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4. Submissions at the Bar:

Sri. P.B. Krishnan, the learned counsel for the petitioner submits that there is no pleading claiming protection under the second proviso to Section 11(3) of the Act in the counter statement. But the appellate authority considered the issue of protection under the second proviso and allowed the appeal erroneously without pleadings. The finding that respondent No.4 is entitled to protection under second proviso is erroneous in law as the tenancy has devolved upon all the legal heirs on the death of the original tenant and the same is admitted in additional counter. The relevant date for judging the entitlement of protection is the date of rent control petition and not any subsequent date in view of the decision reported in Padmanabhan Nair v. Devaki Brhamani Amma (2009(1) KLT 485). The income tax returns from the year 2000  R.C.R.NO.14 OF 2011 onwards filed by the 4th respondent before the authorities are not relevant documents to determine the sources of livelihood. The income as per the said documents is much less than her total expenses and these documents give rise to a reasonable inference that tenants are not depending upon the income which they derive from the business in the petition schedule property for their livelihood. No enquiry on availability of vacant rooms was made in the locality. Similarly no enquiry was made in between 1987 and 2004.

17. Point No.5:

Coming to the next question whether the tenant is entitled to get protection under the first limb of the second  R.C.R.NO.14 OF 2011 proviso to Section 11(3) of the Act. On an analysis of the evidence let in by both the parties, it is quite evident that parties have gone for trial with full knowledge about protection under the second proviso to Section 11(3) of the tenant. Have the tenants discharged their burden of proof? The 4th respondent was examined as RW1 to prove the averment that his main income is the income derived from the hotel and lodging business in the petition schedule building and he had no other source of income. To prove this fact, he has produced Exts.B65 to B72, the income tax returns for the years from 2000 -2001 to 2007-08. These returns were filed by RW1, one of the legal representatives of the original tenant, as proprietress of the hotel and lodging. In this context, it is pertinent to note that there is no pleadings to the effect that tenancy right was given exclusively to the 4th respondent (RW1) by the original tenant. RW1 has categorically deposed that it is as per the Will of her father (original tenant) she got absolute right and possession over the building. But no evidence was forthcoming in the trial to prove her claim, particularly when the right of tenancy devolved upon all legal heirs by the death of the original tenant and sufficient impleadments and amendments were made in the Rent Control Petition to that effect. Sri. P.B. Krishnan argued that as there is no case that respondent No.4 alone was the tenant, the legal representatives as a body must establish their entitlement to the protection. The finding that respondent No.4 is entitled to protection under the second proviso is solely  R.C.R.NO.14 OF 2011 insufficient as the tenancy has devolved upon all the legal representatives. We see substantial force in the said argument advanced by the counsel.

18. The tenancy right is inheritable. Therefore the inheritable interest of the tenant would devolve upon all the heirs of the tenant on his death and all the legal heirs of such tenant would in law step into his position. Therefore enquiry under the second proviso confining to one of the legal heirs alone and finding that she is entitled to protection under second proviso is insufficient and not correct as the tenancy devolved upon all legal heirs of the original tenant.

19. The learned counsel for the tenants per contra submitted on this point that the original tenant died leaving his Will and testament in favour of the 4th respondent. But, no such Will was produced and proved in accordance with the statutory requirement under Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act. Even if there is a Will, the question that arises for consideration is whether the legatee under a testimentory disposition would fall within the expression of 'tenant'? 'Tenant' means any person by whom or on whose account rent is payable for a building and includes;