LAXMIDAS MORARJI Vs. JEHANGIR DINSHAW BAMJI

JUDGEMENT

(1.) BY this petition, the petitioner challenges the order dated 23rd October 1986 passed by the Division Bench of the Small Causes Court at Bombay in Appeal No. 74 of 1978. That appeal was filed by the petitioner challenging the order dated 2nd July, 1977 passed by the Small Causes Court at Bombay in R. A. E. and R. Suit No. 310/2406 of 1967. That civil suit was initially filed by the present respondent No. 6 - Salehbhai for recovery of possession of flat No. 2-B on the second floor of the building known as Mahomedaly Mansion, 241, Princess Street, Bombay. However, thereafter, the original petitioner - Laxmidas of whom the present petitioners are the legal representatives was joined as co-plaintiff because the premises were assigned to him by the original plaintiff. It was claimed in the suit that the suit premises were let out to one Dhanbai Batliwala as a monthly tenant, that she died on 12th December 1963 without leaving any heir behind. The executors of the Will left behind were parties to the suit as also present respondent No. 5 - Miss Behroze was also joined as defendant No. 5 and it was claimed that she has no right to remain in the suit premises because she cannot be an adopted daughter of the original tenant Dhanbai. A decree was claimed by the landlords on the ground that there is default committed in payment of rent. The trial Court found that the respondent No. 5 was residing with the tenant Dhanbai as a member of her family and deceased Dhanbai had also adopted her as her daughter and therefore she has inherited the tenancy and therefore she is entitled to be in possession of the suit premises. The trial Court did not accept the case of the respondent No. 5 that she is adopted daughter of the deceased tenant Dhanbai, however, the trial Court held that the respondent No. 5 has established that Dhanbai treated respondent No. 5 as a member of her family and therefore according to the trial Court, she inherits the tenancy under the provisions of section 5 (11) (c) of the Bombay Rent Act. This judgment was challenged by the petitioners before the Appellate Court. The Appellate Court dismissed the appeal and held that the tenancy was inherited by the respondent No. 5, however, in reaching that conclusion, the Appellate Court held that the respondent No. 5 was an adopted daughter of the deceased tenant Dhanbai. The finding recorded by the Appellate Court was that, according to Parsi Law, adoption is permitted. Feeling aggrieved by this observation of the Appellate Court that adoption, according to Parsi Law, is permitted, trustees of Parsi Panchayat Funds and Properties have filed Civil Application No. 3284 of 1984, praying for permission to intervene in the matter and to address the Court on the question whether a Parsi was legally competent to adopt as held by the Appellate Court. When the petition was called for final hearing, none appeared for the petitioner and none appeared for the respondents. However, with the assistance of the learned Counsel appearing for the intervenors - Parsi Panchayat, I have gone through the record of the case. Perusal of the judgment of the Trial Court shows that the Trial Court has observed it as a fact that the respondent No. 5 was living with deceased tenant Dhanbai and Dhanbai was treating respondent No. 5 as a member of her family and therefore, relying on the provisions of section 5 (11) (c) of the Bombay Rent Act, the Court has held that as respondent No. 5 was residing with the tenant at the time of her death, as a member of the tenant's family, she would inherit the tenancy of the suit premises. In my opinion, no exception can be taken to the finding recorded by the Trial Court that the respondent No. 5 would inherit the tenancy of the suit premises as she was residing with the tenant as a member of the family of the tenant. Therefore, in my opinion, the orders passed by both the courts below dismissing the suit filed by the petitioner on the ground that Dhanbai has not left behind anybody who would inherit the tenancy is rightly dismissed. That leaves for consideration only one question now whether the Appellate Court was justified in holding that among the Parsees, there is a recognised custom of adoption. As stated above, the Trial Court has clearly held that among the Parsees, no such custom exists. It appears from thetjudgment of the Appellate Court that for recording this finding, that the custom of adoption is recognised among the Parsees, the Appellate Court has relied on a judgment of this Court in the case of (Kershaji Dhanjibhai v. Kaikhushru Kolhabhai), 31 Bom. L. R. 1081 (DB ). A perusal of that judgment shows that the question that the Court was considering in that case was whether the custom of adoption was recognised and prevalent among the Parsees domiciled in Baroda State. The Court was also considering the question whether that custom would be applicable in relation to a property which is belonging to a Parsi not situated in the Baroda State but in British India. The Court has clear-cut held that the custom of adoption was prevalent among the Parsees in the Baroda State and that no such customs existed among the Parsees domiciled in British India. Therefore, perusal of the judgment of the Division Bench of this Court in Kershaji's case referred to above clearly lays it down that in so far as the Parsees domiciled in British India are concerned, there was no recognised custom of adoption. As Bombay was part of the British India, in my opinion, there was no justification for the Appellate Court to hold, relying on the judgment of Division Bench of this Court in Kershaji's case (supra), that the custom of adoption among Parsees domiciled in British India was prevalent. The judgment of the Division Bench referred to above in Kershaji's case was considered by this Court in its judgment in (Ratanshaw Dinshawji Chothia v. Bamanji Dhanjibhai and others), 1938 A. I. R. 238 (Bom.) and this Court has observed thus : " in 31 Bom. L. R. 1081 it was held by this Court that 'land in British India is governed by the law of British India as the lex loci and not by the law of domicile of the temporary owner. ' That was a case dealing with the question of an adoption made by Parsees domiciled in the Baroda State. It was found that the custom of adoption did prevail among the Parsees of Baroda State and it was held that such a custom could not prevail in British India as regards immovable property situated there since, according to the law applicable to Parsees in British India, such a custom was not recognised. "

