2026 INSC 496
Marietta D’ Silva v. Rudolf Clothan Lacerda & Ors.
Civil Appeal arising out of SLP(C) No.31012 of 2025
Supreme Court of India — 15.05.2026
Coram: Manoj Misra and Manmohan, JJ.
Reportable
HEAD NOTES
1. Rent Control — Eviction — Bona fide requirement — Co-owner/co-landlord — Entitlement to maintain eviction proceedings — Paras 36–46
In an eviction proceeding under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, the landlord must plead and prove the existence of the landlord-tenant relationship and the statutory ground on which eviction is sought. A co-owner who is entitled to receive rent falls within the statutory definition of “landlord” under Section 5(3) of the Act. Paras 36–46.
2. Pleadings — Order VI Rules 1 and 2 CPC — Material facts and evidence — Distinction between facta probanda and facta probantia — Paras 26–34
Pleadings must contain the material facts constituting the cause of action or defence, but not the evidence by which those facts are to be established.
The Court distinguished:
Facta probanda — material facts which must be pleaded and proved; and
Facta probantia — facts or material by which the pleaded facts are proved, which need not themselves be pleaded.
A defect in pleading cannot ordinarily be cured by evidence; equally, evidence which merely proves a sufficiently pleaded material fact need not have been expressly incorporated in the pleading. Paras 26–34.
3. Pleading and proof — Substance rather than technical form — Parties proceeding to trial with knowledge of the case — Paras 40–41
Where the substance of the pleadings sufficiently discloses the case, and the parties understood the issue, went to trial on that basis and produced evidence, a party cannot ordinarily raise the alleged deficiency in pleadings for the first time in appeal.
The Court relied upon Ram Sarup Gupta v. Bishun Narain Inter College and Bachhaj Nahar v. Nilima Mandal. Paras 40–41.
4. Co-ownership — Share certificate relating to land — Building attached to land — Interest extends to building — Paras 42–46
Under Section 8 of the Transfer of Property Act, an interest in land ordinarily carries with it the legal incidents attached to the land, including things attached to the earth such as buildings, unless a contrary intention appears.
Since the appellant's name appeared in the share certificates relating to the land and the building was constructed by her father, the Court held that she had established an interest in the land and was a co-owner of the suit building. Paras 42–44.
5. Co-owner as landlord — Section 5(3), Bombay Rent Act — Para 46
The statutory definition of “landlord” includes a person who is receiving or is entitled to receive rent.
The appellant, being a co-owner of the building and having also deposed that she received rent on behalf of her mother, fell within the statutory definition.
Therefore, she was a co-landlord at the time of institution of the eviction suit. Para 46.
6. Subsequent events — Bona fide requirement — Court may take cautious cognisance — Paras 47–48
Although the right to relief is ordinarily determined with reference to the date of institution of proceedings, courts may take cautious cognisance of subsequent events where such events are necessary to make the relief effective and consistent with prevailing factual circumstances, provided fairness to both sides is maintained.
Paras 47–48.
7. Oral family arrangement — Validity — Can be relied upon even without registered document or decree of partition — Paras 49–50
A family arrangement may be entered into through an unregistered oral agreement and can be recognised and enforced by courts under the principles of family settlement.
Technical considerations should give way to preservation of family peace and harmony.
Accordingly, the appellant was entitled to rely upon the oral family arrangement/settlement as a subsequent development, even though there was no formal decree of partition among the siblings. Paras 49–50.
8. Bona fide requirement — Temporary occupation of another premises does not necessarily defeat genuine need — Paras 51–53
The appellant's temporary occupation of Flats 5 and 6 during the pendency of the eviction proceedings did not destroy her bona fide requirement.
The Court considered the size and composition of the family, the occupation of the available flats by other family members, the appellant's children's education and the circumstances concerning her husband's postings.
A tenant cannot dictate to the landlord which premises should be used or insist that the landlord utilise another property where the landlord establishes a genuine requirement for the tenanted premises. Paras 51–53.
9. Comparative hardship — Alternative accommodation — Section 13(1)(l) — Paras 54–60
Where the tenants had suitable alternative accommodation available to them, while the landlord continued to lack suitable accommodation for herself and her family, the comparative hardship test favoured the landlord.
