2001 Supreme(Bom) 768

IN THE HIGH COURT OF BOMBAY
A.B. Palkar, J.
Kalpana Gopalkrishna Singhania others .... Plaintiffs.
Versus
Naresh M. Kabra.... Defendant.
Suit No. 508 of 1971, decided on 18-8-2001.
Advocates appeared :
N.G. Thakkar with Sanjay Kothari i/b. Mulla Mulla, Carraige, Blund Coroe, for plaintiffs.
P.R. Diwan with C. Ardeshir i/b. Kanga Co., for defendant.

Headnote:Civil Procedure Code, 1908 - Section 9 - Flat rented to wife of defendant - Only for a temporary period - It carries under gratuitous licence - Determination of jurisdiction of civil Court - Defendant raising plea that he is tenant shall not oust jurisdiction of civil Court. - It is well settled law that in order to decide whether the Court has jurisdiction what is necessary is to see the allegation in plaint. The flat was allowed to be used by the daughter of Director and the defendant who is her husband, for a temporary period without payment or compensation meaning thereby that it was a gratuitous licence and defendant was residing there as her husband. On such pleadings the suit has to be filed in this Court, in view of valuation, merely because defendant was raising a plea that he was a tenant, the jurisdiction of Court does not cease, and in view of this it appears that the defendant did not pursue the issue.

       Transfer of Property Act, 1882 - Section 105 - Company buying a flat - One of its Director was made nominee as company could not be a member of co- operative society - Full amount was paid by company - Company records exhibited flat as property of company - Director allowed his married wife to use the flat for a short period - Due to strained relations wife left house - Son-in- law of Director remained in flat - Husband s plea that flat was leased out to him cannot be relied on - As the father-in-law who is director had no competency to lease it out - Husband was liable to evict. - It is obvious that defendant was to take shelter under them in order to see that somehow or the other he can protract handing over possession. Defendant having badly failed to prove that he was inducted as tenant in the premises. Plaintiff s case that at the most defendant is liable to hand over possession. The licence has been revoked by notice, prior to that licence herself given a letter wherein she stated that she has left possession of suit flat and by mutual agreement licence stands revoked.

       Transfer of Property Act, 1882 - Section 105 - Evidence Act, 1872, Section 101 - Proof of tenancy - Flat of a company - Occupant a son- in-law of named nominee of company - Claiming to be tenant of flat - Made certain payment to named owner - Held - Burden lies on defendant/ tenant to prove his tenancy - On facts defendant occupying flat an behalf of his wife - Wife herself a licensee without any payment - Documentary evidence contrary to defendant story - Defendant cannot be a tenant. - According to the defendant, he told them that whatever has happened, let it be forgotten and he was interested in the future welfare of the couple. Probably, in the second visit sometime in second week of January, 1969, his father-in-law asked him to occupy one of the family flats as Shankar Sagar Society or Shant Building and recommended flat at Shankar Sagar. It is his evidence that his father-in-law told him that these are family flats. This statement does not appear to be true because Mr. Singhania knew will that Shankar Sagar flat is of the company and he would not call it a family flat or the property of Singhania family. He was not interested in accepting anything as an obligation from his father-in-law and he told his father-in-law that he has already made arrangement for his residence with a friend. It is obvious that defendant could not reside in the house of his friend as guest (paying or non-paying) for a long time and he was thus in dire need of some accommodation. He admitted that his residence with Mr. Parekh was a temporary arrangement and he was looking after for

        better accommodation and wanted to secure accommodation on ownership basis wherever he was getting facility of installment. He had also seen a couple of properties. Thereafter he met his father-in-law by end of January and his father-in-law again made enquiry and asked him whether he had thought of joining production line and requested him to accept family flat as his daughter was not accustomed to living in small flat and considering the sincerity of the request, defendant agreed to accept the flat if his father-in-law could agree to a price and payment thereof in installments. He agreed to consider the offer, if price was quoted and father-in-law was willing to accept it in installment. Then the father-in-law insisted on accepting the flat, he told the father-in-law he would consider the offer on condition that the father-in-law should accept outgoings of the flat as rent which would save him from an embarrassing situation and there would be no objection from other family members. Thereafter in further visit in February, 1969, his father-in-law informed him that although it was not to his liking, he would accept outgoings of the flay by way of rent in order that defendant should have the necessary feeling of freedom and told him that defendant should pay Rs. 300/- per month to cover expenses of the flat and such amount should be paid by way of rent every month.

