Pradeep Kumar Lalit Kumar Pandya v. Harisingh J. Kapadia & Ors.

(d) of the MRC Act is residence with the tenant as a member of the family. Thus what is required to be proved is that the Plaintiff resided with the deceased-tenant as a member of the family. That there is no documentary proof to show Plaintiff’s residence with the deceasedtenant for a substantial period of time prior to the tenant’s death. That Plaintiff conveniently and forcibly shifted himself into the suit premises only for the purpose of claiming tenancy rights therein. That his name

1990 SCC OnLine Guj 23 2006 (1) RCR 27 was included in the Ration Card on 12 March 2003 i.e. six months before the death of the tenant. That he did not produce records relating to School or College in support of his contention that he was residing in the suit premises since 1956. That infact from 1983 to 1995, he was working in Nairobi and apparently returned in India in 1995. That his passport issued in the year 1993-94 shows his address of Lalbaug, Parel and not at the suit premises. Mr. Shah would further submit that the depositions of PW Nos. 2 to 4 examined by the Plaintiff does not prove that he is either a member of tenant’s family or that he resided with the tenant as member of the family in the suit premises. That PW2newspaper vendor was otherwise incompetent to know all the occupants in the flat. That though the newspaper supplier was supplying newspaper in the suit premises only for 25 years, but gave false evidence of Plaintiff’s residence in the suit premises since 1955. About PW-3 (shopkeeper), Mr. Shah would submit that he gave false evidence of Plaintiff’s residence in the suit premises since school days without clarifying Plaintiff’s absence from India for over 12 years. That PW-4 is a close relative of Plaintiff being his son’s father-in-law and was interested witness and assisted the Plaintiff in proving his false case. That the said witness ultimately admitted that Plaintiff merely used to visit the suit premises. Mr. Shah would therefore submit that none of the Plaintiff’s witnesses could prove Plaintiff’s residence in the suit premises as a member of family of the deceased-tenant.

13) Coming to the evidence of the Defendant, Mr. Shah would submit that evidence of neutral witness, Shri. Arvind Kamdar completely demolished Plaintiff’s false case of residence in the suit premises as family member of the deceased-tenant. He gave detailed account of how Plaintiff and his wife forcibly barged into the flat taking disadvantage of the ailing tenant. That the deceased-tenant fully trusted Shri. Arvind Kamdar who was appointed as his Constituted Attorney. If Plaintiff was a family member and residing in the suit premises with the tenant, there is no explanation as to why the tenant would appoint an outsider as his Constituted Attorney. That the said Constituted Attorney had full access to the Bank Accounts of the deceased-tenant and handle over his funds. That Shri. Arvind Kamdar did not have hostility towards the Plaintiff and he did not have his own interest in the suit premises. That Shri. Arvind Kamdar produced various documents in support of medical treatment given by him to the deceased-tenant, as well as donations and charities made by him in the name of the deceasedtenant.

14) So far as various documents relied upon by the Plaintiff in support of his claim are concerned, Mr. Shah would submit that most of the documents, except Ration Card and bank statements, pertain to the period after the tenant’s death and therefore the said documents are meaningless for determining Plaintiff's claim of residence with the deceased-tenant as a member of the family. That inclusion of Plaintiff’s name in Ration Card also does not cut any ice as the same was added 6 months prior to the tenant’s death. That the address of bank statement is only ‘mailing address’.

15) Mr. Shah would accordingly submit that the Trial and Appellate Courts have appreciated the entire evidence on record for rejecting fallacious claim of the Plaintiff with regard to transmission of tenancy. That the findings recorded by the Trial and the Appellate Courts do not suffer from the vice of perversity for this Court to interfere in exercise of revisionary jurisdiction. Lastly, Mr. Shah would submit that the Plaintiff has been latching on to the possession of the suit premises for a considerable period of time despite rejection of his fallacious claim. He would urge that the landlord cannot be made to wait endlessly for first getting the claim of Plaintiff demolished and thereafter wait for passing of decree for eviction. He would therefore submit that it would be appropriate for this Court to ensure that Plaintiff does not continue to trespass the suit premises without incurring any liability or consequences for such trespass. Mr. Shah would therefore pray for appointment of a Court Receiver in respect of the suit premises with further direction to the Plaintiff to pay prevalent market rent in respect of the suit premises. That Landlord had already filed R.A.E. Suit No.623/920 of 2006 for recovery of possession of the suit premises under the MRC Act against the heirs of the deceased tenant in which Plaintiff and his wife are impleaded as Defendant Nos.[6] and 7. That the said suit is pending for the last 18 long years. He would accordingly pray for expediting the hearing of the said suit while dismissing the present Revision Application.

16) Rival contentions of the parties now fall for my consideration.

17) Plaintiff has filed R.A.D. Suit No. 1958/2003 seeking a declaration that he is the tenant of Defendant No.1 in respect of the suit premises. Plaintiff’s claim of transmission of tenancy from the deceased-tenant to himself is premised on his assertion that he resided with the deceased-tenant in the suit premises as a member of the family. Section 7(15) of the MRC Act defines the term ‘tenant’ as under: (15) "tenant" means any person by whom or on whose account rent is payable for any premises and includes,- (a) such person,-

(i) who is a tenant, or

(ii) who is a deemed tenant, or

(iii) who is a sub-tenant as permitted under a contract or by the permission or consent of the landlord, or

(iv) who has derived title under a tenant, or

(v) to whom interest in premises has been assigned or transferred as permitted, by virtue of, or under the provisions of, any of the repealed Acts; (b) a person who is deemed to be a tenant under section 25;

(c) a person to whom interest in premises has been assigned or transferred as permitted under section 26;

(d) in relation to any premises, when the tenant dies, whether the death occurred before or after the commencement of this Act, any member of the tenant's family, who,-

(i) where they are let for residence, is residing, or

(ii) where they are let for education, business, trade or storage, is using the premises for any such purpose, 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 the absence of agreement, by the court. Explanation.-- The provisions of this clause for transmission of tenancy shall not be restricted to the death of the original tenant, but shall apply even on the death of any subsequent tenant, who becomes tenant under these provisions on the death of the last preceding tenant.

18) Thus, under clause-(d) of Sub-section (15) of Section 7, when a tenant dies, any member of his family, who was residing with him at the time of his death becomes a tenant for the purposes of application of provisions of the MRC Act. In the event of absence of such family member residing with the tenant in the suit premises at the time of his death, any heir of the deceased-tenant can also be declared as a ‘tenant’ for the purpose of application of the provisions of the MRC Act. Thus, for claiming transmission of tenancy upon death of a tenant in respect of the premises let out for residence, the two important requirements are that (i) person claiming status of a tenant must be a member of a tenant’s family and (ii) such person must be residing with the tenant in the suit premises at the time of his death. Thus, the relation as a member of the family and residence in the suit premises with the tenant at the time of his death are the two vital conditions, which are required to be satisfied for claiming transmission of tenancy rights.

