Bombay High Court
Premises vs Colin M Rebello Of Mumbai Indian ... on 15 October, 2013
Bench: N.M. Jamdar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
SUIT NO. 465 OF 2011
WITH
NOTICE OF MOTION NO. 787 OF 2011
IN
SUIT NO. 465 OF 2011
1 John Francis Anthony Gonsalves
of Mumbai Indian Christian, the
Executor named in the last Will of
John Frederick Gonsalves, No.1
residing at Annette Apartment 2,
35, St. Paul's Road, Bandra (W),
Mumbai - 400 050.
2 Charles Willibroad Gonsalves of
Mumbai Indian Christian,
the Executor named ikn the last
Will of John Frederick Gonsalves,
No.2 at Flat No. 701, Joanna
Premises, Co-op.Hsg.Society Ltd.,
Manuel Gonsalves Marg, Bandra (W)
Mumbai -400 050. ... Plaintiffs.
Vs.
Colin M Rebello of Mumbai Indian Christian
Residing at Flats 501 and 502, Joanna Premises
Co-operative Housing Society Ltd.,
10 Manuel Gonsalves Marg, Bandra (W),
Mumbai -400 050 ... Defendant
---
Mr.Joaquim Reis, Senior Advocate a/with S.F. Rego i/b N. J.
D'Monte, for the Plaintiffs.
Mr.Pradeep Sancheti, Senior Advocate a/w Mr. Mayur Khandeparkar
a/with Mr. Mitesh Naik i/b M/s. Dhru & Co., for the Defendant.
---
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CORAM : N. M. JAMDAR, J.
Jt. Reserved on : 21 AUGUST, 2013
Jt. Pronounced on : 15 OCTOBER,2013
JUDGMENT :
1 A question that arises in the Suit is whether the
defendant, who according to the plaintiff was allowed to use the
premises as a family member, can be termed as a gratuitous
licensee, so as to oust the jurisdiction of the civil court. The issue
of jurisdiction is to be tried as a preliminary issue.
2 The plaintiff No.1 and 2 are brothers. They are sons of
one John Frederick Gonsalves. Julia was the wife of John Frederick
Gonsalves and the mother of the plaintiff. The plaintiffs had a sister
named -Agnes Mary Conception Rebello. The defendant is the step-
son of Agnes.
3 John F. Gonsalves expired on 3 January 1983 leaving
his last will and testament dated 1 April 1979. The will inter-alia
dealt with two flats bearing no.501 and 502 in Joanna premises Co-
operative Housing Society, Bandra Mumbai. The deceased
bequeathed the two flats in the Will as under :
"I own and possess Flats No.501 and 502 in the Joanna
Premises Co-operative Housing Society Ltd., I hereby give
devise and bequeath my Flat No.502 to my said son
Charles Willibroad Gonsalves absolutely. So far as Flat
No.501 is concerned I direct that so long as my wife Julie
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is alive she shall have the right to reside in the said Flat.
After her death, my Executors to sell the said Flat No.501
and distribute net sale proceeds equally among my
children including my grandson Colin M Rebello who
takes the share of his mother Anne".
4 Plaintiff filed a petition No.519 of 1990 for grant of a
Probate in this Court. The citation was served upon the heirs of the
deceased. Agnes - the caveatrix, filed a Caveat objecting to the
grant of Probate. The petition was then converted into Suit No.10 of
1991. Agnes challenged the execution of the Will contending that
the Will was not the last Will of the deceased and that the deceased
died intestate, and his estate is divisible equally.
5 The trial Judge refused to issue a Probate by an Order
and Judgment dated 27 March 2001. An appeal was filed by the
Plaintiffs against the order dated 27 March 2001. The appeal was
allowed, directing issuance of Probate in favour of the executors as
per the Will of deceased John Frederick. The defendant thereafter
filed a Special Leave Petition in the Supreme Court, which was
dismissed on 6 May 2009. Probate of the last Will of deceased John
Frederick ws issued in favour of Plaintiffs on 16 November 2009.
The plaintiffs addressed a letter dated 24 August 2009 to the
Caveatrix requesting for a meeting on 6 September 2009. The
Caveatrix stated that suit filed by her bearing O.S No.1131 of 1998 is
pending. The said O.S No.1131 of 1998 was dismissed on 19
October 2010. The executors approached the defendant, grandson of
the deceased and requested him to cooperate in giving effect to the
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Will. In view of his non-cooperation, the plaintiffs have filed the
present Suit.
6 It is the case of the plaintiffs that after the death of John
Frederick, his wife Julia, plaintiffs' mother, allowed her grandson,
the defendant to live with her and thus, the defendant lived with his
grandmother as a member of her family. It is the case of the
plaintiffs that inspite of the dismissal of the Special Leave Petition
and grant of Probate in favour of plaintiffs, defendant has refused to
cooperate and therefore, there was no option but to file the present
suit.
7 The defendant has filed a Written Statement. In the
Written statement stand is taken that flat nos. 501 and 502 have
always been treated as single flat and on the plaintiffs own showing
the defendant is a co-owner of the suit flats. It is also submitted that
the defendant is a gratuitous licensee in respect of the suit flats and
has continued to be so since 1986. The defendant has contended that
he was put in possession on the basis of understanding that he would
continue to have life interest in the suit flats and would be entitled to
exclusively use the suit flats for himself. It is contended by the
defendant that the grandmother Julia permitted defendant to reside
in the flats and the suit flat was construed to be exclusive property of
Julia and after Julia expired on 21 December 1987 defendant
continued to reside in the suit flats. The defendant has also raised a
contention that in view of this fact the defendant is a gratuitous
licensee and this Court has no jurisdiction to try the suit.
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8 On 4 May 2012, following order was passed framing a
preliminary issue.
" The Defendants in his written statement
dated 21 December 2011 in para 3.2 has raised
the issue of jurisdiction.
