ORDER
Mirdhe, J.
1. This Civil Revision Petition is filed under Section 115 C.P.C. against the order dated 11.3.1988 passed in RRP No.94 of 1986 on the file of the District Judge, Mangalore, Dakshina Kannada, dismissing the revision and confirming the order dated 10.2.1986 passed by the Principal Munsiff and Rent Controller, Puttur, Dakshina Kannada, in H.R.C.No. 18 of 1979 partly allowing the petition filed by the respondent under Section 21 (1)(h) of the Karnataka Rent Control Act, 1961 (which will hereinafter be referred to as 'the Act').
2. I have heard the learned Counsel for the petitioner and the learned Counsel for the respondent fully and perused the records of the case.
3. The facts leading to this Revision Petition arise as follows:-
It is not disputed that the respondent is the landlord of the petition premises. He filed the petition in the Court of the Munsiff and Rent Controller, Puttur, Dakshina Kannada, against Laxmi, wife of Annappa Bhandary and the petitioner herein Rajivi for eviction under Section 21(1)(a)(b) and (h) of the Act on the ground that the tenant Laxmi failed to pay the rent to the respondent since 1978 and that she assigned her interest and sublet and parted with possession of A Schedule building in favour of the petitioner and that the tenant has damaged the property by removing the bamboo rafters as a result of which the building is likely to fall and that he wants the premises for constructing a new building for running his business as the space available to him wherein he is running his business is insufficient. The Principal Munsiff and Rent Controller, Puttur, Dakshina Kannada, allowed the petition of the landlord in part and ordered for eviction of the petitioner herein under Section 21(1)(h) of the Act and dismissed the petition of the landlord under Section 21 (1) (a) and (b) of the Act. The landlord as well as the petitioner were aggrieved by the said order and, therefore, the petitioner preferred R.R.P.No. 94 of 1986 and the landlord preferred R.R.P.No. 137 of 1986 against the order of the Principal Munsiff, Puttur, in the Court of the District Judge, Mangalore, Dakshina Kannada. The District Judge heard both the petitions together and passed a common order whereby he dismissed the Revision Petitions filed by the petitioner and the respondent confirming the order of eviction of the petitioner under Section 21(1)(h) of the Act. It is this order that is challenged by the petitioner in this Revision Petition.
4. The finding of both the Courts below is to the effect that the landlord requires the petition premises under Section 21(1)(h) of the Act. It is a finding of fact. I do not find it to be perverse or wrong. As this is a Revision, the said finding of fact is not liable to be disturbed.
5. The trial Court held that the petitioner is the legal representative of the tenant Laxmi. But, the learned District Judge held that the tenant could not have bequeathed her tenancy rights in favour of the petitioner and hence the question of hardship to her will not arise. The point to be considered now is whether the petitioner can be considered as the tenant or the legal representative of the tenant.
6. Section 3 of the Act defines 'tenant' as follows:-
'(r) 'tenant' means any person by whom or on whose account rent is payable for a premises and includes the surviving spouse or any son or daughter or father or mother of a deceased tenant who had been living with the tenant in the premises as a member of the tenant's family up to the death of the tenant and a person continuing in possession after the termination of the tenancy in his favour, but does not include a person placed in occupation of a premises by its tenant or a person to whom the collection of rents or fees in a public market, cart-stand or slaughter house or of rents for shops has been framed out or leased by a local authority.'
the expression 'legal representatives' is not defined in the Act. Hence we will have to refer to the definition of 'legal representative' as given in Section 2(11) C.P.C. 'Legal representative' is defined in the said Section of C.P.C. as follows:-
''Legal representative' means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued:'
The plea set up by the petitioner was that the deceased Laxmi who became a statutory tenant after the initial lease came to an end made a Will bequeathing her tenancy rights in favour of the petitioner.
7. In BHAVARILAL LABCHAND SHAH v. KANAIYALAL NATHALAL INTWALA, : [1986]1SCR1 , the Supreme Court while dealing with the provisions viz., Sections 5(11)(c)(ii) and 15 of the Bombay Rents, Hotel and Lodging House Rates Control Act, held as follows:-
'It is significant that both Sub-clauses (i) and (ii) of Clause (c) of Sub-section (11) 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 testamentary 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 Sub-section (11) 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 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 the 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) thereof. When the statute has imposed such a restriction, 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. It can also be seen that the words 'to assign or transfer in any other manner his interest therein' in Section 15(1) of the Act had the effect or prohibiting the disposition of the tenancy right by a will in the absence of a contract to the contrary.
Further, when 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 tenant'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 who claim under testamentary succession.'
