Nand Gopal v. Brij Mohan Lal — 1965 DIGILAW 530 (ALL)

JUDGMENT S.D. Khare, J. - This is a defendants, first appeal against the judgment and decree dated 22nd September, 1955, passed by the learned Second Additional Civil Judge, Agra. 2. The suit out of which this appeal arises was for ejectment of the defendants, who were described as licencees, from a house detailed at the foot of the plaint, and for possession. Brij Mohan Lal (Plaintiff) alleged that his father Lala Ram Kishan Das was the owner of the house, having purchased it by means of the sale deed dated 5th May, 1906. Lala Kabbomal, father of the defendants, was the real nephew of Lala Ram Kishan Das, and since Kabbomal was in indigent circumstances he was employed by Lala Ram Kishan Das at a meagre salary of Rs. 20/- per month to work in his shop. Out of the regard which Lala Ram Kishan Das had for his nephew Kabbomal he had permitted him to reside in the house soon after it had been purchased. Kabbomal died in or about the year 1932. Lala Ram Kishan Das also died in the year 1935. Nand Gopal defendant joined the service of Lala Ram Kishan Das in the year 1922 on a meagre salary of Rs. 40/- per mensem. His services proved to be valuable and his salary was gradually increased to Rs. 400/-per mensem. Nand Gopal worked as the Manager of the plaintiffs firm both in India and at Cairo till the year 1947. Subsequently, a dispute arose between Brij Mohan Lal and Nand Gopal over a rented flat in Bombay and the relations between them became strained. The plaintiff, therefore, terminated the licence and brought the suit out of which this appeal has arisen for ejectment of Nand Gopal and his brothers from the aforesaid house. 3. Before the suit was instituted a notice (Ex. A-2) had been given to Nand Gopal on 20th July, 1950, terminating his licence. On 31st Aug. 1950, Nand Gopal sent a reply (Ex. A-3) to that notice making the following averments:- "It is admitted that your clients father had purchased the house in question for a sum of Rs. 2,300/- by means of a deed dated 5th May, 1906. A-2) had been given to Nand Gopal on 20th July, 1950, terminating his licence. On 31st Aug. 1950, Nand Gopal sent a reply (Ex. A-3) to that notice making the following averments:- "It is admitted that your clients father had purchased the house in question for a sum of Rs. 2,300/- by means of a deed dated 5th May, 1906. Lala Ram Kishan Das, who intended to give the recently purchased house to his nephew, permitted him to keep the same as a licencee and authorised him to make such additions and alterations in it at his own expense as he may think fit. Acting upon this licence my clients father and later on my client, who had continued to keep the house in question with his brothers as licencees, it being the intention of the licencee Ram Kishan Das that the house should be kept by Lala Kabbomal's descendants for all times to come made valuable changes in the (paper torn) portions of the house in every storey thereof from time to time (paper torn) at least 15,000/-" 4. Nand Gopal further alleged in that reply to the notice that Lala Ram Kishan Das left a legacy of Rs. 5,000/- in favour of Nand Gopal and it had been agreed between Brij Mohan Lal and Nand Gopal that the latter should forego his claim for Rs. 5,000/- and occupy the house as its full owner. He further stated that he had been in possession of the property in question on the basis of the doctrine of part performance. 5. Nand Gopal and Shri Gopal, defendant Nos. 1 and 3, filed only one written statement and took the same pleas which Nand Gopal had taken in his reply to the notice to Brij Mohan Lal. Chandra Gopal, defendant No. 2, filed a separate written statement and took the further plea, in the alternative that the licence had terminated on the death of Lala Kabbomal and the defendants were in adverse proprietary possession of the house from the time of the death of Lala Kabbomal. 6. Chandra Gopal, defendant No. 2, filed a separate written statement and took the further plea, in the alternative that the licence had terminated on the death of Lala Kabbomal and the defendants were in adverse proprietary possession of the house from the time of the death of Lala Kabbomal. 6. The learned Civil Judge, after examining the evidence led on behalf of both the parties, arrived at the conclusion that the defendants were in possession of the house merely as licencees, that they did not acquire title to the property by adverse possession, that no permission had been granted to Lala Kabbomal and his sons to make any construction in the house and that no construction was made therein acting upon the licence. Upon these findings he decreed the plaintiff's suit. Hence this appeal. 