S.B. Deshmukh, J.
1. This petition is directed against the judgment and order passed by the Additional District Judge, Jalgaon in Civil Revision Application No. 11 of 1989 dated 14th September, 1990. The Petitioner also seeks declaration to the effect that he is legal heir of deceased Kashiram in view of provisions laid down under Section 5(11)(c)(ii) of the Bombay Rents Hotel and Lodging Houses Rates Control Act, 1947 (hereinafter referred as the Act of 1947, for short).
2. Brief facts, necessary for consideration of this writ petition, are that one Mr. Laxmidas Bhagwandas Mehta had filed Regular Civil Suit No. 408 of 1976 against eight persons. The suit was for vacant possession and arrears of rent, permitted increases and damages under the provisions of the Act of 1947. Possession was sought on the ground of default in payment of rent, non-user of the suit property continuously for more than six months period preceding the date of filing of the suit and unlawful subletting of the suit property in favour of original defendant Nos. 2 to 8 by defendant No. 1. This Regular Civil Suit No. 408 of 1976 was decreed by the learned 2nd Joint Civil Judge, Junior Division, Jalgaon by the judgment and decree passed on 10th of April, 1981. The aggrieved defendant No. 1 preferred Regular Civil Appeal No. 252 of 1981 challenging the judgment and decree passed in Regular Civil Suit No. 408 of 1976. The defendant No. 1/Appellant Kashinath Balmukund Vyas died on 28th November, 1984 i.e. during the pendency of Regular Civil Appeal No. 252 of 1981. After his demise, the present petitioner Mr. Ashwinkumar, who happens to be the son of original defendant No. 2, filed an application Exhibit-34. It is his contention that deceased Kashinath/defendant No. 1 has executed a will on 5th March, 1984 and tenancy rights in relation to the suit property have been bequeathed in his favour. According to him, he has acquired the status and rights as tenant in the suit property. He claims these rights based on the will dated 5th March, 1984 and the provisions laid down under Section 5(11)(c)(ii) of the Act of 1947. One lady Mrs. Ayodhyabai alias Meena had also stalked a claim of legal heir/representative of deceased defendant No. 1 Kashinath. According to her contention, she was mistress of deceased defendant and had acquired the status of legal representative/heir of deceased defendant No. 1 Kashinath. Since there was a dispute regarding status of legal heir of deceased Kashinath, learned Additional District Judge, Jalgaon referred this issue under Order 22 Rule 5 of the Code of Civil Procedure for recording evidence and decision, to the learned 2nd Joint Civil Judge, Junior Division, Jalgaon. The learned 2nd Joint Civil Judge, Junior Division, Jalgaon, by the order passed on 21st March, 1989, held that neither Ayodhyabai alias Meena nor the present Petitioner Ashwinkumar are legal heirs of deceased defendant No. 1 Kashinath under Section 5(11)(c)(ii) of the Act of 1947. This order was subject matter of Revision Application No. 11 of 1989 before the learned District Judge, Jalgaon, who, after hearing the parties, rejected the said revision application. This writ petition, as noted above, challenges the said order passed by the learned District Judge, Jalgaon/Revisional Court, in Revision Application No. 11 of 1989.
3. It is not in dispute that the suit premises was let out to original defendant No. 1 Kashinath for commercial purpose. It is also not in dispute that decree for possession was passed in favour of the original plaintiff by the trial Court, in Regular Civil Suit No. 408 of 1976. On behalf of the Petitioner, contention is raised that the Revisional Court has recorded an illegal finding that the Revision Application is not maintainable under Section 29 of the Act of 1947. Another finding of the revisional Court that scribe of the will in question is not attesting witness is per-se illegal. According to the learned Counsel for the Petitioner, the petitioner had acquired the status of legal heir by the will executed by deceased defendant No. 1 on 5th March, 1984 and, therefore, has acquired tenancy rights under Section 5(11)(c)(ii) of the Act of 1947. Per contra, the learned Counsel Mr. Chaudhary for Respondents, submitted that the question of fact regarding heirship of deceased defendant No. 1 Kashinath is decided by the Court at the first instance. According to him, the will in question is not established in view of non-examination of attesting witness. The scribe of the document, according to him, cannot be said to be the attesting witness. The death of defendant No. 1 Kashinath is after passing of the decree and, therefore, status of tenant cannot be acquired by the Petitioner Ashwinkumar.
