Bombay High Court
Jehangir Noshir Irani vs Yasmin Dinyar Elavia And Ors. on 6 January, 2026
2026:BHC-AS:695
FA-106-2004 (J) C3.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 106 OF 2004
District : Mumbai
Jahangir Noshir Irani, resident at
3, Chowpatty Sea Face, 3rd Floor,
SNEHA
NITIN above Islam Club, Chowpatty,
CHAVAN
Mumbai 400 007 and at ground floor
Digitally signed
by SNEHA of Adajania House, 803/B,
NITIN CHAVAN
Date:
2026.01.08
Dr.Ambedkar Road, Dadar, Mumbai - 400 014. ...Appellant
19:51:11 +0530
Versus
1. Mrs. Yasmin Dinyar Elavia
2. Mr. Dinyar P. Elavia
All residing at ground floor, 803/B, Adajania
House, Dr. Ambedkar Road, Dadar, Mumbai -
400014.
3. Perin Havia, House No. 90, 8 Main, 3rd Cross
Lane, Sadanand Nagar (East), NGEF Bangalore
- 560038. ...Respondents
***
For the Appellant : Mr. Vineet Naik, Senior Advocate a/w Mr. Drupad
Patil, Mr. Ashwar Nankani, Mr. Huzefa Khokhawala, Mr. Karan Pamar,
Mr. Kartik Gupta i/b Nankani and Associates.
For the Respondents : Mr. Girish Godbole, Senior Advocate a/w Mr.
Aditya Shiralkar, Mr. Nishant Thakkar, Mr. Rajesh Poojary i/b Mulla
and Mulla.
****
CORAM : M.M. SATHAYE, J.
RESERVED ON : 8th OCTOBER, 2025
PRONOUNCED ON : 6th JANUARY, 2026
Sneha Chavan 1
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FA-106-2004 (J) C3.docx
:JUDGMENT :
1. This First Appeal is filed by original Plaintiff against impugned Judgment and decree passed by City Civil Court at Bombay in S.C. Suit No. 2121 of 2002 dated 17.11.2003. By the said impugned Judgment and Decree, the suit filed by the Appellant is dismissed.
RIVAL CASES
2. The case of the Appellant/Plaintiff is as under:
2.1) That the Plaintiff has been a monthly tenant in respect of suit flat being a flat on the ground floor North side of the building known as Adajania House, situated at 803-B, Dr. Ambedkar Road, Dadar, Mumbai
- 400014 and also a garage in the compound. That in view of the separate tenancy, rent receipt of the garage is issued in the name of the Plaintiff's late father Noshir. That Defendant No.1 is his youngest sister and Defendant No.2 is her husband.
2.2) That Defendant No.2 was residing in a flat provided by his employer in a building near Kemps Corner. That Defendant No.2 married Plaintiff's sister Defendant No.1 in the year 1976 and promptly resigned his job. On resignation, Defendant No.2 was required to vacate the premises in his occupation at Kemps Corner and both Defendant No.1 and her husband approached the Plaintiff, pleading to permit them to use and occupy the portion of the suit flat temporarily and till such time as they obtained premises elsewhere. 2.3) That Defendant No.1 (sister) represented that she was trying to.
obtain accommodation in Malcolm Baug situated at Jogeshwari and promised that they would vacate the suit flat as and when Plaintiff called upon them to do so. That being moved by plight of the younger sister, the Plaintiff agreed to accommodate Defendant Nos. 1 and 2 in the suit flat which was fully furnished by him. That the Plaintiff Sneha Chavan 2 ::: Uploaded on - 08/01/2026 ::: Downloaded on - 08/01/2026 20:30:15 ::: FA-106-2004 (J) C3.docx clarifying that since he was also residing at Chowpatty, he would permit them free of charge and temporarily to use the suit flat except the front bedroom near entrance of the building which he was continuously using especially on weekends.
2.4) That Defendant Nos. 1 and 2 moved in the suit flat and also brought deceased Defendant No.3 and her husband (parents-in-law of Defendant No.1 sister), to which the Plaintiff did not raise any objection in view of their advanced age and they being dependants on Defendant No.2. That during pendency of the suit, Defendant No.3 and her husband expired and name of Defendant No.3(a) was brought on record and Defendant No.2 and Defendant No.3(a) are the only heirs and legal representatives of Defendant No.3. That Defendants have been residing in the suit flat entirely gratuitously and as unprotected licensees to whom Plaintiffs have given shelter purely on humanitarian consideration and moved by natural love and affection. 2.5) That, however Defendant No.1 without any rational basis started behaving in a rude and hostile manner in respect of other matters against Plaintiff. That Defendant No.1, behind Plaintiff's back, attempted to get rent receipt transferred to her name. That initially Defendants had only brought 2 cots. But, thereafter started bringing other furniture and appliances etc. and also occasionally strayed into front bedroom which they were not permitted to.
2.6) That the behaviour of Defendant No.2 become so obnoxious and intolerable, that by Advocates Notice dated 30.04.1986, the Plaintiff revoked the permission granted to Defendants to use the suit flat and called upon them to vacate the same. However, the Defendants failed to comply and Defendant No.1 issued Advocate's reply dated 05.06.1986 claiming entitlement in her own right and contended that there was a promise to transfer the suit flat in her name. Therefore, the Sneha Chavan 3 ::: Uploaded on - 08/01/2026 ::: Downloaded on - 08/01/2026 20:30:15 ::: FA-106-2004 (J) C3.docx suit was filed seeking recovery of possession of suit flat.
3. The suit was filed as between the licensor and gratuitous licensee, claiming recovery of possession and mesne profits or compensation. The suit was initially filed in the Court of Small Causes at Bombay as L.E. & C. Suit No. 438/461 of 1986. On the objection by Defendants, the Small Causes Court held that it does not have jurisdiction to decide the suit and plaint was returned, which was then filed in City Civil Court, which was numbered as S.C. Suit No. 2121 of 2002.
