Supreme Court of India
GAIV DINSHAW IRANI & ORS.versusTEHMTAN IRANI & ORS.
- Citation
- 2014 INSC 341
- Decided
- 25 April 2014
- Disposal
- Dismissed
- Bench
- GYAN SUDHA MISRA
Holding
The BMC's transfer of the tenancy to Dinshaw Irani was illegal and void ab initio, rendering the surrender, lease, and construction void, and the High Court's moulded relief allocating five flats to the other heirs was upheld.
Summary
The original tenant, Bomanji Irani, bequeathed his government‑owned tenancy to his wife Daulatbai, who was a residuary legatee, and the tenancy was held jointly by her and their five sons. After Daulatbai's death, the Bombay Municipal Corporation (BMC) transferred the tenancy to one son, Dinshaw Irani, based on a 1961 consent letter that was later revoked and found to lack bona‑fide. The Supreme Court held that, under the Indian Succession Act and prevailing tenancy law, the tenancy could not be bequeathed to a single heir and the BMC's transfer was illegal and void ab initio, rendering the subsequent surrender, lease of a new plot, and construction illegal. The Court also affirmed that an appellate court under Section 96 of the CPC may mould relief in view of subsequent events, and upheld the High Court’s allocation of five flats to the other heirs. Consequently, the appeals were dismissed and the relief granted by the High Court stood.
Issues considered
- The validity of bequeathing government tenancy rights by will to a residuary legatee under the Indian Succession Act and tenancy law.
- Whether the BMC's 1981 transfer of tenancy to Dinshaw Irani, based on a purported consent letter, was lawful.
- The effect of the illegal transfer on the subsequent surrender of tenancy, lease of a new plot, and construction undertaken by the appellant.
- The power of an appellate court under Section 96 of the Code of Civil Procedure to mould relief based on subsequent events.
- The propriety of allocating five flats to the other heirs as part of the moulded relief.
Legislation cited
- Bombay Municipal Corporation Act, 1888s. 527
- Bombay Rent Control Act, 1947s. 4(1)
- Code of Civil Procedure, 1908s. 96
- Indian Succession Act, 1925s. 213, s. 52
Subjects
government land tenancybequest by willIndian Succession Actjoint tenancyvoid transfersection 96 CPCrelief mouldingsubsequent eventsBombay Municipal Corporationleasehold rights
Judgment
[2014] $ S.C.R. 646
A GAIV DINSHAW !RANI & ORS.
v.
TEHMTAN !RANI & ORS.
(Civil Appeal No. 4887 of 2014)
APRIL 25, 2014
B
[GYAN SUDHA MISRA AND
PINAKI CHANDRA GHOSE, JJ.)
·Lease:
c
Government land - Tenancy rights - Disposal of by
means of a will - Explained - Original tenant bequeathing the
property by a will in favour of his children and wife - Appointing
his wife as a residuary legatee - Wife died intestate - Held:
0 As per s.52 of Indian Succession Act, prior to the amendment
of"1991, a Parsi female intestate's property shall be divided
equally amongst her children and the statute does not
distinguish between step-childre~ and children - Tenancy
which was jointly held by residuary legatee and her. sons
E devolved upon her sons on her death by virtue of their being
joint tenants and her heirs under Indian Succession Act -
Therefore, transfer by BMC in favour of second defendant is
illegal and void ab initio - Consequently, all events that
follow, i.e. surrender of part of tenancy by second defendant
and in lieu allotment of new plot to him ar~ also rendered void
F ab initia and construction by appellants on said plot is illegal
- Indian Succession Act, 1925 - s. 52.
· Subsequent events:
G Moulding of relief - By High Court in appeal u/s 96 CPC
- Held: In ordinary course of litigation, rights of parties are
crystallized on the date the suit is instituted and only ttie sam,e
set of facts· must be considered - However, in the interest of
justice, a court including a court of appeal ills 96 CPC is not
H 646
GAIV DINSHAW IRANi v.TEHMTAN IRANI 647
~ . ..,.
precluded from taking note of developments subsequent to A
commencement of litigation, when such events have a direct
bearing on the relief claimed by a party or on the entire
purpose of the suit, and courts taking note of the same should
mould the relief accordingly - In the instant case, appellants
during pendency of civil suits sought interim orders from High B
Court and on the basis of said orders constructed structure
on the condition that rights of five flats were to be retained and
they were subject to the outcome of the suit - High Court
taking note of the subsequent events has correctly mouldf!d
the relief and allotted five flats to five respondents as per their c
share.- Code of Civil Procedure, 1908 - s.96 - Power of
appellate court to mould relief pursuant to subsequent events.
The original tenant of the suit property executed a
will dated 15.10.1934 in favour of his children and wife,
appointing his wife as a residuary legatee of the will D
(residuary legatee). The original tenant died in 1946 and
the said will was probated. In 1961 the Bombay Municipal
Corporation (BMC) respondent no. 6 iss~ed eviction
notices to the heirs of the original tenant, which they
objected to and consented to the tenancy being E
transferred in the name of defendant no. 2, one of the five
sons of the original tenant. On 3.2.1962, the residuary
legatee addressed a letter to BMC for transfer of rent bills
in the name of defendant no. 2. The BMC passed eviction
order dated 24.10.1963, wh.ich was challenged by the F
heirs of original tenant in Suit No. 545111963 filed by them
as joint tenants. The suit was decreed and the order
passed by BMC. terminating the tenancy was set .aside .
. BMC transferred the tenancy in favour of defendant no.
, 2,_ who subsequently surrendered tenancy rights of the G
_isuit premises and in exchange he was granted a lease
·of 60 years on a part of the suit premises on which he
. started construction. The legal heirs of the _other sons of
the original tenant, namely; respondents nos. 1 to 5 filed
two suits, i.e. Long Cause Suit No. 1914 of 1983 H
. 648 SUPREME COURT REPORTS [2014] 5 S.C.R.
A challenging the transfer of tenancy in favour of defendant
no. 2 and Long Cause Suit No. 1877 of 1985 challenging
surrender of tenancy and grant of fresh lease in favour
of defendant no. 2. The plaintiffs sought certain interim
reliefs and not satisfied with the interim orders, filed A.O.
B No. 438/1988 and the High Court passed interim orders
allowing the defendants to proceed with the construction
work subject to the conditions imposed and directed the
trial court to dispose of the suits. The trial court
dismissed both the suits. However, the High Court
c allowed both the appeals of the plaintiffs holding that the
original plaintiffs (respondents) were joint tenants with
original defendant No.2 (predecessor of appellants);
consequently, the surrender of tenancy by defendant
No.2 in favour of BMC was illegal and the transfer of
0 tenancy by BMC in the name of defendant No.2 was
incorrect, void and not binding upon the plaintiffs. The
High Court directed appellants to handover possession
of the five flats to respondent Nos.1 to 5.
Dismissing the appeals, the Court
E
HELD: 1.1. In general tenancies are to be regulated
by the governing legislation, which favour that tenancy
be tranMerred only to family members of the deceased
original tenant. However, in light of the majority decision
F of the Constitution Bench in Gian Devi vs. Jeevan Kumar,
the position which emerges is that in absence of any
specific provisions, general laws of succession is to
apply. This position is further cemented by the decision
of this Court in State of West Bengal vs. Kai/ash Chandra
G Kapurwhich has allowed the disposal of tenancy righ~
of Government owned land in favour of a stranger by
means of a will in the absence of any specific clause/or
provisions. [para 26) [674-F-H; 675-A] ·
Gian Devi Anand vs. Jee van Kumar & Ors. 1985 (1)
H Suppl. SCR 1 = (1985) 2 SCC 683; and State of West
GAIV DINSHAW IRANI v. TEHMTAN IRANI 649
Bengal & Anr. vs. Kai/ash Chandra Kapur; & Ors. 1996 (9) A
Suppl. SCR 398 =(1997) 2·sec 387 - relied on.
Bhavarlal Labhchand Shah ·vs. Kanaiyalal Nathalal ·
lnt<iwala 1986 (1) SCR 1 = (1986) 1 SCC 571; Vasant Pratap
Pandit vs. Dr. Anant Trimbak Sabnis (1994) 3 SCC 481; B
Sangappa Kalyahappa Bangi vs. Land Tribunal, Jamkhandi
=
& Ors. 1998 (1) Suppl. SCR 600 (1998) 7 SCC 294; H.C.
=
Pandey vs.,G.C. Paul 1989 (2) SCR 769 (1989) 3 SCC 77;
and Parvinder Singh vs. Renu Gautam & Ors. 2004
(1) Suppl. SCR S10 =- (2004) 4 SCC 794 - referred to.
c
1.2. In the instant ca~e, the tenancies are owned by
BMC and allegedly by means .of a will, were bequeathed
to testator's wife asa residuary legatee in 1946. Such
transfer appears to be permissible in light of the
Constitution Bench decision. However, as the legal D
position regarding the permissibility of bequeathing a ·
tenancy by will in 1946 was not decided, this Court will
rely on the admissions of the parties in regard to the
same. The BMC by means of letter dated 19.9.1961
treated all the heirs of original tenant as joint tenants; and E
the heirs of original tenant by means of letter dated
25.10.1961 also claimed themselves to be joint tenants;
the wife of original tenant in her letter dated 3.2.1962 also
claimed joint tenancy along with her sons and sought
transfer of the rent receipts only in the name of her son, F
defendant no, 2. By letter dated 11.11.1962 once again
all the heirs of original tenant including his wife claimed
themselves to be joint tenants ,in the eviction suit being
Suit No. 5451 of 1963. The wife of original tenant also
regarded herself to be a joint tenant with the other sons. G
[para 27] [675-B-E]
1.3. As per s.52 of the Indian Succession Act, prior
to the amendment of 1991, a Parsi female intestate's
property shall be divided equally amongst her children H j
and the statute does not distinguish between step-
650
.•
SUPREME COURT REPORTS (2014] 5 S.C.R .
