B.L. Shah v. K.N. Intawala

1 BHAVARLAL LABHCHAND SHAH ##### KANAIYALAL NATHALAL ". INTAWALA A B c D E F G H ' JANUARY 7, 1986 [E.S. VENKATARAMIAH AND R.B. MISRA, JJ.] Bombay Rents Hotel and Lodging House Rates Control Act, 1947 (Act 57 of 1947) section 5(11) (c) (ii) and 15(i) Tenant, meaning of - Whether a person occupying a non-residen tial premises as a tenant after the contractual per.iod is o'1er can bequeath his right to occupy the property as a tenant under a will in favour of a legatee who, is not a member of his family carrying on business, trade or storage with him in the said premises at the time of his death under the Bombay Rent Control Act. The respondent who is the landlord of a building situated at Baroda had leased it out in fa'1our of one Bai Maniben Dhirajlal Shah on a monthly rent of Rs. 22 for carry ing on business l.n the said shop premises. Before. her death she bequeathed her tenancy right ln the said shop by a will in fa'1our of the petitioner in the•special leave petition. After her death the will was probated. Bai Maniben was not a contractual tenant but her right to tenancy was only a right protected by the Bombay Rent control Act. The respondent instituted a suit in Rent Suit No. 47 of 1975 on the file of the Small Causes Court at Baroda for recovering vacant possession of the said building contending that the petitioner was not a tenant and could not contiune any longer in it. By way of defence the petitioner set up the will and asserted that he had become a tenant thereunder and could not be evicted from the premises. The Small Causes Court agreeing with the petitioner that he had acquired the tenancy right under the will dismissed the suit• The Extra Assistant Judge, Baroda allowed the landlord's appeal holding that the tenancy right could not have been bequeathed under the will in favour of a third party like the petitioner who was not a member of the tenant's family doing business with the tenancy pefore her death. Consequently the petitioner was directed to deliver possession of the premises to the landlord. The petitioner preferred Civil Revision Application No. 1500 of A B c D F G 2 SUPREME COURT REPORTS (1986] 1 S.C.R. 1978 in the High Court of Gujarat against the said judgment of the Extra Assistant Judge. The Learned Single Judge of the High Court who first heard the application felt that Bai Maniben who was entitled to the protection of the Act even after the determination of the lease had an interest in the premises which could be bequeathed by her. in favour of any person of her choice under a will irrespective of the fact whether the legatee was a member of her family carrying on business, trade or storage in the said premises along with her at the time of her death. He however, referred the matter to a larger Bench, since substantial issues of law had arisen for consideration. Ultimately, the Full Bench by its judgment dated September 24, 1985 held that the petitioner could not acquire under the will any interest in the tenancy in question and that the decision of the Extra Assistant Judge, Baroda did not call for any interference. Hence the petitioner's special leave petition. Dismissing the petition, the Court llELD: 1.1 On a true interpretation of the provision of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 a bequest of the right to the tenancy in respect of premises referred to in section 5(ll)(c)(ii) of the Act. after the determination of the lease, which is protected by the Act cannot be made under a will in favour of a person not referred to in that sub-clause. (14 A-Bl There is no justification to saddle the landlord with the liability to treat a stranger who is not referred to in sub-clause (ii) of section 5(ll)(c) of the Act as a "tenant" on the basis of a bequest made under a will by the tenant. There can possibly be no justification either in law or in equity to extend the meaning of the expression "tenant" so as to include such strangers also. If such a right of a tenant were to be recognised, nothing prevents him from transferring the building to any body he likes who is totally unconnected with him or who is not dependent on him such as a temple, a church, a mosque, a hospital, a foreigner, a multinational company and any other person of any country. The Legislature could never have intended to confer such a right on him and exclude the right of a landlord to get back possession of his building for ever even after the death of the