Megha 30_cra_92_2025_fc.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

CIVIL REVISION APPLICATION NO.92 OF 2025

M/s. Indian Oil Corporation Limited ...Applicant

V/s.

Mrs. Perviz Khushroo Patel and Ors. ...Respondents

________________

Mr. Chirag Mody with Mr. Sunil Gangan, Mr. Swapnil Shikhare and Mr.

Manav Chetwani i/b. M/s. RMG Law Associates for the Applicant.

Mr. Arif Bookwala, Senior Advocate with Ms. Mahek Bookwala, Mr.

Umang Mehta and Ms. Trisha George i/b. M/s. Avyaan Legal for the

Respondents.

________________

CORAM: SANDEEP V. MARNE, J.

Judgment reserved on: 02 APRIL 2026.

Judgment pronounced on: 17 APRIL 2026.

JUDGMENT:

1) The Applicant- Indian Oil Corporation Limited (IOCL), a public

sector company, has invoked revisionary jurisdiction of this Court under

Section 115 of the Code of Civil Procedure, 1908 (the Code) questioning

the correctness of the judgment and order dated 4 January 2025 passed

by the Appellate Bench of the Small Causes Court dismissing (P) Appeal

No.67 of 2017 and confirming the judgment and order dated 4 January

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2017 passed by the Small Causes Court in T.E. & R. Suit No.69/76 of

2003. The Trial Court has decreed the Suit filed by the Plaintiffs under

Section 41 of the Presidency Small Cause Courts Act, 1882 and has

directed the Applicant-IOCL to vacate and handover the peaceful

possession of the suit premises to the Plaintiffs with further directions

for conduct of enquiry into mesne profits. Since the eviction decree is

concurrently upheld by the Appellate Court, the Applicant-IOCL has

filed the present Revision Application.

2)A Plot of land bearing Survey No.305, Hissa No.1, C.S. No.307,

Hissa No.1 admeasuring 2100 sq. yards situated on Mumbai-Agra Road,

Kurla, Mumbai-400 070 are the ‘suit premises’. The suit premises were

owned by Dr. Manek Billimoria, who executed Indenture of Lease dated

18 May 1968 with the Applicant-IOCL granting lease in respect of the

suit premises for tenure of 20 years. According to the IOCL, it had the

first option /right to purchase the suit premises under Clause III(e) of

the Indenture. Dr. Manek Billimoria passed away on 19 June 1975. His

wife, Smt. Sheroo Manek Billimoria executed Deed of Rectification with

IOCL on 4 October 1977 extending the period of lease upto 30 years

from 13 October 1967 to 12 October 1997. Plaintiffs claim that Smt.

Sheroo Billimoria executed a Will on 18 November 1997. She passed

away on 26 May 1999. According to IOCL, Plaintiffs claim ownership in

the suit premises on the strength of the Will executed by Smt. Sheroo

Billimoria. After enactment of Maharashtra Rent Control Act, 1999 (the

MRC Act), which does not apply to open lands, Plaintiffs terminated the

tenancy vide notice dated 27 November 2002. Plaintiffs filed T.E. & R.

Suit No.69/76 of 2003 against IOCL in the Court of Small Causes at

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Bombay seeking recovery of possession of the suit premises as well as

for mesne profits from the date of termination of tenancy. The Plaint

was verified by Mr. Mukesh Shashikant Parekh as constituted attorney

of the three original Plaintiffs who is also the director of M/s. Papeyon

Builmate Traders Pvt. Ltd. (Papeyon).

3)IOCL appeared in the Suit and filed written statement in

September 2003 disputing the ownership of the Plaintiffs in respect of

suit premises. Later, the written statement was amended contending

inter alia that the original Plaintiffs had not secured probate in respect

of the Will of Smt. Sheroo Billimoria. Based on the pleadings, the Trial

Court framed issues. On behalf of the Plaintiffs Mr. Mukesh Parekh filed

affidavit of evidence in capacity as constituted attorney of the three

original Plaintiffs. The IOCL examined witness in support of its defence.

The IOCL filed application in April-2006 seeking stay of the Suit on the

ground of non-securing of probate in respect of the Will of Smt. Sheroo

Billimoria as well as on the ground of Suit being filed by constituted

attorney. IOCL’s application was dismissed by the Small Causes Court

on 23 January 2007. The Revision preferred by the IOCL before the

Appellate Bench was dismissed on 11 August 2010. The IOCL filed Civil

Revision Application No.1005 of 2010 in this Court challenging orders

of Small Causes Court dated 23 January 2007 and of Appellate Bench

dated 11 August 2010. Vide order dated 9 December 2010 this Court

disposed of the Civil Revision Application granting liberty to the

Applicant-IOCL to file appropriate proceedings questioning

maintainability of the Suit.

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4)On 29 July 2011, conveyance was executed by the three original

Plaintiffs in favour of Papeyon assigning the suit premises. Accordingly,

Papeyon filed application for its impleadment as the fourth Plaintiff,

which was allowed by the Trial Court on 3 December 2012. This is how

Papeyon was added as Plaintiff No.4 to the Suit. The IOCL filed

additional written statement in July 2013. On 20 March 2014, the Trial

Court framed additional issues relating to maintainability of the Suit for

want of probate and about existence of landlord-tenant relationship.

Plaintiff No.4 led evidence of its witnesses- Shashikant Vasant Jadhav

(P.W.2) and Mandar S. Sakpal (P.W.3).