A children and children. The tenancy which was jointly held
by residuary legatee and her. sons as admitted by them .
and recognized by the trial court in its judgment dated
July 11, 1977 in Suit No. 5451 of 1963, devolved upon her
· sons on her death by virtue of their being joint tenants
B and her heirs under the Indian Succession Act. The
.original plaintiffs and defendant No.2 always treated and
recognized the tenancy as a joint tenancy and the same
was also recognized by BMC to be so. This fact attained
finality when the finding of the trial court in Suit No. 5451
c of 1963 that it was "no longer in dispute that after the.
demise of Bomanji, the Plaintiffs became the tenants in
respect of the Suit Properties", was not cha IIeng ed. by any
of the parties to the dispute. Moreover, there is nothing
on record to show that the other sons or the original
0 plaintiffs denied their stake in the same. (para 28-29] (675-
G; 676-A-D]
It 1.4. Regarding the purported "consent letter" dated
25;10.1961 and the subsequent transfer of tenancy to D-
2 on 18.9.1981, as admitted by the BMC, the same is illegal
E and lacking bona fide. In 1961 when the joint tenants were
served with an eviction notice, then for the sake of
convenience only the "purported" letter of consent dated
October 25, 1961 was issued. This letter does not have
any validity in law and does not amount to surrender or
F relinquishment of rights of the original plaintiffs in the suit
premises. In a subsequent letter dated 3.2.1962
addressed by residuary legatee to the BMC, she sought
the transfer of rent receipts only, in the name of D-2. The
existence of the said letter is also admitted by the
G appellants and in the same letter it was stated that the ·
tenancy was a joint tenancy. Moreover, the "consent
letter" stands passively revoked in light of the pleadings
in Suit No. 5451 of 1963 where the heirs of original tenant
including D-2 claimed themselves to be joint tenants in
H the suit premises and the specific finding of the trial' court
,, ;.
' '
GAIV DINSHAW IRANI v. TEHMTAN IRANI 651
in the said suit was not challenged by any of the parties, A
Further, D-2 with his other three brothers also made a
joint representation· on 4.8.1975 before the BMC against
the eviction notices on the basis of joint tenancy
devolving upon them after the death of the original
tenant Thus, the appellants cannot take a stand contrary B
to what has been pleaded earlier in the legal
proceedings. Furthermore, it must be noted, any consent
given was expressly revoked by letter dated December
22, 1980 addressed on behalf of the plaintiffs and
admittedly received by BMC on February 2, 1981. The c
said letter also acted as a notice u/s 527 of the BMC Act.
Thus, the tenancy rights were never transferred
exclusively in the name of D-2. Therefore, the transfer
dated September 18, 1981 by the BMC in favour of D-2
based on the letter dated October 25, 1961 is illegal and
0
the reliance on the same by BMC is misplaced. The High
Court has correctly opined that the conduct of BMC
lacked bona fide and same has not been challenged by
the BMC. [para 30-31] [676-D-H; 677-A-D; 679-H]
1.5; Thus, this Court holds that the transfer of E
tenancy by BMC in the name of D-2 is illegal and void ab
initio. Consequently, all the events that follow, i.e, the
surrender of part of the tenancy by D-2 to BMC and, in
lieu, allotment of the new plot to him, are also rendered
void ab initio. [para 32] [680-A-B] F
1.6. Since the lease of the 1152 sq. mts executed by
BMC in favour of D-2 has been rendered void ab initio,
the construction by the appellants on the said plot is also
illegal. The position as it exists on date is that the G
remaining portions of Irani Wadi have been acquired by
the BMC; and on the other portion, the structure erected
by D-2 exists and the portion being the residential
bungalow occupied by the respondents may also be
acquired by BMC in due course. Considering the HI /
652 SUPREME COURT REPORTS [2014] 5 S.C.R.
A changed circumstances, the High Court taking note of
the subsequent events moulded the relief in the appeal
u/s 96 of the Code of Civil Procedure. [para 33-34] [680-
B-D] .
2.1. In ordinary course of litigation, the rights of
8
parties are crystallized on the date the suit is instituted
and only the same set of facts must be considered.
However, in the interest of justice, a court including a
court of appeal u/s 96 CPC is not precluded from taking
note of developments subsequent to the commencement
C of the litigation, when such events have a direct bearing
on the relief claimed by a-party or on the entire purpose
of the suit, and the courts taking note of the same should
mould the relief accordingly. [para 34] (680-E-F]
D Pasupuleti Venkateswar/u vs. The Motor and General
Traders 1975 (3) SCR 958 = (1975) 1 SCC 770 and
Lachmeshwar Prasad Shukul vs Keshwar Lal Choudhury AIR
1941 FC 5; Lekh Raj vs. Muni Lal & Ors. 2001 (1) SCR 864 =
(2001) 2 SCC 762; Sheshambal (dead) through LRs vs.
E Chelur Corporation Chelur Building & Ors. 2010
(2) SCR 960 = (2010) 3 SCC 47; Rajesh D. Darbar and Ors.
vs. Narasinghro Krishnaji Kulkarni and Ors. 2003 (2) Suppl.
=
SCR 273 (2003) 7 SCC 219; Beg Raj Singh vs. State of
Uttar Pradesh & Ors. 2002 (5) Suppl. SCR 530 = (2003) 1
F SCC 726; Bihar State Financial Corporation & Ors. vs.
Chemicot India (P) Ltd. & Ors. 2006(5) Suppl. SCR 312 =
(2006) 7 SCC 293; Parents Association of Students vs. M.A.
Khan & Anr. 2008 (17) SCR 735 = (2009) 2 SCC 641; State
of Uttar Pradesh & Ors. vs. Mahindra & Mahindra Ltd. 2011
G (5) SCR 509 = (2011) 13 SCC 77 ·referred to.
Patterson vs. State of Alabama 294 US 600 - referred .
to.
2.2. Thus, when the relief otherwise awardable on the
H date of commencement of. the suit would become
GAIV DINSHAW IRANI v. TEHMTAN IRANI 653
inappropriate in view of the changed circumstances, the A
courts may mould the relief in accordance with the
changed circumstances for shortening the litigation or to
do complete justice. [para 35] [683-F-G] . ·
. 2.3. The appellants during the pendency of the civil ·B
·suits sought interim orders from the High· Court and on
the basis of order dated April 20, 1988 constructed the
structure on the condition that rights of five flats were to
be retained and they were subject to the outcome of the
suit. In another order dated October 16, 1991 the C
appellants were once again restrained from the creation
of third party rights with respect to the five demarcated
flats. The appellants being well aware of the risks and
conseq'uences, carried on with the construction. In the
circumstances, th.e High Court taking note of the
supsequent events has correctly moulded the relief and D
to
allotted five flats respondent Nos. 1 .to 5 as per their ·
share. [para 36-37] (684-A-C, D]
, Shiv. Kum qr Sharma vs. Santosh Kumari 2007(10)
SCR 17 = (2001) 8 SCC 600; Bachhaj Nahar vs. Nilima · E
Maodal and Anr. 2008 (14) SCR 621 = (2008) 17 SCC 491;
Sangramsinh P. Gaekwad & Ors. vs. Shantadevi P. Gaekwad
=
.& Ors. 2005 (1 )' ·SCR 624 (2005) 11 SCC 314; Pasupu/eti
Venkateswarlu vs. .The Motor and General Traders 1975 (3)
SCR 958 = (1975) 1 SCC 770; Ramesh Kumar vs. Kesho F
Ram· (1992)"Supp 2 SCC 623 - cited.
Case. Law Reference:
2007 (10f SCR 17 cited para 6
I
2008 (14) SCR 621 cited ·para 6 G
2005 (1) SCR 624 cited para 9
1985 (1).Suppl. SCR 1 relied on Para 22
'1986 (1) SCR 1 referred to . para 22 H
654 SUPREME COURT REPORTS [2014] S~S.C.R.
'
A (1994) 3 sec 481 referred to para 23
, ' 1998 (1) Suppl. SCR 600 referred to para 24
1996 (9) Suppl. SCR 398 relied on Para 25
B .. 1989 (2) SCR 769 referred to para 25
2004 (1) Suppl. SCR 610 referred to para 25
' 294 us 600 referred to para 34
AIR 1941 FC 5 referred to para 34
c r l I'
. : 1975 (3) SCR 958 cited para 34
(1992) supp 2 sec 623 cited para 34
· 2001 (1) SCR 864 referred to para 34
-
D 2010 (2) SCR 960 referred to par~ 34
2003 (2) Suppl. SCR273 referred to para 34
2002 (5) Suppl. SCR 530 referred to para 34
E 2006-(5) Suppl. SCR 312 referred to para 34
.. 2008 (17) SCR 735 referred to para' 34
'
2011 (5) SCR 509 ref~rred to para 34
F CIVIL APPELLATE JURISDICTION : Civil Appeal No.
4887 of 2014. • ·'
From the Judgment & Order dated 30.9.2005 of°the High
Court of Judicature at Bombay in First Appeal No. 970 of 1995.
•'
G WITH
C.A. No. 4888 of 2014.
, Dhruv Mehta, R:N. Karanjawala, Nandini Gore, Debmalya.
Banerjee, Kartik Bhatnagar, Devina Sehgal, Prasenjit
H Keswami, Manik Karanjawala for the Appellants. ?
"''
GAIV DINSHAW IRANlv. TEHMTAN IRANI . 655
. .
