# • SMT. GIAN DEVI ANAND v. JEEVAN KUMAR AND OTHERS

- **Citation:** [1985] Supp. 1 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 1985-05-01
- **Case number:** Civil Appeal No. 3441 of 1972
- **Bench:** Y.V. Chandrachud, P.N. Bhagwati, S. Murtaza Fazal Ali, Amarendra Nath Sen, V. Balakrishna Eradi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/smt-gian-devi-anand-v-jeevan-kumar-and-others-9058
- **Pages:** 40

## Headnote

I
Delhi Rini Control Act, 1958, ss. 14(1)(a) and 15(1)-Helrs of a dtceastd
tenant-Whether enjoy protection under the Act-Commercial tenancY-Whether
heritable.
The appellant's husband was the tenant in respect of a shop under the
respondent-landlord since 1979. In 1970 the respondent-landlord served a notice
on the appellant's husband determining the tenancy. Thereafter, he filed a
petition under section 14 of the Delhi Rent Control Act, 1958 for eviction of the
tenant from the said shop on several grounds including the grounds of non·
payment of rent and sub-letting. The Rent Controller dismissed the petition .
Against the order of the Rent Controller the respondent-landlord preferred an
appeal bef9re the Rent Control Tribunal and the tenant filed cross-objections.
During the pendency of the appeal, the tenant died and the present appelJant
was substituted. The Rent Control Tribunal remanded the case to the Rent
Controller to decide the question of sub-letting afresh after affording an
opportunity to the parties to lead evidence.
Aggrieved by the order of the Rent Control Tribunal, the appellant filed
an appeal in the High Court. The respondent-landlord filed cross-objection
and further raised a contention that in view of the death of the original
tenant who continued to remain in possession of the shop as a statutory tenant,
the widow and the heirs of the deceased-tenant were not entitled to coutinuc
to remain in occupation thereof. The High Court allowed the cross-objection
filed by the respondent-landlord and passed a decree for eviction against the
appellant mainly on the ground that the protection afforded to the statutory
tenant by the Act was not available to the heirs and the legal representatives.
In appeal to this Court the appellant while relying upon Damadi Lal and
Ors. v. Parashram and Ors. [1976] Supp. S.CR. 645 and V. Dhanapa/ Chettiar
v. Yesodai Ammal [1980] 1 S.C.R. 334, contended that notwithstandina the
determination of the statutory tenancy of the tenant in respect of any
commercial premises, the position in law remains unchanged in so far as the
tenancy in respect of commercial premises is concerned by virtue of the
provisions of the Act. The respondent, however argued (i) that the protection
against the eviction after termination of tenancy afforded to a tenant by the
Act creates a personal ri8:ht in favour of the tenant who continues to remain
in possession after termination of hi~ tenancy without aity estate or interest in
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the premises and therefore on the death of such a tenant his heirs who bad
neither any estate or interest in the tepanted premises and who do not have
any pro~ection tinder the Act agaiust eviction are liable to be evicted as a
mattet of course under the ordioary law of the land ; and tii) that the amend~
ment to the definition of 'tenant' with retrospective effect introduced by the
Delhi Rent Control Amendment Act (Act 18 of 1976) to give personal pro·
tection and personal' right to continue in possession to the heirs of the deceased
statutory tenant in respect of residential pr~mises only and not with regard to
the so called statutory tenant in respect of commercial premises indicated that
the heirs of so called statutory tenant, do not enjoy any protection under the
Act.
Allowing the appeal,
[Per Y. V. Chandrachud C.J., S.M. Fazal Ali, A.N. Se11 and V.B. Eradi JJ.]
HELD: (l)(i) The term "statutory tenant" is used in English Rent
Act and though this term is not to be found in the Indian Acts, in the judg~
ments of the Supreme Court and also various High Courts in India, this term
has often been used to denote a tenant whose contractual tenancy has bf:en
terminated but who has become entitled to continue to remain in possession
by virtue of the protection afforded to him by the statutes in question; namely,
the various Rent Control Acts prevailing in different States of lndia.
It is
also important to note t

## Text

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•
SMT. GIAN DEVI ANAND
v.
JEEVAN KUMAR AND OTHERS
May 1, 1985
[Y.V. CHANDRACHUD, C.J., P.N. BHAGWATI, S. MURTAZA
FAZAL ALI, AMARENDRA NATH SEN AND
V. BALAKRISHNA ERADI, JJ.j
I
Delhi Rini Control Act, 1958, ss. 14(1)(a) and 15(1)-Helrs of a dtceastd
tenant-Whether enjoy protection under the Act-Commercial tenancY-Whether
heritable.
