GAIV DINSHAW IRANI & ORS. versus TEHMTAN IRANI & ORS.

18. Learned senior counsel appearing on behalf of respondent No.6 being BMC, submitted that the appellants filed this appeal with the mala fide intention to usurp the BMC land i.e. the suit premises. It is submitted that the dispute in the present case has been narrowed down to five ~ats by the courts F below, which are solely in possession of the appellants herein. That by the impugned order dated September 9, 2005 the High Court allowed the first appeals filed by respondent Nos.1 to 5 herein and directed the appellants 'to hand over five flats kept reserved. The High Court specifically observed that construction G on the 'new plot' by the appellants was allowed by virtue of the interim order passed by the High Court during the pendency of the suits before the trial court, and five flats were reserved to protect the interest of respondent Nos.1 to 5.

19. It is further submitted on behalf of respondent No.6 that H the statement that the fam!IY member of the appellants _are . GAIV DINSHAW IRANI v. TEHMTAN IRANI [Pi'NAKI CHANDRA GHOSE, J.] . occupying these five flats, is false and frivolous and the same is made to gain sympathy of this Court. Secondly, it is submitted that as per the orders passed by the High Court, conditional permission was granted to the appellant to proceed with the construction, and the High Court was correct in handing over the five flats to respondent Nos.1 to 5~ That the original defendant No.2 and the respondents before the High Court have filed this appeal by special leave and this Court has passed status quo order in respect of the suit premises. Thirdly, it is s.ubmitted that the Municipal Corporation of Greater Mumbai's (then BMC) development work has been stalled due to the status quo order passed by this Court, and that the appellant obtained the same without serving any notice upon respondent No.6. It is further submitted that BMC requires the land for development of Municipal School, Municipal Employees Quarters and Staff Quarters and it is unable to carry out the same due to the ongoing disJ?ute between the family members. Fourthly, it is submitted that irrespective of the outcome Qf the present appeals, respondent No.6 would be entitled to 4798 sq. mts. out of the suit premises which was acquired by it in the year 1984. Fifthly, it is submitted that tn'e appellants are trying to challenge the surrender of 4798 sq. mts. of land in favour of BMC by this appeal and the same is illegal as they never challenged the said surrender of tenancy done as far back as on January 12, 1984. Instead, they have supported the said surrender of tenancy throughout and are therefore estopped from taking a stand to the contrary at this stage. It is therefore the submission of BMC that the present appeal by special leave petition be dismissed and the parties be directed to comply with the impugned order dated September 30, 2005 passed by the High Court.

20. After considering the arguments an submissions and · perusing the documents placed on record we are of the opinion that the present appeals stem out of two primary issues firstly, the issue of rights over the tenancy; and secondly, the validity of the judgement and order of the High Court is challenged on [2014] 5 S.C.R. · A the ground that it is in excess of powers of an appellate Court under Sectio_n 96 of the Code of Civil Procedure.

21. The appellants have claimed before us that leasehold tenancy rights can be bequeathed as against the holding of the Trial Court in Long Cause·Suit No.1914 of 1983 which has held B that "it is well established principle that tenancy rights cannot be bequeathed". The divesting of tenancy rights by means of a Will is a highly debated topic-and is subject to the tenancy laws of the concerned State. In the present matter, the tenancies being the suit premises are owned by the local authority of C Mumbai and are subject to the State Act being the Bomb~y Rents, Hotel Anq Lodging House Rates Control Act, 1947 (hereinafter referred to as the "Bombay Rent Control Act). The said Act, since repealed, exempts the present tenancy from its . purview as per Section 4 (1 ). The BMC Act is also silent on D this aspect. Therefore.we will discuss the existing jurisprudence . regarding the same.

