Case: Jagdish Chander Chatterjee and Ors Vs. Shri Kishan and Anr

properly terminated before the suit. The point for consideration is what is the position of the parties before the Court with regard to the relief claimed by the landlord in his eviction suit.9. It is now settled that after the termination of the contractual tenancy the statutory tenant has only a personal right to continue in possession till evicted in accordance with the provisions of the Act. It is pointed out by this Court in Anand Niwas (Private) Ltd. v. Anandji Kalyanji Pedhi, 1964 (4) SCR 892 at page 908 = (AIR 1965 SC 414 ):"A person remaining in occupation of the premises let to him after the determination of or expiry of the period of the tenancy is commonly though in law not accurately, called a "statutory tenant". Such a person is not a tenant at all; he has no estate or interest in the premises occupied by him. He has merely the protection of the statute in that he cannot be turned out so long as he pays the standard rent and permitted increases, if any, and performs the other conditions of the tenancy. His right to remain in possession after the determination of the contractual tenancy is personal: it is not capable of being transferred or assigned, and devolves on his death only in the manner provided by the statute". These observations have been made with reference to the provisions of the Bombay Rents Hotel and Lodging House Rates (Control) Act, 1947. But they equally apply to the provisions of the Act with which we are concerned. The protection given to B. N. Chatterji was personal to him and if that protection is withdrawn either because there is a change in the statute or because the person who is to be personally protected is no longer living, the question arises as to what is the position of the legal representatives of the deceased statutory tenant qua the landlord in a proceeding of the nature with which we are concerned.10. It is obvious that the appellant landlords right to proceed with the appeal with a view to obtain possession of his premises did survive under Order 22 Rule 4 read with rule 11, Civil Procedure Code. Where the right to sue and prosecute the appeal survives, the appellant is bound to cause the legal representatives of the deceased respondent to be made a party and proceed with the appeal. Therefore, the heirs and legal representatives of the aforesaid B. N. Chatterji were rightly brought on record and the appeal had to proceed.11. Under sub-clause (ii) of R. 4 of Order 22, Civil Procedure Code any person so made a party as a legal representative of the deceased respondent was entitled to make any defence appropriate to his character as legal representative of the deceased respondent. In other words, the heirs and the legal representative could urge all contentions which the deceased could have urged except only those which were personal to the deceased. Indeed this does not prevent the legal representatives from setting up also their own independent title, in which case there could be no objection to the court impleading them not merely as the legal representatives of the deceased but also in their personal capacity avoiding thereby a separate suit for a decision on the independent title.12. The heirs of the tenant purported to contend that after the death of the statutory tenant, they, as next heirs, enjoyed the status of tenant. For this reliance was placed on the definition of the word tenant given in Section 3, clause (vii) of the Act. According to the definition unless there is anything repugnant in the subject or context - "tenant" means the person by whom rent is, or but for a contract express or implied would be, payable for any premises and includes any person holding or occupying the premises as a sub-tenant or any person continuing in possession after the termination of a tenancy in his favour otherwise than under the provisions of the Act. It was contended before us that since the rent was payable by the heirs and in fact it was paid during the pendency of the proceedings, they were tenants within the definition. In our opinion, rent was not payable by the legal representatives and if the rent was paid by them during the course of the proceedings it was not because they were recognised as tenants by the landlord but because the amount was received by him without prejudice to his rights under the orders of the court. Indeed, if the original tenant had died before the contractual tenancy had been terminated then the heirs would have inherited the tenancy and in that sense the rent would have become payable by them. But that is not the position here. When B. N. Chatterji died, he was only a statutory tenant with a personal right to remain in possession till eviction under the provisions of the Act, and the heirs were incapable of inheriting any estate or interest in the original tenancy. It was also not shown to us that they fell within any other part of the definition of tenant reproduced above. Therefore, the heirs and legal representatives of the deceased B. N. Chatterji could not in their own right claim to be tenant within the meaning of the Act. Therefore, the only contentions that they could put forward in the appeal were the contentions appropriate to their representative character and not one which was personal to the deceased. The contention based on the ground of bona fide requirement by the landlord was personal to the statutory tenant and on his death the same is not open to his legal representatives unless there is anything in the provision of the Act which makes the legal representatives statutory tenants to the same extent as the deceased. It is not the case that there is any other provision of the Act which gives protection to the legal representatives of the deceased statutory tenant.13

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]7. In our opinion there is no substance in this appeal. The original tenant of the premises was B. N. Chatterji. The landlord had alleged in the suit that by a notice dated 26-6-1962 served upon the tenant, the tenancy had been duly terminated. This was not denied in the written statement nor was an issue demanded at the time of the trial. However, the point being essentially a point of law, the learned Judge in second appeal permitted both sides to address him on the point and came to the conclusion that the contractual tenancy had been duly terminated by a notice. In these circumstances, we do not think that there is any substance in the submission of the learned counsel for the appellant before us that the learned Judge should have remanded the case for a determination of that question.The heirs of the tenant purported to contend that after the death of the statutory tenant, they, as next heirs, enjoyed the status of tenant. For this reliance was placed on the definition of the word tenant given in Section 3, clause (vii) of the Act. According to the definition unless there is anything repugnant in the subject or context - "tenant" means the person by whom rent is, or but for a contract express or implied would be, payable for any premises and includes any person holding or occupying the premises as a sub-tenant or any person continuing in possession after the termination of a tenancy in his favour otherwise than under the provisions of the Act. It was contended before us that since the rent was payable by the heirs and in fact it was paid during the pendency of the proceedings, they were tenants within the definition. In our opinion, rent was not payable by the legal representatives and if the rent was paid by them during the course of the proceedings it was not because they were recognised as tenants by the landlord but because the amount was received by him without prejudice to his rights under the orders of the court. Indeed, if the original tenant had died before the contractual tenancy had been terminated then the heirs would have inherited the tenancy and in that sense the rent would have become payable by them. But that is not the position here. When B. N. Chatterji died, he was only a statutory tenant with a personal right to remain in possession till eviction under the provisions of the Act, and the heirs were incapable of inheriting any estate or interest in the original tenancy. It was also not shown to us that they fell within any other part of the definition of tenant reproduced above. Therefore, the heirs and legal representatives of the deceased B. N. Chatterji could not in their own right claim to be tenant within the meaning of the Act. Therefore, the only contentions that they could put forward in the appeal were the contentions appropriate to their representative character and not one which was personal to the deceased. The contention based on the ground of bona fide requirement by the landlord was personal to the statutory tenant and on his death the same is not open to his legal representatives unless there is anything in the provision of the Act which makes the legal representatives statutory tenants to the same extent as the deceased. It is not the case that there is any other provision of the Act which gives protection to the legal representatives of the deceased statutory tenant.13. As already stated, all contentions except those which are personal to the deceased were open to the legal representatives to put forward in the second appeal. The contention about the validity of the notice for the termination of the tenancy was one such contention on which they could have supported the decision of the District Court. But as already pointed out the learned Judge has correctly decided that the contractual tenancy had been duly terminated by notice. Apart from that point no other point was urged before the High Court or before us and hence the present appeal must fail.