The appellant's husband was the tenant in respect of a shop under the
respondent-landlord since 1979. In 1970 the respondent-landlord served a notice
on the appellant's husband determining the tenancy. Thereafter, he filed a
petition under section 14 of the Delhi Rent Control Act, 1958 for eviction of the
tenant from the said shop on several grounds including the grounds of non·
payment of rent and sub-letting. The Rent Controller dismissed the petition .
Against the order of the Rent Controller the respondent-landlord preferred an
appeal bef9re the Rent Control Tribunal and the tenant filed cross-objections.
During the pendency of the appeal, the tenant died and the present appelJant
was substituted. The Rent Control Tribunal remanded the case to the Rent
Controller to decide the question of sub-letting afresh after affording an
opportunity to the parties to lead evidence.
Aggrieved by the order of the Rent Control Tribunal, the appellant filed
an appeal in the High Court. The respondent-landlord filed cross-objection
and further raised a contention that in view of the death of the original
tenant who continued to remain in possession of the shop as a statutory tenant,
the widow and the heirs of the deceased-tenant were not entitled to coutinuc
to remain in occupation thereof. The High Court allowed the cross-objection
filed by the respondent-landlord and passed a decree for eviction against the
appellant mainly on the ground that the protection afforded to the statutory
tenant by the Act was not available to the heirs and the legal representatives.
In appeal to this Court the appellant while relying upon Damadi Lal and
Ors. v. Parashram and Ors. [1976] Supp. S.CR. 645 and V. Dhanapa/ Chettiar
v. Yesodai Ammal [1980] 1 S.C.R. 334, contended that notwithstandina the
determination of the statutory tenancy of the tenant in respect of any
commercial premises, the position in law remains unchanged in so far as the
tenancy in respect of commercial premises is concerned by virtue of the
provisions of the Act. The respondent, however argued (i) that the protection
against the eviction after termination of tenancy afforded to a tenant by the
Act creates a personal ri8:ht in favour of the tenant who continues to remain
in possession after termination of hi~ tenancy without aity estate or interest in
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the premises and therefore on the death of such a tenant his heirs who bad
neither any estate or interest in the tepanted premises and who do not have
any pro~ection tinder the Act agaiust eviction are liable to be evicted as a
mattet of course under the ordioary law of the land ; and tii) that the amend~
ment to the definition of 'tenant' with retrospective effect introduced by the
Delhi Rent Control Amendment Act (Act 18 of 1976) to give personal pro·
tection and personal' right to continue in possession to the heirs of the deceased
statutory tenant in respect of residential pr~mises only and not with regard to
the so called statutory tenant in respect of commercial premises indicated that
the heirs of so called statutory tenant, do not enjoy any protection under the
Act.
Allowing the appeal,
[Per Y. V. Chandrachud C.J., S.M. Fazal Ali, A.N. Se11 and V.B. Eradi JJ.]
HELD: (l)(i) The term "statutory tenant" is used in English Rent
Act and though this term is not to be found in the Indian Acts, in the judg~
ments of the Supreme Court and also various High Courts in India, this term
has often been used to denote a tenant whose contractual tenancy has bf:en
terminated but who has become entitled to continue to remain in possession
by virtue of the protection afforded to him by the statutes in question; namely,
the various Rent Control Acts prevailing in different States of lndia.
It is
also important to note that notwithstanding the termination of the contractual
tenancy by tffe Landlord, the tenant is afforded protection against eviction and
is permitted to continue to remain in possession even after the termination of
the contractual tenancy by the Act in question and invariably by all the Rent
Acts in force fn various States so long as an order of decree for eviction
against the tenant on any of the grounds specified in such Acts on the basis
of which an order or decree for eviction against the tenant can be passed, is
not passed. [14 H; 15 A-BJ
(l)(ii) Though provisions of all the Rent Control Acts are not uniform,
the common feature of all the Rent Control Legislation is that a contractual
tenant on the termination of the contractual tenancy is by virtue of the pro.
visions of the Rent Acts not liable to be evicted as a malter of course under
the ordinary law of the land and he is entitled to remain in possession even
after determination of the contractual tenancy and no order or decree for
eYiction will be passed against a tenant unless any ground which entitles the
landlord go get an order or decree for possession specified in the Act is
established. (25 D-E]
(2)(i) It is clear from the definition of tenant, whether in the original
Act or in the amended Act, that the tenant within the meaning of the definition
of the tern1 in the Act includes any person continuing in possession after the
termination of his tenancy. {28 G]
(2)(ii) Section 14 of the Act clearly rostulates that despite the termina.
tion of the tenancy and notwithstanding the provisions of any other law
which might have been applicable on the termination of the contractual
tenancr, protection against eviction is applicabl~ t() r;very tenant as defined
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GIAN DEVI ANAND V. JEBVAN KUMAR
3
in S. 2(i) of the Act. This section clearly establishes that determination of a
contractual tenancy does not disqualify him from continuing to be a tenant
within the meaning of this Act and the tenant whose contractual tenancy has
been determined enjoys the same position an4 is entitled to protection against
eviction. The other sections in Chapter III also go to indicate that the tenant
whose tenancy has been terminated enjoys the same status and benefit as a
tenant whose tenancy has not been terminated, and a tenant after termination
of his tenancy stands on the same footing as the tenant before such termination. Chapter Ill A which provides for summary trial for certain applications
also does not make any distinction between a tenant whose tenancy has
been determined and a tenant whose tenancy has not been terminated.