5)After considering the pleadings, documentary and oral evidence,

the Small Causes Court proceeded to decree the Suit vide judgment and

order dated 4 January 2017 holding that the IOCL lost protection of

MRC Act. It held that tenancy of IOCL has been validly terminated. That

the Suit was maintainable despite want of probate of Will of late Smt.

Sheroo Billimoria and there existed landlord-tenant relationship

between the parties. The Small Causes Court accordingly directed the

Defendant-IOCL to vacate the possession of the suit premises and

handover the same to the Plaintiffs within a period of three months

with liberty to the Plaintiffs to file application for enquiry into mesne

profits.

6)The Applicant-IOCL has filed (P) Appeal No.67 of 2017 before the

Appellate Bench of the Small Causes Court challenging the decree

dated 4 January 2017. By order dated 14 December 2021, the Appellate

Bench stayed execution of the decree subject to the IOCL depositing

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interim compensation @ Rs.1,00,000/- per month from the date of

decree and during pendency of the Appeal. By judgment and order

dated 4 January 2025, the Appellate Bench has proceeded to dismiss the

Appeal preferred by the IOCL.

7)Aggrieved by the orders passed by the Trial and the Appellate

Courts, the Applicant-IOCL has filed the present Revision Application.

By order dated 3 March 2025, this Court continued the ad-interim stay

granted by the Appellate Court and the said interim arrangement

continues to operate during pendency of the Revision Application.

8)Mr. Mody, the learned counsel appearing for the Applicant-IOCL

submits that the Trial and the Appellate Courts have grossly erred in

decreeing Plaintiffs’ Suit for eviction. Though the Suit was initially filed

by the Plaintiff Nos.1 to 3, premised on their claim of title based on

Sheroo Billimoria’s Will dated 18 November 1997, they did not secure

probate in respect of the Will. He relies on provisions of Section 213 of

the Indian Succession Act, 1925 (the Succession Act) in support of his

contention that Plaintiff Nos.1 to 3 did not have any authority in law to

file a Suit in absence of securing a probate in respect of the Will. He

submits that the provisions of Section 213 of the Succession Act clearly

forbids the legatees and executors from exercising any rights in respect

of the properties allegedly bequeathed by the Will in absence of a

probate. He relies on judgment of the Apex Court in Mrs. Hema Nolini

Judah V/s. Mrs. Isolyne Sarojbashini Bose

1

.

1AIR 1962 SC 1471

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9)Mr. Mody further submits that the Suit was also not maintainable

on the count of absence of a valid notice of termination of tenancy.

That original Plaintiff Nos.1 to 3 did not have any authority to issue

notice of termination of tenancy in absence of a probate. That

ultimately it got proved in the evidence that termination notice was

never issued by Plaintiff Nos.1 to 3. Mr. Mody relies upon order passed

by this Court on 9 December 2010 in Civil Revision Application No.1005

of 2010 in support of his contention that the issue of maintainability of

the Suit was required to be answered by the Trial Court. He submits that

the Trial Court has completely skirted the issue of maintainability of

the Suit in absence of probate issued in favour of the Plaintiff Nos.1 to

3. He submits that even the Appellate Court has failed to decide the said

issue. According to Mr. Mody, non-decision of the issue relating to

maintainability of the Suit in the light of provisions of Section 213 of

the Succession Act goes to the root of the matter and renders the

decision of the Trial and the Appellate Courts patently perverse and

illegal.

10)Mr. Mody submits that even if the Plaintiffs may institute Suit in

absence of probate, the probate must be secured at least before the

decree is passed. That in the present case till passing of decree, the

probate was not secured. In support of his contention that the Suit

cannot be decreed in absence of probate, Mr. Mody relies on following

judgments:

i) Jamshedji Dubash V/s. Meharbai Rustomji Dubash and

Ors.

2

22003(3)M.P.L.J.

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ii) Kumar Chandra Kishore Roy V/s. Prasanna Kumari Dasi

and Sarat Kumari Dasi

3

iii) S.M.K.R. Meyappa Chetty V/s. S.N. Supramanian Chetty

4

iv) Raichand Dhanji V/s. Jivraj Bhavanji and Ors.

5

v) Ramcharan V/s. Mt, Dharohar

6

vi) Ajit Kumar Hazra & Ors. V/s. Rathindra Nath Roy

7

vii) Clarence Pais & Ors. V/s. Union of India

8

11)Mr. Mody further submits that the Suit was also not maintainable

on account of the same being instituted by power of attorney holder

and not by original Plaintiff Nos.1 to 3. That Plaintiff No.4 claims to

have executed Agreement for Sale in respect of the suit premises and in

absence of any title to the property, instituted the Suit by verifying the

plaint. That even the evidence was led by him and not by the original

Plaintiffs. He submits that the power of attorney holder cannot lead

evidence on behalf of a party to the Suit. In support of his contention,

he relies upon judgments of the Apex Court in Janki Vashdeo Bhojwani

and Another V/s. Indusind Bank Ltd. and Others

9

and A.C. Narayanan

V/s. State of Maharashtra and Another

10

. He submits that the entire Suit

was thus driven by Plaintiff No.4, who acquired title in respect of the

suit premises much later in the year 2011. That the Suit was thus clearly

not maintainable and ought to have been dismissed by the Trial and the

Appellate Courts. That the Trial and the Appellate Courts have

erroneously answered the issue of existence of landlord-tenant

relationship. That since tenancy is not validly terminated, the Suit

31910 SCC OnLine PC 23

4AIR 1916 PC 202

5AIR 1932 BOM 13

6AIR 1954 PAT 175

71979 SCC OnLine Cal 154

8(2001) 4 SCC 325

9(2005) 2 SCC 217

10(2014) 11 SCC 790

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ought to have been dismissed. He accordingly prays for setting aside the

impugned orders passed by the Trial and the Appellate Courts.