4. One of the plank of argument, on behalf of the petitioner, is in relation to will alleged to have been executed by deceased defendant No. 1 Kashinath, dated 5th March, 1984. Advocate Mr. Barlinge for the petitioner fairly admits that no probate has been obtained by the Petitioner in relation to the will dated 5th March, 1984. Chapter III of Indian Succession Act deals with the execution of unprivileged wills. Section 63 of Indian Succession Act lays down the formalities required by law to be observed in the execution of a will. However, it must not be confused with the question of the proof the of the fact whether those formalities have been properly observed. Section 63 requires that the will must be attested by two witnesses. Whereas, under Section 68 of the Evidence Act, it is apparent that the will can be proved by one of the attesting witnesses. The execution of a will includes the attestation of the will by witnesses, and so long there is no attestation, the will cannot be said to have been duly executed. Proof of will is provided under Section 68 of the Evidence Act. It reads, thus:
68. Proof of execution of document required by law to be attested. - If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence.
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.
5. Section 63 of Indian Succession Act makes a vital distinction between the testator and the attestors in the matter of signing the will. The testator may sign or affix his mark himself or direct some other person to sign in his presence. Such provision is, because, many a time people who are desirous of preparing testamentary dispositions may be physically incapacitated from signing their names on account of illness or other reasons. Such persons should not be deprived of the opportunity of making a will. However, in case of attestors such an enabling provision is absent. The section expressly mandates that each of the witnesses/attesters shall sign the will in the presence of the testator. The power of delegation if it can be said so, is not available to the attestors under this section. Thus, a person who is not an attesting witness within the meaning of Section 63(C) of the Indian Succession Act, consequently, will not be an attesting witness for the purpose of Section 68 of the Indian Evidence Act.
A scribe can be held to be an attesting witness only if, apart from having seen the document executed and having put his signature on the document in the presence of the testator, he also signed the document as a witness. Thus, in my view, the scribe of a document may perform a dual role, but he will not be branded as attesting witness unless he intends to sign the document as an attesting witness. Such evidence has to be brought on record. Thus, signature of attesting witness is a requirement of law and that cannot be equated with that of the scribe.
Here is the case, according to the learned Counsel Mr. Chaudhary, that there is only one attesting witness to the will viz. Nemichand. No explanation is coming forth on behalf of the Petitioner as to why the attesting witness Mr. Nemichand is not examined to prove the will. In the absence of such circumstances or explanation, it was obligatory on the part of the present Petitioner to examine the attesting witness Mr. Nemichand in proof of the execution of document of will dated 5th March, 1984. In the absence of such evidence of the attesting witness, despite the fact that the witness was alive and available, it cannot be said that the will in question is duly proved and can be read in evidence. The will in question is not registered document. However, registration of will is not compulsory. That is not the reason, why this document of will is not accepted in evidence. In my view, therefore, the will in question dated 5th March, 1984 cannot be read in evidence since it is not duly established. Learned Counsel Mr. Barlinge submits that the evidence of scribe can be considered in proof of the execution of the will in question. This point was considered by the High Court of Calcutta in the matter of Nirode Mohan Roy v. Charu Chandra Mazumdar reported in : AIR1950Cal401 . It is held by the Division Bench of Calcutta High Court that a scribe can be held to be an attesting witness of the will only if apart from having seen the document executed and having put his signature on the document in the presence of the testator he also signs the document as a witness. However, the mere description of himself as scribe cannot stand in the way of finding that he has signed as a witness for the use of the word 'scribe' before or after the signature may be given by way of additional information. I am in respectful agreement with the view taken.
6. Apart from proof of the will and acquisition of tenancy rights under the will, another question raised on behalf of the parties, is in relation to the provision laid down under Section 5(11)(c)(ii) of the Act of 1947. The learned Counsel for the Petitioner submits that he has acquired the status of tenant or tenancy rights under Section 5(11)(c)(ii) of the Act of 1947 based on the document of will. It is useful to consider the provision laid down under Section 5(11)(c)(ii) of the Act of 1947, which reads, thus:
5. In this Act unless there is anything repugnant to the subject or context,....
(11) 'rent' means any person by whom or on whose account rent is payable for any premises and includes....