22. In the case of Gian Devi {J.nand vs. Jeevan Kumar & Ors4. four Judges of a five-Judge Constitution Bench held that E the rule of heritability extends to statutory tenancy.of commercial as well as residential premises in States where there is no explicit provision to the contrary and tenancy rights are to ; devolve according to the ordinary law of succession unless i otherwise P,rovided in the statute. This Court in Bhavarlal, F Labhchand Shah vs. Kanaiyalal Nathalal lntawala5 referring ' to the Bomaby Rent Control Act, 1974 held that in a contractual tenancy, a tenant of a non-residential premises cannot bequeath under a Will his right to such tenancy in favour of a person who is a stranger to the family, being not a member of the family, carrying on business. With respect to residential G tenancy, this Court left the question open and held: ''. .. we do not propose to deal with the wider propositi0, 4. (1985) 2 sec 683. H 5. (1986) 1 sec 571. GAIV DINSHAW IRANI v. TEHMTAN IRANI [PINAKI CHANDRA GHOSE, J.] that a statutory tenancy which is personal to the tenant A cannot be bequeathed at all under a will in favour of anybody. We leave the said question open."

23. This Court in Vasant Pratap Pandit vs. Dr. Anant Trimbak Sabnis6 while deciding upon the rights of a statutory 8 tenancy under the Bombay Rent Control Act was of the opinion that bequest of tenancy rights is impermissible and stated that: "14. From a plain reading of Section 5(11 )(c)(i) it is obvious that the legislative prescription is first to give protection to members of the family of the tenant residing C with him at the time of his death. The basis for such prescription seems to be that when a tenant is in occupation of premises the tenancy is taken by him not only for his own benefit but also for the benefit of the members of the family residing with him. Therefore, when the tenant dies, protection should be extended to the members of the family who were participants in the benefit of the tenancy and for whose needs as well the tenancy was originally taken by the tenant. It is for this avowed object, the legislature has, irrespective of the fact whether such members are 'heirs' in the strict sense of the term or not, given them the first priority to be treated as tenants. It is only when such members of the family are not there, the 'heirs' will lie entitled to be treated as tenants as decided, in default of agreement, by the court. In other words, all the heirs are liable to be excluded if any other member of the family was staying with the tenant at the time of his death." When Section 15, which prohibits sub-letting, assignment or transfer, is read in juxtaposition with Section 5(11 )(c)(i) it is patently clear that the legislature intends that in case G .no member of the family as referred to in the first part of the clause is there the 'heir', who under the ordinary mode of succession would necessarily be a relation of the deceased, should be treated as a tenant of the premises e. (1994) 3 sec 481. c subject, however, to the decision by the court in default of agreement. The words "as may be decided in default of agreement by the Court" as appearing in Section 5(11 )(c)(i) are not without significance. These words in our view have been incorporated to meet a situation where there are more than one heirs. In such an eventuality the landlord may or may not agree to one or the other of them being recognised as a 'tenant'. In case of such disagreement the court has to decide who is to be treated as 'tenant'. Therefore, if 'heir' is to include a legatee of the will then the above-quoted words cannot be applied in case of a tenant who leaves behind more than one legatee for in that case the wishes of the testator can get supplanted, on the landlord's unwillingness to respect the same, by the ultimate decision of the court. In other words, in case of a testamentary disposition, where the wish or will of the deceased has got to be respected a decision by the court will not arise and that would necessarily mean that the words quoted above will be rendered nugatory. What we want to emphasise is it is not the heirship but the nature of claim that is determinative. In our considered view the legislature could not have intended to confer such a right on the testamentary heir. Otherwise, the right of the landlord to recover possession will stand excluded even though the original party (the tenant) with whom the landlord had contracted is dead. Besides, a statutory tenancy is personal to the tenant. In certain contingencies as contemplated in Section 5(11 )(c)(1) certain heirs are unable to succeed to such a tenancy. To this extent, a departure is made from the general law."

