1 1 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 CIVIL APPELLATE JURISDICTION. CIVIL APPELLATE JURISDICTION. CIVIL APPELLATE JURISDICTION. FIRST APPEAL NO.970 OF 1995. FIRST APPEAL NO.970 OF 1995. FIRST APPEAL NO.970 OF 1995. WITH WITH WITH FIRST APPEAL NO.1075 OF 1995. FIRST APPEAL NO.1075 OF 1995. FIRST APPEAL NO.1075 OF 1995. Tehmtan s/o Ardeshir Bomanji Irani & ors. : Appellants. versus The Municipal Corporation of Greater Bombay & ors. : Respondents. Mr.V.B.Naik for the appellants. Mr.N.V.Walawalkar with Mr.J.J.Xavier for the BMC/Respondent No.1. Mr.G.S.Godbole for Respondent Nos.2A to 2D. CORAM : D.G.DESHPANDE,J. CORAM : D.G.DESHPANDE,J. CORAM : D.G.DESHPANDE,J. DATED : 30th September 2005. DATED : 30th September 2005. DATED : 30th September 2005. JUDGEMENT : JUDGEMENT : JUDGEMENT : 1. Heard learned counsel Mr.Naik for the appellants, Mr.Walawalkar for the BMC and Mr.Godbole for Respondent Nos.2A to 2D. Both the 2 2 2 appeals are filed by the original plaintiffs. They arise out of two suits. These plaintiffs had filed a suit vide Long Cause Suit No.1914 of 1983 before the City Civil Court, Bombay and, thereafter they filed another suit vide Long Cause Suit No.1877 of 1985. First Appeal No.970 of 1995 is arising out of the first suit and First Appeal No.1075 of 1995 is arising out of the second suit. [I am referring the suits as 1st suit and 2nd suit and referring the parties plaintiffs and defendants because the plaintiffs and defendants are common in both the suits, though their number may change sometime]. 2. The dispute between the plaintiffs and defendants is about the immovable properties known as Irani Wadi situated at Mazgaon. The BMC/Respondent No.1 came into picture in this dispute when they transferred the tenancy of this Irani Wadi in favour of original defendant No.2 who died during pendency of the suits and his legal heirs are now representing him. The 1st suit relates to the action of the BMC in transferring the tenancy in the name of Defendant No.2. The 2nd suit is in respect of subsequent developments that took place after transfer of 3 3 3 tenancy in the name of defendant No.2. Fate of the 2nd suit depends upon the fate of the 1st suit. Both the suits of the plaintiffs were dismissed by the City Civil Court. It is the assertion of the plaintiffs that they are the joint tenants of the Irani Wadi or tenants-in-common whatever that may be. Irani Wadi is the suit property. It consists of residential house or bungalow, open land which was used as nursery and a number of rooms used by Malis. There are three tenancies in respect of this suit property. All of them were originally standing in the name of Bomanji Irani - the grandfather of the Plaintiffs Nos. 1, 3 4 and 5 and father in law of plaintiff No.2. The owner of the property was obviously the BMC. Therefore, Bomanji was the tenant of the BMC. [unless otherwise referred to , the suit property will include these three tenancies hereinafter]. Defendant No.2 claimed that in 1961, Smt.Daulatbai and all others, who were representing their respective branches, were alive. They gave no objection for transferring the tenancy in his name exclusively. Therefore, he became entitled thereto i.e. for transferring the tenancies of the suit property in his name. 4 4 4 According to him, the BMC transferred the tenancies in his name and since the land was acquired by the BMC, he surrenderred it and when the lease was granted to him, he developed. According to him, therefore, there is nothing illegal in transferring the tenancies in his favour. The BMC who is supporting him came with a case that their action in transferring the tenancies in the name of defendant No.2 was bonafide and it is an official and administrative act without any malafide. 3. It is to be noted here that transfer of tenancy took place on 18.9.1981 whereas the consent letter for that purpose is dated 25.10.1961. Second contention of defendant No.2 was that Bomanji Ardeshir had executed a Will dated 15.10.1934 and by clause (9) of the said Will appointed his wife Dowlat to be the residuary legatee of the Will. Daulatbai thereafter before her death made another Will and bequeath the property to defendant No.2 and, therefore, the defendant No.2 has become exclusive tenant of the suit property. 