GOOL RUSTOMJI LALA Vs. JAL RUSTOMJI LALA

JUDGEMENT

(1.) THIS is a dispute between the sister and her brother. The petitioner and Respondent No. 1 are respectively the daughter and son of late Rustomji Lala, who was the tenant of a flat on the fifth floor of the building known as 'joshi House. ' Cumballa Hill, Bombay 26. Rustomji Lala was the contractual tenant. He was residing in the flat with his wife and three children. His wife died in 1942. His one son Sohrab left India and went abroad in 1948, Since that time Rustomji stayed in the flat with petitioner and Respondent No. 1. It appears that in 1947 Rustomji gifted away his another building "jor Mahal" to the petitioner. In 1952 he transferred his business to his son the Respondent No. 1. On 19-2-54 Rustomji made a Will. Under that Will he gave away all his moveables and the tenancy right in the suit flate to the petitioner. Rustomji died on 12-3-1958. The petitioner obtained the probate of the Will on 17-9-1964. The landlord had given notice terminating the tenancy of the petitioner and also of Respondent No. 1. It appears that the petitioner had made an application No. RAE. 1650 of 1959 against the landlord for a declaration that she alone was the tenant. An ex parte declaration in her favour was made on 9-8-1962. On 18-11-1960 Respondent No. 1 had made an application and the order passed in that application is the subject - matter of the proceedings before me. That application was given against the petitioner and also the landlord, rather the landlady, alleging that he was residing with the deceased tenant at the time of the death of the tenant. As a member of the tenant's family he was entitled to a declaration under Section 5 (11) (c) of the Rent Act that he was the tenant in respect of the suit flat.

(2.) THE petitioner objected to this application on various grounds. She strongly relied on the Will and submitted that the deceased tenant had bequeathed the contractual tenancy in her favour. She alone had the right to be declared as a tenant in respect of the suit flat. In that application the petitioner also mentioned the fact that the Respondent No. 1 was not residing with the deceased tenant as a member of the family. He was occupying a room separately and was paying monthly charged because he was allowed to reside as a paying guest. The landlady did not file any written statement. She did engaged a lawyer but the lawyer made a statement that his client was not interested in the dispute. But it appears that the landlady was examined as a witness on behalf of Respondent No. 1.

(3.) THE learned trial Judge considered all the facts and circumstances of the case. He came to the conclusion that Respondent No. 1 was residing with the deceased tenant in the same flat as a member of his family. It is true that the deceased - tenant had made a Will and bequeathed the contractual tenancy right to the petitioner. But, according to the learned trial Judge, that was not a decisive factor. Both the petitioner and Respondent No. 1 were qualified to become tenants under Section 5 (11) (c) of the Rent Act. Accordingly he made a declaration that the petitioner and Respondent No. 1 are the tenants within the meaning of sub - section. Respondent No. 1 appears to have accepted the finality of this adjudication. But the petitioner aggrieved by that decision approached the Division Bench of the Court of Small Causes by filing a revisional application. The Bench of the Court of Small Causes summarily rejected the revisional application on 2-3-1965.