Holding

Statutory tenancy under the Bombay Rents Act is personal to the tenant and cannot be bequeathed; a legatee is not an "heir" for purposes of Section 5(11)(c)(i), and "assign" or "transfer" in Section 15 do not cover testamentary transfers.

Summary

The tenant of a residential premises died leaving a will that bequeathed the tenancy rights to her sister's son. The appellant, as executor, sought eviction of the respondents who were residing in the premises, arguing that the bequest conferred a tenancy. The respondents contended that a testamentary transfer amounted to an impermissible "transfer" under Section 15 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 and that the word "heir" in Section 5(11)(c)(i) did not include a legatee. The Supreme Court examined the object of the Act, the meaning of "heir", and the scope of "assign" and "transfer" in Section 15, concluding that statutory tenancy is personal to the original tenant and cannot be bequeathed. Consequently, the Court held that a legatee is not entitled to inherit tenancy rights and that "transfer" does not encompass testamentary bequest. Both appeals were dismissed.

Issues considered

The tenancy rights under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 can be devised by a will.
Whether the term "heir" in Section 5(11)(c)(i) includes a legatee.
Whether the words "assign" and "transfer" in Section 15 include a testamentary bequest.

Legislation cited

Bombay Rents, Hotel and Lodging House Rates Control Act, 1947s. 15, s. 5(11)(c)(i)
Rent Act, 1977
Transfer of Property Act

Subjects

statutory tenancybequest of tenancy rightsheir vs legateeassign and transferevictionlandlord-tenant lawinterpretation of statutesBombay Rents Act

Judgment

VASANT PRATAP PANDIT A
v.
DR. ANANT TRIMBAK SABNIS

APRIL 12, 1994

[S. MOHAN AND M.K. MUKHERJEE, JJ.] B

t Bombay Rents, Hotel and Lodging House Rates Control Act,
1947-Sections 5( 11) (c) and 15-Bequest of tenancy rights under-Whether
pennissible-Held, No-Words 'assign' and 'transfer' in Section 15--Whether
include 'bequest-:-Held, Yes. C
Wards and Phrases : 'assigned' and 'transfer~eaning of in the
.. context-Bombay Rents, Hotel and Lodging of House Rates Control Act,
15:
1947, Section

The tenant of the disputed premises died issueless leaving behind a D
will bequeathing her properties, including tenancy rights in the premises,
to her sister's son and appointing the plaintiff appellant as executor
) thereof. The defendant and his wife were staying with the deceased in the
disputed premises. After her death, the appellant called upon the defen-
dant to vacate the premises and on his refusal instituted a suit for eviction. E
The defendant resisted the suit principally on the ground, that the bequest
of the tenancy rights amouuted to 'transfer' and it was impermissible u/s
15 of the Bombay Rent Control Act. Negativing the contention the Trial
Court deereed the suit.

Ju appeal the High Court held that the word 'heir' appearing in F
1 Section 5(1l)(c) of the Act did not include 'Legatee' and that the words
'assign' and 'transfer' appearing in Section 15 of the Act were used in a
generic sense to include bequest. The High Court concluded that the
appellant had no right lo tile the suit.

In the appeal to this Court, appellants contended that having G
regard to the paramount object of the Act to give protection from eviction
to the family members of the deceased tenant the expression 'heir' occur-
ring in Section S(ii) (c) should be construed widely to include not any and
every legatee under a will, but family members of the tenant, and that the
word 'transfer' appearing in s.15 of the Transfer of Property Act should H
451
452 SUPREME COURT REPORTS [1994) 3 S.C.R.

A be applied so as to interpret the word to mean acts done inter-vivos.

On the questions whether tenancy rights under the Act can be
devised by a will; and whether the words 'assign' and 'transfer' in Section
15 of the Act include 'bequest'.