19) Under Section 7(15)(d) of the MRC Act, in absence of availability of member of family residing with the tenant at the time of his death, even heir of the deceased-tenant can be treated as a tenant. However, in the present case Plaintiff never claimed tenancy on the basis of his heirship. Nonetheless, for the sake of consideration of entire claim of the Plaintiff, the Trial and Appellate Courts have also examined whether Plaintiff would fit into the definition of the term ‘heir’. The Court has held that Plaintiff does not fit into either Class I or Class II heirs under the provisions of the Hindu Succession Act, 1956. The Appellate Court has reiterated the said finding. I do not see any palpable error in the said findings recorded by the Trial and the Appellate Courts. Plaintiff has also not seriously pressed the point of transmission of tenancy through heirship. His main thrust is on transmission of tenancy right is on his residence with the deceased tenant as a member of his family.

20) Accordingly, I proceed to examine whether Plaintiff can be treated as a member of tenant’s family. The premises were let out for residence to Dr. R. C. Upadhyaya and admittedly, Plaintiff is not child or grandchild of Dr. Upadhyaya. Dr. R. C. Upadhyaya was married to Shardaben. Suvidhya is the sister of Shardaben and sister-in-law of the tenant-Dr. Upadhyaya. Plaintiff is the son of Suvidhya. Thus, Plaintiff is son of tenant’s sister-in-law. It appears that the tenant-Dr. R. C. Upadhyay had three siblings, two brothers-Shantilal and Dulerai and a sister-Champaben. Dr. R. C. Upadhyaya and his wife Dr. Shardaben R. Upadhyaya did not have any issues. However, brothers of the deceasedtenant-Dr. Upadhyaya had children. Kusumben G. Vyas and Kandarp S. Upadhyaya are the children of tenant’s brother-Shantibhai. Madhu D. Upadhyaya, Janardhan D. Upadhyaya and Rama H. Rawal are the children of tenant’s brother-Dulerai. Accordingly, Plaintiff impleaded Kusum, Kandarp, Madhu, Janardhan and Rama as Defendant Nos.[2] to 6 to his suit alleging that tenant’s constituted attorney-Shri. Arvind Kamdar was instigating his nephews and nieces to put in a claim for tenancy rights in respect of the suit premises. Such claim of the Plaintiff got falsified as Defendant Nos. 2 to 6 did not appear in the suit despite service of suit summons and till date, have not raised any claim for transmission of tenancy in their names. Thus, except the Plaintiff, no other person is claiming transmission of tenancy rights in respect of the suit premises upon the death of the tenant-Dr. Upadhyaya.

21) So far as Plaintiff is concerned, he is again not the only son of Suvidhya (tenant’s sister-in-law). It appears that tenant’s wife had two sisters, Suvidhya and Vasuben and two brothers, Babubhai and Jayantibhai. Suvidhya in turn had four children viz. Pradeep (Plaintiff), Marut, Harsha and Chhaya. However, apart from children of tenant’s brother not claiming tenancy rights in respect of the suit premises, only one child of tenant’s sister-in-law has asserted claim to the tenancy rights.

22) The word ‘family’ in the context of Rent Control legislations has been subject matter of interpretation in numerous judgments. In various judicial pronouncements, Courts have often given wider meaning to the word ‘family’ to include not just sons, daughters and parents but even near relations of the tenants. In Madhuben Hatwarlal, Joravarnagar (supra), the Gujarat High Court has taken into consideration the ratio of Apex Court judgment in Baldev Sahai Versus. R.C. Bhasin[6], in which it is held that the term ‘family’ must always be liberally and broadly construed so as to include near relations of the head of the family. However, the Gujarat High Court has held that while giving wider meaning to the word ‘family’, the same cannot be so broad so as to include distant cousins or remote heirs. While referring to the provisions of Section 5(11)(c) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 the Gujarat High Court held that normally ‘family’ includes parents, spouse, brothers, sisters, sons, daughters and in some cases widow of a predeceased son or issue of predeceased son but not distant nephews. The Gujarat High Court held in para-6 of the judgment as under:

6. However, Mr. Bavishi the learned advocate for the appellants, vehemently relied upon the decision of the Supreme Court in the case of Baldev Sahai v. R.C. Bhasin, AIR 1982 Supreme Court 1091, and submitted that the word “family” should be given wider meaning so as to include any person descending from the common ancestor. In my view, no such law is laid down by the Supreme Court in the aforesaid case. In that case the Court considered the question Whether mother and brother who were left behind by the tenant who shifted permanently to Canada followed by his wife and children could be evicted on the ground that neither the tenant nor any member of his family has been residing in the premises for the period of six months immediately before the date of the filing of the application for the recovery of possession thereof as provided u/S. 14(1)(d) of the Delhi Rent Control Act,

1958. The Court held 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. The term “family” must always be liberally and broadly AIR 1982 SC 1091 construed so as to include near relations of the head of the family. The relevant discussion is as under: “20. If this was the intention of the legislature then clause (d) of S. 14(1) of the Act could not be interpreted in a manner so as to defeat the very object of the Act. It is well settled that a beneficial provision must be meaningfully construed so as to advance the object of the Act, and curing any lacuna or defect appearing in the same. There are abundant authorities to show that the term “family” must always be liberally and broadly construed so as to include near relations of the head of the family.

21. In Hira Lal v. Banarsi Dass (1979) 1 Rent LR 466 (Delhi) even the learned Judge who decided that case had observed at page 472 that the term “members of the family” on the facts and circumstances of the case should not be given a narrow construction.

22. In Govind Dass v. Kuldip Singh, AIR 1971 Delhi 151; a Division Bench of Delhi High Court consisting of H.R. Khanna, C.J. (as he then was) and Prakash Narain, J. while recognising the necessity of giving a wide interpretation to the word “family” observed as follows (at p. 153):— “I hold that in the section now under consideration the word “family” includes brothers and sisters of the deceased living with her at the time of her death. I think that the meaning is required by the ordinary acceptation of the word in this connection and that the legislature has used the word “family” to introduce a flexible and wide term.”

23. In Mrs. G.V. Shukla v. Shri Prabhu Ram Sukhram Dass Ojha, (1963)

65 Pun LR 256 Mahajan, J. (as he then was) observed as follows at page 257 Pun LR (1963):— “Therefore, it must be held that the word ‘family’ is capable of wider interpretation, but that interpretation must have relation to the existing facts and circumstances proved on the record in each case.”

24. Even as far back as 1930, Wright, J. In Price v. Gould, (1930) 143 LT 333 (a King's Bench decision) had clearly held that the word “family” included brothers and sisters and in this connection observed as follows:— “I find as a fact that the brothers and sisters were residing with the deceased at the time of her death…… It has been laid down that the primary meaning of the word “family” is children, but that primary meaning is clearly susceptible of wider interpretation, because the cases decide that the exact scope of the word must depend on the context and the other provisions of the will or deed in view of the surrounding circumstances.” …………………………. “Thus, in Snow v. Teed, (1870-23 LT 303: LR 9 Eg 622) it was held that the word “family” could be extended beyond not merely children but even beyond the statutory next of kin”. 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

23) In Kailasbhai Shukaram Tiwari (supra), the Apex Court has held that when person claiming tenancy rights is not parents, spouse, brothers, sisters, sons or daughters, it becomes necessary for him/her to provide additional evidence for establishing the claim of tenancy. The Apex Court held in paragraph-14 as under:

14. The question as to whether a person is a member of the family of the tenant must be decided on the facts and circumstances of the case. Apart from the parents, spouse, brothers, sisters, sons and daughters, if any other relative claims to be a member of the tenant's family, some more evidence is necessary to prove that they have always resided together as members of one family over a period of time. The mere fact that a relative has chosen to reside with the tenant for the sake of convenience, will not make him a member of the family of the tenant in the context of rent control legislation.

