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2013 Supreme(Bom) 2110
High Court of Judicature at Bombay
N.M. JAMDAR, J.
John Francis Anthony Gonsalves of Mumbai Indian Christian & Another
Versus
Colin M. Rebello of Mumbai Indian Christian
Suit No. 465 of 2011 with Notice of Motion No. 787 of 2011
Decided On : 15-10-2013
For the Plaintiffs:Joaquim Reis, Senior Advocate a/with S.F. Rego i/b N. J. D’Monte, Advocates.
For the Defendant:Pradeep Sancheti, Senior Advocate a/w Mayur Khandeparkar a/with Mitesh Naik i/b M/s. Dhru & Co., Advocates.
Headnote:Presidency Small Cause Courts Act, 1882 - Section 41 - Civil Procedure Code, 1908, Section 9-A - Jurisdiction of Court. - Where plaintiff permitted defendant to use suit premises as family member without any consideration for therefore dispute regarding suit premises will come within exclusive jurisdiction of Small Causes Court. - In the present case the object of the Presidency Small Causes Courts Act, 1882, 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‘.
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 reasons such as love and affection, member of the family, being some of them.
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.
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.
Presidency Small Cause Courts Act, 1882 - Section 41 - Easements Act, 1882, Section 52 - Term "licensee". - Term "licensee’ used in Section 41 of Act, connotes a person who is permitted to enter upon a property who may not provide consideration for such permission
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 stepson 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 Cooperative 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 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 was 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 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 r