Chapter IV which deals with deposit of rent consists of ss. 26 to 29
and these sections make it clear that the tenant after determination of a
tenancy is treated under the Act on the same footing as a tenant whose
tenancy has not been determined. Chapter VI though not very material for
the purpose of adjudication of the point involved indicates that no discrimi ..
nation is made in the matter of proceedings for eviction bet,veen the •so called
statutory tenant' and a contractual tenant. Chapter VII which consists of
sections 44 to 49 makes provisions regarding obligations of landlords and also
provides fo~ penalties in appropriate cases. The sections make it clear that
the duties and ooligations of landlords cast upon the landlord apply equally
whether the tenant is a so called 'statutory tenant' or the tenant is a con·
tractual tenant. It may, however, be noted that section 50 which bars the
jurisdiction of Civil Courts in respect of certain matters does not in any way
discrimate between a 'so called statutory tenant' and a contractural tenant.
Thus, the various provisions of the Act, make it abundantly clear that the Act
does not make any distinction between a ·so called statutory tenant' and a
'contractual tenant' and the Act proceeds to treat both alike and to preserve
and protect the status and rights of a tenant after determination of the contractual tenancy in the same way as the status and rights of a contractural
tenant are protected and preserved.
(30 A-H; 31 A]
V. Dhanpal Chattiar v. Yesodai Ammal, (1980] 1 SCR 334, relied upon,
(3)(i} The termination of the contractural tenancy in view of the
definition of 'tenant' in the Act does not brin.g about any change in the status
and legal position of the tenant, unless there are contrary provisions in the
Act; and, the tenant notwithstanding the termination of tenancy does enjoy
an estate or interest in the tenanted premises. This interest or estate which
the tenant under the Act despite termination of the contractual tenancy continues to enjoy creates a heritable interest in the absence of any provision to
the contrary. The amendment of the definition of 'tenant' by Act 18 of 1976
introducing particulary section 2(i)(iii) does not in any way mitigate against
this view. The said sub-section (iii) with all the three Explanations thereto
is not in any way inconsistent with or contrary to sub-section (iiJ of Section
2(1) which unequivocally states that 'tepant' includes any person continuing in
possession after the termination of his tenancy. In the absence of the
provision contained in sub-section 2(i)(iii), the heritable interest of the heirs
of the statutory tenant would devolve on all the heirs of the 'so called statutory
tenant• on his death and the heirs of such tenant would in law step into his
position. (33 G-H; 33 A-CJ
Damadial & Ors. v. Pmaslirom & Ors., [1976] Supp. S.C.R. 645 followed,
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(3)(ii) Section 2(i)(iii) of the Act does not create any additional or
special right in favour of the heirs of the 'so called statutory tenant' on his
death, but seeks to restrict the right of the heirs of such tenant in respect of
residential premises. As the status and rights of a contractual tenant even
after determination of his tenancy when the tenant is at times described as the
statutory tenant, are fully protected by the Act and the heirs of such tenants
become entitled by virtue of the provisions of the Act to inherit the status and
position of the statutory tenant on his death, the Legislature which has created
this right has thought it fit in the case of residential premises to limit the
rights of the heirs in the manner and to the extent provided in s. 2(l)(iii).
However, 1he Legislature has not thought it fit to put any such restrictions
with regard to tenants in respect of commercial premises in this Act. So Jong
as the contractual tenancy of a tenant who carries on the business continues
there can be no question of the heirs of the deceased tenant not only inheritin~
the tenancy but also inheriting the business and they are entitled to run and
enjoy the same.