tenant with whom he had entered into contract initially. (10 C-E; 14 B-C] 1.2 Both sub-clauses (i) and (ii) of clause (c) of sub-section (11) of section _5_ of the Act which deal with the _1_ B.L.SHAH v, K.N. INTAWALA 3 ' -I I . I . ?!" devolution of the right to tenancy on the death of a tenant in respect of residential premises and premises let for business trade or storage respectively do not provide that the said right of tenancy can devolve by means of testamenbary disposition on a legatee who is not referred to in the respective sub-clauses, It has, therefore, to be understood that even the extended meaning given to the expression "tenant" by subsection ( 11) of se.ction 5 of the Act does not authorise the disposition of the right to the tenancy of the premises governed by the Act under a will, [ 6 E-G I thereof. [6 G4!; 7 A-BJ Gian Devi v. Jeevan Kumar, A;J.R. 1985 S,C. 796; and Jaspal Singh v. The Additional District Judge, Bulandsbahr & Ors., A.I.R. 1984 S.C. 1880 referred to. Dr. Anant Trl amback Sabnie v. · Vasant Pratap Pandit, A.J.R, 1980 Bombay 69 approved, , Bbavarlal Labhchand Shah v. Kanaiyalal Nathalal Intawala, C.R.A, 1500/1978 dated 24,9.85 affirmed. 2. It is not open to the Court by judicial construction to extend the right to inherit the right to the tenancy of the premises let out for business, trade or storage to persons who are not members of the tenant's family who claim under testamentary succession, when the Legislature has restricted such a right only to any member of a tenant's family carrying on business, trade or storage with the tenant at the time of his death. [IO F-G) (The Court, however, left open the wider proposition that a statutory tenancy which is personal to the tenant cannot be bequeathed at all under a will in favour of anybody). 1.3 Ordinarily it is only an interest that can be inherited that can be bequeathed. But the heritability of a tenancy after the determination of the lease, which is protected by the Act is restricted in the case of residential premises only to the members of the tenant's family mentioned in sub-clause (i) of clause (c) of section 5(11) of the Act and in the case of premises let for business trade or usage to members belonging to the family of the tenant carrying on business, trade or storage with the tenant in the premises at the time of the death of the tenant as may continue after his death to carry on the business, trade or storage, as the case may be, in the said premises and as may be decided in default of the agreement by the Court as provided in sub-clause (ii) · A B c D E F G H A B c D E F G H 4 SUPREME COURT REPORTS [1986] 1 s.c.R. CIVIL APPELLATE JURISDICTION : Special Leave Petition ~.j (Civil) No. 14036 of 1985. From the Judgment and order dated 24.9.1985 of the Gujarat High Court in Civil Revision Application No. 1500 of 1978. S.H. Sheth and S.C. Patel for the Petitioner. The Judgment of the Court was delivered by VKNKATARAMIAR, J. The questi.on for consideration in **this** **special** **leave** **is** **whether a person occupying a** **non-resi·-** **dential** **premises** **as** **a tenant** **after** **the** **contractual** **period** **is** over can bequeath his right to occupy the property as a tenant **under a** **will** **in** **favour** **of** **a** **legatee** **who** **is** **not a** **member** **of** **his** family carrying on business, trade or storage with him in the **said** **premises** **at** **the time** **of** **his** **death under the** **provisions** **of** the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Act 57 of 1947) (hereinafter referred to as 'the act') as in force in the State of Gujarat. The respondent who is the landlord of a building **situated** **at** **Baroda had** **leased** **it** **out** **in** **favour** **of** **one Bai** Maniben Dhira'. lal Shah on a monthly rent of Rs. 22. Maniben **was** **carrying** **on** **business** **in** **the** **said** **shop premises** **and** **before** her death she bequeathed her tenancy right in the said shop by a will in favour of the petitioner. After her death the will was probated. The Petitioner who had got into possession of the premises in question claimed that Maniben had a tenancy right under the Act which was heritable and as such she could validly bequeath the tenancy right in his favour. It was however admitted by the petitioner that she was not a **contractual** **tenant but her** **right** **to** **tenancy** **was** **only** **a** **right** protected by the Act. The landlord instituted a suit in Rent Suit No. 47 of 1975 on the file of the Small Causes Court at **Baroda** **for** **recovering** **vacant** **possession** **of** **the** **said** **building** **contending** **that** **the** **petitioner** **was** **not a tenant** **and** **could** **not** **continue** **any** **longer** **in** **it.