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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.   150         OF 2017 (ARISING OUT OF SLP (CIVIL) NO. 35464 OF 2013)

Behram Tejani & Ors.              ….Appellants

Versus

Azeem Jagani           …. Respondent

WITH

CONTEMPT PETITION (CIVIL) NO.368 OF 2014    IN Special Leave Petition (Civil) NO.35464 of 2013

J U D G M E N T  

Uday Umesh Lalit, J.

1. Leave granted.

2. This  appeal  challenges  the  judgment  and  Order  dated  17.09.2013

passed by the High Court of Bombay in Appeal from Order (ST) No.15590

of 2013 quashing and setting aside the Order dated 29.04.2013 passed by the

Bombay  City  Civil  Court  in  Notice  of  Motion  No.344  of  2013  in  Suit

No.408 of 2013.

3. On  4.02.2013,  aforesaid  Suit  No.408  of  2013  was  filed  by  the

respondent submitting inter alia:-

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“The  Plaintiff  along  with  his  Maternal  grand-mother  Mrs. Noorbanoo Mohammed Ali Tejani are in use, occupation and possession of the premises known as Tej Kunj, 1st Floor, Plot No.212  D,  Byramjee  Jeejeebhoy  Road,  Bandstand,  Bandra (West),  Mumbai  400050,  hereinafter  referred  to  as  ‘the  suit premises’…….The Defendant Nos.1, 2, 3 and 5 are the Paternal uncles of the Plaintiff’s mother i.e. Mrs. Zeenat S. Jagani viz. the brothers of deceased father named Mohammed Ali H. Tejani (since deceased) and Defendant No.6, is a son of the Defendant No.5 and Defendant No.4 is the sister of Defendants 1,2,3 and 5…….Mohammed Ali H. Tejani (called the said Deceased) was a Co-owner along with Defendant Nos.1 to 5 in respect of a Plot of Land bearing Plot No.202-D, along with the building comprising of ground with one upper floor standing thereon and known as Tej  Kunj ……..The said deceased executed a  Will dated  28th September  1991  under  which  the  deceased bequeathed his 1/7th share in the plot of land in favour of the Defendant Nos.1 to 5. The said Will  is probated in the High Court  T  &  I.J.  Petition  No.856  of  2003  as  per  the  Prabate granted on 6th December 2006.”

The respondent-plaintiff then adverted to Will dated 28.09.1991 and

Clause 7 thereof in particular.  It was averred:-

“The said deceased during his life time resided along with his wife namely the said Smt. Noorbanoo Mohammed Ali Tejani and the family members on the entire First  Floor of the said property including the plaintiff herein.  The said deceased died on  22nd March,  2003  and  since  then  the  said  Noorbanoo Mohammed Ali Tejani and the plaintiff resided in the said flat.”

The respondent prayed, inter alia, for following reliefs:-

“a) That this Hon’ble Court be pleased to grant permanent order and injunction restraining the defendants, their respective

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servants,  agents  and  person or  persons  claiming through or under them from in any manner dispossessing the plaintiff from the suit premises without following due process of law.

b) That pending hearing and final disposal of the above suit, this Hon’ble Court  be  pleased  to  grant  temporary  order  and injunction restraining the defendants, their respective servants, agents and person or persons claiming  through or under them from in any manner  dispossessing  the plaintiff  from the  suit premises without following due process of law………”

4.    By Will dated 28.09.1991 which was referred to by the respondent,

the  testator  had  appointed  his  brother  Amirali  Huseinali  Tejani  and  his

