Himachal Pradesh High Court
Sh. Rajeev Sood And Another vs . Smt. Ravinder Kaur on 13 April, 2022
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
Sh. Rajeev Sood and another Vs. Smt. Ravinder Kaur Civil Revision No. 22 of 2021 .
13.04.2022 Present: Mr. Arjun Lall, Advocate, for the petitioners.
Mr. R.K. Bawa, Senior Advocate, with Mr. Ajay Kumar Sharma, Advocate, for the respondent.
By way of present petition, the petitioners have, inter alia, prayed for the following relief: "(a) Allow the present petition and may further be pleased to quash and set aside the impugned order dated 02.12.2019 i.e., Annexure PH, passed by the Ld. Rent Controller (1), Shimla in Rent Petition No. 900215/1990 and order of 17.10.2020 and to consequently allow the applications under Section 151 CPC and direct the eviction of the respondent from the demised premises and handover vacant and peaceful possession of the same to the petitioners."
2. The case of the petitioners is that one Sh.
Balwant Singh was inducted as tenant of the demised premises by the predecessorininterest of the petitioners.
After his death, his wife Smt. Kulwant Kaur succeeded the tenancy. Their predecessorininterest preferred an Eviction Petition against the wife of Shri Balwant Singh, namely, Smt. Kulwant Kaur, on the ground of arrears of rent and ceased to occupy the demised premises. During the pendency of the proceedings, Smt. Kulwant Kaur expired, leading to the filing of an application under Section 151 of ::: Downloaded on - 20/04/2022 20:04:32 :::CIS : 2 : .
the Code of Civil Procedure by the petitioners against the present respondent, who happens to be the daughterinlaw of the original tenant, seeking eviction of the respondent forthwith on the ground that she has not succeeded to the tenancy in the demised premises. According to the petitioners, after the death of Shri Balwant Singh, there would have been one time succession of tenancy and the tenancy rights would have been inherited simultaneously by such of his legal heirs, as are mentioned in Section 2(j) of The Himachal Pradesh Urban Rent Control Act, 1987 (hereinafter referred to as 'the 1987 Act'), subject to the condition that such of Shri Balwant Singh's heirs were ordinarily residing with him at the time of his death.
According to the petitioners, original tenant had one son Sh. Surjeet Singh, but it is clearly borne out from the pleadings that Sh. Surjeet Singh had predeceased the original tenant. Therefore, according to them, in terms of the provisions of Section 2(j) of the 1987 Act, read with ExplanationsI & II attached thereto, respondent Smt. Ravinder Kaur could not succeed to the tenancy as succession thereof was a one time affair and the same ended with the succession of tenancy after the death of the original tenant by his wife Smt. Kulwant Kaur, who was ::: Downloaded on - 20/04/2022 20:04:32 :::CIS : 3 : .
ordinarily residing with the original tenant in the demised premises at the time of his death.
3. Rejection of the application by the learned Rent Controller has been challenged by the learned counsel for the petitioners on the strength of judgment of the Hon'ble Single Judge of this Court in Shri Gurdev Singh Vs. Shri Khuswant Mallick and another, CR No. 147 of 2007, decided on 05.12.2011, in which case, the Hon'ble Single Judge held that after the death of the original tenant and after the inheritance of the tenancy by his son, after his death, the sons of the son of the original tenant could not be treated as tenants, because the son of the original tenant himself was not a tenant, as it was his predecessorin interest, who was the original tenant.
4. Section 2(j) of the 1987 Act reads as under: "2. (j) "tenant" means any person by whom or on whose account rent is payable for a residential or nonresidential building or rented land and includes a tenant continuing in possession after termination of the tenancy, a deserted wife of a tenant who has been or is entitled to be in occupation of the matrimonial home or tenanted premises of husband, a divorced wife of a tenant who has a decree of divorce in which the right of residence in the ::: Downloaded on - 20/04/2022 20:04:32 :::CIS : 4 : matrimonial home or tenanted premises has .
been incorporated as one of the conditions of the decree of divorce and in the event of the death of such person such of his heirs as are mentioned in ScheduleI to this Act and who were ordinarily residing with him or carrying on business in the premises at the time of his death, subject to the order of succession and conditions specified, respectively in Explanation I and ExplanationII to this clause, 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 a 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 farmed out or leased by a Municipal Corporation or a Municipal Council or a Nagar Panchayat or a Cantonment Board;
ExplanationI. The order of succession in the event of death of the person continuing in possession after the termination of his tenancy shall be as follows:--
(a) firstly, his surviving spouse;
(b) secondly, his son or daughter, or both, if there is no surviving spouse, or if the surviving spouse did not ordinarily live with the deceased persons as a member of his family upto the date of his death;::: Downloaded on - 20/04/2022 20:04:32 :::CIS : 5 :
.