12) Mr. Bookwala the learned Senior Advocate appearing for the

Respondents /Plaintiffs opposes the Revision Application. He submits

that the Plaint is not based on the Will of late Shiroo Billimoria but is

based on capacity of the original Plaintiffs as landlords. That the Plaint

does not refer to late Shiroo Billimori’s Will in any manner. On the

contrary, it specifically made reference to offering of rent by the

Defendant-IOCL to the Plaintiffs. That the act of offering rent creates

landlord-tenant relationship. That even on 12 June 2017, the Applicant-

IOCL accepted the Respondents as landlords/owners of the suit

premises by filing Suit bearing No.487 of 2017 and in paragraph 2 of the

Plaint, they averred that the Defendant Nos.2 to 4 therein are the

original owners of the suit premises. That since Applicant-IOCL has

paid rent to Plaintiff No.1 it has admitted the existence of landlord-

tenant relationship. He relies on judgment of this Court in Kashinath

Ramchandra Kolwankar his legal heirs A. Hemant Kashinath Kolwankar

and Others V/s. Sunanda and Others

11

in support of his contention that

payment of rent clearly establishes landlord-tenant relationship.

13)Without prejudice to the contention that the Suit was never

based on Shiroo’s Will, Mr. Bookwala submits that the legatee under the

Will have every right to file a Suit in absence of a probate. He relies on

judgment of the Apex Court in FGP Limited V/s. Saleh Hooseini Doctor

and Another

12

. That the Trial and the Appellate Courts have

concurrently held the termination of tenancy/lease to be valid. That the

112024 SCC OnLine Bom 2962

12(2009) 10 SCC 223

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provisions of the MRC Act do not apply to the tenanted property both

on account of the same being open land and the IOCL being out of

purview of the MRC Act. He relies on judgment of this Court in Metal

Box India Ltd. Mumbai V/s. S.F. Engineer, Mumbai

13

in support of his

contention that the Applicant no longer enjoys protection from rent

escalation and eviction. That therefore the IOCL has no right to remain

in possession of the suit premises. He takes me through the written

statement to demonstrate that the Defendant-IOCL questioned the title

of the Plaintiffs in respect of the suit premises thereby incurring

disqualification under Section 116 of the Indian Evidence Act, 1872.

That the Applicant-IOCL is unnecessarily holding onto the possession

of the suit premises despite non-availability of any protection of Rent

Control Legislation. He therefore prays for dismissal of the Revision

Application so as to ensure that the Plaintiffs enjoy the suit premises,

which are in unauthorised occupation of the IOCL for the last 23 long

years of pendency of litigation.

14)Rival contentions urged on behalf of the parties now fall for my

consideration.

15) The Applicant-IOCL secured lease in respect of the suit premises

vide Indenture of Lease dated 18 May 1968. It operates a retail fuel

outlet /petrol pump at the suit premises, which are located in Kurla area

at Mumbai. Though the tenure of lease was initially for 20 years, after

death of original owner-Dr. Manek Billimoria, his wife executed Deed of

Rectification with IOCL on 4 October 1977 extending the period of lease

upto 30 years from 13 October 1967 to 12 October 1997. It is an

132025(2) Mh.L.J. 66

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admitted position that beyond 12 October 1997, tenure of lease has not

been extended. However, it appears that the Suit was not filed by the

IOCL for its ejectment immediately after 12 October 1997 on account of

applicability of provisions of the Bombay Rents, Hotel and Lodging

House Rates Control Act, 1947, (the Bombay Rent Act), which did not

exclude IOCL from its purview and also applied to open piece of land.

The Bombay Rent Act was replaced by the MRC Act w.e.f. 31 March

2000. The MRC Act brought about two important changes in the area of

extension of rent control protection. The MRC Act no longer applies to

various entities enumerated in Section 3 thereof. It does not apply to

public sector undertakings as well as companies having paid up share

capital of Rs.1 crore or more. Therefore, provisions of the MRC Act do

not apply to the Applicant -IOCL. Further the provisions of the MRC Act

also do not apply to tenancies created in respect of open lands. Since

Indenture of Lease dated 18 May 1968 was in respect of the open piece

of land, provisions of the MRC Act do not apply to the premises in

question. Thus, in law IOCL does not have right to remain in possession

of the suit premises after 12 October 1997.

16) After advent of the MRC Act from 31 March 2000, Notice dated 27

November 2002 was sent by three original Plaintiffs terminating the

tenancy under the provisions of Section 106 of the Transfer of Property

Act, 1882. Since the Applicant-IOCL failed to vacate possession of the

premises, T.E. & R. Suit No.69/76 of 2003 was instituted by the three

original Plaintiffs. The Applicant-IOCL questions maintainability of the

Suit on three broad grounds viz., (i) that the Suit was actually filed by

Plaintiff No.4, who had no title in respect of the premises (ii) that there

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was no valid termination of tenancy since notice was not issued by the

three original Plaintiffs, and (iii) that the original Plaintiffs did not have

authority in law either to file Suit or issue termination notice on

account of non-securing of probate under Section 213 of the Succession

Act.

17)The Applicant-IOCL relies on order passed by this Court on 9

December 2010 in Civil Revision Application No.1005 of 2010 in

support of its contention that its objection to maintainability of the

Suit were required to be decided by the Trial Court. Accordingly, at the

behest of the Applicant-IOCL, the Trial Court framed the issue of

maintainability of the Suit as under:

3(a). Whether the suit as filed is maintainable for want of probate of

the will of Late Sheroo Manek Billimoria?

