All heirs or family members residing with tenant at time of his death get joint tenancy.
When Pyarali Mazgaonwala, a legal tenant of a four-room flat in Haroon Manzil, Dongri, died in 1957, he left behind a will directing his son, Ahmedali to “reside separately and to maintain himself from his own earning”.
In 1999, using the will, Mazgaonwala’s daughter, Gulshan, won a suit in the trial court declaring that she was solely entitled to the tenanted Dongri flat. Ahmedali’s son, Zahid, was restrained from entering the flat he grew up in. However, last week, Zahid won the legal battle in the Bombay high court, which held that a tenant cannot bequeath his tenanted property by a will. Setting aside the 1999 order, Justice S Radhakrishnan reiterated that all heirs or family members residing with the tenant at the time of the tenant’s death get joint tenancy of the premises.
Zahid’s lawyer PS Dani argued that at the time of Mazgaonwala’s death, Ahmedali was residing in the Dongri flat. Despite the will, Ahmedali continued to live in the flat. and when he died, Zahid was residing with him. He pointed out that a 1979 HC judgment had ruled that no bequest of tenancy was possible. The judgment was upheld by the Supreme Court in 1994.
Gulshan’s lawyer SJ Irani placed heavy reliance on the will, in view of which, he said, Ahmedali could not be construed as a “member of the family”. He argued that the HC ruling against bequest of tenanted property came in 1979 whereas Pyarali made his will in 1957. Therefore, the order could not be applied retrospectively, he argued.
However, Justice Radhakrishnan, on July 11, held that the wordings in the will could not be construed to mean that Ahmedali was not a member of the family. He said the point regarding retrospective effect could be argued only in case of an amendment to an enacted law and not in the case of a judgement.
Who is a tenant?
Tenancy is the contractual permission from a landlord permitting someone to live on his property for a fee.
All those licensees and lessees in Mumbai, who occupied landlord-owned properties in February 1972, became 'statutory tenants'. By a 1989 amendment, the law gave the heirs of a tenant the right to continue to reside in the premises even after the original tenant died.
The law qualified that this right was only available to an heir who was residing with the tenant at the time of his death.
In a case of 1972 from Mumbai, the Supreme Court confirmed in 1994 that a tenant cannot bequeath his tenancy to his heirs. The property belongs to the landlord.
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