Madhya Pradesh High Court
Nanhelal Sahu (Deadl( Thr. Lrs. Smt. ... vs Bajranglal Sarawagi (Dead) Thr. Lrs. ... on 24 April, 2017
1
Writ Petition No. 22216/2015
24.04.2017
Shri Pranay Verma, learned counsel for the petitioner.
Shri Ajay Pratap Singh, learned counsel for respondent
No. 2 State of Madhya Pradesh.
Shri Monesh Sahu, learned counsel for respondent No. 1(a).
Shri Avinash Zargar, learned counsel for respondent Nos. 4, 5 and 6.
None for other respondents.
Petitioner takes exception to order dated 18.11.2015 passed in Civil Appeal No. 9 A/2015; whereby, an application preferred by the petitioner, Santosh Kumar, under Order 22 Rules 1 and 2 read with Order 22 Rule 10 Code of Civil Procedure, 1908 to be substituted in place of sole appellant Smt. Kailash Bai has been dismissed.
Relevant facts in brief are that one Bajranglal Sarawagi since deceased, now being represented through respondent Nos. 1 (a) to 1 (d) instituted an action on 29.7.1968 against the original defendant Nanhelal and others for possession of suit premises, for arrears of rent of Rs.340/-, for municipal taxes and mesne profits, for mandatory injunction directing Nanhelal to demolish and remove all structures from the suit land and for declaration that, defendant No. 4 has no title to the suit land.
2The claim has been founded on grounds enumerated under Section 12 (1) of the M.P. Accommodation Control Act, 1961. Original defendant, Nanhelal and defendant No. 4 contested the case by filing written statement.
That, during pendency of Civil Suit Nanhelal expired and his widow Smt. Kailash bai was brought on record. The suit was decreed on 8.3.2006 whereby the plaintiff was declared as owner of the suit property and Nanhelal as tenant, liable to pay rent; municipal tax liable to deliver possession. An appeal was preferred by Smt. Kailash bai under Section 96, Code of Civil Procedure, 1908. That, during pendency whereof Smt. Kailash bai expired on 2.11.2011. On 27.1.2012 the present petitioner filed an application under Order 22 Rule 1 read with Order 22 Rule 10 CPC for being substituted in place of Smt. Kailash bai on the ground of his being adopted by her and that there is a will dated 19.10.2011; whereby she bequeathed her entire estate in his favour.
That, in view of the dispute as to whether the petitioner is or is not the legal representative of the original appellant Smt. Kailash bai the Appellate Court by order dated 2.4.2014 directed the Trial Court to conduct a summary enquiry. On an enquiry the Trial Court by order dated 14.5.2015 held that the petitioner is not an adopted son of Nanhelal as has been held in judgment and decree dated 22.8.2003 passed in Civil Suit No. 3 21 A/1991. The Trial Court further held that the petitioner is the legal representative of deceased appellant Smt. Kailash bai by virtue of will dated 19.10.2011.
That, during pendency of the proceedings before Lower Court daughter of the Appellant Smt. Kailash bai filed an application under Order 22 Rule 9 CPC for being substituted and setting aside abatement order along with an application under Section 5 of Limitation Act for condonation of delay. That, by order dated 28.3.2014 the application was registered as separate Miscellaneous Judicial Case No. 9/2014.
That, by order dated 18.11.2015 the appellate court rejected the application filed by the petitioner and negatived his claim for being impleaded as legal heir on the finding:
"a) that the claim of petitioner Santosh Kumar of being adopted son of Kailash Bai has already been negatived in Civil Suit No. 21-A/1991;
b) that the tenancy cannot be assigned in favour of any third person;
c) that the petitioner Santosh Kumar cannot be substituted on the basis of a will in present proceedings instituted under Section 12 (1) of M.P. Accommodation Control Act, 1961;
e) that the petitioner cannot be substitute on the basis of the will set up by him;4
f) that the finding recorded by the Trial Court that the petitioner is legal representative of appellant Smt. Kailash Bai is not correct; and
g) that in absence of impleadment of natural heir of the appellant Smt. Kailash Bai the appeal abates;
and, in consequence, the application under Order 22 Rule 1 read with Order 22 Rule 10 of the CPC filed by the petitioner has been rejected and in consequence the appeal has been dismissed as abated.
It is this order which the petitioner challenges vide present petition.
