Case Details
Smruti Laxmikant Mistry Vs Lakhanis Pvt Ltd
Case Details
![]() | R.Appeal |
![]() | 725/2018 |
![]() | 216/2018 |
![]() | 22-05-2018 |
![]() | 08-06-2018 |
14th June 2018 | |
17th February 2020 | |
Case Disposed | |
3-Ad-Hoc District Judge Cr No-3; | |
Contested--By Judgement; |
Petitioners & Respondents
Smruti Laxmikant Mistry, ;
Smruti Laxmikant Mistry;
Raje Dhananjay Krishnaji;
Raje Dhananjay Krishnaji;
Atul Shankar Kulkarni, Jayashree Sanjay Shetye, Lakhanis Pvt Ltd;
Atul Shankar Kulkarni, Jayashree Sanjay Shetye, Lakhanis Pvt Ltd;

Deshpande Yogesh;
Deshpande Yogesh;
Order Details

Order Details
Order not found.
Final Order Judgement
17-02-2020 | |
New Defoult Page 1 CNR NO:MHSCA10007152018 Presented on : 22.05.2018 Registered on : 08.06.2018 Decided on : 17.02.2020 Period required for disposal 01 Year 08 Months 26 days IN THE COURT OF SMALL CAUSES AT BOMBAY (APPELLATE COURT) R Appeal NO.216 OF 2018 In R.A.D Suit No.2242 of 2010 Mrs.Smruti Laxmikant Mestry (maiden name Kala Shankar Kulkarni) aged 47 years, Occupation Housewife residing at 220/8, Tara Mahal, J.S.S.Road, Thakurdwar, Mumbai 400 004. …..Appellant (Orig.Plaintiff) Versus (1) Shri.Atul Shankar Kulkarni aged43 years, Occupation Service, residing at Room No.F/19, 2nd Floor, Ambewadi, Opp.Majestic Shopping Centre, Girgaon, Mumbai 400 004. (2) Smt.Jayashree Sanjay Shetye, (Maiden Name Bharati Shankar Kulkarni) aged 41 years, Occupation Housewife, residing at 2890, Mahalaxmi Nagar Tekdi, Next to Shivaji Nagar, Ambarnath (East), District Thane. (3) Lakhanis (Pvt.) Limited Proprietor B.t.Lakhani, (since deceased) Appeal No.217 of 2018-Upendra-Court Room No.3 2 through his heirs and legal representatives Shri.K.B.Lakhani agedadult, OccupationBusiness having Office at “F” Building, Ambewadi, Girgaon, Mumbai 400 004. ….. Respondents (Orig.Defendants) Mr.D.K.Raje, Advocate for the Appellants. Mr.Yogesh Deshpande, Advocate for the Respondent No.1. Mr.S.J.Ganatra, Advocate for Respondent no.3. Coram: M. S. Kulkarni, Addl. Chief Judge, & N. H. Jadhav, Judge, C.R.No.3, Date :17.02.2020 JUDGMENT: (PER M.S.Kulkarni, ADDL.CHIEF JUDGE) The plaintiff, in RAD Suit No.2242 of 2010 has preferred this appeal against the judgment and decree dated 07.04.2018 passed therein, whereby her suit came to be dismissed. 2. The parties and documents are hereinafter referred to by their original status and exhibit numbers as they had before the learned trial Court for better understanding. 3. The plaintiff and the defendant no.2 are the real sisters of whom the defendant no.1 is the brother. The defendant no.3 is the landlord of the premises i.e F/19, 2nd Floor, Ambewadi, Opp.Majestic Shopping Centre, Girgaon, Mumbai 400 004 (hereafter referred to as the “suit premises”). The father of the plaintiff and defendant nos.1 and 2 namely Shankar Krishnaji Kulkarni was the tenant of the suit premises. He died on 25.04.1969. At the relevant time, as per plaintiff's case, she, along with both defendants and Appeal No.217 of 2018-Upendra-Court Room No.3 3 their mother Smt.Shailaja were residing in the suit premises. Her mother died on 05.10.1978. On the relevant date also, she, along with defendant nos.1 and 2 were residing in the suit premises. Then, on 16.02.1992, she married and went at her matrimonial house. As per the plaintiff's further contention, the defendant no.2 also married in the same year and she also went to her matrimonial house. Then, in the year April, 2007, when she got knowledge that the defendant no.1 is interested to create third party interest in the suit premises, she issued letter dated 03.04.2007 to the defendant no.3 that she and defendant no.2 are also entitled for tenancy rights in the suit premises and so, the defendant no.3 shall not transfer tenancy rights in favour of the defendant no.1 without their consent. The defendant no.3 did not reply the said letter. Then in the month of October, 2009 the plaintiff got knowledge that the defendant no.3 has transferred the rent receipt in the name of the defendant no.1 without their consent. So, she filed the complaint to V.P.Police Station on 08.10.2009. The plaintiff has in subsequent paras stated about what was happened in pursuance of her said complaint. Thereafter, plaintiff states that as on the date of death of father, she and defendant no.2 were residing in the suit premises, besides, the defendant no.1 as member of the family she also is entitled for the joint tenancy in the suit premises. Accordingly, she asked for relief as : (i) she be declared as joint tenant along with the defendant nos.1 and 2 in respect of the suit premises. (ii) it be declared that transfer of rent receipt in the name of the defendant no.1 by defendant no.3 is null and void and (iii) to direct the defendant no.3 to retransfer