Document Fragment View

Matching Fragments

27 There has been much debate in various judgments about the true incidence of tenancy inherited by the legal heirs of a statutory tenant. The distinction between heritability of residential and commercial tenancy was explained by the Apex Court in the celebrated judgment of Smt. Gian Devi Anand vs Jeeevan Kumar And Others 1985 AIR 796 SC. It was observed that the term "statutory tenant" is used in English Rent Act and though this term is not to be found in the Indian Acts, in the judgments of the Supreme Court and also various High Courts in India, this term has often been used to denote a tenant whose contractual tenancy has been terminated but who has become entitled to continue to remain in possession by virtue of the protection afforded to him by the statutes in question. S. 2(i) of the Act which defines the term "Tenant" provides that termination of the Harjit Singh Vs. Padma Sehgal page 17 of 42 contractual tenancy does not disqualify him from continuing to be a tenant within the meaning of this Act and the tenant whose contractual tenancy has been determined enjoys the same position and is entitled to protection against eviction. This interest or estate which the tenant continues to enjoy creates a heritable interest in the absence of any provision to the contrary. It was further observed that the amendment of the definition of 'tenant' by Act 18 of 1976 introducing particularly section 2(i) (iii) does not create any additional or special right in favour of the heirs of the 'so called statutory tenant' on his death, but seeks to restrict the right of the heirs of such tenant in respect of residential premises. However, the Legislature has not thought it fit to put any such restrictions with regard to tenants in respect of commercial premises in this Act. The absence of any provision restricting the heritability of the tenancy in respect of the commercial premises only establishes that commercial tenancies notwithstanding their determination will devolve on the heirs in accordance with law of succession. 28 Thus, it is evident that on termination of contractual tenancy the legal heirs would inherit as per law of succession. However, what would be the nature of such possession was considered by the apex Court in H. C. Pandey vs. G. C. Paul, 1989 AIR 1470, Harjit Singh Vs. Padma Sehgal page 18 of 42 wherein it observed that on the death of the original tenant, subject to any provision to the contrary either negativing or limiting the succession, it is a single tenancy which devolves on the heirs. There is no division of the premises or of the rent payable thereof. The heirs thus, succeed to the tenancy as joint-tenants. 29 This concept was followed by High Court of Delhi in Mohd. Usman vs. (Mst.) Surayya Begum (1990) 2 RCR (Rent) and it was held as under:-

The Supreme Court in Gian Devi Anand's case (Supra) has no doubt observed that tenancy right which is inheritable devolves on the heirs under the ordinary law of succession. It only means that only those heirs who would be entitled to inherit the property of a deceased tenant under the ordinary law of succession would be entitled to inherit even the right of tenancy after the death of the tenant.
...
The incidence of the tenancy is the same as those enjoyed by the original tenant. It is a single tenancy which devolves on the heirs. There is no division of the premises or of the rent payable thereof. That is the position as between the landlord and the heirs of the deceased tenant. In other words, the heirs succeed to the tenancy as joint tenants. In the present case it appears that the respondent acted on behalf of the tenants that he paid rent on behalf of all and he accepted notice also on behalf of all. In the circumstances, the notice was served on the respondent was sufficient....."

30 Further, the case of Mohd. Usman went to Supreme Court in Mst. Surayya Begum vs. Mohd. Usman and others (1991) 3 SCC 114 wherein the Supreme Court held as under:-

"7. The learned advocates representing the decree holders in these two appeals have argued that when the tenancy rights devolve on the heirs of a tenant on his death, the incidence of Harjit Singh Vs. Padma Sehgal page 19 of 42 tenancy remains the same as earlier enjoyed by the original tenant and it is a single tenancy which devolves on them. There is no division of the premises or of the rent payable, and the position as between the landlord and the tenant continues unaltered......