judgement:
Appeal No. 251 of 1982.
From the Judgment and Order dated 24.10.81 of the Disciplinary Committee of the Bar Council of India, Delhi in B.C.I.T R. Case No. 28 of 1979.
B.Singh, S.K.Gambhir and Davinder Singh for the Appellant.
R.P.Kapur and Rajiv Kapur for the Respondents.
The Judgment of the Court was delivered by 491 KULDIP SINGH, J.
D.S. Dalal was a practising advocate in Delhi.
The Bar Council of India by its order dated October 24, 1981, removed his name from the rolls of advocates of the Bar Council of Delhi and the sanad granted to him has been withdrawn.
This appeal under Section 30 of the is against the order of the Bar Council of India.
The State Bank of India lodged a complaint before the Bar Council of Delhi on September 4, 1978.
It was alleged in the complaint that the appellant along with two other advocates was practising under the name and style of "M/s Singh and Company" a firm of advocates and solicitors having their office at 2670, Subzi Mandi, Delhi.
It was alleged that the advocates were duly engaged by the Asaf Ali Road branch of the State Bank of India to file a recovery suit against M/s Delhi Flooring (Pvt) Ltd. for the recovery of Rs. 6,12,164.10.
"Singh and Company" (the firm) at that time was represented by Mr. D.S. Dalal, Mr. B. Singh and Ms V.Singh, Advocates, who were the partners of the said firm and were conducting cases for and on behalf of the firm.
It is the case of the complainant that in the year 1975, the file relating to the case which was to be filed against m/s Delhi Flooring (Pvt) Ltd., containing original and valuable documents, was handed over to the Firm by the complainant.
Thereafter, the Firm submitted a bill for filing the recovery suit which included the professional fees and other miscellaneous charges.
An amount of Rs. 11,475 was paid to the Firm on November 15, 1975, for filing the suit which included 1/3rd of the professional fee plus the miscellaneous charges.
This was acknowledged by the Firm under a receipt which was placed on the record.
Till December 19, 1975, the Firm did not inform the bank as to whether the suit was filed and if so what was the stage of the proceedings.
The bank wrote a letter dated December 05, 1975 to the Firm asking it to send a copy of the plaint before December 8, 1975, for signatures and verification failing which the bank would be compelled to withdraw the case from the firm.
At that stage Mr. B. Singh, Advocate, one of the partners of the Firm, in his letter dated December 15, 1975 informed the bank that the suit had been filed on December 15, 1975 in the High Court of Delhi.
Thereafter, the bank appears to have received no communication from the said advocates despite repeated reminders oral and other ,vise and the bank was kept in the dark about the fate of the case entrusted to the appellant and his associates.
492 As there was no response from the appellant, the bank engaged the services of Mr. R.P. Arora, Advocate, in order to find out as to what happened to the suit filed by the appellant and his associates on behalf of the bank.
R.P. Arora in his letter dated March 2, 1977, informed the bank that the suit which had been filed on December 15, 1975 was returned by the original Branch on January 31, 1976 to the Registry of the High Court with objections.
Mr. Arora in his letter dated March 31, 1977 further informed the bank that the entire suit paper book had been returned to Mr. B. Singh, Advocate on July 27, 1976 for removing the objection and thereafter the suit has not been re filed in the Registry of the High Court of Delhi.
The complainant, therefore, claimed that the appellant and his associates were guilty of serious professional misconduct as they failed to discharge their professional duties and responsibilities entrusted to them by the bank in its capacity as a client.
It was further claimed by the bank that the appellant and his associates had misappropriated the money paid to them for court fee, miscellaneous expenses and one third of the professional fee.
The complainant further stated that even the documents and other papers handed over to the appellant and his associates for filing the suit were not returned.
The complainant was originally registered with the Bar Council of Delhi.
On September 19, 1979, the Disciplinary Committee of the Bar Council of Delhi transferred the case to the Bar Council of India on the ground that the case had been pending for more than one year.
The Bar Council of India issued notices returnable on November 2, 1980.
On that date the respondents were not present and as such fresh notices were issued for December 20, 1980.
Mr. D.S. Dalal, though served was not present on December 20, 1980 and as such ex parte proceedings were ordered.
Notice to Mr. B. Singh, Advocate was returned with the postal endorsement "refused".
He was also ordered to be proceeded ex parte.
The case was posted for January 23, 1981 for the evidence of the complainant.
On that day the appellant moved an application for setting aside the ex parte order dated December 20, 1980.
The ex parte order was set aside conditionally permitting the appellant to participate in the proceedings and the case was adjourned to February 27, 1981.
On February 27, 1981, three witnesses were examined in the presence of the appellant and he cross examined them.
Thereafter the case was adjourned from time to time and finally fixed for evidence on August 22, 1981.
The appellant again sent an application for adjournment which was rejected.
The evidence was con 493 cluded, arguments were heard and the order reserved.
The Bar Council of India in the impugned order observed as under : "From a perusal of the order sheet of the Disciplinary Committee of the Bar Council of Delhi and also of the order sheet before us, it reveals that the respondents have throughout adopted the tactics of non cooperation purposely with a view to protract the proceedings unnecessarily '.
It may be mentioned that the complainant had given up its case against Ms. V. Singh, Advocate and as such the Bar Council of India ultimately did not proceed against her.
So far as Mr. B. Singh and Mr. D.S. Dalal are concerned, the case against them was proved beyond reasonable doubt and their names were removed from the rolls of advocates of Bar Council of Delhi and the sanads granted to them were ordered to be withdrawn.
The appeal before us is by D.S. Dalal.
We have been informed that Mr. B. Singh Advocate filed a review petition before the Bar Council of India on October 22,1989 which is still pending.
The Bar Council has also granted stay of the order dated October 24, 1981 with the result that Mr.B. Singh is continuing with his legal practise.
This appeal was argued before us by Mr.
B.Singh, Advocate.
It is not disputed before us that Mr.B.Singh and Mr. D.S.Dalal were the main partners of the Firm.
It is also not disputed that an amount of Rs.11,475 was received by these advocates towards the filing of the suit and further that the connected documents and papers were received by them.
B.Singh, learned counsel for the appellant primarily argued that the suit was filed by the appellant in the Delhi High Court on December 15, 19 '/5 but the record of the suit file was misplaced/lost by the High Court registry.
He further stated that by his letter dated August 20, 1977, he informed the bank about the suit file being not traceable and further that the record of the suit was to be re structured and refiled.
We have been taken through the copy of the letter dated August 20, 1977, written by Mr.B.Singh on behalf of the Firm to the Regional Manager, State Bank of India, Parliament Street, New Delhi.
The relevant paragraph is as under 494 "However, as already intimated two bank cases one of Delhi Flooring (P) Ltd. of Asaf Ali Road branch and second of J.M.A.I.E. Corporation of Jungpura branch filed by the undersigned in Delhi High Court have been misplaced/lost by High Court Registry and the record reconstruction petitions have already been given to the branches in March, 1976 itself.
In case the said suits have not already been got restored through some other learned counsel and the assistance the undersigned is required for the restoration/reconstruction then he is willing to cooperate fully without charging any fee and without insisting on the payment of his outstanding bills first.
The undersigned can work only when he is allowed to work in terms of his approved schedule of fees and the payment is made of all his bill, forthwith.
" The letter dated August 20, 1977, quoted above was not produced before the Bar Council of India.
It has been placed before us for the first time.
Apart from the ipse dixit of the appellant and Mr.B. Singh in the above letter, there is no evidence on the record to show that the suit file was misplaced or lost by the High Court Registry.
On the other hand, there is cogent and reliable evidence on the record to show that the Delhi High .
Court Registry returned back the papers to, Mr. B. Singh for removing the objections raised by it.
Mr. R.P. Arora, Advocate, appeared as a witness before the Bar Council of India.
The relevant part of his evidence is as under "I know the respondents in the case.
I was instructed by the complainant in case to find out as to whether the respondents had filed the suit against the Delhi Flooring (P) Ltd. in the High Court of Delhi which was entrusted by the complainant with the respondents.
Accordingly I went to Delhi High Court and made enquiries to find out whether such a suit has been filed.
On enquiry I came to know from the registers of the High Court that the suit had been filed on behalf of the complainant against Delhi Flooring (P) Ltd. on 15th December, 1975.
1 found from the records that the office has not registered the suit 495 because of certain objections raised by the office.
I also came to know that the entire suit filed had been returned to the respondents for complying with the objections and to refile the suit.
This was so returned on 27.7.76.
The enquiries that were made by me in the High Court office was during March 1977 and till that date the suit had not been refiled by the respondents." Mr. R.P. Arora, Advocate, after examining the records of the Delhi High Court had sent two reports to the State Bank of India.
In his report dated March 2, 1977 he stated as under : "As desired by you, to know the whereabouts of the above noted case, I contacted the concern clerk in the Original Branch of High Court of Delhi at New Delhi and also inspected the registers of the Original suits.
The above noted case was filed by M/s Singh & Co. on 15.12.1975, but there were certain objections by the original branch and on 31.1.76 the said case (file) was returned to the registree by the original branch.
The register of the registree in respect of the period from 31.1.1976 is not available and I shall let you know the upto date information, when the said case was returned to M/s. Singh & Co. within a short period.
" Subsequently in his report dated March 31, 1977, Mr. R.P.Arora, Advocate gave the following information to the bank: "I have enquired from the Original section of High Court of Delhi at New Delhi, that the file of the above stated case was returned to Shri B.Singh on 27.7.1976 as the said case was under objections.
So far he has not again filed the said case in High Court.
" Both the above quoted reports have been proved on the record of the Bar Council of India as evidence.
The Bar Council of India on appreciation of the evidence before it came to the conclusion that the charge against the appellant and Mr. B. Singh was proved beyond doubt.
The Bar Council of India concluded as under: 496 ".
After having gone through the evidence and the documents produced in the case carefully, we have come to the conclusion that the complainant had entrusted the suit to be filed against M/s Delhi Flooring (Pvt) Ltd. with the necessary papers and Rs. 11,400.74 for expenses etc.
to the respondent advocates.
It is also established that the respondents have filed the suit on 15.12.1975 with some objections deliberately and when the papers were returned by the High Court, they had not refiled the suit for a pretty long time and as is established tiff this day.