Dr. AM. Singhvi, Gopal Jaiti, Anirudh Joshi, Ranjeev ·A
Carvalha, Mahesh Agarwal, Risfik Agrawala, E:C. Agrawa1a,
Radhika Gautam, AbhinavAgrawat:·Manisha Ambwani, Naresh
Kumar, Vinay Navare, Keshav Ranjan, Satyajeet Kumar, Abha
R. Sharma, Purnima Bhat, Atul Y: Chitale, Sanyukta Mukherjee,
Jayati Y. Chitale, Suchitra Atul Chitale, J.J. Xavier, Shivaji M. B ·
Jadhav, ·Lawyer's. Knit & Co., Vivek Sharma for t.he
Respondents.
The Judgment of the Court was delivered by
PINAKI CHANDRA GHOSE, J.1. Leave granted. C
· 2. These appeals are directed against the judgment and ·
.order dated September 30, 2005 in .First Appeal No. 970/1995
with First Appeal No.1075/1995 passed by the High Court of
Bombay. The High Court allowed both these appeals; set aside
0
the judgmeQts and decree passed by the Trial Court in both the .·
suits;. and gecreed both the suits, i.e., Long Cause Suit No, 1914
of 1983 as well as Long Cause Suit No.1877 of 1985 in terms
of ttie prayers. The High Court further directed the defendants .
to imi;nediately place the plaintiffs ·in possession of the five flats E
which were kept reserved by virtue of the interim orders passed
by the High Court from ·time to time; and the stay on the ·
Bombay Municipal Corporation regarding the development of
the remaining property was directed to be vacated.
3. The facts of the case briefly are as follows: F
. 3:1. Qne Bomanji Irani, who is the predecessor of
appellants herein, acquired tenancy rights in .respect of the
pr~mises admeasuring 6500 sq. yds., known as 'Irani Wadi',
situaJed at Ma~gaon, Mumbai. This premises comprised of .
resi.dential Bungarow, open land .used for Nursery, and Mali's· G
quarters, hereinafter referred to as the suit premises. Bomanji
· executed a Will dated October 15, 1934 in favour of his children·
and wife Daulatbai, appointing Daulatbai as a residuary legatee
bf the Will.-Bomanji Irani died on September 27, 1946 leaving
'behind his wife Daulatbai; five sons, namely (1) Ardeshir (2) H
656 SUPREME COURT REPORTS [2014] 5 S.C.R. ·
A Jehangir (3) Framroze (4) Dinshaw and (5) Homi; and three
daughters, namely (1) Ketayun (2) Homai and (3) Nargis. The
Will was probated with consent of all the legal heirs and
Daulatbai had rights over the suit premises and the tenancy
rights which, as claimed, cannot be. bequeathed as per law.
B Daulatbai executed a Will on January 2, 1949 in favour of her
son Dinshaw who was the original defendant No.2. However,
the said Will was not probated.
3.2. The then Bombay Municipal Corporation (beirg
Respondent No.6, hereinafter referred to as 'BMC') acquired
C ownership rights in respect of the suit premises and on
September 19, 1961 issued eviction notices· to the heirs and
legal representatives of Bomanji, comprising Daulatbai and five
sons. In response to the eviction notices, the legal .heirs and
representatives of Bomanji obje.cted to. the same but they
D consented to the tenancy being transferred in the nam.e of
Dinshaw Irani (original defendant No. 2).
3.3. On February 3, 1962 Daulatbai addressed a letter to
the BMC requesting for transfer of rent bills in the name of her
E son Dinshaw (original defendant No. 2). The 'BMC ignored the
objection raised and passed an eviction·.order dated October ·
24, 1963 against the heirs and legal representatives of Bomanji.
Against the said eviction order passed by the BMC, the heirs
and legal representatives of Bomanji jointly filed a suit as joint
F tenants, being Suit No.5451/1963. Daulatbai died .during the
pendency of this suit. On July 11, 1977 the said suit was
decreed in favour of the plaintiffs and the ord~r passed by the
BMC terminating the tenancy was set aside. By letter dated
September 18, 1981, BMC transferred the tenancies ill favour
G of Dinshaw, subject to certain conditions including that a portion
of land should be surrendered to BMC, which was objected to
by respondent No.5 (Peshotan, son of Homi Irani).
Consequently, on the request of Dinshaw Irani the tenancy in
respect of Mali's quarters, Nursery garden, florist shop and farm
house was transferred in favour of Din shaw Irani. Respondent
H
/
GAIV DINSHAW;IRANI v.TEHMTAN !RANI 657
[PINAKI CHANDRA GHOSE, J.]
- . .
No.1 . (son and 1egal heir of deceased Ardeshir Irani) and . A
respondent No:s again objected to the . transfer of tenancy in
the name of Dinshaw Irani.
. 3.4. Dinshaw Irani.submitted a proposal fo the BMC for
handing over 4000 sq. yds. of the suitpremises to the B
Corporation· by retaining the remaining 2500 sq. yds. for
himself. He also stated in the proposal that as his two brothers
do not want to move in with him, they should be provided with
alternative accommodation.
3.5. The respondents (legal. heirs of Homi and Ardeshir C
Irani) on coming to know about the transfer of tenancy of the
suit premises, issued a notice dated October 28, 1982 under
Section 527 of the Bombay Municipal Corporation Act, 1888
(hereinafter referred to as 'the Act') and subsequently on March
23, 1983, filed Long Cause Suit No.1914 of 1983 challenging D
transfer of tenancy before the City Civil Court at Bombay. During
the pendency of the aforementioned suit, Dinshaw agreed to
surrender the tenancy in respect of the suit premises in favour
of BMC and the Corporation in exchange granted a lease of
sixty years on a part of the suit premises, being land E
admeasuring 1152 sq mts. bearing CS No. 366-67 (Part)
Mazgaon and..Ofl November 30, 1983 lease deed of the said
plot in favo.ur of Dinshaw Irani was executed. ·
if('
3.6. Admittedly, Dinshaw Irani began construction on the
said plot of land admeasuring 1152 sq mts. in September, F
1984. Respondent Nos.1 to 5 filed a suit being Long Cause
Suit No.1877 of 1985 before the City Civil Court at Bombay,
challenging the surrender of tenancy and the grant of said fresh
lease in favour of Dinshaw Irani. Dinshaw Irani filed written
statements in both the suits and denied the averments in the G
plaints and claimed that he alone was the tenant of the suit
premises and had carried out thebusiness of nursery/florist till
his mother's lifetime and thereafter he was entitled to the
tenancy in light of the Wills of deceased Bomanji and Daulatbai.
"':he BMC being defendant No.1 in both the suits also filed its H
658 SUPREME COURT REPORTS [2014) 5 S.C.R.
A written statement in Long Cause Suit No.1914 of 1983 stating
that the tenancy was transferred in the name of Dinshaw Irani
on the basis of the documents produced by him in supr:iort of
the same (being the Wills of deceased Bomanji and Daulatbai;
the partnership deed between Daulatbai and Dinshaw Irani and
B the' consent letter given by the other sons of Bomanji and
Daufatbai). During the pendency of the said suit, Dinshaw Irani
expired on December 2, 1988. '
. :I
3.7. The plaintiffs, who are respondent Nos.1 to 5 herein,
sought certain interim reliefs by filing Notice of Motions in both
C the lontl cause suits. The Trial Court on April 11, 1988 disposed
of the Notice of Motions and granted an interim injunction
restraining the defendants in the suit from disturbing the
possession of the plaintiffs of certain parts of the bungalow'
which was occupied by them. Dissatisfied with this order, the
D plaintiffs preferred Appeal against Order (A.O.) No.438/1988
before the High Court and the learned Single Judge in Civil
Application No.1481 of 1988 passed an' order dated April 20,
1988 allowing the defendants to proceed with the construction
work:subject to the condition that during the pendency of the
E appeal and ninety days after the defendants were to retain five
flats=and rights arising therefrom. While disposing of-AO.
No.438 of 1988 on October 16, 1991, the High Court directed
that both the suits be disposed by the Trial Court by April, 1992;
that the restriction for creation of third party rights with respect
F to the five flats reserved be continued; and the interim order in
Notice of Motion No.1459 of 1985 restraining the defendants
from disturbing the possession of th~ plaintiffs in the, suit
premises be continued.
'
13.8. The City Civil Court dismissed both the suits by two
G separate judgments. The findings of the Trial Court in Long
Cause Suit No.1914 of 1983 was that the plaintiffs failed to
·prove joint tenancy and therefore the transfer of rent bills in the
name of defendant No.2 was not illegal. In Long Cause Suit
No.1877 of 1985, the Trial Court held that as the plaintiffs failed
• H to prove their case of joint tenancy, the surrender of tenancy in
GAIV DINSHAW IRANI v. TEHMTAN IRANI 659
[PINAKI CHANDRA GHOSE, J.]
favour of BMC was not hit by an illegality and the lease granted A
to him is legal and valid.
3.9. Aggrieved by the aforementioned judgments passed·
by the Trial Court, the respondents preferred two separate
appeals being First Appeal No.970of1995 filed against order B
in Long Cause Suit No. 1914 of 1983 and First Appeal
No.1075 of 1995 filed against Long Cause Suit No. 1877 of
1985.
3.10. The High Court by a common judgment and order
dated September 30, 2005, allowed both the first appeals and C
held that the original plaintiffs (respondents herein) were joint ' .
tenants .with original defendant No.2 (appellant herein);
consequently, the surrender of tenancy by defendant No.2 in
favour of BMC was illegal and the transfer of tenancy by BMC
in the name of defendant No.2 was incorrect, void and not o
binding upon the plaintiffs. ResuJ~antly, the judgments and ~
orders of the Trial Court were set aside and the reliefs prayed
for in. the suits filed by the plaintiffs were allowed by the High
Court. However, the High Court directed appellants to handover
possession of the five flats to respondent Nos.1 to 5. Aggrieved E
by the judgment and order passed by the High Court, these
appeals have been filed before us.
