Only a court order can evict a gratuitous licensee

G P khungar

My brother is a serving Defense Service Officer who is currently posted at Calcutta. He owns a residential apartment on Napean Sea Road at Mumbai which, though lying vacant for the period 1987-1995, was given to a family friend’s relation for occupation in 1996, for a period of six months initially. However, my brother neither executed any license or lease agreement nor any rent was demanded by my brother or paid by the occupants. Upon determination of the agreed period of six months, he asked the couple to vacate the premises. They, however, pleaded at that time for some more time because their business was in dire state and also with a recent addition in the family they were unable to move immediately for want of suitable alternate accommodation. He, therefore, permitted them to stay for a further period of three to four months. Despite protracted correspondence they did not vacate the premises and actually upon expiry of one year period they tried to send him a small amount as rent by money order which he did not accept. All our efforts in the meantime to get the premises vacated have failed so far and, in sheer frustration, last year we offered to buy them a one bedroom apartment at Vasai costing about Rs 5.50 lakh. But they demanded an apartment situated between Santacruz and Mahim, costing Rs 12-13 lakh. We rejected the offer and the stalemate continued. Although we do not need the premises for self-occupation, we have a ready buyer for them, provided we can offer its vacant and unencumbered possession. We understand some changes in the Maharashtra Rent Act, 1999, facilitate expeditious resolution of property related disputes out of court and we shall therefore be grateful if you would kindly guide us in the matter.
—Hemani Taraporevala, PUNE

Even though your brother is not recovering any rent from the occupant of his apartment at Mumbai for the past five year the status of the occupant is that of a ‘Gratuitous Licensee’. There are Supreme Court rulings on the subject which stipulate that even a ‘Gratuitous Licensee’ can not be evicted from the premises without first securing eviction orders from the court. Under the circumstances you have no option but to file a suit under section 41 of the Presidency Small Causes Act in the small causes court at Mumbai for recovering possession of the premises. You cannot charge any rent till such time as the tenancy of a ‘Gratuitous Tenant’ has been terminated and a suit for his eviction has been ruled upon. In the suit itself you have to claim for wrongful occupation charges and ‘mesne profit’ from the date of filing of the eviction suit. These charges/profits along with litigation costs can be awarded by the Court decreeing the suit.

I have recently inherited assets subsequent to my husbands demise as per his last will and testament to the extent of Rs 70 lakh in securities and bank balances and an apartment at Mumbai that I am currently occupying along with my three minor children. The will specifically creates my life interests in these assets and enjoins upon me to pass on the residual movable assets and the immovable asset to my children in equal measure. Whilst I have full powers during my life time to deal with the movable assets at my exclusive discretion I have been debarred from selling the residential apartment. I have been considering joining my parental HUF (Hindu Undivided Family) and transferring the movable assets to them to enable the parental HUF manage these assets on my own and my minor children’s behalf. Can I legally do this? Also can I will the apartment jointly to my two sons and compensate my daughter by giving her a larger share of the movable assets? These bequests will take effect only after my demise. Please let me have the benefit of your guidance in the matter.
—Prabha Desai, MUMBAI

From the narration of facts provided by you, it is not clear whether your late husband was member of any HUF and whether the assets bequeathed by him to you constituted his self acquired property. Presumably your husband was not a co-parcener or a member of any HUF because had it been so, then he could not have willed these assets to you. HUF like a corporate house is an ongoing legal entity and any male co-parcener can withdraw from it by seeking division of its assets. The law does not permit you to join your parental HUF although this is no bar on your starting your own HUF provided these are at least two major members who can or with the passage of time will be able to claim a partition of assets. In the event you would like your parental HUF to manage your movable assets and pay you a regular income you can certainly achieve your objective by lending the funds to them under a proper agreement for a specified period of time. This agreement should specify the rate of interest that your investment would earn and the periodicity and manner in which it would be disbursed to you. Upon determination of the loan term, unless renewed sufficiently in advance of the maturity date, the loanee on the loan maturity should undertake to return the deposit to you.

As far as the second issue is concerned, we have to understand the intention behind the will. Your husband was not only interested in protecting you for life but also he wished to secure the interest of his children in your hands. You have therefore to understand that your intended implied role is that of a custodian and in each and every one of your actions safeguard your children’s future interest should be your prime consideration. To give effect to your husband’s wishes you should draw up your own will and bequeath the apartment jointly to your sons. Your husband’s will only debars you from selling the property and not apportion it amongst your heirs. You can certainly provide for a larger share in the bequest for your daughter or her heirs in the movable assets and stipulate that the balance amount shall be equally distributed amongst your sons or their surviving heirs. Do explain in your will why a larger share of movable assets is being assigned to your daughter.