C/CRA/174/2005 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 174 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE BIREN VAISHNAV
1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
RAJENDRAKUMAR S UPADHYAY DECD THROUGH HEIRS
Versus
VINODCHANDRA BACHUBHAI ALIAS PURSHOTTAMDAS SONI
Appearance:
(MR SURESHM SHAH)(805) for the PETITIONER(s) No. 1
MR. JENIL SHAH, ADVOCATE FOR MR MEHUL S SHAH(772) for the
PETITIONER(s) No. 1,1.1,1.2
MR SP MAJMUDAR(3456) for the RESPONDENT(s) No. 1
CORAM: HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 14/09/2018
CAV JUDGMENT
1 This revision application has been filed under
Section 29 of the Bombay Rents, Hotel Lodging House
Rates Control Act, 1947, by the original plaintiff.
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The respondent herein is the original defendant. The
applicantplaintiff succeeded before the trial Court
by a judgment and order dated 23.10.2001. The learned
judge of Small Cause Court, Vadodara, decreed the
suit in favour of the applicant directing the
defendant to hand over vacant possession. Aggrieved
by the order, the defendant approached the District
Court at Vadodara. In the appeal so filed, the
District Court by its judgment and order dated
07.05.2005, allowed the appeal of the defendant and
set aside the judgment and decree passed by the lower
Court in rent suit No. 136 of 1989.
2 The facts in brief are as under:
2.1 The applicant was a landlord of the suit
property. He had filed the suit to recover possession
of the property situated at Vadfadiyu, Ghee Kanta
Road, Nr. Raopura Tower, Vadodara. One Purshottamdas
Vrajlal Soni, was the tenant of the suit shop at a
monthly rent of Rs.27.50/. The said shop was let out
by the applicantplaintiff for doing job work of
gold. It was the case of the plaintiff that the
tenant had no son and was doing his business alone.
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The tenant Purshottamdas Soni died on 22.11.1983. The
present defendant is a son of the nephew of the
deceased tenant, claiming to be a family member
carrying out business at the time of the death of the
tenant. On the death of the tenant, the plaintiff
therefore filed a suit for recovery of possession.
The defendant filed Civil Misc. Application No. 167
of 1988 for fixation of standard rent.
2.2 The present respondentdefendant filed his
written statement at Exh.7 and opposed the suit. It
was his case that he was doing business in the suit
premises, and that the plaintiff had accepted the
rent in the name of the deceased tenant from him. He
denied that he was not the family member of the
deceased tenant. It was his case in the written
statement that the deceased tenant Purshottamdas Soni
had adopted him as his son in the year 1958 and he
was looking after the deceased. On 22.11.1983, he was
in possession of the suit shop in the capacity as an
adopted son. It was his case that since he was a
legally adopted son, he acquired the tenancy rights
in the suit premises under Section 5(11)(c)(ii) of
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the Bombay Rents, Hotel Lodging House Rates Control
Act, 1947. He, therefore, prayed that the suit be
dismissed. Civil Misc. Application No. 167 of 1988
was filed by the defendant for fixation of standard
rent.
2.3 The Trial Court framed issues at Exh.10 in the
rent suit. The issue, whether the defendant could
prove to be a tenant of the suit premises (and the
issue whether the plaintiff could prove that the
defendant was not a tenant under Section 5(11)(c)(ii)
of the Bombay Rents, Hotel Lodging House Rates
Control Act, 1947) was decided against the defendant.
The trial Court examined the plaintiff at Exh.15 and
the defendant was examined at Exh.33. The defendant
also examined one Shri Natwarlal Fakirchand Khatri at
Exh.92. Documentary evidence was produced by the
plaintiff at Exh.22, whereas that of the defendant
was produced at Exh.30.
3 As is evident from the case narrated herein
above, the plaintiff had approached the Court stating
that the tenanted premises was rented out to one Shri
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Purshottamdas Soni. On his death on 22.11.1983, since
he had no child and he was doing business alone in
the shop and that the present defendant had illegally
entered into the shop claiming to be his relative,
the plaintiff sought a decree of eviction. It was the
case of the defendant that he had tenancy rights
under Section 5(11)(c)(ii) of the Bombay Rents, Hotel
Lodging House Rates Control Act, 1947. The
plaintiff had evidence to show that in the year 1983
on the death of the tenant he had no heirs. That the
present defendant was not a son of the deceased and
at the time of the death, he was never doing the
business in the suit premises. The defendant deposed
at Exh.53 contending that he was the adoptive son,
adopted in the year 1958.
