Smt. Dayal Kaur and Others vs Smt. Bina Devi and Others

Gopi Nath, J.—This is a Defendant''s appeal arising out of a suit for possession and damages.

Plaintiffs were the heirs of one Ram Bharosey Lal who was alleged to have let out the premises to one Ganga Singh and Dewan Singh. A notice u/s 106 of the Transfer of Property Act terminating the tenancy of Ganga Singh and Dewan Singh was given on 16-4-1957. They, however, did not vacate the premises and it was alleged that they continued to be statutory tenants of the premises in dispute under the U.P. Temporary Control of Rent and Eviction Act No. 3 of 1947. Ganga Singh and Dewan Singh died in the year 1967. Ganga Singh left behind no heirs while Dewan Singh left the Defendants as his heirs.

The Plaintiffs'' case was that the Defendants had no legal status to continue in the premises. They were asked to vacate the same which they refused. Hence the suit for their ejectment and recovery of damages at the rate of Rs. 10 per month.

The defence delivered inter alia was that Ram Bharosey Lal was not the owner of the property in dispute, that he was not the landlord of Ganga Singh and Dewan Singh, that he could not validly terminate their tenancy which was created by the members of the joint Hindu family of Ram Bharosey Lal''s and his coparcener father, that in any view since Ganga Singh and Dewan Singh had continued in the premises even after the alleged termination of their tenancy they continued as lessees in the premises, that the Defendants also continued in the premises after the death of Dewan Singh and paid rents to Ram Bharosey Lal by money orders which having been accepted, they would be deemed to be tenants of Ram Bharosey Lal and not trespassers; that after the death of Ram Bharosey Lal the Defendants would be tenants of the Plaintiffs who are Ram Bharosey Lal''s heirs. They were accordingly not liable to ejectment without termination of their tenancy by a valid notice.

Both the courts below have decreed the suit on the findings that Ram Bharosey Lal was the landlord of the premises in suit, that he had leased out the premises to Ganga Singh and Dewan Singh, that Ganga Singh and Dewan Singh''s tenancy was validly terminated by Ram Bharosey Lal by a notice dated 16-4-1957, that Ganga Singh and Dewan Singh thereafter continued to be only statutory tenants of the premises as the same was governed by the provisions of the U.P. Temporary Control of Rent and Eviction Act, that after the death of Ganga Singh and Dewan Singh the Defendants had no right of inheritence in the disputed property as the tenancy of a statutory tenant was not heirtable at law. The Defendants consequently were not tenants of the premises and there existed no relationship of landlord and tenant between the parties. The Plaintiffs accordingly were not required to terminate their tenancy by a notice u/s 106 of the Transfer of Property Act and the suit for ejectment was maintainable.

It was further found by the courts below that mere acceptance of amounts equal to rent by the Plaintiffs from the Defendants did not create any tenancy in their favour as the creation of tenancy was a bilateral act and the Defendants had failed to prove that a tenancy was created in their favour. The mere sending of money orders, according to the learned Judge, did not create any tenancy as the same had not been proved to have accepted as rents. The amounts were found to have been accepted as compensation for use and occupation.

Aggrieved the Defendants have come up in second appeal.

Learned Counsel for the Appellant rightly did not challenge the following finding recorded by the court below that Ram Bharosey Lal was the owner of the premises in dispute, that he had let out the premises to Ganga Singh and Dewan Singh and that their tenancy was terminated by a valid notice u/s 106 of the Transfer of Property Act in the year 1957, that they continued to be statutory tenants thereafter on the basis of the provisions of the U.P. Temporary Control of Rent and Eviction Act, that after the death of Ganga Singh and Dewan Singh and Defendants occupied the premises without any contract of tenancy between them and Ram Bharosey Lal. Learned Counsel further did not dispute the position that the Plaintiffs who are the heirs of Ram Bharosey Lal were landlord of the premises.

The only point pressed was that by acceptance of amounts tendered by the Defendants the Plaintiffs predecessor in interest, namely Ram Bharosey Lal, would be deemed to have created a tenancy in favour of the Defendants and a relationship of landlord and tenant had come into existence between the parties. The Defendants consequently could not be evicted without termination of their tenancy by a valid notice u/s 106 of the Transfer of Property Act. Learned Counsel for the Appellant relied on Bhawanji Lakhamshi v. Himatlal Jamnadas Dani 1972 SC 819, Smt. Ram Piari v. Narendra Kumar 1976 ALJ 754, Smt. Munni Devi v. State of U.P. 1977 AWC 651, Mangal Sen v. Smt. Krishna Devi 1970 AWR 489, Ram Kishore v. Ambika Prasad 1966 AWR 57, Ram Dayal v. Jwala Prasad AIR 1966 All. 623 , Mohan Lal Vs. Sameer Kunwar, in support of his submission.

Learned Counsel for the Respondent on the other hand contended that by mere acceptance of amounts tendered for occupation of the premises after termination of tenancy of the predecessors in interest of Defendants by a valid notice, no fresh tenancy can be said to be created and the notice u/s 106 of the Transfer of Property Act dated 16-4-1957 was not waived. Reliance was placed on Hari Shanker v. Chaitanya Kumar 1968 AWR 197; Daya Ram v. Gur Charan Das 1973 ALJ 850; Permanand v. L. Murari Lal 1966 AWR 432.

