Dr Dhananjaya Y Chandrachud, J
1 This appeal arises from a judgment of a learned Single Judge of the High
Court of Punjab and Haryana at Chandigarh dated 21 January 2016 in a second
Signatureappeal.Not Verified The High Court reversed the judgment and the decree of the trial Court,
property in the occupation of the defendants as tenants had been decreed.
2 Dr Hira Singh was the owner of a residential house (shown in the site plan
filed together with the suit) together with some shops constructed on property
bearing Municipal No B-XX-69 (Old) 515 (New) at College Road, Civil Lines,
Ludhiana. The family pedigree is depicted below:
Late Dr. Hira Singh
(Died in 1945)
Late Lt. Col Dr. Shiv Dev Singh Grewal Late Dayawant Kaur Late Dr. Shiv Dev Kaur
(Died on 14.08.1968) (Died in 1922) (issueless widow)
(Died on 15.02.1998)
Late Dr. Jaswant Kaur
(Died issueless)
Dr. R.S. Grewal
Late Dr. J.S. Grewal (Issueless, widower) (Died on 09.07.1993)
Dr. Gagandeep Ramandeep Er. Amandeep
On 16 September 1944, Dr Hira Singh executed a will by which he bequeathed
his property to his son, Shiv Dev Singh Grewal, subject to a right of residence for
his widowed daughter, Shiv Dev Kaur Grewal in the property situated at Civil
Lines, Ludhiana. The will contains the following recital:
“I own a kothi on Iqbal Road opposite to Govt. College in Civil
Lines. I have myself purchased its land and I also reside in
this Kothi and some outer portion thereof has been given on
rent.”
The testator made a disposition in the following terms in favour of his son:
“After my death, my son Shivdev Singh will be the absolute
owner of my property, mentioned above, situate in village
Gujarwal i.e. land and houses owned by me as well as the
mortgaged land. My son Shivdev Singh will also be the owner
of the money which is due to me.”
The will adverted to the fact that some portion of the property at Civil Lines was in
the occupation of tenants. According to the will, the rent recovered was to be
spent for the education and maintenance of a young child - Shiv Charan Kaur,
who was brought up by the testator. A life interest in the property at Civil Lines
was created in favour of Shiv Dev Kaur, the daughter of the testator in the
following terms:
“My daughter Bibi Shivdev Kaur will get this Kothi situated on
Iqbal Road till her life time subject to the abovesaid rights of
Bibi Shiv Charan Kaur and that after my death Shivdev Kaur
would be entitled to settle and reside in this Kothi as and
when necessary and can spend the income from rent on
herself. But these rights shall ensure to her till her life time.
She will not be entitled to transfer or burden this Kothi along
with the attached land nor could she mortgage, gift the same,
nor could she sell or exchange it. This Kothi shall also be the
sole ownership of my son Shivdev Singh subject to the above
mentioned rights. Through this will I appoint my aforesaid son
Shivdev Singh as my executor but he shall act according to
the recitals in this will and shall arrange for the maintenance
and marriage of Bibi Shiv Charan Kaur and after recovering
the rent of the concerned portion of the Kothi, he shall spend
the same in accordance with the above mentioned
directions.”
The testator’s son, who was a legatee under the will, was also appointed as an
executor. The testator died in 1945. His son died on 14 August 1968. The first
appellant is the grandson of the testator, while the second and third appellants
are the sons of the first appellant.
3 A suit for possession was instituted by the appellants and by proforma
respondent no 2 against the first respondent in the Court of the Civil Judge,
Senior Division, Ludhiana. The first respondent is a tenant inducted by Shiv Dev
Kaur Grewal. The foundation of the suit was that Shiv Dev Kaur Grewal was only
entitled to a life interest in the property in terms of the will executed by her father
and upon her death the appellants were entitled to possession of the shop from
the defendant. The plea that was set up in paragraphs 14 and 15 of the plaint was
in the following terms:
“14 That Dr Shivdev Kaur Grewal has died on 15.2.1998 and
on her death her right to live in the main kothi alongwith right
to utilize the usufruct of the main house and the shops came
to an end. The plaintiffs became entitled to the possession of
the main house and the shops came to an end. The plaintiffs
became entitled to the possession of the main house as well
as the shops on the main road being the owners of property
No.B-XX 69 (od) 515(new), college road, civil lines, Ludhiana.
