Notice of Motion No. 1113 of 1995,In Suit No. 1469 of 1995

13th August, 1997

Petitioner Counsel: JANAK DWARKADAS with RAVI KADAM i/b HUMRANWALA & CO.
Respondent Counsel: I.M. CHAGLA with Mr. F.E. DIVETRI & D.J. KHAMBATA i/b FEDERAL & RASHMIKANT

Cases Cited:
AIR 1991 Delhi 325 [Para 7]
AIR 1996 SC 941 [Para 7]
1973 M.L.J. 771 [Para 7]
AIR 1978 Cal. 32 [Para 7]
AIR 1978 Bom. 290 [Para 7]
AIR 1934 Bom. 329 [Para 7]
AIR 1926 PC 18 [Para 7]
Appeal No. 332/91 dt. 22-4-1991 [Para 8]
AIR 1994 SC 853 [Para 8]
AIR 1954 SC 526 [Para 8,9]
1993 Supp. (2) SCC 560 [Para 8]
AIR (33) 1946 PC 63 [Para 8]
AIR 1930 Cal. 32 [Para 9]
AIR (33) 1946 PC 59 [Para 9]

JUDGMENT

JUDGMENT :- This suit has been filed for a declaration to the effect that the plaintiffs are the owners of half undivided share of the suit premises being Flat Nos. 31 and 32, Belle View, 85 Bhulabhai Desai Road, Bombay- 400026, more particularly described in Schedule at Exhibit-A to the plaint and delineated in the sketch at Exhibit-B, and for partition of the same by metes and bounds and the plaintiffs be put in possession of half portion thereof. In the alternative, it is prayed that in the event the Court holds that the suit premises are incapable of being partitioned by metes and bounds the same be sold by and under the directions of this Court and the plaintiffs be paid their half share out of the sale proceeds.

2. This Notice of Motion has been taken out with a prayer that pending the hearing and final disposal of the suit, Court Receiver, Bombay be appointed as Receiver of the suit premises with all powers under Order 40, Rule 1 of the C.P.C. including powers to partition the suit premises and put the plaintiffs in possession of half portion of the suit premises on such terms and conditions as this Hon'ble Court may deem fit and proper. It is also prayed that the defendant Nos. 1 to 6 be restrained by an order and injunction from dealing with, disposing of, alienating or parting with possession of the suit premises. Voluminous pleadings have been filed by both the parties. Affidavit in support of the Notice of Motion has been filed, followed by affidavit in reply, rejoinder, sur-rejoinder and sur-sur-rejoinder.

3. Plaintiff No.1 is the widow of one Shiva Pada Roy, hereinafter called "the deceased" who passed away on 20th November, 1983, Plaintiff Nos. 2 and 3 are the sons of the deceased whereas defendant No.7 is the married daughter of the deceased. The deceased died intestate. The plaintiffs and defendant No. 7 are the only heirs and legal representatives of the deceased. The first defendant is the elder brother of the deceased. Defendant No.2 is the wife of defendant No.1, Defendant No.3 is the son of defendant Nos. 1 and 2. Defendant No. 4 is the wife of defendant No.3. Defendant No.5 is the daughter of defendant Nos. 1 and 2. Defendant No.6 is the husband of defendant No.5.

