2014 Supreme(Bom) 1492

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.J. KATHAWALLA, J.
FGP Limited - Plaintiff
vs.
Saleh Hooseini Doctor and another - Defendants
CHAMBER SUMMONS (LODING) NO. 162 OF 2014 IN SUIT NO. 3505 OF 1991
Decided on: 31st July, 2014

Headnote:Transfer of Property Act, 1882 - Section 53-A - Succession Act, 1925, Sections 222 and 234 - Tenancy agreement - Appellant, a Public Ltd. Company, entered into tenancy with mother of respondent for flat - Owner entered into another agreement with appellant for sale of flat - Entire consideration received by owner - Sale agreement not completed - Issued notice - Filed suit for specific performance - Pending - Respondent filed suit for eviction on ground of bona fide need under Bombay Rent Act - Allowed by Small Causes Court directing appellant to handover vacant possession - Appeal against - Dismissed - Revision - Dismissed by High Court - Appeal against - Contention, appellant having paid up capital of more than Rs. 1 crore, exempted from provision of Maharashtra Rent Control Act - Held - Observations made in suit for specific performance by appellant tentative in nature - No part performance of contract made out - Doctrine of part performance under Section 53-A of Act cannot be invoked - Recitals in Will in consonance with Sections 222 and 234 of Act, 1925 - Suit for eviction by co-owner maintainable - Executors derives title from Will - Becomes representative of deceased without obtaining probate - Appeal dismissed. - Court, however, make it clear that the observations made by it on the specific performance suit filed by the appellant are tentative in nature. Those observations have been made as submissions have been made before this Court that during the pendency of the appellant’s suit for specific performance, the eviction suit should have been stayed. In order to deal with those submissions, Courts have made the observations as aforesaid. But those are tentative and will not effect the merits of the specific performance suit filed by the appellant and which is pending in the Bombay High Court.

       Applying the aforesaid tests, as Court must, to the present situation Court find that no case for part performance of the contract has been made out. Here in the plaint filed in the specific performance suit, the case of the appellant is that it was put in possession of the suit premises pursuant to the tenancy agreement dated 16.7.1981 and not on the basis of any other agreement. If Courts look at the tenancy agreement, it will not find that the appellant was put in possession under the same. In the said suit no evidence appears to have been led by the appellant to show how it came to the possession of the suit premises. This aspect of the case is quite vague.

        In any event, the appellant is required to show that it either performed or is willing to perform its part of the contract. But admitted facts of the case are to the contrary. After the execution of the alleged agreement for sale dated 20.7.1981, the appellant was totally silent and it is only after more than 10 years thereafter i.e. on 19.8.1991, for the first time, it asked the owner to complete the sale and that too after the ejectment suit was filed in February, 1991 by the owner. Thus, in the facts and circumstances of this case the doctrine of part performance under Section 53-A cannot be invoked. Therefore there is no merit in the argument advanced on behalf of by the appellant on that score.

       Therefore, respondent No. 2 Niloofer along with others is the residuary legatee and is one of the owners of the suit premises. A co-owner can always maintain a suit for eviction.

       Therefore, the suit is maintainable.

       Transfer of Property Act, 1882 - Therefore, it is Section 211 and not Section 213 that deals with the vesting of property. This vesting does not take place as a result of probate. On the executor’s accepting his office, the property vests on him and execution derives his title from the Will and becomes the representative of the deceased even without obtaining probate. The grant of probate does not give title to the executor. It just makes his title certain. Under Section 213, the grant of probate is not a condition precedent to the filing of a suit in order to claim a right as an executor under the Will. For the reasons stated above, Courts do not find any merit in this appeal which is dismissed accordingly.