Fgp Ltd vs Saleh Hooseini Doctor & Anr

2. The order of the High Court in its

revisional jurisdiction is impugned before

this Court by the appellant herein, a

tenant in respect of the premises being

No.D1, Unit Type 401 on the 4th Floor of the

1 Building known as "Daisylea" situated at

17A, Mount Pleasant Road, Mumbai-400006

(hereinafter "the suit premises").

3. The appellant is a public limited company

whose paid up share capital is more than

Rs.1 crore and is therefore not entitled to

any protection under the Maharashtra Rent

Control Act, 1999. On 16.07.1981 the

appellant entered into a tenancy agreement

with Late Mrs. Sheroo Hooseini Doctor,

mother of the respondents and the original

owner of the suit premises. The appellant

contends that prior to 16.07.1981 the said

owner entered into another agreement with

it and agreed to sell the flat for a sum of

Rs.5 lacs and in the said agreement it was

acknowledged that the payment of the entire

sale consideration of Rs.5 lacs had been

received by the original owner. The

further case of the appellant is that as

2 the sale in terms of the sale agreement

dated 16.07.1981 was not completed within

time, it gave a notice in 1991 to the

vendor to complete the sale and as it was

not completed, the appellant thereafter

filed a suit for specific performance on

10.10.1991 which is still pending in the

High Court.

4. However, the respondents filed a suit being

R.A.E. Suit No.127/338 of 1991 against the

appellant in the Court of Small Causes

under the Bombay Rent Act, 1947 for

possession of the suit premises on the

ground of reasonable and bona fide

requirement. After the amendment of the

provisions of Maharashtra Rent Control Act,

1999 the previous suit of 1991 filed under

the Bombay Rent Act, 1947 was withdrawn on

24.01.2003. Prior to that another suit was

filed on 2.08.2001 by Saleh Hooseini Doctor

3 and Niloofer Arun Sawhney, who are son and

daughter respectively of the original

owner, in the Small Causes Court against

the appellant and it was registered as TE &

R Suit No.427/450 of 2001.

5. On 12.08.2005 the said suit was allowed by

the Small Causes Court of Bombay, inter

alia, holding that the suit is maintainable

as the plaintiffs represent the estate of

the original owner. The trial Court

directed appellant to handover vacant and

peaceful possession of the suit premises

and ordered an enquiry with respect of

mesne profit. Against the said judgment

and order, the appellant filed an appeal

which was dismissed on 30.08.2008 by the

Court of Small Causes Bombay being Appeal

No.731 of 2005.

4

6. Challenging the said order, the revision

application was filed before the High court

which was also dismissed by the High Court

on 2.12.2008. As noted above impugning the

High Court judgment the present proceeding

has been initiated before this Court by the

appellant.

7. Before the High Court it was conceded on

behalf of the appellant that it is a public

limited company having paid up share

capital of more than Rs.1 crore and,

therefore, the suit premises is exempted

from the provisions of Maharashtra Rent

Control Act, 1999.

8. From the reading of the judgment of the

High Court, it appears that the only point

urged before the High Court in revision was

that plaintiffs cannot file the suit, inter

alia, on the ground that the original owner

5 Mrs. Sheroo Doctor and her husband Hooseini

Doctor, even though belonged to Dawoodi

Muslim Community and married according to

Muslim rites, they got their marriage

registered under the Special Marriage Act

on 11.01.1991. As a result of such

registration, the marriage shall, as from

the date of such registration, be deemed to

be a marriage solemnized under the said Act

and as a consequence thereof under Section

21 of the said Act, the property of the

parties shall be regulated under the

provisions of Indian Succession Act, 1925.

It was further urged that as a result of

the necessary corollary of the same, the

provisions of sub-section (2), Section 213

of the Indian Succession Act is not

applicable. Therefore, in the absence of

any probate having been obtained by the

plaintiffs the suit is not maintainable.

6

9. It was further stated that under Section

216 of the Indian Succession Act it is

provided once a probate or letters of

administration have been granted to a

particular person, no other person can sue

or prosecute any suit or otherwise act as

representative of the deceased unless such

probate or letters of administration have

been recalled or revoked. Relying on this

legal position, the learned counsel for the

appellant argued that on 8.5.2002 the

probate was granted by the Bombay High

Court to the husband of the testatrix and

her husband was the sole executor. Since

the probate has not been granted to other

executors the plaintiffs have no right to

file a suit without obtaining probate or

letters of administration. Reliance was

also placed on Section 232(c) and 234 of

the Indian Succession Act.