Similarly in SHREE CHAMUNDI MOPEDS LTD. v. CHURCH OF SOUTH INDIA TRUST ASSOCIATION, MADRAS, : [1992]2SCR999 , it has been held by the Supreme Court as follows:-
'It is clear from provisions of Section 23 which prohibits subletting or transfer by the tenant that except in cases covered by the provisos to Sub-section (1) of Section 23, there is a prohibition for a tenant to sub-let whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein. This prohibition is, however, subject to a contract to the contrary. A tenant who sublets or assigns or transfers the premises in contravention of this prohibition loses the protection of law and can be evicted by the landlord under Section 21(1)(f). In the case of a statutory tenant, the relationship is not governed by contract. The prohibition against assignment and transfer is, therefore, absolute and the interest of a statutory tenant can neither be assigned nor transferred. This means that the interest of the statutory tenant in the premises in his occupation, as governed by the Karnataka Rent Control Act is a limited interest which enables the surviving spouse or any son or daughter or father or mother of a deceased tenant who had been living with the tenant in the premises as a member of the tenant's family up to the death of the tenant and a person continuing in possession after the termination of the tenancy in his favour, to inherit the interest of the tenant on his death. The said interest of the tenant is, however, not assignable or transferrable and, therefore, the interest of a sick company which is continuing in occupation of the premises as a statutory tenant by virtue of the protection conferred by the Karnataka Rent Control Act cannot be regarded as property of the company for the purpose of Sub-section (1) of Section 22 of the Sick Industrial Companies Act, 1985.'
In view of this position of law, it is very clear that the petitioner will not get the tenancy rights under the will executed by the tenant Laxmi in her favour. It has come in the evidence that the petitioner is the daughter of uncle of the tenant. She is not a tenant as defined under Section 3 (r) of the Act. Even the learned Counsel for the respondent concedes that the petitioner is not a tenant. Therefore, she will not be entitled to any protection against the eviction on the ground that the deceased Laxmi had bequeathed her tenancy rights in the petitions schedule premises in her favour by a will. The learned Counsel for the petitioner submits that in view of the fact that the petitioner cannot claim the tenancy rights in the petition premises by virtue of the will, she will not be a tenant and she is not the legal representative of the deceased Laxmi also and, therefore, the Court under the Act will have no jurisdiction to pass any order for the eviction of the tenant. It is not disputed in this case that the tenant Laxmi had no husband, no parents and no children. She had no relations as mentioned in Section 3 of the Act and the petitioner does not come within the purview of Section 3 of the Act so as to claim protection as a tenant. Now the question is whether she is a legal representative of the deceased Laxmi.
8. In. K. ABDUL SUBHAN v. A.K. SATYANARAYANA SETTY, 1984 (2) KLJ 72, the question was whether the rights of a tenant of a non-residential premises devolves on his legal heirs on his death. This Court in paras 33 and 34 of the said Decision has held as follows:-
'33. 'Legal representative' is not defined in the Karnataka Act. By virtue of Section 141 of the Code of Civil Procedure, the definition of legal representative available in Section 2(11) of the Code of Civil Procedure, will have to be taken into consideration. Rule 35 of the Karnataka Rent Control Rules framed in exercise of the power of the State Government under Section 59 of the Karnataka Act, makes it abundantly clear that so far as the procedure is concerned the provisions of the Code of Civil Procedure would be applicable. Rule 30 of the said rules deals specifically with bringing on record the legal representatives of deceased person in a proceeding under the Karnataka Act. Rule 30 makes provisions of Order 22 of the Code of Civil Procedure applicable. When the position in law is such, there is no other way but to understand that a legal representative or representatives so brought on record on the death of a person, may be a petitioner or a respondent, under the Karnataka Act who will have the. same status as the legal representative contemplated in general law. Therefore such a legal representative has the right to continue the proceeding at least on the basis of the averments made by the deceased whom he represents legally. That aspect of the law has been totally ignored in all the decisions rendered by this Court.
