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2013 DIGILAW 2615 (BOM)

Henriqueta D' Souza v. Mangesh D. Mishal

2013-12-18

B.R.GAVAI, F.M.REIS

body2013
JUDGMENT F.M. Reis, J. Both the above Writ Petitions were taken up for consideration in terms of Rule 7 Chapter 1 of the Appellate Side Rules of 1960 and the subsequent directions of the Hon'ble Chief Justice, to place the matter before the Division Bench. 2. We have heard Shri S. D. Lotlikar, learned Senior Counsel appearing for the Petitioners in Writ Petition no. 266 of 2008 and Shri J. P. Mulgaonkar, learned Counsel appearing for the Petitioner in Writ Petition no. 457 of 2010 as well as Shri Sudin Usgaonkar, learned Counsel appearing for the Respondents in Writ Petition no. 457 of 2010 and Shri C,. A. Coutinho, learned Counsel appearing for the Respondent in Writ Petition no. 266 of 2008. 3. We have heard the above Petition only to decide the issue regarding the extent of heritability of a right of a mundkar in a dwelling house in terms of Section 3 of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975, (hereinafter referred to as 'the said Act of 1975'). 4. Shri S. D. Lotlikar, learned Senior Counsel appearing for the said Petitioners, has submitted before us that a Mundkar is defined under Section 2(p) of the said Act of 1975 wherein, he also includes a member of the family. The learned Senior Counsel has thereafter taken us through the definition of a member of the family under Section 2(n) of the said Act of 1975 and pointed out that the member of family means only his spouse, son, unmarried daughter and includes father, mother, grandson, widowed daughter, widowed granddaughter, solely dependent on the Mundkar for maintenance. The learned Senior Counsel as such pointed out that even though Section 3 of the said Act of 1975 provides that a right of the Mundkar in a dwelling house is heritable such, heritability is to be restricted only to the member of the family as defined under the said Act. Learned Senior Counsel further submits that though as per the provisions of the said Act, there is a right conferred to the Mundkar to purchase the dwelling house, the price is as on the appointed date, though, there is no period within which such right can be exercised by a Mundkar. Learned Senior Counsel further submits that though as per the provisions of the said Act, there is a right conferred to the Mundkar to purchase the dwelling house, the price is as on the appointed date, though, there is no period within which such right can be exercised by a Mundkar. Learned Senior Counsel further pointed out that in such circumstances, Mundkars who exercise such rights can get the dwelling house transferred for illusory amounts from the Bhatkar. Learned Senior Counsel further submits that in case the heritability is extended in terms of the law of succession as in force in the State of Goa, it would lead to an absurdity and anomalous situation, as such right would devolve not only upon the descendants of the Mundkar but even on the ascendants, brothers and cousins and ultimately to the State. Learned Senior Counsel as such submits that giving such a broad and extensive right of heritability would lead to a situation wherein there could be multiple dwelling houses and lead to an absurd situation. Learned Senior Counsel further submits that the right of mundkarship is essentially a protection from being evicted from a dwelling house and, as such, the question of granting such right to persons who are not entitled to be Mundkars during his lifetime, would be an absurd situation. Learned Senior Counsel has thereafter taken us through the relevant provisions of the Mundkar Act and pointed out that the heritability as provided under Section 3 of the said Act of 1975, should be laid down to mean that such right can devolve only on the descendants who are the members of the family. Learned Senior Counsel has further pointed that the Judgment of the learned Single Judge, reported in 2001(2) BCR 247 in the case of Joaquim D' Costa & Ors. vs. Anthony D' Souza alias Joseph Anthony Ignatius Alex Genezano D' Souza & Ors, has taken an erroneous view that irrespective as to whether the heir is residing in the dwelling house or not is entitled to inherit the right of mundkarship. 5. Shri Sudin Usgaonkar, learned Counsel appearing for the Respondents, has also supported the submissions of learned Senior Counsel Shri S. D. Lotlikar. 