BOMBAY HIGH COURT ALLOWS DECREE OF POSSESSION OF SUIT PROPERTY IN FAVOR OF THE RESPONDENT ON THE BASIS OF WILL EXECUTED IN HER FAVOR

A Single Bench of the High Court of Judicature at Bombay at Nagpur Bench comprising of Justice Urmila Joshi-Phalke passed a Judgment dated 07.06.2023 in a recent case of Smt. Sheela Assav Thomas and Others vs. Swarnalata, Second Appeal No. 235 of 2022 and observed that the Respondent, Smt. Swarnalata, established (i) the genuineness of the Final Will executed by the Testatrix, Smt. Ruth Wasnikar, in favor of the Respondent and (ii) the revocation of earlier Wills, owing to the change in circumstances and the hostile attitude of the Appellants towards Smt. Ruth Wasnikar. As a result, the Respondent was held entitled to Decree of Suit for Possession against the Appellants herein.

Facts

(1) In the present case, one, Smt. Swarnalata (Respondent), wife of Shri. Deepak was residing on the ground floor of the property bearing Plot No.82 and 92 admeasuring 172.93 Sq. Mtrs. situated in City Survey No.388 at Ambedkar Nagar, Nagpur (Suit Property). Further, one, Smt. Sheela Assav Thomas (Appellant No. 1), wife of Shri. Assav Thomas (Appellant No. 2) and niece of Swarnalata’s mother-in-law, Smt. Ruth Wasnikar was residing on the first and second floors of the Suit Property with Smt. Ruth Wasnikar.

(2) The Respondent herein filed a Regular Civil Suit bearing No.2571 of 2012 before Ld. Joint Civil Judge Senior Division, Nagpur (Trial Court) seeking possession of the Suit Property from the Appellants No. 1 and 2 herein (Suit for Possession).

(3) Earlier, some disputes arose between the Respondent and her husband and since then, the Respondent’s mother-in-law, Smt. Ruth Wasnikar has been residing separately on the first / second floors of the Suit Property.

(4) Previously, the Respondent filed a Suit for Partition bearing Special Civil Suit No.919 of 1991 (Partition Suit) against her mother-in-law, Smt. Ruth Wasnikar before the Ld. Trial Court seeking partition of the Suit Property in her and her minor daughter’s favour.

(5) The Ld Trial Court passed an Order dated 13.12.1994 in the aforementioned Partition Suit and granted 50% share in the Suit Property in favor of the Respondent and her minor daughter and 50% share in favor of Smt. Ruth Wasnikar.

(6) However, the Respondent’s daughter passed away on 08.12.2000, hence, the Respondent became the sole owner of the Suit Property to the extent of their 50% share.

(7) Thereafter, the Respondent filed for final decree proceeding in the Partition Suit.

(8) During the pendency of the Final Decree proceeding, both the Parties, i.e. the Respondent and her mother-in-law arrived at a settlement and filed a joint memo stating that they do not want to proceed further and thereby, withdrew the final decree proceeding. Thus, there was no final decree as to partition of the Suit Property.

(9) But owing to certain disputes between Smt. Ruth Wasnikar and her niece, i.e. the Appellant No. 1, Smt. Ruth Wasnikar was thrown out of the Suit Property on 20.01.2003 by the Appellants. Aggrieved, Smt. Ruth Wasnikar started residing with the Respondent on the ground floor of the Suit Property. Further, Smt. Ruth Wasnikar also lodged a report against the Appellants and leveled allegations that the Appellants have taken advantage of her old age and prepared false documents to grab her share of the Suit Property.

(10) Earlier, the Appellants had filed Special Civil Suit bearing No. RCS 209 of 2003 before the Ld. Trial Court seeking specific performance of contract against Smt. Ruth Wasnikar. (Specific Performance Suit)

(11) The Respondent herein filed an intervention application in the Specific Performance Suit, which was allowed. She filed her written statement along with counter claim for damages in respect of the ground floor of the Suit Property, stating that the Appellants caused damage to the ground floor on account of renovation.

(12) Thereafter, the Specific Performance Suit filed by the Appellants and the Counter Claim filed by the Respondent in the Specific Performance Suit were dismissed by the Trial Court.