4. The Respondents/Defendant Nos. 1 and 2 filed written statement contending inter alia as under :
4.1) That Plaintiff and Defendant No.1 are part of 'Noshir Jehangir Irani' family which consisted of Noshir himself, his wife Mahaynoo, his son - Jehangir (Plaintiff), daughter - Yasmin (Defendant No.1) and another daughter - Khorshed. That the family resided in the suit flat from 1944 to 1968 and also occupied a garage in the Adajania House compound. That during the said period, the tenancy of the suit flat and the garage stood exclusively in the name of father Noshir. That their grandmother (mother of Noshir) resided in a rented flat on 3 rd floor of Islam Club building at Chowpatty ('Chowpatty flat' for short) and after the death of grandmother in 1968, the Noshir family shifted to said Chowpatty flat from the suit flat. That tenancy in respect of Chowpatty flat after the death of grandmother came to be held singly in the name of father Noshir.
4.2) That suit flat at Dadar remained vacant for a long period of 8 years from 1968 to 1976. That to avoid termination of tenancy, in respect of suit flat, due to possible claim by the landlord, about holding more than one residential flat, father Noshir transferred the tenancy of Sneha Chavan 4 ::: Uploaded on - 08/01/2026 ::: Downloaded on - 08/01/2026 20:30:15 ::: FA-106-2004 (J) C3.docx suit flat (not garage) in favour of Plaintiff notionally in or about 1968.
That father Noshir owned and/or was Managing partner or Director of various businesses and was tenant or owner of various lands, bungalows, buildings, flats etc. 4.3) That in 1975, Defendant No.1 expressed her desire to marry Defendant No.2 and upon consenting to said marriage, it was decided and agreed by all family members including Plaintiff that Defendant No.1 shall reside in the suit flat and occupy the garage upon getting married to Defendant No.2. That suit flat was unoccupied and vacant since 1968 till 1975 when marriage of Defendant No.1 was proposed. It was further agreed and decided by all family members including the Plaintiff, that Defendant No.1 will retire from partnership of M/s. Precious Electric Company without making any claim for her share in the partnership because tenancy rights in respect of the suit flat was agreed to be transferred exclusively in favour of Defendant No.1 under family arrangement.
4.4) That at the relevant time, Defendant No.2 was residing in tenanted premises at Kemps Corner which was not sufficient for his family, especially after his marriage. That Defendant No.2 resigned from his employment and agreed to make suit flat as his permanent residence and that the Defendants took over suit flat and garage and shifted there with mother of Defendant No.2 immediately on engagement in February 1976. That since then, the Defendants are residing in the suit flat and occupying the garage. 4.5) That in 1979, father Noshir made his last Will and this was the time where the aforesaid family arrangement had started impacting the dealings between the family members as far as distribution of property/money was concerned. That the bungalow at Pune was given to Defendant No.1, which was already in possession of a tenant. That Sneha Chavan 5 ::: Uploaded on - 08/01/2026 ::: Downloaded on - 08/01/2026 20:30:15 ::: FA-106-2004 (J) C3.docx neither Defendant No.1 nor any other member of his family have ever used or occupied the said bungalow at Pune.
4.6) That in the year 1980 father Noshir sold huge family property at Chinchpokli for a large sum of money and the sale proceeds were divided by father Noshir amongst his wife and Plaintiff keeping in mind the family arrangement about suit flat. Defendant No.1 was told that she was not to have any claim in the sale proceeds of Chinchpokli property as rights in respect of suit flat (at Dadar) and garage were to be transferred in favour of Defendant No.1. That thereafter, despite various requests by father Noshir during his life time and also by other family members, the Plaintiff intentionally prolonged and avoided to transfer tenancy rights of suit flat in favour of Defendant No.1, convincing everyone that he would do so in time to come. That being eldest sibling and only brother, the Plaintiff was trusted easily. 4.7) That on 07.01.1982 father Noshir expired. After father's death, the Plaintiff started raising dispute with his mother and youngest sister. That after the death of father, the Plaintiff secretly approached the landlord and got the rent receipt of Chowpatty flat transferred in his single name, which was later discovered accidentally by their mother. That their mother then approached the landlord and got her and youngest daughter's name added to the rent receipt. However, Defendant No.1 out of sheer good faith and honesty did not even attempt to get her name in rent receipt or claim any right in Chowpatty Flat. That she was satisfied with arrangement about the occupation of suit flat at Dadar and promise to transfer its tenancy in her name along with garage. That in all family business namely Precious Electric Company, Mahim Ice and Cold Storage Company, Mahanosh Enterprises, Electrical Cable company and Machinery Private Limited, the Plaintiff alone was in complete Management till 1986, who Sneha Chavan 6 ::: Uploaded on - 08/01/2026 ::: Downloaded on - 08/01/2026 20:30:15 ::: FA-106-2004 (J) C3.docx manipulated its books to show lesser profits to deprive their late mother and youngest sister from their just share of profit. 4.8) That Plaintiff had issued notices to his mother and youngest sister asking them to retire from partnership or pay for the deficit in the capital accounts. That realising Plaintiff's intention, their mother and youngest sister filed suit praying for dissolution of family business and claiming their share in the profit. That the remaining family members i.e. mother, youngest sister and Defendant No.1 had filed Suit No. 920 of 1986 in the City Civil Court for separation of family's entire residential properties as per family arrangement in addition to the suit for dissolution of family business and share in the profits. That in this suit, Defendant No.1 was also Plaintiff No.3, however, the Court declined to pass any orders in respect of reliefs to Defendant No.1 as the present suit was filed.
4.9) That present suit has been filed as a counter blast to suits filed by mother and sister in the family, who were ready to defend their rights. That father Noshir until his death made payment of rent in respect of suit flat and garage out of family businesses and after the death of father, Defendant No.1 used to reimburse the Plaintiff, the amount of rent, some times directly and rest of the times through their mother. That this arrangement had continued until the Plaintiff filed present suit for eviction. That though Plaintiff stated in the plaint that he would file separate suit in respect of the garage, he never did it until recently and present suit has been filed after the Plaintiff managed to get the rent receipt in respect of the garage transferred in his name. 4.10) That from other Court proceedings, it is clear that their existed family arrangement as pleaded by Defendant No.1. That Plaintiff has breached the family arrangement and therefore, it is Plaintiff alone who is responsible to pay necessary amounts if any, to Sneha Chavan 7 ::: Uploaded on - 08/01/2026 ::: Downloaded on - 08/01/2026 20:30:15 ::: FA-106-2004 (J) C3.docx the landlord to have tenancy rights transferred in favour of Defendant No.1.
