Delhi High Court
Keshav Das And Ors. vs Prem Nath on 20 March, 1995
Equivalent citations: AIR1996DELHI47, AIR 1996 DELHI 47, (1997) 1 RENCJ 140, (1997) 1 RENTLR 239, (1995) 3 CURCC 274, (1996) 2 RENCR 5
JUDGMENT C.M. Nayar, J.
(1) The present second appeal arises out of the judgment dated 23.4.76, passed by Shri S.R. Goel, A.D.J. Delhi. The learned Judge affirmed the findings of the trial court as recorded in the judgment dated 28.4.75 in Suit No. 142/75.
(2) The respondents filed a suit for possession and for recovery of Rs. 380.00 on the allegations that they were owners of property No. 703, Ward No. B, Kundewalan, Delhi.
(3) The property was taken on rent by Bal Kishan by means of a rent note dated 24.3.58 w.e f. 16.3.58 for a period of eleven months expiring on 15.2.59, that from 16.2.59 Bal Kishan became a statutory tenant and was protected by the Rent Control legislation in force in Delhi. Bal Kishan died on 30.1.69 and on his death the tenancy came to an end. The decessed Bal Kishan left behind his widow Ram Kali and sons, who are appellants 1 to 4 and are in possession of the suit premises. The respondents further contended that the said legal heirs of Bal Kishan have no right to continue in possession of the shop in suit and despite repeated demands they did not hand over possession and, as a consequence, the suit for possession and recovery of rent was filed against them. The appellants contested the suit and alleged that Bal Kishan was and remained a contractual tenant throughout his life time and his tenancy was never terminated; that the rights were and are for the benefit of Huf of which Bal Kishan was Karta and, as such, the appellants were entitled to step into the position of Bal Kishan and to the protection, as provided by the relevant provisions of law. [In para 3 issues are reproduced.] (4) The trial judge came to the conclusion that Bal Kishan occupied the suit premises from 16.2.59 as a statutory tenant and as a necessary corollary thereof, the appellants could not inherit the tenancy. This finding was based primarily on the interpretation of law that statutory tenancy was not heritable in respect of commercial premises. The suit was decreed.
(5) The appellants filed an appeal in the court of A.D.J., Delhi. The learned Judge has clearly stated in para 9 of the impugned judgment that the suit property was admittedly a shop where Bal Kishan was a tenant. There is, therefore, no dispute of the fact that the premises were not, in any manner, residential premises. The learned Judge on interpretation of law with regard to the question of heritability of tenancy in favor of legal heirs of Bal Kishan held that the demised premises were let out to Bal Kishan as a shop and not as residential house, therefore, the appellants did not come within the definition of tenant as contained in S. 2(l) of the Delhi Rent Control Act.
(6) The controversy whether the statutory tenancy in respect of commercial premises is heritable has been set at rest by Supreme Court in Smt. Gian Devi Anand r. Jeevat Kumar . Raj L.R. The law is stated in paras 36 and 37 and the same read : "36.Accordingly, we hold that if the Rent Act in question defines a tenant in substance to mean a tenant who continues to remain in possession even after the termination of the contractual tenancy till a decree for eviction against him is passed, the tenant even alter the termination of the tenancy cominucs to have an estate or interest in the tenanted premises and the tenancy rights both in respect of residential premises and commercial premises are heritable. The heirs of the deceased tenant in the absence of any provision step into the position of the deceased tenant and all the rights and obligations of the deceased tenant including the protection afforded to the deceased tenant under the Act will devolve on the heirs of the deceased tenant. As 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 fulfillled, the benefit of the protection has necessarily to be enjoyed on the fulfillment 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) In the Delhi Act, the Legislature has thought it fit to make provisions regulating the right to inherit the tenancy rights in respect of residential premises. The relevant provisions are contained in Section 2(l)(iii) of the Act. With regard to the commercial premises, the Legislature in the Act under consideration has thought it fit not to make any such provision. it may be noticed that in some Rent Acts provisions regulating heritability of commercial premises have also been made whereas in some Rent Acts no such provisions either in respect of residential tenancies or commercial tenancies has been made. As in the present Act, there is no provision regulating the rights of the heirs to inherit the tenancy rights of the tenant in respect of the tenanted premises which is commercial premises, the tenancy right which is heritable devolves on the" heirs under the ordinary law of succession.
(8) The Hon'ble Supreme Court has, therefore, clearly held that (a) heirs of statutory tenant are entitled to same protection against eviction as afforded to tenant under the Delhi Rent Control Act ; (b) as there is no provision regulating the rights of heirs to inherit the tenancy rights of the tenant in respect of the premises, which are of commercial nature, the tenancy right which is heritable devolves on the heirs under the ordinary law of succession. The tenancy right of Bal Kishan in the present case will, therefore, devolve on all the heirs including the appellants.