4. The appellants before us have challenged the impugned
judgment and order passed by the High Court mainly on five
grounds and made a pri>posal during the course of hearings F
for balancing the equities.
5. Learned senior counsel appearing on behalf of the
appellants submitted that the transfer of tenancy in favour of the
appellants by BMC was correct on the. grounds firstly, that the G
appellants derive their title from the probated Will of Bomanji
and Will of Daulatbai and the letter dated October 25, 1962
issued by all the heirs of Bomanji consenting to transfer of
tenancy in favour of Dinshaw and the letter dated February 3,
1962 issued by Daulatbai to BMC requesting for transfer of H
660' .. SUPREME COURT REPORTS [2014] 5 S.C.R.
A · tenancy in favour of Dinshaw. Secondly,· that Daulatbai as a
residuary legatee inherited the tenancy rights and took charge
of the florist business with her son Dinshaw as noted by the Trial
Court; furthermore, Daulatbai by her Will, transferred the nursery
business to Dinshaw and transferred the tenancy in favour of
B Dii1shaw by fetters dated October 25, 1961 and February 3,
1962, Thirdly, the nursery business and the suit premises are
exclusively in the control of Daulatbai and Dinshaw; and that
Ardeshir being the step-son of Daulatbai was not entitled to
inherit from her and the three sons of Bomanji, namely,
c Ardeshir, Homi and Jahangir are not concerned with the nursery
business and the suit premises. Fourthly, the Trial Court after
properly considering documents on record concluded that the
appellants were in exclusive and uninterrupted possession· of
the suit premises and they were exclusively doing the nursery
0 business as absolute owners, a fact which has not been
challenged by the respondents. Fifthly, the High Court has
incorrectly given a finding that neither Will nor consent letter
confer any exclusive right on the appellants on the ground that
Daulatbai and five sons of Bomanji had Jointly filed Suit No.5451
of 1963 against BMC to challenge the eviction order without
E considering that the nursery business was being carried on by
Daulatbai and Dinshaw and that nowhere the factum of joint
tenancy has been admitted in the said suit, which never
determined the issue of joint tenancy. Sixthly, that BMC after
· duly considering all the facts and relevant documents, correctly
F transferred the tenancy in favour of Dinshaw. Seventhfy, the
plaintiffs in the suit had not made any prayer for declaration of
right to joint tenancy or claimed any other rights or possession.
Lastly, that High Court did not consider the cogent findings of
. the Trial Court, especially the finding that effect of the transfer
G of rent receipts would be that the respondents are
dispossessed from the suit premises and at least from the
nursery which was a distinct tenancy and in the absence of.a
prayer for possession, the suit was bad in law.
H 6. The second submission made by the learned senior
. . .
GAIV DINSHAW IRANl v. TEHMTAN IRANI. 661
[PINAKI CHANDRA GHOSE, J.]
counsel appearing on behalf of the appellants is that the High A
Court acted in excess ofits powers in granting the relief which
was beyond the subject matter of the suit in an appeal under
Section 96 of \he Code of Civil Procedure, 1908, as there were
no prayer and pleadings for the same. In light of the same, it
has been contended that the relief claimed in both the suits was B
limited to the transfer of rent receipts by BMC in favour of
Dins haw, the surrender of tenancy by Dins haw and subsequent
grant of lease in his favour by BMC. Furthermore, there was
no claim for relief of partition as granted by the High Court and/
or the surrender of tenancy and permission to develop balance c
suit premises by respondent N,o.6, being BMC. The learned
counsel has relied on the cases of Shiv Kumar Sharma vs.
Santosh Kuman1 and Bachhaj Nahar vs. Nilima Manda/ and
Anr. in support of his contention. It is further .contended that the
High Court erred in holding that the building of the appellant D
would become illegal as the respondents claim a right in the
existing bungalow and would also get aright in the 1152 sq.mts.
plot leased to Dinshaw if the original suit is decreed. That the ·
lease of 1152 sq. mts. was based entirely on needs and
entitlement of Dinshaw and it was in lieu of his tenancy rights
alone in the compound of Irani Wadi except the residential E
portion in possession of his two brothers (Ardeshir and Homi)
for whom . BMC had undertaken to ·provide them
accommodation. Furthermore, it was contended that if BMC
does not honour its resolution of providing alternative
accommodation to respondent Nos. 1 to 5, subject to their F
rights, then the entire property of 5950 sq.mts. must revert back
to Dinshaw Irani and that BMC then has no right to develop the
same alongwith a builder, which is in violation of.the status quo
order dated November 18, 2005 passed by this Court. That
there was no prayer for possession of any flats entitled to G
respondent Nos. 1 to 5 and the High Court's order that
respondent Nos.1 to 5 representing only two branches are
1. (2007) a sec 600.
2. (2ooa) 11 sec 491. H
662: SUPREME COURT REPORTS [2014] 5 S.C.R.
A entitled to five flats as ·6/15th share is incorrect without any.·
specific pleading and in the absence of a dispute regarding/
· the~lnter se rights of the. parties.· 1
_ ·
a7. It is also submitted by the appellants that they expended
B the,entire amount in the construction of the building and they
had.to rent out nine flats for the same and out of the remaining
five flats the appellants are residing in two flats and one is given
on .leave and license. The effect of the plaintiffs' suit (being
respondent Nos.1 to 5) being decreed is that entire 6500 sq.
yards be surrendered to BMC and then the shares of all heirs
C of Bomailji, be worked out. The same could not have been
directed or determined in the absence of any pleadings even
if it is assumed that the respondent Nos. 1 to 5 have a share
in the 1152 sq.mts. plot leased to the appellants. ·
Ii '
',
D · ?· The third ground raised by the learned senior counsel
on ~.ehalf of the appellants is that BMC being respondent,No.6
herein can develop the balance plot only in terms of the
resolution dated September 28, 1983. In this connection, it has
beeii submitted that the lease of ·1152 sq.mts. plot granted to
E Din~raw was subject to the condition that BMC provides
alternate accommodation to his two brothers as per the
resoiution. That in case of BMC's inability to honour the said
resolution dated September 28, 1983, the entire property i.e.
595'0· sq. mts. must revert back to Dinshaw and BMC has no
F right' to develop the same as it will be in violation of the status
quo:C>rder passed by this Court and that in no event respondent
".
Nos,. 11 to 5 have any right in 1152 sq.mts. plot and even if they
have any right, then they are to be accommodated by BMC on
the ~1alance land. Thus, it was requested that it will be just and
G equitable if BMC accommodates respondent Nos.1 to 5 on
balance land or as per the resolution dated September 28,
1983.
9. Fourth submission made on behalf of the appellants is
that the finding on fraud could not have been granted in the
H absence of pleadings and evidence to make out a case of ·
GAIV DINSHAW IRANI v. TEHMTAN IRANI 663
[PINAKI CHANDRA GHOSE, J.)
fraud. In this regard, learned senior counsel has placed reliance A
on the. case of Sangramsinh P. Gaekwad & Ors. vs.
Shantadevi P. Gaekwad & Ors. 3
· 10. The last and final ground raised by the learned senior
counsel for the appellants is that in no event respondent Nos. 8
1 to 5 are entitled to five flats. It is submitted that out of the
fourteen flats the appellants are residing in two flats, one is
vacant and the other is given on leave and licence. That only
an injunction was granted by the High Court in respect of the
five flats out of which three were occupied by the appellants C
and two were reserved for the Government under the Urban
Land (Ceiling & Regulation) Act, 1976. Therefore, not more than
three flats could be meant for respondents Nos.1 to 5. That the
direction of the High Court bestowing five flats is incorrect in
the absence of any specific pleading in the suit or appeal and
without· any affidavit filed in this regard by the plaintiffs/ D
respondents and without the appellants placing their case
regarding entitlement of respondent Nos. 1 to 5, who represent
only two branches and not all the five brothers. It has been
argued that the order of the High Court granting five flats to the
respondents gravely prejudices the rights of the appellants in E
the light of the above and that they will be evicted from their·
homes. Therefore, it has been prayed that the respondents be
granted only three flats.
11. Learned counsel appearing on behalf of respondent F
No.1 has contended before us that that the claim of the
appellants that Dinshaw solely acquired the tenancy rights is
false. In support of this contention, he submitted that as stated
by the Trial Court there can be no bequest of ten'ancy rights and
same did not devolve upon Disnhaw through the Wills of G
Boma11ii and Daulatbai. Furthermore, the Will of Daulatbai was
not probated and no right is asserted by such a Will. Even if
reliance is placed on the Will of Daulatbai, it clearly states that
only nursery business and not the tenancy is bequeathed to
3. c2oos) 11 sec 314. H
/
664 SUPREME COURT REPORTS [2014] 5 S.C.R.
A Dinshaw. That BMC and all the parties including Daulatbai and
Dinshaw, always considered all the heirs of Bomanji to be joint
heirs evident from the material on record. Furthermore, the City
Civil Court in Suit No. 5451 of 1963 clearly recorded that
undisputedly after Bomanji's death his sons and Daulatbai
B became the tenants in the suit premises; Dinshaw from the
death of Bomanji till 1977 asserted that all the sons of Bomanji
were monthly tenants with respect to the property and in judicial
proceedings leading to decree in favour of Dinshaw on that
basis. The fact also attained finality in Suit No.5451 of 1963
c and the same stand would be barred by principle of res
judicata and the same has been noted by the High Court.
