Bashir Khan vs Hamid Beg Alias Toni (since dead) through LRs and Others

Rohit Arya, J.—The instant plaintiff''s appeal is directed against the concurrent judgment and decree of the First Appellate Court dated 11/11/2010 passed in Civil Appeal No. 21-A/2010 confirming the judgment and decree dated 30/03/2010 passed in Civil Suit No. 101-A/2007. This Court vide order dated 23/3/2011, had admitted this Second Appeal on the following substantial questions of law:- (i) Whether, an eviction decree could be validly granted in a counter claim of landlord/defendant without fixing the case for tenant/plaintiff''s rebuttal of evidence which is contrary to Order VIII Rule 6A of CPC?

(ii) Whether an eviction decree u/s 12(1)(a) of the M.P. Accommodation Control Act, 1961 is bad in law inasmuch as no demand notice was served on the plaintiff?

(iii) Whether, an eviction decree u/s 12(1)(a) and (e) of the M.P. Accommodation Control Act, 1961 is bad in law inasmuch as holding the respondent No. 2 to be landlord and owner on the basis of a Will executed in her favour in contravention to Section 118 of Mahamedan Law by D.F. Mulla?

Facts necessary for disposal of this appeal as per plaint allegations plaintiff Bashir Khan S/o Late Nanne Khan is admittedly a tenant in the suit premises. Plaintiff filed a suit for declaration and permanent injunction. Plaintiff has claimed that he is a tenant of defendant No. 1 and not that of defendant No. 2 to 5. Defendant No. 1 has also filed a counter claim and sought eviction of the plaintiff on the ground of arrears of rent as well as bona fide need as he asserted to have the bona fide need of the suit premises as no other suitable and alternative accommodation available in the city of Gwalior.

The defendants No. 2 to 5 have also filed written statement and denied the plaint allegations. They have asserted that they are landlord of the suit premises and plaintiff is their tenant. They further contended that plaintiff has colluded with defendant No. 1 and has brought the instant suit to obtain a collusive decree. It is further stated that plaintiff is their tenant since the year 1986 and at present the rent of suit premises is Rs. 300/- per month. The plaintiff is in arrears of rent since January, 2000, and thereafter is not paying the rent without any rhyme and reason. The defendant further asserted that the suit house belonged to her brother Anwar Beg, who had no issue and had bequeathed the same to defendant No. 2 by way of Will dated 2/1/1978. Anwar Beg died on 31/1/1978 and since then defendant No. 2 is the owner of the suit premises. Defendant No. 2 further stated that apart from her, she has two sons Zamil Khan and Hamid. Zamil Khan had not married and Hamid had four sons and they do not have sufficient accommodation in the same house and are living in a room and a small open passage. They do not have other suitable alternative accommodation in the city of the Gwalior and required the suit premises bonafidely.

Trial Court framed the issues and allowed the parties to lead evidence and on critical evaluation of oral and documentary evidence on record, decreed the suit u/s 12(1)(a) & (e) of M.P. Accommodation Control Act, 1961 in favour of defendant No. 2. Aggrieved thereby, plaintiff filed the appeal before the first appellate Court and defendant No. 1 filed cross objection under Order XLI Rule 22 CPC.

Before the first appellate Court, the defendant No. 1 claimed that the alleged Will produced by the defendant No. 2 was not proved. The defendant No. 2 supported the judgment and decree passed by the trial Court and asserted that Will was duly proved. No evidence in rebuttal thereof was led by defendant No. 1.

The first appellate Court in para. 16 of the judgment has firstly dealt with the complaint of the plaintiff that he was not allowed to lead evidence in response to the evidence led by defendants who have filed the counter claim. The trial Court passed the detailed order on 28/3/2006, wherein it has held that the plaintiff has filed the suit for declaration and permanent injunction, hence, the plaintiff has to lead his evidence first to establish his claim and therefore, called upon the plaintiff to lead evidence. The plaintiff sought time to lead evidence on 10/4/2006 and thereafter on 2/5/2006, plaintiff himself has stated not to lead evidence. Further plaintiff prayed that his evidence be declared closed and therefore, the complaint of the plaintiff that he was not given opportunity to lead evidence was found to be devoid of substance. From the record, it is also found that the plaintiff has not filed any application to get his right restored for evidence after evidence of the defendants. In view of the aforesaid, the first substantial question of law is answered in favour of defendants No. 2 to 5.