4 The question, therefore, that was posed before
the trial Court was that whether the defendant
respondent herein was a tenant as defined under
Section 5(11)(c)(ii) of the Bombay Rents, Hotel
Lodging House Rates Control Act, 1947, and whether he
could get the protection of the twin conditions as
stipulated under the section i.e. (A) that he was a
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family member of the tenant and (B) that he was
carrying on business in the premises at the time of
the death of the tenant. Since the defendant claimed
to be a tenant in succession, the burden to prove
such a fact was on the defendant. It was his case
that his natural father was one Bachubhai i.e. his
grandfather was one Vitthalbhai who had a brother,
the deceased tenant Purshottamdas Soni. It was his
case that he was the adopted son of the deceased
tenant. He was legally and validly adopted by the
tenant. Therefore, in his evidence at Exh.56 he had
stated on oath that he was adopted in the year 1958
at the age of 3 to 4 years.
5 Referring to the provisions of Section 11 of the
Hindu Adoption and Maintenance Act, 1955, the trial
Court came to the conclusion that except for so
stating that he was an adopted son, the defendant did
not produce any documentary evidence about adoption
ceremony. Though he admitted that he had photographs
of the ceremony, he did not produce the same, nor did
he give any explanation as to why he could not
produce such photographs. The trial Court, therefore,
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drew adverse inference.
5.1 Natwarlal Fakirchand Khatri, was examined at
Exh.92 as the defendant’s witness. This witness
merely stated that the defendant was an adopted son
and that a ceremony was performed. However, he
admitted in his crossexamination that he had not
remained present in such ceremony and that,
therefore, he had no personal knowledge about it. The
trial Court, further, observed that though the
defendant’s real mother Vimlaben, his brother Dinesh
and his sister Meenaben are alive, he did not choose
to examine them as witnesses to establish that he was
adopted by the deceased Purshottamdas Soni. The trial
Court, accordingly held that the defendant had
miserably failed to prove that the adoption ceremony
was performed at the time of adoption. The adoption
deed was produced by the defendant at Exh.59. On
examination of such deed, the Court found that the
deed was not executed and signed by the parents of
defendant but just gave him as an adopted son. In
accordance with the provisions of law, therefore, in
the opinion of the trial Court there was no giving
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and taking ceremony. The deed showed date of
registration as 27.09.1983. Obviously therefore, the
trial Court observed that if the deed was executed in
the year 1983 i.e. 25 years after the adoption, there
was reason to believe that such a deed of adoption
was not genuine. In absence of the signature of the
persons giving and taking the child, the presumption
that the trial Court drew was that there was no
adoption. Considering these facts, the trial Court
observed that since the defendant had failed to prove
that he was legally and validly adopted son of the
deceased tenant, he was not entitled to protection
under Section 5(11)(c)(ii) of the Bombay Rents,
Hotel Lodging House Rates Control Act, 1947.
5.2 An alternative case was pleaded by the defendant
that he was doing business in the premises at the
time of death of the tenant. To prove this fact, he
tried to show that he was residing with him and with
a view to substantiate this circumstance,he suggested
that he was doing job work of gold since 1975 with
the deceased tenant. At Exh.23 was produced a
certificate of the Bombay Shops Establishment Act.
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The trial Court on examination of this certificate
found that the name of the deceased tenant
Purshottamdas Soni was deleted and that of the
present defendant was inserted only on 28.11.1986
i.e. three years after the death of the tenant. The
certificate had no name or the photograph of the
family members in the columns so mentioned. The fact
that the name of the present defendant was inserted
in the year 1986 weighed with the trial Court in
holding that the defendant was not doing the job work
of gold in the disputed premises at the time of death
but after the death of the tenant.
6 It was the case of the defendant that he used to
sit in the premises and do the job work with the
deceased tenant. Registration certificate of the year
1964 was produced as stated herein above. The
defendant, further, pleaded that during the life
time of the deceased tenant, the present plaintiff
used to accept the rent from the present defendant on
behalf of the deceased tenant. Rent receipts were
produced from Exhs. 39 to 50. The trial Court has
observed that, even if it is so accepted, it cannot
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be said that the present defendant was doing business
as a tenant in the premises, because merely making
payment of rent on behalf of the deceased tenant
would not make him a tenant. The trial Court observed
that considering all these facts, the defendant not
being an adopted son, could not claim protection
under section 5(11)(c)(ii) of the Bombay Rents, Hotel
Lodging House Rates Control Act, 1947, and
accordingly decreed the suit in favour of the
plaintiff, the applicant herein.
