RATAN LAL Vs. ADDL DISTRICT JUDGE BULANDSHAHAR

JUDGEMENT

(1.) RATAN Lal, the petitioner was the owner of shop No. 270 situated in Grouceganj, Bulandshahar of which one Naubat Singh was the tenant. He died on 31st August, 1974 leaving behind four daughters, all married and residing with their husbands outside Bulandshahar. He had also left his widow, who was residing in village Rampur district Bulandshahar. Thus, there was no heir of the deceased Naubat Singh who was capable of doing business in the shop. On the death of Naubat Singh, RATAN Lal, the petitioner filed an appli cation under Section 12/16 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as "the U. P. Act No. 13 of 1972") for declaring that the shop was vacant and for release of the same on the ground of personal requirement. The application was contested by Jaspal Singh, respondent No. 3 on the ground that he was the heir of the deceased Naubat Singh and was in occupa tion and possession of the shop in that capacity. He claimed that before his death on 4-7-1973, the deceased Naubat Singh had executed a will convey ing all his rights and properties including the tenancy right to the said respondent. He further alleged that he had been helping Naubat Singh in his business for the last several years and as he continued to remain in possession of the shop after the death of Naubat Singh, he was entitled to get the benefit of Section 14 of U. P. Act No. 13 of 1972. On 20-6-1975 the Rent Control and Eviction Officer rejected the appli cation and held that as respondent No. 3 had been living with the deceased Naubat Singh and was also assisting him in doing the business in the premises in dispute, he was entitled to get the tenancy rights of the premises in dispute under Section 14 of the U. P. Act No. 13 of 1972 (as it stood before amend ment made by U. P. Act No. 28 of 1976). According to his finding, the respondent No. 3 was in possession of the premises on 15th July, 1972 of which the landlord had full knowledge. Aggrieved by the rejection of the application, the Landlord preferred a revision before the District Judge, Bulandshahar. This was transferred to the Additional District Judge, who dismissed the same on 8-7- 1977. The Learned Additional District Judge, however, did not agree with the Rent Control and Eviction Officer that the respondent. No. 3 was entitled to the benefit of original Section 14 of U. P. Act No. 13 of 1972 but he held that since even after the death of Naubat Singh, on 31st August, 1974, respondent No. 3 had been permitted to continue in possession of the premises, he could get the benefit of amended Section 14, amended by U. P. Act No. 28 of 1976. Aggrieved by the judgment of the learned Additional District Judge, the landlord had preferred the present writ petition. The question that needs consideration is whether respondent No. 3 was entitled to the benefit of Section 14 of U. P. Act No 13 of 1972. Section 14, as it originally stood provided that any person in possession of a building, on the date immediately before the commencement of the U. P. Act No. 13 of 1972, with the consent of the landlord against whom no proceeding for eviction was pending, was entitled to get his tenancy regularised under this section. In the instant case, Naubat Singh, the tenant was, admittedly, alive, when this Act came into force. There was no dispute about his tenancy rights in 1972. As such, there was no question of respondent No. 3 getting or acquiring any right of a tenant over the head of Naubat Singh. Naubat Singh was occupying the shop in his own right as a tenant. Hence simply because respondent No. 3 was found helping Naubat Singh in his business that could not entitle him to get rights of a tenant. Under Section 14, the rights which are capable of being regularised are of a person who has occupied a building as a tenant, but since respondent No. 3 was not occupying the premises as a tenant, there was no question of his getting the benefit of Section 14 of the original Act. So far as amended Section 14 is concerned, the respondent No. 3 was not entitled to get its benefit. By the amendment made by U. P. Act No. 28 of 1976, which came into force on the 5th July, 1976, the Legislature provided that any person living in a building with the consent of the landlord on the date immediately before the commencement of U. P. Act No. 28 of 1976, would be entitled to get his tenancy rights regularised provided that no pro ceeding for his eviction was pending. It would, therefore, be seen that the main requirement of Section 14 was that such a person must have been found living with the consent of the landlord. In the instant case. Immediately after the death of Naubat Singh, the proceedings for release of the premises had been started by the Landlord in 1974. The landlord claimed that respon dent No. 3 was unauthorised occupant. He did not accord his consent to his occupation. The learned Additional District Judge was, therefore, not right in holding that the respondent No. 3 was entitled to the benefit