DR RS GREWAL & ORS. versus CHANDER PARKASH SONI & ANR. on 16 April 2019

1. This appeal arises from a judgment of a learned Single Judgeof the High Court of Punjab and Haryana at Chandigarh dated 21 January2016 in a second appeal. The High Court reversed the judgment and thedecree of the trial Court, which was confirmed in first appeal, by whicha suit for possession of certain property in the occupation of thedefendants as tenants had been decreed.

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2. Dr Hira Singh was the owner of a residential house (shown inthe site plan filed together with the suit) together with some shopsconstructed on property bearing Municipal No B-XX-69 (Old) 515 (New)at College Road, Civil Lines, Ludhiana. The family pedigree is depictedbelow:

Late Dr. Hira SinghE(Died in 1945)Late Lt. Col.Late Dayawant KaurLate Dr. Shiv Dev KaurDr. Shiv Dev Singh Grewal(Died in 1922)(issueless widow)(Died on 14.08.1968)(Died on 15.02.1988)FLate Dr. Jaswant Kaur(Died issueless)Late Dr. J. S. GrewalDr. R. S. GrewalG(Issueless, widower)(Died on 09.07.1993)Dr. GagandeepRamandeepEr. AmandeepH

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On 16 September 1944, Dr Hira Singh executed a will by whichhe bequeathed his property to his son, Shiv Dev Singh Grewal, subject toa right of residence for his widowed daughter, Shiv Dev Kaur Grewal inthe property situated at Civil Lines, Ludhiana. The will contains thefollowing recital:

B“I own a kothi on Iqbal Road opposite to Govt. College in CivilLines. I have myself purchased its land and I also reside in thisKothi and some outer portion thereof has been given on rent.”

The testator made a disposition in the following terms in favour ofhis son:

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“After my death, my son Shivdev Singh will be the absolute ownerof my property, mentioned above, situate in village Gujarwal i.e.land and houses owned by me as well as the mortgaged land. Myson Shivdev Singh will also be the owner of the money which isdue to me.”

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The will adverted to the fact that some portion of the property atCivil Lines was in the occupation of tenants. According to the will, therent recovered was to be spent for the education and maintenance of ayoung child - Shiv Charan Kaur, who was brought up by the testator. Alife interest in the property at Civil Lines was created in favour of ShivEDev Kaur, the daughter of the testator in the following terms:

“My daughter Bibi Shivdev Kaur will get this Kothi situated onIqbal Road till her life time subject to the abovesaid rights of BibiShiv Charan Kaur and that after my death Shivdev Kaur wouldbe entitled to settle and reside in this Kothi as and when necessaryand can spend the income from rent on herself. But these rightsFshall ensure to her till her life time. She will not be entitled totransfer or burden this Kothi along with the attached land norcould she mortgage, gift the same, nor could she sell or exchangeit. This Kothi shall also be the sole ownership of my son ShivdevSingh subject to the above mentioned rights. Through this will IGappoint my aforesaid son Shivdev Singh as my executor but heshall act according to the recitals in this will and shall arrange forthe maintenance and marriage of Bibi Shiv Charan Kaur and afterrecovering the rent of the concerned portion of the Kothi, he shallspend the same in accordance with the above mentioneddirections.”

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The testator’s son, who was a legatee under the will, was alsoappointed as an executor. The testator died in 1945. His son died on 14August 1968. The first appellant is the grandson of the testator, whilethe second and third appellants are the sons of the first appellant.

