1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO. 339 OF 1991 SUIT NO. 339 OF 1991 SUIT NO. 339 OF 1991 1. MEHROO MEHERJI VAKIL of Bombay ) Indian Inhabitant residing ) at Block No.5, 2nd floor, ) Roxana Building, 109, M.Karve ) Road, Bombay - 400 020. ) 2. Dr.(MRS) MEHER JIMMY VAKIL ) of Bombay Indian Inhabitant ) residing at Hari Nivas, ) 26-B New Queens Road, ) Opp. Roxy Cinema, ) Bombay 400 004. ) 3. JIMMY DHUNJISHAW VAKIL ) also of Bombay Indian ) Inhabitant residing at ) Hari Nivas, 26-B New Queens ) Road, Opp. Roxy Cinema, ) Bombay - 400 004. ).. PLAINTIFFS VERSUS 2 1. JAL H. A. VAKIL of Bombay ) Indian inhabitant residing at ) Najoo Mansion Wode House Road, ) Deleted as Colaba, Bombay 400 005. ) per order dt. 25.6.2001. 2. KAIKHUSHROO ALPAIWALA ) of Bombay Indian Inhabitant ) Deleted as residing at Everest House, ) per order dt. Carmichael Road, ) 25.6.2001. Bombay 400 026. ) 3. Siloo Kavarana also of Bombay ) Deleted as Indian Inhabitant residing at ) per order dt. 59 Wodehouse Road, Colaba, ) 12.1.2006. Bombay 400 005. ) 4. SAM MINOCHER KHANSAHEB ) Deleted Indian Inhabitant residing ) as per order at 12/836, Bhavangri Street, ) dt.23.6.05. Vanki Bordi, Surat 395 003 ) Surat, Gujarat State. ) 5. ROSHAN SAM KHANSAHEB ) Deleted as Indian Inhabitant residing ) per order at 12/836 Bhavangri Street, ) dt.25.6.2001 Vanki Bordi, Surat 395 003. ) 3 6. SHIRAZ B. ANKLESHARIA ) Bombay Indian Inhabitant ) residing at 1980, Covent Street ) Sakar Villa Camp, ) Pune 411 001. ) 7. ASPI BYRAMJI ANKLESHARIA ) Indian Inhabitant residing ) at 1980 Convent Street, ) Sakar Villa, Pune 411 001. ) 8. PILOO SAM SHROFF of Bombay ) Deleted as Indian Inhabitant residing ) per order at Cosy Building, 3rd flor, ) dt.11.7.2003 Gowalia Tank, Bombay 400 036. ) 8A. THRITY SAM SHROFF, ) of Bombay Indian Inhabitant ) purported to be residing at ) Roxana, 109, M. Karve Road, ) Mumbai 400 020. )..DEFENDANTS Mr. H.J.Thakkar, Senior Advocate with Mr. Vishal Thakkar & Ms. M.Meherjee i/b. M/s. Gagrats for the Plaintiffs. Mr. R.S.Jaisinghani with Mr. Rafeeq Peermohideen i/b. H.R.Yadav for Defendant No.6. 4 Mr. R.S.Jaisinghani with Rafeeq Peermohideen i/b. Fazalbhoy Motafram for Defendant No.7. Mr. R.M.Bagalia for Defendant Nos. 8 & 8A. JUDGEMNT RESERVED ON: 19.4.2006. JUDGEMNT RESERVED ON: 19.4.2006. JUDGEMNT RESERVED ON: 19.4.2006. JUDGMENT PRONOUNCED ON: 05.5.2006. JUDGMENT PRONOUNCED ON: 05.5.2006. JUDGMENT PRONOUNCED ON: 05.5.2006. ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : 1. This is the Suit for declaration that the Defendants are trespassers and for decree for eviction of the Defendants. 2. The suit premises consists of the portion of the Flat No.5 and garage No.10 in a building known as Roxana" situated at 109, Maharshi Karve Road, Bombay - 400 020. The said portion is described in the blue lines on the plan marked Exhibit "P-4". 3. The 1st Plaintiff is the widow of one Meherji J. Vakil (hereinafter referred to as "Meherji Vakil"). The plaintiffs Nos. 2 and 3 are husband wife. 4. The Building Roxana was constructed in the year 1938. The suit premises was then let out by the then landlords to one Banoobai Vatchagandhy as a monthly tenant. She was residing in the suit premises along 5 with the deceased Meherji Vakil and Bomanshaw Vakil (hereinafter referred to as "B.R.B. Vakil") 5. It would be relevant to mention at this juncture the family tree as it would be relevant for the purpose of the suit. Bomanshaw Vakil had two sons - Jamshedji and Rustomji. The deceased Meherji Vakil is the son of Jamshedji and plaintiff No.1 is the wife of Meherji Vakil and Dhunjishaw was another son of Jamshedji and plaintiff No.3 Jimmy son of Dhunjishaw and plaintiff No.2 is the wife of plaintiff No.3. Rustomji had three issues - Khoershed, Bomanshaw and Shera. Khorshed is the mother of defendant no.8. Khorshed had two issues - Sam (defendant no.4) and Piloo (defendant no.8). Bomanshaw (B.R.B.Vakil) was unmarried till his death. Shera had three issues - Roshan, Shiraz and Aspi who are defendants Nos.5, 6 and 7. B.R.B. Vakil died on 9.10.1989 leaving behind the Will dated 23.2.1988 under which the defendants Nos. 1, 2 and 3 are executors. As such, the defendant No.4 and defendant No.8 are the heirs of B.R.B. Vakil’s sister, Khorshed and the defendants Nos. 5, 6 and 7 are the heirs of Shera - another sister of B.R.B.Vakil. During the pendency of this 6 suit, the names of defendants Nos.1,2, 3, 4, and 5 were deleted. The defendant no.8 died during the pendency of the suit and her heir Thrity Sam is brought on record as defendant No.8A. Consequently, the contesting defendants are only defendants Nos.6, 7 and 8A. 6. Banoobai Vatchagandhy died in 1946 and upon her death, the tenancy in respect of the suit premises devolved upon the deceased Meherji and B.R.B.Vakil, the heirs of Banoobai who were living with her at the time of her death. Since that time, the deceased Meherji and B.R.B.Vakil were jointly living in the suit premises and the tenancy in respect of the suit premises was one vis-a-vis the landlord. 