Section 213 Indian Succession Act | Eviction Suit Not Barred for Legatee Acting as Landlord, Not Title Holder : Bombay HC

The Bombay High Court has clarified that Section 213 of the Indian Succession Act does not prevent a legatee from filing an eviction suit against a tenant if the claim is grounded in landlord-tenant relationship rather than assertion of title under a will. This ruling resolves a long-standing ambiguity in civil litigation involving inherited property and tenancy rights.

Background & Facts

The Dispute

The dispute centers on a 2,100 sq. yard plot of open land at Kurla, Mumbai, bearing Survey No. 305, Hissa No. 1, C.S. No. 307, Hissa No. 1. The land was originally owned by Dr. Manek Billimoria, who executed an Indenture of Lease dated 18 May 1968 in favor of M/s. Indian Oil Corporation Limited (IOCL) for a 20-year term. Clause III(e) of the lease granted IOCL the first option to purchase the property. Dr. Billimoria died on 19 June 1975. His wife, Smt. Sheroo Manek Billimoria, executed a Deed of Rectification on 4 October 1977 extending the lease term to 30 years, from 13 October 1967 to 12 October 1997. The lease expired on 12 October 1997 and was not renewed.

Key Facts

• The suit premises are open land, not a building or structure.
• Smt. Sheroo Billimoria executed a Will dated 18 November 1997, bequeathing the property to three legatees: Mrs. Perviz Khushroo Patel and two others.
• She passed away on 26 May 1999.
• No probate of the Will was obtained by the legatees.
• The Maharashtra Rent Control Act, 1999 (MRC Act) came into force on 31 March 2000, excluding public sector undertakings and companies with paid-up capital of Rs. 1 crore or more from its purview - IOCL falls under this exclusion.
• The MRC Act also excludes open land from its coverage.
• On 27 November 2002, the three original Plaintiffs, through their constituted attorney Mr. Mukesh Shashikant Parekh, issued a notice terminating the tenancy under Section 106 of the Transfer of Property Act, 1882.
• IOCL continued to send rent cheques to Mrs. Patel (Plaintiff No. 1) from December 2002 to June 2024, which were returned with letters reiterating termination.
• On 29 July 2011, the three original Plaintiffs executed a conveyance in favor of M/s. Papeyon Buildmate Traders Pvt. Ltd. (Papeyon), which was impleaded as Plaintiff No. 4 on 3 December 2012.
• The original Plaintiffs never claimed ownership in the suit based on the Will; the plaint made no reference to it.

Procedural History

• 18 May 1968: IOCL granted lease of open land for 20 years.
• 4 October 1977: Lease extended to 30 years (until 12 October 1997).
• 18 November 1997: Smt. Sheroo Billimoria executed Will.
• 26 May 1999: Smt. Sheroo Billimoria died.
• 27 November 2002: Termination notice issued by original Plaintiffs through attorney.
• 2003: T.E. & R. Suit No. 69/76 of 2003 filed by original Plaintiffs in Small Causes Court seeking eviction and mesne profits.
• September 2003: IOCL filed written statement disputing ownership and maintainability.
• April 2006: IOCL applied for stay on grounds of lack of probate and improper representation by attorney - dismissed on 23 January 2007.
• 11 August 2010: IOCL’s revision before Appellate Bench dismissed.
• 9 December 2010: Bombay High Court disposed of Civil Revision Application No. 1005 of 2010, granting liberty to challenge maintainability.
• 3 December 2012: Papeyon impleaded as Plaintiff No. 4.
• 4 January 2017: Small Causes Court decreed suit, ordering IOCL to vacate and hand over possession within three months.
• 14 December 2021: Appellate Bench stayed execution subject to monthly deposit of Rs. 1,00,000.
• 4 January 2025: Appellate Bench dismissed IOCL’s appeal, upholding the decree.
• 2025: IOCL filed Civil Revision Application No. 92 of 2025 before Bombay High Court.
• 3 March 2025: High Court continued interim stay.
• 17 April 2026: Judgment pronounced by Justice Sandep V. Marne.

The Parties' Positions

Applicant (IOCL): Argued that the suit was not maintainable because:

• The original Plaintiffs lacked authority to sue without probate under Section 213 of the Indian Succession Act.
• The suit was effectively filed and prosecuted by Papeyon, which had no title until 2011.
• The termination notice was issued by a power of attorney holder, not the Plaintiffs.
• The power of attorney holder could not lead evidence on behalf of the Plaintiffs.

Respondents (Plaintiffs): Contended that:

• The suit was not based on the Will but on landlord-tenant relationship.
• Payment of rent by IOCL established the tenancy.
• Section 213 does not apply when the suit is not for establishing title under the Will.
• The power of attorney holder had personal knowledge of the termination notice and could testify accordingly.
• IOCL was estopped from denying title after admitting ownership in its own suit (No. 487 of 2017).

Relief Sought

IOCL sought:

• Setting aside of the orders dated 4 January 2017 and 4 January 2025.
• Dismissal of the suit for want of maintainability.
• Vacation of the eviction decree.

Plaintiffs sought:

• Dismissal of the revision application.
• Enforcement of the eviction decree.
• Termination of the interim stay.

The Legal Issue

Can a legatee file a suit for eviction of a tenant without obtaining probate of the will, where the suit is based solely on the existence of a landlord-tenant relationship and not on asserting title under the will?

