1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. COURT RECEIVER’S REPORT NO.118 OF 2007 WITH COURT RECEIVER’S REPORT NO.69 OF 2009 IN SUIT NO.993 OF 1997 Kutubuddin Alibhai Lakdawala ..Plaintiff. Vs. Asgar A. Lakdawala and others ..Defendants. And Abbas Mohammedhusain Hatiyari ..Respondent. .... Ms Smita R. Lad i/b Apex Law Partner for the Plaintiff. Mr. S.V. Thakkar with Mr. M.V. Thakkar for occupant of flat No.1 – Percy Jokhi and Ruksana Jokhi. Mr. S. Chandrashekhar for the Applicant – Maj. Homi Jokhi. Mr. Saifuddin A. Lakdawala – Defendant No.2 present in person. Ms Pervin Elavia – occupant of Flat No.2 present in person. Mr. G.G. Ketkar, First Assistant to Court Receiver present. .... CORAM : DR. D.Y. CHANDRACHUD, J. 11th September,, 2009. 2 P.C. : 1. By an order dated 18th October, 2005 a Learned Single Judge of this Court appointed the Court Receiver as Receiver of a building known as Gazdar Mansion situated at Princess Street, Mumbai 400 002. The order of the Learned Single Judge directed that the Receiver shall not dispossess any of the tenants found in possession of the premises and shall attorn the tenants to himself. The Court Receiver was directed to recover rent and to pay the outgoings including taxes. Each of the tenants was directed to be appointed as agent of the Receiver without compensation and security save and except for the recovery of rent. The Court Receiver placed a report – Court Receiver’s Report 118 of 2007 on which a Learned Single Judge of this Court noted by an order dated 23rd July, 2008 that there was a dispute between the parties regarding the factum of possession of flat Nos.1 and 2. The Court Receiver was directed to make an enquiry and to furnish a report as to who is in actual possession of the flats after hearing the parties. The Court Receiver has submitted Report No.69 of 2009 on 24th February, 2009 by which he has come to the 3 conclusion that Mr. Homi Jokhi was in possession of Flat No.1 at the time when the rent farming contractor visited the premises on 21st December, 2005 for the issuance of a letter of attornment. 2. The dispute in the main suit is between two brothers Kutubuddin and Asgar Lakdawala. The Court is informed that the suit is for partition and for a declaration of a 1/4th share of the Plaintiff in the premises which form the subject matter of the suit viz. Gazdar Mansion. The Receiver came to be appointed by the order of 18th February, 2005 since the Court was of the view that the conduct of the Defendant in transferring tenancy in breach of an interim order warranted that the property should be protected. 3. The dispute that arises before the Court upon the report of the Court Receiver is between a 96 year old father, Maj. Homi Jokhi, and his wife who is stated to be 80 years of age on the one hand and their son Capt. Percy Jokhi on the other. Homi Jokhi and his wife are presently in possession of flat No.1 together with their daughter 4 Aloo. 4. Prior to 1982 Avabai was the tenant of Flat No.1. Avabai is the mother of Homi Jokhi. She died on 16th August, 1982 leaving behind her four sons and two daughters. Percy Jokhi is the grandson of Avabai. According to him in April 1990 Avabai’s name was removed from the rent receipt and the names of two of her sons Phiroze and Soli were added. Soli died in February 1993 upon which the rent receipts came to be issued in the name of Phiroze. The rent receipts thereafter from October 1994 were allegedly in the name of Phiroze and his wife. According to Percy, from October 1998 rent receipts were issued in the name of Phiroze, his wife as well as Percy. Phiroze died on 8th July, 2002 while his wife died on 6th January, 2006. Percy alleges that his father Homi Jokhi forcibly trespassed into the flat on 7th February, 2006. 5. There are three contesting view points which have emerged before the Court during the course of the hearing of the Receiver’s 5 Report in regard to flat No.1. The submission of Percy Jokhi is that he had resided together with his uncle Phiroze and aunt Jaloo during their life time and that his name was inserted in the rent receipts. Counsel appearing on behalf of Percy Jokhi has placed on the record a compilation of documents inter alia consisting of temporary rent receipts, the will of Jaloo of which probate was granted, dividend warrants, statements of the savings bank account and telephone bills. Copies of the last rent receipt have been placed on the record. The second view point which has been placed before the Court by counsel appearing on behalf of the father, Maj. Homi Jokhi, is that upon the death of Avabai on 16th August 1982, he was entitled as her son and as a member of her family residing in the premises to an interest in the tenancy rights in respect of the premises. Reliance has been placed on several documents dating back to 11th November, 1963 when an identity card was issued by the Collector of Central Excise in respect of the employment of Maj. Homi Jokhi. The identity card reflects the address of the Gazdar Mansion premises. Reliance has also been placed on savings account passbooks of 1964, 1976, 1987, 6 1984 and 1988 and upon a driving licence. Also among the documents is an application filed by the landlord in RAE Suit 3260 of 1981 for bringing the heirs of Avabai on the record. The heirs brought on the record included Homi Jokhi. The suit for eviction, the Court is informed, was dismissed for want of prosecution. Homi Jokhi has submitted before the Court through counsel that the permanent rent receipts stand in the name of Avabai. According to him his son Percy Jokhi is residing separately in his own premises being flat No.101, Morning Star, Shirley Rajan Road, Near Rizvi College, Bandra (West), Mumbai 400 050 and it was urged that the school records of his two children will clearly establish where they were residing in the past and continue to reside at present. A notice to produce documents is stated to have been issued on 30th April, 2009 to the advocate appearing for Percy Jokhi. 