1 app457.06.sxw ast/- IN THE HIGH COURT JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 457 OF 2006 IN SUIT NO. 339 OF 1991 WITH CHAMBER SUMMONS NO.1053 OF 2006 IN APPEAL NO.457 OF 2006 IN SUIT NO.339 OF 1991 Miss Thrity Sam Shroff ) aged about 55 years, ) permanently residing at ) Roxana Block No.5, ) 2nd floor, 109 M. Karve Marg, ) Mumbai 400 020. )... Appellant. (Org.Defendant No.8A) V/s. 1. Mehroo Meherji Vakil ) of Bombay Indian ) Inhabitant residing at ) Block No.5, 2nd floor, ) Roxana Bldg.109 M.Karve ) Road, Bombay 400 020 ) 2. Dr.(Mrs.)Meher Jimmy Vakil) of Bombay Indian ) Inhabitant residing at ) Hari Nivas, 26-B New ) Queens Road, Opp.Roxy ) Cinema, Bombay 400 004. ) 3. Jimmy Dhunjishaw Vakil ) (deleted) (a) Dr.Parekh Jimmy Vakil ) (b) Miss Pheroze Jimmy ) Vakil, both residing at) 2 app457.06.sxw Hari Niwas, 26-B, New ) Queens Road, Opp Roxy ) Cinema,Mumbai 400004. ) (c) Ms.Dhun Ruttan Tate ) Maskhati Corner, ) 37,Altamount Road, ) Mumbai 400 026. ) 4. Shiraz B. Anklesharia ) Bombay Indian Inhabitant ) residing at 1980, Convent ) Street Sakar Villa Camp, ) Pune 411 001. ) 5. Aspi Byramji Anklesharia ) Indian Inhabitant residing) at 1980 Convent Street, ) Sakar Villa, Pune 411001.) ... Respondents. (Org. Plaintiff Nos. 1,2, 3 & Org. Def. 6 and 7) Mr. Rustom Bhagalia for appellant. Mr. Hiralal Thakkar, Sr. Advocate with Mr. Vishal Thakkar, Ms. Vaijayanta Shete & Ms. Jesse Correliaus i/b. Gagrats for Respondents. --- CORAM: D.K.DESHMUKH AND V.R.KINGAONKAR,JJ. DATED: 12th APRIL, 2010 JUDGMENT : (Per V.R. Kingaonkar,J) 1. This Appeal arises out of judgment and decree rendered by the learned single Judge in suit no. 339 of 1991. By the impugned judgment, the suit filed by the respondent Nos.1 to 3 came to be decreed. 3 app457.06.sxw 2 The suit was for declaration to the effect that the defendants are trespassers and for their eviction as well for recovery of mesne profits. 3. Subject matter of the suit is part of flat no. 5 and garage no. 10 of building called Roxana situated at 109, Maharshi Karve Road, Bombay. The suit property is described by means of blue colored lines as shown in sketch map marked Exh. P-4 . It will be referred hereinafter as the suit premises . The appellant is original defendant no.8-A, who was subsequently added as party to the suit after death of her mother by name Pilloo, who was original defendant no.8. 4. The facts necessary for the purpose of the present appeal are that one Banoobai Vatchagandhy was tenant of the flat no. 5 alongwith garage no.10. She was residing in the suit flat alongwith relatives by name Meherji Vakil and Bomanshaw Vakil ( B.R.B. Vakil ). Their internal relationship can be gathered from following pedigree table. 4 app457.06.sxw Bomanshaw Vakil-wife | | | | Jamshedji-Meherbanoo Rustomji-wife Daughter-husband (Vakil)(died) (Vakil)(died) | | | | ------------------- ------------------------------------ | | | | | | | Meherji- Dhunjishaw Khorshed Bomanshaw@BRB Shera Banoobai Mehroo(wife) -Pilloo (Khansaheb) (Vakil) (Anklesaria) (Vatchagandhy) (Vakil) (Vakil) (died) (died) (died) (Pltf.No.1) (Pltf.No.3) | | (Vakil) | | | Jimmy-Dr.Meher --------------- ------------------------------ (Vakil) | | | | | (Pltf.No.2) Sam-Roshan Pilloo Roshan Shiraj Aspi (Khansaheb) (Shroff) (Khansaheb)(Ankalesaria)(Ankalesaria) (deceased deft.No.8) | Ms.Thrity(appellant -deft.No.8A) For sake of convenience, the parties may be referred by their nomenclature in the suit. 5. There is no dispute about the fact that flat no. 5 was purchased by deceased Meherji while he and B.R.B. Vakil were jointly occupying the suit flat as joint tenants after the death of Banoobai Vatchagandhy, who died somewhere in 1946. The plaintiff no. 1 is wife of deceased Meherji Vakil. The plaintiff nos. 2 and 3 are wife and husband interse. They claim right of succession through 5 app457.06.sxw deceased Meherji J. Vakil. It is an admitted fact that Meherji J. Vakil had agreed to purchase