4. According to the plaintiffs, deceased and the first defendant were joint in residence and business and lived as one family. Almost all immovable properties were jointly owned either in the joint names of the deceased and the first defendant or in the joint names of the respective spouses i.e. plaintiff No.1 and defendant No.2, Almost all business and trading concerns were jointly owned. Even though certain businesses were carried on in partnership with third parties, the deceased and his family members on the one hand and the defendant Nos. 1 to 4 on the other hand, were always equal partners in such partnership concerns and firms. Prior to 1962 both the brothers lived in a residential flat at Chandralok Building, Manav Mandir Road, Malbar Hill, Bombay - 400 006. Defendant No.1 came to Bombay in 1943. Four brothers viz. L.M. Roy, K.P. Roy, S.P.Roy (deceased) and H.P. Roy (Defendant No.1) lived together at K.P.Roy's residence at Opera House. In 1952 L.M. Roy, S.P.Roy and defendant No.1 moved to rented premises at Andheri. In 1953 defendant No.1 purchased a flat at Anand Nagar, Forget Street. The deceased also moved into the same flat. In 1959 defendant No.1 purchased flat at Chandralok. There also both the families resided together. Defendant No.1 sold Chandralok flat in 1962. In the same year the two brothers jointly acquired the suit premises consisting of flat Nos. 31 and 32. The flats together admeasure approximately 1500 sq. ft. After taking possession of the said premises the families of the two brothers started residing therein. The two families resided together at the suit premises till about 1968. At all material times the two brothers were co-owners of the suit premises. During that time the suit premises were treated as one flat with a common kitchen. Sometime in or about 1968 the brothers purchased a flat bearing No. 96 on the 12th floor of building known as Mount Unique at Peddar Road, Bombay-26 in the joint names of their respective spouses i.e. the fist plaintiff and the second defendant. Both the families again shifted to the flat at Peddar Road. Since the Belle View premises fell vacant it was agreed between the brothers to permit the same to be occupied by leave and licence basis by third parties. In 1971 by a leave and licence agreement the suit premises were given to a company called Chase Bright Steel Ltd., together with the garage on a monthly compensation for the said leave and licence at Rs. 1300/- consisting of Rs. 1,000/- for the two flats and Rs. 300/- towards monthly charges. The compensation received from the Chase Bright was divided by the two brothers in equal shares. In 1979 plaintiff No.2 got married. Therefore, the brothers requested Chase Bright to vacate the suit premises. Upon their refusal, advocate's notice dated 5th April, 1979 was addressed by the brothers to chase Bright. Ultimately the brothers as co-plaintiffs jointly instituted RAE Suit No. 1649/5832 of 1980 against the Chase Bright Steel Company for recovering possession of the suit premises, inter alia, on the ground of bona fide personal requirement under section 13(1)(g) of the Rent Act. In this plaint it is stated that the plaintiff requires the suit premises reasonably and bona fide for the use and occupation of S.S. Roy, the son of plaintiff No.2 therein (deceased). The plaint also states that the daughter (defendant No.5) and the son in law (defendant No.6) will also have to be accommodated in the said suit premises. It was, therefore, stated that the plaintiff requires the suit premises reasonably and bona fide for use and occupation of the daughter of plaintiff No.1 therein and her husband who have no premises of their own. The plaint was amended after the death of S.P. Roy. Names of the plaintiff Nos. 1, 2 and 3 were brought on the record as plaintiff Nos. 2(a)(b) and (c). The suit was decreed on 20th April, 1988. When the plaintiffs went to execute the said decree on 30th April, 1988 the same was obstructed by one Kailashkumar Jajodia. The plaintiffs, therefore, took out Obstructionist Notice No. 70 of 88. The said notice was made absolute on 19th March, 1990. Jajodia preferred an appeal before the Appellate Bench of the Small Causes Court at Bombay. The said appeal was dismissed on 25th August, 1993. Defendant No.1 has filed an affidavit seeking expeditious hearing of the appeal. Writ Petition No. 4492 of 1993 was filed against the dismissal of the appeal. The writ petition was dismissed on 5th November, 1993. Special Leave petition No. 2184 of 1993 was also dismissed on 10-1-1994. The Supreme Court, however, directed that the order of eviction should not be executed for a period of six months. The period of six months expired on 10th July, 1994. Eventually on 13th July, 1994 the Bailiff attached to the Small Causes Court executed the warrant of possession by breaking open the latch of the suit flats and the lock of the garage. The possession was handed over to plaintiff No.3. He, however, handed over the keys of the suit premises to the first defendant who was treated as the Head of the family. Uptill this time there was no dispute between the families. On the very next day i.e. 14th July, 1994 plaintiff No.3 suffered a severe paralytic stroke. He was hospitalised and was in hospital till 30th July, 1994. From July, 1994 to April, 1995 renovation work was in progress in the suit premises. It was always understood between the parties that on recovering the suit premises plaintiff No.3 (who is the youngest son of the deceased) would occupy half portion of the premises. It was also the accepted position that the remaining half share would be occupied by defendant No.5 and her husband. For this purpose it was agreed that the suit premises would be partitioned and both the families of Plaintiff No.3 and defendant Nos. 5 and 6 would occupy equal areas of the suit premises. The aforesaid arrangement was made because plaintiff No.3 was undergoing considerable difficulty having no proper accommodation and was occupying a one room kitchen premises at Prabhadevi on a paying guest basis. The monthly compensation was Rs. 9500/- per month. This fact is admitted by the defendant No. 1 in paragraph 5 of his affidavit dated 4th February, 1992. This affidavit is attached to the plaint as Exhibit-N. On 14th April, 1995 defendant No.1 refused to put the plaintiff No.3 into possession of half share of the suit premises. Defendant No.1 suggested that the plaintiffs should take some monetary compensation for the half share and give up their interest in the suit premises. The defendant No.1 has committed complete breach of trust under the influence of his daughter and son in law. Plaintiff No.3 has been pursuing all the litigations in the Small Causes Court on behalf of the entire family. In the circumstances the plaintiffs have been constrained to file the present suit and has taken out the Notice of Motion.

