Sadbuddhi Brahmesh Wagh, Vs. Sheela Mahabaleshwar Wagh (Since Deceased Ganesh Mahabaleshwar Wagh and Shilpa Wagh W/O Sharad Shrikhande), - Court Judgment

Excerpt:
(i) arbitration - errors in award - sections 15 (b) and 30 of arbitration act, 1940 - exercising its powers under section 15 (b) court cannot substitute its own order for award of arbitrator - yet obvious errors can be corrected by court provided it does not affect decision given by arbitrator. (ii) joint family property - article 110 of limitation act, 1963 - heir excluded from joint family property - suit filed to enforce his right on his share - such suit to be filed within 12 years under article 110 when such exclusion becomes known to plaintiff. (iii) landlord - section 28 of bombay rents, hotel and lodging house rates (control) act, 1947 - in order that claim should arise under provisions of bombay rent act it is not necessary that claim should be between landlord and tenant -.....h.l. gokhale, j.1. this appeal under letters patent by the original petitioners seeks to challenge the order and judgment dated 15th october 1997 passed by a single judge in a petition under section 30 of the arbitration act, 1940. the petitioners and the respondents are the heirs of one shri vinayakrao venkatesh wagh who died intestate on 11th november 1958. one of the sons of this shri vinayakrao viz. mahabaleshwar (since deceased and the predecessor-in-title of respondents nos. 1a to 1c herein) filed suit no. 2794 of 1990 for administration of the estate of late shri vinayakrao, wherein all others in the present proceedings *or their predecessors-in-title) being other heirs were joined as defendants. consent terms were arrived at in that suit and all the disputes in the said suit.....

Judgment:

H.L. Gokhale, J.

1. This Appeal under Letters Patent by the original Petitioners seeks to challenge the order and judgment dated 15th October 1997 passed by a Single Judge in a petition under Section 30 of the Arbitration Act, 1940. The Petitioners and the Respondents are the heirs of one Shri Vinayakrao Venkatesh Wagh who died intestate on 11th November 1958. One of the sons of this Shri Vinayakrao viz. Mahabaleshwar (since deceased and the predecessor-in-title of Respondents Nos. 1A to 1C herein) filed Suit No. 2794 of 1990 for administration of the estate of late Shri Vinayakrao, wherein all others in the present proceedings *or their predecessors-in-title) being other heirs were joined as Defendants. Consent terms were arrived at in that suit and all the disputes in the said suit between the parties were referred to a sole arbitrator by an order in terms of consent terms in that suit passed on 15th March 1991. The arbitrator gave his award on 16th June 1997. The award of the learned arbitrator through the arbitration petition, which came to be dismissed by the learned Single Judge by the impugned order, and hence, this Appeal.

2. Principally three contentions have been raised in this appeal and which are as follows:-

(A) The learned Single Judge erred in ignoring that the claim was barred by limitation.

(B) The learned Single Judge erred in ignoring that there was an error apparent on the face of the award in two of the directions given by the learned arbitrator under which he had directed some of the Appellants to pay certain amounts personally (and not from the share of the estate of the deceased coming to their hands).

(C) The learned Single Judge erred in ignoring that the award was in excess of jurisdiction or authority of the arbitrator inasmuch as he has exercised powers which were exclusively available to the Court of Small Causes under the Bombay Rent Act and which jurisdiction he did not have.

3. Brief facts leading to this controversy are as follows:-

A. Heirs and legal representatives of the deceased

The above-referred Shri Vinayakrao died intestate on 11th November 1958 leaving behind him as his only heirs and legal representatives the following persons:-

5 sons:-

1. Nilkanth - Died on 9.1.1978. No issues. Not a party to suit.

2. Raghavendra - Died on 12.3.1996. Heirs are Respondent Nos. 2 to 5.

3. Brahmesh - Died on 14.4.1993. Heirs are the Appellants Nos. 1 to 6.

4. Mahabaleshwar - Died 1.2.2000. Heirs are Respondent Nos. 1A to 1C. His wife Sheela-Respondent No. 1A died on 29.1.2001.

5. Vyankatesh - Appellant No. 7.

5 daughters:-

1. Kamlabai Tinaikar - Died on 9.12.2000. Heirs are Respondent Nos. 7A to 7J.

2. Sushilabai J. Karande - Died on 24.5.1994. Heir is Respondent No. 6.

3. Bhimabai V. Wagh - Died on 18.10.1996. Not a party to the suit.

4. Radhika M. Dhume - Respondent No. 8.

5. Mangla V. Wagh - Died on 6.9.2000. Original Respondent No. 9. Hence deleted.

B. Properties left behind by the deceased:

Late Shri Vinayakrao was a reputed Sculptor of Mumbai and had set up a studio known as 'Wagh's Fine Art Studio' (for short, 'WFAS') at Chowpatty, Girgaum, Mumbai. He left behind various properties. The properties, for the administration of which the above-referred Suit was filed by one of his sons Shri Mahabaleshwar Wagh, were as follows:-

(1) The business of WFAS, which was being carried on in premises admeasuring about 800 square feet and consisting of two shop-rooms and two attached rooms situated at Bench View, N.A. Purandare Marg, Chowpatty, Girgaum, Mumbai 400007.

(2) Gala No. 19 (since numbered as a Gala No. 11) situated at Charring Cross Compound, 164 Senapati Bapat Marg, Matunga, Mumbai 400 016.

(3) One room at Govalia Tank behind Mahavir Jain Vidyalaya, Mumbai -

(These properties were taken as tenancies. The rent receipts of these three premises were in the name of WFAS).

(4) A residential flat admeasuring about 1200 square feet on the Ground Floor of the above-referred Beach View building at Chowpatty, the rent receipt of which stood in the name of Late Shri Vinayakrao Venkatesh Wagh.

C. Why this dispute amongst the heirs:

At the time of filing of the above Suit, all these properties (except No. 2 above) were and continue to be in possession of Brahmesh and/or his heirs. Although all these premises are tenanted premises, due to their very location they are quite valuable and hence the dispute amongst the heirs.

D. It was the case of the above-referred Mahabaleshwar Wagh that though Late Shri Vinayakrao started this studio sometimes around 1914 as the sole proprietor thereof, subsequently two of his sons by name Brahmesh (predecessor-in-tile of the Appellants) and Mahabaleshwar himself obtained the Diploma in Arts (Sculpture and Painting respectively) and joined in the profession of their father and started assisting him in that business. Late Shri Vinayakrao obtained different tenancies from time to time for the business of WFAS and the above-referred residential flat was taken in 1940 where the family stayed. Sometimes around 1950-51, Vinayakrao began to fail in health on account of age. Hence, on or about 26th November 1955, Shri Vinayakrao and these two sons named Mahabaleshwar and Brahmesh signed and executed a document, whereby Shri Vinayakrao sought to make a provision for each of his sons and daughters and also to constitute WFAS into a partnership Firm by admitting Brahmesh and Mahabaleshwar as partners therein. On or about 24th April 1957, Late Shri Vinayakrao, Brahmesh and Mahabaleshwar, as partners of WFAS, opened a Current Account with Punjab National Bank in its Branch at Fort, Mumbai. Subsequently, the said Shri Vinayakrao died on 11th November 1958 intestate, leaving behind him the above-referred heirs and properties.

E. It was the further case of Mahabaleshwar that on the death of Shri Vinayakrao, it was agreed between Brahmesh and Mahabaleshwar, being the two surviving partners of the said Firm - WFAS, that the Firm should not be dissolved and it would be continued by them as its surviving partners and that the share of Shri Vinayakrao in the assets and properties of the Firm should be retained by the Firm and the profits attributable to his share would be distributed among the heirs of Shri Vinayakrao. Shri Mahabaleshwar subsequently got married in 1963 and shifted from the Ground Floor premises of Beach View Building to his ownership flat at Mahim. As the time passed, the families of the sons and daughters got expanded. They got married and started staying separately. In February 1988, Mahabaleshwar was in need of funds for the wedding of his only daughter. By his letter dated 22nd February 1988 addressed to Brahmesh, Mahabaleshwar asked him to inform with respect to the amounts standing to his credit in WFAS and give the account of his share. Brahmesh did not respond immediately, but on 22nd September 1988, asked Mahabaleshwar to see him personally. The meeting did take place but the discussions were unsuccessful, Mahabaleshwar was subsequently served with a Caveat filed in this Court on 31st August 1988, wherefrom he came to know that Brahmesh had started claiming himself to be the sole proprietor of WFAS and also Administrator of the estate of late Shri Vinayakrao.

