Lsp IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CIVIL APPLICATION NO. 1725 of 2003 IN WRIT PETITION NO. 1748 OF 1992 Shri Khurshed Nadirshah Satarawala (Deceased by his residuary legatee Mrs. Bapsy N. Lawyer of Bombay) ...Petitioner V/s. Shri Kohiyar T. Satarawala ...Respondents And M/s. Jwel Buildcon Pvt. Ltd. ...Applicant ALONGWITH CIVIL APPLICATION NO. 807 OF 2008 IN WRIT PETITION NO. 1748 OF 1992 Shri Khurshed Nadirshah Satarawala (Deceased by his residuary legatee Mrs. Bapsy N. Lawyer of Bombay) ...Petitioner V/s. Shri Kohiyar T. Satarawala ...Respondent And Mr. H.S.Karanjawala & anr. ...Applicants ALONGWITH CIVIL APPLICATION NO. 808 OF 2008 IN WRIT PETITION NO. 1748 OF 1992 Shri Khurshed Nadirshah Satarawala (Deceased by his residuary legatee Mrs. Bapsy N. Lawyer of Bombay) ...Petitioner V/s. Shri Kohiyar T. Satarawala ...Respondent And M/s. Jwel Buildcon Pvt. Ltd. ...Applicants ALONGWITH CIVIL APPLICATION NO. 2243 OF 2008 IN WRIT PETITION NO. 1748 OF 1992 Shri Khurshed Nadirshah 2 Satarawala (Deceased by his residuary legatee Mrs. Bapsy N. Lawyer of Bombay) ...Petitioner V/s. Shri Kohiyar T. Satarawala ...Respondent And Mr. Farhan Iqbal Patel & ors. ...Applicants Astad Randeria i/b. M/s. Harish Joshi & Co. for the applicant in CA 807/2008. Mr. S.M.Dandekar for the respondent in all applications. Mr. G.S.Godbole with Neha Palshikar for petitioner in all applications. Shri D.Madon, Sr. Counsel with Mr. Ali Abbasdalhiwala i/b. Mulla & Mulla CBC. CORAM CORAM CORAM : A.M.KHANWILKAR,J. : A.M.KHANWILKAR,J. : A.M.KHANWILKAR,J. DATED DATED DATED : 19TH JANUARY, 2009 : 19TH JANUARY, 2009 : 19TH JANUARY, 2009 P.C. . All these applications will stand disposed of by this common order. 2. These applications have been filed essentially to bring the respective applicants on record as heir and/or legal representative of deceased-sole petitioner Khurshed Nadarsha Satarawala. 3. Civil Application No. 1725/2003 is filed by Jwel Buildcon Pvt. Ltd. It appears that the understanding of the said applicant is that this application was allowed to be withdrawn with liberty to file fresh application for the same or similar relief in terms of order dated 1st October, 2004. It is on that premise 3 the same applicant has filed Civil Application No. 808/2008 praying for amendment of the Writ Petition in terms of the schedule which in turn is to substitute the applicant as petitioner in place of the deceased-sole petitioner. In that sense no further order is required in Civil Application No. 1725/2003 and claim of the said applicant would stand addressed in the order to be passed on Civil Application No. 808/2008. 4. Civil Application No. 807/2008 is filed by Mr. H.S.Karanjawala and another claiming to be Executors appointed under the Will and Testament of Late Mrs. Bapsy Lawyer who is stated to be the sole legatee of deceased- sole petitioner Khurshed N. Satarawala 5. Civil Application No. 808 of 2008 as aforesaid is filed by Jwel Buildcon Pvt. Ltd. for being substituted as petitioner in place of deceased-sole petitioner. According to said applicant the property on which the suit premises is situated is already conveyed in favour of the applicant by way of registered sale deed dated 26th March, 2002 during the lifetime of Mrs. Bapsy Lawyer. In that sense the only legal representative of Mrs. Bapsy Lawyer can be the applicant Jwel Buildcon Pvt. Ltd. 6. Civil Application No. 2243/2008 is filed by the 4 legal heirs of person who according to the applicant was the prospective purchaser of the property on which the suit premises is situated in terms of agreement dated 19th June, 1991. According to the said applicants their pre-decessor being the prior purchaser of the suit property was entitled to pursue the remedy pending in this Court in which Bapsy Lawyer was the petitioner. 7. After hearing arguments for all the Counsels, I have no hesitation in observing that if the case of Jwel Buildcon Pvt.Ltd. is to be accepted as it is, it would necessarily follow that Mrs. Bapsy Lawyer would have no subsisting right, title or interest in the property on which the suit premises is situated. In that, Bapsy Lawyer has already executed registered Conveyance Deed in favour of Jwel Buildcon Pvt. Ltd. and the suit property stands conveyed in favour of the said applicant. 8. In that eventually it is the said applicant who is entitled to pursue remedy of eviction against the tenant in the suit premises, provided such right has been expressly conferred on the said applicant in the Conveyance Deed. That is a matter which can be considered at the appropriate stage. 