S.M. Daud, J.
1. This petition under Article 227 of the Constitution is directed against a finding in section 41 Presidency Small Cause Courts Act, 1882 (PSCC Act) application which will have the effect of evicting petitioners from flat bearing No. R-17, First Floor, Navroz Baug, Lalbaug, Parel, Bombay.
2. The aforementioned flat belongs to a public trust and was let out to the deceased father of the respondent---who shall hereinafter be referred to as 'Amrolia'. The rent payable by Amrolia was Rs. 25/- per , month and the flat measured about 480 sq. ft. comprising two rooms, a kitchen, toilet and passage etc. Amrolia had inducted his son Jamshed together with that person's wife and two children to stay with him in the flat aforementioned. Later on, relations between the inductor and inductees deteriorated. This led Amrolia to file a section 41 PSCC Act petition against Jamshed. An order of ejectment was passed and this was on 7-2-1972. Petitioner No. 2 is the grand-daughter of Amrolia being the daughter of his daughter and petitioner No. 1 is petitioner No. 2's husband. On 19-2-1972, Amrolia addressed Ex. 2---The English rendition whereof is thus---to the petitioners and petitioner No. 1's mother Ratanmai and the children of the petitioners:---
'After I made my son Jamshed along with his wife and both his sons vacate my above-mentioned house on 7-2-1972, you requested me to let you come and reside in my above house. You are our relatives, Besides I am old and alone in the house. So, for your family's convenience and my convenience. I am willing to keep you in my house, if you agree to my below mentioned conditions. You are to serve me as long as I live. After my death you may peacefully use the entire house except my personal furniture. Nobody shall object to your doing so.
1. As to the premises of the house, the house is not meant to be given against paged (premium ), but about Rs. 1,800/- were spent by way of Court costs for evicting my son Jamshed, you are to pay the same.
2. You may use such part of the house as you may wish in any way you like. As long as I live I shall use the room in which I am residing.
3. The party using the house is to carry out the cleaning and dusting and white-washing, get a toilet-seat constructed in the latrine and get lights installed according to wish and get the necessary things made.
4. The user is to pay the rent of the tenement, the bill in respect of electric lights, get the house dusted and cleaned and pay the housemaid's wages.
5. Rs. 25 are to be paid to me every month for pocket expenses.
6. Tea in the morning and evening, breakfast in the morning and meals in the noon and at night are to be served to me from the food that will be cooked.
7. In case of my illness, you are to meet the expenses of the medical treatment, if necessary.
8. You are to get the Jasan ( religious ceremony) performed after dusting and cleaning the room, which will be a good deed on your part.
I further declare in writing that I entrust my son Framrose with the duty of carrying out my obsequies after my death; he shall perform the same.'
A post-script was added to the document prohibiting the persons to whom the letter was addressed from ever allowing petitioner No. 2's mother and Amrolia's daughter, to set foot into the flat. Very soon, relations between petitioners and Amrolia deteriorated. He filed an application under section 41 of the PSCC Act contending that the permission where under petitioners had been brought into the flat, had been revoked and that despite the revocation, petitioners were in wrongful occupation. The stand taken by the petitioners was that they had been inducted as licensees for consideration and that with the passing of Maharashtra Act 17 of 1973 where under section 15-A had been incorporated into the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 ('Rent Act' or 'Act'---for short), their possession had ripened into that of protected licensees. Therefore, they could not be ejected under section 41 of the PSCC Act. In fact, the application itself was not tenable. During the pendency of the application, Amrolia expired on 28-7-1976. On 24-7-1975, he had executed a request appointing the respondent as the executor of his estate. On the strength of that bequest, the respondent was allowed to be substituted in place of Amrolia and to continue the ejectment application instituted by that person. The Judge before whom the application came up, held that petitioners were protected licensees who could not be evicted by recourse to section 41 of the PSCC Act. It was in appeal to a Bench of the Small Causes Court that the petitioners met with a reverse. The Bench held that they were members of a family residing together with Amrolia, and therefore, could not be deemed to be licensees under section 5(4-A), of the Rent Act. Therefore, there was no question of their getting the benefit of section 15-A of that Act. This reversal has led the petitioners to this Court.
3. Having regard to the submissions made before me, the points for determination are :---
(1) Whether petitioners had become licensees with the protection conferred vide section 15-A of the Rent Act?
(2) What order?
My findings, for reasons given below, are :--
(1) Yes.
(2) petition allowed as per order.