So, we have no hesitation to conclude that the respondents, have misappropriated the amount realised by them from the Bank without filing the suit in a proper manner.
" We have given our thoughtful consideration to the evidence on the record against the appellant.
We see no ground to interfere with the order of the Bar Council of India.
We agree with the reasoning and the conclusions reached therein.
We, therefore, dismiss the appeal.
No costs.
V.P.R. Appeal dismissed.

summary:
Respondent Bank lodged a complaint before the Bar Council of Delhi against the appellant Advocate, alleging that the appellant and two other Advocates of the M/s. Singh and Company, (a Firm of Advocates and solicitors) were guilty of serious professional misconduct, as they failed to discharge their.professional duties and responsibilities entrusted to them.
The case of the Bank was that in 1975, the Bank engaged the Firm to rile a recovery suit for the recovery of Rs. 6,12,164.10 from M/s. Delhi Flooring (P) Ltd. and handed over the case rile containing original and valuable documents.
The Firm submitted a bill for riling the recovery suit which included the professional fees and other miscellaneous charges.
On 15.11.1975 the Bank paid a sum of Rs. 11,475 which included 1/3rd of the professional fee and the miscellaneous charges.
It did not inform the Bank whether the suit was filed or not.
On 5.12.1975 the Bank wrote a letter to the Firm to send a copy of the plaint before 8.12.1975 or the Bank would be compelled to withdraw the case from the Firm.
On 15.12.1975, one of the partner of the firm informed the Bank the suit was filed on 15.12.1975 in the High Court.
Thereafter the Bank was kept in the dark about the fate of the case.
Hence the Bank engaged the services of one Mr. Arora, Advocate, in order to find out as to what happened to the suit.
On 23.1977, the Bank was informed by Mr. Arora, Advocate that 489 suit was filed on 15.12.1975 in the High Court and on 31.1.1976, it was returned by the Original Branch to the Registry with objections.
Mr. Arora, Advocate further informed the Bank on 31.3.1977 that the entire suit paper book was returned to Mr. Singh, Advocate of the Firm on 27.7.1976 for removing the object ions and thereafter the suit was not refiled.
The respondent Bank, therefore, claimed before the Bar Council of Delhi that the appellant and his associates misappropriated the money paid to them for court fee, miscellaneous expenses and one third of the professional fee.
The Disciplinary Committee of the Bar Council of Delhi transferred the case of the Bar Council of India, as the case was pending for more than one year.
The Bar Council of India issued notices returnable on 2.11.1980.
The appellant and his associates were not present on that date.
Therefore fresh notices were issued for 20.12.1980.
The appellant did not present on 20.12.1980and ex parte proceedings were ordered.
The case was posted for 23.1.1981 for the evidence of the complainant.
On 23.1.1981 the appellant moved an application for setting aside the ex parte order dated 20.12.1980, which was allowed and the case was adjourned to 27.2.1981.
The case was adjourned from time to time and finally fixed for evidence on 22.8.1981.
On 22.8.1981, the appellant 's application for adjournment was rejected.
The evidence was concluded, ar guments were heard and the order was reserved.
(The complainant had given up its case against one Ms. V.Singh, Advocate an associate of the appellant, and the Bar Council of India did not proceed against her.
One Mr. B.Singh, Advocate the other associate of the appellant, was also proceeded against.
Notice to him was returned with the postal endorsement "refused" and ex parte proceeding were ordered.) The Disciplinary Committee of the Bar Council of India held that the case against the appellant and his associate was proved beyond reasonable doubt.
Their names were removed from the rolls of Advocates of the Bar Council of Delhi and the Sanads granted to them were ordered to be withdrawn.
490 The appellant riled the appeal before this Court, while his associate, riled a review petition before the Bar Council of India, which was still pending.
The Bar Council of India granted him stay of the order dated 24.10.1981 in the review proceeding.
The appellant contended that the suit was filed by the appellant on 15.12.11975 but the record of the suit file was misplaced/lost by the Registry of the High Court; that by his letter dated 20.8.1977, he informed the Bank about the suit rile being not traceable; and that the record of the suit was to be structured and refiled.
Dismissing the appeal, this Court, HELD : 1.01.
The letter dated August 20,1977 was not produced, before the Bar Council of India.
It has been placed before this Court for the first time.
Apart from the ipse dixit of the appellant and Mr.
B.Singh in the said letter, there is no evidence on the record to show that the suit rile was misplaced or lost by the High Court Registry.
On the other hand, there is cogent and reliable evidence on the record to shows that the Delhi High Court Registry returned back the papers to, Mr. B. Singh for removing the objections raised by it.
[494D E] 1.02.
Both the reports of Mr.R.P.Arora, Advocate have been proved on the record of the Bar Council of India as evidence.
The Bar Council of India on appreciation of the evidence before it came to the conclusion that the charge against the appellant and Mr.
B.Singh was proved beyond doubt.
There is no ground to interfere with the order of the Bar Council of India.
[495H, 496D]


judgement:
Appeal No. 447 of 1982.
From the Judgment and Order dated 6.7.1981 of the Bombay High Court in W.P. No. 1967 of 1981.
475 B.K. Mehta and Vimal Dave for the Appellant.
U.R. Lalit, Mrs. J. Wad and Mrs. Tamali Wad for the Respondents.
The Judgment of the Court was delivered by VENKATACHALA, J.
In this appeal by special leave, the summary rejection by the Bombay High Court of an application filed, under Article 227 of the Constitution, for setting aside an eviction order made by the Court of Small Causes at Bombay the trial court, under clause (c) of sub section (1) of section 13 of the Bombay Rents Hotel and Lodging House Rates Control Act, 1947, to be referred to as 'the Act ' and upheld by the appellate Division Bench of the same court the appellate court, is questioned.
Sudarshan Building No. 2, Shivaji Park Road No.3, Bombay 28 is a storeyed building comprised of a large number of flats occupied by different tenants.
Flat No. 10 in the Second Floor of that building (to be referred to as 'the premises ') was in occupation of the appellant defendant eversince the year 1952 as its tenant under Kherodkar, the owner of the whole of that building.
In the year 1958, when Kherodkar mortgaged with possession the said building in favour of respondents plaintiffs, the defendant and other tenants in different flats of that building became tenants under plaintiffs (usufructuary mortgages) and continued as such tenants on payment of monthly rents to them.
But, by a quit notice dated July 3, 1967 the plaintiffs determined the monthly tenancy of the defendant respecting the premises in his occupation and sought to recover from him the possession of the premises by instituting a suit in the court of Small Causes at Bombay on the very ground on which his tenancy was terminated, that is, that the defendant had been guilty of conduct which was a nuisance or annoyance to the adjoining or neighbouring occupiers.
That was a ground which entitled the landlord under clause (c) of sub section (1) of section 13 of the Act, to recover possession of the premises from the tenant.
That ground had been based on plaintiffs ' allegations of threats of murder posed by the defendant to the neighbouring occupiers; abuses hurled at neighbouring occupiers by his sons; whistling at neighbouring occupiers by the defendant 's sons; spitting against the walls and in the common staircase area of the building by the defendant 's sons; obstructions offered by the defendant, his wife, sons and servants to the neighbouring occupiers to reach the common terrace of the building by a staircase and removal by 476 them of aerials of radios of the tenants in the other flats of the building,, which had been fixed above the common terrace; obstructions offered to the landlords and their workers to inspect the common terrace; unauthorised errection by the defendant in the common terrace area certain machinery and running it during nights causing disturbance to sleep of neighbouring occupiers and also unauthorised used by the defendant of the water in common over head storage tanks in the common terrace area for his business purposes depriving other tenants of the normal use of such water.
The defendant, however, resisted the claim for recovery of possession of the premises, made.
in that suit filing a written statement thereto, denying the allegations of nuisance and annoyance levelled against him, his wife, sons and servants and urging that those allegations, even if established, did not constitute the ground of nuisance or annoyance envisaged under clause (c) of sub section (1) of section 13 of the Act, as a ground for recovery of possession of premises from a tenent.
It was also urged therein by the defendant that the ground for recovery of possession of premises from a tenant under clause (c) thereof was not available to plaintiffs, for they being usufructuary mortgagees of the building were not 'landlord ' within the meaning of that expression in sub section (1) of section 13 of the Act as would entitle them to recover possession of premises from a tenant.
In so far as the common terrace, the defendant 's unauthorised use of which was complained of by the plaintiffs, the defendant urged therein that he being a tenant of that terrace in addition to the premises, was entitled to put it for the use of his choice and prevent other tenants in the building from its common use.
It was further urged therein that the suit having been instituted by the plaintiffs to pressurise the defendant and extract from him higher rent for the premises was vitiated by malafides.
The trial court which tried the suit, on an appraisal of the oral and documentary evidence adduced by the parties, recorded its findings on issues arising for its determination in that suit in favour of the plaintiffs and against the defendant.
Consequently, it decreed the suit of the plaintiffs for recovery of possession of the premises from the defendant.
The appellate court before which the decree of the trial court was appealed against by the defendant, on its re appraisal of the evidence, affirmed the findings of the trial court and dismissed the appeal.
Feeling aggrieved by the decree of the trial court and its affirmation by the appellate court, the defendant impugned the same by filing a writ petition under Article 227 of the Constitution before the High Court of Bombay, but that writ petition was rejected by the High Court in limine.
The defendant has questioned 477 in this appeal by special leave, the correctness of the decree of the trial court made against him for recovery of possession of the premises by the plaintiff, the decree of the appellate court affirming the decree of the. trial court and the order of the High Court rejecting his writ petition.
In support of the appeal, three contentions were raised before us by Shri B.K. Mehta, the learned senior counsel for the appellant defendant.
But those contentions were strongly refuted by Shri U.R. Lalit, the learned senior counsel for respondents plaintiffs.
Taking into consideration the serious nature of the contest, we shall examine the merit in every one of the contentions, rather in detail.
First of the said contentions which was urged as a legal contention by the learned counsel for the appellant, was that an usufructuary mortgagee was not entitled to recover possession of a premises from a tenant under section 13(1) (c) of the Act pleading the ground that the tenant or any person residing with him in such premises was guilty of conduct which is a nuisance or annoyance to the adjoining and neighbouring occupiers, when the expression 'Land lord ' in section 13 of the Act cannot be said to include an usufructuary mortgagee.
