B.H. Marlapalle, J.
1. Shri Kevalchand Nemchand Mehta and his wife Smt. Kamlaben constructed the multi storeyed building by name 'Keval Mahal' on Marine Drive, Mumbai consisting of 11 flats somewhere in the year 1940. At that time the couple had one son and five unmarried daughters. In 1945 second son was born, in 1946 third son was born and in 1954 three daughters and eldest son Dinesh were married. In the year 1942 Flat No. 9A located on the 4th floor was given on rent to one Mr. M.C. Davar who was occupying the same along with his wife and the couple had no issues. With the arrival of children and grand children, the members of the family had increased and, therefore, the landlords gave a notice of terminating the tenancy in the year 1965. Finally, RAE Suit No. 446/2650 of 1971 was filed on or about 28/5/1971 under the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Act, 1978 (for short the Bombay Rent Act) seeking possession of the suit flat on the grounds of reasonable and bona fide requirements and for other reasons. Before the suit was filed Mrs.Davar had expired and during the pendency of the suit Mr. Davar died on 7/10/1975 leaving behind him a Will with three executors surviving, namely, Fali Jamshed Cursetji Davar, Smt. Pervis A. Mazgaonwala and Smt. Mani Framji Mody and the plaint was amended on 17/3/1976 so as to bring these three executors of the Will on record in place of Mr.M.C. Davar who had filed his Written Statement before he died on 7/10/1975. Two of the LRs., namely, Fali Jamshed Cursetji Davar and Smt. Pervis A. Mazgaonwala did not file their Written Statement so as to contest the suit. Whereas, Smt. Mani Framji Mody filed her Written Statement on 4/12/1976 contending that she was the cousin of the original defendant Mr.M.C. Davar and was residing with him before his death in the suit premises and, therefore, she was entitled to claim protection under the Bombay Rent Act.
2. Smt.Mody made an application to the trial court on 26/2/1980 for framing the following issue as the preliminary issue:
Are the defendants tenants of the plaintiffs in respect of the suit premises under the Bombay Rent Act?
Said issue was framed by the trial court by its order dated 26/3/1980 and after the evidence of the plaintiffs and Smt.Mody was recorded on 30/7/1980, the trial court by its order dated 29/10/1980 answered the issue against Smt.Mody and to the effect that she was not the tenant of the suit premises under the Bombay Rent Act. Appeal No. 632 of 1980 was filed against the said order before the Lower Appellate Court and on 6/4/1981 two Judges of the Appeal Bench recorded dissenting judgments. The landlords, therefore, filed Writ Petition No. 1879 of 1981 in this Court challenging the view taken by the Appellate Bench of the Small Causes Court in dissenting judgments. On 1/12/1981 this Court set aside the dissenting orders of the Appellate Bench by allowing the writ petition and further directed the trial court to proceed with the hearing of the suit. The defendant Smt. Mody filed Writ Petition No. 492 of against the trial court's order dated 29/10/1980 holding that she was not a tenant under the Bombay Rent Act of the suit premises. However, the said writ petition came to be rejected as withdrawn on 25/2/1982.
3. The trial court framed the following issues:
(a) Do Plaintiffs prove that they require the suit premises reasonably and bona fide for their own use and occupation?
(b) Will greater hardship be caused to the defendants by passing a decree in eviction against them than the one which would be caused to the plaintiffs by refusing to pass such a decree?
(c) Has this Court jurisdiction to entertain and try this suit?
(d) Are the plaintiffs entitled to possession sought for?
(e) What decree and what order?
