Holding

The appellant’s bona fide personal need for her own premises subsisted and the High Court erred in overturning the Appellate Court’s finding.

Summary

The appellant, owner of a flat, had temporarily moved to her brothers' premises after a severe burn injury and let the flat to the respondent on a licence basis. She later sought eviction of the respondent, claiming a bona fide personal need for her own flat for herself and her nephews/niece. The Trial Court dismissed her claim, but the Appellate Court of the Court of Small Causes held that her need was genuine. The High Court, relying on subsequent events and her co‑ownership of her brother's flat, set aside that finding and dismissed the eviction petition. The Supreme Court held that the appellant’s personal need for her own premises persisted, that the High Court was not justified in overturning the Appellate Court’s factual finding, and that co‑ownership of another flat does not negate her right to occupy her own flat. Consequently, the Supreme Court restored the Appellate Court’s order allowing eviction.

Issues considered

Whether the appellant established a bona fide and reasonable personal need for the suit premises despite changes in family circumstances.
Whether the High Court was justified in setting aside the Appellate Court’s finding of bona fide personal need.
Whether the appellant’s co‑ownership of another flat with her brother defeats her claim of personal need for her own flat.
Whether the appellant can be compelled to share accommodation with a co‑owner brother.

Legislation cited

Tenancy Act

Subjects

rent controlevictionbona fide personal needtenancylicenceco‑ownershipchange of circumstances

Judgment

- -~ JULIETA ANTONIETA TARCATO
v.
A

SULEIMAN ISMAIL

FEBRUARY 20, 2007

[B.P. SINGH AND H.S. BED!, JJ.] B

,., Rent Control and Eviction-Termination of tenancy-Bonafide
requirement-Dismissal ofeviction petition since in the changed circumstances
the need of landlady did not survive-Correctness of-Held: Landlady has
every right to occupy her own premises and cannot be compelled to share
c
accommodation with her brother-co-owner in another premises-In the
changed circumstances even if other family members no longer required the
premises, the bonajide personal need of the landlady for the premises owned
by her exclusively survived-Thus, order of High Court set aside.
D
Appellant owned premises and was residing therein with her mother,
nephews and niece. She suffered serious burn injuries and moved to the
premises owned by her two brothers. At that time respondent was in need of
accommodation since the premises occupied by him had collapsed. Appellant
and the respondent entered into an agreement and let out her premises to the
respondent on leave and licence basis. After several years, appellant decided E
not to burden her brother and return to her own premises. She issued notice
for termination of tenancy and thereaher filed eviction petition on the ground
of her own reasonable and bonafide need and also her nephews and niece to
pursue their studies. Trial Court dismissed the petition since the
... accommodation in her brother's premises was sufficient for the appellant as
F
well as other who were residing with her and as such her requirement was
not reasonable. Appellant filed an appeal. Appellate Court allowed the appeal
holding that the appellant had made out a case of bona fide personal need of
suit premises. Respondent filed writ petition. High Court allowed the same
holding that in the changed circumstances and subsequent events, the need
of the appellant did not survive. Hence the present appeals. G
Allowing the appeals, the Court

HELD: 1.1. The finding of bonajide personal need recorded by the

811 H
SUPREME COURT REPORTS [2007] 2 s. C.R.
812
-...i -
.....
A Appellate Court is a finding of fact based on the evidence on. record. Having
considered the evidence on record, it is found that the finding recorded by the
Appellate Court did not deserve to be set aside. In fact, the High Court also
was of the same view, but in the changed circumstances, having regard to the
events that took place during the pendency of the Writ Petition, the High
Court interfered with the order of the Appellate Court. High Court was not
B justified in doing so. It cannot be lost sight of that ·the premises which the
appellant required for her personal bonafide need belonged to her. Trial Court
made much of the fact that the appellant had also pleaded her bonafide need of
providing accommodation to otherI members of the family. While doing so the
Trial Court completely lost sight of the fact that apart from the requirement
c of other members of the family, the appellant also required the premises for
her own accommodation. Thus, even if the other members of the family no
longer required the premises, the requirement of the appellant survived. She
had every right to occupy her own premises and she could not be told that she
should share accommodation with her brother in another apartment.
(Para 11) (817-D-F; 818-A, BJ
D
1.2. High Court erred in holding that since the appellant became a co-
owner of the premises upon the death of her brother she had a right to reside
in those premises and, therefore, her need for the premises owned by her "
exclusively did not subsist. On death of one of the brothers, appellant and her
sister gave their consent for the transfer of the flat in the name of the second
E brother, who was a co-owner of the flat alo.ng with her late brother. Even if
this fact is ignored one cannot compel the owner of the premises which
exclusively belongs to her to share accommodation with a co-owner of hers in
another premises. The appellant being the owner of the suit premises, her
need being bonafide and reasonable, it would be unfair to compel her to share •
F the accommodation in another premises with its co-owner. (Para 121
(818-B, C, DJ

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 3424-3425 of
2005.
From the Judgment and final Order dated 27.7.2004 of the High Court
G of Judicature at Bombay in C.A. Stamp No. 18692/04 in Writ Petition No. 4261/
-~
91 and Writ Petition No. 4261 /91.

