DEEPCHAND VENICHAND SHAH Vs. SUKHDEVI NANERAM PARDESHI

JUDGEMENT

(1.) THIS is a petition by the original defendants. The plaintiffs/land-lords filed Suit No.853 of 1977 in the Court of Small Causes at Pune against the defendant-tenants one Deepchand Venichand Shah for possession under the provisions of the Bombay Rents, Hotels and lodging House Rates (Control) Act, 1947 on the ground that they require the suit premises reasonably and bona fide and refusal to grant decree would result in greater hardship to them than the hardship to which the defendant would he subjected, if the decree is passed against him. It appears that after the death of the original defendant, defendant 1(a) Vatsalabai Ganpatbai Shah and defendant no.1(b) Sau Indubai Narayandas Shah were brought on record as the heirs being the married daughters of the original defendant-tenant and defendant no.2 and defendant no.3 who are the grandchildren of the original defendant-tenant, defendant no.2 Prakash Ganpatdas Gujar being the son of Vatsalabai and defendant no.3 being the son of Indabai, were impleaded as party-defendants on the ground that they are since in possession of the premises which means that the premises were unlawfully transferred and further to avoid any obstruction from defendants no.2 & 3.

(2.) DEFENDANTS no.1(a) and 1(b) i.e. the married daughters of the original defendant-tenant filed written statement contending that the deceased Deepchand Shah had entered into a partnership deed and all the partners were conducting the business and under the deed, the business as well as lease-hold rights were given to the partners. Alternatively, they contended that by registered will, deceased Deepchand Shah had bequeathed the lease-hold rights to, added defendants no.2 & 3. As such, defendant no.1(a) and 1(b) had nothing to do with the suit premises. Defendants no.2 & 3 contended that the suit premises are in possession of these defendants. They were conducting the business alongwith the original tenant as partners and they are grandchildren. The original tenant and they were conducting the running business in the suit premises. Despite knowledge of these facts, the plaintiffs had deliberately attempted to mislead the Court. It was further contended that, according to the partnership deed, all the rights of conducting business, leasehold rights, good-will, stock-in-trade and all other properties have come in the hands of these defendants. It is further categorically contended that these defendants are tenants and should be declared as such, as per the provisions of the Bombay Rents, Hotels and lodging House Rates (Control) Act, 1947. Without prejudice to the said contentions, defendants no.2 & 3 contended that defendants 1(a) and 1(b) are daughters of deceased tenant Deepchand and defendants no.2 & 3 are the sons of these two daughters. They are all partners and doing the business in partnership and even if defendants no.1(a) and 1(b) are treated as heirs, all the defendants have right to conduct the business under the partnership. It was specifically contended that the defendants do not have any other place for conducting the business. In para 10 of the written statement, it is categorically contended that at the time of death of the said Deepchand and even prior to that, these defendants were doing the business as grandchildren of the defendant and they have been in possession of the business and the suit premises right from 1972-73 and, therefore, they are also tenants, according to law. It was specifically contended that deceased Deepchand was staying at the back side of the suit premises and to look after deceased Deepchand, defendants no.2 and 3 were residing with him and, as such, these defendants are statutory tenants.

(3.) IN his evidence before the Court, witness Ramavatar stated that the defendant died pending the suit. Defendants no.1(a) and 1(b) are daughters of the deceased defendant. Defendant no.1(a) resides at Indapur and defendant no 1(b) resides at Lonand. Defendant no.2 is the son of defendant no.1(a) and defendant no.3 is the son of defendant no.1(b). Defendant no.2 resides at Indapur and defendant no.3 is running the suit shop. He his further stated that when the suit was filed, deceased defendant was ailing and was bed-ridden and was not in a position to run his business. That there was no necessity for the defendant to do the business. Defendants no.1(a) and 1(b) did not do any business and defendant no.2 and 3 have no right to conduct any business in the suit premises. In cross-examination, he has admitted that when Deepchand was ill, defendant no.3 started dealing in maida, aata and rava. He has stated that he has no idea that the deceased defendant took defendants no.2 and 3 as partners and that in 1974 the defendant's firm was registered before the Sub-Registrar at Haveli. He further stated that whenever Deepchand was ill, defendant no.3 used to come and do business and as soon as he used to recover from health, defendant no.3 used to go back to his native-place. He further admitted that defend-ants no.2 & 3 are grandsons of Deepchand and that Deepchand had no son, but only two daughters, viz., defendants no.1(a) and 1(b). He further stated that he has no idea if the defendants are in possession of the shop of Deepchand in the capacity of heirs as well as partners. The witness has further stated that it is not correct to say that from the time of death of Deepchand, defendants no.2 and 3 were in possession of the shop, but it was only defendant no.3 who was in possession of the same and that he does not know as to under what right defendant no.3 is in possession of the shop. But he is not in possession as a sub-tenant. In cross-examination, the witness admitted that the suit building was purchased from out of joint family funds in December 1964 and that the joint family dissolved in 1977-78. Plaintiffs no.3 & 5 are now separated from the joint family. They have taken the shop premises as also residential premises. With reference to the Shop AcT licence for shop at 14, Ganesh Peth, it is run in the name and style of M/s.Nanheram Gangadin & Sons. The witness admitted that all the members of their family have interest and plaintiffs no.4 and 6 look after the shop. He has further categorically stated that they three are having their own business and the aforesaid two brothers have their own business going on. The witness further admitted that cellar constructed in the suit building is in their possession. Above the cellars, two godowns are constructed which are rented out and out of these two godowns, one tenant has vacated. The defendant's witness no.1 Vinodkumar Shah, viz., defendant no.3, examined himself on oath. He has stated the deceased defendant Deepchand was his grandfather, being the father of his mother. Since 40 years prior to his death, he was doing business in the said premises. While he was alive, it was this witness who was looking after his business as a partner. When Deepchand died, it was this witness who was looking after his business. Referring to the partnership deed, the witness has stated that as per the deed of partnership, Deepchand transferred his entire interest, including his good-will and lease-hold rights in his favour. He has further stated that as heirs of Deepchand, they have all the rights in the suit premises. He further stated that deceased Deepchand executed a will and bequeathed all lease-hold interest in the suit premises to defendants no.2 and 3. He has stated that if evicted, they will have no premises to do the business and the business turn-over is of Rs.40 lakhs. There are five Diwanjis and ten himals working in the shop. In cross-examination, he has stated that it is true that Deepchand had only two daughters who are defendants 1(a) and 1(b) and defendant no.1(b) is his mother. The witness has stated that he was at Lonand prior to 1968 and, thereafter, in Pune. However, he admitted that from the ration-card, it appears that his name was deleted on 30.9.1978. The witness explains that may be because they had forgotten to get him deleted till then. November 5, 1996.