F. It is on this background that Mahabaleshwar filed the above-referred Suit No. 2794 of 1990 on 7th September 1990 wherein prayer (a) [which had (ix) sub-prayer clauses] sought a dissolution of WFAS from the date of filing of the Suit, its accounts and directions to deliver the share of Mahabaleshwar to him from the properties of WFAS which were described in Exhibit 'K' to the Plaint. Prayer Clause (b) sought a declaration that Mahabaleshwar had 1/8th share in the estate of Late Shri Vinayakrao and prayer (c) sought a declaration that the properties described in Exhibit 'L' formed the estate of Late Shri Vinayakrao. Prayer Clause (d) was an alternative prayer that in the event this Court comes to the conclusion that WFAS was not a partnership Firm, then in the alternative to prayer Clause (a), it be declared that WFAS also formed a part of estate of late Shri Vinayakrao and lastly, prayer (e) sought a direction that the entire estate of Late Shri Vinayakrao be administered according to law, under the orders and directions of this Court.

G. Subsequently, Consent Terms were arrived at in that Suit on 15th March 1991. Under Term No. 1, it was agreed that all the disputes in the above Suit between the parties were to be referred to the Sole Arbitration of Senior Advocate Mr. S.H. Doctor with summary powers. Term No. 1 thereafter specifically stated as follows:-

'The Arbitrator shall not be obliged to record any evidence nor to give any reasons for any decision.' Term No. 3 of these Consent Terms reads as follows:-

'Agreed that the Arbitrator shall have power to determine what he shall have power to determine what he shall think fit to be done by the parties in respect of the matter in dispute and award and/or any of the reliefs claimed in the Suit.' H. The Arbitrator treated the Plaint in Suit No. 2794 of 1990 as the Statement of Claim in the arbitration. Brahmesh and some other Defendants filed their Written Statements before the Arbitrator. The Arbitrator recorded the evidence of Mahabaleshwar, (Original Plaintiff) Brahmesh (Original Defendant No. 1) and some other Defendants. Documents as also written arguments were tendered by the parties. During the course of the proceedings before the learned Arbitrator, a statement was made on behalf of Mahabaleshwar by his Counsel on 11th February 1993 that he was not pressing prayer (a) of the Plaint. The learned Arbitrator recorded it accordingly that it was conceded that WFAS was not a partnership business as alleged in the Plaint.

I. Thereafter, the learned Arbitrator gave his Award on 16th June, 1997. Under his Direction No. (A), he laid down the shares of the Plaintiff and other Defendants in the estate of Shri Vinayakrao. As far as the Plaintiff-Mahabaleshwar is concerned, it was declared that he had 1/8th hare in the estate of the deceased as prayed by him in prayer Clause (b) of the Plaint. No challenge is raised to the determination of the shares or to the percentage as valid down by the Arbitrator. In Direction Nos. (B) and (C), the Arbitrator directed that the business of WFAS be sold as a going concern together with its goodwill and tenancy of two show-rooms with two attached rooms at Chowpatty, one Gala at Senapati Bapat Marg and one room at Govalia Tank and the net sale-proceeds be divided in accordance with the shares as mentioned in Direction (A). In Direction No. (D), the Arbitrator directed Defendant Nos. 1A to 1F (heirs of Original Defendant No. 1-Brahmesh, who are Appellant Nos. 1 to 6 herein) to pay to the Plaintiff and some other Defendants certain amounts as laid down therein and in Direction No. (G), Defendant Nos. 1A to 1F were directed to pay the costs of the Suit and arbitration. The Direction in Clause No. (F) was regarding the residential flat on the ground floor at Beach View building, the tenancy of which stood in the name of Shri Vinayakrao. With respect to these premsies, it was directed that the parties may adopt such proceedings as they may be advised in a Court of competent jurisdiction. The dispute in this matter is arising out of the Direction Nos. (B) and (c) as well as Direction Nos. (D) and (G). These Direction Nos. (B), (C), (D) and (G) read as follows:-

'(B) The business of Wagh Fine Arts Studio be sold as a going concern together with its stock-in-trade, goods, raw materials and equipments and goodwill along with (and as incidental to the sale of the said business) the tenancy rights of (i) the 2 Show rooms and two attached rooms situated at Beach View, N.A. Purandare Road, Chowpatty, Mumbai 400 007, (ii) Gala No. 19, (now numbered as Gala No. 11) situated at Charring Cross Compound, 164, Senapati Bapat Marg, Matunga, Mumbai 400 016 and (iii) one room at Govalia Tank, behind Mahavir Jain Vidyalaya, Mumbai. The rent receipts of the aforesaid three premises are in the name of Wagh Fine Arts Studio.

(C) The net sale proceeds be divided between the Plaintiff and Defendants 1A to 7 in accordance with their respective shares as mentioned in Clause A above.

(D) Defendant Nos. 1A to 1F do pay to the Plaintiff, Defendant Nos. 3, 5, 6 and 7 and Defendant No. 4A for and on behalf of the estate of original Defendant No. 4, a sum of Rs. 50,000/- each and to Defendant Nos. 2A to 2D the sum of Rs. 12,500/- each.

(G) Defendant Nos. 1A to 1F to pay to the Plaintiff the sum of Rs. 30,000/- as costs of the suit and arbitration.'

J. This Award of the Arbitrator was sought to be aside by the Appellants herein by filing Arbitration Petition No. 172 of 1997 under Section 30 of the Arbitration Act, 1940. Three submissions, which are referred to earlier, were raised before the learned Single Judge and the learned Single Judge, by his oral order dated 15th October 1997, negatived the same and dismissed the Petition. Being aggrieved by the said judgment and order, the present Appeal has been filed wherein also the same very three points are re-agitated. Hearing of this Appeal has been expedited by the Apex Court by an order passed in Special Leave Petition.

Issues with respect of limitation:

4. As far as the first submission with respect to the limitation is concerned, it was submitted on behalf of the Appellants that Shri Vinayakrao died in November 1958 and, therefore, the cause of action for administration of the estate of the deceased ought to be construed as having arisen in that year. It was submitted that the present Suit will be governed under Article 106 of the Limitation Act, 1963 hereunder a period of 12 years is provided by way of limitation to file a Suit for a legacy or for distributing a share in property of an interstate. The Suit has been filed in the year 1990 and, therefore, it ought to be held to be barred by limitation. The learned Single Judge, who heard the Arbitration Petition, took the view that the question of limitation was always a mixed question of law and facts. The learned Judge held that it was not permissible for him to interfere with the Award even if it was possible to take a different view in the matter and that the argument based on limitation was not available in a proceeding under Section 30 of Arbitration Act, 1940. Mr. Tulzapurkar submitted that the error committed by the learned Judge went to the root of the matter and the award had to be interfered. In his submission, the arbitrator could not mis-apply or ignore the law.

5. As against these submissions on behalf of the Appellants, it was submitted on behalf of the Respondents that the question of limitation could not be gone into by the Court. It was submitted that the Award can be interfered only when there is an error apparent on the face of the record and such an error is that which one can find in the Award or in a document incorporated therein giving the reasons for the judgment which forms the basis of the Award and which could be erroneous. In the instant case, the Arbitrator was not required to give any reasons and he has not given any. Mr. Setalwad, learned Counsel appearing for the Respondents, relied upon the judgment of the Apex Court in the case of Kanpur Nagar Mahapalika v. Narain Das Haribansh reported in : [1970]2SCR28 . In this matter, the Arbitrator did not accept the plea of limitation raised by the Respondent and the High court had upheld the Award. The Apex Court, having gone into the Award, observed that the Award did not lay down any proposition of law on the question of limitation. It was canvassed before the Apex Court that the Arbitrator should have specifically dealt with the question of limitation. The Apex Court has held in paragraph 10 as under:-

'It is sufficient if the arbitrator gives an award on the whole case and he need not deal with each issue separately. It was open to the arbitrator to decide on the rival contentions of the parties as to limitation. In doing so, if an arbitrator makes a mistake either in law or on fact and if such mistake does not appear on the face of the award, the award will not be bad notwithstanding any mistake.'

