Rosely Xavier v. Bombay Municipal Corporation

1. This appeal takes exception to the judgment and decree dated 16.02.2002 passed in L.C. Suit No.2864 of 1986. The said suit is filed by the present Appellant. By the said impugned judgment and decree, the Appellant’s suit is dismissed.

2. The case of the Appellant/Plaintiff, in short, is that she has been residing in the suit premises since her birth. Suit premises are owned by Respondent Municipal Corporation, of which tenancy originally stood in the name of her father Mr. Anthony Soans. After his death the suit premises were transferred in the name of Appellant’s mother Mrs. Karline Anthony Soans. Defendant No.2 is the only surviving brother of the Appellant, who is employed in U.A.E. for past many years. There was another brother by name Lesely, who expired many years back being unmarried. Defendant Nos.3, 4 & 5 are married sisters of the Appellant who are residing with their respective husbands in their matrimonial homes. The Appellant got married with Mr. Wilson Xavier and during that time the Appellant’s mother was sick and all the other sisters were married and had left the suit premises for matrimonial homes. Nobody cared to look after the mother during her sickness and it was only the Appellant who was taking care of her mother. Ultimately the Appellant’s mother died on 08.09.1984 in hospital. All the furniture, fixtures and articles in the suit premises are purchased by the Appellant and belong to her. The telephone connection stands in the name of the Appellant. Electricity meter stands in the name of the Appellant for past many years. Rent of the suit premises has been paid by the Appellant.

3. It is the case of the Appellant that on 25.04.1986, the Appellant applied to Municipal Corporation for transferring the tenancy in her name being sole occupant. When the Defendant Nos. 3 to 5 came to know about this, their attitude changed. The Appellant has also got her separate ration card from November, 1984. Even during the lifetime of the Appellant’s mother, the Respondents were harassing the Appellant to vacate the suit premises and incorporate their names in ration card. On 03.05.1986, husband of Defendant No.5 had assaulted the Appellant and abused her. The Appellant is a stage dancer by profession. The Appellant’s husband had left for Bangalore to attend wedding of his sister in 1986 and has not returned ever since. The Appellant is a lonely lady trying to protect her rightful possession and occupation. Therefore, it is necessary to restrain the Respondents from disturbing her possession or entering into the suit premises and it is necessary to direct the Municipal Corporation to transfer tenancy in her name.

4. Respondent – Municipal Corporation has filed written statement contending inter alia that the tenancy of the suit premises which is a shop cum residential premises stands in the name of Mrs. Karline Anthony Soans who has expired on 08.09.1984. It is admitted that the Appellant is present occupant who has applied for transfer of tenancy in her name. It is admitted that the Appellant is in use and occupation of the suit premises. It is further admitted that it is informed to the Appellant that her request for transfer of tenancy can be processed provided the Appellant produces consent letter in the form of affidavit of all other legal heirs and representatives of the deceased Mrs. Karline. Objections have been received from Advocate for Respondents for transfer of tenancy in the Appellant’s name. Since there is dispute amongst legal heirs of the deceased Mrs. Karline (person in whose name presently tenancy stands), it is left to the legal heirs to establish their claim through the Court by filing appropriate proceedings. It is contended that as per policy of the Municipal Corporation for the purpose of transfer of tenancy in the name of one of legal heirs, consent of all the legal heirs is necessary.

5. Defendant Nos, 3, 4 and 5 filed written statement contending inter alia that the Appellant has no independent or separate right over the suit premises and it belongs jointly to the Appellant and other legal heirs. That all the children of their father Anthony and mother Karline are brought up in the suit premises and Defendant No.3 was residing in the suit premises even after her marriage. That Defendant No.2 brother left for UAE in 1974 and has not returned since then. That the Appellant right from beginning, fell in bad company and ran away from house and did not inform her whereabout for nearly 10 years therefore, the Appellant is not considered as family members. That despite matrimonial duties, the Respondent sisters looked after the mother since when she took seriously ill till the time of her death. The expenses of deceased mother including medical bills and burial expenses were met by the Respondent sisters. That all the while when the mother was ailing and hospitalised, the Appellant never bothered to even ask. That after the death of the mother, the Appellant returned on the pretext that her husband has deserted her. That since the Appellant was their real sister, they did not object. That the Appellant has destroyed medical bills and vouchers which could prove their case about taking care of mother. That Defendant No.3 continued to reside in the suit premises even after her marriage in May 1966 and her first son was born in the suit premises. On these and other grounds the suit is resisted. In short, it is the case of Defendant Nos. 3 to 5 that the Appellant does not have exclusive right to claim tenancy after death of her mother and they are equally entitled to it.