4.11) While answering allegations in the plaint, Defendant No.1 contended that Defendant No.2 had resigned from his Job in August 1975 itself, even before he met Defendant No.1. That Defendant No.2 after his resignation continued to reside at Kemps Corner flat until he was persuaded by Defendant No.1 and her parents to occupy larger vacant suit flat.
4.12) The averment about Defendant Nos. 1 and 2 requesting Plaintiff to allow him to use suit flat are denied specifically. The averment about permission to occupy suit flat till such time as they obtained accommodation at Jogeshwari is also specifically denied. They denied that suit flat was fully furnished. They contended that suit flat was in dilapidated condition and Defendant No.2 had to spend a sum of Rs.80,000/- approximately in 1976 to repair or renovate suit flat. They specifically denied that after 1976, the Plaintiff was in any sort of occupation of any part of suit flat. The case of gratuitous licensee is specifically denied. The case of giving shelter on humanitarian consideration or out of love and affection is specifically denied. It is contended that the Defendant No.1 is residing in the suit flat in her own right under oral family arrangement. The case of alleged rude and hostile behaviour is denied. The case of attempt to get rent receipts transferred in the name of Defendant No.1, behind Plaintiff's back is specifically denied. The receipt of suit notice and issuance of reply is admitted.
SUBMISSIONS
5. Learned Senior Advocate Mr. Naik made submissions on behalf of the Appellant, which can be summarized as below:
5.1. That the Trial Court has passed impugned Judgment and Decree Sneha Chavan 8 ::: Uploaded on - 08/01/2026 ::: Downloaded on - 08/01/2026 20:30:15 ::: FA-106-2004 (J) C3.docx without taking into consideration well settled principles of law that transfer of tenancy can never be a subject matter of family settlement without consent of the landlord. That in case of tenancy, the tenant can never relinquish his right in favour of third party, without consent of landlord. That the tenancy cannot be bequeathed through Will or any other testamentary disposition.
5.2. That the family settlement can take place only between the persons, who are having existing right, title and interest in the property and for effective family settlement, the person relinquishing his right, should have a legal right to transfer/convey/alienate his right, title and interest.
5.3. That the impugned judgment has been passed on an assumption that 'tenancy' is an immovable property belonging to undivided family of father Noshir Irani.
5.4. That the Trial Court failed to appreciate that Tenancy was lawfully transferred in favour of Appellant in year 1968 itself and Respondents have not produced on record any evidence to show that the alleged family settlement was communicated to the landlord at any point of time.
5.5. That the Trial Court failed to appreciate that there can be only one tenant holding the tenancy.
5.6. That the presumption of tenancy lies in favour of the person in whose name the rent receipt stands. In case of any cloud, dispute or otherwise, the contesting party should get a declaration about tenancy. For this proposition, he relied on para 41 of Vasant Sadashiv Joshi and Others V. Yeshwant Shankar Barve and Others, [Writ Petition No. 2371 of 1997 Order dated 03.01.2020]. 5.7. That the Trial Court has passed impugned Judgment and Decree purely on conjectures and surmises and the entire impugned judgment Sneha Chavan 9 ::: Uploaded on - 08/01/2026 ::: Downloaded on - 08/01/2026 20:30:15 ::: FA-106-2004 (J) C3.docx is based on assumptions and presumptions.
5.8. That the findings are recorded on the basis of the inferences drawn, without taking into consideration the provisions of law and the principles laid down by this Court and the Hon'ble Apex Court. 5.9. That the Trial Court has recorded the findings about alleged family settlement in the absence of any documentary evidence, particularly when the tenancy can never be subject matter of family settlement.
5.10. That though the Respondents had not filed any suit seeking declaration of alleged family settlement, the learned Judge has given declaration of family settlement in the suit filed by the Appellant. 5.11. That the Trial Court failed to take into consideration inconsistent stands taken by the Respondents in Civil Suit No. 920 of 1986 and present suit.
6. Learned Senior Advocate Mr. Godbole for Respondents, submitted as under.
6.1. That the doctrine of prospective overruling can be invoked only by the Supreme Court of India and its invocation must be express and specific. He relied upon C. Golak Nath and Others v. State of Punjab and Another [(1967) SCC OnLine SC 14] and Directorate of Revenue Intelligence v. Raj Kumar Arora and Others [(2025) SCC OnLine SC 819] in support of this submission. He submitted that since the doctrine of prospective overruling has not been invoked by the Supreme Court in Prabhudas Damodar Kotecha and Others v. Manhabala Jeram Damodar and Another [(2013) 15 SCC 358], even if this Court concludes that the relationship between the parties is that of a licensor-licensee, then the Impugned Judgment would suffer from an inherent lack of jurisdiction and this Court in the exercise of its appellate jurisdiction would not Sneha Chavan 10 ::: Uploaded on - 08/01/2026 ::: Downloaded on - 08/01/2026 20:30:15 ::: FA-106-2004 (J) C3.docx have jurisdiction to pass a decree of eviction but only to hold that the judgment of the Trial Court is a nullity and leave the parties to adopt remedy in the form of a fresh suit. It is submitted that conversely, in the event that this Court holds that there is no licensor-licensee relationship, then the appeal must simply be dismissed. 6.2. That the Civil Court under Section 9 of the Code of Civil Procedure, 1908 ('CPC' for short), has plenary/inherent jurisdiction to determine the character of the relationship of parties, including landlord-tenant or licensor-licensee or whether it is a gratuitous license, or a family arrangement. However, the Civil Court cannot grant any relief if the relationship is that of landlord-tenant or licensor-licensee. He submitted that the issue of jurisdiction in the present case is not a pure question of law, but a mixed question of fact and law and, was, therefore, required to be determined on the basis of the pleadings and evidence of the rival parties. He submitted that this determination of the jurisdictional fact on the basis of the rival pleadings and evidence by the Trial Court cannot be wished away by invoking the change in the legal position in 2007 by virtue of Prabhudas Damodar Kotecha (supra 2013). He relied upon Sarfarzali Nawabali Mirza v. Miss Maneck G. Burjorji Reporter [(1975) SCC OnLine Bom 121] in support of this submission.