** **By** **way** **of** **defence** **the** **petitioner** **set** **up** **the** **wi 11** **referred** **to above** **and** **asserted** **that** **he** **had** **become a tenant thereunder** **and** **could not** **be** **evicted** **from** **the** **premises.** **'lll.e** **Small Causes Court** **agreeing** **with** **the** **petitioner** that he had acquired the tenancy right under the will dismissed the suit. The landlord filed an appeal before the **Extra** **Assistant** **Judge, Baroda** **against** **the decree** **dismissing** the suit. The Extra Assistant Judge, Baroda allowed the appeal holding that the tenancy right could not have been bequeathed ' ' ## . \ •L \ \ ### ·~ \ ###### _)_ B.L.SHAH v. K.N. INTAWALA [VENKATARAMIAH, J.] 5 under the will in favour of a third party like the petitioner **who** **was** **not** **a** **member** **of** **the** **tenant's** **family** **doing** **business** with the tenant before her death and he directed the petitioner to deliver possession of the premises to the landlord. Aggrieved by the judgment of the EKtra Assistant Judge, Baroda the petitioner filed a revision petition before the High Court of Gujarat in Civil Revision Application No. 1500 of 1978, The learned Single Judge of the High Court who first heard the Civil Revision Application· felt that Maniben who was entitled to the protection of the Act even after the determination of the lease had an interest in the premises which could be bequeathed by her in favotir of any person of her choice under a will irrespective of the fact whether the legatee was a member of her family carrying on business, trade or storage in the said premises along with her at the time of her death. He **however** **referred** **the matter** **to** **a** **larger** **Bench** **since** **substan-** tial issues of law had arisen for consideration. Ultimately the case was heard by a Full Bench of the Gujarat High Court. The Full Bench by its judgment dated September 24, 1985 held that the petitioner could not acquire under the will any interest in the tenancy in question and that the decision of the Extra Assistant Judge, Baroda did not call for any interference. Aggrieved by the judgment of the Full Bench of the High Court the petitioner has filed this special leave petition.under Article 136 of the Constitution. **After** **we** **heard** **the** **learned counsel** **for** **the** **petitioner** **we** **came** **to** **the** **conclusion** **that** **there** **was** **no** **informity** **in** **the** judgment of the High Court but we were however of the view **that** **we** **shoUld** **set** **out our reasons** **in** **support** **of** **the** **decision** having regard to the contentions very strenuously urged before us by the learned counsel for the petitioner. **The** **expression** **'tenant'** **has been defined** **in** **sub-section** (11) of section 5 of the Act thus :**"5(11).** **'tenant'** **means** **any person** **by** **whom** **or** **on** **whose** **accoi.Jnt** **rent** **is** **payable** **for** **any premises and includ.es** (a) Such sub-tenants and other persons as have **derived** **title** **under a** **tenant** **before** **the** **commence-** ment of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Ordinance,1959 (Born. Ord. No.III of 1959). **(aa)** **any** **person** **to** **whom** **interest** **in** **premises** **has** **been** **transferred** **under** **the** **proviso** **to** **sub-setion** (1) of section 15 ; A B c D E F G H A B c D E F G H 6 SUPREME COURT REPORTS (19861 1 s.c.R. (b) any person remaining, after the determination of the lease, in possession, with or without the assent of the landlord, of the premises leased to such person or his predecessor who has derived title before commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Ordinance (Born. Ord. No. III of 1959), (c)(i) in relation to premises let for residence, any member of the tenant's family residing with the tenant at the time of or within three months immediately preceding the death of the tenant as may be decided in default of agreement