Hajee Abdulla Sait vs K.D. Moorjani and Others

K. Veeraswami, C.J.—The Appellant is the landlord, who brought a suit in ejectment. The lease dated February 20, 1954, related to a non-

residential building. The rent was fixed at Rs. 195 per month. Madras Act XVIII of 1960 came into force on September 30, 1960 but it had no

application to a non-residential building, the rental value of which exceeded a certain limit. The building in question far exceeded that limit and,

therefore, was not then governed by the provisions of the Act. On February 20, 1961, the lease period came to an end. Then followed, on April 4,

1961, a notice by the Appellant terminating the tenancy on or before June 1, 1961, the receipt of which was duly acknowledged by the tenant on

April 10, 1961. Since the tenant did not deliver possession the Appellant instituted in October 1961 the suit, out of which this appeal arises in the

City Civil Court, Madras. On November 30, 1961, the suit ended in an ex-parte decree, and in execution of the decree, in February 1962, the

Appellant took possession of the building on February 12, 1962, through a bailiff. Two days later, the Appellant entered into an agreement with a

new tenant stipulating a rent of Rs. 450 per month. On May 5, 1962, an application, which had been filed by the tenant to set aside the ex-parte

decree, was dismissed. At that stage, came into force Madras Act II of 1962, with effect from June 30, 1962. According to Section 2 of the

Amending Act, a non-residential building or part thereof occupied by any one tenant would come within the purview of the Act if the rent he was

liable to pay per month was less than Rs. 400. Section 3 had the effect of abating certain pending proceedings. We will refer to the section

presently. On October 29, 1962, a Civil Miscellaneous Appeal filed by the tenant was allowed and the suit for eviction was restored, and the

Appellant''s civil revision petition against the order in the Civil Miscellaneous Appeal was unsuccessful. There was an execution petition for

restitution of possession. But this was held over by consent till the disposal of the suit. On February 8, 1964, the suit was decreed and the

execution petition was dismissed. On June 10, 1964, came into force another Amending Act omitting altogether the exemption to non-residential

buildings. There was a provision for abatement as in the 1962 Amending Act. But the decree for eviction was reversed in appeal on December 8,

1964, and the Civil Miscellaneous Appeal filed by the tenant was allowed, the result of which was, there was a direction for re-delivery. Thus, the

second appeal comes before us against the appellate decree. We may mention that on January 3, 1967, pending disposal of the second appeal the

tenant died, and in April 1967, his legal representatives were brought on record.

Mr. Chagla, who appears for the Appellant, contends that in view of the fact that the tenant died on January 3, 1967, and inasmuch as the

tenancy agreement with him had been brought to an end by a notice to terminate the tenancy on and from June 1, 1961, and the suit being one in

ejectment treating the tenant as a trespasser, the legal representatives of the deceased tenant are no longer entitled to any statutory protection

inasmuch as such protection was but personal to the original tenant. In support of his contention, he relied on Jagdish Chander Chatterjee and

Others Vs. Shri Kishan and Another, . That was a case under the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. There, the

Plaintiff had prayed for ejectment of the tenant of a residential premises on the ground that he required the premises bona fide for purposes of his

residence and that of his family. The suit was contested by a denial that it was required for the purpose mentioned. The landlord, in the first

instance, succeeded. But on appeal the decree of the trial Court was reversed by accepting the defence. The matter went up to the Rajasthan High

Court in second appeal filed by the landlord. During the pendency of this appeal, the tenant died, and his widow and children were brought on

record as his heirs and legal representatives. The widow too died later and her heirs were brought as her legal representatives. The High Court

allowed the appeal on the view that the statutory protection available under the Rajasthan Act to the tenant was personal to him and after his death,

his legal representatives could not set up as a defence to the suit in ejectment that in that capacity they were also entitled to the statutory protection.

The Supreme Court, dealing with this question, observed:

It is now settled that after the termination of the contractual tenancy the statutory tenant has only a personal right to continue in possession till

evicted in accordance with the provisions of the Act. It is pointed out by this Court in Anand Nivas (Private) Ltd. Vs. Anandji Kalyanji Pedhi and

Others, a person remaining in occupation of the premises let to him after the determination of or expiry of the period of the tenancy is commonly

though in law not accurately, called a ''statutory tenant''. Such a person is not a tenant at all; he has no estate or interest in the premises occupied

by him. He has merely the protection of the statute in that he cannot be turned out so long as he pays the standard rent and permitted increases, if

any, and performs the other conditions of the tenancy. His right to remain in possession after the determination of the contractual tenancy is

personal; it is not capable of being transferred or assigned, and devolve on his death only in the manner provided by the statute.

These observations have been made with reference to the provisions of the Bombay Rents Hotel and Lodging House Rates (Control) Act, 1947.

