BEHRAM TEJANI & ORS. versus AZEEM JAGANI
[2017] 1 S.C.R. 132, Supreme Court of India, 2017
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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[2017] l S.C.R. 132. 
BEHRAM TEJANI & ORS. 
v. 
AZEEM JAGANI 
(Civil Appeal No. 150 of20 I 7) 
JANUARY 06, 2017 
(PINAKI CHANDRA GHOSE AND 
UDAY UMESH LALIT, JJ.) 
Possession - Gratuitous possession, gives no right or interest 
in the property - Respondent-plaintiff sought injunction restraining 
the defendants from dis-possessing him and his maternal 
grandmother from the suit pre111ises, though admitting that by way 
of Will, with respect to the suit premises, his maternal grandfather 
bequeathed his entire interest in favour of his brothers (defendants-
appe//ants) - Trial Court rejected respondent~· prayer for interim 
injunction - High Court set aside the order of trial court - On 
appeal, held: It is not the case of the respondent that either he or 
his grandmother have any right independent of the Will or that the 
Will bequeathed any interest in re:.pect of the premises in question 
in their favour - Sub111ission of appellants that grandmother of the 
respondent did not have any right qua the premises but was permitted 
to occupy it purely out of love and affection, not without merit - A 
person holding the premises gratuitously would not acquire any 
right/interest in the property -
The status of respondent '.s 
grand111other was that of a gratuitous licensee and that of the 
respondent was purely of a relative stciying with such gratuitous 
licensee - Therefore, Trial court rightly rejected respondents prayer 
for interim injunction.
Allowing the appeal and disposing of the contempt petition, 
the Court 
. HELD: A person holding the premises gr.ituitously or in 
the capacity as a caretaker or a servant would not acquire any 
right or interest in the property and even long possession in that 
capacity would be of no legal consequences. In the circumstances 
City Civil Court was right and justified in rejecting the prayer for 
interim injunction and that decision ought not to have been set 
aside by the High Court. (Para 14) [140-D) 
132
BEHRAM TEJANl & ORS. v. AZEEM JAGANI 
133 
Rame Gowda (Dead) by LRs. v. M Varadappa Naidu 
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(Dead) by LRs. and Anrs. 2004 (1) SCC 769 : [2003] 6 
Suppl. SCR 850 - referred to. 
Maria Margarida Sequeira Fernandes and others v. 
Erasmo Jack De Sequeira (Dead) through LRs. 2012 
(5) sec 370 : [2012] 3 SCR 841 - relied OU. 
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Case Law Reference 
[2003] 6 Suppl. SCR 850 
[2Ql2] 3 SCR 841 
referred to 
relied on 
Para 12 
Para 13 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 150 of 
C 
2017. 
From the Judgment and Order dated I 7.09.2013 of the High Court 
ofJudicature at Bombay in Appeal from Order (St.)No. I 5590 of2013. 
WITH 
Contempt Petition (C) No. 368 of20!4 in SLP (C) No. 35464 of 
2013. 
Dushyant Dave, Sr. Adv. Ayaz Bilawala, Mahesh Agarwal,Abhinav 
Agrawal, Rishabh Parikh, E. C. Agrawala, Ad vs. for the Appellants. 
Ms. lndu Malhotra, Sr. Adv. Ms. Manjira Dasgupta, Ms. Liz 
Mathew, Advs. for the Respondent. 
The Judgment of the Court was delivered by 
UDAY UMESH LALIT, J. I. Leave granted. 
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2. This appeal challenges the judgment and Order dated 
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17.09.2013 passed by the High Court of Bombay in Appeal from Order 
(ST) No.15590 of 2013 quashing and setting aside the Order dated 
29.04.20 I 3 passed by the Bombay City Civil Court in Notice of Motion 
No.344 of2013 in SuitNo.408 of2013. 
3. On 4.02.2013, aforesaid Suit No.408of2013 was filed by the 
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respondent submitting inter alia:-
;'The Plaintiff along with his Maternal grand-mother Mrs. 