24. In Sangappa Kalyanappa Bangi vs. ~and Tribunal, Jamkhandi & Ors. 7 a dispute pertaining to the Karnataka Land , Reforms Act, 1961 this Court held as under: "The assignment of any interest in the tenanted land will 1. (1998) 7 sec 294. GAIV DINSHAW IRANI v. TEHMTAN IRANI [PINAKI CHANDRA GHOSE, J.] not be valid. A devise or a bequest under a Will cannot be stated to fall outside the scope of the said provisions inasmuch as such assignment disposes of or deals with the lease. When there is a disposition of rights under a Will, though it operates posthumously is nevertheless a recognition of the right of the legatee thereunder as to his rights of the tenanted land. In that event, there is an assignment of the tenanted land, but that right will come into effect after the death of the testator. Therefore, though it can be said in general terms that the devise simpliciter will not amount to an assignment, in a special case of this c nature, interpretation will have to be otherwise."

25. On the contrary this Court in State of West Bengal & Anr. vs. Kai/ash Chandra Kapur & Ors8. while deciding upon the rights of a leasehold land owned by the Government held that: "Transfer connotes, normally, between two living persons during life; Will takes effect after demise of the testator and transfer in that perspective becomes incongruous. Though, as indicated earlier, the assignment may be prohibited and the Government intended to be so, a bequest in favour of a stranger by way of testamentary disposition does not appear to be intended, in view of the permissive language used in clause (12) of the covenants. We find no express prohibition as at present under the terms of the lease. Unless the Government amends the rules or imposes appropriate restrictive covenants prohibiting the bequest in favour of the strangers or by enacting appropriate law, there would be no statutory power to impose such restrictions prohibiting such bequest in favour of the strangers. It is seen that the object of assignment of the government land in favour of the lessee is to provide him right to residence. If any such transfer is made contrary to the policy, obviously, it would be defeating the public 8. (1997) 2 sec 387. purpose. But it would be open to the Government to regulate by appropriate covenants in the lease deed or appropriate statutory orders as per law or to make a law in this behalf. But so long as that is not done and in the light of the permissive language used in clause (12) of the lease deed, it cannot be said that the bequest in favour of strangers inducting a stranger into the demised premises or the building erected thereon is not governed by the provisions of the regulation or that prior permission should be required in that behalf. However, the stranger legatee c should be bound by all the covenants or any n~w covenants or statutory base so as to bind all the existing lessees." In H.C. Pandey vs. G.C. Paul9, this Court held that: "It is now well settled that on the death of the original tenant, subject to any provision to the contrary either negativing or limiting the succession, the tenancy rights devolve on the heirs of the deceased tenant. The incidence of the tenancy are the same as those enj~yed by the original tenant." Furthermore in Parvinder Singh vs. Renu Gautam & Ors. 10, it has been held by this Court that: "Tenancy is a heritable right unless a legal bar operating against heritability is shown to exist."

26. The aforementioned cases indicate that in general tenancies are to be regulated by the governing legislation, which favour that tenancy be transferred only to family members of the deceased original tenant. However, in light of the majority decision of the Constitution Bench in Gian Devi vs. Jeevan G Kumar (supra), the position which emerges is that in absence 1 of any specific provisions, general laws of succession to apply, this position is further cemented by the decision of this Court in· State of West Bengal vs. Kai/ash Chandra Kapur (supra) 9. (1989) 3 sec 77. H 10. (2004) 4 sec 794. GAIV DINSHAW IRANI v. TEHMTAN IRANI [PINAKI CHANDRA GHOSE, J.] which has allowed the disposal of tenancy rights of Government A owned land in favour of a stranger by means of a Will in the absence of any specific clause or provisions.

27. Presently, the tenancies are owned by BMC and allegedly by means of a Will, were bequeathed to Daulatbai as a residuary legatee in 1946, such transfer appears to be permissible in light of the Constitution Bench decision. However, as the legal position regarding the permissibility of bequeathing a tenancy by Will in 1946 was not decided, we will rely on the admissions of the parties in regard to the same. The BMC by means of letter dated September 19, 1961 treated all C the heirs of Bomanji as joint tenants; and the heirs of Bomanji by means of letter dated October 25, 1961 also claimed themselves to be joint tenants; Daulatbai in her letter dated February 3, 1962 also claimed joint tenancy along with her sons and sought transfer of the rent receipts only in the name of her D son Dinshaw. By letter dated November 11, 1962 once again all the heirs of Bomanji's including Daulatbai claimed themselves to be joint tenants in the eviction suit being Suit No. 5451 of 1963. We also find that Daulatbai regarded herself to be a joint tenant with the other sons.