7

10. No other point was urged before the High

Court.

11. However, before this Court it was submitted

on behalf of the appellant that three

agreements were executed between the

appellant and the owner of the flat in July

1981. The first one was entered into on

14.7.1981 whereby the erstwhile owner of

the flat agreed to sell the same to the

appellant for a sum of Rs.5 lacs and the

said agreement also acknowledged that the

entire sale consideration of Rs.5 lacs have

been received by the erstwhile owner and in

the said agreement it was stipulated that

the appellant would be entitled to occupy

the suit premises as tenants of the vendor

till the suit for specific performance was

decreed. It was also urged that in

pursuance of the said agreement dated

14.7.1981 the original owner executed

8 another agreement dated 16.07.1981 and

thereby let out the suit premises to the

appellant as a tenant. Another agreement

dated 20.7.1981 was also executed on the

stamp paper between the original owner and

the appellant-company, whereby the original

owner again agreed to sell the appellant-

company the suit premises for the same

price of Rs.5 lacs which the original owner

received on 14.07.1981.

12. It is, therefore, urged that under these

circumstances it is wholly illegal for the

Bombay Small Causes Court to decree the

suit in favour of the legal representatives

of the original owner and the High Court,

by not interfering in revision with those

orders, was in error.

13. The appellant also placed reliance on

Section 53-A of the Transfer of Property

9 Act and urged that the original owner of

the suit premises had admittedly contracted

to transfer for consideration by an

agreement in writing the suit premises in

favour of the appellant-company and in part

performance of the said contract the

appellant-company had taken possession of

the property and was willing to perform its

part of the contract. It was also urged

that in fact a suit for specific

performance of the contract is pending

between the parties in Bombay High Court

since 1991 and therefore, Section 53-A of

the Transfer of Property Act debars the

original owner or any other person claiming

under her from enforcing against the

appellant-company any right in respect of

the suit property of which the appellant-

company had taken and continues to remain

in possession. It was urged that the

handing over of possession to the

10 appellant-company by the tenancy agreement

dated 16.07.1981 was in part performance of

the agreement dated 14.07.1981 and Section

53-A of the Transfer of Property Act is

applicable. Therefore, the suit, which was

filed to enforce the ownership right

against the appellant-company who had paid

the entire sale consideration, is not

maintainable.

14. As noted above, neither the case arising

out of the agreement to sell and the

application of Section 53-A nor the case of

specific performance was argued before the

High Court. It appears that the same was

also not argued before the Small Causes

Court either at the trial or at the

appellate stage.

15. Therefore, we can refuse to consider those

arguments. However, since arguments have

11 been advanced, this Court is considering

the same. But we do not find much

substance in those arguments for the

following reasons.

16. Before this court the learned counsel for

the appellant placed reliance on Clause 7

of the alleged agreement to sell dated

14.7.1981.

17. But in the suit which was filed by the

appellant before the Bombay High Court for

specific performance reliance was not

placed on the agreement dated 14.7.1981.

Reliance instead was placed on the

substituted agreement dated 20.07.1981.

The plaint which was filed by the appellant

before the High Court was produced before

this Court and in the plaint reference was

made to Clause 5 of the agreement dated

12 20.07.1981. The said Clause 5 is set out

below:-

"5. The sale shall be completed within three months after the 31st day of January 1982 or at the Vendors option on or after 31st January, 1986 upon the Purchaser calling upon the Vendor to execute the conveyance in favour of the Purchaser and upon the Vendor procuring the income-tax clearance certificate under Section 230A of the income-tax Act and all other permissions and consents which may be required under law."

18. The main thrust of the argument on the

question of specific performance of the

contract is that the appellant has paid

Rs.5 lacs as a sale consideration money

under the agreement to sell dated

14.07.1981. But Clause 5 of the tenancy

agreement dated 16.07.1981 makes it clear

that the said amount of Rs.5 lacs was given

as a security deposit without any interest

for carrying out the terms and conditions

of the tenancy agreement. Clause 5 of the

13 agreement dated 16.7.1981 is set out

below:-

"5. The tenant to deposit with the Owner Rs.5,00,000/- (Rupees Five Lakhs only) as security deposit without interest for carrying out the terms and conditions of this agreement.

