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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 150 OF 2017

(ARISING OUT OF SLP (CIVIL) NO. 35464 OF 2013)

Behram Tejani & Ors. ….Appellants

Versus

Azeem Jagani …. Respondent

WITH

CONTEMPT PETITION (CIVIL) NO.368 OF 2014 IN

Special Leave Petition (Civil) NO.35464 of 2013

J U D G M E N T

Uday Umesh Lalit, J.

1.Leave granted.

2.This appeal challenges the judgment and Order dated 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 29.04.2013 passed by the

Bombay City Civil Court in Notice of Motion No.344 of 2013 in Suit

No.408 of 2013.

3.On 4.02.2013, aforesaid Suit No.408 of 2013 was filed by the

respondent submitting inter alia:-

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“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, 1

st

Floor, Plot

No.212 D, Byramjee Jeejeebhoy Road, Bandstand, Bandra

(West), Mumbai 400050, hereinafter referred to as ‘the suit

premises’…….The Defendant Nos.1, 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.1 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

th

September 1991 under which the deceased

bequeathed his 1/7

th

share in the plot of land in favour of the

Defendant Nos.1 to 5. The said Will is probated in the High

Court T & I.J. Petition No.856 of 2003 as per the Prabate

granted on 6

th

December 2006.”

The respondent-plaintiff then adverted to Will dated 28.09.1991 and

Clause 7 thereof in particular. 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

nd

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 and injunction restraining the defendants, their respective

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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 Hon’bleCourt 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 of law………”

4. By Will dated 28.09.1991 which was referred to by the respondent,

the testator had appointed his brother Amirali Huseinali Tejani and his

daughter Zeenat Shafique Jagani as the executors and trustees. The principal

bequests made by the testator in the Will were:

“5.I give, devise and bequeath all types of investments and

assets which are in the form or nature of moveables and which

are in my own and beneficial name or my four married

daughters namely 1) Mrs. Nasreen 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 Nowroji Hill Road No.2, Nowroji

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, Bombay 400 009 and also one seventh share right

title and interest 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

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to my brother Amirali H. Tejani, Behram H. Tejani, Nasir H.

Tejani and Feroze H. Tejani absolutely in equal shares.

However, my brother Amirali H. Tejani will administer the

affairs of and deal with the aforesaid properties or any part

thereof in his absolute discretion and as he deems fit and proper

seeing to the prevailing conditions and circumstances. The 2

nd

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 without any

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 Zeenat Shafique

Jagani i.e. mother of the respondent. It appears that the testator was residing

on 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 of 2013 praying inter alia for grant of

temporary injunction restraining the 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

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maternal grand-mother of the 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 right to permit

any other person much less the Plaintiff to interfere with the

ownership right of the co-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

th

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 evident that the members of Jagani family

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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.

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:-

“It 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 if

Noorbanoo 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 has

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 of Notice of Motion was challenged by filing

Appeal from Order No.15590 of 2013 in the High Court of Bombay which

was allowed by judgment and Order dated 17.09.2013 and which is

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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 the 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 the

possession right of the Appellant, 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 permitting the Appellant to 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 of

above, 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

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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

Anrs.

1

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 Jack De Sequeira (Dead ) through LRS.

2

.Ms. Indu 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).

10.The Will adverted 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

1

2004 (1) SCC 769

2

2012 (5) SCC 370

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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

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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:

“97. Principles of law which emerge in this case are crystallized

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.

(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 of a

caretaker, servant or any person who was allowed to live in the

premises for some time either as a friend, relative, caretaker or

as a servant.

(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 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

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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 of 2013

in Suit No.408 of 2013.

15.The matter having come up before this Court from an interim order

and since the main 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 of 2014 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.

..…..……………………..J.

(Pinaki Chandra Ghose)

……………………J.

(Uday Umesh Lalit)

New Delhi,

January 6, 2017