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Himachal Pradesh High Court · body

2000 DIGILAW 164 (HP)

KULDIP MARIA v. SHANTI DEVI

2000-07-06

K.C.SOOD

body2000
JUDGMENT Kuldip Chand Sood, J.: This revision petition under Section 24(5) of the H.P. Urban Rent control Act, 1987 ("Rent Act" for short), is directed against the judgment of learned Appellate Authority, Shimla dated August 23, 1997, affirming the judgment of learned Rent Controller (2), Shimla, dated August 31,1992 whereby the petition of the landlord for eviction of tenant-respondent on the grounds of bonafide requirement for personal use and occupation was dismissed. 2. Petitioner, Dr. Kuldeep Maria, hereinafter referred to as "landlord", is the owner of the residentail premises 20/1, Boileauganj, Tilak Nagar Shimla. On John Masih was in occupation of one room and covered verandah with latrine in the ground-floor, hereinafter referred to as the "disputed premises", on a monthly rental of rupees 15/-. Landlord filed a petition for eviction of John Masih, a statutory tenant, under section 14 of the Rent Act on the ground of bonafide requirement by the petitioner for his own personal use and occupation. The petition was contested by the tenant, John Masih. The learned Rent Controller (2) Shimla vide his orders dated August 31,1992, negatived the plea of the landlord that he requires the premises in dispute for his bonafide personal use and occupation. The plea of the tenant that he is contractual tenant and his tenancy has not been terminated, was rejected. Feeling dis-satisfied, the landlord filed an appeal before the Appellate Authority, Shimla. 3. During the pendency of the appeal before the learned Appellate Authority, the tenant, John Masih, died. Landlord moved an application under Order 22 rule 4, Code of Civil Procedure for the substitution of tenant John Masih by his wife Shanti Devi who was stated to be ordinarily residing in the demised premises with deceased tenant John Masih at the time of his death. The application was resisted by Shanti Devi, widow of deceased tenant John Masih, on the grounds that her husband John Masih is survived, apart from her, by his three sons, Sunil Kumar, Sudhir Kumar and Anil Kumar who were ordinarly residing with their father in the demised premises at the time of death of John Masih and all of them have inherited the tenancy rights of said John Masih. The assertion of the landlord that Shanti Devi alone has inherited the tenancy rights as she alone was residing with her husband, was emphatically repudiated. The assertion of the landlord that Shanti Devi alone has inherited the tenancy rights as she alone was residing with her husband, was emphatically repudiated. The learned Appellate Authority, without affording an opportunity to the parties to lead evidence on this aspect, dismissed the plea of the respondent Shanti Devi and allowed the application of the landlord on the ground that under the provisions of Seciton 2(j) of the Rent Act, right of tenancy is to be inherited by Smt. Shanti Devi widow of the deceased tenant alone. Learned Appellate Authority was also influenced by the fact that Smt. Shank Devi did not file affidavit so as to disbelieve the averments made by the appellant-landlord that it was Shanti Devi alone who was ordinarily residing with the deceased John Masih. Eviction petition of the landlord was, however, dismissed, as noticed earlier, vide orders dated August 23, 1997. 4. I have heard Mr. Deepak Gupta, learned counsel for the landlord-petitioner and Mr. Subhash Punshi, learned counsel for the tenant- respondent and also gone through the record. 5. Mr. Gupta has argued at length and taken me throught the record to show that the landlord requires the premises bonafide for his own use and occupation. Mr. Subhash Punshi learned counsel for the respondent contends at the outset that the present petiton is not maintainable in the absence of all the legal heirs as mentioned in Schedule-I read with clause-(j) of Section 2 of the Rent Act. The argument of Mr. Punshi is that three sons of deceased tenant John Masih, namely, Sunil Kumar, Sudhir Kumar and Anil Kumar were residing alongwith their mother Shanti Devi with their father John Masih in the demised premises at the time of his death and, therefore, all of them have inherited the tenancy rights and no adverse order can be passed in the absence of all the joint tenants. Clause (j) of Section 2 defines "tenant" thus: 2(j) "tenant" means any person by whom or on whose account rent is payable for a building or rented land and includes a tenant continuing in possession after termination of the tenancy and in the event of the death of such person such of his heirs as are mentioned in Schedule-I to this Act and who were ordinarily residing with him at the time of his death, subject to the order of succession and conditions specified, respectively in Explanation-I and Explanation-II to this clause, but