903-AO-448-2026.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

APPEAL FROM ORDER NO.448 OF 2026

WITH

INTERIM APPLICATION NO.3673 OF 2026

IN

APPEAL FROM ORDER NO.448 OF 2026

1. Mr. Pankaj Shashikant Mistry,

aged about 65 years, Indian Inhabitant,

residing at 4, Jambhulwadi (East),

Kalbadevi Road, Mumbai - 400 002.

2. Dr. Tanvi Pankaj Mistry,

aged about 37 years, Indian Inhabitant,

having address at Shop Nos. 48 & 50, Perin

Nariman Street, Borabazar Precinct,

Fort, Mumbai-400 001.

(Original Defendant Nos. 1 and 2) …Appellants

Versus

1. Mrs. Kishabai Sachin Kadam,

aged about 48 years, Indian Inhabitant,

currently at 47, Kennedy Bridge,

Opera House, Girgaum, Mumbai-400 004.

(Original Plainti�)

2. Dr. Ashish Gosar,

aged about 40 years, Indian

Inhabitant, having address at

Shop Nos. 48 & 50, Perin

Nariman Street, Borabazar Precinct,

Fort, Mumbai-400 001.

(Original Defendant No. 3)

3. Smt. Kapila Mistry,

SQ Pathan 1/18

SHAGUFTA

QUTBUDDIN

PATHAN

Digitally

signed by

SHAGUFTA

QUTBUDDIN

PATHAN

Date:

2026.06.25

15:19:41

+0530

903-AO-448-2026.odt

4. Mrs. S. Hemlata Bhavsar,

5. Ms. Prabha Mistry,

adults, Indian Inhabitants,

residing at Vapi, Gujarat.

(Original Defendant Nos. 4, 5 and 6)

6. Mrs. Nippa Kishan Mistry,

adult, Indian Inhabitant,

residing at Valsad, Gujarat.

(Original Defendant No. 7)

7. The Branch Manager,

Indian Bank, Cu�e Parade

Branch, Mumbai - 400 005.

(Original Defendant No. 8)

....Respondents

___________________

Mr. Rohaan Cama a/w Mr. Viraj Parikh, Mr. Aman Sadiwala and Ms. Etika

Srivastava and Ms. Feroza Bharucha i/b M/s. Rashmikant and Partners for

the Appellants/Applicants

Mr. Suresh Mali a/w Mr. Chaitanya Tandel for the Respondent No.1

___________________

CORAM : SHARMILA U. DESHMUKH, J.

DATE :JUNE 25, 2026

JUDGMENT:

1. Admit. With consent, the Appeal is taken up for hearing

forthwith.

2.The Appeal is at the instance of the original Defendants

being aggrieved by the order dated 8

th

May 2026 passed by the

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Trial Court partly allowing the Notice of Motion No. 2473 of 2026

and restraining the Defendants from dispossessing the Plainti�

from the portion of the suit bungalow presently in her use and

occupation, situated at 47, Kennedy Bridge, Opera House, Girgaon,

Mumbai – 400 004, otherwise than by due process of law.

3.S.C. Suit No. 1072 of 2026 was �led by the Plainti� inter alia

seeking a declaration that the threat extended by the Defendants

of dispossessing the Plainti� from the suit property along with the

suit bungalow is illegal, unlawful, bad in law, and not binding on the

Plainti�, and for a declaration that the Will dated 23

rd

February

2024 executed by the deceased Sushilaben Madanlal Mistry is legal,

valid, proper, and genuine. The Plainti� came with the case of

being in exclusive occupation and possession of the entire ground

�oor of the bungalow consisting of ground plus two upper �oors,

totally measuring 475 sq. meters, situated at Opera House,

Girgaon, Mumbai. The Plainti� has pleaded that the deceased

Sushilaben Madanlal Mistry was an aged woman and was not

having the support of any of her family members, including the

Defendants. In March 2021, she appointed the Plainti� as a

caretaker on a monthly salary of Rs.22,000/- and Rs.3,000/- for her

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food and medicines. Till the death of Sushilaben Mistry on 10

th

February 2026, the Plainti� was taking proper care of the deceased

Sushilaben Mistry as a caretaker with love and a�ection and the

said Sushilaben Mistry was treating the Plainti� as her daughter.