15 That defendant claims that he has taken the shop in his
possession on rent as a tenant from Dr Shivdev Kaur Grewal
and as such refuses to vacate the shop and deliver its vacant
possession to the plaintiffs who are the real owners. The
claim of the defendant is false. Defendant has no right in
shop and cannot claim himself to be a tenant. Dr Shivdev
Kaur Grewal had no right to let out the property. She could
only enjoy the usufruct of the main house. In any case any
tenancy is created by Dr Shivdev Kaur Grewal, that shall not
bind the plaintiffs who are the absolute owners of the
property. Without prejudice to the plea of the plaintiffs that Dr
Shivdev Kaur Grewal could not let the property, it is submitted
that even if any tenancy existed as being claimed by the
defendant which had allegedly been created by Dr Shivdev
Kaur Grewal, that comes to an end with the death of Dr
Shivdev Kaur Grewal and the possession of the defendant is
become unlawful only from date of death of Dr Shivdev Kaur
and as such the defendant is not entitled to continue in
occupation of shop as a tenant. The alleged tenancy stood
terminated and extinguished with the death of Dr Shivdev
Kaur Grewal. The plaintiffs being the lawful owners are
entitled to possession of the shop. The plaintiffs are being
denied possession of the shop by the defendant.”
In the written statement, a plea was raised that Shiv Dev Kaur was not a limited
owner of the property. Moreover, it was pleaded that the defendant was in
occupation as a tenant and a suit for possession was not maintainable. Assuming
that the appellants had become owners as alleged, it was contended that the
tenancy shall stand attorned to them after the death of Shiv Dev Kaur. On these
grounds, it was urged that the suit for possession was not maintainable.
4 The suit for possession was decreed and the first appeal was dismissed.
The basis of the decree for possession was that Shiv Dev Kaur had only a limited
right in the property which had not converted into an absolute ownership and
hence on her death the property would revert back to Dr Shiv Dev Singh. The
judgment of the trial Court as confirmed in appeal was the subject matter of a
second appeal before the High Court. The second appeal was admitted on the
following substantial questions of law:
1 Whether the defendants continue to be tenants even after
the change of the ownership; and
2 Whether the possession of the tenant becomes unlawful
the moment there was a change of ownership.
The High Court while setting aside the judgment of the first appellate Court held
that Shiv Dev Kaur had created a tenancy in favour of the defendant and the
relationship of landlord and tenant did not cease to exist on her death. The
remedy of the appellants as owners was to seek eviction under prevailing rent
control legislation and not by means of a suit for possession, treating the first
respondent as trespasser. On this ground, the decree for possession was set
aside, though with the observation that this would not preclude the appellants
from seeking ejectment of the first respondent on any of the grounds available
under the applicable rent control legislation.
5 Learned counsel appearing on behalf of the appellants submits that the life
interest which was created in favour of the daughter of the testator was personal
in nature. In a judgment inter partes rendered by this Court in Shivdev Kaur
(Dead) by LRs v RS Grewal1, it has been held that the limited interest acquired
by Shiv Dev Kaur during her life time under the will of the testator had not
fructified into full ownership under Section 14(1) of the Hindu Succession Act
1956. This was because in terms of the exception contained in sub-section (2) of
Section 14, Shiv Dev Kaur had acquired only a limited interest in the property of
her father by virtue of the will. Learned counsel submitted that that in
consequence, Shiv Dev Kaur enjoyed an interest that continued through her life
time. It was urged that she was not entitled under the testamentary disposition of
her father to create a tenancy in the property. In any event, any tenancy so
created would have no existence after her life time, having due regard to the fact
that the restricted interest which she acquired was personal to her. Finally, it was
also urged that the shops were constructed by Shiv Dev Kaur after the execution
of the will, as noticed by the High Court and that in consequence the creation of
the tenancy had no legal effect.
