Tukaram Gangaram Awhad vs The Municipal Corpn. Of Gr. Bombay ...
2016 Latest Caselaw 346 Bom

                                                                                           FA700_2001.doc

Vidya Amin                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  CIVIL APPELLATE JURISDICTION




                                                                                                 
                                          FIRST APPEAL NO. 700 OF 2001

             Tukaram Gangaram Awhad                                         ...   Appellant




                                                                         
                   Vs.
             The Municipal Corporation of Greater Mumbai
             & Ors.                                                         ...    Respondent




                                                                        
             Mrs. V.V. Thorat, Advocate for the appellant.
             Dr. Prakash K. Deshmukh, Advocate for respondent nos. 2 and 3.
             Mrs. M.S. Bhoir, Advocate for respondent no. 1.

                                                      CORAM: MRS.MRIDULA BHATKAR, J.

DATE: 4th March, 2016.

ORAL JUDGMENT:

This Appeal is directed against the judgment and order dated 9 th

June, 2001 in L.C. Suit No. 1343 of 1994 and counter claim no. 2 of 2000.

By the said impugned judgment and order, the learned trial Judge

dismissed the suit of the plaintiff and allowed the counter claim of

defendant nos. 3 and 4, i.e., respondent nos. 2 and 3 and it is decreed in

terms of prayer clause a, b and c of the counter claim with costs. The

appellant/original plaintiff who has filed the suit for declaration and

injunction in respect of room no. 24, 2 nd floor, Barne compound, Sane

Guruji Marg, Tardeo, Mumbai. It is a suit property. The parties are

addressed by their original status for the sake of convenience.

2. It is the case of the appellant/original plaintiff that BMC is the owner

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of the suit room. Nathu Raghunath, uncle of the appellant and father of

respondent nos. 2 and 3 was the tenant of the suit room prior to 1970. The

plaintiff is the resident of village Nathu Shingote, Taluka, Sinnar, District

Nashik came to Mumbai in the year 1971-72 and started residing with his

uncle. His uncle had two daughters, i.e., defendant nos. 2 and

3/respondents. However, the uncle did not have son and at the relevant

time, he was working as a porter at Bombay Central. The uncle stopped

working thereafter and requested the authority to transfer his buckle no. of

porter in the name of the plaintiff. Accordingly, the authority issued

certificate of transfer of porter number in favour of the plaintiff. Thus, the

plaintiff was the one who was looking after his uncle, paternal aunt and

cousins/defendant nos. 2 and 3. The plaintiff started residing there with

his family, i.e., wife and daughters. The electricity meter was also

transferred in the name of Tukaram during the life time of Nathu and

Nathu executed the will on 12th January, 1991 in favour of Tukaram, as he

is treating him like his son. So the tenancy right of the suit room was

bequeathed by Nathu by will in favour of Tukaram. Nathu died after one

year, i.e., on 4th March, 1992. Thereafter the sisters/defendants and

mother gave letter addressed to BMC giving NOC on 9 th July, 1992 in

favour of Tukaram in respect of suit room. It is the case of the plaintiff

that immediately thereafter on 7th August, 1992 respondents/sisters sent

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letter to BMC for transfer of tenancy in their name. Therefore, the plaintiff

gave notice to BMC under section 527 of the BMC Act and thereafter filed

L.C. Suit No. 1343 of 1994 for declaration that he be declared as tenant of

the suit room and that BMC/defendant no. 1 be directed to transfer the

said room in favour of the plaintiff and so also other defendants are to be

restrained from disturbing the possession of the plaintiff in the suit room.

After filing of the suit, notices were issued to the defendants. BMC and

defendant nos. 2 and 3 appeared in the suit. Contesting defendants filed

their written statement on 14th November, 1994 and denied all the

averments made and contentions raised in the plaint. They challenged the

will dated 12th January, 1991 and also denied the fact that at any time the

defendants have executed NOC in favour of the plaintiff and submitted that

the said will is forged document so also the NOC given by the defendant

was obtained by misrepresentation by the plaintiff. The plaintiff had

promised the sisters and mother that their right to stay in the suit room will

remain alive till their life time, however, for transferring the said room in

the name of plaintiff, he agreed to pay Rs.50,000/- each to two sisters and

mother. The plaintiff did not keep the promise and thereafter they gave

notice to the Corporation for transferring the said room in the name of

their mother. The issues were settled by the trial Court. The plaintiff

entered the box and lead oral as well as documentary evidence. He

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produced the will (Exhibit D), electricity bills of the suit room which stands

in the name of the plaintiff, ration card disclosing the name of the plaintiff

and his family members and address of the suit room. He also produced

NOC given by the sisters in his favour on 9 th July, 1992. He also examined

one witness PW-2 Bhaskar Ghuge who deposed that certificate of porter

was issued in favour of the plaintiff and also another witness PW-3 Govind

Shangle to prove the will. Defendant no. 1/Shakubai entered the box and

gave evidence in favour of Shakubai. The defendant entered the box and

gave evidence. After considering the evidence, the suit was dismissed.

