Mohit S. Shah, C.J.@mdashThis appeal is directed against the judgment and order dated 18 April 2012 of the learned single Judge of this Court, in Notice of Motion No.577 of 2012 in Suit No.552 of 2012 filed by the appellant / plaintiff for obtaining possession of the Flat No.5/B situated on the 5th floor ( the suit premises ) in a building known as "Shree Vijayaa Bhavan" in Mumbai. The suit is filed on the basis that the appellant is the owner of the said flat by virtue of holding shares in the Unique Enterprise Co-operative Housing Society. The appellant filed the above numbered Notice of Motion for appointment of Court receiver and for a direction to the respondents / defendants to deposit interim compensation during pendency of the suit. At the first ad-interim hearing on 15 March 2012, the trial Court recorded the statement made on behalf of the defendants that until further orders, they will not dispose of, alienate, encumber, part with possession or create any third party rights in the suit flat. At the next ad-interim hearing on 18 April 2012, the appellant / plaintiff prayed for further direction regarding appointment of Court receiver and for deposit of interim compensation. The learned trial Judge however, in the impugned order dated 18 April 2012 observed that merely because the affidavits were filed it cannot be said that there was such grave urgency that the Court must appoint a Court receiver at this stage or direct that the defendants should pay sum as interim compensation or mesne profit. Learned trial Judge accordingly granted only ad-interim order in terms of prayer clause (b) restraining the defendants from disposing of, alienating, encumbering, parting with possession or creating any third party rights in the suit flat. Notice of Motion was ordered to be heard in due course by keeping open the contentions of the parties.
2. We may also note at this stage that the defendants have raised preliminary issues that the suit is barred by Law of Limitation and also that the Court has no jurisdiction to entertain and try the suit which can only be entertained and tried by the Court of Small Causes, at Mumbai. However, for the present it is not necessary to decide these issues as the same will be decided by the learned trial Judge at the hearing of Notice of Motion in which the above issues are sought to be raised as preliminary issues. In this appeal, we are only concerned with the limited question, whether during pendency of the Suit any orders are required to be passed at this stage for appointment of Court receiver or deposit of any interim compensation.
3. Mr.Seervai learned counsel for the appellant / plaintiff has submitted that in 1972, Unique Enterprise Co-operative Housing Society Limited allotted 500 shares to the appellant and in view of the allotment of the said shares, appellant / plaintiff is an owner of Flat no.5/B situated on the 5th floor of the building known as "Shree Vijayaa Bhavan" belonging to the above co-operative society. It is further stated that when some of the share certificates were misplaced, appellant made application to the society for duplicate share certificate and after issuing a public notice, the co-operative society issued duplicate share certificates to the appellant in the year 2004. Respondent No.1 is the brother of the appellant, respondent No.2 is the son of respondent No.1, respondent Nos.3 & 4 are the sons of the sister of appellant and respondent No.1. Since the said sister was a widow, the father of appellant and respondent No.1 had allowed the widowed sister with her children i.e. respondents No.3 & 4 to occupy the suit flat. It is submitted that however, the plaintiff had allowed respondents No.1 to 4 to occupy the suit flat only gratuitously and because they are relatives but that did not confer any right upon the respondents to occupy the suit flat.
4. Relying on the judgment dated 13 July 2011 of another Division Bench of this Court in Appeal No.1062 of 2010 (Geetanjali Minhas vs. Rishi Minhas & anr.) Mr.Seervai contended that the presumption of regularity attaches to a share certificate issued by a Co-operative Housing Society, and therefore the Court, atleast at the prima facie stage, will have to go according to the share certificate. It is therefore, submitted that at this stage the Court must proceed on the basis that the appellant / plaintiff is the absolute owner of the suit flat and the respondents have no right to occupy the same.