3. A suit for possession was instituted by the appellants and byproforma respondent no 2 against the first respondent in the Court of theCivil Judge, Senior Division, Ludhiana. The first respondent is a tenantinducted by Shiv Dev Kaur Grewal. The foundation of the suit was thatShiv Dev Kaur Grewal was only entitled to a life interest in the propertyin terms of the will executed by her father and upon her death theappellants 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 thefollowing terms:

“14 That Dr Shivdev Kaur Grewal has died on 15.2.1998 and onher death her right to live in the main kothi alongwith right toutilize the usufruct of the main house and the shops came to anend. The plaintiffs became entitled to the possession of the mainhouse and the shops came to an end. The plaintiffs became entitledto the possession of the main house as well as the shops on themain 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 hispossession on rent as a tenant from Dr Shivdev Kaur Grewal andas such refuses to vacate the shop and deliver its vacant possessionto the plaintiffs who are the real owners. The claim of thedefendant is false. Defendant has no right in shop and cannotclaim himself to be a tenant. Dr Shivdev Kaur Grewal had noright to let out the property. She could only enjoy the usufruct ofthe main house. In any case any tenancy is created by Dr ShivdevKaur Grewal, that shall not bind the plaintiffs who are the absoluteowners of the property. Without prejudice to the plea of the plaintiffsthat Dr Shivdev Kaur Grewal could not let the property, it issubmitted that even if any tenancy existed as being claimed bythe defendant which had allegedly been created by Dr ShivdevKaur Grewal, that comes to an end with the death of Dr ShivdevKaur Grewal and the possession of the defendant is becomeunlawful only from date of death of Dr Shivdev Kaur and as suchthe defendant is not entitled to continue in occupation of shop as a A

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136SUPREME COURT REPORTS

Atenant. The alleged tenancy stood terminated and extinguishedwith the death of Dr Shivdev Kaur Grewal. The plaintiffs beingthe lawful owners are entitled to possession of the shop. Theplaintiffs are being denied possession of the shop by the defendant.”

In the written statement, a plea was raised that Shiv Dev KaurBwas not a limited owner of the property. Moreover, it was pleaded thatthe defendant was in occupation as a tenant and a suit for possessionwas not maintainable. Assuming that the appellants had become ownersas alleged, it was contended that the tenancy shall stand attorned tothem after the death of Shiv Dev Kaur. On these grounds, it was urgedthat the suit for possession was not maintainable.

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4. The suit for possession was decreed and the first appeal wasdismissed. The basis of the decree for possession was that Shiv DevKaur had only a limited right in the property which had not convertedinto an absolute ownership and hence on her death the property wouldrevert back to Dr Shiv Dev Singh. The judgment of the trial Court asDconfirmed in appeal was the subject matter of a second appeal beforethe High Court. The second appeal was admitted on the followingsubstantial questions of law:

1. Whether the defendants continue to be tenants even after thechange of the ownership; andE

2. Whether the possession of the tenant becomes unlawful themoment there was a change of ownership.

The High Court while setting aside the judgment of the firstappellate Court held that Shiv Dev Kaur had created a tenancy in favourof the defendant and the relationship of landlord and tenant did not ceaseFto exist on her death. The remedy of the appellants as owners was toseek eviction under prevailing rent control legislation and not by meansof a suit for possession, treating the first respondent as trespasser. Onthis ground, the decree for possession was set aside, though with theobservation that this would not preclude the appellants from seekingGejectment of the first respondent on any of the grounds available underthe applicable rent control legislation.

5. Learned counsel appearing on behalf of the appellants submitsthat the life interest which was created in favour of the daughter of thetestator was personal in nature. In a judgment inter partes rendered byH

this Court in Shivdev Kaur (Dead) by LRs v RS Grewal[1], it has beenheld that the limited interest acquired by Shiv Dev Kaur during her lifetime under the will of the testator had not fructified into full ownershipunder Section 14(1) of the Hindu Succession Act 1956. This was becausein terms of the exception contained in sub-section (2) of Section 14, ShivDev Kaur had acquired only a limited interest in the property of herfather by virtue of the will. Learned counsel submitted that that inconsequence, Shiv Dev Kaur enjoyed an interest that continued throughher life time. It was urged that she was not entitled under the testamentarydisposition 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 acquiredwas personal to her. Finally, it was also urged that the shops wereconstructed by Shiv Dev Kaur after the execution of the will, as noticedby the High Court and that in consequence the creation of the tenancyhad no legal effect.