But they equally apply to the provisions of the Act with which we are concerned. The protection given to B.N. Chatterji was personal to him and if

that protection is withdrawn either because there is a change in the statute or because the person who is to be personally protected is no longer

living, the question arises as to what is the position of the legal representatives of the deceased statutory tenant qua the landlord in a proceeding of

the nature with which we are concerned.

Then the Court dealt with the position of the legal representatives, after pointing out that so far as the appeal was concerned it was obvious that the

Appellant--landlord''s right to proceed with the appeal with a view to obtain possession of his premises did survive under Order XXII, Rule 4 read

with Rule 11, Code of Civil Procedure; but that could not help the legal representatives to claim the statutory protection, for, they could urge as

heirs and legal representatives only those contentions which the deceased himself could have urged except only those which were personal to the

deceased. After reciting the provisions of Section 3, Clause (vii) of the Rajasthan Act, the Supreme Court further observed:

It was contended before us that since the rent was payable by the heirs and in fact it was paid during the pendency of the proceedings, they were

tenants with in the definition. In our opinion, rent was not payable by the legal representatives and if the rent was paid by them during the course of

the proceedings it was not because they were recognised as tenants by the landlord but because the amount was received by him without prejudice

to his rights under the orders of the Court. Indeed, if the original tenant had died before the contractual tenancy had been terminated then the heirs

would have inherited the tenancy and in that sense the rent would have become payable by them. But that is not the position here. When B. N.

Chatterji died, he was only a statutory tenant with a personal right to remain in possession till eviction under the provisions of the Act, and the heirs

were incapable of inheriting any estate or interest in the original tenancy. It was also not shown to us that they fell within any other part of the

definition of ''tenant'' reproduced above.

There is, therefore, no doubt that a statutory tenancy is neither in truth nor in law a tenancy as such. At best it is only a statutory protection in which

the person protected is alone entitled to the benefit of it. In the personal protection there is involved no proprietory right or interest in immovable

property, which can devolve as any other property on his heirs or legal representatives. The protection is not a heritable estate or one which can be

transferred or assigned, unless of course it is expressly or by necessary intendment allowed by a statute. That being the nature of the statutory

protection, when the tenant in this case died, the statutory protection, which was personal to him, automatically terminated and there was nothing in

it to devolve on his heirs or legal representatives.

That being so, the Court is entitled to take into account the altered circumstance at the hearing of the second appeal and direct eviction. Mr.

Kesava Ayyangar for the legal representatives of the tenant stresses before us (1) that because of Section 3 of Madras Act II of 1962, the suit

itself had abated and (2) that the language of the definition of tenant in Madras Act XVIII of 1960, made a difference and that, therefore Jagdish

Chander Chatterjee and Others Vs. Shri Kishan and Another, was distinguishable. We have no hesitation in rejecting these contentions. As to the

first, Section 3 of Madras Act II of 1962 is as follows:

Certain pending proceedings to abate--Every proceeding in respect of any building pending before any Court or other authority or officer on the

date of the publication of this Act in the Fort St. George Gazette and instituted on the ground that such building was exempt from the provisions of

the principal Act by virtue of Clause (ii) or (iii), as the case may be, of Section 30 of the Principal Act, shall, if the building or part thereof is not

exempt under Clause (ii) or (iii) aforesaid as amended by this Act, abate in so far as the proceeding relates to such building or part. All rights and

privileges which may have accrued before such date to any landlord in respect of any building by virtue of Clause (ii) or (iii) of Section 30 of the

Principal Act, shall, in so far as they relate to a building or part thereof which is not exempt under Clause (ii) or (iii) aforesaid as amended by this

Act, cease and determine and shall not be enforceable:

Provided that nothing contained in this section shall be deemed to invalidate any suit or proceeding in which the decree or order passed has been

executed or satisfied in full before the date mentioned in this section.

It may be seen that in order for the section to apply, the proceeding must be pending on the date of the publication of the Act. From the facts we

have related, it will be clear that on June 30, 1962, when the Amending Act came into force, the suit had ended in an ex-parte decree, which, in

fact, had been executed and possession was obtained by the Appellant-Plaintiff. So Section 3, in our opinion, will have no application. The

argument however, is that since the Civil Miscellaneous Appeal to set aside the ex-parte decree was subsequently allowed which had the effect of

reviving the suit for fresh disposal, Section 3 would be attracted to it. Our attention is particularly drawn to the proviso to Section 3 in support of

the contention. We are wholly unable to appreciate the argument. Section 3 refers to a proceeding pending on the date of the publication of the

