Section 213 Succession Act No Bar To Eviction Suit If Claim Is Based On Landlord-Tenant Relationship, Not Title Under Will: Bombay High Court

"For establishment of right in capacity as landlord in a suit filed against the tenant, Section 213 of the Succession Act would have no application," Bombay High Court, in a significant ruling dated April 17, 2026, held that a legatee can maintain an eviction suit against a tenant without obtaining a probate if the suit is premised on a landlord-tenant relationship rather than establishing a right specifically under a Will.

A single-judge bench of Justice Sandeep V. Marne observed that Section 213 of the Indian Succession Act, 1925, only prohibits the establishment of rights "as an executor or legatee" and does not bar a person from seeking recovery of possession in their capacity as a landlord.

BACKGROUND OF THE CASE

The dispute involved a plot of land in Kurla, Mumbai, leased to Indian Oil Corporation Limited (IOCL) in 1968. Following the expiry of the lease in 1997 and the subsequent death of the original owners, the respondents—claiming as legatees—sought eviction after the enactment of the Maharashtra Rent Control Act (MRC Act), which excludes Public Sector Undertakings and open lands from its protection. IOCL challenged the eviction decree concurrently passed by the Small Causes Court, primarily arguing that the suit was not maintainable as the plaintiffs had not secured a probate for the Will of the deceased owner.

The primary question before the court was whether a suit for eviction is maintainable in the absence of a probate under Section 213 of the Succession Act when the landlord-tenant relationship is otherwise established. The court was also called upon to determine if a Power of Attorney holder with personal knowledge of the facts could validly verify the plaint and lead evidence.

Scope of Section 213 of the Succession Act

The court meticulously analyzed the restrictive nature of Section 213 of the Indian Succession Act. It noted that the provision prohibits a legatee or executor from establishing any right in relation to bequeathed property unless a probate is granted. However, the bench clarified that this bar is not absolute for all types of litigation.

The court observed that Section 213 might not always come in the way of a legatee filing a suit for possession from a tenant, as the outcome depends on the "frame of the suit." If the plaintiff does not seek to establish a right specifically under the Will but relies on their status as a landlord, the provision is not attracted.

"If the Plaintiff bases the Plaint on his/her capacity as the legatee or executor under the Will, securing of probate might have been necessary for securing the decree. However when the suit is not based on the Will nor the Plaintiff seeks to establish any right under the Will, provisions of Section 213 would have no application."

Landlord-Tenant Relationship vs. Title Ownership

The bench emphasized that in a suit for recovery of possession, the court is primarily concerned with the lessor-lessee relationship rather than an exhaustive inquiry into the ownership or title of the property. The court noted that the term ‘landlord’ under rent control legislation includes any person receiving or entitled to receive rent.

The court highlighted that the plaintiffs in this case had not even mentioned the Will in the main body of their plaint, choosing instead to rely on their status as joint owners and the fact that IOCL had consistently offered rent to them.

"The landlord-tenant relationship does not depend on claim of ownership. Mere factum of payment of rent can also establish landlord-tenant relationship."

Tenant Estopped from Questioning Title

Referring to Section 116 of the Indian Evidence Act, the court held that IOCL was estopped from questioning the title of the plaintiffs. The court pointed out that IOCL had admitted the plaintiffs as owners in a separate suit and had continued to offer rent to one of the respondents.

The bench relied on the Supreme Court’s ruling in FGP Limited v. Saleh Hooseini Doctor, noting that once a tenant admits the co-ownership or pays rent to the landlord, they cannot later raise objections based on the lack of probate to stall eviction.

"Once tenant admits co-ownership of property by the landlord, he cannot seek to raise objection to ownership based on provisions of Section 213 of the Succession Act."

Validity of Evidence by Power of Attorney Holder

Addressing IOCL’s objection regarding the suit being driven by a Power of Attorney (POA) holder, the court clarified that a POA holder is not prohibited from being examined as a witness. The bench held that as long as the attorney possesses personal knowledge of the transactions—such as the issuance of the termination notice—their evidence is valid.

The court noted that the POA holder in this case had personal knowledge of the notice of termination. Since IOCL did not dispute the receipt of the notice, the court found no procedural illegality in the verification of the plaint or the leading of evidence by the attorney.

"A plaint by a Power of Attorney holder on behalf of the original plaintiff is maintainable provided he has personal knowledge of the transaction in question."

Exclusion of PSUs from Rent Protection

The court reaffirmed that under Section 3(1)(b) of the MRC Act, Public Sector Undertakings like IOCL do not enjoy protection from eviction. It held that since the tenancy was validly terminated under Section 106 of the Transfer of Property Act, the tenant had no legal right to remain in possession.

The High Court dismissed IOCL's revision application, upholding the concurrent findings of the lower courts. The court concluded that since the suit was based on a landlord-tenant relationship admitted by the conduct of the parties, the lack of probate was irrelevant. The request for a stay on the judgment was also rejected.

Date of Decision: 17 April 2026