the flat and the garage from the original owners (landlords). An agreement of sale was executed in favour of deceased Meherji J. Vakil alongwith the the plaintiff no. 1 on 17th January, 1985 for consideration of Rs. 1,50,000/- by the original owners (landlords). The consideration amount was shared equally by deceased Meherji J. Vakil and the plaintiff No.2. Deed of assignment dated 16th March 1995 (Exh.E-6), was subsequently executed in their favour. It is also an admitted fact that deceased B.R.B. Vakil was a bachelor and had continued to reside in the suit premises, which is a small part of the flat no. 5, until his death which occurred on 09.10.1989. 6. Briefly stated, the plaintiffs case is that the joint tenancy rights of deceased Meherji Vakil and B.R.B. Vakil constituted one and single tenancy. The tenancy rights had merged in the rights of ownership when deceased Meherji and the plaintiff No. 2 purchased the flat no. 5. The joint tenancy, 6 app457.06.sxw thereafter came to an end. Still, however, deceased B.R.B. Vakil was allowed to occupy the suit premises only as gratuitous licensee of deceased Meherji J. Vakil. The rent was jointly paid by deceased Meherji Vakil and B.R.B. Vakil only till the month of December, 1984 but lateron after January, 1985 only deceased Meherji and the plaintiff no.2 had paid all the outgoings in respect of the flat no. 5 including the suit premises. The suit premises were never occupied by deceased B.R.B. Vakil along with any other relatives, including mother of the appellant, nor he utilized facility of garage because he did not have any car with him. Alternatively, at the time of death of B.R.B. Vakil only sole surviving nearest relative was Meherji Vakil and therefore whatsoever rights former had in respect of the suit premises had devolved only upon the latter. 7. The plaintiffs case further is that the defendant nos. 4 to 8 claimed to be heir and legatees under a will deed executed by deceased B.R.B. Vakil on 23rd February, 1988. The original 7 app457.06.sxw defendant nos. 1 to 3 claimed to be executors of the will deed. The defendant nos. 4 to 8 had filed a suit bearing no. 8547 of 1989 against deceased Meherji Vakil for injunction, restraining him from dis-possessing them from the suit premises or parting with possession thereof to any one else. The interim injunction sought was,however, refused on the basis of statement made by deceased Meherji that he had no intention to illegally oust any one and appropriate steps/ proceedings were contemplated for removal of the defendants. Thereafter, the suit was filed by the present respondent Nos.1 to 3 (plaintiffs) for declaration, recovery of possession and mesne profits. 8. It is not necessary to consider the defense raised by the original defendant nos. 1 to 6. The deceased defendant no. 8 had resisted the suit by filing a separate written statement. She alleged that the agreement entered into by deceased Meherji Vakil and the plaintiff no. 1 with owners (landlords) was void. It was alleged that the suit premises and 8 app457.06.sxw the flat no. 5 had been held by deceased Meherji Vakil and the plaintiff in trust for the benefit of B.R.B. Vakil. It was alleged that deceased B.R.B.Vakil never surrendered his tenancy rights in respect of the suit premises and, therefore, he remained to be a tenant to the extent of half share in flat no.5 because he and deceased Meherji Vakil were tenants in common. It was contended that since 1975 the contesting defendant no.8 started residing with deceased B.R.B. Vakil after she became widow. It was her case that she was member of his family at the time of his death and as such she had right to occupy the suit premises as a tenant. She also raised jurisdictional issue, alleging that the eviction suit could be filed only in the Small Causes Court, Bombay. Consequently, she sought protection and urged for dismissal of the suit. 9. After hear death, during pendency of the suit, the present appellant was impleaded as the defendant no.8-A being daughter of deceased defendant no.8-Pilloo. She adopted same pleadings 9 app457.06.sxw and contentions as were raised by the deceased defendant no.8. 