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CASE NO.: Appeal (civil) 3759  of  2001

PETITIONER: ASHOK CHINTAMAN JUKER & ORS.

       Vs.

RESPONDENT: KISHORE PANDURANG MANTRI  & ANR.

DATE OF JUDGMENT:       09/05/2001

BENCH: D.P. Mohapatra & Brijesh Kumar

JUDGMENT:

D.P.MOHAPATRA,J.

Leave  granted. L...I...T.......T.......T.......T.......T.......T.......T..J

   One  Chintaman Keshav Juker was the tenant in respect of the suit premises, described as no.  R/o 6, Mantri Building, Ground  Floor, Bhendi Lane, Gamdevi, Bombay.  He died in the year   1958   leaving   two    sons,   Kesrinath   Chintaman Juker(appellant  No.1  herein)  and Ashok  Chintaman  Juker. Ashok  was  then a minor.  After the death of Chintaman  the rent  bills  (rent  receipts)  were issued in  the  name  of Kesrinath.   Kesrinath  died in 1981.  Thereafter  the  rent bills  were  issued in the name of his widow  Smt.   Kishori Kesrinath Juker (respondent no.2 herein).  Kishore Pandurang Mantri  the landlord (respondent No.1 herein) filed the suit for  eviction against respondent No.2.  The parties  settled the  dispute  and the suit was disposed of in terms  of  the said  settlement by the order dated 31.1.1994 which reads as follows:

     Order  Both plaintiff and defendant  alongwith  their respective  advocates  are  present.    Both  plaintiff  and defendant  admits the contents of the consent terms as  well as their respective signatures.  Therefore the Consent Terms are taken on record and marked Ex.A.

   The  decree was drawn up incorporating the terms of  the settlement.   The  respondent  No.1 filed the  petition  for execution  of the decree dated 31.1.1994 in which a  warrant of  possession  was  issued  on 23rd  November,  1994.   The appellants  filed  objection  against the execution  of  the decree which was registered as Notice No.66 of 1994.

   The  executing court by the order dated 30th  September, 1998  rejected  the  objection filed by the  appellants  and dismissed  Notice  No.66/94  holding  inter  alia  that  the compromise  decree  is executable against them.  The  appeal filed  by  the  appellants   i.e.   Appeal  No.620/1999  was dismissed  by  the  Court of Small Causes, Bombay  Bench  by order  dated 8.9.2000.  Civil Writ Petition No.5768 of  2000

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filed by the appellants was dismissed by a Division Bench of the  Bombay  High  Court  by the  judgment/order  dated  6th November,  2000.  The said judgment/order is under challenge in this appeal filed by special leave.

   The  case  of  the   appellants,  shorn  of  unnecessary details,is  that  the appellant No.1, who is the husband  of appellant  No.2 and father of appellant Nos.3 to 5 became  a tenant  of  the  suit premises on the death  of  his  father Chintaman in 1958.  Therefore, he was entitled to occupy the premises  as a tenant.  The respondent No.1 filed a suit for eviction against respondent No.2 Smt Kishori Kesrinath Juker without  impleading him (appellant No.1) as a defendant.  In the circumstances the consent decree obtained in the suit is not  binding on appellant No.1 and members of his family who are  residing with him.  They cannot, therefore, be  evicted in execution of the said decree.

   The  gist of the case of the respondent No.1 is that  on the  death  of the original tenant Chintaman the rent  bills were  raised in the name of Kesrinath and after his death in the  name  of his widow the respondent no.2.  The  appellant No.1  was not accepted as a tenant by the landlord.   Indeed he  has  not been residing in the suit premises since  1962. In  such  circumstances it was not incumbent on the part  of the  respondent  No.1  to implead the appellant  No.1  as  a defendant  in  the  suit  and he has no  right  to  obstruct delivery  of possession of the premises in execution of  the decree.

