ZAHID AHMEDALI MAZGAONWALLA Vs. GULSHAN PYARALI MAZGAONWALLA

JUDGEMENT

(1.) The Respondent is the paternal aunt of Appellant No. 1. Appellant No. 2 is the wife of Appellant No. 1. The suit premises was tenanted by the Appellant No. 1's grand father Pyarali Mazgaonwalla since deceased in the year 1957. At the time of his death, the Respondent and eight other siblings including Appellant No. 1's father Ahmedali along with their mother lived in the suit premises. Admittedly, the rent receipts were issued in the name of the Respondent's father Pyarali until his death and continued to be issued in his name until December, 1974. Since 1st January, 1975, the rent receipts have been admittedly issued in the name of Respondent's mother -Jenabai on the basis of a Will left by Pyarali. Jenabai, during her lifetime, got the rent receipts transferred in favour of the Respondent in 1981, as claimed by the Respondent. The Respondent, thereafter filed a suit, bearing Suit No. 1743 of 1992 before the Bombay City Civil Court for a declaration that she was solely entitled to the suit premises consisting of four rooms on the IInd floor of building known as "Haroon Manzil" and that the Appellants have no right, title or interest in the suit premises, and for a mandatory injunction to remove them. The Trial Court, by its judgment and order dated 25th October 1999, declared that the only person entitled to the suit premises was the Respondent. It also declared that the Appellants had no right, title or interest in or over the suit premises. Accordingly, the Appellants have been restrained from entering into suit premises and from parting with the possession to anybody else. This present Appeal arises from the said impugned judgment and order dated 25th October, 1999. In the present Appeal, a preliminary objection as to the jurisdiction of the Bombay City Civil Court to hear the suit as the matter arose out of Bombay Rent Act was raised and that only the Court of Small Causes had jurisdiction to entertain the same. The said objection was overruled by my Learned brother Mr. Rohee, J. by order dated 5th May, 2006, accordingly the present Appeal was directed to be heard on merits.

(2.) It was argued by the Learned Counsel for the Appellants, Mr. Dani that the Appellants are the joint tenants with the Respondent and others, and that the Respondent is not the exclusive tenant of the suit premises. Mr. Dani also argued that no exclusive transfer of tenancy to Jenabai was possible since under Muslim Law, consent of the family members is required while making more than 1/3 proportion by a bequest, and no such consent was obtained. At the time of death of Pyarali, Appellant No. 1's father Ahmedali was residing with him as a family member as such Ahmedali was a joint tenant with other family members. At the time of death of Ahmedali, Appellant No.1 was residing as a family member.

(3.) Mr. Dani, the Learned Counsel for the Appellant, strongly contended that under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter : the Bombay Rent Act), no bequest of tenancy is possible in the light of the Bombay High Court Division Bench judgment of Anant T. Sabnis v. Vasant Pratap Pandit, 1979 MhLJ 755, which was upheld in Appeal before the Supreme Court in Vasant Pratap Pandit v. Dr. Anant Trimbak Sabnis, 1994 2 MhLJ 1450. Mr.Dani argued that under Section 5(11)(c)(i) of the Bombay Rent Act, by virtue of the fact that Appellant's father Ahmedali had been residing in the suit premises at the time of Pyarali's death, he became a joint tenant along with others. Mr. Dani, the Learned Counsel also argued that Jenabai, not being the sole tenant, could not have transferred tenancy to Gulshan, her daughter, during her lifetime. Mr.Dani, the Learned Counsel for the Appellants submitted that merely the rent receipt in the name of Respondent will not deprive the Appellant No. 1's joint tenancy right. In that behalf, Mr.Dani relied on Ramesh S.Kale v. Madhav B. Wadnere, 2001 Supp1 BCR 321 and H.C. Pandey v. G.C. Paul, 1989 2 SCR 769