Noorbanoo
Mohammed Ali Tejani are in use, occupation and 
possession of the premises known as Tej Kunj, I" Floor, Plot 
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No.214 D, Byramjee Jeejeebhoy Road, Bandstand, Bandra (West), 
Mumbai 400050, hereinafter referred to as 'the suit 
premises' ....... The Defendant Nos. I, 2, 3 and 5 are the Paternal 
uncles of the Plaintiff's mother i.e. Mrs. Zeenat S. Jagani viz. the 
brothers of deceased father named Mohammed Ali H. Tejani (since 
deceased) and Defendant No.6, is a son of the Defendant No.5 
and Defendant No.4 is the sister of Defendants 1,2,3 and 
5 ....... Mohammed Ali H. Tejani (called the said Deceased) was 
a Co-owner along with. Defendant Nos. I to 5 in respect of a Plot 
of Land bearing Plot No.202-D, along with the building comprising 
of ground with one upper floor standing thereon and known as Tej 
Kunj ........ The said deceased executed a Will dated 28•h 
September 1991 under which the deceased bequeathed his 1J7•h 
share in the plot of land in favour of the Defendant Nos. I to 5. 
The said Will is probated in the High CourtT & 1.J. Petition No.856 
of 2003 as perthe Prabate granted on 6'h December 2006." 
The respondent-plaintiff then adverted to Will dated 28.09.1991 
and Clause 7 thereof in patticular. It was averred:-
"The said .deceased during his life time resided along with his 
wife namely the said Smt. Noorbanoo Mohammed Ali Tejani and 
the family members on the entire First Floor of the said property 
including the plaintiff herein. The said deceased died on 22"' 
March, 2003 and since then the said
Noorbanoo Mohammed Ali 
Tejani and the plaintiff resided in the said flat." 
The respondent prayed; inter alia, for following reliefs:-
"a) That this Hon 'ble Court be pleased to grant permanent order 
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and injunction restraining the defendants, their respective servants, 
agents and person or persons claiming through or under them 
from in any manner dispossessing the plaintiff from the suit 
- premises without following due process of law.· 
b) That pending hearing and final disposal of the above suit, this 
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Hon'ble Court be pleased to grant temporary order and injunction 
restraining the defendants, their respective servants, agents and 
person or persons claiming through or under them from in any 
manner dispossessing the plaintiff from the suit premises without 
following due process oflaw ......... " 
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4. By Will dated 28.09.1991 which was referred to by the respondent,
BEHRAM TEJANI & ORS. v. AZEEM JAGANI 
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[UDAY UMESH LALIT, J.] 
the testator had appointed his brother Amirali Huseinali Tejani and his 
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daughter Zeenat Shafique Jagani as the executors and trustees. The 
principal bequests made by the testatci~ in the Will were: 
"5. I give, devise and bequeath all types of investments and assets 
which a:re-·in the form or nature of moveables and which are in 
my own and beneficial name or my fou.r married daughters namely 
I) Mrs. N!1£reen I. Fazal, 2) Mrs. Zeenat S. Jagani, 3) Mrs. 
Shahnaz R. Butt and 4) Mrs. Tina D. Gai in equal shares. 
7. I own and hold undivided one half share right title and interest 
in the immovable property known as "Fatmabai Building' on Plot 
No. 115 at Nowroj i Hill Road No.2, Nowroj i Hill Estate, Bombay 
400 009, one seventh share right title and interest in 'Tej-Kunj" 
Building on Plot No. 96 at Nowroji Hill Road No.5, Bombay400 
009 and also one seventh share right title and in\erest in a small 
residential Building "A'' on Plot No.212-D (CTS No. B-764) at 
B.J. Road, Band Stand, Bandra, Bombay 400 050. I give devise 
and bequeath all my aforesaid fractional shares in the 
abovementioned immovable properties to my brother Amirali H. 