6. On the other hand, learned counsel appearing on behalf of thefirst respondent submitted that though Shiv Dev Kaur had a life interestin the property, the will empowered her to create a tenancy. The firstrespondent is a tenant protected under the East Punjab Urban RentRestriction Act 1949, having due regard to the definition of the expression‘landlord’ in Section 2(c). It has been urged that the tenancy created byShiv Dev Kaur does not come to an end and with her death, the tenantdoes not become a trespasser. Learned counsel submitted that theadjudication rendered by this Court in 2013 to the effect that Shiv DevKaur continued to have a restricted interest in the property does notrender the answering respondent a trespasser. In other words, it hasbeen urged that the answering respondent being a tenant, a suit forpossession was not maintainable and an order for eviction can only beobtained by resorting to the provisions of the East Punjab Urban RentRestriction Act 1949.

7. While dealing with the rival submissions it is necessary at theoutset to clear the ground in regard to the nature of the interest whichShiv Dev Kaur obtained under the will executed by her father, Dr HiraSingh, on 16 September 1944. This issue has been the subject of anadjudication by this Court in Shivdev Kaur (supra). A brief backgroundof the circumstances leading up to the adjudication by this Court would 1 (2013) 4 SCC 636

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Abe necessary. Shiv Dev Kaur, claiming rights under the will, instituted asuit against her nephew for a mandatory injunction seeking his evictionfrom the suit premises. She asserted a right of absolute ownership byvirtue of the provisions of Section 14 of the Hindu Succession Act 1956.The suit was contested. During the pendency of the suit the defendantinstituted a suit against Shiv Dev Kaur for a permanent injunctionBrestraining her from alienating the property. The trial Court held thatShiv Dev Kaur did not have absolute ownership over the property andthat she was not entitled to interfere in respect of the agricultural landsand other property. The trail Court held that she could not be dispossessedfrom the suit premises, subject to the final decision of another suit. TheCappellate court confirmed the view that Shiv Dev Kaur did not have anabsolute right of ownership. The High Court held against Shiv Dev Kaurin a second appeal. In appeal, this Court had to construe the provisionsof Section 14 of the Hindu Succession Act 1956. Section 14 reads thus:

“10. Section 14 of the 1956 Act reads as under:

D14.Property of a female Hindu to be her absolute property.—(1) Any property possessed by a female Hindu, whether acquiredbefore or after the commencement of this Act, shall be held byher as full owner thereof and not as a limited owner.

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(2) Nothing contained in sub-section (1) shall apply to any propertyacquired by way of gift or under a will or any other instrument orunder a decree or order of a civil court or under an award wherethe terms of the gift, will or other instrument or the decree, orderor award prescribe a restricted estate in such property.”

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(emphasis added)

The aforesaid statutory provisions provide for conversion of lifeinterest into absolute title on commencement of the 1956 Act,however, sub-section (2) carves out an exception to the same asit provides that such right would not be conferred where a propertyis acquired by a Hindu female by way of gift or under a will orany other instrument prescribing a restricted estate in thatproperty.”

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A two Judge Bench of this Court held that since Shiv Dev Kaurhad acquired only a life interest under the will of her father, the provisionsH

contained in sub-section (2) of Section 14 would apply and her restrictedinterest had not been crystallised into absolute ownership. Dr Justice BSChauhan, J, speaking for the two Judge Bench held thus:

“14. Thus, in view of the above, the law on the issue can besummarised to the effect that if a Hindu female has been givenonly a “life interest”, through will or gift or any other documentreferred to in Section 14 of the 1956 Act, the said rights would notstand crystallised into absolute ownership as interpreting theprovisions 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 the1956 Act would become otiose. Section 14(2) carves out anexception to the rule provided in sub-section (1) thereof, whichclearly provides that if a property has been acquired by a Hindufemale by a will or gift, giving her only a “life interest”, it wouldremain the same even after commencement of the 1956 Act, andsuch a Hindu female cannot acquire absolute title.”