(33 D-G]
(3)(iii) The mere fact that in the Act no provision has been made with
regard to the heirs of tenants in respect of commercial tenancies on the
death of the tenant after termination of the tenancy, as has been done
in the case of heirs of the tenants of residential premises, does not
indicate that the Legislature intended that the heirs of the tenants of
commercial premises will cease to enjoy the protection afforded to the
tenant under the Act. The Legislature could never have possible intended
that with death of a tenant of the commercial premises, the business carried
on by the tenant, however flOurisbing it may be and even if the same
constituted the source of livelihood of the members of the family, must
necessarily come to an end on the death of the tenant; only because the tenant
died after the contractual tenancy had been terminated. (35 F·H]
(3) (iv) Jn case of commercial premises governed by tho Dolhi Act the
Legislature has not thought to fit in the light of the situation at Delhi to place
any kind of restriction on the ordinary law of inheritance with regard to
succession. It may also be borne in mind that in case of commercial premises
the heirs of the deceased tenant not only succeed to the tenancy right in the
premises but they succeed to the business as a whole. It might have been open
to the Legislature to limit or restrict the right of inheritence with regard to the
tenancy as the Legislature had done in the case of the tenancies with regard to
the residential houses but it would not have been open tc the Legislature to
alter under the Rent Act, the law of succession regarding the business which
is a valuable heritable right and which must necessarily devolve on all the
heirs in accordance with law. The absence of any provision restricting the
heritability of the tenancy in respect of the commercial premises only
establishes that commercial tenanceis n6twithstanding the determination of the
contractual tenanceis will devolve on the heirs in accordance with law and the
heirs who step into the position of the deceased tenant will continue to enjoy
the protection afforded by the act and they can Qnly be evicted in accordance
\Vith the provisions of the Act. (36 B-E]
GIAN DEVI ANAND V. JBBVAN KUMAR
(3) (v) As the protection afforded by the Rent Act to a tenant after
determination of the tenancy and to his heirs on the death of such tenant is a
creation of the Act for the benefit of the tenants, it is open to the Legislature
which provides for such portectioo to make appropriate provisions in the Act
with regard to the nature and extent of the benefit and protection to be enjoyed
and the manner in which the same is to be enjoyed. Jf the Legislature makes
any provision in the Act limiting or restricting the benefit and the nature of
the protection to be enjoyed in a specified manner by any particular class of
heirs of the deceased tenant on any condition laid down being fulfilled, the
benefit of the protection has necessarily to be enjoyed on the fulfilment of the
condition in the manner and to the el:tent stipulated in the Act. The
Legislature which by the Rent Act seeks to confer the benefit on the tenants
and to afford protection against eviction, is perfectly competent to make
appropriate provisjon regulating the nature of protection and the manner and
extent of enjoyment of such tenancy rights after the termination of contractual
tenancy of the tenant including the rights and the nature of protection of the
heirs oa the death of the tenant. [38 C·FJ
(3) (vi) When the tenant is a Company or a Corporation or any body
with juristic personality, question of the death of the tenant will not arise.
Despite the termination of the tenancy, the Company or the Corporation of
such juristic personalities. however, Y.ill go on enjoying the protection afforded
to the tenant under the Act. 1t call hardly be conceived that the Legislature
would intend to deny to one class of tenants, namely, individuals the protection
which will be enjoyed by the other class, namely, the Cor'poration and
Companies and other bodies wHh juristic personality under the Act. [36 G-H)
(4) In the instant case' there is no provision in the Act regulating the
rights of the heirs to inherit the tenancy rights of the tenant in respect of the
tenanted premises which is commercial premises, the tenancy right which is
heritable devolves on the heirs under the ordinary law of succession. The
tenancy right of appellant's husband therefore, devolves on all the heirs on his
death. The heirs and legal repersentatives of appellant's husband step into his
position and they are entitled to the benefft and protection of the Act. Therefore, the High Court was not right in coming to the conclusion that the heirs
of appellant's husband the so called statutory tenant, did not have any right
to rem~in in possession of the. tenanted premises and did not enjoy any
protection under the Act. The Judgment and order of the High Court is therefore set aside and the case is remanded to the High Court for decision of the
appeal and the cross objection on merits. The appeal is accordingly allowed
to the extent indicated above. [39 B; D-E; GJ
Ganpat Ladha v. Sashikant Vishnu Shinde, [1978] 3 s. C. R. 198 dissented .
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. The Legislature may consider the advisability of making bona fide
requirement of the landlord a ground of eviction in respect of commercial
ff
premises as well.
[40 FJ
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SUPREME COURT RBPOR TS
[198S] SUPPL s.C.il.,
Per Bhagwatl, J. (Concurring)
Though genetically the parentage of the two legal conce,. ts, namely.
contractual tenancy and statutory tenancy is different, one owing its origin to
C('lntract and the other to rent control legislation, they are equated with each
other and their incidents are the same. If a contractual tenant has an estate or
interest in the premises which is heritable, it is difficult to understand why a
statutory tenant should be held not to have such heritable estate or interest.
