TMI Blog2015 (9) TMI 1066X X X X Extracts X X X X X X X X Extracts X X X X ..... al. 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. - CIVIL APPEAL NO.4887 OF 2014, 4888 OF 2014 - - - Dated:- 25-4-2014 - Pinaki Chandra Ghose Gyan Sudha Misra, JJ. JUDGMENT Pinaki Chandra Ghose, J. 1. Leave granted. 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 the judgments and decree passed by the Trial Court in both the suits; and decreed 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 the prayers. The High Court further directed the defendants to immediately place the plaintiffs in possession of the five flats 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 regardin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred the tenancies in favour 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 Dinshaw Irani. Respondent No.1 (son and legal heir of deceased Ardeshir Irani) and respondent No.5 again objected to the transfer of tenancy in the name of Dinshaw Irani. 3.4. Dinshaw Irani submitted a proposal to the BMC for handing over 4000 sq. yds. of the suit premises to the 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 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 N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he pendency of the appeal and ninety days after the defendants were to retain five flats and rights arising therefrom. While disposing of A.O. 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 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 the plaintiffs in the suit premises be continued. 3.8. The City Civil Court dismissed both the suits by two 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 to prove their case of joint tenancy, the surrender of tenancy in favour of BMC was not hit by an illegality and the lease granted to him is legal and valid. 3.9. Aggrieved by the aforementioned judgments passed by the Trial Court, the respondents preferred two separate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 transferred the tenancy in favour of Dinshaw. Seventhly, 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 findin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itled to five flats as 6/15th share is incorrect without any specific pleading and in the absence of a dispute regarding the inter se rights of the parties. 7. It is also submitted by the appellants that they expended 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 of Bomanji, 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. 8. The third ground raised by the learned senior counsel on behalf 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 been submitted that the lease of 1152 sq.mts. plot granted to Dinshaw was subject to the condition that BMC provides alterna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 tenancy rights and same did not devolve upon Disnhaw through the Wills of Bomanji 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 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 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 and the same stand would be barred by principle of res judicata and the same has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... building constructed on the plot leased to Dinshaw. Learned counsel representing respondent No.1 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 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 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 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. 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... third party rights. It was vehemently argued that the appellants case was absolutely misconceived and baseless as is evident from the observations of the City Civil Court that: (i) there could be no bequest of tenancy rights; and (ii) that an unprobated Will was only with respect to the florist business and not the tenancy rights in aggregate. 16. Respondent Nos. 2 to 5 and 13 to 14 also submitted that it is admitted by Daulatbai that she along with her five sons became monthly tenants of the suit premises. Upon show cause notices being issued by BMC to all the legal heirs of Bomanji, the aforesaid position came to be reiterated by the latter. It is alleged that this reiteration, in itself, buttressed the point that they were joint-tenants in possession of the suit premises. That the falsity of the claim of the appellants is crystal clear in light of the fact that they along with the respondents filed Suit No.5451 of 1963 challenging the eviction notices served by BMC. Furthermore, the City Civil Court by judgment dated October 11, 1977 also observed that after the demise of Bomanji, the appellants and respondents therein had become the tenants of the suit property, a fact whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t by the impugned order dated September 9, 2005 the High Court allowed the first appeals filed by respondent Nos.1 to 5 herein and directed the appellants to hand over five flats kept reserved. The High Court specifically observed that construction on the new plot by the appellants was allowed by virtue of the interim order passed by the High Court during the pendency of the suits before the trial court, and five flats were reserved to protect the interest of respondent Nos.1 to 5. 19. It is further submitted on behalf of respondent No.6 that the statement that the family member of the appellants are occupying these five flats, is false and frivolous and the same is made to gain sympathy of this Court. Secondly, it is submitted that as per the orders passed by the High Court, conditional permission was granted to the appellant to proceed with the construction, and the High Court was correct in handing over the five flats to respondent Nos.1 to 5. That the original defendant No.2 and the respondents before the High Court have filed this appeal by special leave and this Court has passed status quo order in respect of the suit premises. Thirdly, it is submitted that the Munici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exempts the present tenancy from its purview as per Section 4 (1). The BMC Act is also silent on this aspect. Therefore, we will discuss the existing jurisprudence regarding the same. 22. In the case of Gian Devi Anand vs. Jeevan Kumar Ors. (1985) 2 SCC 683 four Judges of a five-Judge Constitution Bench held that the rule of heritability extends to statutory tenancy of commercial as well as residential premises in States where there is no explicit provision to the contrary and tenancy rights are to devolve according to the ordinary law of succession unless otherwise provided in the statute. This Court in Bhavarlal Labhchand Shah vs. Kanaiyalal Nathalal Intawala(1986) 1 SCC 571 referring to the Bomaby Rent Control Act, 1974 held that in a contractual tenancy, a tenant of a non-residential premises cannot bequeath under a Will his right to such tenancy in favour of a person who is a stranger to the family, being not a member of the family, carrying on business. With respect to residential tenancy, this Court left the question open and held: we do not propose to deal with the wider proposition that a statutory tenancy which is personal to the tenant cannot be bequeathed at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be treated as tenant . Therefore, if heir is to include a