9. Be that as it may, on the other hand, if the case 5 of the applicant in Civil Application No. 2243/2008 is to be accepted, it would mean that there was prior agreement in favour of the prospective purchaser in respect of the disputed property executed on 19th June, 1991. Indeed, the said applicants cannot straightaway succeed unless they were to question the validity of the registered sale deed executed in favour of Jwel Buildcon Pvt. Ltd. on 26th March, 2002. It is only on succeeding in the said proceedings, if filed, that the legal representatives of prospective purchasers may be entitled to be substituted in place of the deceased petitioner. 10. During the course of arguments, Counsel appearing for the applicants in Civil Application No. 2243/2008 have stated on instructions that applicants propose to file suit against Jwel Buildcon Pvt. Ltd. and the legal representative of the owners of the property for appropriate reliefs including for specific performance of the agreement in favour of the prospective purchasers in terms of agreement dated 19th June, 1991. On the assumption that the said applicants would pursue the remedy in respect of agreement dated 19th June, 1991, their claim in the present application is being considered and addressed. 11. In so far as Civil Application NO. 807/2008 is 6 concerned, the same is filed by persons claiming to be Executors appointed under the Will and Testament of Late Mrs. Bapsy Lawyer dated 18th January, 2001. According to the applicants in this application the Conveyance Deed pressed into service by Jwel Buildcon dated 26th March, 2002 is a fraudulent document in respect of which the said applicants intend to institute appropriate proceedings. Once again on the assumption that the applicants (Executors of the Will of Mrs. Bapsy Lawyer; out of the two Executors one of the Executor Mr. Hector S. Karanjawala has expired, as a result application is now pursued only for and on behalf of surviving Executors Mrs. Nergis Hector Karanjawala) were to file such remedy and if the applicant were to succeed in the said proceedings, the applicant would be free to execute the Conveyance Deed in respect of the prospective purchasers under the agreement dated 19th June, 1991. 12. I shall now refer to the stand taken by the Counsel for the respondent tenant. According to respondents, Mrs. Bapsy Lawyer has no interest in the suit premises. She was claiming through Khurshed Nadarsha Satarawala lessee in respect of suit property in favour of said Krushed N. Satarawala who had expired long back and the property is now vested in the Government. It is not necessary to elaborate this argument for the time being as I am only considering the question as to who should 7 be brought on record as legal representative of deceased petitioner. Indeed, it was argued on behalf of tenant that the Executors referred to in Application No. 807/2008 have no right whatsoever in relation to the suit premises as that property is not specifically referred to in the Will of Bapsy Lawyer dated 18th January, 2001. However, prima-facie, I find substance in the argument of Advocate for the applicants in Civil Application No. 807/2008 (Executors of Will dated 18th January, 2001) that clause-12 of the Will is wide enough to encompass the suit premises, being a residuary clause. According to said applicants the said clause-12 was so worded as it is obvious that Mrs. Bapsy Lawyer at the relevant time of executing the Will was conscious of the fact that she had entered into an agreement dated 19th June, 1991 in favour of applicants in Civil Application No. 2243/2008. It is not necessary to elaborate on this matter any further for the simple reason that all these aspects will have to be considered in appropriate proceedings. For the present the proceedings pending in this Court is essentially a dispute between the landlord and the tenant. The landlord seeks decree of eviction against the respondent tenant on the ground of default. In this proceedings the limited question that will have to be considered will be in the context of the claim of the original plaintiff-landlady/landlord. No other question would be 8 relevant and would be required to be addressed. Indeed, in view of the stand now taken by the tenant that there was no relationship of landlord and tenant between the parties and infact the landlord had no subsisting right in respect of the premises, that stand is disclaimer of title of the landlord and the consequence of failure to establish that position is a matter once again to be considered at the hearing of the Writ Petition. I do not think it necessary to burden this order with that aspect. All questions in that behalf are left open just as the issues that will have to be addressed in the prospective suits to be filed by the applicants in Civil Application No. 807/2008 or applicants in Civil Application No. 2243/2008. 