1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8340 OF 2008 Shri Madhusudan D. Bhatt. ..Petitioner. V/s. Managing Trustee Framaroz Hirjee Soonawalla Bai Aim Hirjee Soonawalla Trust & ors. ..Respondents. Mr. V.A.Thorat, Sr.Counsel i/b. Mr.G.S.Godbole appointed as amicus curiae. Mr.V.S.Talkute for respondents. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : MARCH 6, 2009. DATE : MARCH 6, 2009. DATE : MARCH 6, 2009. P.C. : P.C. : P.C. : 1. Mr.Thorat, learned Senior Counsel has been appointed as amicus curiae instructed by Mr.G.S.Godbole, advocate to espouse the cause of the Petitioner. 2. After having gone through the documents on record with the able assistance of learned amicus curiae, I have no hesitation in taking the view that the conclusion reached by the Courts below is unexceptionable. The Appellate Court has rightly noted that in the entire plaint there is not even a remote assertion that the Petitioner was staying in the suit premises alongwith the original tenant 2 Framroz Doctor in the capacity of member of his family. In absence of such assertion and proof, the fact that the Petitioner was staying for a long time alongwith the tenant during his life time does not take the matter any further. That is so because the law recognises only members of the family, who would inherit tenancy right after the demise of the tenant. In the facts of the present case, it is not necessary to address the question as to whether the definition of member of family would only include close blood relatives or even any distant relation with the tenant. In this case, the tenant was a parsi by religion, whereas the Petitioner is a Hindu. As mentioned earlier, the Appellate Court has rightly noted that there is no averment in the plaint to even remotely suggest that the Petitioner was staying in the capacity of family member of the tenant during his life time. On this finding no further enquiry is necessary. 3. Counsel for the Petitioner has invited my attention to the statement made in the cross-examination where the Petitioner has stated that he was related to the tenant as General Power of Attorney and as a family member. The fact that the Petitioner was staying alongwith tenant as family member ought to have been asserted and proved by the 3 Petitioner. Besides the assumption entertained by the Petitioner that he was staying as family member alongwith the tenant, the Petitioner was expected to assert and prove the fact that even the world at large recognised that relationship of the Petitioner and the tenant. That is not the case either pleaded or established by the Petitioner. In the cross-examination, the Petitioner has admitted that the tenant was a bachelor and the Petitioner was also a bachelor and that the Petitioner did not have any ration card nor enrolled his name with the election authority. Be that as it may, the fact that the Petitioner was staying with the tenant during his life time by itself is of no avail. 4. To get over this position, Mr. Thorat would argue that the evidence on record clearly establishes that the Petitioner was staying alongwith the tenant for almost over 20 years. The fact that the Petitioner was staying with the tenant for such a long time is indisputable. If it is so, the Court should take a broader view of the definition given in the Rent Act to mean that such association of two persons would be covered by the provisions of section 5(11)(c) of the Act. It is not possible to countenance this submission. That would be rewriting the express provisions of the Act, which is not 4 permissible. Section 5(11)(c) expressly uses the term "member of family" as any member of the family residing with the tenant. Keeping in mind the said provision, the person asserting that he has inherited tenancy after the demise of the tenant is expected to plead and prove that he was member of the tenant’s family. The fact that he stayed together for long time will be of no avail. Mere long association with the tenant cannot be the basis to answer the issue. Although the Court may express sympathy for the circumstances, in which the Petitioner has been dispossessed from the suit premises, but as of now the Court is required to consider the status of the Petitioner and to decide whether he could be declared as tenant or having inherited tenancy from the original tenant. That issue will have to be answered against the Petitioner. 5. Hence, no interference is warranted in exercise of writ jurisdiction. The same is dismissed. 6. The Court expresses word of gratitude for Mr.Thorat and Mr.Godbole for having given able assistance in this matter. 7. At this stage, the Petitioner, who is present 5 in Court prays that the interim arrangement specified in order dated 19th December, 2008 be continued for some time so as to enable the Petitioner to carry the matter in appeal. There is no difficulty in accepting this request. Accordingly, interim arrangement to continue for a period of 12 weeks from today. Ordered accordingly. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)