IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 614 OF 2008 FGP Limited ...... ...... ...... Applicant V/s Saleh Hooseini Doctor & Anr. ..... ...... ...... Respondents. Mr.M.S.Ganesh, Sr.Counsel with Mr.B.A.D'Lima i/by M/s.D' Lima & Associates, Adv. For the applicant. Mr.Rohit Kapadia, Sr.Counsel with Mr.Darius Khambatta Mr.Mr.V.R. Dhond, i/by M/s.Federal & Rashmikant, Adv. For the respondents. CORAM: R.V. MORE, J. 2nd DECEMBER, 2008. PC: Heard Mr.M.S.Ganesh, Senior Counsel for the applicant and Mr.Rohit Kapadia, Senior Counsel for the respondents. This civil revision application takes exception to the judgment and decree dated 12.8.2005 passed by the learned Single Judge of Small Causes Court in TE & R Suit No.427/450/01 as confirmed by the Division Bench of the Small Causes Court by its judgment and order dated 30.8.2008 in Appeal No.731/05 where under the applicant is directed to hand over vacant and peaceful possession of the premises to the respondents being Unit No.D-1, Unit Type 401, on 4th floor of the building known as “Daisylea” situated at 17A, Mount Pleasant Road, Mumbai-400 006 (hereinafter referred to as “the suit premises”). Brief facts giving rise to the filing and for disposal of the 1 present Civil Revision Application are as under : 2. The applicant was the tenant in respect of suit premises belonging to the respondent' s late mother one Mrs.Sheroo Hooseini Doctor. Said Sheroo passed away on 31.1.1999 leaving behind her last will and testament dated 20.12.1990 appointing her husband one Hooseini Salebhoy Doctor to be the executor of her will and failing him her three children viz. two sons viz. Saleh Doctor and Parvez Hooseini Doctor and daughter Niloofer Sawhney. Parvez Doctor predeceased said Sheroo Doctor. There is no dispute that said Sheroo Doctor, her husband Hooseini Doctor and respondents are all Mohammedans. 3. The applicant is a public limited company having paid up share capital in excess of Rs.1 crore and as such the Maharashtra Rent Control Act, 1999 is not applicable in view of the provisions of section 3(1)(b) of the said Act and consequently it is not entitled for any protection. 4. The husband of Sheroo Doctor i.e. Hooseini Doctor obtained probate on 8.5.2000 in respect of the above mentioned will of said Sheroo Doctor and in his capacity as the executor issued notice to the applicant through his Advocate on 11.4.2001 terminating its tenancy and calling upon it to hand over vacant and peaceful possession of the suit premises. However said Hooseini Doctor passed away on 4.7.2001. 5. Since the applicant failed to hand over possession of the suit 2 premises, the respondents filed a suit for eviction against the applicant. The learned Judge of the Small Causes Court after hearing both the parties by his judgment and order dated 12.8.2005 decreed the suit and directed the applicant to hand over possession of the suit premises to the respondents. An appeal filed by the applicant before the Division Bench of the Small Causes Court, as stated above, was also dismissed by a judgment and order which is impugned in the present civil revision application. 6. Mr.Ganesh, learned senior counsel appearing for the applicant fairly conceded the legal position that the applicant is a public limited company having paid up share capital of more than Rs.1 crore and therefore the suit premises let out to the applicant is exempted from the provisions of Maharashtra Rent Control Act, 1999. He submitted that Ms.Sheroo Doctor and her husband Hooseini Doctor though belonging to Dawoodi Bohra Shia Muslim community and having got married according to Muslim rites they got their marriage registered under the Special Marriage Act, 1954 (hereinafter referred to as the “said Act”) on 11.1.1981. He further submitted that by virtue of said registration of Marriage under the Special Marriage Act, 1954 said marriage became one deemed to have been solemnized under that Act. Consequently by virtue of section 21 of the said Act property of said Hooseini Doctor and Sheroo Doctor came to be regulated by the provisions of Indian Succession Act, 1925. He also submitted that in view of the provisions of section 21 of the Special Marriage Act, 1925 3 sub-section (2) of section 213 of the Indian Succession Act is not applicable and therefore in the absence of any probate suit is not maintainable. In order to substantiate contention Mr.Ganesh relied upon decision of a Division Bench judgment in the case of Dr.Abdur Rahim Undre v/s Smt.Padma Abdur Rahim Undre, AIR 1982 Bom. 341 and the decision of learned Single Judge in the case of Sayeeda Shakur Khan & Ors. V/s Sajid Phaniband & Anr. 2006 (5) Bom.C.R.7. 