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Mangal Chan (Decd) Vs. Gurbaksh Singh - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberS.A.O. Case No. 126 of 1967, from order of G.C. Suri, Rent Control Tribunal, Delhi, D/- 9-3-1967
Judge
Reported inAIR1972Delhi56
ActsDelhi Rent Control Act, 1958 - Sections 2(1), 37 and 39; Code of Civil Procedure (CPC), 1908 - Order 22, Rules 3 and 4
AppellantMangal Chan (Decd)
RespondentGurbaksh Singh
Appellant Advocate Y. Dayal and; Maheshwar Dayal, Advs
Respondent Advocate M.L. Dhawan, Adv.
Cases ReferredBatoo Mal v. Rameshwar Nath
Excerpt:
.....objections would be abated. b) the court ruled that as per the civil procedure code, 1908, when a statutory tenant died during the pendency of the second appeal filed by him, wherein landlord had also filed the cross-objections, both the second appeal and the cross objections would be abated. c) the court ruled that on termination of contractual tenancy, the tenant becomes a statutory tenant and he has the right to only remain in possession due to the protection given by the delhi rent control act, 1958. - section 13: [altamas kabir & cyriac joseph,jj] custody of child - welfare of child vis--vis comity of courts - the minor girl child of 3 1/2 years was brought to india by her mother. the minor girl was a citizen of u.k. being born in u.k. her parents had set up their matrimonial..........any right or interest in the demised premises not the statutory protection is inherited by his legal representatives.3. as pointed out by us in batoo mal v. rameshwar nath : air1971delhi98 , the landlord is ordinarily bound to terminate the contractual tenancy of the tenant before he files an application for his eviction under the act. but if he does not do so, it is for the tenant to object to the maintainability of the eviction petition on that ground. if the tenant fails to do so then the said objection is deemed to have been waived by the tenant. the position then is that the eviction petition of the landlord is maintainable but the contractual tenancy comes to an end when an order for eviction is passes against the tenant. for, according to the definition of 'tenant' in section.....
Judgment:

1. The landlord Gurbaskh Singh filed a petition for eviction of the tenant Mangal Chand. An order for eviction in respect of a part of the premises was passed by the Controller under Section 14(1)(h) of the Delhi Rent Control Act. 1958 (hereinafter called the Act). The tenant appealed to the Rent Control Tribunal against the order or eviction from a part of the premises and the landlord filed cross-objections against the dismissal of the petition for eviction in respect of the rest of the premises. But both the appeal and the cross objections were dismissed by the Tribunal. The tenant thereupon filed the second appeal against the order of eviction of a part of the premises and the landlord filed cross-objections against the dismissal of his eviction petition in respect of the rest of the premises.

2. During the pendency of these proceedings the landlord terminated the contractual tenancy of the tenant by a notice to quit with the effect that the tenant became what is popularly called only a statutory tenant. As observed by the Supreme Court in Anand Nivas Pvt. Ltd, v. Anandji Kalvanji's Pedhi : [1964]4SCR892 . however, such a person is not a tenant at all. He has no estate or interest in the premises. He has only right to remain in possession due to the protection given by the Delhi Rent Control Act, 1958. But this statutory protection is personal to him. When he dies, neither any right or interest in the demised premises not the statutory protection is inherited by his legal representatives.

3. As pointed out by us in Batoo Mal v. Rameshwar Nath : AIR1971Delhi98 , the landlord is ordinarily bound to terminate the contractual tenancy of the tenant before he files an application for his eviction under the Act. But if he does not do so, it is for the tenant to object to the maintainability of the eviction petition on that ground. If the tenant fails to do so then the said objection is deemed to have been waived by the tenant. The position then is that the eviction petition of the landlord is maintainable but the contractual tenancy comes to an end when an order for eviction is passes against the tenant. For, according to the definition of 'tenant' in Section 2(1) of the Act, a person against whom an order for eviction is passed cases to be a tenant. This rule is, however, subject to the possibility that the order of eviction may be reversed in appeal. In that event the status of a tenant will be restored. Otherwise, the tenant would become a statutory tenant only. Another way to terminate the contractual tenancy of the tenant is to give him a notice to quit under Section 106 of the Transfer of Property Act if the tenancy in Delhi originated after 1.12.1962. If the tenancy commenced from before that date then only a reasonable notice is necessary to terminate the tenancy. The contractual tenancy can be terminated by the land-lord at his will at any time. The landlord in the present case terminated the contractual tenancy of the tenant by a notice to quit during the pendency of the eviction proceedings. The effect of the notice to quit is given before the institution of these proceedings or during the pendency of these proceedings. The tenancy was, thereforee, terminated before the death of the tenant. Act the time of his death Shri Mangal Chand was only a statutory tenant.

4. Shri Mangal Chand died after instituting this second appeal. The question for decision is whether this second appeal and the cross-objections both abate on his death. Effects of the death of a statutory tenant may be classified as below :

5. The application for eviction by the landlord succeeded only regarding a part of the premises. It was dismissed regarding the rest of the premises. The cross-objections by the landlord relate to that part of the premises regarding which the application had been dismissed. In respect of that portion the legal position is as if the landlord is still pursuing the application for eviction without obtaining an order for eviction. The application for eviction by the landlord was maintainable only against a tenant or a statutory tenant before the Controller under the Act. It is not maintainable against the legal representatives of the statutory tenants as there is no relationship of landlord and tenant between Gurbaksh Singh and them. Secondly, the legal representatives of Mangal Chand have not inherited either the tenancy or the statutory protection in respect of that part of the premises regarding which the application for eviction has been dismissed.

