Bombay HC: An Heir Need Not Have Resided With Deceased Tenant to Claim Tenancy Under Bombay Rent Act

Justice M.M. Sathaye upholds concurrent findings recognising a first cousin as heir-tenant under section 5(11)(c)(i) of the Bombay Rent Act, reading the provision's two parts as disjunctive.

The Bombay High Court has dismissed a writ petition filed by the Parsi Punchayet Funds and Properties, Bombay, challenging concurrent orders of the Small Causes Court, Mumbai, that declared Ms. Katty J. Mistry a tenant of a flat in Patel Building, Dadar. Justice M.M. Sathaye, sitting singly, held that the second limb of section 5(11)(c)(i) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 — which covers “any heir of the deceased tenant” — operates independently of the first limb and carries no requirement that the heir must have been residing with the tenant at the time of death. The judgment, pronounced on 10 June 2026 in a petition admitted as far back as 16 August 2000, settles the reading of a provision that had remained contested between the parties for over two decades.

The Flat, the Deceased Tenant, and the Claim

Flat No. 2 on the first floor of Patel Building, 782 Mancherji Joshi Road, Parsi Colony, Dadar, Mumbai, was let to one Mr. Baji B. Patel by the Parsi Punchayet Trust. Baji died on 23 April 1993. The rent receipt stood in his name alone.

Ms. Mistry filed an application before the Small Causes Court under section 5(11)(c)(i) of the Bombay Rent Act seeking recognition as tenant and a direction to transfer the rent receipt to her name. Her case rested on two distinct grounds: first, that she was a member of Baji's family who had been residing with him; and second, that she was his heir under the Indian Succession Act, 1925, as applicable to Parsis. She described herself as Baji's mausi-ki-ladki — his mother's sister's daughter, making them first cousins. She produced a genealogy showing that Baji's mother, Ms. Najoo Byramji Patel, and her own mother, Ms. Frenny Jalejar Patel, were real sisters, both daughters of one Munchersha Jeevanji Patel.

The Trust opposed the application on multiple grounds: absence of privity of contract, non-joinder of other heirs, denial of any relationship with Baji, and a specific contention that after Baji's death, the Trust's representative had found the flat's padlock broken open with four persons inside, leading to a police report. The Trust characterised Ms. Mistry as a rank trespasser.

What the Courts Below Found

The Trial Court of the Small Causes Court, by its order dated 16 December 1997, allowed the application, declared Ms. Mistry a tenant, and directed the Trust to issue a rent receipt in her name. The Trust appealed. The Appellate Bench of the Small Causes Court, by its order dated 30 September 1999, dismissed the appeal and confirmed the Trial Court's order. However, the Appellate Bench set aside one specific finding: it held that Ms. Mistry had not proved that she was residing with Baji in the suit premises at the time of his death.

Despite setting aside the residence finding, the Appellate Bench sustained the declaration of tenancy on the basis of heirship. It considered sections 50 and 55 of the Indian Succession Act, 1925, along with Schedule II, Part II, clause 4, and held that Ms. Mistry qualified as a legal heir of Baji. The Trust then filed the present writ petition under Articles 226 and 227 of the Constitution of India.

The Statutory Text and Its Two Limbs

The central question before Justice Sathaye was the correct reading of section 5(11)(c)(i) of the Bombay Rent Act. The provision defines “tenant” to include, in relation to premises let for residence, when the tenant dies:

“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.”

Justice Sathaye held that the word “or” separating the two parts must be read as disjunctive. The first part covers a family member who was residing with the tenant at the time of death. The second part — triggered only in the absence of such a family member — covers any heir of the deceased tenant. Critically, the legislature did not qualify the phrase “any heir of the deceased tenant” with any condition of residence. The Court therefore held that an heir claiming under the second limb is not required to have been residing with the tenant at the time of death.

Applying this to the facts: since nobody was found to have been residing with Baji at the time of his death, the second limb was directly attracted. Ms. Mistry was the only person who had come forward with a claim of heirship, supported by genealogy and oral evidence that was not shaken in cross-examination. The Trust had itself failed to establish that any other person was an heir or legal representative of Baji.