Tejani, Behram H. Tejani, Nasir H. Tejani and Feroze H. Tejani 
absolutely in equal shares. However, my brother Amirali 1-1. Tejani 
will administer the affairs of and deal with the aforesaid properties 
or any part thereof in his absolute discretion and as he deems tit
and proper seeing to the prevailing conditions and circumstances. 
The 2"' floor flat in the aforesaid Building "A" at Bandra is in use 
and occupation of my brother Amirali and his family and they can 
continue to use,_ occupy and maintain the same *ithout ai1y question 
or disturbance and hindrance from anyone and so also the other 
co-owners thereof." 
5. As stated in the aforesaid suit, the Will was probated on 
06.12.2006 in Petition No.856 of 2003 and one of the executors was 
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Zee1\at Shafique Jagani i.e. mother of the respondent. It appears that 
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the testator was residing o~ the first floor and after his death his wife 
continued to be in occupation of said first floor. The respondent-plaintiff 
asserted that he was also in use, occupation and possession of said first 
floor alongwith his maternal grand-mother and thus prayed for aforesaid 
reliefs in the suit. He also preferred Notice of Motion No.344 of2013 
praying inter alia for grant of temporary injunction restraining the 
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SUPREME COURT REPORTS 
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defendants from dis-possessing the respondent- plaintiff from the suit 
premises without following due process of law. 
6. In the affidavit in reply filed on behalf of the defendant-
appellants herein, it was submitted inter alia that after the death of the 
testator, the maternal grand-motherofthe respondent was merely allowed 
to use and occupy the suit premises by the defendants out of love and 
sympathy without any fees or compensation; that the suit premises 
belonged to the defendants as co-owners; that the testator had bequeathed 
his right, title and interest in the building "Tej Kunj" to his four brothers 
namely defendants Nos.1, 2, 3 and 5 and that the plaintiff and his grand-
mother were fully aware that no right, not even provision for residence 
was created under the Will in her favour. It was further submitted:-
"Nonetheless, out of sympathy, close blood relationship and out of 
filial love and affection, Mrs. Tejani has been allowed to use the 
suit premises. I say that since she has no right, title or interest in 
the suit premises she could have no rightto permit any other person 
much less the Plaintiff to interfere with the ownership right of the 
cci'-owners. I say that it is on record that since the co-owners 
including myself came to learn that Mrs. Tejani is wrongfully and 
without any such authority from the Defendants allowing the 
members of Jagani family, the Defendants by their
Advocates' 
letter dated 12'" January, 2013 addressed to Mrs. Tejani pointed 
out her deliberate acts of commission and omission and called 
upon her not to interfere with the valuable rights of the defendants 
qua the suit premises. By the said letter, it was pointed out that 
Mrs. Tejani should not illegally deal with the said premises in any 
manner whatsoever as long as she is freely allowed to reside 
therein and called upon here to let the Defendants know as to 
why and under what circumstances and under whose authority, 
she has been intermeddling with the absolute ownership rights of 
the defendants qua the suit premises and requested not to create 
any encumbrances of any nature whatsoever to the detriment of 
the interests of the defendants. No reply has been sent to the said 
letter. It is thus evidentthat the members of Jagani family including 
Mrs. Zeenat Jagani or the Plaintiff could have no right in the suit 
premises." 
With the aforesaid averments the defendants-appellants opposed 
grant of any interim relief.
BEHRAM TEJANt& ORS. v. AZEEM JAGANI 
[UDAY UMESH LAUT, J.] 
7. 
Said Notice of Motion No.344 of 2013 was dismissed by 
Bombay City Civil Court vide Order dated 29.04.2013. While rejecting 
the prayer it was observed as under:-
"lt is specific submission of defendant that Noorbanoo herself 
has no right in this premises. Only on sympathetic ground she is 
allowed to occupy the premises. If such is fact, when plaintiff is 
coming before Court claiming equitable relief like injunction, he 
has to prima facie show some rights to claim relief. If protection 
is asked for, one must clearly seek ascertaining his legal rights. 