B Disposing of the matter, this Court

HELD : 1.1. When Section 15, of the Bombay Rents, Hotel and \
Lodging House Rates Control Act, 1947 which prohibits sub-letting, as-
signment or transfer, is read in juxtaposition with Clause 5(11)(C) (i) it is
C patently clear that the legislature intends that in case no member of the
family as referred to in the first part of the clause is there the 'heir', who
under the ordinary mode of succession would necessarily be a relation of
the deceased, should be treated as a tenant of the premises subject,
however, to the decision by the Court in default of agreement. The words
'as may be decided in default of agreement by the Court' as appearing in
D · Sec. 5(11)(C) (i) are not without significance. These words have been
incorporated to meet a situation where there are more than one heir. In
such an eventuality the landlord may or may not agree to one or the other
of them being recognised as a 'tenant'. In case of such disagreement the \
Court bas to decide who is to be treated as 'tenant'. Therefore, if 'here' is
E to include a legatee of the will then the above quoted words cannot be
applied in case of a tenant who leaves behind more than one legatee, for
in that case the wishes of the testator can get supplanted, on the landlord's
unwillingness· to .respect the same, by the ultimate decision of the Court.
[pp. 460-F-H; 461-A-B]
F 1.2. It is not the heirship but the nature of claim that is determina-
tive. The Legislature could not have intended to confer such a right on the
testamentary heir. Otherwise, the right of the landlord to recover posses-
sion will stand excluded even though the original party (the tenant) with
whom the landlord had contracted is dead. Besides, a statutory tenancy is
G personal to the tenant. In certain contingencies as contemplated in Section
5(11)(C)(i) certain heirs are unable to succeed to such a tenancy. To this
extent, a departure is made from the general law. (461-C-D]

1.3. The matter may be viewed from another angle also. If the word
'heir' is to be interpreted to include a 'legatee' even a stranger may have
H to be inducted as a tenant for there is no embargo upon a stranger being
V.P. PANDIT v. DR. AT. SABNIS (MUKHERJEE, J.] 453

a legatee. [p. 461-E-FJ A
Bhavarlal Shah v. Kanaiyala/ N. Intwala, [1986) 1 SCC 571 followed.

Dr. Anant T. Sabnis v. Vasant Pratap Pandit, AIR (1980) Born. 69,
approved.
B·
Jaspal Singh v. Distt. Judge, [1985) 1 SCR 889, referred to.

1.4. Word 'transfer' as appearing in Section 15 has been qualified by
the words 'in any other manner' and there is no reason why it should·be
restricted to mean only transfer inter- vivos. Therefore, the meaning of the
word 'transfer' as contained in the Transfer of Property Act cannot be c
brought in aid for the purpose of the Act. On the contrary the wide
amplitnde of the words 'in any other manner' clearly envisages that the
word 'transfer' has been nsed therein in a generic sense so as to include
transfer by testament also. [pp. 461-G-H; 462-A)
D
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2584/80.

WITH

C.A. No. 1859/82.
E
Sali J. Sorabjee, Sunil Gupta, J.B. Dodachanji, S. Sukumarah, Mukul
Mudgal and Uday. U. Lalit for the Appellant.

V.A. Bobde, G.B. Sathe, Dr. N.M. Ghatate, S.K. Agnihotri, AK.
Singh & Ms. V.D. Khanna, RKP Shankardas, M.G. Ramchandran Pramod
Dayal for the Respondent. F
The Judgment of the Court was delivered by

M.K. MUKHERJEE, J. The principal question that arises for con-
sideration in these two appeals, preferred against the judgments of the G
High Court of Bombay, is whether tenancy rights under the Bombay Rents,
Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred
to as the 'Act') can be devised by a will. Ancillary thereto arises the
question whether the words 'assign' and 'transfer' in Section 15 of the Act
include 'bequest'. Facts relevant for the purpose of disposal of the appeals
are as under : H
454 SUPREME COURT REPORTS [1994] 3 S.C.R.