5. According to the defendants, the correct facts are that defendant No.1 came to Bombay from East Bengal in 1943. The four brothers resided together at K.P. Roy's residence. In 1952 L.M. Roy, S.P. Roy and defendant No.1 moved to the rental premises at Andheri. In 1953 defendant No.1 purchased the flat at Anand Nagar and accommodated the deceased in the flat without any compensation. Defendant No.1 was initially employed as a Clerk in a Bank. At the same time he was doing business in Automobile Spare Parts. In 1958 the deceased was inducted into the existing partnership firms. No capital contribution was made by the deceased. In 1959 defendant No. 1 purchased the Chandralok flat. Both the families resided in the said premises. That flat was sold by the defendant No.1 in 1962. In November, 1962 defendant No.1 purchased the suit flats from one Saraswati Narayan Singh. She accordingly informed the society that she has sold the suit flats to defendant No.1" a merchant of Bombay". The entire sale consideration for the suit flat was paid by defendant No.1 alone. On 21-1-1963 Saraswati Narayan Singh again writes to society informing them about the sale of the suit flat. Society, however, refused to transfer both the flat Nos. 31 and 32 to defendant No.1's name because bye law 9(b) of the society prohibited any member of the society from holding more than one flat. Thus to avoid delay defendant No.1 asked the society to register transfer of flat No.32 in the name of his brother S.P. Roy (deceased). Thus share certificate No. 52 (for 5 shares) was issued in defendant No. 1's name and share certificate No. 53(for 5 shares) was issued in the name of the deceased. All ownership rights and obligations in respect of the 2 flats were exercised and discharged by defendant No.1. He made payments of outgoing in respect of both the flats. The society however issued separate bills to defendant No.1 and the deceased in respect of flat Nos. 31 and 32 respectively. The flat at Mount Unique was acquired by plaintiff No.1 and defendant No.2 jointly through loans from the partnership firms of Automative Manufacturing Agency and Sunder Trading Company. The leave and licence agreement with Chase Bright was also executed by defendant No.1. In the said agreement defendant No.1 alone is described as the licensor. All the compensation received have been credited to the Bank account of defendant No.1. In February, 1972 defendant No.1 purchased flat No.1 in Suraj Prakash Co-op. Housing Soc. Khar. The deceased and his family shifted to the said flat. This flat was however sold in 1976. Thereafter defendant No.1 purchased 3 flats in Bandra. The deceased and his family thereafter shifted to the said flat. Wealth tax return valuation was filed by the deceased only in respect of flat No. 32 on 15th Nov. 1976. In 1977 Flat no. 43 in park West was transferred in the name of the deceased. Thereafter flat Nos. 41 and 42 were exchanged by defendant No. 1 for 50 per cent share of plaintiff No.1's share in Flat No. 96, Mount Unique. On 31st March, 1981 the flat Nos. 41 and 42 were transferred in the name of plaintiff No. 1. On 31st March, 1981 defendant No.1 wrote to the Park West Society to intimate the exchange and to effect registration of flat Nos. 41 and 42 in the name of plaintiff No.1. Similarly on 11th November, 1981 plaintiff No.1 wrote to Mount Unique Society to effect the registration of share certificates in the name of defendant Nos. 1 and 2 who were already 50 per cent owner in flat No. 96, Mount Unique. The suit in the Small Causes Court was filed jointly. It is, however, nowhere stated that plaintiffs are owners of the suit flat on a co-ownership basis. The suit as initially filed, inter alia, proceeds on the bona fide requirement of plaintiff No.2 of the said flat. Upon the death of younger brother, the plaint is amended as stated earlier. Defendant No.1 has continued looking after and assisting the plaintiff since the death of his younger brother. On 14th May, 1987 defendant No.5 married defendant No.6. Defendant No. 5 did have any accommodation of her own and, therefore, she had a bona fide requirement of the suit flat. Plaintiffs on other hand in 1987 sold the 3 flats at Park West Society and purchased two flats both consisting of two bed rooms, hall, kitchen, two toilets on the ground floor with attached exclusive garden in the Shere Punjab Society, Andheri. Thus in the year 1988 the suit is amended to include the ground of bona fide requirement of the defendant No.5 for the suit flat. The suit came to be decreed on 20th April, 1988. When the warrant of possession was executed by the bailiff, defendant Nos. 1, 5, 6 and plaintiff No.3 were present. New locks purchased by defendant No.1 were put on the door. Keys were handed over to defendant No. 6 who handed over to defendant No.1. On the request of defendant No.1 and on his behalf plaintiff No.3 subsequently signed the report etc. Defendant Nos. 1 and 5 undertook extensive repairs in the renovation of the Suit flat No. 31. Some minor repairs were also done in flat No.32. Thereafter negotiations were held between the parties for sale of flat No. 32.

6. This Notice of Motion came up for hearing on 24th April, 1995. Ad-interim Court Receiver was appointed with a direction to divide the suit premises equally and to put the plaintiffs in possession of one half portion thereof as agents of the Receiver on such terms and conditions as the Receiver may deem fit but without security and without payment of any royalty charges. It was also directed that the receiver shall permit the other half portion to be occupied by such of the defendants who are presently occupying the suit premises as his agent on similar terms. On 5th May, 1995 a Division Bench of this Court declined to stay the operation of the order dated 24th April, 1995. S.L.P. filed against the said order was dismissed. Thereafter the appeal came up for hearing on 5th June, 1996. The appeal was not pressed. Hearing of the Notice of Motion was expedited. It was also observed that the Single Judge should hear the Notice of Motion without being influenced by the observations made at the stage of ad-interim order.