In the instant case it has been found that the tenancy of Ganga Singh and Dewan Singh had been validly terminated by a notice dated 16-4-1957 and they continued in possession of the property as statutory tenants in view of the provisions of the U.P. Temporary Control of Rent and Eviction Act (Act No. 3) of 1947. The law as regards acceptance of rent from a statutory tenant by a landlord and its effect was laid down by the Supreme Court in Bhawanji Lakhamshi v. Himatlal Jamnadas Dani 1972 SC 819 as follows:

Mere acceptance of amounts equivalent to rent by a landlord from a tenant in possession after a lease has been determined, either by efflux of time or by notice of quit, and who enjoys statutory immunity from eviction except on well defined grounds as in the Act (Bombay Rents, Hotels and Lodging House Rates (Control) Act, 1947) cannot be regarded as evidence of new agreement of tenancy. If the tenant asserts that the landlord accepted the rent not as statutory tenant but only as legal rent indicating his assent to the tenants continuing in possession, it is for the tenant to establish it. Where he fails to so establish, it cannot be said that there was holding over by him.

For the eviction of an heir of contractual tenant whose tenancy had been determined by a valid notice u/s 106 of the Transfer of Property Act and who thereafter continued as a statutory tenant a fresh notice is not necessary - See Hari Ram v. Raja Ram 1975 ALJ 377 . Interest of a statutory tenant is not heritable - See Bhawanji Lakhamshi v. Himatlal Jamnadas Dani (supra) and Smt. Ram Piari v. Narendra Kumar (supra). Thus, in view of the decision in Bhawanji Lakhamshi and Others Vs. Himatlal Jamnadas Dani and Others, , Hari Shankar v. Chaitanya Kumar 1968 AWR 197 and Daya Ram v. Gurcharan Das 1973 ALJ 850 mere acceptance of amounts equal to rent by a landlord from persons occupying premises, does not necessarily establish a relationship of landlord and tenant between the parties. The creation of tenancy is a bilateral act. The person claiming to be tenant has to prove that he offered an amount by way of rent in order to occupy the premises as a tenant and the landlord accepted the same and created a tenancy in his favour. The finding recorded by the courts below in the instant case is that no tenancy was created by the Plaintiffs or his predecessor in interest in favour of the Defendants nor was any tent settled or accepted, and the remittance made was accepted for the use and occupation of the premises and not by way of vent. The Defendants failed to establish that any relationship of landlord and tenant was created between the parties. The acceptance of amounts equivalent to rent was not as rent but as amount due under the provisions of the U.P. Temporary Control of Rent and Eviction Act for use and occupation, and the tender by itself did not create a tenancy in favour of the Defendants.

Learned Counsel for the Appellant was unable to satisty me that any contract of tenancy was made in ravour of the Appellants by the landlords. The rinding recorded by the courts below against the Appellants that there was no relationship of landlord and tenant between them and the Plaintiffs is based on an assessment of the evidence on record to which no error of law could be pointed out. It is thus clear that after the termination of the contractual tenancy of the predessor in interest of the Defendants no fresh contract of tenancy had come into existence between them and the Plaintiffs. Mo notice terminating their tenancy was accordingly necessary for their dispossession. Learned Counsel for me Appellant invited my attention to Makhan Lal Vs. Mst. Chandravati and Others, where it had been held that after the dismissal of a suit based on a notice u/s 106 T.P. Act against the predecessor in interest of the persons claiming as tenants a fresh notice u/s 106 T.P. Act to them was necessary in order to maintain a suit for their eviction. That case is wholly distinguishable. The question in that case whether a fresh notice to the heirs of a contractual tenant against whom a suit for ejectment based on a notice u/s 106 Transfer of Property Act had failed was necessary to maintain a suit for their eviction. It was held that had the original tenant been alive a fresh suit for his ejectment after the dismissal of an earlier suit, without a fresh notice u/s 106 of the Transfer of Property Act was not maintainable. The earlier notice it was held had exhausted itself after the suit based on it had been dismissed. The tenant continued to be a contractual tenant and his ejectment without a fresh notice could not be sought. In this context it held that his heirs who had inherited the tenancy could likewise also not be ejected without termination of their tenancy by a valid notice. The question in the instant case is whether a statutory tenancy is heritable and whether after the death of statutory tenant his heirs can continue in the premises as tenant without creation of a fresh tenancy in their favour.

We are of the opinion that without a fresh contract of tenancy, a contractual tenancy cannot come into existence in favour of the heirs of a deceased statutory tenant. This view finds support from the cases referred above. The Defendants failed to establish that a tenancy was created in their favour by the landlords. They accordingly could not claim immunity from ejectment, without a notice u/s 106 of the Transfer of Property Act, terminating their tenancy.

A statutory tenancy being not heritable the Appellants could not be treated as statutory tenants either. The case of Smt. Munni Devi and Another Vs. State of U.P. and Others, is distinguishable in that the Defendants in that case were held to be statutory tenants by holding over whereas in the instant case the Defendants did not acquire that status they claiming rights only by inheritance. They were in possession at the will of the landlords without any status either as a contractual or statutory tenants.

The appeal accordingly fails and is dismissed but in the circumstances of the case we make no order as to costs.