KALYANJI GANGADHAR BHAGAT Vs. VIRJI BHARMAL

JUDGEMENT

(1.) The short question that arises in these cases is whether a contractual tenant alone can assign or transfer his interest in the demised property and such a right of assignment or transfer is not available to the statutory tenant In (Anand Nivas (P) Ltd. v. Anandji Kalyanji Pedhi)1, (1964)4 S.C.R. 892 : A.I.R. 1965 S.C. 414 it was held that after termination of the contractual tenancy the right to remain in possession is personal and is, therefore, not capable of transfer or assignment. Again, in (Jaisingh Morarji v. Sovani (P) Ltd.)2, (1973)1 S.C.C. 197, 201, this proposition was reiterated. This Court in (Jagdish Chander Chatterjee v. Sri Kishan)3, (1972)2 S.C.C. 461, while dealing with Rajasthan Act took the view that such an interest is not heritable. Then came (Damadilal v. Parashram)4, (1976)4 S.C.C. 855 : 1976 Supp. S.C.R. 645, in which this Court took the view that the right is heritable. This view was followed in (Ganapati Sitaram Balvalkar v. Waman Shripad Mage)5, (1981)4 S.C.C. 143 and (Sardar Tota Singh v. Gold Field Leather Works)6, (1985)1 S.C.C. 414.

(2.) Then comes the most important case of (Gian Devi Anand v. Jeevan Kumar)7, (1985)2 S.C.C. 683. In paras 26, 31 and 35 in no uncertain terms the five-Judge Bench stated as under:

(3.) No doubt, Gian Devi Anand case dealt with a case of heritability as rightly contended by Mr. P. Chidambaram, learned Senior Counsel for the appellant. But insofar as the Delhi Act is concerned it was held that there is no provision regulating the rights of the heirs to inherit the tenancy rights of the tenant in respect of the tenanted premises which is commercial premises that the tenancy right which is heritable devolves on the heirs under ordinary law of succession. Therefore, in view of this, it is clear that the views expressed in Anand Nivas (P) Ltd. v. Anandji Kalyanji Pedhi and Jaisingh Morarji v. Sovani (P) Ltd. do not lay down the correct law. That being the position, in the instant case, the question would be whether the respondent/tenants would fall under the proviso to section 15 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 The said proviso reads as under :