7. I have heard Mr. Dwarkadas, learned Counsel appearing for the plaintiff and Mr. Chagla, learned Counsel appearing for the defendants at length. Mr. Dwarkadas has submitted that the defendants had made admissions during the proceedings before the Small Causes Court, wealth tax and Income-tax authorities to the effect that the deceased and defendant No.1 were having joint ownership of the suit flat and that they were joint in residence and business. The plaint was filed jointly by the defendant No.1 and the deceased. A perusal thereof would show that the same has been filed on the bona fide requirement of plaintiff No.2. On the death of S.P. Roy the plaintiffs were impleaded as his heirs and legal representatives. Specific reference is made to paragraphs 2, 4, 5, 5-A and 5-B to show that the two families were always treated as joint and the defendant No.1 always acted as head of the family. Thereafter Counsel has referred to affidavit of defendant No.1 (Exhibit-N) filed in the Small Causes Court on 4-2-1992 wherein the urgent need to accommodate plaintiff No.3 is pleaded. Counsel has then referred to the statement made on oath by defendant No.1 in the suit on 30th April, 1988. The facts as stated by the plaintiffs are admitted by the defendant No.1. It is submitted by the Counsel that the evidence having been given on oath the plaintiffs are entitled to base their claim on the same. Also the defendants cannot now be permitted to state that the admissions made in the Small Causes Court were made in order to obtain a decree of possession against Chase Bright. Counsel further submits that similarly the admissions made by defendant No.1 before the Wealth tax and Income-tax authorities cannot be ignored. This will be against the public policy. Unless proved otherwise the statements have to be treated as truthful representation of the facts stated therein. Before the revenue authorities the defendant No.1 has not claimed that he is the sole owner of the suit premises. In the returns filed before the Income-tax authority, compensation received from M/s. Chase Bright has been claimed half and half. Before the Wealth tax authorities also it is shown that defendant No.1 is 50 per cent owner of the suit premises. However, in order to get out of the returns defendant No.1 has disowned the statements by stating blatant lies. Consequently it is submitted by the Counsel that the defendants cannot be permitted to approbate and reprobate. They are also estopped from claiming that inspite of the statements made on oath there is no joint ownership of the suit premises. In any event a party which has admittedly made false statements before the Court, the Wealth tax and Income-tax authorities cannot be granted any equitable relief. The defendant has distorted the true facts and has, therefore, tried to overreach this Court. In these circumstances the defendants have clearly exposed the falsity of their stand. In support of the aforesaid propositions Counsel has relied upon the provisions of Order 12, Rule 6 of the C.P.C., A.I.R. 1991 Delhi 325 (Chiranjilal v. Bhagwan Das), A.I.R. 1996 S.C. 941 (Raj Kumar v. Official Receiver of the Estate of M/s. Chiranji Lal Ram Chand), 1973 M.L.J. 771 (Madhao v. Yeshwant), Section 115 of the Evidence Act, A.I.R. 1978 Calcutta 32 (Khondkar Mahomed Seleh v. Chandra Kumar Mukherji and ors.), A.I.R. 1978 Bombay 290 (Krishnabai v. Baburao), A.I.R. 1934 Bombay 329 (Chidambargauda v. Channappa Mahalingappa and Ors.), and A.I.R. 1926 Privy Council 18 (Gajapatiraj v. Secretary of State).