Defendant has rightly pointed out that plaintiff is not submitting 
his legal right to possess the suit premises. He is merely claiming 
that he is residing with Noorbanoo and ifNoorbanoo herself is not 
having right in the property, I am of the view that such type of 
protection cannot be granted in favour of plaintiff. Neither 
Noorbanoo is made party to the suit, nor there is sufficient material 
to indicate that Noorbanoo lias any legal right to allow plaintiff to 
reside with her in the suit property for and on behalf of her. I am 
of the view that there is no any substantial right made out on 
behalf of plaintiff to entitle him for such equitable relief like 
injunction." 
8. The order of dismissal ofNotice of Motion was challenged by 
filiiigAppeal from Order No.15590 of2013 in the High Court of Bombay 
which was allowed by judgment and Order dated
17.09.2013 and which 
is presently under appeal. It was observed by the High Court in 
Paragraphs 10 and 11 of its judgment as under:-
"10. 
The learned Judge, in view of the above position on 
record, wrong in rejecting the motion on a foundation of ownership 
of the Defendants, even by accepting the submission of the 
Defendants-Respondents that Mrs. Noorbanoo Mohammed Ali 
Tejani maternal grandmother herself has no right in the premises. 
The legal right of possession as even observed by the Supreme 
Court in a case of Rame Gowda (Supra) just cannot be the basis 
unless adjudicated, to overlook the "settled possession". The 
requirement is the_ physical possession of the property of the 
occupant/person like Appellant who is seeking th~ protection of 
his possession, though there is no claim and/or submission even 
made by the Appellant that he is the owner and/or right in the 
property in question at least in the present case. While deciding 
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the possession right'OftheAppellant, the learned Judge has actually 
given finding against the maternal grandmother and decided even 
that she has no right to occupy the premises and therefore no 
question of pennitfing theAppellantto reside therein. The concept 
of "settled possession" cannot be equated with in all matters-
"legal possession". It depends upon facts and circumstances of 
case, as recorded in the present case. 
11. The leaned Judge has committed an error by relying upon 
wrong footing of law that the possession can be granted only to 
the person who has a legal right to occupy the premises and no 
other one. In view of the reasons so given in above paragraphs, 
the learned Judge has committed wrong even invoking the principle 
of equity against the Appellant-Plaintiff. Let the due course of 
law with a foundation to dispossess the person in possession of 
the premises be only after due trial. In view ofabove, I am inclined 
to observe that the order passed by the learned Judge deserves to 
be interfered with, as it is against the settled principle of law with 
regard to the possession of the property. It is made clear that we 
are dealing with the protection of the possession of the premises 
and not ownership and /or title of Mrs. Noorbanoo Mohammed 
Ali Tejani maternal grandmother. All points are kept open, including 
the observations given by the earned Judge regarding ownership/ 
title
of the maternal grandmother." 
9. Appearing for the defendants-appellants Mr. Dushyant Dave, 
learned Senior Advocate submitted that the High Court had erred in 
granting interim relief in favour of the respondent. He submitted that the 
reliance on Rame Gowda (Dead) by LRS. v. M. Varadappa 
Naidu(Dead) by LRs. and An rs.' was completely erroneous; that the 
respondent, at best, was a relative staying with a gratuitous licensee; 
and that the case was covered by the decision of this Court in Maria 
Margarida Sequeira Fernandes and others v. Erasmo J"ck De 
Sequeira (De"d) tltrouf(lt LRS. '.Ms. lndu Malhotra, learned Senior 
Advocate appearing for the plaintiff-respondent submitted that the 
respondent had been in settled possession and as such was entitled to 
protection. In her submission, the matter was fully covered by the decision 
of this Court in Rame Gowda (supra). 