12. Learned counsel appearing for respondent No. 1 has
also contended that reliance by BMC on letter dated October
25, 1961 is mala fide and erroneous. BMC purported to transfer
D the tenancy exclusively in the name of Dinshaw Irani by relying
upon the said letter which is two decades old, addressed on
behalf of Daulatbai and five sons stating that they had no
objection to the transfer of tenancy in the name of Dinshaw. That
the said letter was issued for convenience sake to enable
E Dinshaw to contest the eviction suitof 1963, wherein it was
pleaded by all the heirs of Bomanji that they are joint tenants
and the position continued till 1977 when Suit No.5451 of 1963
was decreed; and that BMC in light of the said decree to which
it was also a party, could not have accepted surrender of
F tenancy exclusively by Dinshaw on the basis of the said letter.
That the High Court after considering the evidence on record
and conduct of the parties, correctly held that the said letter was
for the transfer of rent receipts only, in favour of Dinshaw. That
the reliance placed by BMC on a two decades old letter for a
G transfer is incorrect. Furthermore, even if the consent given in
1961 is assumed to be correct then it must be noted that same
stood expressly withdrawn by letter dated December 22, 1980
which was admittedly received by BMC on February 2, 1981,
before the letter of 1961 was acted upon. It has been contended
,H that BMC despite being aware of the revocation of the consent,
'
GAIV DINSHAW IRANI v. TEHMTAN IRANI 665
[PINAKI CHANDRA GHOSE, J.]
transferred the tenancy exclusively in favour of Dinshaw and A
suppressed the same from the respondents even after the
transfer and stated that it "proposed to transfer tenancy in
favour of Dinshaw" in a subsequent letter. Thus; the High Court
has correctly noted that conduct of BMC lacked bonafide and
such findi~has not been challenged by the BMC. B
13. The ~ext submission made by the learned counsel for
respondent N~. 1 is that the moulding of relief by the High Court
is just and equitable and in fact confers the appellants with
benefits more than they are entitled, therefore requiring no C
interference from this Court. In light of the same, it has been
put forth by the learned counsel that having found the transfer
of tenancy to be illegal, all the later developments become void
. ab initio; and to .reverse the position the course would have
been to demolish the 'building constructed on the plot leased
to Dinshaw. Learned counsel representing respondent No.1 D
further submitted that the High Court correctly moulded the
relief and directed that the five flats be handed over to the
respondents, as the construction was allowed to be made on .
the plot subject to the outcome of the first appeal and on the
condition that five flats be kept apart. Furthermore, it has been E
submitted that appellants representing only one branch are
receiving nine flats and the full other wing of the building
comprising of fourteen tenements rented out by the appellant,'
whereas the respondents representing two branches are
receiving only five flats. It is also contended that the appellants F
have deprived the respondents of their extremely valuable
tenancy rights in respect of a huge original plot and in an
agreement with BMC accepted a much smaller newly allotted
plot on which the construction was at the risk of the appellants,
in this factual matrix the grievance of the appellants that they G
have incurred construction costs does not hold good.
Furthermore, the respondents have been enjoying the benefits
arising from the new plot leased to Dinshaw by BMC since
1997.
H
666 SUPREME COURT REPORTS [2014] 5 S.C.R.
A 14. In addition to the above, respondent No. 1'has also
challenged the submissions made by the appellants. Firstly, it
has been stated that the appellants without pointing out any
peNersity in the order of the High Court seek re-appreciation
of the entire facts and evidence before this Court. Secondly, it
B has been pointed by the learned counsel that Dau~ai even
after death of Bomanji accepted all the sons as joint tenants
and the stand of the appellants is an afterthought. Furthermore,
the reliance on the un-probated Will of Daulatbai is also
incorrect in light of Section 213 of the Indian Succession Act,
c 1925 which clearly states that in case of Wills made by Parsis
no legatee can claim any right unless the same is probated;
and that the Will only transfers business of nursery. Thirdly, it
has been stated that the appellants' pleading that BMC should
proviQe alternate accommodation to respondent Nos.1 to 5 is
an admission of their rights; in fact, till date three respondents
0
are staying in the bungalow on the suit premises. Fourthly, the
appellants are estopped from making an argument contrary to
their stand taken in the 1963 suit. Fifthly, it has been submitted
that the contention of the appellants that BMC can develop
E property only in terms of resolution dated September 28, 1983;
or any other grievance with BMC cannot be agitated in the
present proceedings; and that in face of an adverse order the
appellants cannot shift their responsibility to BMC, thereby
confronting the respondents with a fait accompli. Learned
counsel for respondent No.1 has finally contended that the
F submission of the appellants with regard to the findings of the
High Court that the transfer of tenancy was 'fraudulent' or the
same was done 'fraudulently' is beyond the pleading and
1herefore ought to be expunged, is baseless as the respondents
already contended that the transfer of tenancy is 'mala fide'.
G
15. Learned counsel for respondent Nos. 2 to 5 and 13 to
14 have submitted that after the demise of Bomanji on
September 27, 1946, his tenancy devolved upon his widow and
five sons which was duly accepted by BMC. Thereafter, one of
H the five sons tried to usurp the entire tenancy in his favour and
GAIV DINSHAW IRANI v. TEHMTAN IRANI 667
[PINAKI CHANDRA GHOSE, J.]
the same was the subject matter under challenge in Long A
Cause Suit No.1914of1983. However, during the interregnum,
the High Court restrained original defendant No.1 from creating
any third party rights. It was vehemently argued that the
appellants' case was absolutely misconceived and baseless
as is evident from the observations of the City Civil Court that: B
(i) there could be no bequest of tenancy rights; and (ii) that an
unprobated Will was only with respect to the florist business and
not the tenancy rights in aggregate .
.16. Respondent Nos. 2 to 5 and 13 to 14 also submitted
that it is admitted by Daulatbai that she along with her five sons C
became monthly tenants of the suit premises. Upon show cause
notices being issued by BMC to all the legal heirs of Bomanji,
the aforesaid position came to be reiterated by the latter. It is
alleged that this reiteration, in itself, buttressed the point that
they were joint-tenants in possession of the suit premises. That D
the falsity of the claim of the appellants is crystal clear in light
of the fact that they along with the respondents filed Suit
No.5451 of 1963 challenging the eviction notices served by
BMC. Furthermore, the City Civil Court by judgment dated
October 11, 1977 also observed that after the demise of E
Bomanji, the appellants and respondents therein had become
the tenants of the suit property, a fact which attained finality as
the same was never challenged. It was also submitted that the
·plea of adverse possession argued before the High Court had
failed to cut any ice with the Division Bench in that no issues F
were framed and no evidence was led by the appellants.
1. 7. It was further submitted by respondent Nos. 2 to 5 and
13 to 14 that in spite of the letter dated October 25, 1961
purportedly authored by Daulatbai and her five sons to BMC G
seeking transfer of tenancy in the name of Dinshaw, BMC
served all of them with eviction notices and they jointly replied
to the same. Furthermore, in light of the unchallenged decree
dated October 11, 1977 where· all the legal heirs were stated
to be 'joint-tenants',· !he purported 'consent letter; loses its H
668 SUPREME COURT REPORTS [2014] 5 S.C.R.
A efficacy. Thus, the High Court has correctly observed that the
intent of the consent letter was to transfer the rent receipts only
in the name of Dinshaw It is also submitted that in the wake of
the letter dated February 2, 1982 addressed to P.H.lrani .by the
Senior Ward Officer, E-Ward seeking objections to the transfer
B of rent receipts in favour of Dinshaw Irani indicates that
objections to the transfer of tenancy were not decided and the
rent receipts were not transferred, thereby bringing the legality
of the transfer of tenancy under a cloud of doubt. In addition
thereto, the learned counsel has drawn our attention to the fact
C that BMC transferred the tenancy way ba·ck in 1981 based on
a two decades old letter without going into the requisite
. clarification from the parties, especially in light of the fact that
the respondents were averse to transfer of rent receipts in
favour of Dinshaw Irani or his son. It has been contended that
such conduct of BMC in acting after a period of about 20 years
D raises eyebrows, and the same is rightly termed as 'mala fide'.
Finally, it is contended that the relief granted by the High Court
was based on equity and once the transfer of tenancy was held
)o be illegal, whatever illegality follows will be 'void ab initio'.
E 18. Learned senior counsel appearing on behalf of
respondent No.6 being BMC, submitted that the appellants filed
this appeal with the mala fide intention to usurp the BMC land
i.e. the suit premises. It is submitted that the dispute in the
present case has been narrowed down to five ~ats by the courts
F below, which are solely in possession of the appellants herein.
That by the impugned order dated September 9, 2005 the High
Court allowed the first appeals filed by respondent Nos.1 to 5
herein and directed the appellants 'to hand over five flats kept
reserved. The High Court specifically observed that construction
G on the 'new plot' by the appellants was allowed by virtue of the
interim order passed by the High Court during the pendency
of the suits before the trial court, and five flats were reserved
to protect the interest of respondent Nos.1 to 5.
19. It is further submitted on behalf of respondent No.6 that
H the statement that the fam!IY member of the appellants _are
. GAIV DINSHAW IRANI v. TEHMTAN IRANI 669
[Pi'NAKI CHANDRA GHOSE, J.]
