Case: Fgp Ltd Vs. Saleh Hooseini Doctor

54. Section 2(11) of the Code of Civil Procedure provides as under: "legal representative" means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued". 55. Therefore, it is Section 211 and not Section 213 that deals with the vesting of property. This vesting does not take place as a result of probate. On the executors accepting his office, the property vests on him and executor derives his title from the Will and becomes the representative of the deceased even without obtaining probate. The grant of probate does not give title to the executor. It just makes his title certain. Under Section 213, the grant of probate is not a condition precedent to the filing of a suit in order to claim a right as an executor under the will.56. This vesting of right is enough for the executor or administrator to represent the estate in a legal proceeding. It has been held in Kulwanta Bewa Vs. Karam Chand Soni - reported in AIR 1938 Calcutta 714 that the whole scheme of the Act is to provide for the representation of the deceaseds estate for the purpose of administration. That vesting is not only for the beneficial interest in the property but is also for the purposes of representation. Similarly, it has been held in Meyappa Chetty Vs. Supramanian Chetty - (1916) 43 IA 113, that an executor derives his title from the Will and not from the probate and the right of action in respect of personal property of the testator vests in the executor on the death of the testator.57. But Section 213 operates in a different field. Section 213 enjoins that rights under the Will by executor or a legatee cannot be established unless probate or letters of administration are obtained.58. Therefore, Section 211 and Section 213 of the said Act have different areas of operation. Even if Will is not probated that does not prevent the vesting of the property of the deceased on the executor/administrator and consequently any right of action to represent the estate of the executor can be initiated even before the grant of the probate.59. Similar opinion has been expressed by this Court in Commissioner, Jalandhar Division and Ors. Vs. Mohan Krishan Abrol and Anr. - (2004) 7 SCC 505 (See para 10 at page 513). So the suit filed by the respondents as executors is also maintainable.60. Thus on the facts of the case this Court does not find any justification for its interference with the decision of the High Court rendered in its revisional jurisdiction. In coming to this conclusion, this court has considered the facts of this case and also the fact that appellant is paying a meager sum of Rs. 900/- and odd per month for occupying the said flat in a prime area in Mumbai. Appellant is not in occupation of the said flat and since 2000 has admittedly allowed a total outsider, one Mr. Abhik Mitra, the Managing Director of a Company known as Sa Re Ga Ma Pa Ind. Ltd., to occupy the said flat. The flat is lying vacant since May, 2005.61. As against all these facts when we find that the Suit is for reasonable requirement and was filed by the grandchildren of the testatrix, this Court, in our judgment, should not exercise its discretionary jurisdiction by interfering with the eviction proceeding which culminated in the revisional order of the High Court.62. Reference in this connection be made to a decision of this Court in Balvantrai Chimanlal Trivedi, Manager, Raipur Mafg. Co. Ltd. Ahmedabad Vs. M.N. Nagrashna and Ors. - AIR 1960 SC 407 . In para 5 at page 408 of the said report, a three-Judge Bench of this Court posed a question whether this Court should interfere under Article 136 of the Constitution and when in the facts of the case there is no failure of justice. The question has been answered by this Court as follows: "5. The question then arises whether we should interfere in our jurisdiction under Article 136 of the Constitution, when we are satisfied that there was no failure of justice. In similar circumstances, this Court refused to interfere and did not go into the question of jurisdiction on the ground that this Court could refuse interference unless it was satisfied that the justice of the case required it; see: A.M. Allison Vs. B.L. Sen (1957) SCR 359: ((S) AIR 1957 SC 227 ). On a parity of reasoning we are of the opinion that as we are not satisfied that the justice of the case requires interference in the circumstances, we should refuse to interfere with the order of the High Court dismissing the writ petition of the appellant." 63. An attempt was made to review the said judgment. The review petition was decided by a Constitution Bench of this Court.Justice Wanchoo speaking for unanimous Constitution Bench has very succinctly, if we may say so, outlined the parameters of this Courts jurisdiction under Article 136 of the Constitution and those observations, which we should always remember while exercising jurisdiction under Article 136, are as follows: "...It is necessary to remember that wide as are our powers under Article 136, their exercise is discretionary; and if it is conceded, as it was in the course of the arguments, that this, Court could have dismissed the appellants application for special leave summarily on the ground that the order under appeal had done substantial justice, it is difficult to appreciate the argument that because leave has been granted this Court must always and in every case deal with the merits even though it is satisfied that ends of justice do not justify its interference in a given case..." (See AIR 1960 SC 1292 at 1294)

