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CRA/266/2010 8/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
REVISION APPLICATION No. 266 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
ALTAFHUSEN
TAVAKKALHUSEN BUKHARI THROUGH POA WASIM Z FARUKI
Versus
THRITY
ERACHSHA JINWALA & 2
=========================================
Appearance :
MR
MM SAIYED for Petitioner(s) : 1,
NOTICE SERVED for Respondent(s) :
1 - 3.
MR BOMI H SETHNA for Respondent(s) :
1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 15/03/2011
ORAL
JUDGMENT
The
present Civil Revision Application has been filed by the Petitioner
– Original Defendant No.3, challenging the impugned judgment and
decree passed in Civil Appeal No.90 of 1995 before the Appellate
Bench of Small Causes Court dated 30.9.2010 allowing the Appeal of
the Appellant – Respondent herein, on the grounds set out in
the memo of the petition inter alia that the Rent Court had no
jurisdiction and the decision of the lower appellate Court is
without any jurisdiction.
Learned
Advocate Mr. M.M.Saiyed for the Petitioner has pointedly referred to
the discussion about the possession as well as the fact about the
relationship, and claimed that admittedly he has been residing
before the deceased tenant died. He therefore submitted that
Section 5(11)(c) of the Bombay Rents, Hotel and Lodging House Rates
Control Act, 1947 (“Rent Act” for short) would be
attracted.
Referring
to the judgment of the Full Bench in case of Babubhai @
Jayantilal Kalyanbhai & Ors. v. Shah Bharatkumar Ratilal &
Ors., reported in 1980
GLR 103 he has submitted that
when it is inheritable and once it is found to be inheritable, the
definition of “family” should not be restricted and it
should be construed broadly to include the present Petitioner also
who is the nephew, i.e. the son
of daughter of sister of defendant no.1 named Bai Hajibegum.
Learned Advocate Mr.Saiyed has also referred to the judgment in
case of Madhuben Natwarlal & Ors. v. Prajapati
Parshottam Tulsidas, reported
in 1990(2) G.L.H. 265 and
submitted that though the judgment has made observations that
it would not include a distant nephew or cousins as a family members
but it has been in the different context, and therefore, the
judgment may not have any application. He has also submitted that
admittedly, the trial Court has not considered this aspect which has
been considered, and the judgment of the lower appellate Court,
which has denied the sufficient opportunity to the Petitioner. He
therefore submitted that the present Civil Revision Application may
be allowed. Admittedly, he was in the occupation of the premises
and would be covered under Section 5(11)(c) of the Rent Act.
Learned
Advocate Mr. Bomi H. Shethna
for the Respondent submitted the issue regarding the inheritance has
been discussed in the judgment of the Appellate Bench of the Small
Causes Court. For that purpose, he referred to paragraphs 22 and 24
and submitted that even if the wider meaning is given to the term
“family” it could not include distant nephew as it has
been clarified in the subsequent judgment in case of Madhuben
Natwarlal & Ors. (supra).
He pointedly referred to the observations made in this judgment and
submitted that it has been specifically observed as under:
“It
is true that in the said decision the Court has held that a
conspectus
of the connotation of the term ‘family’ which emerges
from a reference to the dictionaries clearly shows that
the word ‘family’ has to be given not a restricted but a wider
meaning so as to include not only the head of the family but all
members or descendants from the common ancestors who
are actually living with the same head. From this Mr. Bavishi
Submitted that as the appellants are descendants from the common
ancestors, therefore the appellants would be the family members of
the deceased Jamnadas. In my view, this contention cannot be
accepted. Merely because the word “common ancestors” is
used in the said judgment, it would not mean that distant nephews or
cousins should be considered as family members. By amending Section
5(11)(c), the Legislature stepped in and provided a special mode of
succession to the tenancy rights or leasehold rights to the extent
of irremovability from possession to those who were in need of it
but has limited it to the members of the tenant’s family. Normally
‘family’ includes parents, spouse, brothers, sisters, sons or
daughters or in some cases widow of a pre-deceased son or the issues
of the pre-deceased sons but by no stretch of imagination it can be
held that the distant nephews would be the family members howsoever
broad meaning is given to the word “family”. Hence the
contention of the learned Advocate for the appellants cannot be
accepted that the appellants are the family members of the deceased
Jamnadas who was a tenant of the suit room.”
He
therefore submitted that the Petitioner would not be said to be a
family member which would entitle him to inherentance. He submitted
that merely because he was residing there, would not entitle him to
make any claim as he has no authority, and therefore, decree passed
by the Appellate Bench of the Small Causes Court may not be
interfered with. He
therefore submitted that the contention about the jurisdiction is
also not valid as the tenancy rights have been claimed based on
Section 5(11)(c) of the Rent Act, and therefore,
the Court below has considered the aspect about the inheritance as
well as his status whether he could be said to be a tenant,
sub-tenant, trespasser, etc., and therefore, this submission is not
valid.