8. Mr. Chagla on the other hand submits that the dishonesty of the defendant is not at all relevant. The plaintiff has to prove its case on its own merits. Plaintiff has to prove that he has title in the property. It can be demonstrated that in reality defendant No.1 is the true owner of the suit premises. Agreement for sale of the suit premises categorically states that the said flat has been sold to defendant No.1. Consideration for the said flat has been paid by the defendant No.1. The allegations about the joint ownership are wholly false within the knowledge of the plaintiffs. Even if the flat is purchased out of the funds of the partnership it would not mean that the flat is jointly owned. In fact, the whole consideration has been paid out of the personal accounts of defendant No.1. The defendant No.1 and the deceased were members of the partnership firm along with other partners but the impression has been given that the partnership firm consisted of only two partners being defendant No.1 and the deceased. The vague claims made by the plaintiffs cannot enable the plaintiffs to merit any relief. According to the Counsel all these vague claims can be culled out from a reading of the rejoinder filed by plaintiff No.1. In paragraph 4 of the rejoinder it is stated that the funds which are employed for the purpose of the suit flat were joint partnership funds in which the deceased and the first defendants were equal partners. Payments were made directly out of the partnership account or out of the partnership fund transferred by the first defendant into his personal account. The suit premises were in fact purchased from payments made out of the partnership funds and not out of the personal account of the first defendant as alleged. The wealth tax returns of defendant No.1 consistently showed debit balance in his capital accounts in the two firms. On the other hand the bank statements of the deceased do not show transfers of any significant amount into his personal account. Similarly numerous instances were quoted where the amounts have been transferred from the partnership account to the personal account of the defendant No.1. According to the Counsel, these averments do not advance the case of the plaintiff to show that defendant No.1 was co-owner of the suit premises with the deceased. With regard to the agreement with Saraswati Narayan Singh it is stated in the rejoinder that the agreement was entered into between the defendant No.1 and Singh, treating defendant No.1 as the head of the family. Defendant No.1 was at all time a trustee for the half share of the suit property. This is evident from the fact that soon after the execution of the agreement one of the flats was in fact transferred to the name of the deceased in the Society's account. Counsel further points out that even in the plaint it is nowhere pleaded that the plaintiffs are co-owners of the flat. The same is, however, pleaded in the rejoinder. Therefore, it is submitted that the plaintiffs were not sure of their claim in the suit premises. With regard to the statements made in the Small Causes Court it is submitted that the statements made are consistent with the claim put forward by the defendant No.1 to the effect that the deceased is the owner of flat No.32 and defendant No.1 is the owner of the flat No. 31. The said flats are given on leave and licence basis to Chase Bright. The licence agreement is executed only by the defendant No.1. Record of the Co-operative society shows at best that the deceased was the owner of flat No.32. In regard to the wealth tax returns, it is submitted that the plea put forward by the plaintiffs is not correct. A perusal of the return filed by defendant No.1 as on 31-3-1970 shows immovable property in the amount of Rs. 50,000/-. Same is the position in the returns filed on 31st March, 1972, and in 1975-76. The correct position according to the Counsel, is depicted in the report of valuation of immovable property dated 31st March, 1976. In this against the column of ownership it is clearly stated that defendant No.1 is the sole owner of residential premises on 3rd floor flat Nos. 31 and 32 of the building called Belle View Co-op. Housing Society. However, with regard to this valuation report, the plaintiffs have stated that the same has been obtained by the first defendant for purposes other than the wealth tax. This is evident from the fact that even after the said valuation report was prepared the wealth tax returns of the two brothers continued to show the same basis of valuation. Counsel submits that for whatever reason the valuation report was obtained the evidentiary value cannot be brushed aside. Counsel submits that there is weightly evidence in favour of the defendant No.1. The agreement with Mrs. Singh is executed solely by defendant No.1. Society record shows that flat No.32 is the ownership of deceased and flat No.31 is the ownership of defendant No.1. All the maintenance bills had been paid by the defendant No.1. Share certificates show that there are two owners of flat No.31 and Flat No.32. Agreement with Chase Bright was entered into by defendant No.1. The entire amount of compensation paid by Chase Bright has been deposited in the personal account of defendant No.1. All the outgoings with regard to suit property has been paid by defendant No.1. Valuation report of flat No.32 shows that defendant No.1 is the sole owner of the suit flat No. 31. The income tax returns show that the rent has been received in favour of flat No.32. It is further the submission of Mr. Chagla that the submissions and admissions made in the Small Causes Court are not binding on the defendant No.1. In fact, there is no admission in the Small Causes Court to the effect that defendant No.1 and deceased are co-owners. There is also no admission to the effect that they are equal co-owners. If anything, at best, it could be said that deceased is the owner of flat No. 32nd defendant No.1 is the owner of flat No.31. In fact, the deceased himself has been representing that he is the owner of flat No.32. He has continuously declared a sum of Rs. 6,000/- received on account of rent in the Income-tax returns for the years 1978-79, 1979-80, 1980-81, 1981-82, 1982-83, 1983-84 and 1984-85. In view of the above it is submitted by Mr. Chagla that the plaintiff has miserably failed to establish a prima facie case for the grant of any interim relief. In support of the claim Mr. Chagla has relied upon an unreported judgment given by the Division Bench of this Court dated 22nd April, 1991 in Appeal No. 332 of 1991 and others (Maganlal Kuberdas Kapadia v. Themis Chemicals Ltd. and M/s. Orgachem Enterprises and others), A.I.R. 1994 S.C. 853 (S.P. Chengalvaraya Naidu v. Jagannath), A.I.R. 1954 S.C. 526, (M.M.B. Catholicos and Another v. M.P. Athanasius), 1993 Supp. (2) Supreme Court Cases 560 (Shri Chand v. Inder and others), and A.I.R. (33) 1946 Privy Council 63. (E.L. Ebrahim Lebbe Marikar v. Austin De Mel Ltd.).

9. Having considered the arguments of both the Counsel at length, I am of the considered opinion that the plaintiffs have succeeded in making out a prima facie case. A perusal of the plaint filed in the Small Causes Court prima facie shows that defendant No.1 and the plaintiff were joint in the ownership of residence and business. Certain averments made therein may be noticed. A perusal of the plaint will show the following averments.

"The said agreement has been executed by the 1st plaintiff on behalf of the both plaintiffs and by the defendants"

"The plaintiffs require the premises, bona fides and reasonable use and occupant of Shuvendu S. Roy, the son of the second plaintiff, who has been recently married and he required the suit premises for his residence. The plaintiffs are undergoing great hardship for want of sufficient accommodation for Shri Shuvendu S. Roy".

"5. The Plaintiffs require the said premises for the bona fide and reasonable use and occupation of Shuvendu S. Roy, the son of the second plaintiff for whose benefits the plaintiffs are holding the said premises. The present accommodation as insufficient for accommodating Shuvendu S. Roy. The defendants will not experience any inconvenience if a decree is passed in favour of the plaintiffs and against the defendants as prayed hereinafter. The plaintiffs will suffer irreparable loss, inconvenience, hardship if a decree is not passed against the defendants."

"5A. The plaintiffs say that the plaintiff No.1 and plaintiff No.2 always looked upon themselves as members of the same family and that the plaintiff No.1 was the head of the said family. The plaintiffs say that after the death of plaintiff No.2 which occurred on 21-11-83 the plaintiff No.1 continued to be the head of the family consisting of himself, his wife, his two children widow of plaintiff No.2 and his two sons and one daughter. The plaintiff No.1 says that he requires the suit premises reasonable and bona fide for the use and occupation by Shuvendu S. Roy the son of plaintiff No.2."

A perusal of the aforesaid averments will clearly show that defendant No.1 has held himself out to be head of the Joint family of the deceased and himself. The premises have been got vacated on the basis of the pleadings extracted above. Part of these pleadings were reiterated by the defendant No.1 in the affidavit dated 4-2-92 in which it is categorically stated that the need of plaintiff No.3 is urgent as he is having to pay heavy amount of rent every month. The aforesaid pleadings are reiterated in the evidence given by defendant No.1 on oath. In the statement made in the Small Causes Court on 30th April, 1986 defendant voluntarily states as follows.

