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In this respect, it is to be borne in mind that Kerala Act expressly includes heir/heirs of deceased tenant within the definition of tenant.

38. It has also been held in H.C. Pandey v. G.C. Paul that:

It is now well-settled that on the death of the original tenant, subject to any provision to the contrary either negativing or limiting the succession, the tenancy rights devolve on the heirs of the deceased tenant.

But it may be noted that in Kerala Act, there is no provision "negativing or limiting the succession" but heirs are expressly and without limitation put in the place of their predecessor for the purpose of considering them as tenants. The same is the tenor of the decision reported in Imdad Ali v. Keshav Chand that, a successor-in-interest of a tenant holds his tenancy right subject to rights and obligations of his predecessor. So, there is no reason to deny the heirs the right their predecessor had, especially in the light of the explicit definition of "tenant" in Section 2(6) to include the heir or heirs of a deceased tenant.

(i) a sub-tenant:

(ii) any person continuing in possession after the termination of his tenancy, but does not include any person to whom a licence as defined in Section 52 of the Indian Easements Act, 1882 (Central Act 5 of 1882) has been granted.

5. Inheritability of tenancy-

(1) In the event of death of a tenant, the right of tenancy shall devolve for a period of five years from the date of his death to his successors in the following order, namely-

(a) spouse

(b) son or daughter or where there are both son and daughter both of them;

122. The words 'occupation' and 'possession' are not synonymous. In Muhammed v. Abdul Rahiman 1983 K.L.T. 874 a learned Single Judge of this Court held that occupation and possession are not synonymous terms. One may possess land or building without occupying the same. In Mathai Antony v. Abraham also a Division Bench of this Court considered the difference between occupation and possession. It was held that the word "possession" means holding of such possession. Animus possidendi, means, the intention to exclude other persons. The word "occupy" has to be given a meaning so as to hold that the tenant is actually using the premises and not mere physical presence or possession. In Ram Pass v. Davinder the Supreme Court has held that in common parlance the words 'possession' and 'occupation' may be used interchangeably but in law "possession" amounts to holding the property as an owner, while "occupy" is to keep possession by being present in it. In the case at hand it is admitted that from 1973 till 1978 the widow of A.M. Velayudhan alone was in occupation. It is also admitted that from the year 1978 4th respondent alone is in occupation. The original tenant had left widow and 7 children. Can it be said that occupation of the building by one among them to occupation of all the heirs? Respondents 1 to 3 and 5 to 7 may have possession of the building but they are not in occupation of the same. In H.C. Pandy v. G.C. Paul A.I.R. 1989 S.C. 1470 it was held that legal heirs of original tenant succeed to tenancy as joint tenant. It is the single tenancy which devolves on the heirs.