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2001 DIGILAW 301 (BOM)

M. M. Bilaney & another v. Fali Rustomji Kumana

2001-03-29

F.I.REBELLO

body2001
JUDGMENT - REBELLO F.I., J.:---The petitioners had filed a suit being R.A.E. Suit No. 371/3169 of 1976 for eviction against the original defendant, now deceased. In the course of the proceedings and during the lifetime of original defendant, respondent herein applied that he be joined as a party defendant on the ground that he was a tenant in respect of the suit premises in his own right or at least a deemed tenant as on 1st February, 1973. That application was allowed and respondent No. 2 was added as a party defendant No. 2 to the said proceedings. The suit by present petitioners was on the ground that the premises were bona fide required by petitioner No. 1 for the residence of widowed daughter, who also was the sister of petitioner No. 2. The original defendant filed written statement on 5th November, 1976. It was averred therein that he was willing to submit to the orders of the Court. It was further averred that his wife and son the present respondent were residing in the suit premises. On 5th April, 1979 the present respondent filed his written statement contending to be the tenant in his own right and/or deemed tenant as per 1973 amendment to the Bombay Rent Act. On 30th September, 1980 the petitioners moved the Court for a decree on admission against original defendant No. 1. On 20th June, 1981 a decree came to be passed against original defendant No. 1. The present respondent, preferred an appeal against the said order on 13th July, 1981. The original defendant No. 1 was made a party respondent to the said appeal. On 3rd October, 1984 the original defendant No. 1 expired. On 27th May, 1985 the petitioners executed the Gift Deed in favour of one Manavi Pravin Thakkar. The recital deed indicates that the Donee accepted the gift of the land and hereditaments and premises as described in the Schedule to the Gift Deed. Pursuant to the execution of the Gift Deed, the respondent herein amended his Memo of Appeal and contended that the petitioners had ceased to be the landlord of the suit premises and hence could not maintain the suit against the respondent nor could they execute the decree of eviction passed against the original defendant No. 1. Pursuant to the execution of the Gift Deed, the respondent herein amended his Memo of Appeal and contended that the petitioners had ceased to be the landlord of the suit premises and hence could not maintain the suit against the respondent nor could they execute the decree of eviction passed against the original defendant No. 1. By the order of 9th December, 1986 the Appellate Bench of the Small Causes Court allowed the appeal on the ground that decree of eviction passed by the trial Court against the tenant was not legal. Aggrieved by the said order, petitioner herein preferred a writ petition before this Court which was numbered as Writ Petition No. 187 of 1987 on 12th January, 1987. By judgment and order dated 6th October, 1987 this Court set aside the order of the Appellate Bench of the Small Causes Court and remanded matter to the trial Court. This Court observed that the apprehension of present respondent was that if the decree against original defendant No. 1 was executed, he would have to take out proceedings in obstruction. In the light of that the Court observed that this apprehension of the respondent can be taken care of by recording undertaking of the petitioner herein that they shall not execute the decree obtained against original defendant No. 1 till such time that the suit against present respondent and appeal, if any, are disposed of. The undertaking given on behalf of the petitioner was accepted. The Court further observed that the Appellate Bench of the Small Causes Court ought not to have considered the appeal filed by the present respondent against the decree passed against original defendant No. 1 as the suit was yet to proceed against defendant No. 2. It is in these circumstances that the matter went back to the trial Court. 2. On 16th July, 1987 the respondent herein amended the written statement. By the amendment respondent averred that he was occupying the suit premises in his own right as a tenant of the petitioner or a deemed tenant under the 1973 amendment to the Rent Act. It was further averred that he has been always ready and willing to pay the rent and has been continuously paying it to the petitioner and it has been accepted by the petitioner. It was further averred that he has been always ready and willing to pay the rent and has been continuously paying it to the petitioner and it has been accepted by the petitioner. In 1990 a further amendment was effected to the written statement to contend that he was the only child of original defendant No. 1 tenant. Issues were framed. Various proceedings arose out of the same, which I need not advert to as they are not necessary for deciding the controversy that arises in the present petition. On 30th September, 1994 the trial Court decreed the suit in favour of the petitioner. The trial Court held that the respondent had failed to prove his tenancy rights and as such was a mere trespasser and as such there was no need to render finding on the other issues. The trial Court further proceeded to hold that the petitioner had proved their bona fide requirement. The Court held that greater