5. Shri Sudin Usgaonkar, learned Counsel appearing for the Respondents, has also supported the submissions of learned Senior Counsel Shri S. D. Lotlikar. Learned Counsel further pointed out that the Judgment in the case of Joaquim D' Costa & Ors (supra), was set aside by the learned Division Bench of this Court in Letter Patent Appeal. Learned Counsel further pointed out that as such though the Judgment was set aside by consent, the question of accepting the Judgment as a precedent, is not at all justified. Learned Senior Counsel has thereafter taken us to Article 1969 of the Portuguese Civil Code and submitted that line of succession as provided therein, would extend to not only to the children and the grandchildren but also to the children of the brothers and sisters and even to cousins and ultimately in cases there are no such successors, such right would devolve on the State which would lead to an absurd situation. Learned Counsel further pointed out that the legislature had deliberately excluded married daughters from the meaning of the member of the family and as such it is not open to hold that the heritability under Section 3 of the said Act of 1975, would also extend to married daughters. Learned Counsel further pointed out that it is well known that a daughter after marriage goes to reside in the house of her husband and, as such, the question of claiming any right to the dwelling house by such married daughter would be misplaced. The learned Counsel further pointed out that in any event, the learned Single Judge of this Court in the said Judgment of JoaquimD' Costa & Ors. (supra), has failed to consider the objects or the true import of the said Act and has erroneously come to the conclusion that all the legal successors of the deceased Mundkar are entitled to inherit such right to the dwelling house. Learned Counsel has thereafter taken us through the provisions of the Mundkar Act as they existed prior to the coming into force of the said Act of 1975 during the erstwhile regime and pointed out that such protections were given to those persons who were engaged by the land owners for carrying out domestic or agricultural services. Learned Counsel has thereafter taken us through the provisions of the Mundkar Act as they existed prior to the coming into force of the said Act of 1975 during the erstwhile regime and pointed out that such protections were given to those persons who were engaged by the land owners for carrying out domestic or agricultural services. Learned Counsel further pointed out that such class of people were permitted by the land owners to occupy the houses with some conditions to render services, though in the Act of 1975, such obligation to render services, does not exist. Learned Counsel further pointed out that allowing a right to devolve upon all the legal heirs in terms of the law of succession in force in the State of Goa, would render the Act itself redundant whereby any heir who owns a residential houses would also claim such right to the dwelling house of a Mundkar. Learned Counsel has also brought to our notice the Judgment of the learned Single Judge of this Court reported in 1997(1) Goa L.T. 119 in the case of Shri Jeronimo Dias vs. Shri Jose Jeronimo Estiquio de Noronha Cota e Menezes & Ors., and pointed out that though the said Judgment was in the context as to whether a person can inherit a right of mundkarship by a Will, nevertheless, it clearly suggests that the learned Single Judge found that a person other than a member of the family cannot claim such right by inheritance. Learned Counsel further pointed out that the said Judgment of the learned Single Judge in the case of Joaquim D' Costa & Ors. (supra), was in the process of registering application which in any event only raises a presumption which is otherwise rebuttable and, as such, the findings therein are not final. 6. On the other had, Shri C. A. Continho, learned Counsel appearing for the Respondent in Writ Petition no. 266 of 2008, has pointed out that the definition in Section 2(p) of the said Act of 1975, inter alia, only includes a member of the family. Learned Counsel further pointed out that this itself suggests that the persons referred to therein as members of the family do not exclude other persons who are otherwise entitled to claim such right by inheritance. Learned Counsel further pointed out that this itself suggests that the persons referred to therein as members of the family do not exclude other persons who are otherwise entitled to claim such right by inheritance. Learned Counsel further pointed out that Section 3 of the said Act of 1975 very clearly provided that a right to a dwelling house is heritable which would mean that such right devolves on the legal successors of the Mundkars in terms of Article 1969 of the Portuguese Civil Code. Learned Counsel further pointed out that the Mundkar Act is a beneficial legislation and as such it is not open to this Court to give a restrictive meaning so as to exclude married daughters and other legal heirs to succeed to the right of a Mundkar to the dwelling house. The learned Counsel further pointed out that when the legislature did not think of imposing any restrictions on the heritability of such right, there is no reason for this Court to draw an interpretation which would restrict the right of inheritance of a Mundkar in a dwelling house. The learned Counsel has thereafter taken us through the Goa Daman and Diu, Rent Control Act, 1969, and submitted that even in such cases where protection is given to a tenant after a death to specific persons, this Court in the Judgment reported in 1977 Mh. L.J. 792 in the case of Rajaram Brindavan Upadhyaya & Ors. vs. Ramraj Raghunath Upadhyaya & Ors., held that a right of inheritance of a tenancy cannot be restricted to the heirs who are residing with a tenant. The learned Counsel further pointed out that in any event, if a married daughter is residing with the Mundkar during his lifetime, she is also entitled to claim a right of inheritance of mundkarship. 