2009 (9) TMI 1022 - SC - Indian Laws

Supreme Court affirms suit for possession by co-owners, denies specific performance

FGP Ltd. Versus Saleh Hooseini Doctor & Anr.

The Supreme Court upheld the maintainability of the suit filed by the respondents, co-owners and legal representatives, for possession of the premises. It ... - Issues Involved:1. Maintainability of the suit filed by the respondents.2. Applicability of Section 53-A of the Transfer of Property Act.3. Specific performance of the contract.4. Competence of the respondents to file the suit as executors/executrix.5. Vesting of property under Sections 211 and 213 of the Indian Succession Act.Issue-wise Detailed Analysis:1. Maintainability of the suit filed by the respondents:The appellant, a public limited company, contended that the suit filed by the respondents was not maintainable. The respondents, representing the estate of the original owner, filed a suit for possession of the suit premises on the grounds of reasonable and bona fide requirement. The Small Causes Court of Bombay allowed the suit, directing the appellant to hand over possession. The High Court dismissed the revision application filed by the appellant, leading to the present appeal. The Supreme Court upheld the maintainability of the suit, stating that the respondents, being co-owners and legal representatives, had the right to file the suit for eviction.2. Applicability of Section 53-A of the Transfer of Property Act:The appellant argued that Section 53-A of the Transfer of Property Act, which deals with part performance of a contract, was applicable. The appellant claimed that it had taken possession of the property in part performance of an agreement to sell. However, the Supreme Court found that the appellant's possession was under a tenancy agreement, and the payment of Rs. 5 lacs was a security deposit, not a sale consideration. The Court held that the doctrine of part performance could not be invoked as the appellant failed to show that it performed or was willing to perform its part of the contract.3. Specific performance of the contract:The appellant filed a suit for specific performance of an agreement to sell the suit premises, claiming that the entire sale consideration had been paid. The Supreme Court noted that the appellant did not take any steps to complete the sale for over ten years and only acted after the eviction suit was filed. The Court emphasized that the remedy of specific performance is discretionary and extraordinary. The appellant's long delay and lack of action weakened its case for specific performance. The Court's observations on specific performance were tentative and would not affect the pending suit in the Bombay High Court.4. Competence of the respondents to file the suit as executors/executrix:The appellant questioned the competence of the respondents to file the suit without obtaining probate. The Supreme Court clarified that the respondents were appointed as executors/executrix under the Will of the original owner. The Will explicitly stated that the respondents would act as executors if the primary executor (the husband) was unable to act. The Court held that the respondents, being co-owners and legal representatives, were competent to file the suit. The Court also noted that the appellant had admitted the respondents' title by joining them as defendants in the specific performance suit.5. Vesting of property under Sections 211 and 213 of the Indian Succession Act:The Supreme Court distinguished between Sections 211 and 213 of the Indian Succession Act. Section 211 deals with the vesting of property in the executor or administrator upon accepting the office, while Section 213 requires probate or letters of administration to establish rights under the Will. The Court held that the property vested in the respondents as executors upon the death of the testatrix, and they had the right to represent the estate and file the suit even without obtaining probate. The Court cited precedents to support its interpretation and concluded that the suit filed by the respondents as executors was maintainable.Conclusion:The Supreme Court dismissed the appeal, upholding the decisions of the lower courts. The Court found no merit in the appellant's arguments and emphasized that the suit for eviction was maintainable. The Court also highlighted the discretionary nature of specific performance and the appellant's failure to act promptly. The respondents, as co-owners and legal representatives, were competent to file the suit, and the property vested in them upon the death of the testatrix. The Court exercised its discretionary jurisdiction under Article 136 of the Constitution and declined to interfere with the High Court's decision. The appeal was dismissed without any order as to costs.