TaxTMI 
TaxTMI 
2015 (9) TMI 1066
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....briefly are as follows: 3.1. One Bomanji Irani, who is the predecessor of appellants herein, acquired tenancy rights in respect of the premises admeasuring 6500 sq. yds., known as 'Irani Wadi', situated at Mazgaon, Mumbai. This premises comprised of residential Bungalow, open land used for Nursery, and Mali's quarters, hereinafter referred to as the suit premises. Bomanji executed a Will dated October 15, 1934 in favour of his children and wife Daulatbai, appointing Daulatbai as a residuary legatee of the Will. Bomanji Irani died on September 27, 1946 leaving behind his wife Daulatbai; five sons, namely (1) Ardeshir (2) Jehangir (3) Framroze (4) Dinshaw and (5) Homi; and three daughters, namely (1) Ketayun (2) Homai and (3) Nargis. The Will was probated with consent of all the legal heirs and Daulatbai had rights over the suit premises and the tenancy rights which, as claimed, cannot be bequeathed as per law. Daulatbai executed a Will on January 2, 1949 in favour of her son Dinshaw who was the original defendant No.2. However, the said Will was not probated. 3.2. The then Bombay Municipal Corporation (being Respondent No.6, hereinafter referred to as 'BMC') acquired ownership rig....
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....he aforementioned suit, Dinshaw agreed to surrender the tenancy in respect of the suit premises in favour of BMC and the Corporation in exchange granted a lease of sixty years on a part of the suit premises, being land admeasuring 1152 sq mts. bearing CS No. 366-67 (Part) Mazgaon and on November 30, 1983 lease deed of the said plot in favour of Dinshaw Irani was executed. 3.6. Admittedly, Dinshaw Irani began construction on the said plot of land admeasuring 1152 sq mts. in September, 1984. Respondent Nos.1 to 5 filed a suit being Long Cause Suit No.1877 of 1985 before the City Civil Court at Bombay, challenging the surrender of tenancy and the grant of said fresh lease in favour of Dinshaw Irani. Dinshaw Irani filed written statements in both the suits and denied the averments in the plaints and claimed that he alone was the tenant of the suit premises and had carried out the business of nursery/florist till his mother's lifetime and thereafter he was entitled to the tenancy in light of the Wills of deceased Bomanji and Daulatbai. The BMC being defendant No.1 in both the suits also filed its written statement in Long Cause Suit No.1914 of 1983 stating that the tenancy was transfer....
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....1075 of 1995 filed against Long Cause Suit No. 1877 of 1985. 3.10. The High Court by a common judgment and order dated September 30, 2005, allowed both the first appeals and held that the original plaintiffs (respondents herein) were joint tenants with original defendant No.2 (appellant herein); consequently, the surrender of tenancy by defendant No.2 in favour of BMC was illegal and the transfer of tenancy by BMC in the name of defendant No.2 was incorrect, void and not binding upon the plaintiffs. Resultantly, the judgments and orders of the Trial Court were set aside and the reliefs prayed for in the suits filed by the plaintiffs were allowed by the High Court. However, the High Court directed appellants to handover possession of the five flats to respondent Nos.1 to 5. Aggrieved by the judgment and order passed by the High Court, these appeals have been filed before us. 4. The appellants before us have challenged the impugned judgment and order passed by the High Court mainly on five grounds and made a proposal during the course of hearings for balancing the equities. 5. Learned senior counsel appearing on behalf of the appellants submitted that the transfer of tenancy in fa....
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....least from the nursery which was a distinct tenancy and in the absence of a prayer for possession, the suit was bad in law. 6. The second submission made by the learned senior counsel appearing on behalf of the appellants is that the High Court acted in excess of its powers in granting the relief which was beyond the subject matter of the suit in an appeal under Section 96 of the Code of Civil Procedure, 1908, as there were no prayer and pleadings for the same. In light of the same, it has been contended that the relief claimed in both the suits was limited to the transfer of rent receipts by BMC in favour of Dinshaw, the surrender of tenancy by Dinshaw and subsequent grant of lease in his favour by BMC. Furthermore, there was no claim for relief of partition as granted by the High Court and/or the surrender of tenancy and permission to develop balance suit premises by respondent No.6, being BMC. The learned counsel has relied on the cases of Shiv Kumar Sharma vs. Santosh Kumari(2007) 8 SCC 600 and Bachhaj Nahar vs. Nilima Mandal and Anr. (2008) 17 SCC 491 in support of his contention. It is further contended that the High Court erred in holding that the building of the appellant ....
