KEWALCHAND NEMCHAND MEHTA Vs. MANI FRAMJI MODY

JUDGEMENT

(1.) Shri Kevalchand Nemchand Mehta and his wife Smt. Kamlaben constructed the multi storeyed building by name "Keval Mahal" on Marine Drive, Mumbai consisting of 11 flats somewhere in the year 1940. At that time the couple had one son and five unmarried daughters. In 1945 second son was born, in 1946 third son was born and in 1954 three daughters and eldest son Dinesh were married. In the year 1942 Flat No.9A located on the 4th floor was given on rent to one Mr.M.C. Davar who was occupying the same along with his wife and the couple had no issues. With the arrival of children and grand children, the members of the family had increased and, therefore, the landlords gave a notice of terminating the tenancy in the year 1965. Finally, RAE Suit No.446/2650 of 1971 was filed on or about 28/5/1971 under the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Act, 1978 (for short the Bombay Rent Act) seeking possession of the suit flat on the grounds of reasonable and bona fide requirements and for other reasons. Before the suit was filed Mrs.Davar had expired and during the pendency of the suit Mr. Davar died on 7/10/1975 leaving behind him a Will with three executors surviving, namely, Fali Jamshed Cursetji Davar, Smt. Pervis A. Mazgaonwala and Smt. Mani Framji Mody and the plaint was amended on 17/3/1976 so as to bring these three executors of the Will on record in place of Mr.M.C. Davar who had filed his Written Statement before he died on 7/10/1975. Two of the LRs., namely, Fali Jamshed Cursetji Davar and Smt. Pervis A. Mazgaonwala did not file their Written Statement so as to contest the suit. Whereas, Smt. Mani Framji Mody filed her Written Statement on 4/12/1976 contending that she was the cousin of the original defendant Mr.M.C. Davar and was residing with him before his death in the suit premises and, therefore, she was entitled to claim protection under the Bombay Rent Act.

(2.) Smt.Mody made an application to the trial court on 26/2/1980 for framing the following issue as the preliminary issue:-

(3.) The trial court framed the following issues:-