18)It is Applicant-IOCL’s case before me that the issue of

maintainability of the Suit has not been decided by the Trial Court.

However, it is seen that the Trial Court has answered the Issue No.3(a)

by holding in paragraphs 14, 20, 22 and 23 as under:

14. Heard both the advocates. Advocate for the defendants has

submitted that for want of probate of the Will suit is not

maintainable. At the same time, there was no relationship of

landlord and tenant in between plaintiffs and defendant, hence, this

Court has no jurisdiction to try and entertain the suit. On the

contrary, advocate for the plaintiffs has submitted that even the Will

is not proved by the plaintiffs, but the same Will was referred in the

cross examination of P.W.1 Mukesh. As per Section 211 of Indian

Succession Act, in absence of probate suit is maintainable. At the

same time, the defendants have issued the rent in favour of plaintiff

No.1, hence this Court is having jurisdiction to try and decide the

suit.

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Xxx

20. Considering all the above guidelines, there is need of evaluation

of oral and documentary evidence. Document Exh.G collectively

indicates payment in the name of S.M. Billimoria and Mrs. Patel in

between period 2002 to 2004. The payment was made by defendant

company Indian Oil Corporation to plaintiff No.1 Mrs. Patel and

deceased S.M.Billimoria. D.W.1 Krishanji has admitted the said fact

in his cross examination. The document Exh.F is duly served on the

defendant. The cheque dated 13/1/2003 was returned to the

defendants along with letter Exh.J. The public documents which are

filed on record indicate suit property was owned by the person

Manek Billimoria. It is also crystal clear from record that Sheroo is

the wife of Manek. The agreement dated 25/11/1996 was executed in

between Sheroo Manek Billimoria and plaintiff No.4 M/s. Papeyon

Builmate Traders Private Limited. Evidence of D.W.1 Krishanji

indicates that the said fact was known to the defendants. Therefore,

considering all the above circumstances, authorities about the Power

of Attorney cited by the plaintiffs are well applicable.

xxx

22. Section 211 and 213 of Indian Succession Act deals with vesting

of property. Vesting takes place as a result of probate. On the

executors accepting his office, the property vest on him and the

executor derives his title from the Will and became representative of

deceased even without obtaining the probate. In the case of

A.C.Narayanan Vs. State of Maharashtra (cited above), it is held that

functions under general Power of Attorney cannot be delegated to

any other person without the specific clause permitting the same in

the Power of Attorney. The general Power of Attorney itself can be

cancelled and be given to another person. In the abovesaid judgment

the guidelines given in the case of Janki Vashdeo Vs. Indusind Bank

Ltd. (cited above) are also considered.

23. The Power of Attorney is mainly assailed by the defendants due

to existence of earlier Power of Attorney and notary rules. But

considering the abovesaid guidelines given in the case of

A.C.Narayanan Vs. State of Maharashtra when one Power of Attorney

can be cancelled and be given to another person. Only because suit

filed by plaintiff is signed by earlier Power of Attorney and later on

P.W.1 Mukesh has given the evidence is no ground to discard the oral

and documentary evidence given by the plaintiff. Therefore,

considering all the above circumstances and the evidence on record,

I answer issue No.3 in the negative and issue No.3(a) in the

affirmative.

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19)It therefore, cannot be contended that the Trial Court has failed

to decide the issue of maintainability of the Suit. The Appellate Court

has also gone into the issue of maintainability of the Suit for want of

probate in respect of the Will of late Shiroo Billimoria and has held the

suit to be maintainable. Therefore, IOCL’s criticism of Trial and

Appellate Courts’ orders in this regard does not appear to be justified.

20)In my view, all the three objections sought to be raised by the

Applicant-IOCL about the maintainability of the Suit are completely

baseless. The first objection is about failure to procure probate in

respect of the Will of late Shiroo Billimoria and reliance is placed on

provisions of Section 213 of the Succession Act. Section 213 has now

been deleted w.e.f. 20 December 2025. However, at the time when the

Suit was filed and decided, Section 213 existed in the statute and has

provided thus:

Section 213. Right as executor or legatee when established

(1) No right as executor or legatee can be established in any Court of

Justice, unless a Court of competent jurisdiction in India has granted

probate of the Will under which the right is claimed, or has granted

letters of administration with the Will or with a copy of an

authenticated copy of the Will annexed.

(2) This section shall not apply in the case of wills made by

Muhammadans or Indian Christians, and shall only apply--

(i) in the case of Wills made by any Hindu, Buddhist, Sikh or Jaina

where such wills are of the classes specified in clauses (a) and (b) of

section 57; and

(ii) in the case of Wills made by any Parsi dying, after the

commencement of the Indian Succession (Amendment) Act, 1962 (16

of 1962), where such Wills are made within the local limits of the

ordinary original civil jurisdiction of the High Courts at Calcutta,

Madras and Bombay, and where such Wills are made outside those

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limits, insofar as they relate to immovable property situated within

those limits.

21)In my view, there is nothing in Section 213, which prohibits a

legal heir of a deceased owner of the property from instituting a Suit for

recovery of possession thereof from the occupiers. Section 213 of the

Succession Act prohibits a legatee or executor from establishing any

right in relation to bequeathed property in any court of justice. Thus, it

is impermissible to seek declaration of title in respect of the property

/right unless probate in respect of the Will is obtained. Section 213 may

not always come in the way of a legatee filing suit for possession from a

tenant. All would depend on the frame of the suit. If the Plaintiff bases

the Plaint on his/her capacity as the legatee or executor under the Will,

securing of probate might have been necessary for securing the decree.