Ranjit Kumar, S. Guru Krishna Kumar and S.R. Setia for the Appellant.
Raju Ramachandran, Vikas Singh, Taruna Singh, Abhijeet Sinha and Ejaz
H Maqbool for the Respondents.
JULIETA ANTONIETA TARCATO v. SULEIMAN !SMAIL [B.P. SINGH, J.] 813
---'""-
The Judgment of the Court was delivered by A
B.P. SINGH, J. I. In these appeals by special leave the appellant has
impugned the judgment and order of the High Court of Judicature at Bombay
dated July 27, 2004 in Writ Petition No.4261 of 1991. The High Court by its
impugned judgment and order allowed the writ petition filed by the tenant-
respondent herein and dismissed the application for eviction filed by the B
appellant to evict the respondent from the suit premises which is a flat located
at Bandra in the city of Mumbai. While doing so, the High Court set aside
< the appellate order of a bench of the Court of Small Causes, Mumbai which
had held that the landlady appellant herein had established her case of
bonafide personal need of the suit premises. Having regard to the finding
recorded by the High Court it is not necessary to reproduce the facts of the
c
case in detail but to appreciate the findings of the High Court it is necessary
to state the facts as briefly as possible.

2. The appellant herein undoubtedly, is the owner of the suit premises.
She was residing in the suit premises till December, 1971 when she suffered D
~ serious burn injuries. In the unfortunate circumstances, since there was no
male member residing with her, she moved to the premises owned by two of
her brothers namely, father Lawrence and Mr. Tito, which premises are known
....,,
as Ashoka Apartments. Till then she was residing with her mother and her
brother and two of her nephews and one niece. The brother being a sailor,
employed in the Merchant Navy, was very often on the high seas. Her E
brother, father Lawrence advised her that they should stay with him in the
Ashoka Apartments. At about that time, the respondent herein was in need
of accommodation since the premises occupied by him had collapsed and
there was urgent need of accommodation for him and his family members
which included two brothers, both of them lawyers. Under these circumstances, F
on 24th or 25th January, 1972 an agreement was executed between the landlady
and the respondent purporting to let out the premises on leave and licence
basis on monthly fee of Rs.550/-. It is not disputed that under the amended
provisions of rhe Tenancy Act, such a licencee has acquired the status of a
tenant.
G
........ 3. Having stayed with her brother for several years, the appellant decided
not to burden her brother any more and to return to her own premises along
with the family members who were earlier residing with her. Accordingly, a
notice terminating the tenancy was issued in the year 1979 and a suit for
.... eviction followed in the year 1980. It is not necessary to refer to other legal
H
814 SUPREME COURT REPORTS [2007] 2 S.C.R.

A proceedings relating to fixation of standard rent and eviction claimed on the
ground of default in payment of rent. The case of the appellant was that she
had to leave the suit premises in the circumstances narrated above, and
started living with her brother. However, she needed the suit premises for her
own reasonable and bonafide need and also for accommodating her two
nephews and her niece who always resided with her. Her nephews and niece
B also required sufficient accommodation to pursue their studies. The
accommodation available in her brother's flat was not only insufficient but
also inconvenient. She did not want herself and her nephews and niece to
be a burden upon her brother, father Lawrence who was a research scholar,
after enjoying his hospitality for a long time during her ailment. She submitted
C that she did not own any other immovable property in Mumbai nor did she
have sufficient means to acquire or secure any other suitable accommodation
for herself.

4. The respondent contested the application for eviction and denied
that the appellant required the suit premises reasonably and bonafide for her
D own use and occupation along with her two nephews and her niece. It was
asserted that they had been residing with the appellant in the Ashoka
Apartments with her brother, father Lawrence who owned a big self- contained
flat which had sufficient accommodation to accommodate all of them. There
was denial of the fact that the appellant did not own any other immovable
E property in Mumbai nor did she have sufficient means to acquire or secure
any other suitable accommodation for herself. It was also asserted that greater
hardship would be caused to him if the decree for ejectment was passed.

5: The Trial Court framed several issues, the crucial issue being whether
-the plaintiff failed to prove her bonafide reasonable need of suit premises for
F her own use and accommodation along with her two nephews and one niece.