24) Since Plaintiff is not a parent, spouse, sister, daughter or son of the deceased-tenant, it was incumbent for him to produce ‘some more evidence’ to prove that he always resided together as member of one family over a period of time. As held by the Apex Court, mere residence by a relative with a tenant for the sake of convenience does not make him member of the family of the tenant in the context of Rent Control legislation.

25) Therefore, even if Plaintiff is accepted as a member of family of the deceased-tenant, it became necessary for him to produce concrete evidence that he and the deceased-tenant resided under the same roof over a period of time as members of one family. Since Plaintiff is the son of sister-in-law of the deceased-tenant, some interaction between the duo in family functions, social gatherings as well as visits by Plaintiff to the suit premises, etc are bound to take place. However, for the purpose of transmission of tenancy under Section 7(15)(d) of the MRC Act, since Plaintiff is merely a nephew of the original tenant, it became necessary for him to dispel the natural presumption that son of sister-in-law would ordinarily not reside in the house of the deceased-tenant as a member of one family. Therefore, production of concrete evidence of Plaintiff’s residence as part of the tenant’s family in the suit premises over a period of time became indispensable, in absence of which the Court would ordinarily refuse to believe that son of sister-in-law of tenant would reside with him as a part of the family of tenant.

26) Having considered the tests to be applied for determining the tenancy claim of the Plaintiff in respect of the suit premises, I now proceed to examine whether Plaintiff produced the required degree of evidence to prove that he resided with the deceased-tenant in the suit premises as a part of one family over a period of time. For doing so, it would be necessary to consider the pleadings, oral and documentary evidence.

27) The relevant pleadings in para-2 of the plaint reads thus:

2. One Dr. Ramanlal Chaganlal Upadhyaya was the contractual monthly tenant in respect of the suit premises. He died on 19-9-2003 at the age of about 90 years. His wife Shardaben predeceased him and died on or about 23-8-2001. They had no children. The Plaintiff is the son of Suvidhya who was the sister of Shardaben. The Plaintiff and his wife Neena have been residing in the suit premises along with the said Dr. R.C.Upadhaya at all relevant time and was residing at the time of his death on 19-9-2003. The Plaintiff was paying the rent and expenses of Dr. R.C.Upadhaya in respect of the suit premises.

28) Apart from the fact that there is no pleading that Plaintiff and deceased-tenant were part of the same family residing in the suit premises, Plaintiff did not disclose as to when his residence alongwith his wife in the suit premises commenced. This is the only pleading in the plaint in support of Plaintiff’s claim of transmission of tenancy rights in respect of the suit premises. Plaintiff did not plead in the plaint that he was residing in the suit premises with the deceased tenant from his schooldays, which contention he sought to prove in evidence. In fact the above pleading shows as if he started residing in the suit premises with his wife after their marriage.

29) Defendant No.1 filed Written Statement disputing that Plaintiff can be treated as family member of the deceased-tenant and pleaded that Plaintiff and his wife trespassed into the suit premises when the tenant was in helpless condition and without his consent. Defendant No.1 pleaded in paragraphs-3 and 3 as under:

3. With reference to para 2 of the Plaint, it is denied that the Plaintiff is or can ever claim to be an heir and legal representative of the deceased Dr. Ramanlal Chhaganlal Upadhyaya (hereinafter referred to as Dr. UPADHYAYA). Dr. Upadhyaya died after leaving certain other heirs and legal representatives. Dr. Upadhyaya had two brothers and one sister and although they were not alive at the time of his death till the heirs & legal representatives of Dr. Upadhyaya, sisters and brothers, only would become heirs and legal representatives and not the Plaintiff, although the wife of Dr.Upadhayaya i.e. late Shardaben might have been the sister of the mother Suvidhya of the Plaintiff. The Plaintiff and his wife have as a matter of fact trespassed into the suit premises as they are entered into the suit premises, when Dr.Upadhyaya was in helpless condition and without his consent. It is denied that Plaintiff and his wife were residing with Dr. Upadhyaya at all releant time and even it is assued that the plaintiff was residing at the time of death of Dr. Upadhayaya even then in law, he cannot become tenant and cannot claim any right of any nature whatsoever in the suit premises or any portion thereof. It is false that the plaintiff was paying the rent/and/or in respect of suit premises incurring expenses of Dr. Upadhyaya. The plaintiff has been making deliberately false statements with an ulterior motives and for falsely claiming the suit premises. The Defendant Nos. 2 to 6 are only some of the heirs of Dr.Upadhyaya.

3. With reference to para 3 of the Plaint as aforesaid, defendant Nos. 2 to 6 are only some of the heirs and legal representatives of Dr. Upadhyaya. The 1st Defendant /is trying to find out the/ names & addresses of all the legal heirs and representatives of Dr. Upadhyaya, who died without any children, and therefore, the/1st Defendant is unable to say definitely about the residential address of defendant Nos. 2 to 6. One Arvindji G.Kamdar still attending to the affairs of the suit premises and he was former looking after of Dr.Upadhyaya including his financial affairs. The first defendant is not aware and does not admit about the alleged instigations by the said Arvind Kander to defendant Nos.[2] to 6 for putting up a claim of tenancy rights in respect of the suit premises. The Plaintiff does not any claim either over the suit premises or even the tenancy rights thereof.

30) After the death of Defendant No.1, his heirs-Defendant Nos.1A and 1B filed additional Written Statement and contended as under:

1. These Defendants are making this written statement pursuant to service of amended Plaint upon them. These Defendants have been now joined in this suit. These Defendants adopt the written statement filed by the deceased Defendant No. 1. The contents of the deceased Defendant No.1's pleading be treated as part of this written statement to avoid repetition.

2. These Defendants re-iterate that Plaintiff was neither a family member nor an heir of deceased original tenant Mr. Ramanlal Upadhyaya ('said Ramanlal Upadhyaya') and is not entitled to succeed to tenancy of suit premises and has not succeeded to tenancy of suit premises upon death of said Ramanlal Upadhyaya. Further, prior to the death of the said Ramanlal Upadhyaya, Plaintiff had per force and/or coercion (under the guise of taking care said Ramanlal Upadhayaya) self inducted himself in the suit premises and self imposed himself upon said Ramanlal Upadhyaya) in preparation and with the ulterior motive, to acquire tenancy of the suit premises upon the death of then ailing said Ramanlal Upadhyaya who was physically infirm and too weak to oppose the forcible entry of the Plaintiff in suit premises. Further, said Ramanlal Upadhyaya had never treated the Plaintiff as his family member nor an heir nor wanted the Plaintiff to succeed to his estate. These Defendants submit that the suit be dismissed with costs.