by the Court, and (ii) in relation to premises let for business, **trade or** **storage** **any. member** **of** **the** **tenant's** **family** **carrying** **on** **business,** **trade or** **storage** **with** **the** tenant ·in the said premises at the .time of the death of the tenant as may continue, after his **death,** **to** **carry** **on** **the** **business,** **trade or** **storage,** as the case may be in the said premises and as may be decided in default of agreement by the Court." We are concerned in this case with a bullding which is **let** **for business** **and** **insofar as business premises are concern-** ed it provided in section S(ll)(c)(ii) that any member of the tenant's family carrying on business, trade or storage wl.th the tenant in the premises at th~ time of the death of the **tenant** **as** **may** **continue,** **after** **his** **death,** **to** **carry on** **the** **business** **trade or** **storage,** **as** **the** **case** **may** **be** **in** **the** **said** premises and as may be decided in default of agreement by the Court shall be treated as a tenant. It is significant that both sub-clauses (i) and (ii) of clause (c) of sub-section (II) of section 5 of the Act which deal with the devolution of the right to tenancy on the death of a tenant in respect of residential premises and premises let for business, trade or storage respectively do not provide that the said right of **tenancy can devolve** **by** **means** **of** **testaIIEntary** **disposition** **on** **a** **legatae** **who** **is** **not.referred** **to** **in** **the** **respective** **sub-clauses.** **It** **has,** **therefore,** **to** **be understood** **that** **even** **the** **extended** meaning given to the expression 'tenant by sub-section (II) of section 5 of the Act does not authorise the disposition of the right to the tenancy of the premises governed by the Act under a will. Ordinarily it is only an interest that can be inherited that can be bequeathed. But the heritability of a tenancy **after** **the** **determination** **of** **the** **lease,** **which** **is** **protected** A B c D E F G H ' **t-** **<t.** # **E** " #### . L ' ' B.L.SHAH. _v":_ K.N. INTAWA!A [vENKATARAMIAH, J. l 7 by the Act is restricted. in the case of residential premises only to the members of the tenant's family mentioned in sub-clause (i) of clause (c) of section 5(11) of the Act and **in** **the** **case** **of** **premises** **let** **for** **business,** **trade** **or** **usage** **to** members belonging to the family of the tenant carrying on **business,** **trade** **or** **storage** **with** **the** **tenant** **as** **may** **continue** **after** **his,death** **to** **carry** **on** **the** **business,** **trade or** **storage** **as** **the case** _**tilaJ**_ **be** **in** **the** **said** **premises** **and** **as** **may** **be** decid~d **in** default of the agreement by the Court as provided in subclause (ii) thereof. When the statute has imposed such a **restr.iction,** **it** **is** **not** **possible** **to** **say** **that** **the** **tenant can** bequeath the right to such tenancy in the case of premises let **for** **business,** **trade** **or** **storage** **in** **favour** **of** **a person** **not** possessing the qualification referred to in section 5(11) (c) (ii) of the Act. The petitioner admittedly is not a person possessing the said qualification. It is appropriate to refer here to the following observations made by A.N. Sen, J. who has written the main judgment of the case in Gian Devi v. Jeevan Kumar A.I.R. 1985 S.C. 796 at page 810 :-. **"In** **the** **absence** **of** **the** **provision** **contained** **in** **Sub-** section 2(1) (iii), the heritable interest of the heirs of the statutory tenant wouid devolve on all **the** **heirs** **of** **the** **'so** **called** **statutory** **tenant** **[1 ]** **on** **his** **death** **and** **the** **heirs** **of** **such tenant** **would** **in** **law** step into his position. This sub-section (iii) of s. 2(1) seeks to restrict this right in so far as **the** **residential** **premises** **are** **concerned.** **The** **herit-** **ability** **of** **the** **statutory** **tenancy which** **otherwise** **flows** **from** **the** **Act** **is.