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Showing contexts for: tenancy devolving in Smt Madhurama Since Decd By Her Lrs vs Sri Shashidhara Sindigi on 1 August, 2012Matching Fragments
7. The same learned Judge again in the case of Smt. K.S.NAGAMMA vs Mrs M.P.MANEKSHAH [ILR 2004 KAR 2309] has held as under : -
"9. After the coming into force of Section 5 of the Act, it becomes necessary for the legal representative of the respondent who wants to come on record on the death of the original tenant to establish that the right of inheritance of the tenancy enures to him and, therefore, he could be evicted from the petition premises only on the grounds specified in Section 27 or Section 28 to 31 of the present Act and not otherwise. If on interpretation of Section 5 this Court comes to the conclusion that the respondent has not inherited tenancy, then there is no need for this Court to examine the legality and correctness of the impugned order. Therefore, let me now first consider whether the right of tenancy accrued to the present occupant of the premises. Section 5 of the Act provides a new substantive remedy to a landlord in case of death of a tenant. Section 5 prescribes the right of inheritance only to a specified class of persons and limits this inheritance to various periods depending upon certain factors which have been prescribed in the provision. This subsequent development in law is relevant in adjudging a claim for eviction made by the petitioner. In so adjudging the claim under Section 5, in circumstances such as the one obtaining in the present case, what is required of the Court is to examine whether the person who is staying over in the premises after the death of tenant is entitled to continue to remain in possession of the premises in his capacity as 'tenant' and whether the right of inheritance of tenancy accrues to him after the death of the tenant. Where such right is rendered inheritable, in law, his induction in the petition premises by the tenant prior to her death and his continuing in occupation as the representative of the tenant would not come to his aid in resisting a petition filed for eviction. Section 5 provides a new substantive remedy and the landlord even if he had suffered a negative finding in so far as his claim for self- occupation on the grounds hitherto available to him under the repealed Act can still seek relief under Section 5, if it enures to his benefit. Because there is no consideration of the material on record with reference to the altered law that governs the field now, this Court sitting in revision can adjudicate the matter in terms of the altered law as subsequent developments and altered circumstances are always at relevant all stages of the proceedings. Admittedly, the tenant died on 6.5.2003 during the pendency of the revision leaving behind her two daughters and one son, none of whom was residing with her in the petition premises. The brother-in-law of one of the daughters of the deceased tenant was residing with her in the petition premises. Under Section 5 of the Act the right of tenancy devolves on the spouse, son or daughter or both of them, parents and daughter- in-law being the widow of the predeceased son and not on any other person. The brother-in-law of one of the daughters of the tenant though ordinarily lived with the respondent-tenant, the right of tenancy does not devolve on him. It has come on record that none of the daughters or the son ever resided with the tenant in the petition premises. The contract of tenancy coming to a close on the death of the tenant, in the absence of any other person who could rightfully inherit the tenancy under Section 5, the petitioner- landlord would be entitled to an order of eviction without reference to or without the need to establish any other ground under which she may have sought for her eviction. This being the position that obtains in law the petitioner is entitled to recover possession of the petition premises and the Court is bound to pass an order for such recovery without going into the question whether or not the petitioner has established her requirement of the premises."
8. However, Justice K.Bhaktavatsala did not agree with the said interpretation. Therefore, in the case of Kiran Bai and Others Vs. K.Jayachandra Shetty & Others reported in ILR 2006 KAR 212, interpreting Section 5 of the Act, the learned Judge held as under:
"7. xxxxxxxxxxxxxxxxxxxxxxxxxx xxxxx xxxxxx The language employed in Section 5(1) that "in the event of death of a tenant" indicates that it does not provide for retrospective effect. In other words it says that in the event of death of a tenant, the right of tenancy shall devolve for a period of 5 years from the date of death of the tenant to his successors in the order of (a) spouse; (b) son or daughter or where there are both son and daughter both of them, (c) parents and (d) daughter-in-law being the widow of his predeceased son subject to provisos. Thus, it regulates the tenancy in the event of death of a tenant. Section 5 of the New Rent Act does not provide for eviction of a tenant. As a matter of fact, Sections 27 to 46 under Chapter-VI deals regarding regulation of eviction. Section 27 of the New Rent Act provides protection to the tenants against eviction except in the prescribed manner; whereas Sections 28, 29, 30 and 31 confers special right on certain landlords/ persons to recover immediate possession of the tenanted premises. None of these Sections viz., 27 to 31 refer to Section 5 of the New Rent Act. I have gone through the decisions reported in Shahwar Basheer's Case (Supra) and Smt. K.S. Nagamma v. Mrs. M.P. Manekshah Case (Supra). In these cases, the Learned Judge of this Court has given retrospective effect to Sections of the new rent Act. The Learned Single Judge of this Court has not considered the right of the L.Rs. of the tenant under the old rent act, which was in force when the tenant died. In my opinion retrospective effect cannot be given to Section 5 of the Act in the absence of provision to that effect. Therefore, in my opinion, with great respect to the learned Single Judge, the view taken by him in the decisions reported in Smt. K.S. Nagamma v. Mrs. M.P. Manekshah (Supra) and Shahwar Basheer and Ors. v. Veena Mohan and Ors. is not correct. Further, a tenant cannot be evicted solely on the basis of Section 5 of the New Rent Act, except following the procedure provided in Chapter VI of the New Rent Act.
(b) the right of every successor, referred to in sub-section (1) to continue in possession of the premises shall be personal to him and shall not, on the death of such successor, devolve on any of his heirs."
13. As is clear from the aforesaid provision, in the event of death of a tenant, their right of tenancy shall devolve on the spouse, sons and daughters, parents, daughter-in-law for a period of five years from the date of his death to his successors. Though tenancy right was made heritable, the aforesaid family members were not conferred the status of a tenant. The said Section elaborately provides for protection of the tenancy rights of such successors subject to their fulfilling various conditions stipulated in the said section. They are protected depending upon the facts of the case either for a period of 5 years or for a period of only one year, but they are not given the status of tenant. It is in this context, if a tenant has died prior to the coming into force of the new Act and his legal representatives are brought on record by virtue of their acquiring "status of a tenant" under the old Act, is that status of a tenant under the repealed Act taken away under the new Act and their right is restricted to only five years or only for one year as contemplated in Section 5 of the Act?
25. The tenancy under the new Act is not heritable. Section 5 of the new Act makes this intention of the legislature manifest by the expression 'inheritability of tenancy', i.e., under the new Act tenancy is not heritable. After the death of the original tenant, his legal heirs mentioned in Section 5 of the Act do not acquire the status of a tenant under the new Act, as they do not inherit the tenancy. But, Section 5 provides for the right of tenancy devolving on them for a limited period. After expressly making its intention clear by the word 'inheritability of tenancy', the legislature has conferred the right of tenancy on the legal heirs for a period of 5 years from the date of death of the tenant or one year as the case may be, but they did not chose to confer the "status of tenant" as was the case under the earlier Act. The opening words of Section 5 needs to be noticed. It reads, "in the event of death of a tenant". The tenant referred to therein is a tenant under the new Act. The word 'tenant' used in that Section is not referable to the original tenant under the repealed Act.