of Section 14. In fact, the learned Additional District Judge assumed the consent of the landlord, which he could not do. A consent of a landlord needed for conferring the rights under Section 14 of the Act cannot be pre sumed or assumed. It has to be proved. It is possible that in some case the consent may be express whereas in others implied. But without proof of the consent, the benefit of Section 14 cannot be extended. The judgment of the learned Additional District Judge is, therefore, liable to be quashed. In fact, Sri Sudhir Chandra, counsel appearing for the respondent No. 3 could not support the ground on which the application of the landlord had been dismissed by the Courts below. Sri Sudhir Chandra, counsel for the respondent No. 3, however, conten ded that as Naubat Singh had bequeathed his properties including the tenancy rights of the present shop in favour of respondent No. 3, he became a tenant, being an heir of the deceased Naubat Singh and, as such, his possession could not be considered as unauthorised. This raises a controversy whether a tenant is entitled to create a will in respect of his tenancy right and to be queath the sane. Undoubtedly, tenancy right is a property right and there can be no difficulty in accepting that if the terms of a contract permit a lessee, he can create a will and assign his rights in the tenancy. In the instant case however, we have to consider and find whether the provisions of U. P. Act No. 13 of 1972 permit a tenant to bequeath his right. Reference in this connection may be made to Section 38 of the Act, which overrides the pro visions of the Transfer of Property Act that may be found inconsistent with the present Act. I am, therefore, not required to consider the controversy involved in the present case in the light of the provisions of the Transfer of Property Act. A review of the relevant provisions of the law would show that Section 11 of the U. P. Act No. 13 of 1972 imposes a restriction on letting without an allotment order. It says that no person shall let any building except in pursuance of an allotment order issued under Section 16. Whereas Section 11 prohibits person to let out any building, Section 13 puts a restriction on occupation of a building without an allotment or release. It is provided in Section 13 that if a person occupies a building without an allotment or release order, his possession would be unauthorised. Section 12 deals with the cases of deemed vacancy. This would mean that although actually there may net be a vacancy, but if one of the contingencies contemplated by Section 12 occurs, the premises would be deemed to be vacant and would be open for allotment. Clause (b) of Section 13(1) also says that no landlord or tenant will allow a building to be occupied by a person who is not a member of his family. Section 25 of the Act prohibits the sub-letting of the whole or part of the building by a tenant. Explanation (i) of Section 25 lays down that where the tenant ceases, within the meaning of clause (b) of sub-Section (1) or sub-Section (2) of Section 12, to occupy the building or any part thereof, he shall be deemed to have sublet that building or part. In the case of a sub-letting a landlord had been given a right under Section 20 (2) to evict the tenant. It would be found that the Legislature provided in the various provi sions referred to above that the tenant should not pass on his possession to a person other than a member of his family. This was done with a view to discourage underhand dealings in which a tenant could indulge under the garb of a valid transaction. The object with which the Act had been passed was to control the letting so that the houses may be available to a really needy man. This power of deciding as to who was needy has been given to the authority appointed under the Act. This object was likely to be defeated if the restrictions were not placed on the rights of a landlord to sub-let the premises. Under Section 108(j) of the Transfer of Property Act, subject to the con tract to the contrary, the lessee may transfer absolutely or by way of mortgage or sub-lease the whole or any part of his interest in the property. Under this section, a tenant has a right to transfer his leasehold interest. A sub-lease implies transfer of leasehold rights. Under Sections 25 and 20 (e) the restriction placed was that no tenant would be entitled to create a sub-lease. A sub-tenancy could not be created unless rights in the tenancy itself were transferred in favour of third person. It would appear that creation of sub- lease would in fact create a right in favour of a third person in the tenancy. In the U. P. Act No. 13 of 1972 when the provision was made that a tenant could not sub-let, it was obyious that the restriction was on his right to pass on the possession of a tenant to a third person. Accord ing to the submission of the learned counsel for the respondent, the phrase "sub-letting" has a fixed connotation and a case of a beneficiary could not be brought under its sweep. The