Gaiv Dinshaw Irani Vs Tehmtan Irani .

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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.4887 OF 2014 (Arising out of SLP (C) No.22742 of 2005)

Gaiv Dinshaw Irani & Ors. .… Appellants

Vs.

Tehmtan Irani & Ors. ....Respondents

WITH

CIVIL APPEAL NO.4888 OF 2014 (Arising out of SLP(C) No.22772 of 2005)

J U D G M E N T

Pinaki Chandra Ghose, J.

1. Leave granted.

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

the judgments and decree passed by the Trial Court in both the

suits; and decreed both the suits, i.e., Long Cause Suit

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No.1914 of 1983 as well as Long Cause Suit No.1877 of 1985 in

terms of the prayers. The High Court further directed the

defendants to immediately place the plaintiffs in possession of

the five flats 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:

3.1. One Bomanji Irani, who is the predecessor of appellants

herein, acquired tenancy rights in respect of the premises

admeasuring 6500 sq. yds., known as ‘Irani Wadi’, situated at

Mazgaon, Mumbai. This premises comprised of residential

Bungalow, open land used for Nursery, and Mali’s 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 of the

Will. Bomanji Irani died on September 27, 1946 leaving behind

his wife Daulatbai; five sons, namely (1) Ardeshir (2) Jehangir

(3) Framroze (4) Dinshaw and (5) Homi; and three daughters,

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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. 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 (being Respondent

No.6, hereinafter referred to as ‘BMC’) acquired 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 objected to the same but they

consented to the tenancy being transferred in the name 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 son

Dinshaw (original defendant No. 2). The BMC ignored the

objection raised and passed an eviction order dated October

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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 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 order passed by

the BMC terminating the tenancy was set aside. By letter

dated September 18, 1981, BMC transferred the tenancies in

favour 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 Dinshaw Irani.

Respondent No.1 (son and legal heir of deceased Ardeshir

Irani) and respondent No.5 again objected to the transfer of

tenancy in the name of Dinshaw Irani.

3.4. Dinshaw Irani submitted a proposal to the BMC for handing

over 4000 sq. yds. of the suit premises to the Corporation by

retaining the remaining 2500 sq. yds. for himself. He also

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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 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 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 admeasuring 1152 sq mts. bearing CS No. 366-67

(Part) Mazgaon and on November 30, 1983 lease deed of the

said plot in favour of Dinshaw Irani was executed.

3.6. Admittedly, Dinshaw Irani began construction on the said

plot of land admeasuring 1152 sq mts. in September, 1984.

Respondent Nos.1 to 5 filed a suit being Long Cause Suit

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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 plaints and claimed that he alone was the tenant of the

suit premises and had carried out the business 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. The BMC being defendant No.1 in both

the suits also filed its 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 support of the same (being the Wills of

deceased Bomanji and Daulatbai; the partnership deed

between Daulatbai and Dinshaw Irani and the consent letter

given by the other sons of Bomanji and Daulatbai). During the

pendency of the said suit, Dinshaw Irani expired on December

2, 1988.

3.7. The plaintiffs, who are respondent Nos.1 to 5 herein, sought

certain interim reliefs by filing Notice of Motions in both the

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long 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

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

appeal and ninety days after the defendants were to retain five

flats and rights arising therefrom. While disposing of A.O.

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 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 the plaintiffs in

the suit premises be continued.

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3.8. The City Civil Court dismissed both the suits by two 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 to prove

their case of joint tenancy, the surrender of tenancy in favour

of BMC was not hit by an illegality and the lease granted 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.970 of 1995 filed against order 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 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

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in the name of defendant No.2 was incorrect, void and not

binding upon the plaintiffs. Resultantly, 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 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 proposal during the course of hearings 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

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

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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 Dinshaw by letters 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, 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 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

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jointly filed Suit No.5451 of 1963 against BMC to challenge the

eviction order without 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 transferred the tenancy in favour

of Dinshaw. Seventhly, 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 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.

6. The second submission made by the learned senior counsel

appearing on behalf of the appellants is that the High Court

acted in excess of its powers in granting the relief which was

beyond the subject matter of the suit in an appeal under

Section 96 of the Code of Civil Procedure, 1908, as there were

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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 limited to the transfer of rent receipts by BMC in favour of

Dinshaw, the surrender of tenancy by Dinshaw 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

suit premises by respondent No.6, being BMC. The learned

counsel has relied on the cases of Shiv Kumar Sharma vs.

Santosh Kumari1 and Bachhaj Nahar vs. Nilima Mandal and

Anr.2 in support of his contention. It is further contended that

the High Court erred in holding that the building of the

appellant would become illegal as the respondents claim a

right in the existing bungalow and would also get a right 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 portion in possession of his two brothers (Ardeshir

1 (2007) 8 SCC 600 2 (2008) 17 SCC 491

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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

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 along with 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 respondent Nos. 1 to 5 and the High Court’s order

that respondent Nos.1 to 5 representing only two branches are

entitled to five flats as 6/15th share is incorrect without any

specific pleading and in the absence of a dispute regarding the

inter se rights of the parties.