** **restricted** **in** **case** **of** **resi-** **dential** **premises only** **to·** **the** **heirs** **herein** **are** **entitled** **to** **remain** **in** **possession** **and** **to** **enjoy** **the** **protection** **under** **the** **Act** **in** **the** **manner** **and** **to** **the** extent indicated in section 2(1) (iii), The Legis**lature** **which under** **the** **Rent** **Act** **affords** **protection** **against** **eviction** **to** **tenants** **whose** **tenancies** **have** **been terminated** **and** **who** **continue** **to** **remain** **in** **possession** **and** **who** **are** **generally** **tenned** **as** **statu-** **tory** **tenants,** **is** **perfectly** **competent** **to** **lay** **down** **the** **manner** **and** **extent** **of·** **the** **protection** **and** **the** **rights** **and· obligations** **of** **such** **tenants** **and** **their** heirs. S. 2(1) (iii) of the Act does not create any **additional** **or** **special** **right** **in** **favour** **of** **the** **heirs** **of** **the** **'so** **called** **statutory** **tenant'** **on** **his** **death,** **but seems** **to** **restrict** **the** **right** **of** **the** **heirs** **of** **such tenant** **in** **respect** **of** **residential** **premises.** _**As**_ 8 SUPlill1E COURT REPORTS [1986] 1 S.C.R. " B c D E F H the status and rights of a contractual tenant even after determination of his tenancy when the tenant is at times described as the statutory tenant, are fully protected by the Act and the heirs of such tenants become entitled by virtue of the provisions of the Act to inherit the status and position of the statutory tenant on his death, the Legislature which has created this right has thought it fit in the case of residential premises to limit the rights of the heirs in the manner and to the extent provided ins. 2(1) (iii). It appears that the Legislature has not thought it fit to put any such restrictions with regard to tenants in respect of commercial premises in this Act," (underlining by us) In the above decision this Court was considering . the provisions of the Delhi Rent Control Act in which restriction had been placed on the heritability of the statutory tenancy in the case of residential premises only to the heirs mentioned in section 2(1) {iii) of the Delhi Rent Control Act and ·no such restriction had been placed with regard to ~he right of tenancy in respect.of commercial premises. Proceeding further A.N. Sen, J. observed in the above decision at page 813 thus : "In the Delhi Act, the Legislature has thought it fit to make provisions regulating the right to inherit the tenancy rights in respect of residential premises. The relevant provisions are contained in s. 2(1) (iii) of the Act. With regard to the co~ercial premises, the Legislature in the Act under consideration has thought it fit not to make any such pravi.5ion. It may be noticed that in some Rent Acts provisions regulating heritability of **conmercia** **l** **premises have** **also** **been** **made** **whereas** **in** **some** **Rent Acts** **no** **such** **provisions** **either** **in** **respect** **of** **residential** **tenancies** **or** **commercial** **tenancies** has been made. As in the present Act, there is no provis.lon regulating the rights of the heirs to **inherit** **the tenancy** **rights** **of** **premises which** **is** **colllllercial** **premises,** **the tenancy i"ight which** **is** **heritable** **devolves** **on the** **heirs** **under the** **ordinary** **law** **of** **succession.** **The** **tenancy** **right** **of** **Wasti** **Ram,** therefore, devolves on all the heirs of Wasti Ram **on** **his** **death.** **11** -. .,, ' . __}_ #### • B. L, SHAH v •. K, N, lNTAWAIA [VENKATARAMIAH, J,] 9 ##### r In view of the above decision, we are of the opinion that the right to occupy the premises after the determination of the lease cannot be bequeathed to any person under a will who does not satisfy the qualification, referred to in section 5(11) (c) (ii) of the Act. In Gian **Devi's** case (supra) the Court was not concerned with the right of a tenant to bequeath his right to remain in possession of a premises after the determination of the lease which he possessed under the statute in favour of a third party under a will. The Court __ ) was dealing with the case of persons who claimed that they had inherited such right by way of intestate succession. Naturally the Court was inclined to take a view favourable to the members of the family of the tenant who would be exposed to grave difficulties if they were to be .thrown out of the demised,premises in which the