   Sri  Dhruv  Mehta,  learned counsel for  the  appellants strenuously  urged that in view of the provision in  section 5(11)  Â©  of the Bombay Rent Control Act, 1947 (hereinafter referred to as the Act) defining the term tenant to mean all  the  members of the family of the tenant and  appellant No.1 who was then a minor was undisputedly residing with his father  Chintaman, the original tenant;  therefore he was  a tenant  alongwith  his  brother  Kesrinath  and  the  status continued  till  the  date of the filing of the  suit.   The landlord  having not impleaded appellant no.1 as a defendant in  the  suit  cannot  get delivery  of  possession  of  the property  in  execution of the consent decree which  is  not binding on him.

   Per  contra  Shri  Bhim  Rao M.   Naik,  learned  senior counsel  appearing  for the respondents contended  that  the trial  court and the appellate court concurrently held  that the  appellant  No.1  had  not been  residing  in  the  suit premises  since 1962.  In fact he had shifted to Kalyan  and was  residing  in the premises owned by him there.   He  had also booked another accommodation at Borivli.  Therefore, in the  year  1992 when the respondent No.1 filed the suit  for eviction  the appellant No.1 was not a tenant in  occupation of  the  suit premises and as such it was not necessary  for the landlord to implead him as a defendant in the suit.  The learned  counsel  further contended that the appellant  No.1 having  taken  the  stand that he was staying  in  the  suit premises  and he was paying the rent through his  sister-in- law  respondent  No.2 after death of his  brother  Kesrinath which  has  been  disbelieved  by the trial  court  and  the appellate  court,  the High Court was right in declining  to interfere with the order passed by the trial court rejecting the  objection  to the execution of the decree filed by  the appellants which was confirmed by the appellate court.

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   Before  considering the case of the appellants on merits it  is necessary to record the finding and observations made by the appellate court, which are quoted below:

   The  evidence go to show that in 1962 or thereafter the present  Obstructionists Ashok shifted to Kalyan.  Not  only that  but thereafter he has acquired premises at Kalyan  and booked  the premises at Borivli.  We are not concerned  with these  premises and not necessary to give all particulars of those  premises  but  this is an admitted fact  because  the witness  has  admitted in the cross examination.   Not  only that  but in the co.  i.e.  on the place of employment  said Ashok   Obstructionist  No.1  has   given  his  address   of correspondence  at  Kalyan.  This goes to show that  his  so called  accrued  right of tenancy has been either waived  or the alleged right of tenancy which is acquired under section 5(11)© has been surrendered or no right has been claimed at all.

   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 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.

   The question that arises for consideration in such cases is  whether the tenancy is joint or separate.  In the former case  notice  on any one of the tenants is valid and a  suit impleading  one  of them as a defendant is maintainable.   A decree  passed in such a suit is binding on all the tenants. Determination  of  the  question depends on  the  facts  and circumstances  of the case.  No inflexible rule or straight- jacket formula can be laid down for the purpose.  Therefore, the  case  in  hand  is  to be  decided  in  the  facts  and circumstances thereof.

   In  the  case  of Ganpath Ladha  vs.   Sashikant  Vishnu

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Shinde  ( 1978 (3) SCR 198) a Bench of three learned  Judges of  this Court construing the provision of section 5(11)© of the Bombay Rent Act, 1947 held :

   The  Act  interferes  with   the  landlords  right  to property  and  freedom  of  contract only  for  the  limited purpose  of  protecting  tenants  against  exercise  of  the landlords  power to evict them in these days of scarcity of accommodation  by  asserting superior rights in property  or trying  to exploit his position by extracting too high rents from  helpless  tenants.  The object was not to deprive  the landlord  altogether  of his rights in property  which  have also to be respected.