Hence, the concurrent finding that Shiv Dev Kaur did not acquirean absolute title was affirmed.

8. The adjudication in the present case must hence proceed onthe foundation that Shiv Dev Kaur had a life interest in the property.

9. The essence of the submission of the appellants is that ShivDev Kaur having held a right which was personal in nature, she was notentitled to create a tenancy and, in any event, the tenant would cease tohave a surviving interest in that character upon her death. In this context,reliance was placed on the following observations contained in a decisionof a Bench of two judges of this Court in Ranvir Dewan v RashmiKhanna[2] where, Justice AM Sapre explained the concept of a life interestin the following terms:

“42.6 ... it is a settled principle of law that the “life interest” meansan interest which determines on the termination of life. It isincapable of being transferred by such person to others beingpersonal in nature. Such person, therefore, could enjoy the “lifeinterest” only during his/her lifetime which is extinguished on his/her death.”

2 (2018) 12 SCC 1

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A10. Now reading the will executed by Dr Hira Singh on 16September 1944, it is evident that while his son Shiv Dev Singh Grewalwas to be the absolute owner of his properties upon the death of thetestator, a life interest was created in favour of Shiv Dev Kaur. Shewas “entitled to settle and reside in this kothi as and when necessary”and “could spend the income from rent on herself” during her lifetime.BHowever, she was not entitled to transfer, mortgage, sell or gift theproperty. In consequence, the testator directed that his son would ensurethat the rent that was recovered would be spent in accordance with thedirections contained in the will. The testator’s priority was to ensure thatfollowing his death his widowed daughter had adequate financial means.CExpenses for the repairing of the property and for the payment of landrevenue were to be paid by Shiv Dev Kaur during her lifetime. Thedisposition specifically contemplated her entitlement to spend the incomereceived by way of rent on herself. Creation of a tenancy was an incidentof the life interest which she had. It was means of her generating rentalincome to sustain herself. This was authorised by the will.D

11. But the submission which has been urged on behalf of theappellants is that the life interest being personal to Shiv Dev Kaur, thetenancy which she created would stand terminated with her death. Inother words, according to the appellants, with the death of Shiv DevKaur, the first respondent became a trespasser on the property and wasEliable to be removed in consequence of the decree for possession.

12. This submission cannot be accepted both as a matter of firstprinciple and having regard to the precedent on the subject. Theexpression ‘landlord’ is defined in Section 2(c) of the East Punjab UrbanRent Restriction Act 1949 thus:F

“Sec.2 In this Act, unless there is anything repugnant in the subjector context, - ***

(c) ‘Landlord’ means any person for the time being entitled toGreceive rent in respect of any building or rented land whether onhis own account or on behalf, or for the benefit, of any otherperson, or as a trustee, guardian, receiver, executor or administratorfor any other person, and includes a tenant who sublets any buildingor rented land in the manner hereinafter authorised, and everyperson, from time to time, deriving title under a landlord;”

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A landlord within the meaning of Section 2(c) is not necessarilythe owner of the property. The definition of the expression ‘landlord’ isrelatable to an entitlement to receive rent in respect of any building orrented land. The inclusive definition of ‘landlord’ under Section 2(c) wouldtake 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 JudgeBench of this Court in KD Dewan v Harbhajan S Parihar[3], where itwas held thus:

“8. A perusal of the provision, quoted above, shows that thefollowing categories of persons fall within the meaning of landlord:(1) any person for the time being entitled to receive rent in respectof any building or rented land; (2) a trustee, guardian, receiver,executor or administrator for any other person; (3) a tenant whosub-lets any building or rented land in the manner authorised underthe Act; and (4) every person from time to time deriving titleunder a landlord. Among these four categories of persons, broughtwithin the meaning of “landlord”, Mr Sharma sought to derivesupport from the last category. Even so, that category refers to aperson who derives his title under a landlord and not under anowner of a premises. For purposes of the said category thetransferor of the title referred to therein must fall under any of thecategories (1) to (3). To be a landlord within the meaning ofclause (c) of Section 2 a person need not necessarily be theowner; in a vast majority of cases an owner will be a landlordbut in many cases a person other than an owner may aswell be a landlord. It may be that in a given case the landlordis also an owner but a landlord under the Act need not bethe owner. It may be noted that for purposes of the act thelegislature has made a distinction between an owner of apremises and a landlord. The Act deals with the rights andobligations of a landlord only as defined therein. Ownershipof a premises is immaterial for purposes of the Act.”

(emphasis supplied)

13. In B Bal Reddy v Teegala Narayana Reddy[4], a three JudgeBench of this Court held that the interest of a protected tenant subsistsso long as a protected tenancy has not been validly terminated. Moreover,3 (2002) 1 SCC 1194 (2016) 15 SCC 102

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Aeven if the protected tenant has lost possession without a valid terminationof that status, they would be entitled to the existence of protection undertenancy legislation. Justice UU Lalit, speaking for the Bench observed:

“11. It is well settled that the interest of a protected tenant continuesto be operative and subsisting so long as “protected tenancy” isnot validly terminated. Even if such protected tenant has lostpossession of the land in question, that by itself does not terminatethe “protected tenancy”. The observations of the Full Bench ofthe Andhra Pradesh High Court in Sada case [Sada v. Tehsildar,AIR 1988 AP 77 : (1987) 2 An LT 749 : 1987 SCC OnLine AP187] were quoted with approval by this Court in BoddamNarsimha v. Hasan Ali Khan [Boddam Narsimha v. Hasan AliKhan, (2007) 11 SCC 410] are quite eloquent: (Sadacase[Sada v. Tehsildar, AIR 1988 AP 77 : (1987) 2 An LT 749 :1987 SCC OnLine AP 187] , SCC OnLine AP para 44)

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“44. In our view, this contention is not correct. If a protectedtenant is already in physical possession on the date of notificationthere is no problem at all. If proceedings under Sections 19, 32 or44 are pending, the date of vesting gets itself postponed. If the“protected tenancy” stood validly terminated by the date ofnotification under Sections 19, 32 or 44, in that case, no certificateat 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 perthe Act and has not lost that status, whether he is in actualpossession or not on the date of notification, and is also to be“deemed” to be in possession under the first part of the Explanationsubject to Section 32(7) and the proviso to Section 38-E(1), theownership stands transferred straightaway to such protected tenantby 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 afull-fledged inquiry after notice to the landholders or after hearingobjections 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 secondpart of the Explanation to Section 38-E. Another reason for thisview is that the inquiry under Section 38-E(2) read with the 1973

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Rules referred to above, is to be done by the Tribunal (the RevenueDivisional Officer) and obviously his decision to grant the ownershipcertificate will not and cannot be jeopardised by the result of anyinquiry by a subordinate official like the Tahsildar, who deals withthe granting of possession to a “protected tenant”.”

(emphasis supplied)

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In the absence of such valid termination of “protected tenancy”,the interest of such protected tenant continued to be operativeand subsisting in law and could devolve on his legal heirs andrepresentatives who could then claim restoration of possession.”

The same view has been reiterated by a two Judge Bench inNandkishor Savalaram Malu (Dead) through LegalRepresentatives v Hanumanmal G Biyani (Dead) through LegalRepresentatives[5]:

“27. Once the tenancy is created either orally or in writing withrespect to a land or building then it is always subject to the relevantprovisions of the Transfer of Property Act, 1882 (hereinafterreferred to as “the TP Act”) and the State Rent Acts. Sections105 to 111 of the TP Act provide certain safeguards, create somestatutory rights, obligations, duties whereas the State Rent Acts,inter alia, specify the grounds to enable the lessor to evict thelessee/tenant from the demised premises.”