With regard to them, thereforee, the only remedy of the landlord is to file a suit in a civil court of possession against the legal representatives of Mangal Chand on the basis of title or on some basis other than that of relationship between a landlord and a tenant or a statutory tenant. The cross-objections of the landlord regarding that portion of the premises have, thereforee, become incompetent, dismissed as having abated on the death of Mangal Chand so far as the forum under the Act is concerned. The forum of the civil court is still open to the landlord.

II. After the order for eviction has been passed.

6. If the tenant had died after the eviction order was passed against him but before any appeal had been filed by him then the right of the landlord at the stage was not the original right of filing an application for eviction against a statutory tenant but rather the subsequent right obtained by the landlord and embodied in the order of eviction obtained by him against the tenant. This right to execute the order of eviction is different in quality from the original right of making is an application for eviction. thereforee, the right to execute the order of eviction survives the death of the statutory tenant against his legal representatives on the principle embodied in Rule 4 of Order 22. Civil Procedure Code. For the legal representatives represent the estate of the deceased statutory tenant. They do so merely because they are his heirs at law and not because they are in possession of any assets left by him and still less because they have inherited either the tenancy or the statutory protection in the premises in respect of which an order for eviction has been passed. thereforee, they do not cease to be the legal representatives of the deceased statutory tenant merely because the statutory protection died with the statutory tenant and did not devolve on his legal representatives.

7. Learned counsel for the legal representatives who desired to come on record as appellants to prosecute the second appeal, has, however, argued that the filing of an appeal by Mangal Chand changed the legal position. He says that the right of the statutory tenant to pursue the appeal with a view to get the order of eviction set aside survives to his legal representatives. The question as to what right of the statutory tenant survives when he dies during the pendancy of an appeal by him against an order for eviction has to be decided with reference to the principle embodied in Rule 3 of Order 22, Civil Procedure Code. According to Rule 11 of Order 22 during an appeal the word 'plaintiff' shall be held to include an appellant and the word 'defendant' shall be held to include respondent. Shri Mangal Chand being the appellant was thereforee, in the position of the plaintiff or the petitioner.

His legal representatives have, thereforee, to show that the right to sue survived the death of Mangal Chand and they are, thereforee, entitled to be brought on record as appellants following the principle of Rule 3 of Order 22. What is a right to sue is not a question of procedure but is dependent on the substantive law. The right to sue arises from a cause of action. The nature of a cause of action is determined by the substantive law giving rise to it. The relationship between Gurbaksh Singh and Mangal Chand was that of a landlord and a tenant. It was, thereforee, partly contractual and partly that of a transferor and transferee of property. The rule regarding the devolution of contractual rights is laid down in Section 37 of the Contract Act which runs as follows:

'Promises bind the representatives of the promisors in case of the death of such promisors before performance. Unless a contrary intention appears from the contract.'

This means that the rights under a contract are heritable unless they are restricted personally to the contracting party. The rights of a tenant in their contractual aspect were not personal to the tenant to start with. But when the contractual tenancy was terminated by a notice to quit the contract came to an end. Mangal Chand did not, thereforee, possess any contractual right after the tenancy was terminated. It follows, thereforee, that on his death no contractual right devolved on his legal representatives.

8. Considered as property the rights of tenancy were originally heritable by the legal representatives of Mangal Chand, but the termination of the contractual tenancy resulted in the loss of tenancy rights. thereforee only the statutory protection ensured the possession of the premises by Mangal Chand. But the right of possession was restricted to Mangal Chand. On his death, thereforee, his legal representatives did not inherit either the right of possession or the right of tenancy. The result is that on the death of Mangal Chand the right to sue did not survive and his legal representatives were not entitled to be brought on the record under Rule 3 of Order 22 to prosecute this second appeal. It is to be noted that even outside the domain of the Contract and property the same principle applies to the survival of other demands such as, claims for damages etc., in view of Section 306 of the Indian Succession Act 1925. It is true that in terms it deals with executors and administrators but the principle of Section 306 would be equally applicable to heirs at law.

9. On the death of Mangal Chand, thereforee, the second appeal which hand been filed by him abates under Rule 3 or Order 22, Civil Procedure Code. The result is that the order for eviction in respect of a part of the premises passed by the Controller and confirmed in appeal by the Rent Control Tribunal becomes final. The rights of the landlord spring from the order of eviction alone. The landlord is entitled to execute the order of eviction against the legal representatives of the deceased-judgment-debtor. The reason is that the legal representatives represent the estate of the deceased judgment-debtor. It is of no consequence that part of the premises against which the order for eviction has been passed are not included in the estate of the deceased. In fact is not necessary that the deceased should have left any estate whatever. The order for eviction as in any litigation must have at least two parties. It cannot have only one party. thereforee, the decree has to be executed in respect of the property covered by it against some person. It cannot be executed merely against the property without the joinder of some parties to represent the deceased judgment-debtor. It is only to satisfy this legal requirement that the order for eviction is executable against the legal representatives and not because they have any interest or claim to this part of the premises.

10. To complete the statement of law, it may be mentioned that in so far as the application for eviction by the landlord was dismissed, the cross-objections filed by him are like an appeal filed by the plaintiff against the dismissal of his suit in respect of that portion of the premises for which the landlord was unsuccessful in obtaining an order for eviction. The death of the statutory tenant means that the right to sue by the landlord did not survive the death of the statutory tenant and came to an end. The cross-objections by the landlord, thereforee abated as no order for eviction has been passed in favor of the landlord in respect of the remaining part of the premises. The landlord has to pursue his remedy in respect of them in a civil court. The forum under the Act is barred to him because there is no relationship of a landlord and a tenant or a statutory tenant between him and the legal representatives of Mangal Chand.

11. The appeal and the cross-objections are, thereforee, both dismissed as having abated on the death of Mangal Chand during the pendency of the appeal and the cross-objections. There will be no order as to costs.

12. Appeal and cross-objections dismissed.


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