In
view of the rival submissions, the first contention which is
required to be considered is with regard to transmission of a
tenancy as required under Section 5(11)(c) of the Rent Act. Though
such tenancy would be transmitted and it would be inheritable, still
it will be subject to the provision of law. It is not in dispute
that the Petitioner is not adopted by the deceased tenant. The
factum of his residing for some time would not make him a heir or
the family member entitled to inherit under the Rent Act. There is
no dispute that the the Full Bench of this Court in case of Babubhai
@ Jayantilal Kalyanbhai & Ors. (supra) had
the occasion to consider this aspect and has also considered with
regard to inheritance of the tenancy rights and still it has also
considered that it would depend on the facts in the given case. As
discussed in the judgment of the Full Bench with regard to the
tenancy rights as heritable and transferable, still there is a
reference to the provisions of Transfer of Property Act and it could
be as provided under the Transfer of Property Act.
Again,
for that purpose, even if it is accepted that the word “family”
is required to be construed liberally as observed in some of the
judgments, the fact remains that the statutory provision of Section
5(11)(c) of the Rent Act also is required to be considered. Section
5(11)(c) of the Rent Act provides:
“5(11)(c)(i) in
relation to premises let for residence, any member of the tenants
family residing with the tenant at the time of or within three
months immediately preceding, the death of the tenant as may be
decided in default of agreement by the Court, and
(ii) in
relation to premises let for business, trade or storage, any member
of the tenant’s family carrying on business, trade or storage with
the tenant in the said premises at the time of the death of the
tenant as may continue, after his death, to carry on the business,
trade or storage as the case may be, in the said premises and as may
be decided in default of agreement by the Court.”
Thus,
it provides that if the premises let out for residence, any member
of the tenant’s family residing with the tenant at
the time or within three months immediately preceding the death of
the tenant, can make a claim for tenancy. Again, whether one is a
member of the family of the tenant, can be decided with reference to
the interpretation of the word “family”. It again is
required to be considered in background of the other statutory
provisions as well as the word “family”. The word
“family” has been defined in Black’s Law Dictionary as –
“1.
A
group consisting of parents and their children. – Also termed
immediate family – 2.
A group of persons connected by blood, by affinity, or by law. 3.
A group of persons, us. Relatives, who live
together.”
This
aspect has been therefore again considered by this Court in case of
Madhuben
Natwarlal & Ors. (supra)
and it has been specifically observed:
“Merely
because the word “common ancestors” is used in the said
judgment, it would not mean that distant nephews or cousins should
be considered as family members. By amending Section 5(11)(c), the
Legislature stepped in and provided a special mode of succession to
the tenancy rights or leasehold rights to the extent of
irremovability from possession to those who were in need of it but
has limited it to the members of the tenant’
s
family. Normally ‘family’ includes parents, spouse, brothers,
sisters, sons or daughters or in some cases widow of a pre-deceased
son or the issues of the pre-deceased sons but by no stretch of
imagination it can be held that the distant nephews would be the
family members howsoever broad meaning is given to the word
“family”.”
Therefore,
this aspect has been considered with reference to Section 5(11)(c)
of Rent Act and considering the aforesaid specific observations,
which have been considered relating to Section 5(11)(c) of the Rent
Act, it cannot be said that the Petitioner would be covered under
the definition of “family” as sought to be canvassed.
The
another facet of the submission made by learned Advocate Mr. Saiyed
that the Rent Court had no jurisdiction and the entire decree is
without jurisdiction inasmuch as if he was a trespasser, the Civil
Suit would have been maintainable and not HRP Suit. The further
submission that the sub-tenancy is not admittedly there, and
therefore, the entire decree is without jurisdiction, is also
misconceived inasmuch as what has been considered is the right of
tenancy claimed under Section 5(11)(c) of the Rent Act which has
been discussed, and therefore, the submission is without any merit
that the Court below had no jurisdiction.
In
light of the aforesaid discussion, the present Civil Revision
Application cannot be entertained and deserves to be dismissed and
accordingly stands dismissed.
After
the order was dictated, learned Advocate Mr. Saiyed for the
Petitioner has requested to stay the operation of the order for a
period of six weeks to enable the Petitioner to approach the higher
forum. Learned Advocate Mr. Bomi H. Sethna for the Respondent has
resisted.
However,
in the facts and circumstances, the request is granted. The
operation of the order is hereby stayed for a period of six weeks.
(Rajesh
H. Shukla,J)
Jayanti*
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