Full Judgment Text
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PETITIONER:
TARA CHAND AND ANR.
Vs.
RESPONDENT:
RAM PRASAD
DATE OF JUDGMENT03/05/1990
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
SAIKIA, K.N. (J)
CITATION:
1990 SCR (3) 7 1990 SCC (3) 526
JT 1990 (3) 17 1990 SCALE (1)190
ACT:
Rajasthan Premises (Control of Rent and Eviction Act,
1950:Section 13(1)--Tenancy rights--Whether heritable--Heirs
of tenant-Whether entitled to enjoy protection of Act.
HEADNOTE:
Smt. Anandi Bai wife of Appellant No. 1 and mother of
Appellant No. 2 had a lease of suit shop in Jaipur for a
period of 11 months beginning May 1, 1964 wherein she was
carrying on small kirana business. The Respondent-landlord
terminated the lease by a notice issued under section 106 of
the Transfer of Property Act at the end of the term of the
lease. However Anandi Bai continued to remain in possession
and the landlord went on accepting the rent even after the
termination of her tenancy and thus she became a statutory
tenant. She died sometime in September 1966. Respondent-
landlord initiated action for ejectment of her heirs-the
appellants herein from the demised shop on the ground that
on the death of Anandi Bai the appellants have no right to
continue in occupation of the premises. The trial court
dismissed the suit on the finding that Anandi Bai paid and
the respondent accepted the rent after the determination of
the lease, so she was holding over. The first appellate
court confirmed the decree of the trial court though on
different grounds. Second appeal by the plaintifflandlord
was allowed by the High Court holding that since the heirs
of the tenant had not carried on the business with Anandi
Bai during her life time as family business they were not
entitled to the benefits of the definition of ’tenant’ as
amended by Section 3(ii) of the Rajasthan Premises (Control)
of Rent and Eviction) Amendment Act, 14 of 1976 and accord-
ingly reversing the decrees of the courts below, the suit
for ejectment of the appellants from the demised shop was
decreed.
Allowing the appeal by special leave against the Judg-
ment and Decree of the High Court preferred by the heirs of
the tenant Anandi Bai, this Court,
HELD: Under Hindu Succession Act the heirs of the de-
ceased tenant are entitled to succeed, not only to his/her
business but also to his/her tenancy rights under the Rent
Act which protects the
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8
heirs from ejectment except in accordance with that Act.
Therefore, despite the termination of the tenancy, the
tenancy rights are heritable and the heirs of the tenant are
entitled to enjoy the protection of the Act. [18A-B]
Admittedly Smt. Anandi Bai was inducted into possession
of the demised property under a contract of tenancy which
was determined by issuance of a notice under Section 106 of
Transfer of Property Act. Even thereafter she continued to
remain in possession as statutory tenant under the Act. The
finding of the Trial Court as affirmed by the First Appel-
late Court is that the respondent landlord after termination
of tenancy received the rent from her and thereby she became
tenant holding over till the date of her death. [18F-G]
The appellants by virtue of intestate succession under
Hindu Succession Act, being Class I heirs, succeeded to the
heritable interest in the lease hold right of the demised
premises held by Smt. Anandi Bai. They, thereby, stepped
into the shoes of the tenant. They continued to remain in
possession as on the date of the suit as statutory tenants.
Thereby, they are entitled to the protection of their con-
tinuance as a statutory tenant under the Act. [19B-C]
J.C. Chaterjee v. Sri Kishan, [1973] 1 SCR 850; Damadi-
lal & Ors. v. Parashram & Ors., [1976] Suppl. SCR 645; Anand
Niwas (Pvt.) Ltd. v. Anandji Kalyanji Pedhi & Ors., [1964] 4
SCR 892; Smt. Gian Devi Anand v. Jeevan Kumar & Ors., [1985]
Suppl. SCR 1; V. Dhanpal Chattiar v. Yesodai Ammal, [1980]
1 SCR 334’and Bhavarlal Labhchand v. Kanaivalal Nathalal
Intawala, [1986] 1 SCC 571, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5052 of
1985.
From the Judgment and Order dated 5.7.1989 of the Rajas-
than High Court in Regular Civil Second Appeal No. 240 of
1978.
B.D. Sharma for the Appellants.
D. Bhandari for the Respondent.
The Judgment of the Court was delivered by
K. RAMASWAMY, J. 1. The appellants had leave under
9
Article 136 to appeal against the judgment and decree of the
High Court of Rajasthan at Jaipur Bench in Second Appeal No.