7. Shri J. P Mulgaonkar, learned Counsel appearing for the Petitioner in Writ Petition no. 457 of 2010, has supported the submissions of Shri C. A. Coutinho. 7. Shri J. P Mulgaonkar, learned Counsel appearing for the Petitioner in Writ Petition no. 457 of 2010, has supported the submissions of Shri C. A. Coutinho. The learned Counsel has pointed out that merely because the Judgment of the learned Single Judge has been set aside by the Division Bench by consent, it does not cease to be a precedent and it has been categorically held therein that such a right of mundkarship in terms of Section 3 of the said Act of 1975 devolves upon all the legal heirs of the deceased, irrespective as to whether they are residing in the dwelling house or not. The learned Counsel has thereafter taken us through Section 3 of the said Act of 1975 and pointed out that right of mundkarship is heritable and not transferable and, as such, the question of putting up any restrictions in such right of heritability would not be justified. Learned Counsel further pointed out that it is not open to this Court to add words to the statute which would lead to a situation which is not provided under the Act. Learned Counsel further pointed out that in case the heir is not residing in a dwelling house, the Bhatkar is always entitled to seek his eviction in terms of the provisions of the said Act of 1975 and, as such, it cannot be said that a Bhatkar is left with no options in such situations. The learned Counsel as such submits that the learned Single Judge of this Court in the case of Joaquim D' Costa & Ors. (supra), has rightly held that there is no reason for any restrictions in such right of heritability. 8. We have carefully considered the submissions of the learned Counsel appearing for the respective parties. We have also perused the relevant provisions of the said Act of 1975. We have also given our thoughtful considerations to the observations of the learned Single Judge in the case of Joaquim D' Costa & Ors. (supra), as well as the case of Shri Jeronimo Dias (supra). Before we consider the rival contentions, it would be appropriate to examine the statements of the objects and reasons which led to the enactment of the Goa Daman and Diu (Protection from Eviction) Act, 1975. (supra), as well as the case of Shri Jeronimo Dias (supra). Before we consider the rival contentions, it would be appropriate to examine the statements of the objects and reasons which led to the enactment of the Goa Daman and Diu (Protection from Eviction) Act, 1975. It appears that there existed in the District of Goa of the Union Territory of Goa, Daman and Diu a peculiar system named Mundkarism. In the context of such system, there were two parties locally known as Bhatkar and Mundkar, whose relationship was to be regulated, keeping in view the modern socioeconomic concepts. The Bhatkar was the owner of land whereas the Mundkar was a person who lived in the dwelling house constructed on the land of the Bhatkar with the consent of the latter and with a view to render some services such as watch and ward over the land, supply of his or his family services to the Bhatkar when required, even sometimes allowed to reside on the land as a gesture of goodwill, though with the characteristic of subservience which anyone who is allowed to occupy the land as a matter of grace. In order to give protection to Mundkars occupying such dwelling houses and in order to lay down the respective duties and responsibilities of the Bhatkar and the Mundkar and to abolish the free services rendered by the Mundkar and in order to prevent a Mundkar from arbitrary evictions as well as give a right to purchase the dwelling house by the Mundkar, the said Act of 1975 was enacted. It is also to be noted that the statement of objects and reasons also stipulate that the Mundkar system has undergone successive changes because the successors of the original Mundkars have raised their standard of life through education, change in the occupation, etc., and, as such, they do not render at present any services though continue to reside in the dwelling house and as the Bhatkar has continued to allow such occupation without rendering any services to them. 9. It is now well settled that the reference to the statements of objects and reasons is permissible for understanding the background, the antecedent state of affairs, the surrounding circumstances in relation to the statute and the evil which the statute seeks to remedy. 9. It is now well settled that the reference to the statements of objects and reasons is permissible for understanding the background, the antecedent state of affairs, the surrounding circumstances in relation to the statute and the evil which the statute seeks to remedy. Such objects and reasons can be used as an aid to ascertain the context, background and the objective behind such statute particularly when the Court wants to ascertain the original intent of the enactment of such statute. With this in mind, we have examined the aforesaid statement of the objects and reasons of the said Act of 1975. 