the rent receipt in the name of the original tenant or in the alternative, in the joint name of plaintiff and defendant nos.1 and 2. The plaintiff also asked for temporary injunction reliefs. Appeal No.217 of 2018-Upendra-Court Room No.3 4 4. The defendant no.1 challenged the suit by filing the written statement at Exh.16. At the outset, he denied each and every contention of the plaintiff going against his interest. As per his defence, his elderly uncle namely Gopal Krishnaji Kulkarni, who was residing at Pareira building, 207, 1st Floor, Girgaon Road, Mumbai 400 004 was looking after their family. His father the original tenant of the suit premises was in fact residing with his uncle Gopal Krishnaji Kularni. His father expired on 25.04.1969 not in the suit premises, but in the house of the uncle Gopal Krishnaji Kulkarni at Pareira Building. His mother Smt.Shailaja also expired on 05.10.1978 not in the suit premises but in the house of the uncle at Pareira Building. As per his further defence, at the time of death of his mother, he as well as the plaintiff and the defendant no.2 were minor. So, his uncle Gopal Krishnaji Kulkarni looked after them all. He was earlier admitted in Aryan Education Society, Girgaon, where he learnt till the year 1979. Then he was admitted by his uncle in Bhosala Military School, Nashik wherefrom he completed his education in the year 1982. The plaintiff was admitted by his uncle Gopal Krishnani Kulkarni to the course of Diploma in education at Seva Sadan, Nana Chowk, Gaodevi, while the defendant no.2 was admitted for further schooling in Mahila Ashram School, Hingane, at Pune. After having completed his education, he joined the service by living in the suit premise. He was regularly paying rent of the suit premises to the defendant no.3. 5. The defendant no.1 further alleged that the plaintiff in the year 1992, contracted marriage without consent of elder persons of the family. She performed marriage with Laxmikant Mestry eloping with him from the house in the year 1992. Thereafter, she had not kept any contact with the suit premises or her earlier family members. Alike to that the defendant no.2 too also performed the marriage eloping with Sanjay Shetty and she also did not keep contact with them. The defendant no.1 then stated that on the say of the defendant no.3 he had moved an application to transfer the rent Appeal No.217 of 2018-Upendra-Court Room No.3 5 receipt in his name. The defendant no.3 got prepared the indemnity bond of his wife dated 02.02.2008 from his lawyer and then took his and his wife signature thereon. Then, he paid Rs.80,000/ to the defendant no.3 on their demand to transfer the rent receipt in his favour and accordingly, it is transferred in his name in the month of January/February, 2008. At last, he prayed that the suit is not maintainable, so it be dismissed with costs. 6. The defendant no.2 did not appear so, the suit proceeded exparte against her. 7. The defendant no.3 appeared and contested the suit, but in para 11 of the written statement, the defendant no.3 specifically stated that he would do the needful only under the orders of the Court. 8. In such background, the learned trial Court framed the issues at Exh.38. They were 7 in number. 9. The plaintiff Mrs.Smruti Laxmikant Mestry has filed her affidavit in lieu of examination in chief at Exh.39. She placed on record the documents i.e Death Certificate of her father Shankar Krishnaji Kulkarni at Exh.40, rent receipts issued by the defendant no.3 at Exh.44 colly., true copy of Memorandum of her Marriage at Exh.45, letter dated 03.04.2007 issued by her to the defendant no.3, letter dated 08.07.2007 addressed to the defendant no.3 by her advocate, letter dated 08.10.2009 issued by her to V.P.Road Police Station, letter dated 12.11.2009 by V.P.Road Police Station to her, letter dated 22.11.2009 by her advocate to V.P.Road Police Station at Exh.46 colly., certified copies of the statements recorded by the V.P.Road Police Station, letter dated 04.11.2009 addressed by the defendant no.3 to V.P.Road Police Station at Exh.47 colly. and the letter dated 16.08.2010 issued the plaintiff to the defendant no.3 with currier receipt and acknowledgment at Exh.48. 10. The defendant Shri.Atul Shankar Kulkarni has filed his affidavit in lieu of examination in chief at Exh.56. He placed on record various Appeal No.217 of 2018-Upendra-Court Room No.3 6 documents, which are : the original Death Certificate dated 24.09.2002 of Shankar Krishnaji Kulkarni at Exh.58, original rent receipt dated 03.01.2008 issued by defendant no.3, original rent receipt dated 03.01.2008 issued by defendant no.3 and original rent receipt dated 24.11.2008 issued by defendant no.3 at Exh.59 colly. original returned packed dated 11.06.2009 at Exh.60, original returned packet dated 28.07.2009 at Exh.61, original returned packet dated 14.09.2009 at Exh.62, original returned packet dated 28.10.2009 at Exh.63, original returned packet dated 14.12.2009 at Exh.64, copy of the letter dated 11.06.2009 at Exh.65, copy of the letter dated 27.10.2009 at Exh.66, certificate issued by the B.M.C dated 26.11.1994 at Exh.67, letter dated 23.09.2017 at Exh.72, reply letter dated 08.11.2017 at Exh.73. 