As regards bona fide need of defendants No. 2 to 5 u/s 12(1)(e) is concerned, the first appellate Court has recorded the finding to the effect that Mehmood Beg, who had died 35-40 years ago, had executed a Will in favour of defendant No. 1 and one Anwar Beg. Anwar Beg had expired on 31/7/1978 and defendant No. 2 is the sister of Anwar Beg. Before his death, Anwar Beg had executed a registered Will on 2nd January, 1978 (Ex. D/3) bequeathing his share of property in her favour. The suit house where the plaintiff is a tenant fell into the share of Anwar Beg and by virtue of the Will in her favour. In para 20, 21 and 22, the first appellate Court has dealt with the issue as regards the Will and came to the conclusion that so far as first Will is concerned, undisputedly same was executed by Mehmood Beg whereby he bequeathed his property half-half in between his two sons Hamid Beg(defendant No. 1) and Anwar Beg. As regards second Will dated 2nd January, 1978 (Ex. D/3), the first appellate Court after discussing evidence on record had recorded a finding that Will (Ex. D/3) is a genuinely executed Will by Anwar Beg in favour of Defendant No. 2. The attesting witness Munne Khan S/o Nazar Mohammad (DW/5) had deposed that Anwar Beg had executed the Will on 2/1/1978 in favour of defendant No. 2 while he was in sound mental condition and had affixed his thump impression in his presence as well as another attesting witness Major Sundar Rao. The Courts below has found nothing contrary to the statement of attesting witnesses in their cross-examination and found the Will dated 2/1/1978 proved in accordance with Section 68 of the Evidence Act. Resultantly, the Courts below relying upon the evidence of attesting witnesses and house tax receipts, electricity bill, water bill etc. (Ex. D/8 and D/9) has recorded the findings that the suit premises belong to defendant No. 2.

As regards the bona fide, in paras 23 to 25 of the judgment, the first appellate Court after discussing the evidence of Khalil Khan (DW/3), Abdul Rajik (DW/4) has recorded a finding that defendant''s a 9 members family is residing in a very congested area of one room, which is absolutely insufficient to live, and hence found the bona fide need of the defendant No. 2 proved for this purpose. Under such circumstances, the first appellate Court has confirmed the findings of the trial Court dismissing the suit and discarding the counter claim of defendant No. 1 and allowing the claim of the defendant No. 2 and ordered eviction of plaintiff from suit premises u/s 12(1)(e) of the M.P. Accommodation Control Act, 1961.

As regards the substantial question No. 2, Khalik Khan (DW/3) as stated that earlier plaintiff was on monthly rent of Rs. 250 per month and had paid the rent up to January, 2000 and thereafter rent was enhanced to Rs. 300/-, but he stopped paying the rent since then. This fact is affirmed by DW/4 Abdul Rajjak. Plaintiff has not led any evidence contrary thereto. In fact in para 24, the witness has stated that the plaintiff is a tenant in the suit premises from year 1986. The standard rent was fixed by the trial Court on 10/5/2003. No adverse material has been placed on record by plaintiff on this issue. In view of the aforesaid, the question No. 2 as regards Section 12(1)(a) is answered accordingly.

As regards substantial question No. 3, the Section 118 of Mahomedan Law reads as under:-

Limit of testamentary power.- A Mahomedan cannot by will dispose of more than a third of the surplus of his estate after payment of funeral expenses and debts. Bequests in excess of the legal third cannot take effect, unless the heirs consent thereto after the death of the testator.

Admittedly, in the instant case Anwar Beg did not marry and died alone. He did not leave behind any heir. The aforesaid provision provides for limits of testamentary power solely for the benefit of heirs. If they like they can forgo the benefit by giving their consent. Further as per this provision if the testator has no heirs, he may bequeath the whole of his property even to a stranger. Therefore, Section 118 of Mahomedan Law shall have no application and in the opinion of this Court, Anwar Beg could bequeath whole of his property to his sister-defendant No. 1 and such testamentary disposition was not hit by aforesaid provision of law. Accordingly, substantial question of law No. 3 is answered in negative. In view of the aforesaid facts and circumstances of the case, substantial questions of law are answered in negative. Appeal sans merits is hereby dismissed. No order as to costs.