{"id":112941,"date":"2009-03-13T00:00:00","date_gmt":"2009-03-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/naranji-bhimji-family-trust-vs-sub-divisional-officer-on-13-march-2009"},"modified":"2016-10-28T13:10:58","modified_gmt":"2016-10-28T07:40:58","slug":"naranji-bhimji-family-trust-vs-sub-divisional-officer-on-13-march-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/naranji-bhimji-family-trust-vs-sub-divisional-officer-on-13-march-2009","title":{"rendered":"Naranji Bhimji Family Trust vs Sub-Divisional Officer on 13 March, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
Naranji Bhimji Family Trust vs Sub-Divisional Officer on 13 March, 2009<\/div>\n
Bench: J. H. Bhatia<\/div>\n
                                                     \n\n\n                IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                          NAGPUR BENCH AT NAGPUR\n\n\n\n\n                                                                                               \n                              WRIT PETITION NO. 214\/2008\n\n\n\n\n                                                                       \n          Naranji Bhimji Family Trust,\n          having registration No. E-87 (Nagpur) thr.\n          Managing Trustee, Shri Mahendra Bhavanji Thaker,\n\n\n\n\n                                                                      \n          aged 67 years, r\/o Giripeth, Nagpur, tq. Dist. Nagpur.\n\n                                                                          .....PETITIONER\n                                ...V E R S U S...\n\n\n\n\n                                                        \n    1.    Sub-Divisional Officer, Ramtek,\n                                      \n          Tq. Ramtek, dist. Nagpur.\n\n    2.    Smt. Manibai Nanalal Thakkar,\n                                     \n          aged 80 years, Occ. Household,\n          r\/o Vallabhbhai Patel Ward, Ramtek,\n          tq. Ramtek, dist. Nagpur.\n            \n\n\n    2A. Mr. Vandana w\/o Vyankatesh Naidu,\n        aged about 60 years, r\/o Vandana\n         \n\n\n\n        Apartment, B-Wing, 3rd Floor,\n        Flat No. 13, Ramdaspeth, Nagpur.\n\n\n\n\n\n    3.     Narendra s\/o Nanalal Thakkar,\n           aged 65 years, Occ. Business,\n           r\/o Vallabhbhai Patel Ward, Ramtek,\n           Tq. Ramtek, dist. Nagpur.                                      .....RESPONDENTS\n    -------------------------------------------------------------------------------------------------\n\n\n\n\n\n    Mr. Pendharkar, Senior Advocate with Mr. Hedaoo, Advocate for\n    petitioner.\n    Ms. Khade, A.G.P. for respondent no.1\n    Mr. Masodkar, Advocate for respondent no. 3.\n    -------------------------------------------------------------------------------------------------\n\n\n\n\n                                                                       ::: Downloaded on - 09\/06\/2013 14:24:34 :::\n                                         \u2701\n\n\n\n                                   CORAM:- J. H. BHATIA, J.\n<\/pre>\n
                                   DATE:- 13th MARCH, 2009<\/p>\n
    ORAL JUDGMENT<\/p>\n
    1.            Rule. Rule made returnable forthwith. With consent of<\/p>\n
    learned counsel for the parties, the matter is taken up for final hearing<\/p>\n
    immediately. Heard learned counsel for the parties.\n<\/p>\n
    2.            The petitioner claims to be owner and landlord of the<\/p>\n
    suit premises admeasuring 2137 sq. ft., which is part of the property<\/p>\n
    bearing City Survey No. 1060 admeasuring 1687.1 sq. mtr. shown on<\/p>\n
    sheet no. 13, Tq. Ramtek, dist. Nagpur.        The property originally<\/p>\n
    belonged to one Shamji Naranji and in the year 1962, by order of the<\/p>\n
    Charity Commissioner, the said property was included in Naranji<\/p>\n
    Bhimji Family Trust and accordingly entry was also taken in the city<\/p>\n
    survey record in the year 1969. According to the petitioner-Trust, one<\/p>\n
    Nanalal Thakkar, husband of respondent no. 2 and father of<\/p>\n
    respondent no. 3 was in the service of Shamji Naranji. Said Nanalal<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 14:24:34 :::<\/span>
\n                                          \u2702<\/p>\n
    died in the year 1972.          Respondent nos. 2 and 3 i.e. legal<\/p>\n
    representatives of said Nanalal had no residential accommodation and,<\/p>\n