On assessment of the evidence, the trial court held that the plaintiffs successfully proved that the suit premises were reasonably and bona fide required for their own use and occupation, it had the jurisdiction to entertain and try the suit, plaintiffs were entitled for the possession of the suit flat and in any case the issue of greater hardship to the defendants did not survive. Consequently, the suit was decreed with costs and the defendants were directed to quit, vacate and handover peaceful and vacant possession of the suit premises on or after 31/7/1986. The defendants, namely, Smt. Mody challenged the said decree by filing Appeal No. 433 of and during the pendency of the appeal she died. Mr.Fali Jamshed Cursetji Davar who was impleaded as defendant No. A-1 in the suit had died during the pendency of the suit and he was residing in the very same building i.e. Keval Mahal. However, he was not examined as a witness by Smt. Mody in support of her case that she was staying with the original tenant Mr. Davar during his life time and, therefore, she was entitled to claim tenancy and oppose the suit for eviction in respect of the suit flat. On Mrs. Mody's demise during the pendency of the appeal, her two sons by name Jehangir Mody and Homi Mody and daughter Mrs.Mehru F. Antia were brought on record. The sons did not contest the appeal but the daughter contested. The Appellate Court (DB of the Small Causes Court) allowed the appeal vide its Judgment and Order dated 18/8/1988 and the decree of eviction passed by the trial court on 18/6/1986 was set aside. The original appellant Smt. Mani Mody and consequently her daughter Mrs. Mehru F. Antia were held to be tenants of the suit premises by dismissing the landlords' ejectment Suit No. 4462/2650 of 1971. The said order of the Lower Appellate Court has been challenged in this petition filed under Article 227 of the Constitution by the landlords i.e. the LRs of the original plaintiffs.
4. The Lower Appellate Court framed the following three issues and recorded the respective findings :(
a) Whether the original appellant Mani Framji Mody was a tenant of the suit premises and consequently whether the present appellants are entitled to claim the tenancy right through the original appellant? -Yes
(b) Whether the respondents/landlords proved that they require the suit premises reasonably and bona fide for their own use and occupation? -No
(c) To whom greater hardship will be caused by passing a decree in eviction than by refusing to pass eviction decree? -To the Appellant
5. Writ Petition No. 1879 of 1981 was allowed by this Court by setting aside the separate orders passed by the two Judges of the Appellate Bench solely on the ground that Appeal No. 632 of 1980 filed against the order dated 29/10/1980 deciding the preliminary issue was not maintainable. At the same time, it was observed that the defendant Smt. Mody was free to raise such questions as she deemed fit before the court of first instance before it would pass a decree for eviction. Writ Petition No. 492 of 1982 came to be filed by the defendant Smt.Mody and it was rejected by the following order:
Reject. Mr.Setalvad requests to withdraw the petition. Allowed to be withdrawn.
It is thus clear that the view taken by the trial court on the preliminary issue that Smt.Mody or her LRs i.e. sons and daughter were not the tenants of the plaintiffs in respect of the suit premises under the Bombay Rent Act, had reached finality and the trial court was right in proceeding to consider the suit as per the issues framed and as reproduced hereinabove. Surprisingly, the Lower Appellate Court in the impugned judgment found fault with the trial court in holding that the preliminary issue was finally decided against Smt.Mody. The Lower Appellate Court reopened the issue of the defendant being a tenant under Section 5(11)(c)(i) of the Bombay Rent Act. It was permissible for the Lower Appellate court to do this provided the defendant, after dismissal of her Writ Petition No. 492 of 1982, had adduced additional evidence to prove her contentions that she was leaving in the suit flat along with late Shri M.C. Davar as his family member. Clause (c)(i) of Section 5(11) of the Bombay Rent Act reads as under:
tenant' means any person by whom or on whose account rent is payable for any premises and includes( c)(i) in relation to any premises let for residence, when the tenant dies, whether the death has occurred before or after the commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Act, 1978, (Mah.XXII of 1978) any member of the tenant's family residing 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 default of agreement of the Court;