7. Per contra, Mr.Kapadia, learned senior counsel for the respondents submitted that the provisions of section 213(2) of the Indian Succession Act, 1925 are applicable to the facts of the present case and therefore it was not necessary for the respondents to obtain a probate in respect of will of late Smt. Sheroo Doctor. It was further submitted that though the registration of the marriage of Sheroo Doctor and Hooseini Doctor was under the Special Marriage Act, 1925 same will not affect the exception made by section 213(2) of the Indian Succession Act. To substantiate his contention he relied upon decision of the learned Single Judge in the case of Re: Hasima Latif & Ors. AIR 1962 Bom. 227. 8. Having heard learned senior counsel for respective parties and having gone through the impugned judgment and order together with annexures to the civil revision application and the ratio of the decisions cited above I am of the considered view that there is no merit in present civil revision application. There is no dispute that 4 said Sheroo Doctor and her husband Hooseini Doctor as well as the present respondents are all Mohammedans. There is also no dispute that in view of the provisions of section 213(2) of the Indian Succession Act the will made by a Mohammedan is not required to be probated. The only question which falls for consideration is whether by virtue of registration of the marriage of Sheroo Doctor and Hooseini Doctor under the Special Marriage Act, 1925, the exception made under section 213(2) of the Indian Succession Act is affected or negated. If the answer to the same is in negative, the present civil revision application must fail. 9. Question somewhat similar to the above was considered by the learned Single Judge of this Court in the case of Re: Hasima Latif & Ors.(supra). In this case a petition was filed for grant of succession certificate in respect of debts due to the deceased without first obtaining probate. Testator Dr.Alma Latiff, a Shia Mohammedan died in the year 1959 leaving behind a will dated 18.9.1958 under which three petitioners were appointed as executors and executrix. The executrix Hasima was the wife of testator whose marriage was registered under the Special Marriage Act, 1955. The question fell for consideration before the learned Single Judge was whether section 21 of Special Marriage Act, 1955 prevents grant of succession certificate in favour of the executrix. The learned Single Judge after considering relevant provisions of Indian Succession Act, 1925 in para 6 of the judgment observed as follows: 5 “6. It is, therefore, clear that Sec. 21 of the Special Marriage Act deals only with succession of the property and not with the administration of the property. The questions as to when a succession certificate or probate or letters of administration should be granted, to whom they should be granted etc. relate to the administration and not to the succession of the property of a deceased person. Sections 212 and 213 of the Successions Act deal with letters of Administration and probate and not with succession and, therefore, in my opinion, the provision contained in sec. 21 does not in any way affect or negative the exception made by sub-section (2) of section 213. I am, therefore, of the opinion that there is nothing in sec. 21 which debars the petitioners from applying for and obtaining the succession certificate as applied for by this petition. I, therefore, direct the Prothonotary's office to deal with this petition on that basis.” The above observation makes it clear that section 21 of the Special Marriage Act will not affect the exception made by section 213(2) of the Indian Succession Act. Since sub-section (1) of section 213 is not applicable to the wills made by the Mohammedans, in my view, the submission of the applicant that the suit filed by the respondents is not maintainable for want of probate is without any merit. 