7 Aggrieved by this judgment and decree, the
defendantrespondent herein preferred Regular Civil
Appeal No. 282 of 2001 in the Court of the Joint
District Judge at Vadodara. Interestingly, as is
evident from perusal of the judgment rendered by the
Appellate Court in favour of the defendantrespondent
herein, the Appellate Court on consideration of the
case law, affirmed the findings of the trial Court by
holding that the claim of the present defendant who
was claiming to be so adopted was not proved. On
appreciation of the evidence, the Appellate Court
came to the conclusion as under:
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“xxx xxxxx xxxxx.
The lower Court has discuss this issue at
length, therefore, I have not discuss this
issue, but looking to the evidence of the
defendant Vinodchandra there is no any
documentary evidence regarding the adoption
ceremony and registered documents Exh.59 was
executed between the defendant (adoption son)
and adopted father not by the natural father or
mother of the defendant, therefore, defendant is
unable to prove the legal and valid adoption.”
7.1 In other words, the Appellate Court affirmed the
findings of the trial Court that the respondent
defendant herein had failed to prove that he was an
adopted son, and therefore, not a member of the
tenant’s family.
8 An alternative submission was made by the
defendant for the first time before the Appellate
Court that, though he had failed to prove to be a
legally adopted son, he was entitled to claim a
tenancy right, as he was living with the original
tenant as a family member and doing business with the
deceased tenant. In support of this, the Appellate
Court considered the evidence holding that the
marriage of the defendant was held at Vadodara, where
the deceased tenant was staying and that the place of
birth of the daughter on 07.09.1978 was at the same
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place. A birth certificate of the son was also
produced at Exh.60 dated 19.05.1981 showing the place
of birth of the daughter and the son at the place of
the deceased tenant, and therefore, it was the case
projected by the appellant that he was living with
the deceased tenant even before the tenant died on
22.11.1983. The Appellate Court observed that the
fact that the address of the defendant and the
original tenant was the same, and that therefore
there is a reason to believe that he was residing
with the original tenant up to death of the original
tenant.
9 On the second limb that the defendant was also
doing the business with the deceased tenant at the
time of death of the tenant, the Appellate Court
observed that since the defendant was residing on
first floor of the same building since 1977 and was
doing job work since 1975, the trial Court ought to
have considered him as doing business at the time of
the death of the tenant by virtue of certificate of
registration at Exh.62. The Appellate Court also
relied on the admission of the plaintiff’s deposition
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by which it was contended that he had admitted that
the defendant was doing the business in the suit shop
in the month of October,1985 and that he had accepted
rent by virtue of the rent receipts. Based on this
evidence, the Appellate Court held that there was
clear evidence that the defendant was doing business
at the time of the death of the tenant with the
tenant.
10 The Appellate Court observed that it cannot be
said that the defendant was a stranger because he was
the son of the nephew of the original tenant and was
therefore a blood relative and therefore a family
member of the deceased tenant. Being a son of the
nephew of the deceased tenant, in the opinion of the
Appellate Court, the trial Court committed an error
in not considering the defendant as a tenant under
Section 5(11)(c)(ii) of the Bombay Rents, Hotel
Lodging House Rates Control Act, 1947. The Appellate
Court, therefore, reversed the judgment of the trial
Court and the rent suit of the plaintiff, applicant
herein was dismissed.
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11 It is under these circumstances that the
applicant herein, original plaintiff, being aggrieved
by the order of the Appellate Court reversing the
decree which was in his favour is in revision.
12 Mr. Jenil M.Shah, learned advocate has appeared
for the applicant. He has contended that the lower
Court i.e. the first Court did not commit any error
in interpreting the provisions of Section 5(11)(c)
(ii) of the Bombay Rents, Hotel Lodging House Rates
Control Act, 1947. The Appellate Court was erroneous
in holding that the defendant had acquired the
transmission of the tenancy right of the deceased
tenantPurshottamdas Soni.
12.1 Shri Jenil Shah, learned advocate for the
applicant, further contended that if the provisions
of Section 5(11)(c)(ii) are read, in order to acquire
tenancy rights, the incumbent has not only to be a
member of the tenant’s family, but also must be
carrying on the business in the suit premises at the
time of death of the tenant. The learned trial Judge,
therefore, was correct on appreciation of the
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evidence on record that neither was the respondent
herein a member of the family, nor was he carrying on
the business at the time of the tenant’s death. In
view of a categorical finding of the trial Court that
the defendant was not legally adopted and that the
name of the defendant was incorporated in the
registration certificate three years after death of
the tenant, it could be said that these was
sufficient proof to hold that the twin requirements
of section 5(11)(c)(ii) of the Bombay Rents, Hotel
Lodging House Rates Control Act, 1947, were not
satisfied.
