REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.6257/2009 @ SPECIAL LEAVE APPEAL (CIVIL) NO. 30374 OF 2008

FGP Ltd. ...Appellant(s)

- Versus -

Saleh Hooseini Doctor & Anr. ..Respondent(s)

J U D G M E N T

GANGULY, J.

1. Leave granted.

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the Bombay Rent Act, 1947 was withdrawn on  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