George Peter vs T.K. Sali and Another

K. Narayana Kurup, J.—The revision Petitioner is the landlord and the Respondents are the heirs of the deceased original tenant. The revision is directed against the orders of the courts below holding that the legal representatives of the tenant have a right to continue the proceedings on the death of the tenant for restoration of possession u/s 11(12) of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short ''the Act'').

The facts in brief are as follows:

The petition schedule room was owned by the revision Petitioner-landlord. He filed a petition against the original tenant, the late Krishnan Vaidyan. The Rent Control Petition was contested up to this Court by the tenant and ultimately the building was got delivered through court in the year 1978 in execution proceedings. Thereafter, the revision Petitioner-landlord, remodeled the building according to his need and is now in occupation of the same. The ground floor is being used for his business purpose and the first floor is being used for his residence. While so, the original tenant viz.; late Krishnan Vaidyan filed I.A. 1001/1983 u/s 11(12) of the Act for restoration of possession alleging that the building is not being used by the landlord for the purpose for which it was got surrendered by him. That petition was filed after a long period of 5 years from the date of surrender of the building. During the pendency of the petition, the original tenant Krishnan Vaidyan passed away and a petition I.A. No. 1732 of 1986 was filed by his legal heirs praying for impleading them as additional Petitioners 2 to 5. During the pendency of the I.A., Petitioner No. 5 in the said I.A. viz.; the daughter of the deceased tenant passed away. But no attempt was made to implead her legal heirs. The landlord opposed the petition mainly on the ground that after the death of the original tenant his legal heirs will not get a right to get themselves impleaded in order to contest the proceedings as the right given by the statute to an evicted tenant is a right personal to him. However, the Rent Control Court as per order dated 19th August 1988 in I.A. 1732 of 1986 allowed the application permitting the legal heirs of the deceased tenant to continue the proceedings for restoration of possession. Being aggrieved by the said order, the revision Petitioner-landlord took up the matter before the Rent Control Appellate Authority as R.C.A. 26 of 1989 which came to be dismissed as per judgment dated 9th February 1990 confirming the order of the Rent Control Court. The Rent Control Appellate Authority took the view that the definition of ''tenant'' in Section 2(6) of the Act being inclusive of the heirs of the deceased tenant, the right conferred u/s 11(12) of the Act is heritable and as such the petition for restoration of possession by the legal representatives of the deceased tenant is maintainable and this revision is directed against the aforesaid orders of the courts below as already noticed.

Heard Mr. S.K. Brahmanandan, learned Counsel for the Petitioner and Mr. R. Bhaskaran, learned Counsel for the Respondents who appeared amicus curiae.

The short question that arises for consideration in this revision petition is whether the right given to the tenant u/s 11(12) of the Act is personal to him and whether the legal heirs of an evicted tenant can continue the proceedings for restoration of possession u/s 11(12) of the Act on the death of the original tenant by getting themselves impleaded. In other words can it be said that the legal heirs of an evicted tenant (since deceased) under the Act who are no longer in possession of the building in question have no right in the property? In this connection the definition of "tenant" occurring in Section 2(6) of the Act as substituted by Section 2(b) of Act 7/1966 (20th July 1966) assumes significance.

The definition of tenant. "Tenant" means any person by whom or on whose account rent is payable for a building and includes:

(i) the heir or heirs of a deceased tenant, and

(ii) a person continuing in possession after the termination of the tenancy in his favour.