hardship would be occasioned to the petitioners if the decree of eviction was not passed. The trial Court further held that the suit as filed by the petitioners was maintainable as the petitioners were landlord within the meaning of the Rent Act, for the purpose of getting possession under section 5(11)(c) of the Bombay Rent Act. Aggrieved by the said order, the respondent No. 1 preferred an appeal. By judgment and order dated 10th September, 1996 the Appellate Bench allowed the appeal filed by respondent on the ground that the petitioner had ceased to be the owners after the execution of the Gift Deed in 1985 and as such were not the landlord entitled to seek eviction under section 13(1)(g) of the Bombay Rent Act. The Appellate Bench, however, confirmed the findings of the trial Court that respondent herein was not the tenant. Aggrieved by the said order, the present writ petition. 3. On behalf of the petitioners, the judgment of the Appellate Court is impugned principally on the following grounds :- 1) It is contended that the petitioners continued to be landlord within the meaning of section 5(3) of the Bombay Rent, Hotels and Lodging House Rates (Control) Act, 1947 and in the light of that the petition by the present petitioners was maintainable. 2) It was also contended on behalf of the petitioners that there was a decree for eviction against the original tenant. 2) It was also contended on behalf of the petitioners that there was a decree for eviction against the original tenant. That the respondent herein when the decree was passed was not the tenant. That decree had become final and consequently the Appellate Court could not have proceeded on that footing to hold that the decree could not be passed against the respondent herein. Learned Counsel for that purpose has relied on various judgments of the Apex Court in support of the aforesaid contentions which I will advert to in the course of the orders. 4. The definition of landlord to the extent it is relevant for the purpose of discussion is being reproduced hereinbelow :- "Landlord" means any person who is for the time being, receiving, or entitled to receive, rent in respect of any premises whether on his own account or on account, or on behalf, or for the benefit of any other person or as a trustee, guardian or receiver for any other person or who would so receive the rent or be entitled to receive the rent if the premises were let to a tenant and includes any a person not being a tenant who from time to time derives title under a landlord; and further includes in respect of his sub-tenant, a tenant who has sublet any premise; (and also includes in respect of a licensee deemed to be tenant by section 15-A, the licensor who has given such licence)........." In the instant case eviction has been ordered on the ground of personal bona fide requirement. Another relevant provision which is required to be considered is section 13(2) which reads as under :- "No decree for eviction shall be passed on the ground specified in Clause (g) of sub-section (1) if the Court is satisfied that, having regard to all the circumstances of the case including the question whether other reasonable accommodation is available for the landlord or the tenant, greater hardship would be caused by passing the decree than by refusing to pass it. Where the Court is satisfied that no hardship would be caused either to the tenant or to the landlord by passing the decree in respect of a part of the premises, the Court shall pass the decree in respect of such part only. Where the Court is satisfied that no hardship would be caused either to the tenant or to the landlord by passing the decree in respect of a part of the premises, the Court shall pass the decree in respect of such part only. Explanation :-For the purposes of Clause (g) of sub-section (1), (b) the expression "landlord" shall not include a rent-farmer or rent collector or estate manager." Based on this explanation to section 13(2) it is sought to be contended that what is excluded are only the categories as set out in the explanation. If so read, it is contended other persons who are landlord would be included in the definition for the purpose of an eviction on the ground of section 13(1)(g). 5. Some additional facts may be necessary for the purpose of discussing the points as raised. It has come on record that in the course of the proceedings the petitioners herein have gifted the property in favour of Manavi Pravin Thakkar who has accepted the gift as Donee as disclosed in the recital of the Gift Deed itself. I propose to reproduce a recital from the Gift Deed as that would be relevant for the purpose of deciding what is in issue before this Court. "......And the Donors do and each of them both hereby declare that they the Donors had filed a suit in the Small Causes Court at Bombay being R.A.E. Suit No. 571/3169 of 1976 against R.D. Kumana one of the tenants for ejectment in respect of a flat occupied by him on the 2nd floor, South side of the said building on the ground that the same was required by the Donors for their own personal use and occupation and in the suit a decree on admission as passed against the tenant Shri R.D. Kumana whereby he agreed to vacate the said flat. However Fali R. Kumana the son of the tenant filed an appeal challenging the said decree and has further filed a declaratory suit in the Small Causes Court at Bombay against the Donors being declaratory