This deposit will be refunded to the Tenant on the Tenant vacating the said flat and the said open parking space by giving vacant possession of the said flat and the said open parking space to the Owner."

19. In paragraph 2 of the Specific Performance

suit before the Bombay High Court the said

amount of Rs.5 lacs has been specifically

referred to as security deposit. Paragraph

2 of the said plaint is set out

hereinbelow:-

"By a Deed of Lease executed on 16th July, 1981, the Defendant granted a monthly tenancy to the plaintiffs of the said premises on the terms mentioned therein. The plaintiffs kept a deposit with the Defendant of a sum of Rs.5 lacs by way of security deposit as mentioned in the said agreement. The plaintiffs crave leave 14 to refer to and rely upon the said agreement when produced. Pursuant to the said agreement the plaintiffs were put in exclusive possession of the said premises and the same have been in possession of the plaintiffs since then."

20. It may also be mentioned herein that the

said amount of Rs.5 lacs was deposited by a

cheque by Fiberglass Pilkington Limited,

previously the appellant was known in that

name. The said cheque was given to the

original owner by a forwarding letter dated

14.07.1981 and in the said letter the said

amount has been described as a deposit in

compliance of the tenancy agreement. The

relevant parts of the letter are:

"We refer to the agreement in respect of the above premises and as agreed enclose herewith our cheque No. 990188 dated 14.7.81 for Rs.5,00,000/- on Chartered Bank in your favour, being deposit for compliance with the terms of tenancy agreement between us.

Please acknowledge receipt."

15 21. Therefore, the claim of the appellant that

the said deposit of Rs.5 lacs was sale

consideration money for the suit premises

is contradicted by its averments in the

suit and also from the material documents

on record.

22. Apart from that, Clause 5 of the agreement

dated 20.07.1981, on which the appellant's

suit for specific performance is based,

stipulates that the sale shall be completed

within 3 months after 31.01.1983 or at the

vendor's option on or after 31.01.1986.

There is nothing on record to show that the

appellant ever called upon the owner to

complete the sale within 3 months from

31.01.1983. In fact the appellant did not

take any step for 10 long years and it only

became active after the suit was filed by

the owner for eviction of the appellant in

February 1991. The appellant for the first

16 time wrote a letter dated 19.08.1991

calling upon the owner to complete the sale

in terms of agreement dated 20.07.1981. To

this letter a reply was sent by the owner

on 26.08.1981 refusing to execute the

contract in terms of the option of vendor

under Clause 5 of the agreement dated

20.07.1981. These facts are admitted in

paragraphs 5 to 7 of the plaint filed by

the appellant in specific performance suit.

It may be mentioned in this connection that

neither in the eviction suit filed against

the appellant nor in the appeal filed by

the appellant against the adverse decision

passed against it in the eviction suit, the

plea of specific performance was either an

issue in the suit or a point for

consideration in the appeal.

23. It is well known that the remedy of

specific performance is special and

17 extraordinary in character and is

discretionary in nature. From the facts

discussed above, it appears that the

appellant has not succeeded in making out a

strong case on specific performance so as

to restrain the respondents from proceeding

with their suit for eviction.

24. We, however, make it clear that the

observations made by us on the specific

performance suit filed by the appellant are

tentative in nature. Those observations

have been made as submissions have been

made before this Court that during the

pendency of the appellant's suit for

specific performance, the eviction suit

should have been stayed. In order to deal

with those submissions we have made the

observations as aforesaid. But those are

tentative and will not affect the merits of

the specific performance suit filed by the

18 appellant and which is pending in the

Bombay High Court.

25. The submission by the appellant's counsel

on part performance of the contract under

Section 53-A of the Transfer of Property

Act also cannot be accepted. Section 53-A

of the Transfer of Property Act is based

upon the equitable doctrine of part

performance in English Law. Initially

Section 53-A was not incorporated in the

Transfer of Property Act but the same came

by way of an amendment for the first time

by the Transfer of Property Amendment Act

1929 (Act of 1929). The amendment had to

be made in view of some divergence in

judicial opinion on the application of the

aforesaid equitable doctrine by various

Courts in India.