2. By consent, following issue is framed :-
"Whether Defendant proves that this
Court has no jurisdiction to entertain,
try and dispose of this suit ?"
The learned Senior Counsel appearing for
the plaintiffs has no objection if this court tries
this issue under Section 9A of the Code of Civil
Procedure, 1908 as preliminary issue.
4.By consent of both the parties Mr. Chirag Shah is
appointed as a Commissioner for recording
evidence on the preliminary issue.
5.The Commissioner is directed to record evidence
of the Defendant and/or his witnesses and also
plaintiffs and/ or his witnesses and to submit
report on or before 31 July 2012. Fees of the
Commissioner shall be borne by the parties
equally. Notice of Motion is adjourned to 24
August 2012."
9 By order dated 8 March 2013 it was recorded that the
defendant did not file evidence and that in view of the conduct of the
defendant, an order deserved to be passed against the defendant
disallowing filing of any evidence. By way of indulgence time was
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granted upto 18 March 2013. The defendant has not filed any
evidence.
10 Attempts were made to amicably resolve the dispute.
The matter was adjourned from time to time to enable the parties to
arrive at a settlement. In spite of best efforts of the learned
counsels the matter could not be resolved. The matter is thus taken
up for hearing.
11 As far as the preliminary issue is concerned, Mr. Reis,
the learned senior counsel for the plaintiffs submitted that the
defendant has not chosen to lead any evidence. The learned counsel
submitted that perusal of the plaint clearly shows that the defendant
was permitted to use the premises only as a member of the family
and therefore no question of any gratuitous licensee. The learned
counsel submitted that in the proceedings for grant of Probate the
mother of the defendant Caveatrix had opposed the grant of Probate
and over-ruling the objections Probate was granted. The learned
counsel submitted that in the Notice of Motion No.2332 of 1995 in
Suit No.10 of 1991 and T & I J Petition No.519 of 1990 the
defendant and the Caveatrix had filed affidavits in respect of the
claims of the defendant and Caveatrix and no such stand as regards
gratuitous licensee was taken. The learned counsel submitted that
the perusal of the plaint shows that as far as the flats are concerned as
per the Will one of the flats will be sold and sale proceeds will be
distributed. Thus, for one of the flats, as per the defendants, the
defendant will have to be termed as a co-owner and therefore, there
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is no question of any claim of gratuitous licensee. The learned
counsel submitted that if it is the case of the defendant that it is the
part of arrangement that the defendant was permitted to stay in the
premises then it will require leading of evidence which the defendant
had chosen not to do. The learned counsel has relied upon the
decision of the learned Single Judge of this Court in the case of Ajit
Baburao Sawant and others v. General Manager, BEST
Undertaking of the Municipal Corporation of Greater Bombay
and others - 1985 Mh.L.J. 527 and decision of the Division bench in
the case of Municipal Corporation of Greater Bombay Vs
N.A.Qureshi reported in BCR-1986-2-315, in furtherance of his
proposition that the defendant who was treated as a member of
family has no independent right and cannot claim to have license in
his favour.
12 As far as the Notice of Motion is concerned, the learned
counsel for the plaintiffs submitted that the defendant was only
allowed to use the premises as a member of the family and after the
grant of Probate in favour of the plaintiffs instead of cooperating
with the executors has refused to hand over the premises. The
learned counsel submitted that the occupation of the defendant was
only along with his grandmother and he cannot possibly claim any
independent right. The learned counsel submitted that the Will was
executed in the year 1979. The Will had only created a life interest
in favour of wife Julia of deceased and the parties are litigating since
the year 1980. The learned counsel submitted that defendant has
continued to hold on to the premises without any semblance of right,
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and the plaintiffs who have acquired a right under the Will have
been kept out of the premises. The learned counsel submits that the
defendant is in possession of two flats having four bedrooms in a
prime locality. Both flats admeasure around 2000 sq.ft and without
paying any amount whatsoever the defendant has continued to use
the premises. In the circumstances relief prayed for in the Notice of
Motion deserves to be granted. The learned counsel for the plaintiffs
has placed reliance on the decision of the Apex Court in the case of
Maria Margarida Sequeira Fernandes and others - (2012) 5
Supreme Court Cases 370.
13 Mr. Sancheti, learned senior counsel for the defendant
on the preliminary issue submitted that on the bare perusal of the
plaint itself shows that this Court does not have jurisdiction. The
learned counsel submitted that the grandmother Julia had permitted
the defendant to reside in the flats and after the death of Julia, the
defendant has continued residing in the said flats. The learned
counsel submitted that the Will of the year 1979 was sought to be
probated in the year 1990 and when the grandmother Julia was in
rightful possession of the premises she created a life interest in
favour of the defendant. The learned counsel submitted that for a
gratuitous licensee a consideration in lieu of license is no longer a
requirement of law and a family member can also be considered as
gratuitous licensee. The learned counsel relied on the decision of a
Division bench in the case of Ramesh Dwarkadas Mehra V
Indravati Dwarkadas Mehra - AIR 2001 Bombay 470 and decision
of the Full bench in the case of Prabhudas Damodar Kotecha &
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anr. Vs. Manharbala Jeram Damodar - 2007 (5) Bom.C.R.1 and
the decision of the learned Apex Court in Civil Appeal Nos. 6726-
6727 of 2013 dated 13th August, 2013 : Prabhudas Damodar
Kotecha & Ors. Vs. Manhabala Jeram Damodar & Anr.. The
learned counsel also relied upon decision of the Apex Court in the
case of State of Punjab and others Vs Brigadier Sukhjit Singh -
(1993) 3 Supreme Court Cases 459, to contend that payment of
license fee is not essential for subsistence of license. The learned
counsel submitted that thus, from the bare perusal of the plaint itself
case of gratuitous licensee is made out and therefore, this Court has
no jurisdiction as the Small Causes Court will have jurisdiction to
decide the suits in respect of gratuitous licensee.