A CWILAPPEAL NO. 2584/1980: One Tara Bai, who was the tenant
of the disputed premises, died issueless. She left behind a will bequeathing
her properties, including tenancy right in the said premises, to her sister's
son Gopal and appointing the plaintiff-appellant, her brother's son as
exceutor thereof. The defendant-respondent, who happens to be the
grandson of a sister of the legatee, and his wife were staying with Tara Bai
B in the disputed premises. Aft:er her death, the appellant called upon the
respondent to vacate the premises and on his refusal instituted a suit for
eviction in the City Civil Court, Bombay. The respondent resisted the suit
principally on the ground, that the bequest of the tenancy rights amounted
to 'transfer' and it was impermissible under Section 15 of the Act. Conse-
c quently, the respondent urged, the appellant could not claim his eviction.
Negativing the contention of the respondent the trial Court decreed the
suit and aggrieved thereby the respondent preferred an appeal in the High
Court. While allowing the appeal and dismissing the suit by the impugned
judgment, the High Court held that the word 'heir' appearing in Section
D 5(11)(C) of the Act did not include 'legatee' and that the words 'assign'
and 'transfer' appearing in Section 15 of the Act were used in a generic
sense to include beqnest. Resultantly, the High Court concluded that the
appellant had no right to file the suit.
r
'
CWIL APPEAL NO. 1859/1982:
E
2. Claiming herself to be the sole legatee of her father, under the
probated will dated October 6, 1962, in respect of his tenancy rights in the
disputed premises, the plaintiff-appellant filed a suit for eviction of her
brother and his wife therefrom in the City Civil Court, Bombay. In contest-
F ing the suit the defendants-respondents denied that the tenancy rights in
respect of the suit premises had vested in the appellant by operation of law •\
and asserted that as members of the family of the deceased residing with
him at the time of his death, they were entitled to remain in possession.
Relying upon the earlier judgment of the Bombay High Court in the case
of Dr. Anant T. Sabnii· v. Vasant Partap Pandit, AIR (1980) Bombay 69,
G (which is impugned herein) the trial Court dismissed the suit and in appeal
the High Court affirmed the same.

3. To appreciate the contentions raised by Shri Soli J. Sorabjee, the
learned counsel appearing in support of the appeals, it will be ad-
H vantageous to first refer to Section 5(11) (C) of the Act which read as
V.P. PANDIT v. DR. AT. SABNIS [MUKHERJEE, J.] 455

under: A
5(11) "Tenant means any person by whom or on whose account
rent is payable for any premises and includes-

(a) ... ., ............................ .
B
(aa) ................................. .

(b) ..................................

(bb) ................................. .
c
(c) (i) in relation to any premises let for residence, when the
tenant dies,......................................... any member of the
tenant's family residing with the tenant at the time of his
death, or, in the absence of such member, any heir of the
deceased tenant, as may be decided in default of agreement D
by the Court;

I ' (ii) in relation to any premises let for the purpose of educa-
tion, business, trade or storage, when the tenant dies,
................................................................ any member of the
tenant's family using the premises for the purposes of educa- E
tion or carrying on business, trade or storage in the premises,
with the tenant at the time of his death, or, in the absence
of such member, any heir of the deceased tenant, as may be
decided in default of agreement by the Court.

.,.,
. xxx xxx xxx xxx F
I
The other sectien which requires consideration is Section 15 and it

-
reads, so far as it is relevant for our present purposes, as follows :

"(1) Notwithstanding anything contained in any law but subject to G
any contract to the contrary, it shall not be lawful after the coming
into operation of this Act for any tenant to sub-let the whole or
any part of the premises let to him or to assign or trans-
fer ............................................ .

(2) xxx xxx xxx' H
_j''·

456 SUPREME COURT REPORTS [1994] 3 S.CR.

A 4. Both the disputed premises herein being residential we are con-
cerned with the definition of 'tenant' as appearing in sub-clause (i) of
Section 5(11)(C). From a bare perusal thereof it is patently clear that
consequent upon the death of a tenant two categories of persons are to be
treated as stepping into his shoes : (i) any member of the tenant's family
B residing with him at the time of his death and, in case of absence of such
member, (ii) any heir of the deceased tenant as may be decided in default
of agreement by the Court. Having regard to the admitted fact that both
the appellants herein have founded their case as 'legatees' - and not as
members of the deceased tenant's family residing with him at the time of
C his death - we have to ascertain whether they answer the description of
'heir' within the meaning of Section 5(11)(c)(i) of the Act.

