# ·Lease: [2014] $ S.C.R. 646 GAIV DINSHAW !RANI & ORS v. TEHMTAN !RANI & ORS

- **Citation:** [2014] 5 S.C.R. 646
- **Court:** Supreme Court of India
- **Decided:** 2014-04-25
- **Case number:** Civil Appeal No. 4887 of 2014
- **Bench:** Gyan Sudha Misra, Pinaki Chandra Ghose
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/lease-2014-s-c-r-646-gaiv-dinshaw-rani-ors-v-tehmtan-rani-ors-30110
- **Pages:** 40

## Headnote

Government land - Tenancy rights - Disposal of by
means of a will - Explained - Original tenant bequeathing the
property by a will in favour of his children and wife - Appointing
his wife as a residuary legatee - Wife died intestate - Held:
0
As per s.52 of Indian Succession Act, prior to the amendment
of"1991, a Parsi female intestate's property shall be divided
equally amongst her children and the statute does not
distinguish between step-childre~ and children -
Tenancy
which was jointly held by residuary legatee and her. sons
E
devolved upon her sons on her death by virtue of their being
joint tenants and her heirs under Indian Succession Act -
Therefore, transfer by BMC in favour of second defendant is
illegal and void ab initio - Consequently, all events that
follow, i.e. surrender of part of tenancy by second defendant
F
and in lieu allotment of new plot to him ar~ also rendered void
ab initia and construction by appellants on said plot is illegal
- Indian Succession Act, 1925 - s. 52.
· Subsequent events:
G
Moulding of relief - By High Court in appeal u/s 96 CPC
- Held: In ordinary course of litigation, rights of parties are
crystallized on the date the suit is instituted and only ttie sam,e
set of facts· must be considered - However, in the interest of
justice, a court including a court of appeal ills 96 CPC is not
H
646
GAIV DINSHAW IRANi v.TEHMTAN IRANI
647
~ . ..,.
precluded from taking note of developments subsequent to A
commencement of litigation, when such events have a direct
bearing on the relief claimed by a party or on the entire
purpose of the suit, and courts taking note of the same should
mould the relief accordingly - In the instant case, appellants
during pendency of civil suits sought interim orders from High
B
Court and on the basis of said orders constructed structure
on the condition that rights of five flats were to be retained and
they were subject to the outcome of the suit - High Court
taking note of the subsequent events has correctly mouldf!d
the relief and allotted five flats to five respondents as per their c
share.- Code of Civil Procedure, 1908 - s.96 - Power of
appellate court to mould relief pursuant to subsequent events.
The original tenant of the suit property executed a
will dated 15.10.1934 in favour of his children and wife,
appointing his wife as a residuary legatee of the will D
(residuary legatee). The original tenant died in 1946 and
the said will was probated. In 1961 the Bombay Municipal
Corporation (BMC) respondent no. 6 iss~ed eviction
notices to the heirs of the original tenant, which they
objected to and consented to the tenancy being E
transferred in the name of defendant no. 2, one of the five
sons of the original tenant. On 3.2.1962, the residuary
legatee addressed a letter to BMC for transfer of rent bills
in the name of defendant no. 2. The BMC passed eviction
order dated 24.10.1963, wh.ich was challenged by the F
heirs of original tenant in Suit No. 545111963 filed by them
as joint tenants. The suit was decreed and the order
passed by BMC. terminating the tenancy was set .aside .
. BMC transferred the tenancy in favour of defendant no.
, 2,_ who subsequently surrendered tenancy rights of the G
_i suit premises and in exchange he was granted a lease
·of 60 years on a part of the suit premises on which he
. started construction. The legal heirs of the _other sons of
the original tenant, namely; respondents nos. 1 to 5 filed
two suits, i.e. Long Cause Suit No. 1914 of 1983 H
. 648
SUPREME COURT REPORTS
[2014] 5 S.C.R.
A challenging the transfer of tenancy in favour of defendant
no. 2 and Long Cause Suit No. 1877 of 1985 challenging
surrender of tenancy and grant of fresh lease in favour
of defendant no. 2. The plaintiffs sought certain interim
reliefs and not satisfied with the interim orders, filed A.O.
B No. 438/1988 and the High Court passed interim orders
allowing the defendants to proceed with the construction
work subject to the conditions imposed and directed th

## Text

_Characters 0–39,985 of 79,670. This is a partial read: ask again with offset=39985 for what follows._

A
B
c
·Lease:
[2014] $ S.C.R. 646
GAIV DINSHAW !RANI & ORS.
v.
TEHMTAN !RANI & ORS.
(Civil Appeal No. 4887 of 2014)
APRIL 25, 2014
[GYAN SUDHA MISRA AND
PINAKI CHANDRA GHOSE, JJ.)