7. In 1955, the deceased Meherji married plaintiff No.1 and since then plaintiff No.1 was also residing in the suit premises. The said B.R.B.Vakil was a bachelor until he died on 9.10.1989. All along he was using the portion of the suit premises which is marked by blue lines as shown in the plan annexed to the plaint and marked Exhibit "B". The portion marked by red lines was in occupation of the deceased Meherji and the rest of the flat which is marked by green lines was in the common use of both of them. 7 8. Roxana Building was owned by different landlords and lastly in the year 1984, one Murarilal Gupta Kamanwala and others became landlords of the said Building. Along with Murarilal Gupta Kamanwala, the other landlords were O.P. Khandewal Kamanwala, Surendra Kumar Gupta, Mrs. Neeta Jain and Mrs. Sudha Gupta Kamanwala being the members of the undivided Hindu Family. In 1984, these landlords had approached all the tenants of Roxana Building including Mrs. Meherji and B.R.B.Vakil and offered to sell the respective rented premises to the occupants if they agreed. The landlords also proposed that if any tenants were not ready, their tenements could be purchased by others. Similar offer was also made to deceased Meherji and B.R.B.Vakil and ultimately, deceased Meherji and plaintiff No.2 along with plaintiff Nos. 1 and 3 purchased the suit premises as B.R.B.Vakil was not willing to purchase it (and the controversy with regard to B.R.B.Vakil having refused the offer to purchase the flat which I shall consider little later). 9. The agreement for sale was executed between the landlords and the deceased Meherji and plaintiffs Nos. 1, 2 and 3 on 17.1.1985 for a consideration of Rs.1,50,000/-. The said agreement is produced at Exhibit "P-2". The entire consideration of 8 rs.1,50,000/- was paid by the purchasers - deceased Meherji and plaintiff No.2 in equal shares to the landlords. The requisite Form No.37-EE as required under the provisions of the Income Tax Act was duly completed and registered which is produced at Exhibit "P-3". Under the original agreement, Exhibit "P-2", dated 17.1.1985, the vendors had agreed and undertaken to form a registered Co-operative Housing Society having its name "Roxana Churchgate Co-operative Housing Society (Proposed)" under the provisions of Maharashtra Co-operative Societies Act, 1960. On the same day i.e. 17.1.1985, a Supplemental Agreement was executed between the vendors and the purchasers - deceased Meherji and plaintiff No.2 which is produced at Exhibit "B-1" which provided that the vendors for no fault of theirs and for reasons beyond their control, they are unable to form and register the said Co-operative Housing Society, the purchasers shall have an option to call upon and require the vendors to obtain an assignment and transfer of the respective premises of Roxana Building from Madanlal Gupta HUF, the vendors. As a matter of fact, the Co-operative Society of the flat purchasers of Roxana Building could not be formed and registered and as such deceased Meherji and plaintiff No.2 called upon the vendors to execute the deed as agreed and, accordingly, the Deed of Assignment dated 16.3.1995, 9 Exhibit "P-6" was executed. This fact has been incorporated in the plaint by way of amendment of the plaint. 10. It is not in dispute that deceased B.R.B.Vakil continued to live in the suit premises in the portion marked in blue ink in Exhibit "P-4" till his death on 9.10.1989. 11. It is alleged by the plaintiffs that since after the death of original tenant - Banoobai, deceased Meherji and B.R.B. Vakil became the joint tenants in respect of the suit premises being the heirs of deceased Banoobai. The landlords also transferred the tenancy jointly in the name of deceased Meherji and B.R.B.Vakil. The tenancy in respect of the suit premises was single tenancy. It is further alleged by the plaintiffs that by virtue of the agreement dated 17.1.1985, the deceased Meherji and plaintiff No.2 became owners of the suit premises and thus the tenancy in respect of the suit premises extinguished and merged in the deceased Meherji and the 2nd plaintiff. It is further alleged that even thereafter B.R.B. Vakil continued to use the blue marked portion of the suit premises only as gratuitous licensee as the deceased Meherji