    therefore, on their request and taking into consideration the past<\/p>\n
    services of said Nanalal, the petitioner-trust allowed them in the year<\/p>\n
    1980-81 to occupy the suit premises consisting of five rooms and two<\/p>\n
    varandha etc. as licensee.     Thus, occupation of the respondents is<\/p>\n
    permissive. Respondent no. 3 had filed Regular Civil Suit No.65\/1990<\/p>\n
    in the Court of Civil Judge Junior Division, Ramtek seeking declaration<\/p>\n
    that he was owner of the property on the basis of oral gift. That suit<\/p>\n
    came to be dismissed on 08.02.2005. According to the petitioner, they<\/p>\n
    had repeatedly asked respondent nos. 2 and 3 to vacate the premises<\/p>\n
    but they avoided. Finally on 01.04.2005, notice was issued to them<\/p>\n
    but in vain. With these pleadings Revenue Case No. 1\/A-71(2)\/05-06<\/p>\n
    under Section 43 of the Maharashtra Rent Control Act, 1999 (For short<\/p>\n
    the “Act”) was filed by the petitioner.\n<\/p>\n
    3.            Respondent nos. 2 and 3 filed an application on<\/p>\n
    05.09.2005 seeking leave to appear and to contest that application as<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 14:24:34 :::<\/span>
\n                                         \u2704<\/p>\n
    contemplated in Section 43(4) (9) of the Act. In that application also,<\/p>\n
    the main defence was that Shamji Naranji Lohana had made oral gift<\/p>\n
    of the suit property in favour of father of non applicant no. 2 for<\/p>\n
    selfless services rendered by him and thus he had become owner of the<\/p>\n
    property. Non applicants claimed to be owners of the property and<\/p>\n
    according to them, in view of this, it was necessary to grant them leave<\/p>\n
    to appear and to contest the matter. That application was opposed by<\/p>\n
    the petitioner. It appears that both the parties filed their notes of<\/p>\n
    arguments in respect of the leave sought by non applicants to appear<\/p>\n
    and contest the application. However, while deciding the question of<\/p>\n
    leave, the Sub Divisional Officer, Ramtek, who was the competent<\/p>\n
    Authority under the Act, dismissed the application of the petitioner<\/p>\n
    itself holding that in view of the provisions of Section 22 of the Act, it<\/p>\n
    is necessary that there should be written agreement of service tenancy<\/p>\n
    and as in the present case, there was no such written agreement and,<\/p>\n
    therefore, the application itself is not tenable under section 42 of the<\/p>\n
    Act. That order is challenged in the present petition.\n<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 14:24:34 :::<\/span><\/p>\n
                                         \u260e<\/p>\n
    4.            Chapter VIII of the Act consisting of Sections 39 to 52,<\/p>\n
    provides for summary disposal of certain applications for eviction.\n<\/p>\n
    Section 41 declares that for the purpose of Chapter VIII, a landlord<\/p>\n
    means (a) a person who has created a service tenancy in respect of his<\/p>\n
    premises or a part thereof in favour of his employee under section 22;\n<\/p>\n
    (b) a member of the armed forces of the Union or a scientist or a<\/p>\n
    Government servant or a successor-in-interest, referred to in section<\/p>\n
    23; or (c) a person who has given premises on license for residence or<\/p>\n
    a successor-in-interest referred to in section 24. If the landlord claims<\/p>\n
    to be a person falling in any of these three categories, he can make an<\/p>\n
    application before the competent Authority to evict the tenant or<\/p>\n
    licensee under section 42 of the Act. Section 43 of the Act provides for<\/p>\n
    special procedure for disposal of application for eviction. Sub Section<\/p>\n
    (4) of Section 43, which is relevant, reads as follows:-\n<\/p>\n
             “43. Special procedure for disposal of applications
\n             (1) …..\n<\/p><\/blockquote>\n
             (2) …..\n<\/p><\/blockquote>\n
             (3) …..\n<\/p><\/blockquote>\n
             (4)(a)         The tenant or licensee on whom the\n             summons is duly served in the ordinary way or by\n\n\n\n\n                                                       ::: Downloaded on - 09\/06\/2013 14:24:34 :::<\/span>\n                                       \u2706\n\n\n<\/pre>\n
            registered post in the manner laid down in sub-section<\/p>\n