12.2 The Appellate Court committed an error of law
in, though affirming the finding of the trial Court
and holding the adoption as invalid, but then,
deciding the question of defendant being “a family
member” in his favour though he was the deceased
tenant’s nephews son. Moreover, it was only on the
basis of evidence that the defendant was residing
with the deceased tenant. The fact of his carrying on
business with deceased tenant at the time of his
death, was held in his favour.
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12.3 The Appellate Court failed to appreciate that
the tenantdefendant herein had not challenged the
finding of the trial Court that he was not a legally
adopted son which was against him. Even when the
Appellate Court has affirmed such a finding against
the respondent which is not under challenge, it is
conclusively proved that the respondent is not a
family member.
12.4 It was not even the case of the defendant to
claim transmission of tenancy on his being the son of
of the nephew of the deceased tenant, and therefore,
the Appellate Court ventured into deciding the issue
which was not even raised for consideration.
13 In support of these submissions, Mr.Shah,
learned advocate relied on a decision in the case of
Madhuben Natwarlal Ors. vs. Prajapati Purshottam
Tulsidas, reported in 1990 (2) GLR 1177. My attention
was drawn to paragraphs 4 and 5 of the judgment where
the Court observed that the Rent Act does not provide
that the statutory tenancy will be inserted by the
heirs of the deceased, but the protection of the Rent
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Act is granted to a person who is a member of the
tenant’s family. The Court in that case has observed
that the term “family” would not include nephews’ of
the deceased tenant. He specifically relied on the
following observations in the judgment:
” xxx xxxx xxxxx.
It is true that in the said decision the Court
has held that a conspectus of the connotation of
the term ‘family’ which emerges from a reference
to the dictionaries clearly shows that the word
‘family’ has to be given not a restricted but a
wider meaning so as to include not only the head
of the family but all members or descendants
from the common ancestors who are actually
living with the same head. From this Mr. Bavishi
submitted that as the appellants are descendants
from the common ancestors, therefore the
appellants would be the family members of the
deceased Jamnadas. In my view, this contention
cannot be accepted. Merely because the word
“common ancestors” is used in the said judgment,
it would not mean that distant nephews or
cousins should be considered as family members.
By amending Sec. 5(11)(c) the Legislature
stepped in and provided a special mode of
succession to the tenancy rights or lease hold
rights to the extent of irremovability from
possession to those who were in need of it but
has limited it to the members of the tenant’s
family. Normally ‘family’ includes parents,
spouse, brothers, sisters, sons or daughters or
in some cases widow of a predeceased son or the
issues of the predeceased sons but by no
stretch of imagination it can be held that he
distant nephews would be the family members
howsoever broad meaning is given to the word
“family”. Hence the contention of the learned
Advocate for the appellants cannot be accepted
that eh appellants are the family members of the
deceased Jamnadas who was a tenant of the suitPage 17 of 36
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13.1 He further relied on a decision of the Hon’ble
Supreme Court in the case of Jaspal Singh Anr.,
vs. Additional District Judge, Bulandshahar.,
reported in AIR 1984 pg 1880. He drew my attention to
the Head Note B of the judgment which says that a
nephew cannot be said to be a member of the tenant’s
family. The relevant paragraph of the said judgment
reads as under:
“9 From a survey of these provisions, it will
be clear that if a tenant parts with possession
of the premises in his possession, the same
would be treated as vacant. There are
restrictions in the case of a residential
building that the tenant will live only with the
members of his family and after he was allowed
the same to be occupied by any person who is not
a member of his family, the tenant shall be
deemed to have ceased to occupy the building. In
the case of a nonresidential building, when a
tenant is carrying on business in the building,
admits a person who is not a member of his
family as a partner or a new partner, as the
case may be, the tenant shall be deemed to have
ceased to occupy the building. It a tenant
sublets the premises, he is liable to ejectment.
Obviously, therefore, there are restrictions
placed by the Act on the right of the tenant to
transfer or sublet the tenancy rights and he can
keep possession of the building or premises for
himself and for the purpose of his family, for
his business and for the business of his family
members. He obviously cannot be allowed to
transfer a tenancy right. A fortiori, the Scheme
of the Act does not warrant the transfer of the
tenancy right to be effective after his
lifetime. Thus, the appellant was neither aPage 18 of 36
C/CRA/174/2005 CAV JUDGMENTtenant of the disputed shop nor he was an heir
of Naubat Singh, the original tenant. Besides,
on a plain reading of the will it is evident in
respect of other properties including his
business but not in respect of the tenancy
rights. The High Court also recorded a finding
to the effect that there was no will in respect
of the tenancy rights of the disputed shop.”