6. The Trial Court found on the basis of material on record that the
appellant had been residing in the suit premises during the years 1966-68 and
even thereafter. Therefore, the plea urged on behalf of the respondent that
she used to give the suit premises to various persons on le.ave and licence
G basis was rejected. The facts found by the. Trial Court also disclosed that
soon after the appellant shifted to the apartment of her brother, the premises
were given to the respondent on leave and licence basis. The defendant was
also in dire need of accommodation since the premises occupied by him had
collapsed. The Trial Court however, came to the conclusion that the appellant
H had gone to reside in the Ashoka Apartments with the intention not to come
-
JULIETA ANTONIETA TARCATO v. SULEIMAN ISMAIL [B.P. SINGH, J.] 815
-~.>-
back in near future, and with that intention to give the premises on leave and A
licence basis to earn income therefrom. On the question of bonafide personal
need, the Trial Court came to the conclusion that the appellant had claimed
possession of the suit premises on the ground that the suit premises were
reasonably and bonafide required by her and her nephews and niece who had
grown up and required sufficient accommodation which was not available in
the Ashoka Apartments and that she did not want herself and her nephews B
and niece to be a burden on her brother Lawrence. The Trial Court observed
..( that the appellant had nowhere stated that she required the suit premises for
her nephews and niece who had to pursue their studies and vocation. The
Trial Court noticed that the mother of the appellant died during the pendency
of the suit and her i;nmarried sister also got married and was residing with c
her husband at Goa. Her niece also got married and was residing with her
husband at Goa, while one of her nephews Lino joined the Merchant Navy
and the other Brian was studying for his M.B.B.S. Degree. The Trial Court
considered the evidence in great details and came to the conclusion that since
some of the family members residing with the appellant started residing
elsewhere after marriage or on getting employed, there was sufficient D
:i accommodation available in the apartment of her brother Lawrence which was
a spacious apartment consisting of three bed rooms, a hall, kitchen etc.

7. The Trial Court further held that the appellant as well as her brother
Lawrence had sufficient income to maintain themselves and, therefore, the
plea of the appellant that she did not want to burden her brother any more
E
did not appear convincing. It, therefore, concluded that the accommodation
in Ashoka Apartments was sufficient for the appellant as well as others who
were residing with her. Her requirement of additional premises therefore could
'-'\. not be said to be reasonable and bonafide.
F
8. On such findings the Trial Court dismissed the eviction petition. The
appellant preferred an appeal before the Appellate Bench of the Court of Small
Causes at Mumbai. On a consideration of the evidence on record the Appellate
Bench held that the appellant had made out a case of bonafide personal need
of the premises in question. It found that the appellant had not left her own
apartment permanently without any intention of coming back. The Trial Court G
v_ was in e~or in holding that the appellant had left her apartment once for all.
In any event, this question was immaterial to decide the question of bonafide
personal need. It considered the appellant's plea that she had lived with her
brother for quite some time and she did not want to stay there any longer.
.... She therefore required her own premises for her own occupation and her need
H
816 SUPREME COURT REPORTS [2007] 2 S.C.R.

A could not be said to be unreasonable. Since she had her own flat on the
ground floor which suited her in her old age, and she did not wish to burden
her brother any more, there was nothing unreasonable in her wanting to
reside in her own apartment rather than continuing to reside in her brother's
apartment where she had to move under compelling circumstances on account
of serious burn injuries suffered by her. Moreover, before the accident in
B which she had suffered burn injuries, the appellant was residing in her own
flat. The Appellate Bench took notice of the fact brought on record that after
filing of the suit the appellant was detected to be suffering from heart ailment
and, therefore, she would enjoy staying in her own apartment rather than
staying with her brother. The Appellate Bench further observed that even if
C the appellant's sister and niece got married and were residing at different
places, and her mother had also died, that did not lead to the conclusion that
the bonafide personal need of the appellant to reside in her own apartment
did not survive. It may be that the premises were no longer required also for
providing accommodation to her sister, niece and mother, but her own need
for the premises subsisted. The Appellate Bench also recorded a finding that
D respondent would not suffer greater hardship than the appellant if he was
evicted from the premises in question.