            (3) shall not contest the prayer for eviction from the
\n            premises, unless within thirty days of the service of<\/p>\n
            summons on him as aforesaid, he files an affidavit
\n            stating ground on which he seeks to contest the
\n            application for eviction and obtains leave from the<\/p>\n
            Competent Authority as hereinafter provided, and in
\n            default of his appearance in pursuance of the summons<\/p>\n
            or his obtaining such leave, the Statement made by the
\n            landlord in the application for eviction shall be deemed<\/p>\n
            to be admitted by the tenant or the licensee, as the case<\/p>\n
            may be, and the applicant shall be entitled to an order
\n            for eviction on the ground aforesaid.\n<\/p><\/blockquote>\n
            (b)           The Competent Authority shall give to the<\/p>\n
            tenant or licensee leave to contest the application if the<\/p>\n
            affidavit filed by the tenant or licensee discloses such
\n            facts as would disentitle the landlord from obtaining an
\n            order for the recovery of possession of the premises on<\/p>\n
            the ground specified in section 22 or 23 or 24;”\n<\/p><\/blockquote>\n
                  From these provisions, it becomes clear that when<\/p>\n
    summons is served on a tenant or licensee, he shall not contest the<\/p>\n
    prayer for eviction unless within 30 days of service of summons on<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 14:24:34 :::<\/span>
\n                                          \u271d<\/p>\n
    him, he files an affidavit stating the grounds on which he seeks to<\/p>\n
    contest the application for eviction and obtains leave from the<\/p>\n
    competent Authority. If he does not make such application, seeking<\/p>\n
    leave within the prescribed period or if he makes such an application<\/p>\n
    but that application is rejected and leave is refused, the statement<\/p>\n
    made by the landlord in the application for eviction shall be deemed to<\/p>\n
    be admitted by tenant or licensee, as the case may be, and applicant<\/p>\n
    shall be entitled to an order for eviction on the grounds stated therein.\n<\/p><\/blockquote>\n
    From clause (b) of sub section (4), it is clear that if the affidavit filed<\/p>\n
    by the tenant or licensee discloses such facts as would disentitle the<\/p>\n
    landlord from obtaining an order for recovery of possession on the<\/p>\n
    grounds as specified in Section 22 or 23 or 24, the competent<\/p>\n
    authority shall give to the tenant or licensee leave to contest the<\/p>\n
    application. From this it is clear that if the affidavit filed by the tenant<\/p>\n
    or licensee does not disclose such facts as would disentitle the landlord<\/p>\n
    from obtaining an order of recovery of possession, the competent<\/p>\n
    authority shall refuse leave to tenant or licensee.\n<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 14:24:34 :::<\/span><\/p>\n
                                         \u271e<\/p>\n
    5.              Section 22 of the Act is applicable where a landlord has<\/p>\n
    let out the premises to his employee as a service condition or where<\/p>\n
    they have created a service tenancy. For that purpose, it is necessary<\/p>\n
    that the landlord and the employee may enter into an agreement in<\/p>\n
    writing.     Section 23 is applicable where the landlord claims to be<\/p>\n
    member of armed forces of the Union, scientists or a successor-in<\/p>\n
    -interest.    Section 24 is applicable where the landlord had given<\/p>\n
    premises to a person for residence as a licensee. In the present case,<\/p>\n
    the petitioner had nowhere claimed in the application for eviction that<\/p>\n
    the suit premises was given to Nanalal Thakkar, husband of non<\/p>\n
    application no. 1 and father of non applicant no. 2, as a service<\/p>\n
    tenement. Therefore, Section 22 would not be applicable. According<\/p>\n
    to the petitioner, Nanalal had died in 1971 itself and non applicants<\/p>\n
    were inducted as licensee in the year 1981-82 on their request,<\/p>\n
    because they did not have any residential accommodation, taking into<\/p>\n
    consideration the past services of Nanalal. It was nowhere pleaded by<\/p>\n