4. The third contention of defendant No.2 5 5 5 was that out of the three tenancies in the Irani Wadi, he was occupying part of the suit bungalow and he was exclusively looking after the business of nursery since long without any interruption and contribution by the plaintiffs. So also he was exclusively looking after the other tenancies i.e. residential rooms of the Malis or gardeners without any interruption and contribution by the plaintiffs and the defendants who are supporting the plaintiffs and, therefore, apart from no objection certificate of 1961, he had an independent right in the Nursery or area covered by Nursery and over the rooms occupied by the Malis. 5. The next contention of defendant No.2 and supported by the BMC was that the suit for declaration was barred by limitation as it was not filed within six months as required by Section 527 of the BMC Act. In addition, the BMC contended that there was no notice under section 527 of the Act and, therefore, the suit was barred by limitation. They also contended that there were no malafides on their part in transferring the tenancies in the name of defendant No.2. 6 6 6 6. I have deliberately stated the case of defendant No.2 in the beginning because prior to the transfer it was the joint property in the name of Bomanji and since the defendant No.2 is harping on and banking upon the letter Exhibit B dated 25.10.1961 i.e. the consent letter given by all it was necessary to state his case first. 7. So far as the plaintiffs are concerned, their contention was that they had given this consent letter for the purpose of enabling all of them to pay rent regularly because the rent receipt should be in the name of one instead of all. However, according to them and, as per the consent letter dated 25.10.1961 (Exh.B). [hereinafter referred to as the consent letter], all heirs of Bomanji had agreed to pay rent jointly every month and they were paying it regularly. According to the plaintiffs, this consent letter was given for the sake of convenience and did not amount to transfer of tenancies or their interest in the tenancies of the suit property or tenancies of all the three portions of the suit property. They had in fact, soon after writing the consent letter, not only 7 7 7 informed the BMC, not once, but repeatedly by number of letters raised objections in this regard. According to the plaintiffs, this consent letter dated 25.10.1961 was given for one more additional reason and, that is, a notice given by the BMC vide Exhibit A collectively to all the legal heirs of Bomanji viz Smt.Daultbai Bomanji; Shri Dinshaw Bomanji, Shri Jehangir Bomanji, Ardeshir Bomanji, Shri Framroz Bomanji and Shri Homy Bomanji asking them to quit and deliver vacant possession of the premises. 8. It is further the case of the plaintiffs that even though the consent letter was written in 1961 the tenancy was not so transferred for quite a long time i.e. for about two decades. But when they learnt in 1975 that it was so being transferred in the name of defendant No.2 they started writing letters to the BMC protesting about transfer and bringing real fact to the notice of the BMC. There are four letters in this regard. They are dated 14.8.1975, 22.12.1980, 22.10.1981 and 28.10.1982. According to the plaintiffs, these letters clearly shows that as to what was the intention of the parties; what steps they had taken to prevent the transfer 8 8 8 of tenancy in the name of defendant No.2. 9. Another most important aspect that was pleaded by the plaintiffs in support of their contention is the filing of the suit in the City civil Court vide Suit No. 5451 of 1963. This suit was filed by Daulatbai Bomanji, Ardeshir Bomanji, Jehangir Bomanji, Framroze Bomanji, Dinshaw Bomanji and Homi Bomanji against the BMC and its authorities for a declaration that three orders passed under Section 105(B) of the BMC Act were illegal, invalid and for perpetual injunction against the corporation. This suit was contested by the BMC. It ultimately came to be decreed by a judgment dated 11.7.1977 and the three orders so challenged were quashed and permanent injunction was granted against the BMC in enforcing the order of eviction of the plaintiffs in that suit. 10. The plaintiffs relied upon this earlier suit to substantiate their contention that even though the consent letter was executed by them in favour defendant No.2, it was only for the sake of convenience and all the heirs of Bomanji who signed the consent letter had right, title and 9 9 9 interest in the property and, they did not and never surrender their rights. By filing of a joint suit and a combined suit in 1963 as stated above and, decreeing the said suit in 1977 confirms this fact. 11. Since transfer of tenancy is the basic issue in this case, it has to be decided first. 