31) Plaintiff examined himself as PW-1 and stated in para-3 of the Affidavit of Evidence as under:

3. The original tenant of the suit premises was Dr. Ramanlal Chaganlal Upadhyaya. He died at the age of about 90 years on 19-9- 2003 and his wife Shardaben predeceased him and died on 23-8-2001. They have no children. Shardaben had a sister Suvidhya. The Plaintiff is the son of Suvidhya. The Plaintiff and his wife Neena have been residing in the suit premises along with the tenant Dr. Ramanlal Chhaganlal Upadhaya at all material times and continue to reside there at the time of his death on 19-9-2003. For the last about 3 years or so prior to 2003 the Plaintiff was paying the rent of the suit premises occasionally and all the expenses. The Plaintiff was actually residing there from 1953. Dr. Ramanlal got me education till B.Sc. that is from 1953-1963 while I was residing with him. He got me married in 1968. He got my sister married in 1981. He got my son Ravi married in 1993 and my daughter Vaishali married in 1997 all from the suit premises.

32) Thus, in the Affidavit of Evidence, Plaintiff disclosed the year from which he started residing in the suit premises as 1953. This was improvement over the pleading in the plaint which seem to suggest that he started residing in the suit premises after his marriage. He further stated in his evidence that ‘The tenant Dr. R. C. Upadhyaya and I have been living as one family and we are directly related by blood’. In his cross-examination, Plaintiff admitted that his name was included in the ration card of the deceased-tenant for the first time on 12 March 2003. He further admitted that all expenses of the deceasedtenant were met by Mr. Arvind Kamdar from the funds of Dr. Upadhyaya. He further admitted that the deceased-tenant did not execute any Power of Attorney in his favour, as was done in favour of Mr. Arvind Kamdar. He further admitted that a fortnight before 12 March 2003, he made application for insertion of his name in the ration card. He further admitted that between 1983 to 1995, he was in Central Africa (Cango) on a textile consultancy project contract through a Singapore based company. He further admitted that the deceasedtenant was ill from 1998 and was bedridden for three years prior to his death. He further admitted that Shri. Kamdar was the constituted attorney of the deceased-tenant since 2001. He stated that he returned to India in the year 1995, but denied the suggestion that he started residing at his mother’s house at Lalbaug, Mumbai.

33) Plaintiff examined Sitaram Balaji Rane-newspaper vendor, who, in terse Affidavit of Evidence, stated that he was supplying newspapers in Walkeshwar since last about 65 years and was also supplying newspapers at the suit premises. He stated that he knew the Plaintiff and saw the Plaintiff residing in the suit premises from about 1955 till the date of giving evidence. However, in the cross-examination, he admitted that he used to deliver newspapers to Dr. Upadhyaya for 25 years and therefore it is inconceivable that Shri. Rane was in a position to give evidence about Plaintiff’s residence in the suit premises since

1955. To make things worse for the Plaintiff, the witness finally admitted in the cross-examination that the Plaintiff is ‘residing’ in the suit premises since last 15 to 20 years. Since witness gave evidence on 23 February 2006, the same would mean residence of the Plaintiff either since 1986 or 1991. However, according to Plaintiff’s own evidence, he was out of India from 1983 to 1995. Thus, the evidence of witness Sitaram Balaji Rane, being thoroughly unreliable, cannot be relied upon to prove Plaintiff’s residence in the suit premises.

34) Plaintiff also examined Shri. Suresh Kisan Shinde, a shopkeeper adjacent to the suit building, who stated in his Affidavit of Evidence that he saw Plaintiff sitting in the suit premises with Dr. Upadhyaya since he was a schoolboy and he has been residing in the suit premises since then till today. This evidence of Shri. Shinde contradicts Plaintiff’s own evidence about he being outside India between 1983 to 1995. Against the statement ‘I have seen the Plaintiff sitting in the suit premises with Dr. R.C. Upadhyaya since he was a school boy’ does not prove Plaintiff’s ‘residence’ in the suit premises continuously since his school days. Also, the age of the witness-Suresh Kisan Shinde in 2006 was 60 years and as the age of the Plaintiff at the time of filing of Affidavit of Evidence in October 2005 was 65 years, Plaintiff could be taking education in School sometime during 1950 to

1960. Witness-Suresh Kisan Shinde himself must be born sometime in 1946 and it is difficult to believe that he would be running a shop or business adjacent to the suit building at the age of 5 or 15 years. The said witness, who was so confident in his Affidavit of Evidence about Plaintiff’s residence in the suit premises since school days till the date of giving evidence, finally admitted in the cross-examination that he did not know as to how long Plaintiff was in Africa. Thus, evidence of PW3- Suresh Kisan Shinde again does not inspire confidence.

35) Plaintiff thereafter examined PW4-Santhakumar Natwarlal Joshi, father-in-law of his son, who was residing in the suit building on the ground floor. He gave evidence that ‘I am seeing him residing in the suit premises since about 1968 till today.’ However, in the crossexamination, PW-4 admitted that ‘Before 2000, the plaintiff some time used to come to the suit premises’. The witness thus contradicted himself about continuous residence in the suit premises since 1968 by admitting that Plaintiff merely used to visit the suit premises for some time. Witness further admitted that ‘The plaintiff used to reside at Lalbaug, Mumbai as well as in the suit premises'. In my view, the deposition of PW4-Santhakumar Natwarlal Joshi completely demolishes the claim of the Plaintiff about continuous residence in the suit premises since 1953. Plaintiff himself never pleaded or gave evidence that he was residing both at Lalbaug as well as in the suit premises. On the contrary, he came up with a specific case that he resided only in the suit premises since

1953. The father-in-law of his son, residing in the suit building, finally admitted that Plaintiff was also residing at Lalbaug and used to merely visit the suit premises.

36) Thus, the oral evidence of four witnesses examined on behalf of the Plaintiff is full of contradictions and the same does not prove Plaintiff’s continuous residence in the suit premises as a member of the family of the deceased-tenant. Though a newspaper vendor or shopkeeper were not supposed to know the capacity in which the Plaintiff was seen in the suit premises, alteast the father-in-law of his son, Santhakumar Natwarlal Joshi, ought to have given some evidence as to whether the Plaintiff and the deceased-tenant were part of one single family residing under the same roof. This witness was most vital for the Plaintiff as he is not only Plaintiff’s relative, but was residing in the very building for several years. In his evidence, Plaintiff stated that his son was married in the year 1993. However, there is not even a whisper in the Affidavit of Evidence of Santhakumar Natwarlal Joshi that Plaintiff and his son used to reside in the suit premises in the same building as a part of tenant’s family. Instead of clearing any doubts, the terse Affidavit of Evidence of PW-4 is not just sketchy but raises more doubts. Why the said witness did not reveal everything about relationship between the Plaintiff and the deceased-tenant, the manner in which they lived together in the same house, how they interacted with each other, whether Plaintiff looked after the deceased-tenant during his ailment, whether Plaintiff looked after financial or other affairs of deceased-tenant etc. The witness is also silent as to whether his son-in-law (Plaintiff’s son) also resided in the suit premises. Despite being the best person to give evidence on these aspects, the said witness filed terse Affidavit of Evidence, running in few lines. In my view, therefore evidence of Santhakumar Natwarlal Joshi itself is sufficient for inferring that Plaintiff never resided in the suit premises together with the deceased-tenant as a part one single family over a substantial period of time.

