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Damodar Naryan Singh-vs-Sardar Hira Singh And Anr. on 6 May, 2002

Calcutta High Court Damodar Naryan Singh-vs-Sardar Hira Singh And Anr. on 6 May, 2002
Equivalent citations:(2003) 1 CALLT 237 HC
Author: P Ray
Bench: P K Ray


P.K. Ray, J.

1. This application under Section 115 of the Code of Civil Procedure has been filed by defendant son, as petitioner, challenging the order dated 31st March, 2002 passed by learned Judge, Fourth Bench of the Court of the small causes at Calcutta in SCC No. 113/96 whereby and whereunder with reference to the application under Section 41 of the Presidencies Small Causes Courts Act, 1882, the defendant son was directed to vacate the suit premises and to deliver the possession of suit premises to the plaintiff, the father, within two months from date of the order upon decreeing the suit for khas possession of the suit premises on eviction of the defendant son therefrom in favour of the plaintiff father.

2. In the application under Section 41 of Presidency Small Causes Act, 1882 hereinafter refer to as the said Act, the plaintiff, which is the father of the defendant of the said application prayed for recovery of possession of suit room by eviction of the defendant son therefrom on the ground that the defendant son was a mere licensee in the suit premises and such license was revoked by the letter dated 13th April, 1996 through learned advocate. The defendant son for non-compliance of such revocation notice became liable for eviction from the suit premises and the plaintiff father was entitled to have the recovery of possession. From the plaint and the evidence on record it is an admitted position that the property was purchased in the name of plaintiff father in the year 1980 when the plaintiffs family was consisting of five sons and daughters. All the sons at the material time of purchase of the property were unmarried and they resided with the plaintiff in joint mess. Even after marriage of the defendant in the year 1993 who is third son of the plaintiff, they were leaving in the joint mess with the plaintiff. It is further in evidence of the plaintiff that in the year 1995 sometime in the month of the January or February, defendant was made separated from the plaintiff’s joint mess and defendant along with his wife was allowed to reside in the suit room as licensee when the earlier tenant Tapan Kr. Mitra vacated the said room. It is also admitted in evidence that plaintiff gave the marriage of defendant son when defendant was unemployed aged about 20 years and allowed the defendant and his wife to stay in one room of the house on condition to obey the plaintiff father and to follow him being a member of a joint family. It was further alleged that since the defendant son was not in the speaking term with the family members and even started to cause disturbance of family peace by different ways including assault to the parents, taking away the ornaments of sisters etc., the plaintiff under painful circumstances issued the notice revoking the leave and license as was granted. The defendant son appeared in the said suit and by filling written statement denied the allegations as made by the plaintiff father. Defendant son had set up a case of independent title over the property by contending, inter alia, that he contributed Rs. 12,000/- while the property was purchased in the year 1980 and his another brother contributed Rs. 40,000/-. It is alleged in the written statement that at the material time of purchase and even thereafter plaintiff father had no income. Plaintiff father was residing in a ‘Gurewara’ and accordingly he had no means to purchase a property. It is contended further that defendant brother who contributed major amount of Rs. 40,000/- allowed the defendant to stay in the suit room with the family members. From the evidence on records and the deposition of the witnesses concerned it appears that the defendant son is leaving in the suit room with his family members namely wife and a minor son. It is revealed in evidence that the plaintiff father accepted dowry money on giving marriage of the defendant with one Smt. Gouri Kour. From the deposition of Gouri Kour it appears that she was tortured by plaintiff father-in-law and mother-in-law and as a result, a criminal case was registered at Jorasankho Police Station under Section 498A of Indian Penal Code, which resulted the investigating authorities to raid the house thrice to seize articles and gold ornaments as were given by her father. Those documents were marked as exhibit-B series. It has been further deposed by Gouri Kour that after six months of initiation of said criminal case, the plaintiff father-in-law instituted this suit to compel her husband withdraw the said criminal case under Section 498A Indian Penal Code.

3. Hence, from the material evidence on records it appears that there was a denial of the plaintiff’s story about leave and license. The evidence on record depicts a pathetic situation, which can be termed as a social and moral pollution. It would in fact strikes at the root of fiber of family concept. This Court on careful consideration of the entire matters, however, directed by the earlier order, to have a settlement in between the parties as no litigation should be allowed to continue where the same would lead to break family tie resulting a distortion in the nucleus of family cell. The Indian society from the age old period is a society interwoven by the personal relationship of the family members wherein the parents of the family are considered as the head of the family to look after the welfare of sons, daughters, daughter-in-laws, grand sons and daughters. Head of the family, the father accordingly vested with moral as well as legal obligation to maintain family members, who are defendants upon him. Such obligation even extended to maintain widowed daughter-in-law having legal sanction in terms of law as codified under Hindu Adoptions and Maintenance Act, 1956. Under Section 19, father-in-law has been made obliged in terms of the statute to maintain widowed daughter-in-law. The provision of Section 19 reads as follows:

“19. Maintenance of widowed daughter-in-law.– (1) A Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained after the death of her husband by her father-in-law:

Provided and to the extent that she is unable to maintain herself out of her own earnings or other property or, where she has no property of her own, is unable to obtain maintenance-

(a) from the estate of her husband or her father or mother, or

(b) from her son or daughter, if any, or his or her estate.