However when the suit is not based on the Will nor the Plaintiff seeks to

establish any right under the Will, provisions of Section 213 would have

no application. By filing a Suit for recovery of possession from the

tenant /lessee the landlord (who may be the legatee under the Will)

may not always attempt to establish any right under the Will in the

Court. In fact, it is not necessary for a landlord to prove title in respect

of the property to a tenant. The landlord-tenant relationship does not

depend on claim of ownership. Mere factum of payment of rent can also

establish landlord-tenant relationship. Reliance by Mr. Bookwala on

judgment of this Court in Kashinath Ramchandra Kolwankar (supra) in

this regard is apposite. This Court has taken into consideration

definition of the term ‘landlord’ appearing in Section 5(3) of the

Bombay Rent Act and has held in paragraphs 21 to 23 as under:

21 The term landlord has been defined under the provisions of section

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5(3) of the Bombay Rent Act as under:

“5. Definitions.

(3) ''landlord" means any person who is for the time being,

receiving, or entitled to receive, rent in respect of any premises

whether on his own account or on account, or on behalf, or for

the benefit of any other person or as a trustee, guardian, or

receiver for any other person or who would so receive the rent or

be entitled to receive the rent if the premises were let to a

tenant; and includes any person not being a tenant who from

time to time derives title under a landlord; and further includes

in respect of his sub-tenant, a tenant who has sub-let any

premises, [and also includes in respect of a licensee deemed to

be a tenant by section 15A, licensor who has given such license,

and in respect of the State Government, or as the case may be,

the Government allottee referred to in sub-clause (b) of clause

(1A), deemed to be a tenant by section 15B, the person who was

entitled to receive the rent if the premises were let to a tenant

immediately before the coming into force of the Bombay Rents,

Hotel and Lodging House Rates Control, Bombay Requisition

and Bombay Government Premises (Eviction) (Amendment) Act,

1996.”

22 Thus any person who receives or is entitled to receive rent in

respect of premises either for himself or on behalf of any other

person becomes a landlord. Therefore, to establish status as

landlord it is not necessary for Respondents/Plaintiffs to set up a

case of title or ownership. The learned Judge of the Small Causes

Court has erred in not appreciating this established position of

law and has unnecessarily conducted an enquiry into

Respondents/Plaintiffs’ title in respect of the suit premises.

23 In the present case there is no dispute to the position that the

initial induction of Applicant/Defendant in the suit premises is

in his capacity as tenant of Shri Ramakant B. Desai. This is not

the case where Applicant/ Defendant was originally a member of

the Society and that the Society issued any allotment letter to

him. The possession of the suit premises was admittedly handed

over to him by Shri Ramakant B. Desai. Thus, the

Applicant/Defendant’s entry in the suit premises is directly

connected with relationship with Shri Ramakant B. Desai. There

is no dispute to the position that right since 1995

Applicant/Defendant paid rent to Shri Ramakant B. Desai and

this position continued till the year 1988. Thus, there was no

dispute about existence of relationship between Shri Ramakant

B. Desai and Applicant/Defendant as landlord and tenant. …

(emphasis added)

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22)Thus all that is required to be proved in a suit for recovery of

possession of leased/tenanted premises is establishment of the

landlord-tenant or lessor-lessee relationship. An inquiry into the

ownership of the leased property is not really necessary in such a suit.

The present suit is filed by the Plaintiffs for recovery of possession of

the suit property from their lessee, the tenure of whose lease has

expired. It was unnecessary for the original Plaintiffs to base their suit

on the Will. It would be necessary to consider the frame of the suit to

find out whether the Plaintiffs attempted to establish any right based

on the Will. Perusal of the Plaint would indicate that the Suit is not filed

on the basis of the Will. Plaintiffs pleaded in paragraph 1 of the Plaint

as under:

1. The Plaintiffs state that they are the joint owners of a piece and

parcel of plot of land bearing part of Survey No.305, Hissa No.1, C.S.

No.307, Hissa No.1, admeasuring approximately 2100 square yards,

situated at Kurla on Bombay Agra Road, Kurla, Mumbai 400 070

(hereinafter referred to as “ the suit premises”).

23)In the entire Plaint, there is no reference to the Will. It therefore

cannot be contended by any stretch of imagination that the Suit is filed

for establishment of any right based on the Will. On the other hand, the

Suit is filed based on landlord-tenant relationship, which is clear from

the following averments in paragraphs 3 and 6 of the Plaint, which read

thus:

3. ...The Defendants, therefore, on expiry of the lease period

became he monthly tenants of the Plaintiffs and or their

predecessors-in-title in respect of the suit premises. The Plaintiffs

crave leave to refer to and rely upon the said indenture of lease and

Deed of rectification when produced.

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6. The Plaintiffs state that due to efflux of time the period of lease

agreement came to an end on 12

th

October 1997 and from 13

th

October, 1997 the Defendants became monthly tenant of the

Plaintiff in respect of the suit premises.

24)The fact that the Suit was filed based on landlord-tenant

relationship is further clear from repeated pleadings in the Plaint about

the Defendant offering rent to the Plaintiffs. In paragraph 5 of the

Plaint, it was pleaded thus:

5. The Plaintiffs further states that despite the said letter dated 27

th

November 2002 Exhibit A hereto, the Defendants continued to send

to the Plaintiffs their cheques towards the rental amount contrary

to the said letter dated 27

th

November 2002 which were returned to

the Defendants by the Plaintiffs Advocate reiterated the contents of

the earlier letter dated 27 November 2002 and further along with

the above referred letters returned to the Defendants the cheques

so sent by the Defendants. The Plaintiffs crave leave to refer to and

rely upon the said letters when produced.