Government land - Tenancy rights - Disposal of by
means of a will - Explained - Original tenant bequeathing the
property by a will in favour of his children and wife - Appointing
his wife as a residuary legatee - Wife died intestate - Held:
0
As per s.52 of Indian Succession Act, prior to the amendment
of"1991, a Parsi female intestate's property shall be divided
equally amongst her children and the statute does not
distinguish between step-childre~ and children -
Tenancy
which was jointly held by residuary legatee and her. sons
E
devolved upon her sons on her death by virtue of their being
joint tenants and her heirs under Indian Succession Act -
Therefore, transfer by BMC in favour of second defendant is
illegal and void ab initio - Consequently, all events that
follow, i.e. surrender of part of tenancy by second defendant
F
and in lieu allotment of new plot to him ar~ also rendered void
ab initia and construction by appellants on said plot is illegal
- Indian Succession Act, 1925 - s. 52.
· Subsequent events:
G
Moulding of relief - By High Court in appeal u/s 96 CPC
- Held: In ordinary course of litigation, rights of parties are
crystallized on the date the suit is instituted and only ttie sam,e
set of facts· must be considered - However, in the interest of
justice, a court including a court of appeal ills 96 CPC is not
H
646
GAIV DINSHAW IRANi v.TEHMTAN IRANI
647
~ . ..,.
precluded from taking note of developments subsequent to A
commencement of litigation, when such events have a direct
bearing on the relief claimed by a party or on the entire
purpose of the suit, and courts taking note of the same should
mould the relief accordingly - In the instant case, appellants
during pendency of civil suits sought interim orders from High
B
Court and on the basis of said orders constructed structure
on the condition that rights of five flats were to be retained and
they were subject to the outcome of the suit - High Court
taking note of the subsequent events has correctly mouldf!d
the relief and allotted five flats to five respondents as per their c
share.- Code of Civil Procedure, 1908 - s.96 - Power of
appellate court to mould relief pursuant to subsequent events.
The original tenant of the suit property executed a
will dated 15.10.1934 in favour of his children and wife,
appointing his wife as a residuary legatee of the will D
(residuary legatee). The original tenant died in 1946 and
the said will was probated. In 1961 the Bombay Municipal
Corporation (BMC) respondent no. 6 iss~ed eviction
notices to the heirs of the original tenant, which they
objected to and consented to the tenancy being E
transferred in the name of defendant no. 2, one of the five
sons of the original tenant. On 3.2.1962, the residuary
legatee addressed a letter to BMC for transfer of rent bills
in the name of defendant no. 2. The BMC passed eviction
order dated 24.10.1963, wh.ich was challenged by the F
heirs of original tenant in Suit No. 545111963 filed by them
as joint tenants. The suit was decreed and the order
passed by BMC. terminating the tenancy was set .aside .
. BMC transferred the tenancy in favour of defendant no.
, 2,_ who subsequently surrendered tenancy rights of the G
_i suit premises and in exchange he was granted a lease
·of 60 years on a part of the suit premises on which he
. started construction. The legal heirs of the _other sons of
the original tenant, namely; respondents nos. 1 to 5 filed
two suits, i.e. Long Cause Suit No. 1914 of 1983 H
. 648
SUPREME COURT REPORTS
[2014] 5 S.C.R.
A challenging the transfer of tenancy in favour of defendant
no. 2 and Long Cause Suit No. 1877 of 1985 challenging
surrender of tenancy and grant of fresh lease in favour
of defendant no. 2. The plaintiffs sought certain interim
reliefs and not satisfied with the interim orders, filed A.O.
B No. 438/1988 and the High Court passed interim orders
allowing the defendants to proceed with the construction
work subject to the conditions imposed and directed the
trial court to dispose of the suits. The trial court
dismissed both the suits. However, the High Court
c allowed both the appeals of the plaintiffs holding that the
original plaintiffs (respondents) were joint tenants with
original defendant No.2 (predecessor of appellants);
consequently, the surrender of tenancy by defendant
No.2 in favour of BMC was illegal and the transfer of
0 tenancy by BMC in the name of defendant No.2 was
incorrect, void and not binding upon the plaintiffs. The
High Court directed appellants to handover possession
of the five flats to respondent Nos.1 to 5.
E
Dismissing the appeals, the Court
HELD: 1.1. In general tenancies are to be regulated
by the governing legislation, which favour that tenancy
be tranMerred only to family members of the deceased
original tenant. However, in light of the majority decision
F of the Constitution Bench in Gian Devi vs. Jeevan Kumar,
the position which emerges is that in absence of any
specific provisions, general laws of succession is to
apply. This position is further cemented by the decision
of this Court in State of West Bengal vs. Kai/ash Chandra
G Kapurwhich has allowed the disposal of tenancy righ~
of Government owned land in favour of a stranger by
means of a will in the absence of any specific clause/or
provisions. [para 26) [674-F-H; 675-A]
·
Gian Devi Anand vs. Jee van Kumar & Ors. 1985 (1)
H Suppl. SCR 1 = (1985) 2 SCC 683; and State of West
GAIV DINSHAW IRANI v. TEHMTAN IRANI
649
Bengal & Anr. vs. Kai/ash Chandra Kapur; & Ors. 1996 (9)
A
Suppl. SCR 398 = (1997) 2 ·sec 387 - relied on.