daughter Zeenat Shafique Jagani as the executors and trustees. The principal

bequests made by the testator in the Will were: “5. I give, devise and bequeath all types of investments and assets which are in the form or nature of moveables and which are  in  my  own  and  beneficial  name  or  my  four  married daughters namely 1) Mrs. Nasreen I. Fazal, 2) Mrs. Zeenat S. Jagani,  3) Mrs. Shahnaz R. Butt and 4) Mrs.  Tina D. Gai in equal shares. … 7. I own and hold undivided one half share right title and interest  in  the  immovable  property  known  as  “Fatmabai Building’  on Plot No. 115 at Nowroji Hill Road No.2, Nowroji Hill Estate, Bombay 400 009, one seventh share right title and interest in “Tej-Kunj” Building on Plot No. 96 at Nowroji Hill Road No.5, Bombay 400 009 and also one seventh share right title  and interest  in a  small  residential  Building “A” on Plot No.212-D (CTS No. B-764) at B.J. Road, Band Stand, Bandra, Bombay 400 050.  I give devise and bequeath all my aforesaid fractional shares in the abovementioned  immovable properties

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to my brother Amirali H. Tejani, Behram H. Tejani, Nasir H. Tejani  and  Feroze  H.  Tejani  absolutely  in  equal  shares. However,  my  brother  Amirali  H.  Tejani  will  administer  the affairs  of  and  deal  with  the  aforesaid  properties  or  any part thereof in his absolute discretion and as he deems fit and proper seeing to the prevailing conditions and circumstances.  The 2nd

floor flat in the aforesaid Building “A” at Bandra is in use and occupation of my brother Amirali and his family and they can continue  to  use,  occupy and  maintain  the  same without  any question or disturbance and hindrance from anyone and so also the other co-owners thereof.”

5. As stated in the aforesaid suit, the Will was probated on 06.12.2006 in

Petition  No.856  of  2003  and  one  of  the  executors  was  Zeenat  Shafique

Jagani i.e. mother of the respondent. It appears that the testator was residing

on the first floor and after his death his wife continued to be in occupation of

said first  floor. The respondent-plaintiff asserted that  he was also in use,

occupation  and  possession  of  said  first  floor  alongwith  his  maternal

grand-mother  and  thus  prayed  for  aforesaid  reliefs  in  the  suit.  He  also

preferred Notice of Motion No.344 of 2013 praying inter alia for grant of

temporary  injunction  restraining  the  defendants  from  dis-possessing  the

respondent- plaintiff from the suit premises without following due process of

law.  

6. In the affidavit  in reply filed on behalf of  the defendant-appellants

herein,  it  was submitted inter alia that after the death of  the testator, the

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maternal grand-mother of the respondent  was merely allowed to use and

occupy  the  suit  premises  by  the  defendants  out  of  love  and  sympathy

without any fees or compensation;  that the suit  premises belonged to the

defendants as co-owners; that the testator had bequeathed his right, title and

interest in the building “Tej Kunj” to his four brothers namely defendants

Nos.1,  2,  3 and 5 and that  the plaintiff  and his  grand-mother  were fully

aware that no right, not even provision for residence  was created under the

Will in her favour.  It was further submitted:-

“Nonetheless, out of sympathy, close blood relationship and out of filial love and affection, Mrs. Tejani has been allowed to use the  suit  premises.  I  say  that  since  she  has  no  right,  title  or interest in the suit premises she could have no right to permit any other person much less the Plaintiff to interfere with the ownership right of the co-owners. I say that it is on record that since the co-owners including myself came to learn that Mrs. Tejani is wrongfully and without any such authority from the Defendants  allowing  the  members  of  Jagani  family,  the Defendants by their Advocates’ letter dated 12th January, 2013 addressed  to  Mrs.  Tejani  pointed  out  her  deliberate  acts  of commission and omission and called upon her not to interfere with the valuable rights of the defendants qua the suit premises. By the said letter, it was pointed out that Mrs. Tejani should not illegally deal with the said premises in any manner whatsoever as  long as  she  is  freely  allowed to reside  therein and called upon here to let the Defendants know as to why and under what circumstances  and  under  whose  authority,  she  has  been intermeddling  with  the  absolute  ownership  rights  of  the defendants qua the suit premises and requested not to create any encumbrances of any nature whatsoever to the detriment of the interests of the defendants. No reply has been sent to the said letter.  It  is  thus  evident  that  the  members  of  Jagani  family

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including  Mrs.  Zeenat  Jagani  or  the  Plaintiff  could  have  no right in the suit premises.”