   In the case of Kanji Manji Vs.  The Trustees of the Port of  Bombay, AIR 1963 SC 468, a bench of three learned Judges of  this  Court,  construing  the   terms  of  the  deed  of assignment, observed as follows:

   The  argument about notice need not detain us long.  By the  deed of assignment dated February 28, 1947, the tenants took  the premises as joint tenants.  The exact words of the assignment  were  that  the Assignors do and each of  them both  hereby  assign and assure with the Assignees as  Joint Tenants.  The deed of assignment was approved and accepted by  the Trustees of the Port of Bombay, and Rupji Jeraj  and the  appellant must be regarded as joint tenants.  The trial Judge,  therefore,  rightly held them to be so.  Once it  is held  that  the  tenancy was joint, a notice to one  of  the joint  tenants  was  sufficient, and the suit for  the  same reason  was also good.  Mr.B.Sen, in arguing the case of the appellant,  did  not  seek  to urge the  opposite.   In  our opinion,  the  notice  and  the  frame  of  the  suit  were, therefore, proper, and this argument has no merit.

   This  Court  in the case of H.C.Pandey vs.   G.C.   Paul [AIR  1989 SC 1470] taking note of the settled position that on  the  death  of  the  original  tenant,  subject  to  any provision  to the contrary either negativing or limiting the succession,  the tenancy rights devolve on the heirs of  the deceased  tenant,  held  that it is a single  tenancy  which devolves on the heirs.  There is no division of the premises or  of the rent payable thereafter and that is the  position as  between  the  landlord  and the heirs  of  the  deceased tenant.  In other words, the heirs succeed to the tenancy as joint  tenants.  This Court further held that the respondent acted  on behalf of the tenants;  he paid rent on behalf  of his  father and he accepted notice on behalf of all;  in the circumstances  the  notice served under section 106  of  the Transfer  of  Property Act on the respondent was  sufficient and it was a valid notice.

   In  the case of Textile Association (India) Bombay  Unit vs.   Balmohan  Gopal Kurup and another, AIR 1990  SC  2053, this  Court  on the facts and circumstances  stated  therein took  the  view  that the ex-parte decree  obtained  against mother  and  brother was not binding against the  respondent therein.

   In  the case on hand, as noted earlier, on the death  of the  original tenant Chintaman the rent bills in respect  of the  premises  in  question were issued in the name  of  his elder  son  Kesrinath and on his death the rent  bills  were issued in the name of his widow Smt.Kishori Kesrinath Juker.

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It  is not the case of the appellant no.1 that there was any division  of the premises in question or that rent was being paid  to  the  landlord  separately   by  him.   Indeed  the appellant  no.1  took the plea that he was paying  the  rent through  Smt.   Kishori Kesrinath Juker.  Thus  the  tenancy being  one,  all the members of the family of  the  original tenant residing with him at the time of his death, succeeded to   the  tenancy  together.   In  the   circumstances   the conclusion is inescapable that Smt.  Kishori Kesrinath Juker who  was  impleaded  as a tenant in the suit  filed  by  the landlord  represented all the tenants and the decree  passed in  the  suit  is binding on all the members of  the  family covered  by  the tenancy.  In the circumstances  the  decree passed  in  terms  of  the compromise  entered  between  the landlord  and  Smt.  Kishori Kesrinath Juker can neither  be said  to be invalid nor inexecutable against any person  who claims  to  be  a  member of the family  residing  with  the original  tenant,  and therefore, a tenant as  defined  in section  5(11)©.   The position that follows  is  that  the appellants  have  no right to resist on the ground that  the decree is not binding on them.  Further, the trial court and the  appellate  court concurrently held that  the  appellant no.1  has not been residing in the premises since 1962  i.e. when his elder brother Kesrinath was alive.  Therefore, when the  suit was filed in the year 1992 there was no  necessity for the landlord to implead appellant no.1 or members of his family  in  the  suit since he (landlord) had  no  cause  of action  for seeking a decree of recovery of possession  from them.  In that view of the matter the decree under execution does  not  suffer from any illegality or infirmity.   Viewed from  any angle the appellants have no justification on  the facts  as  well as in law to resist execution of the  decree for  possession  of  the  premises  by  the  landlord.   The Executing  Court rightly rejected the objection filed by the appellants against execution of the decree and the appellate court  and the High Court rightly confirmed the said  order. This  appeal  being devoid of merit is dismissed with  costs which is assessed at Rs.10,000/-.