28. Furthermore, Daulatbai only bequeathed the nursery business and not the tenancy to her son Dinshaw and appointed her daughter Ketayun as residuary legatee by means of her Will which was not probated. As per Section 213 of the Indian Succession Act, 1925, when a Will of a Parsi is not probated then no legatee can claim right by means of the same and such testator is treated to have died intestate. As per Section 52 of the Indian Succession Act, prior to the amendment of 1991, a Parsi female intestate's property shall be divided equally amongst her children and the statute does not distinguish G between step-children and children. Thus , the florist/nursery business devolved jointly on the heirs of Daulatbai after her death in 1967. Therefore, the claim of the appellants that the they had exclusive rights over the nursery business does not hold good. [2014) .5 S.C.R ..

29. In light of the above, we find that the tenancy which was jointly held by her and her sons as admitted by them and recognized by the Trial Court in its judgment dated July 11, 1977, in Suit No. 5451 of 1963, is devolved upon her sons on her death by virtue of their being joint tenants and her heirs B under the Indian Succession Act. The original plaintiffs and defendant No.2 always treated and recognized the tenancy as a joint tenancy and the same was also recognized by BMC to be so. This fact attained finality when the finding of the Trial Court in Suit No. 5451 of 1963 that it was "no tonger in dispute c that after the demise of Bomanji, the Plaintiffs became the tenants in respect of the Suit Properties", was not challenged by any of the parties to the dispute. Moreover, there is nothing on record to show that the other sons or the original plaintiffs denied their stake in the same.

30. Regarding the purported "consent letter" dated October 25, 1961 and the subsequent transfer of tenancy to Dinshaw on September 18, 1981, as admitted by the BMC, we find the same to be illegal and lacking bona fide. In our opinion, in 1961 when the joint tenants were served with an eviction notice, then E for the sake of convenience only the "purported" letter of consent dated October 25, 1961 was issued. This letter does not have any validity in law and does not amount to surrender or relinquishment of rights of the original plaintiffs in the suit premises. In a subsequent letter dated February 3, 1962 F addressed by Daulatbai to the BMC, Daulatbai sought the transfer of rent receipts only, in the name of Dinshaw. The existence of the said letter is also admitted by the appellants and in the same letter Daulatbai has stated that the tenancy is a joint tenancy. Moreover, the "consent letter'' stands passively G revoked in light of the pleadings in Suit No. 5451 of 1963 where the heirs of Bomanji including Dinshaw have claimed themselves to be joint tenants in the suit premises and a specific finding of the Trial Court in the said suit is n.ot- challenged by any of the parties. We have furt_her noted that H Dinshaw with the other three sons Ardeshir, Jehangir and Homi GAIV DINSHAW IRANI v. TEHMTAN IRANI [PINAKI CHANDRA GHOSE, J.] also made a joint representation on August 4, 1975 before the BMC against the eviction notices on the basis of joint tenancy devolving upon them after the death of Bomanji. In light of the aforsesaid discussion, we are of the opinion that the appellants cannot take a stand contrary to what has been pleaded earlier in any legal proceedings. Furthermore, it must be noted any consent given was expressly revoked by letter dated December 22, 1980 addressed on behalf of the plaintiffs and admittedly received by BMC on February 2, 1981. The said letter also acted as a notice under Section 527 of the BMC Act. Thus, the tenancy rights were never transferred exclusively in the name c of Dinshaw.