5. In the case of Jaspal Singh v, District Judge, [1985] 1 SCR 889 this
Court was required to interpret the word 'heir' as appearing in Section 3(a)
of the U.P. Urban Buildings (Regulation & Letting Rent and Eviction)
D Act, 1972, which defined 'tenant'. In so doing, the Conrt referred to
judgments of some High Conrts interpreting the word 'heir' appearing in
different legislations and observed that the word 'heir' may be construed
both in a wider as well as in a narrower sense and, therefore, which sense
would be applicable to the facts of a particular case would depend upon
E the intention and scheme of the particular legislation in which the question
occurred.

6. Relying upon the above observations in Jaspal Singh's case, Mr.
Sorabjee submitted that having regard to the paramount object of the Act
to give protection from eviction to the family members of the deceased -
F tenant the expression 'heir' occnrring in Section 5(11)(c) of the Act should
\
not be construed narrowly but should be construed widely to include, not
any and every legatee under a will, but family members of the deceased-

G
tenant who would be entitled to the estate either by virtue of a will or by
intestate succession. According to hlm, there is no rational or intelligible
basis whatsoever for making a distinction between a family member who is
entitled to the estate of the deceased- tenant under a will and another who
-
is entitled to the estate by virtue of intestate succession. He submitted that
the distinction between family members merely on the ground whether they
claim under a will or under the rules of intestate succession was plainly
H invidious and had no rational relation to the object of the Act which was
V.P. PANDIT v. DR. AT SABNIS [MUKHERJEE, J.J 457
·-v
to give protection to the family members of the deceased-tenant. Moreover A
such an interpretation would lead to patently discriminatory results and be
violative of Article 14 of the Constitution, argued ML Sorabjee. In inter-
preting Section 15 of the Act, he submitted that the word 'transfer' appear-
ing therein did not include a testamentary bequest as it took effect only
after the testator's death and could be revoked at any time before the B
happening of that event. He contended that there was no reason why, in
the absence of any definition of 'transfer' under the Act, the definition
thereof as appearing in the cognate legislation, namely, the Transfer of
Property Act should not be taken note of and applied so as to interpret
the word 'transfer' to mean acts done inter-vivas. When Mr, Sorabjee's
attention was drawn by ML Bobde, the learned Counsel appearing for the
c
respondents, to the case of Bhavarla/ L. Shah v. Kanaiya/a/ N. Intawala,
[1986) 1 sec 571 which has expressly approved the judgment impugned in
the first of the two appeals before us (Civil Appeal No. 2584/80) he sought
to distinguish the case contending that (i) the question whether the expres-
sion 'transfer' includes 'bequest' did not directly arise for consideration D
therein, (ii) there was an internal inconsistency in the judgment inasmuch
1 as it has been observed therein "we do not propose to deal with the wider
/
proposition that a statutory tenancy which is personal to the tenant cannot
be bequeathed at all under a will in favour of anybody. We leave the said
question open" and (iii) all relevant aspects of the matter were not brought E
to the notice of the Court and hence it required reconsideration by a larger
Bench.

7. I-laving given our anxious consideration to the contentions raised
by Mr. Sorabjee we are unable to accept the same.
F
J 8. In Partington's 'Landlord and Tenant' at page 80 (Second Edition)
it is stated :
11
Statutory tenants cannot assign their premises in any event. n

Again at page 429 it is slated : G
"Statutory tenants cannot assign (Rent Act 1977, s.2.)"

Section 2 of Rent Act, 1977 reads as follows :

"2. - (1) Subj<><:t to this part of this Act - H
458 SUPREME COURT REPORTS (1994] 3 S.C.R.

A (a) after the termination of a protected tenancy of a dwelling-house
the person who, immediately before that termination, was the
protected tenant of the dwelling-house shall, if and so long as he
occupies the dwelling-house as his residence, be the statutory
tenant of it; and

B (b) Part I of Schedule 1 to this Act shall have effect for determining
what person (if any) is the statutory tenant of a dwelling-h<>use at
any time after the death of a person who, immediately before his
death, was either a protected tenant of the dwelling-house or the
statutory tenant of it by virtue of paragraph (a) above.
c (2) In this Act a dwelling-house is referred to as subject to a
statutory tenancy when there is a statutory tenant of it.

(3) In sub-section (1) (a), above and in part I of Schedule 1, the
phrase 'if and so long as he occupies the dwelling-house as his
D residence' shall be construed as it was immediately before the
commencement of this Act (that is to say, in accordance with
section 3(2) of the Rent Act 1968).