and plaintiff No.2 allowed him to occupy the same. It is further alleged that there was 10 no attornment of tenancy to the deceased Meherji and the plaintiff No.2 by the said B.R.B. Vakil. B.R.B.Vakil had also stopped paying anything to anybody for use and occupation of the portion of the suit premises. The last rent of Rs.401.70 ps. shared by deceased Meherji and B.R.B.Vakil for the month of December 1984 and from and after January, 1985, the deceased Meherji and plaintiff No.2 have paid for and discharged all the outgoings in respect of the suit premises including all contributions for maintenance, Municipal taxes,repairs, electricity bills, etc. It is alleged that B.R.B. Vakil continued to be gratuitous licensee till his demise on 9.10.1989. 12. It is further alleged by the plaintiffs that B.R.B.Vakil resided in the portion of the suit premises all along alone. The deceased Meherji Vakil and plaintiff No.2 were looking after B.R.B.Vakil. All the heirs except the defendant No.8 resided out of Bombay. B.R.B.Vakil never had a car and as such the garage No.10 was all along used by Meheraji Vakil for parking his car. The plaintiffs further allege that on the death of B.R.B. Vakil, Meherji Vakil and plaintiff No.1 became the sole tenant and by virtue of acquisition of ownership rights, they became owner of the entire suit premises. 11 13. In the alternative, the plaintiffs allege that Meherji Vakil and the plaintiffs being the only members of B.R.B.Vakil family at the time of latter’s death, whatever rights deceased B.R.B.Vakil had devolved solely upon Meherji and the plaintiffs. 14. The plaintiffs further allege that on 11.11.1989, the deceased Meherji received a letter from the defendant No.1 ... being the executors of the deceased B.R.B.Vakil’s Will falsely claimed right in respect of the portion of the suit premises. They further allege that on 13.11.1989, the defendant No.1, defendant No.3 and defendant No.4 made false entry in the portion of the suit premises and trespassed upon it claiming a right to exclusively use a portion of the suit flat and the garage. It is further alleged that on 20.11.1989, the defendants Nos. 4 to 8 claiming to be heirs and legatees under the Will of deceased B.R.B. Vakil filed a suit, being Suit no.8547 of 1989 against deceased Meherji praying for injunction from dispossessing or parting with possession of the suit premises. The suit was filed in the City Civil Court, Bombay. The Court refused the interim injunction as Meherji Vakil’s Advocate made a statement that Meherji had no intention of taking any legal steps to disturb the unauthorised possession of the plaintiffs and that they were 12 intending to take legal proceedings for removal of the defendants from the portion of the suit premises. 15. The plaintiffs therefore allege that the defendants are trespassers on the suit premises and are in wrongful occupation of portion of the suit premises and therefore they filed the suit for declaration. The plaintiffs further claim damages and mesne profits for unlawful occupation of the suit premises by the defendants. 16. The defendants Nos. 1 to 3, the defendants Nos.4, 5, 6 and 8 and defendant No.7 had filed independent written statement resisting the suit.s Since the defendants Nos. 1 to 3 are no more parties to the suit, I do not consider their written statement which is on record. 17. The defendants Nos. 4, 5, 6 and 8 resisted the suit on the ground the the suit premises i.e. flat No.5 was consisting of two independent flats which were described as "western flat" being in occupation of the plaintiffs and the southern flat which is marked in blue in the sketch, Exhibit "P-4" called "southern flat" They contend that they were legal representatives and beneficiaries under the Will of deceased B.R.B.Vakil and were in actual possession and 13 occupation of the southern flat. B.R.B.Vakil was in exclusive use, occupation and possession of the said southern flat. They deny that Meherji Vakil and B.R.B. Vakil were joint tenants. They contend that both of them were tenants in common and both were residing separately in their respective portions of the flat. They further contend that deceased B.R.B. Vakil was ready to purchase the suit premises, but deceased Meherji Vakil revoked the option given to B.R.B. Vakil by the landlords. They deny that Meherji Vakil and the plaintiffs have become owners under the agreement for sale dated 17.1.1985. They contend that B.R.B. Vakil had a right to purchase the suit premises from the landlords and, in fact, he was ready and willing to purchase the same, but the deceased Meherji Vakil and others surreptitiously and fraudulently deprived