14 As far as the Notice of Motion is concerned, the learned
counsel for the defendant submitted that flat No.501 and 502 are one
flat. They appear in the Society record as one flat and one share
certificate and one nomination has been issued in respect of both the
flats. The learned counsel submitted that the defendant was
permitted to reside in the flat by the grandmother Julia on an express
understanding that life interest will be created in favour of the
defendant. The learned counsel submitted that the defendant is in
possession since the year 1986 and even after the death of
grandmother Julia in the year 1987 he was permitted to continue by
the plaintiffs. The learned counsel submitted that by Notice of
Motion final relief of possession is sought which is not to be granted
at an interlocutory stage. The learned counsel submitted that the
Probate proceedings have no bearing as regard to the claim of
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gratuitous licensee raised by the defendant. The learned counsel
submitted that this issue will have to be considered at the time of
trial. The learned counsel submitted that by Notice of Motion the
plaintiffs were seeking to take possession of the premises without
going through the full trial only on the basis of Probate being granted
without giving an opportunity to the defendant to substantiate its case
as regards the gratuitous licensee. The learned counsel has relied
upon decision of the Apex Court in the case of Metro Marins and
another V. Bonus Watch Co.Pvt. Ltd. and others. - AIR 2005
Supreme Court 1444, to contend that interim order directing handing
over possession would amount to decreeing suit even before trial.
15 By virtue of Section 9-A of the Civil Procedure Code
(as applicable in Maharashtra), a preliminary issue will have to be
taken up before the notice of motion is finally heard. Section 9-A
reads as under :
"9-A : Where at the hearing of application relating to
interim relief in a suit, objection to jurisdiction is taken,
such issue to be decided by the Court as a preliminary
issue. ---(1) Notwithstanding anything contained in this
Code or any other law for the time being in force, if, at
the hearing of any application for granting or setting
aside an order granting any interim relief, whether by
way of stay, injunction, appointment of a receiver or
otherwise, made in any suit, an objection to the
jurisdiction of the Court to entertain such a suit is
taken by any of the parties to the suit, the Court shall
proceed to determine at the hearing of such
application the issue as to the jurisdiction as a
preliminary issue before granting or setting aside the
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order granting the interim relief. Any such application
shall be heard and disposed of by the Court as
expeditiously as possible and shall not in any case be
adjourned to the hearing of the suit.
(2) Notwithstanding anything contained in
sub-section (1), at the hearing of any such application,
the Court may grant such interim relief as it may
consider necessary, pending determination by it of the
preliminary issue as to the jurisdiction."
16 The preliminary issue framed in the Suit is as under :
"Whether Defendant proves that this Court has
no jurisdiction to entertain, try and dispose of
this suit ?
17 The defendant in his written statement had raised an
issue of jurisdiction. The plaintiffs had given their no objection for
the court to try this issue as a preliminary issue under section 9A of
the Code of Civil Procedure 1908. By consent of the parties, a
commissioner for recording evidence on preliminary issue was
appointed. On 8 March 2013 the suit was placed along with the
notice of motion before the court and the court noted that the
defendant has not filed his evidence. By way of last opportunity,
time was granted till 18 March 2013 to the defendant to file his
evidence as well as documents before the Commissioner. The
defendant has failed to do so. The learned counsel for the defendant
submitted that it is true that the defendant failed to file the evidence
and therefore, the order disallowing the evidence at this stage has
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come into operation. The learned counsel submitted that, however,
the defendant has relied on the averments made in plaint itself to
show that the court has no jurisdiction. Furthermore the contention
of the learned counsel for the plaintiffs that the defendant did not
raise the issue of gratuitous licensee in the probate proceedings, has
not merit. In the probate proceedings the issue was whether the
Will was valid, there was no question of the nature of occupation in
the premises being decided. In any case it is on the averments in the
plaint that will be material for determining the issue of jurisdiction,
without reference to the defence.
18 The facts that emerge from the plaint are as under : The
plaintiffs are the sons of John Frederick Gonsalves. They are
executors of the Will of John Frederick. By virtue of the said
Will, having been probated, the proceedings taken out by the
defendant, challenging the grant of probate, have been concluded
against the defendant. Julia i. e. the plaintiffs' mother allowed her
daughter's step - son i.e. the defendant to use the premises as a family
member. The grand-son used the premises with his grand -mother
as member of her family. Even after her death, the defendant
continued to use the flat as a member of her family. During the
testamentary proceedings, the defendant continued his occupation
in the flat as member of the family. At no time, payment was
sought nor did he make payment for his continued stay in the flat.
Even after disposal of the appeal, the defendant has continued to
use the said flat. The defendant has come to use the said flat
through kindness of his grand- mother. The defendant was treated
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as member of her family. The grand -mother had only life interest
in the suit flats. Under the Will one flat had to be sold and sale
proceeds to be distributed.
19 These are the basic averments. Thus the gist of the
plaint is that the mother of the plaintiffs, who had only life interest
in the property, permitted the defendant to use the premises with her
out of kindness and that the defendant has continued to use it even
after her death without there been any rights of whatsoever in his
favour and without paying any amount.
20 Though, according to the plaintiff one flat is to be sold
and sale proceeds are to be distributed, what is essentially sought
by the defendant is the possession of the flats. The defendant has
been permitted to use the flats as a family member. As on today, the
defendant is using the premises. Though relief of injunction is
sought, in essence what is sought is a relief of possession. There
was a permission to use the premises or in general parlance, a
licence. There was no consideration involved. The question,
therefore, arises is whether the use of the defendant can be termed
as a 'gratuitous licensee'. The cumulative reading of the plaint
shows that the defendant is permitted to use the premises out of
kindness. Therefore, it is the theory of a license and not of a co-
owner. If that be so whether the defendant should be excluded
from the definition of a 'gratuitous licensee' for the purpose of
determining the jurisdiction of the civil court to order possession of
the premises.
