Legal Heir Not Residing with Tenant at Death Entitled to Tenancy Under Section 5(11)(c)(i)

The Petitioners (Trustees of the Parsi Punchayet) are landlords of Flat No. 2, Patel Building, Dadar. One Baji B. Patel was the original tenant who died on 23.04.1993

The Respondent, Katty J. Mistry, claiming to be Baji's first cousin (mother's sister's daughter), filed an application under the Bombay Rent Act for recognition as a tenant

The Petitioners contested this, alleging she was a trespasser who broke into the premises after Baji’s death

The Trial Court declared the Respondent a tenant

The Appellate Bench confirmed this status but set aside the finding that she was "residing" with the deceased at the time of death

The court primarily applied Section 5(11)(c)(i) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, which defines "tenant" to include family members residing with the tenant at the time of death or, in their absence, any heir as decided by the Court

The Court interpreted the word "or" in this section as disjunctive, separating the requirement of residence from the status of heirship

The Court relied on Sections 50 and 55 of the Indian Succession Act, 1925 (and Schedule II, Part II, Clause 4) to determine heirship for Parsi intestacy

The court distinguished Kailasbhai Shukaram Tiwari v. Jostna Laxmidas Pujara regarding the definition of "family member"

The court applied the principle from Rajaram Brindavan Upadhyaya v. Ramraj Raghunath Upadhyaya that rent laws do not supersede rights of inheritance under personal law

The Court reasoned that Section 5(11)(c)(i) consists of two distinct parts: the first requires residence with the tenant; the second, applicable in the "absence of such member," allows any "heir" to be recognized

Since the Appellate Court found no family member was residing with Baji, the Respondent’s claim shifted to the second part

The Court found that the Respondent provided an undisputed genealogy proving she was Baji’s first cousin (mother’s sister’s daughter)

Crucially, she produced Unit Trust Certificates from 1988–1992 where she was a joint-holder with the deceased, corroborating their relationship prior to the litigation

As the Petitioner failed to produce any other rival heirs and the Respondent qualified as an heir under Parsi succession law, her claim was valid regardless of her non-residency

The Respondent's status as a first cousin and legal heir was supported by evidence and concurrent findings of the lower courts. The Writ Petition was dismissed, and the orders of the Small Causes Court declaring the Respondent as the tenant were upheld