Provisions in the Act in so far as they become necessary for a proper appreciation of the said contention could be excerpted at the outset.
Section 13(1) of the Act "13.
When landlord may recover possession.
(1) Notwithstanding anything contained in this Act a landlord shall be entitled to recover possession of any premises if the Court is satisfied (a) (b) (c) that the tenant or any person residing with the tenant has been guilty of conduct which is a nuisance or annoyance to the adjoining or neighbouring occupiers. . (d) 478 (e) (f) (g) that the premises are reasonably and bona fide required by the landlord for occupation by himself or by any person for whose benefit the premises are held (or where the landlord is a trustee of public charitable trust that the premises are required for occupation for the purposes of the trust; or) (h) (hh) (hhh) (2) No decree for eviction shall be passed on the ground specified in clause (g) of sub section (1) if the Court is satisfied that, having regard to all the circumstances of the case including the question whether other reasonable accommodation is available for the land lord or the tenant, greater hardship would be caused by passing the decree than by refusing to pass it.
Where the court is satisfied that no hardship would be caused either to the tenant or to the landlord by passing the decree in respect of a part of the premises, the Court shall pass the decree in respect of such part only.
Explanation For the purposes of clause (g) of subsection (1), (a) (b) the expression "landlord" shall not include a rentfarmer or rent collector or estate manager; Section 5(3) of the Act : "5.
Definitions.
In this Act unless there is anything repugnant to the subject or context, 479 (3) "landlord" means any person who is for the time being, receiving, or entitled to receive, rent in respect of any premises whether on his own account or on account, or on behalf, or for the benefit of any other person or as a trustee, guardian, or receiver for any other person or who would so receive the rent or be entitled to receive the rent if the premises were let to a tenant, and includes any person not being a tenant who from time to time derives title under a landlord and further includes in respect of his sub tenant, a tenant who has sub let any premises; (and also includes in respect of a licensee deemed to be a tenant by section 15A, the licensor who has given such licence;)" Whether the expression 'landlord ' in sub section (1) of section 13 of the Act cannot be said to include 'an usufructuary mortgagee ' where the tenanted premises is the subject of usufructuary mortgage, is the question which requires our answer in the light of the provisions of the Act.
As could be seen from the definition of 'usufructuary mortgage ' in clause (d) of section 58 of the the T.P. Act, an usufructuary mortgagee is a transferee of a right to possession of the mortgaged property and the right to receive the rents and profits accruing from such property.
When a lessor of a leased property creates an usufructuary mortgage in respect of such property what he transfers under section 109 of the T.P. Act as a mortgagor in favour of the usufructuary mortgagee includes his right to possession of such property and the right to receive the rents and profits accruing from it.
Thus section 109 of the T.P. Act entitles the usufructuary mortgagee from the lessor, as against the lessee, for all rights which the lessor had against such lessee.
From this, it follows that tenanted premises, if is mortgage by the landlord by way of usufructuary mortgage, the usufructuary mortgagee thereunder would become entitled to receive the rents and profits accruing from such property in his own right and on his own account.
Clause (3) of section 5 of the Act which contains the definition of 'landlord ', states that under the Act 'landlord ' means any person who is for the time being receiving or entitled to receive rent in respect of any premises on his own account and includes any person 480 not being a tenant who from time to time derives title under a landlord, unless there is anything repugnant to the subject or context.
There, comes section 13(1) of the Act entitling landlord to recover possession of any premises from his tenant on the ground envisaged under clause (c) thereof, that is, the tenant or any person residing with the tenant being guilty of conduct which is a nuisance or annoyance to the adjoining or neighbouring occupiers, and that section 13(1) contains nothing repugnant in its subject or context which would disentitle an usufructuary mortgagee, as a landlord of the tenanted premises to recover its possession from the tenant on the said ground.
Further, if the legislative intendment was that the usufructuary mortgagee was not to be regarded as a landlord for recovering possession of a tenanted premises on any of the grounds envisaged under sub section (1) of section 13 of the Act, it would not have omitted to state so, expressly, particularly when it had been so stated in clause (b) of the explanation to sub section (2) of section 13 of the Act, as regards 'rent farmer ' or a 'rent collector ' or an 'estate manager ' who would have been otherwise a landlord entitled to recover possession of a tenanted premises from the tenant under clause (g) of sub section (1) of that section.
Indeed, the decision of this Court in S.B. Abdul Azeez (By Lrs.) vs Af.
Maniyappa Setty, and Others, ; , throws full light on the question under consideration, for the question decided there, is virtually identical.
That question was whether an usufructuary mortgagee was entitled to recover possession of a premises under section 21(1) proviso (h) of the Karnataka Rent Control Act, 1961 the K.R.C. Act, as a landlord envisaged therein.
In deciding that question with reference to the expression 'landlord ' found in section 21(1) proviso (h) of K.R.C. Act, the definition of that expression 'landlord ' found in section 3(h) of the K.R.C. Act and the explanation to clause (4) found in section 21(1) proviso of K. R.C. Act excluding a rent farmer, a rent collector and an estate manager from being a landlord for recovery of possession of a premises from a tenant on the ground of bona fide use and occupation and certain provisions of the T.P. Act, this Court stated thus: "It, therefore, follows that the Legislature if wanted that a mortgagee with possession should not be equated with the owner of the premises and should be denied the benefit of seeking a tenant 's eviction under section 21(1) 481 (h), the legislature would have undoubtedly categorised a mortgagee with possession also as one of the excluded class of landlords for the purposes of section 21(1) (h) of the Act.
Obviously therefore the legislature has not wanted a mortgagee with possession to be excluded of his right to seek eviction of a tenant from the mortgaged premises under section 21(1) (h) of the Act.
Thirdly, a mortgagee with possession is enjoined by section 76(a) of the to manage the property as a man of ordinary prudence would manage it if it were his own.
As such the mortgagee 's acts, if prudently done, could bind the mortgagor even after the redemption of the mortgage.
A mortgagee with possession, steps into the shoes of the mortgagor and becomes entitled to all the rights of the mortgagor and the only right left with the mortgagor is the right of redemption.
A mortgagee with possession is entitled to be in possession of the mortgage property as long as it is not redeemed.
If the mortgagee with possession leases back the property to the mortgagor, he acquires the rights of a lessor and is entitled to enforce the terms of the lease against the mortgagor (vide Mathura lal vs Keshar Bai,).
On account of all these factors there can be no doubt that a mortgagee with possession stands very differently from other kinds of landlords en visaged under section 3(h) of the Act.
He is therefore entitled, as much as the owner himself, to seek recovery of possession of the leased premises from a tenant for his own bona fide requirements of use.
" What is said by this Court in the above decision as regards the right of the usufructuary mortgagee to recover possession of a premises from tenant as a landlord envisaged therein under section 21(1) proviso (h), in our view, must necessarily apply to a landlord envisaged in section 13(1) of the Act.
It would be so because (i) that the expression 'landlord ' in section 13(1) (C) of the Act is not used in a context different from the one in which the expression 'landlord is used in section 21(1) proviso (h) of the K.R.C. Act, (ii) that the definition of 'landlord ' and explanation as to is not the 'landlord ' are common to both the Acts and (iii) that the legal position of an usufructuary mortgagee under the K.R.C. Act is not different 482 from the legal position of an usufructuary mortgagee under the Act since the rights and liabilities of an usufructuary mortgagee concerned in both Acts are governed by the provisions of T.P. Act.
Thus it becomes clear that the expression 'landlord ' in sub section (1) of section 13 of the Act includes an usufructuary mortgagee where the tenanted premises is the subject of usufructuary mortgage.
The decision in Nanalal Girdharlal and Anr.
vs Gulamnabi Jamalbhai Motorwala and Ors., 1972 (13) Gujarat Law Reporter 880 relied upon by leaned counsel for the appellant in support of the first contention, does not lend such support.
One of the questions with which the Gujarat High Court was concerned in that decision was whether one out of several co owners was entitled to maintain a suit for eviction against the tenant under the Act.
In considering that question the Court took the view that the landlord referred to in section 12 and section 13(1) of the Act was not a landlord as defined in section 5(3) but was a landlord who was entitled to possession of the premises on a determination of the tenancy under the ordinary law of landlord and tenant, that is, under section 106 of the T.P. Act.
It is this view which was sought to be made use of by learned counsel for the appellant to contend that the landlord under section 13(1) of the Act cannot be an usufructuary mortgagee.
But, the said view of the High Court that a landlord referred to under sections 12 and 13(1) of the Act is a landlord who is entitled to possession of premises on determination of the tenancy under section 106 of the T.P. Act, itself cannot now be good law because of the nine Judges ' Bench decision of this Court in V. Dhanapal Chettiar vs Yesodal Ammal, ; , where the scope of the provisions of sections 5, 12 and 13 of the Act in the context of section 106 of the T.P. Act is considered and held otherwise, thus : "Adverting to the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 it would be found from the definition of section 5 that any person remaining in the building after the determination of the lease is a tenant within the meaning of clause (11).
Section 12 of the Bombay Act says that the landlord shall not be entitled to the recovery of possession of any premises so as long as the conditions mentioned in sub section (1) are fulfilled nor any suit for recovery of possession shall be 483 instituted by a landlord against a tenant on the happening of the event mentioned in sub section (2) until the expiration of one month next after the notice is served on the tenant in the manner provided in section 106 of the , as required by the said sub section.
Section 13 provides that a landlord may recover possession on certain grounds.
Is it not plain then that on the happenings of the events or on the fulfilment of the conditions mentioned in sections 12 and 13 etc.
the landlord becomes entitled to recover possession from the tenant, otherwise not.
It will bear repetition to say that under the in order to entitle the landlord to recover possession determination of the lease is necessary as during its continuance he could not recover possession while under the State Rent Act the landlord becomes entitled to recover possession only on the fulfilment of the rigour of law provided therein.
Otherwise not.
He cannot recover possession merely by determination of tenancy.
Nor can he be stopped from doing so on the ground that he has not terminated the contractual tenancy".
The first contention urged in support of the appeal that an usufructuary mortgagee of tenanted premises cannot file a suit for recovery of its possession from the tenant under section 13(1) (c) of the Act does not, therefore, merit acceptance and is rejected.