37) Coming to the evidence led by Defendant No.1, he stated in his Affidavit of Evidence that Plaintiff forcibly entered the suit premises and occupied the same against the consent and desire of the original tenant, who could do nothing as he was old and in helpless condition. The witness gave evidence about Plaintiff ill-treating the original tenant. The witness deposed that Dr. Upadhyaya was his family doctor as well as his friend. The witness gave evidence about shock suffered by Dr. Upadhyaya after the death of his wife in 2000 and how his health deteriorated after September 2001 when he was bedridden and in helpless condition. The witness gave evidence about employment of two wardboys to look after the tenant. The witness gave evidence about the last admission of Dr. Upadhyaya in Bhatia Hospital on 23 August 2003, his discharge on 3 September 2003 and his desire not to die in the hospital. The witness gave evidence about regular visits made by him to Dr. Upadhyaya’s house. The witness also gave evidence about the tenant informing his friend and Constituted Attorney-Mr. Arvind Kamdar about Plaintiff forcibly entering the suit premises. The witness also questioned Plaintiff’s relationship with the deceased-tenant. He stated that Plaintiff all along hated Dr. Upadhyaya and did not love or had any affection towards him. Defendant No.1 filed Affidavit of Evidence for production of various documents. Though Defendant had led sufficient evidence about his personal knowledge about the deteriorating condition of the deceased-tenant, as well as forcible entry of the Plaintiff into the suit premises, I am momentarily ignoring the evidence of Defendant No.1, being an interested witness. Instead, it would be safer to consider the evidence of Mr. Arvind Kamdar who was admittedly the Constituted Attorney of the deceased-tenant.

38) Shri. Kamdar filed Affidavit of Evidence and perusal of his Affidavit indicates his close interactions with the deceased-tenant. The Affidavit also indicates that Shri. Arvind Kamdar is the person who was actually looking after not just the financial affairs but also the health of the deceased-tenant. The said witness (D.W.2) gave evidence about Plaintiff and his wife forcing themselves upon Dr. Upadhyaya to stay with him in the suit premises against his wishes. The witness made specific statement that until January/February 2003, Plaintiff and his wife were residing at Block Nos. 23 & 24 on 3rd Floor of one of the chawls at D. L. Jain compound facing Dr. Ambedkar Road, Chinchpokli, Mumbai. The witness stated that Plaintiff used to visit Dr. Upadhyaya and his wife only once in a while. That he never saw the Plaintiff and his family residing with Dr. Upadhyaya. The witness further stated that Plaintiff’s sister, Chhaya Dilip Vyas was residing in the suit premises with Dr. Upadhyaya and Shardaben until 2002 when she shifted in her own house at Kandivali. The witness also stated that Plaintiff’s mother- Suvidhya also used to occasionally visit Dr. Upadhyaya and his wife and stated that they used to stay in the suit premises during such visits. The witness further stated that after Chhaya stopped residing in the suit premises with the Doctor, Plaintiff started showing sympathy and care towards Doctor after the death of Shardaben and by forcing himself upon the tenant by forcibly residing in the suit premises. The witness gave detailed account of the ailments suffered by the deceased-tenant 3 to 4 years preceding his death. The witness stated that he looked after all the affairs of the deceased-tenant including household expenses, payment of bills, banking transactions etc. That he used to operate tenant’s bank accounts for 4/5 years before his death. The witness gave entire account of medical treatment administered to the deceasedtenant and produced various hospital and chemist bills. He further stated in the evidence that Plaintiff never accompanied Dr. Upadhyaya during his visits to the Doctor except on very few casual occasions during his hospitalisation.

39) Shri. Arvind Kamdar gave evidence of incidents occurring 15/20 days before the tenant’s death when the Plaintiff insisted that the tenant should call the landlord living on the first floor of the said building and sent the tenant’s wardboy to call the landlord at the suit premises. Shri. Arvind Kamdar further stated that in his presence, Plaintiff rudely insisted that Dr. Upadhyaya must direct the landlord to transfer the tenancy in Plaintiff’s name and that Dr. Upadhyaya specifically rejected Plaintiff’s request. Witness further gave evidence about Plaintiff abusing Dr. Upadhyaya in unpleasant language in his presence. Shri. Kamdar thereafter led detailed evidence about the events occurring at the time of tenant’s death and the manner in which Plaintiff behaved. He gave evidence about Dr. Upadhyaya’s younger brother making payment at the crematorium of Dr. Upadhyaya’s funeral and that Plaintiff left the funeral site within ten minutes and reached the suit premises for the purpose of taking possession of keys and of the lock. The witness thereafter gave evidence about the donations and charities that he made from the funds of the deceased-tenant as per the tenant’s wish.

40) Shri. Arvind Kamdar has been subjected to crossexamination and I do not find any material admission in support of the Plaintiff in his cross-examination. On the contrary, Plaintiff’s crossexamination of Shri. Kamdar about the visit paid by him alongwith Shri. Kamdar at Ahmedabad in connection with Plaintiff’s proposed business, far from assisting Plaintiff, actually shows lack of hostility between Plaintiff and Shri Arvind Kamdar.

41) Plaintiff has urged discarding of evidence of Shri. Kamdar by branding him as an interested witness. In the plaint, Plaintiff pleaded that the interest of Shri. Kamdar was to instigate Defendant Nos.[2] to 6 to claim tenancy rights in respect of the suit premises. However, before me, Plaintiff has urged that Shri. Kamdar always wanted to assist Defendant No.1-landlord for recovery of possession of the suit premises on account of its high value due to its location in one of the plush areas of Mumbai City. Thus, there is apparent contradiction in the allegations that Plaintiff seeks to make qua Shri. Kamdar. His allegation in the plaint that he instigated Defendant Nos.[2] to 6 to claim tenancy rights in the suit premises is ultimately proved to be fallacious as Defendant Nos.[2] to 6 neither staked any claim in respect of the suit premises nor appeared before any Court. Defendant Nos.[2] to 6 are not interested in claiming any tenancy rights qua the suit premises. Faced with this situation and after Shri. Kamdar led his evidence, Plaintiff has changed the direction of his attack qua Shri. Kamdar and now he complains that Shri. Kamdar is set up by the landlord in assisting recovery of possession of the suit premises. Before me, the allegation is made that in presence of Shri. Kamdar, Defendant No.1-landlord had made demand for payment of rent at Rs.10,000/- per block as a condition for transfer of tenancy. Thus, Plaintiff is not consistent while making allegations against Shri. Kamdar.

42) To my mind, Shri. Arvind Kamdar appears to be a completely neutral witness in the present case. Admittedly, he himself does not have any interest in the suit premises. Though allegation was made against him that he was interested in Defendant Nos.[2] to 6 securing tenancy rights, the said allegation is ultimately proved to be false. His evidence shows close friendship and trust with the tenant. Tenant had executed Power of Attorney in favour of Shri. Kamdar to look after his bank transactions. If Plaintiff was indeed residing in the suit premises as a member of deceased-tenant’s family since 1953, it is inconceivable that a tenant would execute Power of Attorney in favour of an outsider to look after his banking transactions. There is no explanation from Plaintiff’s side as to why the tenant did not execute such authority in favour of his alleged family member residing with him viz. the Plaintiff. This is another factor which demolishes the claim of the Plaintiff being a close family member and also residence with the deceased-tenant. Apart from the Power of Attorney, Shri. Kamdar appears to have virtually taken care of all needs of the deceased-tenant and it was Shri. Kamdar who was apparently looking after his health during his last days. This is clear from Shri. Kamdar producing bills relating to hospitalisation and medicines of Shri. Upadhyaya. Even at the time of funeral of the tenant, it is Kamdar’s younger brother who apparently paid the crematorium charges.