The Evidence on Relationship

Three Unit Trust Certificates dated 31 July 1988, 17 July 1992, and 11 March 1992 showed Ms. Mistry as a joint-holder with Baji. Justice Sathaye observed that since Baji died on 23 April 1993, these investments predating his death by several years could not have been fabricated solely to establish a tenancy claim. Ms. Mistry was not cross-examined on this aspect.

The Trust had pointed to the ration card (which showed only Baji's name), a municipal election slip (which showed Ms. Mistry's address as the ground floor, not the first floor where the flat is situated), a letter dated 31 October 1991 written by Baji to the Trust asserting he was the only son and legal heir of his father, and the absence of Ms. Mistry's name from an obituary notice published on the death of Baji's father. Justice Sathaye addressed each of these in turn.

On the ration card, election slip, and the form listing persons staying with the tenant: since the Appellate Court had already held that Ms. Mistry was not residing with Baji, these documents went only to the question of residence and required no further consideration.

On Baji's letter of 31 October 1991: the Court held that Baji's assertion that he was the only son and legal heir of his father Byramji had nothing to do with who was Baji's own heir. Ms. Mistry was not claiming to be an heir of Byramji.

On the obituary notice: Justice Sathaye rejected the argument as “weak and far-fetched,” observing that an obituary can be published by any relative and that non-inclusion of a name in a newspaper notice does not extinguish a person's legal relationship.

Precedents Distinguished

The Trust relied on five judgments. Justice Sathaye distinguished each.

In Kailasbhai Shukaram Tiwari v. Jostna Laxmidas Pujara, (2006) 1 SCC 524, the question was whether a cousin who was admittedly residing with the tenant could be a “family member.” No claim based on heirship was under consideration. The present case involved a claim under both limbs of section 5(11)(c)(i), making the facts distinguishable.

In Jaysen Jayant Rele v. Shantaram Ganpat Gujar, 2002 SCC OnLine Bom 218, the claimant was a domestic servant who had stayed with the tenant and claimed a relationship akin to that of a son. The Court had held that the Bombay Rent Act could not be construed to protect strangers with no blood relation. In the present case, blood relationship had been concurrently found proved, so that judgment offered no assistance to the Trust.

In Rajaram Brindavan Upadhyaya v. Ramraj Raghunath Upadhyaya, 1977 SCC OnLine Bom 73, the Court had held that section 5(11)(c) of the Bombay Rent Act was not meant to supersede the right of inheritance to tenancy vesting in an heir under personal law. Justice Sathaye held that this judgment actually supported Ms. Mistry, since she was claiming heirship under the Indian Succession Act.

In Pradeep Kumar Lalit Kumar Pandya v. Harisingh J. Kapadia, 2024 SCC OnLine Bom 3766, the claim was made solely as a family member residing with the tenant; heirship was never pleaded. The issue in the present case was different.

The judgment in Mrs. Rati Cyrus Havewala v. Minoo Shroff, Writ Petition No. 3663 of 2006, was also relied upon by the Trust but Justice Sathaye's analysis of the other four judgments effectively covered the field without requiring separate treatment of that case.

The Eviction Suit Argument

Ms. Mistry's counsel argued that the writ petition had become infructuous because the Trust itself had filed a Rent Act eviction suit — R.A.E. Suit No. 515 of 2000 — against her under the Bombay Rent Act on grounds including non-user, bona fide requirement, breach of terms of tenancy, and unlawful subletting. The argument was that by filing a Rent Act eviction suit, the Trust had treated Ms. Mistry as a tenant, contradicting its own position in the writ petition. The eviction suit was dismissed on merits on 6 December 2025.

The Trust's counsel responded that the eviction suit had been filed expressly subject to the outcome of the writ petition. Justice Sathaye accepted this position. Perusal of paragraph 7 of the plaint in R.A.E. Suit No. 515 of 2000 confirmed that it was filed subject to the final outcome of the writ petition. The writ petition was therefore not infructuous. The Court added that the dismissal of the eviction suit on merits was an independent matter to be decided on its own, and declined to comment on its merits. Contentions of both sides on that suit were kept open.

Outcome

Justice Sathaye held that the findings of both the Trial Court and the Appellate Bench of the Small Causes Court did not suffer from any perversity. The view taken was the most probable view on the material on record. No ground for interference in the limited writ jurisdiction existed.

Writ Petition No. 3944 of 2000 was dismissed. The Rule was discharged. No order as to costs was made.