13.2 In short, Shri Shah supported the findings of
the first Court which decreed the suit in favour of
the applicant.
14 Mr.S.P.Majmudar, appeared for the respondent –
defendant. He drew my attention to the judgment of
the Appellate Court particularly paragraph 21 thereof
and suggested that, though, the respondent may have
been unable to prove that he was a legally adopted
son, but from the evidence on record it was rightly
observed by the Appellate Court that the fact that
the marriage of the defendant was held at Vadodara
where the deceased tenant was living, and that the
daughter and the son of the defendant were born at
that place on 07.09.1978 and 19.05.1981 respectively
and certificates were produced at Exhs.60 61
respectively, the Appellate Court was right in
observing that the respondent was living with the
deceased tenant up to the death of the tenant on
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22.11.1983.
14.1 On the question whether the respondent was
carrying on business at the time of the death of the
deceased tenant with him, Mr. Majmudar, invited my
attention to the observations of the Appellate Court
particularly Exh.62 which showed that the shop was
registered in the name of the deceased tenant since
1964, that the present respondent was doing job work
with him since 1975 and that the plaintiff himself
had admitted in his deposition at Exh.15 that the
present respondent was doing business in the shop in
October, 1985 when he had taken objection to the
respondent doing business. That the plaintiff
applicant had accepted the rent of the suit shop as
is evident from the rent receipts at Exhs.39 to 50.
All these circumstances clearly establish that the
defendant was doing business with the original tenant
and also after the death of such tenant.
14.2 Mr. Majmudar, further invited my attention to
paragraph 27 of the judgment of the Appellate Court
which considered the fact that the respondent –
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defendant was not a stranger person, but he was son
of the nephew of the original tenant and the trial
Court, therefore, had committed an error in not
believing the fact that the present respondent was a
family member even though he was not a legally
adopted son. The Appellate Court, therefore, had not
committed any error in construing the provisions of
Section 5(11)(c)(ii) of the Bombay Rents, Hotel
Lodging House Rates Control Act, 1947 in his favour.
The Appellate Court, therefore, committed no error of
jurisdiction and therefore in exercise of powers
under Section 29(2) of the Bombay Rents, Hotel
Lodging House Rates Control Act, 1947, the judgment
and order of the Appellate Court was not perverse to
deserve any interference. According to Mr.Majmudar,
merely because the Appellate Court had taken a
different view, the judgment of Appellate Court would
not become vulnerable.
14.3 In support of this submission, Mr.Majmudar
relied on a decision of the Hon’ble Supreme Court in
the case of Hindustan Petroleum Corporation vs.
Dilbahar Singh., reported in (2014) 9 scc 78. He
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invited my attention to paragraphs 32 33 of the
judgment to suggest that when the findings of fact
recorded by the subordinate Court is according to law
and which is based on some legal evidence, it does
not warrant interference.
14.4 Mr.Majmudar, also relied on a decision in the
case of Nanumal Rijumal vs. Lilaram Vensimal And
Anr., reported in 1977 GLR 858, in support of his
submission that the law of inheritance would prevail
and that no restrictive meaning to the word tenancy
can be given. Tenancy rights speaking loosely devolve
not in the strict sense of succession but in the
sense of right to occupy and to possess the tenancy
right. Therefore, the Appellate Court did not commit
any error of law in holding that the present
respondent being the son of the nephew of the
deceased tenant was a family member. He specifically
relied on para 13 of the judgment. Mr. Majmudar,
further submitted that considering the overall view
of the matter, even if the Appellate Court’s view
that he was not legally adopted is believed, in view
of the undisputed proposition that he was the son of
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the nephew of the deceased tenant, he was entitled to
the protection of the Rent Act being the family
member.
