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Whether civil court can grant declaration that legal heir of tenant is entitled to get permanent alternate accommodation?

IN THE HIGH COURT OF BOMBAY

Appeal From Order No. 1221 of 2012 and Civil Application No. 1660 of 2012

Decided On: 07.08.2013

Sanjay Govind Ganjekar & Ors.
Vs.
Krishna Kashiram Mistri & Ors.

Hon’ble Judges/Coram:R.S. Dalvi, J.
Citation: 2013(5) MHLJ 726

1. The Appellants (original Plaintiffs) have challenged the order of the learned Judge, City Civil Court, Mumbai dated 11th September, 2012 returning the plaint filed by the Appellants for presenting in proper Court. The Plaintiffs sued for a declaration claiming right, title and interest as heirs and legal representatives of the deceased tenant, their father. They have sued Defendant Nos. 1 and 2 against whom they claim their right on succession as also against the developer and the Cooperative Society in which the suit premises has been redeveloped. The fact that the father was the tenant of the old premises is not disputed. The relationship between the parties is also not disputed. The Plaintiffs are two of the heirs being two of the daughters of the deceased tenant.

2. The claim of the Plaintiffs in paragraph 18 of the plaint over the suit premises, which was the premises tenanted by their father, is as the only surviving heirs and legal representatives of the deceased tenant and his deceased widow under the provisions of Hindu law of Succession. The averments in paragraph 18 expressly specify that the Plaintiffs are not claiming tenancy rights but are claiming rights under the Hindu Succession Act.

3. The Plaintiffs have claimed that Defendant No.1 has no right, title and interest under the law of inheritance and Succession as also no tenancy rights.

4. In their capacity as heirs and legal representatives of the deceased, the Plaintiffs claim entitlement to the permanent alternate accommodation in the premises redeveloped and reconstructed by MHADA, Defendant No.4. Consequently the suit is for declaration that the Plaintiffs are entitled to permanent alternate accommodation in lieu of the suit premises which was the tenanted premises of their father and for injunction restraining Defendant No. 3, the developer, from handing over possession of the permanent alternate accommodation in the newly constructed building to Defendant Nos. 1 and 2 and to handover possession to the Plaintiffs instead. Consequently as an ancillary relief the plaintiff has prayed for cancellation of the approval granted to Defendant No.1 as tenant/occupant of the suit premises.

5. Upon the admitted facts the Court would have to decide the Plaintiffs’ right of inheritance under the Hindu Succession Act. Upon so deciding the Court would either have to pass relief’s of declaration of the permanent alternate accommodation to the Plaintiffs and not to Defendant No.1 and the consequential relief of cancellation of the claim of the Defendant No.1 if the Plaintiffs makes out a case on merits in that behalf or to dismiss the suit if the Plaintiffs do not make out a case of their right on succession claimed by them.

6. These relief’s have to be granted only by a Civil Court. There is no law which has expressly or impliedly barred the Civil Court from exercising jurisdiction in respect of declaration and injunction sought by the Plaintiffs under the Hindu Law of inheritance.

7. An analogy can be drawn from the judgments of this Court in the cases of Mohinder Kaur Kochar Vs. Mayfair Housing Pvt. Ltd. & Ors., MANU/MH/1377/2012 : AIR 2013 Bom. 57 and Vardhman Developers Vs. Thailambal Co-Op. Hsg. Soc. Ltd. & Ors. in Notice of Motion No. 3274 of 2010 in Suit No. 2725 of 2010 dated 7th March, 2011 in which it has been held that the civil court’s jurisdiction is not barred by the provisions contained in Section 91 of the Maharashtra Co-Operative Societies Act, 1960 in case of redevelopment of the Society building in a suit for claiming rights upon redevelopment.

8. The learned Judge in the impugned order has set out that the Plaintiffs are claiming rights over tenanted premises as the only surviving heirs and legal representatives under the Hindu Law of Succession as also “tenancy rights under the Law of Inheritance”. The learned Judge has considered the entitlement to the preferential rights conferred under 5 (11) (c) of the Bombay Rent Act, 1947 to the person who can be recognised thereunder.

9. A reading of the plaint would show that the Court would not be called upon to decide the claim regarding tenancy at all in the suit. Consequently the reliance upon judgments by the learned Judge is misplaced to determine the Court’s inherent jurisdiction. The Civil Court would have to consider whether under those judgments more specially the judgment in the case of Vasant Pandit Vs. Anand Tipnis, 1994 MLJ 1450 SC dealing with the heritability of tenancy rights to the heirs of the deceased tenant, the Plaintiffs can or can not claim as heirs of their father, the deceased tenant under the Hindu Succession Act.

10. It may be mentioned that for obtaining the declaration the Plaintiffs may have to file yet another suit in the rent Court if required. However, in the suit before City Civil Court the declaration and injunction sought would have to be given only by the Civil Court. Such declarations cannot be given by the rent court.

11. Mr. Parekh on behalf of the Respondent argued that the Plaintiffs’ claim even as heirs would have to be decided only after the Plaintiffs obtained a declaration that they are tenants which declaration cannot be granted by the Civil Court. That may necessitate another suit in the rent court. The Plaintiffs have not prayed for declaration that they are tenants. In fact the Plaintiffs have specified in paragraph 18 of the plaint that they are not claiming tenancy rights. Hence the Civil Court would have to only see whether the Plaintiffs as admitted heirs of the deceased would be entitled to inherit the suit premises otherwise then as tenants and only as heirs of the deceased tenant. That cannot oust the jurisdiction of the civil court.

12. The analogy can also be drawn from the case of Kanji Manji Vs. The Trustees of the Port of Bombay, MANU/SC/0337/1962 : AIR 1963 SC 468. A monthly lease of land was made by BPT to five lessees. BPT sued to recover the land from the lessees in the Bombay City Civil Court which suit came to be decreed. The suit was for eviction from BPT land only. Such land was not included in the definition of premises U/s. 5(8) of the Bombay Rent Control Act. Similarly, U/s. 4A land belonging to BPT as local authority was exempt. Hence Civil Courts jurisdiction was held not barred.

13. Even in the Judgment in the case of Ashok Chintaman Juker & Ors Vs. Kishore Pandurang Mantri & Anr., MANU/SC/0332/2001 : AIR 2001 SC 2251, the members of the family of the original tenant are observed to be have succeeded to the tenancy in Paragraph 16 thereof. In that case on the death of the original tenant the rent bills were issued in the name of the elder son and on his death in the name of his widow without division of premises. It was held the tenant impleaded in the suit by the landlord who was one of the heirs represented all the tenants and that was on the analogy that all of them succeeded to the tenancy together as joint tenants.

14. The learned Judge has also observed in paragraph 14 of the impugned order that the Civil Court would have to decide whether or not the declaration and injunction sought by the Plaintiffs could be granted without the Letters of Administration. It may be mentioned that it is for the civil court to grant or reject the declarations sought on merits of the Plaintiffs’ case. For the Plaintiffs to obtain representation of the Court to administer the estate of the deceased, the Plaintiffs may, if required, obtain the representation from the competent court of Testamentary and Intestate jurisdiction, but that requirement also cannot bar the Civil Court’s inherent jurisdiction to decide whether or not to grant the relief’s claimed in the suit.

15. No other court can grant the relief’s sought in the suit of the Plaintiffs. Hence the Civil Court’s jurisdiction cannot be barred. Consequently the impugned order holding that civil courts have no jurisdiction is seen to be erroneous and hence the order directing return of plaint is required to be and is set aside. The suit shall proceed in the Bombay City Civil Court in accordance with law.

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