G.C. Jain, J.
(1) Dr. (Mrs.) C.L. Sury was lessee of house No. 72, Baber Road, New Delhi under the respondent Dan Singh Bawa. The agreed rent was Rs. 37.82 per month. She died in October, 1967.
(2) On April 22, 1968 the landlord brought an application against the present appellant Kenneth Solomon for recovery of possession of the tenancy premrises. The eviction was claimed under proviso (b) to Sub Section (1) of Section 14 of the Delhi Rent Control Act, 1958 (for short 'the Act) on the allegations that the tenant had left no heir and had in her life time parted with the possession of the premises in dispute in favor of the appellant without the written consent of the landlord.
(3) The appellant defended the claim. The plea raised was that that contractual tenancy in favor of Dr. Sury had not been determined. The tenancy rights devolved on him and another person under a will dated March 31,1957. In case it was held by the court that he could not inherit the tenancy rights under the will the same devolved on him as an heir being Dr. Sury's nearest kinsman.
(4) The Additional Rent Controller by his order dated December 18, 1973 came to the conclusion that the tenancy rights had not been bequeathed by Dr. Sury under the will in question. The appellant who was a nephew of Dr. Sury inherited those rights as an heir and thereforee there was no parting with possession by the tenant. With these findings he dismissed the eviction petition. This finding was, however, reversed in appeal by the learned Rent Control Tribunal. It was held that the tenant had bequeathed the tenancy rights in favor of the appellant under the will which act amounted to parting with possession of the premises. Consequently an order for recovery of possession was granted in favor of the respondent against the appellant on October 28, 1976. Feeling aggrieved the appellant has filed the present appeal.
(5) Mr. Vohra, learned counsel appearing For the appellant has raised two main questions: (1) that the tenancy rights Were not disposed under the will and (2) that the act of bequeathing the tenancy rights by making a will would not amount to parting with possession of the premises within the meaning of the provisions contained in proviso (b).
(6) A will has to be construed like any other document. The duty of the court is to ascertain the testator's intention from the words used in the will. The will EX.RW 1/1, no doubt, makes no specific mention of the tenancy rights. It however has a residuary clause which reads ;--
'5.Ihereby bequeath, give and devise all my moveable and immoveable properties, whatsoever, howsoever, and where-so-ever situate at the time of my death including all the monies which may be left over after paying my Funeral and Monument Expenses and for my Dogs expenses to be equally divided by my Trustees among my two nephews :-- 1. Kenneth Solomon-son of John Solomon--at present residing at. Chabiganj, Kashmere Gate) Delhi. 2. Pannel Richard Solomon-son of John Solomon-at present residing at Chabiganj, Kashmere Gate, Delhi.'
(7) A lease, as defined by Section 105 of the Transfer of Property Act, is a transfer of a right to enjoy immoveable property turn a term or in perpetuity in consideration of a price paid or promised or services or other things of Value to be rendered periodically or on specified occasions to the transferor- by the transferee. The right of enjoyment contemplated by this Section is an interest in the immoveable property. The agreement of lease confers on the lessee the right to possess the immoveable property subject matter of the lease. It being an interest in the immoveable property would be covered under the expression 'all my moveable and immoveable properties' used in the above quoted residuary clause of the will. The word 'Property' includes all legal rights of a person except his personal rights which constitutes his status or personal condition. The tenancy rights would definitely be included in the words 'all my moveable and immoveable properties'. have examined the will carefully and I agree with the learned Tribunal that the will does not indicate any intention of the testator to exclude the tenancy rights. On the other hand the residuary clause referred to above shows that the intention was to give all her moveable and immoveable properties except the properties for which a specific provision was made. The tenancy rights, thereforee devolved on she appellant under the will.
(8) Now I turn to examine the next question. The question for determination is whether the act of disposing the tenancy rights by making a will amounts to 'parting with possession' and entitles the landlord to claim eviction under proviso (b) to Sub-Section (1) of Section 14 of the Act. These provisions read:-
'14.Protection of tenant against eviction- (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favor of the landlord against a tenant : Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only. namely- (b) that the tenant has, on or after the 9th day of June, 1952 Sub-let, assigned or otherwise parted with the possession of the whole or any part of the premises without obtaining the consent in writing of the landlord. '
(9) The case set up by the landlord is that the tenant had parted with the possession of the tenancy premises. The expression 'otherwise parted with the possession' has not been defined in the Act. 'Parted with' according to Chambers 20th Century Dictionary, New Edition, inter alia, means 'to relinquish'. Stroud's Judicial Dictionary 4th ed. explains the term 'part with' in these words :
'(2)A lessee's covenant not to 'part with the possession of the demised premises or any part thereof' is broken only if the lessee entirely excludes himself from the legal possession or part of the premises (Sterling v. Abrahams (1931) 1 Ch. 470'
(10) The expression 'parted with possession', thereforee, means giving the legal possession acquired under the lease to a person who was not a party to the lease agreement. Undoubtedly, there must be vesting of possession of the tenancy premises by the tenant in another person by divesting himself not only of physical, possession but also of a right to possession.
(11) 'WILT' as defined under Section 2(h) of the Indian Succession Act, means the legal declaration of the intention of the testator with respect to his property which he desires to be carried into effect after his death. One characteristic of a will as distinguished from other kinds of instruments disposing of property is its revocable nature. It is ambulatory until the death of the testator. It is dependent upon the testator's death for its vigour and effect. Till that event it is only an expression of intention to deal with the property in a particular manner. But the moment the testator dies, it has the effect of vesting the property subject matter of the will in the devisee. At that point of time it would have the same effect as a transfer of possession by sale or mortgage. The process of parting with possession thus starts on the execution of the will but matures only on the death of the testator. The tenancy rights disposed under a will would vest in the devisee immediately on the death of the testator. This vesting, in my judgment, would amount to parting with possession within the meaning of the provisions contained in proviso (b).
