Can You Claim Tenancy After A Relative’s Death Without Living In The House? Bombay High Court Says Yes, If Legal Heirship Is Proved
Court’s Decision
The Bombay High Court dismissed the writ petition filed by the landlord-trust, Parsi Punchayet Funds and Properties, Bombay, and upheld the orders of the Small Causes Court and its Appellate Bench declaring Ms. Katty J. Mistry as tenant of the suit premises.
The Court held that although the Respondent failed to prove that she was residing with the deceased tenant as a family member, she could still be recognised as tenant under the second part of Section 5(11)(c)(i) of the Bombay Rent Act, because she had proved that she was an heir of the deceased tenant. The Court found no perversity in the concurrent findings of the courts below and refused to interfere under Articles 226 and 227 of the Constitution.
Facts
The dispute concerned Flat No. 2, 1st Floor, Patel Building, 782 Mancherji Joshi Road, Parsi Colony, Dadar, Mumbai.
The original tenant was Mr. Baji B. Patel, who died on 23 April 1993. The Respondent, Ms. Katty J. Mistry, claimed that she was his cousin, specifically his mother’s sister’s daughter, and sought recognition as tenant after his death.
She filed an application under Section 5(11)(c)(i) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, seeking a declaration that she was tenant and a direction to transfer the rent receipt in her name.
The Small Causes Court allowed her application on 16 December 1997. The Appellate Bench dismissed the landlord’s appeal on 30 September 1999, though it clarified that she had not proved residence with the deceased tenant. The landlord-trust then approached the Bombay High Court in writ jurisdiction.
Issues
- Whether the Respondent could be recognised as tenant after the death of the original tenant under Section 5(11)(c)(i) of the Bombay Rent Act.
- Whether it was mandatory for the Respondent to prove that she was residing with the deceased tenant at the time of his death.
- Whether a first cousin could claim tenancy rights as an heir under the Indian Succession Act applicable to Parsis.
- Whether the concurrent findings of the Small Causes Court and Appellate Bench suffered from perversity requiring interference under Articles 226 and 227.
Petitioner’s Arguments
The landlord-trust argued that there was no privity of contract between the trust and the Respondent, and that she was neither a contractual tenant nor a statutory tenant.
It was contended that the Respondent had failed to produce sufficient documentary evidence proving her relationship with the deceased tenant. The Petitioner relied on the ration card, voters list, election slip, obituary note, and the deceased tenant’s earlier application for transfer of rent receipt to argue that only Baji’s name appeared and that the Respondent was not shown as residing in the suit premises.
The Petitioner further argued that Baji was residing alone, that the Respondent was only a neighbour and not a family member, and that she was attempting to unlawfully claim tenancy rights.
It was also submitted that other heirs and legal representatives were not joined, making the application defective for non-joinder of necessary parties.
Respondent’s Arguments
The Respondent argued that her claim was not limited only to being a family member residing with the deceased tenant. She had also specifically claimed tenancy as an heir of the deceased tenant under the Indian Succession Act applicable to Parsis.
She submitted that she was the deceased tenant’s first cousin, since the mother of the deceased tenant and the mother of the Respondent were real sisters. She further argued that this relationship was supported by genealogy and oral evidence, and that there was no effective cross-examination on this aspect.
The Respondent also pointed out that no other heir had come forward to claim tenancy after the death of Baji. Therefore, in the absence of any other claimant, the courts below rightly recognised her as tenant.
She further argued that the landlord itself had filed an eviction suit against her under the Bombay Rent Act, which indicated that the landlord treated her as tenant. However, the High Court clarified that the eviction suit was filed subject to the outcome of the writ petition and therefore the writ petition had not become infructuous.
Analysis
The High Court carefully separated the two parts of Section 5(11)(c)(i).
The first part applies to a member of the tenant’s family residing with the tenant at the time of death.
The second part applies in the absence of such family member, where any heir of the deceased tenant may be decided by the Court as tenant.
The Court held that the word “or” in the provision must be read disjunctively. Therefore, the second category — “any heir of the deceased tenant” — is separate from the requirement of residence with the deceased tenant.