34. In this very connection, it is our considered opinion, that considerable weight has to be attached to Section 51(2) of the Karnataka Act, Plain reading of Section 51 (2) of the Act, makes it crystal clear, that a legal representative has been conferred with an additional power or right, over and above that of a legal representative, in general law enjoys. A legal representative of a deceased person is, by virtue of Section 51(2) of the Karnataka Act, enabled even to make an application prefer an appeal or take any proceedings which would have been made by a deceased person, whether he be a landlord or a tenant. In other words, he can initiate or institute proceedings which the deceased tenant could have done. Certain important rights also have been conferred on a tenant by the Karnataka Act. Such rights, for the purpose of elucidation are found in Sections 14, 43 and 27 of the Karnataka Act. In case, where a landlord has withdrawn or cut off the essential amenities in regard to a non-residential premises occupied by a tenant, a tenant has under this Act a right to move the Court under Section 43(2) of the Act. Such a tenant could have made such an application but if he dies before he could have have made such an application, by virtue of Section 51 (2) of the Karnataka Act, it is possible, for a legal representative of such a tenant to make that application i.e., the application which the deceased tenant would have filed, in case, he were to be alive. An attempt was made to argue that Section 51(2) while permits a legal representative to file such an application, it does not vest him with any right. The simple fact, that the legal representative has the power under Section 51 (2) of the Act, to make an application which the deceased tenant would have filed, in case he were to be alive, shows that there is no force in this argument. That application is in exercise of the right accrued to the deceased tenant. That right is made actionable by a legal representative, because of Section 51(2) of the Karnataka Act. In other words, that right is, in law, transmitted to the legal representatives, just as there is transmission of tenancy to the specified persons in regard to the residential premises, as found in second portion of Section 3(r) of the Karnataka Act. In none of the decisions, rendered by this Court, is this aspect taken into consideration, on the reading of Section 51 of the Karnataka Act. When the position in law is so, it does not hold to reason, that a legal representative of a deceased person is to be brought on record, particularly when the deceased is a tenant of a non-residential premises, only to be thrown out of record or taking away his right. He has a right to continue and contest the proceedings according to law. Hence we cannot agree with the principle laid down in the aforesaid decisions rendered by this Court. We hold that the law as laid down by those decisions of this Court is no longer good law, so far as non-residential premises are concerned. Our attention is drawn to a judgment of S.C. reported in Ganapathadha v. Shasnikant (A.I.R. 1958 S.C. 955) and it was contended that the concept of heritability, was to be confined to residential premises, in favour of spouse, mother, father, son and daughter as provided in the second category of tenants, in 3(r) of the Karnataka Act. It was contended that Section 5(11)(c) of the Bombay Act is in pari materia with Section 3(r) and therefore the said ruling concludes the matter. It is difficult to accept this contention, in the said ruling the Supreme Court while reversing the judgment of Bombay High Court in : AIR1976Bom288 has no doubt held that the word tenant in Section 5(11)(c) of the Bombay Act is applicable to residential premises only; in coming to this conclusion one circumstance, which has weighed with the Court is the amendment introduced to the Act, providing for transmission of tenancy, separately, in respect of residential and non-residential premises. What is manifest is that the concept of heritability or transmission of tenancy is recognised in the case of Statutory Tenants, in respect of residential and non-residential premises, if it is so provided in the legislation. There is nothing in the said ruling which militates against the concept of devolution or transmission of interest, in respect of Statutory Tenancies either for residential or non-residential premises. Indeed that question was not put in issue. Admittedly there is no provision corresponding to Section 51 of the Karnataka Act in the Bombay Act, The law laid down in Damadilal's case remains unaffected. What is achieved by amendment, in the Bombay Act, is in a way contained in Section 51 of the Karnataka Act. Therefore, the said decision does not affect our conclusion.'
This Ruling makes it clear that a legal representative has the same status as the tenant to continue the proceedings, at least on the basis of the averments made by the deceased whom he represents legally.
9. In BAL KISHAN v. OM PRAKASH AND ANR., : [1986]3SCR622 it has been held as follows:-
'In the instant case, the tenant was alleged to have sublet the premises in favour of the sub-tenant without the written consent of the landlord. The landlord filed a petition for eviction, in which tenant and sub-tenant were impleaded. On the death of tenant, during pendency of the petition, the adopted son of tenant filed an application before the Rent Controller to bring him on record as the legal representative of the deceased-tenant. The adopted son of tenant thereafter filed an additional written statement alleging that the premises in question being non-residential and commercial premises, the legal heir of a tenant could not be treated as a tenant as defined under Section 2(h) of the Act and, therefore, the possession of such legal heir of a tenant would be that of a trespasser and the Rent Controller had no jurisdiction to proceed with the case as the Rent Controller was not competent to pass a decree for possession against a trespasser. However, the Rent Controller recorded the finding that the tenant had sublet the premises without the written consent of the landlord and, therefore, the legal representative of the tenant and the sub-tenant were liable to be evicted from the premises under the Act.
Held, that the order of the eviction passed by the Rent Controller was proper, as the adopted son of the tenant could not have in the capacity of the legal representative of the deceased . tenant raised the plea that he was in possession of the building as a trespasser and the petition for eviction was not maintainable. The Sub-rule (2) of Rule 4 of Order 22 authorises the legal representative of a deceased defendant to file an additional written statement or statement of objections raising all pleas which the deceased defendant had or could have raised except those which were personal to the deceased-defendant or respondent.'