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]30. Applying the aforesaid tests, as we must, to the present situation we find that no case for part performance of the contract has been made out. Here in the plaint filed in the specific performance suit, the case of the appellant is that it was put in possession of the suit premises pursuant to the tenancy agreement dated 16.07.1981 and not on the basis of any other agreement. If we look at the tenancy agreement, we will not find that the appellant was put in possession under the same. In the said suit no evidence appears to have been led by the appellant to show how it came to the possession of the suit premises. This aspect of the case is quite vague.31. Apart from that according to the appellant it allegedly paid Rs.5 lacs as sale consideration for the suit premises. As already pointed out in para 2 of the plaint in the specific performance suit, it has been clearly averred that the said amount of Rs.5 lacs was kept in deposit with the original owner of the premises by way of security deposit in terms of tenancy agreement dated 16.07.1981.32. In any event, the appellant is required to show that it either performed or is willing to perform its part of the contract. But admitted facts of the case are to the contrary. After the execution of the alleged agreement for sale dated 20.07.1981, the appellant was totally silent and it is only after more than 10 years thereafter i.e. on 19.08.1991, for the first time, it asked the owner to complete the sale and that too after the ejectment suit was filed in February 1991 by the owner. Thus, in the facts and circumstances of this case, the doctrine of part performance under Sectioncannot be invoked. Therefore, there is no merit in the argument advanced on behalf of by the appellant on that score.33. Argument advanced on behalf of the appellant on the competence of the respondents to file the suit out of which the present proceeding arises is also misconceived.34. If we look at the recitals in paragraphs 2 and 3 of the Will of the original owner, it would appear that the testatrix appointed her husband Hooseini Salehbhoy Doctor to be the executor of the Will and failing him appointed her sons Saleh Doctor and Parvez Doctor and daughter Niloofer Sawhney to be the executors/executrix of the Will jointly as well as severally for all purposes.It is clear that whenever Hooseini Salehbhoy Doctor (husband) is unable to act as executor for whatever reason, the respondents are substituted as executors under the Will.From a conjoint reading of these two Sections, it is clear that the said Act recognizes the contingency that where the executor appointed by a Will is unable to act, any other legatee having a beneficial interest may be admitted to prove the Will and letter of administration can be granted to him.39. Apart from that, in this case, the respondent No.2Niloofar, one of the plaintiffs is aof the suit premises. In paragraph 9 of the Will there is a specific reference to the suit premises and also to the pending litigation in Small Causes Court at Bombay as well as in the High Court. In paragraph 9 there is a specific recital that the suit premises is bequeathed to Parvez H. Doctor. However, Pervez died on 28.11.1998 and, thus, predeceased the testatrix who died on 30.1.1999. In such a situation, the provisions of Section 105 of the Indian Succession Act, 1925 is attracted.It is clear from the aforesaid Section that the suit premises thus become residuary estate of the testatrix which was to be distributed in accordance with Clause 11 of the will.Therefore, respondent no.2Niloofer along with others is the residuary legatee and is one of the owners of the suit premises. Acan always maintain a suit for eviction.44. It has been urged by the learned counsel for the appellant that in the Suit which has been filed by the respondents they have not asserted that they are filing it asIt is not possible to accept the aforesaid contention in the facts of this case. This Court is of the opinion that if the status of the respondents asof the property transpires clearly from the admitted facts of the case, they cannot be denuded of the said status at the instance of some objections by the tenants. Normally, a tenants right to question the title of a landlord is very limited in view of rule of law which is codified in Section 116 of the Indian Evidence Act.46. Apart from that it has been held in some decisions of this Court that aof a property is an owner of the property, till the property is partitioned.Since in the instant case, no partition has taken place, the plaintiffs status asTherefore, the Suit is maintainable.Therefore, it is Section 211 and not Section 213 that deals with the vesting of property. This vesting does not take place as a result of probate. On the executors accepting his office, the property vests on him and executor derives his title from the Will and becomes the representative of the deceased even without obtaining probate. The grant of probate does not give