12. The four letters relied upon by the plaintiffs, as stated in para 7, are dated 4th August 1975 - Exhibit B Colly., 22nd December 1980 - Exhibit A, 22nd October 1981 - Exhibit B Colly. and 28th October 1982 - Exhibit C. I will go by Exhibits numbers. The first letter is Exhibit A. It is written by the advocate for the plaintiffs for and on behalf of Homi Irani, Tehmtan Irani and Pesotan Irani. 2nd letter is Exhibit B-Colly dated 4th August 1975. It is jointly written by Dinesh Bomanji, Ardeshir Bomanji, Jehangir Bomanji and Homi Bomanji. The 3rd letter is dated 22nd October 1981 (Exh.B colly.). It is written by P.H.Irani - Heir to Late Jehangir Bomanji Irani. The 4th letter is Exhibit C dated 28th October 1982. It is written by the advocate Mr.B.L.Sequeira. It is written 10 10 10 for and on behalf of 12 persons i.e. all the heirs of Ardeshir and Homi Irani. In all these letters, there is an assertion of joint tenancy, joint occupation and enjoyment of the suit property. This assertion, coupled with the fact of filing of the suit, as referred to above, by all the five persons including Daulatbai, strongly supports the case of the plaintiffs that the consent letter, given for transfer of tenancy in the name of defendant No.2, was only for the sake of convenience and not for transferring the rights of tenancy forever in favour of the defendant No.2. 13. It is to be noted at this juncture that the transfer of tenancy, as per the defendant No.2 and the BMC, took place on, not even after ten years but after twenty years of execution of the consent letter. That transfer of tenancy actually took place on 18th September 1981. A serious question arises about this transfer, that is, on account of this inordinate delay which creates strong suspicion about the legality, validity and bonafide of the transfer. By the letters proved on record by the plaintiffs to the BMC expressing their apprehension of transfer and 11 11 11 that is up to the date of not only 1981 but even thereafter, they have forewarned the municipal authorities for transferring the tenancy exclusively in the name of defendant No.2. 14. Another serious question arises in this matter and that is required to be considered is, why for and for what reason all the heirs of Bomanji, who had signed the consent letter, should transfer the tenancy in the name of defendant No.2. 15. 3rd question that arises is, whether giving the consent for transferring the tenancy amounts to relinquishment of rights by all those person in the suit property in favour of defendant No.2. The answer to the 2nd question is that there is no relinquishment at all in favour of defendant No.2. The consent letter nowhere shows nor a single document is there with the defendant No.2 to show that the signatory of the consent letter has relinquished, abandoned and given up their tenancy right in the property forever and permanently in favour of the defendant No.2. No such case is put forth by 12 12 12 defendant No.2 at any stage. Further there is no reasons why all other signatories of the consent letter should shower all the benefits of tenancy right exclusively upon the defendant No.2. Nothing is brought on record to show that defendant No.2 had given any privilege to the family or made any sacrifice for the family for which all of them decided to compensate the defendant No.2 by transferring the tenancy. Therefore for all these reasons, it has to be held that transfer of tenancy sought to be achieved by consent letter was only for the sake of convenience. It was not relinquishment of right by other signatories in the suit property. Subsequent conduct of the plaintiff in protesting and apprehending, the delay of 20 years in effecting the transfer are all circumstances that strongly support the case of the plaintiffs and it also disproved the case of the defendant No.2. The plaintiffs have alleged malafides against the BMC in this regard. It is true that the malafides are to be specifically proved against the specific officer but it can be said that the transfer lacks bonafides. 16. Learned counsel Mr.Godbole appearing for 13 13 13 the defendant No.2, tried to urge that because the defendant No.2 was doing of the nursery business and looking after and taking care of the property, the parties had agreed to transfer the tenancy in his name. The question is not of mere transfer but the question is of relinquishment of right and giving up of their rights in the property by other signatories. If the defendant No.2 was wholly looking after the nursery business, then that itself is no circumstance to shower the benefits upon him. There is no evidence, there is nothing on record nor it was pointed out to me that the defendant No.2 did anything special for other signatories in the course of their life or at the time of execution of consent letter or for signing of the consent letter. Therefore the reason tried to be put forth by Mr.Godbole has no force. It has no basis and it has required to be rejected. 