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....ptember 28, 1983, the entire property i.e. 5950 sq. mts. must revert back to Dinshaw and BMC has no right to develop the same as it will be in violation of the status quo order passed by this Court and that in no event respondent Nos. 1 to 5 have any right in 1152 sq.mts. plot and even if they have any right, then they are to be accommodated by BMC on the balance land. Thus, it was requested that it will be just and equitable if BMC accommodates respondent Nos.1 to 5 on balance land or as per the resolution dated September 28, 1983. 9. Fourth submission made on behalf of the appellants is that the finding on fraud could not have been granted in the absence of pleadings and evidence to make out a case of fraud. In this regard, learned senior counsel has placed reliance on the case of Sangramsinh P. Gaekwad & Ors. vs. Shantadevi P. Gaekwad & Ors(2005) 11SCC 314. 10. The last and final ground raised by the learned senior counsel for the appellants is that in no event respondent Nos. 1 to 5 are entitled to five flats. It is submitted that out of the fourteen flats the appellants are residing in two flats, one is vacant and the other is given on leave and licence. That only an injunct....
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....October 25, 1961 is mala fide and erroneous. BMC purported to transfer the tenancy exclusively in the name of Dinshaw Irani by relying upon the said letter which is two decades old, addressed on behalf of Daulatbai and five sons stating that they had no objection to the transfer of tenancy in the name of Dinshaw. That the said letter was issued for convenience sake to enable Dinshaw to contest the eviction suit of 1963, wherein it was pleaded by all the heirs of Bomanji that they are joint tenants and the position continued till 1977 when Suit No.5451 of 1963 was decreed; and that BMC in light of the said decree to which it was also a party, could not have accepted surrender of tenancy exclusively by Dinshaw on the basis of the said letter. That the High Court after considering the evidence on record and conduct of the parties, correctly held that the said letter was for the transfer of rent receipts only, in favour of Dinshaw. That the reliance placed by BMC on a two decades old letter for a transfer is incorrect. Furthermore, even if the consent given in 1961 is assumed to be correct then it must be noted that same stood expressly withdrawn by letter dated December 22, 1980 whi....
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....ants without pointing out any perversity in the order of the High Court seek re-appreciation of the entire facts and evidence before this Court. Secondly, it has been pointed by the learned counsel that Daulatbai even after death of Bomanji accepted all the sons as joint tenants and the stand of the appellants is an afterthought. Furthermore, the reliance on the un-probated Will of Daulatbai is also incorrect in light of Section 213 of the Indian Succession Act, 1925 which clearly states that in case of Wills made by Parsis no legatee can claim any right unless the same is probated; and that the Will only transfers business of nursery. Thirdly, it has been stated that the appellants' pleading that BMC should provide alternate accommodation to respondent Nos.1 to 5 is an admission of their rights; in fact, till date three respondents are staying in the bungalow on the suit premises. Fourthly, the appellants are estopped from making an argument contrary to their stand taken in the 1963 suit. Fifthly, it has been submitted that the contention of the appellants that BMC can develop property only in terms of resolution dated September 28, 1983; or any other grievance with BMC cannot be ....
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....to cut any ice with the Division Bench in that no issues were framed and no evidence was led by the appellants. 17. It was further submitted by respondent Nos. 2 to 5 and 13 to 14 that in spite of the letter dated October 25, 1961 purportedly authored by Daulatbai and her five sons to BMC seeking transfer of tenancy in the name of Dinshaw, BMC served all of them with eviction notices and they jointly replied to the same. Furthermore, in light of the unchallenged decree dated October 11, 1977 where all the legal heirs were stated to be 'joint-tenants', the purported 'consent letter; loses its efficacy. Thus, the High Court has correctly observed that the intent of the consent letter was to transfer the rent receipts only in the name of Dinshaw It is also submitted that in the wake of the letter dated February 2, 1982 addressed to P.H.Irani by the Senior Ward Officer, E-Ward seeking objections to the transfer of rent receipts in favour of Dinshaw Irani indicates that objections to the transfer of tenancy were not decided and the rent receipts were not transferred, thereby bringing the legality of the transfer of tenancy under a cloud of doubt. In addition thereto, the learned counse....