title to the executor. It just makes his title certain. Under Section 213, the grant of probate is not a condition precedent to the filing of a suit in order to claim a right as an executor under the will.56. This vesting of right is enough for the executor or administrator to represent the estate in a legal proceeding. It has been held in Kulwanta Bewa Vs. Karam Chand Sonireported in AIR 1938 Calcutta 714 that the whole scheme of the Act is to provide for the representation of the deceaseds estate for the purpose of administration. That vesting is not only for the beneficial interest in the property but is also for the purposes of representation. Similarly, it has been held in Meyappa Chetty Vs. Supramanian Chetty(1916) 43 IA 113, that an executor derives his title from the Will and not from the probate and the right of action in respect of personal property of the testator vests in the executor on the death of the testator.57. But Section 213 operates in a different field. Section 213 enjoins that rights under the Will by executor or a legatee cannot be established unless probate or letters of administration are obtained.58. Therefore, Section 211 and Section 213 of the said Act have different areas of operation. Even if Will is not probated that does not prevent the vesting of the property of the deceased on the executor/administrator and consequently any right of action to represent the estate of the executor can be initiated even before the grant of the probate.59. Similar opinion has been expressed by this Court in Commissioner, Jalandhar Division and Ors. Vs. Mohan Krishan Abrol and Anr.(2004) 7 SCC 505 (See para 10 at page 513). So the suit filed by the respondents as executors is also maintainable.60. Thus on the facts of the case this Court does not find any justification for its interference with the decision of the High Court rendered in its revisional jurisdiction. In coming to this conclusion, this court has considered the facts of this case and also the fact that appellant is paying a meager sum of Rs. 900/and odd per month for occupying the said flat in a prime area in Mumbai. Appellant is not in occupation of the said flat and since 2000 has admittedly allowed a total outsider, one Mr. Abhik Mitra, the Managing Director of a Company known as Sa Re Ga Ma Pa Ind. Ltd., to occupy the said flat. The flat is lying vacant since May, 2005.61. As against all these facts when we find that the Suit is for reasonable requirement and was filed by the grandchildren of the testatrix, this Court, in our judgment, should not exercise its discretionary jurisdiction by interfering with the eviction proceeding which culminated in the revisional order of the High Court.62. Reference in this connection be made to a decision of this Court in Balvantrai Chimanlal Trivedi, Manager, Raipur Mafg. Co. Ltd. Ahmedabad Vs. M.N. Nagrashna and Ors.AIR 1960 SC 407 . In para 5 at page 408 of the said report, aBench of this Court posed a question whether this Court should interfere under Article 136 of the Constitution and when in the facts of the case there is no failure of justice.Reference in this connection be made to a decision of this Court in Balvantrai Chimanlal Trivedi, Manager, Raipur Mafg. Co. Ltd. Ahmedabad Vs. M.N. Nagrashna and Ors.AIR 1960 SC 407 . In para 5 at page 408 of the said report, aBench of this Court posed a question whether this Court should interfere under Article 136 of the Constitution and when in the facts of the case there is no failure ofquestion has been answered by this Court asThe question then arises whether we should interfere in our jurisdiction under Article 136 of the Constitution, when we are satisfied that there was no failure of justice. In similar circumstances, this Court refused to interfere and did not go into the question of jurisdiction on the ground that this Court could refuse interference unless it was satisfied that the justice of the case required it; see: A.M. Allison Vs. B.L. Sen (1957) SCR 359: ((S) AIR 1957 SC 227 ). On a parity of reasoning we are of the opinion that as we are not satisfied that the justice of the case requires interference in the circumstances, we should refuse to interfere with the order of the High Court dismissing the writ petition of the appellant.An attempt was made to review the said judgment. The review petition was decided by a Constitution Bench of this Court.Justice Wanchoo speaking for unanimous Constitution Bench has very succinctly, if we may say so, outlined the parameters of this Courts jurisdiction under Article 136 of the Constitution and those observations, which we should always remember while exercising jurisdiction under Article 136, are asis necessary to remember that wide as are our powers under Article 136, their exercise is discretionary; and if it is conceded, as it was in the course of the arguments, that this, Court could have dismissed the appellants application for special leave summarily on the ground that the order under appeal had done substantial justice, it is difficult to appreciate the argument that because leave has been granted this Court must always and in every case deal with the merits even though it is satisfied that ends of justice do not justify its interference in a given case..." (See AIR 1960 SC 1292 at 1294)