argument was that since creation of a will does not amount to a transfer, no rights of a tenant are transferred under a will. It is true that under the Transfer of Property Act, a lease is a "transfer of the property'', hence as required by Section 5 it can only be effected by an Act of a living person. A lease cannot be created by a will as it is not a 65 transfer within the meaning of Section 5, the reason being that a will takes effect from the death of the testator. It may thus be seen that a will is not a transfer within the meaning of Section 5, but nevertheless the occupancy of the property is transferred to a person on the death of the testator or the tenant. A will is a document which is of no effect till the testator's death. Until then, it is a mere declaration of intention. A will is distinguishable from a gift inter vivos both as regards the time when it takes effect and the formalities required. A gift inter vivos takes effect forthwith, gift by will takes effect on death. Under the English law, a sub-lease of the residue of the whole term operates as assignment, if it be by deed. According to wood fall in his book 'Landlord and Tenant'' Vol. I 1968 Edition page 793" an assignment is the transfer or conveyance of some pre-existing term of reversion, estate right, title or interest. The party assigning is called the 'assignor' and to whom the assignment is made the assignee'. At page 822 of the same Book, the learned Author has stated that sub-lease for whole term is an assignment. The ordinary meaning of the word 'assignment' is the transfer of property legally made from one person to another. According to Job. B. Saunder's Vol. I, Second edition," the term 'assignee' is very comprehensive, it applies to all persons who take an estate either by act of party or by act of law, such as the executor of a lease or assignee." In this country, however, the law is different. No privity of estate is created between a lessor and a transferee from the lessee of a partial interest in the lease. It is, however, not necessary for me to dwell on this matter any further, inasmuch as so far as the present Act is concerned. I have already stated above that the prohibition placed on sub-letting has a wide amplitude and as said in Lakshmichand v. Nathumal Dull Chand 1965 A L.J. 1000, a sub-tenancy cannot be created unless rights are transferred in favour of a third person. As a result, it would follow that although Section 25 has used the expression 'sub letting, but for all intents and purposes, the restriction placed is on the trans fers. In Kunj Bihari Lal Gupta v. Shri Shivaji Mahraj A.I.R. 1973 All. 217 a similar contro versy arose in connection with Section 7 of the U. P. (Temporary Control of Rent and Eviction Act) No. 3 of 1947. This Court held that transfer of the tenancy rights would result in creating sub-tenancy and, as such, the tenant would be liable to eviction. Another argument advanced by the learned counsel for the respondent No. 3 that even if it was assumed that there was a restriction on the right of transfer of a tenant during his life time but since there is no restriction from creating a will which takes effect on the death, the creation of a will could not attract Sections 11, 13, 25 and 20 (e) of U. P. Act No. 12 of 1972. I am un able to find any substance in the submission. The fact that a will takes effect on death is not of any consequence inasmuch as in either event a tenant is per mitted to transfer his rights to a third person. In one case transfer takes effect in his life time whereas in the other on his death. There is no difference in the consequences which a transfer will have. Just as he cannot transfer by exe cuting a gift during his life, he cannot do so by a will. In Nathu and others v. Devi Singh, A.I.R. 1966 Punj. 266 a similar contention was rejected. The High Court held that there is nothing to justify for holding that the restriction placed is applicable only for the life time of a tenant. Such a construction on the language of the Act was held to be unwarranted. It held: ".........and it would be strange that when a tenant is prohibited during his life time from making any transfer of the premises as under his tenancy he is premitted to do so by the execution of the will to operate after his death." The same view was taken by the Calcutta High Court in Satyabrata Barterjee and another v. Ushaprobha Sarkar 1975 R.C.J. 507. I am in respectful agree ment with the view taken in the aforesaid cases and hold that the case of parting with the possession by will is clearly envisaged by Sections 11, 13, 25 and 20(e) of the Act. Another important provision, which may be noted here is Section 12. This Section contemplates cases of deemed vacancy. One of the provision is that when a tenant has allowed another person, who is not a member of his family to occupy the building, a vacancy is deemed to occur. The expression 'family' has been defined in Section 3(g) of the Act. As the word 'family' has been defined, the meaning given in the definition