6. The Appellant entered witness box and examined herself as PW-1. Ms. Ruby D’souza is examinedas PW-2. Defendant No. 3 Elyzabeth Patel examined herself as DW-1. Respondent - Municipal Corporation examined its Rent Supervisor Mr. Ashok Namdeo Kanse. Issues are framed holding that the Appellant has proved that she is in occupation of the suit premises. It is held that Respondent - Municipal Corporation has proved that as per its policy tenement cannot be transferred in the name of legal heir of principal tenant, without consent from all the legal heirs. It is further held that Defendant Nos.3, 4 & 5 have proved that the Appellant has no independent right in the suit premises and the right to occupy is jointly owned by all the legal heirs. Ultimately suit is dismissed.

SUBMISSIONS

7. Learned Advocate for the Appellant Mr. Patel submitted that suit premises is about 360 sq. ft. in area and the property belongs to Respondent/ Municipal Corporation which was tenanted to the father of the Appellant and on the death of the Appellant’s father the tenancy got transferred in the name of the mother and the Appellant had applied for transfer of tenancy in her favour, but the Respondent/ Municipal Corporation has neither allowed the application nor rejected it. It is contended that the Appellant being the only legal heir ‘residing in the suit premises with the tenant-mother’ the Respondent Municipal Corporation ought to have transferred the tenancy in her name, even as per general tenancy law. Instead of following the procedure as provided under the applicable policy, the Respondent/Corporation has insisted on NOC from Defendant Nos. 3 to 5, who are not occupying the suit premises since long time. It is contended that Defendant Nos. 3, 4 and 5 are residing at their respective matrimonial houses and they had not applied for transfer of tenancy. He submitted that none of the Respondents have filed any suit seeking declaration of right about inheritance in respect of estate of Karline including suit premises. He submitted that there is no civil suit filed or pending in the Court of competent jurisdiction by which the shares to the estate of their mother is determined. It is submitted that the Trial Court, instead of allowing the prayer or dismissing it, went on to determine about independent right of the Appellant, which is not permitted. He submitted that despite holding that the Court does not have jurisdiction, the findings are rendered on merits. He submitted that since the suit is filed seeking direction to Respondent Municipal Corporation to transfer tenancy, and injunction restraining Defendant Nos. 3 to 5 from entering the suit premises, the City Civil Court had jurisdiction to try and entertain the suit. He submitted that issue No.6 is decided contrary to documented policy of Respondent Corporation inasmuch as the Municipal Corporation could have taken security deposit as provided under Clause 4 of the policy dated 11.01.1989 to safeguard municipal interest towards any claim by other legal heirs, coupled with undertaking on stamp paper. He further submitted that rights inter se the Appellant and Defendant Nos. 3 to 5 will be decided if the parties file necessary suit for declaration of shares, however, pending such decision, the Respondent Municipal Corporation could not have avoided the decision. He further submitted that declaration about joint ownership of the parties or independent right of Appellant have been decided when the Court was not called upon to do so and in absence of sufficient evidence. It is further submitted that the suit is not for declaration of ownership or rights or shares but for direction to the Municipal Corporation and injunction. It is further submitted that in written statement, the Respondent Municipal Corporation has admitted that the Appellant is the present occupant and therefore, could have simply adopted the applicable policy instead of hiding behind non filing of NOC from other legal heirs.

8. Learned Counsel for the Respondent Nos. 2, 3 and 4 (Defendant Nos. 3 to 5) has contended that the Appellant cannot claim exclusive right to occupy suit premises after demise of their mother in whose name rent receipt last stood. It is submitted that the Appellant has admitted in cross-examination that Defendant Nos. 3 to 5 are also equally entitled to claim the suit premises. It is submitted that in the teeth of these admission, the suit cannot be decreed and is rightly dismissed. He has fairly conceded that Defendant Nos. 3 to 5 have not filed any suit seeking declaration of their share in the estate of their father or mother which included the right to occupy the suit premises after demise of their mother. He has not disputed that the suit premises are already demolished and the Appellant handed over the possession to the developer for reconstruction and parties are governed by order dated 01.08.2022 about the permanent alternate accommodation, during the pendency of the Appeal.

9. Following points fall for my consideration: (1) Whether the Trial Court was justified in dismissing the suit completely ? NO (2) What order ? Appeal partly allowed.