does not include a person placed in occupation of a building or rented land by its tenant, except with the written consent of the landlord, or a person to who the collection of rent or fees in apubli market, cart-stand or slaughter house or of rents for shops has been framed out or leased by a municipal corporation or a municipal committee or a notified area committee or a cantonment board; Explanation-I: The order of succession in the event of the death of the person continuing in possession after the termination of his tenancy shall be as follows:- (a) firstly, his surviving spose; (b) secondly, his son or daughter, or both, if there is no surviving spouse, or if the surviving spouse did not ordinarily live with the deceased person as a member of his family upto the date of his death; (c) thirdly, his parent(s), if there is no surviving spouse, son or daughter . of the deceased person, or if such surviving spouse, son, daughter or any of them, did not ordinarily live in the presmises as a member of the family of the deceased person upto the date of his death; and (d) fourthly, his daughter-in-law, being the widow of his pre-deceased son, if there is no surviving spouse, son, daughter or parent(s) of the deceased person or if such suriving spouse, son, daughter or parent(s), or any of them, did not ordinarily live in the premises as a member of the family of the deceased person upto the date of his death; Explanation. II - The right of every successor, referred to in Explanation I, to continue in possession after the termination of the tenancy, shall be personal to him and shall not, on the death of such successor, devolve on any of his heirs." 6. II - The right of every successor, referred to in Explanation I, to continue in possession after the termination of the tenancy, shall be personal to him and shall not, on the death of such successor, devolve on any of his heirs." 6. Perusal of the definition of tenant shows that a tenant even after the termination of his tenancy, who continues to be in possession would fall within the definition of tenant and if such a statutory tenant dies, then his heirs, as mentioned in Schedule-I to the Act, who were ordinarily residing with such person at the time of his death, subject to the order of succession and conditions specified in Explanation-I and II to this clause, would also be tenant(s). 7. Mr. Deepak Gupta, learned counsel for the landlord submits that the tenancy rights would be succeeded, in the event of the death of statutory tenant, firstly, by his surviving spouse and it is only if there is no surviving spouse that son(s) or daughters) or both of such tenant would succeed to the tenancy rights subject to the condition that surviving spouse or sons or daughters or both, as the case may be, were living with such deceased tenant in the demised premises at the time of his death. On the other hand, Mr. Punshi contends that all the heirs mentioned in Schedule-I, including the wife, sons and daughters inherit the tenancy simultaneously. 8. In Smt. Gian Devi Anand v. Jeevan Kumar and others, AIR 1985 SC 796, the Apex Court had the occasion to consider the question of heritability of tenancy rights. In paragraph-25, it was observed: "This Court has very aptly observed in Damadilals case (AIR 1976 SC 2229) (supra) that it cannot be assumed that with the determination of the tenancy, the estate must necessarily disappear and the statute can only preserve the status of irremovability and not the estate he has in the premises in his occupation; and it is not possible to claim that the sanctity of contract cannot be touched by legislation. As already noticed, this Court in Damadilais case (supra) after referring mainly to the definition of tenant in S.2(i) of the Madhya Pradesh Accommodation Control Act, 1961 came to the conclusion that the so called statutory tenant had an interest in the premises occupied by him and the heirs of the statutory tenant "had a heritable interest in the premises." 9. In Gian Devis case (supra), the Apex Court was interpreting definition of a tenant in Section 2(i) of the Delhi Rent Control Act, 1958, as amended by Act No. 18 of 1976. It is, therefore relevant to notice the definition of "tenant" in the Delhi Rent Control Act; "2. (1) tenant means any person......and includes......... (i)................ (ii) any person continuing in possession after the termination of his tenancy; and (iii) in the event of the death of the person continuing in possesion after the termination of his tenancy, subject to the order of succession and conditions specified respectively, in Explanation 1 and Explanation II to this clause, such of the aforesaid persons (a) spouse, (b) son or daughter, or, where there are both son and daughter, both of them, (c) parents, (d) daughter-in-law, being the widow of his pre-deceased son as had been ordinarily living in the premises with such person as a member or members of his family upto the of his death, but does not include: (A)........ (B)........ (B)........ Explanation I. The order of succession in the event of the death of the person continuing in possession after the termination of his tenancy shall be as follows: (a) firstly, his surviving spouse; (b) secondly, his son or daughter, or both, if there is no surviving spouse, or if the surviving spouse did not ordinarily live with the deceased person as a member of his family upto the date of his death; (c) thirdly, his parents, if there is no surviving spouse, son or daughter of the deceased person, or if such surviving spouse,, son or daughter or any of them, did not ordinarily live in the premises as a member of the family of the deceased person upto the date of his death; and (d) fourthly, his daughter-in-law, being the widow of his predeceased son, if there is no surviving spouse, son, daughter or parents of the deceased person, or if such surviving spouse, son, daughter or parents, or any of them, did not ordinarily live in the premises as a member of the family of the deceased person upto the date of his death. Explanation II. If the person, who acquires, by succession, the right to continue in possession after the termination of the tenancy, was not financially dependent on the deceased person on the date of his death, such successor shall acquire such right for a limited period of one year; and, on the expirty of that period, or on his death, whichever is earlier, the right of such successor to continue in possession after the termination of the tenancy shall become extinguished. Explanation III. Explanation III. For the removal of doubts, it is hereby declared that:-(a) where, by reason of Explanation II, the right of any successor to continue in possession after the termination of the tenancy becomes extinguished, such extinguishment shall not affect the right of any other successor of the same category to continue in possssion after the termination of the tenancy; but if there is no other successor of the same category, the right to continue in possession after the termination of the teancy shall not, on such extinguishment, pass on to any other successor, specified in any lower category or categories, as the case may be; (b) the right of every successor, referred to in Explanation I, to continue in possession after the termination of the tenancy, shall be personal to him and shall not, on the death of such successor, devolve on any of his heirs." 10. The definition of tenant in the Delhi Act, it is to be noticed is in paramateria to the Rent Act except that Explanation III is not part of the Rent Act. The Apex Court interpreting section 2 of the Delhi Rent Control Act in Gian Devis case observed thus: "....The termination of the contractual tenancy in view of the definition of tenant in the Act does not bring about any change in the status and legal position of the tenant, unless there are contrary provisions in the Act; and, the tenant notwithstanding the termination of tenancy does enjoy an estate or interest in the tenanted premises. This interest or estate which the tenant under this Act despite termination of the contractual tenancy continues to enjoy creates a heritable interest in the absence of any provision to the contrary. We have earlier noticed the decision of this Court in Damadilals case (AIR 1976 SC 2229) (supra). This view has been taken by this Court in Damadilals case and in our opinion this decision represents the correct position in law. The observations of this court in the decision of the Seven Judge Bench in the case of V. Dhanapal Chettiar v. Yesodai Ammal (AIR 1979 SC 1745) (supra) which we have earlier quoted appear to conclude the question. The amendment of the definition of tenant by the Act 18 of 1976 introducing particularly S.2 (I) (iii) does not in any way mitigate against this view. The amendment of the definition of tenant by the Act 18 of 1976 introducing particularly S.2 (I) (iii) does not in any way mitigate against this view. The said sub-section (iii) with all the three Explanations thereto is not in any way inconsistent with or contrary to sub-section (ii) of Section 2(1) which unequivocally states that tenant includes any person continuing in possession after the termination of his tenancy. In the absence of the provision contained in sub-section 2(I)(iii), the heritable interest of the heirs of the statutory tenant would devolve on all the her is of the so called statutory tenant on his death and the heirs of such tenant would in law step into his position. This sub-section (iii) of S.2(1) seeks to restrict this right in so far as the residential premises are concerned. The heritability of the statutory tenancy which otherwise flows from the Act is restricted in case of residential premises only to the heirs mentioned in S.2(I) (iii) and the heirs therin are entitled to remain in possession and to enjoy the protection under the Act in the manner and to