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....ed the same without serving any notice upon respondent No.6. It is further submitted that BMC requires the land for development of Municipal School, Municipal Employees Quarters and Staff Quarters and it is unable to carry out the same due to the ongoing dispute between the family members. Fourthly, it is submitted that irrespective of the outcome of the present appeals, respondent No.6 would be entitled to 4798 sq. mts. out of the suit premises which was acquired by it in the year 1984. Fifthly, it is submitted that the appellants are trying to challenge the surrender of 4798 sq. mts. of land in favour of BMC by this appeal and the same is illegal as they never challenged the said surrender of tenancy done as far back as on January 12, 1984. Instead, they have supported the said surrender of tenancy throughout and are therefore estopped from taking a stand to the contrary at this stage. It is therefore the submission of BMC that the present appeal by special leave petition be dismissed and the parties be directed to comply with the impugned order dated September 30, 2005 passed by the High Court. 20. After considering the arguments an submissions and perusing the documents placed....
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....ciding upon the rights of a statutory tenancy under the Bombay Rent Control Act was of the opinion that bequest of tenancy rights is impermissible and stated that: "14. From a plain reading of Section 5(11)(c)(i) it is obvious that the legislative prescription is first to give protection to members of the family of the tenant residing with him at the time of his death. The basis for such prescription seems to be that when a tenant is in occupation of premises the tenancy is taken by him not only for his own benefit but also for the benefit of the members of the family residing with him. Therefore, when the tenant dies, protection should be extended to the members of the family who were participants in the benefit of the tenancy and for whose needs as well the tenancy was originally taken by the tenant. It is for this avowed object, the legislature has, irrespective of the fact whether such members are 'heirs' in the strict sense of the term or not, given them the first priority to be treated as tenants. It is only when such members of the family are not there, the 'heirs' will be entitled to be treated as tenants as decided, in default of agreement, by the court. In other wo....
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....as under: "The assignment of any interest in the tenanted land will not be valid. A devise or a bequest under a Will cannot be stated to fall outside the scope of the said provisions inasmuch as such assignment disposes of or deals with the lease. When there is a disposition of rights under a Will, though it operates posthumously is nevertheless a recognition of the right of the legatee thereunder as to his rights of the tenanted land. In that event, there is an assignment of the tenanted land, but that right will come into effect after the death of the testator. Therefore, though it can be said in general terms that the devise simpliciter will not amount to an assignment, in a special case of this nature, interpretation will have to be otherwise." 25. On the contrary this Court in State of West Bengal & Anr. vs. Kailash Chandra Kapur & Ors. (1997) 2 SCC 387 while deciding upon the rights of a leasehold land owned by the Government held that : "Transfer connotes, normally, between two living persons during life; Will takes effect after demise of the testator and transfer in that perspective becomes incongruous. Though, as indicated earlier, the assignment may be prohibited and t....
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....rges is that in absence of any specific provisions, general laws of succession to apply, this position is further cemented by the decision of this Court in State of West Bengal vs. Kailash Chandra Kapur (supra) which has allowed the disposal of tenancy rights of Government owned land in favour of a stranger by means of a Will in the absence of any specific clause or provisions. 27. Presently, the tenancies are owned by BMC and allegedly by means of a Will, were bequeathed to Daulatbai as a residuary legatee in 1946, such transfer appears to be permissible in light of the Constitution Bench decision. However, as the legal position regarding the permissibility of bequeathing a tenancy by Will in 1946 was not decided, we will rely on the admissions of the parties in regard to the same. The BMC by means of letter dated September 19, 1961 treated all the heirs of Bomanji as joint tenants; and the heirs of Bomanji by means of letter dated October 25, 1961 also claimed themselves to be joint tenants; Daulatbai in her letter dated February 3, 1962 also claimed joint tenancy along with her sons and sought transfer of the rent receipts only in the name of her son Dinshaw. By letter dated No....