7. It is also submitted by the appellants that they expended 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.

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yards be surrendered to BMC and then the shares of all heirs of

Bomanji, 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.

8. The third ground raised by the learned senior counsel on behalf

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 been submitted

that the lease of 1152 sq.mts. plot granted to Dinshaw was

subject to the condition that BMC provides alternate

accommodation to his two brothers as per the resolution. That

in case of BMC’s inability to honour the said resolution dated

September 28, 1983, the entire property i.e. 5950 sq. mts.

must revert back to Dinshaw and BMC has no right to develop

the same as it will be in violation of the status quo order

passed by this Court and that in no event respondent Nos. 1 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

balance land. Thus, it was requested that it will be just and

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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 absence of

pleadings and evidence to make out a case of fraud. In this

regard, learned senior counsel has placed reliance on the case

of Sangramsinh P. Gaekwad & Ors. vs. Shantadevi P. Gaekwad

& Ors3.

10. The last and final ground raised by the learned senior

counsel for the appellants is that in no event respondent Nos. 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

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.

3 (2005) 11SCC 314

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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/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 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

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 tenancy rights

and same did not devolve upon Disnhaw through the Wills of

Bomanji 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

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only nursery business and not the tenancy is bequeathed to

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

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 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 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.

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That the said letter was issued for convenience sake to enable

Dinshaw to contest the eviction suit of 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

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 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 that BMC despite being aware of the revocation of

the consent, transferred the tenancy exclusively in favour of

Dinshaw and suppressed the same from the respondents even

after the transfer and stated that it “proposed to transfer

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tenancy in favour of Dinshaw” in a subsequent letter. Thus, the

High Court has correctly noted that conduct of BMC lacked

bonafide and such finding has not been challenged by the BMC.

13. The next submission made by the learned counsel for

respondent No. 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 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 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 submitted that appellants

representing only one branch are receiving nine flats and the

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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 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 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.

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

perversity in the order of the High Court seek re-appreciation of

the entire facts and evidence before this Court. Secondly, it has

been pointed by the learned counsel that Daulatbai even after

death of Bomanji accepted all the sons as joint tenants and the

stand of the appellants is an afterthought. Furthermore, the

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reliance on the un-probated Will of Daulatbai is also incorrect in

light of Section 213 of the Indian Succession Act, 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 provide

alternate accommodation to respondent Nos.1 to 5 is an

admission of their rights; in fact, till date three respondents 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

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

submission of the appellants with regard to the findings of the

High Court that the transfer of tenancy was ‘fraudulent’ or the

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same was done ‘fraudulently’ is beyond the pleading and

therefore ought to be expunged, is baseless as the respondents

already contended that the transfer of tenancy is ‘mala fide’.

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 the five

sons tried to usurp the entire tenancy in his favour and the

same was the subject matter under challenge in Long Cause

Suit No.1914 of 1983. 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: (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

became monthly tenants of the suit premises. Upon show

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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 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 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 were framed and no evidence was led by the

appellants.

17. 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

seeking transfer of tenancy in the name of Dinshaw, BMC

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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’, the purported ‘consent letter; loses its

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.Irani by the Senior Ward Officer, E-Ward seeking objections

to the transfer 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 that BMC transferred the tenancy way

back 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

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about 20 years 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 to be illegal, whatever illegality follows will

be ‘void ab initio’.

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 flats by the

courts 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 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.

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19. It is further submitted on behalf of respondent No.6 that

the statement that the family member of the appellants are

occupying these five flats, is false and frivolous and the same 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

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 submitted that the Municipal Corporation of

Greater Mumbai’s (then BMC) development work has been

stalled due 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 dispute

between the family members. Fourthly, it is submitted that

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irrespective of the outcome of 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 the appellants are trying to challenge the

surrender of 4798 sq. mts. of land in favour of 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 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.

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 the ground that it is in excess of powers of an

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appellate Court under Section 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

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

Mumbai and are subject to the State Act being the Bombay

Rents, Hotel And 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 this

aspect. Therefore, we will discuss the existing jurisprudence

regarding the same.

22. In the case of Gian Devi Anand vs. Jeevan Kumar & Ors.4

four Judges of a five-Judge Constitution Bench held that the rule

4 (1985) 2 SCC 683

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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 otherwise

provided in the statute. This Court in Bhavarlal Labhchand

Shah vs. Kanaiyalal Nathalal Intawala5 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 tenancy, this

Court left the question open and held:

“…we do not propose to deal with the wider proposition that a statutory tenancy which is personal to the tenant 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 tenancy

under the Bombay Rent Control Act was of the opinion that

bequest of tenancy rights is impermissible and stated that:

5 (1986) 1 SCC 571 6 (1994) 3 SCC 481

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“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 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 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 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 be entitled to be treated as tenants as decided, in default of agreement, by the court. In other words, all the heirs are liable to 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 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 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 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 will then the above-quoted words cannot be applied in case of a

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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, 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 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 personal to the tenant. In certain contingencies as contemplated in Section 5(11)(c)(i) certain heirs are unable to succeed to such a tenancy. To this extent, a departure is made from the general law.”