7. It has been contended by the learned counsel for the appellants that the licence being personal to Lala Kabbomal had come to an end on his death in the year 1932 and from that time onwards the defendants possession over the house became unlawful and adverse to that of the plaintiff. The suit instituted in the year 1951 was, therefore, clearly barred by time. There are three more grounds on which the plaintiff's right to claim any relief in the suit is challenged. They are- (1) that the defendants and their father acting upon the licence have spent Rs. 15,000/- in making constructions of a permanent nature in the house; (2) that after the death of Lala Ram Kishan Das the defendants had been allowed to remain in possession of the house as owners in consideration of Rs. 5,000/-, the amount of legacy which had not been paid to them; and (3) that the plaintiff, being one of the owners of the house, is not entitled to sue. 8. The most important point for consideration in this appeal is whether after the deaths of Lala Kabbomal and Lala Ram Kishan Das, the defendants, who are the sons of Kabbomal, were still occupying the house as licencees, when the notice terminating the licence was given in the year 1950. The case taken up by the plaintiff was that after the death of Lala Kabbomal a fresh licence had been granted to his son Nand Gopal, who was in the service of the plaintiff and his father. The case taken up by the plaintiff was that after the death of Lala Kabbomal a fresh licence had been granted to his son Nand Gopal, who was in the service of the plaintiff and his father. However, no direct evidence was led by the plaintiff on that point. What the plaintiff deposed in his statement as P. W. 1 was as follows :- "All the three defendants used to live in the house in dispute with Lala Kabbomal. I continued to allow the same facility in respect of the house even after the death of Lala Kabbomal to all the three sons of Lala Kabbomal. Even after the death of Lala Ram Kishan Das defendants remained in the house as usual." 9. When cross-examined, the plaintiff stated that he did not know as to who had given permission to Lala Nand Gopal to reside in the house in dispute after the death of Lala Kabbomal. Then he stated "No permission was particularly given; because he had been living in it, therefore I say that permission was given." 10. It is not disputed that Lala Kabbomal was merely a licences and remained in possession of the house in dispute as such till the time of his death. It is also clear from the evidence that Lala Kabbomal and all the members of his family used to reside in that house. It is also fully established and has not been disputed that Nand Gopal, the eldest son of Lala Kabbomal, joined the service of Lala Ram Kishan Das in the year 1922, and continued in his service and that of his son till the year 1947, except for a short break during the period of 1931 to 1934. It has also come in evidence that Nand Gopal, who had joined the service of the plaintiffs father in the year 1922 at Rs. 40/- per mensem, was gradually promoted to a salary of Rs. 400/- per mensem and used to manage the business of the plaintiffs firm both in India and in Cairo (Egypt). The relations between the plaintiff and the descendants to Kabbomal appear to have remained cordial till the year 1947, that is, till the time Nand Gopal continued to serve the plaintiff's firm. 11. 400/- per mensem and used to manage the business of the plaintiffs firm both in India and in Cairo (Egypt). The relations between the plaintiff and the descendants to Kabbomal appear to have remained cordial till the year 1947, that is, till the time Nand Gopal continued to serve the plaintiff's firm. 11. From what has been stated above it is clear that the plaintiff and his father could not have any intention to ask the descendants of Kabbomal to leave the house after the death of Kabbomal nor could the descendants of Kabbomal in the circumstances of the case think of acquiring adverse possession against the plaintiff and his father. 12. After the death of Lala Ram Kishan Das a partition took place between Brij Mohan Lal plaintiff and his sons in the year 1941. The partition deed (Ex. A-l) is on the record. All the family property except the house in suit was divided. With regard to the house in suit the following note was made in the partition deed itself :- "The parties owned another small house bearing house No. 4043 situated in Gali Maithan, Agra. This house has, for many years been allowed to be in possession of Mr. Nand Gopal relative of the parties and its possession is not to be recovered. Valuation Rs. 2,000/-". 13. It is abundantly clear that in the year 1941 the intention of Brij Mohan Lal and his sons was that Nand Gopal should continue to live in that house as a licencee. Since Nand Gopal and all his brothers were living in the house the implied intention must have been to allow Nand Gopal and his brothers to continue to live in the house as licensees. 