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21 The suit for possession from a licencee has to be filed
in the Small Causes Court as per the provision of Section 41 of the
Bombay Presidency Small Causes Act. Section 41 reads as under
"41. (1) Notwithstanding anything contained
elsewhere in this Act [** **] but subject to the
provisions of sub-section (2), the Court of Small
Causes shall have jurisdiction to entertain and try all
suits and proceedings between a licensor and
licensee, or a landlord and tenant, relating to the
recovery of possession of any immovable property
situated in Greater Bombay, or relating to the
recovery of the licence fee or charges or rent
therefor, irrespective of the value of the subject
matter of such suits or proceedings.
(2) Nothing contained in sub-section (1) shall apply
to suits or proceedings for the recovery of possession
of any immovable property, or of licence fee or
charges or rent thereof, to which the provisions of
the Bombay Rents, Hotel and Lodging House Rates
Control Act, 1947, the Bombay Government Premises
(Eviction) Act, 1955, the Bombay Municipal
Corporation Act [the Maharashtra Housing and Area
Development Act, 1976 or any other law for the time
being in force, apply]"
22 Before this issue raised in the suit is addressed to, the
decision of this court and the apex court as regards gratuitous
licensee and jurisdiction of the civil court need to be considered. In
those judgments legislative policy is enunciated, which will have
direct bearing on the question at hand.
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23 On the issue of gratuitous licensee and the jurisdiction
of the civil court, there have been series of decisions of this court.
There were several decisions of the single Judges of this court.
Some of them were in conflict with each other. This culminated in a
reference to the division bench, thereafter, in a reference to a full
bench of this court and finally an appeal to the Apex Court.
24 First, the decision of the Division bench of this court in
reference in the case of Ramesh Dwarkadas Mehra (supra) needs
to be analyzed. A notice of motion taken out in the suit along with
the Letters Patent Appeals, were directed to be placed before the
division bench by an order of the Hon'ble Chief Justice, in exercise
of the powers under Rule 28 of the High Court of Judicature
Original Side Rules, 1980, as common question of law arose in all
of them. The division bench formulated the following question :
"whether a suit by a licensor against a gratuitous
licensee is tenable before the Presidency Small Cause
Court under S. 41 of the Presidency Small Cause Courts
Act, 1882 or should such a Suit be filed before the Civil
Court ?".
25 The division bench took review of the legislative
history of the Presidency Small Cause Courts Act, 1882 (for the
sake of brevity hereinafter called as "the Small Cause Courts Act"),
the Bombay Rent Act and and various decisions of the learned
single Judges of this court. Particular relevant for the current
controversy was the decision of the learned single Judge of this
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court in the case of Vishwanath Sawant vs. Gaudabhai
Kakabhai, reported in 1990 Mah. LJ 1145. In that case learned
single Judge held that when a permission is accorded to occupy the
premises not as of right but as of grace or by way of incidental or
ancillary reasons such as a family arrangement, then it would not
amount to a 'licence' under section 52 of the Indian Easements Act.
The Division Bench, however, did not approve of this decision, as
the division bench found that these observations were directly
contrary to the decision of the Apex Court in the case of State of
Punjab vs. Brig Sukhjit Singh, reported in 1993 (3) SCC 459.
The learned counsel for the defendant has also placed reliance on
the decision of the Apex Court in the case of Sukhjit Singh (supra).
The division bench observed as under :
"22. In Vishwanath Sawant v. Gandabhai Kikabhai,
1990 Mah. LJ 1145, a learned single Judge of this Court,
analyzing the nature of a licence, took the view that
licence could be of two kinds, namely, a bare licence
which is a matter of personal privilege and a licence
coupled with a grant or interest. While a bare licence
without anything more is always revocable at the will
and pleasure of the licensor and is not assignable, a
licence coupled with grant or interest cannot in general
be revoked so as to defeat the grant to which it is
incidental. The learned single Judge referred to the
definition of the expression "licence" in S.52 of the India
Easements Act and then observed : "In my judgment, it
is only when a licence is created as of right that it can be
covered under the provisions of S.52. When a permission
is afforded not as of right but as of grace or where a
permission is afforded, it is incidental of ancillary to
say a family arrangement, an arrangement of
employment or the like, the same would not amount to a
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licence under S. 52. The transaction has to partake the
nature of a commercial transaction for valuable
consideration before it can partake the nature of a right
envisaged by S. 52 of the Indian Easements Act." We
notice that this observation is directly contrary to the
view of the Supreme Court in Brig. Sukhjit Singh's case
(supra). In Brig. Sukhjit Singh (supra), the Supreme
Court in categorical terms has held that payment of
licence fees is not an essential attribute for the
subsistence of a licence."
(emphasis supplied)
Thus the observation that there cannot be licence by matter of grace
or family arrangement was specifically disapproved. The learned
single Judge in the case of Vishwanath Sawant (supra) also held
that the Small Cause Court will have no jurisdiction in case of a
gratuitous licensee. The learned single Judge held that a person
who was inducted in the premises initially as a 'licensee' and whose
'licence' has been terminated, will have to be treated as a mere
trespasser. The Division Bench did not approve these observations
as well. The Division Bench found that they were contrary to the
decision of the another Division Bench of this court in the case of
Nagin Mansukhal Dagli vs. Haribhai Manibhai Patel, reported
in AIR 1980 Bom 123.
26 The Division Bench also took a note of an another
decision of the learned single Judge of this Court in the case of
Conrad Dias vs. Joseph Dias, reported in AIR 1995 Bom. 210.