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....ber 25, 1961 was issued. This letter does not have any validity in law and does not amount to surrender or relinquishment of rights of the original plaintiffs in the suit premises. In a subsequent letter dated February 3, 1962 addressed by Daulatbai to the BMC, Daulatbai sought the transfer of rent receipts only, in the name of Dinshaw. The existence of the said letter is also admitted by the appellants and in the same letter Daulatbai has stated that the tenancy is a joint tenancy. Moreover, the "consent letter" stands passively revoked in light of the pleadings in Suit No. 5451 of 1963 where the heirs of Bomanji including Dinshaw have claimed themselves to be joint tenants in the suit premises and a specific finding of the Trial Court in the said suit is not challenged by any of the parties. We have further noted that Dinshaw with the other three sons Ardeshir, Jehangir and Homi also made a joint representation on August 4, 1975 before the BMC against the eviction notices on the basis of joint tenancy devolving upon them after the death of Bomanji. In light of the aforsesaid discussion, we are of the opinion that the appellants cannot take a stand contrary to what has been pleade....
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....r of defendant No.2. The consent letter nowhere shows nor a single document is there with the defendant No. 2 to show that the signatory of the consent letter has relinquished, abandoned and given up their tenancy right in the property forever and permanently in favour of the defendant No.2. No such case is put forth by defendant No.2 at any stage. Further there is no reasons why all other signatories of the consent letter should shower all the benefits of tenancy right exclusively upon the defendant No.2. Nothing is brought on record to show that defendant No. 2 had given any privilege to the family or made any sacrifice for the family for which all of them decided to compensate the defendant No.2 by transferring the tenancy. Therefore for all these reasons, it has to be held that transfer of tenancy sought to be achieved by consent letter was only for the sake of convenience. It was not relinquishment of right by other signatories in the suit property. Subsequent conduct of the plaintiff in protesting and apprehending, the delay of 20 years in effecting the transfer are all circumstances that strongly support the case of the plaintiffs and it also disproved the case of the defend....
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.... to him, are also rendered void ab initio. 33. Since the lease of the 1152 sq. mts executed by BMC in favour of Dinshaw is rendered void ab initio, the construction by the appellants on the said plot is also illegal. The position as it exists today is that the remaining portions of Irani Wadi have been acquired by the BMC; and on the other portion, the structure erected by Dinshaw exists and the portion being the residential bungalow occupied by the respondents may also be acquired by BMC in due course. 34. Considering the aforementioned changed circumstances, the High Court taking note of the subsequent events moulded the relief in the appeal under Section 96 of the Code of Civil Procedure and the same has been challenged by the appellants before us. In ordinary course of litigation, the rights of parties are crystallized on the date the suit is instituted and only the same set of facts must be considered. However, in the interest of justice, a court including a court of appeal under Section 96 of the Code of Civil Procedure is not precluded from taking note of developments subsequent to the commencement of the litigation, when such events have a direct bearing on the relief cla....
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....on as they obtain at the commencement of the lis. But this is subject to an exception. Wherever subsequent events of fact or law which have a material bearing on the entitlement of the parties to relief or on aspects which bear on the moulding of the relief occur, the court is not precluded from taking a 'cautious cognizance' of the subsequent changes of fact and law to mould the relief." This was further followed in Lekh Raj vs. Muni Lal & Ors. (2001) 2 SCC 762. This Court in Sheshambal (dead) through LRs vs. Chelur Corporation Chelur Building & Ors. (2010) 3 SCC 470 while discussing the issue of taking cognizance of subsequent events held that: "19. To the same effect is the decision of this Court in Om Prakash Gupta case where the Court declared that although the ordinary rule of civil law is that the rights of the parties stand crystallised on the date of the institution of the suit yet the court has power to mould the relief in case the following three conditions are satisfied: (SCC p. 263, para 11) "11. ... (i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted; (ii) that taking note of such subsequent eve....