"I am the plaintiff No.1, The plaintiff No.2 has died during the pendency of the suit and the plaintiffs No. 2a to 2c are brought on record in his place as heirs. We are the owners of the suit premises situated in the building known as Belle View Co.op. Society Ltd., 85 Warden Road, Bombay-36. I say that the suit flat bearing No.31-32 and a garage premises is situated in the said building."

"I am the elder brother of late H.P. Roy. In the year 1943 I first came to Bombay from Calcutta. I have started business of Automobile Spare Parts business. Late S.P. Roy came later on in 1945. I brought him to Bombay. Late S.P. Roy was working in Tata Co. and later on he joined my business. Even today there is a joint family of mine and late S.P. Roy and myself is the head of the family.

"Plaintiff No.2 died in Nov. 1983. After his death I am looking after his family.

The Plaintiff No.2-B Shubendu is son of S.P.Roy. I say that he is married and he has got one daughter aged 3 years. I say that he got married in 1979. I say that now I want to accommodate plaintiff No.2-B in the suit premises."

"I deny that I am deposing falsely for getting the vacant possession of the premises."

In Chiranjilal's case (supra) it is held that the income tax and wealth tax assessment orders are not admissible in evidence under section 40 to 42 of the Indian Evidence Act but they are definitely admissible in evidence under section 43 as they contain the admissions of the defendants with regard to shares which they were having in the property in question. In Raj Kumar's case (supra) the Supreme Court has approved the observations of the High Court to the effect:

"Once the admission is proved, the burden is shifted on the maker thereof to explain the circumstances under which the same was made. What as party himself admits to be true may reasonably be presumed to be so and until the presumption was rebutted the fact admitted must be taken to be established."

In paragraph 8 of the judgement it is held that.

"In view of the discussion of various items by the High Court and the conclusion reached on the basis thereof, we entirely agree with the High Court that the admissions bind the appellants."

The observations of the High Court are reproduced in para 6 of the judgement which are as follows :-

"6. The question then is whether in items 1 and 3 as noted by the High Court, the insolvent had 1/3rd share. The question was considered in extenso and it was held that the solvent had 1/3rd share in item 1 and 3. The High Court noted in the order the admissions thus :

"Wherein admissions regarding property at Item No.1 have been made by the respondent Nihal Chand, such as A.W. 1/4 evidence given by Nihal Chand, A.W. 5/7 written statement of Nihal Chand dated 26-8-57, A.W. 2/3 dated 8th October, 1965, an application filed on behalf of Nihal Chand claiming 1/3rd share in this property; A.W. 5/6 application dated 29-7-54 by Nihal Chand, A.W. 4/1 the desolution deed, A.W. 6/2 the copy from the entries of register of the property tax for the years 1956 to 1961; A.W. 6/3 for the years 1960 to 1965; A.W. 6/9 for the years 1965 to 1970, in which the share of Chiranji Lal insolvent has been shown as 1/3rd. All this evidence has been relied upon by the trial Court and the lower Appellate Court has also observed, that 'from the perusal of these documents, it is well likely clear, that these documents are only admissions of either Nihal Chand or Chiranji Lal, insolvent. The admissions, no doubt, have got some evidentiary value and they are presumed to be true unless they are proved to be false and wrong". But, subsequently, all this evidence has been brushed aside on the ground that the same is contrary to the sale-deeds and revenue and hence has not much evidentiary value.

It was conceded that there are five sale deeds regarding the property at Item No.1. Out of these, three sale-deeds i.e. Ex. OC dated 2nd June, 1938, Ex. OL dated 17th April, 1940 and Ex. OM dated 2nd June, 1935 are in favour of all the three brothers, including Chiranji Lal, insolvent, and hence 1/3rd share in the property, which is the subject matter of these sale-deeds, does not vest in the Official Receiver.

"Once the admission is proved, the burden is shifted on the maker thereof to explain the circumstances under which the same was made. What a party himself admits to be true may reasonably be presumed to be so and until the presumption was rebutted the fact admitted must be taken to be established. In the present case, Nihal Chand, respondent, who appeared in the witness-box, tried to explain the said admissions by saying that in order to help him i.e. the insolvent, Chiranji Lal, he allowed him to have 1/3rd share of the rent of his property. Various admissions made in this case are unambiguous and unequivocal. In the written reply ex. AW 5/7, filed by Nihal Chand in these proceedings, it has been clearly admitted that the insolvent has 1/3rd share in the property. Under these circumstances, the burden of proof on the Official Receiver, if any, is fully discharged. Mere absence of entry in the revenue record in favour of persons in pursuance of the sale deeds in their favour is hardly of any consequence. Consequently the findings of the lower Appellate Court on this point is set aside and that of the trial Court is resorted and it is held that the Official Receiver has 1/3rd share in the property at item No.1."

