# Ishwar Chand v. A.D.M.(Civil Supply), R.C.&E.O., Kanpur Nagar and another

- **Citation:** (2000) 2 ILRA 46
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ishwar-chand-v-a-d-m-civil-supply-r-c-e-o-kanpur-nagar-and-another-39449
- **Pages:** 3

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2000

46
of them is of any help to the applicant. The
reason is that the applicant was granted bail
for offence under Section 304-A I.P.C. in
which the applicant is entitled to the bail as of
right under Section 436 Cr.P.C. Therefore,
where the offence alleged by the prosecution
is under Section 304-A I.P.C., the accused is
entitled to the bail without consideration of
the facts. Therefore, it can be presumed that
while granting bail under Section 304-A
I.P.C. to the applicant, the facts were not
considered and he was granted the facility of
the bail as he was entitled to same as of right.
The
bail
which
was
granted
without
consideration of the facts can not be extended
for offence under Section 302 I.P.C. which is
heinous offence. Before granting the bail
under Section 302 I.P.C. therefore, the
consideration of the facts is necessary and the
applicant can not be permitted to file fresh
bail bonds. The petition is therefore,
dismissed.
Petition Dismissed.

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By the Court

1. The petitioner has challenged the order
of vacancy dated 25.11.1999 passed by the
Rent Control and Eviction Officer, respondent
no.1.

2. One Ram Sahodar was tenant of a
portion of premises no. 12/470. Gwaltoli,
Kanpur Nagar. He died in the year 1998.
Respondent no. 2 applied for allotment with
the allegations that as Prem Das, son of Ram
Sahodar- the tenant, had purchased another
portion of the same premises in the year 1986
and he is residing therein, the accommodation
in question be treated as vacant. The Rent
Control and Eviction Officer called for a
report from the Inspector. The Insspector
submitted a report that Ishwar Chand, the
petitioner, grandson of Ram Sahodar, was
found in its possession. Respondent no.1
issued notice to the petitioner to show cause
why the disputed accommodation be not
treated as vacant.

3. The petitioner filed objection stating
that his father, Prem Das, had separated from
his father, Ram Sahodar, in the year 1985 and
had also purchased another portion of the
2All] Ishwar Chand V. A.D.M.(Civil Supply), R.C.&E.O., Kanpur Nagar and another
47
same premises in the year 1986. The
petitioner, as grandson of Ram Sahodar, is
residing in the disputed accommodation. His
grandfather, Ram Sahodar, also executed a
Will in his favour on 3.10.1989 whereby he
bequeathed all his rights and title in all his
properties. It was further stated that as the
land lords of the house namely Khem Chand
and Gyan Chand had entered into an
agreement to sell the disputed premises on
20.2.1987 and also handed over possession in
pursuance of the agreement, his possession
cannot be treated as unauthorised. The Rent
Control and Eviction Officer, considering the
objection, declared it as vacant. This order has
been challenged in the present writ petition.

4. Learned counsel for the petitioner
contended that Ram Sahodar had executed a
Will in favour of; the petitioner on 20th
February 1987and he is entitled to inherit the
tenancy rights on ;the basis of the Will. It is
settled law that tenancy rights cannot be
transferred by a Will in favour of any person
vide Ratan Lal v. Additional District Judge,
Bulandshahr and others, 1979 ARC 251,
Devendra Kumar v. III Additional District
Judge and others, 1980 ARC 519 and
Abhinandan Prasad Jain v. District Judge,
Saharanpur and others, 1982 (1) ARC 708.

5. The next submission of the learned
counsel for the petitioner is that at the time of
death of the grandfather of the petitioner, he
was residing in the disputed premises with
him and as such he inherited the tenancy
rights. It is admitted to the petitioner that his
father Prem Das is alive, who purchased
another premises in the year 1986 and
admittedly he had shifted there. He is not
claiming that he has inherited the tenancy and
is continuing in possession of the disputed
premises. The petitioner cannot inherit the
tenancy in preference to his father who is still
alive. Section 3-A defines the tenant as
follows:-

"3)a) "tenant", in relation to a building,
means a person by whom its rent is payable,
and on the tenant's death-

(1) in the case of a residential building,
such only of his heirs as normally resided
with him in ;the building at the time of his
death,

(2) in the case of non-residential building,
his heirs.

6. The contention of the learned counsel
for the petitioner is that after the death of the
tenant any of his heirs who normally resided
with him at the time of his death is entitled to
inherit the tenancy was not normally residing
with the tenant at the time of his death, such
other person who comes in the category of an
heir under the law is entitled to inherit the
tenancy if he was residing with the tenant at
the time of his death. The personal law will
determine as to who is the person under the
law to inherit the tenancy. Section 8 of the
Hindu Succession Act, 1956 provides that the
property of a male Hindu dying intestate shall
devolve
according
to
the
provisions
mentioned under the Act--

(a) firstly, upon the heirs, being the relatives
specified in Class I of the Schedule,

(b) secondly, if there is no heir of Class I,
upon the heirs, being the relatives specified in
Class II of the Schedule,

(c) thirdly, if there is no heir of any of the two
classes, then upon the agnates of the
deceased, and

(d) lastly, if there is no agnate, then upon the
cognates of the deceased.

7. Section 9 of the Act provides that
among the heirs specified in the Schedule,
those in class I shall take simultaneously and
to the exclusion of all other heirs, those in the
first entry in class II shall be preferred to
INDIAN LAW REPORTS ALLAHABAD SERIES [2000

48
those in the second entry, those in the third
entry, and so on in succession.

8. The son has preference to succeed to
the exclusion of grandson. The inheritance
takes place on the death of the tenant. In case
he is survived by four sons, such son shall
inherit the tenancy who was residing with his
father but in case the tenant dies leaving
behind him the only son but he was not
residing and shifted elsewhere but his
grandson is living, he will not inherit the
tenancy as for inheritance two conditions are
required to be fulfilled; firstly, that he inherits
the rights of the deceased tenant to the
property under the personal law and secondly,
he was residing at the time of death of the
tenant in such residential building. In Om
Prakash and others vs. Prescribed Authority
and others, 1984 (2) ARC 634, Hon'ble Mr.
Justice Saghir Ahmad (as he then was) dealt
with this question and held that a grandson in
the lifetime of his father would not inherit the
properties of the grandfather dying intestate.

9. The father of the petitioner, Prem Das
having purchased another premises and
residing therein since before the death of his
father, was not entitled to claim the tenancy
rights and when his father is not a tenant as
contemplated under section 3 (a) of the Act,
the petitioner cannot claim any right to
occupy the disputed premises as a tenant.

10. The last submission of the learned
counsel for the petitioner is that the landlords
of the premises in question, Khem Chand and
Gyan Chand, had entered into an agreement to
sell the property in dispute in favour of Ram
Sahodar, his grandfather, and therefore he is
entitled to continue in possession of the
premises in dispute. Mere agreement does not
itself create any interest in the property. The
agreement itself provides that the possession
of the property is not being given but it will
be delivered at the time of the execution of the
sale deed. The sale deed has yet not been
executed. The petitioner, in view of this
averment in the agreement, cannot claim any
right to continue in the possession of the
property after it has been found that the
disputed accommodation is vacant under the
law.

11. I do not find any merit in the writ
petition. It is accordingly dismissed.
Petition Dismissed.

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By the Court

1. This writ petition is directed against the
order dated 21.12.1989, passed by respondent