Bhavarlal Labhchand Shah ·vs. Kanaiyalal Nathalal ·
lnt<iwala 1986 (1) SCR 1 = (1986) 1 SCC 571; Vasant Pratap
Pandit vs. Dr. Anant Trimbak Sabnis (1994) 3 SCC 481;
B
Sangappa Kalyahappa Bangi vs. Land Tribunal, Jamkhandi
& Ors. 1998 (1) Suppl. SCR 600 = (1998) 7 SCC 294; H.C.
Pandey vs.,G.C. Paul 1989 (2) SCR 769 = (1989) 3 SCC 77;
and Parvinder Singh vs. Renu Gautam & Ors. 2004
(1) Suppl. SCR S10 =- (2004) 4 SCC 794 - referred to.
1.2. In the instant ca~e, the tenancies are owned by
BMC and allegedly by means .of a will, were bequeathed
c
to testator's wife asa residuary legatee in 1946. Such
transfer appears to be permissible in light of the
Constitution Bench decision. However, as the legal
D
position regarding the permissibility of bequeathing a ·
tenancy by will in 1946 was not decided, this Court will
rely on the admissions of the parties in regard to the
same. The BMC by means of letter dated 19.9.1961
treated all the heirs of original tenant as joint tenants; and
E
the heirs of original tenant by means of letter dated
25.10.1961 also claimed themselves to be joint tenants;
the wife of original tenant in her letter dated 3.2.1962 also
claimed joint tenancy along with her sons and sought
transfer of the rent receipts only in the name of her son,
F
defendant no, 2. By letter dated 11.11.1962 once again
all the heirs of original tenant including his wife claimed
themselves to be joint tenants ,in the eviction suit being
Suit No. 5451 of 1963. The wife of original tenant also
regarded herself to be a joint tenant with the other sons.
G
[para 27] [675-B-E]
1.3. As per s.52 of the Indian Succession Act, prior
to the amendment of 1991, a Parsi female intestate's
property shall be divided equally amongst her children
H j
and the statute does not distinguish between step-
650
. •
SUPREME COURT REPORTS
(2014] 5 S.C.R .
A children and children. The tenancy which was jointly held
by residuary legatee and her. sons as admitted by them .
and recognized by the trial court in its judgment dated
July 11, 1977 in Suit No. 5451 of 1963, devolved upon her
· sons on her death by virtue of their being joint tenants
B and her heirs under the Indian Succession Act. The
. original plaintiffs and defendant No.2 always treated and
recognized the tenancy as a joint tenancy and the same
was also recognized by BMC to be so. This fact attained
finality when the finding of the trial court in Suit No. 5451
c of 1963 that it was "no longer in dispute that after the.
demise of Bomanji, the Plaintiffs became the tenants in
respect of the Suit Properties", was not cha I Ieng ed. by any
of the parties to the dispute. Moreover, there is nothing
on record to show that the other sons or the original
0 plaintiffs denied their stake in the same. (para 28-29] (675G; 676-A-D]
It 1.4. Regarding the purported "consent letter" dated
25;10.1961 and the subsequent transfer of tenancy to D2 on 18.9.1981, as admitted by the BMC, the same is illegal
E and lacking bona fide. In 1961 when the joint tenants were
served with an eviction notice, then for the sake of
convenience only the "purported" letter of consent dated
October 25, 1961 was issued. This letter does not have
any validity in law and does not amount to surrender or
F relinquishment of rights of the original plaintiffs in the suit
premises. In a subsequent letter dated 3.2.1962
addressed by residuary legatee to the BMC, she sought
the transfer of rent receipts only, in the name of D-2. The
existence of the said letter is also admitted by the
G appellants and in the same letter it was stated that the ·
tenancy was 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 original tenant
including D-2 claimed themselves to be joint tenants in
H the suit premises and the specific finding of the trial' court
,,
;.
' '
GAIV DINSHAW IRANI v. TEHMTAN IRANI
651
in the said suit was not challenged by any of the parties,
A
Further, D-2 with his other three brothers also made a
joint representation· on 4.8.1975 before the BMC against
the eviction notices on the basis of joint tenancy
devolving upon them after the death of the original
tenant Thus, the appellants cannot take a stand contrary
B
to what has been pleaded earlier in the legal
proceedings. Furthermore, it must be noted, any consent
given was expressly revoked by letter dated December
22, 1980 addressed on behalf of the plaintiffs and
admittedly received by BMC on February 2, 1981. The c
said letter also acted as a notice u/s 527 of the BMC Act.