24. In Sangappa Kalyanappa Bangi vs. Land 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 not be valid. A devise or a bequest under a Will cannot 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 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

7 (1998) 7 SCC 294

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terms that the devise simpliciter will not amount to an assignment, in a special case of this nature, interpretation will have to be otherwise.”

25. On the contrary this Court in State of West Bengal & Anr. vs.

Kailash Chandra Kapur & Ors.8 while deciding upon the rights

of a leasehold land owned by the Government held that :

“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 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. 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 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 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 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

8 (1997) 2 SCC 387

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governed by the provisions of the regulation or that prior permission should be required in that behalf. However, the stranger legatee should be bound by all the covenants or any new 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, 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 enjoyed by the original tenant.”

Furthermore in Parvinder Singh vs. Renu Gautam & Ors.10, it has

been held by this Court that:

“Tenancy is a heritable right unless a legal bar operating against heritability is shown to exist.”

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

Kumar (supra), the position which emerges is that in absence

9 (1989) 3 SCC 77 10 (2004) 4 SCC 794

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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. Kailash Chandra Kapur (supra)

which has allowed the disposal of tenancy rights of

Government 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 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 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 son

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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.

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 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 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

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appellants that the they had exclusive rights over the nursery

business does not hold good.

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

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 longer in dispute

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.

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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 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 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 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 not

challenged by any of the parties. We have further noted that

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Dinshaw with the other three sons Ardeshir, Jehangir and Homi

also made a joint representation on August 4, 1975 before the

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

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 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 documents

placed on record which clearly and undoubtedly support the

above position. In a letter dated February 2, 1981, BMC has

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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

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

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. 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 an ambiguous situation. These

letters brought on record clearly indicate that no due process

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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 :

“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. 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 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 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 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 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

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against the specific officer but it can be said that the transfer lacks bonafides.

x x x x x x

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) written by the Senior Ward Office, E-Ward to Shri P.H.Irani 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". There is a reference to the letter of P.H.Irani 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 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.

19. This letter of 1982 fully supports and fortifies 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 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

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be held that transfer of tenancy 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.

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 illegal

and void ab initio. Consequently, all the events that follow,

being the surrender of part of the tenancy by Dinshaw to BMC

in lieu 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 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 respondents may also be

acquired by BMC in due course.

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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 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 of the litigation, when such events have a

direct 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 Patterson

vs. State of Alabama11 followed in Lachmeshwar Prasad Shukul

vs Keshwar Lal Choudhury12. The aforementioned cases were

recognized by this Court in Pasupuleti Venkateswarlu vs. The

Motor and General Traders13 wherein he stated that:

11 294 US 600 12 AIR 1941 FC 5 13 (1975) 1 SCC 770

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“…If 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. 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, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the 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 contemplate any limitation on this power to take note of updated facts to confine it to the trial court. If the litigation 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 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 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 catena of

decisions. This Court by placing reliance on the Pasupuleti

Venkateswarlu Case (supra), held in Ramesh Kumar vs. Kesho

Ram14 that:

14 (1992) Supp 2 SCC 623

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“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 parties to relief or on aspects 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.”

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 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. 263, para 11)

“11. … (i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted;

(ii) that taking note of such subsequent 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 the court promptly and in accordance with the rules

15 (2001) 2 SCC 762 16 (2010) 3 SCC 470

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of procedural law so that the opposite party is not taken by surprise.”

This Court in Rajesh D. Darbar and Ors. vs. Narasinghro 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:

“….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 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 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. & Ors.19, Parents

17 (2003) 7 SCC 219 18 (2003) 1 SCC 726 19 (2006) 7 SCC 293

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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 of

commencement of the suit would become inappropriate in

view of the changed circumstances, the courts may mould the

relief in accordance with the changed circumstances for

shortening the litigation or to do complete justice.

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

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 appellants had given two of the five flats on leave and 20 (2009) 2 SCC 641 21 (2011) 13 SCC 77

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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 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 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 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 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

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circumstances the order that follows is the only order that will be just and proper in my humble opinion.”

39. The share of the respondent Nos.1 to 5 is claimed to 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

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.

…....……………………..J. (Gyan Sudha Misra)

New Delhi; ......... …………………….J. April 25, 2014. (Pinaki Chandra Ghose)

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50

GAIV DINSHAW IRANI Vs TEHMTAN IRANI .

GAIV DINSHAW IRANI Vs TEHMTAN IRANI .