14. It has come in evidence and has not been disputed that the house in suit was in the Municipal papers recorded to be in the ownership of Brij Mohan Lal plaintiff, who paid the Municipal taxes till the year 1953. Nand Gopal had to admit during the course of his cross-examination that he did not pay any tax till the year 1950. He, however, contended that although prior to the year 1950 the taxes had been paid by the plaintiff he (Nand Gopal) along must be deemed to have paid them because the same had been deducted from his pay. Copies of the plaintiff's account books have been filed. He, however, contended that although prior to the year 1950 the taxes had been paid by the plaintiff he (Nand Gopal) along must be deemed to have paid them because the same had been deducted from his pay. Copies of the plaintiff's account books have been filed. There is nothing in the account books to show that the amount of taxes had been deducted from the pay of Nand Gopal. It has, therefore, to be held as proved that the plaintiff had been paying the Municipal taxes in respect of the house till the year 1950. 15. The defendants and their father have remained in possession over the house in dispute for a very long period beginning from the year 1906. Substantial repairs were bound to be carried on in the house during this long period. The status of Nand Gopal also improved and he was managing the entire business of the plaintiff till the year 1947. It has come in evidence that subsequent to its purchase in the year 1906 the house had been connected both with electricity and water and its floors had been converted to mosaic. The cross-examination of the plaintiff further reveals that about 20 years ago the size of one room on the first floor was increased by removing the middle wall and fixing iron girders in its place, that one room in the ground floor also was improvised by making certain alterations about 15 or 16 years ago and that the mosaic flooring and lintel roofing had been done about 15 or 16 years ago. According to the plaintiff all these additions and alterations had been made at his expense. He stated that the expenditure incurred was not mentioned in his account books separately for this house but it could be found in the repairs khata which included the expenditure incurred on all the houses owned by the plaintiff. 16. On the other hand the defendant entered the witness box and examined two witnesses, namely, Raj Bahadur and Baijnath, in support of his case that he himself had incurred all the expenditure. The defendants case was that he had maintained the accounts for the repairs made. However, no such accounts were filed. Raj Bahadur and Baijnath (D. Ws.) could say nothing about the source from which the money spent in the repairs came. 17. The defendants case was that he had maintained the accounts for the repairs made. However, no such accounts were filed. Raj Bahadur and Baijnath (D. Ws.) could say nothing about the source from which the money spent in the repairs came. 17. It has come in evidence and has not been disputed that the plaintiff was very rich while the defendants and their father were not at all in affluent circumstances. Nand Gopal was in the service of the plaintiff and had been managing his business. It has also come in evidence that both Brij Mohan Lal and his father Ram Kishan Das used to give money to Kabbomal and his sons on special occasions and the repairs and constructions were made while Nand Gopal had continued to remain in the service of the plaintiff. In the circumstances the probabilities are that the repairs and constructions must have been carried on at the expense of the plaintiff only. 18. The defendants have, in our opinion, failed to establish that they or their father had spent any money in the repairs or the aforesaid constructions. 19. Defendant No. 2 no doubt took the plea of adverse possession. However, he did not enter the witness box and there is nothing in the evidence to show that till the year 1950 the defendants did anything to reveal that they were occupying the house adversely to the plaintiff. 20. Sec. 54 of the Easements Act lays down:- "The grant of a licence may be express or implied from the conduct of the granter, and an agreement which purports to create an easement, but is ineffectual for that purpose, may operate to create a licence." 21. The grant of a licence can be implied from the conduct of the parties. The circumstances of the present case are such that it can be clearly inferred from them that both after the deaths of Lala Kabbomal and Lala Ram Kishan Das the intention of all the parties to this appeal was to continue the licence for the residence of all the sons of Lala Kabbomal. 22. It is well-settled law that a licence does not create interest in the land as it is merely a leave to do a thing lawfully which otherwise would be unlawful. It is thus a matter purely personal between the grantor and the grantee of the licence. 