KEWANG Vs. JAREENA PEETERS

JUDGEMENT

(1.) The instant writ petition has been filed invoking supervisory jurisdiction of this Court under Art. 227 of the Constitution challenging the orders dated 19.1.2018 passed by the Court of Small Causes, Kanpur Nagar in SCC Suit No. 271 of 2014 and the order dated 3.4.2018 passed by the District Judge, Kanpur Nagar in SCC Revision No.43 of 2018.

(2.) The petitioner, who was tenant of first floor of a building, is defendant in a suit filed by Zarina Peters (for short 'the original plaintiff') for recovery of arrears of rent and for his eviction. During the pendency of the suit, the original plaintiff died on 15.1.2016. Her son Subodh Joy Peters filed an application seeking substitution in her place on basis of a will dated 1.3.2011 executed by his deceased mother. The petitioner opposed the substitution application alleging that the original owner of the property namely Symon James Peters, the deceased husband of the original plaintiff in his will dated 23.11.1996 had desired that first floor of the building be bequeathed by his wife, the legatee, in favour of his daughter Smt. Sneh Lata Puthrana and second floor in favour of his son Subodh Joy Peters. He therefore contended that Smt. Sneh Lata Puthrana had inherited the first floor, which is in his tenancy and the substitution application filed by Subodh Joy Peters should be dismissed.

(3.) The trial court took into consideration the registered will dated 23.11.1996 executed by Symon James Peters and held that the first and second floor of the building including the tenanted premises was bequeathed in favour of the original plaintiff. After death of Symon James Peters, the original plaintiff became absolute owner of the first floor and second floor of the building. It was noted that although in the will executed by her husband dated 23.11.1996, he had expressed a desire that her wife should bequeath the first floor in favour of her daughter and the second floor to her son but it was observed that since bequest in favour of her wife was absolute in character consequently the wish expressed by the testator was not binding on the original plaintiff. The trial court also noted the recital in the will of Zarina Peters dated 1.3.2011 to the effect that her daughter Sneh Lata Puthrana is married at Allahabad and after death of her husband, she was in need of money to buy a house at Allahabad and arrangement where for was made by her by liquidating the entire fixed deposit receipts and other movable properties belonging to her as well as her son. The will further mentions that the wish of the husband to make available first floor of the building to her daughter stood fulfilled upon being extended financial help by her mother and brother in purchasing a house at Allahabad. The substitution application filed by the son of the original plaintiff was allowed and he was permitted to be substituted in place of the original plaintiff. The revisional court did not interfere with the same on the ground that the order impugned was interlocutory in nature.