The Court examined the actual accommodation available to the tenants and their family circumstances, rather than merely considering formal ownership. Paras 54–60.
I. FACTS OF THE CASE
1. Lease and construction of the suit building — Para 3
A 99-year lease of land was granted by St. Anthony's Homes Cooperative Society Ltd. in favour of the parents of Appellant-Plaintiff No.1.
The appellant's parents constructed the Memorare Building, situated at 16th Road, Chembur, Bombay, consisting of six flats, numbered 1 to 6.
Five share certificates dated 06.06.1959 were issued by the cooperative society in favour of the appellant's parents. Para 3.
2. Tenancy of Flat No.2 — Para 4
A sub-tenancy agreement dated 06.06.1962 was executed in respect of Flat No.2 in favour of Augustine Lacerda.
Upon his death on 07.12.1969, the sub-tenancy devolved upon his widow, Virginia Lacerda. Para 4.
3. Transfer of share certificates — Para 5
On 05.07.1987, the five share certificates were transferred into the joint names of the appellant, her sister and other family members.
The appellant consequently claimed co-ownership in the building. Para 5.
4. Eviction proceedings — Para 6
Approximately three months after Virginia Lacerda's death, an eviction suit was instituted in July 1993 by the appellant and Respondent No.2 against her legal heirs.
The eviction claim was founded on:
Section 13(1)(g) — bona fide requirement;
Section 13(2) — greater hardship;
Section 13(1)(l) — acquisition of alternative accommodation; and
Section 13(1)(k) — change of user.
Para 6.
II. APPELLANT'S BONAFIDE REQUIREMENT
5. Family circumstances — Paras 7–8
At the time of filing the suit, Flats 5 and 6 were the only flats available to the landlord family and were occupied by the appellant's parents.
The appellant's father died on 24.02.1994, after institution of the suit.
The appellant's case was that there was an oral family arrangement under which:
all six flats continued to be jointly owned;
Flats 5 and 6 were earmarked for the exclusive use of two brothers; and
Flat No.2, the suit premises, was intended for the appellant's exclusive use after eviction of the tenants.
Para 7.
During the pendency of the suit, the appellant shifted to Mumbai and temporarily resided with her mother in Flats 5 and 6 because she had no other accommodation in Mumbai. Para 8.
III. FINDINGS OF THE TRIAL COURT
6. Bona fide requirement established — Para 9
The Small Causes Court decreed the eviction suit on 14.09.2007.
It found that:
the appellant had established bona fide requirement;
suitable alternative accommodation was available to the tenants;
comparative hardship favoured the appellant.
The claim of Plaintiff No.2 was rejected because she was residing in Goa.
The ground of change of user was rejected. Para 9.
The Trial Court particularly relied upon admissions regarding the tenants' alternative flats and the sale of one such property during the pendency of the suit.
IV. APPELLATE HISTORY
7. First appeal
The tenants challenged the decree before the Appellate Bench of the Small Causes Court.
The appeal was dismissed on 25.07.2017. Para 10.
8. Bombay High Court
Respondent No.1 thereafter instituted a Civil Revision Application before the Bombay High Court.
By judgment dated 23.06.2025, the High Court interfered with the concurrent findings of the courts below, set them aside and directed restoration of possession to Respondent No.1.
Para 11.
The appellant therefore approached the Supreme Court. Para 12.
V. CONTENTION OF THE RESPONDENTS
The respondents' central objection was that the appellant had not adequately pleaded her status as landlord.
They argued that:
the plaint did not specifically explain how the appellant became landlord;
the relationship of landlord and tenant had been denied;
the appellant subsequently attempted to establish her status through evidence;
the alleged family arrangement was not pleaded;
the share certificates did not establish ownership of individual flats;
subsequent events could not retrospectively establish her locus; and
her occupation of Flats 5 and 6 defeated her plea of bona fide requirement.
Paras 19–24.
The respondents relied particularly upon Bachhaj Nahar v. Nilima Mandal, contending that evidence cannot establish an unpleaded case. Para 21.