Thus, the tenancy rights were never transferred
exclusively in the name of D-2. Therefore, the transfer
dated September 18, 1981 by the BMC in favour of D-2
based on the letter dated October 25, 1961 is illegal and
0
the reliance on the same by BMC is misplaced. The High
Court has correctly opined that the conduct of BMC
lacked bona fide and same has not been challenged by
the BMC. [para 30-31] [676-D-H; 677-A-D; 679-H]
1.5; Thus, this Court holds that the transfer of E
tenancy by BMC in the name of D-2 is illegal and void ab
initio. Consequently, all the events that follow, i.e, the
surrender of part of the tenancy by D-2 to BMC and, in
lieu, allotment of the new plot to him, are also rendered
void ab initio. [para 32] [680-A-B]
F
1.6. Since the lease of the 1152 sq. mts executed by
BMC in favour of D-2 has been rendered void ab initio,
the construction by the appellants on the said plot is also
illegal. The position as it exists on date is that the
G
remaining portions of Irani Wadi have been acquired by
the BMC; and on the other portion, the structure erected
by D-2 exists and the portion being the residential
bungalow occupied by the respondents may also be
acquired by BMC in due course. Considering the
HI
/
652
SUPREME COURT REPORTS
[2014] 5 S.C.R.
A changed circumstances, the High Court taking note of
the subsequent events moulded the relief in the appeal
u/s 96 of the Code of Civil Procedure. [para 33-34] [680B-D]
.
8
2.1. 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 u/s 96 CPC is not precluded from taking
note of developments subsequent to the commencement
C of the litigation, when such events have a direct bearing
on the relief claimed by a-party or on the entire purpose
of the suit, and the courts taking note of the same should
mould the relief accordingly. [para 34] (680-E-F]
D
Pasupuleti Venkateswar/u vs. The Motor and General
Traders 1975 (3) SCR 958 = (1975) 1 SCC 770 and
Lachmeshwar Prasad Shukul vs Keshwar Lal Choudhury AIR
1941 FC 5; Lekh Raj vs. Muni Lal & Ors. 2001 (1) SCR 864 =
(2001) 2 SCC 762; Sheshambal (dead) through LRs vs.
E Chelur Corporation Chelur Building & Ors. 2010
(2) SCR 960 = (2010) 3 SCC 47; Rajesh D. Darbar and Ors.
vs. Narasinghro Krishnaji Kulkarni and Ors. 2003 (2) Suppl.
SCR 273 = (2003) 7 SCC 219; Beg Raj Singh vs. State of
Uttar Pradesh & Ors. 2002 (5) Suppl. SCR 530 = (2003) 1
F SCC 726; Bihar State Financial Corporation & Ors. vs.
Chemicot India (P) Ltd. & Ors. 2006(5) Suppl. SCR 312 =
(2006) 7 SCC 293; Parents Association of Students vs. M.A.
Khan & Anr. 2008 (17) SCR 735 = (2009) 2 SCC 641; State
of Uttar Pradesh & Ors. vs. Mahindra & Mahindra Ltd. 2011
G (5) SCR 509 = (2011) 13 SCC 77 ·referred to.
Patterson vs. State of Alabama 294 US 600 - referred .
to.
2.2. Thus, when the relief otherwise awardable on the
H date of commencement of. the suit would become
GAIV DINSHAW IRANI v. TEHMTAN IRANI
653
inappropriate in view of the changed circumstances, the
A
courts may mould the relief in accordance with the
changed circumstances for shortening the litigation or to
do complete justice. [para 35] [683-F-G] . ·
. 2.3. The appellants during the pendency of the civil · B
·suits sought interim orders from the High· Court and on
the basis of order dated April 20, 1988 constructed the
structure on the condition that rights of five flats were to
be retained and they were subject to the outcome of the
suit. In another order dated October 16, 1991 the C
appellants were once again restrained from the creation
of third party rights with respect to the five demarcated
flats. The appellants being well aware of the risks and
conseq'uences, carried on with the construction. In the
circumstances, th.e High Court taking note of the
supsequent events has correctly moulded the relief and
D
allotted five flats to respondent Nos. 1 . to 5 as per their ·
share. [para 36-37] (684-A-C, D]
,
Shiv. Kum qr Sharma vs. Santosh Kumari 2007(10)
SCR 17 = (2001) 8 SCC 600; Bachhaj Nahar vs. Nilima · E
Maodal and Anr. 2008 (14) SCR 621 = (2008) 17 SCC 491;
Sangramsinh P. Gaekwad & Ors. vs. Shantadevi P. Gaekwad
.& Ors. 2005 (1 )' ·SCR 624 = (2005) 11 SCC 314; Pasupu/eti
Venkateswarlu vs . .The Motor and General Traders 1975 (3)
SCR 958 = (1975) 1 SCC 770; Ramesh Kumar vs. Kesho
F
Ram· (1992)"Supp 2 SCC 623 - cited.
Case. Law Reference:
2007 (10f SCR 17
cited
para 6
I
cited
2008 (14) SCR 621
·para 6
G
2005 (1) SCR 624
cited
para 9
1985 (1).Suppl. SCR 1
relied on
Para 22
'1986 (1) SCR 1
referred to
. para 22
H
654
SUPREME COURT REPORTS
[2014] S~S.C.R.
'
A
(1994) 3 sec 481
referred to
para 23
, ' 1998 (1) Suppl. SCR 600 referred to
para 24
1996 (9) Suppl. SCR 398 relied on
Para 25
B
1989 (2) SCR 769
referred to
para 25
..