11. No evidence has been led on behalf of the defendant no.3. 12. The learned trial Court on appreciation of evidence, dismissed the suit. This very judgment and decree has been impugned on various grounds as stated in the appeal memo. 13. We heard learned senior advocate Shri.D.K.Raje for the plaintiff and Shri.Yogesh Deshpande for the defendant no.1. 14. In the above background, the following are the points for determination. Our findings against them for the reasons in short are as under : Sr.No POINTS FINDINGS 01. Is plaintiff entitled for declaration of joint tenancy as asked for ? No 02. Whether there is any need to interfere with the impugned judgment and decree ? No Appeal No.217 of 2018-Upendra-Court Room No.3 7 03. What order ? As per the final order. REASONS AS TO POINT NO.1 : 15. The senior leaned counsel for the plaintiff Mr.D.K.Raje has placed on record the judgments in cases as : (1) H.C.Pandey V/s.G.C.Paul (AIR 1989 Supreme Court 1470) (2) Mst.Ramubai V/s.Jiyaram Sharma (AIR 1964 Bombay 96 ) (3) Miss Gool Rustomji Lala V/s.Jal Rustomji Lala (AIR 1972 Bombay 113 V59 C 19) (4) Ashok Chintaman Juker V/s.Kishore Pandurang Mantri (2001(4) Bom.C.R.31) (5) Sudhakar Kashiram Alias Kashinath Bhavsar V/s.Nagindas Atmaram (Gujarat High Court Civil Revision 706 of 1970 decided on 04.22.1971) (6) Bhika Cullianji and Co. Bombay V/s.Avon Electric Company, Bombay (1995(1) Bom.C.R.377) 16. Placing reliance on above noted judgments, and taking us through the evidence available on record, the learned senior advocate Shri.D.K.Raje for the plaintiff submitted that the original tenant expired on 25.04.1969 in the suit premises. At the relevant time, the plaintiff and the defendant nos.1 and 2 along with their mother Shailaja were residing in the suit premises. Their mother expired in the suit premises on 05.10.1978. At the relevant time also the plaintiff was residing in the suit premises. She continued her residence in the suit premises till her marriage which was happened on 16.02.1992. The plaintiff had even paid the rent amount of the suit premises during the period 1984 to 1987. So, considering all facts, she needs to be declared as joint tenant of the suit premises and consequently, plaintiff is entitled for declaration that the transfer of the rent receipt in the name of the defendant no.1 only, is against the law. Appeal No.217 of 2018-Upendra-Court Room No.3 8 17. On the other hand, the learned advocate for the defendant no.1 strongly objected to interfere with the impugned judgment and decree. As per his submission, the learned trial Court has rightly dismissed the suit considering the provisions of section 7(15)(d) of the Maharashtra Rent Control Act. 18. On 14.01.2020 when the matter was kept for judgment, the defendant no.3 filed written submission on record and he also placing reliance on the judgments : (1) Sanyam Realtors Pvt.Ltd. V/s.Shyamji Bhagirathi Yadav (LEX (BOM)2013 10 126 First Appeal No.2 of 2013 decided on 23.10.2013) (2) Vasant Pratap Pandit V/s (Dr.) Anant Trimbak Sabnis (1995(1) G.L.H 737) Submitted that the court cannot declare all legal heirs of the deceased tenant as joint tenant of the suit premises. 19. Here, we would first refer to evidence came on record, so far as provisions of section 7(15)(d) of the M.R.C Act, which are at par to the earlier provisions of section 5(11)(c) of the then Bombay Rent Control Act. To take help of these provisions, the plaintiff stated that her father Shankar Krishnaji Kulkarni, the original tenant died in the suit premises on 25.04.1969. At the relevant time, she, the defendant nos.1 and 2 and her widowed mother Smt.Shailaja were residing in the suit premises. Against that the defendant no.1 has come with the stand that his father died not in the suit premises but in the house of his elder uncle namely Gopal Krishnaji Kulkarni who was residing at Pereira Building, 207,Girgaon, Mumbai 400 004. The defendant no.1 in support of his contention has placed on record Death Certificate of his father, which is at Exh.58. Wherein, the address of the dead person is shown as Pereira building, 207,Girgaon, Mumbai 400 004 and not of the suit premises. Though this is the position, further evidence came on record discloses that on the relevant date, father of the plaintiff and Appeal No.217 of 2018-Upendra-Court Room No.3 9 defendant