(2.) THUS, there is a clear pronouncement made by this Court in its judgment referred to above that so far as Parsis domiciled in British India are concerned, custom of adoption is not recognised. It is further to be seen that the Appellate Court has also relied on a judgment of Privy Council in the case of Jehangir Dadabhoy v. Kaikhushru Kavasha, in support of the observations that it has made. The Appellate Court further has clearly missed that though this question was referred to by the Privy Council in its judgment in clear terms, the Privy Council has stated that it is not necessary for the Privy Council to decide this question in view of the finding recorded by the Privy Council in relation to the nature of the property. The Privy Council has taken the view that Pallonji had become full owner of his share of the property and as he did not take any estate, there was no question of the Privy Council considering the point whether Pallonji's adopted son could inherit the property or not. Thus, the question whether there can be valid adoption by a Parsi domiciled in British India was not at all considered by the Privy Council. In my opinion, judgment of the Division Bench of this Court referred to above in Kershaji's case and a judgment of this Court in Ratanshaw's case referred to above, leaves no doubt that in so far as the Parsees domiciled in British India are concerned, custom of adoption is not recognised and therefore in my opinion, the Appellate Court was not justified in holding that the respondent No. 5 was adopted by the deceased tenant Dhanbai. However, though I find that the finding recorded by the Appellate Court in this regard is erroneous, it is not necessary for me to disturb the ultimate order passed by the Appellate Court as the Appellate Court has not set aside the finding recorded by the Trial Court that respondent No. 5 cannot be said to be the adopted daughter of the deceased tenant Dhanbai as Dhanbai was treating her as a member of her family and as she was residing with Dhanbai, she inherited the tenancy in terms of the provisions of section 5 (11) (c) of the Act.

(3.) IN the result therefore, the petition fails and is dismissed with no order as to costs. The observations of the Appellate Court referred to above are, however, set aside. Civil Application No. 3284 of 1994 in Writ Petition No. 5129 of 1987 :- For the reasons stated in the Civil Application and in view of the observations in the judgment in Writ Petition No. 519 of 1987, rule in this Civil Application is made absolute in terms of prayer clause (a ).