In one case, the estate or interest is the result of contract while in the other,
it is the result of statute. But the quality of the estate or interest is the same
in both cases. When the rent control legislation places a statutory tenant on
the same footing as a contractual tenant, wipes out the distinction between the
two and invests a statutory tenant with the same right, obligations and
incidents as a contractual tenant, why should it be difficult to hold that, just
like a contractual tenant, a statutory tenant also has estate or interest in the
premises which can be inherited. (8 B-FJ
It is true that there
are
certain observations in Ganpat Ladha v.
Sashikant Vishnu Shinde, (1978] 3 S. C.R. 198, which go counter to what the
Court is ho1ding in the present case and to that extent these observations must
be held not to enunciate the correct law on the subject This Court was not
really concerned in that case with the question of heritability of statutory
tenancy. The only question was in regard' to the true interpretation of Section
5 (ii) (c) of the Bombay Rents, Hotel and Lodging House Rates Control Act
1947 which is almost in same tern1s as Section 2 (1) (iii) of the Delhi Rent
Control Act 1958 and while dealing with this question, the Court made certain
observations regarding the nature of statutory tenancy and its heritability. The
attention of the Court was not focussed on the question ·Whether a statutory
tenant has an est~te or interest in the premises which is heritable anci no argument was advanced that a statutory tenancy is heritable. It was assumed that
a statutory tenancy is not heritable and on that footing the case was argued in
regard to the true meaning and
con~truction of ~ection 5 {ii) (c). The
observations made in that case to the extent to which they conflict with the
judgment in the present case must therefore be regarded as overruled. l9 A-D]
CIVIL APPELLATE JURISDICTION :
Civil Appeal No. 3441
of 1972.
From the Judgment and Order dated 11-10-1979 of the
Delhi High Court in S.A.O. No. 8 of 1979.
S.N. Andiey, Uma Datta, T.C. Sharma and K.S. Mohan for
the Appellant.
Mrs. Shyam/a Pappu, B.B. Sawhney, Mrs. Indra Sawhney and
Miss Kittu Bansilal for the Respondents.
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GIAN DliYI ANAND v. JEEVAM KUMAR (Bhagwati, J.)
7
The following Judgments were delivered
BHAGWATI, J. I entirely agree with the Judgment just delivered
by my learned brother A.N. Sen, J.
I am adding a few words of
my own since I was a party to the decision in Ganpat Ladha v.
Shashikant Vishnu Shinde(1)
where certain observations were made
which seem to take a different view from the one we are taking in the
present case.
The question which arises here for consideration is as to
whether statutory tanancy is heritable on the death of the statutory
tenant. 'Statutory tenant' is not an expression to be found in any
provision of the Delhi Rent Control Act 1958 or the rent control
legislation of any other State. It is an expression coined by the
judges in England and, like many other concepts in English law, it
has been imported into the jurisprudence of this country and has
become an expression of common use to denote a tenant whose
contractual tenancy has been determined but who is continuing in
possession of the premises by virtue of the protection arainst eviction
afforded to him by the rent control legislation. Though the expression 'statutory tenant' has not been used in any rent control legislation the concept of statutory tenant finds recognition in almost every
rent control legislation
The definition of 'tenant' iit Section 2(1)
of the Delhi Rent Control Act 1958-and I am referr ng here to the
provisions of the Delhi.Rent Control Act 1958 because that is the
statute with which we are concerned in the present case-includes a
statutory tenant. It says in clause (ii) that 'tenant' includes any
person continuing the possession after the termination of his
tenancy'. Such a person would not be a tonant under the ordinary
Jaw but he is recognised as a 'tenant' by the rent control legislation
and is therefore described as a statutory tenant as contra-distinguished from contractual tenant. The statutory tenant is, by virtue of
inclusion in the definition of 'tenant', placed on the same footing as
contractual tenant so far as rent control legislation is concerned.
The rent control legislation in fact, as pointed out by this Court
in a seven judge Bench decision in V. Dhanapa/ Chettiar v.
Yesodai Ammo/(') does not make any distinction between contractual tenant and statutory tenant. "It does not permit the
landlord to snap his relationship with the tenant ·merely by his act
(I) 11978] 3 S.C.R. 198.
(2) (1980] 2 S.C.R. 334.
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of serving a notice to quit on him. Inspite of the notice, the Jaw
says that he continues to be a tenant and he does so enjoying all tbe
rights of a lessee and is at the same time deemed to be under all the
liabilities such as payment of rent etc. in accordance with the law."
The distinction between contractual tenancy and statutory tenancy
is thus completely obliterated by the rent control legislation. Though
genetically the percentage of these two legal concepts is different, one
owing its origin to contract and the other to rent control legislation,
they are equated with each other and their incidents are the same.