5. Mr.Seervai learned counsel for the appellant has also heavily relied on the decision dated 21 March 2012 of the Supreme Court in the case of Maria Margarida Sequeira Fernandes and others v/s Erasmo Jack de Sequeira (Dead) through L.Rs. (Civil Appeal No.2968 of 2012) arising out of SLP (C) No.15382 of 2009 in support of the contention that the possession of the respondent / defendants holds no good against the appellant / plaintiff who is the rightful owner of the suit flat. Relying on said decision it is contended that possession is important when there are no title documents and other relevant records before the Court, but, once the documents and records of title come before the Court, it is the title which has to be looked at first and possession cannot be considered in vacuum. If the title dispute is removed and the title is established in one or the other, then, in effect it becomes a suit for ejectment where the defendant must plead and prove why he should not be ejected. It is therefore, submitted that since the defendants do not have any title to the suit flat, they are liable to be ejected and therefore at this stage, the Court should appoint a Court receiver requiring the Court receiver to give out the suit flat on license and the license fees should be deposited in the Court. He submitted otherwise even after the suit is decreed, the appellant will not be able to recover mesne profits from the defendants. It is contended that in the Judgment referred above, the Supreme court has held that the Court should fix adhoc amount which the person continuing in possession must pay and the plaintiff may withdraw such amount after furnishing an undertaking. The Supreme Court has made it clear that should the Court pass any order for reimbursement it will be a charge upon the property.
6. Strong reliance is also placed on paragraphs No.90, 91 and 92 in the above decision and in the paragraph 101 laying down the principles, which read as under
Mesne Profits
90. Experience has shown that all kinds of pleadings are introduced and even false and fabricated documents are filed in civil cases because there is an inherent profit in continuation of possession. In a large number of cases, honest litigants suffer and dishonest litigants get undue benefit by grant or refusal of an injunction because the Courts do not critically examine pleadings and documents on record. In case while granting or refusing injunction, the Court properly considers pleadings and documents and takes the pragmatic view and grants appropriate mesne profits, then the inherent interest to continue frivolous litigation by unscrupulous litigants would be reduced to a large extent.
91. The Court while granting injunction should broadly take into consideration the prevailing market rentals in the locality for similar premises. Based on that, the Court should fix adhoc amount which the person continuing in possession must pay and on such payment, the plaintiff may withdraw after furnishing an undertaking and also making it clear that should the Court pass any order for reimbursement, it will be a charge upon the property.
92. The Court can also direct payment of a particular amount and for a differential, direct furnishing of a security by the person who wishes to continue in possession. If such amount, as may be fixed by the Court, is not paid as security, the Court may remove the person and appoint a receiver of the property or strike out the claim or defence. This is a very important exercise for balancing equities. Courts must carry out this exercise with extreme care and caution while keeping pragmatic realities in mind and make a proper order of granting mesne profit. This is the requirement of equity and justice.
101. Principles of law which emerge in this case are crystallized 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 justified 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 license 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.
7. On the other hand Mr.Dhond, learned counsel for the respondents has submitted that the appellant / plaintiff has no case, much less prima facie case. It is submitted that as far back as in the year 2001, Mr.G.P.Sippy, father of the appellant and respondent No.1 and grandfather of respondents No.2, 3 & 4 had written a letter dated 15 January 2001 to the Secretary of the Co-operative Housing Society when Mr.G.P.Sippy received letters from M/s Crowford Bayley & Co., advocates of the Society. In the said reply dated 15 January 2001, Mr.G.P.Sippy had clearly stated the following-
I would therefore like to clarify a few things before you take any further steps :
1. The entire 5th floor flat which consists of Flat no.5 (A & B) had been bought by me from my own funds for the residential purpose of my family members, which included my son Mr.Ramesh Sippy and my married daughter Mrs.Soni R.Uttamsingh who has since expired.
2. Mr.Ramesh Sippy was an active member in my film business at one time and therefore it was mutually decided among the family members to allot some Shares of my flat and therefore I gave permission to the Society to mark as ''B'' and issue separate Share Certificates in his name.
3. On inspection of the flat you will find that there is only one kitchen in the full flat and only one living hall which clearly explains that the whole 5th floor is only one flat which belongs to me.
4. We further state that all the payments towards cost of premises as well as maintenance charges till date have been made by me and no payments have been made by Mr.Ramesh Sippy, which clearly shows that he has got nothing to do with the title of the flat and was living only as a family member.
With reference to the above facts, it is interesting to mention that Mr.Ramesh Sippy had left my house about 10 years back to settle down in his own premises which he has bought some where else and is living there with his family. It is since that my two grandchildren, Shaan Uttamsingh and Sameer Uttamsingh are living with me after the death of my daughter Soni. I think it is therefore very surprising how all of a sudden he is now trying to make a claim on my fault and interfering with the living arrangement of my family. I am pained to learn that he has written letters to you which are misleading. I request the Society to cancel the name of Mr.Ramesh Sippy as a Share holder from your records which was done earlier at my request and finally treat the entire floor flat in my single name.