no1 and 2 had met with an accident when the plaintiff, who was elder kid in family was just 6 years old. While the defendant no.1 was just 1 1/2 year old. In short besides their mother, no elder person was in the family. Being so, their elder uncle Gopal Krishnaji Kulkarni had taken their father to the hospital,where he was declared as brought dead and then his dead body was taken to the house of the uncle at Pereria Building, 207, Girgaon, Mumbai 400 004. Might be due to this contingency, in the Death Certificate the address of the dead person is shown as Pereira Building.207, Girgaon, Mumbai 400 004. But, there is clear admission from the defendant no.1 himself that on the date of death of his father, he, the plaintiff , the defendant no. 2 and his mother were residing in the suit premises with his father. In further cross examination, he went on to admit that his mother Smt.Shailaja also died in the suit premises on 05.10.1978 and at the relevant time the plaintiff and the defendant no.2 were residing in the suit premises with him. When his mother died, he was just 11 and half year old. While the plaintiff was just 15 to 16 years old. So, they all were looked after by their uncle Gopal Krishnaji Kulkarni. It has further come on record that during the education period, the plaintiff as well as the defendant nos. 1 and 2 were away from each other and none of them was residing in the suit premises. It reveals from the evidence that around 1984, they all again started residing together in the suit premises . As admitted by the plaintiff, from 1984 to 1987, she was along with the defendant no.1 paying rent of the suit premises. After 1987, the plaintiff never contributed towards the rent amount. In the year 1992, she performed marriage and then went at her matrimonial house. Then as per her allegation, in the year 2007, she wrote a letter to the defendant no.3 not to transfer rent receipt in respect of the suit premises in the name of the defendant no1. In short, from 1992 till 2007, the plaintiff never bothered about to get secured her interest in tenancy right in respect of the suit premises. Appeal No.217 of 2018-Upendra-Court Room No.3 10 20. The only question is whether on the ground that the plaintiff who was residing in the suit premises as family member when her father the original tenant Shankar Krishnaji died, she is entitled to claim the joint tenancy ? 21. The learned senior advocate Mr.D.K Raje for the plaintiff has relied on judgment (cited supra) to press his contention that the plaintiff can be declared as joint tenant of the suit premises. We respectfully state that all these judgments relied upon by the learned advocate for the plaintiff were emerged in the background whether service of tenancy termination notice on any of the legal heirs of the deceased tenant would be treated for and on behalf of all legal heirs ? While dealing with that question, the legal principle laid down in all these judgments is that all legal heirs carry single tenancy jointly or in other words, they would be treated as a joint tenant in respect of the demised premises. So the service of notice on any of them would suffice the purpose. 22. All these judgments thus would not help the plaintiff considering peculiar provision made in section 5(11)(c) of the Bombay Rent Act and 7(15)(d)of the M.R.C Act. 23. The Hon’ble Bombay High Court in the recent judgment Vasant Sadashiv Joshi and ors. V/s.Yashwant Shankar Barve (deceased) through his legal heirs Sunita Barve and ors. (Writ Petition No.2371 of 1997) decided on 03.01.2020) has dealt with the provisions of section 15(11)(c)of the Bombay Rent Act and most of the judgments which are relied upon by the plaintiff are dealt with in this judgment. We should note here at what the Hon'ble Bombay High Court has observed in para 30 to 32, 37 to 41, 44 and 46 of the jugment : 30. The landlord in law and as recognized under the provisions of section 13 of the Bombay Rent Act, is entitled to recover possession on the grounds, as available under the said provisions. Section 13 (1) which inter alia provided that the landlord shall be entitled to recover possession of the tenanted premises, on various grounds. A perusal of subclauses (a) to (l) of subsection 13 Appeal No.217 of 2018-Upendra-Court Room No.3 11 (1)would indicate that it is “the tenant” from whom the possession would be required to be recovered. The word ‘tenant’ would be required to be understood as defined under section 5 (11) of the Bombay Rent Act which reads thus : Section 5 (11) “tenant” means any person by whom or on whose account rent is payable for any premises and includes (a) such subtenants and other persons as have derived title, under a tenant before the commencement) of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Ordinance, 