This view is reiterated by a Bench of Three Judges of the Apex Court in the case of N. Chellappan v. Secretary, Kerala State Electricity Board and Anr. reported in : [1975]2SCR811 . In this matter also, the plea of limitation was turned down and the Apex Court held in paragraph 12 as under:-

'The umpire as sole arbitrator was not bound to give a reasoned award and if in passing the award he makes a mistake of law or of fact, that is no ground for challenging the validity of the award. It is only when a proposition of law is stated in the award and which is the basis of the award, and that is erroneous, can the award be set aside or remitted on the ground of error of law apparent on the face of the record.'

6. Apart from these submissions in law, Mr. Setalwad, learned Counsel appearing for the Respondents, submitted that even on facts, the Suit was within limitation. He submitted that it was not Article 106 of the Limitation Act, which would govern the suit, but it would be either Article 110 or Article 113. Mr. Setalwad submitted that under Article 106, the property has to be in the hands of an executor or an administrator legally charged with the duty of distributing the estate of the deceased. Brahmesh was not an administrator or an executor, though the property was in his possession. Under this Article, time will not run until such person liable to deliver or to pay, has the share or money in his hands whereafter 12 years are to be calculated. For this proposition, he relied upon a judgment of the Privy Council in the case of Sri Rajah Venkatadri Appa Rao Bahadur Garu and Ors. v. Mahboob Sirfraz Vanth Sri Raja Parthasarathi Appa Rao Bahadur Garu, Zamindar of Bhadrachalam and Palavancha and Ors. reported in . He submitted that the Plaintiff was claiming his share in the estate of the deceased and the time will not run unless there was evidence of ouster of the Plaintiff from the estate or until he was denied his share in the partnership assets. He relied upon a judgment of the Privy Council in the case of Mahomedally Tyebally and Ors. v. Saflabai and Ors. reported in (1941)ILR (P.C.) 8 for this purpose. He submitted that in the present case, until the time the share of Mahabaleshwar in the estate of the deceased was denied sometimes in August/September 1988, the entire assets will have to be construed as jointly held by the family members of the deceased. No evidence has been led of the severance of the estate and of the joint family members by the Defendants (i.e. the Appellants herein). A cheque was issued on account of the Firm signed by both Brahmesh and Mahabaleshwar on 29th February 1988. It was in August 1988 that a Caveat was filed by the Appellants, and on 22nd September 1988 an evasive reply was sent by Brahmesh to the demand of Mahabaleshwar for his share to meet the expenses on account of the marriage of his daughter. The right to sue could be said to have accrued only at that time. The Suit was filed on 7th October 1990 and was within limitation. It was submitted hat Article 110 would be the proper Article which speaks of a Suit by a person excluded from a joint family property to enforce his right to share therein. The time from which this period begins to run is when the exclusion becomes known to the Plaintiff and the period provided is 12 years. Alternatively, it was submitted that it would be a case governed under Article 113 which deals with any Suit for which no period of limitation is provided in the Schedule. In that case, this Suit is to be filed within 3 years from the date when the right to sue accrues and it is so filed.

7. Having considered the rival submissions on this point, it is very clear that until August/September 1988, there is no material whatsoever of severance of the joint family status and that of the estate of the deceased. It is only when the original Plaintiff was denied his share that he could be expected to file a proceeding prior whereto, no cause of action had arisen. In any case, Article 116 of the Limitation Act, 1963 would not govern this Suit because Brahmesh was not an Executor or Administrator or a person legally charged with the duty of distributing the estate. Besides, under this Article, time will start running when the legacy or the share becomes deliverable. That contingency had also arisen. Hence, merely because Shri Vinayakrao died in the year 1958, that could not be considered to be the starting point of limitation. It is a Suit by an heir executed from a joint family property to enforce a right to his share and that has to be filed within 12 years under Article 110 when the exclusion becomes known to the Plaintiff. This has occurred only in August/September 1988 and, therefore, the Suit filed in September 1990 could not be faulted as beyond limitation. As noted earlier in Kanpur Nagar Mahapalika's case (supra), the Apex Court has held that it was open to the Arbitrator to decide on the rival contentions of the parties as to limitation and in doing so, if the Arbitrator makes a mistake either in law or on fact and if such mistake does not appear on the face of the Award, the Award will not be bad notwithstanding any mistake. Besides, in N. Chellappan's case (supra), the Apex Court has held that in a non-speaking Award, if there is a mistake on fact, then that is not a ground for challenging the validity of the Award. Besides, even as a proposition of law in the case of a non-speaking Award wherein an over-all Award has been given, there are certain limits to the corrections through the mechanism of the Court. As stated earlier, in the present matter, however, even on facts, as they are seen, the Suit was undoubtedly within limitation. The Award or the judgment of the learned Single Judge cannot, therefore, be faulted on the ground of ignoring or misapplying the law of limitation.

8. Whether the direction of the Arbitrator to the Appellants to pay certain amounts personally constituted an error apparent on the face of the record:

Mr. Tulzapurkar, learned Counsel appearing for the Appellants, submitted that the Arbitrator had directed the Appellants to pay certain amounts personally in direction Nos. (D) and (G) to some of the original Defendants. Now, these Appellants (Respondent Nos. 1A to 1F) were brought on record as the heirs of the original Respondent No. 1 and the Award, if any, could be only to the extent of the estate of the original Respondent No. 1 (Brahmesh) coming into their hands. He submitted that to this extent, the Award was in violation of Section 52 of the Code of Civil Procedure, which lays down that where a decree is passed against the party as the legal representative of a deceased and the decree is for payment of money out of the property of the deceased, it may be executed for attachment and sale of such property. The Directions (D) and (G) were not restricted as reburied. Mr. Tulzapurkar relied upon a judgment of Division Bench of Patna High Court in the case of Smt. Rani Brijraj Kumari v. Manranjan Prasad Singh reported in : AIR1947Pat365 . In that judgment, after referring to Sections 50 and 52 of C.P.C., the Division Bench observed in paragraph 13 as follows:-

'On comparing both the sections it appears that Section 50 contemplates a case in which the decree has been passed against the debtor himself during his lifetime. This section, therefore, is not applicable to the facts of the present case. Section 52 is the section which is just in point and this provides that the decree in order to be executed by attachment and sale of the property of a deceased person must bear the character of one, having been passed against a party as the legal representative of the deceased person; and, secondly, that the decree must be for payment of money out of the property of the deceased.' In Para-20 of that judgment, the Court observed as follows:

'In my judgment, therefore, compliance of the provisions of Section 52 of the Code is not mere matter of form but is a matter of substance. It may be that it would not always accord with justice to insist upon the actual words of the section being present in the decree but the decree itself must bear sufficient material to indicate that it was intended by the Court to be operative against the estate of a deceased debtor.' Mr. Tulzapurkar drew our attention to the observations of the learned Single Judge to the effect that it must be presumed that the Arbitrator must have intended to restrict the liability of Respondent Nos. 1A to 1F (Appellants herein) to the extent of the estate of Brahmesh coming to their hands. He submitted that the executing Court will not go by intention of the Arbitrator. The Arbitrator knew that such a restriction has to be provided and, therefore, when it came to the estate of the original Defendant No. 4 going into the hands of his successor Defendant No. 4A, he did provide so in Direction Nos. (D) and (E). He, therefore, submitted that Direction Nos. (D) and (E) were liable to be set aside.

9. As against these submissions of Mr. Tulzapurkar, Mr. Setalwad, learned Counsel appearing for the Respondents, accepted that Defendant Nos. 1A to 1F (Appellants herein) were not joined in their personal capacity. The direction has to be read as one restricted to the extent of the estate of original Respondent No. 1 (Brahmesh) coming to their hands. He submitted that this Court has power to correct this error, if any, under Section 15(b) of the Arbitration Act, 1940 and which is so held by the Apex Court in the case of Naraindas L. Adnani v. Narsingdas N. Adnani and Ors. reported in : AIR1995SC763 . In paragraph 9 of that judgment, the Apex Court referred to the powers of the Court under Section 15(b) to order, modify or correct an award where the award is imperfect in form or contains any obvious error which can be amended without affecting any such decision. The Court observed: 'obviously the Court cannot substitute its own order for the award of the Arbitration. But any obvious error in the award can be corrected by the Court provided it does not affect the decision given by the arbitrator'. The learned Single Judge has discussed this submission at the end of paragraph 1 of his order and then observed as follows:-

'It is thus clearly seen that the direction given by the Arbitrator against the defendant Nos. 1A and 1F is not in the nature of a personal decree but is operative and against the estate of the deceased Brahmesh.'