6. Smt.Mody could claim to be a tenant as defined above either on the ground that she was a family member of the deceased tenant Shri M.C. Davar and residing with him at the time of his death in the suit premises or that she was the heir of the deceased tenant. As noted earlier, the defendant nos.A1 to A3 were brought on record on the demise of Shri M.C. Davar by the plaintiffs as the executors of the Will [Exh.8(a)] and the said Will does not name Smt. Mody as the heir of Shri M.C. Davar but the Will stated that the tenancy was bequeathed to her and her daughter. Let us, therefore, consider the evidence in support of the contention that she was staying with the deceased tenant during his life time as his family member. She was examined on two occasions, namely, for deciding the preliminary issue as well as after her writ petition was dismissed by this Court. She also examined Mr.N.E. Shete, the Rationing Inspector, whereas on behalf of the plaintiffs depositions of plaintiff No. 2 were recorded, in addition to the depositions of Pradeep Kevalchand Mehta, the son of the plaintiffs. In the Written Statement filed by the original tenant late Shri M.C. Davar, it was stated that he was living in the suit premises with the members of his family since January 1942 and not alone. In her Written Statement the added defendant claimed that she was a cousin sister of the original defendant and she was residing with him for many years before his death in the suit premises and also at the time of his death and continued to reside in the suit premises after his death. In her cross-examination recorded on 12/8/1980 she had admitted that the original defendant was staying in the suit premises along with his servant Sebastine Barretto. She stated that the original defendant Shri M.C. Davar had lost his wife about 25 years ago and the couple had no children. Shri Davar had a brother by name Jamshed and sister by name Jajji Nussarwanji Battiwala. Brother Jamshed predeceased him and Jamshed had a son by name Fali Jamshedji and two daughters by name Dhan and Franjy. She further stated that Franjy is still alive and Dhan died recently. Whereas the brother's son predeceased Davar. His sister Jijji died after him leaving behind two daughters Mehra Bellimoria and Amy Katmaster and sons Jahangir, Menu and Daddi.
In law these are the family members of the original tenant Mr. M.C. Davar. Mrs. Mody could not be a family member of Davar as she was not the sister by full-blood and she was only a cousin. Admittedly, the brothers' and sisters' children and grand children did not stay with Mr. Davar. Mrs.Mody, therefore, could not be called as member of Davar's family who stayed with him during his life time in the suit house so as to support her contentions that she was staying in the suit house as the member of his family.
She also admitted that she was married to Framroz @ Framji Mevaranji Mody and he was staying in the Fort area prior to his marriage. After the marriage the couple shifted to Parkar Nivas as has been admitted by her in the cross-examination. Out of the wedlock she begot two sons and a daughter and son Homi is residing in Parkar Nivas, while the other son Jahangir is residing in Sunshine Building at Churchgate, whereas daughter Mehru is residing with her husband at Daulatram Mansion, Colaba. She also admitted that her husband died in Parkar Nivas. She also admitted that she had voted for the Assembly and Parliament elections and obviously in the certified extract of the Municipal electoral rolls for the period from December 1960 to December 1964, December 1967 to December 1972 and until December, 1977 her name was not shown in the electoral rolls with the address of the suit flat. However, in the subsequent depositions recorded on 27/1/1986 she changed her statement and stated that her daughter was residing with her in the suit flat since 1973-74 as her house fell for repairs. She also admitted that her husband died in the year 1973 of heart-attack and she had no reasons to reside separately from him. She also admitted that the house at Colaba was of her husband and she was not driven out of the same house by her husband. She further admitted that her daughter was not evicted by the landlords from her premises at Colaba.
7. Ms. Pervez Mazgaonwala was examined before the trial court on 19/2/1986. She stated that the original tenant had executed a Will and named four executors for the said i.e. Mrs. Sidhwa, Mr. Fali Davar, Mrs. Mani Mody and Mrs. Mazgaonwala. The Will has been probated and Mrs. Mani Mody is the probing executor. Two other witnesses were examined in support of the defendant's contention that she was staying in the suit house prior to the demise of Davar i.e. Framroze Gorimar and Nargish Dastur. None of these three witnesses could be accepted as supporting her case that she was staying in the suit flat as a member of Mr. M.C. Davar's family.
8. The other documentary proof that she tried to place on record is Ration Card in support of her contention that she was staying in the suit house and the evidence of N.E. Shete, the Rationing Inspector clearly went to show that the name of the defendant No. 3 was added in the said ration card at Exh.2 sometimes in 1975-76 by the declaration at Exh.6 signed purportedly on 13/3/1975 by Shri Davar and originally the ration card had only two names i.e. Davar and his servant Sebastine Barretto. She had also brought on record some letters at Exh. 4 Colly. she had received at the suit address. These letters could not prove that she was staying in the suit house as a member of Davar's family when she had her own family which did not include Mr.Davar. It is also pertinent to note that if the added defendant was staying with Mr. Davar in the suit house and in any case she cannot fall within the ambit of the family members of Davar, it was necessary for her to get impleaded in the eviction suit filed by the plaintiffs even before Mr.Davar died, so as to exercise her right as a tenant in the suit house along with Mr. Davar.
