Paragraph numbers below are the court’s original numbering, recovered from the source text.
39. Apart from that, in this case, the respondent No.2 – Niloofar, one of the plaintiffs is a co-owner of the suit premises. In paragraph 9 of the Will there is a specific reference to the suit premises and also to the pending litigation in Small Causes Court at Bombay as well as in the High Court. In paragraph 9 there is a specific recital that the suit premises is bequeathed to Parvez H. Doctor. However, Pervez died on 28.11.1998 and, thus, predeceased the testatrix who died on 30.1.1999. In such a situation, the provisions of Section 105 of the Indian Succession Act, 1925 is attracted.
40. Section 105 of the Indian Succession Act reads thus: " -'\ "105. In what case legacy lapses. – ( 1) If the legatee does not survive the testator, the legacy cannot take effect, but shall lapse and form part of the residue of the testator's property, unless it appears by the Will that the testator intended that it should go to some other person. (2) In order to entitle the representatives of the legatee to receive the legacy, it must be proved that he survived the testator."
41. It is clear from the aforesaid Section that the suit premises thus become residuary estate of the testatrix which was to be distributed in accordance with Clause 11 of the will.
42. Clause 11 (iii) of the said Will. reads as follows: "One-third share to be given to my daughter Niloofer c absolutely. If my said daughter Niloofer predeceased me the said one-third share of my said daughter Niloofer shall be given to my son-in-law Arun to be held by him in Trust for my grandchildren Manisha and Alisha and any other child born to my said daughter Niloofer, who may be surviving at the time of my death to use the income- interest, if any, from such bequest, for the benefit of the .,.( …… children of my said daughter Niloofer who may be surviving at the time of death and to handover the proportionate share of the corpus in equal shares to each of my said …. grandchildren on their attaining the age of 25 years or on their marriage whichever is earlier. In case of my son-in- law Arun also predeceased me the said one-third share of my said predeceased daughter Niloofer shall be held in trust by my Executors and Trustees for the benefit of my grand-children born to my said daughter Niloofer and I direct my Executors/Trustees to use the income-interest, if any of such bequest for the benefit of my said grandchildren and to handover the proportionate share of the corpus in equal shares to each of my said ,,,,. grandchildren on their attaining the age of 5 years or on their marriage whichever is earlier." r~"
43. Therefore, respondent no.2- Niloofer along with others is the residuary legatee and is one of the owners of the suit premises. A co-owner can always maintain a suit for eviction. FGP LTD. v. SALEH HOOSEINI DOCTOR AND ANR.1017 [ASOK KUMAR GANGULY, J.]
44. 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 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.
45. 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 c 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. …… ,)…;
46. Apart from that it has been held in some decisions of this Court that a co-owner of a property is an owner of the property, till the property is partitioned.
47. In Sri Ram Pasricha vs. Jagannath and Ors. (1976) 4 sec 184, it has been held that a co-owner is as much an owner of the entire property as any sole owner. In coming to the said finding, the learned Judges relied on the proposition laid down in Salmond on Jurisprudence (13th edition). The relevant principles in Salmond on Jurisprudence are set out herein below: " … It is an undivided unity, which is vested at the same time in more than one person …. The several ownership of a part is a different thing from the co-ownership of the whole. So soon as each of two co-owners begins to own a part of G ~—( the thing instead of the whole of it, the co-ownership has been dissolved into sole ownership by the process known as partition. Co-ownership involves the undivided integrity of what is owned.
48. Relying on the aforesaid jurisprudential principles, this Court in Sri Ram Pasricha (supra) held as under: "Jurisprudentially it is not correct to say that a co-owner of a property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part-owner or a fractional owner of the property. The position will change only when partition takes place … " (Para 27, page 190 of the report)
49. Si.nee in the instant case, no partition has taken place, c the plaintiffs' status as co-owners cannot be disput~d by the tenant and it is. nobody's case that there is a clash of interest between the respondent and co-owners.
50. Therefore, the Suit is maintainable.
51. Reference in this connection may be made to a ~ ,._ decision of this Court in Mohinder Prasad Jain vs. Manohar Lal Jain – (2006) 2 sec 724. In para 10 of the said report, learned Judges referred to a decision of this Court in India Umbrella Mfg. Co. vs. Bhagabandei Agarwal/a – (2004) 3 SCC 178, which in tum relies on Sri Ram Pasricha (supra). The principles which have been affirmed in Mohinder Prasad Jain (supra) are that one co-owner filing a suit for eviction against the tenant does so on his own behalf in his own right and as an agent of the other co-owners. In this matter, the F consent of other co-owners is assumed as taken unless it is shown that the other co-owners were not agreeable to eject the tenant and the suit was filed in spite of their disagreement.(See para 1 O page 727 of the report). It is nobody's case here that other co-owners are objecting to the filing of the suit in question.
52. Apart from that in this case, the appellant has admitted the title of the respondents as it has joined them as defendants ,____,, in their specific performance suit as executors. This appears (1 from the judgment in Appeal No. 731 of 2005 dated 30.8.2008 H in the Court of Small Causes at Bombay. The exact conclusions , FGP LTD. v. SALEH HOOSEINI DOCTOR AND ANR.1019 [ASOK KUMAR GANGULY, J.] of the appellate Court are set out below: " .. In that suit (specific performance suit), present plaintiffs are joined as defendants ….. It means the defendant admitted derivative title of the present plaintiffs …. " h
53. In this connection, we must see the distinction between Sections 211 and 213 of the Indian Succession Act. Under Section 211 of the said Act, the executor or administrator, as the case may be, of a deceased person is his legal representative for all purposes, and all the property of the deceased person vests in him as such. Here the legal c representatives will have the same meaning as has been given in Section 2(11) of the Code of Civil Procedure.