B.R.B. Vakil to purchase the same. They further contend that they were all residing with B.R.B. Vakil at Bombay during his lifetime and also staying with him in the hospital and even after the death of B.R.B. they continued to use and occupy the said portion of the suit flat in their own right being the only heirs of deceased B.R.B. Vakil. On these contentions, they claimed dismissal of the suit. 18. The defendant No.7 resisted the suit by Written 14 Statement dated 29.9.1998 and the additional written statement dated 10.4.2000. His contentions are also similar to that of defendants Nos. 4, 5, 6 and 8. He further contends that Meherji Vakil and plaintiff No.1 had no right to enter into an agreement for purchase ignoring the interest of B.R.B.Vakil. The agreement is, therefore, void. He further contends that whatever rights Meherji and plaintiffs have acquired under the alleged agreement dated 17.1.1985, must be deemed to have been held in trust in favour of B.R.B. Vakil during his lifetime and after his death in favour of the defendants Nos. 4 to 8 to the extent of their half share as tenants in common in respect of the suit premises. He further contends that on the demise of Banoobai Vachagandhy, B.R.B. vakil and Meherji Vakil became tenants in common in respect of the suit premises and not joint tenants as alleged by the plaintiffs. As such, defendant No.7 prays for dismissal of the suit. 19. The defendant No.8 resisted the suit by Written Statement dated 10.4.2000 during her lifetime raising similar contentions as are raised by the other defendants. In addition, she contends that the defendant No.8 left the Roxana premises somewhere in 1951 when she got married. In 1975, she became widow as her husband expired. Since 1975, she continued to 15 reside in the suit premises of Roxana Building with late B.R.B.Vakil. She contended that the defendants Nos. 4 to 7 being permanently based outside Bombay, never ever permanently resided with B.R.B.Vakil although they used to often visit B.R.B. Vakil. She also contends that B.R.B.Vakil was exclusively and independently in possession of the blue portion of the suit premises. As such, she contends that as she was living with B.R.B. as his family member at the time of his death, she has right to occupy the suit premises as tenant. 20. After the death of defendant No.8, the defendant No.8A was brought on record as a legal representative. Defendant No.8A has also filed independent written statement resisting the suit. She raised the same contentions as were raised by the other defendants, including defendant No.8. 21. In view of these pleadings, the following issues arise for my consideration :- ISSUES ISSUES ISSUES FINDING FINDING FINDING 1. Whether the Plaintiffs In the affirmative. prove that they are entitled 16 to represent the estate of Meherji Vakil ? 2. Whether the Plaintiffs prove In the affirmative. the alleged agreements dated 17th January 1985 and 16th March 1995 referred to in paras 9 and 9B of the Plaint? 3. Whether the Defendants are In the negative. liable to pay a sum of Rs.1,00,800/- for the compensation till 31.1.1991 as claimed in Para 23 of the Plaint ? 4. Whether the Defendants are In the affirmative. liable to pay mesne profits from the date of the suit till possession of the suit premises is handed over ? 5. Whether the Defendants prove In the negative. that the agreements dated 17.1.1985 and 16.3.1995 are void ? 17 6. Whether the Defendants prove In the negative. that any rights acquired by the Plaintiffs under the agreements dated 17.1.1985 and 16.3.1995 are held in trust by the Plaintiffs in favour of the Defendants to the extent of a one half share therein as alleged in Para 8 of the Written Statement and paras 2 and 4 of the additional Written Statement of Defendant No.7 ? 7. Whether the Plaintiffs prove In the affirmative. that the said Meherji Vakil and the Plaintiffs became owners of the suit premises as alleged in paras 10 to 12 of the Plaint ? 8. Whether the Plaintiffs prove In the affirmative. that the tenancy in respect of the suit premises was extinguished as alleged in para 11 of the Plaint ? 18 9. Whether the Plaintiffs prove In the affirmative. that late B.R.B. Vakil became a gratuitous licensee in respect of the suit premises as alleged in para 11 of the Plaint ? 10. If answer to issues 9 and 10 Does not arise are negative, whether the Plaintiffs prove that the tenancy of B.R.B.Vakil devolved on his death upon Meherji Vakil as alleged in para 13 of the Plaint ? 11. Whether the Plaintiffs prove In the affirmative that the Defendants are trespassers in the suit premises as alleged in para 20 of the Plaint ? 