    the petitioner that service tenancy was created either in favour of<\/p>\n
    Nanalal or in favour of his legal representatives. In view of pleadings,<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 14:24:34 :::<\/span>
\n                                         \u271f<\/p>\n
    the case would fall under section 24 of the Act and not under section<\/p>\n
    22 of the Act.    Sub Divisional Officer-Competent Authority misled<\/p>\n
    himself by holding that because there were no written agreement to<\/p>\n
    create service tenancy as required under section 22 of the Act, the<\/p>\n
    application itself is not tenable. As the petitioner claimed that the suit<\/p>\n
    premises were given on license to the non applicants, the case would<\/p>\n
    fall under section 24 and the application is tenable under section 42 of<\/p>\n
    the Act.\n<\/p>\n
               In view of this, it is clear that Sub Divisional Officer\/<\/p>\n
    Competent Authority committed serious error in rejecting the<\/p>\n
    application.\n<\/p>\n
    6.             As noted earlier, the parties had submitted only notes of<\/p>\n
    arguments on the application made by non applicants seeking leave to<\/p>\n
    contest the eviction application. That application should have been<\/p>\n
    considered by the competent authority taking into consideration the<\/p>\n
    plea taken by non applicant.       As noted earlier, according to non<\/p>\n
    applicants\/respondents the suit premises were given in gift by original<\/p>\n
    owner Shamji Naranji to Nanalal some times in the year 1952-53,<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 14:24:34 :::<\/span>
\n                                       \u2720\u261b\u2721<\/p>\n
    orally. It is material to note that non applicant no. 2 Narnedra s\/o<\/p>\n
    Nanalal had filed Regular Civil Suit No.65\/1990 claiming declaration<\/p>\n
    that he had become owner of the property mainly on the ground that<\/p>\n
    the suit property was gifted orally to his father by Shamji Naranji.\n<\/p>\n
    That suit was dismissed on the ground that the suit was filed without<\/p>\n
    permission of the Charity Commissioner as well as non joinder of the<\/p>\n
    necessary party.   Learned counsel for respondents-non applicants<\/p>\n
    makes statement that an appeal has been preferred against judgment<\/p>\n
    and that appeal is still pending.       In my considered opinion, it is<\/p>\n
    immaterial that the suit has been dismissed for want of necessary<\/p>\n
    permission from the Charity Commissioner. The material fact is that<\/p>\n
    in that suit and even in the application made by the respondents<\/p>\n
    before the competent Authority seeking leave to contest the eviction<\/p>\n
    proceeding, their main contention is that the suit property was gifted<\/p>\n
    by Shamji Naranji to Nanalal some times in the year 1952-53 and<\/p>\n
    according to them, the gift was oral. The suit property is a house<\/p>\n
    admeasuring approximately 2137 sq. ft and consisting of 5 rooms,<\/p>\n
    varandhas and bathroom etc.<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 14:24:34 :::<\/span>
\n                                          \u261e <\/p>\n
    7.            Section 123 of the Transfer of Property Act clearly<\/p>\n
    provides that for the purpose of making gift of immovable property,<\/p>\n
    the transfer must be effected by registered instrument signed by or on<\/p>\n
    behalf of the donor and attested by at least two witnesses. A gift of<\/p>\n
    movable property may be made either by registered instrument or by<\/p>\n
    delivery. From this it is clear that the immovable property cannot be<\/p>\n
    transferred unless a gift of the same was made by a registered<\/p>\n
    instrument.   The oral gift of immovable property is not permitted<\/p>\n
    under Section 123 of the Transfer of Property Act. Similarly, section<\/p>\n
    17 of the Registration Act, 1908 makes registration of an instrument of<\/p>\n
    gift of any immovable property compulsory irrespective of value of the<\/p>\n
    property. Other non testamentary instruments, which purport or<\/p>\n
    operate to create, declare, assign, limit or extinguish any right, title or<\/p>\n
    interest in immovable property, the value of which is Rs. 100\/- or<\/p>\n
    upwards are required to be registered compulsorily. It means that if<\/p>\n
