Tenancy – Statutory Tenancy – Can be bequeathed by Will – Unless it is specifically barred by some provision – Powers of Appellate Court – Subsequent Events – Mould relief accordingly: Section 96 of CPC:

One Bomanji Irani, who was the predecessor of Appellants herein, acquired tenancy rights in respect of the premises. The premises comprised of residential Bungalow. Bomanji executed a Will dated 15th October, 1934 in favour of his children and wife Daulatbai, appointing Daulatbai as a residuary legatee of the Will. Bomanji Irani died on 27th September, 1946 leaving behind his wife Daulatbai; five sons, and three daughters. The Will was probated with consent of all the legal heirs and Daulatbai had rights over the suit premises and the tenancy rights which, as claimed, could be bequeathed as per law. Daulatbai executed a Will on 2nd January, 1949 in favour of her son Dinshaw who was the original Defendant No. 2. However, the said Will was not probated.

The then Bombay Municipal Corporation (‘BMC’) acquired ownership rights in respect of the suit premises and issued eviction notices to the heirs and legal representatives of Bomanji, comprising Daulatbai and five sons. In response to the eviction notices, the legal heirs and representatives of Bomanji objected to the same but they consented to the tenancy being transferred in the name of Dinshaw Irani (original Defendant No. 2).

Daulatbai addressed a letter to the BMC requesting for transfer of rent bills in the name of her son Dinshaw. The BMC passed an eviction order against the heirs and legal representatives of Bomanji. Against the said eviction order passed by the BMC, the heirs and legal representatives of Bomanji jointly filed a suit as joint tenants,. Daulatbai died during the pendency of this suit. On 11th July 1977, the said suit was decreed in favour of the Plaintiffs and the order passed by the BMC terminating the tenancy was set aside. By letter dated 18th September, 1981, BMC transferred the tenancies in favour of Dinshaw, subject to certain conditions. Respondent No. 1 (son and legal heir) and Respondent No. 5 (son of the legal heirs) objected to the transfer of tenancy in the name of Dinshaw Irani.

The Respondents (legal heirs of Homi and Ardeshir Irani) on coming to know about the transfer of tenancy of the suit premises, issued a notice and subsequently filed Long Cause Suit challenging transfer of tenancy before the City Civil Court at Bombay. The City Civil Court dismissed both the suits by two separate judgments.

On further Appeal, the Court observed that divesting of tenancy rights by means of a Will is a highly debated topic and is subject to the tenancy laws of the concerned State. In the present matter, the tenancies being the suit premises are owned by the local authority of Mumbai and are subject to the State Act being the Bombay Rents, Hotel And Lodging House Rates Control Act, 1947. The said Act, since repealed, exempts the present tenancy from its purview as per section 4(1). The BMC Act is also silent on this aspect.

In the case of Gian Devi Anand vs. Jeevan Kumar and Ors. (1985) 2 SCC 683, four Judges of a five-Judge Constitution Bench held that the rule of heritability extends to statutory tenancy of commercial as well as residential premises in States where there is no explicit provision to the contrary and tenancy rights are to devolve according to the ordinary law of succession unless otherwise provided in the statute.

The Court observed held that, in general, tenancies are to be regulated by the governing legislation, which favour that tenancy be transferred only to family members of the deceased original tenant. However, in the light of the majority decision of the Constitution Bench in Gian Devi vs. Jeevan Kumar (supra), the position which emerges is that in absence of any specific provisions, general laws of succession to apply.

The BMC by means of a letter dated 19th September, 1961 treated all the heirs of Bomanji as joint tenants; and the heirs of Bomanji by means of letter dated 25th October, 1961 also claimed themselves to be joint tenants; Daulatbai in her letter dated 3rd February, 1962 also claimed joint tenancy along with her sons and sought transfer of the rent receipts only in the name of her son Dinshaw.

The High Court taking note of the subsequent events moulded the relief in the appeal u/s. 96 of the Code of Civil Procedure and the same has been challenged by the Appellants. In ordinary course of litigation, the rights of parties are crystallised on the date the suit is instituted and only the same set of facts must be considered. However, in the interest of justice, a court including a court of appeal u/s. 96 of the Code of Civil Procedure is not precluded from taking note of developments subsequent to the commencement of the litigation, when such events have a direct bearing on the relief claimed by a party. The entire purpose of the suit the Courts taking note of the same should mould the relief accordingly. This rule is one of ancient vintage adopted by the Supreme Court of America in Patterson vs. State of Alabama 294 US 600 followed in Lachmeshwar Prasad Shukul vs. Keshwar Lal Choudhury AIR 1941 FC 5. The abovementioned principle has been recognised in a catena of decisions.

The normal rule is that in any litigation the rights and obligations of the parties are adjudicated upon as they obtain at the commencement of the lis. But this is subject to an exception. Wherever subsequent events of fact or law which have a material bearing on the entitlement of the parties to relief or on aspects which bear on the moulding of the relief occur, the court is not precluded from taking a ‘cautious cognisance’ of the subsequent changes of fact and law to mould the relief.