1959. (aa) any person to whom interest in premises has been assigned or transferred as permitted or deemed to be permitted, under section 15. (b) any person remaining, after the determination of the lease, in possession with or without the assent of the landlord, of the premises leased to such person or his predecessor who has derived title (before the commencement) of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment)Ordinance 1959). (bb) such licensees as are deemed to be tenants for the purposes of this Act by section 15A) (c) (I) in relation to any premises let for residence when the tenant dies whether the death has occurred before or after the commencement of the Bombay Rents Hotel and Lodging House Rates Control (Amendment) Act 1978 a member of the tenant’s family residing with the tenant at the time of his death or in the absence of such member any heir of the deceased tenant, as may be decided in default of agreement by the Court; (I) in relation to any premises let for the purposes of education, business, trade or storage when the tenant dies, whether the death has occurred before or after the commencement of the said Act any member of the tenants’ family using the premises for the purposes of education or carrying on business, trade or storage in the premises with the tenant at the time of his death or in the absence of such member, any heir of the deceased tenant as may be decided in default of agreement by the Court. ExplanationThe provisions of this clause for transmission of tenancy shall not be restricted to the death of the original tenant, but shall apply and shall be deemed always to have applied even on the death of any subsequent tenant who becomes tenant under these provisions on the death of the last preceding tenant.” (emphasis supplied) 31. It would also be relevant to note the provisions of Section 15 of the Bombay Rent Act as the same deals with the right of a tenant to assign his rights in the tenancy. Section 15 reads as under : “15. (1) Notwithstanding anything contained in any law (but subject to any contract to the contrary) it shall not be lawful after coming into operation of this Act for any tenant to sublet the whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein (and) after the date of commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Act, 1973 for any tenant to give on licence the whole or part of such premises).” Provided that the (State) Government may by notification in the Official Gazzetee, permit in any area the transfer of interest in premises held under such (leases or class of leases) (or the giving on licence any premises or class of premises) and to such extent as may be specified in the Appeal No.217 of 2018-Upendra-Court Room No.3 12 notification)…………………………...” 32 . From a plain reading of section 5 (11) (c) (i) of the Act, it is difficult to accept the contention as urged on behalf of the petitioner/defendant no.2 that the provisions recognize that every member of the joint family or the joint family itself becomes a tenant for the purposes of the Bombay Rent Act. The introductory words of section 5 (11) defining tenant are crystal clear when it describes a “tenant” to mean “any person” by whom or whose account, rent is payable and would include as defined in sub clause (c) of subsection 5 (11) any member of the tenants family residing with the tenant at the time of his death. Subclause (c) is required to be read in conjunction with the preceding relevant subclauses namely sub clauses (aa), (b) which also uses a similar phrase ‘any person’. Thus a tenant necessary has to be any person as recognized by section 5(11) and not otherwise and certainly not a joint family as a unit.The legislature has avoided to include any such incident to include a joint family to be a tenant within the meaning of section 5(11). 37. In Miss Gool Rustomji Lala vs Jal Rustomji Lala,( supra), a learned Single Judge of this Court held that the Court cannot declare more than one person as a tenant under section 5 (11) (c) of the Bombay Rent Act. 38. In Kanti Bhattacharya & ors vs K.S.Parmeshwaran & anr (supra) a similar contention as urged by defendant no.2 in the present case, was taken. In the said case, Kanti Bhattacharya was a tenant who expired leaving behind his wifeSmt Usha Rani Devi and the petitioners who were the children of K.K.Bhattacharya and Usha Rani Devi, who were all residing in the suit premises as members of K.K.Bhattacharya’s family. The rent receipt which was issued in the name of K.K.Bhattacharya was not transferred in the name of any of the members of his family after his death but was continued to be issued in his name. A notice demanding rent and terminating the tenancy was issued to Usha rani Devi which was received by Usha