tenant was carrying on his business till his death. This is clear from the following observations of A,N. Sen, J, at page 811 : A B c n F G H ' **"A** **tatant** **of** **any** ~ommercial **premises- has** **neces-** sarily to use the premises for business purposes. Business .carried on by a tenant of any commercial premises may be and often is, his only occupation and the source of livelihood of the tenant and his **family;** **and** **the** **tenfillt,** **if** **he** **is** **residing** **in** **a** tenanted house, may also be paying his rent out of **the** **said. income ••••••••** **The** **mere** **fact** **that** **in** **the** Act no provision has been made with regard to the **heirs** **of** **tenants** **in** **respect of commercial tenancies** on the death of the tenant after termination of the **tenancy,** **as** **has been done** **in** **the** **case** **of** **heirs** **of** the tenants of residential premises, does not indicate that the Legislature intended that the heirs of the tenants of commercial premises will cease to enjoy the protection - afforded to the tenant under the Act. The Legislature could never have possibly intended that with the death of a **tenant** **of** **the** **commercial premises,** **the** **business** **carried** **on** **by** **the** **tenant,** **however,** **flourishing** **it** **may** **be** **and** **even** **if** **the** **same** **constituted** **the** **source** of livelihood of the members of the family, must necessarily come to an end on the death of the tenant only because the tenant died after the contractual tenancy had been terminated. It could never have been the intention ot the Legislature 10 SUPREME COURT REPORTS [19861 1 s.c.R. A B c D E F G H that the entire family of a tenant depending upon _-{_ **the** **business** **carried** **on** **by** **the** **tenant** **should** **be** completely stranded and the business carried on for years in the premises which had been let out to the tenant must stop functioning at the premises which· the heirs of the deceased tenant must necessarily **vacate,** **as they** _**are**_ **afforded** **no** **protection** **under** the Act. We are of the opinion that in case of commercial premises governed by the Delhi Act, the Legislature has not thought it fit in the light of the situation at Delhi to place any kind of restriction on the ordinary law of inheritance with **regard** **to** **succession.** 11 I ' 11 **The** **reasons** **given** **by** **the** **Court** **in** **the** **above** **decision** **in** support of the case of the heirs of a tenant who inherit his **business** **under the** **intestate** **succession** **would** **not however be** **available** **in** **the** **case** **of** **a** **person** **who** **is** **a** **stranger** **to** **the** family who claims the right to the tenancy under a will of a deceased tenant. There can posssibly be no justification **either** **in** **law** **or** **in** **equity** **to** **extend** **the** **meaning** **of** **the** .;.._ **expression** **'tenant'** **so** **as** **to** **include such strangers** **also.** **If** **such a** **right** **of** **a tenant** **were** **to** **be** **recognised,** **what** **prevents** him from transferring the building to any body he likes who is totally unconnected with him or who is not dependent on him **such as a temple, a church, a** **1J10sque,** **a** **hospital,** **a foreigner,** a multinational company and any other person of. the counrty7 The Legislature could never have intended to confer such a right on him and exclude the right of a landlord to get back possession of his building for ever even after the death of the tenant with whom he had entered into contract initially. Perhaps even in ·the case of a person who may succeed under sub-clauses (i) and (ii) of section 5(ll)(c) there can be no ~ further devolution after his death again under these subclauses. This question however need not be pursued in this case. (However see Para 602 Vol. 27 Halsbury's Laws of England **4th** **Edn.).** **When** **in** **the** **case** **before** **us** **the** **Legislature** **has** restricted the right to inherit the right to the tenancy of **the** **premises** **let** **out** **for** **business,** **trade or** **storage** **to** **any** **member** **of** **a** **ten;µit's** **family** **carrying** **on** **business,** **trade** **or** storage with the tenant at the time of his death it is not open to the Court by judicial construction to extend the said **right** **to** **persons** **who** **are** **not** **members** **of** **the** **tenant's** **family** **·** _**1'**_ **who** **claim** **under** **testamentary· succession.