14.5 In support of this submission, Mr.Majmudar, also
relied on a decision of the Supreme Court in the case
of Vasant Pratap Pandit vs. Dr. Anant Trimbak
Sabins., reported in (1994) 3 SCC 481. Relevant
paragraph of the said judgment reads as under:
“14 From a plaint reading of Section 5(11)(c)
(i) it is obvious that the legislative
prescription is first to give protection to
members of the family of the tenant residing
with him at the time of his death. The basis for
such prescription seems to be that when a tenant
is in occupation of premises the tenancy is
taken by him not only for his own behalf but
also for the benefit of the members of the
family residing with him. Therefore, when the
tenant dies, protection should be extended to
the members of the family who were participants
in the benefit of the tenancy and for whose
needs as well the tenancy was originally taken
by the tenant. It is for this avowed object, the
legislature has, irrespective of the fact
whether such members are ‘heirs’ in the strict
sense of the term or not, given them the first
priority to be treated as tenants. It is only
when such members of the family are not there,
the ‘heirs’ will be entitled to be treated as
tenants as decided, in default of agreement, by
the court. In other words, all the heirs are
liable to be excluded if any other member of the
family was staying with the tenant at the time
of his death. When Section 15, which prohibits
subletting, assignment or transfer, is read in
juxtaposition with Section 5(11)(c)(i) it isPage 23 of 36
C/CRA/174/2005 CAV JUDGMENTpatently clear that the legislature intends that
in case no member of the family as referred to
in the first part of the clause is there the
‘heir’, who under the ordinary mode of
succession would necessarily be a relation of
the deceased, should be treated as a tenant of
the premises subject, however, to the decision
by the Court in default of agreement. The words
“as may be decided in default of agreement by
the Court” as appearing in Section 5(11)(c)(i)
are not without significance. These words in our
view have been incorporated to meet a situation
where there are more than one heirs. In such an
eventuality the landlord may or may not agree to
one or the other of them being recognised as a
‘tenant’. Therefore, if ‘heir’ is to include a
legatee of the will then the abovequoted words
cannot be applied in case of a tenant who leaves
behind more than one legatee for in that case
the wishes of the testator can get supplanted,
on the landlord’s unwillingness to respect the
same, by the ultimate decision of the Court. In
other words, in case of a testamentary
disposition, where the wish or will of the
deceased has got to be respected a decision by
the court will not arise and that would
necessarily mean that the words quoted above
will be rendered nugatory. What we want to
emphasis is it is not the heirship but the
nature of claim that is determinative. In our
considered view the legislature could not have
intended to confer such a right on the
testamentary heir. Otherwise, the right of the
landlord to recover possession will stand
excluded even though the original party(the
tenant) with whom the landlord had contracted is
dead. Besides, a statutory tenancy is personal
to the tenant. In certain contingencies as
contemplated in Section 5(11)(c)(i) certain
heirs are unable to succeed to such a tenancy.
To this extent, a departure is made from the
general law”.
14.6 Reliance was also placed on a decision in the
case of Hirak Chowdjury vs. Dulal Chowdhury Ors.,
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of the Kolkata High Court reported in 2001 SCC
Online Cal 391, in support of his stand that the son
of the nephew of the deceased tenant is a family
member.
15 Based on these rival submissions, we have to
consider whether the defendantrespondent could claim
the benefit of transmission of tenancy right on the
basis of he being the son the nephew of the deceased.
Before we dwell into the facts of the case, the
provisions of the Bombay Rents, Hotel Lodging House
Rates Control Act, 1947 defines the word tenant. The
word “tenant” is defined in Section 5 subsection 11
Clause C(ii) of the same, which reads as under:
“in relation to premises let for business, trade
or storage, any member of the tenant’s family
carrying on business, trade or storage with the
tenant in the said premises at the time of the
death of the tenant as may continue, after his
death, to carry on the business, trade or
storage as the case may be, in the said premises
and as may be decided in default of agreement by
the Court”
16 On reading the said section, what becomes
evident is that for claiming tenancy in the business
premises by succession, not only has one to be a
member of the tenant’s family, but also run business
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with the tenant at the time of the death of the
tenant and may continue to do so after his death. In
other words, the provision is categorically clear
that both the conditions i.e. he has to be a member
of the family and should be carrying on business at
the time of his death in the same premise need to be
simultaneously satisfied.
