1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.350 OF 1993 Date of decision: 31/3/2010 For approval and signature HON'BLE MR. JUSTICE K.U.CHANDIWAL 1. Whether the Reporters of Local Papers Yes. may be allowed to see the Judgment ? 2. To be referred to the Reporter or not ? No 3. Whether Their Lordships wish to see No. the fair copy of the Judgment ? 4. Whether this case involves a substantial? No. question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ? 5. Whether it is to be circulated to the No. Civil Judges ? 6. Whether the case involves an important No question of law and whether a copy of the Order should be sent to Bombay, Goa and Nagpur Office ? (A.G. PARALIKAR) Private Secretary agp/office/350-93sa 2 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.350 OF 1993 Haji Yousuf Haji Hussain, Age 50 years, occu. Business, r/o.250, Joshi Peth, Jalgaon. ...APPELLANT (Orig.Plaintiff) VERSUS Bhagwan Dagdu Thakare, Age 33 years, occu.Service, r/o. c/o Shrikrishna Hindu Hotel, Opp.Ashok Theatre, 71, Polan Peth, Jalgaon. Died, through LRs. 1. Kalabai w/o Bhagwan Thakare, Age 60 Years, Occup.Household, 2. Rajendra Bhagwan Thakare, Age 35 years, Occup. Business. 3. Satish Bhagwan Thakare, Age 32 years, Occup.service, 4. Shyam Bhagwan Thakare, Age 30 years, Occup. Business. 5. Praveen Bhagwan Thakare, Age 28 years, Occup.Business. 6. Nana Bhagwan Thakare, Age 24 years, Occup. Business. 3 All r/o Shri Krushna Hindu Hotel 71 Polen Peth, Opp.Ashok Talkies, Jalgaon. ...RESPONDENTS (Orig.Defendant) ... Shri S.S.Kazi, Adv., for the appellant. Shri L.V.Sangit, Adv., for respondent nos. 1 to 5. Respondent no.6 served. ... CORAM: K.U. CHANDIWAL, J. DATE :31/3/2010 *** ORAL JUDGMENT: 1. Heard Mr.Kazi and Mr. Sangit, Counsel for the respective parties. 2. The plaintiff (landlord) filed RCS No. 183/1983 before the 5th Joint Civil Judge, Junior Division, Jalgaon, on 13.4.1983, seeking eviction of the defendant/respondent and lost by order dt. 10.12.1987. Being aggrieved by the order of dismissal, he preferred Regular Civil Appeal No. 8/1987, before the learned Additional District Judge, Jalgaon, lost by judgment dt.6th March, 1993. The finding are challenged in the Second Appeal and on 13.10.1993, the Second Appeal is admitted on ground nos.19 and 20, to be the substantial questions of law. 4 "XIX. It is most crucial point for decision in this second appeal that how far the courts below go to return a finding that the defendant- respondent was the member of the family of the original tenant in the absence of the pleadings. The written statement filed by the defendant-respondent at ex.20 only speaks of his adoption and as legatee under the will. Never as he stated therein that he is a member of the family of the deceased aliunde. Nor has he shown any relationship with the deceased either through his son or other relations. In this way, the attempt of the learned Judge in the Court below to make out a case for the defendant-respondent of which he himself was in blissfully ignorance speaks volumes about the perversity of the family as so-called. XX. The interpretation of the term "member of a family" is a substantial question of law in this second appeal as the lower appellate Court has ventuated (ventured) to do in the impugned judgment." 3. The plaintiff is the owner of the property where the original tenant Zavaru Goba Thakare was conducting a hotel/commercial establishment under the name and style as Shrikrishna Hindu Hotel on monthly rent of Rs. 19/-, excluding permitted increases. Zavaru Goba Thakare died issueless. The defendant staked a claim as the family member of said 5 Zavaru Goba Thakare, having worked since childhood in the hotel. The plaintiff (landlord) asserted, the defendant is not legal heir of deceased. Zavaru Goba had no interest in the suit property as the status of the defendant was that of servant of Zavaru Goba. Consequently, the plaintiff asserts that the possession on the suit premises of the defendant is unlawful, without any title or any contractual relations. The plaintiff issued a notice to the defendant, calling upon him to hand over possession of the suit premises with damages and notice charges. 4. The defendant, by written statement at Exh.20, set up a claim that he is the legal heir of deceased Zavaru Goba, he was family member of Zavaru Goba till the time of his death. Zavaru Goba adopted him as his adopted son before 15/16 years. Additionally,during the lifetime of Zavaru Goba, he had executed a will deed dt.20th Oct., 1981. As per the recitals of the said will deed, he disclosed his intention to transfer his entire property, including tenancy rights/ business of the Shrikrishna Hindu Hotel in favour of the defendant as his legal heir. Defendant canvassed, he served the deceased Zavaru Goba at his old age and had shown love and affection. Better particulars were called, its reply was given. The landlord plaintiff denied about defendants status of adoptive son of the deceased or 6 execution of the will deed by the deceased Zavaru Goba. 5. Before the learned Civil Judge, Junior Division, issues were framed and, the findings are recorded against the issues, as under: "ISSUES: Findings 1. Does the plaintiff prove that after the death of Zavaru Goba Thakare, the defendant occupied the suit premises illegally, forcibly and without any right ? No 2. Does the plaintiff proves that he is entitled to recover damages from December 1982 to March 1983 at the rate of