The Plainti� was permitted to stay along with her two sons in the

suit bungalow for availing the 24-hour services of the caretaker

due to the old age of the deceased Sushilaben. On 23

rd

February,

2024, the deceased Sushilaben Mistry, executed a Will on stamp

paper of Rs.100/- purchased in her name, which was notarized in

the presence of two witnesses, and under the Will, the Plainti� was

bequeathed 25% share out of her 1/3rd share in the property,

being the bungalow consisting of ground plus two upper �oors,

25% share in the Indian Bank SB Account, and 25% share in the

other properties and estate of the deceased.

4.It is pleaded that the Defendant No 1 after expiry of

Sushilaben has threatened the Plainti� to vacate the bungalow.

On 29

th

March 2026, Defendant Nos. 2 and 3, along with Defendant

No. 7, visited the bungalow and put a lock on the �rst �oor and

rear-side gate of the bungalow and threatened the Plainti� to

vacate the suit bungalow. With this case, the Plainti� approached

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the Trial Court and vide Notice of Motion No. 2473 of 2026, interim

injunction was prayed restraining the Defendants from

dispossessing her or interfering with her use and occupation.

5.The Trial Court framed the following points for

determination:

Sr.No. POINTS FINDINGS

01. Whether the plainti� proves prima facie

lawful possession of the suit bungalow

so as to seek protection against

dispossession otherwise than by due

process of law?

Yes

02. Whether the plainti� proves prima facie

entitlement to injunction restraining

defendant Nos.1 to 7 from creating

third party rights in respect of the suit

properties on the basis of alleged Will

dated 23/02/2024?

No

03. Whether the plainti� proves prima facie

entitlement to direction against

defendant No.8 Bank to furnish account

statement and release 25% amount

from bank account of deceased

Susilaben Madanlal Mistry?

No

04. Whether the plainti� proves balance of

convenience and likelihood of

irreparable loss?

Partly Yes

05. What order? As per �nal

order

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6.The �ndings of the Trial Court can be broadly summarised as

under:

(a) Plainti� is in settled possession of portion of suit

bungalow.

(b) No rights of the Plainti� can be recognised under the Will

of the deceased Sushilaben.

(c) Adjudication of validity of Will is beyond jurisdiction of Civil

Court.

(d) No interim proprietary rights in estate of deceased can be

claimed by the Plainti�.

(e) Serious cloud is raised over title asserted by the Plainti�.

(f) Residence of Plainti� in part of suit bungalow needs to be

protected against forcible dispossession.

7.The Trial Court held that the Plainti� has not yet established

legal entitlement to the estate of deceased Sushilaben Mistry in

accordance with law and, therefore, irreparable injury and balance

of convenience exist only to the limited extent of protecting

existing possession from forcible dispossession and not for

granting broader proprietary relief claimed in the Notice of

Motion. With these �ndings, the restraint order came to be passed

against the Defendants from dispossessing the Plainti� otherwise

than by due process of law.

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8.Mr. Cama, learned counsel appearing for the Plainti�, would

point out the speci�c pleading in the plaint that the Plainti� was

appointed as caretaker of Sushilaben Mistry and continued as such

till her death. He submits that the Trial Court has noted that the

Plainti� was residing in the bungalow in the capacity of a caretaker

and, despite that, has held that the Plainti� is in settled physical

possession over at least part of the bungalow. He submits that a

caretaker cannot be said to have any interest in the suit property

and cannot exercise any right of possession over the property. He

submits that even a long possession does not vest the caretaker

with any interest in the property and the possession has to be

handed over forthwith on demand. He submits that without

approaching the Testamentary Court and seeking Probate of the

Will, the Plainti� has approached the Civil Court seeking a

declaration about the validity of the Will. He submits that the Trial

Court has recognized that the Plainti� has not yet established legal

entitlement to the estate of deceased Sushilaben Mistry in

accordance with law and, in view of this �nding, could not have

protected the Plainti�’s possession.