12. Whether Defendant No.8 proves In the negative. that she has been residing in the suit premises since after she became widow as a member of family and continued to stay there ? 13. What reliefs and order ? Suit is decreed in 19 terms of prayer (a) & (b). No order as to costs. ISSUE NO. 1: ISSUE NO. 1: ISSUE NO. 1: 22. According to the plaintiffs, deceased Meherji and plaintiff No.2 had agreed to purchase the suit flat under the agreement dated 17.1.1985. Subsequently, there was a deed of assignment executed on 16.3.1995. Both these documents are produced at Exhibits "P-2" and P-6". In subsequent issues, I would discuss as to whether these documents are proved and transfer the ownership in respect of the flat. However, for the purpose of this issue, it is necessary to see whether the plaintiffs are entitled to represent the estate of Meherji Vakil. In this regard, there is a Will of the deceased Meherji Vakil which is duly probated by this Court and the said Probate has been produced at Exhibit "P-1". The Will is dated 3.5.1990. Deceased Meherji Vakil died on 21.8.1990. As such, the Will has come into effect and it has also been probated. Under the said Will, the plaintiff No.1, plaintiff No.2 and plaintiff No.3 are the executors of the Will. The Will also describes the properties belonging to the deceased Meherji and one of those properties was the suit premises. It is also mentioned with regard to the agreement for sale dated 17.1.1985 under which deceased Meherji and plaintiff No.2 had agreed to purchase the 20 suit flat. Under the circumstances, the plaintiffs are entitled to represent the estate of Meherji including the suit flat. 23. With regard to this issue, the argument was advanced behalf of the plaintiffs that in addition to the probate of deceased Meherji Vakil, now there is Deed of Assignment dated 16.3.1995 in favour of the plaintiffs whereby the plaintiffs are entitled to file this suit for possession of the suit premises from the defendants who are trespassers. It is further submitted on behalf of the plaintiffs that after the said deed of assignment was executed the original owners - landlords, the plaintiffs sought amendment of the plaint. After the amendment was allowed by the Court after hearing the defendants, the plaint has been amended. It is, therefore, their contention that the said amendment would relate back to the date of filing of the suit without any hindrance on account of limitation and thus, the plaintiffs are entitled to file the suit for possession. It is matter of fact that the application for amendment was made and amendment has been allowed by this Court. As a result, the plaint has been amended incorporating the fact of the plaintiffs having in their favour the deed of assignment executed by the original landlords (the submissions with regard to this deed of assignment is proved or not which I 21 shall consider little later while considering the issue in that regard). At this stage, however, the contention raised on behalf of the defendants was that even if the deed of assignment is held to be proved, the assignment came into effect from the date of its execution i.e. 16.3.1995 and thus, the ownership if at all the plaintiffs are required was with effect from that day and not earlier. It is further submitted on behalf of the defendants that what is necessary for maintenance of the suit is that the plaintiffs must have had the cause of action to file suit for possession at the inception when the suit which came to be filed in 1991. The submission on behalf of the defendants is that this was not available to the plaintiffs even on the ground of subsequent assignment having been executed in their favour. Quite a few authorities have been cited on behalf of the defendants in this regard. However, I do not propose to deal with those authorities as this aspect has been settled by the decision of the Apex Court rendered in the case of Sampat Kumar Vs. Sampat Kumar Vs. Sampat Kumar Vs. Ayyakannu and another, Ayyakannu and another, Ayyakannu and another, reported in AIR 2002 SC 3369.In that case before the Apex Court, the plaintiff had filed a suit in the year 1988 for issuance of permanent prohibitory injunction alleging that the plaintiff-appelant’s possession over the suit property. In the year 1999 but before commencement of the trial, the plaintiff moved an application under Order 6 Rule 17 22 seeking an amendment in the plaint alleging that in January 1989, i.e. during the pendency of the suit, the defendant had forcibly dispossessed the plaintiff. Therefore, the plaintiff sought relief of declaration of title to the suit property and consequential relief of delivery of possession. While