13. Reverting back to the question as to who should be allowed to be substituted as petitioner in place of deceased-sole petitioner, I have no hesitation in taking the view that as of now there is a registered sale deed in favour of the applicants in Civil Application No. 808/2008. So long as the validity of the said registered sale deed is not challenged and/or questioned and appropriate decision invited on that issue from the Court of Competent Jurisdiction, it will have to be presumed that the applicants in Civil Application NO. 808/2008 could legitimately espouse the cause of the original plaintiff having become owner of the suit 9 property in which the suit premises are situated subject, however, to establishing that they have acquired the right to pursue the present action against the tenant. Thus understood, the applicant in Civil Application No. 808/2008 is entitled to be substituted as petitioner in place of deceased petitioner. That application is, however, granted on clear understanding that in the event the applicants in Civil Application No. 2243/2008 and/or Civil Application No. 807/2008 were to eventually succeed in the substantive proceedings which they propose to initiate for appropriate reliefs, it would necessarily follow that the applicant in Civil Application No. 808/2008 would have no right to continue with the proceedings or to insist that it will be entitled to execute the decree likely to be passed against the tenant in respect of suit premises. In that case, however, the applicant in Civil Application No. 807/2008 or Civil Application No. 2243/2008 depending on the outcome of the substantive proceedings initiated by them would be entitled to pursue the present matter further so as to take it to its logical end. Thus understood, it is not a case as if they have no semblance of right in the suit premises as such. For that reason, their claim that they should be substituted as petitioners in place of deceased petitioners though cannot be accepted, their presence in the present proceedings, if allowed, may not cause any 10 prejudice to the applicant in Civil Application No. 808/2008. On the other hand, the arrangement which I propose to adopt would meet the ends of justice and avoid multiplicity of proceedings which ought to be eschewed. 14. Taking over all view of the matter, therefore, I think it appropriate to not only grant application preferred by the applicants in Civil Application No. 808/2008 but also partly allow the applications preferred being Civil Application No. 2243/2008 and 807/2008 to the extent that the applicants therein shall be added as party respondent to the Writ Petition and not entitled to be substituted as the legal representative of the deceased-sole petitioner for the time being. 15. As aforesaid, this order is not an expression of opinion on the correctness of stand taken by the respective parties on the merits of their claim but is limited to considering the issue of who should be substituted as petitioner in place of deceased sole petitioner. The applicant in Civil Application No. 808/2008 is substituted as petitioner in place of deceased-sole petitioner, subject, however, to the outcome of the substantive proceedings to be instituted by the applicants in Civil Application NO. 2243/2008 11 and Civil Application No. 807/2008. The applications under consideration are disposed of on the above terms. 16. Applicants in Civil Application No. 807/2008 are permitted to delete applicant no.1 from the array of parties and the said application is considered at the instance of applicant no.2 alone. As the applicant in Civil Application No. 808/2008 has been substituted as petitioner in Writ Petition in place of deceased-sole petitioner, the said substituted petitioner shall take immediate steps to carry out necessary amendments consistent with the order passed today. That be done within three weeks from today. As soon as the amendment is carried out and if there are no other office objections, Writ Petition be proceeded. To be listed under appropriate category as per its turn for hearing. [A.M.KHANWILKAR,J.] [A.M.KHANWILKAR,J.] [A.M.KHANWILKAR,J.]