In this case, the learned single Judge took a view that a person
residing with parents cannot claim a legal character much less the
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character of the licensee but would be residing simplicitor as a
member of the family and nothing more, nothing less. The Division
Bench doubted this proposition also and held that the 'licence' to
reside with the family may not be supported without any material
consideration, but arising out of the love and affection, however, it
would be far from saying that such licence would not be fall within
the meaning of section 52 of the Easements Act. The Division
Bench reiterated that section 52 does not ruled out a licence being
granted for a consideration other than material. The division bench
observed as under :ig
"25. Conrad Dias v. Joseph Dias, AIR 1995
Bombay 210, follows the decision in Vishwanath
(supra) and takes the view that a person residing
with parents in the house cannot claim any legal
character, much less a character of 'licensee' , as
defined in S.52 of the Indian Easements Act, but
would be residing simpliciter as a member of the
family and nothing more and nothing less. We have
our doubts on this proposition also. A member of a
family undoubtedly has a licence to reside with the
family, albeit that the licence may not be supported
by any material consideration, but arising out of
familial relationship, love or affection. This is a far
cry from saying that such a licence would not be one
within the meaning of S.52 of the Easement Act. We
have already pointed out that S. 52 in turn does not
rule out a licence being granted for consideration
other than material."
(emphasis supplied)
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The view taken by the learned single Judge that a family member
can never be a licencee has been clearly doubted by the Division
Bench.
27 The Division Bench thereafter, proceeded to consider
the effect of the amendments carried out in the relevant legislation
in the year 1963 by the Maharashtra Act XLI of 1963. By this
amendment, section 42A was added to the Presidency of Small
Cause Courts Act, 1882. Section 41 of the Small Causes Courts Act
was amended by Maharashtra Amendment Act XIX of 1976.
Thereafter, section 15A was added to the Bombay Rent Act, giving
protection to 'lincesee' who is occupying specific premises as on
the cut off date i. e. 1 February 1973.
28 After noticing these amendments and implications
thereof, the division bench observed in paragraphs 39 and 55 as
under :
39. There is another consideration on which we are
inclined to take the view that the "licensee" contemplated
under Section 41 is not a bare gratuitous licensee, but
must be licensee whose license is supported by material
consideration. The principle Noscitur a sociis demands
that words must take colour from words with which they
are associated. Reading of Section 41 of the Presidency
Small Cause Courts Act. 1882 shows that it is equally
applicable to proceedings between "a licensor and a
licensee" or "a landlord and a tenant" relating to the
recovery of possession of any immovable property
situated in Greater Bombay or relating to the recovery of
"license fee or charge or rent therefore". We are of the
view, that clubbing of "licensor and licensee" with
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"landlord and tenant", and the clubbing of causes
relating to recovery of possession with recovery of
license fees or charge or rent, is not merely accidental.
There is close association and this is a case where the
principle Noscitur a sociis would clearly be applicable-
We are, therefore, of the view that the expressions
"licensor and licensee" used in Section 41 derive their
colour from the expression "landlord and tenant". The
latter is a relationship based on material consideration;
the same concept must, therefore, colour and permeate
the expression "licensor and licensee". Further, the use
of the expression "license fee, charge or rent" in close
juxtaposition is also not without reason, and must colour
the expression "licensor and licensee" used in the
Section. The observations of Supreme Court in The State
of Bombay and others v. The Hospital Mazdoor Sabha
and others, (vide paragraph 9) and in M. K.
Ranganathan and another v. Govt. of Madras and others,
(vide paragraphs 21 and 22) and in M/s. Rohit Pulp and
Paper Mills Ltd. v. Collector of Central Excise, Baroda,
(vide paragraphs 12) support this canon of interpretation
of the statute.
55. Thus, considered from all points of view, we are of
the view that Section 41 of the Presidency Small Cause
Courts Act, 1882 invests jurisdiction in the Small Causes
Court to entertain proceedings between licensor and
licensee only where the license is not gratuitous, i.e. it is
for a consideration other than material.
The division bench thus concluded that the expressions 'licensor'
and 'licensee' used under section 41 of the Small Cause Courts Act
will have the same meaning as in section 5(4A) of the Bombay Rent
Act and found that both the Acts are pari materia and therefore,
expression 'licence' not having been defined under the provisions of
the Small Cause Courts Act must derive its meaning from the
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expression 'licensee' as used in Section 5(4A) of the Bombay Rent
Act. The Division Bench held that the expression 'licensor' or
'licensee' used in section 41 derive their colour from the expression
'landlord' and 'tenant' and since this relationship is based on material
consideration, the same may be extended to 'licensor' and 'licensee'.
The division bench placed heavy reliance on the marginal notes of
the section. The Division Bench ultimately held that section 41 of
the Presidency of Small Causes Courts excludes jurisdiction of the
Small Causes Court to entertain proceedings between the 'licensor'
and 'licensee' when the 'licensee' is gratuitous.
29 After the decision of the division bench in case of
Ramesh Dwarkadas (supra) was rendered, a learned single Judge
of this court found that there was a divergence in the views of two
Division Benches. Conflict was noticed between the decision of
Ramesh Dwarkadas (supra) and the decision of another division
bench in the case of Bhagirathi Lingawade vs. Laxmi Silk Mills
in Letters Patent Appeal No. 129 of 1993, on the issue of
jurisdiction of the Small Cause Court as regards a gratuitous
licence. In the case of Ramesh Dwarkadas (supra), the Division
Bench came to the conclusion that the expression 'licensee' as used
in section 5(4A), does not cover a 'gratuitous licensee' and the suit
will have to be filed in civil court. In the case of Bhagirathi
Lingawade's case (supra), the Division Bench took a view that the
provisions of the Bombay Rent Act are not relevant for interpreting
the scope and ambit of section 41 of the Presidency Small Causes
Court Act. In view of conflicting interpretation made by the
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Division Benches, the learned single Judge made a reference to a
larger Bench.