In V. Dhanapal Chettiar v Yesodai Ammal[6], a seven judge benchof this Court while considering state rent legislations, held thus:

“6. … the tenant continues to be a tenant even though thecontractual tenancy has been determined by giving of a valid noticeunder Section 106 of the Transfer of Property Act… in our opinionit will suffice to say that the various State Rent Control Acts makea serious encroachment in the field of freedom of contract. Itdoes not permit the landlord to snap his relationship with the tenantmerely by his act of serving a notice to quit on him. In spite of thenotice, the law says that he continues to be a tenant and he doesso enjoying all the rights of a lessee and is at the same time deemed 5 (2017) 2 SCC 622

6 (1979) 4 SCC 214

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Ato be under all the liabilities such as payment of rent, etc. inaccordance with the law.”

In Gian Devi v Jeevan Kumar[7], a Constitution Bench of thisCourt dealt with the question of whether the rule of heritability extendsto a statutory tenancy of commercial premises as much as it did toBresidential premises under the Delhi Rent Control Act 1958. The Courtwhile holding this in the affirmative discussed the concept of statutorytenant and held thus:

“2. … “Statutory tenant” is not an expression to be found in anyprovision of the Delhi Rent Control Act, 1958 or the rent controllegislation of any other State. It is an expression coined by theJudges in England and, like many other concepts in English law, ithas been imported into the jurisprudence of this country and hasbecome an expression of common use to denote a tenant whosecontractual tenancy has been determined but who is continuing inpossession of the premises by virtue of the protection againsteviction afforded to him by the rent control legislation. Thoughthe expression “statutory tenant” has not been used in any rentcontrol legislation the concept of statutory tenant finds recognitionin almost every rent control legislation.

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15. … It is also important to note that notwithstanding thetermination of the contractual tenancy by the landlord, the tenantis afforded protection against eviction and is permitted to continueto remain in possession even after the termination of the contractualtenancy by the Act in question and invariably by all the Rent Actsin force in various States so long as an order or decree for evictionagainst the tenant on any of the grounds specified in such Acts onthe basis of which an order or decree for eviction against thetenant can be passed, is not passed.

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31. … The termination of the contractual tenancy in view of thedefinition of tenant in the Act does not bring about any change inthe status and legal position of the tenant, unless there are contraryprovisions in the Act; and, the tenant notwithstanding thetermination of tenancy does enjoy an estate or interest in the G

tenanted premises. This interest or estate which the tenant underthe Act despite termination of the contractual tenancy continuesto enjoy creates a heritable interest in the absence of any provisionto the contrary…”

We have relied on the above decision only for its explanation ofthe meaning of the concept of a statutory tenant.

Speaking for the Division Bench of the Calcutta High Court in KrishnaProsad v Sarajubala[8], Bachawat, J observed thus:

“… The Rent Control and the Tenancy Acts create a specialworld of their own. They speak of life after death. The statutorytenancy arises phoenix-like out of the ashes of the contractualtenancy. The contractual tenant may die but the statutory tenantmay live long thereafter. The statutory tenant is an ex-tenant andyet he is a tenant…”

14. The provisions of the East Punjab Urban Rent Restriction Act1949 are available to the tenant. The tenant has a protected status. Thatstatus cannot be disrupted or brought to an end except on groundsspecified in the enactment. The first respondent in whose favour thetenancy was created would be covered under the definition of theexpression ‘tenant’ in Section 2(i)[9] of the East Punjab Urban RentRestriction Act 1949. The status of a statutory tenant enures as aconsequence of rent control legislation. The East Punjab Urban RentRestriction Act 1949 aims at regulating conditions of tenancy, controllingrents and preventing unreasonable eviction of tenants. For theadvancement of these objects, tenants are invested with rights andlandlords are subjected to obligations. The first respondent in whosefavour a tenancy was created acquired a status of a statutory tenantand that status does not stand obviated by the death of Shiv Dev Kaur.