10. The gist of the said objects and reasons clearly shows that the protection was intended to be given to a Mundkar and their successors who were living in the dwelling house. Hence, the pre-requisite of being a Mundkar was that he has to reside in the dwelling house with a fixed habitation. A Mundkar is defined in Section 2(p) of the said Act of 1975, thus :- “2(p) “mundkar” means a person who, with the consent of the bhatkar or the person acting or purporting to act on behalf of the bhatkar lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any services to the bhatkar and includes a member of his family but does not include- (i) a person paying rent to the bhatkar for the occupation of the house; (ii) a domestic servant or a chowkidar who is paid wages and who resides in an out-house, house- compound or other portion of his employer's residence; (iii) a person employed in a mill, factory, mine, workshop or a commercial establishment and is residing in the premises belonging to the owner or person in charge of such mill, factory, mine, workshop or commercial establishment, in connection with his employment in such mill, factory, mine workshop or commercial establishment; and (iv) a person residing in the whole or part of a house belonging to another person or in an out-house existing in the compound of the house, as a care-taker of the said house or for purposes of maintaining it in habitable condition. Explanation- A person shall be deemed to be lawfully residing with the consent of the bhatkar in a dwelling house if such person resides in it for a period exceeding one year prior to the appointed date and the bhatkar has not initiated any proceedings, during the said period of one year, to evict such person from the dwelling house, through a competent court of law, on the ground that such person was a trespasser or, having so initiated such proceedings, does not succeed in obtaining a decree for the eviction of such person.” 11. What emerges from the reading of the said provisions is that in order to qualify to be a Mundkar, the person has to lawfully reside with a fixed habitation in a dwelling house and also includes a member of the family. Hence, even a member of family is included to be a Mundkar in terms of the said Act of 1975, provided such member of the family is residing with the Mundkar with a fixed habitation in the dwelling house. The member of the family is defined under Section 2(n) of the said Act of 1975 thus : “2(n) :- “member of the family” means - (i) in relation to a mundkar who is an individual, his spouse, son, unmarried daughter and includes father, mother, grandson, widowed daughter, widowed granddaughter solely dependent on the mundkar for maintenance; (ii) in relation to a mundkar who is a joint Hindu family, the members of such a family; (iii) in relation to joint owners other than a joint Hindu family, the members of the family as indicated in sub-clause (i) in relation to each of such joint owners; 12. On going through the said definition, one can note that even some persons who are in order of succession in terms of Article 1969 of the Portuguese Civil Code, are also included in the definition of a Mundkar if he is resides with the Mundkar in the dwelling house. 13. Section 3 of the said Act of 1975, reads thus : “3. Rights of a mundkar to be heritable.- The rights of a mundkar in his dwelling house shall be heritable and shall not be transferable.” 14. Article 1969 of the Portuguese Civil Code reads thus : “The legal succession shall devolve in the following order: 1. To the descendants: 2. Rights of a mundkar to be heritable.- The rights of a mundkar in his dwelling house shall be heritable and shall not be transferable.” 14. Article 1969 of the Portuguese Civil Code reads thus : “The legal succession shall devolve in the following order: 1. To the descendants: 2. To the ascendants, save what is provided in Article 1236; 3. To the brothers and their descendants; 4. To the surviving spouse; 5. To the collaterals not included in Clause 3 upto the sixth degree; 6. To the State, save what is provided in Article 1663. Sole paragraph: In the case of Clauses 1, 2 and 3 the commodities and fruits, gathered or pending, meant and necessary for the consumption of the couple, shall be deemed to be the own property of the surviving spouse, provided that at the date of the opening of the inheritance there is no pending or decreed suit for divorce or for separation of the persons and properties.” 