2014 Supreme(SC) 355

SUPREME COURT OF INDIA
Gyan Sudha Misra, Pinaki Chandra Ghose, JJ.
Gaiv Dinshaw Irani & Ors. – Appellants
Vs.
Tehmtan Irani & Ors. – Respondents
CIVIL APPEAL NO.4887 OF 2014 (Arising out of SLP (C) No.22742 of 2005) WITH CIVIL APPEAL NO.4888 OF 2014 (Arising out of SLP(C) No.22772 of 2005)
Decided On : 25-04-2014

IMPORTANT POINTS
Tenancy rights are transferable.
Property of an intestate Parsi is to be divided equally among the children without distinguishing between children and step-children.
Courts may mould the relief in view of changed circumstances/subsequent events.

Headnote:(a) Tenancy Laws – Tenancy rights – Divesting of tenancy rights by means of a Will – Highly debated topic – Subject to tenancy laws of the concerned State – General tenancy laws favour transfer of tenancy only to family members – However in absence of any specific provision general laws of succession apply. (Para 21, 26)

       (1985) 2 SCC 683; (1986) 1 SCC 571; (1994) 3 SCC 481; (1998) 7 SCC 294; (1997) 2 SCC 387; (1989) 3 SCC 77; (2004) 4 SCC 794 – Relied upon

       (2007) 8 SCC 600; (2008) 17 SCC 491; (2005) 11SCC 314 – Referred

       (b) Indian Succession Act, 1925 – Section 213 r/w section 52 – Daulatbai executing a Will which was not probated – In terms of section 213 she would be treated to have died intestate – Therefore the property was to be divided equally among the children without distinguishing between children and step-children – Therefore, appellants have no exclusive rights over nursery business. (Para 28)

       (c) Tenancy Laws – Consent letter – Tenancy consistently claimed and held as joint – Consent letter issued in the face of eviction notice just for convenience – Specifically revoked subsequently and the letter treated as notice u/s 527 of the BMC Act – Tenancy rights were never transferred exclusively in the name of Dinshaw – Such transfer by BMC is void ab initio. (Para 30, 32)

       (d) Code of Civil Procedure, 1908 – Section 96 – Relief otherwise awardable on the date of commencement of litigation – Becoming inappropriate in view of the changed circumstances/ subsequent events – Courts may mould the relief in accordance with the changed circumstances for shortening the litigation or to do complete justice. (Para 35)

       294 US 600; AIR 1941 FC 5; (1975) 1 SCC 770; (1992) Supp 2 SCC 623; (2001) 2 SCC 762; (2010) 3 SCC 470; (2003) 7 SCC 219; (2003) 1 SCC 726; (2006) 7 SCC 293; (2009) 2 SCC 641; (2011) 13 SCC 77 – Relied upon

       

       Facts of the case:

       One Bomanji Irani, predecessor of the appellants, acquired tenancy rights in respect of the premises known as ‘Irani Wadi’, situated at Mazgaon, Mumbai. 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 in favour of her son Dinshaw who was the original defendant No.2. However, the said Will was not probated.

       The then Bombay Municipal Corporation acquired ownership rights in respect of the suit premises and issued eviction notices to the heirs and legal representatives of Bomanji, comprising Daulatbai and five sons who objected to the same but they consented to the tenancy being transferred in the name of Dinshaw Irani.

       The BMC passed an eviction order against the heirs and legal representatives of Bomanji. The heirs and legal representatives of Bomanji jointly filed a suit as joint tenants. Daulatbai died during the pendency of this suit. The said suit was decreed in favour of the plaintiffs and the order passed by the BMC terminating the tenancy was set aside. BMC transferred the tenancies in favour of Dinshaw, subject to certain conditions including that a portion of land should be surrendered to BMC. 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.

       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.

       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 and subsequently filed Long Cause Suit 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, Mazgaon and lease deed of the said plot in favour of Dinshaw Irani was executed.

       Dinshaw Irani began construction on the said plot of land.

       Respondent Nos.1 to 5 filed a suit being Long Cause Suit before the City Civil Court at Bombay, challenging the surrender of tenancy and the grant of said fresh lease in favour of Dinshaw Irani. During the pendency of the said suit, Dinshaw Irani expired on December 2, 1988.

       The Trial Court 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. 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.

       The High Court allowed both the first appeals and held that the original plaintiffs were joint tenants with original defendant No.2; 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.

       Finding of the Court:

       The transfer of tenancy by the BMC in favour of Dinshaw Irani based on the letter of consent is illegal.

       High Court has correctly moulded the relief and allotted five flats to the respondent Nos. 1 to 5 as per their share.

       Result: Appeals dismissed.