240 of 1978 dated July 5, 1985 reversing the decrees of the
Courts below and decreeing the suit for ejectment of the
appellants from the demised shop in Jaipur. The facts lie in
a short compass: that Smt. Anandi, wife of the first appel-
lant and the mother of the second appellant, Nand Kishore
had lease of the demised premises for 11 months from May 1,
1964 on payment of monthly rent of Rs. 18 which expired on
March 31, 1965. The respondent landlord terminated the lease
by a notice under section 106 of Transfer of Property Act
but she remained in possession and enjoyment of the shop
carrying on small kirana business. She died in September,
1966. The demised premises are governed by the Rajasthan
Premises (Control of Rent and Eviction) Act, 1950 (Act 26 of
1950 for short the ’Act’). Section 13(1) thereof,
postulates that "notwithstanding anything contained in any
law or a contract, no court shall pass any decree or make
any order in favour of the landlord, whether in execution of
a decree or otherwise evicting the tenant so long as he is
ready and willing to pay rent thereof to the full extent
allowable by the Act" unless the landlord proves to the
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satisfaction of the court any one of the grounds enumerated
in Clauses ’a’ to ’k’ thereof. The action for ejectment was
initiated by the respondent on the premise that on the death
of the tenant, the appellants have no right to continue in
occupation of the demised premises. The findings recorded by
all the courts are that Smt. Anandi was the tenant. The
appellants during her life time, had not carried on the
business with her till date of her death. The Trial Court
dismissed the suit on the ground that Smt. Anandi paid and
the respondent accepted the rent after determination of the
lease. So she was a tenant holding over. During the pendency
of the appeal, the Act was amended through Rajasthan Prem-
ises (Control of Rent and Eviction) Ordinance 26 of 1975
which was replaced by Act 14 of 1976 (for short the ’Amend-
ment Act’). Therein the definition of ’Tenant’ was amended
by Section 3(ii) of the Amendment Act introducing to Section
3 Clause (vii), thus:
"(vii) "tenant" means--
(a) The person by whom or on whose account or behalf
rent is, or, but for a contract express or implied, would be
payable for any premises to his landlord including the
person who is continuing in its possession after the termi-
nation of his tenancy otherwise than by a decree for evic-
tion passed under the provisions of this Act; and
10
(b) In the event of death of the person as is referred
to in sub-clause (a), his surviving spouse, son, daughter
and other heir in accordance with the personal law applica-
ble to him who had been, in the case of premises leased out
for residential purposes, ordinarily residing and in the
case of premises leased out for commercial or business
purposes, ordinarily carrying on business with him in such
premises as member of his family upto his death."
Consequently, the appellants amended the written state-
ment adding therein paragraphs Nos. 16 and 17 contending
that they have been jointly carrying on the business in the
demised premises alongwith Smt. Anandi Bai, therefore, they
are entitled to the continuance of the tenancy. The amend-
ment was allowed by the Appellate Court and it called for a
finding from the Trial Court in that regard. After giving an
opportunity to both the parties to adduce evidence afresh
the Court recorded the finding in the negative. On its
receipt and consideration thereof the appellate court af-
firmed the finding but confirmed the decree of the Trial
Court on other grounds. The High Court held that..as the
appellants had not carried on the business with the tenant
during her life time as family business they were not enti-
tled to the benefit of the amended definition of the tenant.
Accordingly decreed the suit.
(2) The contention of the learned counsel for the appel-
lants is that the lease hold right is an heritable estate
and on death of the tenant in September, 1966, the succes-
sion thereto was opened and the appellants, being Class I
heirs under the Hindu Succession Act, 1956 inherited by
intestate succession the lease hold estate in the tenancy
rights held by Smt. Anandi. The said right received express
recognition under the Amendment Act which is not in deroga-
tion to the personal law. The High Court, thereby, committed
manifest error of law. Shri Dalveer Bhandari, learned coun-
sel for the respondent, on thorough preparation of the case,
has vehemently resisted the contention. He also circulated
written arguments. According to him preceding the Amendment
Act the commercial or business tenancy was not heritable as
held in J.C. Chaterjee v. Sri Kishan. [1973] 1 SCR 850 by
the High Courts of Rajasthan, Punjab and Haryana and Delhi.