31. In the light of the above, the transfer dated September 18, 1981 by the BMC in favour of Dinshaw Irani based on the letter dated October 25, 1961 is illegal and the reliance on the same by BMC is misplaced. We have taken note of the documents placed on record which clearly and undoubtedly support the above position. In a letter dated February 2, 1981, BMC has accepted the existence of letter dated December 22, 1980. The tenancy was transferred by BMC by means of a letter dated September 18, 1981 and the same was done without inviting any objections for considering the earlier letter 'of objection. Furthermore, objections were again raised by respondent No.5 by means of letter dated October 22, 1981 and the Senior Ward Officer by means of letter dated February 2, 1982 admitted that since earlier letter of objections was not received by the concerned officer, they wanted a copy of the same letter of objections to decide the case on merits. This letter created a belief that no transfer of tenancy had taken place which is further cemented by the letter dated February 25, 1982 addressed by the Dy. Municipal Commissioner, Shri. P.P. Kamdar, wherein he sought the letter of objections and stated that "on account of the documentary evidence produced by Shri Dinshaw Bomanji Irani, it is proposed to transfer the tenancy in his favour". In the said letter, BMC did not inform the plaintiffs about the transfer on September 18, 1981 and instead created l\ an ambiguous situation. These letters brought on record clearly indicate that no due process was followed wherein objections were sought after the transfer and no proper transfer was made. We have noticed and found that the High Court has correctly c held as follows : "15. 3rd question that arises is, whether giving the consent for transferring the tenancy amounts to relinquishment of rights by all those persons in the suit property in favour of defendant No.2. The answer to the 2nd question is that there is no relinquishment at all in favour of defendant No.2. The consent letter nowhere shows nor a single document is there with the defendant No. 2 to show that the signatory of the consent letter has relinquished, abandoned and given up their tenancy right in the property forever and permanently in favour of the defendant No.2. No such case is put forth by defendant No.2 at any stage. Further there is no reasons why all other signatories of the consent letter should shower all the benefits of tenancy right exclusively upon the defendant No.2. Nothing is brought on record to show that defendant No. 2 had given any privilege to the family or made any sacrifice for the family for which all of – them decided to compensate the defendant No.2 by transferring the tenancy. Therefore for all these reasons, it has to be held that transfer of tenancy sought to be achieved by consent letter was only for the sake of convenience. It was not relinquishment of right by other signatories in the suit property. Subsequent conduct of the plaintiff in protesting and apprehending, the delay of 20 years in effecting the transfer are all circumstances that strongly support the case of the plaintiffs and it also disproved the case of the defendant No.2. The plaintiffs have alleged malafides against the BMC in this regard. It is true that the malafides are to be specifically proved against the specific officer but it can be said that the transfer lacks bonafides. GAIV DINSHAW IRANI v. TEHMTAN !RANI [PINAKI CHANDRA GHOSE, J.] xxxxxx 18. The so called transfer of tenancy is dated 18th September 1981. The defendant No.2 contended that it is legal and proper transfer. The BMC contends that it is a bonafide transfer. But the letter dated 2.2.1982 (Exhibit 16) written by the Senior Ward Office, E-Ward to Shri P.H.lrani is very vital and crucial document. It falsifies both these contentions of the defendant No. 2 and the BMC. The subject of this letter (Exhibit 16) as written in it is "Transfer of rent receipt of C.S.No. 266/67 known as Irani Wadi". There is a reference to the letter of P.H.lrani addressed to Shri P.P.Kamdar about the objection for transfer of rent receipt in the name of Dhinshaw Bomanji Irani, i.e. defendant No. 2 and, the Sr.Ward Officer, who has written this reply, has stated that any objection does not appear to have been received by E Ward Office and, therefore, a request was made to P.H. Irani to send a copy of the same letter and, the purpose of asking for the copy is "so as to enable him to decide on the objections on merits." Then copy of this letter (Exhibit 16) was also sent to the Law Office. 