2009 Supreme(SC) 1579

Supreme Court of India
THE HONOURABLE MR. JUSTICE MARKANDEY KATJU & THE HONOURABLE MR. JUSTICE ASOK KUMAR GANGULY
FGP Ltd.
Versus
Saleh Hooseini Doctor & Another
CIVIL APPEAL NO.6257/2009 @ SPECIAL LEAVE APPEAL (CIVIL) NO. 30374 OF 2008
Decided On : 15-09-2009

IMPORTANT POINTS
Doctrine of part performance under Section 53-A discussed.
A co-owner can always maintain a suit for eviction.
Grant of probate not a condition precedent to filing of suit u/s 213 to claim a right as an executor under the will.
As per section 213 rights under the Will cannot be established by executor or a legatee unless probate or letters of administration are obtained.
Granting leave to appeal does not enjoin that the Court should interfere in every case. Power under Article 136 should not be exercised where there is no failure of justice.

Headnote:(a) Transfer of Property Act, 1882 – Section 53-A – Equitable doctrine of part performance – Ingredients of section 53-A stated – The act relied upon by the party invoking the doctrine must be such as by its own force to show the very existence of the same contract – Terms of alleged agreement for sale vague – Sale supposed to be completed within a specified period – Appellant not doing anything – Waking up after 10 years after filing of ejectment suit by respondents – Doctrine of part performance under Section 53-A cannot be invoked. (Para 26, 32)

       (1982) 1 SCC 237 – Relied upon

       2 HL Cases 131 – Referred

       (b) Rent control law – Eviction suit – Locus – Indian Succession Act, 1925 – Sections 222 and 234 r/w section 105 – Clause 11 of the Will – Will of the original owner appointing her husband as executor and bequeathing the property to her Children and grandchildren – Respondent no. 2 along with others thus becoming residuary legatee and co-owner of the suit premises – A co-owner can always maintain a suit for eviction. (Para 43)

       (c) Rent Control Act – Tenancy law – Eviction suit – Respondents filing eviction suit as executor/executrix – Arguing maintainability of suit as co-owners whereas not mentioning the same in plaint – Held, if facts establish status of co-owner, tenants cannot raise objection on that ground – Tenant’s right to question title of a landlord is very limited – Indian Evidence Act, 1872 – Section 116 – Moreover every co-owner is owner till the property is partitioned – Suit held maintainable. (Para 45, 46, 49, 50)

       (1976) 4 SCC 184; (2006) 2 SCC 724; (2004) 3 SCC 178 – Relied upon – Relied upon

       (d) Indian Succession act, 1925 – Sections 211 and 213 – Vesting of estate of deceased – Estate of deceased vests in terms of section 211 on the Executors on accepting their office – Executors derive their title from the Will becoming representative of the deceased even without obtaining probate – Probate just makes title of executors certain – Grant of probate not a condition precedent to filing of suit u/s 213 to claim a right as an executor under the will – As per section 213 rights under the Will cannot be established by executor or a legatee unless probate or letters of administration are obtained. (Para 55, 57, 58)

       (2004) 7 SCC 505 – Relied upon

       AIR 1938 Calcutta 714 – Cited with approval

       (1916) 43 IA 113 – Referred

       (e) Constitution of India – Article 136 – Discretionary power – Granting leave to appeal does not enjoin that the Court should interfere in every case – Power under Article 136 should not be exercised where there is no failure of justice. (Para 62)

       AIR 1960 SC 407 – Relied upon

       Facts of the case:

       The appellant is a public limited company not entitled to any protection under the Maharashtra Rent Control Act, 1999. On 16.07.1981 the appellant entered into a tenancy agreement with Late Mrs. Sheroo Hooseini Doctor, mother of the respondents and the original owner of the suit premises.

       The appellant contends that prior to 16.07.1981 the said owner had entered into another agreement with it and agreed to sell the flat for a sum of Rs.5 lacs and in the said agreement it was acknowledged that the payment of the entire sale consideration of Rs.5 lacs had been received by the original owner. As the sale in terms of the sale agreement was not completed within time, it filed a suit for specific performance on 10.10.1991 which is still pending in the High Court.

       The respondents filed a suit against the appellant in the Court of Small Causes under the Bombay Rent Act, 1947 for possession of the suit premises on the ground of reasonable and bona fide requirement. After the amendment of the provisions of Maharashtra Rent Control Act, 1999 the previous suit of 1991 filed under the Bombay Rent Act, 1947 was withdrawn on 24.01.2003. Prior to that another suit was filed on 2.08.2001 by Saleh Hooseini Doctor and Niloofer Arun Sawhney, who are son and daughter respectively of the original owner.

       The said suit was allowed holding that the suit is maintainable as the plaintiffs represent the estate of the original owner. The trial Court directed appellant to handover vacant and peaceful possession of the suit premises and ordered an enquiry with respect of mesne profit.

       The appellant filed an appeal which was dismissed.

       The revision application was also dismissed by the High Court.

       Finding of the Court:

       There is no infirmity in the impugned judgment.

       Result:

       Appeal dismissed.