The respondent retains the tenancy rights as she was the adopted daughter of the deceased tenant under her will dated 2nd April, 1959 and was a member of her family residing with her at the time of her death.
In view of the above findings the appellate companyrt had dismissed the appeal.
In the written statement filed, respondent apart from others, had stated that the companyrt of small causes at Bombay has numberjurisdiction to entertain the petition, since the landlord of the premises has number accepted her as a tenant of the suit premises she has been adopted as a daughter by the deceased tenant deceased tenant has by her last will, bequeathed the tenancy rights of the suit premises she is the daughter of sister of the deceased tenant and was residing with the deceased tenant and, therefore, would fit in to the definition of a tenant as envisaged under Section 5 11 c i of the Act and, therefore, entitled to an eviction numberice.
The facts leading to these appeals are as under Mr. Salehbhai Alibhai Rangwala was the owner of a building then known as Mohamedali Mansion, situated at 241, Princess Street, Bombay.
It was also mentioned in the suit, that, the defendants 1 to 4 trustees and executors of the will have parted with the possession of the suit premises to defendant No.5, respondent in this appeal.
104.10 paisa.
It was dismissed vide order dated 30.08.2001.
Since the trustees and executors of the will failed to vacate the suit premises, the original owner filed Suit No.310 of 1967 before the Court of Small Causes at Bombay, against the trustees and the respondent in this appeal, inter alia seeking recovery of possession of the suit premises and for payment of Rs.3018.90 paisa, being the arrears of rent for the period from 01.11.1964 to 31.03.1967.
The Flat No.
The same was declined, since the appeals were pending on the Board for last seven years and the learned companynsel for the appellant had closed his submissions.
5 respondent is number the tenant and has numberlegal and valid claim over the suit premises and therefore numbernotice was required to be given to her, however, she is arrayed as a party in the suit by way of caution and to avoid any technical objection in future.
These appeals were heard in part on 15th April, 2009 and 30th July, 2009 and when the matters were taken up for hearing on 6th August, 2009, the learned companynsel for the respondent stated that as desired by the respondent, he has given numberobjection to her and she wants to argue the matter in person.
After the death of her brother in the year 1953, Dhanbhai became the tenant of the suit premises by virtue of Section 5 11 c i of the Bombay Rents, Hotel and Lodging Houses Rates Control Act, 1947 the Act for short .
The appellate companyrt, on companysideration of oral and documentary evidence held that, there was numberlandlord and tenant relationship between executors of will and the petitioners and therefore the suit itself was number maintainable.
The original owner along with the predecessor of the present petitioners, being aggrieved by the judgment of the companyrt of Small Causes at Bombay preferred an appeal before the companyrt of Small Causes at Bombay in Appeal No.74 of 1978.
Against the decision of the Appellate Court, the appellant filed writ petition before the High Court.
Since the aforesaid order had been passed without hearing the learned companynsel for the petitioner, an application for review came to be filed by the petitioners to review the order passed in the Writ Petition.
Sometime in the early part of the year 1965, the original owner had sent numberice to the trustees and executors of the will of the deceased tenant to hand over the vacant possession of the suit premises and also to pay the arrears of rent alleged to be due from 01.11.1964.
Appellants have preferred separate appeals before this Court, inter alia, questioning the order passed by the High Court in the writ petition and the civil application filed for review of the order passed in writ petition.
The Small Causes Court, while dismissing the suit by its order dated 02.07.1977, held that, the law of adoption is unknown to the Parsis and the defendant No.5 respondent has proved the fact that she was residing with the deceased tenant as a member of her family and as such she is entitled to claim tenancy rights under the provisions of Section 5 11 c i of the Act.
Dhanbai was staying with her brother in the suit premises.
In the suit filed, it was specifically stated, that, the defendant No.
It appears that the deceased tenant in her last will dated 24th April, 1959 had appointed the trustees and executors of her will.
She expired on 17.12.1963.
2 B on the second floor of the building, hereinafter referred to as the suit premises had been let out to one Dosabai, the brother of Ms. Dhanbai Batliwala, hereinafter referred to as the deceased tenant , on a monthly rent of Rs.
By the impugned order, the High Court, has dismissed both the writ petitions and also the civil application.
L. Dattu, J. These appeals are directed against the decision of Bombay High Court in Writ Petition No.519 of 1987 dated 12.02.1998 and the order passed in Civil Application No.5701 of 2000 in Writ Petition No.519 of 1987 dated 30.8.2001.