2004 (1) Suppl. SCR 610 referred to
para 25
' 294 us 600
referred to
para 34
AIR 1941 FC 5
referred to
para 34
c
r l
I'
. : 1975 (3) SCR 958
cited
para 34
(1992) supp 2 sec 623
cited
para 34
· 2001 (1) SCR 864
referred to
para 34
-
D
2010 (2) SCR 960
referred to
par~ 34
2003 (2) Suppl. SCR273 referred to
para 34
2002 (5) Suppl. SCR 530 referred to
para 34
E
2006-(5) Suppl. SCR 312 referred to
para 34
.. 2008 (17) SCR 735
referred to
para' 34
'
2011 (5) SCR 509
ref~rred to
para 34
F
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
4887 of 2014.
•
·'
G
From the Judgment & Order dated 30.9.2005 of°the High
Court of Judicature at Bombay in First Appeal No. 970 of 1995.
•'
WITH
C.A. No. 4888 of 2014.
, Dhruv Mehta, R:N. Karanjawala, Nandini Gore, Debmalya.
Banerjee, Kartik Bhatnagar, Devina Sehgal, Prasenjit
H Keswami, Manik Karanjawala for the Appellants.
?
"''
GAIV DINSHAW IRANlv. TEHMTAN IRANI .
655
.
.
Dr. AM. Singhvi, Gopal Jaiti, Anirudh Joshi, Ranjeev ·A
Carvalha, Mahesh Agarwal, Risfik Agrawala, E:C. Agrawa1a,
Radhika Gautam, AbhinavAgrawat:·Manisha Ambwani, Naresh
Kumar, Vinay Navare, Keshav Ranjan, Satyajeet Kumar, Abha
R. Sharma, Purnima Bhat, Atul Y: Chitale, Sanyukta Mukherjee,
Jayati Y. Chitale, Suchitra Atul Chitale, J.J. Xavier, Shivaji M.
B ·
Jadhav, ·Lawyer's. Knit & Co., Vivek Sharma for t.he
Respondents.
The Judgment of the Court was delivered by
PINAKI CHANDRA GHOSE, J.1. Leave granted.
C
· 2. These appeals are directed against the judgment and ·
.order dated September 30, 2005 in .First Appeal No. 970/1995
with First Appeal No.1075/1995 passed by the High Court of
Bombay. The High Court allowed both these appeals; set aside 0
the judgmeQts and decree passed by the Trial Court in both the .·
suits;. and gecreed both the suits, i.e., Long Cause Suit No, 1914
of 1983 as well as Long Cause Suit No.1877 of 1985 in terms
of ttie prayers. The High Court further directed the defendants .
to imi;nediately place the plaintiffs ·in possession of the five flats
E
which were kept reserved by virtue of the interim orders passed
by the High Court from ·time to time; and the stay on the ·
Bombay Municipal Corporation regarding the development of
the remaining property was directed to be vacated.
3. The facts of the case briefly are as follows:
F
. 3:1. Qne Bomanji Irani, who is the predecessor of
appellants herein, acquired tenancy rights in .respect of the
pr~mises admeasuring 6500 sq. yds., known as 'Irani Wadi',
situaJed at Ma~gaon, Mumbai. This premises comprised of .
resi.dential Bungarow, open land .used for Nursery, and Mali's· G
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
bf the Will.-Bomanji Irani died on September 27, 1946 leaving
'behind his wife Daulatbai; five sons, namely (1) Ardeshir (2)
H
656
SUPREME COURT REPORTS
[2014] 5 S.C.R. ·
A 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.
B 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 (beirg
Respondent No.6, hereinafter referred to as 'BMC') acquired
C ownership rights in respect of the suit premises and on
September 19, 1961 issued eviction notices· to the heirs and
legal representatives of Bomanji, comprising Daulatbai and five
sons. In response to the eviction notices, the legal .heirs and
representatives of Bomanji obje.cted to. the same but they
D consented to the tenancy being transferred in the nam.e of
Dinshaw Irani (original defendant No. 2).
3.3. On February 3, 1962 Daulatbai addressed a letter to
the BMC requesting for transfer of rent bills in the name of her
E son Dinshaw (original defendant No. 2). The 'BMC ignored the
objection raised and passed an eviction·.order dated October ·
24, 1963 against the heirs and legal representatives of Bomanji.
Against the said eviction order passed by the BMC, the heirs
and legal representatives of Bomanji jointly filed a suit as joint
F tenants, being Suit No.5451/1963. Daulatbai died .during the
pendency of this suit. On July 11, 1977 the said suit was
decreed in favour of the plaintiffs and the ord~r passed by the
BMC terminating the tenancy was set aside. By letter dated
September 18, 1981, BMC transferred the tenancies ill favour
G of Dinshaw, subject to certain conditions including that a portion
of land should be surrendered to BMC, which was objected to
by respondent No.5 (Peshotan, son of Homi Irani).
Consequently, on the request of Dinshaw Irani the tenancy in
respect of Mali's quarters, Nursery garden, florist shop and farm
house was transferred in favour of Din shaw Irani. Respondent
H
/
GAIV DINSHAW;IRANI v.TEHMTAN !RANI
657
[PINAKI CHANDRA GHOSE, J.]