15. In the light of the above provisions, we shall consider the extent of the heritability of the right of a mundkar in the dwelling house. Shri C. A. Coutinho, learned Counsel appearing for the Respondent in Writ Petition no. 266 of 2008 submits that such right of heritability extend to the legal successors in terms of Article 1969 of the Portuguese Civil Code. The Learned Single Judge in the case of Joaquim D' Costa & Ors. (supra), has held that the legal successor in terms of the law in force in the State of Goa are entitled to inherit such right irrespective as to whether such heir is residing in the dwelling house or not. We are afraid that the said view of the learned Single Judge is without examining the true import and the objects and reasons of the said Act of 1975. The preamble of the said Act of 1975 clearly provides that the said Act was enacted to provide better protection to Mundkar against their eviction from their dwelling houses and for granting them a right to purchase the same and to make certain other provisions connected therewith. Hence, the Act is clearly to protect the persons residing in the dwelling houses from being evicted. 16. The right of a Mundkar does not create an interest in an immoveable property but only gives a status which is protected under the said Act of 1975. Hence, the Act is clearly to protect the persons residing in the dwelling houses from being evicted. 16. The right of a Mundkar does not create an interest in an immoveable property but only gives a status which is protected under the said Act of 1975. Such status can be extended by succession to any persons similarly placed as a Mundkar. As already pointed out herein above, the objects and reasons of the said Act of 1975 clearly contemplates that successors of the original Mundkars have changed their standard of living though they continue to reside in the dwelling house. Thus, the paramount consideration would be the residence of such successors in the dwelling house at the time of the opening of the inheritance. 17. As noted herein above, the definition of the word “Mundkar” in terms of Section 2(p) of the said Act of 1975, “includes a member of a family” and excludes specific persons. In this connection, when the word defined is declared to include “such and such the intention is to make it more extensive”. On minutely going through the provisions of Section 2(p) of the said Act of 1975, the first part provides that a Mundkar means a person who lawfully resides with a fixed habitation and the second part provides that it includes a member of the family. In these situations, when a definition defines a word to mean A and to include B and C, it cannot in its obligation be construed to exclude A and to include only B and C. The word “includes” is very generally used in definition clause in order to enlarge the meaning of the word and phrases occurring in the body of the statute and cannot be treated as restricted in any sense. When the word “includes” is used in the definition as in the case under Section 2(p) of the said Act of 1975, the legislature does not intend to restrict the definition, it makes the definition enumerative and not exhaustive i.e. the term defined would retain its ordinary meaning but its scope would be extended to bring within the term certain other persons who in the ordinary meaning may or may not comprise of. The object of the Mundkar Act is not to allow strangers of the family of the Mundkar to come upon the dwelling house but that such right continues after his death to the member of his family and also the legal successor who is similarly placed. The object and purpose of Section 3 of the said Act of 1975, needs to confine the right of a Mundkar upon his death only to those successors in the order of succession who have been living with the Mundkar with a fixed habitation at the time of the opening of inheritance besides the members of the family as defined in the said Act of 1975. Thus, it can be seen that broad definition of the heritability of such right of a Mundkar in a dwelling house would not be of much help in the context of such statute. If we bear in mind the purpose of the said statute, it becomes clear that the object of the enactment is not to allow strangers/successors, who are not living in the dwelling house to come upon such land. The rights to the dwelling house are not transferable which itself suggests that the law envisages that no strangers who are not residing in the dwelling house can come into the land upon the death of the Mundkar. In such circumstances, we find that the legal successor who satisfies the meaning of the word “Mundkar” in terms of Section 2(p) of the said Act of 1975, can inherit a right to a dwelling house. Hence, legal successor of a Mundkar who is residing in the dwelling house at the time of the opening of inheritance along-with the Mundkar is entitled to inherit the right of a mundkar to a dwelling house in terms of Section 3 of the said Act of 1975. The heritability as provided under Section 3 of the said Act of 1975 will as such devolve upon the legal successor of a Mundkar who is qualified therefor, i.e. he has to be residing in the dwelling house with the Mundkar with a fixed habitation at the time of the opening of inheritance. Thus, all the successors cannot inherit such right unless they meet the requirements of residing in the dwelling house along with the mundkar. Thus, all