10. The parties went to trial on various issues settled by the learned Single Judge. They adduced oral and documentary evidence in support of the rival contentions. On merits, the learned single Judge held that the defendants failed to prove that the agreement dated 17th January, 1985 and the assignment deed dated 16th March, 1995 are void and inoperative. He further held that they failed to prove that half share of flat no.5 was held by the deceased Meherji Vakil and the plaintiff No.1 as trustees of deceased B.R.B. Vakil. He came to the conclusion that deceased B.R.B. Vakil was a gratuitous licensee of the suit premises since January, 1985 till his death. He held that the tenancy rights were submerged in favour of the deceased Meherji Vakil and the plaintiff no.1, and, therefore, deceased B.R.B. Vakil had no legally transferable right left with him in respect of the suit premises. He held that the defendants were trespassers in the suit 10 app457.06.sxw premises and the deceased defendant no.8 was not residing with B.R.B. Vakil as member of his family. The suit was, therefore, decreed in toto. 11. We have heard learned counsel for the parties in extenso. We have carefully gone through the relevant oral and documentary evidence tendered by the parties. Amongst various contentions, one of the contentions raised by the learned counsel for the appellant is that the tenancy rights continued to remain with deceased B.R.B. Vakil notwithstanding the agreement of sale entered into between owners on one hand and deceased Meherji Vakil and the plaintiff no.1 on the other hand. 12. It appears from the record that originally one Jassawala was the owner of Roxana building. The building comprises of various flats including the Flat No.5, which consists of the suit premises. By Indenture of Assignment of Rights dated 26th February, 1982, which was lateron registered on 1st September, 1984, said Jassawala assigned the rights of ownership 11 app457.06.sxw of the building to Madanlal Gupta. Thereafter, the joint tenancy of Meherji Vakil and B.R.B. Vakil was attorned the subsequent owners. It is explicit that they paid rent to said Madanlal Gupta and Murarilal Gupta for period between March, 1982 to May, 1984 as per the rent receipts(Exh.D-17 colly.). The owners had offered the flats for sale to the tenants or to the assignees of the tenants. In pursuance to such offer for sale of the flat No.5, deceased Meherji Vakil and the plaintiff No.1 jointly entered into the agreement of sale dated 17th January, 1985, which was registered on 14th July, 1985(Exh.P-2). It is amply clear that deceased B.R.B. Vakil did not purchase any part of the flat No.5. 13. It has come on record that only deceased Meherji Vakil and the plaintiff No.1 paid consideration of Rs.1,50,000/- to Madanlal Gupta and Mararilal Gupta. One cannot be oblivious of the fact that deceased Meherji Vakil and B.R.B. Vakil had inherited joint tenancy from original tenant Banoobai Vachhagandhy. The tenancy rights were indivisible. 12 app457.06.sxw Once it is found that it was joint tenancy and that deceased B.R.B. Vakil was not co-tenant but was a joint tenant with the deceased Meherji Vakil, then it goes without saying that the tenancy rights of both of them were subrrogated in the ownership rights acquired by Meherji Vakil and the plaintiff No.1. It is significant to note that after January, 1984, B.R.B. Vakil did not pay any rent to the previous owners i.e. Madanlal and and Murarilal Gupta, nor he had paid any rent to Meherji Vakil and the plaintiff No.1. There is no scintilla of evidence to infer that he asserted tenancy rights thereafter until his death. As stated before, he was a bachelor and was perhaps satisfied when he was permitted to