6. The third perspective before the Court is that of the landlord who submits that neither Maj. Homi Jokhi nor Capt. Percy Jokhi resided in the premises at all and that an effort has been made by 7 both these persons to grab the premises after Jaloo died on 6th January, 2006. 7. The position in law which must govern the case is elucidated in the judgment of the Supreme Court in Anthony C. Leo v. Nandlal Balkrishnan Khanna1 Following the judgment of the Supreme Court it is now a settled principle of law that where the Rent Act is applicable, the rights and obligations inter se between the landlord and tenant are regulated and controlled by rent legislation. The Receiver will be bound by the incidence of tenancy flowing from the statute. No order for eviction of a tenant can be passed by the Court at the instance of the Court Receiver without taking recourse to appropriate proceedings for eviction of the tenant under the appropriate statute regulating and governing the rights of landlord and tenant. Therefore, insofar as the landlord in this proceeding is concerned he would evidently have to be relegated to the remedy of instituting a suit for eviction before the competent forum. The Second Defendant to the suit in whose name the building is stated to stand has in fact 1 1997 AIR (SC) 173. 8 submitted before the Court that he has applied to the Court Receiver for permission to institute a suit for eviction. There is no reason why the Court Receiver should refuse such permission to the landlord. The Court Receiver is directed to permit the landlord to institute a suit for eviction. Whether or not the landlord is able to establish a ground for eviction would be subject to an adjudication by the competent forum under the Rent Act. All issues which would arise in the suit are kept open. 8. Insofar as the rights inter se between the father, Maj. Homi Jokhi, and the son, Capt. Percy Jokhi, are concerned, this will not be an appropriate forum for a resolution of the dispute about who among them, if at all, is entitled to a declaration of tenancy. Conflicting claims have been made. These cannot be adjudicated upon during the course of a Report of the Court Receiver. Evidence would have to be led in a duly constituted proceeding governed by rent legislation and this would be subject to an adjudication by the competent forum. The contention that has been urged on behalf of 9 Capt. Percy Jokhi, however, is that his father had trespassed into the premises when the property was custodia legis, being under the superintendence of the Court Receiver. It was urged that on 21st December, 2005 when the rent farming contractor visited the premises after the order of this Court dated 18th October, 2005 Jaloo alone was found to be present in the flat. It was urged that the father had independent premises of his own in a nearby building which he surrendered subsequently and moved into the premises in question. On the other hand, as already noted, the claim of Percy Jokhi that he was in occupation of the premises and the allegation that the father had trespassed into the premises after the death of Jaloo have been seriously disputed. The fact that Percy Jokhi has alternative premises of his own at Bandra has not been disputed. If the contention of Percy Jokhi is to the effect that he was in possession of the premises in question in Gazdar Mansion and that he was wrongfully dispossessed by his father, he would undoubtedly have remedies available to him under the ordinary law which he will be at liberty to espouse. On the state of the material as it stands on the record, it is not possible for 10 the Court to arrive at a finding that Maj. Homi Jokhi had trespassed into the premises in breach of the order dated 18th October, 2005 when the property became custodia legis. The morality or ethics involved in a son seeking the ouster of his ninety six year old father and eighty year old mother need not be commented upon by the Court. This is essentially a dispute between two wings of one family each of whom seeks to assert a right of tenancy in respect of premises which by their very nature have acquired a valuable proportion. Who among the two wings is entitled to an adjudication of their claim as tenants is not a matter on which the Court hearing a Receiver’s Report would have jurisdiction to issue even a prima facie determination. The Court Receiver has found correctly that Maj. Homi Jokhi is in possession of the premises. The directions contained in the order dated 18th October, 2005 would govern him. This Court has directed that possession should not be disturbed by the Court Receiver but he should attorn the tenancy to himself and collect the rent. It is, however, clarified that the act of the Court Receiver in doing so will not amount to an adjudication by this Court on the status claimed by 11 Homi Jokhi as a tenant and it will be open to the competent forum, in appropriate proceedings, to determine which among the conflicting claims to tenancy is liable to succeed. Court Receiver’s Report 69 of 2009 and the prior report, Court Receiver’s Report 118 of 2007 shall accordingly stand disposed of insofar as flat No.1 is concerned. 9. Insofar as flats 2, 4, 6 and 9 are concerned, the Court Receiver will place a fresh report containing the current position on whether the occupants have entered into agency agreements and whether rent has been paid upto date. *****