. occupying these five flats, is false and frivolous and the same A
is made to gain sympathy of this Court. Secondly, it is
submitted that as per the orders passed by the High Court,
conditional permission was granted to the appellant to proceed
with the construction, and the High Court was correct in handing
over the five flats to respondent Nos.1 to 5~ That the original B
defendant No.2 and the respondents before the High Court
have filed this appeal by special leave and this Court has
passed status quo order in respect of the suit premises. Thirdly,
it is s.ubmitted that the Municipal Corporation of Greater
Mumbai's (then BMC) development work has been stalled due C
to the status quo order passed by this Court, and that the
appellant obtained the same without serving any notice upon
respondent No.6. It is further submitted that BMC requires the
land for development of Municipal School, Municipal Employees
Quarters and Staff Quarters and it is unable to carry out the
same due to the ongoing disJ?ute between the family members. D
Fourthly, it is submitted that irrespective of the outcome Qf the
present appeals, respondent No.6 would be entitled to 4798
sq. mts. out of the suit premises which was acquired by it in
the year 1984. Fifthly, it is submitted that tn'e appellants are trying
to challenge the surrender of 4798 sq. mts. of land in favour of E
BMC by this appeal and the same is illegal as they never
challenged the said surrender of tenancy done as far back as
on January 12, 1984. Instead, they have supported the said
surrender of tenancy throughout and are therefore estopped
from taking a stand to the contrary at this stage. It is therefore F
the submission of BMC that the present appeal by special leave
petition be dismissed and the parties be directed to comply
with the impugned order dated September 30, 2005 passed
by the High Court.
G
20. After considering the arguments an submissions and
· perusing the documents placed on record we are of the opinion
that the present appeals stem out of two primary issues firstly,
the issue of rights over the tenancy; and secondly, the validity
of the judgement and order of the High Court is challenged on H
670 SUPREME COURT REPORTS [2014] 5 S.C.R. ·
A the ground that it is in excess of powers of an appellate Court
under Sectio_n 96 of the Code of Civil Procedure.
21. The appellants have claimed before us that leasehold
tenancy rights can be bequeathed as against the holding of the
Trial Court in Long Cause·Suit No.1914 of 1983 which has held
B that "it is well established principle that tenancy rights cannot
be bequeathed". The divesting of tenancy rights by means of
a Will is a highly debated topic-and is subject to the tenancy
laws of the concerned State. In the present matter, the tenancies
being the suit premises are owned by the local authority of
C Mumbai and are subject to the State Act being the Bomb~y
Rents, Hotel Anq Lodging House Rates Control Act, 1947
(hereinafter referred to as the "Bombay Rent Control Act). The
said Act, since repealed, exempts the present tenancy from its
. purview as per Section 4 (1 ). The BMC Act is also silent on
D this aspect. Therefore.we will discuss the existing jurisprudence .
regarding the same.
22. In the case of Gian Devi {J.nand vs. Jeevan Kumar &
Ors4. four Judges of a five-Judge Constitution Bench held that
E the rule of heritability extends to statutory tenancy.of commercial
as well as residential premises in States where there is no
explicit provision to the contrary and tenancy rights are to ;
devolve according to the ordinary law of succession unless i
otherwise P,rovided in the statute. This Court in Bhavarlal,
F Labhchand Shah vs. Kanaiyalal Nathalal lntawala 5 referring '
to the Bomaby Rent Control Act, 1974 held that in a contractual
tenancy, a tenant of a non-residential premises cannot
bequeath under a Will his right to such tenancy in favour of a
person who is a stranger to the family, being not a member of
the family, carrying on business. With respect to residential
G tenancy, this Court left the question open and held:
''. .. we do not propose to deal with the wider propositi0,
4. (1985) 2 sec 683.
H 5. (1986) 1 sec 571.
GAIV DINSHAW IRANI v. TEHMTAN IRANI 671
[PINAKI CHANDRA GHOSE, J.]
that a statutory tenancy which is personal to the tenant A
cannot be bequeathed at all under a will in favour of
anybody. We leave the said question open."
23. This Court in Vasant Pratap Pandit vs. Dr. Anant
Trimbak Sabnis6 while deciding upon the rights of a statutory 8
tenancy under the Bombay Rent Control Act was of the opinion
that bequest of tenancy rights is impermissible and stated that:
"14. From a plain reading of Section 5(11 )(c)(i) it is
obvious that the legislative prescription is first to give
protection to members of the family of the tenant residing C
with him at the time of his death. The basis for such
prescription seems to be that when a tenant is in
occupation of premises the tenancy is taken by him not
only for his own benefit but also for the benefit of the
members of the family residing with him. Therefore, when D
the tenant dies, protection should be extended to the
members of the family who were participants in the benefit
of the tenancy and for whose needs as well the tenancy
was originally taken by the tenant. It is for this avowed
object, the legislature has, irrespective of the fact whether E
such members are 'heirs' in the strict sense of the term or
not, given them the first priority to be treated as tenants. It
is only when such members of the family are not there, the
'heirs' will lie entitled to be treated as tenants as decided,
in default of agreement, by the court. In other words, all the F
to
heirs are liable be excluded if any other member of the
family was staying with the tenant at the time of his death."
When Section 15, which prohibits sub-letting, assignment
or transfer, is read in juxtaposition with Section 5(11 )(c)(i)
it is patently clear that the legislature intends that in case G
.no member of the family as referred to in the first part of
the clause is there the 'heir', who under the ordinary mode
of succession would necessarily be a relation of the
deceased, should be treated as a tenant of the premises
e. (1994) 3 sec 481. H
672 SUPREME COURT REPORTS [2014] 5 S.C.R.
A subject, however, to the decision by the court in default of
agreement. The words "as may be decided in default of
agreement by the Court" as appearing in Section
5(11 )(c)(i) are not without significance. These words in our
view have been incorporated to meet a situation where
B there are more than one heirs. In such an eventuality the
landlord may or may not agree to one or the other of them
being recognised as a 'tenant'. In case of such
disagreement the court has to decide who is to be treated
as 'tenant'. Therefore, if 'heir' is to include a legatee of the
c will then the above-quoted words cannot be applied in
case of a tenant who leaves behind more than one legatee
for in that case the wishes of the testator can get
supplanted, on the landlord's unwillingness to respect the
same, by the ultimate decision of the court. In other words,
D in case of a testamentary disposition, where the wish or
will of the deceased has got to be respected a decision
by the court will not arise and that would necessarily mean
that the words quoted above will be rendered nugatory.
What we want to emphasise is it is not the heirship but the
E nature of claim that is determinative. In our considered view
the legislature could not have intended to confer such a
right on the testamentary heir. Otherwise, the right of the
landlord to recover possession will stand excluded even
though the original party (the tenant) with whom the landlord
had contracted is dead. Besides, a statutory tenancy is
F
personal to the tenant. In certain contingencies as
contemplated in Section 5(11 )(c)(1) certain heirs are
unable to succeed to such a tenancy. To this extent, a
departure is made from the general law."
G 24. In Sangappa Kalyanappa Bangi vs. ~and Tribunal,
Jamkhandi & Ors. 7 a dispute pertaining to the Karnataka Land ,
Reforms Act, 1961 this Court held as under:
"The assignment of any interest in the tenanted land will
H 1. (1998) 7 sec 294.
GAIV DINSHAW IRANI v. TEHMTAN IRANI 673
[PINAKI CHANDRA GHOSE, J.]
not be valid. A devise or a bequest under a Will cannot A
be stated to fall outside the scope of the said provisions
inasmuch as such assignment disposes of or deals with
the lease. When there is a disposition of rights under a Will,
though it operates posthumously is nevertheless a
recognition of the right of the legatee thereunder as to his B
rights of the tenanted land. In that event, there is an
assignment of the tenanted land, but that right will come
into effect after the death of the testator. Therefore, though
it can be said in general terms that the devise simpliciter
will not amount to an assignment, in a special case of this c
nature, interpretation will have to be otherwise."
25. On the contrary this Court in State of West Bengal &
Anr. vs. Kai/ash Chandra Kapur & Ors8. while deciding upon
the rights of a leasehold land owned by the Government held
that: D
"Transfer connotes, normally, between two living persons
during life; Will takes effect after demise of the testator and
transfer in that perspective becomes incongruous. Though,
as indicated earlier, the assignment may be prohibited and E
the Government intended to be so, a bequest in favour of
a stranger by way of testamentary disposition does not
appear to be intended, in view of the permissive language
used in clause (12) of the covenants. We find no express
prohibition as at present under the terms of the lease. F
Unless the Government amends the rules or imposes
appropriate restrictive covenants prohibiting the bequest
in favour of the strangers or by enacting appropriate law,
there would be no statutory power to impose such
restrictions prohibiting such bequest in favour of the G
strangers. It is seen that the object of assignment of the
government land in favour of the lessee is to provide him
right to residence. If any such transfer is made contrary to
the policy, obviously, it would be defeating the public
8. (1997) 2 sec 387. H
674 SUPREME COURT REPORTS [2014] 5 S.C.R.
A purpose. But it would be open to the Government to
regulate by appropriate covenants in the lease deed or
appropriate statutory orders as per law or to make a law
in this behalf. But so long as that is not done and in the
light of the permissive language used in clause (12) of the
B lease deed, it cannot be said that the bequest in favour of
strangers inducting a stranger into the demised premises
or the building erected thereon is not governed by the
provisions of the regulation or that prior permission should
be required in that behalf. However, the stranger legatee
c should be bound by all the covenants or any n~w covenants
or statutory base so as to bind all the existing lessees."
In H.C. Pandey vs. G.C. Paul9, this Court held that:
"It is now well settled that on the death of the original tenant,
D subject to any provision to the contrary either negativing or
limiting the succession, the tenancy rights devolve on the
heirs of the deceased tenant. The incidence of the tenancy
are the same as those enj~yed by the original tenant."
E Furthermore in Parvinder Singh vs. Renu Gautam &
10
Ors. , it has been held by this Court that:
"Tenancy is a heritable right unless a legal bar operating
against heritability is shown to exist."