(2) Any obligation under Sub-section (1) shall not be enforceable if the father-in-law has not the means to do so from any coparcenary property in his possession out of which the daughter-in-law has not obtained any share, and any such obligation shall cease on the remarriage of the daughter-in-law.”

4. From the statutory provision it appears that in Hindu Law, the daughter-in-law is also considered as a member of joint family whereby an obligation has been casted upon father-in-law in the event she becomes widow, to maintain her. This codified law in the statute practically has echoed the sociological background of the concept of Hindu family which always believes in jointness of the family and thereby allotted different duties and obligations to the members of the family to maintain such unity for the shake of welfare of all the members of such joint family. From the statutory provision, it appears that not only in the angle of morality but in the angle of the statutory legal duties, father-in-law has been placed in a position where he is required to see the welfare of the daughter-in-law in the event of certain contingency as prescribed in the statute. The very idea as crystallized to a legal foundation to protect the daughter-in-law in a family, leads us to a definite conclusion of basic philosophical contours of the Hindu family life wherein the head of the family, the father and/or the father-in-law has been vested and entrusted with the legal obligation to take care of all the members of the family. This case in hand to be looked into in that angle where an unfortunate situation has been developed resulting the filing of the suit due to show balling of minor disputes cropped up earlier in between the father and the son. It is an unfortunate state of affairs that a father went to an action by a law suit against the son to evict him and his family members that is the wife and minor child from the house upon setting up a case of licensee.

5. The parties are Hindus by faith. The concept and social philosophy of Hindu society, more particularly in the angle of Indian Civilization, has accepted the concept of “Pitri Deva Bhava” and “Matir Deva Bhava” whereby parents have been placed in the high citadel of respect and honour. As per the concept of the family of Hindu society, the blessing of the parents is the prime consideration to a son and daughter as well as their family members. Under such cultural heritage of Indian society and more particularly of Hindu society and having regard to the age old conception of our joint family system which is interwoven by the fiber of love and affection, surely it should not be and ought not to be tampered with by the allegations and counter-allegations as has been made in this case resulting a decree of eviction against son and his family members from the suit room.

6. Despite the direction of settlement passed by me, since no result came out, under painful heart I have to adjudicate this matter. However, before adjudication, this Court is mindful of the fact that the long heritage of the family system, which is outcome of our rich heritage, if is allowed to be polluted taking into the ideas of the nucleus family system of Europe continent where the family tie is not so interwoven alike the Indian society, the country will face a danger not only on the point of break up of the family ties but also cultural degeneration resulting the pollution in the value system of the society, which is the basic fundamental pillar to uphold the unity of the family. Parents by their sacrifice not only maintain a child from the childhood but also provides education and all facilities for his growth to make him a complete man. The long trail of path of this change of a child to a man depends solely upon self-less sacrifice and contributions of the parents. Having regard to the said socio-cultural heritage, the issue is being now considered on interpreting the question of law as involved herein, albeit keeping in mind the eternal conflict of the moral ethics and the law. Hence, considering the moral ethics qua the application of the same in the law, the Court has to consider the aspect. Roscoe Pound in his celebrated lecture ‘the ideal element in law” with reference to the Tagore Law Lectures 1948 had emphasized in the following term “morals are very potential material for the law makers. Morals deal with thought and feelings, while law is related to acts. No doubt law operates through sanctions, but moral principles has to be given legal recognition and how far law can includes morality that has to be considered”. It is the jurisprudential concept to find out the nature of law. It is the idea of Natural Law School to emphasize morality to explain their theory and it always conforms and propounds that moral ideas brings social justice. In Indian concept also right from the Vedic period, natural law philosophy became an integral part of legal, social and political system. Dharma in its issue, since, upon having a root meaning from the word “dhri” which means the thing which upholds and unifies and thereby provides a harmonious social idea by making a contingent situation of leaving to all persons concerned including the soul became a guiding factor and such ideas on the jurisprudential concept ultimately crystallized in our legal system by different enactments. Interpretation of a law must be and should be with that social object by which the ethics, morality and the age-old civilization of a country can be protected and even the smallest fiber as helps to interlink and bonding different relationship, should be maintained Intact. Under such concept of the law qua the morality and ethics, the interpretation of any statute also to be looked into.

