ASHOK CHINTAMAN JUKER AND ORS v. KISHORE PANDURANG MANTRI AND ANR

Citation: [2001] 3 S.C.R. 627

Court: Supreme Court of India

Bench: D.P. MOHAPATRA, BRIJESH KUMAR

Judgment text

}-- ASHOK CHINTAMAN JUKER AND ORS. \'. KISHORE PANDURANG MANTRI AND ANR. MAY 9, 2001 , [D. P. MOHAPATRA AND BRJJESH KUMAR, JJ. ] Rent Control and Eviction : • Bombay Rent Control Act, 1947-Section 5(1 l)(C)-Tenant-Meaning of-Tenancy-Joint or separate-Original tenant having died, rent receipts issued in the name of his elder son and after his death in the name of his widow-Eviction petition against the widow-Consent decree in favour of landlord-Execution-Appellant being second son oforiginal tenant resisting on the ground of not being impleaded as a party in the suit-Tenability of-, Held, the decree under execution does not suffer from any illegality or infirmity-Tenancy being on.

e, all the members of the family of the original tenant residing with him at the time of his death succeeded to the tenancy together-In the, circumstances the widow who was impleaded as a tenant in the suit filed by landlord represented all the tenants and the decree passed: in the suit is binding on all the inembers of the family covered by the tenancy-Moreover, trial court and appellate court concurrently holding that appellant has not been residing in the premises when his elder brother was alive-Held, appellant has no justification to resist execution of the decree for possession of the pre111ises by the landlord Original tenant in respect of the suit premises died leaving two sons, one K and appellant no. 1. After his death, rent receipts were issued in the name of Kand thereafter upon K's death, in the name of K's widow, respondent no. 2. Subsequently, landlord filed a suit for eviction against respondent no. I 2.

The parties settled the dispute and the suit was disposed of in terms of the said settlement. A decree was drawn up incorporating the terms of the settlement. Thereafter, landlord filed a petition for execution of the decree in which a warrant of possession was issued. Appellant no. I along with his wife and children, filed objection against execution of the decree. The case of the appellants was that appellant no. 1 became a tenant of the suit premises on the death of his father. The landlord had filed a suit for eviction against respondent no. 2 without impleading him . H as a defendant. In the circumstances, consent decree obtained in the suit was not binding on him. The Executing Court rejected the objection filed by appellants, holding inter alia that the compromise decree was executable against them. Appeal filed by appellants in the Court of Small Causes was dismissed. Civil writ petition filed by th~m in High Court was also dismissed by a Division Bench.

Hence the present appeal. On behalf of the appellants, it was contended that Section 5(11) of the Bombay Rent Control Act, 1947 defined the term tenant to mean all the members of the family of tenant; that appellant no. I who was then a minor. was undisputedly residing with his father, the original tenant along with his brother Kand the status continued till the date of the filing of the suit; that the landlord having not impleaded appellant no. 1 as a defendant in the suit could not get delivery of possession of the property in execution of the consent decree which was not binding on him. On behalfof the respondents, it was contended that the Trial Court and the Appellate Court concurrently held that appellant no. 1 had not been residing in the suit premises for a long time; that in fact he had shifted toanother place and was residing in the premises owned by him; that when the landlord filed suit for eviction, appellant no.

1 was not a tenant in occupation of the suit premises and as s. uch it was not necessary for the landlord to implead him as a defendant in the suit. Dismissing the appeal, the Court HELD: 1. The decree under execution does not suffer from any illegality ,,_ or infirmity. Appellants have no justification on the facts as well as in law to resist execution of the decree for possession of the premises by the landlord. On the death of the original tenant the rent bills in respect of the premises in question were issued in the name of his elder son Kand on his death the rent bills were issued in the name of his window respondent no. 2. It is not the case of appella. nt no. l that there was any division of the premises in question or that rent was being paid to the landlord separately by him. Indeed appellant No. l took the plea that he was paying the rent through respondent no. 2.

Thus the tenancy being one, all the members of the family of the original tenant residing with him at the time of his death, succeeded to the tenancy together. In the circumstances the conclusion is inescapable that respondent no. 2 who was impleaded as a tenant in the suit ASHOK CHINTAMAN . IUKER 1·. KJSHORE l'ANDURANG MANTRI [MOHAPATRA.. I J 629 filed by the landlord represented all the members of the family covered by the tenancy. Further, the trial court and the appellate court concurrently held that appellant no. 1 has not been residing in the premises since the time - -he has acquired premises at Kalyan and booked the premises at Borivli. We are not concerned with these premises and not necessary to give all particulars of those premises but this is an admitted fact because the witness has admitted in the cross examination. Not only that but in the co. i. e. on the place of employment said Ashok Obstructionist No. 1 has given his address ofcorrespondence at Kalyan.