(13) Aggrieved, the Appellants and the Respondent both approached the Ld. District Judge-1, Nagpur (First Appellate Court) in First Appeal Nos. 934 of 2009 and 1424 of 2009. Both the Appeals were dismissed by the First Appellate Court, vide Order dated 14.09.2010.

(14) In the meantime, the Respondent filed Regular Civil Suit No.151 of 2007 before the Small Causes Court at Nagpur against the Appellants seeking recovery of rent and eviction (Eviction Suit) in respect of the Suit Property, where the Appellants were residing with the intention to grab the Suit Property. This Eviction Suit was later withdrawn by the Respondent, after which, she filed the aforementioned Suit for Possession against the Appellants.

(15) Meanwhile, Smt. Ruth Wasnikar died on 14.03.2013. During her lifetime, she had executed a Final Will dated 10-02-2003 in favor of the Respondent and thereby bequeathed the entire Suit Property in favor of the Respondent. She had earlier executed few Wills, which were later revoked by Smt. Ruth Wasnikar and the Final Will dated 10-02-2003 was executed.

(16) Thereafter, the Respondent filed Amendment Application in the aforementioned Suit for Possession on the ground that she had become the sole owner of the Suit Property on the basis of the Final Will executed by Smt. Ruth Wasnikar.

(17) The Ld. Trial Court decreed the aforementioned Suit for Possession in favor of the Respondent and further directed the Appellants to hand over possession of the Suit Property to the Respondent.

(18) Aggrieved, the Appellant approached the First Appellate Court in Civil Appeal No.392 of 2019, which was dismissed.

(19) Aggrieved, the Appellant filed Second Appeal No. 235 of 2022 before the High Court Judicature at Nagpur Bench.

High Court Observations

The High Court vide Order dated 07.06.2023 made the following observations in Second Appeal No. 235 of 2022:

(i) That in Coffee Board v/s. M/ s Ramesh Exports Pvt. Ltd, AIR 2014 SC 2301, the Supreme Court interpreted Order 2 Rule 2 of CPC (Suit to include the whole claim) and held that a suit would be barred under Order 2 Rule 2 CPC (a) if the cause of action is same as that of the previous suit, (b) if the same cause of action forms the foundation of the subsequent suit; (c) when the plaintiff could have claimed the relief sought in the subsequent suit, in the earlier suit itself; and (d) both the suits are between the same parties.

(ii) In the present case, the Appellants contended that the Suit for Possession (2012) is barred under Order 2 Rule 2 CPC, as the same relief and cause of action i.e. possession of the Suit Property formed the basis of the earlier Eviction Suit (2007) and Counter-Claim filed in the Specific Performance Suit (2003). However, in the earlier 2007 and 2003 Suits, the Respondent only sought for eviction of the Appellants from the Suit Property and claimed damages in respect of the ground floor of the Suit Property respectively. Thereafter, the Eviction Suit was withdrawn by the Respondent before filing the Suit for Possession. Whereas, in the 2012 Suit for Possession, the Respondent sought for possession of the entire Suit Property based on the Will executed by Smt. Ruth Wasnikar in her favor. Hence, the cause of action and reliefs sought in the earlier Suits and the Suit for Possession are different and thus, the bar under Order 2 Rule 2 CPC would not operate against the Suit for Possession.

(iii) That the Respondent further established the genuineness of the Will by examining witnesses who had attested the Will and thereby, testified that (a) the mental condition of Smt. Ruth Wasnikar at the time of making the Final Will was stable and (b) the earlier Wills executed in favor of the Appellants were revoked before executing the Final Will in favor of the Respondent.

Conclusion

Thus, based on above said observations, the High Court observed that the Respondent established the genuineness of the Final Will and that Smt. Ruth Wasnikar had bequeathed the Suit Property to the Respondent by executing the Final Will and revoking her earlier Wills, owing to the change in circumstances and the hostile attitude of the Appellants towards Smt. Ruth Wasnikar. Thus, based on the contents of the Final Will, the Respondent became owner of the entire Suit Property and thereby, held entitled to possession thereof. As a result, the High Court upheld the First Appellate Court Order that allowed the Trial Court Order directing the Appellants to hand over possession of the Suit Property to the Respondent.

Suneel Jaiswal

Associate

The Indian Lawyer