has to be kept in view while interpreting clause (b) of Section 2L (1). It is settled law that if the definition of a word is given in the Act itself, the Court has no right to travel beyond the expression and to expound the same on its notions of equity and justice. The relevant sub-clauses of the aforesaid definition given in clause (g) of Section 3 are: (i) spouse; and (ii) male lineal descendants. The respondent No. 3 could not bring his case to any one of the two clauses. Admittedly, he was not a male lineal descendant of the deceased. The word 'lineal' means in the direct line of descent. The expression 'male lineal descendant' has been construed to mean as it were one word signifying 'male in a line of males'. It may be read as it were a compound word 'male line'. These words are intended to refer to sons, grandsons etc. In order to be a 'male lineal descendant', he must be born out of the wedlock of his wife. Sri Sudhir Chandra, counsel for the respondent No. 3, however, con tended that even if the respondent No. 3 was not a member of the family of the deceased, clause (b) of sub-Section (1) of Section 12 did not apply inas much as he was the heir of the deceased tenant, he was entitled to continue to remain in possession of the premises as of right being the heir. He refer red to the definition of the word 'tenant' given in Section 3(a) of the Act, which is as follows: - "tenant" in relation to a building, means a person by whom its rent is payable and on the tenant's death - (1) In the case of a residential building, such only of his heirs as nor mally resided with him in the building at the time of his death; (2) In the case of a non-residential building, his heirs." Counsel contended that in order to be an heir under the aforesaid clause, it is not necessary that the person claiming to be a tenant under this clause must be born in the wedlock of the deceased. According to his contention even a testamentary heir is entitled to the tenancy rights and, as such, his possession would be deemed in his own right on the death of the testator. This gives rise to the question about the scope of the word 'heirs' used in Section 3ofU. P. Act No. 13 of 1972. Counsel contended that the word 'heirs', would include testamentary heirs as well. The word 'heir' has several meanings. In some of the cases this word has been interpreted as including the testamentary heirs whereas in some other cases it has been held as con fining its operation only to the heirs of the deceased to be determined in accordance with the personal law. The word 'heirs' does, I think, connote an idea of succession as well as an idea of consanquity. In the light of the various provisions of the Act, it appears that the word 'heirs' in relation to a tenant should be construed as referring to the persons entitled to the pro perty under the law of intestate succession applicable on the date when the testator dies. Counsel for both the parties have referred to the various dictionary meanings in support of their respective contentions. It is not necessary to refer to those inasmuch as I have already said above that in the context in which the word 'heir' has been used, it is amply clear that this expression must be confined to the persons receiving the property, if a tenant dies intes tate. In Wealth-tax Commissioner, A. P. v. Court of Wards A.I.R. 1977 S.C. 113 the Supreme Court has laid down the principle which would apply to such matters as follows: - "We think that it is not correct to give as wide a meaning as possible to terms used in a statute simply because the statute does not define an expression. The correct rule is that we have to endeavour to find out the exact sense in which the words have been used in a particular context. We are entitled to look at a statute as a whole and give an interpretation in consonance with the purpose of the statute and what logically follows from the terms used. We are to avoid obscure and absurd results." That apart, in the present case tenancy rights have not been expressly bequea thed by will. The material portion reads: - "Aur mere marne ke bad is karobar good will ke Malik Meri putri Shanti Devi Jaspal upnam Jassee Hongen aur unko dookan par kachchi arahat ke kam karne ka adhikar hoga........." Secondly, the heirs of the deceased (four daughters and wife) being alive and thus excluding 'Heirs' enumerated in class II of schedule amended to Hindu Succession Act, 1956. Respondent No. 3, nephew of deceased will not inherit the tenancy rights as an heir and therefore, he will not become tenant within the meaning of a tenant as defined in Section 3(a) (2) of U. P. Act No. 13 of 1972." In the result, the writ petition succeeds and is allowed. The judgments and orders of the Additional District Judge, Bulandshahar dated 8-7-1977 and that of the Rent Control and Eviction Officer dated 20- 6-1975 are quashed. The Control and Eviction Officer is directed to decide the release application of the petitioner afresh in accordance with law. The petitioner is entitled to his costs.