In our view, the above observation of the learned Single Judge is within the powers of Section 15(b) as explained by the Apex Court in the case of Naraindas (supra) and in corrects the obvious error through the clarification contained in the above observation. It is not an error through the clarification contained in the above observation. it is not an error for which award should be interfered or set aside.

Whether the Arbitrator exercised the jurisdiction which was exclusively vested in the Court of Small Causes under the Bombay Rent Act and thereby exceeded his jurisdiction and the learned Single Judge ignored this error?

10. As stated earlier, the original Suit had two-fold prayers. Prayer (a) proceeded on the footing that there existed a partnership Firm of M/s. WFAS and the Plaintiffs sought dissolution thereof and the Plaintiff's share. This prayer (a) was given up during the course of the arbitration proceedings. Prayer (d) was an alternative prayer that in the event the Court comes to the conclusion that the WFAS was not a partnership Firm, it be declared that the business and assets of WFAS formed part of the estate of Late Shri Vinayakrao and the entire estate be administered. As pointed out earlier, Brahmesh and some of the Defendants filed their Written Statements during arbitration. In paragraph 5 of their Written Statement, Brahmesh and others contended that they were deemed tenants in respect of the residential premises at Beach View, Chowpatty. They also claimed deemed tenancy in respect of the business premsies at Beach View, Chowpatty and Gala No. 11 at Matunga. In paragraph 6 of the Written Statement, it was specifically pleaded that the Claimant i.e., Mahabaleshwar had left the tenancy and gone to reside independently in Matunga since the year 1963. He had started his own independent business as a painter and he is deemed to have abandoned or waived his suit claim. In paragraph 13(j), it was contended by Brahmesh and others that the partnership came to an end on the death of Shri Vinayakrao in the year 1958. It was submitted that the estate duty was paid on the estate of Late Shri Vinayakrao to the knowledge and consent of all other heirs and the discharge certificate was obtained. It excluded all the tenancies. In paragraph 13(k), it was specifically pleaded that the tenancy rights in respect of main studio having an area of 800 sq. ft. (consisting of 2 show-rooms and 2 attached rooms), the residential premises of 1200 sq. ft. and the godown of 100 sq. ft. at Govalia Tank Road belonged to Brahmesh and his group of opponents. Out of these tenancies, rent receipt of the residential premsies were in the name of Shri Vinayakrao, whereas the other rent receipts were in the name of WFAS. It was further pleaded in that paragraph that the estate did not include or comprise the tenancy rights of Gala No. 15 and 19 situated at Matunga, which stood in the name of Brahmesh or WFAS. As far as Gala No. 15 is concerned, rent receipt thereof is in the name of Brahmesh, whereas the rent receipt of Gala No. 19 is in the name of WFAS. Now, it is material to note that it is specifically pleaded in the Plaint that since about 1964, Mahabaleshwar is not staying in the residential premsies at Chowpatty and has shifted to Mahim and is carrying on his business activities from the Gala situated at Matunga. It is the case of Brahmesh that till then Mahabaleshwar was irregular in attending the work of WFAS and subsequently attended only the foundry work from 1963 when he shifted to Matunga. The documents which are relied upon by Mahabaleshwar are principally the writing executed by Shri Vinayakrao during his life time in the year 1955 and the opening of the account in Punjab National Bank in the year 1957. The business started by Mahabaleshwar at Mahim is in the name of Wagh's Siddhakala Fine Art Studio. Thus, since about 1963-64 whereas the business premsies at Chowpatty and Govalia Tan Road and residential premises at Chowpatty are exclusively in possession of Brahmesh, the business premises at Matunga are in possession of Mahabaleshwar.

11. It was, therefore, submitted on behalf of the Appellants i.e. the branch of Brahmesh that although the rent receipts of the business premises were in the name of WFAS, only Brahmesh and his branch were using them for the purposes of carrying on business of WFAS. Under the scheme of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (hereinafter referred to as 'Bombay Rent Act'), the tenancies of a tenant devolved according to the provisions thereunder which were different from the one under the ordinary Law of Succession. Under the definition of tenant as provided under Section 5(11)(c) of the Bombay Rent Act, as amended with effect from 23rd October, 1978, tenant meant any person by whom or on whose account rent was payable and included the member of tenant's family using the premsies for carrying on the business in the premsies with the tenant a the time of his death. under the definition, as it stood prior to this amendment, Section 5(11)(c) contained only the following provision:-

'any member of the tenant's family residing with him at the time of his death as may be decided in default of agreement by the Court.'

In the judgment of the Apex Court in the case of Ganpat Ladha v. Shashikant Shinde (Unreported judgments 1978 (SC) 218 it was laid down that this Section 5(11)(c) applies only to residential premsies. As a result of this decision, a large number of businesses premsies of several persons were adversely affected. If unfortunately a tenant of a business premises died, his family members were at the mercy of the landlord and will be deprived of their source of maintenance by not being able to carry on the business. It is, therefore, that Section 5(11)(c) was amended with effect from 23.10.1978 and Sub-section (ii) extended the protection to the member of the family using the business premsies at the time of death of the tenant. The Section further provided that in the absence of any such member, the tenant would mean any heir of the deceased tenant as may be decided either by amendment or in default by the Court. New Section 5(11)(c) reads as follows:-

'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, 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 by the Court;

(ii) in relation to any permission let for the purposes of education, business trade or storage, when the tenant dies, whether the death has occurred before or after the commencement of the said Act, any member of the tenant's family using the premises for the purposes of education of carrying on business, trade or storage in the premises, 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 by the Court.

Explanation:- The provisions of the clause for transmission of tenancy, shall not be restricted to the death of the original tenant, but shall apply, and shall be deemed always to have applied, even on the death of any subsequent tenant, who becomes tenant under these provisions on the death of the last preceding tenant.'

12. Prior to the passing of this amendment, the view taken by this Court was that Section 5(11)(c) (as it stood prior to 23.10.1978) did not supersede the right of inheritance under the personal law but must yield to it. That was the view taken by Tulzapurkar, J. (as he then was in this Court) in First Appeal No. 164 of 1963 decided on 19th August 1964 (unreported) in the case of Mehroo S. Cooper v. Dina J.S. Fanibanda. That was accepted by a Division Bench in the case of Rajaram B. Upadhyaya and Ors. v. Ramraj R. Upadhyaya and Ors. reported in 1977 Mh.L.J. 792. However, after the passing of the above-referred amendment, those decisions could not hold the field and as observed by a Single Judge (A.N. Modi, J.) in paragraphs 13 and 14 of C.J. Ghadialli and Ors. v. Z.B. Wadiwalla reported in 1981 Mh.L.J 876 which read as follows:-

'.....Till the amendment of Rent Act by Act XXII of 1978, which came into force on 23-10-1978, the legal position was laid down in Rajaram B. Upadhyaya and Ors. v. Ramraj R. Upadhyay and Ors. It was therein held that an heir of a deceased who was entitled to inherit the estate of the deceased had preferential right to tenancy over the right of a person who claimed tenancy by virtue of his being a member of the tenant's family residing with the tenant. However, there is a complete change in law by this amendment and now it is only in the absence of a member of the tenant's family residing with the tenant, at the time of his death, that any heir of the deceased tenant acquires the tenancy rights under the Rent Act.

14. It is obvious that the provisions of Section 5(11)(c) of the Rent Act provides for a right of succession different from the one under the ordinary law. It must, therefore, follow that the right of possession also will be of the person who is a tenant under Section 5(11)(c). .....'

13. This view is now confirmed by the Apex Court in the case of Vasant Pratap Pandit v. Dr. Anant Trimbak Sabnis reported in 1994 Mh.L.J 1450. In that matter one Tarabai had made a Will bequeathing a tenancy and appointing the Appellant as the Executor. The Respondent, another relative of the legatee, was staying with Tarabai in the disputed premsies. In view of the Will, the Appellant sought to evict the Respondent by filing a Suit in the Civil Court. It was contended by the Respondent that the bequest of the tenancy amounted to its transfer and it was impermissible under Section 15 of the Bombay Rent Act. This view was accepted by the High Court and confirmed by the Apex Court. at the end of Para-12 of its judgment, the Apex Court squarely raised the question in the following words:-

'.....Question is whether the right to inherit has been restricted by legislation.'