22. It is well-settled law that a licence does not create interest in the land as it is merely a leave to do a thing lawfully which otherwise would be unlawful. It is thus a matter purely personal between the grantor and the grantee of the licence. Such a licence must be held to have lapsed with the death of the licensor or of the licencee (vide Alagari Chetty v. Muthuswami Chetty, AIR 1940 Madras 102 and Chinnan v. Ranjithammal, AIR 1931 Madras 216). After the death of Kabbomal the legal position, therefore, was that the sons of Kabbomal had no longer any right to continue in possession over the house as licensees of the owner. From that time onwards the sons of Lala Kabbomal could either live in the house altogether independent of the rights of the owner or they could live there as licensees provided it could be inferred from the facts and circumstances of the case that the intention of the owner was to permit them to continue to live in the house as licencees. In case the possession of Lala Kabbomal was permissive they became licencees and could not say that (1) they had acquired adverse possession over the house, or (2) the plaintiff's suit for recovery of possession brought 12 years after the death of Lala Kabbomal was barred by time. 23. Where licence has been granted to a certain person to live in a house the matter can be looked into from another angle also. If the licencee and other members of his family reside in the house without any objection from the licensor who knew full well who the persons living in the house were it can very well be inferred that the licence was that the original licensee (in the present case Lala Kabbomal) and all the members of his family should live in the house. In that manner the possession of the sons and other members of the licensees family being permissive in nature, their position could be no better than that of licensee. Although the express licence was in the name of one person only the implied licence must be deemed to be in favour of other members of the family also. The death of Lala Kabbomal could not, therefore, terminate the implied licence which must be deemed to have existed in favour of his sons also. Although the express licence was in the name of one person only the implied licence must be deemed to be in favour of other members of the family also. The death of Lala Kabbomal could not, therefore, terminate the implied licence which must be deemed to have existed in favour of his sons also. We are supported in this view by the case of Beni Madhav Prasad v. Rasklal Ambalal, A.I.R. 1959 M.P. 23 wherein it was held that: "Even if it is held that the licence granted to Chunnilal terminated with his death and that, therefore, the defendants were not entitled to remain in possession of the house, the fact that after Chunnilal's death the plaintiff acquiesced in the defendants possession of the house and the defendants remained in possession of it acknowledging the plaintiff's title to the property as is obvious by entries in the cantonment register and the payment of Municipal rates and taxes in respect of the house by the plaintiff, amply shows that the defendants possession even after the death of Chunni Lal was permissive." 24-25. Lala Ram Kishan Das and Kabbomal belonged to the same family. Kabbomal was a real nephew of Lala Ram Kishan Das. The facts that the sons of Lala Kabbomal were also living with Lala Kabbomal, that the time of the death of Lala Kabbomal could not have remained hidden from Lala Ram Kishan Das; and that Nand Gopal, defendant No. 1, was in the service of Lala Ram Kishan Das at the time of Lala Kabbomals death, lead to the inference that the intention of Lala Ram Kishan Das was to allow the sons of Kabbomal to continue to live in the house as his licensees. 26. After the death of Lala Ram Kishan Das, Brij Mohan Lal, (plaintiff) appears to have been of the view that, the licence in favour of the sons of Kabbomal should continue. He did not ask the sons of Kabbomal to leave the house. On the other hand in the partition deed of 1941 executed by Lala Brij Mohan Lal and his sons it was definitely provided that Nand Gopal shall not be ejected from that house and the house would continue to remain unpartitioned by metes and bounds. He did not ask the sons of Kabbomal to leave the house. On the other hand in the partition deed of 1941 executed by Lala Brij Mohan Lal and his sons it was definitely provided that Nand Gopal shall not be ejected from that house and the house would continue to remain unpartitioned by metes and bounds. Nand Gopal is the only defendant who has been examined as a witness on behalf of the defendants and it is clear from his testimony that he came to know about this entry in the partition deed soon after the partition deed had been executed. 27. When the notice terminating the licence was given to Nand Gopal in the year 1950 he did not dispute his position as a licencee. His brother defendant No. 2 joined him in filing one common written statement, and both the brothers did not dispute that their position was that of licencees. It was defendant No. 2 who had pleaded adverse possession. However, he too in para. 11 of his written statement conceded that a "proper reply" had been sent to the plaintiffs notice by Nand Gopal, defendant No. 1. 