the successors cannot inherit such right unless they meet the requirements of residing in the dwelling house along with the mundkar. The sine qua non for obtaining such right is that the person concerned must satisfy the requirements of being a Mundkar by living in the dwelling house with a fixed habitation. On a fair construction of Section 3 of the said Act of 1975, in our view, the heritability of the right of a mundkar in a dwelling house would devolve upon the successors who are living/residing in the dwelling house along with the Mundkar at the time of the opening of inheritance. The words of statute when there is doubt about their meaning are to be understood in the sense in which they best harmonize with the subject of the enactment and the objects which the legislature has in view. Considering that the legislature enacted the said Act of 1975 essentially to allow the continuation of the occupation of the dwelling house by the Mundkar and the members of the family and upon his death to their successors who are living along with him in the dwelling house, we have to read Section 3 of the said Act of 1975 with the definition of a Mundkar in terms of Section 2(p) of the said Act of 1975 in the manner stated herein above. In case the contention of Shri C. A. Coutinho and Shri J. P, Mulgaonkar, learned Counsel, is accepted to mean that heritability would extend to the legal successions as provided under Article 1969 of the Portuguese Civil Code, it would lead to an otiose situation wherein even the brothers and sisters of the Mundkar or their respective children and collaterals would also be entitled to inherit such right to a dwelling house which is contrary to the import of the Act. As pointed out herein above, what is essential is that such successor has to be residing in the dwelling house at the opening of inheritance. This view can even be gathered from the definition of the Mundkar under Section 2(p) of the said Act of 1975, wherein some of the successors of a Mundkar as well as persons specified therein who are depending upon the Mundkar for their maintenance, are included in the definition of a Mundkar. This view can even be gathered from the definition of the Mundkar under Section 2(p) of the said Act of 1975, wherein some of the successors of a Mundkar as well as persons specified therein who are depending upon the Mundkar for their maintenance, are included in the definition of a Mundkar. This itself suggests that the intention of the legislature is to ensure that the heritability as provided under Section 3 of the said Act of 1975 was to have a restrictive Leaning to mean that even successors who are otherwise not named as members of the family in the definition of the Mundkar under the said Act of 1975, would also be entitled to inherit the right to the dwelling house provided they are residing therein with the Mundkar at the time of the opening of inheritance. 18. Reading the objects and reasons as well as the preamble of the Act and giving a purposive interpretation to the provisions of the said Act of 1975, the inescapable conclusion is that the heritability of the right of a mundkar to a dwelling house would devolve on the successor who is residing with the Mundkar at the time of the opening of inheritance. Thus, considering the word used in the definition of the Mundkar is an inclusive definition, and persons excluded are clearly specified, the right of heritability would extend to the members of the family as well as to the successors who are living with the Mundkar in a dwelling house at the time of the opening of inheritance. As such, we find that the learned Single Judge in the case of Joaquim D' Costa & Ors(supra), has not examined the aspect of heritability in the context of the provisions of the said Act of 1975 nor noted the objects and reasons of such beneficial legislation to come to the conclusion that such heritability would extend to the legal successions in terms of the provisions of the law of succession as in force in the State of Goa irrespective whether they are residing in the dwelling house or not and, as such, in our respectful view, does not lay down the correct law. If such interpretation is given, as rightly pointed out by Shri S. D. Lotlikar, learned Senior Counsel, it would lead to multiple dwelling houses and even extend to a situation whereby the state could inherit a right to a dwelling house. Thus the Judgment in the case of Rajaram Bindava Upadhaya ( supra ) relied upon by Shri Coutinho, the learned Counsel, is not applicable to the facts of the present case. 19. In view of the above, we hold that the right of a Mundkar is heritable in terms of Section 3 of the said Act of 1975 to a member of the family as defined in the said Act of 1975 and the legal successor of the Mundkar in the order of successor who meet the requirements of living with a Mundkar with a fixed habitation at the time of the opening of inheritance. 20. The above Writ Petitions shall now be placed before an appropriate Bench to examine the rival contentions of the parties in the light of the above decision.