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TMI Blog2009 (9) TMI 1022X X X X Extracts X X X X X X X X Extracts X X X X ..... it was acknowledged that the payment of the entire sale consideration of ₹ 5 lacs had been received by the original owner. The further case of the appellant is that as the sale in terms of the sale agreement dated 16.07.1981 was not completed within time, it gave a notice in 1991 to the vendor to complete the sale and as it was not completed, the appellant thereafter filed a suit for specific performance on 10.10.1991 which is still pending in the High Court. 4. However, the respondents filed a suit being R.A.E. Suit No.127/338 of 1991 against the appellant in the Court of Small Causes under the Bombay Rent Act, 1947 for possession of the suit premises on the ground of reasonable and bona fide requirement. After the amendment of the provisions of Maharashtra Rent Control Act, 1999 the previous suit of 1991 filed under the Bombay Rent Act, 1947 was withdrawn on 24.01.2003. Prior to that another suit was filed on 2.08.2001 by Saleh Hooseini Doctor and Niloofer Arun Sawhney, who are son and daughter respectively of the original owner, in the Small Causes Court against the appellant and it was registered as TE R Suit No.427/450 of 2001. 5. On 12.08.2005 the said suit was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lled or revoked. Relying on this legal position, the learned counsel for the appellant argued that on 8.5.2002 the probate was granted by the Bombay High Court to the husband of the testatrix and her husband was the sole executor. Since the probate has not been granted to other executors the plaintiffs have no right to file a suit without obtaining probate or letters of administration. Reliance was also placed on Section 232(c) and 234 of the Indian Succession Act. 10. No other point was urged before the High Court. 11. However, before this Court it was submitted on behalf of the appellant that three agreements were executed between the appellant and the owner of the flat in July 1981. The first one was entered into on 14.7.1981 whereby the erstwhile owner of the flat agreed to sell the same to the appellant for a sum of ₹ 5 lacs and the said agreement also acknowledged that the entire sale consideration of ₹ 5 lacs have been received by the erstwhile owner and in the said agreement it was stipulated that the appellant would be entitled to occupy the suit premises as tenants of the vendor till the suit for specific performance was decreed. It was also urged that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owever, since arguments have been advanced, this Court is considering the same. But we do not find much substance in those arguments for the following reasons. 16. Before this court the learned counsel for the appellant placed reliance on Clause 7 of the alleged agreement to sell dated 14.7.1981. 17. But in the suit which was filed by the appellant before the Bombay High Court for specific performance reliance was not placed on the agreement dated 14.7.1981. Reliance instead was placed on the substituted agreement dated 20.07.1981. The plaint which was filed by the appellant before the High Court was produced before this Court and in the plaint reference was made to Clause 5 of the agreement dated 20.07.1981. The said Clause 5 is set out below:- 5. The sale shall be completed within three months after the 31st day of January 1982 or at the Vendors option on or after 31st January, 1986 upon the Purchaser calling upon the Vendor to execute the conveyance in favour of the Purchaser and upon the Vendor procuring the income-tax clearance certificate under Section 230A of the income-tax Act and all other permissions and consents which may be required under law. 18. The m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, the claim of the appellant that the said deposit of ₹ 5 lacs was sale consideration money for the suit premises is contradicted by its averments in the suit and also from the material documents on record. 22. Apart from that, Clause 5 of the agreement dated 20.07.1981, on which the appellant s suit for specific performance is based, stipulates that the sale shall be completed within 3 months after 31.01.1983 or at the vendor s option on or after 31.01.1986. There is nothing on record to show that the appellant ever called upon the owner to complete the sale within 3 months from 31.01.1983. In fact the appellant did not take any step for 10 long years and it only became active after the suit was filed by the owner for eviction of the appellant in February 1991. The appellant for the first time wrote a letter dated 19.08.1991 calling upon the owner to complete the sale in terms of agreement dated 20.07.1981. To this letter a reply was sent by the owner on 26.08.1981 refusing to execute the contract in terms of the option of vendor under Clause 5 of the agreement dated 20.07.1981. These facts are admitted in paragraphs 5 to 7 of the plaint filed by the appellant in sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty or if already in possession continues in possession; (7) such taking of or continuance in possession should be in part performance of the contract; (8) the transferee should do some act in furtherance of the contract; and (9) he should have performed, or be willing to perform, his part of the contract. 27. The rationale of the equitable doctrine of part performance in English Law has been traced in Section 53-A by this Court in the case of Sardar Govindrao Mahadik and another Vs. Devi Sahai and others (1982) 1 SCC 237. 28. In paragraph 13, page 249 of the report while tracing the said equitable doctrine in the way it has been assimilated in Section 53-A of the Transfer of Property Act, the learned Judges held that the act or action relied upon as evidencing part performance must be of such nature and character that its existence would establish the contract and its implementation. The learned Judges further held that the crucial act or action must be of such a character as to be unequivocally referable to the contract as having been performed in performance of the contract. In support of the said conclusion, the learned Judges referred to an Old English decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces of this case, the doctrine of part performance under Section 53-A cannot be invoked. Therefore, there is no merit in the argument advanced on behalf of by the appellant on that score. 33. Argument advanced on behalf of the appellant on the competence of the respondents to file the suit out of which the present proceeding arises is also misconceived. 34. If we look at the recitals in paragraphs 2 and 3 of the Will of the original owner, it would appear that the testatrix appointed her husband Hooseini Salehbhoy Doctor to be the executor of the Will and failing him appointed her sons Saleh Doctor and Parvez Doctor and daughter Niloofer Sawhney to be the executors/executrix of the Will jointly as well as severally for all purposes. 35. Paragraph 3 of the Will is very relevant and is set out as below: I DECLARE that in the subsequent clauses of this my Will the expression my Executors/Trustees (Whenever the context permits shall mean and include the Executors/Executrix and Trustee or Trustees of this my Will for the time being whether original additional or substituted). (Emphasis supplied) 36. It is clear that whenever Hooseini Salehbhoy Doctor (husband) is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 grandchildren ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Since in the instant case, no partition has taken place, the plaintiffs status as coowners cannot be disputed by the tenant and it is nobody s case that there is a clash of interest between the respondent and coowners. 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 SCC 724. In para 10 of the said report, learned Judges referred to a decision of this Court in India Umbrella Mfg. Co. Vs. Bhagabandei Agarwalla (2004) 3 SCC 178, which in turn 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of right is enough for the executor or administrator to represent the estate in a legal proceeding. It 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 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. 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 rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se 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 Constitution and those observations, which we should always remember while exercising jurisdiction under Article 136, are as follows: 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 course of the arguments, that this, Court could have dismissed the appellant s application for special leave 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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