The second contention of the learned counsel for the appellant defendant relates of correctness of the findings of the appellate court recorded respecting acts of nuisance and annoyance constituting the ground for recovery of possession of premises by the plaintiffs from the defendants.
According to the learned counsel, those findings, not having been based on the evidence on record, become unsustainable.
We are unable to find any merit in this contention.
The findings as to the acts of nuisance id annoyance attributable to the defendant and the persons who were residing in the premises are (i) that the defendant, who was a tenant in a premises (tenament) in the storeyed building, erected a Rangeen Min (Textile Printing Mill) on the terrace of the storeyed and ran it during nights so as to make the occupiers of the adjoining and neighbouring 484 tenaments in the storeyed, residential building suffer the vibrations and noise in the building arising on account of the running of the Mill and loose their quiet and sleep during night; (ii) that the defendant unauthorisedly utilised the water stored in the common over head tanks on the terrace, meant for domestic use of all the occupiers of the tenaments in the building, for running his run Rangeen Mill a non domestic purpose; (iii) that the defendant and the persons residing with him in the premises had often removed the radio aerials and T.V. antenas of the occupiers of the adjoining and neighbouring tenaments which had been fixed above the common terrace of the building; (iv) that the defendant and the persons residing in the premises were wrongly preventing the plaintiffs and their workers in reaching the common terrace for repairs of radio aerials, T.V. antenas, telephone lines and the like of the occupiers of the neighbouring tenaments in the building by blocking its staircase.
These finding of the lower appellate court, it cannot be said, are not supported by the evidence on record of the case.
In fact, some of the findings are, to a great extent, based on the facts which were admitted by the defendant himself.
Besides, the findings receive support from the evidence given in the case by the occupiers of the adjoining and neighbouring tenaments of the same building.
The defendant and the persons residing with him in the premises have committed some of the acts respecting which the aforesaid findings are recorded by the appellate court because of the defendant 's unfounded claim that he had taken the terrace on lease independently of the premises in which he was an occupant and as such was not only entitled to its exclusive use but also had the right to prevent the neighbouring occupiers of the tenaments in the building from its use.
The trial Court as well as the appellate court, on examining the claim put forth by the defendant, have found on the basis of material on record, that it was a false claim and the defendant had not taken on lease the disputed terrace, as was pleaded by him.
Therefore, as seen from the judgment of the appellate court, its findings in relation to the aforesaid acts of the defendant and persons residing with him in the premises are based on appreciation of ample evidence that was on record and the same cannot be said to have been based on no evidence, or even improper appreciation of evidence as contended for.
Thus, we are unable to see any justification in this Appeal by Special Leave, to interfere with such findings of facts recorded by the appellate court virtually affirming the findings of fact 485 recorded by the trial court.
The second contention raised in support of the appeal must, therefore, fail.
It is accordingly rejected.
The third and the last contention urged in support of the appeal was that the acts found to have been committed by the appellant defendant and the persons residing with him in the premises, even if are true, they could not have been regarded as acts amounting to nuisance or annoyance forming a ground for recovery of possession of a premises from the tenant under section 13(1) (c) of the Act.
In support of the said contention, reliance was placed on decisions of the Gujarat High Court in Dhabhi Lalji Kalidas vs Ramniklal Somchand Mehta, 1975 (16) Gujarat Law Reporter, 824 and Gaurishanker @ Babulal Govindji vs Bhikhalal Chhaganlal & Ors., 1977 (18) Gujarat Law Reporter, 805.
This contention, in our view, again, is devoid of merit.
The decisions relied upon also do not support the contention.
There are no statutory definitions of 'nuisance ' or 'annoyance ' which under section 13(1) (c) of the Act constitute a ground for recovery of possession by landlord of a premises in the occupation of tenant.
In the case with which we are concerned, the acts of nuisance or annoyance complained of are committed by the tenant and persons residing with him in the premises which is a tenament (flat) lying amidst other tenaments (flats) of the one and same storeyed building.
The acts of the defendant or persons residing with him in the tenanted premises which are found as acts causing nuisance or annoyance to adjoining or neighbouring occupiers, cannot fall short of being acts of nuisance or annoyance if regard is had to their nature, intensity and duration and the consequential ill effects which might have been produced by them on the normal living of such occupiers.
Further, when the particular acts of the defendant or persons residing with him in the premises (flat) of a storeyed building, said to have caused nuisance or annoyance to the occupiers of adjoining or neighbouring occupiers of tenaments (flats) in the very same storeyed building are seen, they cannot make us think that they were not clear acts of nuisance or annoyance envisaged under section 13(1) (c) of the Act because of the intolerable inconveniences, sufferings, humiliations which must have been caused to the adjoining or neighbouring occupiers, due regard being given to the locality of the storeyed building, the class of the people living in the tenAments of the storeyed building and the nature of living to which they 486 were accustomed.
Even otherwise the acts, said to have been committed by the defendant and persons residing with him in the premises when are, as stated, found by the fact finding courts to have amounted to acts of nuisance or annoyance entitling the plaintiff under section 13(1) (c) of the Act to recover possession of the premises from the defendant and when the High Court has refused to interfere with such fInding in exercise of its writ jurisdiction there could be no justification whatever for us to interfere with the same in this appeal under Article 136 of the Constitution.
The decision in Dhabhi Lalji Kalidas vs Ramniklal Somchand Mehta, (supra) relied upon to support the third contention is a case decided by Single Judge of the Gujarat High Court.
The learned Single Judge who examined in that case the question whether the use by washerman, who was tenant of a premises, some chemicals for washing clothes in a tenanted premises could have amounted to act of nuisance or annoyance to adjoining or neighbouring occupiers as entitling the landlord to recover possession of tenanted premises under section 13(1) (c) of the Act, held that the ill effects produced on adjoining or neighbouring occupants cannot be found out in the absence of evidence of chemical experts and therefore, the ground for recovery of possession of tenanted premises under section 13(1) (c) of the Act, was unavailable.
We are unable to see, how this decision could help the contention of the appellant under our considera tion.
The decision in Gaurishanker (supra) relied upon to support the third contention is again that of a Single Judge of the Gujarat High Court.
It was a case where the learned Judge was concerned with the question whether a quarrel in the household of a tenant could be a ground for eviction of a tenant under section 13(1) (c) of the Act.
The learned Judge, who held that quarrels in a domestic household of a tenant can never constitute a nuisance or annoyance within section 13(1) (c) of the Act pointed out that nuisance or annoyance contemplated under section 13(1) (c) of the Act as ground for eviction of tenant from a premises must be of a serious character in nature, intensity and frequency.
We do, not see how this decision could advance the contention of the appellant now under consideration.
In fact, in the case on hand, we have held that the courts below, having regard to the nature, intensity and duration of the acts complained of and their HI effects on the normal living of adjoining or neighbouring occupiers have rightly found them as acts of nuisance or annoyance envisaged under section 13(1) (c) of the Act.
487 Hence, the third and the last contention urged in support of the appeal, being also devoid of merit, is rejected.
In the result, this Appeal fails and is dismissed with costs.
The advocate 's fee payable by the appellant defendant to respondents plaintiffs is fixed at Rs. 2,000.
T.N.A. Appeal dismissed.

dataset_name: IN-Abs

summary:
The appellant defendant was in occupation of a flat as its tenant in a storeyed building comprised of a large number of flats occupied by different tenants.
When the owner of that building mortgaged with possession the said building in favour of respondents plaintiffs, the appellant defendant and other tenants in different flats of that building became tenants under respondents plaintiffs (usufructuary mortgagees) and continued as such tenants on payment of monthly rents to them.
But by a quit notice dated July 3, 1967 the respondents plaintiffs determined the monthly tenancy of the appellant respecting the premises in his occupation and sought to recover from him the possession of the premises by instituting a suit in the court of Small Causes at Bombay on the very ground on which his tenancy was terminated, that is, that the defendant had been guilty of conduct which was a nuisance or annoyance to the adjoining or neighbouring occupiers, under clause (c) of sub section (1) of Section 13 of the Bombay Rents Hotel and Lodging House Rates Control Act.
The trial court, on an appraisal of the oral and documentary evidence adduced by the parties, recorded its findings on issues in favour 471 472 of the respondents plaintiffs.
Consequently it decreed the suit of the respondent plaintiffs for recovery of possession of the premises.
The appellate court before which the decree of the trial court was appealed against by the appellant defendant, on its re appraisal of the evidence, affirmed the findings of the trial court and dismissed the appeal.
The findings as to the acts of nuisance and annoyance attributable to the appellant and the persons who were residing in the premises are (i) that the appellant erected a Textile Printing Mill on the terrace of the storeyed building and ran it during nights so as to make the occupiers of the adjoining and neighbouring tenements suffer the vibrations and noise in the building arising on account of the running of the Mill and loose their quiet and sleep during nights; (ii) that he unauthorisedly utilised the water stored.
in the common over head tanks on the terrace, meant for domestic use of all the occupiers of the tenements in the building, for running his Mill a non domestic purpose; (iii) that the appellant and the persons residing with him in the premises had often removed the radio aerials and T.V. antenas of the occupiers of the adjoining and neighbouring tenaments which had been fixed above the common terrace of the building , (iv) that they were wrongly preventing the respondents plaintiffs and their workers in reaching the common terrace for repairs of radio aerials, T.V. antenas, telephone lines and the like of the occupiers of the neighbouring tenaments in the building by blocking its staircase.
Feeling aggrieved by the decree of the trial court and its affirmation by the appellate court, the defendant impugned the same by filing a writ petition under Article 227 of the Constitution before the High Court of Bombay, but that writ petition was rejected in limine.
In appeal to this Court it was contended on behalf of the appellants (a) that an usufructuary mortgage of tenanted premises cannot rile a suit for recovery of its possession from the tenant under section 13(1) (c) of the Act; (b) the findings of the appellate court recorded respecting acts of nuisance and annoyance not having been based on the evidence on record, become unsustainable; (c) the acts found to have been committed by the appellant defendant and the persons residing with him in the premises, even if are true, they could not have been regarded as acts amounting to nuisance or annoyance under section 13(1) (c) of the Act.
Dismissing the appeal, this Court, 473 HELD 1.
The expression 'landlord ' in sub section (1) of section 13 of ' the Act includes an usufructuary mortgagee where the tenanted premises is the subject of usufructuary mortgage.
