant by other members of the family and the answer was yes. In the present case it is argued that it is the plaintiff-landlord who has come with a case that both defendant No.1 Punamchand and defendant No.2 ( 18 ) Motilal were his tenants. Since he has pleaded like that in his plaint, there was no issue raised by the plaintiff that it was only defendant No.1 who was tenant. There was no dispute amongst defendants as to who was tenant. The defendants came out with a plain case that Kachrulal was original tenant. Both revision petitioner Nos.1 and 2 were his sons. Both were residing together since family has grown too large, the accommodation became insufficient and therefore one of the two brothers, namely, revision applicant No.1 Punamchand purchased a house and shifted to the new house purchased by him. The theory of Benami purchase by defendant No.2 is not accepted by both the Courts below. Both the Courts also rejected theory of revision applicant No.3 being sub-tenant of revision applicant Nos. 1 and 3. So, only question is when the plaintiff himself has come out with a case that both revision applicant Nos. 1 and 2 were his tenants, whether District Court was justified in holding that there can be only one tenant and it was revision applicant No.1 and not revision applicant No.2 who was tenant. It may be noted that the facts of the present case are peculiar in nature. Ordinarily the landlord does not come out with a case that