19

26. Section 53-A of the Transfer of Property

Act has certain ingredients and, in our

judgment, those are:-

(1) a contract to transfer immovable property;

(2) the transfer should be for consideration;

(3) the contract must be in writing;

(4) it should be signed by or on behalf of the transferor;

(5) the terms of the contract can be ascertained with reasonable certainty from the writing;

(6) the transferee takes possession of the whole or part of the property or if already in possession continues in possession;

(7) such taking of or continuance in possession should be in part performance of the contract;

(8) the transferee should do some act in furtherance of the contract; and

(9) he should have performed, or be willing to perform, his part of the contract.

27. The rationale of the equitable doctrine of

part performance in English Law has been 20 traced in Section 53-A by this Court in the

case of Sardar Govindrao Mahadik and

another Vs. Devi Sahai and others - (1982)

1 SCC 237.

28. In paragraph 13, page 249 of the report

while tracing the said equitable doctrine

in the way it has been assimilated in

Section 53-A of the Transfer of Property

Act, the learned Judges held that the act

or action relied upon as "evidencing part

performance" must be of such nature and

character that its existence would

establish the contract and its

implementation. The learned Judges further

held that the crucial act or action must be

of such a character as to be unequivocally

referable to the contract as having been

performed in performance of the contract.

In support of the said conclusion, the

learned Judges referred to an Old English

21 decision rendered in the case of Lady

Thynne Vs. Earl of Glengall (2 HL Cases

131). In referring to the said case, the

learned Judges quoted the observations

therefrom and which are reproduced herein

below:

"...part performance to take the case out of the Statute of Frauds, always supposes a completed agreement. There can be no part performance where there is no completed agreement in existence. It must be obligatory, and what is done must be under the terms of the agreement and by force of the agreement..."

(Page 158 of the report)

29. Relying on the aforesaid principle, the

learned Judges in Sardar Govindrao Mahadik

(supra) reiterated that the act relied upon

by the party invoking the said doctrine

must be such as by its own force to show

the very existence of the same contract.

30. Applying the aforesaid tests, as we must,

to the present situation we find that no

22 case for part performance of the contract

has been made out. Here in the plaint

filed in the specific performance suit, the

case of the appellant is that it was put in

possession of the suit premises pursuant to

the tenancy agreement dated 16.07.1981 and

not on the basis of any other agreement.

If we look at the tenancy agreement, we

will not find that the appellant was put in

possession under the same. In the said

suit no evidence appears to have been led

by the appellant to show how it came to the

possession of the suit premises. This

aspect of the case is quite vague.

31. Apart from that according to the appellant

it allegedly paid Rs.5 lacs as sale

consideration for the suit premises. As

already pointed out in para 2 of the plaint

in the specific performance suit, it has

been clearly averred that the said amount

23 of Rs.5 lacs was kept in deposit with the

original owner of the premises by way of

security deposit in terms of tenancy

agreement dated 16.07.1981.

32. In any event, the appellant is required to

show that it either performed or is willing

to perform its part of the contract. But

admitted facts of the case are to the

contrary. After the execution of the

alleged agreement for sale dated

20.07.1981, the appellant was totally

silent and it is only after more than 10

years thereafter i.e. on 19.08.1991, for

the first time, it asked the owner to

complete the sale and that too after the

ejectment suit was filed in February 1991

by the owner. Thus, in the facts and

circumstances of this case, the doctrine of

part performance under Section 53-A cannot

be invoked. Therefore, there is no merit

24 in the argument advanced on behalf of by

the appellant on that score.

33. Argument advanced on behalf of the

appellant on the competence of the

respondents to file the suit out of which

the present proceeding arises is also

misconceived.

34. If we look at the recitals in paragraphs 2

and 3 of the Will of the original owner, it

would appear that the testatrix appointed

her husband Hooseini Salehbhoy Doctor to be

the executor of the Will and failing him

appointed her sons Saleh Doctor and Parvez

Doctor and daughter Niloofer Sawhney to be

the executors/executrix of the Will jointly

as well as severally for all purposes.