43) Why Shri. Kamdar is in possession of all documents relating to hospitalisation and medical treatment of Dr. Upadhyaya instead of Plaintiff possessing them has not been explained in any manner. It also appears that Shri. Kamdar has made donations to various NGO’s and Organisations on behalf of and in the name of the deceased-tenant. To illustrate, the amount of Rs.3,50,000/- is donated in the name of Dr. Upadhyaya to the Society for the Mentally Retarded, Rajkot on 15 March 2004, an amount of Rs.25,000/- is donated by Shri. Kamdar in the name of Shri. Upadhyaya to Saath Sajan Sheth Foundation, Ahmedabad on 27 March 2004, an amount of Rs.20,000/- is donated to Bhartiya Stree Seva Sangha in the name of Shri. Upadhyaya on 3 January 2005. Thus, even after the death of Shri. Upadhyaya, Shri. Kamdar has discharged the trust imposed in him by the deceased-tenant by fulfilling his wishes. There is nothing on record to indicate that Shri. Kamdar had any interest in the properties of Shri. Upadhyaya.

44) To my mind, therefore Shri. Kamdar appears to be a neutral witness who enjoyed complete confidence and trust of the deceasedtenant. Evidence of Shri. Arvind Kamdar leaves no manner of doubt that Plaintiff forcibly started residing in the suit premises since January/February 2003 and that he was not residing in the suit premises as a member of family of the deceased-tenant prior to the said period.

45) At the instance of the Defendant-landlord, Plaintiff produced his passport issued on 22 November 2004 at Nairobi, Kenya in which Plaintiff’s address was reflected as 24/60-62, Parel Road, Bombay- 400012, M.S. India. If Plaintiff was indeed a permanent and continuous resident at the suit premises, why he gave his address of Parel for issuance of passport in the year 1994 becomes incomprehensible. I am not impressed by Plaintiff’s justification about passport being procured in emergency situation while being in Nairobi for not reflecting address of the suit premises thereon.

46) Applicant-in-person has strenuously relied upon various documents in support of his claim of residence with deceased-tenant as a member of his family. His main thrust is on the Ration Card issued in the name of Dr. Upadhyaya. However, Plaintiff’s name is included in the said Ration Card by an entry made on 12 March 2003. On the other hand, Defendant No.1 has relied upon the Ration Card issued in the name of the deceased-tenant (before addition of Plaintiff’s name therein) showing that only deceased-tenant and his wife-Shardaben were residing in the suit premises. The age of the deceased-tenant is shown in the said Ration Card as 84 years which would indicate that six years prior to his death, Plaintiff was not residing in the suit premises.

47) Plaintiff has relied upon his bank statements issued by the ANZ Grindlays Bank of 15 July 1999 indicating Plaintiff’s mailing address as that of suit premises. However, the bank statements reflecting ‘mailing address’ are insufficient to draw presumption of Plaintiff’s continued residence at the suit premises as a family member of Dr. R.C. Upadhyaya.

48) Plaintiff also relied upon Registration-cum-Identity Slip issued in the name of his son on 16 July 2001 showing the address of the suit premises. If Plaintiff’s son indeed resided at the suit premises, there must be plethora of documents relating to his school/college records, employment etc. which have conveniently not been produced by the Plaintiff. Therefore selective reliance on a stray slip issued for pilgrimage, is insufficient to infer that Plaintiff’s son resided in the suit premises.

49) Plaintiff relied upon various other documents such as electricity bill, telephone bill, mobile bills etc. However, all of them are issued after the death of the tenant and are accordingly totally irrelevant for deciding the issue of his residence in the suit premises during the lifetime of the deceased-tenant. The documents such as envelope addressed to the landlord for payment of rent is again irrelevant as the rent was sought to be tendered after the death of the tenant. Thus, Plaintiff has not produced any concrete documentary evidence to prove his continuous residence with the deceased-tenant as a member of his family. Infact, Plaintiff has withheld various documents relating to his own school records, as well as school records of his children, which would have also proved his real residential address.

50) Applicant-in-person has also relied upon several photographs in support of his contention that he always resided with the deceased-tenant in the suit premises as his family member. He has infact criticised the Trial Court for not marking several photographs in evidence while exhibiting selective photographs. In my view, it is not really necessary to delve deeper into the aspect of marking of photographs by momentarily ignoring the objections relating to admissibility of some of the photographs. I have gone through the said photographs. As rightly held by the Trial and the Appellate Courts, though not very close, Plaintiff is ultimately a relative of the deceasedtenant. His mother was the real sister of Shardaben (tenant’s wife). Therefore, some interaction between the Applicant and deceased-tenant was bound to occur. It is also possible that Plaintiff has visited and even stayed in the suit premises on few occasions. It is otherwise quite dangerous to rely upon mere photographs for the purpose of upholding Plaintiff’s claim of transmission of tenancy. As rightly held by the Appellate Court, several other persons are also seen in the photographs relied upon by the Plaintiff and going by the logic sought to be suggested by the Plaintiff, even those persons would then be able to claim transmission of tenancy rights in respect of the suit premises. However, as held by the Apex Court in Kailasbhai Shukaram Tiwari (supra), mere residence of a relative with a tenant does not make him member of the family in the context of Rent Control legislation. As observed above, Plaintiff was under obligation to produce ‘some more evidence’ considering the distance in the relation. Had Plaintiff been child or grandchild or brother of the tenant, residence with the tenant could be inferred on production of prima-facie evidence. However, since the relationship between the Plaintiff and the deceased-tenant is not too close and ordinarily son of sister-in-law would not reside with the deceased-tenant, concrete material was required to be produced by the Plaintiff to prove his residence with the deceased-tenant.

51) This is not a case where due to some forcible events, Suvidhya was required to take a shelter in her sister’s house. On the contrary, it appears that Plaintiff’s mother resided separately at Lalbaug and Parel. It is also not Plaintiff’s case that his other siblings also resided with the deceased-tenant. It is therefore unnatural that Plaintiff alone would reside in the house of his distant uncle from his school days whereas his mother continued to reside in her old separate house. Plaintiff has not pleaded that his mother was also residing in the suit premises. Therefore the exact reason why the mother left her 13 year child to reside alone with the tenant is not explained in any manner. For clearing these doubts, Plaintiff ought to have produced concrete evidence for proving his residence with the deceased-tenant for a substantial period of time as a member of his family. Mere relation with the tenant and occasional visits/residence in the suit premises is not sufficient to meet the requirements of Section 7(15)(d) of the MRC Act.