the extent indicated in sub-section 2(I)(iii). The Legislature which under the Rent Act affords protection against eviction to tenants whose tenancies have been terminated and who continue to remain in possession and who are generally termed as statutory tenants, is perfectly competent to lay down the manner and extent of the protection and the rights and obligations of such tenants and their heirs. S.2(I)(iii) of the Act does not create any additional or special right in favour of the heirs of the so called statutory tenant on his death, but seeks to restrict the right of the heirs of such tenant in respect of residential premises. As the status and rights of a contractual tenant even after determination of his tenancy when the tenant is at times described as the statutory tenant, are fully protected by the Act and the heirs of such tenants become entitled by virtue of the provisions of the Act to inherit the status and position of the statutory tenant on his death, the Legislature which has created the right has thought it fit in the case of residential premises to limit the rights of the heirs in the manner and to the extent provided in S.2(I)(iii)....." 11. This Court in Indira Vati and another v. Smt. Devki Devi and others, 1989(1) RLR 110 (HP), considered the provision of Section 2(j) and Section 14 of the Rent Act and examined the question at length and took a view that from amongst the persons mentioned in Schedule-I to the Rent Act, only those persons are entitled to succeed to the tenancy rights who are ordinarily residing with the original tenant whose tenancy has been terminated earlier to his death. Such of the persons, mentioned in the Schedule, who were not residing with the original tenant, at the time of his death, are excluded from inheriting the tenancy rights. Repelling the contention that such interpretation would perpetuate the presence of the hens of original tenant in the demised premises, V.K. Mehrotra, J. observed in para 21 and 22 of the judgment: "21. From amongst these persons, only those are entitled to succeed to the tenancy rights who were ordinarily residing with the original tenant, whose tenancy had been terminated earlier, at the time of his death. Such of the persons mentioned in the Schedule who were not doing so are excluded in the opening part itself. Quite clearly therefore, a very few, from amongst the heirs of a tenant continuing in possession after the termination of the tenancy, are envisaged to be tenants within the meaning of the definition, for purposes of the Act. Bringing in any further dimunition, by confining the number of successors of such a tenant to only one from amongst those mentioned in Explanation I, would amount to frustrating the object of the legislature in giving protection to the heirs of what is called a "statutory tenant". Such an interpretation is not fair. nor, countenanced by law. " 22. The fear expressed by the learned counsel, appearing for the landlord, that the interpretation that the various heirs mentioned in the several clauses of Explanation I become tenant one after the other, would perpetuate the presence of the heirs in the demised premises, is more fanciful than real. The restriction which the definition itself contains about tenancy rights accruing only to those, from amongst the hens mentioned in the First Schedule and Explanation I, who were ordinarily residing with the tenant at the time of his death is a patent protection in this respect as far as the landlord is concerned. The restriction which the definition itself contains about tenancy rights accruing only to those, from amongst the hens mentioned in the First Schedule and Explanation I, who were ordinarily residing with the tenant at the time of his death is a patent protection in this respect as far as the landlord is concerned. The Legislature has emphasised it again and again in the various clauses of Explanation I. By Explanation II it has confined the right of every successor referred to in Explanation I to continue in possession, on the death of a tenant after the termination of his tenancy, to his life-time. There is no devolution of the right to continue in possession to any of the heirs of the successor mentioned in Explanation I." 12. The expression "order of succession" provided in the Explanation I was interpreted to mean the sequence, in which, from amongst the various heirs, the landlord shall treat particular heir to be a tenant for the purpose of his dealings with those whose irremovability is provided for by the Legislature even after the death of a tenant whose tenancy had been termianted earlier. Thus, for the purpose of dealing with the heirs, left by a statutory tenant, the landlord has to be certain about a person with whom he can deal with in regard to the relationship of land lord and tenant. A similar view, relying upon in Indira Vatis case supra, was taken in Narinder Kumar v. Ramesh Kumar, 1995 (1) RCR-1. In