Suit No. 3737 of 1983. However Fali R. Kumana the son of the tenant filed an appeal challenging the said decree and has further filed a declaratory suit in the Small Causes Court at Bombay against the Donors being declaratory Suit No. 3737 of 1983. And this indenture further witnesseth that in the event of aforesaid appeal proceedings or the suit being finally decided in favour of the Donors only and against Fali R. Kumana and the Donors getting vacant possession of the said flat, then in that event the Donee shall let out the said flat to the Donors for their own personal use and occupation on monthly tenancy basis at a monthly rent of Rs. 283.55 (Rupees two hundred eighty three and paise fifty five only) and the Donors shall in addition thereto pay to the Donee all such permissible increase payable by them in respect of the said flat and the Donors do and each of them doth hereby assure the Donee that during the time they shall use and occupy the said flat as monthly tenant, they shall not create any tenancy or sub-tenancy in the said flat or let out the same on leave and licence basis or on caretaker basis or on any other basis." In other words the petitioners if they recovered possession would no longer be occupying the premises in the capacity as landlord but would be occupying the premises under a totally different status or capacity namely as tenant. This has a relevance bearing in mind the provisions of the Act which contemplates that when acquisition is on the ground of bona fide requirement it is a landlord who must occupy the premises. This has a relevance bearing in mind the provisions of the Act which contemplates that when acquisition is on the ground of bona fide requirement it is a landlord who must occupy the premises. A perusal of the relevant section namely section 17 of the Rent Act would indicate that where a decree for eviction has been passed by the Court on the ground specified in Clause (g) and the premises are not occupied within a period of one month from the date the landlord recovers possession or the premises and/or are re-let within one year of the said date to any person other than the original tenant, the Court may on the application of the original tenant made within thirteen months of such date, order the landlord to place him in occupation of the premises, on the original terms and conditions, and on such order being made, the landlord and any person who may be in occupation of the premises shall give vacant possession to the original tenant. It is thus clear that under the provisions of section 17(1) it is the landlord who must occupy the premises. The landlord cannot let out the premises to any other person except the tenant who was evicted from the premises. This has been set out, as it has an important bearing considering recitals and clauses of the Gift Deed which have been reproduced above. From the said clauses, it is clear that who is going to occupy the premises will not be the owner of the premises but the petitioners herein who will occupy the premises not in the capacity as landlord but in their independent capacity as tenant. In other words, even if an order is passed under section 13(1)(g), on the recitals and the clauses themselves between the petitioners herein the Donors and the Donee, the petitioners would be occupying the premises as tenant. This would be contrary to section 17(1). The public policy enunciated behind section 17(1) is that, it is the landlord who has got back possession of the premises on satisfying the Court that he bona fide requires the premises for his own use and that no hardship would be occasioned to the tenant. This would be contrary to section 17(1). The public policy enunciated behind section 17(1) is that, it is the landlord who has got back possession of the premises on satisfying the Court that he bona fide requires the premises for his own use and that no hardship would be occasioned to the tenant. It is in that context that section 17(1) has provided that if the landlord does not occupy the premises himself and instead allows some other person to occupy the premises, than the tenant who has been evicted is entitled to be reinducted into the premises on the same terms and conditions. In the instant case an order of eviction if passed will be defeated on the threshold itself considering the recitals in the Gift Deed bearing in mind section 17(1) of the Rent Act. It is made clear that the Donor who is now owner of the premises has accepted the Gift with this limited condition that she would induct the petitioners into the premises as tenant. This condition in the Gift Deed would be binding both on the Donor and the Donee. At any rate even the petitioners do not enforce the said clause in the Gift Deed at least they would not be entitled to occupy the premises as there is no provision contained in the Gift Deed for them to continue in possession unless the Court comes to the conclusion on the contentions raised by the petitioners herein that except for the excluded categories of section 13(2) others not excluded and falling with the definition of landlord under section 5(2) can still maintain the petition. It will therefore, be essential with the above background to know whether the petitioners herein could have maintained the action on the ground that they are landlord within the meaning of section 5. Turning to the definition, what is important to note is that to be a