6.3. He submitted that the consistent view of this Court has been that family members, such as the sister in the present case, do not fit within the definition / concept of "gratuitous licensee" and the Court should be slow in accepting such plea. He relied upon Sarika W/o Mahendra Sureka v. Kusumlata W/o Rajkumar Sureka and Another [2014 (4) Mh. L.J. 272], Deepak Natwarlal Parekh v. Tejas Natwarlal Parekh [(2015) 1 Bom CR 180 (Bom-DB)] and Conrad Dias, Dadar, Bombay v. Joseph Dias, Dadar, Bombay [1996 (2) Mh. L.J. 208] in support of this Sneha Chavan 11 ::: Uploaded on - 08/01/2026 ::: Downloaded on - 08/01/2026 20:30:15 ::: FA-106-2004 (J) C3.docx submission.
6.4. That when name of a family member is introduced on rent receipt, the member holds the tenancy nominally, for the benefit of the entire family and in absence of positive evidence of sacrifice or special privilege, the change of name on rent receipt is never intended to create exclusive right in such nominated tenant. He submitted that in this case, the law imposes an obligation of a resulting trust on the Plaintiff, who is deemed to have held the tenancy of the suit-flat from 1968 for the benefit of the Noshir Irani family. He relied upon Canbank Financial Services Ltd. v. Custodian and Others [(2004)8 SCC 355], Westdeutsche Landesbank Girozentrale v Islington London Borough Council, [(1996) A.C. 669 H.L.(E.)], K. Moosa Haji's widow (Smt.) Kannadiyil Ayissu And Others v. Executive Officer, Sree Lakshmi Narasimha Temple [(1996) 9 SCC 49] and Zahid Ahmedali Mazgaonwalla and Another v. Gulshan Pyarali Mazgaonwalla, [2006 (5) Mh. L.J. 522], Gaiv Dinshaw Irani and Others v. Tehmtan Irani and Others, [(2014) 8 SCC 294] in support of this submission. 6.5. That the Appeal Court must be slow to interfere in findings of fact recorded on the basis of oral evidence after a full trial, save and except in case of perversity. He submitted that the well-reasoned judgment of the Trial Court based on proper analysis and appreciation of pleadings and the cogent evidence on record deserves to be upheld. He relied upon Jagdish Singh v. Madhuri Devi [(2008) 10 SCC 497] and V. Prabhakara v. Basavaraj K. (dead) By legal Representatives and Another [(2022) 1 SCC 115] in support of this submission.
6.6. He submitted that that family arrangements can be oral and inferred from long course of dealings and conduct of the family members. That there are special equities involved or created, which must be tested on the basis of evidence available. He relied upon Kale Sneha Chavan 12 ::: Uploaded on - 08/01/2026 ::: Downloaded on - 08/01/2026 20:30:15 ::: FA-106-2004 (J) C3.docx and Others v. Deputy Director of Consolidation and Others [(1976) 3 SCC 119] in support of this submission.
7. Mr. Naik in rejoinder, relying upon Ashwani Kumar Singh v/s. U.P. Public Service Commission and Others [(2003) 11 SCC 584] and State of Jharkand Vs. Rukma Kesh Mishra [(2025) SCC OnLine SC 676], submitted that the judgments cited by the Respondents ought to be interpreted after considering the context, the provisions and issue involved in the said judgments.
7.1. About the doctrine of prospective overruling, it is submitted that there is no dispute about proposition of law laid down in Golak Nath (supra) and Directorate of Revenue Intelligence (supra). 7.2. It is submitted that caselaw in Prabhudas Damodar Kotecha & Anr. Vs. Smt. Manharbala Jeram Damodar & Ors [2007 (5) Mh. L.J. 341] and Prabhudas Damodar Kotecha (2013 supra) only lays down 'what the law always has been' as such there is no question of retrospective or prospective application. Only in case of any amendment to an enacted law, one can argue whether it has retrospective effect or not but not in case of any judgment.
7.3. It is submitted that its effect is now well settled that the disputes between licensor and gratuitous licensee would lie before the Court of Small Causes. Since the Trial Court was not justified in holding that Respondents are occupying the premises as per family arrangement and Respondent No.1 is not gratuitous licensee, this Court should return the plaint to the Appellant with a liberty to lodge it before the Court of Small Causes.
7.4. That taking into consideration, the advanced age of the parties and the fact that the suit was filed in the year 1986, appropriate directions be provided to the Court of Small Causes to decide the suit Sneha Chavan 13 ::: Uploaded on - 08/01/2026 ::: Downloaded on - 08/01/2026 20:30:15 ::: FA-106-2004 (J) C3.docx expeditiously and in a time bound manner, and on the basis of evidence led in suit before the City Civil Court without permitting parties to lead any fresh evidence.
7.5. About Kale & Ors. Vs. Deputy Director (supra) relied upon by the Respondents to contend that the family arrangement can be oral, it is submitted that in that case, the compromise was mutually acknowledged and recorded in writing, which is not the situation in present case; in contrast, in the present case, the tenancy was transferred to the Appellant and Respondents Nos.1 and 2 were permitted to reside and Respondents have pleaded that there existed an oral family settlement, which is denied by the Appellant. In the present case, the Respondents have not produced any material or evidence to show that the Appellant herein had consented for the alleged family settlement. In the absence of particulars and proof, the Trial Court ought not to have recorded a finding about family settlement. 7.6. About rest of the judgments, while the proposition laid down in those judgments are not disputed, it is submitted that they have no application to the facts of the present case and they are sought to be distinguished on minute facts.
