1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.317 OF 2010 IN APPEAL NO. 50 OF 2001 IN R.A. E & R SUIT NO. 459/1005 OF 1997 Shri Ramniklal Umarshi & Anr. ... Applicants/ Orig.defendants Vs. Pinaki J. Anjaria (since deceased) Smt. Sudha wd/o Pinaki J.Anjaria (since deceased) 1. Kalpnath Ramnaresh Yadav & Anr. Respondents/ Plaintiffs Mr. Akhilesh Dubey i/b. Sanjeev R. Singh Advocate, for the applicant.. Mr. S.U.Pandey a/w. M.S. Pandey, Advocate, for the respondents. CORAM: J.H.BHATIA, J. DATE : 6th May, 2010. P.C. 1. Heard the learned Counsel for the parties. 2. The suit was filed by the original landlord/respondents who are the L.Rs. Of the said plaintiff. The revision applicants are the defendants. Admittedly, the suit premises were let out to one Umershi Devji Shah. It is the contention of the plaintiffs that the tenant was not occupying the premises for 2 long time and he had sub-let the premises to the applicant no.2 – Rekha Nemichand Furia, who is in actual possession of the premises. Initially, on behalf of the defendants, it was pleaded that the premises were let out to a firm of which Umership Devji Shah was a partner and therefore, the other members of the firm are entitled to continue as tenants. However, the trial Court held that it was not the firm, but Umership Devji Shah was tenant in his individual capacity. It was held that he was not residing in the premises and he had sub-let the premises to defendant No.2 – Rekha Furia. In the result, the suit was decreed. Appeal No.50 of 2001 preferred by the defendants came to be dismissed. There is a concurrent finding of facts that the premises were sub-let by the original tenant to the defendant No.2. The defendants have preferred the present Revision Application. 3. During the pendency of the Appeal, the defendants had moved an application for amendment in the written statement to add a new ground to the effect that Rekha Furia being the grand-daughter of deceased Umership Devji Shah was living in the said premises as a member of the family of Shah Umership Devji and as his legal heir. That application for amendment was rejected. The Writ Petition filed by them challenging the rejection was also rejected. However, while dismissing that writ petition, this Court had observed that if the decree passed by the Appellate Court will be adverse, the petitioners, while challenging 3 the decree, could challenge the impugned order. 4. According to the learned Counsel for the defendants/applicants, Umership Devji Shah had two sons, viz. Ramniklal and Vasantji and one daughter, Velbai. The defendant No.2 – Rekha is the daughter of Velbai. The learned Counsel contends that she was living in the suit premises as a member of the family of Umership Devji Shah as her legal heir. As per the provisions of Section 5(11)(c) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, when the tenant dies, 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, shall be treated as tenant in relation to the premises let for residence. After marriage, a woman does not continue to be member of the family of her father. She becomes member of the family of her husband. Therefore, mother of the defendant no.2 could not be treated as a member of the family of her father. Naturally, defendant no.2 could be member of the family of her father, but could not be member of family of her mother’s father. It was not the case of defendants that Velbai was divorced or deserted by her husband or that she was widow and therefore was living with her father. Besides this, admittedly, Ramnikal and Vasanji both sons and Velbai, daughter of the original tenant were very much 4 alive on his death and evidence of Velbai was also recorded in the suit. In such circumstances, the defendant No.2 could not be even legal heir of Umershi Devji Shah in view of the provisions of the Hindu Succession Act. Only a daughter of pre-deceased daughter can be a heir in the Class I and as her mother was live, defendant No.2 could not be the legal heir of her maternal grandfather along with her mother and maternal uncles. Therefore, I find no substance in the contention of the defendants. 5. For the aforesaid reasons, I find no illegality or irregularity in the impugned order. 6. In the result, the Revision Application stands dismissed. 7. Request to stay the impugned decree has no merit and hence stands rejected. (J.H.BHATIA,J.)