occupy the suit premises as a licensee of deceased Meherji Vakil and the plaintiff No.1. There was no dispute raised during life time of B.R.B. Vakil, nor he had ever set up his independent rights either as owner or tenant against Meherji Vakil and the plaintiff No.1. It is only after his death that the deceased Defendant No. 8, alongwith other Defendants had staked the claim alleging inheritance of the tenancy right available 13 app457.06.sxw to deceased B.R.B. Vakil. However, once it is found that there were no tenancy right left with deceased B.R.B. Vaikl, it follows that they could not have inherited any such rights from him. 14. The doctrine of merger as provided under section 111(d) and (f) of the Transfer of Property Act would come into play in view of the subsequent purchase of Flat No.5 by deceased Meherji Vakil and the plaintiff NO.1. Section 111(d) and (f) may be reproduced for ready reference, as below: 111. Determination of lease.-A lease of immovable property determines - (a) ***** (b) ***** (c) ***** (d) in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right; (e) ***** (f) by implied surrender; Doctrine of merger contemplates(i) confluence of the interest of the lessee and interest of lessor; (ii) for the whole of the property; (iii) at the same time; (iv) for one person; and (v) for the same 14 app457.06.sxw right. So, where there is complete union of whole interest of the lessor and the lessee so as to enable the lesser interest of the leasehold rights to get merged into larger interests of the lesser i.e. Ownership rights in favour of the lessee, the lease would stand extinguished. For the lessee cannot be at the same time both, a landlord as well as a tenant. It need not be reiterated that since the Flat No.5 was being occupied by deceased B.R.B. Vakil and Meherji Vakil as joint tenants, soonafter the purchase transaction in favour of the latter and the plaintiff No.1, the ownership rights were acquired by them. With the result, the joint tenancy had merged into the larger interest, namely, the right of ownership, in their favour. 15. At this juncture, it may be noticed that Flat NO.5 was not subdivided by mets and bounds, so as to create two different segments which could be separately used. It has come on record that deceased B.R.B. Vakil was required to use common passage earmarked by green line as shown in the sketch 15 app457.06.sxw appended with the plaint(Exh.P-4). On behalf of the defendants, only defendant No.7 was examined in support of the averment that at the time of death of B.R.B. Vakil, the defendant Nos. 4 to 8 were residing with him. He admitted that after death of B.R.B. Vakil, the defendant No.4 and 5 migrated to Surat whereas the Defendant Nos.6 and 7 migrated to Pune. He admitted that the Appellant(defendant No.8A) had come to reside in the suit premises only since 1994. This admission of the witness reveals that the Appellant was not residing with deceased B.R.B. when death of the latter had occurred on 9/10/1989. The witness further admitted that prior to 1994, the defendant No.8A(Appellant) was residing in U.K. being a British citizen. It is pertinent to notice that the Appellant did not enter the witness box. In this view of the matter, it will have to be said that the learned Single Judge rightly inferred that none of the defendant Nos. 5 to 8 and 8(A) was residing with B.R.B. Vakil at the time of his death, i.e. 9/10/1989. Necessary corollary of this finding is that deceased defendant No.8 started to occupy the 16 app457.06.sxw suit premises after death of B.R.B. Vakil and could be regarded as a trespasser. She had no legal authority to remain in possession of the suit premises. It is manifest that the Appellant had no legal right to remain in possession of the suit premises. Her possession qua the plaintiffs is unauthorised. 