rani Devi. As the notice in regard to arrears of rent and possession was not honored by Usha Rani Devi, an eviction suit came to be instituted against her in the year 1971. During pendency of the Suit, Usha Rani Devi died. After her death, the petitioners were brought on record as her heirs and legal representatives. The legal heirs contended that tenancy of these legal heirs/defendants was not duly terminated in as much as no notice to quit was addressed to them as heirs of the deceased Kanti Bhattacharya and thus, there was no termination of tenancy. In effect, the contention was that these legal heirs on death of Usha Rani Devi, were entitled to inherit the right of Usha Rani Devi and as the Suit notice was not addressed to Usha Rani Devi, the same was invalid and there was no termination of the tenancy. The learned trial Judge rejected the said contention as urged one behalf of the legal heirs of Kanti Bhattacharya. This finding was also confirmed by the Appellate Bench as also by this Court, in the said decision. The Court emphasizing the importance of conduct of the parties in relation to section 5 (11) (c) of the Bombay Rent Act is relevant in the context of the present case.The learned single Judge made the following observations : Appeal No.217 of 2018-Upendra-Court Room No.3 13 “18. After hearing the rival contentions of the parties, I am inclined to accept the submission of Miss Nichani. I am inclined to hold that under section 5 (11) (c) an agreement need not be in writing. An agreement amongst members of the tenants family can be inferred on the basis of the conduct of the parties and in this matter, Miss Nichani was justified in contending that after the death of K.K.Bhattacharya for a period of almost 4 years Usha Rani Devi, I who was his widow went on paying rent, the suit notice was served on the address where all the members of the tenants family were residing and therefore it was reasonably presumed they would know the tenants family were residing and therefore it was reasonably presumed that would knew that their mother was received a notice of demand so also it is reasonable to hold that when the suit notice was served upon the suit premises where every member of the tenants family was residing was aware of the filing of the suit against their mother. Notwithstanding, this nobody raised any objection till they were brought on record as legal heirs or legal representatives. Even the objections raised is so cryptic that nowhere it is contended by them that there were no agreements arrived at by them amongst the members of the tenants family. “19. The emphasis laid by Miss Nichani in the written statement filed by deceased Usha Rani Devi is worth noting. She had not denied that after the death of her husband she was paying the rent. She had not denied that after the receipt of the suit notice she had sent defendant no.3 the present no.3 to inform the landlords that they are not agreeing with the increased charges regarding the standard rent and pump house charges etc. She did also not dispute that petitioner no.3 acted on her behalf. Thus, Miss Nichani points out that from the evidence as well as from the defence taken in the written statement by Usha Rani Devi, it can be inferred that an agreement was entered into in the tenants family and it was agreed by all the members of the tenants family that after the death of her husband Usha Rani Devi as the widow was agreed to be treated as tenant of the suit premises to the knowledge of everybody else. The emphasis placed by Shri.Angal on the rent receipt being continued in the name of the deceased K.K.Bhattacharya help the petitioners in as much as it is not even the landlords case that any agreement was communicated by the members of the tenants family but the land lords inferred an agreement since for a period of 4 years, the evidence discloses that Usha Rani Devi, I went on paying rent. Even on some occasion defendant no.3 tendered rent on her behalf. This necessitated the plaintiffs to file suit against Usha Rani Devi and since these circumstances are clinching circumstances which are relied upon by the two courts below, I am also inclined to accept the same and on the face of the discussions above, I intent to hold that from the various circumstances narrated above there was an agreement between the members of the tenants family and Usha Rani Devi was treated as the members of the tenants family and therefore the notice served upon her is binding on all the members because every members of the tenants family cannot be a tenant and only member of the tenants family, either by an agreement or by a declaration by a court of law can be a tenant.” 