7.7. That appeal being a continuation of suit, only the averments of the plaint are to be considered to decide jurisdiction.
8. In view of aforesaid submissions, following points arise for consideration:
(1) Whether the City Civil Court had the jurisdiction to hear and decide this suit at the relevant time? Yes. (2) Whether the character of relationship between Appellant and Respondent No. 1 (brother and sister) is that of licensor and gratuitous licensee or that the Sneha Chavan 14 ::: Uploaded on - 08/01/2026 ::: Downloaded on - 08/01/2026 20:30:15 ::: FA-106-2004 (J) C3.docx Respondent No. 1 was and is in use and occupation of suit flat in her own right under family arrangement?
Respondent No.1 is in possession under family
arrangement.
(3) Whether any interference is required in the judgment of the Trial Court ? No. REASONS AND CONCLUSIONS
9. The suit was filed in the year 1986, initially in Small Causes Court on the averment that the Respondents are gratuitous licensees. During pendency of the suit, the Respondents made an Application challenging jurisdiction of the Small Causes Court. In 2002, the plaint was returned holding that Small Causes Court has no jurisdiction. The plaint was thereafter filed and registered before the City Civil Court in April 2002. The impugned judgment was rendered on 17.11.2003. In 2004, the present First Appeal has been filed.
10. During pendency of this appeal, the law regarding jurisdiction of the Small Causes Court in respect of suits against gratuitous licensee came to be crystallized under the Full Bench judgment of this Court in Prabhudas Damodar Kotecha (2007 supra). The full bench of this Court held that the Small Causes Court has the jurisdiction to try suits even against gratuitous licensee. This view was tested by Hon'ble Supreme Court and in Prabhudas Damodar Kotecha (2013 supra) upheld the view taken by full bench of this Court. Both the learned counsel are ad- idem about the fact that the Hon'ble Supreme Court has not made its confirmation of view prospective and as such judgment of Prabhudas Damodar Kotecha (2013 supra) is not the case of prospective overruling. Therefore, it is clear that the suit as tried by the Trial Court Sneha Chavan 15 ::: Uploaded on - 08/01/2026 ::: Downloaded on - 08/01/2026 20:30:15 ::: FA-106-2004 (J) C3.docx (City Civil Court) did not have jurisdiction to entertain a suit between licensor and gratuitous licensee.
11. However, for the purpose of determination of character of relationship between the parties, the impugned judgment cannot be held per se without jurisdiction because the Trial Court (City Civil Court) definitely had jurisdiction to pronounce on the character of relationship between the parties. This view is supported by the judgment of Division Bench of this court in the case of Sarfarzali Nawabali Mirza (Supra), which in turn relies upon the judgment in Govindram Salamatrai vs Dharampal [(1951) 53 Bom. L.R. 886] and the judgment of the Hon'ble Supreme Court in Raizada Topandas vs Gorakhram Gokalchand [AIR (1964) SC 1348]. It is settled position of law that ouster of civil court's jurisdiction can not be lightly inferred. In that view of the matter, Point no. 1 is answered in affirmative.
12. Therefore, I will now proceed to consider the findings given by the Trial Court on merits about the character of relationship between the Appellant and Respondents.
13. According to Appellant, Respondent No. 1 and her husband/family was permitted to use and occupy part of suit flat as gratuitous licensee for temporary period. Per contra, according to Respondent No. 1, she is in occupation of the suit flat under 'an oral family arrangement' in her own right and therefore, the suit as filed by the Appellant must be dismissed.
14. The jurisdiction of the Appeal Court u/s. 96 of CPC is well established as guided by the Hon'ble Supreme Court in Jagdish Singh Sneha Chavan 16 ::: Uploaded on - 08/01/2026 ::: Downloaded on - 08/01/2026 20:30:15 ::: FA-106-2004 (J) C3.docx (supra), which is followed recently by the Hon'ble Supreme Court in case of V. Prabhakar (supra). The Hon'ble Supreme Court in the said judgments has held that though it is open for the High Court exercising power as first Appellate Court, to enter into both, the question of law and the question of facts, at the same time, the Appellate Court is expected, nay bound, to bear in mind that the Trial Court had an advantage and opportunity of seeing the demeanour of witnesses and hence the Trial Court's conclusions should not normally be disturbed. It is also held that though Appellate Court possesses power as that of the original Court, it has to be exercised with proper care, caution and circumspection. In V. Prabhakar (Supra), the Hon'ble Supreme Court reiterated the said principle by holding that the first Appellate Court while exercising power u/s. 96 of CPC can redo the exercise of Trial Court; however, such a power is expected to be exercised with caution, the reason being that the Trial Court alone has the power of seeing demeanor of witnesses. It is further held that mere substitution of views without discussing the findings of the Trial Court is not permissible and if two views are possible, it would be appropriate to go with the view expressed by Trial Court.
15. This Court must bear in mind that the rival parties here are close relatives, in as much as, they are real brother and sister. Therefore the advantage of the Trial Court to watch demeanor of witnesses assumes importance.
16. Keeping all these aspects in mind, I have gone through the impugned judgment as well as the oral and documentary evidence on record. The Trial Court has considered the admissions given by Appellant/Plaintiff as well as absence of any share being given in Sneha Chavan 17 ::: Uploaded on - 08/01/2026 ::: Downloaded on - 08/01/2026 20:30:15 ::: FA-106-2004 (J) C3.docx Chowpatty flat and the sale proceeds of properties of Noshir's family as well as other circumstances to conclude that there was family arrangement under which Respondent No. 1 was put in possession of the suit flat. The reasons given by the Trial Court appears to be probable and based on material available on record.
17. Despite the said position, as a first Appellate Court, it is necessary to re-appreciate the evidence in the light of arguments of the Appellant, which I proceed to do now.
18. The case of the Respondent No. 1 in written statement is duly supported by her examination in chief and she has withstood the cross examination.
19. The Appellant/Plaintiff has examined only himself as PW-1. Perusal of his cross-examination shows that Appellant has given following admissions:
(i) That the Chowpatty flat is approximately double the area as compared to suit flat at Dadar.
