TaxTMI 
TaxTMI 
1985 (4) TMI 349
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.... 31,1957. In case it was held by the court that he could not inherit the tenancy rights under the will the same devolved on him as an heir being Dr. Sury's nearest kinsman. (4) The Additional Rent Controller by his order dated December 18, 1973 came to the conclusion that the tenancy rights had not been bequeathed by Dr. Sury under the will in question. The appellant who was a nephew of Dr. Sury inherited those rights as an heir and Therefore there was no parting with possession by the tenant. With these findings he dismissed the eviction petition. This finding was, however, reversed in appeal by the learned Rent Control Tribunal. It was held that the tenant had bequeathed the tenancy rights in favor of the appellant under the will which act amounted to parting with possession of the premises. Consequently an order for recovery of possession was granted in favor of the respondent against the appellant on October 28, 1976. Feeling aggrieved the appellant has filed the present appeal. (5) Mr. Vohra, learned counsel appearing For the appellant has raised two main questions: (1) that the tenancy rights Were not disposed under the will and (2) that the act of bequeathing the t....
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....8) Now I turn to examine the next question. The question for determination is whether the act of disposing the tenancy rights by making a will amounts to 'parting with possession' and entitles the landlord to claim eviction under proviso (b) to Sub-Section (1) of Section 14 of the Act. These provisions read:- " 14. Protection of tenant against eviction- (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favor of the landlord against a tenant : Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only. namely- (b) that the tenant has, on or after the 9th day of June, 1952 Sub-let, assigned or otherwise parted with the possession of the whole or any part of the premises without obtaining the consent in writing of the landlord. " (9) The case set up by the landlord is that the tenant had parted with the possession of the tenancy premises. The expression "otherwise parted with the possessi....
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.... hit by proviso (c) is a volitional transfer by a tenant without the consent of the landlord. If on the death of a person holding contractual tenancy the suit premises come into the hands of the heirs of the tenant that is not an intentional or volitional transfer and such parting with the possession would not be affected. The case of parting with possession by will is, however, clearly envisaged in proviso (c) to Sub-section (1) of Section 13." The Division Bench had relied on an earlier D.B. decision in Ram Dass Vs. Roopchand F.A.'No. 119-D of 1960 decided on September 12, 1964. (13) Section 15(1) of the Bombay Rents, Hotel and Lodging House Rates Control Act (57 of 1947) prohibits the tenant to sublet the whole or any part of the premises let to him or transfer in any other manner his interest therein. The contravention of these terms invites the penalty of eviction. Examining these terms a Division Bench of the Bombay High Court in Dr. Anant Trimbak Sabnis v. Vasant Pratdp Pandit AIR1980Bom69 held :- "IT is true that the bequest becomes effective only after the death of the testator and is liable to be revoked at any time. This by itself however, cannot make ....
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.... v. Panna Lal (supra). (17) Mr. Vohra also relied on a single bench decision of this court in The Vaish Cooperative Adarsh Bank Ltd. Delhi v. M/s. Suraj Balram Sawhney and sons and Anr, 1973 Rcr 217 In that case a cooperative society registered under the Bombay Cooperative Societies Act was the tenant. It stood dissolved. On the same day a new society came into existence and the new society was in possession of the tenancy premises when the eviction was claimed. It was held that it was not a case of subletting or parting with possession. The reason given in support of this decision is that it was the tenant's overt act of subletting assignment or parting with possession without the consent in writing of the landlord which gives a cause of action to the landlord to move an application for an order of possession against the tenant or his assignee or both The committing of this overt act pre-supposes the existence of the person whose act gives the cause of action. If the effect of law was that the tenant ceased to exist simultaneously with the coming into existence of the new society, it follows that the tenant was not in a position nor had a legal capacity to do something whic....