F 26. The aforementioned cases indicate that in general
tenancies are to be regulated by the governing legislation, which
favour that tenancy be transferred only to family members of the
deceased original tenant. However, in light of the majority
decision of the Constitution Bench in Gian Devi vs. Jeevan
G Kumar (supra), the position which emerges is that in absence 1
of any specific provisions, general laws of succession to apply,
this position is further cemented by the decision of this Court
in· State of West Bengal vs. Kai/ash Chandra Kapur (supra)
9. (1989) 3 sec 77.
H 10. (2004) 4 sec 794.
GAIV DINSHAW IRANI v. TEHMTAN IRANI 675
[PINAKI CHANDRA GHOSE, J.]
which has allowed the disposal of tenancy rights of Government A
owned land in favour of a stranger by means of a Will in the
absence of any specific clause or provisions.
27. Presently, the tenancies are owned by BMC and
allegedly by means of a Will, were bequeathed to Daulatbai as B
a residuary legatee in 1946, such transfer appears to be
permissible in light of the Constitution Bench decision.
However, as the legal position regarding the permissibility of
bequeathing a tenancy by Will in 1946 was not decided, we will
rely on the admissions of the parties in regard to the same. The
BMC by means of letter dated September 19, 1961 treated all C
the heirs of Bomanji as joint tenants; and the heirs of Bomanji
by means of letter dated October 25, 1961 also claimed
themselves to be joint tenants; Daulatbai in her letter dated
February 3, 1962 also claimed joint tenancy along with her sons
and sought transfer of the rent receipts only in the name of her D
son Dinshaw. By letter dated November 11, 1962 once again
all the heirs of Bomanji's including Daulatbai claimed
themselves to be joint tenants in the eviction suit being Suit No.
5451 of 1963. We also find that Daulatbai regarded herself to
be a joint tenant with the other sons. E
28. Furthermore, Daulatbai only bequeathed the nursery
business and not the tenancy to her son Dinshaw and appointed
her daughter Ketayun as residuary legatee by means of her Will
which was not probated. As per Section 213 of the Indian
Succession Act, 1925, when a Will of a Parsi is not probated F
then no legatee can claim right by means of the same and such
testator is treated to have died intestate. As per Section 52 of
the Indian Succession Act, prior to the amendment of 1991, a
Parsi female intestate's property shall be divided equally
amongst her children and the statute does not distinguish G
between step-children and children. Thus , the florist/nursery
business devolved jointly on the heirs of Daulatbai after her
death in 1967. Therefore, the claim of the appellants that the
they had exclusive rights over the nursery business does not
hold good. H
676 SUPREME COURT REPORTS [2014) .5 S.C.R ..
A 29. In light of the above, we find that the tenancy which was
jointly held by her and her sons as admitted by them and
recognized by the Trial Court in its judgment dated July 11,
1977, in Suit No. 5451 of 1963, is devolved upon her sons on
her death by virtue of their being joint tenants and her heirs
B under the Indian Succession Act. The original plaintiffs and
defendant No.2 always treated and recognized the tenancy as
a joint tenancy and the same was also recognized by BMC to
be so. This fact attained finality when the finding of the Trial
Court in Suit No. 5451 of 1963 that it was "no tonger in dispute
c that after the demise of Bomanji, the Plaintiffs became the
tenants in respect of the Suit Properties", was not challenged
by any of the parties to the dispute. Moreover, there is nothing
on record to show that the other sons or the original plaintiffs
denied their stake in the same.
D 30. Regarding the purported "consent letter" dated October
25, 1961 and the subsequent transfer of tenancy to Dinshaw
on September 18, 1981, as admitted by the BMC, we find the
same to be illegal and lacking bona fide. In our opinion, in 1961
when the joint tenants were served with an eviction notice, then
E for the sake of convenience only the "purported" letter of
consent dated October 25, 1961 was issued. This letter does
not have any validity in law and does not amount to surrender
or relinquishment of rights of the original plaintiffs in the suit
premises. In a subsequent letter dated February 3, 1962
F addressed by Daulatbai to the BMC, Daulatbai sought the
transfer of rent receipts only, in the name of Dinshaw. The
existence of the said letter is also admitted by the appellants
and in the same letter Daulatbai has stated that the tenancy is
a joint tenancy. Moreover, the "consent letter'' stands passively
G revoked in light of the pleadings in Suit No. 5451 of 1963 where
the heirs of Bomanji including Dinshaw have claimed
themselves to be joint tenants in the suit premises and a
specific finding of the Trial Court in the said suit is n.ot-
challenged by any of the parties. We have furt_her noted that
H Dinshaw with the other three sons Ardeshir, Jehangir and Homi
GAIV DINSHAW IRANI v. TEHMTAN IRANI 677
[PINAKI CHANDRA GHOSE, J.]
also made a joint representation on August 4, 1975 before the A
BMC against the eviction notices on the basis of joint tenancy
devolving upon them after the death of Bomanji. In light of the
aforsesaid discussion, we are of the opinion that the appellants
cannot take a stand contrary to what has been pleaded earlier
in any legal proceedings. Furthermore, it must be noted any B
consent given was expressly revoked by letter dated December
22, 1980 addressed on behalf of the plaintiffs and admittedly
received by BMC on February 2, 1981. The said letter also
acted as a notice under Section 527 of the BMC Act. Thus, the
tenancy rights were never transferred exclusively in the name c
of Dinshaw.
31. In the light of the above, the transfer dated September
18, 1981 by the BMC in favour of Dinshaw Irani based on the
letter dated October 25, 1961 is illegal and the reliance on the
same by BMC is misplaced. We have taken note of the D
documents placed on record which clearly and undoubtedly
support the above position. In a letter dated February 2, 1981,
BMC has accepted the existence of letter dated December 22,
1980. The tenancy was transferred by BMC by means of a letter
dated September 18, 1981 and the same was done without E
inviting any objections for considering the earlier letter 'of
objection. Furthermore, objections were again raised by
respondent No.5 by means of letter dated October 22, 1981
and the Senior Ward Officer by means of letter dated February
2, 1982 admitted that since earlier letter of objections was not F
received by the concerned officer, they wanted a copy of the
same letter of objections to decide the case on merits. This
letter created a belief that no transfer of tenancy had taken place
which is further cemented by the letter dated February 25, 1982
addressed by the Dy. Municipal Commissioner, Shri. P.P. G
Kamdar, wherein he sought the letter of objections and stated
that "on account of the documentary evidence produced by Shri
Dinshaw Bomanji Irani, it is proposed to transfer the tenancy
in his favour". In the said letter, BMC did not inform the plaintiffs
about the transfer on September 18, 1981 and instead created H
678 SUPREME COURT REPORTS [2014] 5 S.C.R.
l\ an ambiguous situation. These letters brought on record clearly
indicate that no due process was followed wherein objections
were sought after the transfer and no proper transfer was made.
We have noticed and found that the High Court has correctly
held as follows : ·
3
"15. 3rd question that arises is, whether giving the consent
for transferring the tenancy amounts to relinquishment of
rights by all those persons in the suit property in favour of
defendant No.2. The answer to the 2nd question is that
there is no relinquishment at all in favour of defendant No.2.
c The consent letter nowhere shows nor a single document
is there with the defendant No. 2 to show that the signatory
of the consent letter has relinquished, abandoned and
given up their tenancy right in the property forever and
permanently in favour of the defendant No.2. No such case
D is put forth by defendant No.2 at any stage. Further there
is no reasons why all other signatories of the consent letter
should shower all the benefits of tenancy right exclusively
upon the defendant No.2. Nothing is brought on record to
show that defendant No. 2 had given any privilege to the
E family or made any sacrifice for the family for which all of -
them decided to compensate the defendant No.2 by
transferring the tenancy. Therefore for all these reasons, it
has to be held that transfer of tenancy sought to be
achieved by consent letter was only for the sake of
F convenience. It was not relinquishment of right by other
signatories in the suit property. Subsequent conduct of the
plaintiff in protesting and apprehending, the delay of 20
years in effecting the transfer are all circumstances that
strongly support the case of the plaintiffs and it also
G disproved the case of the defendant No.2. The plaintiffs
have alleged malafides against the BMC in this regard. It
is true that the malafides are to be specifically proved
against the specific officer but it can be said that the
transfer lacks bonafides.
GAIV DINSHAW IRANI v. TEHMTAN !RANI 679
[PINAKI CHANDRA GHOSE, J.]
xxxxxx A
18. The so called transfer of tenancy is dated 18th
September 1981. The defendant No.2 contended that it is
legal and proper transfer. The BMC contends that it is a
bonafide transfer. But the letter dated 2.2.1982 (Exhibit 16)
B
written by the Senior Ward Office, E-Ward to Shri P.H.lrani
is very vital and crucial document. It falsifies both these
contentions of the defendant No. 2 and the BMC. The
subject of this letter (Exhibit 16) as written in it is "Transfer
of rent receipt of C.S.No. 266/67 known as Irani Wadi". C
There is a reference to the letter of P.H.lrani addressed
to Shri P.P.Kamdar about the objection for transfer of rent
receipt in the name of Dhinshaw Bomanji Irani, i.e.
defendant No. 2 and, the Sr.Ward Officer, who has written
this reply, has stated that any objection does not appear
to have been received by E Ward Office and, therefore, a D
request was made to P.H. Irani to send a copy of the same
letter and, the purpose of asking for the copy is "so as to
enable him to decide on the objections on merits." Then
copy of this letter (Exhibit 16) was also sent to the Law
Office. E
19. This letter of 1982 fully supports and for!ifies the
contentions raised by the learned Counsel Mr. Naik for the
plaintiffs that the transfer of tenancy on 18th September
1981 is not bona fide because even as on 2.2.1982, as F
per the Sr.Ward Officer of the BMC, there was no transfer
of tenancy and objections were to be decided on merits
thereafter. I have no hesitation in accepting this submission
of learned counsel Mr. Naik for the plaintiffs. Therefore, in
this background, it has to be held that transfer of tenancy G
is suspicious and lacks bonafides."
