NIRMALA AVINASH KUMAR MUKERJI Vs. PARPATI R MALKANI

JUDGEMENT

(1.) PETITIONERS in this writ petition are the legal representatives of original plaintiff-Avinash Kumar Mukerji, who had filed R.A.Declaratory Suit No.5689 of 1978 against the present respondents for a declaration that the original plaintiff was the tenant of the suit premises and also for consequential reliefs by way of injunction. Respondent No.1, in this case is a land lady, and respondent No.2 is the Company in whose favour respondent No.1 entered into leave and licence agreement on April 10, 1970. After filing the suit and when Avinash Kumar Mukerji, original plaintiff, was undergoing his cross-examination, the original plaintiff expired leaving behind him the present petitioners. It is the case of the present petitioners that the original agreement entered into between respondent No.1 and respondent No.2 was in fact for the benefit of the plaintiff and it was only from the point of view of security of rent the said agreement was entered into by respondent No.1 with respondent No.2, the company, wherein the plaintiff was in service. Orig. Plaintiff further contended that in view of the subsequent amendment to the Bombay Rents, Hotel Lodging House Rates Control Act, 1947 (hereinafter referred to as the Bombay Rent Act) in the year 1973, the original plaintiff became a tenant of the suit premises and, therefore, he and subsequently the present petitioners, who are the legal representatives of original plaintiff, have got right to a declaration in their favour to the effect that they are the tenants of the suit premises. Respondent No.1, the land lady, resisted the aforesaid suit and contended that the leave and licence agreement dated April 10, 1970 was entered into between respondent No.1 and respondent No.2, the company, in order to accommodate their employee viz. Avinash Kumar Mukerji and she never entered into any agreement with the said Avinash Kumar Mukerji in the personal capacity. It was also contended by her that under the said agreement there was no privity of contract between respondent No.1, the land lady, and the original plaintiff, Avinash Kumar Mukerji, Therefore, respondent No.1 prayed for dismissal of the suit. In this suit respondent No.2, the company, though filed some affidavit at some stage claiming therein the tenancy of the suit flat, did not resist the suit by filing the written statement or by leading evidence or by filing subsequent appeal. The trial Court after allowing both the parties to lead the evidence and argue their respective cases, decreed the suit by its judgment and decree dated October 28, 1985. Against the said judgment and decree passed by the trial Court respondent No.1 preferred appeal before the Court of Small Causes Bombay being appeal No.50 of 1986. The lower appellate Court by its decision dated November 22, 1989 allowed the appeal preferred by the respondent by setting aside the decision of the trial Court. It is against this decision of the lower appellate Court the present writ petition is preferred. February 9, 1995.

(2.) THE facts as disclosed in this case and admitted by both the sides are as under : It is an admitted position that original plaintiff was an employee of respondent No.2, the company. As an employee he was occupying flat belonging to one of the directors of respondent No.2, the company. THE said Director wanted to sell the said flat and, therefore, the present flat, which is the subject matter of the dispute, was taken on leave and licence basis by an agreement dated April 10, 1970. A copy of the said agreement of leave and licence is produced by the present petitioner clearly shows that the suit flat was taken by respondent No.2 as a licencee of respondent No.1, the land lady. THE perusal of the said agreement clearly shows that the various obligations emanated out of the said agreement are vis-a-vis respondent No.2 to respondent No.1 and the original plaintiff is nowhere in the picture. THE agreement prepostulates that the licensee respondent No.2, the company, had taken the suit flat for its occupation by the company's officer and respondent No.2, the company, has undertaken various obligations as such. THErefore, on fair reading of the said agreement it becomes clear that respondent No.2 had taken the said flat from respondent No.1 for occupation of its officer. Further, it is also not disputed that at the relevant time and till the termination of the licence, original plaintiff was in the employment of respondent No.2. In view of this agreement, according to me, respondent No.1, the land lady, has clearly established that she gave the said flat to respondent No.2, the company, on leave and licence basis, and the original plaintiff was occupying the said flat as an employee of respondent No.2, the company, and not in his individual capacity. Further it is pertinent to note that after the said agreement was entered into, respondent No.1 had also made an application to the Navjeevan Society, of which respondent No.1 was a tenant-member, for licensing out the suit flat to respondent No.2. THE said Navjeevan Society, by its letter dated May 2, 1970, granted the said permission. THEse two documents clearly establish the fact that respondent No.1, the land lady entered into the agreement with respondent No.2, the company, and the agreement nowhere refers to the original plaintiff.

(3.) AS against this, Mr. Masand, the learned Counsel for the petitioners, contended that his case does not come within the purview of the Benami Transactions (Prohibition) Act, 1988, in view of the definition as given in section 2(a) of the said Act, which reads as under : "2(a) : "benami transaction" means any transaction in which property is transferred to one person for a consideration paid or provided by another person."