This goes to show that his so called accrued right of tenancy has been either waived or the alleged right of tenancy which is acquired under section 5(11 )(c) has been surrendered or no right has been claimed at all. " In sub-section(l 1) of section 5 of the Act the expression 'tenant' means any person by whom or on whose account rent is payable for any premises and include -(a) such sub-tenants and other persons as have derived title under a tenant before the coming into operation of this Act; (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 coming into operation of this Act; (c) any member of the tenant's family residing with him at the'time of his death as may be decided in default of agreement. by the Cou1t.

The language of the provision indicates that the definition of the term is an inclusive one and wide in its amplitude. In the present case we are concerned with clause (c) of sub-section( 11) of section 5 which provides that 'tenant' includes any member of the tenant's family residing with him at the time of his death as may be decided in default of agreement by the Court. There are two requisites which must be fulfilled before a person is entitled to be called 'tenant' uffder sub-clause (c); first he must be a member of the tenant's family and secondly, he must have been residing with the tenant at the time of his death. Besides fulfilling these conditions he must have been agreed upon to be a tenant by the members of the tenant's family; in default of such agreement the decision of the Court shall be binding on such members. The further question that arises for consideration is whether a member of the family of ..

the original tenant who claims to have been residing with the tenant at the time of his death can resist execution of a decree passed against a member of the tenant's family who undisputedly was accepted by the landlord. as a tenant on the death of the original tenant. • /\SHOK Cl llNT/\M/\N . llJKER 1·. KISHORE l'/\NOUR/\NG M/\NTRI IMOlIAl'i\TR/\. . 1. J 633 I The question that ·arises for consideration in such cases is whether the ... tenancy is joint or separate. lrt the former case notice on any one of the -.. j -. tenants is valid and a suit impieading one of them as a defendant is maintainable. A decree passed in such a suit i§ binding on all the tenants. Determination of the question depends on the facts and circumstances of the case. No inflexible rule or straight-jacket formula can be laid down for the purpose. Therefore, the case in hand is to be decided in the facts and circumstances thereof. In the case of Ganpath ladhd V. Stiahikant Vishnu Shinde, [1978] 3 ..

#; SCR 198 a Bench of three learned Judges of this Cottfl tonstn1i11g the provision .. ofsection 5(1 l)(c) of the Bombay Rent Act, 1947 held: "The Act interferes With. the landlord's right to property and freedom of contract only for the limited ptlffUJsg o'f protecting tenants against . exercise of the landlord's power to evict them if! th€1le days ofscarcity of accommodation by asserting superior rights in property or trying to exploit his positloii by i\! lifrm:ting too high rents from helpless tenants. The object was not ttt deprive th1;1 landlord altogether of his rights in property which have also to be resp-ested. " In the case of Kanji Manji v. The Trustees ofthe Pol'/ tif Bombay, AIR - -appellant no. I took the plea that he was paying the rent through Smt. Kishori Kesrinath Juker. Thus the tenancy being one, all the members of the family . of the original tenant residing with him at the time of. his death, succeeded to the tenancy together.

In the circumstances the conclusion is inescapable that Smt. Kishori Kesrinath Juker who was impleaded as a tenant in the suit filed by the landlord represented all the tenants and the decree passed in the suit is binding on all the members of the family covered by the tenancy. In the circumstances the decree passed in terms of the compromise entered ~ between the landlord and Smt. Kishori Kesrinath Juker can neither be said to be invalid nor inexecutable against any person who claims to be a member of the family residing with the original tenant, and therefore, a 'tenant' as defined in section 5(11 )(c). The position that follows is that the appellants have no right to resist on the ground that the decree is not ~inding on them. Further, the trial court and the appellate court concurrently held that the appellant no. I has not been residing in the premises since 1962 i. e. when his elder brother Kesrinath was alive.

Therefore, when the suit was filed in the year 1992 there was no necessity for the land lord to implead appellant no. I or members of his family in the suit since he (lan<)lord) had no cause of action i\SI IOK CHINTi\Mi\N JUKER 1·. KISllURL' l'i\NDllRi\NG Mi\NTRI IMOHi\Pi\TRA,. l. I 635 for seeking a decree of recovery of possession from them. In that view of the A matter the decree under execution does not suffer from any illegality or infirmity. Viewed from any angle the appellants have no justification on the facts as well as in law to resist execution of the decree for possession of the premises by the landlorc. The Executing Court rightly rejected the objection filed by the appellants against execution of the decree and the appellate court and the High Court rightly confirmed the said order. This appeal being devoid B of-merit is dismissed with costs which is assessed at Rs. I0,000. M. P. Appeal dismissed.