KAIKHUSHRU H BHIVANDIWALLA Vs. NARGESH

JUDGEMENT

(1.) THE petitioners in this special Civil application filed under Article 227 of the Constitution of India are Trustees o? the estate of the late Khan Bahadur H. N. Bhiwandiwalla owning among other properties a building known as Churchill Chambers. One H. Henley was a tenant of flat No. 7 in the said building for many years prior to 1955. The trustees have appointed a constituted attorney and the said constituted attorney found that the said Henley was in arrears and gave a notice to Mr. Henley to pay rent and water charges due in respect of the said flat Henley sent a reply through his Solicitors raising various pleas denying his liability to pay rent and water charges. On May 23, 1958, the constituted attorney of the petitioners finally gave a notice to the said Henley determining his tenancy. It was stated in the notice that the said Henley was liable to pay arrears of rent from October 1, 1957 to April 30, 1958 for 7 months at the rate of Rs. 89. 37 per month amounting to Rs. 625. 59. It also stated that the said Henley was liable to pay a further sum of Rs. 201. 50 in respect or water charges payable to the Bombay Municipal Corporration and alleged that Henley "in contravention of the terms and conditions of the tenancy, and also against the provisions of the Bombay Rent Control Act, sublet a portion of the premises in his occupation to some persons called Miss Byramji, Miss Mary, and others, to earn income by way of business, causing nuisance and annoyance to the adjoining or neighbouring occupiers. "the constituted attorney, therefore, called upon Henley by the said notice to quit vacate and deliver possession of the said flat No. 7 at the end of the month next to the current month of his tenancy.

(2.) RELYING on the said notice which remained unreplied by Henley, the petitioners filed a suit, being R. A. E. and R. Suit No. 1686/9105 of 1958 in the Court of Small Causes at Bombay on July 9, 1958 praying that the said Henley who was the defendant should be ordered and decreed to deliver possession of the said flat and to pay to the plaintiffs a sum of Rs. 1029. 58 and future mesne profits. The grounds on which the decree was sought were (1) that the defendant Henley had failed to pay (i) water charges, (ii) arrears of rent for more than six months; (2) that he was using the premises for purposes for which they were not let for over six months and had consequently committed an act contrary to the provisions of Clause (o) of Section 108 of the Transfer of Property Act inasmuch as the premises were let out to him for the purpose of residence, but the defendant was carrying on therein the business of a lodg- ing and boarding house and hence the plaintiffs were entitled to possession under Section 13 (1) (a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the "bombay Rent Act")

(3.) DURING the pendency of the suit and after filing his written statement, Henley died on April 5, 1960 leaving behind him a will executed on November 23, 1956 appointing Miss Byramjee respondent No. 1 in this petition as the executrix of his will and bequeathed all his tenancy rights and rights in other properties to her as mentioned in the will.