6 On the other hand, learned counsel appearing on behalf of the first
respondent submitted that though Shiv Dev Kaur had a life interest in the
property, the will empowered her to create a tenancy. The first respondent is a
tenant protected under the East Punjab Urban Rent Restriction Act 1949, having
due regard to the definition of the expression ‘landlord’ in Section 2(c). It has
been urged that the tenancy created by Shiv Dev Kaur does not come to an end
and with her death, the tenant does not become a trespasser. Learned counsel
submitted that the adjudication rendered by this Court in 2013 to the effect that
Shiv Dev Kaur continued to have a restricted interest in the property does not
render the answering respondent a trespasser. In other words, it has been urged
that the answering respondent being a tenant, a suit for possession was not
maintainable and an order for eviction can only be obtained by resorting to the
provisions of the East Punjab Urban Rent Restriction Act 1949.
7 While dealing with the rival submissions it is necessary at the outset to
clear the ground in regard to the nature of the interest which Shiv Dev Kaur
obtained under the will executed by her father, Dr Hira Singh, on 16 September
1944. This issue has been the subject of an adjudication by this Court in Shivdev
Kaur (supra). A brief background of the circumstances leading up to the
adjudication by this Court would be necessary. Shiv Dev Kaur, claiming rights
under the will, instituted a suit against her nephew for a mandatory injunction
seeking his eviction from the suit premises. She asserted a right of absolute
ownership by virtue of the provisions of Section 14 of the Hindu Succession Act
1956. The suit was contested. During the pendency of the suit the defendant
instituted a suit against Shiv Dev Kaur for a permanent injunction restraining her
from alienating the property. The trial Court held that Shiv Dev Kaur did not have
absolute ownership over the property and that she was not entitled to interfere in
respect of the agricultural lands and other property. The trail Court held that she
could not be dispossessed from the suit premises, subject to the final decision of
another suit. The appellate court confirmed the view that Shiv Dev Kaur did not
have an absolute right of ownership. The High Court held against Shiv Dev Kaur
in a second appeal. In appeal, this Court had to construe the provisions of
Section 14 of the Hindu Succession Act 1956. Section 14 reads thus:
“10. Section 14 of the 1956 Act reads as under:
14.Property of a female Hindu to be her absolute property.—
(1) Any property possessed by a female Hindu, whether
acquired before or after the commencement of this Act, shall
be held by her as full owner thereof and not as a limited
owner.
***
(2) Nothing contained in sub-section (1) shall apply to any
property acquired by way of gift or under a will or any other
instrument or under a decree or order of a civil court or under
an award where the terms of the gift, will or other instrument
or the decree, order or award prescribe a restricted estate in
such property.”
(emphasis added)
The aforesaid statutory provisions provide for conversion of
life interest into absolute title on commencement of the 1956
Act, however, sub-section (2) carves out an exception to the
same as it provides that such right would not be conferred
where a property is acquired by a Hindu female by way of gift
or under a will or any other instrument prescribing a restricted
estate in that property.”
A two Judge Bench of this Court held that since Shiv Dev Kaur had acquired only
a life interest under the will of her father, the provisions contained in sub-section
(2) of Section 14 would apply and her restricted interest had not been crystallised
into absolute ownership. Dr Justice BS Chauhan, J, speaking for the two Judge
Bench held thus:
“14. Thus, in view of the above, the law on the issue can be
summarised to the effect that if a Hindu female has been
given only a “life interest”, through will or gift or any other
document referred to in Section 14 of the 1956 Act, the said
rights would not stand crystallised into absolute ownership as
interpreting the provisions to the effect that she would acquire
absolute ownership/title into the property by virtue of the
provisions of Section 14(1) of the 1956 Act, the provisions of
Sections 14(2) and 30 of the 1956 Act would become otiose.