This question is answered in Para-14 as follows:-

'14. From a plain reading of Section 5(11)(c)(i) it is obvious that the legislative prescription is first to give protection to members of the family of the tenant residing with him at the time of his death. The basis for such prescription seems to be that when a tenant is in occupation of premises the tenancy is taken by him not only for his own benefit but also for the benefit of the members of the family residing with him. Therefore, when the tenant dies, protection should be extended to the members of the family who were participants in the benefit of the tenancy and for whose needs as well as the tenancy was originally taken by the tenant. It is for this avowed object, the legislature has, irrespective of the fact whether such members are heirs in the strict sense of the term or not, given them the first priority to be treated as tenants.'

Again at the end of that paragraph, the Court observed as under:-

'..... Besides, a statutory tenancy is personal to the tenant. In certain contingencies as contemplated in Section 5(11)(c)(i) certain heirs are unable to succeed to such a tenancy. To this extent, a departure is made from the general law.'

14. Relying upon this judgment, Mr. Tulzapurkar submitted that the tenant is defined under Section 5(11) of the Bombay Rent Act to mean any person by whom or on whose account rent is payable. The landlord must known as to who is the tenant and who will pay the rent. In the present case, the tenancy may be in the name of WFAS, but earlier it was Shri Vinayakrao, who was paying the rent and thereafter it is Brahmesh, who has been paying the same. He has been running the business along with his father and thereafter subsequent to his demise. What is provided under Section 5(11)(c)(i) is accepted by the Arbitrator when it comes to the residential premsies. The rent receipt of the residential premsies in Beach View stood in the name of Late Shri Vinayakrao. Therefore, in Direction (F), the Arbitrator directed that as far as this flat is concerned, the parties may adopt such proceedings as they may be advised in a Court of competent jurisdiction. However, when it came to the business premsies, although the provision under Sub-section (i) and Sub-section (ii) is same, the Arbitrator has applied another yardstick. The law laid down by the Apex Court in the case of Vasant v. Dr. Anant (supra) although concerning Sub-section (c)(i) of Section 5(11), applies squarely to Sub-section (c)(ii) also. The wording in both the provisions is similar and in fact, Sub-section (ii) has been brought into the Statute to extend the similar benefit to business premises which was otherwise not available prior thereto. Mr. Tulzapurkar, therefore, submitted that the general law of succession stood superseded under the Bombay Rent Act in respect of the tenancies governed thereunder. The tenancies in respect of the business premises devolved as per Section 5(11)(c)(ii) and not as per the ordinary Law of Succession. He submitted that on the death of Shri Vinayakrao, the assets of the deceased got bifurcated and the tenancies devolved according to the Bombay Rent Act, whereas the other business assets devolved according to the general Hindu Law of Succession. Thus, the tenancies were not part of the estate of the deceased which could be distributed amongst all the heirs as per the Hindu Law of inheritance. They had to devolve in accordance with the Bombay Rent Act, which governed a species of the inheritable property in a particular manner as laid down by the legislature different from other inheritable properties of the deceased. In his submission, the Arbitrator and the learned Single Judge erred in ignoring this aspect.

15. The second submission of Mr. Tulzapurkar in this connection was that Late Shri Vinayakrao was a professional sculptor and his business depended on his personal skill. It could not devolve on anybody. He had stopped working during his life time. Mr. Tulzapurkar relied upon the observations of King's Bench Division in the case of Stuchbery and Ors. v. General Accident Fire and Life Assurance Corporation Ltd. reported in (1949) 2 KB 256. That was in the context of profession of Solicitor and it is observed therein at pages 266 and 267 that there is a distinction between a profession such as that of Solicitor and other professions or businesses. A professional man is selected for his professional skill. Lord Denning thereafter observed on page 276 of that judgment as follows:-

'..... The goodwill of the partners of a professional firm does not, as a rule, adhere to the premsies on which they carry on their practice. It depends on their own personal qualities, on their reputation with their clients, and their name and connexion. It does not depend on their precise address.....'

Mr. Tulzapurkar submitted that Late Shri Vinayakrao being a Sculptor, his good will ended when he died. Subsequently, it was Brahmesh, who carried on the business and developed his goodwill. It was no longer the business of the deceased Vinayakrao in the year 1997 when the Award was made and, therefore, the question of selling the business as a going concern did not arise. He relied upon a judgment of the Division Bench in the case of Jayprakash S. Mandare v. Laxminarayan M. Mundade and Ors. reported in 1983 Mh.L.J. 362 in support wherein the Court observed in para-11 that the business must be a live business, a going business.

16. The Arbitrator has directed sale of the business of WFAS together with its stock-in-trade, goods, raw material, equipment and goodwill and incidental to the business the tenancy rights. Support is taken for such an action from the Government Notification of 24th September 1948 issued under Section 15 of the Bombay Rent Act. Section 15 of the Rent Act does not permit a transfer of the premsies of a tenant in the absence of a contract to the contrary. The proviso to Sub-section (1), however, lays down that the State Government may permit transfer in certain situations. Section 15(1) reads as follows:-

'15. [In absence of contract to the contrary, tenant not to sub-let or transfer] [or to give on licence]

(1) Notwithstanding anything contained in any law that subject to any contract to the contrary, it shall not be lawful after the coming into operation of this Act for any tenant to sub-let the whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein and after the date of commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Act, 1973, for any tenant to give on licence the whole or part of such premsies: Provided that the State Government may by notification in the Official Gazette, permit in any area the transfer of interest in premises held under such leases or class of leases or the giving on licence any premises or class of premises and no such extent as may be specified in the notification.'

The Notification of 24th September 1948 permitted the following transfer or assignment:-

'(2) Transfer or assignment incidental to the sale of a business as a going concern together with the stock-in-trade and the good-will thereof, provided that the transfer or assignment is of the entire interest of the transferor or assignor in such lease-hold premises together with the business and the stock-in-trade and good-will thereof.'

17. Mr. Tulzapurkar submitted that in 1997 when the Award was being made, the business of deceased Vinayakrao was not in existence. Shri Vinayakrao died in the year 1958. Much prior thereto, he had stopped his participation in the activities of the studio. It was only Brahmesh who was carrying on the activity as a Sculptor. Even Mahabaleshwar was a Painter. Admittedly, since 1963-64,Mahabaleshwar had left the residential premises and stopped his participation in the studio and had started his own studio in a different name at Mahim. The profession of a sculptor depends on personal skill. Thereafter Brahmesh alone is running the business in these premises. The Suit is filed in the year 1990 and the Award was being made in the year 1997. He further submitted that thus in the guise of sale of business, stock-in-trade, goodwill etc. what was being sold along therewith were the tenancy rights in the studio and in the godown. Mr. Tulzapurkar then submitted that apart from the fact that there was no such goodwill of Shri Vinayakrao remaining in 1997, the studio and the godown were in the exclusive possession of Brahmesh who was running them. It was he, who was paying the rent to the landlord, may be in the name of WFAS. It was, therefore, his tenancy which was protected under Section 5(11)(c)(ii) of the Rent Act inasmuch as it was he who was running the business and using the premises for that business at the time of the death of Shri Vinayakrao and even thereafter exclusively. He pointed out that the Statement of Claim contained a submission that the tenancy rights devolved on all heirs. As against that, it was specifically pleaded in Para-13 of the Written Statement that the estate of the deceased did not include the tenancy. Thus, whether the tenancy devolved on all the heirs or whether only Brahmesh got the protection under Section 5(11)(c)(ii) of the Rent Act was a question squarely arising in the proceedings. Mr. Tulzapurkar submitted that under Section 28 of the Bombay Rent Act, it was the Small Causes Court alone which had jurisdiction to decide this question and the Arbitrator had no jurisdiction to decide it.

18. Section 28(1) of the Bombay Rent Act deals with the jurisdiction of the Court, which reads as follows:-

'28. Jurisdiction of courts

(1) Notwithstanding anything contained in any law notwithstanding that by reason of the amount of the claim or for another reason, the suit or proceeding would not, but for this provision, be within its jurisdiction.-

(a) in Greater Bombay, the court of Small Causes, Bombay,

(aa) in any area for which, a Court of Small Causes is established under Provincial Small Cause Courts Act, 1887, such Court and

(b) elsewhere, the Court of the Civil Judge (Junior Division) having jurisdiction in the area in which the premises are situate or, if there is no such Civil Judge the Court of the Civil Judge (Senior Division) having ordinary jurisdiction, shall have jurisdiction to entertain and try any suit or proceeding between a landlord and a tenant relating to the recovery of rent or possession of any premises to which any of the provisions of this Part apply or between a licensor and a licensee relating to the recovery of the licence fee or charged and to decide any application made under this Act and to deal with any claim or question arising out of this Act or any of its provisions and subject to the provisions of Sub-section (2), no other court shall have jurisdiction to entertain any such suit, proceeding, or application or to deal with such claim or question.'