3. The point of determination is -

(i) Whether the appellant can prove that the bequeath of tenancy

right of the room is true and genuine?

(ii) Whether the judgment passed by the trial Court is legal and

correct or not?

4. The learned counsel Mrs. Thorat submitted that the learned trial

Judge has failed to appreciate the evidence tendered by the appellant and

the facts and circumstances which are produced before the Court. She

relied on the evidence of the appellant, who has stated that he started

residing with his uncle. His uncle has no son. His uncle offered him a

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buckle of porter as he treated the appellant like his own son. The appellant

has taken care of his uncle throughout his life. She further submitted that

the uncle before his death has executed a will-cum-affidavit and transferred

the tenancy of the room in the favour of appellant. She submitted that the

respondents are daughters of Late Nathu/original tenant. They were

married twice or thrice and they left their husband and started residing

with their father. She further submitted that Bagubai, wife of Nathu, did

not take care of Nathu and appellant, being nephew, was the only person to

look after his uncle in his old age. The learned counsel submitted that the

learned Judge should have appreciated the will executed by Nathu. The

witness who was present at the time of execution of the will is also

examined. The will was executed in the presence of Judicial Magistrate ,

therefore, more authentic. She submitted that the tenancy rights is

heritable and it is a property of the tenant and therefore that tenancy can

be disposed of by bequeath and therefore by will, Nathu bequeathed the

tenancy rights in favour of the plaintiff. In support of her submissions, she

relied on following decisions:

(i) Gian Devi Anand vs. Jeevan Kumar & Ors., reported in 1985 AIR

(SC) 796.

(ii) Vasant Pratap Pandit: Banoo Pirojsha Jungawalla vs. Anant Trimbak

Sabnis: Ardeshir K. Irani, reported in 1994 (3) SCC 481.

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5. In reply, the learned counsel for the Corporation has submitted that

the suit room is owned by the Corporation. Nathu was the original tenant

of the Corporation. The tenancy receipts were issued in his name. After

his death, the present appellant and respondent nos. 2 and 3 along with

their mother Bagubai claim tenancy of the said room. She relied on the

order passed by the Deputy Municipal Commissioner, who had conducted

enquiry pursuant to the directions of the Court given pending Regular Civil

Suit. She submitted that Deputy Municipal Commissioner has referred a

circular issued by the Corporation in respect of case of transfer of tenancy.

She pointed that it can be transferred to the legal heirs of the tenant based

on their classification mentioned in the Circular. Bhagubai, being a widow,

and respondent nos. 2 and 3, being daughters, the tenancy was rightly

transferred to Bhagubai and respondent nos. 2 and 3. However, the

appellant was allowed to reside in the room till the disposal of the suit.

6. The learned counsel Mr. Deshmukh appointed from the legal aid

panel for respondent nos. 2 and 3 has submitted that the alleged will is the

only document on the basis of which the appellant claims his right.

However, the said will is not probated. Hence, the appellant cannot claim

any right on the basis of unprobated will. In support of his submissions, he

relied on the decision laid down in the case of Gaiv Dinshaw Irani & Ors.

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vs. Tehmtan Irani & Ors., reported in (2014) 8 SCC 294. He submitted

that the judgment passed by the learned trial Court is correct is to be

upheld.

7. In Gian Devi Anand (supra), the Hon'ble Supreme Court held that a

contractual tenant has an estate or property in the subject matter of the

tenancy and heritability is an incident of the tenancy. It cannot be

assumed.