If the petitioner can be held to be a legal representative, the Rent Control Court will be having jurisdiction to pass an order of eviction against the petitioner. She cannot take a plea that she is a trespasser as no rights are passed to her under the will because the possession of the tenant being possession of legal representative to succeed to the estate of the tenant could not be that of a trespasser in the circumstances of the case. More over, this has also been so held in Bal Kishan v. Om Prakash and Anr., as follows:-
'Further, the plea of the legal representative of tenant that he was holding the property as a trespasser was also not tenable because the possession of tenant being permissive, the possession of the adopted son of the tenant who had succeeded to the estate of the tenant as his heir could not be that of a trespasser in the circumstances of the case. He could not, therefore, resist the passing of the decree for eviction on proof of the ground in Section 13(2)(ii)(a).'
10. There is no definition of expression 'legal representative' in the Act. Rule 30 framed under the Act makes the provision of Order 21 C.P.C. applicable to the proceedings with necessary modifications. Therefore, now it will have to be seen whether the petitioner can be a legal representative as defined under Section 2(11) CP.C.
11. It is not disputed that the petitioner was residing with the deceased Laxmi. In fact the petition filed by the respondent-landlord was against Laxmi and the petitioner on the ground that the tenant Laxmi had sublet the petition premises to the petitioner. It is very specifically averred in the petition itself that the petitioner Rajivi is not a relative of the tenant but she is enjoying the petition premises as a sub tenant under Laxmi and she was living in the premises. The case of the petitioner that the tenant had bequeathed her tenancy rights in her favour by will cannot be accepted, because such rights cannot be bequeathed by the wilt. Therefore, she has no right to live in the premises on the basis of the will. She is not one of the persons mentioned in Section 3(r) of the Act so as to clothe her with the right of tenant.
12. In J.C. CHATTERJEE AND ORS. v. SHRI SRI KISHAN TANDON AND ANR., : [1973]1SCR850 , it has been held as follows:-
'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. : [1964]4SCR892 , Followed.
On the death of a statutory tenant pending eviction suit or appeal his heirs and legal representatives brought on record cannot claim the status of tenant within Section 3 (vii) of the Act as no rent is payable by them. 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. Therefore, the only contentions that they could put forward in the second appeal by the landlord were the contentions appropriate to their representative character and not one which was personal to the deceased. The defence of want of bona fide requirement by the landlord was personal to the statute tenant and on his death the same is not open to his legal representatives.'
Therefore, the tenant has no estate or interest in the premises occupied by him. The petitioner cannot be held to be a legal representative as intermeddler for the estate of the deceased because the deceased had no estate or interest in the premises occupied by her except the protection by the statute. Therefore, it is very clear that the petitioner is neither a tenant nor a legal representative of the deceased tenant.
13. The learned Counsel for the respondent relied on SOUTH ASIA INDUSTRIES PRIVATE LTD. v. SARUP SINGH AND ORS., : [1965]3SCR829 , wherein it has been held that where an application under Sections 14(1) Proviso (b), 18 and 25 of the Delhi Rent Control Act was pending and in pending application the tenant-Company was dissolved, the application can be continued against assignee. The case was under the Delhi Rent Control Act which contemplates orders for recovery of possession also against persons other than a tenant who has assigned or sublet without the landlord's consent. His Lordships have held that if Section 14 contemplates an eviction order against a sub-tenant, it must have equally contemplated such an order against assignees of tenants, for the Section makes no distinction between sub-tenants and assignees for the purpose of making such orders. It has been further held that if the assignee or the sub-tenant is entitled to be heard to oppose the eviction order that would be another reason for saying that an order for eviction could be made against them also. This Ruling emphasises that an order of eviction can be passed not only against a tenant but against an assignee also.
14. A Landlord can recover possession from such a person under Section 21(1)(f) of the Act as the tenant had unlawfully assigned her right in the premises by the will in favour of the petitioner. The authority on this point is South Asia Industries Private Ltd. v. Sarup Singh and Ors.. The respondent has sought for possession of the petition premises alleging also that the tenant had assigned her interest and sublet and parted with possession of A Schedule building in favour of the petitioner, and that she is enjoying the premises as sub-tenant under the tenant Laxmi. Both sides also led evidence on this point. It is also proved that the tenant had assigned her interest in the property by way of will in favour of the petitioner. It is an admitted position. But the will is contrary to law as the tenant cannot bequeath her tenancy rights in favour of another, Therefore, the assignment of the tenancy rights by the tenant in favour of the petitioner is contrary to law. On this ground itself, the petitioner is liable to be evicted under Section 21(1)(f) of the Act. Though that Section is not specifically pleaded in the petition, the averments go to show that the case of the landlord was also under Section 21(1)(f) of the Act and both sides have understood the controversy as involving this point also and led evidence. Therefore even though the petitioner is not a tenant or the legal representative of the tenant, she is liable to be evicted on the ground that the tenant had unlawfully assigned her interest in her favour.
15. For the reasons discussed above, I proceed to pass the following order:-
The Petition is dismissed with costs of the respondent. The petitioner is granted four months' time to hand over the vacant possession of the petition premises to the respondent.