(4) A person who becomes a statutory tenant of a dwelling-house
as mentioned in sub-section (1) (a) above is, in this Ac~ referred
E to as a statutory tenant by virtue of his previous protected tenancy.

(5) A person who becomes a statutory tenant as mentioned in
sub-section (l)(b) above is, in this Act, referred to as a statutory
tenant by succession. 11

F At pages 210-11 statutory tenants by succession is spoken to as
under: \

"Statutory tenants by succession - Rent Act 1977, Schedule I (as
amended by Housing Act 1980, s.76) provides for a statutory
tenancy by succession to arise on two occasions :
G
1. The provisions of paragraph 2 or, as the case may be paragraph
3 of this Schedule shall have effect, subject to Section 2(3) of this
Act, for the purpose of determining who is the statutory tenant of
· a dwelling-house by succession after the death of the person (in
H this Schedule referred to as 'the original tenant') who, immediately
V.P. PANDIT v. DR. AT. SABNIS [MUKHERJEE, J.] 459

before his death, was a protected tenant of the dwelling-house or A
the statutory tenant of it by virtue of his previous protected tenan-
cy.

2. The surviving spouse (if any) of the original tenant, if residing
in the dwelling-house immediately before the death of the original
tenant, shall after the death be the statutory tenant if and so long B
as he or she occupies the dwelling-house as. or her residence.

3. Where paragraph 2 above does not apply, but a person who was
a member of the original tenant's family was residing with him at
the time of and for the period of six months immediately before C
his death then, after his death, that person or if there is more than
one such persons such one of them as may be decided by agree-
ment, or in default of agreement by the country court, shall be the
statutory tenant if and so long as he occupies the dwelling-house
as his residence."
D
9. Thus, it is clear that nowhere bequest is thought or. Normally
speaking, the right would be heritable but the. question is whether the right
to inherit has been restricted by legislation.

10. Now, we may look at the meaning of the words heirs, heir-at- law E
and heir testamentary as stated in Black's Law Dictionary Sixth Edition at
pages 723 and 724:

"Heirs - At common law, the person appointed by law to succed
to the estate in case of intestacy. One who inherits property,
whether real or personal. A person who succeeds, by the rules of F
law, to an estate in land, tenements, or hereditaments, upon the
l death of his aneestory, by descent and right of relationship. One
who would receive his estate under statute of descent and distribu-
tion. Faulkner's Guardian v. Faulkner, 237 Ky. 147, 35 S.W. 2d 6,
7. Moreover, the term is frequently used in a popular sense to G
designate a successor to property either by will or by law."

"Heir-at-law - At common law, he who, after his ancestor dies
intestate, has a right to all lands, tenements and hereditaments
which belonged to him or of which he was seized. The same as
11
heir generar. H
460 SUPREME COURT REPORTS [1994] 3 S.C.R.

A A deceased person's "heirs-at-law" are those who succeed to his
estate of inheritance under statutes of descent and distribution, in
absence of testamentary disposition, and not necessarily his heirs
at common law, who are person succeeding to deceased's realty
in case of his intestacy. 11

B
"Heir testamentary. In tbe civil law, one who is named and ap-
pointed heir in the teslament of the decedant. This name distin-
guishes him from a legal heir (one upon whom the law casts the
succession), and from a conventional heir (one who takes it by
virtue of a previous contract or settlement)."
c
In the light of the above we may consider the object and scheme of the Act
to ascertain in which sense the word 'heir' applies here.

