- 1 - 902-cra-761-2009 srj IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.761 OF 2009 Shri Omprakash Durgaprasad Sharma ] Indian Inhabitant, having his address at ] Flat No.321, Jaya Mahal, 6th floor, A. Road, ] Churchgate, Bombay 400 020. ] .. Applicant V/s. 1 Dr. Madhav Vasant Velinkar ] Indian adult, having his address at ] Ratan House, Lamington Road, ] Bombay 400 007. ] 2 Shri Pramod Chandrashekhar Daundkar ] 3 Ms. Pranali Chandrashekhar Daundkar ] both the Respondents No.2 and 3 i.e. ] Orig. Plaintiffs Nos.2 and 3 are Indian ] adults now attained majority having ] their address at 402, Ekta Apartment, ] Dr. W. L. Sawant Marg, Bhandawadi, ] Andheri (W), Bombay 400 058. ] .. Respondents. Mr. P. S.Dani, for the Applicant. Mr. V. B. Naik i/b. Ms. Rekha Shukla, for Respondent Nos.1 to 3. CORAM : G.S.GODBOLE,J. DATED : 20th OCTOBER, 2011 P.C:- 1 RULE. By consent Rule made returnable forthwith. Ms. - 2 - 902-cra-761-2009 Rekha Shukla waives service of Rule on behalf of Respondents. Petition taken up for final hearing on Board. 2 I have heard Mr. Dani, Advocate for the Applicant and Mr. Naik for Respondents at some length. 3 It is not disputed that the person by name - Omprakash D. Sharma who is shown as Applicant in this Civil Revision Application who was the tenant of the suit flat. It is not disputed that Vasant S. Velinkar had 2/5th undivided share in the ownership, and Manek Shrikrishna Velinkar had 3/5th undivided share in the ownership. The said Manek Velinkar had a daughter by name Kamalini alias Leena. By executing her last Will dated 3rd February, 1965 in which she had appointed her brother Vasant Velinkar and sister in law as executors she had bequeathed her 3/5th undivided share in the suit flat to her daughter Kamalini alias Leena. On 16th July, 1977, Kamalini, mother of Pramod and Pranali (who are Respondent Nos.2 and 3 herein) died intestate and thus she pre-deceased Manek. As a result of this, first codicil dated 16th October, 1978 was executed by Manek to amend Will dated 3rd February, 1965. This Will and the codicil was duly produced in the proceeding and have been held to be proved. On 9th December, 1979, Vasant died. It is the case of the - 3 - 902-cra-761-2009 Respondents that on 2nd April, 1989, second codicil is executed and Lilavati V. Velinkar was also made executrix. This second codicil, however, is not part of the record. What is admitted is that Manek had died on 19th April, 1980 and as a result of this, the property vested in her executors who were to act as Trustees of the two beneficiaries namely Pramod and Pranali. 4 In 1986, RAE Suit No.1771/5485/1986 was filed by the Respondents herein as 2/5th undivided share of Vasant is vested in Respondent No.1- Dr. Madhav and whereas the remaining 3/5th had been bequeathed to the Respondent Nos.2 and 3. Respondent Nos.2 and 3 were minors and were represented through the trustees under the Will. The Applicant was the sole Defendant in the suit. Suit was filed for eviction of the Applicant from the suit premises on the ground of bona fide requirement for personal occupation of the Plaintiffs No.2 and 3. Pending the suit, Respondent Nos.2 and 3 attained majority and, hence, amendment to that effect was carried out on 11th June, 1992. The Applicant/ Defendant filed Written Statement which was verified by him on 11th January, 1989 and it was contended by the Applicant that the Plaintiffs cannot maintain the suit for eviction as according to the commands in the Will, the suit premises had to be sold and only the sale - 4 - 902-cra-761-2009 proceeds were to be given to the beneficiaries under the Will r/w the Codicil. Evidence was led by the Respondents. Applicant did not step in the witness box, but Mr. Saxena who claims to be C.A. of the Applicant led the evidence. 5 By well reasoned Judgment and Order dated 5th October, 2000, the Trial Court decreed the suit. Appeal No.440 of 2001 was filed by the Defendant/Applicant and it is not known whether the vakalatnama was signed by the Applicant or by his C.A. before the Appellate Court. In the Appeal, virtually the entire submission was regarding interpretation of the Will and there seems to be hardly any challenge about the finding of Trial Court about the bona fide requirement and comparative hardship. By impugned Judgment and Order dated 4th September, 2009, the Division Bench of the Small Causes Court dismissed the said appeal and, hence, this C.R.A. has been filed. 