39. In Vimalabai Keshav Gokhale vs. Avinash Krishnaji Binjewale & ors (supra) contention of the respondents therein that section 5 (11) (c) of the Bombay Rent Act would enable each and every member of the tenant’s Appeal No.217 of 2018-Upendra-Court Room No.3 14 family to claim an independent right in respect of the tenancy was rejected and it was held that any member would mean ‘any one member.’ 40. In Smt.Parvatibai w/o Bandu Marathe vs Smt Radhabai Chaggan Bhadarkar decd by her legal heirs (supra), a learned Single Judge of this Court held that it is only one member of the family who can be recognized as a tenant by the Court and not all members residing in the premises at the time of demise of the original tenant. 41. In Shamkant Tukaram Naik vs Dayanabai Shamsan Dighodkar (supra) a learned Single Judge of this Court held that the words “ any member of the tenant’s family residing with the tenant at the time of his death” as used in section 5(11)(c) would not enable each and every member of the tenant’s family to claim an independent right in the tenancy, in respect of the tenanted premises. It was held that ‘any member’ would mean only “one member”. 44. Now coming to the decisions as relied by Mr. Smt. Agarwal learned counsel for the petitioner/defendant no.2. The decision of the learned Single judge of this Court in Zahid AhmedAli Mazgaonwalla and another vs Smt Gulshan Pyarali Mazgaonwalla (supra) is in the proceedings of a first appeal arising out of a non rent suit decided by the Bombay City Civil Court. The question which fell for consideration of the High Court in the First Appeal, was whether tenancy rights could bequeathed and whether an heir of the deceased tenant can claim exclusive tenancy right especially, in the light of section 5 (11) (c) of the Bombay Rent Act. The Court allowing the appeal held that the tenancy could not have been bequeathed by Zenabai on the basis of a Will, left by the original tenant Pyarali. Even in this decision, the Court recognized the legal position as enunciated by the decision of the Supreme Court in Ashok Chintaman Juker & ors vs Kishore Pandurang Mantri & another (2001) 5 SCC Cases 1 wherein the Supreme Court held that there are two requisites which must be fulfilled, before a person is entitled to be called a ‘tenant’ under sub clause 5(11) (c); firstly he must be a member of the tenant’s family and a secondly, he must have been residing with the tenant at the time of his death. It was further held that besides fulfilling these conditions, he must have agreed to be a tenant by members of the tenant’s family, and in default of such an agreement, the decision of the Court shall be binding on such members. I am afraid as to how this decision would assist the case of defendant no.2. 46. H.C.Pandey vs G.C.Paul (supra) was not a case arising under the Bombay Rent Act but under the Transfer of Property Act.The decision of the Civil Court in Baldev Sahai Bangla Appellant vs R.C.Bhasin 1982 Supreme Court 1091 is also not relevant, as the facts are totally different. In the said case the eviction proceedings were filed merely because the tenant had shifted to Canada leaving his mother and brother in house who, regularly paid rent to the landlord. Appeal No.217 of 2018-Upendra-Court Room No.3 15 24. The legal principle enunciated by statute and above noted judgments is that only one of the legal heirs can be declared as tenant and not all as joint tenant. In short, the plaintiff cannot be declared as a joint tenant along with the defendant no1 and 2 of the suit premises. 25. But the fact does not rest here. Here in this case, the defendant no.3 has already transferred rent receipt in the name of the defendant no.1. The defendant no.1 has been chosen by the landlord as a tenant for and on behalf of all legal heirs of the deceased tenant Shankar Krishnaji Kulkarni. The defendant no1 is well aware of this fact and so, in the cross examination dated 10.11.2017 he has as admitted that the plaintiff and defendant no.2 have equal shares in the tenancy rights and he would pay money if the tenancy right is sold. Being this position, we should say that as long as the defendant no.1 has been residing in the suit premises or in the premises, which would be given to him in lieu of the suit premises the plaintiff or defendant no.2 have no right to interfere with his possession. But, when the defendant no.1 will try to sell his tenancy rights in the suit premises or in the premises which would be allotted to him in lieu of the suit premises he cannot do this without consent of the plaintiff and the defendant no.2. Further, he would have to pay equally to them towards their share in the sale proceeds. 