She did not do so and on the contrary she was brought on record by the plaintiffs along with other executors and not as a successor of Mr.Davar. The additional evidence brought before the trial court by the defendant after her Writ Petition No. 492 of 1982 was dismissed by this Court in terms of her oral depositions did not place any additional material before the trial court in support of her contentions that she was a tenant within the meaning of Section 5(11)(c)(i) as being a member of Davar's family and the findings recorded by the trial court on the preliminary point had thus attained finality. On the contrary, the oral depositions of Mrs.Mody recorded on 27/1/1986 before the trial court destroyed her case that she was staying with Mr.Davar in the suit house. In these depositions she also fabricated a story that her daughter was residing with her since 1973-74 which was not her case in the Written Statement. This statement was made by way of an after thought so as to create tenancy in favour of the daughter in future, but the daughter was not examined and the two witnesses examined were not reliable in as much as they had claimed that they had seen deceased Davar and added defendant in the suit premises. These oral statements cannot be relied upon, if regards be had to the contentions raised by deceased Davar in his Written Statement and the basis of the claim made by the added defendant in her Written Statement before the trial court.
9. The Will at Exh. 8(a) claimed to bequeath the tenancy rights in favour of Mrs.Mody and her daughter Mrs. Mehru F. Antia. The trial Court has held and rightly so, that in law, the tenancy rights cannot be bequeathed by way of a Will and, therefore, the claim based on the said document for tenancy rights does not arise. As noted earlier, the plea of Mrs.Mody has, therefore, to be considered strictly within the ambit of Clause (c)(i) of Section 5(11) of the Bombay Rent Act, namely, her claim has to be considered as a member of the family of Mr.Davar, residing with him, or, in the absence of such a member, any heir of the deceased tenant, as may be decided in default of agreement by the court. It was never the case of Mrs. Mody that she is the heir of the deceased tenant and all along her claim was solely based on the contentions that she resided in the suit house along with late Shri Davar as a member of his family. In law, she could not be held to be a member of Mr.Davar's family and, in fact, she could not prove that she stayed with him during his life time as a member of his family. On the contrary, his servant Sebastine Barretto stayed with him as a member of his family, but not Mrs. Mody. The findings recorded by the lower Appellate Court on the basis of the ration card are unsustainable. The amendment in the ration card adding the name of Mrs.Mody is based on the declaration at Exh.6 and claimed to have been signed by late Shri Davar on 13/3/1975. This document could not be proved to have been signed by Mr.Davar during his life time, as the Rationing Inspector was not aware whether it was signed by Mr. Davar. On the other hand the overwhelming documentary evidence of electoral roll clearly went to prove that till Mrs. Mody was staying with her husband in Parkar Nivas and in any case she was not able to prove that she was staying with late Mr. Davar as a member of his family. The lower Appellate Court fell in gross errors in answering the issue, whether Mrs. Mody was staying with late Shri Davar as a member of his family. Staying with the deceased for few days or few hours does not by any stretch of imagination amount to staying with the deceased as a member of his family. The letters at Exh.4 Colly. and about 21 of them as well as the bank pass-book cannot be the conclusive proof to show that Mrs. Mody was staying with late Mr.Davar as a member of his family in the suit house. Address for receiving letters is also furnished for the sake of convenience which cannot be denied and, therefore, it would be unsafe to accept such evidence to defeat the suit for ejectment of the original tenant. In any case, the findings on the preliminary point were concluded and though Mrs. Mody adduced oral evidence after her petition was rejected by this Court, the said evidence did not prove that she was staying with the deceased tenant as a member of his family during his life time. The trial court rightly considered the oral and documentary evidence adduced before it and held against the added defendant i.e. Mrs. Mody.