6 I had heard Mr. Dani and Mr.Naik at quite some length on different dates and Mr. Naik had invited my attention to the fact that the Trial Court and the Appellate Court have recorded a finding that Applicant is not occupying the suit premises but Mr. Saxena who claims to be C.A. of the Applicant is occupying the suit premises. In view of this, on 28th - 5 - 902-cra-761-2009 September, 2011 I had passed the following order:- “ This petition was heard on 21/9/2011 and was adjourned today as part heard. Mr. Naik has placed on record the photo copies of the original Will of Manak Velinkar dated 3/2/1965 and the codicil dated 16/10/1978, as also photo copy of the plaint as originally filed in the suit. The same are taken on record. Since the Trial Court and the Appellate Court have recorded a finding that the Original Defendant/Applicant Omprakash Sharma is not residing in the suit premises and did not lead evidence and it is obvious that even this CRA is being prosecuted by a person by name Kuldeepkumar Saxena claiming to be constituted attorney of the Original Defendant and there is a finding that the said Constituted Attorney is in possession of the suit flat admeasuring more than 1100 sq. ft. and since doubts about the survival of the applicant have been raised. Mr. Dani on instructions from Mr. Saxena, Constituted Attorney of the applicant, who is present in the Court states that the Original Applicant is alive and staying in Joshimath at Uttaranchal and that an affidavit of the said Constituted Attorney, as also the Applicant would be filed. The statement is accepted. Affidavit of the C.A. of the Applicant to be filed within one week from today. Affidavit of the Applicant alongwith his photograph duly sworn before a Judicial Officer/ Superintendent/ Clerk of the Court, in any Court at Uttaranchal or in Mumbai stating that Mr. Saxena is Constituted Attorney and continues to be so and has been authorised to file this Revision Application and prosecute the same, shall also be filed within three weeks from today. 2 Mr. Dani states that the C. A. of the Applicant is in physical possession alongwith his daughter and will not part with possession or create any third party right or interest and the affidavit would also incorporate the name of the daughter who is staying in the suit premises with Mr. Saxena. Affidavit cum undertaking of the said daughter shall also be filed indicating that she claims absolutely no right, title or interest whatsoever in the suit premises as on today. 3 S. O. to 12th October, 2011.” - 6 - 902-cra-761-2009 7 Two affidavits have been filed pursuant to the said order – one by Smt. Arti Amba, biological daughter of Mr. Kuldeepkumar Saxena, who claims to have been given in adoption to the Applicant and states that she is not claiming any personal interest whatsoever in the suit premises, during life time of the Applicant. Second Affidavit is filed by Mr. Kuldeepkumar Saxena, C.A. of the Applicant and the material portion of paragraphs 1 to 3 thereof read thus:- “1 I say and submit that I am Constituted Attorney of Mr. Omprakash D. Sharma. I further state and submit that my authority given by Mr. Omprakash Sharma still continues. I say and submit that the said Omprakash Sharma is very much alive and at present in Joshi Math in Uttaranchal. I say and submit that, it is my information and belief that the said Omprakash Sharma is alive. 2 I say and submit that I am trying to reach to Mr. Sharma at the moment. However, Mr. Sharma has renounced the world and is wandering in the Himalayas leading a life of a sage and hence it is very difficult to trace Mr. Omprakash Sharma. But I am trying my level best to do so and to comply with the Order passed by this Hon'ble Court and submit the Affidavit as sought by this Hon'ble Court by its Order dated 28th September, 2011. 3 I say and submit that I am in possession of the suit premises and that I am occupying the same along with my daughter Arti Amba, who is my biological daughter and who is also adopted daughter of Mr. Omprakash Sharma. I say and submit that, except myself, my immediate family and the immediate family of Arti Amba, nobody else is in possession of the suit premises. I say and submit and undertake that I shall not part with possession of the suit premises in any manner whatsoever nor shall I create any third party interest or induct any third parties in possession of the suit premises in any manner whatsoever.” - 7 - 902-cra-761-2009 8 During the course of arguments, it has been brought to my notice from the documents as also from the original record of Petition No. 785 of 2004 from the Original Side of this Court that when the Petition for probate was filed, the Applicant had objected to the grant of probate by filing Caveat. However, his objection was rejected by learned Single Judge (Coram: S. U. Kamdar, J.) on 8th July, 2005, holding that since the Applicant was only a tenant, he had no caveateable interest. Subsequently, the said Petition was converted from a Petition for grant of Probate to grant of Letters of Administration with a copy of the Will annexed and ultimately, same was allowed. 