Section 14(2) carves out an exception to the rule provided in
sub-section (1) thereof, which clearly provides that if a
property has been acquired by a Hindu female by a will or gift,
giving her only a “life interest”, it would remain the same even
after commencement of the 1956 Act, and such a Hindu
female cannot acquire absolute title.”
Hence, the concurrent finding that Shiv Dev Kaur did not acquire an absolute title
was affirmed.
8 The adjudication in the present case must hence proceed on the
foundation that Shiv Dev Kaur had a life interest in the property.
9 The essence of the submission of the appellants is that Shiv Dev Kaur
having held a right which was personal in nature, she was not entitled to create a
tenancy and, in any event, the tenant would cease to have a surviving interest in
that character upon her death. In this context, reliance was placed on the
following observations contained in a decision of a Bench of two judges of this
Court in Ranvir Dewan v Rashmi Khanna2 where, Justice AM Sapre explained
the concept of a life interest in the following terms:
“42.6 ... it is a settled principle of law that the “life interest”
means an interest which determines on the termination of life.
It is incapable of being transferred by such person to others
being personal in nature. Such person, therefore, could enjoy
the “life interest” only during his/her lifetime which is
extinguished on his/her death.”
10 Now reading the will executed by Dr Hira Singh on 16 September 1944, it
is evident that while his son Shiv Dev Singh Grewal was to be the absolute owner
of his properties upon the death of the testator, a life interest was created in
favour of Shiv Dev Kaur. She was “entitled to settle and reside in this kothi as
and when necessary” and “could spend the income from rent on herself” during
her lifetime. However, she was not entitled to transfer, mortgage, sell or gift the
property. In consequence, the testator directed that his son would ensure that the
rent that was recovered would be spent in accordance with the directions
contained in the will. The testator’s priority was to ensure that following his death
his widowed daughter had adequate financial means. Expenses for the repairing
of the property and for the payment of land revenue were to be paid by Shiv Dev
Kaur during her lifetime. The disposition specifically contemplated her entitlement
to spend the income received by way of rent on herself. Creation of a tenancy
was an incident of the life interest which she had. It was means of her generating
rental income to sustain herself. This was authorised by the will.
11 But the submission which has been urged on behalf of the appellants is
that the life interest being personal to Shiv Dev Kaur, the tenancy which she
created would stand terminated with her death. In other words, according to the
appellants, with the death of Shiv Dev Kaur, the first respondent became a
trespasser on the property and was liable to be removed in consequence of the
decree for possession.
12 This submission cannot be accepted both as a matter of first principle and
having regard to the precedent on the subject. The expression ‘landlord’ is
defined in Section 2(c) of the East Punjab Urban Rent Restriction Act 1949 thus:
“Sec.2 In this Act, unless there is anything repugnant in the
subject or context, -
***
(c) ‘Landlord’ means any person for the time being entitled to
receive rent in respect of any building or rented land whether
on his own account or on behalf, or for the benefit, of any
other person, or as a trustee, guardian, receiver, executor or
administrator for any other person, and includes a tenant who
sublets any building or rented land in the manner hereinafter
authorised, and every person, from time to time, deriving title
under a landlord;”
A landlord within the meaning of Section 2(c) is not necessarily the owner of the
property. The definition of the expression ‘landlord’ is relatable to an entitlement
to receive rent in respect of any building or rented land. The inclusive definition of
‘landlord’ under Section 2(c) would take in its sweep Shiv Dev Kaur who held a
life interest in the property. This position in law has been explained in a decision
of a two Judge Bench of this Court in KD Dewan v Harbhajan S Parihar3, where
it was held thus:
“8. A perusal of the provision, quoted above, shows that the
following categories of persons fall within the meaning of