25)In addition to pleadings, there are several letters available on

record, which indicates offering of rent by the Applicant-IOCL to the

Plaintiffs. At pages 150 to 157 of the compilation filed by the Applicant,

there are letters by the Applicant addressed to Mrs. S.M. Billimoria and

Mrs. Patel offering rent from December 2002 to June 2024. Mrs. Patel is

Perviz Khushroo Patel, Plaintiff No.1. Thus payment/offering to pay

rent to one of the Plaintiffs is admitted by the Applicant-IOCL and it is

now estopped from questioning the title of the Plaintiffs or their right

to sue.

26) Additionally, Mr. Bookwala has also brought on record that the

Applicant-IOCL has filed the Suit bearing No.487 of 2017 and in

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paragraph 2 of the Plaint in that suit, the Applicant has accepted

ownership of Plaintiff Nos.1 to 3 in respect of the suit premises.

27) Mr. Mody has relied on several judgments in support of his

contention about maintainability of the suit and permissibility to pass

final decree in absence of probate. In Mrs. Hema Nolini Judah (supra)

the case before the Apex Court involved establishment of claim to the

property on behalf of the legatee by a third person. The Apex Court held

that provisions of Section 213 of the Succession Act would apply even

when the claim is made by a person not claiming as a legatee. The Apex

Court has held that whoever wishes to establish right under the Will,

whether it is a legatee, executor or someone else, probate is a

mandatory requirement. The Apex Court has held in paragraph 7 of the

judgment as under:

7. ... As soon as the appellant wants to prove that, Section 213 will

immediately stand in her way for no right as an executor or a

legatee can be proved unless probate or letters of administration of

the will under which such right is claimed have been obtained. The

words of Section 213 are not restricted only to those cases where

the claim is made by a person directly claiming as legatee. The

section does not say that no person can claim as a legatee or as an

executor unless he obtains prabate or letters of administration of

the will under which be claims. What it says is that no right as an

executor or legateee can be established in any Court of Justice,

unless probate or letters of administration have been obtained of

the will under which the right is claimed, and therefore it is

immaterial who wishes to establish the right as a legatee or an

executor. Whosoever wishes to establish that right, whether it be a

legatee or an executor himself or somebody else who might find it

necessary in order to establish his right to establish the right of

some legatee or executor from whom he might derived title, he

cannot do so unless the will under which the right as a legatee or

executor is claimed has resulted in the grant of a probate or letters

of administration. Therefore, as soon as the appellant wanted to

establish that Mrs. Mitter was the legatee of Dr. Miss Mitter and

was therefore entitled to the whole house she could only do so if

the will of Dr. Miss Mitter in favour of Mrs. Mitter had resulted in

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the grant of probate or letters of administration. Admittedly that

did not happen and therefore Section 213(1) would be a bar to the

appellant showing that her mother was the full owner of the

property by virtue of the will made in her favour by Dr. Miss Mitter.

The difference between a right claimed as a legatee under a will and

a right which might arise otherwise is clear in this very case. The

right under the will which was claimed was that Mrs. Mitter became

the owner of the entire house. Of course without the will Mrs.

Mitter was an equal heir with her daughters of the property left by

Dr. Mitter, as the latter would be taken to have died intestate, and

would thus be entitled to one-fourth. It will be seen from the

judgment of the High Court that it has held that the appellant is

entitled to the one-fourth share to which Mrs. Mitter was entitled

as an heir, to Dr. Miss Mitter and granted the plaintiff-respondent a

declaration with respect to only half the house. Therefore, the High

Court was right in holding that Section 213 would bar the appellant

from establishing the right of her mother as a legatee from Dr. Miss

Mitter as no probate or letters of administration had been obtained

of the alleged will of Dr. Miss Mitter in favour of Mrs. Mitter. The

contention of the appellant on this head must therefore fail.

28)The issue before the Apex Court in Mrs. Hema Nolini Judah was

thus entirely different and the judgment cannot be read in support of a

proposition that for maintaining a suit against third parties, in which

establishment of right under the Will is not necessary, probate would

still be mandatory.

29) Mr. Mody has relied upon judgment of Madhya Pradesh High

Court in Jamshedji Dubash (supra) in support of his contention that

though the Suit is not barred in absence of a probate, but probate must

be produced before passing of the decree. The judgment is however

distinguishable as the Suit was instituted in that case seeking

declaration of title in land based on Will by the legatee against the legal

heirs of the testator. The Suit was thus filed for the purpose of

establishing right of the legatee based on the Will. In the present case,

the Suit was not filed for the purpose of establishing right based on the

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Will and the same was filed by landlord for eviction of tenant, who had

lost protection from eviction and rent escalation.

30)Mr. Mody’s reliance on judgment of Privy Council in Kumar

Chandra Kishore Roy (supra) again does not assist the case of the

Applicant. In case before the Privy Council, the Suit was filed by

daughters of the testator against their adopted brother for recovery of

arrears of maintenance allegedly due to them under their father’s Will.

Thus, the Plaintiffs sought to establish their right in the property based

on the Will and provisions of Section 213 of the Succession Act got

attracted. The judgment therefore is clearly distinguishable. The

judgment of S.M.K.R. Meyappa Chetty (supra) of Privy Council involved

issue of establishment of title in the property based on Will and in the

context of that position, the Privy Council held that the words “capable

of instituting a suit” used in the ordinance in question would mean

capable of instituting a suit in which a decree might be obtained.