Act. A proceeding so contemplated should be a factual one and not a deemed one. The test for the application of the section is a factual one, to

wit, whether the suit was pending on the date of the publication of the Act. There is no scope for reading into Section 3 so as to include, for

purpose of abatement, a suit which had ended in a decree, which was actually executed, but which, because the decree was ex-parte, was set

aside and, therefore revived under the provisions of the Code of Civil Procedure. In other words, Section 3, as we read it, would not take within

its scope such a revived suit. It is no doubt true that an appeal is a continuation of the suit. But when the statute contemplated a set of

circumstances which are purely factual it is not possible for us to widen the scope of the section in order to attract a suit, which, in consequence of

allowing the appeal against the ex-parte decree, had revived for fresh disposal. What actually happens in such a case, if the argument is accepted

for the Respondent, is that as a result of allowing the appeal against the ex-parte decree, the reviving of the suit is related back and we have to

deem it as if it was pending on the date the publication of Madras Act II of 1962 was made. That situation does not appear to have been

contemplated by Section 3 at all. The proviso, according to Mr. Kesava Ayyangar, contemplates such a suit. We do not see how. In our opinion,

the proviso seems to indicate only that what has been completed by way of execution or satisfaction in full could not be re-opened for purposes of

Section 3.

The next contention for the Respondent is based on the definition of tenant as it occurs in the Tamil Nadu Buildings (Lease and Rent Control)

Act, 1960. As it stood before its amendment by Madras Act XXIII of 1973, it read as follows:

''Tenant'' means any person by whom or on whose account rent is payable for a building and includes the surviving spouse or any son, or daughter,

or the legal representative of a deceased tenant who had been living with the tenant in the building as a member of the tenant''s family up to the

death of the tenant and a person continuing in possession after the termination of the tenancy in his favour but does not include a person placed in

occupation of a building by its tenant or a person to whom the collection of rents or fees in a public market, cart-stand or slaughter house or of

rents for shops has been farmed out or leased by a municipal council or district board or the Corporation of Madras.

It seems to us that the language of the definition appears to contemplate only a residential building and it will have no application to a non-

residential building so far as it matters for the present purpose. This is because the inclusive part of the definition takes in only the surviving spouse

or any son or daughter or the legal representative of a deceased tenant who had been living with the tenant in the building as a member of the

tenant''s family up to the death of the tenant. This was not a case of a residential building and there was no question of the Respondents living with

their father in the non-residential building. It is, however, argued that the Respondents are entitled to the benefit of the statutory protection because

in the lease it was provided that the lessee was at liberty to take in his two sons in his business as partners. It is said that this provision in the lease

deed had the effect of permitting the sons to do business along with the father and that, according to the argument, meant that they could carry on

the business in the premises and that further meant that when the father, who was the managing partner, died, still the sons could carry on the

business in the same premises. Apparently, implication of the argument is that by this process of reasoning and as a result of the stipulation on

which we have referred in the lease deed, they are entitled to a sort of a statutory protection. In making this argument, learned Counsel stated that

we have got to take the substance of the matter in the lease deed as also the provisions of the Act and with a view to do justice, we should extend

this statutory protection to the legal representatives. On the other hand, Mr. Chagla''s contention is that this provision occurs in paragraph 4 of the

lease, which interdicts transfer of the leasehold right or subletting the premises to any one or any partnership concern, of which the lessee may be a

partner or to any limited company in which the lessee may be a share holder or director or managing agent without the previous sanction of the

lessor. In fact, the lease deed further provided for the consequence of contravening this interdiction, namely, that in that case, the tenant would

expose himself to determination of the lease and the landlord taking possession of the demised premises. Mr. Chagla also rightly points out that

merely because the lessee was stated to be at liberty to take his two sons in his business as partners, it did not mean that that provision created co-

tenancy or joint tenancy. Our attention was invited by Mr. Kesava Ayyangar to the partnership deed where it was provided that the business of the

firm should be carried on in the premises in question and it was contended that the intention of this provision was to make the premises available

for the partnership firm to carry on the business therein. But it is obvious that the deed of partnership nowhere had provided for treating the

tenancy as part of the assets of the firm. In fact, the lessor had no right to do it, as the same was interdicted under the terms of the lease deed. In

the circumstances, therefore, we are of opinion that there is nothing in the definition of the expression tenant or in the lease deed or in the

partnership deed, read individually or as a whole, to suggest that a sharing of the tenancy was provided for or contemplated or results from any

construction thereof.

The legal representatives could not put forward any claim other than that which the deceased himself could have. But as we have held in this

case that the statutory protection available to the tenant was personal to him, it came to an end on his death and the Respondents, in the

circumstances, could only be treated as trespassers.

On that view, the second appeal is allowed with costs. It appears that by means of restitution, the Respondents are in possession from March

1965. Accordingly, in modification of the trial Court''s decree, we direct the Respondents to pay the Appellant the mesne profits at the rate of Rs.

450 per month from April 1, 1965 down to the date of the delivery.