landlord, the person has to either receive the rent or to be entitled to receive the rent either on his own account or on account of the benefit of any other person. Turning to the definition, what is important to note is that to be a landlord, the person has to either receive the rent or to be entitled to receive the rent either on his own account or on account of the benefit of any other person. In the instant case there is no provision in the Gift Deed whereby the Donee either in any clauses of the Gift Deed or by any subsequent action including a power of attorney has conferred the power on the petitioners to receive the rent of the premises on behalf of the Donee. Perhaps if it were so and in that event the petitioners could still contend that they are rent collector and that a petition on their behalf would be maintainable. Whether that is sufficient for the purpose of section 13(1)(g) is another matter. In the instant case the petitioners do not derive any title from the landlord, as from the portion of the Gift Deed reproduced earlier no right of interest has been left in them except the right to be inducted as lessee. Therefore on a reading of section 5(3) itself, it is clear that the petitioners herein consequent to the Gift Deed dated 27th May, 1985 have divested themselves of all right, title and interest save for what is reserved. They therefore, even during the pendency of the petition or for that purpose the proceedings before the Appellate Court would not be landlord under the definition itself. Assuming for the purpose of discussion that the petitioners pursuant to the clauses in the Gift Deed are permitted to carry on the proceedings for eviction than can it be said that they would be landlord for the purpose of maintaining the ground for eviction under section 13(1)(g). Let me now advert to the judgments relied upon on behalf of the petitioners. In the case of (Narpatchand A. Bhandari v. Shantilal Moolshankar Jani and another)1, 1994(1) Bom.C.R. (S.C.)608 , the issue before the Apex Court was whether an usufructuary mortgagee could maintain a petition for eviction of the tenant on the ground of section 13(1)(c). The Apex Court considering the provisions of section 109 of the Transfer of Property Act held that the person who holds the property as usufructuary mortgagee would be entitled to all legal rights which the lessor had against such lessee. The Apex Court considering the provisions of section 109 of the Transfer of Property Act held that the person who holds the property as usufructuary mortgagee would be entitled to all legal rights which the lessor had against such lessee. That being the case such a person would fall within the definition of landlord and could maintain an action. Incidentally, another issue that was considered was as to whether such an unsufructuary mortgagee considering the explanation to section 13(2) could maintain an action for eviction on the ground of causing nuisance as contained in sub-section (1) of section 13 of the Act. The Apex Court observed that if the legislative intendment was that the unsufructuary mortgagee was not to be regarded as landlord for recovery possession of a tenanted premises on any of the grounds envisaged under sub-section (1) of section 13 of the Act, it would not omit to state so, particularly when it had been so stated in Clause (b) of the explanation to sub-section (2) of section 13 of the Act as regards 'rent farmer' or a 'rent collector' or an 'estate manager'. That judgment therefore would be of no assistance in so far as deciding the issue in controversy in so far as the present action is concerned. It may be made clear that in the said judgment itself the Apex Court has noted that in so far as section 13(1)(g) is concerned the action could not be maintained by a person as set out in the explanation. In the case of (S.B. Abdul Azeez (by L.Rs.) v. M. Maniyappa Shetty others)2, 1988(4) S.C.C. 727 , again the issue was of unsufructuary mortgagee under the provisions of the Karnataka Rent Control Act, 1961. That judgment has been referred by the Apex Court in the case of Narpatchand A. Bhandari (supra). The view taken by the Apex Court was that unsufructuary mortgagee would be landlord for the purpose of eviction on the grounds set out and in issue before the Apex Court. The next judgment relied upon is in the case of (M.M. Quasim v. Manohar Lal Sharma)3, A.I.R. 1981 S.C. 1113. In that case the Apex Court was considering the provisions of the Bihar Buildings (Lease, Rent and Eviction) Control Act, wherein the definition of landlord and owner in so far as occupation under section 11(1)(c) of the Bihar Act is concerned. In that case the Apex Court was considering the provisions of the Bihar Buildings (Lease, Rent and Eviction) Control Act, wherein the definition of landlord and owner in so far as occupation under section 11(1)(c) of the Bihar Act is concerned. The section provides that where the building is reasonably and in good faith required by the landlord for his own occupation or for the occupation of any person for whose benefit the building is held by the landlord, the Apex Court observed, considering the language of the section, that under section 11(1)(c) the legislature manifested its intention namely that the landlord alone can seek eviction on the ground of his personal requirement if he is one who has a right against the whole world to occupy the building himself and exclude