R E A S O N S
4. Before proceeding to an analysis of the respective factors, I shall give a brief summary of the reasons that led the Bench to reverse the trial Judge. According to the Bench the petitioners had come to the flat upon a request made by them, to look after Amrolia, because they were his relatives and no particular portions of the flat had been placed in their exclusive occupation or possession. With respect to the learned members who constituted the Bench, the very first mistake committed by them was to assume that petitioners and Amrolia could be described as 'members of a family living or residing together'. Section 5(4-A), to the extent relevant for our purposes, reads thus:
' 'licensee' in respect of any premises or any part thereof, means the person who is in occupation of the premises or such part, as the case may be, under a subsisting agreement for licence given for a licence fee or charge.....but does not include.....a member of a family residing together.'
Could the petitioners be described as 'members of Amrolia's family' After this question is answered, it will next have to be considered, whether they were residing together as members of a family The expression 'members of a family' would have different meanings, having regard to the context in which the same occurs. In the instant case let us first see the exact relationship between Amrolia and the petitioners. There is no evidence to show that petitioner No. 2's mother-at least after her marriage-ever lived with Amrolia. In fact, Ex. 2 goes to show that relations between petitioner No. 2's mother and Amrolia, were anything but cordial. A post-script appended to Ex. 2 contained a specific prohibition enjoining petitioners from ever allowing petitioner No. 2's mother to set foot into the premises. It is not anyone's case that despite the severance of relations between Amrolia and his daughter-the mother of the second petitioner, he looked upon petitioner No. 2 with any special affection or kindness. Neither Ex. 2 nor the oral evidence shows that petitioner No. 2 before her marriage to petitioner No. 1, was living together with Amrolia. The marriage between petitioners took place in about 1965. At the time of his marriage, petitioner No. 1 was staying in a room at Navroz Baug. After the marriage, he together with his wife, shifted to a block in Jogeshwari (West). In that block, the couple and possibly their children, lived together till about 1972. Therefore, Amrolia could not in any sense be described as a person in loco parentis to petitioner No. 2. We now turn to the situation prior to the coming in of petitioners. Jamshed, though a son of Amrolia, had become insufferable to his father. Old and infirm as the father was, he had mind of his own. On the first sign of rebellion on the part of jamshed and his family, Amrolia took recourse to law. He instituted an ejectment petition, and, out went Jamshed together with his wife and children. This fact is recited as a preface to Ex. 2. It would appear that even while the proceeding against Jamshed was in progress, petitioners had approached Amrolia. There is no evidence about Jamshed having had to execute any document similar to Ex. 2 before coming into the premises. According to the Bench, the other features of Ex. 2 irresistibly point to petitioners having come in as members of Amrolia's family. The very fact that Ex. 2 was got written, indicates the contrary. In Ex. 2, petitioners are not described as members of Amrolia's family. He takes care to describe them as 'our relatives'. Next, he uses the word 'family' in relation to the petitioners and their children and differentiates between that family and himself when expressing himself thus-
'so for your family's convenience and my convenience.'
Next, it is not that the petitioners are to live free of cost. Certain obligations are imposed upon them and these are physical, moral and material in content. Physically, petitioners are enjoined-'to serve me as long as I live'. Materially, the petitioners are to reimburse Amrolia for Rs. 1,800/- spent by him in the litigation to evict Jamshed. Next, they are to pay the rent payable on the premises, the charges for the consumption of electricity and the wages of the house-maid. Additionally, Amrolia is to get Rs. 25/- per month towards pocket expenses. This is besides the liability to supply him tea, breakfast, lunch and dinner that the petitioners are to cook or get cooked for the consumption of themselves and their children. In case, Amrolia fill ill, the entire expense for the treatment was to be borne by the petitioners. Alterations, cleaning, fitting of bulbs etc. was to be attended to by the petitioners. The moral obligation was for the performance of Jasan every time the room was dusted and cleaned. Now, this room can only have a reference to Clause 2 which reads thus:--
'You may use such part of the house as you may wish in any way you like. As long as I live I shall use the room in which I am residing.'