landlord: (1) any person for the time being entitled to receive
rent in respect of any building or rented land; (2) a trustee,
guardian, receiver, executor or administrator for any other
person; (3) a tenant who sub-lets any building or rented land
in the manner authorised under the Act; and (4) every person
from time to time deriving title under a landlord. Among these
four categories of persons, brought within the meaning of
“landlord”, Mr Sharma sought to derive support from the last
category. Even so, that category refers to a person who
derives his title under a landlord and not under an owner of a
premises. For purposes of the said category the transferor of
the title referred to therein must fall under any of the
categories (1) to (3). To be a landlord within the meaning
of clause (c) of Section 2 a person need not necessarily
be the owner; in a vast majority of cases an owner will be
a landlord but in many cases a person other than an
owner may as well be a landlord. It may be that in a given
case the landlord is also an owner but a landlord under
the Act need not be the owner. It may be noted that for
purposes of the act the legislature has made a distinction
between an owner of a premises and a landlord. The Act
deals with the rights and obligations of a landlord only as
defined therein. Ownership of a premises is immaterial
for purposes of the Act.” (emphasis supplied)
13 In B Bal Reddy v Teegala Narayana Reddy4, a three Judge Bench of this
Court held that the interest of a protected tenant subsists so long as a protected
tenancy has not been validly terminated. Moreover, even if the protected tenant
has lost possession without a valid termination of that status, they would be
entitled to the existence of protection under tenancy legislation. Justice UU Lalit,
speaking for the Bench observed:
“11. It is well settled that the interest of a protected tenant
continues to be operative and subsisting so long as
“protected tenancy” is not validly terminated. Even if such
protected tenant has lost possession of the land in question,
that by itself does not terminate the “protected tenancy”. The
observations of the Full Bench of the Andhra Pradesh High
Court in Sada case [Sada v. Tehsildar, AIR 1988 AP 77 :
(1987) 2 An LT 749 : 1987 SCC OnLine AP 187] were quoted
with approval by this Court in Boddam Narsimha v. Hasan Ali
Khan [Boddam Narsimha v. Hasan Ali Khan, (2007) 11 SCC
410] are quite eloquent: (Sada case[Sada v. Tehsildar, AIR
1988 AP 77 : (1987) 2 An LT 749 : 1987 SCC OnLine AP
187] , SCC OnLine AP para 44)
“44. In our view, this contention is not correct. If a protected
tenant is already in physical possession on the date of
notification there is no problem at all. If proceedings under
Sections 19, 32 or 44 are pending, the date of vesting gets
itself postponed. If the “protected tenancy” stood validly
terminated by the date of notification under Sections 19, 32 or
44, in that case, no certificate at all can be issued. But, as
long as a person continued to be a “protected tenant” either
under Sections 34, 37 or 37-A, as per the Act and has not lost
that status, whether he is in actual possession or not on the
date of notification, and is also to be “deemed” to be in
possession under the first part of the Explanation subject to
Section 32(7) and the proviso to Section 38-E(1), the
ownership stands transferred straightaway to such protected
tenant by the very force of Section 38-E(1). Further, Section
38-E(2) read with the Andhra Pradesh (Telangana Area)
Protected Tenants (Transfer of Ownership of Lands) Rules,
1973 contemplates a full-fledged inquiry after notice to the
landholders or after hearing objections of any other interested
person (vide Rules 4 and 5). Once a certificate is issued, the
same is, under Section 38-E(2), “conclusive evidence” of the
ownership of the protected tenant, and cannot be defeated by
the result of any inquiry under second part of the Explanation
to Section 38-E. Another reason for this view is that the
inquiry under Section 38-E(2) read with the 1973 Rules
referred to above, is to be done by the Tribunal (the Revenue
Divisional Officer) and obviously his decision to grant the
ownership certificate will not and cannot be jeopardised by
the result of any inquiry by a subordinate official like the
Tahsildar, who deals with the granting of possession to a
“protected tenant”.”