(ii) That there was no pantry in the bedroom, which is allegedly kept by Appellant for himself in the suit flat at Dadar.
(iii) That in the year 1976, while-wash was done to the suit flat prior to marriage of Respondent No. 1.
(iv) That father-Noshir was the head of family as well as head of business.
(v) That D.W.2-Ms. Kalyaniwala was a neighbour of suit flat at Dadar, since prior to 1968. That she had good relationship with the family of Appellant and Respondent No. 1.
(vi) That the Appellant did not object to the Respondents using Sneha Chavan 18 ::: Uploaded on - 08/01/2026 ::: Downloaded on - 08/01/2026 20:30:15 ::: FA-106-2004 (J) C3.docx the front bedroom allegedly kept by Appellant for himself and he did not lock the said bedroom at any time.
(vii) That he did not send any notice to the Respondents until Suit No. 920 of 1986 was filed, and it is a fact that present suit is a counter-blast asking Respondent No. 1 and her family to vacate the suit flat because she instituted suit against Appellant.
(viii) That he came to know about disconnection of his telephone line in the suit flat pending Suit No. 920 of 1986.
(ix) That he has nothing to show that after retirement of Respondent No. 1 from the firm, she was paid any share in the profits.
(x) That their father-Noshir had not distributed the amounts after selling property at Chinchpokli.
20. Aforesaid admissions will have to be pitched against the chronology of events, which is as follows. In 1968, the entire family of Noshir shifted from suit flat (at Dadar) to a flat at Chowpatty and the suit flat was lying vacant from 1968 to 1976, except for a few months when a friend of Appellant was permitted to stay. In 1976, the Respondent No. 1 started occupying the suit flat with her husband and his family. On 03.06.1979, father-Noshir executed his last will in which though there was mention of tenancy right in Chowpatty flat and Yusuf building, there was no mention about tenancy right in the suit flat at Dadar. On 07.01.1982, father-Noshir died. In February 1986, mother - Mahaynoo, the other sister Khorshed and the Respondent No. 1 Yasmin filed Suit No. 920 of 1986 against the Appellant seeking declaration of family arrangement including about Chowpatty flat and suit-flat at Dadar and injunction against the Appellant about possession of Respondent No. 1 Yasmin in suit-flat and garage at Dadar. Respondent Sneha Chavan 19 ::: Uploaded on - 08/01/2026 ::: Downloaded on - 08/01/2026 20:30:15 ::: FA-106-2004 (J) C3.docx No. 3 was plaintiff No. 3 in that suit. Another Suit No. 447 of 1986 was filed by said 2 sisters (Khorshed and Yasmin) against brother (Jehangir) for dissolution of the firm Precious Electric Company, share in profits etc. Thereafter, on 30.04.1986, Appellant issued notice to Respondent No. 1 for the first time, calling upon her to vacate the suit flat. The Respondent No. 1 issued Advocate's notice reply on 05.06.1986, taking a stand that she is residing in suit flat as per family arrangement. On 16.07.1986, Appellant filed present suit (in the Small Causes Court at Mumbai), in which plaint was returned by Small Causes Court to Appellant on 06.03.2002. Thereafter, on 03.04.2002, Appellant lodged the returned plaint in City Civil Court, which was renumbered. In this suit, the present impugned judgment and decree is passed.
21. From the aforesaid chronology and admissions of the Appellant, it is clear that from 1976, when Respondent No. 1 occupied the suit flat alongwith her husband and his family, till April 1986, for a long period of 10 years, the Appellant did not take any steps to ask possession of suit flat from Respondent No. 1. Admittedly, Appellant has not taken objection to Respondents using the bedroom allegedly kept by Appellant in the suit flat for himself. Admittedly, it is only after the mother and sisters of the family came together to defend their rights by filing suits against Appellant, as a counter-blast, the present suit is filed. Admittedly, nothing is brought on record to show that Respondent No. 1 was given any share in the profits of family business or Chowpatty flat either under Consent Terms dated 08.04.1994 in Suit No. 447 of 1986 or Minutes of order dated 19.04.1991 in High Court First Appeal No. 546 of 1990, arising out of Suit No. 920/1986 (accepted under order dated 22.04.1991). Admittedly as regards the suit flat at Dadar, no order was passed in Suit No. 920 of 1986 and the dispute was left open Sneha Chavan 20 ::: Uploaded on - 08/01/2026 ::: Downloaded on - 08/01/2026 20:30:15 ::: FA-106-2004 (J) C3.docx to be decided in the present suit.
22. The Appellant has admitted that his father-Noshir was head of the family and the business. During lifetime of father-Noshir, no action was taken and no objection was raised regarding possession of Respondent No. 1 and it is only after the mother and sisters filed suit against Appellant, that the present suit is filed as a counter-blast.
23. Perusal of the oral evidence of DW-2 - Ms. Aloo Kalyaniwala, who is admittedly a neighbour of the suit flat since beginning, having good relations with the family of the parties, has specifically stated in her examination-in-chief that she knows the Appellant and Respondent No. 1 since last 60 years and she is residing in the adjoining premises to suit flat. She has stated that sometime in 1968, Mr. Noshir moved to Chowpatty flat along with his family and during 1968 to 1976, her parents looked after the safety of the suit flat on the request of Appellant's mother - Mahaynoo. She has stated that sometime in February 1976, Respondent No. 2 (husband of Respondent No. 1) alongwith his parents started residing in the suit flat and carried out repairs and renovations. She has further stated that Respondent No. 1, since the date of her marriage, came to reside in the suit flat. She has also specifically stated that Appellant/Plaintiff has neither between 1968 to 1976, nor thereafter, ever occupied or used or stayed in any portion of suit flat and the same has always been in exclusive possession of Respondents since February 1976. Perusal of her cross-examination shows that she has stated that she recalls Appellant coming to suit flat but she has denied the suggestion that the Appellant/Plaintiff ever stayed in the suit flat.