52) The legislative intention behind recognising tenancy rights of a family member residing with the deceased-tenant must be appreciated. I had an occasion to deal with somewhat similar issue in Soli Behram Sukhadwala Versus. Nitin D. Sohni and others[7], where the issue before this Court was whether the Plaintiff therein, who described the original tenant as ‘daughter of mamaji of his mother’, could be treated as member of family of the deceased-tenant, for transmission of his tenancy rights. This Court held in paragraphs-19, 20, 23, 24, 25, 26, 29, 30, 31 and 32 as under:

19. It is an admitted position that plaintiff is not a Class I heir of deceased tenant Dinamai and there is serious dispute between the parties about his relationship with Dinamai. In Kailasbhai Shukaram Tiwari case, on which reliance is placed by both Mr Sawant and Mr Thorat, the Supreme Court has held that apart from parents, spouse, brother, sisters, sons and daughter, if any other relative claims to be a member of tenant's family, some more evidence is necessary to prove that he/she always resided together as members of one family over a period of time. The Supreme Court held in para 14 as under: (SCC p. 529, para 14)

14. The question as to whether a person is a member of the family of the tenant must be decided on the facts and circumstances of the case. Apart from the parents, spouse, brothers, sisters, sons and daughters, if any other relative claims to be a member of the tenant's family, some more evidence is necessary to prove that they have always resided together as members of one family over a period of time. The mere fact that a relative has chosen to reside with the tenant for the sake of convenience, will not make him a member of the family of the tenant in the context of rent control legislation. (emphasis and underling added)

20. Thus, as held by the Supreme Court in Kailasbhai Shukaram Tiwari case it becomes necessary for a person, who is not parent, spouse, brother, sister, son or daughter, to produce “additional evidence” for establishing claim of tenancy. Furthermore, what also needs to be proved is residence together as member of one family, that too, “over a period of time”. Mere occupation of tenanted premises along with the tenant for a short duration would not mean “residence” with the tenant as member of the family. What essentially needs to be established is that the person claiming tenancy status and the original tenant must “reside together” in the premises as a part of one single unit. Having considered the test laid down by the Supreme Court in Kailasbhai Shukaram Tiwari case[1] for establishing tenancy right by a person, who is not parent, spouse, brother, sister, son or daughter, I proceed to examine whether plaintiff has discharged the burden in the present case.

23. Even if it is assumed momentarily that Dinamai was indeed daughter of mamaji of plaintiff's mother, the relationship appears to be distant. It is sought to be suggested that plaintiff's mother and Dinamai were maternal cousins. Since relation is not too close, the onus for the plaintiff became even stricter to prove residence with Dinamai as a part of one family unit. It is plaintiff's own case that till the year 1974, he is resided with his parents at Cusrow Baug, Colaba. With regard to his claim of residence with Dinamai, some of the admissions given by plaintiff during the course of his crossexamination are telling. It would be apposite to reproduce plaintiff's admissions in the cross-examination: Age of Smt Dinamai at the time of her death was about 74 years. She died in the hospital. Prior to her death, for about 4 and half months, she was in Parsee General Hospital. In the year 1974, I was 18 years old. Prior to year 1974, I was residing with my parents at D/44 Khushewbhag Shahid Bhagatsingh Road, Colaba, Bombay. I completed my education in the year 1988. In my school, my residential address is of Khushewbhag Colaba, I again say that up to my education in engineering, my address was of Colaba. In the year 1978 I have completed my education in engineering. It is not true none of the documents produced by me disclosed my occupation of suit premises prior to death of Smt Dinamai. It is not true I have made the correction the envelope part of Ext. A colly to show my occupation of suit premises prior to year 1975. Besides me, I am not going to examine any witness. It is not true I have got correspondence Ext. K colly fabricated to produce in this suit. In January 1974 I came to reside in suit premises. I came to stay with Smt Dinamai as I was in love with… and I left the house of my parents to avoid strain relations. I have one brother and one sister. I am youngest. Except my bare words, I have no documentary evidence to show that Smt Dinamai used to pay rent electricity charges, telephone charges to me and that in my turn used to go and make the payment. In March 1975 my name was included in the ration card Ext. C. Under the instructions of Smt Dinamai, my name was included in the ration card Ext. C. Today I do not have any documentary evidence that Dinamai submitted the form application to include my name in the ration card Ext. C. It is true that in the ration card where my name is included, there is difference in the ink in the entry of my name and the date. I cannot explain about the difference in ink.

24. Plaintiff thus admitted that he was only 18 years old in the year 1974 when he allegedly shifted his residence with Dinamai in the suit premises. Till 1978, he was taking education in engineering. It is therefore incomprehensible as to why 18 years old student, who was otherwise residing with his parents at Cusrow Baug, Colaba would suddenly decide to shift his residence with Dinamai, who is not even his close relative. Plaintiff had elder brother and sister and why the youngest child aged only 18 years would shift out of comfortable residence with parents and reside with his distant relative, becomes incomprehensible. Though it is sought to be suggested shifting of residence was necessitated on account of ill health of Dinamai, it appears unbelievable that plaintiff, who himself was possibly in need of being looked after on account of his tender age of 18 years, would leave the care and residence of his parents and shift in Dinamai's house to take care of her. What is most important is the fact that in his college documents, his residential address was disclosed as “Cusrow Baug, Colaba”. Thus, in the year 1978 plaintiff had two separate addresses, one being suit premises on account of insertion of his name in ration card of Dinamai and other at Cusrow Baug at Colaba in his college records. It is therefore, difficult to believe that plaintiff was residing exclusively with Dinamai since 1974 as a part of her family with absolutely no connection with his parents. The theory of plaintiff shifting in tenanted premises to take care of Dinamai's health also appears to be unbelievable, considering his age.

25. Though plaintiff was silent about the reason for leaving house of his parents in the plaint or in affidavit of evidence in the cross-examination, he attempted to explain his unusual conduct of leaving his parents' house at the age of 18 years stating that he wanted to avoid strained relationship with parents as he was in love with one lady. Except this stray statement in the cross-examination, no other explanation is given by plaintiff for leaving the house of his parents at the age of 18 years, when he had four more years to complete his engineering.

26. As observed above, for establishing tenancy under Section 5(11)(c) of the Bombay Rent Act, a person must prove that he resided with the tenant as part of his family for a substantial period of time. In the present case, even if plaintiff's case of shifting to Dinamai's house is to be believed, the residence is hardly of 2 to 3 years. There is nothing in evidence to suggest that plaintiff used to regularly visit Dinamai or that Dinamai used to treat him as his son or that during the course of residence with his parents at Cusrow Baug, he used to intermittently reside with Dinamai prior to the year 1974. Therefore, it is wholly unbelievable that plaintiff would leave lock stock and barrel from his parents' residence in the year 1974 snipping all connections with his parents and reside with old lady Dinamai, while he was still taking education. The theory of residence with Dinamai appears to have been woven for the sole purpose of claiming tenancy rights in respect of the suit premises.

29. The objective behind rent control legislation needs to be borne in mind while accepting tenancy claim of a person, who is not a close relative of the original tenant. Rent control legislation is enacted with twin objectives of rent control and protection from eviction. Since rent is legislatively controlled and is not permitted to be charged as per market rates, no protected tenant hands back possession of the tenanted premises as the same can be occupied by payment of paltry sums towards rent. The legislature intended to protect the tenant from being charged market rent and from being evicted. The legislature has gone a step ahead and has extended the rent control protection to the family members, so that tenant's death does not render them homeless. Thus, only those who resided with tenant as family members are to be extended the benefit of rent protection. The provision is not to be misused by bringing in distant relatives inside the premises shortly before tenant's death for ensuring transmission of rent control protection. After all the premises are owned by the landlord and the fetter put by the statute on charging market rent and evicting the tenant cannot delayed endlessly even after tenant's death and the need for imposition of such fetter comes to an end.