8. It is submitted that thereafter Mr.G.P.Sippy had made a Will dated 23 December 2003 bequeathing the entire residential premises on the 5th floor of ''Shree Vijaya Bhavan'' to Unique Enterprises Co-operative Housing Society, to defendants No.3 and 4 who are sons of the deceased widow and daughter of Mr.G.P.Sippy as per paragraph No.6 of the said will which reads as under-
I am the sole owner of residential premises situated on the 5th floor of Shree Vijaya Bhuvan, Unique Enterprises Co-operative Housing Society Ltd. Altamount Road, Mumbai-400 026 (hereinafter referred to as the ''said flat''). I hereby bequeath and devise all my rights, titles, claims and interest in the said flat at 5th floor of Shree Vijayaa Bhuvan including all my rights, titles, claims and interest in the Shares of Unique Enterprises Co-operative Housing Society Ltd., and all furniture and fixtures, equipments, household goods lying therein to my late daughter Sunita''s Sons ( My Grandson ) SHAAN UTTAMSINGH and SAMEER UTTAMSINGH equally. I have made nomination in respect of the said shares and said Flat in favour of my grandsons SHAAN UTTAMSINGH and SAMEER UTTAMSINGH with the said Unique Enterprises Co-operative Housing Society Ltd.
A copy of the said Will was submitted by Mrs.Mohini Sippy, mother of appellant and respondent no.1 and the grandmother of the other parties to the society as far back as on 15 January 2008 as will be apparent from the society''s reply dated 28 January 2008. It is submitted that inspite of the aforesaid reply dated 15 January 2001 from Mr.G.P.Sippy and inspite of the letter dated 20 February 2001, having been written by Unique Enterprise Co-operative Housing Society to the appellant / plaintiff, the plaintiff did not file any suit or any proceedings for getting possession of the suit flat. Even in the paragraph No.10 of the plaint, the appellant / plaintiff has referred to the Will propounded by the widow Mrs.Mohini Sippy, of Mr.G.P. Sippy who is the mother of appellant, respondent No.1 and grandmother of the other parties. The plaintiff admittedly came to know about the said Will upon reply of the Society dated 28 January 2008.
9. Mr. Dhond learned counsel for the respondents, states that in view of the disputes being raised about the ownership of the flat, which has been bequeathed by Mr.G.P.Sippy to respondents No.3 & 4, defendants will take out the appropriate proceedings for probating the Will dated 23 January 2003 executed by Mr.G.P.Sippy.
10. As regards the plaintiff''s claim of ownership of the flat, the same is denied not only on the basis of the reply dated 15 January 2001 at Exhibit ''I'' but also after referring to the fact that the plaintiff claims to have been given the suit flat in lieu of his dues upon retirement from partnership firm. However, the plaintiff retired from the said partnership firm in the year 1975 as per the Retirement deed dated 12 January 1975. It is clearly mentioned in the said Retirement deed that the plaintiff voluntarily retired from the partnership on 12 June 1975 and it was agreed that the controversies were settled between the parties and that the retiring partner i.e. plaintiff "will be paid the amounts due to him by the continuing partners on demand by retired partner". It is submitted that in view of the above clause in the deed of Retirement, it is clear that nothing done in the past was to be treated as consideration for retirement of the plaintiff from partnership firm and therefore the allotment of 500 shares in favour of the plaintiff in the year 1972 cannot be explained away by referring to the deed of Retirement dated 12 June 1975.
11. In rejoinder Mr.Seervai, has submitted that the Will not having been probated, the defendants cannot rely upon the said Will. Reliance has been placed by the appellant on the provisions of section 213 of The Indian Succession Act, 1925 in support of the contention that the defendants No.3 & 4 cannot assert any right as legatee, unless court of competent jurisdiction has granted probate of the Will under which defendants No.3 & 4 are claiming their right. Strong reliance has been placed on decision of a three-Judge Bench of Supreme Court in Mrs.Hem Nolini Judah (since deceased) and after her legal representative Mrs.Marlean Wilkinson, v. Mrs.Isolyne Sarojbashini Bose and others -A.I.R 1962 Supreme Court 1471. It has been held that-
........This section clearly creates a bar to the establishment of any right under will by an executor or a legatee unless probate or letters of administration of the will have been obtained.