If a contractual tenant has an estate or interest in the premises
which is heritable, it is difficult to understand why a statutory tenant
should be held not to have such heritable estate or interest. In one
case, the estate or interest is the result of contract while in the other
it is the result of statute. But the quality of the estate or interest is
the same iu both cases. The difficulty in recognising that a statutory
tenant can have estate or interest in the premises arises from the
fact that throughout the last century and the first half of the present,
almost until recent times, our thinking has been dominated by two
major legal principles, namely, freedom of contract and sanctity of
private property and therefore we are unable to readily accept that
legal relationships can be created by statute despite want of contrac·
tual concensus and in derogation of property rights of the landlord.
We are unfortunately not yet reconciled to the idea that the law is
moving forward from contract to status. Why can estate or interest
in property not be created by statute ? When the rent control
legislation places a statutory tenant on the same footing as a
contractual tenant, wipes out the distinction between the two and
invests a statutory tenant with the same right, obligations and inci·
dents as a contractual tenant, why should it be difficult to hold that,
just like a contractual tenant, a statutory tenant also has estate or
interest in the premises which can be inherited. Of course, strong
reliance was placed on behalf of the landlord on Section 2(1) (iii) of
the Delhi Rent Control Act 1958 to combat this conclusion but that
provision merely limits or circumscribes the nature and extent of the
protection that should be available on tbe death of a statutory tenant
in respect of residential premises. It does not confer a new right of
heritability which did not exist aliunde. My learned brother A.N.
Sen, J. has discussed this aspect of the case in great detail and I find
myself wholly in agreement with what he has rnid in regard to the
true meaning and import of Section 2(1) (iii).
'
CHAN DEVI ANAND v. JEEVAN KUMAR (A.N. Sen, J.)
9
Now a word about Ganpat Ladha's case (supra). It is true
that there are certain observations in that case which go counter to
A
what we are holding in the present case and to that extent these
observations must be held not to enunciate to correct law on the
subject. This Court was not really concerned in that case with the
question of heritability of statutory tenancy. The only question was
in regard to the true interpretation of Section 5(ii) (c) of the Bombay
Rents, Hotel and Lodging House Rates Control Act 1947 which is
almost in same terms as Section 2(1) (iii) of the Delhi Rent Control
Act 1958 and while dealing with this question, the Court made
certain observations regarding the nature of statutory tenancy and its
heritability. The attention of the Court was not focussed on the
question whether a statutory tenant has an estate or interest in the
premises which is heritable and no argument was advanced that a
statutory tenancy is heritable. It was assumed that a statutory
tenancy is not heritable and on that footing the case was argued in
regard to the true meaning and construction of Section 5(ii) (c).
The observations made in that case to the extent to which they
conflict with the judgment in the present case must therefore be
regarded as overruled.
I accordingly concur with the order made by my learned
brother A.N. Sen, allowing the appeal and remanding the case to the
High Court for disposal according to law. There will be no order
as to costs.
A.N. SEN, J. The question for consideration in this appeal by
special leave is whether under the Delhi Rent Control Act, 1958 (for
the sake of brevity hereinafter referred to as the Act), the statutory
tenancy to use the popular phraseology, in respect of commercial
premises is heritable or not. To state is more precisaly, the question
is whether the heirs of a deceased tenant whose contractual tenancy
in respect of commercial premises has been determined, are entitled
to the same protection against eviction afforded by the Act to the
tenant.
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The question is essentially a question of law.
This very
question has been raised in a number of appeals, arising out of
different sets of facts giving rise, however, to this common question
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of law in all the appeals. As the decision on this corumon question
of law which arises in the other appeals pending in this Court may
effect the parties in the other appeals, we considered it proper to
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hear the counsel appearing in all the appeals on this common
question of Jaw.
We, however, feel that it will be convenient to deal
with the other appeals separately and dispose of the same, applying
the decision or thi; common que,tion of Jaw in the light of the facts
and circumstances of the other cases and pass appropriate orders
and decrees in the other appeals when they are taken up for
disposal
Though the question is mainly one of Jaw, it is necesrnry for a
proper appreciation of the question involved to set out in brief the
facts of the present appeal which is being disposed of by this
judgment.
One Wasti Ram was the tenant in respect of Shop No. 20,
New Market, West Patel Nagar, New Delhi under the respondent at
at the monthly rent of Rs. 110. He came into possession as such
tenant on and from 1.9.1959. In April, 1970 the respondent land·
lord determined the tenancy by serving a notice to quit on the
tenant Wasti Ram, since deceased. In September, 1970, the respon·
dent landlord filed a petition under S. 14 of the Act for the eviction
of the tenant Wast! Ram from the said shop on the following
grounds :-(1) non-payment of rent, (2) bona·fide requirement,
(3) change of user from residential to commercial, (4) substantial
damage to property and (5) sub-letting
In the petition filed by the
landlord against the tenant Wasti Ram, the landlord had also
impleaded one Ashok Kumar Sethi, as defendant No. 2 alleging him
to be the unlawful sub-tenant of the tenant Wasti Ram.
