Bombay high court upholds cousin’s right to inherit tenancy of flat in Dadar Parsi Colony

Mumbai: The Bombay high court has upheld a woman’s right as the cousin and heir of a deceased tenant to inherit the tenancy of a flat owned by the Bombay Parsi Punchayet in Parsi Colony, Dadar (East).Justice Milind Sathaye on Wednesday dismissed the petition by Parsi Punchayet Funds and Properties, Bombay, finding no “perversity” in orders of the Small Causes Court, Mumbai, and its appellate bench, that had declared Katy Mistry, now 81 years old, a tenant of Patel Building.After tenant Baji Patel’s death in April 1993, Mistry filed an application to be recognised as a tenant. She said she is Patel’s mother’s sister’s daughter and resided with Patel and other family members during his lifetime and till his death. Denying her claim, the trust contended she is a rank trespasser trying to usurp the flat. In Dec 1997, the trial court ruled in Mistry’s favour. In Sept 1999, the appellate court confirmed the order but set aside the finding that she stayed as Patel’s family member in the flat. The trust moved the HC.Justice Sathaye noted that the appellate court had clarified Mistry failed to prove residence as a family member of Patel. However, both courts below had held that Mistry proved she is Patel’s heir under Indian Succession Act, applicable to Parsis, being his cousin.Mistry’s advocate Tushar Dahibawkar argued she is entitled to be recognised as a tenant under a section of the Bombay Rent Control Act 1947. Justice Sathaye observed that the section has two parts: a family member residing with the tenant at the time of tenant’s death, or, in the absence of such member, any heir of the deceased tenant. The second part “is not qualified with any condition” of co-residence.“In the present case, nobody is found to have been residing with the deceased tenant at the time of his death. Therefore, the second part … will apply,” he added. Further, “in the absence of any other heir coming forward or found out by the petitioner landlord, respondent (Mistry) has been held as tenant by the court”.Justice Sathaye said Mistry’s genealogy remained unchallenged and investment certificates till March 1992 showed Patel and Mistry as joint holders. He found no merit in the trust’s advocate’s argument that as Patel’s obituary notice did not mention Mistry’s name, therefore she was not a relative or family member. He said mere non-inclusion of name “will not take away a person’s relationship”.