17 It is in the background of this proposition of
law, that we need to decide the question raised
before this Court. It was the case of the applicant
before the trial Court that on the death of the
tenant Purshottamdas Soni, in 1983, since he had no
son or heir carrying on any business in the premises,
the landlord plaintiff was entitled to evacuation of
the business premises. The suit was accordingly filed
for such eviction. The present respondent who was the
defendant filed a written statement before the trial
Court claiming the benefit of Section5(11)(c)(ii) of
the Rent Act on the ground that he was an adopted son
of the deceased tenant Purshottamdas Soni. Since it
was he who had come out with such a specific case,
the trial Court rightly put the burden to prove this
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fact on him. Considering the provisions of Section 11
of the Hindu Adoption and Maintenance Act, 1956 and
the evidence of the defendant at Exh.56 and that of
one Natwarlal Fakirchand Khatri at Exh.92, the trial
Court found that except bare recitals in his evidence
that he had photographs to prove the adoption, he had
not produced any such photograph. In fact, even the
adoption deed which was produced on record at Exh.59,
the Court rightly found that in the document so
executed between the deceased tenant Purshottamdas
Soni and the parents of the defendant, there was no
signature of the giving parents i.e. the parents of
the defendant, and therefore, the mandate of Section
11 of the Hindu Adoption and Maintenance Act, 1956,
was not satisfied. There was no giving and receiving
ceremony which was undertaken, and therefore, the
adoption was held to be invalid. The trial Court did
not believe the story that the defendant was an
adopted son of the deceased tenant. The trial Court,
therefore, held that the defendant could not be held
to be a member of the tenant’s family in view of the
failure to prove his case that he was a legally
adopted son. The trial, therefore, held that it can
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safely be said that there was no adoption deed in
eyes of law because the mandatory condition i.e.
signing of the adoption deed by the person giving and
taking the child in adoption were not satisfied. The
contention of the defendantrespondent herein that
the term “family” has to be given a wider meaning was
in my opinion rightly accepted.
18 I am fortified in taking this view particularly
in view of the fact that even in the appeal, at the
instance of the respondent herein, the Appellate
Court affirmed the findings of the trial Court that
the respondentdefendant was not a legally adopted
son. Be it noted that, as against this finding, the
defendant has not challenged the same by way of
revision before this Court, and therefore, the same
has to be accepted to have become final and binding.
19 Curiously, though the Appellate Court approved
such a finding that the respondent herein was not a
legally adopted son, it held that since the
respondent was the son of the nephew of the original
tenant, he could be described as a family member of
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the deceased tenantPurshottamdas Soni. From the
judgment of the trial Court, it is evident that the
issue whether the defendant, respondent herein can
claim transmission of tenancy by virtue of being the
son of the nephew of the deceased tenant was not at
all raised before the Court. It was not the case of
the defendant in the written statement so filed that
he claimed transmission of tenancy on the basis of he
being a nephew of the son of the deceased. The only
case pleaded by him to claim protection and
transmission of tenancy was that he was a legally
adopted son, and therefore, fell within the first
condition of Section 5(11)(c)(ii) of the Act, “being
members of the tenant’s family”. Obviously, when both
the Courts below held that he was not a legally
adopted son, and in absence of the claim of the
defendantrespondent of tenancy on the ground of he
being a nephew, it was not a matter in issue and
therefore the Appellate Court clearly exceeded the
jurisdiction vested in it.
20 Even otherwise, as rightly contended by Shri
Jenil Shah, learned counsel for the applicant and as
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held by this Court in the case of Madhuben Natwarlal
(supra), that the term family though may not have a
restricted meaning, the distant nephews or cousins,
cannot be considered as family members as normally
“family includes parents, spouse, brothers, sisters,
sons or daughters or in some cases widow of a pre
deceased son”.
21 The judgment relied by Shri S.P.Majmudar in the
case of Vasant Pratap Pandit(supra), and in the case
of Nanumal Rijumal (supra), would not be applicable
to the facts of the case. In that case, the context
was with regard to the law of succession. On facts,
both the Courts below have held that the defendant
respondent herein has failed to prove that he was a
legally adopted son. Therefore, the question of
heirship or bequeathment of tenancy was not an issue
which can be pleaded by the respondent in absence of
any challenge. Therefore what is clear and evident
from the perusal and close scrutiny of the orders
below, that is of the first Court and that of the
Appellate Court, is that first primary condition of
claiming transmission of tenancy on the ground of the
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defendant/respondent being a member of the tenant’s
family has not been satisfied.
22 This brings us to the second limb of the section
which states that, in addition to being a member of
the tenant’s family, such a tenant should be carrying
on business in the said premises at the time of the
death of the tenant and may continue to do so after
his death. The trial Court on examination of the
evidence has found that the registration of the shop,
the document which is produced at Exh.62, being a
certificate, shows that the shop was registered in
the year 1964. The name of the defendant was inserted
in the year 1986 i.e. after three years of death of
the deceased tenant. No plausible explanation came
forth from the respondentdefendant to suggest as to
why his name was not inserted immediately on the
death of the deceased tenantPurshottamdas Soni. In
my opinion, therefore, the trial Court committed no
error in observing that it can be safely said that
the respondentdefendant had failed to establish that
he was continuously doing the job work in the suit
premises after the death of the deceased
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Purshottamdas Soni.