6 10. In the case of Sayeeda Shakur Khan & Ors. (supra) the learned Single Judge while disposing of Notices of Motion No.858 & 2283/05 in Suit No.858/05 in para 13 observed as under: “13. In my view, prima facie, it appears that a Muslim who marries under the Special Marriage Act is entitled to bequeath his entire property. There would be no restriction on him to bequeath only 1/3rd of his property as is provided under the Muslim Personal Law. Moreover, such a person would not have to obtain the consent of the heirs in order to bequeath in excess of the legal third of his property. However, once a Muslim who is married under the Special Marriage Act is treated on par with person of other communities married under the Special Marriage Act, all the rigours of the Indian Succession Act are applicable. Prima facie, it appears to be that a Will of such a Muslim who was married under the Special Marriage Act would require to be probated.” The aforesaid quotation makes it unequivocally clear that the order passed in that case is an interim order and the view expressed was only prima facie view. The said interim order has no precedential value. Be that as it may, the prima facie view taken by the learned Single Judge in this case was without considering the earlier ratio laid down by learned Single Judge in the case of Re:Hasima Latif (supra). Therefore this decision will not help the applicant to advance its case any further. 7 11. So far the decision in the case of Dr.Abdur Rahim Undre (supra) is concerned the Division Bench was considering the validity of the civil marriage. It was held that no civil marriage validly performed and solemnized, according to any law in force can be treated as a religious marriage, by introducing element of formalities of personal law. This ratio would therefore be of no avail to the facts and circumstances of the present case. 12. Mr.Ganesh, learned senior counsel also submitted that there is conflict between the decision in Re:Hasima Latif (supra) and Sayeeda Shakur Khan & Ors. (supra) and therefore the issue deserves to be referred to the Larger Bench. He relied upon a decision of the Apex Court reported in the case of Mahadeolal Kanodia v/s The Administrator General of West Bengal, AIR 1960 SC 936 and Official Liquidator v/s Dayanand & Ors. ; , 2008 (13) SCALE 558. Mr. Kapadia, learned senior counsel on the contrary relied upon decision of the Apex Court reported in the case of Empire Industries Ltd. & Ors. V/s Union of India & Ors. AIR 1986 SC 662 to contend that in fact there is no conflict between the two decisions and therefore no need to refer this issue to a larger bench. 13. The Apex Court in the case of Empire Industries Ltd. & Ors. (supra) in para 58 observed as follows: “58. Good deal of arguments were canvassed before us for variation or vacation of the interim orders passed in these cases. Different Courts sometimes pass different interim orders 8 as the Courts think fit. It is a matter of common knowledge that the interim orders passed by particular Courts on certain considerations are not precedents for other cases which may be on similar facts. An argument is being built up now-a-days that once an interim order has been passed by this Court on certain factors specially in fiscal matters, in subsequent matters on more or less similar facts, there should not be a different order passed nor should there by any variation with that kind of interim order passed. It is submitted at the Bar that such variance creates discrimination. This is is an unfortunate approach. Every Bench hearing a matter on the facts and circumstances of each case should have the right to grant interim orders on such terms as it considers fit and proper and if it had granted interim order at one stage, it should have the right to vary or alter such interim orders. We venture to suggest, however, that a consensus should be developed in the matter of interim orders.” A plain reading of the aforesaid observation will reveal that interim orders passed by the Courts on certain considerations are not precedents for other cases which may be of similar facts. It is abundantly clear that the decision of the learned Single Judge in the case of Sayeeda Shakur Khan & Ors. (supra) is an interim order that too prima facie view. The decision cannot be said to have precedential value. The ratio of the Apex Court decisions cited by 9 Mr.Ganesh in this regard is not applicable to the facts and circumstances of the present case. 14. In the facts and circumstances, mentioned herein above I am of the considered view that in order to maintain the suit it is not mandatory for the respondents to apply for probate. The respondents can maintain the suit in the absence of probate. Consequently I hold that the submission advanced by Mr.Ganesh are without any merit. Hence Civil Revision Application stands dismissed. 15. At this stage Mr.Ganesh, learned senior counsel prays for continuation of order of interim stay granted earlier for four weeks. Mr.Kapadia, learned counsel for respondents does not seriously oppose the said prayer. In that view of the matter and in the interest of justice order of interim stay granted earlier deserves to be continued for a period of four weeks. Order accordingly. 2.12.08 (R.V. MORE, J.) 10