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For the first time the right to succession has been created
under the Amendment Act. The finding recorded by all the
courts is that during the life time and till the date of
death of the tenant, Smt. Anandi, the appellants did not
carry on business with her as family business in the
11
demised premises. On determination of tenancy the appellants
became trespassers. Thereby the appellants became disenti-
tled to remain in possession of the demised premises. It is
seen that Section 13(1) of the Act engrafts non obstenti
clause, namely, "notwithstanding anything contained in any
law or contract no court shall pass any decree of eviction
against the tenant so long as the tenant is ready and will-
ing to pay rent therefore to the full extent allowable by
the Act" unless one or other ground or grounds specified in
Clauses ’a’ to ’k’ of sub-section (1) of Section 13 are
established. Admittedly, the settled legal position preced-
ing the amendment act, prevailing in the State of Rajasthan
was that the lease hold rights of the tenanted premises for
commercial or business purposes governed by the Act is not
heritable. It is a personal right to the tenant. A reading
of the amendment to the definition of ’tenant’ in Section 3
Sub-Clause (vii)(b) makes the legislative intent manifest
that from the date of the Amendment Act came into force, on
the death of the tenant, his surviving spouse, son, daughter
and other heir, in accordance with personal law as applica-
ble to him, who had been, in the case of the premises leased
out for residential purposes, ordinarily residing and, in
the case of premises leased out for commercial or business
purposes, ordinarily had been carrying on business with
him/her in such premises as members of his/her family upto
his/ her death. Therefore, under the amended definition of
tenant, if one seeks to make avail of the benefit of statu-
tory tenancy under the Act, he must establish to the satis-
faction of the court that the surviving spouse, son or
daughter and other heir, in case of residential purposes,
he/she/they--ordinarily had been residing in the premises
along with the tenant and continued to do so till date of
death of the tenant. Similarly, in respect of premises
leased out for commercial or business purposes it must be
established that the surviving spouse or son or daughter and
the heir as the case may be ordinarily had been carrying on
the business during the life time of the tenant as members
of the family in the demised premises and continued to do
the business till date of the death of the tenant. In other
words to avail of the statutory right under section
3(viii)(b) there must continue to subsist the unity of
action and continuity of membership of the family between
the deceased tenant and the spouse etc. The break in either
of the links snaps off the right denuding the continuity of
the statutory tenancy.
(3) Every tenancy is rounded, initially, upon a con-
tract. The contractual tenant has an estate or property in
the lease-hold interest of the tenancy and his heritability
is an incidence of the tenancy. Despite termination of the
tenancy this Court ecologised the resultant consequences in
Damadilal & Ors. v. Parashram & Ors., [1976] Suppl.
12
SCR 645 in which three Judges Bench held that:
"It cannot be assumed, however, that with the determination
of the tenancy the estate must necessarily disappear and the
statute can only preserve his status of irremovability and
not the estate he had in the premises in his occupation."
The facts in that case were that the tenancy of business
premises was governed by the Madhya Pradesh Accommodation
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Control Act, 1961. The contracted tenancy was determined and
a suit for eviction from a shop was laid in the Civil Court
against the tenant. During its pendency he died and his
legal representatives were sought to come on record which
was resisted. The word ’tenant’ had been defined under sec-
tion 2(1) of that Act, thus:
"a person by whom or on whose account or behalf the rent of
any accommodation is, or, but for a contract express or
implied would be payable for any accommodation and includes
any person occupying the accommodation as a subtenant and
also any person continuing in possession after the termina-
tion of his tenancy whether before or after the commencement
of this Act; but shall not include any person against whom
any order or decree for eviction has been made"
he definition is the same as in the present case on hand
under Clause (a) of Sec. 3(vii) of the Rajasthan Act. It was
contended that the tenancy came to a terminus with its
determination by issuance of notice under section 106 of
Transfer of Property Act and the legal representatives do
not succeed to the estate of the deceased tenant so as to
prosecute the proceedings. While repelling that contention,
noticing the definition referred to above, Gupta, J.
speaking for the court held that:
"The definition makes a person continuing in possession
after the determination of his tenancy a tenant unless a
decree or order for eviction has been made against him, thus
putting him on par with a person whose contractual tenancy
still subsists. The incidents of such tenancy and a contrac-
tual-tenancy must, therefore, be the same unless any provi-
sion of the Act conveyed a contrary intention. That under
this Act such a tenant retains an interest in the
13
premises, and not merely a personal right of occupation,
will also appear from section 14 which contains provisions
restricting the tenant’s power of subletting ......
There is nothing to suggest that this section does not apply
to all tenants as defined in Section 2(i). A contractual
tenant has an estate or interest in premises from which he
carves out what he gives to the sub-tenant. Section 14 read
with section 2(i) makes it clear that the so-called statuto-
ry tenant has the right to sub-let in common with a contrac-
tual tenant and this is because he also has an interest in
the premises occupied by him."
