A suit for eviction initiated by a landlord, who happens to be a legatee, is maintainable without probate of a will if the claim is founded upon an established landlord-tenant relationship, as the statutory bar on establishing rights under a will does not apply to claims of possession based on tenancy.

JUDGMENT:

1) The Applicant- Indian Oil Corporation Limited (IOCL), a public sector company, has invoked revisionary jurisdiction of this Court under Section 115 of the Code of Civil Procedure, 1908 (the Code) questioning the correctness of the judgment and order dated 4 January 2025 passed by the Appellate Bench of the Small Causes Court dismissing (P) Appeal No.67 of 2017 and confirming the judgment and order dated 4 January 2017 passed by the Small Causes Court in T.E. & R. Suit No.69/76 of 2003. The Trial Court has decreed the Suit filed by the Plaintiffs under Section 41 of the Presidency Small Cause Courts Act, 1882 and has directed the Applicant-IOCL to vacate and handover the peaceful possession of the suit premises to the Plaintiffs with further directions for conduct of enquiry into mesne profits. Since the eviction decree is concurrently upheld by the Appellate Court, the Applicant-IOCL has filed the present Revision Application.

2) A Plot of land bearing Survey No.305, Hissa No.1, C.S. No.307, Hissa No.1 admeasuring 2100 sq. yards situated on Mumbai-Agra Road, Kurla, Mumbai-400 070 are the ‘suit premises’. The suit premises were owned by Dr. Manek Billimoria, who executed Indenture of Lease dated 18 May 1968 with the Applicant-IOCL granting lease in respect of the suit premises for tenure of 20 years. According to the IOCL, it had the first option /right to purchase the suit premises under Clause III(e) of the Indenture. Dr. Manek Billimoria passed away on 19 June 1975. His wife, Smt. Sheroo Manek Billimoria executed Deed of Rectification with IOCL on 4 October 1977 extending the period of lease upto 30 years from 13 October 1967 to 12 October 1997. Plaintiffs claim that Smt. Sheroo Billimoria executed a Will on 18 November 1997. She passed away on 26 May 1999. According to IOCL, Plaintiffs claim ownership in the suit premises on the strength of the Will executed by Smt. Sheroo Billimoria. After enactment of Maharashtra Rent Control Act, 1999 (the MRC Act), which does not apply to open lands, Plaintiffs terminated the tenancy vide notice dated 27 November 2002. Plaintiffs filed T.E. & R. Suit No.69/76 of 2003 against IOCL in the Court of Small Causes at Bombay seeking recovery of possession of the suit premises as well as for mesne profits from the date of termination of tenancy. The Plaint was verified by Mr. Mukesh Shashikant Parekh as constituted attorney of the three original Plaintiffs who is also the director of M/s. Papeyon Builmate Traders Pvt. Ltd. (Papeyon).

3) IOCL appeared in the Suit and filed written statement in September 2003 disputing the ownership of the Plaintiffs in respect of suit premises. Later, the written statement was amended contending inter alia that the original Plaintiffs had not secured probate in respect of the Will of Smt. Sheroo Billimoria. Based on the pleadings, the Trial Court framed issues. On behalf of the Plaintiffs Mr. Mukesh Parekh filed affidavit of evidence in capacity as constituted attorney of the thr