By
judgment and order dated 19.5.1975, the Rent Controller held that
(I) the ground of bona fide requirement was not available to the
landlord under the Act in respect of any commercial premises (2) the
premises had been Jet out for commercial purposes and there had
been no change of user, (3) no substantial damage to property had
been done by tenant and (4) sub-Jetting had been established. On
the question of non-payment of Rent, the Rent Controller held
that the tenant was liable to pay a sum of Rs. 24 by way of arrears
for the period of 1.3.1969 to 28.2.1970 after taking into consideration all payments made and a further snm of Rs. 90 on account of
such arrears for the month of September 1970 and the rent subsequent to the month of March, 1975, if not already deposited. In
view of the aforesaid finding on the question of ·default in payment
of rent, the Rent Controller held that the tenant was liable to
eviction under S. 14(1)(a) of the Act and further held that in view of
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GIAN DEVI ANAND v. JEEVAN KUMAR (A.N. Sen, !.)
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the provisions contained in s. 15( 1) of the Act there would however
be no order or decree for eviction if the tenant deposited all the
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aforesaid arrears within a period of one month from the date of the
order and in that case the ground of non-payment of rent would
be wiped out. The Rent Controller ordered accordingly.
Against the order of the Rent Controller, the landlord pre·
ferred an appeal on 13.7.1975 and the tenant Wasti Ram filed his
cross-objection. The cross-objection of the tenant was against the
order of the Rent Controller regarding his fiinding on default in
payment of rent. The landlord in his appeal had challenged the
finding of the Rent Controller on the question of sub;tantial damage
to the property by the tenant and also the finding of the Rent
Controller on the question of sub-letting. It appears that during·
the pendency of the appeal, the tenant Wasti Ram died and on
5.9.1977 the prerent appellant Smt. Gian Devi Anand, the widow
of deceased Wasti Ram, was substituted in place of Wasti Ram on
the application of the landlord. The Rent Control Tribunal
allowed the cross-objection of the tenant and held that there was no
default on tbe part of the tenant in the matter of payment of rent.
The Rent Control Tribunal rejected the first contention of the
landlord in the Landlord's Appeal regarding substantial damage done
to the property by the tenant. On the other question, namely, the
question of sub-letting, the Rent Control Tribunal allowed the
appeal of the landlord and remanded the case to the Rent Controller
to decide the question of sub· letting after affording an opportunity
to the parties to lead evidence in this regard.
Against the order of the Rent Control Tribunal, Smt. Gian
Devi Anand, the widow of the deceased tenant, filed an appeal
in the High Court impleading in the said appeal the other heirs of
Wasti Ram as pro·forma respondents. The landlord also filed a
cross-objection in the High Court after the widow had presented the
appeal against the order of the Rent Control Tribunal directing
remand on the question of sub-letting.
In the cross·objection filed
by the landlord, the landlord bad challenged the finding of the
Tribunal on the question of non-payment of rent and had further
raised a contention that view of the death of the original tenant
Wasti Ram, who continued to remain in possession of the shop as
a statutory tenant, the widow and the heirs of the deceased tenant
were not entitled to continue to remain in occuption thereof. The
High Court held that on the death of the statutory tenant, the heirs
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of the statutory tenant had no right to remain in possession of the
premises, as statutory tenancy was not heritable and the protection
afforded to a statutory tenant by the Act is not available to the heirs
and legal representatives of the statutory tenant. In this view of the
matter the B:igh Court did not consider it necessary to go into
other questions and the High Court allowed the cross-objection filed
by the landlord and passed a decree for eviction against lhe appellant
and the other heirs of W asti Ram, the deceased tenant.
The correctness of this view that on the death of a tenant
whose tenancy in respect of any commercial premises has been
terminated during this life time, whether before the commencement
of any eviction proceeding against him or during the pendency of
any eviction proceeding against him, the heirs of the deceased tenant
do do not enjoy the protection afforded by the Act to the tenant and
they do not have any right to continue to remain in possession
because they do not inherit the tenancy rights of the deceased tenant,
is challenged in this appeal.
The learned counsel for the appellant-tenant argues that there
could be no doubt that a contractual tenancy is heritable and he
contends that notwithstanding the termination of the contractual
tenancy of the tena:it in respect of any commercial premises, the
position iu law remains unchanged in so far as the tenancy in respect
of commercial premises is concerned, the virtue of the provisions of
the Act.