legatee of the will then the above-quoted words cannot be applied in case of a tenant who leaves behind more than one legatee for in that case the wishes of the testator can get supplanted, on the landlord s unwillingness to respect the same, by the ultimate decision of the court. In other words, in case of a testamentary disposition, where the wish or will of the deceased has got to be respected a decision by the court will not arise and that would necessarily mean that the words quoted above will be rendered nugatory. What we want to emphasise is it is not the heirship but the nature of claim that is determinative. In our considered view the legislature could not have intended to confer such a right on the testamentary heir. Otherwise, the right of the landlord to recover possession will stand excluded even though the original party (the tenant) with whom the landlord had contracted is dead. Besides, a statutory tenancy is personal to the tenant. In certain contingencies as contemplated in Section 5(11)(c)(i) certain heirs are unable to succeed to such a tenancy. To this extent, a departure is made from the general law. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssive language used in clause (12) of the lease deed, it cannot be said that the bequest in favour of strangers inducting a stranger into the demised premises or the building erected thereon is not governed by the provisions of the regulation or that prior permission should be required in that behalf. However, the stranger legatee should be bound by all the covenants or any new covenants or statutory base so as to bind all the existing lessees. In H.C. Pandey vs. G.C. Paul(1989) 3 SCC 77, this Court held that: It is now well settled that on the death of the original tenant, subject to any provision to the contrary either negativing or limiting the succession, the tenancy rights devolve on the heirs of the deceased tenant. The incidence of the tenancy are the same as those enjoyed by the original tenant. Furthermore in Parvinder Singh vs. Renu Gautam Ors. (2004) 4 SCC 794, it has been held by this Court that: Tenancy is a heritable right unless a legal bar operating against heritability is shown to exist. 26. The aforementioned cases indicate that in general tenancies are to be regulated by the governing legislation, which favour that tenancy be transferred onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m of the appellants that the they had exclusive rights over the nursery business does not hold good. 29. In light of the above, we find that the tenancy which was jointly held by her 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, is devolved upon her sons on her death by virtue of their being joint tenants 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 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 challenged by any of the parties to the dispute. Moreover, there is nothing on record to show that the other sons or the original plaintiffs denied their stake in the same. 30. Regarding the purported consent letter dated October 25, 1961 and the subsequent transfer of tenancy to Dinshaw on September 18, 1981, as admitted by the BMC, we find the same to be illega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, objections were again raised by respondent No.5 by means of letter dated October 22, 1981 and the Senior Ward Officer by means of letter dated February 2, 1982 admitted that since earlier letter of objections was not received by the concerned officer, they wanted a copy of the same letter of objections to decide the case on merits. This letter created a belief that no transfer of tenancy had taken place which is further cemented by the letter dated February 25, 1982 addressed by the Dy. Municipal Commissioner, Shri. P.P. Kamdar, wherein he sought the letter of objections and stated that on account of the documentary evidence produced by Shri Dinshaw Bomanji Irani, it is proposed to transfer the tenancy in his favour . In the said letter, BMC did not inform the plaintiffs about the transfer on September 18, 1981 and instead created an ambiguous situation. These letters brought on record clearly indicate that no due process was followed wherein objections were sought after the transfer and no proper transfer was made. We have noticed and found that the High Court has correctly held as follows : 15. 3rd question that arises is, whether giving the consent for transferring the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as stated that any objection does not appear to have been received by E Ward Office and, therefore, a request was made to P.H. Irani to send a copy of the same letter and, the purpose of asking for the copy is so as to enable him to decide on the objections on merits. Then copy of this letter (Exhibit 16) was also sent to the Law Office. 19. This letter of 1982 fully supports and fortifies the contentions raised by the learned Counsel Mr. Naik for the plaintiffs that the transfer of tenancy on 18th September 1981 is not bona fide because even as on 2.2.1982, as per the Sr.Ward Officer of the BMC, there was no transfer of tenancy and objections were to be decided on merits thereafter. I have no hesitation in accepting this submission of learned counsel Mr. Naik for the plaintiffs. Therefore, in this background, it has to be held that transfer of tenancy is suspicious and lacks bonafides. The High Court has correctly opined that the conduct of BMC lacked bona fide and same has not been challenged by the BMC being respondent No.6 before us. 32. In light of the same, we find force in the arguments put forth by the respondents in this regard. Thus, we hold that the transfer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fairplay is violated, with a view to promote substantial justice - subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule are myriad. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the Court can, and in many cases must, take cautious cognisance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed. The abovementioned principle has been recognized in a catena of decisions. This Court by placing reliance on the P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... redundant by lapse of time or may have been rendered incapable of being granted by change in law. There may be other circumstances which render it inequitable to grant the petitioner any relief over the respondents because of the balance tilting against the petitioner on weighing inequities pitted against equities on the date of judgment. Even this Court while exercising its powers under Article 136 can take note of subsequent events (See: Bihar State Financial Corporation Ors. vs. Chemicot India (P) Ltd. Ors. (2006) 7 SCC 293, Parents Association of Students vs. M.A. Khan Anr. (2009) 2 SCC 641, State of Uttar Pradesh Ors. vs. Mahindra Mahindra Ltd. (2011) 13 SCC 77 ) 35. Thus, when the relief otherwise awardable on the date of commencement of the suit would become inappropriate in view of the changed circumstances, the courts may mould the relief in accordance with the changed circumstances for shortening the litigation or to do complete justice. 36. The appellants during the pendency of the Civil 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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