Accordingly it was held that they succeeded as legal
representatives to the lease-hold interest of the commercial
premises.
(4) How to resolve the controversy between the ratio
therein and that of majority contra view taken in Anand
Niwas (Pvt.) Ltd. v. Anandji Kalvanji Pedhi & Ors., [1964] 4
SCR 892 and Jagdish Chander Chaterjee & Ors. v. Sri Kishan &
Anr., (supra), the later case on which heavy reliance was
placed by Mr. Dalveer Bhandari that arose directly under the
Rajasthan Rent Control Act, referred to the Constitution
Bench in Smt. Gian Devi Anand v. Jeevan Kurnar & Ors.,
[1985] Suppl. SCR 1. The facts therein were that the defini-
tion of tenant under the unamended Delhi Rent Control Act,
similar to Section 3(vii)(a) of the Act was in vogue in the
Delhi Rent Control Act, 1958. The premises in question
therein was commercial premises. The definition of tenant
was amended with retrospective effect. The contention raised
was that the amended Act accords heritability to residential
tenancy while omitting the benefit to commercial or business
tenancy. The legal representatives of the deceased tenant,
did not acquire heritable interest in the commercial tenancy
under that Act. A.N. Sen, J. speaking for the Constitution
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Bench surveyed the case law in extenso and upheld the view
in Darnadilal’s case. It was held at p. 24 to 25 thus:
"For an appreciation of the question it is necessary to
understand the kind of protection that is sought to be
afforded to a tenant under the Rent Acts and his status
after the termination of the contractual tenancy under the
Rent Acts. It is not in dispute that so long as the contrac-
tual tenancy remains subsisting, the contractual tenan-
cy creates heritable rights; and, on the death of a
14
contractual tenant, the Heirs and legal representatives step
into the position of the contractual tenant, and in the same
way on the death of a landlord the heirs and legal represen-
tatives of a landlord become entitled to all the rights and
privileges of the contractual tenancy and also come under
all the obligations under the contractual tenancy. The Rent
Acts seek to preserve social harmony and promote social
justice by safeguarding the interests of the tenants mainly
and at the same time protecting the legitimate interests of
the landlords. Though the purpose of the various Rent Acts
appear to be the same, namely, to promote social justice by
affording protection to tenants against undue harassment and
exploitation by landlords, providing at the same time for
adequate safeguards of the legitimate interests of the
landlords, the Rent Acts undoubtedly lean more in favour of
the tenants, for whose benefit the Rent Acts are essentially
passed. It may also be noted that various amendments have
been introduced to the various Rent Acts from time to time
as and when situation so required for the purpose of miti-
gating the hardship of tenants ..... Though provisions of
all the Rent Control Legislation is- that a contractual
tenant on the termination of the contractual tenancy is by
virtue of the provisions of the Rent Acts not liable to be
evicted as a matter of course under the ordinary law of the
land and he is entitled to remain in possession even after
determination of the contractual tenancy and no order or
decree for eviction will be passed against a tenant unless
any ground which entitles the landlord to get an order or
decree for possession specified in the Act is established.
In other words, the common feature of every Rent Control Act
is that if affords protection to every tenant against evic-
tion despite termination of tenancy except on grounds recog-
nised by the Act and no order or decree for eviction shall
be passed against the tenant unless any such ground is
established to the satisfaction of the Court ...... "
(5) The seven Judges Bench of this Court reported in V.
Dhanpal Chettiar v. Yesodai Ammal. [1980] 1 SCR 334 while
considering the effect of termination of the tenancy under
Section 106 of Transfer of Property Act vis-a-vis right of
the tenant under T.N. Buildings (Lease & Rent) Control Act,
1960 held that ’various State Rent Control Acts make serious
encroachment in the field of freedom of
15
contract. It does not permit the landlord to snap his rela-
tionship with the tenant merely by his act of serving a
notice to quit on him. In spite of the notice, the law says
that he continues to be a tenant and he does so enjoying all
the rights of a lessee and at the same time is deemed to be
under all the liabilities such as payment of rent etc., in
accordance with law. Similarly while considering the lan-
guage of Section 10(1) of the A.P. Building (Lease, Rent and
Eviction Control) Act, 1960 similar to Section 13(1) of the
Act, whether the statutory lease is to be terminated by
issuance of notice under Section 106 of the Transfer of
Property Act, it was further held at p. 352 B that "even a
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special provision is provided by way of abundant precaution
only that without this a tenant continuing in possession
after the termination of the contractual tenancy and until
an eviction order is passed against him, continues on the
same terms and conditions as before and he cannot be evicted
unless a ground is made out for his eviction according to
the State Rent Act". In Gian Devi Anand’s case the Constitu-
tion Bench further held at p. 32 F that:
"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 no with standing the termination of tenancy does
enjoy an estate or interest in the tenanted premises. This
interest or estate which the tenant under the Act, despite
termination of the contractual tenancy, continues to enjoy
creates a heritable interest in the absence of any provision
to the contrary ......
