VASANT TATOBA HARGUDE Vs. DIKKAYA MUTTAYA PUJARI

JUDGEMENT

(1.) This case raises a question of importance as to the authority of any statutory tenant to assign his tenancy rights and is referred to the Division Bench by Kanade, J., because of his difference on this point with the view of Mrs. Justice Sujata Manohar indicated in the case of Hargovind Dha-ramsey & Co. v. Ruby & Co..The facts so far as relevant to the point raised are not in dispute. The petitioners are the heirs of the landlord -- original defendant. He was the owner of house C. S. Nos. 319 and 320 situated at Peth Bhag, Sangli. House C. S. No. 319 with which we are concerned, consisted of a ground floor and the first floor. Both the houses were let out to one Labhashankar Pandya in the year 1940. He sublet the ground floor of House No. 319 to one Gopalkrishna. He was running a hotel therein. Sub-tenancy of Gopalkrishna was held to be valid in an earlier Civil Suit No. 138 of 1956 by the landlord against him and the tenant, long before Section 15 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (referred to hereinafter as 'the Rent Act') was amended in the year 1959. The landlord again instituted two suits for possession against the tenant and the sub-tenant being Suit Nos. 218 and 219 both of 1961. Suit against the tenant -- Pandya -- was decreed and the landlord ultimately got possession of the first floor in execution of the decree on 7th July, 1964. The suit against the sub-tenant, Gopalkrishna, was, however, dismissed on 29th September, 1962. He thus himself became the tenant under Section 14 of the Rent Act.

(2.) Gopalkrishna died on 8th October, 1970. Before his death he assigned, his business of hotel along with the tenancy rights in the ground floor by an assignment deed dated 13-10-1969 in favour of the present plaintiff- respondent Pujari. The respondent thereupon instituted a declaratory Suit No. 351 of 1969 on 12-12-1969, before the death of the tenant of his having become the tenant of the 1st floor on the strength of the1 said assignment deed. This Suit, and Suit No. 273 of 1969 by the landlord against him and Gopalkrishna for enforcing his right of access from the ground floor stair-case to the first floor were tried together. This suit was dismissed on 30-3-1973 though the landlord's suit was decreed with which we are no more concerned in this case. On appeal by the plaintiff, however, the same was allowed and the suit has been decreed on 30-3-1974 declaring the plaintiff to have become the tenant. Validity of this decree is challenged by the heirs of the original landlord in this Special Civil Application.

(3.) That the assignor Gopalkrishna was a statutory tenant is not in dispute, The only question is whether statutory tenant's is competent to so assign his tenancy rights in the premises to the plaintiff. Assignment of tenancy rights under the Bombay Rent Act can be effective and valid, only if it is covered by the proviso to Section 15(1) thereof, Mr. Ajit Shah, the learned Advocate, appearing for the respondent-plaintiff, relied on this proviso before Kanade, J. It has, however, consistently been held by this Court that statutory tenant possesses only a right to remain in possession and he does not hold any transferable or heritable estate or interest in the premises so held by him as such statutory tenant. This view was affirmed by the Supreme Court in Anand Nivas Pvt. Ltd. v. Anandji. This case further holds that prohibition against transfer and assignment under Section 15(1) of the Rent Act, and relaxation thereof under the proviso, is applicable only to the contractual tenant, and not to the statutory tenant, whose tenancy is per se not transferable. Mr. Rane, the learned advocate for the defendant-petitioner, relied on this judgment before Kanade, J. in support of his contention that statutory tenant did not possess any transferable interest and Section 15(1) or the proviso on which reliance was placed was inapplicable to the tenancy of the statutory tenant.