In the present back ground of these facts the solitary issue which arises for consideration is whether it will be lawful for a third person in whose favour there is bequeathment of tenancy, to seek impleadment and protect the same in a suit for eviction.
Before dwelling upon the issue various judgments which were cited at Bar needs to be noted.
In Smt. Gian Devi Anand v. Jeevan Kumar and others (AIR 1985 SC 796), the question which arises for consideration was as to whether statutory statutory tenancy is heritable on the death of statutory tenant. Their Lordships were pleased to observe:
18. .... ... We find it difficult to appreciate how in this country we can proceed on the basis that a tenant whose contractual tenancy has determined but who is protected against eviction by the statute, has no right of property but only 5 a personal right to remain in occupation, without ascertaining what his rights are under the statute. The concept of a statutory tenant having no estate or property in the premises which he occupies is derived from the provisions of the English Rent Acts. But it is not clear how it can be assumed that the position is the same in this country without any reference to the provisions of the relevant statute. Tenancy has its origin in contract. There is no dispute that a contractual tenant has an estate or property in the subject matter of the tenancy, and heritability is an incident of the tenancy. It cannot be assumed, however, that with the determination of the tenancy the estate must necessarily disappear and the statute can only preserve his status of irremovability and not the estate he had in the premises in his occupation. It is not possible to claim that the 'sanctity' of contract cannot be touched by legislation. It is therefore necessary to examine the provisions of the Madhya Pradesh Accommodation Control Act, 1961 to find out whether the respondents' predecessors-in-interest retained a heritable interest in the disputed premises even after the termination of their tenancy.
Section 2(i) of the Madhya Pradesh Accommodation Control Act 1961 defines 'tenant' to mean, unless the context otherwise requires:
'a person by whom or on whose account or behalf the rent of any accommodation is, or, but for a contract express or implied would be payable for any accommodation and includes any person occupying the accommodation as a sub-tenant and also any person continuing in possession after the termination of his tenancy whether before or after the commencement of this Act; but shall not include any person against whom any order or decree for eviction has been made'.
The definition makes a person continuing in possession after the determination of his tenancy a tenant unless a decree or order for eviction has been made against him, thus putting him on par with a person whose contractual tenancy still subsists. The incidents of such tenancy and a contractual tenancy must therefore be the same unless any provision of the Act conveyed a contrary intention. That under this Act such a tenant retains an interest in the premises, and not merely a personal right of occupation, will also appear from section 14 which contains provisions restricting the tenant's power of subletting. Section 6 14 is in these terms:
'Sec. 14 Restriction on sub-letting.-(1) No tenant shall without the previous consent in writing of the landlord-
(a) sublet the whole or any part of the accommodation held by him as a tenant: or
(b) transfer or assign his rights in the tenancy or in any part thereof.
(2) No landlord shall claim or receive the payment of any sum as premium or pugree or claim or receive any consideration whatsoever in cash or in kind for giving his consent to the sub-letting of the whole or any part of the accommodation held by the tenant'.
There is nothing to suggest that this section does not apply to all tenants as defined in Section 2(i). A contractual tenant has an estate or interest in premises from which he carves out what he gives to the sub-tenant. Section 14 read with section 2 (i) makes it clear that the so called statutory tenant has the right to sub-let in common with a contractual tenant and this is because he also has an interest in the premises occupied by him."