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24. This unshaken oral evidence of an independent witness, who is a next door neighbor of the suit flat, having good relation with the family of parties, is an important piece of evidence, for preponderance of probabilities, while concluding about the conduct of family members pointing at arrangement in the family. This witness has clearly stated that the Respondents were in exclusive use and possession of suit flat since 1976 and there is no reason to disbelieve her.
25. It is sought to be argued on behalf of the Appellant that tenancy can not be willed away and a family arrangement about tenancy right can not be made without landlord's consent. It is also argued that tenancy is not an immovable property. In this regard, legally speaking, it is pertinent to note that the question before the Court is not whether tenancy can be given away under Will or what is the nature of tenancy. The question is what was the understanding among the family of Noshir and the answer to that has to be found from the evidence, on preponderance of probabilities.
26. Significantly, Noshir's Will has clear recital about giving tenancy right in Chowpatty Flat to Wife - Mahaynoo and Son - Jehangir but there is no mention about tenancy right of suit flat at Dadar. This conspicuous absence in June 1979, about tenancy right in suit flat, coupled with the fact that at that time suit flat was already in possession of Respondent No.1, her husband and his family, clearly points at an understanding among the family, as pleaded by Respondent No. 1.
27. In this regard, it is also important to note that there is no explanation in the plaint about the transfer of tenancy in the name of Sneha Chavan 22 ::: Uploaded on - 08/01/2026 ::: Downloaded on - 08/01/2026 20:30:15 ::: FA-106-2004 (J) C3.docx Appellant/Plaintiff in respect of suit flat. The Appellant has simply started his averments by saying that he is tenant in respect of the suit flat. The Appellant has not pleaded or proved that there was any consideration paid by him to his father or to the rest of the family, for purported transfer of tenancy. No case of gift by father has been pleaded or proved. On the contrary, in the written statement, Respondent No. 1 has taken a stand that the transfer of tenancy in Appellant's name was notional transfer and it was effected so that the family could retain both the tenancies viz. in suit flat at Dadar and the newly acquired tenancy in Chowpatty flat, which came to Noshir on demise of his mother. The case made out by Respondent No. 1 in the written statement is supported by her oral evidence. In paragraph 7 of the Plaintiff's affidavit of evidence, he has suggested that the reason for transfer of tenancy in his name about suit flat was because he intended to reside in the suit flat after his marriage. This case does not find place in plaint and as such, this case is beyond pleadings. Even otherwise, it is a matter of record that the Appellant got married in 1979 i.e. 11 years after tenancy transfer in his name in 1968. In the meanwhile, the Respondent No. 1 got married in 1976 and moved in the suit flat alongwith her husband and his family in the same year. If it was really the intention of the family that the Appellant was to reside in the suit flat after his marriage, the family or the Appellant would have raised the objection in 1976 itself or at least after Appellant's marriage in 1979. Nothing of the sort has happened.
28. There is nothing on record to indicate that the landlord of the suit flat ever filed any proceedings for eviction, despite the fact that the tenancy was transferred in the name of Appellant but it was actually occupied by Respondent No. 1 and her husband and his family. Long Sneha Chavan 23 ::: Uploaded on - 08/01/2026 ::: Downloaded on - 08/01/2026 20:30:15 ::: FA-106-2004 (J) C3.docx standing possession of a person who is not a tenant would have definitely been treated by landlord as unlawful. This inaction on the part of the landlord also supports the case of the Respondent No. 1 that it was a family arrangement, known to the landlord.
29. From the record it appears that in 1968, the Plaintiff was a bachelor of 26 years, who was working with his father and the father was in charge of the affairs. In the Plaint, the Appellant has averred that front-bedroom of suit flat was in his exclusive possession. The Appellant has deposed that after his marriage in 1979, he would stay in the suit flat along with his family on weekends in the front bedroom. Thus, his case is of intermittent stay between 1979 to 1986. However, in support of this claim, there is no material produced on record. In fact, the independent witness, DW-2 - Kalyaniwala who is a next door neighbour of suit flat has specifically stated that the Respondents were in exclusive use and occupation of the suit flat since 1968. The Appellant has admitted that he came to know about disconnection of his telephone line during pendency of the other suit, which indicates that he was not even aware of his own telephone connection in suit flat. The Respondent No. 1 has pleaded that she undertook repairs and renovation of the suit flat between February and May 1976. This version is supported by the DW-2 next door neighbour, who has stated that Respondent No. 2 has carried out repairs and renovation of the suit flat upon taking up suit flat as residence sometime in February 1976.
30. These facts emerging from the evidence clearly indicate that the family of the Appellant and Respondent No. 1 permitted Respondent No. 2-husband of Respondent No. 1 who is otherwise an outsider, to move into the suit flat for residence with his parents, permitted repairs Sneha Chavan 24 ::: Uploaded on - 08/01/2026 ::: Downloaded on - 08/01/2026 20:30:15 ::: FA-106-2004 (J) C3.docx of the suit flat at his instance. Respondent No. 1 has deposed that even marriage invitation card of Respondent No. 1 showed suit flat as address of parents of Respondent No. 2 for RSVP. There is no cross- examination on this aspect.
31. The case of the Appellant in pleading is that after marriage of Respondent No. 1, at the request of Respondent No. 1 and her husband, Appellant permitted them to reside in suit flat temporarily for a couple of months till they obtain accommodation in Malcolm Baug, Jogeswari. However, this case does not find support in the conduct of the family including the Appellant. If Respondent No. 1 was to reside in suit flat only temporarily till she gets accommodation in some other place, it is not explained why the Appellant or any of the family members including father-Noshir, who was alive at the time, did not take any action for 10 long years from 1976 to 1986 seeking eviction of Respondent No.1. The Appellant himself got married in 1979, even thereafter, why the Appellant waited till 1986 to seek possession from Respondent No.1, is not explained.
32. There is one more aspect which requires mention. The Appellant in his deposition in Suit No. 920 of 1986 stated that in 1981 his wife Dinaz left the Chowpatty flat and went to her mother's place at Pune due to disputes with mother Mahaynoo. If that be so, there is no explanation why at least in 1981, the Appellant did not make any claim for recovery of possession from Respondent No. 1.