7. From the factual matters as appearing from the plaint, written statement and the evidences on records, a fight in between father and son now to be resolved. Learned advocate for the petitioner has vehemently urged that the learned Court below had no jurisdiction to decide the issue in question as there was no applicability of Section 41 of the said Act. It is contended further that the son in a family cannol be deemed as licensee even by any stretch of imagination. Reliance has been made to the judgment passed in the case Conrad Dias of Bombay v. Joseph Dias Bombay, to

substantiate his argument. It is further contended by the learned advocate of the petitioner that the learned Court below acted in excess of his jurisdiction by deciding the title when under the said Act there is no scope to decide such issue and in that view of the matter, the impugned decision is required to be set aside and quashed. Reliance has been placed to the judgment passed in the case Wilfred Lovette v. Ganesh, . On the other hand, learned

advocate for the plaintiff father, the opposite party herein has supported the impugned order under challenge herein on contending, inter alia, that all the materials and ingredients of Section 41 was fulfilled and accordingly there was no jurisdictional error committed by the Court below. It is contended further that the defendant son, the petitioner herein failed to prove his independent title in the property in question and the decision as reached by the learned Court below was very much justified. Considering the rival contention of the parties, the matter now to be decided. The relevant provision of the said Act that is Section 41 is profitable to be quoted hereinbelow, which reads thus:

“41. When any person has had possession of any immovable property situate within the local limits of the Small Causes Court’s jurisdiction and of which the annual value at a reck-rent does not exceed two thousand rupees, as the tenant, or by permission, of another person, or of some person through whom such other person claims, and such tenancy or permission has determined or been withdrawn, and such tenant or occupier or any person holding under or by assignment from him (hereinafter called the occupant) refuses to deliver up such property in compliance with a request made to him in this behalf by such other person, such other person (hereinafter called the applicant) may apply to the Small Causes Court for a summons against the occupant, calling upon him to show cause, on a day therein appointed, why he should not be compelled to deliver up the property.”

8. From the very language of Section 41, it appears that the two conditions to be satisfied namely any person who is possessing the immovable property within the jurisdiction of the Court must be under relationship either as a tenant or by way of permission otherwise with other person who would be the applicant. Now the word “any person or other person” as appearing in the said statute under the Indian family concept as already discussed to be interpreted. A father cannot be said as other person in respect of the son who to be termed as any person. Relationship between father and son is not the relationship of any person and other person but their relationship is father and son in a joint family where father is the head of the family. As per Indian system of family, there is no doubt that sons stay in the house of a father not as a licensee as has been alleged by the plaintiff herein. After the child is begotten in the wedlock, child remains as an integral part of the family and even after when such child grows to a man, relationship and the family tie never to be deemed as ceased and the child turned to a man always remains as member of a family. This Court is in full agreement with the views expressed by His Lordship of Bombay High Court in the case Conrad Dias of Bombay (supra), a relevant portion from the judgment is quoted hereinbelow which to be profitable for adjudication of the case:

“The admitted position is that right from his younger days when the defendant was a minor, the defendant was residing in the suit premises as a son of the father and continued to reside as a member of the family and not under any legal right or legal status. In my considered view, the defendant is residing in the suit premises as a son of the plaintiff and a member of the family and it cannot be a license as defined in Section 52 of the Easements Act. In this connection, I am also fortified by an earlier decision of this Court reported in 1988 Man RCJ 15 (Hoshang Rustomji Dotiwala v. Rustomji Eruchsha Dotiwala) where it has been held that a son staying with father is residing there only as a member of the family and the has no independent right to continue to stay in the premises.”

9. Even by Section 52 of the Easement Act as held by the said judgment, a son cannot be a licensee in respect of the residential house of father for such stay. A son residing in the family with father as a member of the family simpliciter and nothing more and nothing less. Even under the Easement Act there were two components namely they must be two different persons but so far as the relationship of the father and son is concerned it cannot be said as one person and other person for creating a relationship of licensee,

10. In that view of the matter, the plaint as filed by the plaintiff father in the Court below alleging that son was a licensee is not legally sustainable and learned Court below had no jurisdiction to decide the suit as the word “licensee” cannot be imposed in the relationship of father and son. From the evidence on records it appears that when the property was purchased in the year 1980 the defendant son was unmarried and he remained as a family member not only up to his marriage but even thereafter. The father thereafter separated him from the joint mess and allowed him to leave as a family member in another vacant room as was vacated by the tenant, such placement of son to another room and his separate arrangement of fooding and lodging surely will not change the basic nature and character of relationship of father and son and same had no Impact to change the relationship under the category “leave and license”. Since, there is an admission in evidence by the plaintiff father that from the date of purchase of the property, son was leaving in the family as a family member and even after marriage of son, possession was continued, there is a little scope to colour the relationship as “leave and license” and in that view of the matter learned Court below had no jurisdiction to entertain the plaint filed under Section 41 of the said Act.