9.He would further submit that the Trial Court has restrained

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the Defendants from dispossessing the Plainti� otherwise than by

due process of law, which due process is satis�ed the moment the

rights of the parties are adjudicated by a Court of competent

jurisdiction, irrespective of who brought the action before the

Court. He submits that it is not necessary that the Defendants, who

are the owners of the property, must institute an action in a Court

of law for enforcing their rights when the Plainti� herself has

approached the Court seeking the protective remedy of injunction

and has failed to prove the same. He submits that in such

circumstances, where a judicial determination is made in respect of

the protective action claimed, possession can be directed to be

handed over to the owner of the property. In support, he relies

upon the following decisions:

(i) Rame Gowda (Dead) by LRs. vs. M. Varadappa Naidu

(Dead) by LRs. & Anr.

1

(ii) Maria Margarida Sequeira Fernandes & Ors. vs.

Erasmo Jack De Sequeira (Dead) Through LRs.

2

(iii)Behram Tejani & Ors. vs. Azeem Jagani

3

10.Mr. Mali, learned counsel appearing for the Respondents,

would submit that though the Plainti� was appointed as a

1 (2004) 1 SCC 769

2 (2012) 5 SCC 370

3 Civil Appeal No.150/2017 (SC) dated 06/01/2017

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caretaker of the deceased Sushilaben Mistry, due to the love and

a�ection towards the Plainti�, Sushilaben has bequeathed 1/3

rd

share out of her 25% share in the entire property in favour of the

Plainti�. He submits that the Plainti� will adopt appropriate

proceedings for probate of the Will. He submits that the Trial Court

has considered that the Plainti� was in possession since March

2021 as caretaker of Sushilaben Mistry and has therefore rightly

restrained the Defendants from dispossessing the Plainti�, who is

in settled physical possession.

11.Rival contentions now fall for determination:

12.The undisputed position is that the Plainti� was appointed as

a caretaker of the deceased Sushilaben Mistry and came to reside

in the suit property in her capacity as a caretaker in the month of

March 2021. Upon the death of Sushilaben Mistry on 10

th

February

2026, the Defendants, who are relatives of Sushilaben Mistry,

called upon the Plainti� to vacate the premises and, being the

owners of the property, put the locks on the gates of the property,

which led to the �ling of the suit by the Plainti�. The Plainti�

admits the fact that she came to reside with Sushilaben in the

capacity of a caretaker and now seeks to continue to remain in

SQ Pathan 9/18

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possession by claiming rights under a purported Will of Sushilaben

Mistry of February 2024.

13.The Trial Court while noting the admitted position that the

Plainti� entered into the suit premises as a caretaker has

proceeded to protect the possession by terming the same to be

settled possession which cannot be be disturbed otherwise than by

due process of law. The expression “settled possession” was

considered by the Hon’ble Apex Court in the case of Rame Gowda

(Dead) by LRs vs M. Varadappa Naidu (dead) by LRs and Another

(supra). The Hon’ble Apex Court while holding that the person in

peaceful possession is entitled to retain his possession, has

accepted such entitlement in respect of settled possession or

e�ective possession. It held that the settled possession must be (i)

e�ective, (ii) undisturbed, and (iii) to the knowledge of the owner

or without any attempt at concealment by the trespasser. It held

that the 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. The Trial Court has gone far to say that

the Plainti�’s physical possession is settled possession, whereas,

the Hon’ble Apex Court has held that such possession does not

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even constitute actual physical possession.

14.In the case of Maria Margarida Sequeira Fernandes and

Others Vs Erasmo Jack De Sequiera (dead) through LRs (supra),

the Hon’ble Apex Court was considering the issue of possession in

context of caretaker’s possession. In that case the Respondent had

�led suit for injunction against the true owner and the Hon’ble

Apex Court held in paragraphs 93, 95, 96 and 97 as under:

“93. The respondent's suit for injunction against

the true owner, the appellant, was not maintainable,

particularly when it was established beyond doubt that

the respondent was only a caretaker and he ought to

have given possession of the premises to the true owner

of the suit property on demand. Admittedly, the

respondent does not claim any title over the suit

property and he had not �led any proceedings disputing

the title of the appellant. (Emphasis supplied)

“95. This Court in Mahabir Prasad Jain (1999)8 SCC

274 has held that the possession of a servant or agent is

that of his master or principal as the case may be for all

purposes and the former cannot maintain a suit against

the latter on the basis of such possession.”