(12) In Nathud & others, v. Devi Singh &Another;, , a Division Bench after examining the provisions contained in proviso (c) to Sub-section (1) of Section 13 of the Delhi and Ajmer Rent Control Act (38 of 1952), which provisions were similar to the provisions contained in proviso (b) to Sub-Section (1) of Section 14 of the Act, held :-
'WHAT is hit by proviso (c) is a volitional transfer by a tenant without the consent of the landlord. If on the death of a person holding contractual tenancy the suit premises come into the hands of the heirs of the tenant that is not an intentional or volitional transfer and such parting with the possession would not be affected. The case of parting with possession by will is, however, clearly envisaged in proviso (c) to Sub-section (1) of Section 13.'
The Division Bench had relied on an earlier D.B. decision in Ram Dass v. Roopchand F.A.'No.119-D of 1960 decided on September 12, 1964.
(13) Section 15(1) of the Bombay Rents, Hotel and Lodging House Rates Control Act (57 of 1947) prohibits the tenant to sublet the whole or any part of the premises let to him or transfer in any other manner his interest therein. The contravention of these terms invites the penalty of eviction. Examining these terms a Division Bench of the Bombay High Court in Dr. Anant Trimbak Sabnis v. Vasant Pratdp Pandit : AIR1980Bom69 held :-
'IT is true that the bequest becomes effective only after the death of the testator and is liable to be revoked at any time. This by itself however, cannot make it anything but transfer. Even the restricted concept of 'transfer' inter vivos in Section 5 of the T.P. Act contemplated its becoming effective at some future date in a given case. Bequest does result in the passing of the property from the testator to the legatee. It is no doubt different in its nature from the sale, mortgage, lease or gift. It is nonce the-less, a transfer in its generic sense.'
These decisions fully support my view.
(14) Relying on the definition of expression ''transfer of property' given in Section 5 of the Transfer of Property Act and the decision in Raja Surendra Vikram Singh v. Rani Munia Kunwar and Anrs. and Lala Devi Doss v. Panna Lal Air 1959 J.&.K 62 Mr. Vohra contended that making of a will would not amount to transfer.
(15) 'TRANSFER of property', according to the definition given in Section 5 of the Transfer of Property Act, means an act by which a living person conveys property in present or in future to one or more other living persons or to himself, and one or more other living persons. True, these words exclude transfer by will, for a will operates after the death of the testator. The act of making a will in itself would not attract the provisions contained in proviso (b). No landlord can claim eviction, during the life time of the tenant, on the ground that the tenant had made a will disposing the tenancy rights. It is for the simple reason that it can be revoked at any time. By itself it does not vest the legal possession in the devisee. However, there is no escape from the conclusion that by his voluntary act the tenant parts with the possession of the tenancy premises though from the date of his death in case the will remains unrevoked. Dr. Sury by her act of bequeathing the tenancy rights by means of the will in favor of the petitioner and his brother had parted with possession within the meaning of proviso (b). The landlord was, thereforee, entitled to claim eviction.
(16) In Raja Surendra Vikram Singh v. Rani Munia Kunwar (supra) the court examined the meaning of the word 'transfer' under the Transfer of Property Act. The question whether disposing of the tenancy rights by a will would amount to transfer or parting with possession under the rent Acts was not involved in that case. Similarly this question was not considered by the Full Bench of Jammu & Kashmir High Court in Kala Devi Dass v. Panna Lal (supra).
(17) Mr. Vohra also relied on a single bench decision of this court in The Vaish Cooperative Adarsh Bank Ltd. Delhi v. M/s. Suraj Balram Sawhney and sons and Anr , 1973 Rcr 217 In that case a cooperative society registered under the Bombay Cooperative Societies Act was the tenant. It stood dissolved. On the same day a new society came into existence and the new society was in possession of the tenancy premises when the eviction was claimed. It was held that it was not a case of subletting or parting with possession. The reason given in support of this decision is that it was the tenant's overt act of subletting assignment or parting with possession without the consent in writing of the landlord which gives a cause of action to the landlord to move an application for an order of possession against the tenant or his assignee or both The committing of this overt act pre-supposes the existence of the person whose act gives the cause of action. If the effect of law was that the tenant ceased to exist simultaneously with the coming into existence of the new society, it follows that the tenant was not in a position nor had a legal capacity to do something which may be called the overt act which in turn gives rise to the cause of action to the landlord to file an application to recover possession. This is, however, not the case here. Here the tenant's overt act consisted in her making the will which was a voluntary act.
(18) It was also contended by the learned counsel for the appellant that the respondent in the eviction petition had pleaded that the tenant had parted with the possession of the premises in her life time and cannot now be allowed to say that the parting with possession was on the date of her death. The respondent argued the learned counsel, cannot be allowed to set up a new case. This submission has no merit.
(19) In para 16 of the petition it was averred that the present appellant was a person to whom the possession of the tenancy premises had been parted with by the deceased tenant without the written consent of the landlord. In para 18 (1) it was alleged that the tenant in her life time parted with possession of the tenancy premises in dispute in favor of the present appellant. No doubt, the averment was that the possession of the tenancy premises was parted with in her life time. That, however, would not make much difference, because the process of parting with possession started in her life time when she executed the will declaring her intention to dispose the tenancy rights in favor of the appellant. The act, of course, matured on her death. But the fact remains that the process started in her life time. It cannot be said that the respondent was setting a new case.
(20) In conclusion, I find no merit in the appeal and dismiss the same. The appellant, however, is allowed three month's time to vacate the premises. Parties are left to bear their own costs.