9. On these findings the Appellate Bench allowed the appeal holding
that the appellant had established her bonafide personal need for the premises
E in question.i

10. The respondent preferred a writ petition before the High Court of
Judicature at Bombay which was ultimately allowed by the High Court by its
impugned judgment dated July 27, 2004. After briefly noticing the facts of the
case the High Court accepted the finding of the Appellate Bench that the
F appellant had not left the premises with the intention of staying with her
brother permanently. The High Court also accepted the finding of fact recorded
by the First Appellate Court that the appellant had no share in the flat in
Ashoka Apartments and, therefore had no right to stay therein. However, the
High Court was impressed by the subsequent events which were brought to
its notice by. a civil application filed by the respondent. The subsequent
G events which impressed the High Court were that the appellant's mother had
died in the year 1976 and her sister-in-law had also died in the year 1982. Her
brother was residing permanently in Goa to look after the ancestral family
property. Of the three children of her brother, a son Lino had died during the
pendency of the Writ Petition while his daughter had got married and was
H residing permanently at Goa. Another son of her brother namely, Brian had
• A\
·~

JULIETA ANTONIETA TARCATO v. SULEIMAN ISMAIL [B.P. SINGH, J.] 817

settled in U.S.A. as a medical practitioner. The appellant denied that Dr. Brian A
---/..-· had migrated to U.S.A. permanently. The learned Judge held that apart from
the appellant and Dr. Brian all the others who were earlier residing with the
appellant had either expired or had settled down elsewhere and therefore the
need of the other family members did not survive. The appellant's brother
Lawrence had also died. The High Court concluded that Lawrence being a
B
bachelor, the appellant has also inherited a share in his flat at Ashoka
Apartments and thus became a co-owner having a right to reside in the flat
in Ashoka Apartments. Her brother Tito no doubt was also a co-owner of the

• premises since he owned the premises jointly with her late brother Lawrence .
In view of the fact that she as a co-owner had a right to reside in the premises,
her need of her own apartment did not survive. The High Court, therefore, c
concluded that in the changed circmnstances and subsequent events which
happened during the pendency of the Writ Petition before the High Court, the
need of the appellant did not survive and, therefore the decree passed by the
Appellate Court deserved to be set aside. Accordingly, the Writ Petition was
allowed and the eviction petition was rejected.
D
11. Having noticed the evidence on record and the findings recorded
l by the Courts below we have come to the conclusion that this appeal must
be allowed. The finding of bonafide personal need recorded by the Appellate
r Court is a finding of fact based on the evidence on record. We have considered
the evidence on record and we find that the finding recorded by the Appellate E
Court did not deserve to be set aside. In fact, the High Court also was of the
. same view, but in the changed circumstances having regard to the events that
took place during the pendency of the Writ Petition, the High Court interfered
with the order of the Appellate Court. We hold that the High Court was not
justified in doing so. It cannot be lost sight of that the premises which the
appellant required for her personal bonafide need belonged to her. She was F
'"'
~
residing in those premises with other family members for many years.
Unfortunately, she suffered an accident and in the absence of any other
grown up male member in the family she was persuaded by her brother
Lawrence to come and reside in his apartment which was one of the flats in
the Ashoka Apartment and which was owned by him and his brother Tito.
G
After residing there for several years, the appellant felt that she should not
burden her brother any more and, therefore wanted to shift to her own
"'- accommodation which was then in occupation of the respondent. The Trial
Court made much of the fact that the appellant had also pleaded her bonafide
need of providing accommodation to other members of the family. While
, H
I I
j r-

818 SUPREME COURT REPORTS [2007] 2 S.C.R.

A doing,so the Trial Court completely los~ sight of the fact that apart from the
requirement of other members of the family, the appellant also required the
premises for her own accommodation. Thus; even ifthe other members of the
family no longer required the premises, the requirement of the appellant
survived. She had every right to occupy her own premises and she could not
be told that she should share accommodation with her brother in another
B apartment.

12. The High Court was in error in holding that since the appellant
became a co-owner of the premises upon the death of her brother Lawrence,
she had. a right to reside in those premises and, therefore, her need for the
C premises owned by her exclusively did not subsist. The appellant has brought
to our notice the fact that in September 2003, the appellant and her sister gave
their consent for the transfer of the flat in Ashoka Apartments in the name
of Tito their brother, who was a co-owner of the flat along with her late
brother Lawrence. Even if we ignore this fact, one cannot compel the owner
of the premises which exclusively belongs to her to share accommodation
D with a co-owner of hers in another premises. The appellant being the owner
of the suit premises, her need being bonafide and reasonable, it would be
unfair to compel her to share the accommodation in another premises with its
co-owner. We must therefore hold that the High Court was in error in coming
to the conclusion that the bonafide personal need of the appellant did not
E subsist.
13. We, therefore, set aside the impugned judgment and order of the
High Court and restore that of the Appellate Bench of the Court of Small
Causes, Mumbai dated June 14, 1991 allowing the Eviction Petition and
directing the respondent to deliver/vacant possession of the suit premises to
F the appellant. These appeals are accordingly allowed with costs.

N.J. Appeals allowed.

. ,,