It was, therefore, submitted that as the Section itself reads that in Greater Bombay it was only the Court of Small Causes which had jurisdiction to deal with any claim or question arising out of this Act, or any of its provisions as the Section made it very clear that no other court shall have jurisdiction to entertain any such suit, proceeding or application or to deal with such claim or question. This sub-section begins with a non-obstante clause that notwithstanding anything contained in any law or any other reason the suit or proceeding which would not be within its jurisdiction shall lie before the Court of Small Causes, which alone shall have jurisdiction to entertain or to deal with such claim or question.

It was submitted that by virtue of Section 5(11)(c) and by conduct of the parties, it is only Brahmesh, on whom tenancy rights had devolved excluding all other heirs and he cannot be divested of his tenancy under the garb of selling business in an arbitration arising out of a suit for administration of the estate of the deceased. In any event, the part of the Award, to the extent it pertained to the tenancy rights, was beyond the jurisdiction of the Arbitrator.

19. (a) Reliance was placed in this behalf upon a judgment of the Apex Court in the case of Natraj Studios (P) Ltd. v. Navrang Studios and Anr. reported in AIR 1981 SC 537. That was a case where the Appellant was given the suit premises of the Respondent on leave and licence basis and the Appellant claimed the protection of the amended Section 15-A of the Rent Act, which came into force on 1st February 1973. This Court had appointed an Arbitrator at the instance of the 1st Respondent to decide their claim for the premises. That order was challenged in a Civil Appeal to the Apex Court. The Apex Court examined the scheme of the Rent Act and in Para-24 of the judgment held that both by reason of Section 28 and by reason of the broader considerations of public policy, the Court of Small Causes has and the Arbitrator did not have the jurisdiction to decide the question whether the Respondent-licensor or landlord is entitled to seek possession of the two studios and other premises together with machinery and equipment form the Appellant-liensee. Later, in that very paragraph, the Court observed that this is the real dispute between the parties is abundantly clear from the petition filed by the Respondents in the High Court which referred to the notices exchanged between the parties seeking possession of the premises and the Appellant claiming to be tenant thereof.

(b) In Natraj Studio (supra), the Apex Court referred to various earlier judgments. Thus, in Para-21, it referred to the earlier judgment in the case on Deccan Merchants Cooperative Bank Ltd. v. Dalichand Jugraj Jain reported in AIR 1969 SC 1820 wherein it was held that whether or not the Registrar of Cooperative Societies was a Court under Section 28, his jurisdiction was surely ousted on broader considerations of public policy. The Court had pointed out that the Rent Act has a specific social objective in view and for the achievement of that objective it was necessary that the Court set up under the Rent Act alone should deal with a dispute between a landlord and the tenant and that in accordance with the provisions of the Rent Act. In the earlier paragraphs of this judgment, it examined some of its earlier decisions on the question of Section 28 conferring exclusive jurisdiction on the Court of Small Causes. The Court made distinction between exclusive jurisdiction conferred on the Court of Small Causes under the Rent Act and the jurisdiction to decide jurisdictional facts. As far as this latter aspect is concerned, the Court did not hold that jurisdictional facts are necessarily to be decided by the Court where the jurisdictional question falls to be decided, but if ultimately the Court comes to the conclusion that it is an issue which is squarely governed under the Rent Act, it must be referred and/or decided by that court only. (Para-18 of the judgment). In Para-23, it referred to the earlier decision of this Court in the case of Sabavva Kom Hanmappa Simplger v. Basappa Andaneppa Chiniwar reported in (1955) 57 B.L.R. 201 wherein a Division bench held that Section 28 of the Rent Act excluded reference to arbitration of a dispute relating to recovery or rent or possession of premises. After referring to the welfare objective of protecting the tenants, in paragraph 17 the Apex Court observed as follows:-

'Public policy requires that contracts to the contrary which nullity the rights conferred on tenants by the Act cannot be permitted. Therefore, public policy requires that parties cannot also be permitted to contract out of the legislative mandate which requires certain kind of disputes to be settled by special Courts constituted by the Act. If follows that arbitration agreements between parties whose rights are regulated by the Bombay Rent Act cannot be recognized by a Court of Law.'

20. Mr. Tulzapurkar then laid emphasis on the judgment in the case of Rajasthan State Mines & Minerals Ltd. v. Eastern Engineering & Anr. reported in : AIR1999SC3627 wherein the Apex Court made a distinction between acting beyond jurisdiction and error apparent on the face record. In Para-44(f) of that judgment, the Court held that 'the Arbitrator acting beyond his jurisdiction is a different ground from the error apparent on the face of the award.' In sub-para (e), the Court held that 'in a case of a non-speaking award, the jurisdiction of the court is limited. The award can be set aside if the arbitrator acts beyond his jurisdiction.' In Para-44(j), the Court has cautioned that the arbitrator is not a conciliator and cannot ignore the law or misapply it in order to do what he thinks just and reasonable; the arbitrator is a tribunal selected by the parties to decide the disputes according to law. In sub-para (g) the Court held as follows:-

'(g) In order to determine whether the arbitrator has acted in excess of his jurisdiction what has to be seen is whether the claimant could raise a particular claim before the arbitrator. If there is a specific term in the contract or the law which does not permit or give the arbitrator the power to decide the dispute raised by the claimant or there is a specific bar in the contract to the raising of the particular claim then the award passed by the arbitrator in respect thereof would be in excess of jurisdiction.'

Thus, Mr. Tulzapurkar submitted that the tenancies were not part of the estate of the deceased. They devolved in accordance with the Bombay Rent Act. Besides, there was no business of Late Shri Vinayakrao in the year 1997, which could be sold as a going concern under the empowering Notification under Section 15 of the Act. This was affecting the tenancy rights of the Appellants and that was something which was exclusively within the jurisdiction of the Court of Small Causes and beyond the jurisdiction of the Arbitrator. In a worse scenario if Mahabaleshwar wants to claim tenancy, Mr. Tulzapurkar submitted that it will be a dispute between two heirs of deceased tenant and under Section 5(11)(c) it will have to be decided by Court of Small Causes.

Reply on behalf of the Respondents:

21. As far as the submissions with respect to lack of jurisdiction are concerned, Mr. Setalwad, learned Counsel appearing for the Respondents, submitted that the Award impugned before the learned Single Judge was a non-speaking Award. The Arbitrator was not required to give reasons and had not given it. The controversy before the Arbitrator was with respect to the administration of estate of Late Shri Vinayakrao. All that the Arbitrator had done was to decide the share of the heirs and then directed sale of the assets of the deceased which included this business of WFAS along with its tenancy. In his submission, this was completely permissible and the Arbitrator was within his rights to direct it. As far as attachment and sale of tenancy is concerned, Mr. Setalwad relied upon a judgment of the Apex Court in the case of R.H. Shah v. H.J. Joshi reported in : AIR1975SC1470 . In that matter, the Apex Court held that the flat in a Tenant Co-partnership Housing Society can be attached and sold in execution of a decree against the allottee. Even the validity of assignment or transfer of one's interest in statutory tenancy under proviso to Section 15(1) of the Bombay Rent Act has been upheld by the Apex court in the case of Kalyanji G. Bhagat v. Virji Bharmal and Anr., reported in 1995 Bombay Rent Cases page 219. He drew our attention to a judgment of the Apex Court in the case of Smt. Gian Devi Anand v. Jeevan Kumar and Ors. reported in : AIR1985SC796 . That is a judgment under the Delhi Control Act whereunder there was no specific provision as under the Bombay Rent Act providing for right of inheritance and protection to the heirs of the deceased tenant running the business. In that judgment, the Court held that heirs of statutory tenants of commercial premises were entitled to the same protection. Mr. Setalwad submitted that we are not so much concerned with such a controversy in this matter but pressed into service the observations on the utility of right of inheritance appearing in paragraph 34 to the following effect:-

'.....A running business is indeed a very valuable asset and often a great source of comfort to the family as the business keeps the family going. So long as the contractual tenancy of a tenant who carries on the business continues, there can be no question of the heirs of the deceased tenant not only inheriting the tenancy but also inheriting the business and they are entitled to run and enjoy the same.'