11. Besides, from the evidences and materials on records it appears that the son raised an independent right over the property claiming title to his proportionate to the share of money as contributed for purchase of the property. Though it is true that in view of the coming into effect of Benami Transaction (Provision) Act, no suit can be filed and no defence can be taken on issue of Benami but same could be decided in a suit, if it is filed. From the evidence, it appears that the petitioner, the defendant therein raised that question about title of the property of the plaintiff contending that suit property was purchased by the money of two sons namely the present petitioner and his another brother in the name of father. The learned Court below had no jurisdiction to decide that question of title, but it appears that the learned Court below decided the title and adjudicated the matter in favour of the plaintiff father on disbelieving the evidence adduced by the defendant son. Believing or disbelieving any evidence is one thing whereas to consider the evidence is another thing, which touches the jurisdictional issue. In the instant case under Section 41 of the said Act while the Court was adjudicating the matter, the learned Court below had limited jurisdiction and in exercise of such jurisdiction, title of the property could not be adjudicated. Reliance may be placed to the paragraph 20 of Wilfred Lovette (supra), which reads as follows:

“In the case reported in 1976 Mah LJ Note No. 32, Page 19 (Abdul Hac v. Smt. Kaisumbi), in a suit for ejectment and arrears of rent, the defendant claimed to be the owner by virtue of a gift and it was held that the Small Causes Court had no jurisdiction to try the suit. In that case, it was held that It was not a case of mere denial of tenancy but defendant had pleaded a positive case claiming title; that the main question involved related to a question of title and that therefore the Small Causes Court had no jurisdiction to try the suit. In the instant case also, the main question relates to the title which has been raised by the appellant and that, therefore, the Small Causes Court has no jurisdiction to decide the suit.”

12. It is now a settled legal position that the Jurisdiction of the Court to be ascertained not only on the basis of the plaint but also from the written statement. Such point has been considered at length by referring other judgments in the case Wilfred Lovette (supra) in paragraph 22, which reads as follows:

“The argument, therefore, that in order to find out whether a suit is cognizable by the Court of Small Causes all that is required is to look into the plaint allegations, cannot be accepted, particularly in view of Clause 4(c) of the Second Schedule of the Provisional Small Causes Courts Act. In other words, if any other substantial issue relating to an interest in the immovable property arises in a suit, even by virtue of defence raised, the jurisdiction of the Small Causes Court is ousted.”

13. Hence, taking into account of the legal position and having regard to the plaint, written statement, this Court is satisfied that learned Court below had no jurisdiction to decide the question of title which was challenged by the defendant son by raising a plea of benami transaction. Though it appears from the impugned judgment and order that in the Court below there was no argument advanced on question of law that within relationship of father and son, there cannot be any relation as licensor and licensee as well as the point that the Court had no jurisdiction to decide the title, but since it is a question of law, this revisional Court has the Jurisdiction to decide the same question of law. Reliance may be placed to the judgment in the case K. Ramanujam Chettiar v. Arunachaleswar Devastanam and Anr., , where it is held that when the question goes into the root of the matter namely the jurisdiction even if is raised for the first time before revisional Court, same can be adjudicated. In that view of the matter this revisional application succeeds, the impugned order is set aside and quashed. The learned Court below is directed to return the plaint to the plaintiff who would be at liberty to agitate his grievance in appropriate form.

14. At the conclusion, I must emphasize the point that to keep the family tie intact and having regard to the age old heritage of the Indian Civilization, which always in favour of a joint family with all members namely parents, son, daughter, daughter-in-law etc., only the personal approach would resolve the present issue. It is expected that good values will prevail over in the mind of both the parties. Plaintiff father will try to win the heart of son who may have suffered injury due to some action and/or reaction by providing more love and affection to him and at the same time the defendant son, the petitioner herein also will surrender to the father to seek his blessings which really is an asset for a peaceful leaving and would be beneficial for his son also. Without the blessings of the parents, children cannot grow and cannot leave peacefully. Court expects that the party will settle and resolve the dispute amicably. However, in view of quashing and setting aside of the judgment and order impugned holding that the learned Court below had no jurisdiction, the plaintiff opposite party would be entitled to have the remedy in any appropriate form by appropriate proceeding and the findings and observation of the learned Court below which had been set aside and quashed would not be attracted by the doctrine of res judicata. Revisional application is accordingly allowed.


Let urgent xerox certified copy of the order, if applied for, be supplied expeditiously.

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