8. Nathu was a contractual tenant having contract with BMC. So, his

tenancy right was heritable. A main question before this Court is that that

the will which is placed before the court as an evidence of legal transfer of

the room can be accepted or not. As per the Indian Succession Act, if a

male hindu dies intestate, then the estate is devolved. As per Schedule I

under the Indian Succession Act of 1925, property goes to his widow and

his children. The property can be distributed on the basis of degree of

relationship with the deceased and in the absence of first degree relatives,

the property will go to other relatives which may include brother, sister,

nephew, niece etc. A person has every right to dispose of his property by

bequeath by executing a will. In the present case, the case of the plaintiff

stands completely on the will dated 12 th January, 1991. In the absence of

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will, the tenancy would have straightway transferred to Nathu's

daughters/respondents. In order to prove this will, the plaintiff has

stepped himself in the box. The plaintiff deposed that in the year 1992 he

accompanied his uncle and his uncle prepared document in his favour

about transfer of tenancy. He went along with his uncle to Dhobhitalao

Court and his uncle put thumb impression and presented the document

marked Exhibit B, i.e., will. In order to prove this document, he examined

one witness, namely, Govind Sangle who was one of the signatories as

witness on the will. He is also son-in-law of the plaintiff/Tukaram. He

deposed that witness DW-3 Govind Sangle deposed that along with Nathu,

plaintiff went to Dhobitalao Court and before the Judge a document was

signed by Nathu about transfer of the premises. Sangle told that he signed

the document as a witness. He identified the second signature of Arjun.

The thumb impression is of Nathu. He also said that the said document

was read over to him by the Judge and one advocate was present at that

time. In the cross-examination of Sangle, he has stated that in May 1991

he got married to daughter of the plaintiff. He also deposed that plaintiff

and Nathu came to his shop on 12 th January, 1991 and along with them he

came to the Court. He gave very important admission that " I had not met

Nathu prior to 12th January, 1991". Thus, it shows that Sangle was not

aware that the person who accompanied with his father-in-law was Nathu

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or not.

9. Another witness Bhaskar Karbhari Ghuge was examined, who

deposed that he was Secretary of Bombay Central Station Licence Portners

Co-op. Society and plaintiff is a member. Thus, he was examined on the

point of genuineness of certificate of porter issued in favour of the plaintiff.

The fact of transfer of certificate of porter is not disputed by the

respondent.

10. Section 68 of the Evidence Act is a relevant section which states

about the proof of execution of documents which is required by law to be

attested. A will is required to be attested and therefore, if such attested

document is produced before the Court, it cannot be used as evidence until

atleast one attesting witness has been called and deposed about its

execution. Thus, as the case of the plaintiff is entirely based on this will, he

is required to prove the execution of the will and therefore, he examined

Sangle as a witness of the said document and thus has proved the

execution of the will. However, the said execution is challenged by the

respondents, i.e., daughters of Nathu. They stated that this will is bogus

and their father have never executed any such will, as their father was not

staying in Mumbai at the relevant time, i.e., in January 1991, but he was

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staying at native place. Thus, not only the contents but the execution of

the will is a contentious issue. The will is not probated. Sangle, being a

son-in-law of the plaintiff, undoubtedly is an interested witness. Under

section 68 of the Evidence Act, only execution is proved. The genuineness

of the document or the contents of the document are always open for

scrutiny to arrive at conclusion that the will is genuine. Whether really a

person who executed the will was Nathu or not is disputed and though he

was Nathu, the contents in the will is a matter of challenge. The Court

must look into the contents of the will once it is admitted in the evidence.

A document which is admitted in the evidence, not necessarily it is believed

or accepted by the Court without scrutiny. The Court will admit the

document but has to assess the truthfulness of the document on the basis

of prevailing circumstances, evidence adduced by the parties and the facts

of the case. This will is sworn in the form of affidavit. It is captioned as

affidavit-cum-will. Nathu died on 4 th March, 1994, i.e., after a year of

executing the will. Sangle is an interested witness and he has given

admission that he has never seen Nathu earlier, therefore, his evidence

though cannot be given any credit, assuming the thumb impression put on

the will is of Nathu, whether the will is genuine or not is a question before

the Court. In this will, at the time of so called execution of the will, Nathu

was having his wife and two daughters, i.e., respondents, however, he has

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mentioned that "I have no issue from the marriage, hence I am giving my

self-acquired property including the above mentioned room no. 24, Bane

Compound, second floor, Arthur Road to my nephew Tukaram Tawde, aged

40 years and nobody else. He stayed with him for last 30 years along with

his family members. He further sealed the said bequeath by saying that my

other relatives or heirs have no claim on above property including the

room. He further mentioned that he has no objection if the said property is

transferred after his death in the name of his nephew, as he has no son

from the wedlock. Other relatives have no objection or right in the said

property". It is surprising that in this will Nathu neither mentioned the

name of his wife or of his two daughters. In fact he made a false statement

that he did not have any issue from the marriage though subsequently he

has mentioned that he has no son but he did not mention the name of his

wife or two daughters. It is difficult to accept that a person who is staying

with the wife and two daughters will give away not only his room but his

all self-acquired property to his nephew. No evidence is brought on record

that Nathu was having quarrel with his wife either or she had left him and

did not look after him. In the will also there is no mention that he had any

animus against his wife and therefore, he did not want to give anything to

his wife. The learned counsel Mrs. Thorat submitted that his two

daughters, who are respondent nos. 2 and 3, got married twice or thrice,

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however, they left their husbands and started residing with their father. On