VI. ISSUES FRAMED BY THE SUPREME COURT
The Supreme Court identified substantial questions of law concerning:
(1) What constitutes a pleading?
(2) What is the distinction between pleading and proof?
(3) Whether the requirements of pleading and proof were satisfied in the present case?
Para 25.
VII. LAW ON PLEADINGS
1. Meaning of pleading — Paras 26–31
A pleading is the formal document in which a party sets out the allegations, claims, denials or defences relied upon.
Under Order VI Rule 1 CPC, pleading means:
plaint; or
written statement.
Order VI Rule 2 requires pleadings to contain:
facts and not law;
all material facts and only material facts;
facts relied upon, not evidence by which they are proved; and
facts stated concisely, precisely and clearly.
Paras 26–31.
VIII. PLEADING ≠ PROOF
2. Facta probanda and facta probantia — Paras 32–34
The judgment makes an important doctrinal distinction.
Facta probanda
These are the material facts which must be pleaded.
Facta probantia
These are the facts, documents and other evidentiary material through which the material facts are proved.
The latter need not ordinarily be set out in the pleading.
Therefore:
The pleading must disclose the material fact; the evidence establishes that fact.
Para 32.
The Court nevertheless reiterated that evidence cannot be led on a plea completely absent from the pleadings, and no amount of evidence ordinarily cures a fundamental defect in pleadings. Para 33.
IX. APPLICATION OF THE PLEADING PRINCIPLE TO THIS CASE
3. The plaint was sufficient — Paras 35–40
The Supreme Court held that the nature and extent of pleading required depends upon the nature of the proceeding.
In an eviction suit, the landlord must plead and prove:
landlord-tenant relationship; and
statutory ground for eviction.
Para 36.
The appellant's plaint specifically asserted that she and Plaintiff No.2, together with Defendants 4–8, were the landlords of the building and sought possession on statutory grounds including bona fide requirement, comparative hardship and alternative accommodation.
Therefore, the material facts constituting the cause of action were present in the plaint.
Paras 37–39.
The detailed evidence concerning:
family circumstances;
share certificates;
family arrangement; and
actual accommodation
was evidence supporting those pleaded material facts.
It was not necessary that every piece of evidence be reproduced in the plaint.
Para 40.
X. DEFICIENCY IN PLEADING CANNOT BE RAISED TECHNICALLY AFTER TRIAL
The Court relied upon Ram Sarup Gupta and Bachhaj Nahar.
The relevant principle is that the Court must examine substance rather than merely form.
Where:
the parties understood the case;
the relevant issues were framed;
both sides went to trial on those issues; and
evidence was adduced,
a party cannot ordinarily resurrect a technical objection regarding lack of pleading for the first time in appeal.
Para 41.
XI. SHARE CERTIFICATES — LAND AND BUILDING
4. Section 8, Transfer of Property Act — Paras 42–44
The Supreme Court rejected the argument that the share certificates related merely to land and not to the building.
Section 8 TPA provides that transfer of property carries all interests which the transferor is capable of passing and, in the case of land, includes things attached to the earth.
A building is a thing attached to the earth.
The building was admittedly constructed by the appellant's father.
The appellant's name appeared in the share certificates after their transfer in 1987, and this evidence remained unchallenged in cross-examination.
Therefore, the Court held:
The appellant had proved her interest in the land and her co-ownership of the suit building.
Paras 42–44.
XII. APPELLANT WAS A CO-LANDLORD WHEN SUIT WAS FILED
5. Section 5(3), Bombay Rent Act — Para 46
Section 5(3) defines “landlord” as a person who is receiving, or is entitled to receive, rent.
The appellant was:
a co-owner;
a holder of the relevant share certificates; and
a person who had deposed that she received rent on behalf of her mother.
Consequently, she satisfied the statutory definition.
The Court therefore held:
The appellant was a co-landlord as well as co-owner at the time of filing the eviction suit.
Para 46.
XIII. SUBSEQUENT EVENTS
6. Subsequent developments can be considered — Paras 47–48
The High Court had attached importance to developments occurring after institution of the suit.
The Supreme Court clarified the law.
Ordinarily, rights are tested as on the date of institution.