26. At the end, we should say that the learned trial Court has committed no wrong by holding that the plaintiff is not entitled to declaration of joint tenancy So also, other declaration as sought for. In the result, we answer point no.1 in the negative. AS TO POINT NO.2 : 27. As the point no.1 is answered against the plaintiff, no need to interfere with the judgment and decree of the leaned trial Court. Therefore, we answer point no.2 too in the negative. 28. In the result, the appeal deserves to be dismissed with the Appeal No.217 of 2018-Upendra-Court Room No.3 16 following order. ORDER (1) The appeal is dismissed. (2) Decree be drawn up accordingly Pronounced in the open Court. I agree, (N.H.Jadhav) ( M.S.Kulkarni ) Judge Additional Chief Judge, Court Room No.3. Court Room No.3. Dt.17.02.2020 Dt.17.02.2020 Judgment dictated on : 17.02.2020 Judgment typed on : 03.03.2020 Checked and signed on : 09.03.2020 ( M.S.Kulkarni ) Addl.Chief Judge Appeal No.217 of 2018-Upendra-Court Room No.3 |
17-02-2020 | |
1 CNR NO:MHSCA10007152018 IN THE COURT OF SMALL CAUSES, AT MUMBAI R Appeal No. 216 OF 2018 In R.A.D Suit No.2242 of 2010 Mrs.Smruti Laxmikant Mestry ) (maiden name Kala Shankar Kulkarni) ) aged 47 years, Occupation Housewife ) residing at 220/8, Tara Mahal, J.S.S.Road, ) Thakurdwar, Mumbai 400 004. )…..Appellant (Orig.Plaintiff) Versus (1) Shri.Atul Shankar Kulkarni ) aged43 years, OccupationService, ) residing at Room No.F/19, 2nd Floor, ) Ambewadi, Opp.Majestic Shopping Centre, ) Girgaon, Mumbai 400 004. ) (2) Smt.Jayashree Sanjay Shetye, ) (Maiden Name Bharati Shankar Kulkarni) ) aged 41 years, OccupationHousewife, ) residing at 2890, Mahalaxmi Nagar Tekdi, ) Next to Shivaji Nagar, Ambarnath (East), ) District Thane. ) /home/clerk3/court3backup/SONALI/Bill Cost Decree & Order 2020/Decree 2019/May 2019/R Appeal 216 of 2018.odt 2 (3) Lakhanis (Pvt.) Limited ) Proprietor B.T.Lakhani, (since deceased) ) through his heirs and legal representatives ) Shri.K.B.Lakhani ) agedadult, OccupationBusiness ) having Office at “F” Building, Ambewadi, ) Girgaon, Mumbai 400 004. )….. Respondents (Orig.Defendants) Mr.D.K.Raje, Advocate for the Appellants. Mr.Yogesh Deshpande, Advocate for the Respondent No.1. Respondent No. 2 is appeared in person. Mr.S.J.Ganatra, Advocate for Respondent no.3. Coram: M.S.Kulkarni, Addl.Chief Judge, & N.H.Jadhav, Judge Court Room No.3 Date: 17/02/2020 Claim for =Rs. 1000 / DECREE The Appellant (Orig. Plaintiff) abovenamed filed Appeal in this Court of Small Causes, at Mumbai arising from the Order of Ld. Trial Judge Mr. A.A.Dhumne, C.R.No.19, dated 07th April, 2018 passed below R.A.D Suit No.2242 of 2010 on /home/clerk3/court3backup/SONALI/Bill Cost Decree & Order 2020/Decree 2019/May 2019/R Appeal 216 of 2018.odt 3 the grounds mentioned in the memorandum of appeal filed on dated 22nd May 2018 and this Appeal came for final disposal on 17th February 2020, before Shri. M.S.Kulkarni, Addl. Chief Judge, and Shri. N.H.Jadhav, Judge. Mr.D.K.Raje, Advocate for the Appellants. Mr.Yogesh Deshpande, Advocate for the Respondent No.1. Respondent No. 2 is appeared in person. Mr.S.J.Ganatra, Advocate for Respondent no.3. : ORDER : 1) The Appeal is dismissed. 2) Decree be drawn up accordingly. Pronounced in the open court. I agree, Sd/ Sd/ (N.H.Jadhav) (M.S.Kulkarni) Judge Addl. Chief Judge Court Room No.3. Court Room No.3. Dt. 17/02/2020 Dt. 17/02/2020 /home/clerk3/court3backup/SONALI/Bill Cost Decree & Order 2020/Decree 2019/May 2019/R Appeal 216 of 2018.odt 4 R Appeal NO.216 OF 2018 In R.A.D Suit No.2242 of 2010 BILL OF COST Particulars Appellant Respondent (Rs. Ps.) (Rs. Ps) 1.Stamp on Appeal Memo............ 200=00 00=00 2. Stamp onV.P.............. 10=00 10=00 3.Stamp on Applications/Exhs. 40=00 10=00 4.Pleader's Fee........... 150=00 150=00 5. Commissioner's Fee......... ......... ......... 6. Subsistence of Witness...... ......... ......... 7. Service of Process......... 07=70 ......... TOTAL : 407=70 170=00 Given under our hands and Seal of the Court Court Room No. 3 This 17th February of, 2020. ( N.H.Jadhav) ( M.S.Kulkarni ) Judge Addl. Chief Judge, 17/02/2020 17/02/2020 C.R.No.3 C.R.No.3 Prepared by S.R.Sable, ClerkTyp Checked by Neeta A. Kadam Judicial clerk, C.R.No. 3 Mr.D.K.Raje, Advocate for the Appellants. Mr.Yogesh Deshpande, Advocate for the Respondent No.1. Respondent No. 2 is appeared in person. Mr.S.J.Ganatra, Advocate for Respondent no.3. /home/clerk3/court3backup/SONALI/Bill Cost Decree & Order 2020/Decree 2019/May 2019/R Appeal 216 of 2018.odt |
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Frequently Asked Questions
The Petitioner in case Smruti Laxmikant Mistry vs Lakhanis Pvt Ltd is Smruti Laxmikant Mistry.
The Respondent in case Smruti Laxmikant Mistry vs Lakhanis Pvt Ltd is Lakhanis Pvt Ltd and 3 more.
The case against Lakhanis Pvt Ltdwas filed on 22-05-2018 by Smruti Laxmikant Mistry.
The status of case Smruti Laxmikant Mistry against Lakhanis Pvt Ltd is Case Disposed.