-
.
.
No.1 . (son and 1egal heir of deceased Ardeshir Irani) and . A
respondent No:s again objected to the .. transfer of tenancy in
the name of Dinshaw Irani.
. 3.4. Dinshaw Irani.submitted a proposal fo the BMC for
handing over 4000 sq. yds. of the suitpremises to the
B
Corporation· by retaining the remaining 2500 sq. yds. for
himself. He also stated in the proposal that as his two brothers
do not want to move in with him, they should be provided with
alternative accommodation.
3.5. The respondents (legal. heirs of Homi and Ardeshir
C
Irani) on coming to know about the transfer of tenancy of the
suit premises, issued a notice dated October 28, 1982 under
Section 527 of the Bombay Municipal Corporation Act, 1888
(hereinafter referred to as 'the Act') and subsequently on March
23, 1983, filed Long Cause Suit No.1914 of 1983 challenging
D
transfer of tenancy before the City Civil Court at Bombay. During
the pendency of the 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
E
admeasuring 1152 sq mts. bearing CS No. 366-67 (Part)
Mazgaon and .. Ofl November 30, 1983 lease deed of the said
plot in favo.ur of Dinshaw Irani was executed. ·
if('
F
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
G
plaints and claimed that he alone was the tenant of the suit
premises and had carried out thebusiness 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.
"':he BMC being defendant No.1 in both the suits also filed its
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[2014) 5 S.C.R.
A written statement in Long Cause Suit No.1914 of 1983 stating
that the tenancy was transferred in the name of Dinshaw Irani
on the basis of the documents produced by him in supr:iort of
the same (being the Wills of deceased Bomanji and Daulatbai;
the partnership deed between Daulatbai and Dinshaw Irani and
B the' consent letter given by the other sons of Bomanji and
Daufatbai). During the pendency of the said suit, Dinshaw Irani
expired on December 2, 1988.
'
. : I
3.7. The plaintiffs, who are respondent Nos.1 to 5 herein,
sought certain interim reliefs by filing Notice of Motions in both
C the lontl cause suits. The Trial Court on April 11, 1988 disposed
of the Notice of Motions and granted an interim injunction
restraining the defendants in the suit from disturbing the
possession of the plaintiffs of certain parts of the bungalow'
which was occupied by them. Dissatisfied with this order, the
D plaintiffs preferred Appeal against Order (A.O.) No.438/1988
before the High Court and the learned Single Judge in Civil
Application No.1481 of 1988 passed an' order dated April 20,
1988 allowing the defendants to proceed with the construction
work:subject to the condition that during the pendency of the
E appeal and ninety days after the defendants were to retain five
flats=and rights arising therefrom. While disposing of-AO.
No.438 of 1988 on October 16, 1991, the High Court directed
that both the suits be disposed by the Trial Court by April, 1992;
that the restriction for creation of third party rights with respect
F to the five flats reserved be continued; and the interim order in
Notice of Motion No.1459 of 1985 restraining the defendants
from disturbing the possession of th~ plaintiffs in the, suit
premises be continued.
'
13.8. The City Civil Court dismissed both the suits by two
G separate judgments. The findings of the Trial Court in Long
Cause Suit No.1914 of 1983 was that the plaintiffs failed to
·prove joint tenancy and therefore the transfer of rent bills in the
name of defendant No.2 was not illegal. In Long Cause Suit
No.1877 of 1985, the Trial Court held that as the plaintiffs failed
• H to prove their case of joint tenancy, the surrender of tenancy in
GAIV DINSHAW IRANI v. TEHMTAN IRANI
659
[PINAKI CHANDRA GHOSE, J.]
favour of BMC was not hit by an illegality and the lease granted
A
to him is legal and valid.
3.9. Aggrieved by the aforementioned judgments passed·
by the Trial Court, the respondents preferred two separate
appeals being First Appeal No.970of1995 filed against order
B
in Long Cause Suit No. 1914 of 1983 and First Appeal
No.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
C
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 o
binding upon the plaintiffs. ResuJ~antly, 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
E
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 pri>posal during the course of hearings
for balancing the equities.
F
5. Learned senior counsel appearing on behalf of the
appellants submitted that the transfer of tenancy in favour of the
appellants by BMC was correct on the. grounds firstly, that the
G
appellants derive their title from the probated Will of Bomanji
and Will of Daulatbai and the letter dated October 25, 1962
issued by all the heirs of Bomanji consenting to transfer of
tenancy in favour of Dinshaw and the letter dated February 3,
1962 issued by Daulatbai to BMC requesting for transfer of
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660' .. SUPREME COURT REPORTS
[2014] 5 S.C.R.