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 after the determination of the tenancy continues to have an estate or interest in the tenanted premises and the tenancy rights both in respect of residential promises and commercial premises are heritable. The heirs of the deceased tenant in the absence of any provision in the Rent Act to the contrary will step into the position of the decreased 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 7 the deceased tenant on any condition laid down being fulfilled, 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. In State of West Bengal and another v. Kailash Chandra Kapur and others [(1997) 2 SCC 387] in the context of the issue as to whether the word person used in clause (12) of the covenant (lease-deed) would include the stranger also; Their Lordships were pleased to observe:
"12. In view of the above settled legal position, the question is: whether the bequest made by Mullick in favour of the respondent is valid in law and whether the Governor is bound to recognise him? It is seen that clauses (7), (8) and (12) are independent and each deals with separate situation. Clause (7) prohibits sub-lease of the demised land or the building erected thereon without prior consent in writing of the Government. Similarly, clause (8) deals with transfer of the demised premises or the building erected thereon without prior permission in writing of the Government. Thereunder, the restricted covenants have been incorporated by granting or refusing to grant 8 permission with right of pre-emption. Similarly, clause (12) deals with the case of lessee dying after executing a Will. Thereunder, there is no such restrictive covenant contained for bequeath in favour of a stranger. The word `person' has not been expressly specified whether it relates to the heirs of the lessee. On the other hand, it postulates that if the bequest is in favour of more than one person, then such persons to whom the leasehold right has been bequeathed or the heirs of the deceased lessee, as the case may be, shall hold the said property jointly without having any right to have a partition of the same and one among them should alone be answerable to and the Government would recognise only one such person. In the light of the language used therein, it is difficult to accept the contention of Shri V.R., Reddy, that the word `person' should be construed with reference to the heirs or bequest should be considered to be a transfer. Transfer connotes, normally, between two living persons during life; Will takes effect after demise f the testator and transfer in that perspective becomes incongruous. Though, as indicated earlier, the assignment may be prohibited and Government intended to be so, a bequest in favour of a stranger by way of testamentary disposition does not appear to be intended, in view of the permissive language used in clause (12) of the covenants. We find no express prohibition as at present under the terms of the lease. Unless the Government amends the rules or imposes appropriate restrictive covenants prohibiting the bequest in favour of the strangers or by enacting appropriate law. There would be no statutory power to impose such restrictions prohibiting such bequest in favour of the strangers. It is seen that the object of assignment of the Government land in favour of the lessee is to provide him right to residence. If any such transfer is made contrary to the policy, obviously, it would be defeating the public purpose. But it would be open to the Government to regulate by appropriate covenants in the lease deed or appropriate statutory orders as per law or to make a law in this behalf. But so long as that is not done and in the light of the permissive language used in clause (12) of the lease 9 deed, it cannot be said that the bequest in favour of strangers inducting a stranger into the demised premises or the building erected thereon is not governed by the provisions of the regulation or that prior permission should be required in that behalf. However, the stranger legatee should be bound by all the covenants or any new covenants or statutory base so as to bind all the existing lessees."
In Suresh Kumar Bansal v. Krishna Bansal and another [(2010) 2 SCC 162] the question which croped up for consideration was as to whether the appellant on the death of original plaintiff (owner of the suit property), viz., Mohanlal, was entitled to be impleaded/substituted in the suit for eviction along with natural heirs and legal representatives of the deceased on the strength of will executed in his favour by the original plaintiff. Their Lordships were pleased to observe:
"20. It is now well settled that determination of the question as to who is the legal representatives of the deceased plaintiff or defendant under Order 22 Rule 5 of the Code of Civil Procedure is only for the purposes of bringing legal representatives on record for the conducting of those legal proceedings only and does not operate as res judicata and the inter se dispute between the rival legal representatives has to be independently tried and decided in probate proceedings. If this is allowed to be carried on for a decision of an eviction suit or other allied suits, the suits would be delayed, by which only the tenants will be benefited.
21. In order to shorten the litigation and to consider the rival claims of the parties, in our view, the proper course to follow is to bring all the heirs and legal representatives of the deceased plaintiff on record including the legal representatives who are claiming on the basis of the Will of the deceased plaintiff so that all the legal representatives namely, the appellant and the natural heirs 10 and legal representatives of the deceased plaintiff can represent the estate of the deceased for the ultimate benefit of the real legal representatives. If this process is followed, this would also avoid delay in disposal of the suit.
22. In view of our discussions made hereinabove, we are, therefore, of the view that the High Court as well as the trial Court were not at all justified in rejecting the application for impleadment filed at the instance of the appellant based on the alleged Will of the deceased plaintiff at this stage of the proceedings."
What is true of the landlord being represented through a stranger on the basis of a Will. In respect of tenancy matter also, in the considered opinion of this Court, will equally be applicable where a tenant bequeaths his tenancy to a third persons.
The impugned order when is tested on the anvil of decision rendered in Smt. Gian Devi Anand (supra), Kailash Chandra Kapur and others (supra) and Suresh Kumar Bansal (supra) cannot be given stamp of approval. Consequently the same is set aside. The application preferred by the petitioner under Order 22 Rules 1 and 2 read with Order 22 Rule 10 Code of Civil Procedure, 1908 is allowed. Let the petitioner be impleaded as co-defendant.
Steps within 15 days from the date of passing of this order.
Petition is allowed to the extent above.
(SANJAY YADAV) JUDGE vivek tripathi