“96. In Sham Lal v. Rajinder Kumar – (1994) 30 DRJ

596, the High Court of Delhi held thus: (DRJ p. 600,

paras 12-13)

“12. On the basis of the material available on record,

it will be a misnomer to say that the plainti� has

been in "possession" of the suit property. The

plainti� is neither a tenant, nor a licensee, nor a

SQ Pathan 11/18

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person even in unlawful possession of the suit

property. Possession of servant is possession of the

real owner. A servant cannot be said to be having any

interest in the suit property. It cannot be said that a

servant or a chowkidar can exercise such a possession

or right to possession over the property as to exclude

the master and the real owner of the property from

his possession or exercising right to possession over

the property.

13. Possession is �exible term and is not necessarily

restricted to mere actual possession of the property.

The legal conception of possession may be in various

forms. The two elements of possession are the

corpus and the animus. A person though in physical

possession may not be in possession in the eye of

the law, if the animus be lacking. On the contrary, to

be in possession. it is not necessary that one must be

in actual physical contact. To gain the complete idea

of possession, one must consider:

(i) the person possessing.

(ii) the things possessed and,

(iii)the persons excluded from possession.

A man may hold an object without claiming any

interest therein for himself. A servant though holding

an object, holds it for his master. He has, therefore,

merely custody of the thing and not the possession

which would always be with the master though the

master may not he in actual contact of the thing. It is

in this light in which the concept of possession has to

be understood in the context of a servant and a

master’’

The ratio of this judgment in Sham Lal (1994) 30 DRJ

596 is that merely because the plainti� was employed as

a servant or chowkidar to look after the property, it

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cannot be said that he had entered into such possession

of the property as would entitle him to exclude even the

master from enjoying or claiming possession of the

property or as would entitle him to compel the master

from staying away from his own property.”

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

crystallised 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 justi�ed 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 licence 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.”

15.The above quoted decisions establishes that possession of a

servant is no possession in eyes of law, which could exclude even

the master from enjoying or claiming possession of the property.

The admitted position of the Petitioner’s possession being in

capacity of caretaker, the Trial Court could not have characterized

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the Plainti�’s possession since March 2021, in her capacity as a

caretaker, as settled physical possession. As the Plainti� had

entered into the suit property as caretaker of the deceased

Sushilaben, upon demand made by the original owners, the

Plainti� was bound to hand over possession to the Defendants.

16. As the Plainti�’s rights under the Will of deceased

Sushilaben Mistry was not recognised at the interim stage, the

possession of Plainti� was premised on her possession as a

caretaker, which could not be termed as settled possession. To

continue in possession after the services as caretaker came to an

end upon death of Sushilaben Mistry, it was necessary for the

Plainti� to demonstrate some right in the suit property to resist

the original owners from claiming possession. The Plainti� claims

right to the estate of the deceased Sushilaben under the Will,

which the Trial Court has held cannot be adjudicated in civil court

and declined to recognise any rights under the Will. The Trial Court

rightly held that the plainti� cannot claim any proprietary right in

estate of the deceased Sushilaben Mistry.

17. There is no declaration of title sought by the Plainti� and

the Trial Court has held that there is a serious cloud raised over the

title asserted by the Plainti�.Prima facie, the suit for injunction

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without seeking declaration of title, when the title was under a

cloud is not maintainable and no interim protection could have

been granted.

18.The Trial Court was swayed by the fact that the Plainti� came

to reside in the suit premises since March 2021, which was

construed as settled possession, which the Trial Court then sought

to protect, while at the same time holding that the Plainti� has not

yet established legal entitlement to the estate of deceased

Sushilaben Mistry in accordance with law.

19.In view of the adverse prima facie �ndings as regards the

legal entitlement to estate of deceased Sushilaben, the Trial Court

could not have thereafter protected the Plainti�’s possession over

the portion of the suit bungalow. The impugned order is,

therefore, clearly unsustainable in law.