** j!J[,,1li!AH v. K,N, INTAWALA. [VENKATARAMIAH, J,] 11 In **Jalipal** **Singh v.** **The** **Additional** **D:l.etdct** **Judge,** **Buland-** shahr & **Ors.** A.I.R, [1984] S,C, 1880, this Court had occasion to consider the validity of a ·bequest of the right of.a tenant to continue to occupy the premises after the determination of the tenancy under U.P, Urban Buildings ·<Regulation of Letting, Rent and Eviction) Act, 1972 under ·a w:i.11. Section 3(a) of the U,P, Act referred to above defined the expression 'tenant' thus: "3, In this Act unless the context otherwise requires:(a) '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 normally resided with him in the building at the time of his death ; (2)in the case of a non-residential building, his **heirs** ; 11 11 The appellant in that case claimed the right to tenancy •held by one Nuabat Singh under the will of Naubat Singh. This Court held that the appellant would be a tenant within the meaning of section 3(a) of that Act only when he was an heir but the appellant was not a son but only nephew of N.aubat Singh. The said U,P, Act also contained a provision in section 12(2) thereof which stated that i.n the' case of non-residential building where a tenant carrying.on a· business in the building ##### . admitted a person who was not a member of his family as a **partner** **or** **a . new** **partner,** **as** **the** **case** **may** **be,** **the** **tenant** should be deemed to have ceased to. occupy the building. Under those circumstances this Court held at page 1885 thus: "From a survey of these provisions it will be clear that if a tenant parts with possession of the **premises** **in** **his** **possession,** **the** **same** **would be** **treated** **as vacant ••••••** **In the** **case** **of** **non-residen-** tial building, when a tenant is carrying on business in the building, admits a person who is not a member of his family as a partner or new **partner as·** **the** **case** **may** **be,** **the** **tenant** **shall** **be** deemed to have ceased to occupy the building. If a tenant sublets the premises, he is liable to eject**ment. -Obviously,** **therefore,** **there** **_are** **restrictions** placed by the Act on the )."ight of the tenant to transfer or sublet the tenancy rights and he can keep possession for the purpose of his family, for A B c D E F G H 12 SUPREME COURT REPORTS [19861 1 s.c.R. A his business and for the business of his family --; members. He obviously cannot be allowed ~- trr'lSfer a tenancy right. A fortiori, the scheme of the Act does not warrant the transfer the tenancy right :o be effective after his lifetime.''. In the Act under consideration in the present case also B there is a provision similar to the provision contained in section 12(2) of the u.P. Act. Section 15(1) o! the Act reads thus: c 0 E G I{ **"l ::,.** **In** **absence** **of** **contract** **to the contrary tenant** not to sublet or transfer - (1) Notwithstanding anything contained in any law, (but subject to any contract to the contrary). it shall not be lawful after the coming in ope_ . .:ion of this Act fo~ any tenant to sub-let the whole or any part of the premises let to him or to assign **or** **transfer** **in** any **other** **manner** **his** **interest** **therein ••••••• "** , (Underlining by us) In **Dr.** **Anaol:** **Triaback** **Sabnis** **v.** **VasaJIC** **Pratap** **Pandit** A.l.R. [1980] Bom. 69, the High Court of Bombay has in the light of the section 15(1) of the Act taken the view and in **our** **opinion** **ritghtly** **that** **the words** **'to** **ass.ign** **or** **transfer.