11. From a plain reading of Section 5(11)(c)(i) it is obvious that the
D legislative prescription is first to give protection to members of the family
of the tenant residing with him at. the time of his death. The basis for such
prescription seems to be that when a tenant is in occupation of premises
the tenancy is taken by him not only for his own benefit but also for the
benefit of the members of the family residing with him. Therefore, when
E the tenant dies, protection should be extended to the members ~f the family
who were participants in the benefit of the tenancy and for whose needs
as well the tenancy was originally taken by the tenant. It is for this avowed
object, the legislature has, irrespective of the fact whether such members
are 'heirs' in the strict sense of the term or not, given them the first priority
to be treated as tenants. It is only when such members of the family are
F not there, the 'heirs' will be entitled to be treated as tenants as decided, in
default of agreement, by the Court. In other words, all the heirs are liable \

to be excluded if any other member of the family was staying with the
tenant at the time of his death. When Section 15, which prohibits sub-let-
ting, assignment or transfer, is read is juxtapoistion with Clause 5 (ll)(c)(i)
G it is patently clear that the legislature intends that in case no member of
the family as referred to in the first part of the clause is there the 'heir',
who under the ordinary mode of succession would necessarily be a relation
of the deceased, should be treated as a tenant of the premises subject,
however, to the decision by the Court in default of agreement. The words
H . 'as may be decided in default of agreement by the Court' as appearing in
V.P. PANDIT v. DR.AT.SABNIS [MUKHERJEE,J.] 461

Section 5(11)(c)(i) are not without signficance. These words in_ our view A
-..... have been incorporated to meet a situation where there are more than one
heir. In such an eventuality the landlord may or may not agree to one or
the other of them being recognised as a 'tenant'. In case of such disagree-
ment the Court has to decide who is to be treated as 'tenant'. Therefore,
if 'heir' is to inlclude a legatee of the will then the above quoted words B
cannot be applied in case of a tenant who leaves behind more than one
legatee for in that case the wishes of the testator can get supplanted, on
the landlord's unwillingness to respect the same, by the ultimate decision
of the Court. In other words, in case of a testamentary disposition, where
the wish or will of the deceased has got to be respected a decision by the C
Court will not arise and that would necessarily mean that the words quoted
above will be rendered nugatory. What we want to emphasise is It is not
the heirship but the nature of claim that is determinative. In our considered
view the Legislature could not have intended to confer such a right on the
testamentary heir. Otherwise, the right of the landlord to recover posses-
sion will stand excluded even though the original party (the tenant) with D
whom the landlord had contracted is dead. Besides, a statutory tenancy is
personal to the tenant. In certain contingencies as contemplated in Section
J 5(11)(c)(i) certain heirs are unable to succeed to such a tenancy. To this
extent, a departure is made from the general law.
E
12. The matter may be viewed from another angle also. If the word
'heir' is to be interpreted to include a 'legatee' even a stranger may have
to be inducted as a tenant for there is no embargo upon a stranger being
a legatee. The contention of Mr. Sorabjee that 'heir' under a will may be
confined to only members of the family cannot be accepted for there is
F
no scope for giving such a restrictive meaning to that word in the context
in which it appears in the Act as earlier noticed, unlike in other Rent Acts.
J
13. Corning now to the meaning of the words 'assign' or 'transfer' as
appearing in Section 15 we find that 'transfer' has been. qualified by the
words 'in any other manner' and we see no reason why it should be G
restricted to mean only transfer inter-vivos, As has been rightly pointed out
by the High Court in the impugned judgment the Transfer of Property Act
limits its operation to transfer inte,...vivos and therefore, the meaning of the
word 'transfer' as contained therein cannot be brought in aid for the
purpose of the Act, On the contrary, the wide amplitude of the words 'in H
462 SUPREME COURT REPORTS [1994] 3 S.C.R.

A any other manner' clearly envisages that the word 'transfer' has been used
therein in a generic sense so as to include transfer by testament also.

14. For the foregoing discussion we do not find any justification to
take a view different from the view expressed by this Court in the case of
Bhavarlal L. Shah's case (supra) while approving the findings recorded in
B the case of Dr. Anant T. Sabnis v. Vasant Pratap Pandit, which is under
challenge before us (Civil Appeal No. 2584/80). Incidentally, we may
mention that while approving the above judgment this Court pointed out
in Bhavar/a/'s case that the reasons given therein were perfectly justified in
the context of the object and scheme of the Act (emphasis supplied); and the
C question that is left open by this Court therein is to be considered in the
light of the provisions of the Rent Act as in force in the State of Gujarat
which has given a different meaning to the word 'tenant'.

15. For the foregoing discussion, we dismiss both the appeals. How-
D ever, there will be no order as to costs.

A.G. Appeals dismissed.

\

~

\