31) The judgment of this Court in Raichand Dhanji (supra) again

holds that grant of probate of a Will is not a condition precedent to

institute a Suit claiming right as an executor or legatee under a Will.

However, Plaintiff is not entitled to decree unless a probate is granted

to him before passing of the decree. The case again involved

establishment of right to the property bequeathed under the Will and

hence clearly distinguishable.

32) In Ramcharan (supra), the issue before the Patna High Court was

about computation of period of limitation from the date of the Will or

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from the date of grant of probate. The judgment therefore has no

application to the facts of the case.

33)The judgment of Calcutta High Court in Ajit Kumar Hazra (supra)

cannot be read in support of an absolute proposition that in every case,

where suit is instituted by legal heir of landlord, obtaining of probate is

a mandatory requirement before passing of a decree. The Calcutta High

Court has decided only limited issue of permissibility of substitution of

legal heirs of the Plaintiff without the need of procurement of probate

and application of provisions of Section 213 of the Succession Act only

for passing of decree.

34) Lastly, Mr. Mody relied upon judgment of the Apex Court in

Clarence Pais (supra) wherein the Apex Court has held that the bar

imposed under Section 213 of the Succession Act is only in respect of

the establishment of right as executor or legatee and not in respect of

establishment of right in any other capacity. The judgment, far from

assisting the case of the Applicant-IOCL, actually militates against it.

Therefore for establishment of right in capacity as landlord in a suit

filed against the tenant, Section 213 of the Succession Act would have

no application.

35) On the other hand, reliance of Mr. Bookwala on judgment of the

Supreme Court in FGP Limited (supra) appears to be apposite, in which

it is held in paragraph 37 as under:

37. 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 as co-owners but they have claimed

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that they are filing it as executors/executrix. So they cannot now

meet the challenge of maintainability of the Suit on the ground that

it was filed by the respondents as co- owners. It 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 as co-owners

of 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 tenant’s 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.

(emphasis added)

Thus, in FGP Limited the Apex Court has authoritatively ruled that once

tenant admits co-ownership of property by the landlord, he cannot seek

to raise objection to ownership based on provisions of Section 213 of

the Succession Act. Therefore, the objections sought to be raised on

behalf of the Applicant-IOCL to maintainability of the Suit as well as to

the validity of the termination of notice is clearly misplaced and

deserves to be outrightly rejected.

36)So far as objection about Suit being instituted by Power of

Attorney is concerned, the same deserves outright rejection. Mere

verification of the Suit by the constituted attorney does not mean that

the Suit is filed by such attorney. Even though Plaintiff No.4 may have

secured some right in the premises on the strength of Agreement for

Sale, it still was not the owner till conveyance was ultimately executed

on 29 July 2011. Therefore Plaintiff No.4 was a mere power of attorney

holder of original Plaintiffs in the year 2003. It had authority to sign

and verify the Plaint. It therefore, cannot be contended that the Suit

was instituted by Plaintiff No.4 in its personal capacity.

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37)So far as the issue of termination notice is concerned, Mr. Mody

has strenuously relied on answer to question 54 in the cross-

examination of Mr. Mukesh Parekh, in which he deposed that he had

given instructions for issuance of termination notice dated 27

November 2003. In my view, mere issuance of instruction of power of

attorney holder would not mean that notice was issued on its own

behalf. Perusal of the notice would indicate that the same was issued on

behalf of three original Plaintiffs. The notice nowhere stated that the

same was issued on behalf of the power of attorney holder. Therefore,

contention of the Applicant-IOCL that notice was issued and the Suit

was filed by power of attorney holder is completely baseless.

38) It is also sought to be contended on behalf of the Applicant that

the power of attorney holder did not have authority to lead evidence

and reliance in this regard is placed on judgments of the Apex Court in

Janki Vashdeo Bhojwani and A.C. Narayanan (supra). The principles

governing permissibility by constituted attorney to lead evidence on

behalf of his principal is well settled. In Janki Vashdeo Bhojwani the

Apex Court has held as under:

17. On the question of power of attorney, the High Courts have

divergent views. In the case of Shambhu Dutt Shastri Vs. State of

Rajasthan, 1986 2WLL 713 it was held that a general power of

attorney holder can appear, plead and act on behalf of the party but

he cannot become a witness on behalf of the party. He can only

appear in his own capacity. No one can delegate the power to

appear in witness box on behalf of himself. To appear in a witness

box is altogether a different act. A general power of attorney holder

cannot be allowed to appear as a witness on behalf of the plaintiff

in the capacity of the plaintiff.

18. The aforesaid judgment was quoted with the approval in the

case of Ram Prasad Vs. Hari Narain & Ors. AIR 1998 Raj. 185. It was

held that the word "acts" used in Rule 2 of Order III of the CPC does

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not include the act of power of attorney holder to appear as a

witness on behalf of a party. Power of attorney holder of a party can

appear only as a witness in his personal capacity and whatever

knowledge he has about the case he can state on oath but be cannot

appear as a witness on behalf of the party in the capacity of that

party. If the plaintiff is unable to appear in the court, a commission

for recording his evidence may be issued under the relevant

provisions of the CPC.