With the aforesaid averments the defendants-appellants opposed grant

of any interim relief.

7.  Said Notice of Motion No.344 of 2013 was dismissed by Bombay

City Civil Court vide Order dated 29.04.2013. While rejecting the prayer it

was observed as under:- “It is specific submission of defendant that Noorbanoo herself has no right in this premises. Only on sympathetic ground she is allowed to occupy the premises. If such is fact, when plaintiff is coming before Court claiming equitable relief like injunction, he  has  to  prima  facie  show  some  rights  to  claim  relief.  If protection is asked for, one must clearly seek ascertaining his legal rights. Defendant has rightly pointed out that plaintiff is not submitting his legal right to possess the suit premises. He is merely  claiming  that  he  is  residing  with  Noorbanoo  and  if Noorbanoo herself is not having right in the property, I am of the  view  that  such  type  of  protection  cannot  be  granted  in favour of plaintiff. Neither Noorbanoo is made party to the suit, nor there is sufficient material to indicate that Noorbanoo has any legal right to allow plaintiff to reside with her in the suit property for and on behalf of her. I am of the view that there is no any substantial right made out on behalf of plaintiff to entitle him for such equitable relief like injunction.”

8. The order of dismissal of Notice of Motion was challenged by filing

Appeal from Order No.15590 of 2013 in the High Court of Bombay which

was  allowed  by  judgment  and  Order  dated  17.09.2013  and  which  is

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presently under appeal. It was observed by the High Court in Paragraphs 10

and 11 of its judgment as under:- “10. The  learned  Judge,  in  view  of  the  above  position  on record,  wrong  in  rejecting  the  motion  on  a  foundation  of ownership of the Defendants, even by accepting the submission of  the  Defendants-Respondents  that  Mrs.  Noorbanoo Mohammed  Ali  Tejani  maternal  grandmother  herself  has  no right  in  the  premises.  The  legal  right  of  possession  as  even observed  by  the  Supreme  Court  in  a  case  of  Rame  Gowda (Supra) just cannot be the basis unless adjudicated, to overlook the  “settled  possession”.  The  requirement  is  the  physical possession  of  the  property  of  the  occupant/person  like Appellant  who  is  seeking  the  protection  of  his  possession, though there is no claim and/or submission even made by the Appellant that he is the owner and/or right in the property in question  at  least  in  the  present  case.  While  deciding  the possession right of the Appellant, the learned Judge has actually given  finding  against  the  maternal  grandmother  and  decided even that she has no right to occupy the premises and therefore no question of permitting the Appellant to reside therein. The concept of “settled possession” cannot be equated with in all matters-“legal  possession”.  It  depends  upon  facts  and circumstances of case, as recorded in the present case.  

11. The leaned Judge has committed an error by relying upon wrong footing of law that the possession can be granted only to the person who has a legal right to occupy the premises and no other one. In view of the reasons so given in above paragraphs, the  learned  Judge  has  committed  wrong  even  invoking  the principle of equity against the Appellant-Plaintiff. Let the due course  of  law with  a  foundation  to  dispossess  the  person  in possession of the premises be only after due trial. In view of above,  I  am inclined to observe that the order passed by the learned Judge deserves to be interfered with, as it is against the settled  principle  of  law with  regard  to  the  possession  of  the property. It is made clear that we are dealing with the protection of the possession of the premises and not ownership and /or title of  Mrs.  Noorbanoo  Mohammed  Ali  Tejani  maternal grandmother.  All  points  are  kept  open,  including  the

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observations  given  by  the  earned  Judge  regarding ownership/title of the maternal grandmother.”