    value of the property is less than Rs. 100\/-, in case of such documents,<\/p>\n
    they are not compulsorily required to be registered.                  However,<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 14:24:34 :::<\/span>
\n                                        \u270c\u261b\u270d<\/p>\n
    exception on the basis of value of the immovable property is not made<\/p>\n
    in respect of instrument of gift of immovable property. Thus, it is clear<\/p>\n
    that Section 123 of the Transfer Property Act as well as Section 17 of<\/p>\n
    the Registration Act make registration of the instrument of gift deed of<\/p>\n
    an immovable property, irrespective of the value, to be compulsory. In<\/p>\n
    view of this, the ground taken by the respondents in defence of the<\/p>\n
    application for eviction is not permitted to be raised and proved, in<\/p>\n
    view of specific provisions of Section 17 of the Registration Act and<\/p>\n
    Section 123 of the Transfer of Property Act. If this defence is ruled<\/p>\n
    out, the respondents do not have any other ground or defence which<\/p>\n
    would disentitle the petitioner from getting an order of eviction and<\/p>\n
    possession.   In view of this, the competent authority should have<\/p>\n
    rejected the application seeking leave to defend.\n<\/p>\n
    8.            In view of the facts and legal position noted above, it is<\/p>\n
    clear that the competent authority misled itself by holding that the<\/p>\n
    application is not tenable under section 42 of the Act because there<\/p>\n
    was no written service tenancy agreement as required in Section 22 of<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 14:24:34 :::<\/span>
\n                                        \u270e\u2711\u270f<\/p>\n
    the Act.    The Competent Authority was wrong in rejecting the<\/p>\n
    application on that ground. The non applicants had not taken any<\/p>\n
    ground, which would disentitle the landlord from seeking eviction. As<\/p>\n
    pointed out, the ground taken by them that they had become owner of<\/p>\n
    the property in view of oral gift, cannot be allowed to be raised and<\/p>\n
    proved, in view of provisions of Section 123 of the Transfer of<\/p>\n
    Property Act and Section 17 of Registration Act.\n<\/p>\n
    9.             As in the present case, no gift deed was executed and<\/p>\n
    registered and the plea of oral gift cannot be taken, therefore, in my<\/p>\n
    considered opinion, the respondents had not raised any defence or<\/p>\n
    ground, which would disentitle the petitioner from getting the order<\/p>\n
    for eviction. Therefore, the very application seeking leave to defend is<\/p>\n
    liable to be rejected.\n<\/p>\n
    10.            For the aforesaid reasons, the petition is allowed.\n<\/p>\n
    Impugned order passed by competent authority rejecting the<\/p>\n
    application filed by landlord\/petitioner is hereby set aside.                The<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 14:24:34 :::<\/span>
\n                                        \u2712\u2714\u2713<\/p>\n
    application made by non applicants seeking leave to appear and<\/p>\n
    contest stands rejected. Competent Authority shall pass consequential<\/p>\n
    order in view of provisions of Section 42 (4) (1) of the Act.\n<\/p>\n
                  Rule is made absolute accordingly. No order as to costs.\n<\/p>\n
                                                  JUDGE<\/p>\n
    kahale<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 14:24:34 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Naranji Bhimji Family Trust vs Sub-Divisional Officer on 13 March, 2009 Bench: J. H. Bhatia IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR WRIT PETITION NO. 214\/2008 Naranji Bhimji Family Trust, having registration No. E-87 (Nagpur) thr. Managing Trustee, Shri Mahendra Bhavanji Thaker, aged 67 years, r\/o Giripeth, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-112941","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nNaranji Bhimji Family Trust vs Sub-Divisional Officer on 13 March, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/naranji-bhimji-family-trust-vs-sub-divisional-officer-on-13-march-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Naranji Bhimji Family Trust vs Sub-Divisional Officer on 13 March, 2009 - 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