He emphasized these observations also to press the submission that the tenancy very much formed the part of the business inheritance of Shri Vinayakrao.

22. Mr. Setalwad then drew our attention to a judgment of a learned Single Judge in the case or Melanie Fialho and Ors. v. Malooim Francis Pereira and Anr. reported in 1993 Mh.L.J 1784. That was a case where there was a dispute between two groups of heirs, five of one side and two on the other. In a Testamentary Suit, a consent arrangement was arrived at and it was agreed that the properties, assets and liabilities of the estate of the deceased should be divided in the proportion of 2/7 share to the Respondents and 5/7 share to the Petitioners. (Para-11 of the judgment). The consent order of Reference referred for arbitration all questions and matters in difference relating to the estate of the deceased between Defendant Nos. 1 and 2 (Respondents) on the one hand and the Plaintiff and Defendant Nos. 3 to 6 (Petitioners in the judgment) on the other. Whatever assets were capable of being divided by metes and bound were divided accordingly and whatever were incapable of such division were divided keeping in mind the spirit of the mandate. Accordingly, the Respondents were to be paid Rs. 35,000/- within 4 weeks from the date of the Award (i.e. 26th October 1990) and the tenancy rights were to be restricted to the Petitioners. Accordingly, the payment was made and received after the Award was filed. The Petitioners prayed for a decree in terms of the Award. At that stage, a reply was filed on 3rd December 1991 challenging the Award on several grounds, one of which was that the devaluation of tenancy rights could not have been referred or determined by the Arbitrator. The learned Single Judge, who heard the matter, relied upon Russell on Arbitration (Nineteenth Edition at page 488) wherein it is observed that it will be a good answer to a motion to set aside an award if the opposing party can show that the party moving has acquiesced in the award by knowingly accepting a benefit under it. The learned Judge also relied upon a judgment of the Apex Court in the case of Prasun Roy v. The Calcutta Metropolitan Development Authority and Anr. reported in : [1987]3SCR569 . In that matter, the dispute was initially referred to the arbitration or a Director of CMD. However, since the Directors had expressed their opinion in respect of the dispute and an application was moved for appointment of an independent Arbitrator, it was granted by Single Judge. Thereafter, both the parties got extension of the arbitration proceedings at-least 14 times and the Arbitrator held 74 sittings. Thereafter in the year 1985, the Respondents challenged the appointment of the Arbitrator and another Single Judge accepted it. That order came to be challenged in the Apex Court. The Apex Court held that long participation and acquiescence in proceeding precluded such a party from contending that the proceedings were without jurisdiction and directed the arbitration to proceed. The Apex Court quoted with approval the observations in the case of Arbn. Jupiter General Insce. Col. Ltd. v. Corpn. of Calcutta reported in : AIR1956Cal470 to the following effect:-

'It is necessary to state at the outset that Courts do not favour this kind of contention and conduct of an applicant who participates in arbitration proceedings without protest and fully avails of the entire arbitration proceedings and then when he sees that the award has gone against him he comes forward to challenge the whole of the arbitration proceedings as without jurisdiction on the ground of a known disability of a party.'

As far as the contention that transmission of tenancy right could not have been referred to arbitration, the learned Single Judge held in paragraph 9 that what the Arbitrator had done was to decide as to which group the tenancy rights should go. He had not declared any single individual as having inherited tenancy rights and that was after taking into consideration all the facts and circumstances of the case. The learned Single Judge observed as follows:-

'Moreover, for the declaration or determination of an heir as tenant as contemplated by Section 5(11)(c)(i) of the Rent Act, the presence of landlord would be necessary as this required determination of a legal, status of a person. The determination by the learned Arbitrator is not a determination as contemplated by the said provision but a step towards final determination. The Agreement contemplated by the said provision is two-fold. Firstly between heirs inter se and, secondly between the heirs and the landlord. In these circumstances, there is no question of any illegality as far as reference is concerned or Award is concerned. In view of the above, I find no substance in the submission made.'

23. Mr. Setalwad submitted that in the present case also although the Arbitrator proceeded from 1991 to 1997 obtaining extension from time to time, the question of lack of jurisdiction was not raised. There is an acquiescence in the Arbitrator deciding the question raised before him and now, the Appellants cannot be permitted to contend that the Arbitrator did not have jurisdiction to decide the controversy before him. Mr. Setalwad laid emphasis on the fact that the writing was executed by the deceased in his life time on 26th November 1955 taking Brahmesh and Mahabaleshwar as partners. It has no where been pointed out that, nor is there any affirmation that the said Agreement was abandoned or not acted upon. A joint partnership account was opened in Punjab National Bank on 24th April 1957. It was operated jointly by Brahmesh and Mahabaleshwar and this is borne by a cheque signed by both Brahmesh and Mahabaleshwar as recently as on 29th February 1988 as partners of WFAS. The plea of partnership was given up only because the WFAS was an unregistered partnership Firm and the Maharashtra Amendment to Section 69 of the Partnership Act, 1932 precluded the Respondents from pursuing from their rights in respect of an unregistered Firm. This did not detract from the fact that there existed a partnership Firm and the assets were jointly in the family of the deceased as and by way of partnership. It is only when the Mahabaleshwar's share to the partnership assets was denied that the Suit had to be filed.

24. Mr. Setalwad submitted that the transfer of the business of WFAS as a going concern could not be hit by Section 28 of the Bombay Rent Act. This is because it was not a dispute (a) between a landlord and tenant relating to the recovery of rent or possession of the premises, (b) between a licensor and licensee relating to the licence fee or charge, or (c) to deal with any claim or question arising out of the Bombay Rent Act or any of its provisions. All that the Arbitrator had done was to determine the shares of the heirs and then for realizing them he directed the sale of the business of the Firm along with its goodwill and tenancy. In his submission, the Award will not be hit by the judgment in Natraj Studios case (supra) as the provisions of Section 28 were not attracted.

25. In this submission, the sale of a going concern under the proviso to Section 15(1) was fully permissible. It cannot be faulted on the basis of the alleged claim of Brahmesh to the tenancy to the exclusion of others under Section 5(11)(c)(ii) of the Rent Act. This is because Brahmesh could not be said to be carrying on the business of WFAS in his individual capacity. Similarly, the judgment in the case of Vasant Pratap Pandit (supra) had laid down that when the tenant dies, protection should be extended to the members of the family who were participation in the benefit of the tenancy. On that footing, the parties who would be entitled to participate in the benefit, in the present case, cannot be restricted only to Brahmesh, but they would include all the heirs. Hence, the Award could not be challenged by contending that it was in excess of jurisdiction of the Arbitrator, and that he had usurped the jurisdiction of the Court of Small Causes under Section 28 of the Rent Act or that he had ignored the inheritance and protection available only to Brahmesh under Section 5(11)(c) of the Rent Act.

26. Mr. Setalwad, therefore, submitted that it could not be said that there was any error of law apparent in the Award. He emphasized the dicta in N. Chellapan's case (supra) that when any proposition of law is laid down in an Award and it is made the basis thereof and if it is found to be erroneous, then only it can be a ground to challenge it. In the present case, it is a non-speaking Award and even by going into the aforesaid aspects, it could not be faulted either for error apparent on the face of the record or for lack of jurisdiction. Mr. Setalwad lastly submitted that the Arbitrator was right in making a distinction between the residential premises and the business premises. The residential tenancy was in the name of Shri Vinayakrao Wagh and Brahmesh continued to stay there. That being so, the Arbitrator has rightly directed the other heirs to take steps in accordance with law, if they are aggrieved by the premises remaining with Brahmesh only. However, as far as the business tenancy is concerned, the position is not like that, in the sense that the rent receipts continued in the name of WFAS. That being so, Mr. Setalwad submitted that it was a going concern and in the inheritance of Late Shri Vinayakrao, all the heirs had an interest. This business formed a part thereof and, therefore, the Arbitrator was right in directing the sale of the business and tenancy and distribution thereof in accordance with their shares.