Section 13(1) contains nothing repugnant in its subject or context which would disentitle an usufructuary mortgagee, as a landlord of the tenanted premises to recover its possession from the tenant on the ground envisaged under clause (c).
[482A, 480B] S.B. Abdul Azeez (By Lrs.) vs M. Maniyappa Setty and Ors., ; , relied on.
V. Dhanapal Chettiar vs Yesodal Ammal, A.I.R. 1979 S.C. 1745, referred to.
Nanalal Girdharlal and Anr.
vs Gulamnabi Jamalbhai Motorwala and Ors., 1972 (13) Gujrat law Reporter 880, referred to as no longer good law.
1.1 Under the definition of 'usufructuary mortgage ' in clause (d) of Section 58 of the an usufructuary mortgagee is a transfer of a right to possession of the mortgaged property and the right to receive the rents and profits accruing from such property.
When a lessor of a leased property creates an usufructuary mortgage in respect of such property what he transfers under Section 109 of the T.P. Act as a mortgagor in favour of the usufructuary mortgagee includes his right to possession of such property and the right to receive the rents and profits accruing from it.
Thus Section 109 of the T.P. Act entitles the usufructuary mortgagee from the lessor, as against the lessee, for all rights which the lessor had against such lessee.
From this, it follows that tenanted premises, if is mortgaged by the landlord by way of usufructuary mortgage, the usufructuary mortgagee thereunder would become entitled to receive the rents and profits accruing from such property in his own right and on his own account.
[479E G] 2.
It cannot be said that the findings of the lower appellate court are not supported by the evidence on record of the case.
In fact, some of the findings are, to a great extent, based on the facts which were admitted by the appellant himself.
Besides, the findings receive support from the evidence given in the case by the occupiers of the adjoining and neighbouring tenaments of the same building.
Therefore, as seen from the judgment of the appellate court, its findings in relation to the acts of the appellant 474 and persons residing with him in the premises are based on appreciation of ample evidence that was on record and the same cannot be said to have been based on no evidence, or even improper appreciation of evidence.
Thus, there is no justification to interfere with such findings of facts recorded by the appellate court virtually affirming the findings of fact recorded by the trial court.
[484D, G H, 485A] 3.
There are no statutory definitions of 'nuisance ' or 'annoyance ' which under section 13(1) (c) of the Act constitute a ground for recovery of possession by landlord of a premises in the occupation of a tenant.
However, the acts of the appellant or persons residing with him in the tenanted premises which are found as acts causing nuisance or annoyance to adjoining or neighbouring occupiers, cannot fall short of being acts of nuisance or annoyance if regard is had to their nature, intensity and duration and the consequential ill effects which might have been produced by them on the normal living of such occupiers.
They cannot make the Court to think that they were not clear acts of nuisance or annoyance envisaged under section 13(1) (c) of the Act.
Therefore, the courts below have rightly found them as acts of nuisance or annoyance envisaged under section 13(1) (c) of the Act.
[485D G] Dhabhi Lalji Kalidas vs Ramniklal Somchand Mehta, 1975 (16) Gujarat Law Reporter 824; Gaurishanker @ Babulal Govindji vs Bhikhalal Chhaganlal & Ors., 1977 (18) Gujarat Law Reporter, 805, held inapplicable.
Even otherwise, the acts, said to have been committed by the defendant and persons residing with him in the premises when are, as stated, found by the fact finding courts to have amounted to acts of nuisance or annoyance entitling the plaintiff under section 13(1) (c) of the Act to recover possession of the premises from the defendant and when the High Court has refused to interfere with such finding in exercise of its writ jurisdiction there could be no justification whatever for this Court to interfere with the same in appeal under Article 136 of the Constitution.
[485H, 486A B]


judgement:
o. 3 of 1992.
IN Civil Appeal No. 732 of 1973.
From the Judgment and Order dated 29.9.79 of the Delhi High Court in Civil Writ 734 of 1971.
Satish Chandra, Pramod B. Agarwala and Mohinder Rupral for the Appellants.
V.R. Reddy Additional Solicitor General, P. Chidambaram, Syed Akhtar, C.L. Sahu, R.C. Bhalla, P. Parmeshwaran, C.V.S. Rao, K. Swamy and E.C. Agarwala for the Respondents.
J. Shri Chiranjilal Shrilal Goenka was involved in several suits and one of which is the pending appeal at his behest.
He died on November 25, 1985 leaving behind last Will dated October 29.,1982 said to have been executed in which he appointed his younger daughter Mrs. Sushila N. Rungta as sole executrix of his Will.
Radhey Shyam claims to be the adopted son of Shri C.S. Goenka.
Radhey Shyam is the natural son of Shri Mangal Chand Kedia and Mrs. Sita another daughter of Sri C.S. Goenka.
The applicant executrix; Radhey Shyam and his wife filed substitution applications under order 22 Rule 3 CPC setting up rival claims.
When the dispute arose as to who would represent the estate of Shri C.S. Goenka, by order dated October 7, 1991 this Court brought all the three on record as legal representatives.
By further order dated November 1, 1991 this Court passed the following order .lm15 " By consent of parties Justice V.S. Deshpande, retired Chief Justice of the Bombay High Court is appointed as arbitrator to settle the dispute as to who would be the 459 legal heirs to the estate of the late Chiranjilal Shrilal Goenka.
" The rest of the order is not necessary for the purpose of this case, hence omitted.
Pursuant thereto Shri Justice V.S. Deshpande entered upon the arbitration.
Preceding the order counsel for Sri Radhey Shyam had enclosed a letter giving details of all the pending suits and item No. 19, Suit No. 65 of 1985, titled S.N. Rungta vs R. C Goenka, was one such case.
The schedule of the suits was annexed to the order of appointment of the arbitrator.
On filing the respective pleadings, the arbitrator framed diverse issues.
Issues No. 1 and 2 relate to two Wills and are as under: "1. Does Claimant No.1 prove execution of the Will dated 29th (28th) October, 1982 and prove the same to be the last and genuine Will of late Shri G.S. Goenka.
If not does she prove the execution of the Will dated 4.7.1978and prove the same to be the last and genuine Will of the late Shri G.S. Goenka".
Simultaneously proceedings in the probate suit is being pursued in Bombay High Court where in the learned Judge, on application, expressed doubt, whether arbitrator has jurisdiction to decide probate suit.
Similarly, on application made before the arbitrator seeking clarification, he too had stated that when the appointment of him as arbitrator was made and all the pending proceedings were referred to in the schedule, it would be assumed that this Court applied its mind and referred to him the probate suit as well but he cannot give any clarification in that behalf.
It would be expedient to the applicant to seek clarification from this Court.
Thus the prayers in the application are : "A. That this Hon 'ble Court may be pleased to allow the applicant to proceed with the Probate Suit No. 65 of 1987 pending before the Hon 'ble High Court of Bombay in accordance with law; and B. to pass such order and other orders as this Hon 'ble Court may deem fit and proper in the circumstances".
Shri Satish Chandra, learned Senior counsel for the applicant contended, placing reliance on Gopi Rai vs B.N. Rai, AIR 1930 Allahabad 840 460 Chellan Bhai vs Nandu Bhai, ILR 21 Bombay, 337 and Manmohini Guha vs Banga Chandra Das, ILR that probate court has exclusive jurisdiction to grant probate of the Will to the applicant for due implementation of the directions contained in the Will as the executrix.
That issue cannot be referred to arbitration and the arbitrator thereby is devoid of jurisdiction to decide issuses Nos.1 and 2.
He also further contended that the applicant had not consented to refer the probate suit for arbitration.
Shri P. Chidambaram, learned Senior counsel for the respondents contended that preceding the order of this Court dated November 1, 1991, the counsel for the respondents addressed a letter to the counsel for the petitioner including the probate suit for reference to arbitration.
This was to obviate the litigation pending in all the courts as to who are the leg heirs of Shri C.S. Goenka.
Thereafter this Court appointed Shri Justice S.V. Deshpande.
The contention, therefore, of the applicant that she did not consent to refer the probate suit for arbitration is an after thought and cannot be accepted.
He further contended that this Court, with a view to put an end to the litigation in all the suits pending 'in different courts, appointed the arbitrator to decide all the disputes in pending suits go that it would bind them.
The arbitrator had accordingly framed Issues Nos. 1 and 2, referred to herein before which pertinently relate to the Wills 'in ' the probate suit alongwith other suits.
Therefore, the arbitrator alone has got jurisdiction.
The award of the arbitrator would be subject to approval or disapproval by this Hon 'ble Court and on putting its seal it would bind all the parties and the courts including the probate court.
Therefore, it is expedient that instead of parallel proceedings before the probate court and the arbitrator to be permitted to continue, it is desirable that the arbitrator should decide issues Nos.1 and 2 with other issues and determine as to who would be the legal heirs and his decision would be binding in the probate suit.
If any clarification is necessary it may be indicated accordingly.
Having given our anxious consideration we will proceed further in deciding the scope and effect of the order passed by this Court.
As seen the order of reference to the arbitrator relates "to settle dispute as to who would be the legal heirs to the estate of Shri C.S. Goenka".
Section 2(11) of CPC Act 5 of 1908 defines legal representatives 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 representatives character the person on whom the estate 461 devolves on the death of the party so suing or sued.
Order 22 rule 3 says that if one or two or more plaintiffs die and the right to sue does not survive to the surviving plaintiff or plaintiff, , alone, or a sole plaintiff or sole surviving plaintiffs dies and the right to sue survives, the Court on an application made in this behalf, shall cause the legal representatives of the deceased plaintiff to be made a party and shall proceed with the suit.
Mutatis Mutandis by operation of Order 22 Rule 11 this rule applies to the appellants at the appeal stage.
Similarly, Order 22 Rule 4 applies in the case of death of one of several defendants or of sole defendant and in case of a dispute under Rule 5 such a question shall be determined by the court.
Inheritance is in some sort a legal and fictitious continuation of the personality of the dead man, for the presentation is in some sort identified by the law with him who he represents.
The rights which the dead man can no longer own or exercise in propria persona and the obligations which he can no longer in propria person a fulfil, he owns, exercise and fulfils in the persons of a living substitute.
To this extent, and in this fiction, it may be said that legal personality of a man survives his natural personality until his, obligation being duty performed, and his property duly disposed of, his representation among the living is no longer called for.