9 Before this Court, only two submissions have been advanced by Mr. Dani. That the Will of Manek did not create an absolute bequest in favour of Respondent Nos.2 and 3. Bequest was conditional bequest, directing the Executors stated to be trustees in the said Will, to sell off the suit premises and use the sale proceeds by investing them in such a manner that the income can be used for education, maintenance, clothing, medical expenses, marriage expenses and welfare of the two children of Leena alias Kamalini; who are in fact, Respondent Nos. 2 and 3 herein above. It is admitted that they were minor at the relevant time. That, therefore no decree for eviction could have been passed for the alleged - 8 - 902-cra-761-2009 need of Respondent Nos.2 and 3 as they were not “Landlords” within the meaning of the Bombay Rent Act, 1947. In support of these submissions, Mr. Dani has placed reliance upon various Judgments and it is necessary to refer to those Judgments and deal with them. 10 The second submission advanced by Mr. Dani was to the effect that since 3/5th undivided share had not vested in Respondent Nos.2 and 3 and Respondent No.1 – Dr. Madhav being only one of the co-owner could not have filed the suit. 11 It is necessary to deal with the second submission first, as, in my opinion, the entire controversy is already settled by a series of Judgments of Supreme Court- namely Sri Ram Pasricha v/s. Jagannath and Others, reported in 1976 -4 -SCC-184a in which it is observed in paragraph 27 that :- “ Jurisprudentially it is not correct to say that a co-owner of a property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part-owner or a fractional owner of the property. The position will change only when partition takes place. It is, therefore, not possible to accept the submission that the plaintiff who is admittedly, the landlord and co-owner of the premises is not the owner of the premises within the meaning of Section 13(1)(f). It is not necessary to establish that the plaintiff is the only owner of the property for the purpose of Section 13(1)(f) as long as he is a co-owner of the property a 1976 -4 -SCC-184 - 9 - 902-cra-761-2009 being at the same time the acknowledged landlord of the defendants.” 12 In the case of Kanta Goel v/s. B. P. Pathak and Others, reported in 1977 -2 -SCC-814b, the Supreme Court has reiterated the same principle, in paragraph 6 which reads thus:- “ ...........The 1st Respondent, together with the other respondents, constituted the body of landlords and by consent, implicit or otherwise, of the plurality of landlords, one of them representing them all, was collecting rent. In short, he functioned, for all practical purposes as the landlord, and was therefore entitled to institute proceedings qua landlord”. 13 The said Judgments were considered in the later Judgment of Pal Singh v/s. Sunder Singh (dead) by Legal Heirs and Others, reported in (1989)-1 SCC-444c . However, that was the case where all co-owners did not want the tenant's eviction. By subsequent Judgment in the case of India Umbrella Manufacturing Co. & Others v/s. Bhagabandei Agarwalla (2004) 3 SCC 178d, the same principle has been reiterated. Hence, the second submission does not have any merit. 14 In so far as first submission is concerned, the order dated 28th September, 2011 passed by me is very clear and solely on account of failure to comply with the said order, the Petition can be dismissed. b 1977 -2 -SCC-814 c (1989)-1 SCC-444 d (2004) 3 SCC 178 - 10 - 902-cra-761-2009 However, since I am satisfied that even on merit, Petitioner has no case; I have refrained from dismissing the Petition on that ground. 15 Mr. Dani relied upon the following Judgments:- (a) The relevant portion from the said Judgment (Coram: Justice Bal) in the case of Nawab Sardar Meer Sultan Saheb Alim Khan Saheb v/s. R. R. Gibson, reported in (1968) – LXXI BLR-857e reads thus:- “ There is no dispute that plaintiff No.3 is a beneficiary under the trust created by the trust-deed exh. A. What is contended that that is not enough to bring her within the expression “person for whose benefit the premises are held”. In order to make her a person for whose benefit the premises are held she must further have a right as such beneficiary to occupy the premises, which she could enforce if denied. Apart from authority, the contention appears to be sound. In my view on a correct reading of the expression 'person for whose benefit the premises are held' the only meaning that can be assigned to it would be that the person can enforce if denied. It will, therefore, have to be seen whether plaintiff no.3 in the present case has under the trust-deed exh. A a right to occupy the suit premises.” (b) The Judgment of learned Single Judge (Coram: Justice Bhole) in the case of Framroze Maneckji Bilimoria v/s. M/s. Suhrid Geigy Trading Ltd., reported in (1976)-BLRf. That was the case of co-trustees in respect of the deed of settlement of trustees. Mr. Dani relies upon the following observations:- e (1968) – LXXI BLR-857 f (1976)-BLR - 11 - 902-cra-761-2009 “ It does appear after reading the deed of settlement that the petitioners' father, Manekji wanted to have the trust settled for the benefit of his sons and their issues in the manner set forth in the document. The trustees, according to the deed, had to divide or keep divided the trust properties and funds without actually dividing the same in five equal parts and had to appropriate each one of such equal parts as the share of each of the five sons of the settlor. The net income had also, to be distributed amongst his five sons. There is also a provision made one of the corpus of the shares, if any one of the sons dies, for the purpose of his funeral and subsequent ceremonies attending his death for one year according to the custom of the family. A plain reading of s. 13(1) (g) clearly