This means that if no family member was residing with the deceased tenant at the time of death, an heir need not separately prove residence with the deceased tenant to claim tenancy protection.
In the present case, the Appellate Court had already held that the Respondent did not prove that she was residing with Baji. However, that did not defeat her claim because the courts below had concurrently found that she was his heir.
Evidence Considered
The Court noted that the Respondent had explained her genealogy and had led oral evidence showing that she was the first cousin of the deceased tenant.
The Court also relied on the fact that the Respondent’s name appeared as a joint-holder with Baji in three Unit Trust Certificates dated 31 July 1988, 17 July 1992 and 11 March 1992. Since Baji died on 23 April 1993, these documents were created before the dispute and could not be brushed aside as documents prepared only to support the tenancy claim.
The Court further noted that the Respondent was not cross-examined on important aspects of her relationship and the joint investments.
The ration card, voters list, election slip and similar documents were considered relevant only for deciding whether the Respondent was residing with Baji. Since the Appellate Court had already held that she had not proved residence, those documents did not affect her independent claim as an heir.
Precedent
The Petitioner relied on several judgments, including:
- Kailasbhai Shukaram Tiwari v. Jostna Laxmidas Pujara
- Jaysen Jayant Rele v. Shantaram Ganpat Gujar
- Rati Cyrus Havewala v. Minoo Shroff
- Rajaram Brindavan Upadhyaya v. Ramraj Raghunath Upadhyaya
- Pradeep Kumar Lalit Kumar Pandya v. Harisingh J. Kapadia
The Court distinguished the judgments relied upon by the Petitioner.
It held that Kailasbhai Shukaram Tiwari dealt with whether a cousin could be treated as a family member residing with the tenant, and not with a claim based on heirship.
In Jaysen Jayant Rele, the claimant was a domestic servant claiming a relationship almost like a son, and there was no blood relation. The present case was different because the Respondent’s blood relationship and heirship had been accepted.
In Pradeep Kumar Lalit Kumar Pandya, the claimant had not claimed tenancy on the basis of heirship and had relied only on being a family member residing with the tenant. Therefore, that judgment did not help the Petitioner.
The Court found that Rajaram Brindavan Upadhyaya actually supported the Respondent because it recognised that Section 5(11)(c) does not override inheritance rights arising under personal law.
Reasoning
The High Court held that the Respondent had pleaded her claim both as a family member and as an heir. Therefore, the case could not be restricted only to the first part of Section 5(11)(c)(i).
Since no person was found to have been residing with the deceased tenant at the time of his death, the second part of the provision became applicable.
The Respondent was the only person who came forward claiming to be the heir of the deceased tenant. She explained her genealogy and led oral evidence proving that she was his first cousin. The landlord failed to establish that any other person was a legal heir or representative of Baji.
The Court also rejected the argument based on non-mention of the Respondent’s name in an obituary note, holding that mere non-inclusion of a person’s name in an obituary cannot take away a legal relationship.
Accordingly, the Court held that the view taken by the courts below was a possible and probable view based on the evidence on record.
Conclusion
The Bombay High Court dismissed the writ petition and upheld the declaration of the Respondent as tenant.
The Court held that under Section 5(11)(c)(i) of the Bombay Rent Act, if no family member was residing with the deceased tenant at the time of death, then any heir of the deceased tenant may be recognised as tenant, and such heir is not required to independently prove residence with the deceased tenant.
The writ petition was dismissed, rule was discharged, and no order as to costs was passed.
Implications
This judgment is important for tenancy succession disputes under the Bombay Rent Act.
It clarifies that the right to be recognised as tenant after the death of the original tenant is not confined only to family members who were residing with the tenant. Where no such resident family member exists, the Court can recognise an heir of the deceased tenant as tenant.
The ruling is especially relevant in cases where landlords resist transfer of rent receipts by arguing that the claimant was not residing with the deceased tenant. The judgment makes it clear that residence is mandatory for the first category of claimants, but not for heirs falling under the second part of Section 5(11)(c)(i).