any one holding a title lesser than his own. I will only before adding refer to what was said about the explanation to Clause (c). The Apex Court observed as under :- "Therefore, the explanation to Clause (c) which cuts down the wide amplitude of the expression 'landlord' would unmistakably show that for the purpose of Clause (c) such landlord who in the sense in which the word 'owner' is understood can claim as of right to the exclusion of everyone, to occupy the house, would be entitled to evict the tenant for his own occupation." If this is read, it is clear that the petitioners herein would not fall within the concept of owner who could occupy premises to the exclusion of all other excepting themselves as admittedly they would not have any right in the property as the right in the property vested in the Donee. Attention was then invited to the judgment in the case of (Smt. Shanti Sharma and others v. Smt. Ved Prabha and others)4, 1987(4) S.C.C. 193 . In that case before the Apex Court the issue was of the expression within the meaning of section 14(1)(e) of the Delhi Rent Control Act. In that case admittedly the person was inducted on the land on a long term lease. He had constructed his own bungalow on the property. It was sought to be contended that he would not be owner. In that case admittedly the person was inducted on the land on a long term lease. He had constructed his own bungalow on the property. It was sought to be contended that he would not be owner. It is in that context that the Apex Court was called upon to consider whether such a person who holds a land on long lease and has constructed his own construction would be owner within the meaning of Act. Considering the Act and that it is a beneficial piece of legislation, the Apex Court held that such a person who has constructed building on long leasehold land would be owner for the purpose of the Rent Act. To the same effect is the judgment in the case of (Swadesh Ranja Sinha v. Haradeb Banerjee)5, 1991(4) S.C.C. 572 . From all these judgments, therefore, what is clear is that considering the definition of a landlord, merely because the explanation excludes some categories, that does not by itself mean that a person who does not fall in the excluded categories is in position to maintain a petition for eviction. What the law requires and contemplates is that such a person must have a right in himself to the exclusion of all others to maintain an eviction of the lessee. In the instant case, the petitioners pursuant to the Gift Deed have excluded themselves from any right in the property. They ceased to have title in the property from the date of the Gift Deed and consequently they would not fall within the definition of the landlord within the meaning of the Bombay Rent Act to maintain action under section 13(1)(g). Once that be so, it cannot be said that there is any error of jurisdiction committed by the Appellate Court or that there is any error apparent on the face of the record. 6. That only leaves the limited question which was advanced that the respondent herein himself had no right to maintain the appeal. In the instant case it is no doubt true that the decree was obtained against the original landlord. The respondent herein thereafter preferred an appeal against the order passed by the Single Judge of the Small Causes Court. Ultimately the matter came up before this Court. In the instant case it is no doubt true that the decree was obtained against the original landlord. The respondent herein thereafter preferred an appeal against the order passed by the Single Judge of the Small Causes Court. Ultimately the matter came up before this Court. Before this Court, it was contended that the apprehension of defendant No. 2 is that if the decree against defendant No. 1 is executed he will have to take out obstructionist proceedings. There was no decree passed against the respondent at the relevant time. The undertaking of the petitioners were taken that they would not execute the decree. The matter therefore was in issue before the courts below. The judgment of the trial Court is dated 29th September, 1994 whereas the Gift Deed is dated 27th May, 1985. In other words, even when the proceedings were there before the trial Court, the petitioners herein had ceased to be the landlord. Exercise of jurisdiction by the trial Court would be on the basis of an existence of relationship of landlord and tenant. If the petitioners themselves were not the landlord than the question of the Court exercising jurisdiction and passing a decree would not have arisen. Even otherwise during the pendency of the proceedings the father of the respondent came to expire. The respondent was in the premisses. It is not necessary for me to go into the issue as to what will be the effect thereto. Suffice it to say that the respondent being in the premises and the petitioners ceasing to be landlord the trial Court would have had no jurisdiction to pass a decree for eviction against the respondent. Considering the above to my mind, there is no infirmity in the order of the courts below. In the light of that, Rule discharged. Petition dismissed. In the circumstances of the case, there shall be no order as to costs. All authorities/parties concerned to act on the ordinary copy of this order duly authenticated by P.A. P.A. to give copy of this order to the parties concerned. Certified copy expedited. Petition dismissed. -----