MOHINI BHIRYOMAL HINGORANI Vs. BHANUBHAI MANILAL PATEL

JUDGEMENT

(1.) This is a revision application under sec. 29(2) of the Bombay Rent Act against the concurrent decree of both the courts below directing the petitioner to vacate the premises on the ground of sec. 13(1) (k) of the Act. This dispute pertains to a suit house at Baroda on Kothi Road belonging to the respondent and given on rent in the name of the petitioner ever since the time when she was a minor. It is the case that her father was serving at Broach and there-fire she was initially studying in Gujarati. But because she wanted to study Sindhi at Baroda, she came to her maternal relative and there-after this house was taken on rent in her name so that she can study there. It is the case that since 1968, the petitioner has gone over to Bombay. She is serving there as a Lecturer in College of Pharmacy and therefore this house is not used. Initially, it was the case that because she has got an alternative accommodation at Bombay, the possession of this premises should be handed over to the respondent under the provisions of sec. 13(1)(1) of the Act. And then the another contention, in the a terminative which was urged was under sec. 13(1)(k) of the Act was believed by the trial court and decree was passed on both counts. But the appellate court considered that two houses at Bombay were not in the name of the petitioner, but they were in the names of her father and mother or brother and therefore decree on that count was set aside. But the learned appellate judge in appeal, confirmed the decree on the count of sec. 13(1)(k) of the Act,. The landlord did not proceed father against his being non-suited under sec. 13(1)(1) and hence that finding has been found.

(2.) . The case of the petitioner was that she had temporarily gone to Bombay for studies and has taken a casual appointment as Lecturer. But she had all desire to come back to Baroda and stay in the suit house and that in her absence, her parents were staying in the suit house at Baroda and therefore the decree should not be passed. Both the courts below did not believe the case of the petitioner that her parents were staying in the house and maintaining it which is for the benefit of the petitioner so that after coming back to Baroda, she could stay there. The courts below did not believe that she was to return and stay at Baroda. It should be noted that the house is on the main road of city of Baroda on Kothi Road on a rent of only Rs.16-60 p.s.

(3.) 3. So far as the facts are concerned, it is not in dispute now that right from 1968, the petitioner's ordinary residence is at Bombay. It is also not now in dispute that at Bombay, one flat No.A29 of Triloknagar Co-operative Housing Society, Bandra, was standing in the name of her mother Sitaben Trikamdas. It is also an admitted position that at Bandra, the petitioner was staying in the very flat with her brother Lakshman till 1973. It should be noted that the suit is filed on 21-6-1971 and the suit notice is dated 7-1-1977. So the position that was prevalent at that time has to be considered. Of course, by Exh. 71, dated 10-10-1974, the said flat of Triloknagar was transferred to the name of Mr.Ronnie Almeda on 14-12-1974. In that flat of Triloknagar, there are five rooms on the second floor. It is also in evidence that the defendant-petitioner has been residing in block no-13 of Cainor Co-operative Housing Society, Bandra and this flat belongs to the father of the petitioner. The brother of the petitioner lakshman has got a flat in that society. This is addition to the flat belonging to the father and the petitioner stays with her brother Lakshman as a family member. Therefore, the position stands that at the relevant time, there was a flat in the name of mother Sitaben in Triloknagar society and a flat in the name of the father in Cainor Co-operative Housing Society. The petitioner claims that the suit house was used for the residence of these two persons, who were also having their flats in Bombay. Of course, evidence is also there that after 1974, one bungalow in Navjivan society is purchased in the name of the father. But it is the case that, that was purchased for the engineering Firm which was run by the petitioner's brother Lakshman. As that transaction is after the relevant period, I do not propose to go into it. But a contention is raised before me that here is a man having bungalow at Baroda and a flat in his wife's name at Bombay and a flat in his own name at Bombay, and still wants to retain this premises in the name of his daughter just in order not to lose the possession of a very precious house in Baroda at the rent of Rs.16-50 ps. P.m. whatever may be the position, if the petitioner is entitled to retain the house in her own rights, merely because the house is in a very important locality and important city like Baroda on a very nominal rent, should not weigh. Now it is found in evidence that it was only in 1971 that the names of the petitioner, her father, her mother and her brother are entered as voters in the municipal corporation elector roll for ward No.7 in the suit premises. It has not come on record that at any time during the whole trial, Lakshman was staying at Baroda. But at any rate, it may be stated that in 1971 this position is there. But it is held that prior to that period, the name of the petitioner was in the elector roll at Bombay. In view of these facts, the only point which is required to be considered is whether the petitioner has proved her animus revertendi that she has desire to come back and stay permanently at Baroda and secondly whether during the statutory period, the house was in use or it had offended the provisions of sec. 13(1)(k) of the Act.