[Bombay Rent Act] Heir Need Not Reside With Deceased Tenant At Time Of Death To Inherit Tenancy: Bombay High Court

The Bombay High Court has held that an heir of a deceased tenant is not required to have been residing with the tenant at the time of death to inherit tenancy under Section 5(11)(c)(i) of the Bombay Rent Act, 1947. The Court observed that where no family member was residing with the deceased tenant at the time of death, any heir of the deceased tenant can be recognized as a tenant, and the statute does not impose a condition that such heir must have been residing with the tenant.

Justice M.M. Sathaye was hearing a writ petition filed by the Parsi Punchayet Funds and Properties, Bombay, challenging concurrent findings of the Small Causes Court and the Appellate Bench declaring the respondent as the tenant of a flat after the death of the original tenant. The respondent had claimed tenancy on the basis that she was the first cousin of the deceased tenant and therefore his heir under the provisions of the Indian Succession Act applicable to Parsis. While the Trial Court accepted her claim, the Appellate Court clarified that she had failed to prove that she was residing with the deceased tenant at the time of his death, but nevertheless upheld her claim as an heir.

The Court noted that both the courts below had concurrently held that the respondent had proved her relationship with the deceased tenant. It observed that there was no effective challenge to the genealogy produced by the respondent, and no evidence was led by the landlord to establish that any other person was the heir or legal representative of the deceased tenant. The Court also noted that the respondent had produced Unit Trust certificates showing her name jointly with the deceased tenant, which supported her claim of relationship.

Examining Section 5(11)(c)(i) of the Bombay Rent Act, the Court observed that the provision consists of two distinct parts. The first part applies to a family member residing with the tenant at the time of the tenant's death. The second part applies in the absence of such a family member and permits the Court to recognize any heir of the deceased tenant as a tenant.

The Court held that the word “or” separating the two parts must be read disjunctively and that the legislature had not qualified the expression “any heir of the deceased tenant” with the condition of residing with the tenant at the time of death.

The Court observed that since nobody was found to have been residing with the deceased tenant at the time of his death, the second part of Section 5(11)(c)(i) would apply. As no other person had claimed heirship and the respondent had established her status as an heir, the courts below were justified in recognizing her as a tenant.

“…in absence of family member of tenant residing with tenant at the time of tenant's death, any heir of tenant is not required to be residing with tenant at the time of tenant's death, to be included in tenant's definition,” the court observed,

Finding no perversity in the concurrent findings of the courts below, the Court dismissed the writ petition and upheld the declaration of the respondent as tenant of the suit premises.

Case Title: Parsi Punchayet Funds and Properties, Bombay v. Ms. Katty J. Mistry [Writ Petition No. 3944 of 2000]

Citation: 2026 LiveLaw (Bom) 288

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