REASONS

10. I have carefully considered the submissions. Suit premises is shop-cum-residence. At the outset, it is necessary to consider the applicable policy which governs the situation like the present, where one of the legal heirs is asking for transfer of tenancny and the other legal heirs are objecting. As recorded in the order dated 30.07.2025, the applicable policy dated 11.01.1989, which is also considered by the Trial Court in paragraph No.12 of the impugned judgment, provides for such situation in clauses 3 and 4, which reads as under: Statement showing the procedure which is adopted by Estates Deptt. for checking the transfer cases of residential as well as commercial tenements Sr. No. Procedure Residential Tenements Commercial Tenements 1 xxxx xxx xxx 2 xxxx xxx xxx 3 P.T.’s consent The transferee should produce consent affidavit of the P.T. duly affirmed before Metropolitan Magistrate. If P.T. is dead, his death certificate with consent affidavit of all his legal heirs should be obtained. If transfer is without P.T.’s consent transferee should give consent letter of major occupants of the family residing with him/her. The transferee should produce Registrar Sale Deed i.e. Deed of Assignment from the T.T. and Registration Slip of the said Deed of Assignment. If P.T. is dead, his death certificate with consent affidavit and deed of assignment from all his legal heirs should be obtained.

4 Security Deposit If he is not able to produce the consent affidavit of P.T. Rs.5000/as Security Deposit shall have to be paid by him to safeguard municipal interest towards P.T. or his legal heirs claim in future and he should give an undertaking on stamp paper of Rs.50/- (Indemnity Bond) proforma of which is supplied by Estate Deptt. that he agree to vacate the tenement if P.T. or his legal heirs establish their rights through a Court of law. On his failure to do so, he shall be liable for eviction from the tenement and this Security Deposit shall stand If transferee is not able to produce the Registered deed or assignment, though there is P.T.'s consent, he must produce the is abovesaid proofs as stated in Column No.2, in addition to this Security deposit as per C.R.NO. 241 of 22.7.88. Rs. 20,000/-shall have to be paid by him to safeguard Municipal interest towards P.T. or his legal heirs claim in future and he should give an undertaking on Stamp paper of Rs. 50/forfeited to the Corporation. This amount of Security Deposit will be forfeited in case any claim is received from P.T. or his legal heirs. (Indemnity Bond) Proforma of which is supplied by this office that he agrees to vacate the tenement if P.T. or his legal heirs establish their rights through a Court of Law. On his failure to do so, he shall be liable for eviction from tenement and this Security Deposit shall stand forfeited to the Corporation. This amount of Security deposit will be forfeited in case any claim from P.T. or his legal heirs is received. If no such claim is received within five year, this deposit shall be refunded to him on demand without interest.

11. Before appeal is considered on merits, it is also necessary to note the exact prayers made in the suit. Perusal of the plaint shows that only substantive prayer made by the Appellant against Municipal Corporation was prayer clause (a) and prayer against private Defendant Nos. 3 to 5 are prayer clauses (b) and (c) which read as under: “a) Be pleased to direct the defendant No.1 to transfer the tenancy of the suit premises i.e. shop No.6 new labour camp, Sesmira Marg, worli, Bombay-400125. b) Be pleased to issue an injunction restraining the defendants Nos.3, 4 & 5, their agents, their servants and/or any other persons claiming through them from entering the suit premises. c) Be pleased to issue an order of injunction restraining the defendants, their agents, their servants and/or any other persons claiming through them from disturbing the peaceful possession and occupation of the suit premises by the plaintiff.”

12. It is therefore, clear that the Court was not called upon to decide shares in the estate. No counterclaim is filed. Dispute about inheritance to the estate cannot be decided unless a declaration seeking shares is sought by either of the parties. Mere admission of the Appellant in cross-examination that Defendant Nos. 3 to 5 also are equally entitled to claim suit premises is not sufficient to decide and give declaration about rights/shares inter se the Appellant and Defendant nos. 3 to 5. Their brother Defendant No.2 is also involved. Admittedly, none of the parties, especially Defendant Nos. 3 to 5 who are objecting to transfer of tenancy have not filed any substantive suit seeking declaration of their rights/shares vis-a-vis the Appellant. Considering the scope of prayers, the Trial Court was not justify in granting any declaration about exclusive ownership or independent right under Issue No. 7. The suit is ultimately dismissed after holding issue No.7 in favour of Defendant Nos. 3, 4 and 5 and this obviously prejudices the rights of the Appellant and Defendant Nos. 2 to 5 inter se. No such declaration was sought and therefore it could not have been granted vide Issue No.7.