8 AIR 1961 Cal 505. The above observation was also reiterated in Damadilal and Ors vParashram and Ors. (1976) 4 SCC 855.

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 abuilding or rented land and includes a tenant continuing in possession after thetermination of the tenancy in his favour, but does not include a person placed inoccupation of a building or rented land by its tenant, unless with the consent in writingof 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 amunicipal, town or notified area committee;”

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AThe remedy available to the appellants to remove the first respondentfrom the property is by pursuing eviction proceedings on one or more ofthe grounds available in the enactment. Section 13 lays down theprocedure for eviction of tenants. Only upon the satisfaction of theController that sufficient grounds exist for eviction of the tenant can anorder be passed directing the tenant to vacate the premises. The protectionBoffered to a statutory tenant can only be overcome by following theprocedure laid out in the enactment.

15. In Dahya Lala v Rasul Mahomed Abdul Rahim[10], aConstitution Bench of this Court dealt with a case where a mortgageewho was granted possession of land under a deed of mortgage hadCinducted a tenant on the land. The appellants as owners of the equityredemption applied under the Bombay Agricultural Debtors’ Relief Act1947 for redemption of the mortgaged land. An award was made on acompromise that the mortgagor was entitled to take possession from thetenant who had been inducted by the mortgagee. The tenant who wasDevicted applied for the restoration of possession under Section 29 of theBombay Tenancy and Agricultural Lands Act 1948. The High Courtupheld the plea on the ground that the tenant was entitled to continue inoccupation on the same terms on which he was inducted by themortgagee. Assailing the judgment of the High Court it was contendedby the appellants that a person could be said to lawfully cultivate landEwithin the meaning of Section 4 only if he had derived his right to cultivatedirectly from the owner of the land and not from some other personsuch as a mortgagee who had a limited interest in the land. Justice JCShah, speaking for the Constitution Bench held that under the Transferof Property Act 1882, the right of a tenant who is inducted by a mortgageeFin possession ordinarily comes to an end with the redemption of themortgage. However, that rule would have no application to theinterpretation of a statute such as the Bombay Tenancy and AgriculturalLands Act 1948 which had been enacted with the object of protectingpersons lawfully possessing agricultural lands. This Court held:

G“7. …But a tenant of the mortgagee in possession is inducted onthe land in the ordinary course of management under authorityderived from the mortgagor and so long as the mortgage subsists,even under the ordinary law he is not liable to be evicted by themortgagor. It appears that the legislature by restricting the H10 (1963) 3 SCR 1

exclusion to mortgagees in possession from the class of deemedtenants intended that the tenant lawfully inducted by the mortgageeshall on redemption of the mortgage be deemed to be tenant ofthe mortgagor. In our view, therefore, the High Court was right inholding that the respondent was entitled to claim the protection ofthe Bombay Tenancy and Agricultural Lands Act, 1948 as adeemed tenant.”

A similar view was held by a Full Bench of the Punjab and HaryanaHigh Court in Jagan Nath v Mittar Sain[11] where the High Court wasdealing with the question of whether by virtue of a tenant executing afresh rent note in favour of the mortgagee, the tenancy under themortgagor comes to an end and a new tenancy comes into being underthe mortgagee. The High Court held thus:

“(3) That a tenant inducted by the mortgagee remains a tenantduring the continuance of the mortgage and on the redemption ofthe 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 tobe its tenant even after redemption provided he has beeninducted bona fide and in the like manner as a prudent ownerwould have done for the proper management of the land. Even insuch a case, the operation of the lease cannot extend beyond theperiod for which it was granted. No lease can be granted if thereis an express prohibition in the mortgage deed.”