17. To conclude at this stage, the trial court has committed serious error in appreciating the evidence and facts. The trial court did not properly appreciate the consent letter. The trial Court also did not properly appreciate the significance of filing of joint suit against the 14 14 14 BMC as stated earlier. The trial court did not consider the importance of delay of 20 years in the so called transfer and also did not consider the effect of all the four letters stated above. The trial court did not consider the letter of apprehension sent by the plaintiffs to the BMC about intended transfer. 18. The so called transfer of tenancy is dated 18th September 1981. The defendant No.2 contended that it is legal and proper transfer. The BMC contends that it is a bonafide transfer. But the letter dated 2.2.1982 (Exhibit 16) written by the Senior Ward Office, E-Ward to Shri P.H.Irani is very vital and crucial document. It falsifies both these contentions of the defendant No.2 and the BMC. The subject of this letter (Exhibit 16) as written in it is "Transfer of rent receipt of C.S.No.266/67 known as Irani Wadi". There is a reference to the letter of P.H.Irani addressed to Shri P.P.Kamdar about the objection for transfer of rent receipt in the name of Dhinshaw Bomanji Irani, i.e. defendant No.2 and, the Sr.Ward Officer, who has written this reply, has stated that any objection does not appear to have been received by E Ward Office 15 15 15 and, therefore, a request was made to P.H. Irani to send a copy of the same letter and, the purpose of asking for the copy is "so as to enable him to decide on the objections on merits." Then copy of this letter (Exhibit 16) was also sent to the Law Office. 19. This letter of 1982 fully supports and fortifies the contentions raised by the learned Counsel Mr.Naik for the plaintiffs that the transfer of tenancy on 18th September 1981 is not bonafide because even as on 2.2.1982, as per the Sr.Ward Officer of the BMC, there was no transfer of tenancy and objections were to be decided on merits thereafter. I have no hesitation in accepting this submission of learned counsel Mr.Naik for the plaintiffs. Therefore, in this background, it has to be held that transfer of tenancy is suspicious and lacks bonafides. 20. The second ground on which the trial court went against the plaintiffs is of limitation. Issue Nos. 17 and 18 were framed in this regard. They are as under :- "Issue No.17:- Whether the suit of the 16 16 16 Plaintiffs is liable to be dismissed for want of statutory notice under Section 527 of the B.M.C. Act, as alleged by the defendant ? Issue No.18:- Whether the suit filed by the plaintiffs is barred by the limitation?" Both the Issues have been decided by the trial court against the plaintiffs. The findings on these issues is there in paragraphs 5 and 6 onwards. About limitation, according to the defendant No.2, the cause of action accrued on the date of transfer and not when the transfer of tenancy came to the knowledge of the plaintiffs. The transfer of tenancy has taken place on 18th September 1981 and, as provided by Section 527 of the BMC Act the suit should have been filed within seven months. But it is filed on 23rd March 1983 and, therefore, it is beyond limitation. The trial Court relied upon the letter dated 18th September 1981 (Exhibit 28) which is about sanctioning the transfer of tenancy in the name of defendant No.2. Further from 11/9/1981 rent receipts were also issued to 17 17 17 defendant No.2 and prior to that they were in the name of Bomanji Irani. In para 10, the trial court has noted the aforesaid letters of the plaintiffs dated 22-10-81, 25-2-82, 18-9-81 and 23-10-81. According to the trial Court, the plaintiffs do not have any specific evidence to show that their knowledge dates back to October, 1982. This approach of the trial court is totally erroneous and wrong. In fact, the letter of the Sr.Ward Officer of the BMC dated 2/2/82 clearly shows that till that date, tenancy was not transferred. Further even though the plaintiffs were repeatedly raising objections to the transfer, the BMC authorities did not care to intimate the plaintiffs at any