(c) thirdly, his parent(s), if there is no surviving spouse, son or daughter of the deceased person, or if such surviving spouse, son, daughter or any of them, did not ordinarily live in the premises as a member of the family of the deceased person upto the date of his death; and
(d) fourthly, his daughterinlaw, being the widow of his predeceased son, if there is no surviving spouse, son, daughter or parent(s) of the deceased person or if such surviving spouse, son, daughter or parent(s), or any of them, did not ordinarily live in the premises as a member of the family of the deceased person upto the date of his death:
Provided that the successor has ordinarily been living or carrying on business in the premises with the deceased tenant as a member of his family upto the date of his death and was dependent on the deceased tenant: Provided further that a right to tenancy shall not devolve upon a successor in case he or his spouse or any of his dependent son or daughter is owning or occupying a premises in the urban area in relation to the premises let. ExplanationII. The right of every successor, referred to in ExplanationI, to continue in possession after the termination of the tenancy, shall be personal to him and shall not, on the death of such successor, devolve on any of his heirs; and."::: Downloaded on - 20/04/2022 20:04:32 :::CIS : 6 :
5. After the judgment in the present petition was .
reserved by this Court and while this Court was going through the case law relied upon by the learned counsel for the petitioners, this Court found out that a contrary view stood taken on the issue by another Hon'ble Single Judge of this Court in Dr. Kuldeep Maria Vs. Shanti Devi (Rent Control Reporter 2001 (1) 145), in which judgment, Hon'ble Single Judge of this Court, after placing reliance on the judgment of the Hon'ble Supreme Court in Smt. Gian Devi Anand Vs. Jeevan Kumar, AIR 1985 SC 796 and one other judgment of this Court in Indira Vati Vs. Smt. Devki Devi, 1989 (1) Rent 110, as also another judgment of Hon'ble Single Judge of this Court in Narinder Kumar Vs. Ramesh Kumar, 1995(1) RCR 61 and a Full Bench judgment of this Court in Satya Devi Vs. Ravinder Kumar, 1989(2) RCR 170, has held that on the death of a tenant, it is the single tenancy which devolves on the heirs and the heirs succeed to the tenancy as joint tenants. In the said case, the demised premises were owned by one Dr. Kuldeep Maria and the tenant was one John Masih, against whom Eviction Petition was preferred by the landlord. The Eviction Petition was allowed by the learned Rent Controller and : 7 : ::: Downloaded on - 20/04/2022 20:04:32 :::CIS during the pendency of the appeal, tenant John Masih died.
.
Thereafter, landlord filed an application under Order 22, Rule 4 of the Code of Civil Procedure for substitution of tenant John Masih by his wife Shanti Devi, who was stated to be ordinarily residing in the demised premises with deceased tenant John Masih at the time of his death. The application was resisted by Shanti Devi, widow of deceased tenant John Masih, on the ground that her husband John Masih was survived, apart from her, by his three sons, who were ordinarily residing with their father in the demised premises at the time of death of John Masih and all of them had inherited the tenancy rights of John Masih. The Appellate Authority dismissed the plea of respondent Shanti Devi on the ground that under the provisions of Section 2(j) of the Rent Act, right of tenancy was to be inherited by Shanti Devi, widow of the deceased alone. However, while reversing the judgment passed by the Appellate Authority, Hon'ble Single Judge of this Court held that the Appellate Authority had erred in holding that only the widow Shanti Devi would inherit the tenancy rights under Section 2(j) of the Rent Act and the Appellate Authority was obliged to give findings after giving parties an opportunity to lead : 8 : ::: Downloaded on - 20/04/2022 20:04:32 :::CIS appropriate evidence, as to whether or not the three sons .
were residing with John Masih at the time of his death.
6. Thus, the above demonstrates that there are two different views, which have been taken by the Hon'ble Single Judges of this Court with regard to the interpretation of Section 2(j) of The Himachal Pradesh Urban Rent Control Act, 1987 and ExplanationsI & II attached thereto. While one Hon'ble Single Judge has interpreted the provisions of the Statute to the effect that tenancy can be succeeded only once and that too strictly in the line of succession, whereas, the other Hon'ble Single Judge has held that the tenancy is inheritable. This Court is purposely not referring to the judgments which stood relied upon by the Hon'ble Single Judge while deciding the case titled as Dr. Kuldeep Maria Vs. Shanti Devi (supra), for the reason that said judgments were not primarily based on the interpretation of Section 2(j) of the current Rent Act. Therefore, in this peculiar situation, this Court is of the view that the matter is required to be dealt with by a Larger Bench, so that the view of the Larger Bench is available to guide this Court with regard to the provisions of Section 2(j) and ExplanationsI & II attached thereto of the The Himachal Pradesh Urban Rent Control Act, 1987. Accordingly, the : 9 : ::: Downloaded on - 20/04/2022 20:04:32 :::CIS Registry is directed to place the matter before Hon'ble the .
Chief Justice for appropriate orders qua constitution of a Larger Bench to answer the following reference: "Whether the succession of tenancy in terms of Section 2(j) of The Himachal Pradesh Urban Rent Control Act, 1987 read with ExplanationsI & II thereof is succession and every successor referred to in r a one time ExplanationI shall enjoy the right to continue to be in possession of the demised premises after the termination of tenancy as a matter personal to him, as is the view taken by the Hon'ble Single Judge of this Court in Shri Gurdev Singh Vs. Shri Khuswant Mallick and another, CR No. 147 of 2007, decided on 05.12.2011 or whether the tenancy is inheritable as joint tenancy de hors the language used in the Explanations attached to Section 2(j) of the 1987 Act, as has been held by the Hon'ble Single Judge in Dr. Kuldeep Maria Vs. Shanti Devi (Rent Control Reporter 2001 (1) 145)?
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List the case for further consideration after the Reference stands answered by the Hon'ble Larger Bench.
(Ajay Mohan Goel) Judge April 13, 2022 (bhupender) ::: Downloaded on - 20/04/2022 20:04:32 :::CIS