shows that according to the first party a landlord who has a right to occupy the premises because he is a owner, can always seek permission of the premises for his personal occupation. The case of the Petitioners, in my view cannot be stretched to come within this part of the section. It cannot also come under the second part because Petitioner No.1 has no legal right to occupy the suit premises. If the trustees in their absolute discretion refuse to give him the premises on rent, he cannot assert that he has a right to occupy the premises. If that is so, then in my view the petitioner cannot complain that he is entitled to occupy because of his bona fide requirement. Such a a view which which I am taking is also taken by Bal J. in Nawab Sardar Meer v/s. R. R. Gibson and I respectfully agree with him. There are also certain useful observations by the Supreme Court in Mongibai Hariram v/s. State. That was a case in which Bombay Land Requisition Act was considered along with the provisions of the Bombay Rent Act. The Supreme Court in the context of the facts of that case was also considering 13(1)(g) of the Rent Act with which we are now concerned.” 16 It is an admitted position that Dr. Madhav V. Velnikar had 2/5th undivided share. Respondent Nos.2 and 3 are very closely related to Dr.Madhav Velnikar. The need has been pleaded for Respondent Nos.2 - 12 - 902-cra-761-2009 and 3 and both the Courts have held that the need has been proved and that the balance of hardship completely tilts in favour the Respondents. The first Judgment of Justice Bal is really based on the facts of that case. In the present case, the Will of Manek no doubt directs that the Trustees should sell the flat. However, it is clear that since one of the executors declined to apply for probate and obtain Letters of Administration with a copy Will annexed have been obtained. 17 Even the ratio of the second Judgment relied upon by Mr. Dani has no application to the facts of this case. That was a case of creation of a Trust, whereas, in the present case there is a bequest followed by proceedings under the Indian Succession Act, 1925. In my opinion, the words used in the Will namely “maintenance and welfare” of the legatees under the Will, are of very wide ambit and must be construed in the widest possible manner particularly in a case between the land lord and the tenant where bona fide requirement has been held to be proved and suit is decreed on that ground with a finding of hardship in favour of the Landlords. It has already been held by this Court (Coram: S. U. Kamdar J.) in the testamentary proceeding that the Applicant does not have caveatable interest. Judicial notice can be taken of the fact that bequest in the Will was made by taking into consideration situation which - 13 - 902-cra-761-2009 then prevailed when Respondent Nos.2 and 3 were minors. It is also necessary to note that in city like Mumbai, if a landlord desires to sell the flat with a sitting tenant, it will fetch a very low price as compared to flat which is not having any tenancy and vacant possession can be handed over. It is not the case of the Respondents that they want to sell the flat but they want the possession to achieve the welfare of Respondent Nos.2 and 3. In my opinion, apart from this, the Will clearly states that the undivided share in the flat had been bequeathed since the testatrix who was making a bequest in favour of the minor grand children really wanted to achieve the welfare of the minors. In a city like Mumbai, where accommodation is costly, the requirement for self occupation of the beneficiaries must be considered to be a requirement for achieving the welfare of the minors. Mr. Dani, though advanced arguments with his usual skill and efficiency; in my opinion they do not have any merit and deserve to be rejected. The requirement for self occupation by the legatees under the Will and Codicil must held to be an action for achieving the “welfare” and for maintenance of the legatees and this view of the two Courts is a sound view both on facts and in law. 18 The Trial Court and the Appellate Court have not committed any error of jurisdiction. There is no perversity in the finding. In fact, it is - 14 - 902-cra-761-2009 not known whether the Original Applicant is actually alive or not and the C.A. has not been able to comply with the earlier order dated 28th September, 2011. However, as stated above, even on merits, I am convinced that no case for interference is made out. Hence, C.R.A is rejected. Rule is discharged. 19 At this stage an oral request is made for grant of an interim order to enable the Applicant to file S.L.P. The execution of the decree is stayed for a period of six weeks, subject to the condition that within a period of four weeks from today, C.A. of the Applicant and the biological daughter of the Applicant shall file undertaking in this Court stating that they will not part with possession or create any third party rights or interest in the suit premises. Till such undertaking is filed, an injunction in the said terms will operate as against C.A. and the biological daughter of Applicant. (G.S.GODBOLE,J.)