35. Paragraph 3 of the Will is very relevant

and is set out as below:

25

"I DECLARE that in the subsequent clauses of this my Will the expression "my Executors/Trustees" (Whenever the context permits shall mean and include the Executors/Executrix and Trustee or Trustees of this my Will for the time being whether original additional or substituted)."

(Emphasis supplied)

36. It is clear that whenever Hooseini

Salehbhoy Doctor (husband) is unable to act

as executor for whatever reason, the

respondents are substituted as executors

under the Will.

37. The aforesaid recitals in the Will are in

consonance with Sections 222 and 234 of the

Indian Succession Act. For better

appreciation of this point, both the

Sections are set out below:

"222. Probate only to appointed executor. - (1) Probate shall be granted only to an executor appointed by the Will.

26 (2) The appointment may be expressed or by necessary implication."

"234. Grant of administration where no executor, nor residuary legatee, nor representative of such legatee. - When there is no executor and no residuary legatee or representative of a residuary legatee, or he declines or is incapable to act, or cannot be found, the person or persons who would be entitled to the administration of the estate of the deceased if he had died intestate, or any other legatee having a beneficial interest, or a creditor, may be admitted to prove the Will, and letters of administration may be granted to him or them accordingly."

38. From a conjoint reading of these two

Sections, it is clear that the said Act

recognizes the contingency that where the

executor appointed by a Will is unable to

act, any other legatee having a beneficial

interest may be admitted to prove the Will

and letter of administration can be granted

to him.

27

39. Apart from that, in this case, the

respondent No.2 - Niloofar, one of the

plaintiffs is a co-owner of the suit

premises. In paragraph 9 of the Will there

is a specific reference to the suit

premises and also to the pending litigation

in Small Causes Court at Bombay as well as

in the High Court. In paragraph 9 there is

a specific recital that the suit premises

is bequeathed to Parvez H. Doctor. However,

Pervez died on 28.11.1998 and, thus,

predeceased the testatrix who died on

30.1.1999. In such a situation, the

provisions of Section 105 of the Indian

Succession Act, 1925 is attracted.

40. Section 105 of the Indian Succession Act

reads thus:

"105. In what case legacy lapses. -

(1) If the legatee does not survive the testator, the legacy cannot take effect, but shall lapse and form part 28 of the residue of the testator's property, unless it appears by the Will that the testator intended that it should go to some other person.

(2) In order to entitle the representatives of the legatee to receive the legacy, it must be proved that he survived the testator."

41. It is clear from the aforesaid Section that

the suit premises thus become residuary

estate of the testatrix which was to be

distributed in accordance with Clause 11 of

the will.

42. Clause 11 (iii) of the said Will reads as

follows:

"One-third share to be given to my daughter Niloofer absolutely. If my said daughter Niloofer predeceased me the said one-third share of my said daughter Niloofer shall be given to my son-in-law Arun to be held by him in Trust for my grandchildren Manisha and Alisha and any other child born to my said daughter Niloofer, who may be surviving at the time of my death to use the income-interest, if any, from 29 such bequest, for the benefit of the children of my said daughter Niloofer who may be surviving at the time of death and to handover the proportionate share of the corpus in equal shares to each of my said grandchildren on their attaining the age of 25 years or on their marriage whichever is earlier. In case of my son-in-law Arun also predeceased me the said one-third share of my said predeceased daughter Niloofer shall be held in trust by my Executors and Trustees for the benefit of my grand- children born to my said daughter Niloofer and I direct my Executors/Trustees to use the income- interest, if any of such bequest for the benefit of my said grandchildren and to handover the proportionate share of the corpus in equal shares to each of my said grandchildren on their attaining the age of 5 years or on their marriage whichever is earlier."

43. Therefore, respondent no.2- Niloofer along

with others is the residuary legatee and is

one of the owners of the suit premises. A

co-owner can always maintain a suit for

eviction.

44. It has been urged by the learned counsel

for the appellant that in the Suit which

30 has been filed by the respondents they have

not asserted that they are filing it as co-

owners but they have claimed that they are

filing it as executors/executrix. So they

cannot now meet the challenge of

maintainability of the Suit on the ground

that it was filed by the respondents as co-

owners.

45. It is not possible to accept the aforesaid

contention in the facts of this case. This

Court is of the opinion that if the status

of the respondents as co-owners of the

property transpires clearly from the

admitted facts of the case, they cannot be

denuded of the said status at the instance

of some objections by the tenants.

