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Sh. Bhagwant Singh Vs. Sulekh Chand Jain - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revision No. 2931 of 1988
Judge
Reported in(1993)105PLR238
ActsHindu Succession Act, 1986; Haryana Urban (Control of Rent and Eviction) Act, 1974 - Sections 2
AppellantSh. Bhagwant Singh
RespondentSulekh Chand Jain
Appellant Advocate S.C. Kapoor, Sr. Adv. and; Asish Kapoor, Adv.
Respondent Advocate S.P. Gupta,; Sukant Gupta and; Nipun Mittal, Advs.
DispositionPetition dismissed
Cases ReferredKotkapura v. Sukh Devi
Excerpt:
.....of the protection to be enjoyed in a specified manner by any particular class of heirs of the deceased-tenant on any condition laid down being fulfilled, the benefit of the protection has necessarily to be enjoyed on the fulfilment of the condition in the manner and to the extent stipulated in the act. the legislature which by the rent act seeks to confer the benefit on the tenants and to afford protection against eviction, is perfectly competent to make appropriate provision regulating the nature of protection and the manner and extent of enjoyment of such tenancy rights after the termination of contractual tenancy of the tenant including the rights and the nature of protection of the heirs on the death of the tenant. his contention that once the estate is held to be heritable and..........of the protection to be enjoyed in a specified manner by any particular class of heirs of the deceased-tenant on any condition laid down being fulfilled, the benefit of the protection has necessarily to be enjoyed on the fulfilment of the condition in the manner and to the extent stipulated in the act. the legislature which by the rent act seeks to confer the benefit on the tenants and to afford protection against eviction, is perfectly competent to make appropriate provision regulating the nature of protection and the manner and extent of enjoyment of such tenancy rights after the termination of contractual tenancy of the tenant including the rights and the nature of protection of the heirs on the death of the tenant. such appropriate provision may be made by the legislature both.....
Judgment:

V.K. Jhanji, J.

1. This is tenant's revision petition directed against order of ejectment passed by the Authorities below under the Haryana Urban (Control of Rent and Eviction) Act, 1973, (briefly 'the Act').

2. Briefly, the facts are that one Mahant Sheryo Nath was the owner of the house in dispute. Major Bhup Singh Chhikara was occupying the house as tenant under Mahant Sheryo Nath. The house was sold to Hukam Chand and Sulekh Chand vide registered sale-deed dated 15.4.1981. Sulekh Chand had 3/5th share in the house, whereas 2/5th share was of Hukam Chand. Subsequently, vide three sale-deeds, Hukam Chand sold his share to Sulekh Chand and, thus, Sulekl Chand became the absolute owner of the house. Major Bhup Singh who was it possession of the house as a tenant, died. On his death, Bhagwant Singh, his son, came in occupation of the house. His ejectment was sought by Sulekh Chand on the ground of personal necessity as well as on the ground of non-payment of rent. The arrears of rent were tendered within the stipulated period and, therefore, ground of non-payment of rent no more survives. The tenant, in his written statement, apart from others also, raised an objection that ejectment application was not competent since all the heirs of Major Bhup Singh, who had inherited the tenancy rights, had not been impleaded. The Rent Controller vide order dated 11.6.1987 allowed the ejectment application and in consequence thereof, passed an order of ejectment against Bhagwant Singh, (petitioner herein). On appeal, order of the Rent Controller was affirmed by the Appellate Authority. This is how the present revision petition has been filed by the tenant.

3. Mr. S.C. Kapoor, Sr. Advocate, learned counsel for the petitioner, has raised the following contentions:

(1) That Major Bhup Singh who was a tenant, had an interest in the pemises occupied by him and on his demise, all heirs became the tenants and that in absence of all the heirs, ejectment application was not maintainable.

(2) That provisions in the Act that tenancy rights of a tenant will be deemed to be inherited by the heirs who are found to be in possession of residential building, are void, illegal, ultra- vires and inconsistent with the provisions of the Hindu Succession Act.

(3) That the landlord has failed to establish his requirement of the premises on the ground of personal necessity.

4. In reply to this, Mr. S.P. Gupta, Advocate, learned counsel for the respondent, contended that the petitioner was residing with his father and, thus, he alone would be a tenant within the meaning of Section 2(h) of the Act. With regard to personal necessity, his contention was that the Authorities below have returned a firm finding of fact on this count, which calls for no interference by this Court.

5. It is now well settled that the statutory tenancy as envisaged for a tenant under the protection of the Act, is hereitable and that being so, occupation of demised premises by the heirs of the statutory tenant after his death is as of tenant and it is only the Rent Controller who will have jurisdiction on a petition seeking ejectment of these heirs of the deceased-statutory tenant. While discussing the provisions of the Madhya Pradesh Accommodation Control Act, 1961, it has been held by the Supreme Court in Damadilal and Ors. v. Parshram and Ors.,1 AIR 1976 S.C. 2229, that 'the defintion of 'tenant' 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 word 'tenant' has been defined in Section 2(h) of the Act which reads 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 persons 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 or fees in a public market, cart-stand or slaughter-house or of rents for shops has been formed out, or leased by a municipal, town or notified area committee.'