Arguments Presented

For the Appellant/Petitioner

IOCL relied on Section 213 of the Indian Succession Act, which at the time of filing required probate for establishing any right as executor or legatee in any court. It cited Mrs. Hema Nolini Judah v. Mrs. Isolyne Sarojbashini Bose, Jamshedji Dubash v. Meharbai Rustomji Dubash, Kumar Chandra Kishore Roy v. Prasanna Kumari Dasi, and others to argue that probate is mandatory before any decree can be passed in a suit involving rights under a will. It further contended that the suit was improperly filed by a power of attorney holder (Mr. Mukesh Parekh) who lacked authority to lead evidence, citing Janki Vashdeo Bhojwani v. Indusind Bank Ltd. and A.C. Narayanan v. State of Maharashtra. IOCL also argued that the termination notice was invalid because it was issued by the attorney, not the Plaintiffs, and that Papeyon, as a later transferee, could not validate the suit’s inception.

For the Respondent/State

The Respondents argued that Section 213 only bars suits seeking to establish rights under a will, not suits for eviction based on landlord-tenant status. They relied on FGP Limited v. Saleh Hooseini Doctor, where the Supreme Court held that a tenant cannot deny landlordship based on Section 213 if ownership is evident from conduct. They emphasized that IOCL had paid rent to Mrs. Patel for over two decades, thereby admitting her as landlord. They also cited Kashinath Ramchandra Kolwankar v. Sunanda to show that payment of rent alone establishes landlord-tenant status, irrespective of title. Regarding the power of attorney, they relied on A.C. Narayanan to argue that an attorney with personal knowledge of the transaction may depose as a witness.

The Court's Analysis

The Court undertook a detailed examination of Section 213 of the Indian Succession Act, noting its deletion with effect from 20 December 2025, but applying it as it stood at the time of filing. The Court emphasized that the section prohibits the establishment of rights as executor or legatee - not the filing of suits based on other legal capacities.

"Section 213 of the Succession Act prohibits a legatee or executor from establishing any right in relation to bequeathed property in any court of justice. Thus, it is impermissible to seek declaration of title in respect of the property/right unless probate in respect of the Will is obtained. Section 213 may not always come in the way of a legatee filing suit for possession from a tenant. All would depend on the frame of the suit."

The Court meticulously analyzed the plaint and found no reference to the Will. The Plaintiffs pleaded exclusively on the basis of landlord-tenant relationship, citing rent payments and expiry of lease. The Court held that under Section 5(3) of the Bombay Rent Act, a landlord is defined as any person receiving or entitled to receive rent - a definition that does not require proof of title. The Court further noted that IOCL’s own suit (No. 487 of 2017) admitted the Plaintiffs’ ownership, invoking Section 116 of the Indian Evidence Act, which bars a tenant from disputing the landlord’s title after admitting it.

Regarding the power of attorney, the Court distinguished between acting as a party and testifying as a witness. It held that while a power of attorney holder cannot appear as the plaintiff, they may depose as a witness on matters within their personal knowledge, as confirmed in A.C. Narayanan. Mr. Parekh’s testimony regarding issuance of the termination notice was therefore admissible.

The Court also rejected IOCL’s argument that the suit was filed by Papeyon, noting that Papeyon was impleaded only in 2012, long after the suit was instituted and the notice issued. The original Plaintiffs remained the parties throughout.

Finally, the Court affirmed that the MRC Act did not apply to IOCL as a public sector undertaking on open land, and that the tenancy was validly terminated under Section 106 of the Transfer of Property Act. The concurrent findings of the lower courts on this point were upheld.

The Verdict

The revision application was dismissed. The orders of the Small Causes Court dated 4 January 2017 and the Appellate Bench dated 4 January 2025 were upheld. IOCL was directed to vacate and hand over peaceful possession of the suit premises to the Plaintiffs within 30 days. The interim stay of Rs. 1,00,000 per month was terminated with immediate effect. The Court rejected IOCL’s request for an 8-week stay. No costs were awarded.

What This Means For Similar Cases

Probate Is Not Required for Eviction Suits Based on Tenancy

• Practitioners may now file eviction suits on behalf of legatees without probate if the claim is based on landlord-tenant status, not title under a will.
• The plaint must clearly avoid invoking the will; reliance on rent receipts and lease expiry suffices.
• Courts will examine the frame of the suit, not the underlying ownership, to determine applicability of Section 213.

Payment of Rent Establishes Landlord-Tenant Relationship

• Even without title documents, consistent rent payments by a tenant constitute admission of landlordship under Section 116 of the Evidence Act.
• Tenants cannot later challenge ownership if they have acknowledged it through conduct.
• This principle applies regardless of whether the landlord is a legatee, heir, or trustee.

Power of Attorney Holders May Testify in Civil Suits

• A power of attorney holder may lead evidence on matters within their personal knowledge, such as issuance of notices or handling of rent.
• The Janki Vashdeo rule does not bar testimony - only representation as the plaintiff.
• Courts will assess the attorney’s direct involvement in the transaction, not their formal status.

Legislative Exclusions from Rent Control Apply Strictly

• Public sector companies and entities with paid-up capital exceeding Rs. 1 crore are permanently excluded from rent control protections under the MRC Act.
• Once excluded, they cannot regain protection even if their capital structure changes.
• Eviction proceedings against such tenants must proceed under the Transfer of Property Act, not rent control statutes.