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Sarvan Kumar and anr. Vs. Sohan Lal - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberRegular Second Appeal No. 155 of 1983
Judge
Reported in26(1984)DLT88; 1984(7)DRJ112; 1984RLR622
ActsDelhi Rent Control Act, 1958 - Sections 2(1); Transfer of Property Act, 1882 - Sections 106
AppellantSarvan Kumar and anr.
RespondentSohan Lal
Advocates: R.L. Kohli and; K.N. Topa, Advs
Cases ReferredV. Dhanpal Chattiar v. Yesodai Ammal
Excerpt:
.....this supreme court has thereforee laid down further that for eviction proceedings, no prior notice of termination under section 106 of transfer of property act is necessary. that decision accords with the statutory provision. but it places no bar on the giving of notice. if the tenancy was not terminated by a notice, than there is no question of application of the aforesaid modifications, and the landlord shall be deprived of the restrictive provisions of the afore said amendment, though his proceedings shall not fail because he has not served a notice under section 106.; i am, thereforee, of the view that after the tenancy terminates, the lessee shall cease to be a lessee under the transfer of property act but inspire of that he shall remain a tenant for his life time, and in..........(3) the substantial point of law that mr. kohli vehemently urged in this case is that even if a notice of termination under section 106 of the transfer of property act, 1882 was duly served on the deceased ganga ram, it did not terminate his tenancy at all. his main reliance is upon the case of v. dhanpal chattiar v. yesodai ammal, : [1980]1scr334 . he specifically invited my attention towards the passages in the said judgment which will be profitable to extract in order to understand the argument of mr. kohli : 'once the liability to be evicted is incurred by the tenant, he cannot turn round and say that the contractual lease has not been determined. the action of the landlord in instituting a suit for eviction on the ground mentioned in any state rent act will be tenant mount to an.....
Judgment:

M.L. Jain, J.

(1) Respondent Sohan Lal filed a suit for possession and. mesne profits, against Sarvan Kumar and Kanhiya Lal sons of Ganga Ram deceased on the ground that Ganga Ram was the tenant in respect of a shop in dispute. The plaintiff alleged that he had terminated his tenancy with effect from 30-4-1974 by a registered notice. After the service of the notice the said Ganga Ram became a statutory tenant.. He died on 5-1-1977. The possession of the defendants became unauthorised.

(2) The defendants denied that the tenancy of Ganga Ram had been terminated. They said they have inherited the tenancy and are not liable to be evicted. Since there is a relationship of landlord and tenant, the suit was not maintainable. The learned trial court rejected their contentions and decreed the suit. The learned Additional District Judge by his order on 19-8-1983 dismissed the appeal. Hence, this second appeal.

(3) The substantial point of law that Mr. Kohli vehemently urged in this case is that even if a notice of termination under Section 106 of the Transfer of Property Act, 1882 was duly served on the deceased Ganga Ram, it did not terminate his tenancy at all. His main reliance is upon the case of V. Dhanpal Chattiar v. Yesodai Ammal, : [1980]1SCR334 . He specifically invited my attention towards the passages in the said judgment which will be profitable to extract in order to understand the argument of Mr. Kohli :

'ONCE the liability to be evicted is incurred by the tenant, he cannot turn round and say that the contractual lease has not been determined. The action of the landlord in instituting a suit for eviction on the ground mentioned in any State Rent Act will be tenant mount to an expression of his intention that he does not want the tenant to continue as his lessee and the jural relationship of Lesser and lessee will come to an end on the passing of an order Or a decree for eviction. until then, under the extended definition of the word 'tenant' under the various State Rent Acts the tenant continues to be a tenant even though the contractual tenancy has been determined by giving of a valid notice under Section 106 of the Transfer of the Property Act. The various State Rent Control Acts make a serious encroachment in the field of freedom of contract. It does not permit the landlord to snap his relationship 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 no enjoying all the rights of a lessee and is at the same time deemed to be under all the liabilities such as payment of rent etc., in accordance With law.'

'IT is true that the Rent Act is intended to restrict the rights which the landlord possessed either for charging excessive rent or for evicting tenants. But if within the ambit of those restricted rights he makes out his case it is a mere empty formality to ask him to determine the contractual tenancy before institution of a suit for eviction. As we have pointed out above, this was necessary under the Transfer of Property Act as mere termination of the lease entitled the landlord to recover possession But under the Rent Control Acts it becomes an unnecessary technicality to insist that the landlord must determine the contractual tenancy. It is of no practical use after so many restrictions of his rights to evict the tenant have been put. The restricted area under the various State Rent Acts has done away to a large extent with the requirement of the law of contract and the Transfer of Property Act. If this be so why unnecessarily, illogically and unjustifiably a formality of terminating the contractual lease should be insisted upon ?'

(4) It is contended that if under the Rent Control Act, the tenant does not cease to be a tenant inspire of termination of the tenancy under Section 106 of the Transfer of Property Act, 1882 then it cannot be said that the tenancy has terminated and has ceased to be heritable.

(5) Now, the definition of a tenant in Clause (1) of Section 2 of the Delhi Rent Control Act provides inter alias :

1.If a tenant continues to be in possession even after termination of tenancy, he shall be deemed to be a tenant in spite of such termination. Judicial decisions have described such a person by a compact name, a statutory tenant ;

2.if such a tenant dies, his tenancy rights will in case of non-residential premises extinguish, and in case of residential premises will devolve upon some specified heirs upon certain specified conditions and not generally.

(6) Thus, the law on leases and succession stands modified to the above extent. This Supreme Court has thereforee laid down further that for eviction proceedings, no prior notice of termination under Section 106 of Transfer of Property Act is necessary. That decision accords with the statutory provision. But it places no bar on the giving of notice. If the tenancy was not terminated by a notice, than there is no question of application of the aforesaid modifications, and the landlord shall be deprived of the restrictive provisions of the aforesaid amendment, though his proceedings shall not fail because he has not served a notice under Section 106.

(7) I am, thereforee, of the view that after the tenancy terminates, the lessee shall cease to be a lesses under the Transfer of Property Act but inspire of that he shall remain a tenant for his life time, and in case he dies before the order or decree of petition the tenancy in respect of residential premises shall be available at least to some specified persons. The provision is to the advantage of the tenant and some of his successors which they would not otherwise have. The Supreme Court has spelt out the consequences of a statutory tenancy so called. Once we grasp this interpretation the difficulty pointed out by Shri Kohli shall cease to exist.

(8) In this case the premises are a shop. Notice of termination had ] been given. Though the tenant could not be evicted inspire of the notice but his heirs could be.

(9) The appeal is, thereforee, dismissed in liming.


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