In Black 's Law Dictionary the meaning of the world 'Legal Representative ' is : The term is its broadest sense means one who stands in place of, and represents the interests of another.
A person who overseas the legal affairs of another.
Examples include the executors or administrator of an estate and a court appointed guardian of a minor or incompetent person.
Term "Legal representative" which is almost always held to be synonymous with term "personal representative", means in accident cases, member of family entitled to benefits under Wrongful death statute.
Unsatisfied claim and judgment fund.
In The Andhra Bank Ltd. vs R. Srinivasan and Ors., 1963 (1) and.
W.R.(S.C.) 14 this Court considered the question whether the legatee under the Will is the legal representative within the meaning of Section 2(11) of the Code.
It was held that it is well known that the expression "Legal Representative" had not been defined in the Code of 1882 and that led to a difference of judicial opinion as to its denotation.
Considering the case law developed in that behalf it was held that respondents 2 to 12, the legatees under the Will of the estate are legal 462 representatives of the deceased Raja Bahadur and so it follows that the estate of the deceased was sufficiently represented by them when the judgment were pronounced.
In The Official Liquidator vs Parthasarathi Sinha and Ors., ; this Court considered whether the legal representative would be bound by the liability for misfeasance proceeding against the deceased.
While considering that question under section 50 CPC this Court held that the legal representative, of course, would not be liable for any sum beyond the value of the estate of the deceased in his hands.
Mulla on CPC 14th Ed., Vol.
I at P.27 stated that a person on whom the estate of the deceased devolves would be his legal representative even if he is not in actual possession of the estate.
It includes heirs and also persons who without title either as executors, administrators were in possession of the estate of the deceased.
It is, therefore, clear that the term legal representative is wide and inclusive of not only the heirs but also intermeddlers of the estate of the deceased as well as a person who in law represents the estate of the deceased.
It is not necessarily confined 'to heirs alone.
The executor, administrators, assigns or persons acquired interest by devolution under Order 22 Rule 10 or legatee under a Will, are legal representatives.
Section 3(f) of the defines "heirs" means any person, male or female who is entitled to succeed to the property of an intestate under this Act.
Section 8 thereof provides that the property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter 'Chapter 11 ' (Inestate succession) firstly upon the heirs, being the relatives specified in Class 1 of the Schedule. .
Schedule provides Class 1 heirs are Son, daughter, widow, mother. .
Thus under the personal law of , if a Hindu dies intestate, the heirs either male or female specified in Schedule 1 Class 1, are heirs and succeed to the estate as per law.
In ' their absence, the next class or classes are entitled to succeed to the property of an intestate under the Act.
In Sudama Devi and Ors.
vs Jogendra Choudhary and Ors., AIR.
1987 Patna 239, (Full Bench) considered the question whether father of the minor in possession of his property and who himself was a party to the suit alongwith the minor is legal representative.
The minor died.
The father was held per majority to be legal representatives under section 2(11) of the Code as an intermeddler.
It must therefore be held that not only that Class I heirs under Section 8 read with Schedule of the but also 463 the executor of the Will of the deceased Goenka are legal representatives within the meaning of Section 2(11) of the Code.
Section 213 of the (Act 39) of 1925 for short 'the Succession Act ' provides right to the executor to obtain probate of the Will thus "(1) No right as executor. can be established in an), Court of Justice, unless court of competent jurisdiction in (India) has granted probate of the will under which the right is claimed with a copy of the Will annexed.
By operation of sub section 2(i) only in the case of wills made by any Hindu . where such wills are of the classes specified in Cls.
(a) and (b) of Sec.
Section 57 provides that the provisions of part which are set out in Schedule 111, shall, subject to the restrictions and modifications specified therein apply (a) to all wills made by any Hlndu, on or after the first day of September, 1870, within the local limits of the ordinary original civil jurisdiction of the High Court of Judicature at Madras and Bombay. (c) to all wills and codicils made by any Hindu on or after the first day of January, 1927, to which those provisions are not applied by Cls.
(a) and (b).
In other places the Dist.
Court or Court to whom the power is delegated alone are entitled to grant probate.
Section 276 provides the procedure to obtain probate, namely (1) application for probate . with the Will annexed, shall be made by a distinctly written in English. the will as the case may be, the particulars are the details mentioned in ' Cls.(a) to ' (e) and further details provided in sub sections (2) and (3), the mention of the details whereof are not material for the purpose of this case.
The petition shall be verified in the manner prescribed under section 280 and also further to be verified by at least one of the witnesses to the will in the manner and to the affect specified therein.
The Caveator is entitled to object to its grant by operation of Section 284 When it is contested Section 295 directs that probate proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of C.P.C. and the petitioner for probate . shall be the plaintiff and the person who had appeared to oppose the 464 grant shall be the defendant.
Section 217 expressly provides that save as otherwise provided by this Act or by any other law for the time being in force, all grants or probate . with the will annexed . shall be made or carried out, as the case may be, in accordance with the provisions of Part IX.
Section 222 declares that (1) Probate shall be granted only to an executor appointed by the will.
(2) The appointment may be expressed or by necessary implication Section 223 prohibits grant of probates to the persons specified therein.
Section 224 gives power to appoint several executors.
Section 227 declares the effect of probate thus: Probate of a will when granted establishes the will from the.
death of the testator, and renders valid all intermediate acts of the executor as such.
Section 248 envisages grant of probate for special purposes, namely, if an executor is appointed for any limited purpose specified in the will, the probate shall be limited to that purpose, and if he should appoint an attorney. . with the will annexed, shall be limited accordingly.
Section 273 declares conclusiveness of probate thus : Probate shall have the effect over all the property and estate moveable or immovable, of the deceased, throughout the State in which the same is or are granted, and shall be conclusive as to the representative title against the debtors of the deceased and all persons holding property which belongs to him, and shall afford full indemnity to all debtors, paying their debts and all persons delivering up such property to the person to whom such probate have been granted.
The further details are not necessary for the purpose of this case.
Under section 294 it shall be the duty of the court to preserve original Wills.
Section 299 gives right of appeals against an order or the decree of the court of probate.
By operation of Section 211(1) the executor of a deceased person is his legal representative for all purposes, and all the property of the deceased person vests in him as such.
In Inswardeo Narain Singh vs Smt.
Kanta Devi & Ors., AIR 1954 SC 280 this court held that the court of probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind.
The question whether a particular bequest is good or bad is not within the purview of the Probate Court.
Therefore the only issue in a probate proceeding relates to the genuineness and due execution of the Will and the court itself is under duty to determine it and preserve 465 the preserve the original Will in its custody.
The Succession Act is a self contained code in so far as the question of making an application for probate, grant or refusal of probate or an appeal carried against the decision of the probate court.
This is clearly manifested in the fasecule of the provision of Act.
The probate proceedings shall be conducted by the probate court in the manner prescribed in the Act and in no other ways.
The grant of probate with a copy of the Will annexed establishes con clusively as to the appointment of the executor and the valid execution of the will.
Thus it does no more than establish the factum of the will and the legal character of the executor.
Probate court does not decide any question, of title or of the existance of the property itself.
The grant of a Probate by Court of competent jurisdiction is in the nature of a proceeding in rem.
So long as the order remains in force it is conclusive as to the due execution and validity of the will unless it is duly revoked as per law.
It binds not only upon all the parties made before the court but also upon all other persons in all proceedings arising out of the Will or claims under or connected therewith.
The decision of the Probate Court, therefore, is the judgment in rem.
The probate granted by the competent court is conclusive of the validity of the Will until it is revoked and no evidence can be admitted to impeach it except in a proceeding taken for revoking the probate.
In Sheoparsan Singh vs Ramnandan Prasad Singh, Cal., 694 PC the judicial committee was to consider, whether the Will which had been affirmed by a Court of competent jurisdiction, would not be impugned in a court exercising original jurisdiction (Civil Court) in suit to declare the grant of probate illegal etc.
The privy council held that the Civil Court has no jurisdiction to impugne the grant of probate by the court of competent jurisdiction.
In that case the subordinate court of Muzafarbad was held to be had no jurisdiction to question the validity of the probate granted by the Calcutta High Court.
In Narbheram Jivram vs Jevallabh Harjivan, AIR 1933 Bombay, 469 probate was granted by the High Court exercising probate jurisdiction.
A civil suit on the Original Side was filed seeking apart from questioning the probate, also other reliefs.
The High Court held that when a probate was granted.
, it operates upon the whole estate and establishes the Will from the death of the testator.
Probate is conclusive evidence not only of the factum, but also of the validity of the Will and after the probate has been granted, in is incumbent on a person who wants to have the Will declared null and void, to have the probate revoked before proceeding further.
That could 466 be done only before the Probate Court and not on the original side of the High Court.
When a request was made to transfer the suit to the Probate Court, the learned Judge declined to grant the relief and stayed the proceeding on the original side.
Thus it is conclusive that the court of probate alone had jurisdiction and is competent to grant probate to the will annexed to the petition in the manner prescribed under the Succession Act.
That court alone is competent to deal with the probate proceedings and to grant or refuse probate of the annexed will.
It should keep the original will in its custody.
The probate thus granted is conclusive unless it is revoked.
It is a judgment in rem.
We agree with Mr. Chidambaram that the applicant had consented to refer the dispute for arbitration of dispute in the pending probate proceedings, but consent cannot confer jurisdiction nor an estoppel against statute.
The other legatees in the will were not parties to it.
In A.R. Antulay VI R.S. Naik; , when a Constitution Bench directed the High Court Judge to try the offences under the Prevention of Corruption Act with which the petitioner therein was charged and the trial was being proceeded with, he 'questioned by way of writ petition the jurisdiction of this Court to give such a direction.
A Bench of seven judges per majority construed meaning of the word 'jurisdiction ', Mukerjee, J. as he then was, speaking per himself.
Oza and Natarajan, JJ. held that the power to create or enlarge jurisdiction is legislative in character.
So also the power to confer a right of appeal or to take away a right of appeal.
The Parliament alone can do it, by law and not Court, whether interior or both combine, can enlarge the jurisdiction of a Court and divest a person of his rights of appeal or revision.
Ranganath Misra, J. as he then was, held that jurisdiction comes solely from the law of the land and cannot be exercised otherwise.
