9911796707
TMI Blog1986 (1) TMI 381X X X X Extracts X X X X X X X X Extracts X X X X ..... business in the said shop premises and before her death she bequeathed her tenancy right in the said shop by a will in favour of the petitioner. After her death the will was probated. The Petitioner who had got into possession of the premises in question claimed that Maniben had a tenancy right under the Act which was heritable and as such she could validly bequeath the tenancy right in his favour. It was however admitted by the petitioner that she was not a contractual tenant but her right to tenancy was only a right protected by the Act. The landlord instituted a suit in Rent Suit No. 47 of 1975 on the file of the Small Causes Court at Baroda for recovering vacant possession of the said building contending that the petitioner was not a tenant and could not continue any longer in it. By way of defence the petitioner set up the will referred to above and asserted that he had become a tenant thereunder and could not be evicted from the premises. The Small Causes Court agreeing with the petitioner that he had acquired the tenancy right under the will dismissed the suit. The landlord filed an appeal before the Extra Assistant Judge, Baroda against the decree dismissing the suit. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (aa) any person to whom interest in premises has been transferred under the proviso to sub-section (1) of section 15 ; (b) any person remaining, after the determination of the lease, in possession, with or without the assent of the landlord, of the premises leased to such person or his predecessor who has derived title before commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Ordinance (Bom. Ord. No. III of 1959). (c)(i) in relation to premises let for residence, any member of the tenant's family residing with the tenant at the time of or within three months immediately preceding the death of the tenant as may be decided in default of agreement by the Court, and (ii) in relation to premises let for business, trade or storage any member of the tenant's family carrying on business, trade or storage with the tenant in the said premises at the time of the death of the tenant as may continue, after his death, to carry on the business, trade or storage, as the case may be in the said premises and as may be decided in default of agreement by the Court. We are concerned in this case with a building which is let for business and insofar as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I.R. 1985 S.C. 796 at page 810 :- In the absence of the provision contained in subsection 2(1) (iii), the heritable interest of the heirs of the statutory tenant would devolve on all the heirs 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 herein are entitled to remain in possession and to enjoy the protection under the Act in the manner and to the extent indicated in section 2(1) (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(1) (iii) of the Act does not create any additional or special right in favour of the heirs of the 'so calle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e cannot be bequeathed to any person under a will who does not satisfy the qualification, referred to in section 5(11) (c) (ii) of the Act. In Gian Devi's case (supra) the Court was not concerned with the right of a tenant to bequeath his right to remain in possession of a premises after the determination of the lease which he possessed under the statute in favour of a third party under a will. The Court was dealing with the case of persons who claimed that they had inherited such right by way of intestate succession. Naturally the Court was inclined to take a view favourable to the members of the family of the tenant who would be exposed to grave difficulties if they were to be thrown out of the demised premises in which the tenant was carrying on his business till his death. This is clear from the following observations of A.N. Sen, J. at page 811 :- A tenant of any commercial premises has necessarily to use the premises for business purposes. Business carried on by a tenant of any commercial premises may be and often is, his only occupation and the source of livelihood of the tenant and his family; and the tenant, if he is residing in a tenanted house, may also be paying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r such a right on him and exclude the right of a landlord to get back possession of his building for ever even after the death of the tenant with whom he had entered into contract initially. Perhaps even in the case of a person who may succeed under sub-clauses (i) and (ii) of section 5(11)(c) there can be no further devolution after his death again under these sub-clauses. This question however need not be pursued in this case. (However see Para 602 Vol. 27 Halsbury's Laws of England 4th Edn.). When in the case before us the Legislature has restricted the right to inherit the right to the tenancy of the premises let out for business, trade or storage to any member of a tenant's family carrying on business, trade or storage with the tenant at the time of his death it is not open to the Court by judicial construction to extend the said right to persons who are not members of the tenant's family who claim under testamentary succession. In Jaspal Singh v. The Additional District Judge, Bulandshahr Ors. A.I.R. [1984] S.C. 1880, this Court had occasion to consider the validity of a bequest of the right of a tenant to continue to occupy the premises after the determinati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act reads thus: 15. In absence of contract to the contrary tenant not to sublet or transfer - (1) Notwithstanding anything contained in any law, (but subject to any contract to the contrary) it shall not be lawful after the coming in operation of this Act for any tenant to sub-let the whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein. In Dr. Anant Trimback Sabnis v. Vasant Pratap Pandit A.I.R. [1980] Bom. 69, the High Court of Bombay has in the light of the section 15(1) of the Act taken the view and in our opinion rightly that the words 'to assign or transfer in any other manner his interest therein' in section 15(1) of the Act had the effect of prohibiting the disposition of the tenancy right by a will in the absence of a contract to the contrary. The High Court of Bombay observed at pages 72 and 73 thus:- 12. Prohibition against transfer of tenancy rights by the tenants is just a corollary to the restrictions on the landlords and is aimed at protecting them, in turn, by preventing the tenants from abusing these protections by thrusting uncontemplated strangers as tenants on the landlor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be traced only in Section 15 thereof by interpreting the words 'assign' and 'transfer' in their generic sense. This also fortifies our interpretation of these words. The above reasons given by the Bombay High Court in support of its decision are perfectly justified in the context of the object and the scheme of the Act. The language of the statute also lends itself to the same construction. We, therefore, agree with the view taken by the Full Bench of the High Court of Gujarat that on a true interpretation of the provisions of the Act a bequest of the right to the tenancy in respect of premises referred to in section 5(11)(c)(ii) of the Act after the determination of the lease, which is protected by the Act cannot be made under a will in favour of a person not referred to in that sub-clause. We do not find any kind of justification to saddle the landlord with the liability to treat a stranger who is not referred to in sub-clause (ii) of section 5(11)(c) of the Act as a tenant on the basis of a bequest made under a will by the tenant. Since we are disposing of the case on the basis of the express provisions of the Act which are sufficiently restrictive in ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