33. The corroborated oral evidence of repairs and renovation of suit flat in 1976 prior to its occupation, in fact runs contrary to the case of temporary occupation till obtaining alternate accommodation. If a Sneha Chavan 25 ::: Uploaded on - 08/01/2026 ::: Downloaded on - 08/01/2026 20:30:15 ::: FA-106-2004 (J) C3.docx person has to occupy premises for a temporary period till he gets an alternate accommodation, it does not stand to reason that such person would spend on renovation of a temporary accommodation.
34. Another important aspect is that the Respondent No.1 in her affidavit of examination-in-chief has stated that the electricity meter of the suit flat, which stood in the name of father-Noshir, was transferred in her name in 1976 when she came to reside in the suit flat and this transfer was effected by father-Noshir himself. There is no cross- examination on this aspect, nor any contrary evidence is produced by the Appellant. The fact that electricity meter of suit flat was transferred in the name of Respondent No.1 (and not in Appellant's name despite tenancy being transferred) strongly indicates that the transfer of tenancy in the name of Appellant was only nominal and the real intention of the family was to give Respondent No.1 exclusive right/possession in the suit flat. This completely negates the Appellant's case of Respondent No. 1 being gratuitous licensee and the case that Respondent No.1 was permitted to reside on temporary basis till she got an accommodation in Malcolm Baug, Jogeswari. If this case was true, there was no need to transfer the electricity meter in the name of Respondent No.1. The Trial Court has considered this fact of transfer of electricity meter in Paragraph 25 of the impugned judgment.
35. According to the evidence led by Respondent No. 1, she gave up her share and retired from Precious Electric Company w.e.f. 01.04.1976. As per clause 8 of the Retirement deed dated 01.04.1976, Respondent No. 1 was entitled to receive her share of capital, assets with accumulated profits, goodwill within six months from the retirement. Appellant has admitted in his cross-examination that he is Sneha Chavan 26 ::: Uploaded on - 08/01/2026 ::: Downloaded on - 08/01/2026 20:30:15 ::: FA-106-2004 (J) C3.docx unable to show that Respondent No. 1 got anything on such retirement. This is considered by the Trial Court in Paragraph 33 of the impugned judgment. Respondent No. 1 in her affidavit of examination in chief asserted that she did not receive any share from the sale-proceeds from the family's Chinchpokli property in 1980. There is no cross- examination on this aspect, nor is there any contrary evidence produced on record.
36. The consent terms dated 08.04.1994 in Suit No. 447 of 1986 as well as Minutes of order dated 19.04.1991 in First Appeal No. 546 of 1990 (from Suit No. 920 of 1986) are on record. The Trial court has found that when the family estate (including Chowpatty Flat) was divided among the Appellant, his mother and other sister Khorshed during the settlements in 1991 and 1994, the Respondent No.1. did not receive any share under these two settlements and this fact also supports her case that the suit flat came to her share in the family arrangement. It appears from record that Respondent No. 1 under Noshir's Will, received a sum of Rs. 25,000/- and a bungalow in Pune with a sitting tenant. On the other hand, the Appellant, the other sister Khorshed and mother divided rest of the substantial estate of Noshir, including M/s. Precious Electric Company and its property, Electrical Cables firm, Manoj Enterprises, Matheran bungalow with sitting tenant, Chinchpokli property sale-proceeds, flat at Chowpatty, M/s. Mahim Ice and Cold Storage, shares and other investments.
37. In the light of all the above, Clause 5 of Noshir's last Will assumes importance. It reads as under :
"5. During my lifetime, I have given to my daughters Yasmin and Khorshed all that I had to give. I have also settled my Sneha Chavan 27 ::: Uploaded on - 08/01/2026 ::: Downloaded on - 08/01/2026 20:30:15 ::: FA-106-2004 (J) C3.docx daughter Yasmin in life. I intend to settle my daughter Khurshed too."
(emphasis supplied) This recital coupled with the fact that mention of tenancy right of the suit-flat is conspicuously absent in the Will, strongly indicates a family arrangement as pleaded by Respondent No. 1. Trial court has considered clause 5 of Noshir's Will.
38. All the aforesaid chronology and admissions clearly indicate that the Respondent No. 1 under an arrangement in the family was put in occupation of suit flat and in lieu thereof, she did not claim any share in the family property, be it Chowpatty flat or partnership firm on retirement or sale proceeds of Chinchpokli property.
39. Perusal of the plaint and amended prayers in Suit No. 920 of 86 also supports the case of Respondent No. 1 about family arrangement.
40. So far as the argument of the Appellant that the Respondent No. 1 has taken inconsistent stands in earlier Suit No. 920 of 86 and written statement in the present suit is concerned, I do not find any inconsistency. In both litigations, the stand of Respondent No.1, in principle, is that in the family property, either at the time of sale of Chinchpokli property or in the form of retirement from family owned Precious Electric Company, claim was not made in lieu of the promise that suit-flat is agreed to be allotted exclusively to her, under family arrangement.
41. On overall appreciation of evidence, in my view, there is nothing to indicate that the Appellant in his own right permitted Respondent Sneha Chavan 28 ::: Uploaded on - 08/01/2026 ::: Downloaded on - 08/01/2026 20:30:15 ::: FA-106-2004 (J) C3.docx No.1 to reside in the suit flat by creating gratuitous license. In fact, overall evidence shows that the Appellant himself did not have even partial control over the suit flat after it was occupied by Respondent No. 1 with her husband and his family after 1976. If the suit-flat was really given on gratuitous license as a stop-gap arrangement, the Appellant would not have waited for 10 years to seek eviction. On the other hand, the Respondent No. 1 has established that she was put in possession of the suit flat under family arrangement.
42. In view of the aforesaid facts and circumstances Point Nos. 2 and 3 are answered accordingly.
43. There is no merit in the appeal and the same is dismissed with no order as to costs.
(M. M. SATHAYE, J.) Sneha Chavan 29 ::: Uploaded on - 08/01/2026 ::: Downloaded on - 08/01/2026 20:30:15 :::