16. In Harish Tandon v/s. Additional District Magistrate, Allahabad, U.P. and ors. (1995) 1 SCC 537, the Apex Court observed as stated below: 22. The attention of the learned Judges constituting the Bench in the case of H.C.Pandey v. G.C. Paul was not drawn to the view expressed in the case of Mohd. Azem v. Distt. Judge. There appears to be an apparent conflict between the two Judgments. It was on that account that the present appeal was referred to a Bench of three Judges. According to us, it is difficult to hold that after the death of the original tenant his heirs become tenants-in-common and each one of the heirs shall be deemed to be an independent tenant in his own right. ..... (emphasis supplied) We are of the view that if it is held that after the death of the original tenant, each of his heirs becomes independent tenant, then as a corollary it has also to be held that after the death of the original tenant, the otherwise single tenancy stands split up into several tenancies and the landlord can get possession of the building only if he establishes one or the other ground mentioned in sub-section (2) of Section 20 against each of the heirs of original tenant. One of the well- 17 app457.06.sxw settled rules of interpretation of statute is that it should be interpreted in a manner which does not lead to an absurd situation. 23. It appears to us, in the case of H.C.Pandey v. G.C.Paul it was rightly said by this Court that after the death of the original tenant, subject to any provision to the contrary, the tenancy rights devolve on the heirs of the deceased tenants jointly. The incidence of the tenancy is the same as those enjoyed by the original tenant. It is a single tenancy which devolves on the heirs and there is no division of the premises or of the rent payable therefor and the heirs succeed to the tenancy as joint tenants. This decision of the Apex Court therefore clearly settles the position in law that tenancy inherited by the heirs after the death of original tenant, would be the joint tenancy and not tenancy in common. 17. Assuming for moment that deceased B.R.B.Vakil held separate leasehold rights in respect of the Suit premises, then also it is difficult to countenance the plea of inheritance of such rights by the Appellant. First, in his life time B.R.B.Vakil did not claim any separate leasehold rights. He did not pay any rent to deceased Meherji Vakil or the previous owners i.e. Madanlal Gupta and Murarilal Gupta after January, 1985 till his death i.e. 18 app457.06.sxw October, 1989. This peculiar conduct of deceased B.R.B.Vakil accompanied by other attending circumstances like lack of division of the Flat No.5, his being a loner and bachelor, absence of any document drawn by him to set up the claim for leasehold rights etc. would go to show that he had impliedly surrendered the lease hold rights, whatsoever could be available to him. In other words, to his extent the tenancy had extinguished as provided under Sec. 111(e) of the Transfer of Property Act. Obviously, neither deceased defendant No.8 nor the appellant could have inherited any such right which deceased B.R.B.Vakil himself had impliedly surrendered by his conduct and acts, during his life time. 18. Alternatively, it is contended by the learned Counsel for the Appellant that the appellant is entitled to inherit the leasehold rights through deceased Khorshedbanoo, who was mother of deceased defendant No.8-Pilloo, because she was original tenant alongwith deceased Banoobai Vatchagandhy since 19 app457.06.sxw 1938. We do not find any substance in this contention. There is no iota of evidence to hold that deceased Banoobai and deceased Khorshedbanoo were co-tenants or were jointly having leasehold rights of the Flat No.5. It is an admitted fact that deceased defendant No.8-Pilloo had left the mother s house in 1951 after her marriage and started residing with her husband in a Flat situated in Cozy building. The deceased defendant No.8 Pilloo became widow in or about 1975. In the meanwhile, her mother  Khorshed banoo had died and the socalled joint- leasehold rights, if any, had submerged in favour another joint tenant i.e.Banoobai. We find no iota of evidence to support such a plea raised in defence by deceased defendant no.8 and the Appellant. 