** **in** any other manner his interest therein' in section 15(1) of the Act had the effect of prohibiting the disposition of the tenancy right by a will in the absence of a contract to the contrary. The High Court of Bombay observed at pages 72 and 73 thus: 13. Bequest of tenancy rights in this context stands on the same footing as any other transfer **by** **sub-lease,** **sale,** **assignment** **gift,** **volition** **of** _**-r**_ the tenant in inducting uncontemplated strangers in the premises and thrustlng them on the landlord, "12. Prohibition against transfer of tenancy rights by the tenants is just a corollary to the restrictions on the landlords and is aimed at protecting **them,** **in** **turn,** **by** **preventing the tenants from** .., abusing these protections by thrusting uncontemplated strangers as tenants on the landlords, willy nilly, for monetary gain or favouring any friend or relative of theirs, and thus ensuring, that the immunity against eviction is not expanded into licence to dispose of premises as if it were their own and landlords rights are not invaded beyond **what** **is** **strictly** n~cessary **••••••••••••••••••••••** J;, L, SHAH v, K, N, INTAWAIA [VENKATARAMIAH, J,] 13 being the common element of these dispositions. It makes little difference to the invasion on the landlord's right whether such uncontemplated stranger is so inducted by the tenant for gain or **just** **as** **a** **favour - invasion** **in** **either** **ca5e having** no nexus with the object underlying these protections, It is difficult to imagine why the legis**lature** **could** **have** **intended** **to** **exclude** **such** bequests from the sweep of the prohibited assign**ments** **and** **transfers** **und_er** **section** **15,** **when** **bequest** is pregnant with the same evils as other **transfers.** **The** **words** **'transfer** **in** **any manner'** **in** this context only go to signify inclusion of **'bequest'** **also** **therein.** 14. It is not without significance that legatee is not included in the definition of the word 'tenant'. Section 5(11) of the Act defines it to **mean** **'a** **person** **who** **is** **liable** **to** **pay** **the** **rent** **or** **on** **whose** **account** **the** **rent** **is** **payable** **for** **any** pre1ill.ses.' Under sub-clauses (a) to .(c) it is enlarged to include some others whom legislature considered it necessary to protect, Clause (c} **provides** **for** **the** **succession** **to** **tenancy** **rights** **on** the death of the tenant. Thus, this sub-clause (c} **-by providing** **for** **the** **mode** **of** **succession,** **impliedly** **excludes** successor~ **from** **the purview** **of** **the width** of the main clause. Secondly, it restricts the **succession** **even** **by** **operation** **of** **law** **of** **inheritance** **to** **the** **persons** **and** **situations** **indicated** **therein** and impliedly excluding all other heirs, In fact, all the heirs are Hable to be excluded if any other member of the family was staying with the tenant at the time of his death. Thirdly and more importantly, legatee 'ls not included either in **this** **sub-clause** **or** **any** **other** **sub-clauses.** **This** demonstrates legislative intent to prohibi~ testamentary disposition of the tenancy rights. There **is** **no** **other** **express** **provision** **to** **this** **effect** **in** the Rent Act. It shall have to be traced only in Section 15 thereof by interpreting the words **'assign'** **and** **'transfer'** **in** **their** **generic** **sense.** This also fortifies our interpretation of these **words."** A B c D E F G H A B c D E 14 SUPREME COURT REPORTS [19661 l s.c.R. The above reasons given by the Bombay High Court in support of its decision are perfectly justified in the context of the object and the scheme of the Act. The language of the statute also lends itself to the same construction. We, therefore, agree with the view taken by the Full Bench of the High Court of Gujarat that on a true interpretation of the provisions of the Act a bequest of the right to the tenancy in respect of premises referred to in section 5(ll)(c)(ii) of the Act after the determination of the lease, which is protected by the Act cannot be msde under a will in favour of a person not referred to in that sub-clause. We do not find any kind of justification to saddle the landlord with the liability to treat a stranger who is not referred to in sub-clause (ii) of section 5(ll)(c) of the Act as a tenant on the basis of a bequest msde under a will by the tenant. Since we are disposing of the case on the basis of the express provisions of the Act which are sufficiently restrictive in character, we do not pr<>pose to deal with the wider proposition that a statutory tenancy whi~h is personal to the tenant cannot be bequeathed at all under a will in favour of any body. We leave the.said question open. In the circumstances, there is no ground to interfere with the judgment of the High Court. This petition is, therefore, dismissed. S.R. Petition dismissed. '