In view of the above the defendants cannot be heard to say that the admissions made before the Small Causes Court in the pleadings and in the evidence do not bind the defendants. In Madhao's case (supra), Bombay High Court has held that the declaration made before the Municipal authorities admitting certain facts was admissible in evidence. Paragraphs 19, 20 and 21 of the judgement may be reproduced;

"19. As an alternate argument Shri Manohar had also relied upon Ex. 54 a declaration made by the defendant before the Municipal Corporation authority to the effect that he is living in the said house as a tenant on rent at Rs. 5 per month. The date of this declaration is 26-4-1952. Ex. 54 is the certified copy of the declaration given by the defendant to the Nagpur Municipal Corporation. As observed by the trial Court in para 13 of its judgement it has been duly proved by the Assessment Inspector Madhukar (P.W.4). The contents of this declaration are admissible in evidence though its original is not brought because the original is reported to be lost. Shri Manohar was relying upon this declaration not for the purpose of establishing the relationship of landlord and tenant between the plaintiffs and the defendant, but as an admission of the defendant to prove that the defendant was in permissive possession of the house property. It was further contended by Shri Manohar that even if it is held that Article 142 of the Limitation Act applies to the present case this declaration clearly establishes the fact that till 1952 the defendant was admitting that he was in permissive possession of the property and, therefore, a question of discontinuance of possession will not arise till that date if the date of the declaration is taken to be the starting point of limitation, then according to Shri Manohar, the suit filed by the plaintiff was within limitation.

20. In my opinion, there is considerable force in this contention of Shri Manohar. Shri Chendke has objected to the admissibility of Ex. 54 the declaration on the ground that it is a piece of evidence which will contradict the findings given in the previous suit wherein it was held that the plaintiffs have failed to prove that the defendant was their tenant. It is further submitted by Shri Chendke that no evidence to contradict that finding can be tendered even for a collateral purpose.

21. In my opinion it is not correct to say that Ex. 54 the declaration given by the defendant cannot be used for any purpose. The plaintiffs in this suit are not claiming any finding in this behalf. The admission incorporated in Ex. 54, the declaration given by the defendant is being relied upon by the plaintiffs to show that the defendant was in permissive possession of the property. As held by the Supreme Court in Bharat Singh v. Mst. Bhagirath the admissions duly proved are admissible in evidence. In the present case the said admission has been duly proved and the evidence in this behalf adduced by the plaintiffs has been rightly accepted by the trial Court. This being the position, in my opinion, it will have to be held that till the date of this declaration in the year 1952, the defendant himself had admitted that he was in the permissive possession of the suit house. Therefore, even if discontinuance of possession is assumed, it will be after that date only and on this count also suit will be within limitation even under Article 142 of the Limitation Act, 1908."

A perusal of the extract would show that the admissions made before the authorities if properly proved are admissible in evidence. The Calcutta High Court in the case of (Hemanta Kumari Devi) A.I.R. 1930 Cal. 32 has held that a party cannot be permitted to assume inconsistent positions in Court, to play fast and loose, to blow hot and cold, to approbate and reprobate to the detriment of his opponent. In the case of Krishnabai (supra) this Court was directly concerned with the question as to whether the petitioners' contention that the respondents and their predecessor in title were not the tenants is barred on account of the decision in another tenancy case which was given on the hypothesis that they were the tenants. It was held that the landholders in the facts of that case would not be allowed to approbate and reprobate. In paragraph 7 this Court has observed, thus :

"7. I have already stated that the Additional Tahsildar has granted resumption of certain portion of the land in favour of the landholders. Obviously, such a decision is possible only on the hypothesis that the non-applicants in those proceedings (viz. heirs of Ashru) were the tenants or the heirs of the tenant Ashru. The position of the landholders would not have been prejudicially affected if they had merely filed two separate proceedings containing inconsistent pleas. But here the landholders prosecuted one of those proceedings and have got a decision of resumption of the land. Thus the landholders have elected to choose one of the two inconsistent remedies and have obtained a relief under section 38 of the Tenancy Act. It would be very difficult for them now to urge that Ashru was never the tenant. The landholders in these peculiar circumstances would not be allowed to approbate and reprobate. Otherwise an embarrassing situation is likely to arise. If the contention of the landholders is accepted in this writ petition, there will be a finding and an order that Ashru was not a tenant of the land. At the same time there would be another order previously made. This previous order is final and effective in as much as it has not been got set aside by filing any appeal or revision. Such inconsistent orders would not normally be permissible. This is more so when the landholders have themselves secured an order in their favour on the hypothesis that Ashru was a tenant. Such previous order would constitute a sort of estoppel."

In the case of A.I.R. 1934 Bom. 329 a Division Bench of this Court has held that a party cannot be allowed to say at one time that the question between him and the opposite party as to adverse possession is not necessary to be decided in the suit and thereby induce the Court to refrain from deciding it and at another time say that because that question was not decided between him and the other party the latter's claim is barred by adverse possession which is the very issue which he objected to be decided. Even if he is not estopped the principle of approbation and reprobation will apply and he cannot be allowed to take this standpoint. The Privy Council in the case of Gajapatiraj v. Secretary of State (Lord Salvesen), A.I.R. 1926 Privy Council 18 has held that :

"a litigant who has all along maintained a position in support of one and in this case the more important, branch, of his suit cannot be permitted, when he fails upon this branch to withdraw from the position and assert the contrary, more especially when he thereby places his opponent at a great disadvantage. There could be no clearer case for the application of the doctrine of estoppel owing to the conduct of the litigant."

