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Civil Appeal No.6257/2009, Special Leave Appeal (Civil) No. 30374 of 2008. Case: FGP Ltd. Vs Saleh Hooseini Doctor and Anr.. Supreme Court (India)

Judgment Cited in 24 Precedent Map Related
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Case NumberCivil Appeal No.6257/2009, Special Leave Appeal (Civil) No. 30374 of 2008
CounselFor Appellant: Shanti Bhushan, M.S. Ganesh, Sr. Advs., R. Ayyam Perumal and Seshachary, Advs and For Respondents: R.F. Nariman, Sr. Adv., Sumit Goel, Arjun Garg and Somanadri Gaud, Advs. for Preskh & Co.
JudgesMarkandey Katju and Asok Kumar Ganguly, JJ.
IssueIndian Succession Act - Sections 213(2), 216, 232(c), 234, 222, 105, 211, 213; Transfer of Property Act - Section 53(A); Indian Evidence Act - Section 116
Citation2010 (1) ALT 3 (SC) , JT 2009 (12) SC 210 , RLW 2010 (1) SC 434 , 2009 (12) SCALE 516 , (2009) 10 SCC 223 , 2009 (9) UJ 4445 (SC)
Judgement DateSeptember 15, 2009
CourtSupreme Court (India)

Judgment:

Ganguly, J.

  1. Leave granted.

  2. The order of the High Court in its revisional jurisdiction is impugned before this Court by the appellant herein, a tenant in respect of the premises being No.D1, Unit Type 401 on the 4th Floor of the 1 Building known as "Daisylea" situated at 17A, Mount Pleasant Road, Mumbai-400006 (hereinafter "the suit premises").

  3. The appellant is a public limited company whose paid up share capital is more than Rs.1 crore and is therefore 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 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. The further case of the appellant is that as the sale in terms of the sale agreement dated 16.07.1981 was not completed within time, it gave a notice in 1991 to the vendor to complete the sale and as it was not completed, the appellant thereafter filed a suit for specific performance on 10.10.1991 which is still pending in the High Court.

  4. However, the respondents filed a suit being R.A.E. Suit No.127/338 of 1991 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, in the Small Causes Court against the appellant and it was registered as TE and R Suit No.427/450 of 2001.

  5. On 12.08.2005 the said suit was allowed by the Small Causes Court of Bombay, inter alia, 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. Against the said judgment and order, the appellant filed an appeal which was dismissed on 30.08.2008 by the Court of Small Causes Bombay being Appeal No.731 of 2005.

  6. Challenging the said order, the revision application was filed before the High court which was also dismissed by the High Court on 2.12.2008. As noted above impugning the High Court judgment the present proceeding has been initiated before this Court by the appellant.

  7. Before the High Court it was conceded on behalf of the appellant that it is a public limited company having paid up share capital of more than Rs.1 crore and, therefore, the suit premises is exempted from the provisions of Maharashtra Rent Control Act, 1999.

  8. From the reading of the judgment of the High Court, it appears that the only point urged before the High Court in revision was that plaintiffs cannot file the suit, inter alia, on the ground that the original owner Mrs. Sheroo Doctor and her husband Hooseini Doctor, even though belonged to Dawoodi Muslim Community and married according to Muslim rites, they got their marriage registered under the Special Marriage Act on 11.01.1991. As a result of such registration, the marriage shall, as from the date of such registration, be deemed to be a marriage solemnized under the said Act and as a consequence thereof under Section 21 of the said Act, the property of the parties shall be regulated under the provisions of Indian Succession Act, 1925. It was further urged that as a result of the necessary corollary of the same, the provisions of sub-section (2), Section 213 of the Indian Succession Act is not applicable. Therefore, in the absence of any probate having been obtained by the plaintiffs the suit is not maintainable.

  9. It was further stated that under Section 216 of the Indian Succession Act it is provided once a probate or letters of administration have been granted to a particular person, no other person can sue or prosecute any suit or otherwise act as representative of the deceased unless such probate or letters of administration have been recalled or revoked. Relying on this legal position, the learned counsel for the appellant argued that on 8.5.2002 the probate was granted by the Bombay High Court to the husband of the testatrix and her husband was the sole executor. Since the probate has not been granted to other executors the plaintiffs have no right to file a suit without obtaining probate or letters of administration. Reliance was also placed on Section 232(c) and 234 of the Indian Succession Act.

  10. No other point was urged before the High Court.

  11. However, before this Court it was submitted on behalf of the appellant that three agreements were executed between the appellant and the owner of the flat in July 1981. The first one was entered into on 14.7.1981 whereby the erstwhile owner of the flat agreed to sell the same to the appellant for a sum of Rs.5 lacs and the said agreement also acknowledged that the entire sale consideration of Rs.5 lacs have been received by the erstwhile owner and in the said agreement it was stipulated that the appellant would be entitled to occupy the suit premises as tenants of the vendor till the suit for specific performance was decreed. It was also urged that in pursuance of the said agreement dated 14.7.1981 the original owner executed 8 another agreement dated 16.07.1981 and thereby let out the suit premises to the appellant as a tenant. Another agreement dated 20.7.1981 was also executed on the stamp paper between the original owner and the appellant-company, whereby the original owner again agreed to sell the appellant-company the suit premises for the same price of Rs.5 lacs which the original owner received on 14.07.1981.

  12. It is, therefore, urged that under these circumstances it is wholly illegal for the Bombay Small Causes Court to decree the suit in favour of the legal representatives of the original owner and the High Court, by not interfering in revision with those orders, was in error.

  13. The appellant also placed reliance on Section 53-A of the Transfer of Property Act and urged that the original owner of the suit premises had admittedly contracted to transfer for consideration by an agreement in writing the suit premises in favour of the appellant-company and in part performance of the said contract the appellant-company had taken possession of the property and was willing to perform its part of the contract. It was also urged that in fact a suit for specific performance of the contract is pending between the parties in Bombay High Court since 1991 and therefore, Section 53-A of the Transfer of Property Act debars the original owner or any other person claiming under her from enforcing against the appellant-company any right in respect of the suit property of which the appellant-company had taken and continues to remain in possession. It was urged that the handing over of possession to the appellant-company by the tenancy agreement dated 16.07.1981 was in part performance of the agreement dated 14.07.1981 and Section 53-A of the Transfer of Property Act is applicable. Therefore, the suit, which was filed to enforce the ownership right against the appellant-company who had paid the...

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