that case, plaintiffs filed a suit against the defendant for possession of residential premises with the allegations that after the death of original tenant, his widow became "statutory tenant". Her eviction was sought under Section 14 of the H.P, Urban Rent Control Act, 1971 on the ground of non-payment of arrears of rent and bonafide personal requirement etc .The order of eviction was passed by the Rent Controller on the ground on non-payment of arrears of rent. The other grounds were turned down. The arrears of rent were duly paid within a period of thirty days, limited by law. Therefore, this ground became redundant. Feeling aggrieved, the plaintiffs filed an appeal before the Appellate Authority. During the pendency of the appeal, the widow of the original tenant died. The other grounds were turned down. The arrears of rent were duly paid within a period of thirty days, limited by law. Therefore, this ground became redundant. Feeling aggrieved, the plaintiffs filed an appeal before the Appellate Authority. During the pendency of the appeal, the widow of the original tenant died. It was pleaded in the suit that on the death of the widow of original tenant, statutotry teneancy came to an end and sons of the original tenant had no right to continue in occupation of the premises. The trial Court held that on the death of original tenant, his wife alone inherited the tenancy rights and after the death of the widow, sons of the original tenant had no right to be in possesison of the premises. Relying upon Indira Vatis case (supra), this court held that succession contemplated on the death of statutory tenant is one time succession and tenancy rights would be heritable simultaneously by such all heirs as are mentioned in Schedule I subject to the condition that they were ordinarily residing with him at the time of the death of the statutory tenant. 13. A Full Bench of this Court in Satya Devi and another v. Ravinder Kumar and others, 1989(2) RCR 170 speaking through V.K. Mehrotra, J. observed in para 15 of the judgment: "The law declared by the Supreme Court in its decisions in Damadilal, 1976 RCR 584 and Gian Devi, 1985(1) RCR 459(SC) is absolutely clear and, it is this The statutory tenant has an estate which is heritable subject to restrictions which may be imposed by the Rent Act in question." 14. It is, thus, clear that in the present case, the tenancy rights of John Masih, a statutory tenant, were heritable by his widow Shanti Devi who was admitteldy residing with her husband John Masih and three sons, namely, Sunil Kumar, sudhir Kumar and Anil Kumar subject to the condition that they were residing with John Masih at the time of his death. 15. Learned Appellate Authority has erred in holding that only widow Shanti Devi would inherit the tenancy rights under section 2(j) of the Rent Act. The Appellate Authority was obliged to give finding after giving parties an opportunity to lead appropriate evidence, as to whether or not the three sons were residing with John Masih at the time of his death. 16. The Appellate Authority was obliged to give finding after giving parties an opportunity to lead appropriate evidence, as to whether or not the three sons were residing with John Masih at the time of his death. 16. In the facts and circumstances of this case, in the absence of all the legal heirs mentioned in Schedule-I to the Rent Act, the revision petition is not properly constituted. It is now well settled that on the death of a tenant, it is the single tenancy which devolves on the heirs. There is no provision of the division of the premises or of the rent payable therefor. The heirs succeed to the tenancy as joint tenants (See: H.C. Pandey v. V.C. Paul J989(3) Supreme Court cases 77. As tenancy, heritable by Shanti Devi and her three sons, subject to the sons being found living with John Masih at the time of his death, is indivisible, therefore, present revision petition is not capable of decision in the absence of all the joint tenants. 17. In the facts and circumstances of this case, the impugned order of the Appellate Authority dated August 23,1997 are set aside. The case is sent back to the learned Appellate Authority with the directions to hear the matter afresh after affording opportunity to the parties to produce such evidence as they like for the purpose of substitution of the deceased tenant John Masih by his legal heris within the meaning of section-2(j) of the Rent Act in the light of the observations made hereinabove. 18. The appellate authority shall make all endeavour to dispose of this case within four months. 19. The Registry shall send the records of the court below immediately to the learned appellate authority, Shimla, and ensure that such records are received by it before July 20, 2000, 20. The parties are directed to appear before the appellate authority on July 20,2000. 21. The petition is accordingly disposed of parties shall, however, bear their own costs.