(emphasis supplied)
In the absence of such valid termination of “protected
tenancy”, the interest of such protected tenant continued to
be operative and subsisting in law and could devolve on his
legal heirs and representatives who could then claim
restoration of possession.”
The same view has been reiterated by a two Judge Bench in Nandkishor
Savalaram Malu (Dead) through Legal Representatives v Hanumanmal G
Biyani (Dead) through Legal Representatives5:
“27. Once the tenancy is created either orally or in writing
with respect to a land or building then it is always subject to
the relevant provisions of the Transfer of Property Act, 1882
(hereinafter referred to as “the TP Act”) and the State Rent
Acts. Sections 105 to 111 of the TP Act provide certain
safeguards, create some statutory rights, obligations, duties
whereas the State Rent Acts, inter alia, specify the grounds to
enable the lessor to evict the lessee/tenant from the demised
premises.”
In V. Dhanapal Chettiar v Yesodai Ammal6, a seven judge bench of this Court
while considering state rent legislations, held thus:
“6. … the tenant continues to be a tenant even though the
contractual tenancy has been determined by giving of a valid
notice under Section 106 of the Transfer of Property Act… in
our opinion it will suffice to say that the various State Rent
Control Acts make a serious encroachment in the field of
freedom of contract. It does not permit the landlord to snap
his relationship with the tenant merely by his act of serving a
notice to quit on him. In spite of the notice, the law says that
he continues to be a tenant and he does so enjoying all the
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.”
In Gian Devi v Jeevan Kumar7, a Constitution Bench of this Court dealt with the
question of whether the rule of heritability extends to a statutory tenancy of
commercial premises as much as it did to residential premises under the Delhi
Rent Control Act 1958. The Court while holding this in the affirmative discussed
the concept of statutory tenant and held thus:
“2. … “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 against 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.
15. … It is also important to note that notwithstanding the
termination of the contractual tenancy by the 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 in various States so
long as an order or 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.
31. … The termination of the contractual tenancy in view of
the definition of tenant in the Act does not bring 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…”
We have relied on the above decision only for its explanation of the meaning of
the concept of a statutory tenant.
Speaking for the Division Bench of the Calcutta High Court in Krishna Prosad v
Sarajubala8, Bachawat, J observed thus:
“… The Rent Control and the Tenancy Acts create a special
world of their own. They speak of life after death. The
statutory tenancy arises phoenix-like out of the ashes of the
contractual tenancy. The contractual tenant may die but the
statutory tenant may live long thereafter. The statutory tenant
is an ex-tenant and yet he is a tenant…”
8 AIR 1961 Cal 505. The above observation was also reiterated in Damadilal and Ors v Parashram and Ors ( 1976 ) 4 SCC 855
14 The provisions of the East Punjab Urban Rent Restriction Act 1949 are
available to the tenant. The tenant has a protected status. That status cannot be
disrupted or brought to an end except on grounds specified in the enactment. The
first respondent in whose favour the tenancy was created would be covered
under the definition of the expression ‘tenant’ in Section 2(i)9 of the East Punjab
Urban Rent Restriction Act 1949. The status of a statutory tenant enures as a
consequence of rent control legislation. The East Punjab Urban Rent Restriction
Act 1949 aims at regulating conditions of tenancy, controlling rents and
preventing unreasonable eviction of tenants. For the advancement of these
objects, tenants are invested with rights and landlords are subjected to
obligations. The first respondent in whose favour a tenancy was created acquired
a status of a statutory tenant and that status does not stand obviated by the death
of Shiv Dev Kaur. The remedy available to the appellants to remove the first
respondent from the property is by pursuing eviction proceedings on one or more
of the grounds available in the enactment. Section 13 lays down the procedure for
eviction of tenants. Only upon the satisfaction of the Controller that sufficient
grounds exist for eviction of the tenant can an order be passed directing the
tenant to vacate the premises. The protection offered to a statutory tenant can
only be overcome by following the procedure laid out in the enactment.
