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Introduction
Almost everyone is aware about the disputes between a Landlord and a Tenant or a Lessor and a Lessee which nowadays has become a norm. In the earlier days to protect the tenant from illegal eviction the Legislatures passed Rent Control Legislations like Delhi Rent Control Act, 1958 for Delhi. The tenancy created by these legislations is called Statutory Tenancy unlike the tenancy created by Transfer of Property Act, 1882 which is called Contractual Tenancy. The primary difference between a Statutory Tenant and a Contractual Tenant is that while the former can be evicted only when certain conditions are fulfilled, later can be evicted by giving a simple notice of vacation of premises.
While earlier the aim of the Rent Control Legislations was to protect the tenant from unreasonable rent and undue eviction, it is seen that today the tenants are using these legislations to hold on to the tenanted property as long as they can. This only have resulted in bitter conflicts between the Landlord and the Tenant which lasts for decades. But if the Landlord is aware about his rights and restrictions placed on the Tenants, then he can get the his property back in no time.
In this article we are going to discuss the dynamics of Statutory Tenancy which gave rise to a landmark judgment by Delhi High Court.
Facts
Mrs. Sury was a tenant in House No. 72 Babar Road, New Delhi (hereinafter the Rented House). As the rent of the property was only Rs. 37.82/- per month the tenancy was regulated by Delhi Rent Control Act, 1958 (in short DRC Act).
As Mrs. Sury passed away the Appellant came to live in the Rented House stating that he being the nephew of Late Mrs. Sury is her heir and hence entitled to live in the Rented House on the same rent which Late Mrs. Sury paid. But the Landlord (Respondent herein) opposed this occupation of the Rented House by the Appellant on the ground that he has got the property under a Will by the Late Mrs. Sury and not due to his kinship with Late Mrs. Sury. As the Appellant did not vacate the Rented House even on Landlord’s request, the Landlord filed a petition for eviction under Section 14(1)(b) of DRC Act to evict the Appellant. Section 14(1)(b) states that if a tenant had parted with the possession of the Rented House, without taking permission from the Landlord, then the Landlord can determine tenancy on this ground only (basically it means that the landlord can throw the the tenant out if the tenant sublets the property to some third party). The said case was filed in the court of Additional Rent Controller Tribunal (ARCT), Delhi which is a part of Special Tribunals set up under the DRC Act. In Delhi if a Landlord/Lessor- Tenant/Lessee dispute does not come under DRC Act then it will surely come under Transfer of Property Act, 1882 for which Eviction Petition is to be filed in Civil Courts and not ARCT.
Now after ARCT gave its decision in favour of the Appellant-Tenant holding that the Appellant has become tenant due to him being late Mrs. Sury’s nephew, the Landlord filed an Appeal before Rent Control Tribunal which reversed the said decision saying that the Appellant has become the tenant/lessse under the Will of Late Mrs. Sury and not due to heirship. (We will see in a while what is the difference between getting tenancy due to heirship and Will).
Questions Before Delhi High Court
On losing before the Rent Control Tribunal the tenant/lessee went to Delhi High Court. The main question before the Delhi High Court was twofold :
1) Whether tenancy rights devolved upon the Appellant under the Will or due to his being the legal heir i.e. nephew of the Late Mrs. Sury?
This is an important question as if the tenancy rights were conferred due to the Will then it will mean that Late Mrs. Sury gave it by her own wish or intention but if it is due the fact of heirship then the Appellant became tenant not because of the intention or wish of Late Mrs. Sury but due to law prevailing at that time.(Like when a daughter who is a Hindu becomes owner of her father’s property after her father’s death, she does not do so because of her father’s intentions, but because of the prevailing law i.e. Hindu Succession Act). We will see while answering the Question No. 2, as to what will be effect of the transfer being “intentional”). But to answer this question one has to understand what a Will is? So I deem it apposite to have a little discussion about a Will especially with respect to the intention of its maker.
“Will” is defined under Section 2(h) of Indian Succession Act, 1925 and it means the intention of the Testator as to what should happen to his property after his death. The maker of the Will is called the Testator, the person who gets the property is called the Devisee/Legatee and the process of giving the property to the Devisee is called Bequeathing/Devising and the property given is called Bequest. Till the death of the Testator/Maker of the Will, the Will is merely an intention and the Devisee is not entitled to go to a Court and ask the Court to direct the Testator to give him the property which according to the Will must come to him after Testator’s death. Its primary reason is that a Will is a revocable document i.e. the testator is entitled to modify or even alter the Will any time before his death and a person who might be getting millions under the previous Will might not even get a single penny in the altered Will. (Some Wills wrongly record “This will is revocable”. It’s an incorrect statement as a Will can be revoked by the Testator any time before his death).
Now coming back to the answer of Question No. 1, the Will made by Late Mrs. Sury very clearly stated that she gives all her immovable property to her nephews. As tenancy rights is also an immovable property, the High Court very rightly decided that the Appellant is claiming tenancy rights under the Will and not as an heir.
This leads us to the second question before the High Court which was :
2) Does giving Tenanted/Leased House to someone in a Will means “parting with possession”?
This issue comes into picture because if it is answered in the positive then it will mean that Late Mrs. Sury had parted the possession of the Tenanted House during her lifetime which is not allowed under section 14 (1)(b) of DRC Act and hence this will result in the termination of the tenancy.
“Parted with” mean relinquishing one’s share in a property. It simply means that the possession is given by the original tenant/lessee to a third party who is not a party to the lease agreement with the Landlord. Further it means that it was done by original tenant’s out of his own wish. So does a Will means transfer/parting with the possession or not, especially when Section 5 of the Transfer of Property Act, 1882 stipulates that a transfer can only be effected inter vivos i.e. a transfer can only happen between living persons. So the Seller and the Purchaser or the Lessor and the Lessee or the Landlord and the Tenant or the Donor and the Donee or the Mortgagor or Mortgagee, must be living persons on the date of transfer. But a Will only becomes effective when the Testator dies and hence can it be said that transfer was inter vivos? It is important to see here when Section 14 (1) (b) of DRC Act says “parting with possession” it does not say so in the strict sense of the phrase but in a generic sense. In a Will there is of course an intentional transfer of the possession, the only difference with other type of transfers being that in a Will the intended transfer takes place after Testator’s demise i.e. the new Tenant takes possession the Tenanted House only after Testator’s death. So it must come within “parting with possession” as defined in section 14 (1) (b) of DRC Act.
Hence it was decided by the High Court that Late Mrs. Sury has transferred the possession without the consent of the landlord and hence the new tenant who obtained such possession should be evicted from the Tenanted House and possession of the Tenanted House should be given back to the Landlord.
Conclusion
It is important to see that DRC Act is not the only Act which regulates tenancy but other states like Mumbai also have similar tenancy legislations (Bombay Rents, Hotel and Lodging House Rates Control Act). Even in Delhi before coming of DRC Act tenancy was regulated by Delhi and Ajmer Rent Control Act. Almost all these Acts have similar prohibition whereby a Tenant is restrained from transferring the possession of the tenanted property without the written consent of the Landlord.
Furthermore these provisions are also contained in Transfer of Property Act which regulates contractual tenancy.
So its important the Landlords/Lessors have the knowledge of the rights which are given to them by the statutes because otherwise they can lose a very precious right of getting their property back.
Parveen Semwal
Advocate, High Court of Delhi and Supreme Court of India