(c) (i) ...
(ii) in relation to any premises let for the purposes of education, business, trade or storage, when the tenant dies, whether the death has occurred before or after the commencement of the said Act, any member of the tenant's family using the premises for the purposes of education of carrying on business, trade or storage in the premises, with the tenant at the time of his death, or, in the absence of such member any heir of the deceased tenant, as may be decided in default of agreement by the Court. Explanation. The provisions of this clause for transmission of tenancy shall not be restricted to the death of the original tenant, but shall apply, and shall be deemed to always have applied, even on the death of any subsequent tenant, who becomes tenant under these provisions on the death of the last preceding tenant.
7. It is significant to note that under Section 5(11) expression 'tenant' is defined as any person by whom or on whose account any rent is payable for any premises and includes such sub-tenant and other persons as have derived title under a tenant or any person to whom premises has been assigned or transferred as permitted or deemed to be permitted under Section 15. After Section 5(11) Clause (c)(ii) defines the expression 'tenant' in relation to any premises let for residence. In this premise, Section 11(c)(ii) in relation to premises let out for education, business, trade, storage is incorporated. The ingredients of Section 5(11)(c)(ii) seems to be that (i) premises must be let out for the purpose of education, business, trade or storage, (ii) tenant of such commercial premises dies, (ii) such death of the tenant occurs before or after the commencement of the Act of 1947, (iv) any member of tenant's family using the premises for the purpose of education or carrying on business, trade or storage in the premises and (v) such association of the member of the family with the tenant has to be at the time of death of the tenant, in the absence of such member, any heir of the deceased tenant, as may be decided by any Court. The primary objective behind this Section 5(11)(c)(ii) is extending protection to a member of tenant's family. Such member has to be associated with the deceased tenant at the time of death of deceased tenant in carrying out the business and/or education, trade or storage activity in relation to tenanted premises.
In the case on hand, undisputedly, petitioner Ashwinkumar cannot claim the status of member of family of deceased Kashinath. Thus, claim of the petitioner Ashwinkumar that he has acquired status or tenancy rights based on the will under Section 5(11)(c)(ii) cannot be accepted. Mr. Chaudhary, learned Counsel, has relied on a judgment of learned single Bench of this Court in the matter of Jaysen Jayant Rele and Ors. v. Shantaram Ganpat Gujar and Ors. reported in 2003 Bom. R.C. 638. I am in respectful agreement with the view taken by this Court.
8. Learned Counsel for the Respondent submitted that factually, in the present case, decree was passed before the death of deceased defendant No. 1 Kashinath. It is to be recalled that the decree in Regular Civil Suit No. 408 of 1976 was passed by the Court, at the first instance, on 10th April, 1981 and subsequent thereto defendant No. 1 Kashinath died on 28th November, 1984. The date of will, which is not in dispute, is also subsequent to the date of passing of the decree. Learned Counsel for the Respondent, justifiably relies on a judgment of Supreme Court in the matter of Bhavarlal Labhchand Shah v. Kanaiyalal Nathalal Intawala reported in : [1986]1SCR1 . The Apex Court has considered the provision laid down under Section 5(11)(c)(ii) and 15 of the Act of 1947. It seems from the judgment that case of execution of will by the deceased tenant was also set up by the party concerned. The Apex Court on this back ground held that bequeath of right by the deceased, by will, in favour of the person, who was not member of his family, carrying on business at the time of his death, cannot confer status of tenant under Section 5(11)(c)(ii) of the Act of 1947. Facts in the said judgment are similar to the facts of the case on hand. The ratio of the judgment of the Apex Court, therefore, is applicable to the case on hand.
9. Learned Counsel Mr. Chaudhary has also invited my attention to a judgment of this Court in the matter of Kewalchand Nemchand Mehta since deceased through his LRs. Smt. K.K. Mehta and Ors. v. Mrs. Mani Framji Mody since deceased through her LRs and Ors. reported in 2007 (1) Mh.L.J. 87. Learned Single Bench of this Court held that tenancy rights cannot be bequeathed by way of will. I am in respectful agreement with the view taken.