In this country, jurisdiction can be exercised only when provided for either in the Constitution or in the laws made by the Legislature.
Jurisdiction is thus the authority or power of the Court to deal with a matter and make an order carrying binding force in the facts.
Oza, J. supplementing the question held that the jurisdiction to try a case could only be conferred by law enacted by the legislature.
The Supreme Court could not confer jurisdiction if it does not exist in law.
Ray, J. held that the Court cannot confer a jurisdiction on itself which is not provided in the law.
In the dissenting opinion Venkatachaliah, J., as he then was to lay down that the expression jurisdiction or prior determination is a "verbal coat of many colours".
In the case of a Tribunal an error of law might 467 become not merely an error in jurisdiction but might partake of the character of an error of jurisdiction.
But, otherwise, jurisdiction is a 'legal shelter ' and a power to bind despite a possible error in the decision.
The existence of jurisdiction does not depend on the correctness of its exercise.
The authority to decide embodies a privilege to bind despite error, a privilege which is inherent in and indispensable to every judicial function.
The characteristic attribute of a judicial act is that it binds whether it be right or it be wrong.
Thus this Court laid down as an authoritative proposition of law that the jurisdiction could be conferred by statute and this Court cannot confer jurisdiction or an authority on a tribunal.
In that case this Court held that Constitution Bench has no power to give direction contrary to Criminal Law Amendment Act, 1952.
The direction per majority was held to be void.
It is settled law that a decree passed by a court without jurisdiction on the subject matter or on the grounds on which the decree made which goes to the root to its jurisdiction of lacks inherent jurisdiction is a corum non judice.
A decree passed by such a court in a nullity and is nonest.
Its invalidity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right, even at the stage of execution or in collateral proceedings.
The defect of jurisdiction strikes at the very authority of the court to pass decree which cannot be cured by consent or waiver of the party.
In Bahadur Singh & Anr.
vs Muni Subrat Dass & Anr., an eviction petition was filed under the Rent Control Act on the ground of nuisance.
The dispute was referred to the arbitration.
An award was made directing the tenant to run the workshop upto a specified time and thereafter to remove the machinery and to deliver vacant possession to the landlord.
The award was signed by the arbitrators, the tenant and the landlord.
It was filed in the court.
A judgment and decree were passed in terms of the award.
On expiry of the time and when the tenant did not remove the machinery nor delivered vacant possession, execution was levied under Delhi and Ajmer Rent Control Act.
It was held that a decree passed in contravention of Delhi and Ajmer Rent Control Act was void and the landlord could not execute the decree.
The same view was reiterated in Smt.
Kaushalya Devi and Ors.
vs KL.
Bansal, AIR 1970 SC 838.
In Ferozi Lal Jain vs Man Mal & Anr., AIR 1979 SC 794 a compromise dehore grounds for eviction was arrived at between the parties under section 13 of the Delhi and Ajmer Rent Control Act.
A decree in terms thereof was passed.
The possession was not delivered and execution was 468 laid.
It was held that the decree was nullity and, therefore, the tenant could not be evicted.
In Sushil Kumar Mehta vs Gobind Ram Bohra (dead) through his Lrs.
JT 1989 (SUPPI.) SC.329 the Civil Court decreed eviction but the building was governed by Haryana Urban (Control of Rent & Eviction) Act 11 of 1973.
It was held that the decree was without jurisdiction and its nullity can be raised in execution.
In Union of India vs M/s. Ajit Mehta and Associates.
Pune and Ors.
, AIR 1990 Bombay 45 a Division Bench to which Sawant, J. as he then was, a member was to consider whether the validity of the award could be questioned on jurisdictional issue under section 30 of the Arbitration Act.
The Division Bench held that Clause 70 of the, Contract provided that the Chief Engineer shall appoint an engineer officer to be sole arbitrator and unless both.
parties agree in writing such a reference shall not take place until after completion of the works or termination or determination of the Contract.
Pursuant to this contract under section 8 of the Act, an Arbitrator was appointed and award was made, Its validity was questioned under section 30 thereof.
The Division Bench considering the scope of Sections 8 and 20(4) of the Act and on review of the case law held that Section 8 cannot be invoked for appointment of an Arbitrator unilaterally but be available only.
under section 20(4) of the Act.
Therefore, the very appointment of the Arbitrator without consent of both parties was held void being without jurisdiction.
The Arbitrator so appointed inherently lacked jurisdiction and hence the award made by such Arbitrator is nonest.
In Chellan Bhai 's case Sir C. Farran, Kt.
, C.J. of Bombay High Court held that the Probate Court alone is to determine whether probate of an alleged will shall issue to the executor named in it and that the executor has no power to refer the question of execution of Will to arbitration.
It was also held that the executor having propounded a Will, and applied for probate, a caveat was filed denying the execution of the alleged Will, and the matter was duly registered as a suit, the executor and the caveatrix subsequently cannot refer the dispute to arbitration, signing a submission paper, but such an award made pursuant thereto was held to be without jurisdiction.
In Gopi Rai 's case, Sulaiman, J. as he then was, speaking for the Division Bench held that the Civil Court has no jurisdiction to allow the dispute relating to the genuineness of a Will in a probate proceedings pending before him to be referred to the arbitration of an arbitrator.
He has got to be specified that the Will is a genuine document before the order of granting probate is passed.
He cannot delegate those functions to a 465 private individual and decide the point through him.
Similar was the view laid in Manmohini Guha 's case, Sarda Kanta Das vs Gobinda Das 6 Indian.
Cases 912 and Khelawati vs Chet.
Ram Khub Rain, AIR 1952 Punjab 67.
When the plea of estoppel was raised, Sulaiman.
J. in Gopi Rai 's case held that "We cannot hold that there is any estoppel against Gopi Rai on this question of jurisdiction.
That is a matter which we can take into account only when ordering costs. ', ' The decision in Nalla Ramudamma vs Nalla Kasi Naidu, AIR 1945 Madras 269 relied on by Shri Chidambaram does not help his clients.
Therein the question was the matrimonial dispute.
The Arbitrator had decided at the request of the parties and a decree was passed.
It was held that the dispute would come under section 21 of the Arbitration Act.
The question of jurisdiction was not raised therein.
Equal ly the decision in Mt. Mahasunader Kuer and Anr.
vs Ram Ratan Prasad Sahi.
is also of little assistance.
The question of adoption, it was held, cannot be decided in the probate proceedings.
On a conspectus of the above legal scenario we conclude that the Probate Court has been conferred with exclusive jurisdiction to grant probate of the Will of the deceased annexed to the petition (suit); on grant or refusal thereof, it has to preserve the original Will produced before it.
The grant of probate is final subject to appeal, if any, or revocation if made in terms of the provisions of the Succession Act.
It is a judgment in rely and conclusive and binds not only the parties but also the entire world The award deprives the parties of statutory right of appeal provided under section 299.
Thus the necessary conclusion is that the Probate Court alone has exclusive jurisdiction and the Civil Court on original side or the Arbitrator does not get jurisdiction even if consented to by the parties, to adjudicate upon the proof or validity of the Will propounded by the executrix, the applicant.
It is already seen that the executrix was nominated expressly in the will is a legal representative entitled to represent the Estate` of the deceased but the heirs cannot get any probate before the Probate Court.
They are entitled only to resist the claim of the executrix of the execution and genuineness of the Will.
The grant of probate gives the executrix the right to represent the estate of the deceased, the subject matter in other proceedings.
We make it clear that our exposition of law is only for the purpose of finding the jurisdiction of the arbitrator and not an expression of opinion on merits in the probate suit.
From this perspective we are constrained to conclude that the Ar.
470 bitrator cannot proceed with the probate suit to decide the dispute in issues Nos.1 and 2 framed by him.
Under these circumstances the only course open in the case is that the High Court is requested to proceed with the probate suit No.65/85 pending on the probate jurisdiction of the High Court of Bombay and decide the same as expeditiously as possible.
The learned Judge is requested to fix the date and proceed day to day at his convenience till it is concluded and decide the matter according to law preferably within six months.
Till then the Arbitrator is requested not to decide issue Nos.1 and 2.
He may be at liberty to proceed with the other issues.
He is requested to await the decision of the Probate Court; depending upon the result thereon, he would conclude his findings on Issues Nos.1 and 2 and then make the award and take the proceedings according to law.
The application is accordingly ordered but without cost.
N.V.K Application disposed of.

summary:
The appellant Shri Chiranjilal Shri Lal Goenka was involved in several suits, one of which was the present appeal.
He died on November 25, 1985 leaving behind his last Will dated October 29, 1982 in which he appointed his younger daughter Mrs. Sushila N. Rungta as the sole executrix Radhey Shyam, the natural son of Shri Mangal Chand Kedia and Mrs. Sita daughter of Shri C.S. Goenka; claimed to be the adopted son of Shri C.S. Goenka.
The applicant, executrix; Radhey Shyam and his wife filed substitution applications under Order 22 Rule 3 CPC setting up rival claims.
When the dispute arose as to who should represent the estate of Shri C.S. Goenka by order dated October 7, 1991 this Court brought all the three on record as legal representatives; and by a further order dated November 1, 1991 by consent of parties appointed a retired Chief Justice of the Bombay High Court as an Arbitrator to settle the dispute as who would be the legal heirs to the estate of late Chiranjilal Shri Lal Goenka.
The arbitrator entered upon the reference and on the riling of pleadings by the parties framed diverse issues.
Issues No. 1 and 2 related to the two Wills and were : (1) Does the claimant No. 1 prove.
execution of the Will dated 29th Oct. 1982 and prove the same to be the last and genuine Will of Shri G.S. Goenka.
(2) If not does she prove the execution of the Will dated 4.7.78 and prove the same 455 to be the last and genuine Will of the late Shri G.S. Goenka.
Simultaneous proceedings in the probate suit were being pursued in Bombay High Court, and a Single Judge expressed doubt whether the arbitrator had jurisdiction to decide the probate suit.
Similarly, on an application made before the arbitrator seeking clarification, he too stated that with his appointment as arbitrator all the pending suits in the schedule should be assumed to have been referred for arbitration and that includes the probate suit as well, but that he cannot give any clarification in that behalf.