...... The section does not say that no person can claim as a legatee or as an executor unless he obtains probate or letters of administration of the will under which he claims. What it says is that no right as an executor or legatee 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 have 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 the grant of probate or letters of administration. Admittedly that did not happen and therefore S.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 and in this very case. The right under the will which was claimed was that Mrs.Mitter became the owner of the entire house.
Mr.Seervai has also relied on a decision of Division Bench of this Court in
........What it says is that no right as an executor or legatee can be established in any Court unless probate or letters of administration have been obtained of the will under which the right is claimed and therefore, it is immaterial who seeks to establish the right as a legatee or an executor. Whosoever seeks to establish that right he cannot do so unless the will under which the right is claimed has resulted in the grant of probate or letters of administration.
30. Mr. Chagla submitted that the bar of Section 213 applied only to the establishment of a right and, therefore, only to the passing of a decree. It was no bar to the continuation of a suit. Only valuation had here been ordered and that was an order in continuation of the suit.
31. As we have held, no Court may apply the provisions of Sections 2 and 3 until it has determined and has declared who the sharers in a property are and what their share is. Such declaration by preliminary decree cannot be made until and unless the executors or heirs of deceased parties have established their rights to the property by obtaining probate or letters of administration.
12. On the other hand, Mr.Dhond learned counsel for the repondents has submitted that, all that section 213 provides is that no right as executor or legatee can be established in any Court of law, unless the Will has been probated but that does not preclude the Court from considering the claim of the legatee under a Will at the interim or ad interim stage. It is submitted that just as section 212 provides that a right to any part of property of a person who has died intestate cannot be established in any Court unless letters of administration have first been granted by a Court of competent jurisdiction, similarly section 213 provides that when a deceased has left a Will, the right of the executor or legatee cannot be established without the Court of competent jurisdiction having granted probate of the Will or letter of administration with the Will or copy of an authenticated copy of the Will annexed. Reliance has been placed by Mr.Dhond on a judgment of the Division Bench of this Court in the case of Ramniklal Amritlal Shah v. Bhupendra Impex Pvt. Ltd. and others -AIR 2001 Bombay 224 in support of the contention that though no decree can be passed without obtaining probate of a Will, the claim under the Will can certainly be relied upon at the interim or ad interim stage.
13. The defendants No.3 and 4 are claiming to be legatees under the Will dated 23 December 2003 of their grandfather Mr.G.P.Sippy. The Will was propounded by Mrs.Mohini Sippy the widow of Mr.G.P.Sippy and the grandmother of the defendant No.3 & 4. The question thus arises is whether the said Will can be permitted to be pressed in service by the respondents at this stage of the proceedings.
Section 213 of the Indian Succession Act needs to be noticed which reads as under -
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.
Plain reading of the section indicates that no party as an executor or legatee of a Will can establish any right in Court of law unless Court of competent jurisdiction has granted probate or Letters of Administration as the case may be in respect of the Will. The Apex Court in the case of Mrs.Hem Nolini Judah (supra) has held that, a party which wishes to establish right under a Will shall not be granted any relief unless the party has obtained probate or Letters of Administration. The Apex Court by referring to section 213 of the Indian Succession Act laid down that the said section creates a bar for establishment of any right by an executor or legatee unless a probate or Letters of Administration have been obtained. The Division Bench of this Court in the case of Vaman Ganpatrao (supra) held that a party could not claim any relief on the basis of rights flowing from Will unless a probate or letters of administration are obtained. However ratio of the aforesaid judgments cannot be pressed in service to advance a contention that even at interim stage the party is not entitled to refer to the fact that a Will has been executed. In both the judgments, as the facts therein will show, the legatee / executor were seeking a final relief based on a Will without there being any probate or Letters of Administration and such relief obviously could not be granted in view of the clear language of section 213 of Indian Succession Act. The position of law laid down in section 213 of the Act and the judgments referred to hereinabove cannot be stretched to import such a bar even at the hearing at interim stage of the proceedings. Such interpretation would mean that during the pendency of proceedings for probate or Letters of Administration the fact that there is a Will in existence cannot even be used at the interim stage in collateral proceedings. Submission advanced by Mr.Seervai based on the above judgment and section 213 of the Act cannot be applied to the facts of the present case. In fact Division Bench of this Court in the case of Ramniklal Amritlal Shah v. Bhupendra Impex Pvt. Ltd. and others -AIR 2001 Bombay 224, has made this position amply clear. The Division Bench after considering the provisions of section 213 of the Act held that, the bar u/s 213 is merely regarding "establishing" a right as an executor or legatee in an action and not for the purpose of seeking an interim relief. The observations of the Division Bench in paragraph no.7 read thus