        Admittedly according to the defendant also Mr. Gopalkrishna Singhania was not present in the meeting but in further meeting his father-in-law took defendant to Mr. Gopalkrishna Singhania and apprised him of the arrangement to which Mr. Gopalkrishna Singhania (original plaintiff No. 1) agreed. According to him, even original plaintiff No. 1 told him that though the flat stood in his name, it was a family flat and he would not mind giving it on tenancy basis to defendant. This is obviously unreliable because Mr. Gopalkrishna Singhania would not tell him that it is a family flat and on the contrary would say the flat belongs to the company. Immediately thereafter there was pooja and defendant entered into possession of the flat. It is his evidence in examination-in-chief that even today on the board of the society, name of original plaintiff No. 1 is shown and his name plate is only on the door. Had it been really a case of the defendant having been allowed to occupy flat as tenant, his name would have appeared on the board of the society. However, since his wife and along with her the defendant were allowed to occupy the flat, name of original plaintiff No. 1 continued on the board, even after defendant occupied it. It has come in his cross-examination that after he was introduced to Amarpali by Sudha Singhania (her aunt) he was told by Sudha Singhania that there is tussle among the parents of Amarpali and the defendant should help her. He however, does not know what sort of help was accepted. This statement of the defendant is obviously untrue because there is absolutely no evidence on record to corroborate the version that there was any tussle between parents of Amarpali for which even according to her aunt Mrs. Sudha Singhania, Amarpali was in need of any help and that also from an outsider like defendant. Therefore his meetings with Amarpali increased which ultimately culminated into their marriage. However, defendant wants to feign ignorance by stating that he did not ask her any personal details and he also did ask as to who are her parents and did not know her parents. This being obviously unrealiable and cannot be believed even for a while. At the relevant time, defendant was working in Baccha Nursing Home. He was a resident doctor. He had just completed education. He was provided a small accommodation by the nursing home. As already stated after marriage he started residing along with Amarpali in a friend s residence at Walkeshwar defendant wants us to believe that even Amarpali did not tell him that her parents were against the marriage. He did not enquiry about the names of her parents and he came to know about their names only after the marriage. To say the least, these statements of the defendant clearly shows that he has no regard for truth and in order to make out a case of having occupied the flat on rent that too on the request of the father- in-law, he has made such statements. Even though he has stated that only after his father-in-law agreed to accept outgoings of the flat, he decided to shift to the flat, it is his further statement that he never enquired from anybody as to what were the outgoing of the flat and he was not aware of what were the outgoings, and he came to know of it when the amount was decided between him and his father-in-law. Any person would normally at lest after occupying the premises would enquire from the society or even would come to know from the persons residing there what are the exact outgoing of the flat and what are the municipal taxes. He wants us to believe that he then paid Rs. 300/- to his father-in-law regularly. Now admittedly documents on record do not show that any amount in respect of the flat was received by the company at any time and therefore to accept this version of the defendant would mean to accept that Mr. Kailaspath Singhania was Head of J.K.

        Group of Companies, who allowed his daughter to occupy a flat of the company by way of temporary arrangement, who was accepting Rs. 300/- from defendant and was not accounting for it with the company and was thus swallowing Rs. 300/- per month which defendant claims to have paid personally to him. By making such a statement, defendant has made himself extremely unreliable. This apart, there is documentary evidence on record to show that this is defendant s after thought story invented probably as he had no alternative in order to cling on the possession.

       Civil Procedure Code, 1908 - Section 9 - Transfer of Property Act, 1882, Section 105 - Jurisdiction of Court - Flat in Co-operative Society - Husband of daughter of original owner claiming to be tenant of flat - Challenging jurisdiction of Court - Held - jurisdiction to be decided with reference to allegations in plaint - Defendant claiming to be tenant not licensee of flat - Cannot challenge jurisdiction of Court. - In order to decide whether the Court has jurisdiction what is necessary is to see the allegations in the plaint. The flat was allowed to be used by the daughter of Singhanta and the defendant who is her husband for a tempo- rary period without any payment or compensation, meaning thereby that it was a gratuitous licence and defendant was residing there as her husband on such pleadings the suit has to be filed in this Court in view of the valuation. Merely because defendant has raised a plea that he is a tenant, the jurisdiction of the Court does not cease and in view of thus, it appears that the learned counsel for the defendant did not press this issue.