In support of this contention reference is made to the
provisions of the Act and strong reliance is placed on the decision
of this court in the case of Damadi Lal & Ors. v. Parashram &
Ors.(') and also to the decision of this Court in the case of
V. Dhanapal Chettiar v. Yesodai Ammal.('J.
The learned counsel appearing on behalf of the landlordrespondents have submitted that on the determination of the con·
tractual tenancy, the tenancy comes to an end and the tenant ceases
to have any estate or interest in the premises.
It is contended
that on determination of the tenancy, the tenant becomes
liable to be evicted in due process of law under the general law of
the land; but, the Act affoads a protection to the tenant against such
evictiod in as the Act provides that inspite of the termination of
(!) [1976] Supp. S.C.R. 24S.
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GIAN DEVI ANAND v. JEBVAN KUMAR (A.N. Sen, J.)
13
the tenancy, no order or decree for procession shall he passed
against the tenant, unless any of the grounds mentioned in the Act
which entitles a landlord to recover possession of the premises from
the tenant is established. It is contended that the protection to the
tenant under the Act is against eviction except on grounds recognised by the Act and the protection is only in the nature of personal
protection to the tenant who continues to remain in possession after
the termination of the tenancy. The contention is that the tenant
loses the estate or interest in the tenanted premises after termination
of the contractual tenancy and the tenant by virtue of the Act is
afforded only a personal protection against eviction; and, therefore,
the heirs of such tenant on his death acquire no interest or estate
in the premises, because the deceased tenant had none, and they can
also claim no protection against eviction, as the protection under
the Act is personal to the tenant as long as the tenant continues
to remain in possession of the premises after the termination of the
tenancy. The argument, in short, is that the protection against
eviction after termination of tenancy afforded to a tenant by the Act
creates a personal right in favour of the tenant who continues to
remain in possession after termination of his tenancy without any
estate or interest in the premises; and, therefore, on the death of
such a tenant, his heirs who have neither any estate nor interest in
the tenanted premises and who do not have any protection under
the Act against eviction, are liable to be evicted as a matter of
course under the ordinary Law of the land. In support of this
argument various authorities including decisions of this Court, of
various High Courts, of English Courts and also passages from
Halsburys" Laws of England and other eminent English authors have
been cited.
It has been further argued that in view of the clear provision
in law that heirs of a deceased tenant whose tenancy had been terminate!! during his life time and who was continuing in possession
by virtue of the provisions of the Act did not enjoy any protection
and was liable to be evicted as a matter of course, the Legislature
considered it fit to intarvene to give some relief to the heirs of the
deceased tenant in respect of the residential premises and amended
the Act of 1958 by Delhi Rent Control (Amendment) Act, 1976
(Act 18 of 1976) by changing the definition of 'tenant' with retrospective effect. The argument is that by virtue of the amendment
introduced in 1976 with retrospective effect, the heirs of the deceased
tenant specified in s. 2 (iii) enjoy the protection against eviction
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during their life time in the manner mentioned therein, provided the
conditions mentioned therein are satisfied, only with regard to residential premises. It is contended that with regard to the residential
premises such limited protection essentially personal to the heirs
specified and to be enjoyed by them for their lives in the manner laid
down in the said sub-section 2 (1) (iii) has been provided by the
amendment; but in respect of commercial premises 'no such protection
has been given.
We do not consider it necessary to refer to the various
English cases and the other English authorities cited from the Bar.
The English cases and the other authorities turn on the provisions
of the English Rent Acts. The provisions of the English Rent Acts
are not in pari materia with the provisions of the Act in question or
the other Rent Acts prevailing in other States in India. The English
Rent Acts which have come into existence from time to time were
no doubt introduced for the benefit of the tenants. It may be noted
that the term "statutory tenant" which is not to be found in the
Act in question or in the other analogous Rent Acts in force in other
States in India, is indeed a creature of the English Rent Act. English
Rent Act. 1977 which was enacted to consolidate the Rent Act 1968,
parts III, lV and VIII of the Housing Finance Act, 1972, the Rent
Act 1974, sections 7 to 10 of the Housing Rents and Subsidies Act
1975 and certain related enactments, witw amendments to give effect
to recommendation of the Law Commission, speaks of protected
tenants and tenancies in S. I and defines statutory tenant in S. 2,
English Rent Act, 1977 is in the nature of a complete Code governing
the rights and obligations of the landlord and the tenant and their
relationship in respect of tenancies covered by the Act. As the
provisions of the English Act are materially different from the provisions of the Act in question and other Rent Control Acts in force
in other States in India, the decisions of the Engli;h Courts and the
passages from the various amhoritativc books including the passages
from Halsbury which are all concerned with English Rent Acts are
not of any particular assistance in deciding the question involved in
this appeal.