A · tenancy in favour of Dinshaw. Secondly,· that Daulatbai as a
residuary legatee inherited the tenancy rights and took charge
of the florist business with her son Dinshaw as noted by the Trial
Court; furthermore, Daulatbai by her Will, transferred the nursery
business to Dinshaw and transferred the tenancy in favour of
B Dii1shaw by fetters dated October 25, 1961 and February 3,
1962, Thirdly, the nursery business and the suit premises are
exclusively in the control of Daulatbai and Dinshaw; and that
Ardeshir being the step-son of Daulatbai was not entitled to
inherit from her and the three sons of Bomanji, namely,
c Ardeshir, Homi and Jahangir are not concerned with the nursery
business and the suit premises. Fourthly, the Trial Court after
properly considering documents on record concluded that the
appellants were in exclusive and uninterrupted possession· of
the suit premises and they were exclusively doing the nursery
0 business as absolute owners, a fact which has not been
challenged by the respondents. Fifthly, the High Court has
incorrectly given a finding that neither Will nor consent letter
confer any exclusive right on the appellants on the ground that
Daulatbai and five sons of Bomanji had Jointly filed Suit No.5451
of 1963 against BMC to challenge the eviction order without
E considering that the nursery business was being carried on by
Daulatbai and Dinshaw and that nowhere the factum of joint
tenancy has been admitted in the said suit, which never
determined the issue of joint tenancy. Sixthly, that BMC after
· duly considering all the facts and relevant documents, correctly
F transferred the tenancy in favour of Dinshaw. Seventhfy, the
plaintiffs in the suit had not made any prayer for declaration of
right to joint tenancy or claimed any other rights or possession.
Lastly, that High Court did not consider the cogent findings of
. the Trial Court, especially the finding that effect of the transfer
G of rent receipts would be that the respondents are
dispossessed from the suit premises and at least from the
nursery which was a distinct tenancy and in the absence of.a
prayer for possession, the suit was bad in law.
H
6. The second submission made by the learned senior
.
.
.
GAIV DINSHAW IRANl v. TEHMTAN IRANI.
661
[PINAKI CHANDRA GHOSE, J.]
counsel appearing on behalf of the appellants is that the High
A
Court acted in excess ofits powers in granting the relief which
was beyond the subject matter of the suit in an appeal under
Section 96 of \he 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
B
limited to the transfer of rent receipts by BMC in favour of
Dins haw, the surrender of tenancy by Dins haw 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 c
suit premises by respondent N,o.6, being BMC. The learned
counsel has relied on the cases of Shiv Kumar Sharma vs.
Santosh Kuman1 and Bachhaj Nahar vs. Nilima Manda/ and
Anr. in support of his contention. It is further .contended that the
High Court erred in holding that the building of the appellant D
would become illegal as the respondents claim a right in the
existing bungalow and would also get aright in the 1152 sq.mts.
plot leased to Dinshaw if the original suit is decreed. That the ·
lease of 1152 sq. mts. was based entirely on needs and
entitlement of Dinshaw and it was in lieu of his tenancy rights
alone in the compound of Irani Wadi except the residential
E
portion in possession of his two brothers (Ardeshir and Homi)
for whom . BMC had undertaken to ·provide them
accommodation. Furthermore, it was contended that if BMC
does not honour its resolution of providing alternative
accommodation to respondent Nos. 1 to 5, subject to their F
rights, then the entire property of 5950 sq.mts. must revert back
to Dinshaw Irani and that BMC then has no right to develop the
same alongwith a builder, which is in violation of.the status quo
order dated November 18, 2005 passed by this Court. That
there was no prayer for possession of any flats entitled to G
respondent Nos. 1 to 5 and the High Court's order that
respondent Nos.1 to 5 representing only two branches are
1.
(2007) a sec 600.
2.
(2ooa) 11 sec 491.
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SUPREME COURT REPORTS
[2014] 5 S.C.R.
A entitled to five flats as ·6/15th share is incorrect without any.·
specific pleading and in the absence of a dispute regarding/
· the~lnter se rights of the. parties.·
_
1
·
a7. It is also submitted by the appellants that they expended
B the,entire amount in the construction of the building and they
had.to rent out nine flats for the same and out of the remaining
five flats the appellants are residing in two flats and one is given
on .leave and license. The effect of the plaintiffs' suit (being
respondent Nos.1 to 5) being decreed is that entire 6500 sq.
yards be surrendered to BMC and then the shares of all heirs
C of Bomailji, be worked out. The same could not have been
directed or determined in the absence of any pleadings even
if it is assumed that the respondent Nos. 1 to 5 have a share
in the 1152 sq.mts. plot leased to the appellants.
·
'
Ii
',
D
· ?· The third ground raised by the learned senior counsel
on ~.ehalf of the appellants is that BMC being respondent,No.6
herein can develop the balance plot only in terms of the
resolution dated September 28, 1983. In this connection, it has
beeii submitted that the lease of ·1152 sq.mts. plot granted to
E
Din~raw was subject to the condition that BMC provides
alternate accommodation to his two brothers as per the
resoiution. That in case of BMC's inability to honour the said
resolution dated September 28, 1983, the entire property i.e.
595'0· sq. mts. must revert back to Dinshaw and BMC has no
F right' to develop the same as it will be in violation of the status
quo:C>rder passed by this Court and that in no event respondent
".