7. The next contention of Mr. Doctor is that, even presuming that the suit is maintainable without production of the probate certificate, the appellant in his capacity as executor could not have sought any interlocutory relief. This is the argument which seem to have appealed to the learned Single Judge. The contention is that to claim interim relief the appellant had to establish, apart from the merits of the case, his character as the executor; this he could not do without production of a probate certificate by reason of section 213, even prima facie. Consequently, no interim relief could have been granted. In our considered view, this argument is fallacious. A party seeking interim relief in a suit is not required to ''establish'' his rights. Question of establishment of rights is relevant only for the purpose of the final decree in the suit and not at an Interlocutory stage. In order to seek or get interlocutory relief, all that a party has to show is that the suit is not frivolous, that there is a probability of his succeeding in the suit, apart from balance of convenience, with which we are not concerned here. As far as the argument of Mr. Doctor goes, we focus our attention on the "establishment" of the appellant''s character as an executor. In our view, it was not necessary for the appellant to ''establish'' his character as executor at this stage. It was necessary to show, prima facie, that he was the executor. This could have been done by the production of the Will of the deceased-original plaintiff and, unless upon a perusal thereof the Court came to the conclusion that there was no way the appellant could claim to be an executor under the Will, that would prima facie show the character of the appellant as an executor under the Will. The stage for the appellant to establish his right as an executor under the Will is yet to come in the trial if the suit goes on and. under the law as laid down by the Supreme Court, the appellant would fail unless he produces the probate certificate at the time when the Court finally decides the suit. At all intermittent stages, therefore, the insistence upon establishing the appellant''s right as an executor, was neither necessary nor required. It was sufficient that he showed that he had a prima facie right to that character.
We agree with the observations of the Division Bench that section 213 of the Indian Succession Act does not bar a party from relying on the Will at the interim stage of the proceedings.
14. Thus having considered all the rival submissions, we are of the view that, as held by a Division Bench of this Court in Ramniklal Amritlal Shah''s case AIR 2001 Bom.224, though right under a Will cannot be established without obtaining a probate, for the purposes of interlocutory proceedings claim can be made under a Will. We have also recorded the statement of the learned counsel for the respondents that the respondents No.3 and 4 are going to file a petition for probate within one month from today. In this view of the matter, it is open to the respondents to invoke their claim under the Will dated 23 December 2003 of Mr.G.P.Sippy.
15. From the documents on record, it would prima facie appear that Mr.G.P.Sippy had purchased the entire flat on the 5th floor of the building in question and for convenience the flat was bifurcated into two parts 5A and 5B. According to the case of the defendants, Mr.G.P.Sippy was thus, the absolute owner of the property and before his death he had executed a Will in favour of defendants No.3 and 4 bequeathing the entire flat on the 5th floor in favour of defendants No.3 and 4 who are the sons of the pre-deceased widowed daughter of Mr.G.P.Sippy who was thus, the sister of appellant and respondent No.1. Defendants No.3 and 4 are claiming to be legatees under the Will dated 23 December 2003 of their grandfather Mr.G.P.Sippy. The defendants therefore, have an arguable case. Ultimately it will be at trial of the suit that the trial Court will finally decide the rights of the parties. At this stage, it is not possible to accept appellant''s contention that the respondents particularly respondents No.3 & 4 do not have any claim in the suit flat whatsoever. It will be at the trial of the suit that the Court will finally determine the rights of the parties. At this stage, we do not find any warrant for passing any order for appointment of a Court receiver or for deposit of any amount by way of adhoc mesne profits. In the view that we are taking, the question about the preliminary issues raised by the respondents / defendants would not be required to be decided at this stage. No useful purpose will, therefore, be served by keeping Notice of Motion pending before the learned trial Judge. Accordingly Notice of Motion No.577 of 2012 is disposed of
(i) after recording statement of the learned counsel for the respondents that the respondents will be filing the petition for probate of the Will dated 23 December 2003 of Mr.G.P.Sippy, within one month from today, and
(ii) after confirming the ad-interim relief granted in terms of prayer (b) seeking interim injunction against the disposal etc. of the suit flat, granted by order dated 18 April 2012 as interim relief during pendency of Suit No.552 of 2012.