The High Court has correctly opined that the conduct of
BMC lacked bona fide and same has not been challenged by
the BMC being respondent No.6 before us.
H
680 SUPREME COURT REPORTS [2014] 5 S.C.R.
A 32. In light of the same, we find force in the arguments put
forth by the respondents in this regard. Thus, we hold that the .
transfer of tenancy by BMC in the name of Dinshaw is ill.egal
and void ab initio. Consequently, all the events that follow, being
the surrender of part of the tenancy by Dinshaw to BMC in lieu
B of the new plot allotted to him, are also rendered void ab initio.
33. Since the lease of the 1152 sq. mts executed by BMC
. in favour of Dinshaw is rendered void ab initio, the construction
by the appellants on the said plot is also illegal. The position
as it exists today is that the remaining portions of Irani Wadi
C have been acquired by the BMC; and on the other portion, the
structure erected by Dinshaw exists and the portion being the
residential bungalow occupied by the respondent$ may also be
acquired by BMC in due course.
D 34. Considering the aforementioned changed
circumstances, the High Court taking note of the subsequent
events moulded the relief in the appeal under Section 96 of the.
Code of Civil Procedure and the same has been challenged
by the appellants before us. In ordinary course of litigation, the
E rights of parties are crystallized on the date the suit is instituted
and only the same set of facts must be considered. However., ·
in the interest of justice, a court including a court of appeal under
Section 96 of the Code of Civil Procedure is not precluded from
taking note of developments subsequent to the commencement
F of the litigation, when such events have a dire~t bearing on the
relief claimed by a party or one the entire purpose of the suit
the Courts taking note of the same should" mould the relief
accordingly. This rule is one of ancient vintage adopted by the
Supreme Court of America in Pattetson vs. State of A/abama 11
followed in Lachmeshwar Prasad Shukul vs Keshwar Lal
G Choudhury12 . The aforementioned cases were recognized by
this Court in Pasupuleti Venkateswarlu vs. The Motor and
11. 294 us 600.
H 12 AIR 1941 FC 5.
'GAIV DINSHAW IRANI v. TEHMTAN IRANI 681
[PINA.Kl CHANDRA GHOSE, J.]
General Traders 13 wherein he stated that: A
"... 1f a fact, arising after the lis has come to court and has
a fundamental impact It is basic to our processual
jurisprudence that the right to relief must be judged to exist
as on the date a suitor institutes the legal proceeding. 8
Equally clear is the principle that procedure is the
handmaid and not the mistress of the judicial process. If a
fact, arising after the lis has come to court and has a
fundamental impact on the right to relief or the manner of
moulding it, is brought diligently to the notice of the tribunal, C
it cannot blink at it or be blind to events which stultify or
render inept the decretal remedy. Equity justifies bending
\he rules of procedure, where no specific provision or
fairplay is violated, with a view to promote substantial
justice - subject, of course, to the absence of other
disentitling factors or just circumstances. Nor can we D
contemplate any limitation on this power to take note of
updated facts to confine it to the trial court. If the litiga_tion
pends, the power exists, absent other special
circumstances repelling resort to that course in law or
justice. Rulings on this point are legion, even as situations E
for applications of this equitable rule are myriad. We affirm
the proposition that for making the right or remedy claimed
by the party just and meaningful as also legally and
factually in accord with the current realities, the Court can,
and in many cases must, take cautious cognisance of F
events and developments subsequent to the institution of
the proceeding provided the rules of fairness to both sides
are scrupulously obeyed."
The abovementioned principle has been recognized in a G
catena of decisions. This Court by placing reliance on the
Pasupuleti Venkateswarlu Case (supra), held in Ramesh
Kumar vs. Kesha Ram14 that:
13. (1975) 1 sec no.
14 (1992) Supp 2 sec 623. H
682 SUPREME COURT REPORTS [2014] 5 S.C.R.
A "6. The normal rule is that in any litigation the rights and
obligations of the parties are adjudicated upon as they
obtain at the commencement of the lis. But this is subject
to an exception. Wherever subsequent events of fact or law
which have a material bearing on the entitlement of the
B parties to relief or on !'JSpects which bear on the moulding
of the relief occur, the court is not precluded from taking a
'cautious cognizance' of the subsequent changes of fact
and law to mould the relief."
C This was further followed in Lekh Raj vs. Muni Lal & Ors. 15 .
This Court in Sheshambal (dead) through LRs vs. Chelur
Corporation Chelur Building & Ors. 16 while discussing the
issue of taking cognizance of subsequent events held that:
"19. To the same effect is the decision of this Court in Om
D Prakash Gupta case-where the. Court declared that
although the ordinary rule of civil law is that the rights of
the parties stand crystallised on the date of the institution
of the suit yet the court has power to mould the relief in
case the following three conditions are satisfied: (SCC p.
E 263, para 11)
"11 .... (i) that the relief, as claimed originally has, by
reason of subsequent events, become inappropriate or
cannot be granted;
F (ii) that taking note of such subs~quent event or changed
circumstances would shorten litigation and enable
complete justice being done to the parties; and
(iii) that such subsequent event is brought to the notice of
G the court promptly and in accordance with the rules of
procedural law so that the opposite party is not taken by
surprise."
1s. (2001) 2 sec 762.
H 16. (2010) 3 sec 470.
GAIV DINSHAW IRANI v. TEHMTAN IRANI 683
[PINAKI CHANDRA GHOSE, J.]
This Court in Rajesh D. Darbar and Ors. vs. Narasinghro A
Krishnaji Kulkarni and Ors., 17 a matter regarding the elections
in a registered society, held that the courts can mould relief
accordingly taking note of subsequent events. Furthermore, in
Beg Raj Singh vs. State of Uttar Pradesh & Ors 18 . while
deciding on the issue of renewal of a mining lease held that: B
".... A petitioner, though entitled to relief in law, may yet be
denied relief in equity because of subsequent or intervening
events i.e. the events between the commencement of
litigation and the date of decision. The relief to which the C
petitioner is held entitled may have been rendered
redundant by lapse of time or may have been rendered
incapable of being granted by change in law. There may
be other circumstances which render it inequitable to grant
the petitioner any relief over the respondents because of
the balance tilting against the petitioner on weighing D
inequities pitted against equities on the date of judgment."
Even this Court while exercising its powers under Article
136 can take note of subsequent events (See: Bihar State
Financial Corporation & Ors. vs. Chemicot India (P) Ltd. & E
Ors.~ 9 , Parents Association of Students vs. M.A. Khan &
Anr. 20 , State of Uttar Pradesh & Ors. vs. Mahindra & Mahindra
Ltd.21)
35. Thus, when the relief otherwise awardable on the date
F
of commencement of the suit would become inappropriate in
view of the changed ~ircumstances, the courts may mould the
relief in accordance with th.e changed circumstances for
shortening the litigation or to do complete justice.
G
17. (2003) 7 sec 219.
1s. (2003) 1 sec 726.
19. (2006) 7 sec 293.
20. (2009) 2 sec 641.
21. (2011) 13 sec 77. H
684 SUPREME COURT REPORTS (2014] 5 S.C.R.
A 36. The appellants during the pendency of the Civil Suits
sought interim orders from the High Court and on the basis of
order dated April 20, 1988 constructed the structure on the
condition that rights of five flats were to be retained and they
were subject to the outcome of the suit. In another order dated
B October 16, 1991 the appellants were once again restrained
from the creation of third party rights with respect to the five
demarcated flats. The appellants being well aware of the risks
and consequences, carried on with the construction. During the
pendency of the First Appeal, it has been pointed out that the
c appellants had given two of the five fl<Jts on leave and licence
and continued to enjoy benefits from the same since 1997. The
appellants are occupying two of the other nine flats and benefits
from the remainder are being enjoyed by them.
37. In wake of the above, we are of the opinion that the
D High Court taking note of the subsequent events has correctly
moulded the relief and allotted five flats to the respondent Nos. .
.
1 to 5 as per their share.
38. Considering the above and the submissions of
E respondent no. 6 we find that the appellants cannot shift the
onus on the BMC and the High Court has correctly held as.
under:
"53. As on today the remaining portion of Irani Wadi is:
acquired by the BMC and they want to develop it. The other•
F portion is allotted to defendant No. 2 on lease.
Considering, therefore, all the rights of the plaintiffs i.e. 6/
15th right in the suit property and the right of the defendant
No. 2, allotting five flats to the plaintiffs, rest of the 10 flats
of the building are with the defendant No. 2 and/or his legal
G heirs, and the corporation developing the remaining
property, is the only option left. Once the remaining portion
of Irani Wadi is acquired by the corporation, the plaintiff
will have to vacate the same today or tomorrow. Therefore
in these circumstances the order that follows is the only
H order that will be just and proper in my humble opinion." .
GAIV DINSHAW IRANI v. TEHMTAN IRANI 685
[PINAKI CHANDRA GHOSE, J.]
39. The share of the respondent Nos.1 to 5 is claimed to A
be 6/15th and the same is challenged. However, there are no
specific submissions to the contrary in this regard and as it is
a question of fact, we find that the High Court has correctly
determined the same as the appellants are getting more than
their share being heirs of only one brother juxtaposed to s
respondent Nos. 1 to 5, who represent branches of two
brothers.
40. For the reasons stated hereinabove, we find no merit
in these appeals and the same are dismissed.
c
Rajendra Prasad Appeals dismissed.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "government land tenancy"Sign in to search