at p. 33E to G it was held that:
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 this 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 Sec-
tion 2(1) (iii). It appears that the Legislature has not
thought it fit to put any such restrictions with regard to
tenants in respect of commercial premises in this Act."
16
at p. 35D to G, it was observed that:
So long as the contractual tenancy of a tenant who carries
on the business continues, there can be no question of the
heirs of the deceased tenant not only inheriting the tenancy
but also inheriting the business and they are entitled to
run and enjoy the same. We have earlier held that mere
termination of the contractual tenancy does not bring about
any change in the status of the tenant and the tenant by
virtue of the definition of the ’Tenant’ in the Act and the
other Rent Acts continue to enjoy the same status and posi-
tion unless there be any provisions in the Rent Acts which
indicate to the contrary. The mere fact that in the Act no
provision has been made with regard to the heirs of tenants
in respect of commercial tenancies on the death of the
tenant after termination of the tenancy, as has been done in
the case of heirs of the tenants of residential premises,
does not indicate that the legislature intended that the
heirs of the tenants of commercial premises will cease to
enjoy the protection afforded to the tenant under the
Act .....
at p. 36 B to 37 A it was concluded that:
We are of the opinion that in case of commercial premises
governed by the Delhi Act, the Legislature has not thought
it fit in the light of the situation at Delhi to place any
kind of restriction on the ordinary law of inheritance with
regard to succession. It may also be borne in mind that in
case of commercial premises the heirs of the deceased tenant
not only succeed to the tenancy rights in the premises but
they succeed to the business as a whole. It might have been
open to the Legislature to limit or restrict the right of
inheritance with regard to the tenancy as the Legislature
had done in the case of the tenancies with regard to the
residential houses but it would not have been open to the
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Legislature to alter under the Rent Act, the Law of Succes-
sion regarding the business which is a valuable heritable
right and which must necessarily devolve on all the heirs in
accordance with law. The absence of any provision restrict-
ing the heritability of the commercial tenancies notwith-
standing the determination of the contractual tenancies will
devolve on the heirs in accordance with law and the heirs
who step into the position of the deceased tenant will
continue to
17
enjoy the protection afforded by the Act and they can only
be evicted in accordance with the provisions of the Act.
There is another’ significant consideration which, in our
opinion, lends support to the view that we are taking.
Commercial premises are let out not only to individuals but
also to Companies,. Corporation or anybody with juristic
personality, question of the death of the tenant will not
arise. Despite the termination of the tenancy, the Company
or the Corporation or such juristic personalities, however,
will go on enjoying the protection afforded to the tenant
under the Act. It can hardly be conceived that the Legisla-
ture Would intend to deny to one class of tenants, namely,
individuals the protection which will be enjoyed by the
other class, namely, the Corporations and Companies and
other bodies with juristic personality under the Act. If it
be held that commercial tenancies after the termination of
the contractual tenancy of the tenant are not heritable on
the death of the tenant and the heirs of the tenant are not
entitled to enjoy the protection under the Act, an irrepara-
ble mischief which the Legislature would never have intended
is likely to be caused."
(6) On the facts of the case it was held that the tenant
who continues to remain in possession even after the termi-
nation of the contractual tenancy till a decree for eviction
against him is passed, continues to have an estate or inter-
est in the tenanted premises and tenancy rights in respect
of commercial premises are heritable. There is no provision
in the Act regulating the rights of its heirs to inherits
the tenancy rights of the tenanted commercial or business
premises. The tenancy rights devolved on the heirs under the
ordinary law of succession. Accordingly it was held that the
tenancy rights of Wasti Ram devolved on all the heirs of
Wasti Ram on his death. The ratio with equal force applies
to the facts of this case.
The unamended definition of tenant under section 3(vii)
of the Act reads thus:
"tenant" means the person by whom the rent is, or but for a
contract express or implied would be, payable for any prem-
ises and includes any person holding or occupying the prem-
ises as a sub-tenant, or any person continuing in possession
after the termination of a tenancy in his favour otherwise
than under the provisions of the Act."
