Monday 12 January 2015

When general rules of succession apply in case of general tenancies?

Tenancy and Land Laws – Tenancy – Leasehold tenancy rights – Succession – Whether can be be-
       queathed – In absence of specific provisions in tenancy laws of State concerned, general law of suc-
        cession will apply

  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 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.


                        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.                                      .…


                            Tehmtan Irani & Ors.


                       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.
Citation;2015(1) MHLJ 228 SC

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 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:

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, 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.

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. 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  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.

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 stated in the proposal  that  as  his
   two brothers do not want to move in with him, they  should  be  provided
   with alternative accommodation.

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.

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 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.

7. The plaintiffs, who are respondent Nos.1 to  5  herein,  sought  certain
   interim reliefs by filing Notice of  Motions  in  both  the  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

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.

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.

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  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  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 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 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
   Kumari[1] 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 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. 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  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 & Ors[3].

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. 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  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. 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 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 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 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 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

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 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 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  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.

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  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 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  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  Intawala[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 tenancy, this Court left  the  question  open  and

      “…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

23.   This Court in Vasant Pratap Pandit vs.  Dr.  Anant  Trimbak  Sabnis[6]
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:
      “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 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  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  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. Paul[9], 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 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 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

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
    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.

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 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 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 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  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 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.

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 Alabama[11] followed in Lachmeshwar Prasad  Shukul  vs  Keshwar
    Lal Choudhury[12]. The aforementioned  cases  were  recognized  by  this
    Court in Pasupuleti Venkateswarlu vs. The Motor and General  Traders[13]
    wherein he stated that:

      “…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 Ram[14] that:

      “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 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

      “….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  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

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 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  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.

                                             (Gyan Sudha Misra)

New Delhi;
April 25, 2014.                                          (Pinaki Chandra

[1]    (2007) 8 SCC 600
[2]    (2008) 17 SCC 491
[3]    (2005) 11SCC 314
[4]    (1985) 2 SCC 683
[5]    (1986) 1 SCC 571
[6]    (1994) 3 SCC 481
[7]    (1998) 7 SCC 294
[8]    (1997) 2 SCC 387
[9]    (1989) 3 SCC 77
[10]   (2004) 4 SCC 794
[11]   294 US 600
[12]   AIR 1941 FC 5
[13]   (1975) 1 SCC 770
[14]   (1992) Supp 2 SCC 623
[15]   (2001) 2 SCC 762
[16]   (2010) 3 SCC 470
[17]   (2003) 7 SCC 219
[18]   (2003) 1 SCC 726
[19]   (2006) 7 SCC 293
[20]   (2009) 2 SCC 641
[21]   (2011) 13 SCC 77



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