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Daljit Singh and ors. Vs. Gurmukh Dass - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 1535 of 1980 and Second Appeal No. 2116 of 1980
Judge
Reported inAIR1981P& H394
ActsHaryana Urban (Control of Rent and Eviction) Act, 1973 - Sections 2; East Punjab Urban Rent Restriction Act, 1949; Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 5(11)
AppellantDaljit Singh and ors.
RespondentGurmukh Dass
Cases Referred(Smt. Savitri Devi v. Nem Chand
Excerpt:
.....bench of the delhi high court, i am of the view that the decision of the supreme curt in ganpat ladha's case (supra) is applicable to the facts of these cases and damadilal's case (supra) is clearly distinguishable and according to the definition of 'tenant' contained in the act, the tenancy rights in a shop or business premises would not be heritable. as such gordhan dass's case (supra) is clearly distinguishable......to this act and were ordinarily residing with him at the time of his death...' according to the tenant's heirs, the aforesaid words should be interpreted to mean that all persons who were residing with the tenant at the time of his death whether in the tenanted premises or not, would inherit the tenancy rights of the deceased in respect of premises or not, would inherit the tenancy rights of the deceased in respect of premises which were on lease with the deceased, which would include the residential house as also commercial building including shop. on the other hand, the interpretation placed by the owners of the property is that the tenancy rights would be heritable in respect of residential premises only and that is to such persons as are mentioned in the schedule and who were.....
Judgment:
ORDER

1. Whether the heirs of a tenant in respect of a shop can be considered as tenants to claim protection under the Haryana Urban (Control of Rent and Eviction) Act, 1973(hereinafter called the Act), is the main point for decision of these two cases, (Civil Revision No. 1535 of 1980 and Regular Second Appeal No. 2116 of 1980).

2. The facts of this civil revision are that Gurmukh Singh was tenant in respect of a shop situate within the Municipal limits of Faridabad Town under Gurmukh Dass, Gurmukh Singh tenant died on 3rd June, 1978, and since his heirs occupied the shop thereafter Gurmukh Dass filed a civil suit on 6th June, 1979, for ejectment of the heirs of Gurmukh Singh tenant and for recovery of arrears of rent up to the date of death of Gurmukh Singh and thereafter for mesne profits. The plaintiff's case was that under the Act the tenancy in respect of a shop was not heritable and, therefore, the position of the defendants was that of a trespasser. In the written statement the stand of the defendant was that the tenancy was heritable and as such the civil suit is not competent in view of the Act. On the contest of the parties a preliminary issue was framed as to whether the Civil Court has jurisdiction to try the suit, the trial Court by order dated 28th of April, 1980. Came to the conclusion that the tenancy in respect of a shop was not heritable under the Act and, therefore, the defendant could not be treated as tenants and as such the suit was competent. Against the aforesaid order, the defendants have come up in revision to this Court.

3. The facts of R. S. A. No. 2116 of 1980 are that Chuni Lal was a tenant in respect of a shop situate within the Municipal limits of Jhajjar under Ashwani Kumar Kashyap, Chuni Lal died on 4th of June, 1978, and after his death his son Om Parkash occupied the shop on 5th of February, 1979. Ashwani Kumar shop against Om Parkash alleging that under the Act the tenancy was heritable and as such the possession of Om Parkash was unauthorised. The plea of heritable and as such he was the tenant and, therefore, the civil suit was not competent. The trial Court, by judgment and decree dated 30th January, 1980, came to the conclusion that the tenancy in respect of shop is not heritable and decreed the suit for possession. On defendant's appeal the learned District Judge agreed with the trial Court and dismissed the appeal on 8th of May, 1980. The defendant has come to this Court in second appeal.

