The Bombay High Court has upheld the right of a woman, as the cousin and heir of a deceased tenant, to inherit the tenancy of a flat owned by the Bombay Parsi Punchayet in Parsi Colony, Dadar (East). Justice Milind Sathaye dismissed the petition filed by the Parsi Punchayet Funds and Properties, Bombay, on Wednesday, finding no perversity in the orders of the Small Causes Court, Mumbai, and its appellate bench, which had declared Katy Mistry, now 81 years old, a tenant of Patel Building.
Background of the Case
After the death of tenant Baji Patel in April 1993, Mistry filed an application seeking recognition as a tenant. She claimed to be Patel's mother's sister's daughter and stated that she resided with Patel and other family members during his lifetime and until his death. The trust denied her claim, contending that she was a rank trespasser attempting to usurp the flat. In December 1997, the trial court ruled in Mistry's favor. In September 1999, the appellate court confirmed the order but set aside the finding that she stayed as Patel's family member in the flat. The trust then moved the High Court.
High Court's Observations
Justice Sathaye noted that the appellate court had clarified that Mistry failed to prove residence as a family member of Patel. However, both lower courts had held that Mistry proved she is Patel's heir under the Indian Succession Act, applicable to Parsis, being his cousin. Mistry's advocate, Tushar Dahibawkar, argued that she is entitled to be recognized as a tenant under a section of the Bombay Rent Control Act 1947.
Justice Sathaye observed that the section has two parts: a family member residing with the tenant at the time of the tenant's death, or, in the absence of such a member, any heir of the deceased tenant. The second part is not qualified with any condition of co-residence. In the present case, nobody was found to have been residing with the deceased tenant at the time of his death. Therefore, the second part applies. Further, in the absence of any other heir coming forward or being found by the petitioner landlord, the respondent (Mistry) has been held as tenant by the court.
Genealogy and Evidence
Justice Sathaye said Mistry's genealogy remained unchallenged, and investment certificates until March 1992 showed Patel and Mistry as joint holders. He found no merit in the trust's advocate's argument that Patel's obituary notice did not mention Mistry's name, thereby indicating she was not a relative or family member. He stated that mere non-inclusion of a name will not take away a person's relationship.
The court dismissed the petition, upholding Mistry's tenancy rights. This judgment reinforces the legal principle that heirs, even if not co-residing, can inherit tenancy rights in the absence of family members residing with the deceased tenant.
