Gaiv Dinshaw Irani & Ors vs Tehmtan Irani & Ors

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 regarding the development of the remaining property was directed to be vacated.

3. The facts of the case briefly are as follows:

Bomanji Irani died on September 27, 1946 leaving behind his wife Daulatbai; five sons, namely (1) Ardeshir (2) 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. 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.

2. The then Bombay Municipal Corporation (being Respondent No.6, hereinafter referred to as ‘BMC’) acquired 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 objected to the same but they consented to the tenancy being transferred in the name of Dinshaw Irani (original defendant No. 2).

3. On February 3, 1962 Daulatbai addressed a letter to the BMC requesting for transfer of rent bills in the name of her 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 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 order passed by the BMC terminating the tenancy was set aside. By letter dated September 18, 1981, BMC transferred 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.

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 No.1914 of 1983 challenging 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 admeasuring 1152 sq mts. bearing CS No. 366-67 (Part) Mazgaon and on November 30, 1983 lease deed of the said plot in favour of Dinshaw Irani was executed.

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 plaints and claimed that he alone was the tenant of the suit premises and had carried out the business 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. The BMC being defendant No.1 in both the suits also filed its 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 support of the same (being the Wills of deceased Bomanji and Daulatbai; the partnership deed between Daulatbai and Dinshaw Irani and the consent letter given by the other sons of Bomanji and Daulatbai). During the pendency of the said suit, Dinshaw Irani expired on December 2, 1988.

7. The plaintiffs, who are respondent Nos.1 to 5 herein, sought certain interim reliefs by filing Notice of Motions in both the long 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 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 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.

37. In wake of the above, we are of the opinion that the High Court taking note of the subsequent events has correctly moulded the relief and allotted five flats to the respondent Nos. 1 to 5 as per their share.

40. For the reasons stated hereinabove, we find no merit in these appeals and the same are dismissed.

…....……………………..J. (Gyan Sudha Misra) New Delhi;