In G Ponniah Thevar v Nalleyam Perumal Pillai[12], ‘A’ diedleaving behind two widows. One of the widows instituted a suit forpartition which ended in a compromise under which the other widowwas given certain land for enjoyment during her life time. During her lifetime she had inducted a tenant. The respondents filed a suit to evict thetenant on the ground that his tenancy rights did not enure beyond the lifetime of the widow. The High Court granted the decree for eviction. Inappeal, this Court reversed the decree for eviction and construed theprovisions of the Madras Cultivating Tenants Protection Act 1955. Itheld thus:

11 1970 AIR (Punjab) 104

12 (1977) 1 SCC 500

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A“3. ...The Madras High Court had, apparently, followed certaindecisions of that court which had applied the principle that a life-estate holder cannot create a tenancy which could last beyondthe life of a life-estate holder. The view taken by the MadrasHigh Court and applied to statutory tenancies runs counter notonly to the principles underlying creation of statutory tenancy rightsBin agricultural land, throughout the length and breadth of thecountry, but, it seems to us to be obviously in conflict with theparticular statutory protection conferred upon cultivating tenantsin the State of Madras. These enactments are really meant forthe purposes proclaimed by them. The obvious effect of suchCstatutory provisions cannot be taken away or whittled down byforensic sophistry. Courts should not allow themselves to becometools for defeating clearly expressed statutory intentions.”

A statutory protection granted for the benefit of the tenants underspecific tenancy laws is to be viewed from a standpoint of protecting theDinterests of a particular class. Restrictions on recovery of possession ofthe premises let out to the tenants have been imposed for the benefit ofthe tenants as a matter of legislative policy.

16. There is a fallacy in the submission which was urged on behalfof the appellant. The appellant postulates that a life interest is personalEto the person who possesses it and the creation of a tenancy which willenure beyond her life amounts to a transfer of the life interest. What thesubmission overlooks is that the creation of the tenancy was an act ofthe person enjoying a life interest in the present case and was an incidentof the authority of that individual to generate income from the propertyfor her own sustenance. The creation of a tenancy is an incident of theFexercise of such an authority. The protection which is conferred uponthe tenant against eviction, except on specified grounds, arises as aconsequence of statutory prescription under rent control legislation. Thereason why the tenant is entitled to occupy the premises beyond the lifetime of the landlord who created the tenancy is simply as a result of aGstatutory enactment, in this case, the East Punjab Rent Restriction Act1949. It is the intervention of a legislative mandate which enures to thebenefit of the tenant. Once this has taken place, it was not open to thecivil court to entertain a suit for possession founded on the hypothesisthat the tenant is a trespasser.

17. In view of the above discussion, we have come to theconclusion 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 theproperty;

(ii) Under the terms of the will, Shiv Dev Kaur was entitled tosettle and reside in the property and benefit from the income arising outof the rent;

(iii) The life estate granted to Shiv Dev Kaur enabled her to createa tenancy and receive the rent from the tenants on the property. Shefulfilled the description of a ‘landlord’ under Section 2(c) of the EastPunjab 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 RestrictionAct 1949 acquired the character of a statutory tenant and was protectedunder it;

(v) The statutory protection afforded to the tenant did not ceaseto exist upon the death of Shiv Dev Kaur;

(vi) A suit for possession on the basis that the tenant was atrespasser after the death of Shiv Dev Kaur was not maintainable; and

(vii) The remedy of the appellants was to pursue evictionproceedings on the grounds contemplated by the East Punjab UrbanRent Restriction Act 1949.

18. For the above reasons, we are of the view that the judgmentof the learned single Judge dated 21 January 2016 does not suffer fromany error. The appeal shall accordingly stand dismissed. There shall beno order as to costs.

Civil Appeal Nos. 11087 and 11088 of 2018

19. The appeals shall also stand dismissed in the same terms andwith the same directions in Civil Appeal No 11086 of 2018.

Devika Gujral

Appeals dismissed.

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