30 Accordingly, the Hon'ble Chief Justice constituted a
Full Bench to decide the issue, which rendered its decision in the
case of Prabhudas Damodar Kotecha & Anr. Vs. Manharbala
Jerman Damodar, reported in 2007 (5) Bom. CR-1. The Full
Bench formulated the following questions :
i) Whether the expression "Licensee" used in section
41(1) in Chapter VII of PSCC Act, not having been
defined therein, would derive its meaning from the
expression "licensee" as used in sub-section (4-A) of
section 5 of the Rent Act and/ or whether the expression
"licensee" used in section 41(1) of PSCC Act is a
term of wider import so as to mean and include a
"gratuitous licensee" also ?
ii) Whether a suit by a "licensor" against a "gratuitous
licensee" is tenable before the Presidency Small
Cause Court under section 41 of PSCC Act?.
31 The Full Bench considered the relevant provisions.
The Full Bench analyzed and language and scheme of section 41 of
the Act. The Full Bench disapproved the reliance placed by the
division bench on the marginal notes to construe the section. The
Full Bench came to the conclusion that marginal notes to the section
cannot be referred to for the purpose of construing the meaning of
section when the language of the section is plain and simple. The
Full Bench held that the function of a marginal note is only as a
brief indication of the contents of the section and if the language
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employed in the section is clear, a contrary interpretation need not be
placed upon by relying upon the marginal note. The Full Bench held
that sub-section (1) of section 41 of the Small Cause Courts Act is
clear. The disjunctive 'or' used in sub-section (1) indicates that
Small Cause Court will have jurisdiction to entertain all suits and
proceedings between 'licensee' and 'licensor'. The Full Bench has
held that the legislation has not used any conjunctive in sub section
(1) of section 41, purposefully making its intention clear. The Full
Bench categorically held that the provisions of section 41(1) does
not specifically exclude 'gratuitous licensee'.
32 As far as the expressions 'licensee' and 'licensor' is
concerned, as regards any consideration in respect thereof, it will be
fruitful to reproduce the observations of the Full Bench in this
regard in paragraphs 43 and 43 as under :
43. As opposed to this, the expression "licence", as
defined under section 52 of the Indian Easement Act,
provides that where one person grants to another, or to
a definite number of other persons, a right to do, or
continue to do, in or upon the immovable property of the
grantor, something which would, in the absence of such
right, be unlawful, and such right does not amount to
easement or an interest in the property, the right is
called a license. Section 52 does not require any
consideration, material or non material, to be an
element of the definition of licence, nor does it require
that the right under the licence must arise by way of
contract or as a result of a mutual promise. Thus,
licence as defined in section 52 of the Indian Easement
Act can be a unilateral grant and unsupported by any
consideration. The Supreme Court in State of Punjab Vs.
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Brig Sukhjit Singh 1993(3) SCC 459 has observed that,
"payment of licence fee is not an essential attribute for
subsistence of licence".
44. Let us see as to how the expressions "licence" and
"licensee" are understood, used and spoken in common
parlance. It is often said that a word, apart from having
the meaning as defined under different statutes, has
ordinary or popular meaning and that a word of
everyday usage it must be construed in its popular sense,
meaning that sense which people conversant with the
subject matter with which the statute is dealing would
attribute to it. A "licence" is a power or authority to do
some act, which, without such authority, could not
lawfully be done. In the context of an immovable
property a "licence" is an authority to do an act which
would otherwise be a trespass. It passes no interest, and
does not amount to a demise, nor does it give the
licensee an exclusive right to use the property. (See
Puran Singh Sahani Vs Sundari Bhagwandas Kriplani
(1991) 2 SCC 180). Barron's Law Dictionary has given
the meaning of word "licensee" to mean "the one to
whom a licence has been granted; in property, one
whose presence on the premises is not invited but
tolerated. Thus, a licensee is a person who is neither a
customer, nor a servant, nor a trespasser, and does not
stand in any contractual relation with the owner of the
premises, and who is permitted expressly or implidly to
go thereon usually for his own interest, convenience, or
gratification". Stroud's Judicial Dictionary of Words
and Phrases, Sixth Edition, Vol.2, provides the meaning
of word "licensee" to mean "a licensee is a person who
has permission to do an act which without such
permission would be unlawful. (See Vaughan C.J., in
Thomas Vs Sewell, Vaugh at page 330, at page 351,
quoted by Romour, J, in Frank Warr & Co. Vs. London
County Council (1940) 1 K.B. 713)." In Black's Law
Dictionary, Seventh Edition, the word "licence" means
"a revocable permission to commit some act that would
otherwise be unlawful" and the word "licensee" means
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"one to whom a licence is granted or one who has
permission to enter or use another's premises, but only
for one's own purposes and not for the occupier's
benefit." Thus, it is seen that even in popular sense the
word "licence" is not understood to mean it should be on
payment of licence fee for subsistence of licence. It also
covers a "gratuitous licensee", that is, a person who is
permitted, although not invited, to enter another's
property and who provides no consideration in
exchange for such permission.
(emphasis supplied)
The Full Bench also observed that the primary object of
the legislature was to avoid multiplicity of proceedings in
different courts and consequent waste of public time and money.
The Full Bench noted that if a defendant raises a question of his
status and on the basis thereof an issue of jurisdiction is raised,
then the landlord will have to get the issue of jurisdiction decided
first and then to proceed on merits before the court which has
jurisdiction. The Full Bench accordingly give a wider meaning to
the term 'licensee'. The Full Bench observed in paragraph 47 as
under :
47. In our opinion, the legislature in its wisdom has
neither defined the word "licensee" in any of the
definitions of the Act nor has clarified it. The primary
object of the Act is to avoid multiplicity of proceedings
in different Courts and consequent waste of public time
and money and unnecessary delay, hardship and
expense to the suitors, and to have uniformity of
procedure. It was considered expedient to make the
required supplementary provisions in PSCC Act so that
all suits and proceedings between a landlord and a
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tenant or a licensor and a licensee for recovery of
possession of premises or for recovery of rent or licence
fee, irrespective of the value of the subject-matter,
should go to and be disposed of by the Small Cause
Court, either under PSCC Act or the Rent Control Act.