An Interlocutory Application was, therefore, moved in this Court for clarification, and it was contended on behalf of the applicant that the probate court had exclusive jurisdiction to grant probate of the Will to the applicant for due implementation of the directions contained in the Will as the executrix, and that this issue cannot be referred to arbitration and the arbitrator thereby is devoid of jurisdiction to decide Issue Nos. 1 and 2 that had been framed by him, and that the applicant had not consented to refer the probate suit for arbitration.
The application was contested on behalf of the respondents by contending that proceeding the order of the Court dated November 1, 1991 the counsel for the respondents addressed a letter to the counsel for the petitioner including the probate suit for reference to arbitration, and this was to obviate the litigation pending in all the courts as to who were the legal heirs of Shri C.S.Goenka, and thereafter this court appointed the arbitrator, ' that with a view to put an end to the litigation in all the suits pending in different courts, this Court appointed the arbitrator to decide all the disputes in pending suits.
It is, therefore, desirable that the arbitrator should decide Issue Nos. 1 and 2 that have been framed.
Disposing of the Application, this Court, HELD : 1. Section 2(11) of Code of Civil Procedure 1908 defines "legal representatives" to mean 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.
Order 22 rule 3 says that if one or two or more plaintiffs dies and the right to sue survives, the Court on an application made in this behalf, shall cause the legal representatives of the deceased plaintiff 456 to be made a party and shall proceed with the suit.
Mutatis Mutandis by operation of Order 22 Rule 11 this rule applies to the appellants at the appeal stage.
Similarly, Order 22 Rule 4 applies in the case of death of one of several defendants or of sole defendant and in case of a dispute under Rule 5 such a question shall be determined by the Court.
[460H, 461A B] 2.
Inheritance is In some sort a legal and fictitious continuation of the personality of the dead man, for the prepresentation is in some sort identified by the law with him who he represents.
The rights which the dead man can no longer own or exercise in propria persona and the obligations which he can no longer in propria persona fulfil, he owns exercises, and fulfils in the person of a living substitute.
To this extent, and in this fiction, it may be said that legal personality of a man survives his natural personality, until his obligations being duty performed, and his property duly disposed of, his representation among the living is no longer called for.
1461D] 3.
The grant of Probate by a Court of competent jurisdiction is in the nature of a proceeding in rem.
So long as the order remains in force it is conclusive as to the due execution and validity of the will unless it is duly revoked as per law.
It binds not only upon all the parties made before the Court but also upon all other persons in all proceedings arising out of the Will or claims under or connected therewith.
The decision of the Probate.
Court, therefore, is the judgment in rem.
The probate granted by the competent court is conclusive of the validity of the Will until it is revoked and no evidence can be admitted to impeach it except in a proceeding taken for revoking the probate.
[465D] Slieoparsan Singh vs Ramnandan Prasad Singh, Cal.
694 PC and Narbharam Jivram vs Jayvallabh Harjiwan, AIR 1933 Bom.
469, approved.
[465E F] 4.
It is settled law that a decree passed by a court without jurisdiction on the subject matter or on the grounds on which the decree made which goes to the root of its jurisdiction or lacks inherent jurisdiction is a corum non judice.
A decree passed by such a court is a nullity and is nonest.
Its invalidity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right, even at the stage or execution or in collateral proceedings.
The defect of jurisdiction strikes at the very authority of the court to pass decree which cannot be cured by consent or 457 waiver of the party.
[467D] A.R. Antulay vs R.S. Naik, ; ; Bahadur Singh & Anr.
vs Muni Subrat Dass & Anr ; Smt.
Kaushalya Devi and Ors.
vs KL.
Bansal, AIR 1970 SC 838; Ferozi Lal Jain vs Man Mal & Anr, AIR 1979 SC 794 and Sushil Kumar Mehta vs Gobind Rain Bohra (dead) through his Lrs, JT 1989 (suppl.) SC 329.
In the instant case, the applicant had consented to refer for arbitration the dispute in the pending probate proceedings, but consent cannot confer jurisdiction nor an estoppel against statute.
The other legatees in the Will were not parties to it.
The Probate Court has been conferred with exclusive jurisdiction to grant probate of the Will of the deceased annexed to the petition (suit); on grant or refusal thereof, it has to preserve the original will produced before it.
The grant of probate is final subject to appeal, if any, or revocation if made in terms of the provision of the Succession Act It is a judgment in rem and conclusive and binds not only the parties but also the entire world.
The award deprives the parties of statutory right of appeal provided under section 299.
Thus the necessary conclusion is that the Probate Court alone has exclusive jurisdiction and the Civil Court on original side or the Arbitrator does not get jurisdiction, even if consented to by the parties, to adjudicate upon the proof or validity of the Will propounded by the executrix, the appellant [468D F] 6.
The executrix was nominated expressly in the Will as a legal representative entitled to represent the Estate of the deceased but the heirs cannot get any probate before the Probate Court.
They are entitled only to resist the Claim of the executrix of the execution and genuiness of the Will.
The grant of probate gives the executrix the right to represent the estate of the deceased, the subject matter in other proceedings.
This exposition or the law is only for the purpose of finding the jurisdiction of the arbitrator and not an expression of opinion on the merits in the probate suit.
[468G] 7.
The Arbitrator cannot therefore proceed with the probate suit to decide the dispute in Issue Nos. 1 and 2 framed by him.
The High Court is to proceed with the Probate suit, the Judge to fix the date and proceed day to day till it is concluded and decide the matter within six months.
Till 458 then the Arbitrator is not to decide Issue Nos. 1 and 2, but at liberty to proceed with the other issues, to await the decision of the probate Court and depending upon the result thereon, conclude the findings on issue Nos.1 and 2 and then make the award and take the proceedings according to law.
[469H, 470A B]


judgement:
Appeal No. 1890 of 1974.
From the Judgment and Order dated 6.8.1973 of the Gujarat High Court in Second Appeal No.98 of 1973.
M.V. Goswami for the Appellants.
S.K. Dholakia and P. Narasimhan for the Respondents.
The following Order of the Court was delivered: This appeal under Article 136 is against the judgment of the High Court of Gujarat in Second Appeal No.98 of 1973 dated August 6, 1973.
The appellants ' predecessor was inducted in Field Nos.439 and 676 as, an usufructuary mortgagee in the year 1945.
On expiry of the period of redemption prescribed therein, that is, 25 years, the suit for redemption was filed in 1970 by the respondents.
The trial court decreed the suit subject to payment of damages for improvements.
On appeal, the District Court confirmed the decree for redemption but set aside the decree for damages.
In second appeal, the High Court confirmed the decree of the appellate court.
Thus this appeal.
In the High Court, the appellants sought two contentions, namely, by operation of Section 2 A which was brought by way of amendment of Section 48 to the Bombay Tenancy Act, 1939, the mortgagee became a deemed tenant.
It was not permitted to argue as is not a pure question of law but is a mixed question of law and fact which need investigation of facts.
It was neither raised in the pleadings nor argued either before the trial court or the appellate court.
Therefore, the question raised in the second appeal for the first time was disallowed.
The second question namely, the jurisdiction of the civil court to declare the tenancy rights by operation of the Amendment Act 5/73 which brought Section 85 A on statute with retrospective effect.
It ousted the jurisdiction of the civil court to decide the dispute of tenancy rights in pending suit.
This contention too was negatived as when the Amendment Act came into force, the second appeal was pending and therefore the High Court held that the civil court was not ousted to exercise the jurisdiction and to refer the matter to the Revenue Court for jurisdiction for adjudication whether the appellants 580 were or were not deemed tenants.
The same contention was reiterated before us.
Placing reliance on a Division Bench judgment of the Gujarat High Court in Salman Raje vs Madhavsang Benesang, reported in ILR 1963 Guj.722, Shri M.V. Goswami, the learned counsel for the appellants contended that by operation of Section 2 A, the appellants are deemed tenants.
Once the appellants are deemed tenants, the Revenue Court has to decide that issue.
The second appeal is a continuation on the suit and therefore, the High Court is not right in rejecting the claims of the appellants.
It is not necessary to express any opinion on the correctness of the judgment of the Division Bench of the Gujarat High Court.
Suffice it to say that the appellants had not specifically pleaded that the appellants are deemed tenants by operation of Section 2 A of the Act.
What was pleaded in the written statement was that initially the appellants ' predecessor was continuing as cultivating tenant.
But by virtue of the mortgage, their tenancy right merged in the right as usufructuary mortgagee.
On redemption pre existing tenancy rights get revived.
But that plea was not pursued.
A new plea based on Section 2 A was sought to be raised for the first time in the High Court.
The High Court rightly did not permit the appellants to raise the plea of a deemed tenancy as the said claim needs investigation based on factual foundation which was lacking.
Once the right of tenancy is not permitted to be raised, the question of construction of Section 85 A whether the Civil Court had jurisdiction or not is an academic issue.
Accordingly, we are not going into that question.
The learned counsel for the appellants also contended that the appellants are entitled to the improvements.
The High Court did not go into that question as the same was not canvassed and the decree of the appellate court is quite right.
We cannot go into that question which is accordingly rejected.
The appeal, is accordingly dismissed but in the circumstances without costs.
T.N.A. Appeal dismissed.

summary:
The appellants ' predecessor was inducted as an usufructuary mortgagee of certain fields.
On the expiry of redemption period the respondents filed a suit for redemption which was decreed subject to payment of damages for improvements.
On appeal, the District Court confirmed the redemption decree but set aside the decree for damages.
In second appeal, the appellants raised a new plea: that they were deemed tenants by operation of Section 2 A of the Bombay Tenancy Act, 1939.
It was also contended on their behalf that Section 85 A of the Act ousted the jurisdiction of the Civil Court to decide the dispute of tenancy rights In pending suit.
Rejecting both the contentions the High Court confirmed the decree of the appellate court.
Against the judgment of the High Court an appeal was flied in this Court.
Dismissing the appeal, this Court, HELD: 1.
The plea based on Section 2 A was sought to be raised for the first time in second appeal before the High Court.
It was neither raised in the pleadings nor argued either before the trial Court or the appellate court.
Therefore, the High Court rightly did not permit the appellants to raise the plea of a deemed tenancy as the said claim needs investigation based on factual foundation which was lacking.
Consequently, the question whether under Section 85 A the Civil Court had jurisdiction or not need not be gone into.
[580 D E, Salman Raje vs Madhavsang Benesang I.L.R. 1963 Guj. 722, cited.