19. We have noticed from the record that deceased B.R.B. Vakil was given offer to purchase the Flat No. 5 when original owner Jassawala desired to alienate the same. He had, however,refused to purchase it. The letter correspondence (Exh.D-1 and Exh.D-2) would show that even deceased Meherji Vakil had given such 20 app457.06.sxw option to B.R.B. Vakil but the latter had refused to exercise such option. It is amply clear that since 1981, the offer was kept open uptill about May, 1984. A letter dated 24/4/1984(Exh.P-20) reveals that deceased B.R.B. Vakil had raised various deficiencies in the proposal for the offer. He ultimately did not accept the proposal and therefore, in January, 1985 Meherji Vakil and the plaintiff No1 on one hand and the owners Madanlal and Murarilal Gupta on the other hand, entered into the agreement of sale. It is explicit, therefore, that B.R.B. Vakil was disinterested in acquisition of title of any part of the Flat No.5. Needless to say, it is difficult to infer that deceased Meherji Vakil and the plaintiff No.1 were holding the said Flat in trust for the benefit of deceased B.R.B. Vakil. The argument of the learned Counsel for the Appellant, in the context of such issue, is without merits. 20. The learned Counsel for the Appellant would submit that since tenancy issue is involved, the learned Single Judge had no jurisdiction to entertain 21 app457.06.sxw the Suit and that it ought to have been held that only Small Causes Court, Bombay will have jurisdiction to try the suit. He argued that the issue whether the mother of the Appellant was member of the family of the original tenant and thereafter the Appellant became entitled to claim tenancy rights in respect of the suit premises is exclusively within the domain of the jurisdiction of the Small Causes Court. He contended that under Section 5(11)(a)(c) (i) of the Bombay Rent Act, the deceased defendant No.8 was a tenant and thereafter, the Appellant became tenant of the suit premises in view of section 7(15)(a)(iv)(v)(d)(i) of the Maharashtra Rent Control Act and therefore, jurisdiction would be only with the Small Causes Court as contemplated under section 33 of the Maharashtra Rent Control Act. We find that such contention of the learned Counsel is unacceptable and farfetched. For, deceased Meherji Vakil and deceased B.R.B. Vakil were joint tenants of the Flat No.5 and, therefore, no there remains no tenancy right remained with B.R.B. Vakil after purchase of the flat by Meherji Vakil and the 22 app457.06.sxw plaintiff No.1. 21. It may be mentioned here that several authorities were referred to by the learned Counsel for the Appellant in support of the contention that the exclusive jurisdiction is with Small Causes Court and the tenancy issue could not have been decided by the learned Single Judge. He referred to various Judgments such as (i)2009AIR SCW 136(Mantoo Sarkar V/s. Oriental Insurance Co. Ltd. & Anr.); (ii)AIR 2007 HP 11(FB)(Prithvi Raj Jhingta & Anr. v/s. Gopal Singh & Anr.); (iii) AIR 1958 SC 677(Babulal Bhuramal v/s. Nandram Shivram); (iv) AIR 1964 SC 1348(Raizada Topandas v/s. M/s. Gorakhram Gokalchand); (v) AIR 1967 SC 369(Vasudev Tambwekar v/s. Board of Liquidators, Happy Home Co-op. Hsg.Soc. Ltd.); (vi) AIR 1965 Bombay(FB) 177(Dattatraya Jangam v/s. Jairam Gore); (vii) AIR 1951 Bombay 390(Govindram Salamatrai v/s. Dharampal); (viii) 56 BLR 540(Mehersingh Sethi v/s. Khurshed Satarwala); (ix) 58 BLR 288(Harswarup Khannamal v/s. Nandram Shriram); (x) 22 GLR 674(Nafisaben Tofafarosh v/s. John alias Zenub Babuji 23 app457.06.sxw & ors.); (xi) 27(1) GLR 232(Shantukumar Sharma v/s. Kumudchand Shah. 22. We do not find it necessary to deal with these authorities for the reason that in our opinion, even