Rs.50/- ? No 3. Does the defendant proves that he is the adopted son of Deceased Zavaru Goba and as such he became the tenant of suit premises ? Yes 4. Does the defendant proves that he became tenant of suit premises in view of will dt. 20.10.1981 executed by Zavaru Goba ? Yes 5. Does the defendant proves that he is a tenant of suit premises in view of provisions of sec.5(11)(c) of Bombay Rent Act ? Yes 6. Whether the defendant entitled to compensatory costs of Rs.1000/- as claimed ? No 7. Whether the plaintiff is entitled to a decree for possession of suit premises ? No 8. Relief and costs ? As per final order 7 6. The evidence was initially adduced by the defendant and two witnesses. Thereafter it was by the plaintiff. The provisions of Section 5(11) (c) of the Bombay Rent Act, which reads as under, calls upon three requirements to be established: " In relation to any premises let for purposes of education, business, trade or storage, when the tenant died and whether it was after commencement of the said Act, any member of the tenant's family using the premises for the purposes of education or carrying on business, trade or storage in the premises, at the time of his death, or in absence of such member any heir of the deceased tenant as may be decided in default of agreement by the Court." "(i) Defendant is the member of family of Zavaru Goba. (ii) He is residing with deceased Zavaru Goba and carrying on business along with Zavaru Goba in the suit premises. (iii) That he is heir of deceased Zavaru Goba." 7. At Exh.68 is a ration card produced by the defendant showing his residence with the tenant. It is a subsequent creation after death of Zavaru Goba, the tenant. It would, thus, 8 blast that the defendant was a family member of Zavaru Goba. There is nothing to indicate, defendant was residing with Zavaru Goba as his family member or that he was carrying on the business activities in the same capacity. The evidence of defendant illustrated, he was cleaning utensils, serving as a server/waiter in the hotel while Zavaru Goba was attending cash. These also adds feather to the contention of the landlord, that defendant was not recognized as a family member of Zavaru Goba, even if he was a nephew. 8. The defendant Bhagwan, during pendency of the appeal has expired. By virtue of order dt.17.11.2008, the legal representatives are brought on record on 12.2.2009. 9. The intention of the legislature, while amending provisions of Section 5(11)(c) of the Bombay Rents, Hotel and Lodging House Rates Control Act (57 of 1947), though provides a shelter to the persons who reside with the original tenant or carrying business in the premises of the tenant at the time of his death, however, it need not be stretched to mean that any person who was not legally competent to be termed as a member of the family and not established to be residing with the tenant, could be treated and branded as a tenant. The effect 9 of Section 5(11)(c) by the Amendment, will not change the colour and complexion. 10. In the matter of Ashok Chintaman Juker and others V. Kishore Pandurang Mantri and another ( AIR 2001 SC 2251), the Apex Court has dealt with the meaning of term "tenant" as under: "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 10 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." In Kailasbhai Tiwari V. Jostna Laxmidas Pujara and another ( 2006(1) Mh.L.J. 791), the Apex Court has held, the question as to whether a person is a member of the family of the tenant has to be decided on the facts and circumstances of the case. The Apex Court observed, evidence is necessary for proving that such other relative always resided with the tenant as a member of one family over a period of time, mere fact that a relative has chosen to reside with the tenant, for the sake of convenience, would not make him a 11 member of the tenant's family. Such stay by an outsider will not make him a member of the family of the tenant in the context of Rent Control legislation. 11. The survey of evidence illustrate that both the Courts failed to appreciate it in the legal context and even misinterpreted the theme of Section 5(11)c) of the Bombay Rents, Hotel and Lodging House Rates Control Act (57 of 1947) and, thereby, an illegality has been surfaced warranting and necessitating interference in the Second Appeal. The Court found, Adoption deed not proved. By will deed rights in tenancy property can not be bequeathed. The tenant could not divest rights by the will. The propounder has to establish will, since it deprives legitimate heir from the property. This naturally excites courts opinion to search for positive evidence. However, there is no such evidence. It has been observed by this Court in D. Anant Trimbak Jabni V/s. Vasant Pratap Pandit (AIR 1980 Bom, 69), that legatee is excluded U/O 5(11) (c) (ii) of the Act of 1947, bequeath is prohibited. There was no understanding between Zavru and defendant to treat defendant as a family member, else, it could have been established by production of any document. The substantial question of law 12 formulated is answered in favour of the appellant. 12. Second Appeal (No.350/1993) is allowed. No costs. The order is stayed upto 31st July, 2010. The defendant shall not create third party rights, encumber the properties, part with its possession. A regular undertaking to be given by the respondents to the Registrar (Judicial), up to 13th April, 2010. (K.U.CHANDIWAL) JUDGE ... agp/350-93sa