22.1 Merely because receipts Exhs. 39 to 50 were
produced on behalf of the respondent to suggest that
it was the defendant who had collected rent on behalf
of the deceased tenant would not support the case of
the defendant that it was he who was the tenant and
was carrying on business not only at the time of
death, but even before the death of the tenant
Purshottamdas Soni. Merely making payment of rent or
acceptance of such rent would not render and satisfy
the second condition of the section.
23 The trial Court has extensively discussed the
case of the respondent as to whether he has been able
to prove and establish that he was doing the business
in the suit premises with the deceased tenant till
his death, and thereafter continued doing the
business in the demised premises. It was the case of
the respondent that he was doing business with the
deceased tenant of job work of gold since 1975. No
documentary evidence has been brought on record to
show the fact of his association with the deceased
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tenant. Only one witness Shri Natwarlal Fakirchand
Khatri, at Exh.92 has deposed that the deceased
tenant and the present defendant were staying
together. This witness was a neighbouring shop owner.
The certificate at Exh.23 under the Bombay Shops and
Establishment Act shows that the name of the deceased
tenant was deleted and the defendant’s name was
inserted on 28.11.1986 i.e. three years after the
death of the deceased tenant. The certificate on
examination was found to contain no name or the
figure or the name of the family members doing
business with the deceased tenant. In my opinion,
therefore, the trial Court did not commit any error
in concluding that the defendant, respondent herein
was not doing the job work of gold in the disputed
premises after the death of the deceased
Purshottamdas Soni. The trial Court also has come to
the conclusion that merely because the present
defendant was receiving rent for which receipts from
Exhs. 39 to 50 were produced, it would not make out a
case to satisfy the second condition i.e. 5(11)(c)
(ii) of the Bombay Rents, Hotel Lodging House Rates
Control Act, 1947.
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24 The Appellate Court, while holding that the
benefit of the provisions of Section 5(11)(c)(ii) had
to be granted to the defendantrespondent herein has,
in my opinion, travelled into the provisions of
Section 5(11)(c)(i) of the Bombay Rents, Hotel
Lodging House Rates Control Act, 1947. Merely because
evidence on record was produced that the marriage of
the defendant was held at Vadodara and that there
were birth certificates on record at Exhs.60 and 61
of 07091978 and 19051981 of the defendants
daughter and son respectively, would at best suggest
that the defendant was living with Purshottamdas Soni
at the time of his death in November,1983. The
finding of the Appellate Court, therefore, that the
address of the defendantoriginal tenant is the same
because they were living together, would not in any
way satisfy the second requirement of Section 5(11)
(c)(ii) of the Bombay Rents, Hotel Lodging House
Rates Control Act, 1947 of the respondent carrying on
the business in the premises at the time of the death
of the deceased tenant. Moreover, nothing was
produced on record as observed by the trial Court and
when the trial Court on appreciation of evidence came
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to the conclusion that the insertion of the name of
the defendant was three years after the death of the
deceased tenant, and merely because rent receipts
were collected by the defendant, would not
substantiate his case, it was not open for the
Appellate Court merely because a different view was
possible to take such a view in favour of the
defendant.
25 I do not agree with the submissions of
Mr.Majmudar that the judgment and order of the
Appellate Court cannot be set aside because a
different view is possible.
26 For the reasons stated herein above, it is
obvious that the Appellate Court in exercise of its
jurisdiction has not only taken a different view, but
has clearly exceeded it’s jurisdiction inasmuch as
has considered and decided the issues not only which
were not raised before it, but has acted in a manner
with perversity to decide contrary to the evidence
which was on record and it was rightly appreciated by
the trial Court while deciding the suit and decreed
the same in favour of the applicant.
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27 For the aforesaid reasons, therefore, I am of
the opinion that the learned Appellate judge in
deciding Regular Civil Appeal No. 282 of 2001 and in
reversing the decree dated 23.10.2001 in Rent Suit
No. 136 of 1989 committed a serious error of law and
of jurisdiction. I, therefore, deem it fit to quash
and set aside the judgment and order dated 07.05.2005
passed by the Joint District Judge, F.T.C No.5,
Vadodara in Regular Civil Appeal No. 282 of 2001 and
restore the decree of the trial Court dated
23.10.2001. The present Revision Application is
accordingly allowed. Rule is made absolute
accordingly with no orders as to costs.
(BIREN VAISHNAV, J)
After pronouncement of the judgment, learned
counsel for the respondent prays that the operation
of the judgment be suspended. Accordingly, the
request is granted. The operation of the judgment
shall be suspended till 12.10.2018.
(BIREN VAISHNAV, J)
Bimal
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