10. It is most surprising that on the demise of Mrs. Mody, her daughter Mrs.Mehru F. Antia came on record as appellant before the lower Appellate Court and claimed to be a tenant of the suit premises. Mrs. Mody in her Written Statement before the trial court filed on 4/12/1976 did not whisper, leave alone stating on oath that her daughter was staying with her in the suit premises as a member of late Mr. Davar's family. No doubt, Mrs. Mody as well as her daughter are the beneficiaries under the Will at Exh. 8(a). There are many more persons who are the beneficiaries of the said Will and all of them could not be treated to be the heirs of late Mr. Davar. Mrs. Mehru Antia cannot claim to be the tenant of the suit premises either as a member of the family of late Mr.Davar or his heir. None of the children and grand children of late Mr. Davar's brothers and sisters have claimed the tenancy rights in respect of the suit house. In fact, the appeal ought to have been dismissed on the demise of Mrs. Mody by the lower Appellate Court. The mere statement made by Mrs. Mody, while in the witness box, that her daughter staying with her in the suit house since 1973-74, could not be, per se, sufficient to base her claim of tenancy over the suit flat.
11. Now coming to the issue of comparative hardship, in fact, the said question does not arise as at present and/or it did not arise on the demise of Mrs.Mody. The said issue got determined on the demise of Mrs.Mody and it was not permissible in law for the lower Appellate Court to consider the said issue by accepting Mrs. Mehru Antia as the tenant in place of her mother. Thus, the issue No. (c) framed by the lower Appellate Court cannot be gone into and the findings on the said issue recorded by it are perverse as well as without application of mind to the facts on record. These findings have to be discarded as the issue being non-existent.
12. Coming to the issue of the landlords' requirements of the suit flat for reasonable and bonafide requirements, even if it is accepted that the family was occupying both the flats on the 5th floor consisting of three bed rooms, one sitting room, one God's room, one store room and one kitchen, it is not for the present respondents to decide what could be the adequate requirements for the landlords' family. The convenience of the landlords is not an issue which needs to be dictated by the respondents. Admittedly, the family of the landlords consists of 14 members and servants. If the family finds it more convenient that one more flat for their personal use and occupation is required, it is their decision which cannot be to the subjective satisfaction of the respondents. If the daughters are married that does not mean, per se, that family's requirements for the suit premises ceased to exist. The landlords were therefore, right in contending that on the demise of Mrs. Mody the issue of hardship got extinguished and in any case the landlords proved their case that they required the suit flat for reasonable and bonafide requirements of the family, is required to be upheld and the view taken by the lower Appellate Court in that regard is patently erroneous. The requirements of the landlords could not be called as dishonest or motivated. Looking at the family size, if the landlords felt that one more flat in the same building was required for the family's occupation and use, the said expectation cannot be a subject matter to be decided by the respondents' choice. The present respondents have put up a brazenly false claim before the lower Appellate Court and in her oral depositions Mrs. Mody had clearly stated that her daughter was staying with her husband in a separate house. It is only by one statement in the second depositions, Mrs.Mody, purely by way of an after thought, came out with a bald statement that her daughter was staying with her in the suit house, when such a contention was never taken in the Written Statement filed by her or in the petition filed before this Court, as is clear from the record. This is yet another case where greed breeds litigation and piling of cases before the court.
13. Thus, on all counts the trial court's decree for eviction is required to be upheld by setting aside the impugned Judgment and Order of the lower Appellate Court.
14. In the premises, this petition succeeds and the same is hereby allowed. The impugned Judgement and Order of the lower Appellate Court in Appeal No. 433 of 1986 is hereby quashed and set aside. Consequently, Appeal No. 433 of 1986 stands dismissed and the decree of eviction passed by the trial Court in RAE Suit No. 446/2650 of 1971 is hereby confirmed.
15. Mr. Dalvi, the learned Counsel for the tenants-respondents submitted an oral application for stay to the execution of this order for a period of eight weeks. The application is granted and the eviction decree will not be executed for a period of six weeks from today subject to undertaking being furnished on usual terms within one week from today to the Registry of this Court.