BHANVARLAL LALCHAND SHAH Vs. KANAIYALAL NATHALAL INTWALA

JUDGEMENT

(1.) This Civil Revision Application has been referred to the Full Bench by A. M. Ahmadi. J. for determination of the following questions:- (1) Can it be validly contended that the decision of the Full Bench of this Court in Babubhais case (1980) 21 G.L.R. 103 i.e. per incuriam as it totally ignores the decision of the Supreme Court in J. S. Murarjis case (A.I.R. 1973 S.C. 772) rendered by a larger bench of four learned judges approving the ratio in Anand Nivas case (A.I.R. 1965 S.C. 414) ? or In any case in view of the latest decision of the Supreme Court in Ganapati Sitarams case (1981) 4 SCC 143 A.I.R. 1981 SC 1956 holding that the ratio of J. S. Murarjis case still holds the field can it be said that the decision of the Full Bench in Babubhais case stands impliedly overruled ? (2) If it is held that the ratio of Anand Nivas case as approved by the Supreme Court in J. S. Murarjis case still holds the field can the petitioner claim to be a tenant by virtue of the bequest made in his favour? (3) Even if it is assumed that the deceased Maniben had an interest in the demised premises. was the character of her interest such as could be bequeathed by a will in favour of a total stranger i.e. the petitioner? and (4) Does the bequest made in favour of the petitioner tantamount to `transfer by Maniben of her interest in the premises since the bequest takes effect after her death a Mr. D. F. Amin the learned Counsel appearing for the petitioner and Mr. S. M. Shah the learned Counsel appearing for the respondents agreed for disposing of the main Civil Revision Application itself and advanced arguments on the merits of the main Civil Revision Application.

(2.) This Civil Revision Application arises out of the order passed by the Extra Assistant Judge Baroda in Regular Civil Appeal No. 70 of 1977. The respondent herein filed newly-numbered Rent Suit No. 47 of 1975 on the file of the Small Causes Court at Baroda for recovering vacant possession of a rented shop situated near Kalamandir Talkies Baroda. The short facts of the case are that the suit shop is owned by the plaintiff in the suit and he let out the shop to one Maniben Dhirajlal on a monthly rent of Rs. 22.00. Maniben was carrying on ghee business in the said shop and before her death she bequeathed the tenancy right in the suit shop by will to the defendant in the suit. The will in favour of the defendant was probated. The defendant contended that Maniben had heritable interest in the tenancy right and as such she has validly bequeathed the tenancy right in Favour of the defendant in the suit. The defendant has also contended that Maniben is a contractual tenant. The Small Causes Court at Baroda holding that Maniben has heritable interest in the tenancy right and that she has validly bequeathed the said right in favour of the defendant dismissed the suit filed by the plaintiff. Aggrieved by the said order of dismissal the plaintiff in the suit preferred appeal to the Extra Assistant Judge Baroda. The Extra Assistant Judges Baroda holding that the tenancy right could not have been bequeathed by way of a will to a third party who was not doing business with the deceased tenant nor in any way connected with the members of the deceased family allowed the appeal and decreed the suit as prayed for by the plaintiff. It is as against this order the defendant in the suit has come forward with the present Civil Revision Application. The learned single Judge of our High Court who heard the application for final disposal observed that the question that arises in the Revision Application is as to whether Maniben who was entitled to the protection of the Bombay Rents Hotel and lodging House Rates Control Act 1947 after the determination of the lease by efflux of time had an interest in the shop which she could bequeath by will in favour of any person of her choice? During argument before the learned single Judge Mr. Amin the learned Counsel appearing for the petitioner herein conceded that the question whether Maniben was entitled in law to bequeath her tenancy rights in the suit shop if any by a will had to be decided on the footing that she was a statutory tenant. The learned single Judge after referring to the decisions in Anand Nivas Private Ltd. v. Anandji Kalyanjis Pedhi and others ( AIR 1965 SC 414) Calcutta Credit Corporation Ltd. and another v. Happy Homes (Private) Ltd. ( AIR 1968 SC 471) J. C. Chatterjee & Others v. Shri Sri Kishan Tandon and another ( AIR 1972 SC 2526) and Jai Singh Murarji & Co. v. M/s. Sovani (P) Ltd. & Ors. ( AIR 1973 SC 772) observed that the law as it stood before the decision rendered in Damadilal and others v. Parashram and others ( AIR 1976 SC 2229) was that the tenants rights to remain in possession after the determination of the contractual tenancy was personal and could not be transferred or assigned to any person during the tenants lifetime and on the death of the tenant it devolved only in the manner provided by the satute. In the decisions prior to Damadilal and others v. Parashram and others ( AIR 1976 SC 2229) according to the learned single Judge the Supreme Court approved the law laid down by the Courts in England to the effect that a statutory tenant has no estate or property in the premises he occupies because he retains possession by virtue of the Rent Act and not as being entitled to a tenancy. In Damadilal and others v. Parashram and others ( AIR 1976 SC 2229) the Supreme Court interpreting sec. 2(i) along with sec. 12(i)(a) of the M.P. Accommodation Control Act (41 of 1961) came to the conclusion that the statutory tenant has a heritable interest in the premises occupied by him. The learned Judge has also adverted to our Full Bench decision in Babubhai v. Bharatkumar ((1980) 21 G.L.R. 103) in which the Full Bench after relying on the decisions in Damadilal others v. Parashram and others ( AIR 1976 SC 2229) and V. Dhanapal Chettiar v. Yesodai Ammal ( AIR 1979 SC 1745) laid down that a statutory tenant has an interest in the property which can be inherited on his demise. The learned Judge found that there is conflict between the decision rendered before Damadilal case and the principle propounded in Damadilals case. While the decision in Damadilal and others v. Parashram and others ( AIR 1976 SC 2229) is rendered by a Bench of three Judges the position in Jai Singh Murarji & Co. v. M/s. Sovani (P) Ltd. Ors. ( AIR 1973 SC 772) which follows the prior decisions referred above is rendered by a Bench of four Judges. This larger Bench decision was not brought to the notice of the learned Judges who rendered the decision in Damadilal and others v. Parashram and others ( AIR 1976 SC 2229) but in the subsequent decision rendered by the Supreme Court in Ganapati Sitaram Balvalkar v. Waman Shripal Mage ( (1981) 4 SCC 143) a Division Bench held that the principle laid down in Jai Singh Murarji & Co. v. M/s. Sovani (P) Ltd. & Ors. (AIR 11973 SC 772) holds the field in so far as the Bombay Rent Act is concerned. The learned single Judge after referring to the decision in Ganpat Ladha v. Shashikant Vishnu Shinde ( AIR 1978 SC 955) and Ravindra Ishwardas Sethna v. Official Liquidator High Court of Bombay ( AIR 1983 SC 1016) wherein it was held that the Rent Act completely prohibits giving the possession of the premises on licence or on sub-lease in view of secs. 13 and 15 of the Rent Act referred the matter to the Full Bench after formulating the questions we have already mentioned in paragraph supra. It is thus before the Full Bench for our decision.

(3.) As we have seen from the facts of the case the petitioner herein got the property from Maniben through will and wants to enjoy the suit property which is a non-residential one as the heir of Maniben. This is questioned by the respondent-landlord and he has filed the suit for eviction. The Act which applies to this case is the Bombay Rents Hotel and Lodging House Rates Control Act 1947 (Act 57 of 1947). This Act defines tenant under section 5 as follows:-