9 “Sec.2 In this Act, unless there is anything repugnant in the subject or context, ***
(i) "tenant" means any person by whom or on whose account rent is payable for a building or rented land and includes a tenant continuing in possession after the termination of the tenancy in his favour, but does not include a person placed in occupation of a building or rented land by its tenant, unless with the consent in writing of the landlord, or a person to whom the collection of rent 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, town or notified area committee;“
15 In Dahya Lala v Rasul Mahomed Abdul Rahim10, a Constitution Bench
of this Court dealt with a case where a mortgagee who was granted possession
of land under a deed of mortgage had inducted a tenant on the land. The
appellants as owners of the equity redemption applied under the Bombay
Agricultural Debtors’ Relief Act 1947 for redemption of the mortgaged land. An
award was made on a compromise that the mortgagor was entitled to take
possession from the tenant who had been inducted by the mortgagee. The tenant
who was evicted applied for the restoration of possession under Section 29 of the
Bombay Tenancy and Agricultural Lands Act 1948. The High Court upheld the
plea on the ground that the tenant was entitled to continue in occupation on the
same terms on which he was inducted by the mortgagee. Assailing the judgment
of the High Court it was contended by the appellants that a person could be said
to lawfully cultivate land within the meaning of Section 4 only if he had derived his
right to cultivate directly from the owner of the land and not from some other
person such as a mortgagee who had a limited interest in the land. Justice JC
Shah, speaking for the Constitution Bench held that under the Transfer of
Property Act 1882, the right of a tenant who is inducted by a mortgagee in
possession ordinarily comes to an end with the redemption of the mortgage.
However, that rule would have no application to the interpretation of a statute
such as the Bombay Tenancy and Agricultural Lands Act 1948 which had been
enacted with the object of protecting persons lawfully possessing agricultural
lands. This Court held:
“7. …But a tenant of the mortgagee in possession is inducted
on the land in the ordinary course of management under
10 (1963) 3 SCR 1
authority derived from the mortgagor and so long as the
mortgage subsists, even under the ordinary law he is not
liable to be evicted by the mortgagor. It appears that the
legislature by restricting the exclusion to mortgagees in
possession from the class of deemed tenants intended that
the tenant lawfully inducted by the mortgagee shall on
redemption of the mortgage be deemed to be tenant of the
mortgagor. In our view, therefore, the High Court was right in
holding that the respondent was entitled to claim the
protection of the Bombay Tenancy and Agricultural Lands
Act, 1948 as a deemed tenant.”
A similar view was held by a Full Bench of the Punjab and Haryana High Court in
Jagan Nath v Mittar Sain11 where the High Court was dealing with the question
of whether by virtue of a tenant executing a fresh rent note in favour of the
mortgagee, the tenancy under the mortgagor comes to an end and a new tenancy
comes into being under the mortgagee. The High Court held thus:
“(3) That a tenant inducted by the mortgagee remains a
tenant during the continuance of the mortgage and on the
redemption of the mortgage, the tenancy comes to an end;
(4) That in the case of agricultural tenancies, proposition No.
(3) does not absolute hold good. There is an exception to it,
namely, that the tenant of a mortgagee of agricultural land will
continue to be its tenant even after redemption provided he
has been inducted bona fide and in the like manner as a
prudent owner would have done for the proper management
of the land. Even in such a case, the operation of the lease
cannot extend beyond the period for which it was granted. No
lease can be granted if there is an express prohibition in the
mortgage deed.”