4. In order to appreciate the point, it would be useful to notice the provisions of the Act. The Act was published in the Haryana Government Gazette (extraordinary) dated 27th April, 1973 and by the enforcement of the Act, the East Punjab Urban Rent Restriction Act, 1949 was repealed so far as the State of Haryana is concerned. The definition of 'tenant' contained in Section 2(h) of the Act is as follows:--

'2(h) '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 the termination of his tenancy and in the event of such person's death, such of his heirs as are mentioned in the Schedule appended to this Act and who were ordinarily residing with him at the time of his death, 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 person to whom the collection of rent of fees in a public market, cart-stand or slaughter-house or of rents for shops has been framed out, or leased by a Municipal town or notified area committees.' Out of the afore said definition, the crucial words which will fall for determination are: '.... and in the event of such person's death, such of his heirs as are mentioned in the schedule appended to this Act and were ordinarily residing with him at the time of his death...'

According to the tenant's heirs, the aforesaid words should be interpreted to mean that all persons who were residing with the tenant at the time of his death whether in the tenanted premises or not, would inherit the tenancy rights of the deceased in respect of premises or not, would inherit the tenancy rights of the deceased in respect of premises which were on lease with the deceased, which would include the residential house as also commercial building including shop. On the other hand, the interpretation placed by the owners of the property is that the tenancy rights would be heritable in respect of residential premises only and that is to such persons as are mentioned in the Schedule and who were ordinarily residing with the tenant at the time of his death and not in respect of such premises, in which the heirs could not ordinarily resides with the tenant at the time of his death.

5. No doubt, a question of law as to the proper interpretation of the aforesaid provision does arise for consideration in these cases but I find that the matter already stands answered by the Supreme Court in Ganpat Ladha v. Sashikant Vishnu Shinde, AIR 1978 SC 955, in favour of the owners of the property and against the heirs of the tenants. The Supreme Court was concerned with the interpretation of the definition of 'tenant' contained in Section 5(11)(c) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, which included 'any member of the tenant's family residing with him at the time of his death ....' There also the definition of 'tenant' came up for consideration to find out if the heirs of a tenant of shop could succeed to the tenancy and it was concluded as follows (at p. 958):--

'It is difficult to see how in case of business premises the need for showing residence with the original tenant at the time of his death would be relevant. It is obvious from the language of Section 5(11)(c) that the intention of the legislature in giving protection to a member of the family of the tenant residing with him at the time of his death was to secure that on the death of the tenant, the member of his family residing with him at the time of his death is not thrown out and this protection would be necessary only in case of residential premises. When a tenant is in occupation of business premises, there would be not question of protection against, dispossession of a member of the tenant's family residing with him at the time of his death. The tenant may be carrying on a business in which the member of his family residing with him may not have any interest at all and yet on the construction adopted by the High Court, such member of the family would become a tenant in respect of the business premises. Such a result could not have been intended to be brought about by the legislature. It is difficult to discern any public policy which might seem to require it. The principle behind S. 5(11)(c) seems to be that when a tenant is in occupation of premises, the tenancy is taken by him not only for his own benefit, but also for the benefit of the members of the family residing with him and, therefore, when the tenant dies, protection should be extended to the members of the family who were participants in the benefit of the tenancy and for whose needs inter alia the tenancy was originally taken by the tenant. This principle underlying the enactment of S. 5(11)(c) also goes to indicate that it is in respect of residential premises that the protection under that section is intended to be given.'

6. Counsel for the heirs of the tenant, however, placed reliance on the decision of the Supreme Court in Damadilal v. Parashram, AIR 1976 SC 2229. After going through the afore said decision, I find that the definition of 'tenant' in that case was entirely different from the definition of 'tenant' in the Ganpat Ladha's case (AIR 1978 SC 955) and in the Act. Both the aforesaid decisions of the Supreme Court were referred to before a full Bench of the Delhi High Court in Haji Mohammed Din v. Narai Dass, (1979). 1 Ren LR 295: (AIR 1979 Delhi 186) to find out if a provision like the one in the Act would make tenancy heritable for residential purposes only or the benefit could be extended to non-residential premises also. The definition which fell for consideration in the aforesaid decision was as follows:--

' 'tenant' means ... ..... and includes...... in the event of the death of the person continuing in possession after the termination of his tenancy subject to the order of succession and conditions specified.......as had been ordinarily living in the premises with such person as a member or members of his family up to the date of his death........'