But subsequent developments may be considered where necessary to ensure that the relief remains:
just;
meaningful;
legally appropriate; and
factually consistent with current realities.
This must be done while preserving procedural fairness to both sides.
Paras 47–48.
XIV. ORAL FAMILY ARRANGEMENT
7. No formal partition necessary — Paras 49–50
The Supreme Court recognised that a family arrangement can be entered into orally.
It relied upon Kale v. Deputy Director of Consolidation and Hari Shankar Singhania v. Gaur Hari Singhania.
The purpose of family arrangements is to preserve peace and harmony, and technical considerations should not defeat genuine family settlements.
Therefore, the appellant could rely upon the oral family arrangement even though there was no formal partition decree.
Paras 49–50.
XV. BONA FIDE REQUIREMENT
8. Appellant established genuine requirement — Paras 51–53
The appellant established that:
she had no independent accommodation in Mumbai;
her husband had been posted at different places;
her children were studying;
Flats 5 and 6 were occupied by the family;
the available accommodation was insufficient for the entire family;
her brothers had rights/use over those flats under the family arrangement; and
the appellant's occupation of those flats was temporary.
The Court held that her temporary occupation of Flats 5 and 6 did not extinguish her bona fide need for the suit premises.
Para 53.
The Court also reaffirmed:
A tenant cannot dictate to the landlord how the landlord should arrange or utilise his/her accommodation.
Para 52.
XVI. COMPARATIVE HARDSHIP AND ALTERNATIVE ACCOMMODATION
9. Tenants had alternative accommodation — Paras 54–57
At the time of institution, the landlord family had only Flats 5 and 6 available.
The remaining flats were occupied by tenants.
The Court found that the original defendants had alternative accommodation:
Defendant No.1 owned Flat F-129;
Defendant No.2 owned Flat D-82;
Defendant No.3 occupied another flat.
Defendant No.2 subsequently sold D-82 during the pendency of the litigation for ₹12 lakhs and another flat was acquired.
The Court considered this conduct significant because it indicated that the sale was intended to avoid the consequences of the eviction proceeding.
Paras 54–57.
XVII. PRESENT POSITION OF RESPONDENT NO.1
The Court also considered subsequent circumstances.
Respondent No.1:
resided and worked in Pune;
owned property there;
his wife resided in Norway; and
had no demonstrated genuine requirement for the Chembur premises.
His contention that he might seek a better job in Mumbai if affordable accommodation became available was not accepted.
Paras 58–59.
XVIII. FINAL CONCLUSION
The Supreme Court concluded that the appellant's hardship was greater.
She remained without suitable accommodation in Mumbai, whereas the respondents had alternative accommodation and the present respondent had no established genuine requirement for the Chembur premises.
The Court therefore held:
The appellant had proved her bona fide requirement and greater hardship would result to her if eviction were refused.
Para 60.
FINAL ORDER
Para 61
The appeal was allowed.
The Supreme Court:
set aside the Bombay High Court judgment dated 23.06.2025 in Civil Revision Application No.308 of 2019; and
restored the judgment and decree dated 14.09.2007 of the Small Causes Court in Rent and Eviction Suit No.411/861 of 1996.
Para 61.
Pending applications were disposed of. Para 62.
CORE RATIO — IN PRECISE FORM
The judgment is important for four connected propositions:
I. Pleading
A party must plead the material facts constituting the cause of action, but need not plead the evidence by which those facts will be proved.
II. Proof
Once the material facts are pleaded, evidence may establish those facts. Facta probanda must be pleaded; facta probantia need not be.
III. Co-owner = Landlord
A co-owner who is entitled to receive rent falls within the statutory definition of landlord under Section 5(3) of the Bombay Rent Act and can maintain an eviction proceeding.
IV. Bona fide requirement
Temporary occupation of another family premises does not, by itself, defeat bona fide requirement. The Court may consider the actual family arrangement, subsequent developments, available accommodation and comparative hardship to determine whether eviction should be granted.
The decisive point in this case was therefore not merely the existence of a family arrangement. It was the combination of adequate pleading, proof of co-ownership/co-landlordship, established bona fide requirement, availability of alternative accommodation to the tenants, and greater hardship to the landlord.
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