In the face of such statements of law at this stage it will be difficult to hold that the plaintiffs have failed to establish a prima facie case. The defendant has tried to get out of the aforesaid statements by stating that in some of the documents submitted before the Income-tax/Wealth tax authorities the Accountant has made some mistakes. The rent was not shared equally. Defendant No.1 has been declaring the income of Rs. 9,600/- as rent whereas the deceased was declaring Rs. 6000/-. It is also stated that the copies of the returns filed with the plaint are doctored. These arguments do not carry much weight in view of the fact that the defendant No.1 and the deceased had a common Accountant. The new Accountant seems to have continued to make the same mistakes. In any event the defendant No.1 was filing the returns on behalf of the deceased also. So far as the disparity in the income is concerned, the deceased was showing half of the rental income i.e. Rs. 6000/-. Defendant No.1 was showing the 50 per cent of rent plus Rs. 3000/- per month which was receivable as expenses. That being so it prima facie shows that the rent was being shared half and half. The consideration for the flat was not totally paid by the defendant No.1. This is evident from the documents attached with the affidavit in reply itself. In the agreement for purchase of the suit flat the consideration price is shown as Rs. 52,500/- (Exh. 13 to the affidavit in reply). The receipt also shows that same amount having been paid by way of consideration. The wealth tax returns filed by defendant No. 1 as on 31-3-1982 shows that the defendant No.1 has declared half share in the ownership of the suit flat in the sum of Rs. 26,250/-, which is exactly 50 per cent of Rs. 52,500/- The same statement is repeated in the wealth tax returns as on 31st March, 1983, 31st March, 1984, 31st March, 1985, 31st March, 1986, 31st March, 1987, 31st March, 1988, 31st March, 1989, 31st March, 1990 and 31st March, 1991. In view of the above at this stage it cannot be said that the defendant No.1 is not the co-owner of the suit premises. In contrast to this, the income-tax returns of the deceased from the years 1978-79 to 1984-85 shows that he was in receipt of Rs. 6,000/- per year as rent. Prima facie it appears to this Court that the defendant No.1 either made deliberate false statements in the Small Causes Court or a totally false case is sought to be put forward in this Court in answer to the case put forward by the plaintiffs. A perusal of the statements made in the pleadings and in the evidence before the Small Causes Court read with the admissions made in the Income tax and wealth tax returns leads this Court to a prima facie view that the plaintiffs are entitled to half share in the suit property. In view of the above it is not possible for this court to hold at this stage that the case pleaded by the plaintiffs is false. It can also not be held at this stage that the plaintiffs are guilty of misstatement of any facts or that they have not come to Court with clean hands. In the case of Maganlal Kapadia (supra) it was pleaded in the affidavit in support of the Notice of Motion that defendant No.6 is absconding with a view to delay and defeat the plaintiffs claim. Relying on these averments the plaintiffs had been granted the relief of appointment of Receiver. In these circumstances it was held:

"12. A Court of law exercising discretionary powers in such matters, rightly insists on a party approaching the Court with clear clean hands; the message has its enduring value; and has preserved itself all through the ages. Litigants who want to disregard this basic principle do so at their peril. This case rightly attracts those solitary principles and it is a clear illustration where the application of the principle is fully justified."

The Supreme Court in the case of S.P. Chengalvaraya Naidu (supra) has reiterated the well settled law as follows.

"The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. It can be said without hesitation that a person whose case is based on falsehood has no right to approach the Court. He can be summarily thrown out at any stage of the litigation. A litigant, who approaches the Court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the Court as well as on the opposite party."

The decision of the Supreme Court reported in A.I.R. 1954 S.C. 526 is of no avail to the defendants in the face of all the admissions made. Even according to the defendant No. 1 himself at least the ownership of flat No.32 by the deceased is admitted. It appears that the defence put forward by the defendant No.1 is lacking in bona fides. In Sri Chand's case (supra) the Supreme Court has held that the weakness of the defendants case cannot be used to strengthen the case of the plaintiffs. The aforesaid proposition is not at all applicable in the facts and circumstances of this case. From the past many years defendant No.1 has been treating the deceased as part of the joint family. The defence now taken are merely an attempt to avoid the admissions made earlier. Similarly the judgement of the Privy Council in the case of (Jagdish Narain v. Ahmed Khan), A.I.R. (33) 1946 P.C. 59 would not be applicable in the facts and circumstances of this case. According to the report of the Bailiff the possession was delivered to the plaintiff S.S.Roy. He has signed all the relevant documents. After the keys have been handed over by plaintiff No.3 to defendant No.1, immediate efforts are made by defendant No.1 to divest the plaintiffs of any right to take possession of half share of the premises. On getting possession defendant No.1 has immediately changed the name on the ration card. Only the name of the daughter i.e. defendant No.5 and her husband were sought to be kept on record. The telephone which was installed in the premises has been changed in the name of the daughter. Thus everything seems to have been done to oust the plaintiffs from the premises. Having used the bona fide personal requirement of the plaintiff No.3 to gain possession of the suit premises at this stage defendant cannot be permitted, to say that the family of the deceased was not joint with the family of the defendant No.1.

10. In view of the above, the Notice of Motion is made absolute and the orders dated 24th April, 1995 and 10th may, 1995 are hereby confirmed. There shall be no order as to costs.

Receiver to act on an ordinary copy duly certified by the Associate of this Court.

Notice of Motion allowed.