In G Ponniah Thevar v Nalleyam Perumal Pillai12, ‘A’ died leaving behind two
widows. One of the widows instituted a suit for partition which ended in a
compromise under which the other widow was given certain land for enjoyment
11 1970 AIR (Punjab) 104
during her life time. During her life time she had inducted a tenant. The
respondents filed a suit to evict the tenant on the ground that his tenancy rights
did not enure beyond the life time of the widow. The High Court granted the
decree for eviction. In appeal, this Court reversed the decree for eviction and
construed the provisions of the Madras Cultivating Tenants Protection Act 1955. It
held thus:
“3. ...The Madras High Court had, apparently, followed certain
decisions of that court which had applied the principle that a
life-estate holder cannot create a tenancy which could last
beyond the life of a life-estate holder. The view taken by the
Madras High Court and applied to statutory tenancies runs
counter not only to the principles underlying creation of
statutory tenancy rights in agricultural land, throughout the
length and breadth of the country, but, it seems to us to be
obviously in conflict with the particular statutory protection
conferred upon cultivating tenants in the State of Madras.
These enactments are really meant for the purposes
proclaimed by them. The obvious effect of such statutory
provisions cannot be taken away or whittled down by forensic
sophistry. Courts should not allow themselves to become
tools for defeating clearly expressed statutory intentions.”
A statutory protection granted for the benefit of the tenants under specific tenancy
laws is to be viewed from a standpoint of protecting the interests of a particular
class. Restrictions on recovery of possession of the premises let out to the
tenants have been imposed for the benefit of the tenants as a matter of legislative
policy.
16 There is a fallacy in the submission which was urged on behalf of the
appellant. The appellant postulates that a life interest is personal to the person
who possesses it and the creation of a tenancy which will enure beyond her life
amounts to a transfer of the life interest. What the submission overlooks is that the
creation of the tenancy was an act of the person enjoying a life interest in the
present case and was an incident of the authority of that individual to generate
income from the property for her own sustenance. The creation of a tenancy is an
incident of the exercise of such an authority. The protection which is conferred
upon the tenant against eviction, except on specified grounds, arises as a
consequence of statutory prescription under rent control legislation. The reason
why the tenant is entitled to occupy the premises beyond the life time of the
landlord who created the tenancy is simply as a result of a statutory enactment, in
this case, the East Punjab Rent Restriction Act 1949. It is the intervention of a
legislative mandate which enures to the benefit of the tenant. Once this has taken
place, it was not open to the civil court to entertain a suit for possession founded
on the hypothesis that the tenant is a trespasser.
17 In view of the above discussion, we have come to the conclusion that:
(i) Shiv Dev Kaur was in terms of the will executed by her father, Dr Hira Singh on
16 September 1944 entitled to a life interest in the property;
(ii) Under the terms of the will, Shiv Dev Kaur was entitled to settle and reside in
the property and benefit from the income arising out of the rent;
(iii) The life estate granted to Shiv Dev Kaur enabled her to create a tenancy and
receive the rent from the tenants on the property. She fulfilled the description of a
‘landlord’ under Section 2(c) of the East Punjab Urban Rent Restriction Act 1949;
(iv) The first respondent who was covered by the expression ‘tenant’ under
Section 2(i) of the East Punjab Urban Rent Restriction Act 1949 acquired the
character of a statutory tenant and was protected under it;
(v) The statutory protection afforded to the tenant did not cease to exist upon the
death of Shiv Dev Kaur;
(vi) A suit for possession on the basis that the tenant was a trespasser after the
death of Shiv Dev Kaur was not maintainable; and
(vii) The remedy of the appellants was to pursue eviction proceedings on the
grounds contemplated by the East Punjab Urban Rent Restriction Act 1949.
18 For the above reasons, we are of the view that the judgment of the learned
single Judge dated 21 January 2016 does not suffer from any error. The appeal
shall accordingly stand dismissed. There shall be no order as to costs.
Civil Appeal Nos 11087 and 11088 of 2018
19 The appeals shall also stand dismissed in the same terms and with the
same directions in Civil Appeal No 11086 of 2018.
[Dr Dhananjaya Y Chandrachud]
[Hemant Gupta]
New Delhi; April 16, 2019