54. Section 2(11) of the Code of Civil Procedure provides as under: ….. )._ "legal representative" means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued".
55. Therefore, it is Section 211 and not Section 213 that deals with the vesting of property. This ·vesting does not take place as a result of probate. On the executor's accepting his office, the property vests on him and executor derives his title from the Will and becomes the representative of the deceased even without obtaining probate. The grant of probate does not give title to the executor. It just makes his title certain. Under Section 213, the grant of probate is not a condition precedent 'r4 to the filing of a suit in order to claim a right as an executor under the will.
56. This vesting of right is enough for the executor or administrator to represent the estate in a legal proceeding. It A has been held in Kulwanta Bewa vs. Karam Chand Soni – \.– reported in AIR 1938 Calcutta 714 that the whole scheme of the Act is to provide for the representation of the deceased's estate for the purpose of administration. That vesting is not only for the beneficial interest in the property but is also for the B purposes of representation. Similarly, it has been held in Meyappa Chetty vs. Supramanian Chetty – (1916) 43 IA 113, that an executor derives his title from the Will and not from the probate and the right of action in respect of personal property of the testator vests in the executor on the death of the testator. c
57. But Section 213 operates in a different field. Section 213 enjoins that rights under the Will by executor or a legatee cannot be established unless probate or letters of administration are obtained.
58. Therefore, Section 211 and Section 213 of the said Act have different areas of operation. Even if Will is not probated '$. — that does not prevent the vesting of the property of the deceased on the executor/administrator and consequently any right of action to represent the estate of the executor can be E initiated even before the grant of the probate.
59. Similar opinion has bern expressed by this Court in Commissioner, Jalandhar Division and Ors. vs. Mohan Krishan Abrol and Anr. – (2004) 7 SCC 505 (See para 10 at page 513). So the suit filed by the respondents as executors F is also maintainable.
60. Thus on the facts of the case this Court does not find any justification for its interference with the decision of the High Court rendered in its revisional jurisdiction. In coming to this G conclusion, this court has considered the facts of this case and also the fact that appellant is paying a meager sum of Rs. 900/ -llj.-~-r – and qdd per month for occupying the said flat in a prime area in Mumbai. Appellant is not in occupation of the said flat and since 2000 has admittedly allowed a total outsider, one Mr. H Abhik Mitra, the Managing Director of a Company known as FGP LTD. v. SALEH HOOSEINI DOCTOR AND ANR. 1021 [ASOK KUMAR GANGULY, J.] llllL Sa Re Ga Ma Pa Ind. Ltd., to occupy the said flat. The flat is lying vacant since May, 2005.
61. As against all these facts when we find that the Suit is for reasonable requirement and was filed by the grandchildren of the testatrix, this Court, in our judgment, should not exercise its discretionary jurisdiction by interfering with the eviction proceeding which culminated in the revisional order of the High …. Court .
62. Reference in this connection be made to a decision of this Court in Balvantrai Chiman/al Trivedi, Manager, Raipur c Mafg. Co. Ltd. Ahmedabad vs. M.N. Nagrashna and Ors. – AIR 1960 SC 407. In para 5 at page 408 of the said report, a three-Judge Bench of this Court posed a que$tion whether this Court should interfere under Article 136 of the Constitution and )I_ when in the facts of the case there is no failure of justice. The question has been answered by this Court as follows: "5. The question then arises whether we should interfere in our jurisdiction under Article 136 of the Constitution, when we are satisfied that there was no failure of justice. In similar circumstances, this Court refused to interfere and did not go into the question of jurisdiction on the ground that this Court could refuse interference unless it was satisfied that the justice of the case required it; see: A.M. Allison vs. B.L. Sen (1957) SCR 359: ((S) AIR 1957 SC 227). On a parity of reasoning we are of the opinion that as we are not satisfied that the justice of the case requires interference in the circumstances, we should refuse to interfere with the order of the High Court dismissing the writ petition of the' appellant." ~ –(
63. An attempt was made to review the said judgment. The review petition was decided by a Constitution Bench of this Court. Justice Wanchoo speaking for unanimous Constitution Bench has very succinctly, if we may say so, outlined the parameters of this Court's jurisdiction under Article 136 of the A Constitution and those observations, which we should always remember while exercising jurisdiction under Article 136, are as follows: c " … It is necessary to remember that wide as are our powers under Article 136, their exercise is discretionary; and if it is conceded, as it was in the co1,Jrse of the arguments, that this, Court could have dismissed the appellant's application for special le~ve summarily on the ground that the order under appeal had done substantial justice, it is difficult to appreciate the argument that because leave has been granted this Court must always and in every case deal with the merits even though it is ·,. satisfied that ends of justice do not justify its interference · in a given case … " (See AIR 1960 SC 1292 at 1294)
64. For the reasons stated above, we do not find any merit ;._ — in this appeal which is dismissed accordingly. However, we are restraining ourselves for passing any order as to costs in view of the excellent assistance rendered to this Court by the learned counsel for the appellant. Therefore, there is no order as to E costs. B.B.B .. Appeal dismissed.