30. The rent control legislation does not seek to create inheritable right in respect of the tenanted premises in favour of any tenant. By now, the law is well-established that tenancy rights cannot be inherited. A quick reference in this regard can be made to the judgment of Supreme Court in Vasant Pratap Pandit v. Anant Trimbak Sabnis in which it is held that bequeath of tenancy rights is impermissible. The objective behind making a provision for transmission of tenancy under Section 5(11)(c) of the Bombay Rent Act or Section 7(15)(d) of the Maharashtra Rent Control Act, 1999 (the MRC Act) is to ensure that a member of family of the deceased tenant is not thrown out of the tenanted premises only on account of tenant's death. The words “member of tenant's family” is required to be appreciated in the light of objective behind incorporation of provision of Section 5(11)(c) in the Bombay Rent Act. The said provision is not made with the objective of ensuring that tenancy rights are transmitted amongst various relatives or desired persons by the tenant. The provision is aimed at ensuring that a person, who is actually residing with the deceased tenant as a member of his family is not rendered homeless.

31. The test here is whether tenanted premises was “home” for plaintiff and whether he was to be rendered homeless after tenant's death? The answer to the question, to my mind, appears to be in the negative. Tenanted premises were not “home” for plaintiff, who all along resided with his parents at Colaba. If the legislative object is borne in mind, plaintiff, who all along resided with his parents at Cusrow Baug and conveniently shifted in the house of Dinamai couple of years prior to her death, solely for the purpose of ensuring transmission of tenancy rights in his favour, cannot be treated as tenant in respect of the suit premises. If plaintiff is treated as a tenant in respect of the suit premises after Dinamai's death, the entire objective behind granting protection by rent control legislation to a member of family of deceased tenant residing with him would be completely frustrated. Recognising tenancy rights in favour of the plaintiff in the present case would clearly tantamount to ensuring inheritance of tenancy rights as per the wish of Dinamai and plaintiff. Such desire on the part of the duo is clearly borne out by contents of will and codicil, by which Dinamai clearly intended to ensure inheritance of tenancy rights by plaintiff, which is impermissible in law. Even otherwise, the plaintiff himself has pleaded in the plaint that after death of Dinamai he “inherited” the tenancy rights in respect of the suit premises.

32. In my view, plaintiff has thoroughly failed to prove his close relationship with Dinamai or residence in the suit premises for a substantial period of time as a part of family of Dinamai. Plaintiff is therefore, not entitled to be treated as tenant in respect of the suit premises under provision of Section 5(11)(c) of the Bombay Rent Act.

53) The Rent Control legislation seeks to extend special protection from rent escalation and eviction, usually in urban areas included in the Schedule-I and II of the MRC Act. On account of Rent Control legislation, the tenant secures a right to occupy the tenanted premises by paying standard rent and the tenant cannot be evicted unless an eventuality specified under Section 15 of the MRC Act or Section 16 of the MRC Act arises. The legislative intent is to protect right of occupation of tenant from arbitrary and whimsical actions of landlord seeking to evict the tenant at their will. Ordinarily, premises which are let out for residence of a tenant should be vacated once the need of the tenant to reside therein comes to an end. However, with a view to deal with a situation where untimely death of a tenant should not result in eviction of his spouse, children or other family members residing with him such as brothers, sisters, parents etc. legislature has made a provision to recognise right of transmission of tenancy. The objective behind recognising such transmission of tenancy upon death of original tenant is only to ensure that death of the tenant does not result in eviction of his family members residing with him in the tenanted premises. This beneficial provision under Section 7(15)(d) of the MRC Act is not meant to be exercised for the purpose of passing on tenancy rights to persons who are not likely to be inconvenienced on account of eviction as they never resided with the tenant as his family member. If there is no family member available who was residing with the tenant and in the event, if there is no available legal heir, possession of the tenanted premises must be restored to the landlord. Mere absence of legal heir or family member residing with the tenant should not create claim in favour of distant relatives to grab the tenanted premises of the tenant and to deprive the landlord of his own property. If this broad legislative object is borne in mind, the claim of the Plaintiff for transmission of tenancy upon death of the deceased-tenant appears to be totally baseless.

54) The conspectus of the above discussion is that it was necessary for the Plaintiff to produce concrete material to prove that he resided in the suit premises alongwith the deceased-tenant as one single family on account of him not being immediate family member of the deceased-tenant. Though Plaintiff produced couple of documents to prove his residence in the suit premises, I am unable to arrive at a conclusion based on those documents that deceased-tenant and Plaintiff stayed together continuously in the same house as a part of singular family. The test here is whether Plaintiff was to be rendered homeless if landlord was to ask back possession of the suit premises after tenant’s death. There is some material to indicate that the Plaintiff also had another home. There is nothing on record to indicate that the suit premises was the only home for the Plaintiff at the time of tenant’s death. I am therefore unable to uphold Plaintiff’s claim of transmission of tenancy based on the material produced by him. Apart from Plaintiff himself being unsuccessful in producing concrete material in support of his tenancy claim, the oral testimony of Shri. Arvind Kumar infact proves that Plaintiff took shelter in the suit premises few months prior to the tenant’s death and has thereafter staked his claim for transmission of tenancy. The testimony of his son’s father-in-law would clearly show that Plaintiff was also residing at Parel. As per his own admission, he was not in India between 1983 to 1995. I have therefore no hesitation in holding that Plaintiff failed to prove his residence as a member of family of Dr. Upadhyaya at the time of his death. The Trial and the Appellate Courts have rightly rejected the claim of the Plaintiff. In exercise of revisionary jurisdiction, this Court is unable to interfere in the concurrent findings recoded by the Trial and the Appellate Courts as Plaintiff has not been able to point out any perversity or material irregularity in exercising jurisdiction by both the Courts. In this regard, reliance of Mr. Shah on judgments of the Apex Court in Smt. Rajbir Kaur (supra), Hindustan Petroleum Corporation Limited (supra) and Boorugu Mahadev and Sons (supra) is apposite. Since findings of fact recorded by the Trial and the Appellate Courts are supported by the evidence on record, this Court cannot be expected to embark upon independent reassessment of evidence and to substitute the conclusions drawn by both the Courts by its own conclusions. At the instance of the Plaintiff, this Court has undertaken the exercise of sifting through the evidence for the purpose of examining whether there is any perversity in the findings recorded by the Trial and the Appellate Courts. After conduct of such exercise, this Court is unable to locate any patent error in the findings nor any element of perversity.

55) Mr. Shah has made additional submissions and has infact given some suggestions about the course of action to be adopted by the Courts while dealing with lengthy baseless litigations instituted by unauthorised persons, who tend to occupy the tenanted premises for unduly long period of time taking advantage of delay in decision of proceedings. It appears that Defendant No.1-landlord has already instituted an independent suit (R.A.E. Suit No. 623/920 of 2006) for eviction of the Plaintiff as well as of other legal heirs of the deceasedtenant. This Court can only express that since the said suit is pending for since 18 long years, the Small Causes Court shall take steps for expeditious decision of the said suit.

56) I am therefore of the view that the impugned judgments and orders passed by the Trial and the Appellate Courts do not warrant any interference in exercise of revisionary jurisdiction of this Court. The Civil Revision Application is accordingly dismissed. [SANDEEP V. MARNE, J.]