Normally, a tenant's right to question the

title of a landlord is very limited in view

of rule of law which is codified in Section

116 of the Indian Evidence Act.

31

46. Apart from that it has been held in some

decisions of this Court that a co-owner of

a property is an owner of the property,

till the property is partitioned.

47. In Sri Ram Pasricha Vs. Jagannath and Ors.

- (1976) 4 SCC 184, it has been held that a

co-owner is as much an owner of the entire

property as any sole owner. In coming to

the said finding, the learned Judges relied

on the proposition laid down in Salmond on

Jurisprudence (13th edition). The relevant

principles in Salmond on Jurisprudence are

set out herein below:

"...It is an undivided unity, which is vested at the same time in more than one person....The several ownership of a part is a different thing from the co- ownership of the whole. So soon as each of two co-owners begins to own a part of the thing instead of the whole of it, the co-ownership has been dissolved into sole ownership by the process known as partition. Co-

32 ownership involves the undivided integrity of what is owned.

48. Relying on the aforesaid jurisprudential

principles, this Court in Sri Ram Pasricha

(supra) held as under:

"Jurisprudentially it is not correct to say that a co-owner of a property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part-owner or a fractional owner of the property. The position will change only when partition takes place..." (Para 27, page 190 of the report)

49. Since in the instant case, no partition has

taken place, the plaintiffs' status as co-

owners cannot be disputed by the tenant and

it is nobody's case that there is a clash

of interest between the respondent and co-

owners.

50. Therefore, the Suit is maintainable.

33

51. Reference in this connection may be made to

a decision of this Court in Mohinder Prasad

Jain Vs. Manohar Lal Jain - (2006) 2 SCC

724. In para 10 of the said report, learned

Judges referred to a decision of this Court

in India Umbrella Mfg. Co. Vs. Bhagabandei

Agarwalla - (2004) 3 SCC 178, which in turn

relies on Sri Ram Pasricha (supra). The

principles which have been affirmed in

Mohinder Prasad Jain (supra) are that one

co-owner filing a suit for eviction against

the tenant does so on his own behalf in his

own right and as an agent of the other co-

owners. In this matter, the consent of

other co-owners is assumed as taken unless

it is shown that the other co-owners were

not agreeable to eject the tenant and the

suit was filed in spite of their

disagreement.(See para 10 page 727 of the

report). It is nobody's case here that

34 other co-owners are objecting to the filing

of the suit in question.

52. Apart from that in this case, the appellant

has admitted the title of the respondents

as it has joined them as defendants in

their specific performance suit as

executors. This appears from the judgment

in Appeal No. 731 of 2005 dated 30.8.2008

in the Court of Small Causes at Bombay. The

exact conclusions of the appellate Court

are set out below:

" ..In that suit (specific performance suit), present plaintiffs are joined as defendants..... It means the defendant admitted derivative title of the present plaintiffs...."

53. In this connection, we must see the

distinction between Sections 211 and 213 of

the Indian Succession Act. Under Section

211 of the said Act, the executor or

administrator, as the case may be, of a 35 deceased person is his legal representative

for all purposes, and all the property of

the deceased person vests in him as such.

Here the legal representatives will have

the same meaning as has been given in

Section 2(11) of the Code of Civil

Procedure.

54. Section 2(11) of the Code of Civil

Procedure provides as under:

"legal representative" means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued".

55. Therefore, it is Section 211 and not

Section 213 that deals with the vesting of

property. This vesting does not take place

as a result of probate. On the executor's

accepting his office, the property vests on

him and executor derives his title from the 36 Will and becomes the representative of the

deceased even without obtaining probate.

The grant of probate does not give title to

the executor. It just makes his title

certain. Under Section 213, the grant of

probate is not a condition precedent to the

filing of a suit in order to claim a right

as an executor under the will.

56. This vesting of right is enough for the

executor or administrator to represent the

estate in a legal proceeding. It has been

held in Kulwanta Bewa Vs. Karam Chand Soni

- reported in AIR 1938 Calcutta 714 that

the whole scheme of the Act is to provide

for the representation of the deceased's

estate for the purpose of administration.