28. Having considered the entire evidence on the record and all the circumstances of the case we are of the opinion that the possession of the sons of Lala Kabbomal over the house in question continued to be permissive after the deaths of Lala Kabbomal and of Lala Ram Kishan Das. In the circumstances of the case no question of adverse possession could arise and the plaintiffs suit could be barred neither under Article 142 nor under Article 144 of the Indian Limitation Act. 29. Nand Gopal is the only witness for the defendants to depose that after the death of Lala Ram Kishan Das the defendants had been allowed to remain in possession of the house as owners in consideration of Rs. 5,000/- the amount of the legacy which had not been paid to them. Lala Brij Mohan Das (plaintiff) has on the other hand stated that there was no such talk between the parties and that the legacy of Rs. 5,000/- was not paid to Nand Gopal because at first the latter did not agree to take the money and at the time he was dismissed from service as there was a large sum due from him. 5,000/- was not paid to Nand Gopal because at first the latter did not agree to take the money and at the time he was dismissed from service as there was a large sum due from him. The burden lay on the defendants to establish that there had been any such agreement between the parties. In the absence of any reliable evidence we hold that the defendants have failed to prove any such agreement. 30. The defendant's plea that they had made permanent constructions in the house acting upon the licence and had spent about Rs. 15,000/- in those constructions is also not established. In order to substantiate that plea the defendants had to prove that (1) it was in pursuance of the licence that they had made certain permanent constructions, and (2) the constructions of a permanent nature were actually made by them. There is no reliable evidence whatsoever in support of the first point. Certain constructions of a permanent nature were no doubt made in the house after Lala Kabbomal and his sons started living in it, but, as has been explained earlier, there is no reliable evidence to show that these constructions were made at the cost of the defendants. The bar of Sec. 60 of the Indian Easements Act cannot, therefore, operate. 31. The only point that remains to be considered is whether the plaintiff is the sole owner of the house in question and entitled to maintain the suit. The admitted case of the parties is that the plaintiff is the adopted son of Lala Ram Kishan Das. It is also clear from the plaintiff's own evidence that there was some joint family business capable of yielding income from the time of the ancestors of Lala Ram Kishan Das. The plaintiff as the son of Lala Ram Kishan Das had, therefore, an interest in the property from the time of his adoption. The property owned by Lala Ram Kishan Das must be deemed to be the joint family property of Lala Ram Kishan Das and his son Brij Mohan Lal and Lala Ram Kishan Das had no right to execute any will in favour of his son in respect of any joint family property. The house in question purchased by Lala Ram Kishan Das must, in. The house in question purchased by Lala Ram Kishan Das must, in. the absence of any other evidence, be deemed to be part of the joint family property, and must be deemed to have been purchased out of joint family funds. The will could not, therefore, operate even in respect of the house in question. 32. During the course of the arguments it was brought to our notice that the copy of the will (Ex. A-4) was admitted by the counsel for defendant No. 1 only. The plaintiff, who was relying on the will ought to have proved proper attestation of the will. No such evidence was led by the plaintiff. However, in view of the fact that no valid will could have been executed by Lala Ram Kishan Das, these circumstances loses its importance. 33. It is clear from the partition deed Ex. A-l executed in the year 1941 between Brij Mohan Lal (plaintiff) and his sons that the house in dispute was the joint family property of Brij Mohan Lal and his sons and it had not been partitioned by metes and bounds only because the intention of the owners of the house was that Nand Gopal should not be required to vacate that house. 34. It is, therefore, clear that the plaintiff is only one of the co-owners of the house and he alone cannot be allowed to maintain the suit, particularly when we find that in the partition deed it had been clearly mentioned by him and also the other co-owners that the licence in favour of Nand Gopal would not be terminated. We are, of the view that in the circumstances of the case the plaintiff alone was not entitled to terminate the licence. 35. In the result the appeal is allowed, the judgment and decree of the lower appellate court is set aside and it is ordered that the plaintiff's suit be dismissed. Both the parties will bear their own costs throughout. Appeal allowed.