By virtue of this inclusive definition, we do not find any reason why the legal representatives of a deceased tenant shall not get all the rights that a tenant has, including the right to move the Rent Control Court for an order directing that they shall be restored to possession of the building u/s 11(12) of the Act. By the tone, tenor and phraseology of the inclusive definition of the expression ''tenant'' such right can accrue to the legal heirs of the deceased tenant by inheritance. Thus the legal heirs of an evicted tenant under the Act get all the rights of the original tenant in the property in question including the right to claim restoration of possession u/s 11(12). The only inhibition is what is contained in Section 11(4) of the Act by which the landlord gets a cause of action to evict the tenant if the latter transfers his right under the lease or Sub-lets the entire building or a portion thereof. Section 11(12) of the Act confers a statutory right on the quondam tenant the tenant who was evicted to apply for restoration to the Rent Control Court, if the landlord fails to occupy the building within one month of the delivery. If the original evicted tenant has a right of re-entry as conferred by Section 11(12) of the Act, such a right subject to any provision to the contrary either negativing or limiting the succession must perforce enure to the benefit of his heir(s). That such is the legislative intend is clear from phraseology of the definition of the expression "tenant" in Section 2(6) of the Act which takes within its sweep not only the person by whom rent is payable for a building and includes the heir or heirs of a deceased tenant. There is no provision in the Act negativing or limiting the right of the heirs from stepping into the shoes of the deceased tenant. On the contrary, the statute expressly provides that ''tenant'' includes the heir or heirs of a deceased tenant whereby enabling the heirs of the deceased tenant to prosecute the proceedings against the landlord for restoration of possession u/s 11(12) of the Act. Any other construction will have the effect of encouraging an unscrupulous landlord from not occupying the building after obtaining a decree of possession of the same thereby leaving the heirs of the tenant high and dry. The legislature obviously took note of the situation and substituted the definition clause of ''tenant'' in Section 2(6) of the Act with the present one by Act 7/1966 bringing within the Scope of the definition of ''tenant'' the heirs of deceased tenant as well. In the above perspective we have no hesitation in holding that the Respondents herein, being the legal heirs of the deceased tenant, are entitled to get themselves impleaded in the proceedings in the courts below and to continue the proceedings for restoration of possession.

We are fortified in our view by the decision of the Apex Court reported in Damadilal and Others Vs. Parashram and Others, wherein the Supreme Court has observed thus:

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 irrevocability 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.

In the aforesaid decision the court after referring mainly to the definition of ''tenant'' in Section 2(i) of the Madhya Pradesh Accommodation Control Act, 1961 came to the conclusion that the so called statutory tenant had an interest in the premises occupied by him and the heirs of the statutory tenant had a heritable interest in the premises. The principles laid down in Damadilal and Others Vs. Parashram and Others, cited supra was approved in the later decision of the Supreme Court reported in Gian Devi Anand Vs. Jeevan Kumar and Others, wherein it has been held that the tenant even after the determination of the tenancy continues to have an estate of interest in the tenanted premises and the tenancy rights both in respect of residential premises and commercial premises are heritable. It has been further held that 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 deceased 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.

In like vein is the observation made by the Apex Court in a still latter decision reported in H.C. Pandey Vs. G.C. Paul, to the following effect:

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. The incidence of the tenancy are the same as those enjoyed by the original tenant. It is a single tenancy which devolves on the heirs.... 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....

No doubt, learned Counsel for the revision Petitioner-landlord .brought to our notice the decision reported in Jagdish Chander Chatterjee and Others Vs. Shri Kishan and Another, to the effect that the right of a statutory tenant is not heritable. Jagdish Chander Chatterjee and Others Vs. Shri Kishan and Another, dealt with the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 and the question for decision was whether on the death of a statutory tenant his heirs succeed to the tenancy so as to claim protection of the Act. In this case it was held by Grover and Palekar, JJ. relying on Anand Nivas (Private) Ltd. Vs. Anandji Kalyanji Pedhi and Others, that after the termination of contractual tenancy, a statutory tenant enjoys only a personal right to continue in possession and on his death his heirs do not inherit any estate or interest in the original tenancy. The above cases proceed on the basis that a tenant whose tenancy has been terminated, described as statutory tenant, has no estate or interest in the premises but only a personal right to remain in occupation. But then, it has to be remembered that even if the statutory tenant has no estate or property in the demised premises, once the Act has created a right in such a tenant in respect of the property by widening the definition of the expression ''tenant'' so as to include the heirs of a deceased tenant, the latter will be entitled to claim all the rights of the original tenant. So this decision relied on by the learned Counsel for the revision Petitioner landlord is of no assistance to him.

In the result, we find no illegality or irregularity in the orders under challenge justifying interference in exercise of the limited jurisdiction of this Court u/s 20 of the Act. Accordingly, we confirm the orders under challenge and dismiss this Civil Revision Petition. The Rent Control Court will proceed with the trial of the I.A. 1732/1986 in R.C.P. 1/1971 and complete the same as expeditiously as possible, at any rate, not later than 3 months from today. Before parting with this judgment, we would like to place on record our appreciation of the pains taken by the learned Counsel Mr. R. Bhaskaran who appeared as amicus curiae for the Respondents and deftly presented their case.

The C.R.P. is dismissed.