the contrary, this shows that Nathu was kind enough to accommodate his

daughters, who are deserted or who themselves had left the house of their

respective husbands. It is not the situation that father disowned his

daughters because he was angry with him as they left their husbands and

returned to him. Thus, it is a case where father has allowed them to stay

with him. It shows that he has concern for his two daughters. This will is

in English. Nathu has put his thumb impression. The respondents are

successful in creating doubt in the mind by putting different circumstances,

then the burden is on the appellant who relied on will. This will is not

probated. The burden is entirely on the plaintiff to prove that the will is

genuine. In totality of the facts and circumstances, it is difficult to believe

that the testator really wanted to dispose of self acquired property and

room by this will in favour of his nephew is unbelieved. Mrs. Thorat has

submitted that these two respondents filed joint affidavit on 9 th July, 1992

that they are legal heirs of Nathu. Tukaram is their cousin residing with

them in the premises since last 30 years and Tukaram has applied to the

Corporation for transfer of tenancy in his name, however, they claimed that

they are legal heirs of deceased Nathu and declared that they have no

objection for tenancy in the name of Tukaram. Thus, affidavit shows the

thumb impression of three women, i.e., Baghubai, Sakhubai and

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Anandibai. Thereafter, immediately after 5 to 6 days, these ladies moved

an application to the Corporation claiming that they want the room to be

transferred in their name and they withdraw their no objection and object

to transfer the tenancy in the name of Tukaram. She submitted that once

they filed the joint affidavit, they should not have withdrawn their consent

to this transfer. The joint affidavit is another circumstance which created

not only doubt but really falsifies a claim of the appellant that the will

executed by Nathu is genuine. In this affidavit there is no mention of will.

If at all the will was relied as transfer of tenancy rights, it would have been

disclosed in the affidavit. This affidavit was executed on 9 th July, 1992. In

reply of this execution of affidavit and withdrawal of no-objection in the

evidence of Sakubai, she has deposed that in the year 1992 they executed

affidavit because a promise was given by Tukaram. They are not educated

and they had no information about the transfer in favour of the plaintiff.

In the year 1992, after the demise of Nathu, the respondents were told by

the appellant/Tukaram that all three of them would be paid Rs.50,000/-

each for transfer of the premises and thumb impression was given,

however, neither they received Rs.50,000/- and nor it was deposited in

their accounts. As soon as the respondents came to know about it, they

filed an application for transfer in their name in the office of Corporation,

which is marked as Exhibit 23. The affidavit which were obtained by the

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respondents were under the promise of payment of Rs.50,000/- each.

11. I have considered the submissions of Mrs. Thorat that Exhibit 20 the

affidavit cannot be read in evidence, that no original is produced and no

permission is taken to lead secondary evidence. This document is

produced by Sakhubai, i.e., it has come from the proper custody. A

photocopy was produced, so is a secondary evidence. A permission might

not have been asked for leading secondary evidence, however, her oral

evidence explaining that why all the three women gave thumb impression

on the affidavit of transfer is sufficient to accept the reason for giving

thumb impression. Thus, this cumulative circumstances disclose that the

contents of the will are doubtful and appellant has failed to prove that it is

genuine. Once the document is considered as not genuine and is doubtful,

then entire case of the plaintiff based on the sole document collapses. The

learned counsel for the Corporation relied on the letter of Deputy

Municipal Commissioner which was passed on 7 th March 1998 pursuant to

the order passed by the trial Court on 16th October, 1997 in B.C.C. No.

1343 of 1994 while hearing Chamber Summons and Deputy Municipal

Commissioner has considered the rules of corporation as to whom the

tenancy can be transferred after the death of the tenant. In this case, after

the death of Nathu, entitlement of wife was first and therefore, the tenancy

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was transferred in the name of Baghubai. Under such circumstances, I

maintain the order of the trial Court. Appeal is dismissed.

12. The learned counsel for the appellant prays to stay the operation of

this order as the appellant wants to challenge this order before the

Supreme Court. In view of this, the operation of this order is stayed for 8

weeks from 30th March, 2016 to enable the appellant to file Appeal.

                                    ig                        (MRIDULA BHATKAR, J.)
                                  
        
     






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