WINIFRED WILSON MONGOSE Vs. YUSUF YACOOB KHARWA

JUDGEMENT

(1.) These are two appeals from the appellate decree and these are directed against the judgment dated 22.9.2000 and the decree thereof passed by the Assistant District Judge, Sealdah in T.A.Nos.4 and 23 both of 1997.

(2.) There were two suits, first being T. S. 670 of 1992 which was filed the respondent Yusuf Yacoob Kharwa against the appellant Mrs. Winifred Wilson Mongose for declaration and recovery of possession and mesne profits. The other suit being T.S.705 of 1993 was filed by the aforesaid appellant against the aforesaid respondent for declaration and injunction. In the earlier suit No. 670/92, the case of the plaintiff is that plaintiff is the mutwalli to the Wakf estate of Hanogs Yusoof Sakhjee Wakf-Al-Anlad comprising of premises No.31A, Circus Avenue within P. S. Beniapukur commonly known as Taj Mansion. One Mrs. Bessie Evelyn Hutt, since deceased, mother of the defendant was originally a tenant in respect of flat No.2 on the first floor, Western Block, Taj Mansion under the plaintiff at a monthly rental of Rs.167.06. On 14.2.92. the original tenant Mrs. B. Hutt by a letter to the plaintiff informed, inter alia, that after marriage, the defendant and her husband were allowed by Mrs.Hutt to stay in the suit flat as a licensee. Subsequently, specially after the death of her husband, the defendant and her family members started misbehaving with her. In that background, Mrs. B. Hutt revoked her license and asked her daughter to vacate the suit premises but she did not. She also made a declaration that her tenancy would continue till her death and it would cease on her death and the plaintiff would be at liberty to take possession of the suit flat after her death. Mrs. Hutt, the tenant died on 23.9.92. After the death of Mrs. Hutt the plaintiff time and again requested the defendant to vacate the suit flat but she did not. On the other hand she sent a letter dated 13.11.92 to the plaintiff praying for mutation of her name as a tenant in respect of the suit flat. It was the case of the plaintiff that after the death of the admitted tenant Mrs. Hutt, the defendant had been occupying the suit flat as a trespasser. In that background, the plaintiff has been constrained to file the suit.

(3.) The defendant contested the suit by filing a written statement alleging, inter alia, that during her life-time her mother on 22.8.85 executed one Will in presence of two witnesses and bequeathed all her properties including the tenancy right in respect of the suit flat in favour of the defendant. The defendant denied that she was a mere licensee under her mother. She asserted that for the last 40 years she stayed with her mother looked after her and apart from the Will she acquired right to claim tenancy as an heir of the original tenant Mrs. B.Hutt. The defendant further alleged that the documents, namely, the letter of declaration dated 14.2.92 purportedly written by Mrs. B.Hutt were not genuine as at the relevant point of time her mother was totally confined to bed she could not even hold pen in her hand.