Conclusions:

27. While examining the issue of lack of jurisdiction, the question which requires consideration is that when the substantive law in a particular area (e.g. law of succession in this case) is modified/altered for a species thereof (residential and business tenancies in this case) by a statutory provision with a particular intent, coupled with creation of a special forum, can the authority of that forum to decide the disputes arising therefrom be impinged by contracting out or by acquiescence? It is another matter if a party which is a beneficiary of the benevolent provision knowingly gives up/or can be said to have given up the benefit. In Melanie (supra) the Appellants received the amount which was offered obviously to give up the claim to tenancy and later-on one year thereafter raked up the controversy. Though the second part of the reasoning of the learned Single Judge in this matter on tenancy cannot be approved, his ultimate decision cannot be faulted when one notes that the Appellants had given up their right, they had received the benefit in lieu thereof and, therefore, they were estopped from raising the question of jurisdiction. In the Calcutta Metropolitan case (supra), it was not a matter governing a special statutory provision either creating a right or special jurisdiction. There the question was whether the Respondent could raise the challenge to an outsider as an Arbitrator that a person from a specified panel alone was expected to be the Arbitrator particularly when this challenge was raised after participating before the outsider on 74 dates. It was held that the challenge could not be permitted.

28. In the present case, the submission of the tenancies being outside the inheritance as per Hindu Law was specifically raised in Para 13(k) of the Written Statement. That apart, it is also submitted that this was an issue within the special jurisdiction of the Court of Small Causes and outside that of the regular Civil Court and, therefore, also outside the authority of the Arbitrator. As per the judgment in Natraj Studio (Supra), such a plea when raised in the Written Statement had to be decided when it was related to the question of jurisdiction of the Arbitrator. And as per the judgment in Rajasthan Mines (supra), even in the case of a non-speaking Award, if there is a lack of jurisdiction in the arbitrator then such a question can always be raised since it goes to the root of the authority of the Arbitrator to deal with the particular controversy. Here the question is whether the Arbitrator could claim such an authority and the answer will have to be in the negative. We make it clear that for a moment we are not holding that Brahmesh exclusively succeeded to the tenancy of WFAS. All that we are saying is that he has raised this plea and there are factors in support thereof. Thus, he alone was a sculptor from amongst the sons of Shri Vinayakrao and he continued to run that very business in those premises. He has paid the rent may be from the account of WFAS) after Shri Vinayakrao died in 1958. The only other person who could claim to be running the business was Mahabaleshwar. He was a Painter and not a sculptor. Admittedly, he left the joint family house in 1963, went to stay in the Central suburb at Mahim and set up his studio there in 1963. In 1988, he claims to have been excluded from the business and in 1990 he filed the Suit. The writing of Shri Vinayakrao, a joint account and one cheque jointly issued in 1988 is the material in his support. As against this, it is submitted by Brahmesh that at the highest, business may be construed as common but not the tenancy. And then in a claim between two of them for tenancy, the Small Causes Court is given the special jurisdiction to decide it. All that we say in that this issue will have to be decided and the Small Causes Court alone has the authority to decide it. It may as well decide that the tenancy continued to be joint and did not devolve exclusively on Brahmesh, and then pass appropriate orders. (We again make it clear that for a moment we are not suggesting that the order should be one or the other). It is within the exclusive jurisdiction of that Court to decide this issue and not that of the Arbitrator. By 'agreeing to refer all disputes', the substantive right to claim exclusive inheritance cannot be said to be given up nor the authority to decide the submission of exclusive succession to tenancy can be said to be conceded to the Arbitrator. In fact, Brahmesh has squarely raised these issues. the Statute (Rent Act) confers the exclusive jurisdiction to decide such controversy on the Court of Small Causes. If the Appellants were to give up their claim to exclusive inheritance (as in Melanie's case by implication) it was another matter. If they raise such an issue, the Arbitrator cannot decide it.

29. From Section 5(11)(c) it is clear that the legislature has given protection to a member of the family of the deceased either residing with him or carrying on business with him at the time of the death of the deceased tenant. This protection and inclusion in the definition of tenancy is restricted only to a member of the family and made available neither to all the heirs nor even to all the members residing or carrying on business with the deceased. This is clear from the part of the section which provides that in the event of a claim by more than one member of a family, the dispute is to be resolved either by agreement or by the Court of Small Causes. In the instant case, Brahmesh has made that claim. There is one more reason to take the view that we are adopting. In any such determination with respect to the claim of exclusive succession to the tenancy, the landlord of the property would be a necessary party and he could be joined in the proceedings in the Small Causes Court which would not be the situation in an inter se dispute in arbitration amongst the heirs.

30. As noted above, under Section 5(11)(c)(ii) of the Bombay Rent Act, a tenant is defined to mean a member of the tenant's family using the premises for the purposes of business with the tenant at the time of his death. Brahmesh has made that claim that he was the one who was carrying on the business of the deceased Vinayakrao at the time of his death in the year 1958 and has continued to carry it on thereafter. The last portion of Section 5(11)(c)(ii) provides that in the absence of any such member, any heir of the deceased tenant, as may be decided by an agreement or in absence thereof an heir decided by the Court, can claim this tenancy. This Court is Small Causes Court. It is the case of Brahmesh that the tenancy has exclusively devolved on him. If Mahabaleshwar and others are of the view that the tenancy did not so devolve only on Brahmesh and that it remained joint or that it devolved only on Mahabaleshwar,it is for them to establish that. The last part of Section 28(1)(b) of the Bombay Rent Act provides exclusive jurisdiction to the Small Causes Court 'to decide any application made under this Act and to deal with any claim or question arising out of this Act or any of its provisions'. This part also declares that subject to the provision of Sub-section (2), no other Court shall have jurisdiction to entertain any such suit, proceeding or application or to deal with such claim or question. Sub-section (2) of Section 28 gives the power to the District Court to withdraw any such suit, proceeding or application pending in the Small Causes Court in certain circumstances, with which we are presently not concerned. This being the position, and since the question has been raised, it will have to be decided in the proper forum only and not else where. In this connection, it is material to note that in the case of P.V. Raheja v. Life Insurance Corporation of India and Ors. reported in : AIR1982Bom523 , a learned Single Judge (Smt. Sujata Monohar, J. as The Hon'ble Judge then was in this Court) has held as under:-

'.....in order that a claim should arise under the provisions of the Bombay Rent Act, it is not necessary that the claim should be between a landlord and a tenant. Section 28 is wide enough to cover all questions which arise out of the Bombay Rent Act even though the parties may not have the legal relationship of a landlord and a tenant. In order to decide whether the claim of the plaintiff arises under the Act or not, one has to examine the substance of the case in the plaint and not merely the manner in which the claim is framed.'

31. For the reasons stated above, we hold that Direction 'B' of the Arbitrator to the extent the Arbitrator directed sale of the tenancy rights of following premises was outside his jurisdiction and was bad in law:-

(i) two show rooms and two attached rooms situated at Beach View, N.A. Purandare Road, Chowapatty, Mumbai-400007;

(ii) Gala No. 19 (now numbered as Gala No. 11) at Charring Cross Compound, 164 Senapati Bapat Marg, Mumbai 400 016; and

(iii) one room at Govalia Tank, behind Mahavir Jain Vidyalaya, Mumbai.

Accordingly, we set aside this part of the Direction. It will be open to the parties to adopt such proceedings with respect to them in a Court of competent jurisdiction. Rest of the award stands confirmed. The Appeal stands allowed to the aforesaid extent.

32. Parties will bear their own costs.

33. Authenticated copy of this judgment be made available to the parties.

34. After the judgment was pronounced, Mr. Raymond appearing for Respondent Nos. 1B and 1C and Mrs. Pai appearing for Respondent Nos. 2 to 5, state that their clients may consider challenging this judgment in the Apex Court. They, therefore, request that the Appellants be restrained from creating any third party rights in the premises concerned for a period of eight weeks. Mr. Shah appearing for the Appellants states that the Appellants will not create any third party rights nor induct anybody in the premises concerned for a period of eight weeks.

35. Mr. Shah appearing for the Appellants conversely makes a request that the Respondents will not execute those directions of the Award which have been upheld in this judgment for this period of eight weeks. Mr. Raymond appearing for Respondent Nos. 1B and 1C and Mrs. Pai appearing for Respondent Nos. 2 to 5, on instructions, state that these Respondents will also not execute those directions for this period of eight weeks.

36. Certified copy expedited.