KHIMJIBHAI MEGHJIBHAI PATEL Vs. NASIRUDDIN Z SHAIKH

JUDGEMENT

(1.) THE only question raised before me by Mr. V. C. Desai the learned advocate for the applicants is this question about the applicants liability for rent and mesne profits. It is to be noted with pertinance at this stage that the theory put forward by these applicants about the lawful assignment of the running business together with the tenancy rights have been negatived by both the courts below. It being a finding of fact was not allowed to be reopened by me for want of any error of law in that behalf having been pointed out. So the question that falls to be determined in this revision application is whether these applicants original defendants nos. 1 to 3 impleaded in the suit as the heirs of Meghjibhai were or were not liable for rent and mesne profits. THE finding of fact that operates in this case is that deceased Meghjibhai had unlawfully sub-let the premises to the defendants nos. 4 and 5 and the affective delivery of possession till the appellate Bench decided the appeals could not be had by the plaintiff because of that unlawful sub-letting on the part of deceased Meghjibhai. So till the appellate bench came to confirm the decree of eviction the liability of these applicants would be there. For the period subsequent to that decree they will not be liable because there was no stay operating against the landlord in executing the decree. If the landlords for some undisclosed reason did not take any effective step to recover possession and thus delayed the recovery despite the fact they were entitled to the liability cannot be fastened on these defendants-applicants for mesne profits.

(2.) MR. Desai however invited my attention to sec. 5(11)(c) of the Bombay Rent Act and urged that at the time of Meghjibhais death the applicants being not in joint possession with Meghjibhai cannot be said to be tenants and therefore cannot be said to be liable at all. Technically speaking it can be said that they were not the tenants in their own rights by virtue of sec. 5(11)(c) but that does not and cannot mean that they could not be proceeded against in their capacity as the heirs of Meghjibhai. MR. Bhatt the learned advocate for the plaintiff-landlord vehemently contended before me that those applicants were impleaded in the suit not only as the heirs of deceased Meghjibhai but also in their individual capacity. Were it so the matter would have stood differently. I had therefore requested MR. Bhatt to point out to me the plaint and the evidence led in the case. MR. Bhatt referred to these documents extensively but he could not point out anything that would satisfy me and make me hold that these applicants were impleaded not only as the heirs of deceased Meghjibhai but individually also. Till the tenancy rights which were a binding relationship between Meghjibhai and the plaintiff-landlord came to be severed by the competent decree of the court that relationship persisted. It would not be open to the landlord to take possession by taking law in his hands. He could do so only by instituting the suit and so the liability of the deceased Meghjibhai till he was alive remained there personally and after his death till the plaintiff could lawfully recover possession the liability would continue to be fastened with the estate of the deceased. It is in this sense that I have stated that these applicants-tenants are liable for the rental liability of deceased Meghjibhai and they cannot escape the same by pleading that with the death Meghjibhai the tenancy came to an end and together with it their liability also came to an end. The estate of the deceased Meghjibhai did remain liable till the decree of eviction came to be confirmed by the appellate Bench. It is however to be clarified that that liability of the applicants will be in their capacity as the heirs of Meghjibhai and therefore would be limited to the estate of late Meghjibhai in their hands and not personally. This is required to be clarified because the decree is not that clear expressly though in my view it is clear by necessary implication; because the decree is there against these applicants in their capacity as the heirs and not in their individual capacity. However if any clarification is needed this particular observation of mine will operate as a clarification. Application partly allowed.