19. This letter of 1982 fully supports and for!ifies the contentions raised by the learned Counsel Mr. Naik for the plaintiffs that the transfer of tenancy on 18th September 1981 is not bona fide because even as on 2.2.1982, as per the Sr.Ward Officer of the BMC, there was no transfer of tenancy and objections were to be decided on merits thereafter. I have no hesitation in accepting this submission of learned counsel Mr. Naik for the plaintiffs. Therefore, in this background, it has to be held that transfer of tenancy is suspicious and lacks bonafides." The High Court has correctly opined that the conduct of BMC lacked bona fide and same has not been challenged by the BMC being respondent No.6 before us. 32. In light of the same, we find force in the arguments put forth by the respondents in this regard. Thus, we hold that the . transfer of tenancy by BMC in the name of Dinshaw is ill.egal and void ab initio. Consequently, all the events that follow, being the surrender of part of the tenancy by Dinshaw to BMC in lieu B of the new plot allotted to him, are also rendered void ab initio. 33. Since the lease of the 1152 sq. mts executed by BMC . in favour of Dinshaw is rendered void ab initio, the construction by the appellants on the said plot is also illegal. The position as it exists today is that the remaining portions of Irani Wadi C have been acquired by the BMC; and on the other portion, the structure erected by Dinshaw exists and the portion being the residential bungalow occupied by the respondent$ may also be acquired by BMC in due course. 34. Considering the aforementioned changed circumstances, the High Court taking note of the subsequent events moulded the relief in the appeal under Section 96 of the. Code of Civil Procedure and the same has been challenged by the appellants before us. In ordinary course of litigation, the E rights of parties are crystallized on the date the suit is instituted and only the same set of facts must be considered. However., · in the interest of justice, a court including a court of appeal under Section 96 of the Code of Civil Procedure is not precluded from taking note of developments subsequent to the commencement F of the litigation, when such events have a dire~t bearing on the relief claimed by a party or one the entire purpose of the suit the Courts taking note of the same should" mould the relief accordingly. This rule is one of ancient vintage adopted by the Supreme Court of America in Pattetson vs. State of A/abama11 followed in Lachmeshwar Prasad Shukul vs Keshwar Lal G Choudhury12. The aforementioned cases were recognized by this Court in Pasupuleti Venkateswarlu vs. The Motor and 11. 294 us 600. H 12 AIR 1941 FC 5. 'GAIV DINSHAW IRANI v. TEHMTAN IRANI [PINA.Kl CHANDRA GHOSE, J.] General Traders13 wherein he stated that: " … 1 f a fact, arising after the lis has come to court and has a fundamental impact It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending \he rules of procedure, where no specific provision or fairplay is violated, with a view to promote substantial justice – subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial court. If the litiga_tion pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule are myriad. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the Court can, and in many cases must, take cautious cognisance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed." The abovementioned principle has been recognized in a catena of decisions. This Court by placing reliance on the Pasupuleti Venkateswarlu Case (supra), held in Ramesh Kumar vs. Kesha Ram14 that: 13. (1975) 1 sec no. 14 (1992) Supp 2 sec 623. "6. The normal rule is that in any litigation the rights and obligations of the parties are adjudicated upon as they obtain at the commencement of the lis. But this is subject to an exception. Wherever subsequent events of fact or law which have a material bearing on the entitlement of the parties to relief or on !'JSpects which bear on the moulding of the relief occur, the court is not precluded from taking a 'cautious cognizance' of the subsequent changes of fact and law to mould the relief." This was further followed in Lekh Raj vs. Muni Lal & Ors. 15. This Court in Sheshambal (dead) through LRs vs. Chelur Corporation Chelur Building & Ors. 16 while discussing the issue of taking cognizance of subsequent events held that: "19. To the same effect is the decision of this Court in Om Prakash Gupta case-where the. Court declared that although the ordinary rule of civil law is that the rights of the parties stand crystallised on the date of the institution of the suit yet the court has power to mould the relief in case the following three conditions are satisfied: (SCC p. 263, para 11) "11 …. (i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted; (ii) that taking note of such subs~quent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; and (iii) that such subsequent event is brought to the notice of the court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise." 1s. (2001) 2 sec 762. 