In these circumstances, therefore, the word "licensee",
in our opinion, obviously has been used by the
legislature in general sense of the term as defined in the
Indian Easement Act, which is the statute that governs
all the licence of immovable properties. In other words,
the word "licensee" being a term of well known legal
significance having well ascertained incidents, the
legislature did not think it necessary to define it
separately. ig (emphasis supplied)
34 Accordingly the Full Bench concluded that the
legislation had intended to bring 'all suits' between landlord and
tenant and licensor and licensee whether under the Rent Act or
under the Presidency Small Causes Court Act under one roof. The
Full Bench concluded that any other interpretation would not fit in
the legislative scheme and looking at the phraseology employed
by the legislature, there is no reason as to why 'gratuitous licensee'
is also not covered within the meaning of the expression 'licensee'
in sub-section (1) of Section 41 of the PSCC Act. The reference
was accordingly answered by the Full Bench. Thus all the suits
even where the licence is stated to be gratuitous will have to be filed
in the Small Causes Court.
35 The decision of the Full Bench was challenged before
the Apex court. Before the Apex Court it was argued by the
appellants therein that the term 'licensee' contemplated under
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section 41 of the Presidency of Small Causes Court Act excludes
the 'gratuitous licensee'. The Apex Court in its decision rendered
on 13th August, 2013 in Civil Appeal No. 6726-6727 of 2013 in the
case of Prabhudas Damodar Kotecha & Ors. vs. Manhabala
Jeram Damodar & Anr., agreed with the reasoning of the Full
Bench.
36 The Apex Court held that the definition of 'licensee'
under the Act will include a gratuitous licensee. The Apex Court
emphasised that all suits relating to licencee should be under one
umbrella to avoid multiplicity of proceedings, and held that a liberal
construction will have to be given to the meaning of expressions
'licensor and licensee' under section 41 (1) of the Small Causes
Court Act. The Apex court emphasised the object of the legislation
that all the suits and proceedings between the landlord and tenant
and licensee and licensor should go to and dispose of by the Small
Cause Court. The Apex Court in paragraphs 50 to 53 observed as
under :
"50 We are of the considered view that the High
Court has correctly noticed that the clubbing of the
expression "licensor and licensee" with "landlord and
tenant" in Section 41(1) of the PSCC Act and clubbing
of causes relating to recovery of licence fee is only with
a view to bring all suits between the "landlord and
tenant" and the "licensor and licensee" under one
umberalla to avoid unnecessary delay, expenses and
hardship. The act of the legislature was to bring all
suits between "landlord and tenant" and "licensor and
licensee" whether under the Rent Act or under the
PSCC Act under one roof. We find it difficult to accept
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the proposition that the legislature after having
conferred exclusive jurisdiction in one Court in all the
suits between licensee and licensor should have
carved out any exception to keep gratuitous licensee
alone outside its jurisdiction. The various amendments
made to Rent Act as well as the Objects and Reasons
of the Maharashtra Act XIX of 1976 would clearly
indicate that the intention of the legislature was to
avoid unnecessary delay, expense and hardship to the
suitor or else they have to move from the one court to
the other not only on the question of jurisdiction but
also getting reliefs.
51 We are of the view that in such a situation the
court also should give a liberal construction and
attempt should be to achieve the purpose and object
of the legislature and not to frustrate it. In such
circumstances, we are of the considered opinion that
the expression licensee employed in Section 41 is used
in general sense of term as defined in Section 52 of the
Indian Easement Act.
52 We have elaborately discussed the various legal
principles and indicated that the expression 'licensee'
in Section 41(1) of the PSCC Act would take a
gratuitous licensee as well. The reason for such an
interpretation has been elaborately discussed in the
earlier part of the judgment. Looking from all angles
in our view the expression 'licensee' used in the PSCC
Act does not derive its meaning from the expression
'licensee' as used in Sub-section (4A) of Section 5 of the
Rent Act and that the expression "licensee" used in
Section 41(1) is a term of wider import intended to
bring in a gratuitous licensee as well.
53 We are, therefore, in complete agreement with
the reasoning of the Full Bench of the High Court. In
such circumstances, the appeals lack merits and are,
therefore, dismissed. There is no order as to costs."
(emphasis supplied)
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37 In the backdrop of the decisions of the Full Bench in
Prabhudas Damodar (supra) and the Apex Court in Prabhudas
Damodar (supra), the question whether a family member need to
be excluded from the definition of gratuitous licencee for the
purpose of determining the jurisdiction of the Civil Court, needs to
be considered.
38 However, it needs to be clarified that in the case of
family members there could be various fact situations. There could
be cases where sons and / or daughters who are residing in the
premises since birth, are sought to be evicted by the parents. Wife,
daughter -in -laws, son-in-laws are sought to be evicted. There could
be cases where a distant relative is given permission to come and
reside in the premises and so on. In the present case, I am not
considering an absolute proposition whether all family members in
all situations can be called as a gratuitous licensee or not. I am
considering the question on the fact situation of the present case.
Facts of the present case are that the defendant, step son of the
daughter, was allowed to use the flats by his grandmother with her,
who only had a life interest in the flats.