That vesting is not only for the beneficial

interest in the property but is also for

the purposes of representation. Similarly,

it has been held in Meyappa Chetty Vs.

37 Supramanian Chetty - (1916) 43 IA 113, that

an executor derives his title from the Will

and not from the probate and the right of

action in respect of personal property of

the testator vests in the executor on the

death of the testator.

57. But Section 213 operates in a different

field. Section 213 enjoins that rights

under the Will by executor or a legatee

cannot be established unless probate or

letters of administration are obtained.

58. Therefore, Section 211 and Section 213 of

the said Act have different areas of

operation. Even if Will is not probated

that does not prevent the vesting of the

property of the deceased on the

executor/administrator and consequently any

right of action to represent the estate of

38 the executor can be initiated even before

the grant of the probate.

59. Similar opinion has been expressed by this

Court in Commissioner, Jalandhar Division

and Ors. Vs. Mohan Krishan Abrol and Anr. -

(2004) 7 SCC 505 (See para 10 at page 513).

So the suit filed by the respondents as

executors is also maintainable.

60. Thus on the facts of the case this Court

does not find any justification for its

interference with the decision of the High

Court rendered in its revisional

jurisdiction. In coming to this conclusion,

this court has considered the facts of this

case and also the fact that appellant is

paying a meager sum of Rs. 900/- and odd

per month for occupying the said flat in a

prime area in Mumbai. Appellant is not in

occupation of the said flat and since 2000

39 has admittedly allowed a total outsider,

one Mr. Abhik Mitra, the Managing Director

of a Company known as Sa Re Ga Ma Pa Ind.

Ltd., to occupy the said flat. The flat is

lying vacant since May, 2005.

61. As against all these facts when we find

that the Suit is for reasonable requirement

and was filed by the grandchildren of the

testatrix, this Court, in our judgment,

should not exercise its discretionary

jurisdiction by interfering with the

eviction proceeding which culminated in the

revisional order of the High Court.

62. Reference in this connection be made to a

decision of this Court in Balvantrai

Chimanlal Trivedi, Manager, Raipur Mafg.

Co. Ltd. Ahmedabad Vs. M.N. Nagrashna and

Ors. - AIR 1960 SC 407. In para 5 at page

408 of the said report, a three-Judge Bench

40 of this Court posed a question whether this

Court should interfere under Article 136 of

the Constitution and when in the facts of

the case there is no failure of justice.

The question has been answered by this

Court as follows:

"5. The question then arises whether we should interfere in our jurisdiction under Article 136 of the Constitution, when we are satisfied that there was no failure of justice. In similar circumstances, this Court refused to interfere and did not go into the question of jurisdiction on the ground that this Court could refuse interference unless it was satisfied that the justice of the case required it; see: A.M. Allison Vs. B.L. Sen (1957) SCR 359: ((S) AIR 1957 SC 227).

On a parity of reasoning we are of the opinion that as we are not satisfied that the justice of the case requires interference in the circumstances, we should refuse to interfere with the order of the High Court dismissing the writ petition of the appellant."

63. An attempt was made to review the said

judgment. The review petition was decided

by a Constitution Bench of this Court.

Justice Wanchoo speaking for unanimous 41 Constitution Bench has very succinctly, if

we may say so, outlined the parameters of

this Court's jurisdiction under Article 136

of the Constitution and those observations,

which we should always remember while

exercising jurisdiction under Article 136,

are as follows:

"...It is necessary to remember that wide as are our powers under Article 136, their exercise is discretionary; and if it is conceded, as it was in the course of the arguments, that this, Court could have dismissed the appellant's application for special leave summarily on the ground that the order under appeal had done substantial justice, it is difficult to appreciate the argument that because leave has been granted this Court must always and in every case deal with the merits even though it is satisfied that ends of justice do not justify its interference in a given case..." (See AIR 1960 SC 1292 at 1294)

64. For the reasons stated above, we do not

find any merit in this appeal which is

dismissed accordingly. However, we are

restraining ourselves for passing any order

as to costs in view of the excellent 42 assistance rendered to this Court by the

learned counsel for the appellant.

Therefore, there is no order as to costs.

.......................J. (MARKANDEY KATJU)

.......................J. New Delhi (ASOK KUMAR GANGULY) September 15, 2009

43