time after this letter dated 2.2.82 as to when they had taken decision of transfer the tenancy in the name of defendant No.2 or had actually transferred the tenancy in the name of defendant No.2. The date of transfer is 18th September 1981. In view of the letter of the Sr.Ward Officer of the BMC dated 2/2/82, the stand taken by the defendant No.2 is falsified and, therefore, the entire approach of the trial court on the point of limitation is wrong, erroneous and perverse. If there is no official communication to the 18 18 18 plaintiffs about the date of transfer from the BMC authorities or from the defendant No.2, then the contention of the plaintiffs that they came to know about the transfer of tenancy in October 1982 was required to be accepted. The approach of the trial court that knowledge of transfer would not give any cause of action is totally wrong. 21. It was tried to be contended and urged by the learned counsel Mr.Godbole for defendant No.2 that if the plaintiffs were expressing their apprehension about the transfer and raising protest about that by their repeated and frequent letters to the BMC, then they ought to have filed a suit as soon as the apprehension arose. This is a stand without basis. It is true that the plaintiffs could have filed a suit on the basis of apprehension. That does not prevent them from filing the suit after coming to know about the transfer. To the contrary, filing the suit after the transfer was the proper step taken by the plaintiffs. The apprehension gives one cause of action and actual transfer gives another cause of action. Filing of suit after coming to know about the transfer was perfectly within 19 19 19 limitation and the findings of the trial court is, therefore, to be set aside. The suit is within seven months of the date of knowledge. It is filed on 23rd March 1983 whereas the plaintiff got the knowledge in October 1982. It is well within limitation. 22. The next question on the basis of which the suit was dismissed is Issue Nos. 23 and 24. Those Issues are as under :- "Issue No.23 :- Does Original defendant No.2 prove that the predecessor of Plaintiff Nos. 2 to 4 had relinquished or lost the right of intestate succession to the estate of the deceased Bomanji in view of the averment contained in the latter part of Para 12 of the Written Statement of original Defendant No.2.? Issue No.24:- Whether original defendant No.2 proves that the deceased Bomanji had left a Will and if so, whether Daulatbai has inherited any interest in the suit property under the said Will?" 20 20 20 23. Both the sides, learned counsel Mr.Naik for the plaintiffs and, learned counsel Mr.Godbole for defendant No.2, made submissions before me only in respect of Issue No.24. . Bomanji Ardeshir Irani had executed a Will. It is dated 15th October 1934. Only clause that was strongly relied upon by the learned counsel Mr.Godbole for defendant No.2 is the clause No.9 which states that Bomanji had appointed his wife Dowlat to be the residuary legatee of this Will. Learned Counsel Mr.Godbole for the defendant No.2 contended that if Daulatbai was appointed as residuary legatee, then she becomes the sole tenant of Irani Wadi as a residuary legatee. He, then, contended that Daulatbai, in turn, had executed a Will on 2nd January 1949 and in para 2 thereof she has stated, "I give devise and bequeath the business of Florists carried on at Mazgaon Tram Terminus to my son Dinshaw absolutely subject however to his paying to my daughter Ketayun a sum of Rs.50/- per month so long as she lives. My daughter Ketayun shall have a charge for the said amount on the said business. I do not think anything further would be left out of my estate 21 21 21 and effects; however, I appoint my daughter Ketayun to be the residuary legatee of this my Will." 24. No submissions were made before me either by the learned counsel Mr.Naik for the plaintiffs and learned counsel Mr.Godbole for the defendant No.2 about the legal heirs of Ketayun and what happened, if at all the residuary rights of the property were given to by Daulatbai to Ketayun. Mr.Naik contended that the Will of Daulatbai was not probated and, therefore in any case the defendant No.2 does not get any right under the Will of Daulatbai. Nothing was shown to me that any probate was obtained in respect of the Will of Daulatbai. 25. Considering both the Wills, therefore, it is clear that the suit property does not go to defendant No.2 alone as alleged by him. Therefore, this is a case where neither the consent letter nor the Will gives any exclusive