SCHEDULE

Son, daughter, widow, father, mother, grandfather, grandmother, son of a pre-deceased son, unmarried daughter of a pre- deceased son, widow of a pre-deceased son and widow of a pre- deceased son of a pre-deceased son.'

It is, therefore, clear that the tenant within the meaning of 'tenant' in the Act, not only includes a person continuing in possession after the termination of his tenancy, but also on his 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.

6. The contention of Mr. Kapoor, learned counsel for the petitioner, that ejectment application was not maintainable because all the heirs were not made parties, cannot be accepted for the reason that protection under the Act has been afforded only to such heirs as mentioned in the Schedule and who were ordinarily residing with him at the time of his death. It has been held by Supreme Court in Gian Devi Anand v. Jeewan Kumar and Ors.,2 (1985-1) 87 P.L.R.D 143 (SC), (a decision by Five Judges of the Supreme Court) that 'the protection afforded by the Rent Act to a tenant after determination of the tenancy and to his heirs on the death of such tenant is a creation of the Act for the benefit of the tenants, it is open to the Legislature which provides for such protection to make appropriate provisions in the Act with regard to the nature and extent of the benefit and protection to be enjoyed and the manner in which the same is to be enjoyed. If the Legislature makes any provision in the Act limiting or restricting the benefit and the nature of the protection to be enjoyed in a specified manner by any particular class of heirs of the deceased-tenant on any condition laid down being fulfilled, the benefit of the protection has necessarily to be enjoyed on the fulfilment of the condition in the manner and to the extent stipulated in the Act. The Legislature which by the Rent Act seeks to confer the benefit on the tenants and to afford protection against eviction, is perfectly competent to make appropriate provision regulating the nature of protection and the manner and extent of enjoyment of such tenancy rights after the termination of contractual tenancy of the tenant including the rights and the nature of protection of the heirs on the death of the tenant. Such appropriate provision may be made by the Legislature both with regard to the residential tenancy and commercial tenancy. It is however, entirely for the Legislature to decide whether the Legislature will make such provision or not. In the absence of any provision regulating the right of inheritance, and the manner and extent thereof and in the absence of any condition being stipulated with regard to the devolution of tenancy rights on the heirs on the death of the tenant, the devolution of tenancy rights must necessarily be in accordance with the ordinary law of succession.'

7. Adverting to the facts of the present case, Major Bhup Singh, who was a tenant in the residential premises, left behind two sons and two daughters. According to the Schedule, all four of them would inherit the tenancy unless it is proved that only one or more of them, were ordinarily residing with him at the time of his death. Both the Authorities below found that only the petitioner resided with his father. His other brother, who is a Legal Officer in a Petroleum Company, resides for the last several years with his family, in Delhi. Both his sisters are married outside Rohtak and are residing with their in-laws. In this view of the matter, the petitioner alone inherited the tenancy after the death of his father because he was the only one, out of the heirs mentioned in the Schedule, who was residing with his father at the time of his death. The Judgment of this Court in Paro Devi, Kotkapura v. Sukh Devi,3 (1985-2) 88 P.L.R. 373, relied upon by the counsel for the petitioner, has no application to the facts of the present case. In the aforesaid Judgment, the word 'tenant' as defined in the East Punjab Urban Rent Restriction Act, 1949, was under consideration and in that Act, there is no such provision limiting or restricting the protection to any particular class of the heirs of the deceased-tenant. Mr. Kapoor, learned counsel for the petitioner, has not been able to point out as to how the provisions in the Act are inconsistent and ultra- vires the provisions of the Hindu Succession Act. His contention that once the estate is held to be heritable and tenant being a Hindu, the provisions of the Hindu Succession Act would govern succession and all heirs mentioned in the Schedule appended to the Hindu Succession Act would become tenants, cannot be accepted for the reason that protection afforded to the tenant is under the Act and the Legislature is competent to restrict the benefit and nature of the protection to be enjoyed by any particular class of heirs of the deceased-tenant on any condition laid down being fulfilled. The third contention of Mr. Kapoor that respondent does not require the premises for his own use and occupation, has no substance. The Rent Controller as well as the Appellate Authority on the appreciation of evidence on record, have returned the finding of fact that respondent is residing with his sons in two-room set of House No. 6/604, when admittedly he has three sons besides his wife. Two of his sons are married and at the time of decision by the appellate Authority, the third son was also of marriageable age. In these circumstances, the accommodation in possession of respondent, by no stretch of imagination, can be said to be sufficient for the requirement of respondent and his family. Mr. Kapoor made a feeble attempt to show that the two rooms in which the respondent at present is residing, do not belong to his sons, but are owned by the respondent. His contention was that the Will on the basis of which these two rooms were bequeathed by the father of the respondent, is a false and fictitious document. Both the Courts below have accepted the Will to be genuine and duly proved. Otherwise also, apart from the two rooms in which the respondent and his family is residing, the respondent owns no other property. Thus, I find that the respondent certainly requires the premises for his own use and occupation.

8. For the reasons recorded above, I find no merit in the revision petition and the same is hereby dismissed. However, the petitioner is allowed two months' time to vacate the premises provided he pays/deposits the entire arrears of rent, including that of two months, within one month from today, and also files an undertaking with the Rent Controller to the effect that he shall hand over vacant possession of the premises on the expiry of aforesaid period.


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