1 2004 c1i sec 769 
' 2012 (5) sec 310
BEHRAM TEJANI & ORS. v. AZEEM JAGANI 
[UDAY UMESH LAUT, J.] 
I 0. The Will adve11ed to in the plaint bequeathed the entire interest 
that the testator had in the building in favour of his brothers. The Will 
further appointed mother of the respondent as one of the executors and 
trustees. It is not the case of the respondent that either he or his grand-
mother have any right independent of the Will or that the Will had 
bequeathed any interest in respect of the premises in question in their 
favour. In fact the suit does not claim any independent right either of his 
grand-mother or of the respondent himself. 
11. Having· gone through the record, the submission of the 
appellants that the grand-mother of the respondent though did not have 
any right qua the premises was permitted to occupy purely out of love 
and affection is not without merit. The status of the grand-mother is 
thus of a gratuitous licensee and that of the respondent is purely of a 
relative staying with such gratuitous licensee. 
12. Rame Gowda (supra) was a case in which two adjoining 
owners were claiming independent right of ownership in respect of a 
strip of land in between their holdings. That piece of land was in 
possession of the plaintiff and as such while dealing with the controversy, 
this Court held that a person in peaceful possession is entitled to retain 
his possession. However, while dealing with the concept of "settled 
possession" it was observed in paragraph 9 as under: 
"The "settled
possession" must be (i) effective, (ii) undisturbed, 
and (iii) to the knowledge of the owner or without any attempt at 
concealment by the trespasser. The phrase ''settled possession" 
does not carry any special charm or magic in it; nor is it a ritualistic 
formula which can be confined in a straitjacket. An occupation of 
the property by a person as an agent or a servant acting at the 
instance of the owner will not amount to actual physical 
possession." 
13. The matter was further elaborated in subsequent decision of 
this Court in Maria Margarida (Supra) as under: 
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"97. Principles oflaw which emerge in this case are crystallized 
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as under: 
( 1) No one acquires title to the property if he or she was allowed 
to stay in the premises gratuitously. Even by long possession of 
years or decades such person would not acquire any right or interest 
in the said property. 
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(2) Caretaker, watchman or servant can never acquire interest in 
the property irrespective of his long possession. The caretaker or 
servant has to give possession forthwith on demand. 
(3) The courts are not justified in protecting the possession ofa 
caretaker, servant or any person who was allowed to live in the 
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premises for some time either as a friend, relative, caretaker or 
as a servant. 
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( 4) The protection of the court can only be granted or extended to 
the person who has valid, subsisting rent agreement, lease · 
agreement or license agreement in his favour. 
(5) The caretaker or agent holds property of the principal only on 
behalf of the principal. He acquires no right or interest whatsoever 
for himself in such property irrespective of his long stay or 
possession." 
14. Thus, a person holding the premises gratuitously or in the 
capacity as a caretaker or a servant would not acquire any right or 
interest in the property and even long possession in that capacity would 
be ofno legal consequences. In the circumstances City Civil Court was 
right and justified in rejecting the prayer for interim injunction and that 
decision ought not to have been set aside by the High Court. We therefore, 
allow the appeal, set aside the judgment under appeal and restore the 
Order dated 29.04.2013 passed by the Bombay City Civil Court in Notice 
of Motion No.344 of2013 in SuitNo.408 of2013. 
15. The matter
having come up before this Court from an interim 
order and since themain suit itself is pending, any observations made by 
us shall not be taken as concluding the controversy and the merits of the 
matter will be gone into by the Court at the appropriate stage without 
being influenced by any observations made by us. 
16. Contempt Petition (Civil) No.368 of2014 was filed by the 
appellants submitting inter alia that the interim order passed by this Court 
on 10.02.2014 was disobeyed by the respondent. No notice was issued 
in this contempt petition. As we have decided the main matter no separate 
orders are called for in the contempt petition and the same stands disposed 
of. 
17. No order as to costs. 
Divya Pandey 
Appeal allowed.