RAJARAM BRINDAVAN UPADHYAYA Vs. RAMRAJ RAGHUNATH UPADHYAYA

JUDGEMENT

(1.) The question of law that arises in this second appeal is whether the provisions of section 5(11)(c) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (briefly, "the Rent Act") are meant to supersede the right of inheritance to the tenancy vesting in the heirs on the death of the tenant, under the personal law of the party. The present proceedings were filed as Special Civil Application under Article 227 of the Constitution of India before a Single Judge. The learned Single judge referred it to a Division Bench for decision not only because the point of law raised in it is of considerable importance but also because in his view, there is a conflict between two single Judge decisions of this Court on the point in (Civil Revision Application No. 1556 of 1963, decided on 9th February, 1966 by K.K. Desai, J.) Civil Revision Application No. 1556 of 1963, decided on 9th February, 1966 by K.K. Desai, J. (Bom.). as he then was, the view taken is that the provisions of section 5(11)(c) of the Rent Act are not meant to supersede the right of inheritance to the tenancy visiting in the heirs on the death of the tenant, under the personal law of the party. According to the learned single judge, a contrary view has been taken by Bhasme, J in (Gool Rustomji v. Jal Rustomji) 73 Bom.L.R. 600. For the reasons which will be clear hereafter, we have allowed the Special Civil Application to be converted into a Second Appeal.

(2.) The question of law mentioned above arises on the following facts :--- One Brindavan Shivpal Upadhyaya was the tenant of the suit room bearing No. 16 in Mansukhlal Tarachandjis Chawl situate at Mouje Navghar, Taluka Bassein, District Thane. Initially, the rent was Rs. 10/- per month. Later it was raised to Rs. 15/- per month. Brindavan died in June, 1961. The appellants are the plaintiffs and respondents Nos. 1 to 3 are the defendants in the suit filed in the Court of the Civil Judge, Junior Division Bassein. Plaintiff No. 1 Rajaram, plaintiff No. 2 Bansraj and plaintiff No. 3 Rajkishore are the sons of Brindavan. Plaintiff No. 4 Girijashankar is the son of plaintiff No. 1 Rajaram. Defendant No. 1 Ramraj is the nephew of Brindavan. Defendant No. 2 Ajit Chandulal Pratap was the original landlord who sold the property in which the room in suit is situate to defendant No. 3. Mansukhlal Tarachand, who is at present the landlord of the suit room.

(3.) Defendant No. 1 Ramraj was staying with the deceased Brindavan in the suit room at the time of the latters death. The suit of the plaintiffs was for a declaration that they are the tenants of the suit room because they are the heirs of the original tenant Brindavan. Initially, they had not claimed possession but a mere injunction as a consequential relief. But, subsequently, they amended the plaint to claim possession of the suit room from defendant No. 1. Defendants Nos. 2 and 3 were joined as parties to the suit so that, as the previous and the present landlords, the decree that might to be passed in the suit should be binding on them. The plaintiffs contended that defendant No. 1 had no right to stay-in the suit room because they alone as the heirs of the deceased Brindavan were entitled to inherit the tenancy right. They also had made an allegation that not only defendant No. 1 but they also were in possession of the suit room at the time of death of Brindavan.