Case Note & Summary
The suit was filed by the plaintiffs, John Francis Anthony Gonsalves and Charles Willibroad Gonsalves, who are brothers and executors of the will of their father John Frederick Gonsalves. The defendant, Colin M Rebello, is the step-son of the plaintiffs' sister Agnes. The dispute concerns Flat No.501 in Joanna Premises Co-operative Housing Society, Bandra, Mumbai. The testator died on 3 January 1983, leaving a will dated 1 April 1979. Under the will, Flat No.502 was bequeathed to Charles absolutely, while Flat No.501 was given to the testator's wife Julia for her lifetime, with directions that after her death, the executors should sell the flat and distribute the net sale proceeds equally among his children, including the grandson Colin M Rebello (the defendant). Julia died on 21 October 2009. The plaintiffs, as executors, sought to sell Flat No.501 and distribute the proceeds. However, the defendant, who was residing in the flat, refused to vacate, claiming that he was a tenant and not a licensee. The plaintiffs filed the suit for possession, declaration that the defendant is a gratuitous licensee, and injunction. The defendant contended that the civil court had no jurisdiction because the premises were governed by the Maharashtra Rent Control Act, 1999, and he was a tenant. The court framed a preliminary issue on jurisdiction. After hearing arguments, the court held that the defendant was a gratuitous licensee. The court noted that the defendant was allowed to use the flat as a family member, but there was no evidence of any payment of rent or creation of a tenancy. The court distinguished between a licensee and a tenant, holding that a gratuitous licensee does not have any right to remain in possession after the license is revoked. The court also held that the suit was not barred by the Maharashtra Rent Control Act, as the premises were not let for rent. The court decided the preliminary issue in favor of the plaintiffs, holding that the civil court has jurisdiction to try the suit.
Headnote
A) Civil Procedure - Jurisdiction - Gratuitous Licensee - Maharashtra Rent Control Act, 1999, Sections 3(1)(b), 5(4)(c) - The issue was whether the defendant, a step-grandson allowed to occupy a flat as a family member, was a gratuitous licensee or a tenant. The court held that the defendant was a gratuitous licensee, as there was no evidence of payment of rent or any tenancy rights. Consequently, the civil court had jurisdiction to entertain the suit for eviction, as the premises were not governed by the Rent Act. (Paras 1-34) B) Will - Construction - Bequest of Flat - Right of Residence - The testator bequeathed Flat No.501 to his wife for life, with remainder to executors to sell and distribute proceeds among children including grandson. The court interpreted that the defendant had no independent right to occupy the flat after the death of the life tenant. (Paras 3-10) C) Evidence - Burden of Proof - Licensee vs. Tenant - The burden was on the defendant to prove tenancy. The defendant failed to produce any rent receipts or tenancy agreement. The court held that mere occupation as a family member does not create a tenancy. (Paras 20-30)
Issue of Consideration
Whether the defendant, who according to the plaintiff was allowed to use the premises as a family member, can be termed as a gratuitous licensee, so as to oust the jurisdiction of the civil court.
Final Decision
The court decided the preliminary issue in favor of the plaintiffs, holding that the defendant is a gratuitous licensee and the civil court has jurisdiction to try the suit. The Notice of Motion No. 787 of 2011 was disposed of accordingly.
Law Points
- Gratuitous licensee
- Family member occupation
- Jurisdiction of civil court
- Maharashtra Rent Control Act
- 1999
- Section 3(1)(b)
- Section 5(4)(c)
- Licensee vs. Tenant
- Will construction
- Executor's right to evict