18
This definition is mutatis mutandis same as the one
defined under Madhya Pradesh Act and also the Delhi Rent
Act. Equally it would be tile same under the amended clause
’a’ of section 3(vii) with slight elongation. Under Hindu
Succession Act the heirs of the deceased tenant are entitled
to succeed, not only to his business, but also to his tenan-
cy rights under the Rent Act which protects the heirs from
ejectment except in accordance with that Act. Therefore,
despite the termination of the tenancy, the tenancy rights
are heritable and the heirs of the tenant are entitled to
enjoy the protection of the Act.
(7) The ratio in Bhavarlal Labhchand Shah v. Kanaiyalal
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Nathalal Intawala, [1986] 1 SCC 571 does not help the re-
spondent. The facts therein was that the tenant by testimen-
tary disposition "will" bequeathed his occupancy rights in
the tenanted property in favour of the stranger legatee. The
question was whether such a legatee is entitled to the
benefit of continuance of tenancy under Bombay Rents, Hotel
and Lodging House Rules Control Act. 1947. It was held that
since the bequest was in favour of the third party, the
testator thereby, cannot confer rights under the provisions
the Rent Act on the stranger who was not a member of the
family. The march of law culminated in Gian Devi Anand’s
case knocked of the bottom of A.C. Chaterjee’s ratio. Simi-
larly the foundation in Sita Ram v. Govind, [1969] Weekly
Law Notes p. 108; Balkesh and another v. Shanti Devi and
others, reported in 1972 Rent Control Tribunal p. 285 and
Mohan Lal v. Jaipur Hosiery MIlls Pvt. Ltd. reported in 1974
Rent Control Journal p. 240 has been shaken and no longer
remain to be good law.
(8) Admittedly Smt. Anandi was inducted into possession
of the demised property under a contract of tenancy which
was determined by issuance of notice under Section 106 of
Transfer of Property Act. Even thereafter she continued to
remain in possession as statutory tenant under the Act. The
finding of Trial Court as affirmed by the first appellate
court is that the respondent landlord after termination of
tenancy received the rent from her and thereby she became
tenant holding over till date of her death.
Smt. Anandi enjoyed the status as a statutory tenant of
the premises even after the determination of the tenancy.
Notwithstanding the termination of the contractual tenancy
the jural relationship of the landlord and tenant between
the respondent and Smt. Anandi under the Act was not snapped
off. The heritable property or interest in the lease hold
right in the tenancy continued to subsist in the tenant
Anandi.
19
On her death, the rights to succession to an estate of
the deceased owner vested immediately on his/her than near-
est heirs and cannot be held in abeyance except when a
nearer heir is then in the womb. The vested right can not be
divested except by a retrospective valid law. The appellants
by virtue of intestate succession under Hindu Succession
Act, being Class I heirs, succeeded to the heritable inter-
est in the lease hold right of a demised premises held by
Smt. Anandi. They, thereby, stepped into the shoes of the
tenant. They continued to remain in possession as on the
date of the suit as statutory tenants. Thereby, they are
entitled to the protection of their continuance as a statu-
tory tenant under the Act. The succession having been opened
to the appellants and succeeded in September, 1966 to the
estate of the tenant without any hiatus and restriction on
the heritable interest in the lease-hold right held by the
tenant Smt. Anandi, the Amendment Act being admittedly
prospective in operation, does not apply to the facts of the
case and does not have the effect of divesting their vested
rights in the lease-hold held by the tenant. They are enti-
tled to enjoy the tenancy rights without any restrictions or
hedge put by the Amendment Act. We, thereby, hold that the
Amending Act does not apply to the facts of this case. But
the appellants succeeded to the heritable interest in the
lease-hold right in the demised premises governed by the Act
subject to the rights and limitations prescribed under the
Act and also subject to the rights in favour of the respond-
ent created under section 13(1) (a) to (k) and other provi-
sions of the Act.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 10
(9) Accordingly, we have no hesitation to hold that the
appellants are entitled to remain in possession of the
demised shop in question till the appellants are duly evict-
ed in accordance with the provisions of the Act as amended
from time to time. The appeal is accordingly allowed and the
decree and judgment of the High Court is reversed and that
of the Trial Court is restored. The suit, accordingly,
stands dismissed but in the circumstances, each party is
directed to bear their own costs throughout-
R.N.J. Appeal dis-
missed.
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