Nos,. 11 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 ~
1alance land. Thus, it was requested that it will be just and
G 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
H absence of pleadings and evidence to make out a case of ·
GAIV DINSHAW IRANI v. TEHMTAN IRANI
663
[PINAKI CHANDRA GHOSE, J.)
fraud. In this regard, learned senior counsel has placed reliance A
on the. case of Sangramsinh P. Gaekwad & Ors. vs.
Shantadevi P. Gaekwad & Ors. 3
· 10. The last and final ground raised by the learned senior
counsel for the appellants is that in no event respondent Nos.
8
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 injunction was granted by the High Court in respect of the
five flats out of which three were occupied by the appellants C
and two were reserved for the Government under the Urban
Land (Ceiling & Regulation) Act, 1976. Therefore, not more than
three flats could be meant for respondents Nos.1 to 5. That the
direction of the High Court bestowing five flats is incorrect in
the absence of any specific pleading in the suit or appeal and
without· any affidavit filed in this regard by the plaintiffs/ D
respondents and without the appellants placing their case
regarding entitlement of respondent Nos. 1 to 5, who represent
only two branches and not all the five brothers. It has been
argued that the order of the High Court granting five flats to the
respondents gravely prejudices the rights of the appellants in
E
the light of the above and that they will be evicted from their·
homes. Therefore, it has been prayed that the respondents be
granted only three flats.
11. Learned counsel appearing on behalf of respondent
F
No.1 has contended before us that that the claim of the
appellants that Dinshaw solely acquired the tenancy rights is
false. In support of this contention, he submitted that as stated
by the Trial Court there can be no bequest of ten'ancy rights and
same did not devolve upon Disnhaw through the Wills of G
Boma11ii and Daulatbai. Furthermore, the Will of Daulatbai was
not probated and no right is asserted by such a Will. Even if
reliance is placed on the Will of Daulatbai, it clearly states that
only nursery business and not the tenancy is bequeathed to
3.
c2oos) 11 sec 314.
/
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[2014] 5 S.C.R.
A Dinshaw. That BMC and all the parties including Daulatbai and
Dinshaw, always considered all the heirs of Bomanji to be joint
heirs evident from the material on record. Furthermore, the City
Civil Court in Suit No. 5451 of 1963 clearly recorded that
undisputedly after Bomanji's death his sons and Daulatbai
B became the tenants in the suit premises; Dinshaw from the
death of Bomanji till 1977 asserted that all the sons of Bomanji
were monthly tenants with respect to the property and in judicial
proceedings leading to decree in favour of Dinshaw on that
basis. The fact also attained finality in Suit No.5451 of 1963
c and the same stand would be barred by principle of res
judicata and the same has been noted by the High Court.
12. Learned counsel appearing for respondent No. 1 has
also contended that reliance by BMC on letter dated October
25, 1961 is mala fide and erroneous. BMC purported to transfer
D 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
E Dinshaw to contest the eviction suitof 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
F 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
G 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
which was admittedly received by BMC on February 2, 1981,
before the letter of 1961 was acted upon. It has been contended
that BMC despite being aware of the revocation of the consent,
,H
'
GAIV DINSHAW IRANI v. TEHMTAN IRANI
665
[PINAKI CHANDRA GHOSE, J.]
transferred the tenancy exclusively in favour of Dinshaw and
A
suppressed the same from the respondents even after the
transfer and stated that it "proposed to transfer tenancy in
favour of Dinshaw" in a subsequent letter. Thus; the High Court
has correctly noted that conduct of BMC lacked bonafide and
such findi~ has not been challenged by the BMC.
B
13. The ~ext submission made by the learned counsel for
respondent N~. 1 is that the moulding of relief by the High Court
is just and equitable and in fact confers the appellants with
benefits more than they are entitled, therefore requiring no
C
interference from this Court. In light of the same, it has been
put forth by the learned counsel that having found the transfer
of tenancy to be illegal, all the later developments become void
. ab initio; and to .reverse the position the course would have
been to demolish the 'building constructed on the plot leased
to Dinshaw. Learned counsel representing respondent No.1
D
further submitted that the High Court correctly moulded the
relief and directed that the five flats be handed over to the
respondents, as the construction was allowed to be made on .
the plot subject to the outcome of the first appeal and on the
condition that five flats be kept apart. Furthermore, it has been
E
submitted that appellants representing only one branch are
receiving nine flats and the full other wing of the building
comprising of fourteen tenements rented out by the appellant,'
whereas the respondents representing two branches are
receiving only five flats. It is also contended that the appellants
F
have deprived the respondents of their extremely valuable
tenancy rights in respect of a huge original plot and in an
agreement with BMC accepted a much smaller newly allotted
plot on which the construction was at the risk of the appellants,
in this factual matrix the grievance of the appellants that they
G
have incurred construction costs does not hold good.
Furthermore, the respondents have been enjoying the benefits
arising from the new plot leased to Dinshaw by BMC since
1997.
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666
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[2014] 5 S.C.R.
A
14. In addition to the above, respondent No. 1'has also
challenged the submissions made by the appellants.