9.     Appearing  for  the  defendants-appellants  Mr.  Dushyant  Dave,

learned Senior Advocate submitted that the High Court had erred in granting

interim relief in favour of the respondent. He submitted that the reliance on

Rame Gowda (Dead) by LRS. v. M. Varadappa Naidu(Dead) by LRs. and

Anrs.1  was completely erroneous; that the respondent, at best, was a relative

staying with a gratuitous licensee; and that the case was covered by  the

decision of this Court  in Maria Margarida Sequeira Fernandes and others

v. Erasmo Jack De Sequeira (Dead ) through LRS.2.Ms. Indu Malhotra,

learned  Senior  Advocate  appearing for  the  plaintiff-respondent  submitted

that the respondent had been in settled possession and as such was entitled to

protection. In her submission, the matter was fully covered by the decision

of this Court in Rame Gowda (supra).

10. The Will adverted to in the plaint bequeathed the entire interest that

the testator had in the building in favour of his brothers.  The Will further

appointed mother of the respondent as one of the executors and trustees.  It

is not the case of the respondent that either he or his grand-mother have any

right independent of the Will or that the Will had bequeathed any interest in

1 2004 (1) SCC 769 2 2012 (5) SCC 370

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respect of the premises in question in their favour.  In fact the suit does not

claim any independent right either of his grand-mother or of the respondent

himself.   

11. Having gone through the record, the submission of the appellants that

the grand-mother of the respondent though did not have any right qua the

premises was permitted to occupy purely out of love and affection is not

without  merit. The status of the grand-mother is thus of a gratuitous licensee

and  that  of  the  respondent  is  purely  of  a   relative  staying  with  such

gratuitous  licensee.

12. Rame Gowda (supra) was a case in which two adjoining owners were

claiming independent  right  of  ownership  in  respect  of  a  strip  of  land in

between their holdings.  That piece of land was in possession of the plaintiff

and as such while  dealing with the  controversy, this  Court   held that  a

person in peaceful possession is entitled to retain his possession.  However,

while dealing with the concept of “settled possession” it was observed in

paragraph 9 as under:

“The “settled possession” must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at  concealment  by  the  trespasser.  The  phrase  “settled possession” does not carry any special charm or magic in it; nor is it a ritualistic formula which can be confined in a straitjacket. An occupation of  the property by a person as an agent  or  a

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servant acting at the instance of the owner will not amount to actual physical possession.”

13. The matter was further elaborated in subsequent decision of this Court

in Maria Margarida (Supra) as under: “97. Principles of law which emerge in this case are crystallized as under:

(1)  No  one  acquires  title  to  the  property  if  he  or  she  was allowed  to  stay  in  the  premises  gratuitously.  Even  by  long possession of years or decades such person would not acquire any right or interest in the said property. (2) Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession. The caretaker or servant has to give possession forthwith on demand. (3) The courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant. (4) The protection of the court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or license agreement in his favour. (5) The caretaker or agent holds property of the principal only on  behalf  of  the  principal.  He  acquires  no  right  or  interest whatsoever for himself in such property irrespective of his long stay or possession.”

14. Thus, a person holding the premises gratuitously or in the capacity as

a  caretaker  or  a  servant  would  not  acquire  any  right  or  interest  in  the

property and even long possession in that  capacity would be of  no legal

consequences. In the circumstances City Civil Court was right and justified

in rejecting the prayer for interim injunction and that decision ought not to

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have been set aside by the High Court. We therefore, allow the appeal, set

aside  the judgment  under  appeal  and restore  the Order  dated 29.04.2013

passed by the Bombay City Civil Court in Notice of Motion No.344 of 2013

in Suit No.408 of 2013.     15. The matter having come up before this Court from an interim order

and since the main suit itself is pending, any observations made by us shall

not be taken as concluding the controversy and the merits of the matter will

be gone into by the Court at the appropriate stage without being influenced

by any observations made by us.  

16. Contempt Petition (Civil) No.368 of 2014 was filed by the appellants

submitting  inter  alia  that  the  interim  order  passed  by  this  Court  on

10.02.2014 was disobeyed by the respondent.  No notice was issued in this

contempt petition.  As we have decided the main matter no separate orders

are called for in the contempt petition and the same stands disposed of.

17. No order as to costs.

..…..……………………..J. (Pinaki Chandra Ghose)

……………………J. (Uday Umesh Lalit)

New Delhi, January 6, 2017