20.The Trial Court has restrained the Defendants from

dispossessing the Plainti� from the premises occupied by her

otherwise than by due process of law. In the decision of Maria

Margarida Sequeira Fernandes (supra), the Hon’ble Apex Court

held as under:

“79. Due process of law means that nobody ought to

be condemned unheard. The due process of law means a

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person in settled possession will not be dispossessed except

by due process of law. Due process means an opportunity to

the defendant to �le pleading including written statement

and documents before the court of law. It does not mean the

whole trial. Due process of law is satis�ed the moment rights

of the parties are adjudicated upon by a competent court.”

“80. The High Court of Delhi in Thomas Cook (India)

Ltd. v. Hotel Imperial (2006) 88 DRJ 545 held as under: (DRJ p.

566, para 28)

“28. The expressions `due process of law’, `due

course of law' and `recourse to law' have been

interchangeably used in the decisions referred to above

which say that the settled possession of even a person in

unlawful possession cannot be disturbed `forcibly’ by the

true owner taking law in his own hands. All these

expressions, however, mean the same thing-ejectment

from settled possession can only he had by recourse to a

court of law. Clearly, `due process of law' or `due course

of law’ here, simply mean that a person in settled

possession cannot be ejected without a court of law

having adjudicated upon his rights qua the true owner.

Now, this 'due process' or 'due course' condition is

satis�ed the moment the rights of the parties are

adjudicated upon by a court of competent jurisdiction. It

does not matter who brought the action to court. It could

be the owner in an action for enforcement of his right to

eject the person in unlawful possession. It could be the

person who is sought to be ejected, in an action

preventing the owner from ejecting him. Whether the

action is for enforcement of a right (recovery of

possession) or protection of a right (injunction against

dispossession), is not of much consequence. What is

important is that in either event it is an action before the

court and the court adjudicates upon it. If that is done

then, the `bare minimum' requirement of `due process'

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or "due course' of law would stand satis�ed as recourse

to law would have been taken. In this context, when a

party approaches a court seeking a protective remedy

such as an injunction and it fails in setting up a good case,

can it then say that the other party must now institute an

action in a court of law for enforcing his rights i.e. for

taking back something from the �rst party who holds it

unlawfully, and, till such time, the court hearing the

injunction action must grant an injunction anyway? I

would think not. In any event. the `recourse to law’

stipulation stands satis�ed when a judicial determination

is made with regard to the �rst party's protective action.

Thus, in the present case, the plainti�'s failure to make

out a case for an injunction does not mean that its

consequent cessation of user of the said two rooms

would have been brought about without recourse to

law.”

We approve the �ndings of the High Court of Delhi on this

issue in the aforesaid case.”

21.As the Plainti� has failed to make out a prima facie case for

protection of her possession, it is not necessary for the Defendants

to thereafter institute legal proceedings for enforcing their right of

ownership. In view of the judicial determination as regards the

Plainti�’s possession, and particularly considering paragraph 93 of

the decision in Maria Margarida Sequeira Fernandes (supra), that

the caretaker ought to have given possession of the premises to

the true owner of the suit property on demand, the Defendants

could not be compelled to institute their own proceedings for the

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purpose of claiming back what was rightfully theirs. As the Plainti�

has prima facie failed to establish any right in the suit property and

possession has been demanded by the rightful owners, the

possession of the suit property to be handed over by the Plainti�

to the Defendants.

22.In light of the above, the following order is passed:

ORDER

(i) The Appeal from Order is allowed.

(ii) The impugned order dated 8

th

May 2026 passed by the

Bombay City Civil Court in Notice of Motion No. 2473 of

2026 in Suit No. 1072 of 2026 is hereby quashed and set

aside to the extent of paragraph 1 and 2 of the order.

(iii) The Plainti� to hand over possession of the suit

property to the Defendants within a period of four weeks

from today.

23. Interim Application does not survive for consideration and

stands disposed of accordingly.

SHARMILA U. DESHMUKH, J.

SQ Pathan 18/18