16. (2010) 3 sec 470. GAIV DINSHAW IRANI v. TEHMTAN IRANI [PINAKI CHANDRA GHOSE, J.] This Court in Rajesh D. Darbar and Ors. vs. Narasinghro Krishnaji Kulkarni and Ors., 17 a matter regarding the elections in a registered society, held that the courts can mould relief accordingly taking note of subsequent events. Furthermore, in Beg Raj Singh vs. State of Uttar Pradesh & Ors18. while deciding on the issue of renewal of a mining lease held that: " …. A petitioner, though entitled to relief in law, may yet be denied relief in equity because of subsequent or intervening events i.e. the events between the commencement of litigation and the date of decision. The relief to which the petitioner is held entitled may have been rendered redundant by lapse of time or may have been rendered incapable of being granted by change in law. There may be other circumstances which render it inequitable to grant the petitioner any relief over the respondents because of the balance tilting against the petitioner on weighing inequities pitted against equities on the date of judgment." Even this Court while exercising its powers under Article 136 can take note of subsequent events (See: Bihar State Financial Corporation & Ors. vs. Chemicot India (P) Ltd. & Ors.~ , Parents Association of Students vs. M.A. Khan & Anr. 20, State of Uttar Pradesh & Ors. vs. Mahindra & Mahindra Ltd.21) 35. Thus, when the relief otherwise awardable on the date of commencement of the suit would become inappropriate in view of the changed ~ircumstances, the courts may mould the relief in accordance with th.e changed circumstances for shortening the litigation or to do complete justice. 17. (2003) 7 sec 219. 1 s. (2003) 1 sec 726. 19. (2006) 7 sec 293. 20. (2009) 2 sec 641. 21. (2011) 13 sec 77. (2014] 5 S.C.R. 36. The appellants during the pendency of the Civil Suits sought interim orders from the High Court and on the basis of order dated April 20, 1988 constructed the structure on the condition that rights of five flats were to be retained and they were subject to the outcome of the suit. In another order dated B October 16, 1991 the appellants were once again restrained from the creation of third party rights with respect to the five demarcated flats. The appellants being well aware of the risks and consequences, carried on with the construction. During the pendency of the First Appeal, it has been pointed out that the c appellants had given two of the five fl<Jts on leave and licence and continued to enjoy benefits from the same since 1997. The appellants are occupying two of the other nine flats and benefits from the remainder are being enjoyed by them. 37. In wake of the above, we are of the opinion that the D High Court taking note of the subsequent events has correctly moulded the relief and allotted five flats to the respondent Nos. 1 to 5 as per their share. 38. Considering the above and the submissions of E respondent no. 6 we find that the appellants cannot shift the onus on the BMC and the High Court has correctly held as. under: "53. As on today the remaining portion of Irani Wadi is: acquired by the BMC and they want to develop it. The other• portion is allotted to defendant No. 2 on lease. Considering, therefore, all the rights of the plaintiffs i.e. 6/ 15th right in the suit property and the right of the defendant No. 2, allotting five flats to the plaintiffs, rest of the 10 flats of the building are with the defendant No. 2 and/or his legal heirs, and the corporation developing the remaining property, is the only option left. Once the remaining portion of Irani Wadi is acquired by the corporation, the plaintiff will have to vacate the same today or tomorrow. Therefore in these circumstances the order that follows is the only order that will be just and proper in my humble opinion." . GAIV DINSHAW IRANI v. TEHMTAN IRANI [PINAKI CHANDRA GHOSE, J.] 39. The share of the respondent Nos.1 to 5 is claimed to A be 6/15th and the same is challenged. However, there are no specific submissions to the contrary in this regard and as it is a question of fact, we find that the High Court has correctly determined the same as the appellants are getting more than their share being heirs of only one brother juxtaposed to s respondent Nos. 1 to 5, who represent branches of two brothers. 40. For the reasons stated hereinabove, we find no merit in these appeals and the same are dismissed. Rajendra Prasad Appeals dismissed. c