Balkrishna S.Dalwale (Dead) By Lrs vs Vithabai C. Rathod(Dead)By Lrs. & Ors

Balkrishna S. Dalwale (Dead) by Lrs. ...Appellants

Versus

Vithabai C. Rathod (Dead) by Lrs. & Ors. ...Respondents

JUDGMENT

Dr. B.S. CHAUHAN, J.

1. This appeal has been preferred 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

2 said Vithabai and Krishnabai, sisters permitted their

deceased sister Champabai's son Balkrishna

(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 open space for lavatory and bathroom.

However, the document was duly signed by the

3 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 decree dated

31.12.1990. The First Appellate Court held that the

purported compromise-cum-partition deed was

unregistered, unstamped and not signed by the appellant

4 as 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-Balkrishna filed

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 document dated

27.10.1981 could be held to be a gift deed as it remained

unstamped and unregistered. His only contention has

been that if during the pendency of the suit the original

respondents have, out of love and affection allowed the

appellant permissible possession of suit property, their

conduct estopped them from seeking his eviction.

5 Therefore, the judgments of the High Court as well as the

First Appellate Court have to be reversed and the suit is

liable to the dismissed.

7. On the contrary, Shri A.S. Bhasme, learned counsel

appearing for the respondents, has vehemently opposed

the appeal contending that the appellant had been in

possession of the property for more than 35 years

without making any payment. The building is in a

dilapidated condition and requires repair and

maintenance. The appellant has never paid any amount

either as rent or for maintenance. The family members of

the respondents/original plaintiffs have grown up and

they need the accommodation for them. The

accommodation might have been given out of love and

affection to the original defendant-Balkrishna. However,

he is no more alive and the present appellants cannot

claim any benefit of such permissible use of the suit

property for an indefinite period. The appeal is liable to

be dismissed.

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8. We have considered the rival submissions made by

learned counsel for the parties and perused the record.

9. Before the High Court, appellant raised the sole

question regarding the nature of the document dated

27.10.1981 and all other issues had been given up.

Admittedly, the said document does not create any legal

title in favour of the appellant. Appellant had signed the

said document as a witness and not as a party. The said

document had neither been exhibited nor was admissible

in evidence. This document cannot 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. (See: Union Territory,

Chandigarh Administration & Ors. v. Managing

Society, Goswami, GDSDC, (1996) 7 SCC 665; and V.

Karnal Durai v. District Collector, Tuticorin & Anr.,

(1999) 1 SCC 475). Thus, it would not confer any right or

interest in appellants' favour. At the most, it can be held

that out of love and affection the respondents/original

7 plaintiffs had permitted the appellant/ original defendant

to occupy the premises. However, as none of the original

parties is alive, the said love and affection does not

subsist. The present appellants being the descendants of

the original defendant cannot take the benefit of such

magnanimity shown by the original plaintiffs to the

original defendant.

10. In view of the above, no legal issue is involved in

this appeal. Therefore, we do not see any cogent reason

to interfere with the impugned judgment and order of the

High Court. The appeal is liable to be dismissed and

stands dismissed.

However, in the facts and circumstances of the

case, as the appellants had been living in the suit

property for the last 35 years and it may be difficult for

them to get a suitable accommodation in Pune, they may

hand over the vacant and peaceful possession of the

premises on or before 31.10.2011. The appellants shall

8 file an undertaking before this Court within a period of

four weeks in this regard. There shall be no order as to

costs.

...................................J. (P. SATHASIVAM)

....................................J. (Dr. B.S. CHAUHAN) New Delhi, October 18, 2010

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