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2010 (8) Supreme 725
SUPREME COURT OF INDIA
P. Sathasivam and Dr. B.S. Chauhan, JJ.
Balkrishna S. Dalwale (Dead) by Lrs. — Appellants
versus
Vithabai C. Rathod (Dead) by Lrs. & Ors. — Respondents
Civil Appeal No 3372 of 2003.
Decided on : 18-10-2010
Facts of the Case :
Original owners herein in the instant casepermitted appellant their deceasedsister’s sonto occupy two rooms free of rent in suit premises out of love and affection. Subsequently, respondents, the original owners filed a suit against appellant to vacate said premises. During the pendency of suit, a document was prepared purported to be a partition suit,wherein the appellant had been given accommodation which he was occupying and some additional openspace for lavatory and bathroom. However, the documentwasd ulysigned by respondents-plaintiffs and their sons also appeared as marginal witnesses. Appellant also signed said document as a witness. It was an unstamped and unregistered document. Appellant filed said document by amending \written statement and claiming the title of that part of the property on the basis of the same. Trial Court dismissed said eviction suit.Appeal filed thereagainst by respondents was Allowed by Appellate Court. Second Appeal thereagainst was Dismissed.
2. Presentappeal hasbeenpreferred against judgment and decree passed in Second Appeal by the High Court by which the Second Appeal filed by the appellants was dismissed.
Findings of the Court :
Admittedly, said document didnot create any legal title in favour ofappellant. Appellant had signed said document as a witness and not as a party.Said document had neither been exhibited nor was admissible in evidence.This document could not be termed as contract as the appellant was not a party to it. Even,otherwise, terms of a contract can be read and enforced only in consonance with law.Thus, it would not confer any right or interest in appellants’ favour. At the most, it could be held that out of love and affectionrespondents/original plaintiffs had permitted the appellant/ original defendant to occupy the premises. However, as none of the original parties wasalive, said love and affection did not subsist. Appellants being the descendants of original defendant could not take the benefit of such magnanimity shown by original plaintiffs to original defendant. No cogent reason to interfere with the impugned judgment and order of High Court.Appeal was dismissed.
Result : Appeal dismissed.
JUDGMENT
Dr. B.S. Chauhan, J. —
1. This appeal hasbeenpreferred against the judgment and decree dated 18.10.2001 passed in Second Appeal No. 191 of 1991 by the High Court of Bombay by which the Second Appeal filed by the appellants against the judgment and decree of the First Appellate Court dated 31.12.1990 passed in Civil Appeal No.828 of 1987 by which it reversed the judgment and decree of the Civil Court dated 18.2.1987 passed in Civil Suit No.558 of 1975 filed by the respondents, has been dismissed.
2. Facts and circumstances giving rise to this appeal are that one Smt. Ratnabai Shankar Dalwale had inherited the suit property from her father. She had four daughters, two of them namely, Champabai and Sitabai died long back i.e. prior to the date of receiving the property by Smt. Ratnabai Shankar Dalwale. The original owner, Ratnabai Shankar Dalwale died on 2.5.1965 and her husband Shankar Dalwale had died in 1952. Thus, at the time of her death, Smt. Ratnabai Shankar Dalwale had two daughters, namely Vithabai and Krishnabai, who acquired the suit properties by Will dated 24.6.1963, executed by Smt. Ratnabai Shankar Dalwale. After the death of Smt. Ratnabai Shankar Dalwale, her two daughters Vithabai and Krishnabai (respondents/plaintiffs) (hereinafter called ‘respondents’) become absolute owners of the properties. The Will stood proved upto the High Court and attained finality.The said Vithabai and Krishnabai, sisters permitted their deceasedsister Champabai’s sonBalkrishna (appellant/defendant) (hereinafter called the ‘appellant’) to occupy two rooms free of rent out of love and affection. Subsequently, respondents, the original owners sent a notice to said Balkrishna-appellant to vacate the said premises on 21.2.1975. However, Balkrishna-appellant vide reply dated 10.3.1975 resisted his eviction claiming ownership of the House No.621, Ganesh Peth, Pune. Respondents, the original owners of the suit property, namely Smt. Vithabai and Smt. Krishnabai filed Civil Suit No.558 of 1975 before the Civil Court, Pune in 1975 for eviction of the said Balkrishna-appellant.
3. During the pendency of the suit, a document was prepared on 27.10.1981 purported to be a partition suit, wherein the appellant-Balkrishna had been given the accommodation which he was occupying and some additional openspace for lavatory and bathroom. However, the documentwasdulysigned by the respondents-plaintiffs and their sons also appeared as marginal witnesses. Appellant-Balkrishna also signed the said document as a witness. It was an unstamped and unregistered document. The appellant- Balkrishna filed the said document dated 27.10.1981 by amending the written statement on 1.4.1986 and claiming the title of that part of the property on the basis of the same.
4. The trial court vide its judgment and decree dated 18.2.1987 dismissed the suit relying very heavily on the document dated 27.10.1981, which made it clear that appellant was not the licensee and therefore, question of revoking the licence and further asking the court to evict him could not arise.
5. Being aggrieved, respondents filed Civil Appeal No.828 of 1987 which has been allowed by the First Appellate Court vide judgment and decreedated 31.12.1990.The First Appellate Court held that the purported compromise-cum-partitiondeed was unregistered, unstamped and not signed by the appellantas a party but merely as a witness. Thus, the said document dated 27.10.1981 did not create any right and title in favour of the appellant nor the said document was admissible in evidence.
Being aggrieved, the appellant-Balkrishnafiled Second Appeal No.191 of 1991 which has been dismissed vide judgment and order dated 18.10.2001. Hence, this appeal.
6. Shri Makarand D. Adkar, learned counsel appearing for the appellant, has fairly conceded that the appellant- Balkrishna, is not entitled to any title in the suit property for the reason that he could not claim any partition as he was not the co-sharer, nor the said do
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