This definition was considered to be similar to that contained in Ganpat Ladha's case (supra) and the decision of the supreme court in Damadilal's case (supra) was distinguished. Similar is the view of a Division bench of the Madras High Court in Haji Abdullah Sait v. K. Sanjeevi Rao, (1980) 1 Ren CR 197. Agreeing with the full Bench of the Delhi High Court, I am of the view that the decision of the Supreme Curt in Ganpat Ladha's case (supra) is applicable to the facts of these cases and Damadilal's case (supra) is clearly distinguishable and according to the definition of 'tenant' contained in the Act, the tenancy rights in a shop or business premises would not be heritable.

7. The aforesaid view of mine finds ample support from a short judgment rendered by J. V. Gupta, J., on 18th December, 1980, in R. S. A. No. 2715 of 1980,* Om Parkash v. Smt. Kailash Wati. The operative part of the judgment is as follows:--

'The premises, in dispute, is a shop situated in Ambala, in the State of Haryana. Both the Courts below relying on AIR 1978 SC 955, have held that the tenancy was not heritable; particularly in view of the definition of the term 'tenant' as given in the Haryana Urban (Control) of Rent and Eviction) Act, 1973. Again in AIR 1979 SC 1121, it has been made clear by their Lordships of the Supreme Court, that the Supreme Court had not laid down a wide proposition in AIR 1976 SC 2229, that every statutory tenancy was heritable. In view of the said authoritative pronouncement by their Lordships of the Supreme Court, I do not find any ground to interfere in this second appeal. Dismissed.'

The aforesaid views further supported by a decision of M. R. Sharma, J., in Sarwan Kumar v. Piare Lal, (1979) 81 Pun LR 271.

8. Faced with the situation, the counsel for the heirs of the tenants placed reliance on a decision of I. S. Tiwana, J., in R. S. A. No. 184 of 1980(Gordhan Dass v. Dina Nath), decided on 13th March, 1981, and a Division Bench decision of this Court in Civil Revision No. 2215 of 1978(Smt. Savitri Devi v. Nem Chand), decided on 14 th July, 1980. As regards Gordhan Dass's case (supra) the opening part of the judgment would show that the tenant died on 29th August, 1972, when the East Punjab Urban Rent Restriction Act, 1949, was in force in Haryana and the definition contained in the Act. In the present cases, the tenants died after the Haryana Act came into force and, therefore, the definition contained in the Haryana Act would be applicable. As such Gordhan Dass's case (supra) is clearly distinguishable. Coming to Savitri Devi's case (supra) detailed facts have not been mentioned in the judgment and, therefore, the High court file of the case was sent for and it transpires there from that the succession in respect of tenancy rights of the shop in dispute in that case opened on 17 th January, 1967, long before the Act came into force, and, therefore, two sons of the tenant, namely, Ved Prakash and Amrish Kumar, occupied the shop and continued as tenants after the death of their father. Later on, the landlord sought ejectment of Ved Parkash and Amrish Kumar, the two sons of the original tenant, and was successful in obtaining an order of ejectment against them. The sons filed an appeal in which by compromise the order of ejectment was maintained and 4/5 years time was given to the sons to vacate. Since the sons did not vacate after the expiry of the time allowed, the owner took out execution of the order of ejectment. Their mother filed an objection petition claiming that she too had inherited the tenancy rights in the shop and, therefore, the ejectment order could not be executed against her. Her objections were dismissed by the Executing Court with finding that it was not proved that she ever occupied the shop and in fact it was proved that the two sons, namely, Ved Parkash and Amrish Kumar, alone, occupied the shop. On objector's revision to this Court, the order of the Executing court was maintained on the same reasoning. Hence, this case is also of no avail to the heirs of the tenants. Reverting to the facts of the present two cases, the death of the tenants occurred in the year 1978 when the Haryana Act was in force and undisputedly both the premises are shops and as such the heirs of the tenants did not inherit the tenancy rights. Hence, the Courts below were right in coming to that conclusion.

9. For the reasons recorded above, I do not find any merit in the civil revision or the second appeal. Both are dismissed but without any order as to costs.

10. Revision and second appeal dismissed.


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