(emphasis added)

39)Thus, a constituted attorney is not totally prohibited from being

examined as witness. To the extent of his personal knowledge, he can

depose before the Court. In the present case, the Plaintiff No. 4 was

involved in issuance of termination notice and has accordingly deposed

to the extent of his own personal knowledge. The Courts have relied on

judgment in A.C. Narayanan (supra) in which the Apex Court has held

in paragraph 26 as under:-

26) As noticed hereinabove, though Janki Vashdeo Bhojwani (supra),

relates to powers of Power of Attorney holder under CPC but it was

concluded therein that a plaint by a Power of Attorney holder on

behalf of the original plaintiff is maintainable provided he has

personal knowledge of the transaction in question. In a way, it is an

exception to a well settled position that criminal law can be put in

motion by anyone [vide Vishwa Mitter (supra)] and under the

Statute, one stranger to transaction in question, namely, legal heir

etc., can also carry forward the pending criminal complaint or

initiate the criminal action if the original complainant dies [Vide

Ashwin Nanubhai Vyas vs. State of Maharashtra (1967) 1 SCR 807].

Keeping in mind various situations like inability as a result of

sickness, old age or death or staying abroad of the payee or holder in

due course to appear and depose before the Court in order to prove

the complaint, it is permissible for the Power of Attorney holder or

for the legal representative(s) to file a complaint and/or continue

with the pending criminal complaint for and on behalf of payee or

holder in due course. However, it is expected that such power of

attorney holder or legal representative(s) should have knowledge

about the transaction in question so as to able to bring on record

the truth of the grievance/offence, otherwise, no criminal justice

could be achieved in case payee or holder in due course, is unable to

sign, appear or depose as complainant due to above quoted reasons.

Keeping these aspects in mind, in MMTC (supra), this Court had

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taken the view that if complaint is filed for and on behalf of payee or

holder in due course, that is good enough compliance with Section

142 of N.I. Act.

40)Mr. Mody sought to distinguish the above judgment by

contending that the same is rendered in the context of criminal

complaint. However, the fact remains that filing of Suit by a power of

attorney holder even under civil law is not prohibited so long as the

attorney has the necessary power. In the present case, constituted

attorney had personal knowledge of issuance of notice of termination of

the tenancy. The Applicant-IOCL has not disputed the factum of receipt

of termination notice. In that sense nothing was required to be proved

by the Plaintiffs. Nonetheless, their constituted attorney, who had

personal knowledge of issuance of notice, led evidence in that regard. It

therefore, cannot be contended that evidence led by power of attorney

holder was required to be ignored altogether. In my view therefore,

objections to maintainability of the Suit have rightly been repelled by

the Trial and the Appellate Courts.

41) In the present case, it is not really necessary to go into the issue

of permissibility to institute Suit or pass a decree in absence of probate

in the light of the provisions of Section 213 of the Succession Act. The

Suit is not filed for establishment of any right under the Will. The Plaint

does not even make reference to the Will. The Suit is filed by landlords

by describing the Applicant-IOCL as monthly tenant, who had lost

protection from eviction and rent escalation after coming into effect of

the MRC Act. The Applicant-IOCL itself has offered rent to one of the

Plaintiffs thereby establishing landlord-tenant relationship. It

therefore, cannot be concluded that the Suit is filed for establishment of

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any right under the Will. In the light of the peculiar facts of the present

case, provisions of Section 213 of the Succession Act would have no

application to the facts of the present case.

42) So far as the merits of the case are concerned, no submissions are

canvassed before me to point out an element of perversity or

jurisdictional error on the issue of validity of termination notice. As

observed above, the IOCL’s right to occupy the suit premises has expired

on 12 October 1997. It no longer enjoys protection from rent escalation

and eviction under the MRC Act. The tenancy has been validly

terminated. In Metal Box India Ltd. (supra) this Court has held in

paragraph 24 as under:

24) The conspectus of the above discussion is that the Defendant-

Company is that an entity covered by the provisions of Section 3(1)(b)

of the M.R.C. Act no longer enjoys protection from rent escalation and

eviction. Maharashtra Rent Control Act is a special legislation enacted

with the objective of offering protection from rent escalation and

eviction only to selected person and entities. There is conscious

legislative exclusion of entities like Defendant-Company from

applicability of protection from rent escalation and eviction. Since

Defendant-Company did not enjoy protection under the M.R.C. Act, its

monthly tenancy became terminable by issuance of notice under

Section 106 of the Transfer of Property Act. The tenancy of Defendant

has rightly been terminated by the Plaintiff. Upon termination of its

tenancy, the Defendant had no right to remain in possession of the suit

premises. The Small Causes Court has rightly ordered eviction of the

Defendant and there is no error on the part of the Appellate Bench in

upholding the eviction decree. Infact, the Trial and Appellate Courts

have rightly recorded findings about impermissibility to regain lost rent

control protection on account of subsequent reduction of paid-up share

capital below Rs.1 crore, which law is subsequently expounded by this

Court in Depe Global Shipping Agencies Pvt. Ltd. Versus. Mather and

Platt (India) Ltd.(2024 SCC OnLine Bom 3189). The findings recorded by

the Trial and the Appellate Courts are in consonance with the law

enunciated by this Court in Depe Global Shipping.

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43)In that view of the matter, no error can be traced in the

concurrent findings recorded by the Trial and the Appellate Courts

while directing eviction of the Applicant. In my view, therefore, no case

is made out for interference in the impugned orders passed by the Trial

and the Appellate Courts.

44)Civil Revision Application is devoid of merits and it is accordingly

dismissed with no orders as to costs.

[SANDEEP V. MARNE, J.]

45)After the judgment is pronounced, Mr. Mody, the learned

counsel appearing for the Applicant prays for continuation of stay

for a period of 8 weeks. The request is opposed by Ms. Bookwala, the

learned counsel appearing for the Respondents. Considering the

nature of findings recorded in the judgment, I am not inclined to

continue the stay any further. The request for continuation of stay is

rejected.

[SANDEEP V. MARNE, J.]

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