10. Learned Counsel for the respondent, referring the date of passing of the decree, date of death of defendant No. 1 Kashinath and the date of will, submits the devolution of property by will is out of question under Section 5(11)(c)(ii) of the Act of 1947. According to him, where tenant dies after passing of the decree under the Act of 1947, Section 5(11)(c) has no application. For this proposition, he relies on a Division Bench judgment of this Court in the matter of Homi Jamshedji Khansaheb and Ors. v. Chandrakant Atmaram Lamage and Ors. reported in 1984 Mh.L.J. 719.
11. I have perused the judgment of revisional Court. The revision Court, while considering the revision application under Section 29 of the Act of 1947, framed three points for determination. Maintainability of revision application was point No. 1 and modification in the finding of the trial Court was second point. According to learned Counsel for the Petitioner, having recorded a finding that the revision application is not maintainable, the revisional Court ought not to have decided and disposed of the revision application on merits. It is not possible to accede to the submission of learned Counsel for the petitioner, for more than one reason. Question of jurisdiction and/or maintainability of the proceeding before the Court at first instance can be raised by the party concerned. The Court, at the first instance, ordinarily is supposed to consider and decide all issues arising between the parties in the absence of order that the suit to be disposed of on preliminary issue. The Court seized with the matter may have its on opinion regarding maintainability and/or jurisdiction to entertain the proceeding but the Court concerned has to record its finding on all the issues enabling the superior courts to consider and decide the matter in accordance with the provisions of law. It may happen that the Court at the first instance may record a finding that the suit is not maintainable, which cannot be approved of by the superior Court. In the absence of any finding on merit, the superior Court could not have any other option but to remand the matter which may result procrastinating the litigation. Therefore, it is advisable practice by the court concerned to record finding on all disputed questions/issues and decide and dispose of the suit. In this view of the matter, the finding of the revisional Court, on merits, and against the petitioner, is legal and proper. Despite the finding on maintainability, against the petitioner, the revisional Court has considered the merits of the case and decided and dismissed the revision application, filed by the Petitioner. Such practice is not only legal but laudable for the reason to curtail unnecessary pendency of the litigation. Turning to the fact, in the present case, scientifically it is to be noted that the suit seems to have been filed somewhere in the year 1976 by the plaintiff-landlord seeking possession and first appeal is still pending after about 31 years, before the first appellate Court.
12. Along with this writ petition, I am also considering Civil Application, seeking production of documents. This petition is filed under Article 227 of the Constitution. The order passed by the revisional Court is impugned in this writ petition. In other words, it is not the original proceeding, filed in the High Court under Article 226 of the Constitution. Production of documents, while exercising the writ jurisdiction, has to be considered in consonance with the provision laid down under Order 41 Rule 27 of the Code of Civil Procedure. Needless to say that the applicant has to make out a case, within the parameters of Order 41 Rule 27 of the Code of Civil Procedure. On my query, learned Counsel Mr. Barlinge, for this purpose, read over para 4 and 5 from the Civil Application. No case under Sub-clause (a), (aa) and (b) or Rule 27 of Order 41 is established in this civil application, permitting the production of documents. This Civil Application, therefore, has to be dismissed. However, it is made clear that this order, regarding permission to produce documents, is restricted to the Civil Application filed by the Petitioner, in this Court.
13. In the result, writ petition being sans merit is dismissed. Interim relief stands vacated.
Regular Civil Appeal No. 252 of 1981 is pending on the file of learned District Judge, Jalgaon. Learned Counsel appearing for the parties have no objection for expeditious decision of this appeal. Learned District Judge/Additional District Judge, seized with Regular Civil Appeal No. 252 of 1981 shall decide the appeal expeditiously and as far as possible within three months from the date of appearance of the respondents. The respondents shall appear before the learned District Judge on 23rd July, 2007. No costs.
In view of the above, civil application No. 1817 of 1993 in Writ Petition No. 3019 of 1990 also stands dismissed and disposed of.