39 The learned counsel for the plaintiff relied upon the
decision of the learned single Judge of this court in the case of Ajit
Baburao Sawant vs. General Manager, Best Undertaking,
reported in 1985 Mh. L.J. 527 and of the division bench in
Municipal Corporation of Greater Bombay vs. N.A. Qureshi,
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reported in BCR-1986-2-315 to contend that a family member,
living in the premises or residing as a family member will have no
independent right or interest. In this decision a question arose as to
whether, before ordering eviction of an allottee from the municipal
premises under section 105-B of the Bombay Municipal Corporation
Act, it was incumbent on the Municipal Corporation to issue notice
in writing to all the persons residing with the allottee. The learned
single Judge considered the provisions of Section 105-B, which
provide for summary proceedings, and held that the members of the
family need not be given a notice as they reside with the allottee
and not in their own right.
40 There is no comparison with this fact situation and the
fact situation at hand. In Ajit Baburao's case (supra), the court
was only considering the necessity of a notice and came to the
conclusion that it is enough if the notice is given to the occupant.
The court was considering the aspect of the family members having
no independent rights only in the context of their entitlement to a
separate notice. The decision of the division bench in the case of
Municipal Corporation of Greater Bombay (supra) relied upon by
the learned counsel for the defendant confirmed the view taken by
the learned single Judge. Before the Division Bench again section
105-B was in question and the Division Bench confirmed the
decision of the learned single Judge. Both the decisions are of no
assistance to the plaintiff, for considering whether the defendant can
be excluded from the definition of gratuitous licensee.
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41 In the case of Vishwanath Sawant (supra) the learned
single Judge had taken a view that a family member cannot be
considered as 'gratuitous licensee' The Division Bench in the case
of Ramesh Dwarkadas (supra) specifically disapproved the view
of the learned single Judge. The Apex Court in the case of Sukhjit
Singh (supra) has held that exchange consideration is not a criteria
for licence. The Division Bench also doubted the view taken by the
learned single Judge in the case of Conrad Dias, where learned
Judge held that a family member will not be a gratuitous licencee.
The division benchig did not approve the distinction between a
family member and a stranger regarding the gratuitous licensee.
The division bench noted that the member of the family undoubtedly
has a licence to reside, but it cannot be said that it would not be
one under section 52 of the Easement Act, as Section 52 does not
rule out consideration other than material. Though thereafter, the
division bench went on to construe the language of section 41 as
amended, to hold that 'gratuitous licensee' is not included in the
definition of licensee and that decision was reversed by the Full
Bench, the observation of the Division Bench that a family member
cannot be excluded from the definition of the gratuitous licencee,
was not disturbed.
42 The Full Bench while construing the expression
'licence' gave it a wide meaning, keeping in mind the object of the
legislature. The legislative policy behind the enactment is to avoid
multiplicity of proceedings and to invest one court with jurisdiction
to try all cases regarding licensees and tenants. To borrow the
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phrase from the decision of the Apex court that is the 'One
Umbrella Policy'.
43 Thus the object of the legislation is to give wide
meaning to the word 'licensee' occurring in Section 41 of Small
Causes Court Act. The term 'licensee' includes 'gratuitous
licensee' and consideration is not the criteria for bringing a person
within ambit of 'gratuitous licensee'. For the purpose of the Act,
the word 'licensee' has to be understood in general sense. That is to
say a person who is permitted to enter upon a property who may
not provide consideration for such permission. Such person is
neither a customer, servant or trespasser. The word 'licence' is used
in common parlance as such.
44 This being the broad definition of 'licence', it is
difficult to exclude cases such as the present case. In fact such
exclusion will be contrary to the legislative policy. The defendant
was permitted to use the premises and he continued to do so. No
consideration was exchanged. Defendant is neither a servant,
customer or a trespasser. The distinction sought to be made that
even though defendant otherwise fits the criterion of a gratuitous
licencee, he cannot be held so as he was permitted as a member
of family, has no legal basis. The only distinguishing factor in
respect of the defendant is that he was related to the licensor.
Once a consideration is not a criterion for treating a person as
gratuitous licencee, then such occupation can be for variety of
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reasons such as love and affection, member of the family, being
some of them.
45 The need to avoid multiplicity of proceedings and that
the litigation should come to an end at the earliest is more true in
case of a dispute between family members. When a family member
continues to reside in the premises in spite of the objection of
others such dispute needs to be resolved at the earliest. Such family
strife over the premises affect all, not only in respect of the
property rights but emotionally as well, which may lead several
undesirable consequences. Such family dis-harmony is not in the
interest of the society. The purpose of giving a broader meaning to
the term 'license' and to invest the Small Cause Court with exclusive
jurisdiction so as to avoid multiplicity of proceedings applies with
more force in case of family members. It is not possible to carve out
the case of the defendant out of the definition of gratuitous
licensee. If a defendant who is permitted to enter and use the
premises fits the criterion to be called gratuitous licensee, then
excluding jurisdiction of the Small Causes Court only on the ground
that he was a member of the family, will defeat the legislative policy
of investing wide jurisdiction to the Small Causes court in the matter
of all licencees. The anxiety of the legislature is to avoid
multiplicity of proceedings, does not warrant such micro
classification, on the contrary applies with more force in cases such
as the present one.
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46 In the result, I am of the opinion that in the present
case where the defendant, who was permitted to use the premises
will have to be considered as a 'gratuitous licensee' on the basis of
the averments made in the plaint itself. Once this conclusion is
reached, the Small Cause Court being the only court to try all such
suits against gratuitous licensee, the civil court will not have
jurisdiction. The preliminary issue which is framed will have to be
answered in favour of the defendant. Accordingly, it is held that
the defendant has proved that this court has no jurisdiction to try
and dispose of the suit. In view of the decision on the preliminary
issue, the notice of motion filed by the Plaintiffs cannot be taken up.
Notice of Motion is accordingly rejected, as not maintainable.
47 The plaint is accordingly returned to be presented to
the proper court.
(N.M.JAMDAR, J.)
.....
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