The Jasan was thus to be performed after the dusting of the room which was to be used by Amrolia. In the light of this, it is difficult to understand how Ex. 2 can be described as a mere house keeping arrangement as was sought to be done, by Counsel representing the respondent. The arrangement set out in Ex. 2 has to be construed in the natural and normal way. First, we have to get rid of the notion that a licence can be created only by payment of fancy or fabulous premiums and / or fees chargeable towards a licence. Incidentally, the obligations laid down in Ex. 2 upon the petitioners cannot be described as niggardly even if reckoned in terms of money. The obligations would work out to a tidy sum and recurring at that, for quite some time to come. Section 5(4-A), speaks of the licensee being under an obligation to pay a 'fee or charge'. It does not say that the fee or charge should be adequate, substantial, fancy or fabulous or anything of that nature. It may consist of as less as direct payment of the rent payable by the tenant to the landlord, with perhaps a little more like the electricity and other service charges. Counsel for the respondent pointed to certain features of Ex. 2 which indicated the absence of a licence. First it is submitted that in the year 1972 a statutory tenant could not create a licence or a sub-tenancy. That at least was the position in the law until then expounded. But despite this prohibition, tenants went on creating lesser interests, and they were statutory tenants. It was precisely for that reason that the legislature had to bring in section 15-A of the Act through Maharashtra Act 17 of 1973. Perhaps, Ex. 2 can be read as an attempt on the part of Amrolia to throw a camouflage round the licence transaction so as to keep at bay, not only the landlord but also the petitioners. It was next submitted that Ex. 2 nowhere uses the word 'leave and licence'. But this is precisely what was forbidden according to law than enforced. With the law being what the law being what it was, persons contravening the law would take care that they avoided use of expressions which would place them at a disadvantage vis-a-vis the lessor. Thirdly, it was argued that petitioners could not have been inducted as licensees inasmuch as they were coming in place of Jamshed and his family who were mere members of Amrolia's family. Assuming that Jamshed, his wife and children could be described as members of Amrolia's family, it does not follow that whoever succeeded them by being inducted into the flat in dispute would be precisely in that position vis-a-vis Amrolia which was that of those who had been sent out in pursuance of the order passed upon a petition for ejectment under section 41 of the PSCC Act. The basic reason why petitioners could not step into the status of Jamshed was that they were not and could never be described as member of Amrolia's family, though Jamshed at one point of his life was a member of the family which had its head his father Amrolia. Another pointer to petitioners being not licensees, is, the emphasis in the document about their being relations of Amrolia. But the fact that a person is relation of the tenant, does not mean that he cannot be a licensee. In fact, the licence may be explained as due to the ties of blood. Ex. 2 reeks with the transaction being the result of haggling and a hard bargain having being driven by Amrolia. It has been said that the petitioners were not in exclusive possession or occupation of any part of the flat. This submission has been accepted by the Appellate Court. With great respect, it is a total mis-construction of Clause 2 of Ex. 2 which is worded thus:--
'You may use such part of the house as you may wish in any way you like. As long as I live I shall use the room in which I am residing.'
The clear meaning of these two sentences is that the licensor had relinquished the entire flat to the petitioners, retaining for himself only one room. Therefore, the greater part of the flat was placed at the disposal of the petitioners who were given the permission to use that portion as they wished and in any way they liked. In the face of these words to say that exclusive possession of no particular portion had been given to the petitioners, is surprising in fact, it was Amrolia who retained no more than the use of one solitary room. The very fact that Ex. 2 had to be got executed speaks volumes of the shrewd sense that inspired Amrolia. He did not believe in kinship. Considerations like blood ties did not inspire much confidence in him. Perhaps, he was right seeing that respondent had gone to live elsewhere and Jamshed had bared his fangs when living with his father. It was suggested that Ex. 2. was taken by way of abundant caution, having regard to the sufferings of Amrolia in relation to Jamshed. Perhaps, that may be true. Even so, that would not take the arrangement outside the purview of section 15-A of the Act. The premises placed in the occupation or at the disposal of the petitioners were more than a room, they were to pay a fee or charge for the use of the premises and on the date Maharashtra Act 17 of 1973 came into operation i.e. 1-2-1973, the grant made upto them vide Ex. 2 was subsisting. Therefore, all the conditions requisite for the application of section 15-A of the Act were attracted. At one stage, the law prevailing was that a statutory tenant could not create a licence. Very recently this view of Full Bench of this Court has been over-ruled by the Supreme Court in Chandavarker's case. Counsel for respondent submitted that the Appellate Court cannot be reversed under Article 227 of the Constitution inasmuch as their verdict rests upon an appraisal of facts. With respect, it is not possible to agree with this contention. The only piece of evidence that ad to be taken into consideration to ascertain the true nature of the transaction between Amrolia and the petitioners, was Ex. 2. Therefore, the question that arises in this petition is one of law viz, the relationship springing out of the terms of Ex. 2. Once that relationship is ascertained, what has to be applied to is the law. That is precisely where the Appellate Court erred. Ex. 2 in terms, spelt out a licence and the conditions of section 15-A having been attracted, it should have been held that the application under section 41 of the PSCC Act was not maintainable. The trial Judge could not have been reversed.
5. The result of the foregoing discussion is that the petition has to be allowed. The order passed by the Court of appeal will have to be set aside and that of the trail Judge restored. Having regard to the complex questions that arose for determination, parties will be left to bear their own costs. Hence the order.
O R D E R
Petition allowed, Rule made absolute, Costs throughout as incurred.