G.C. JAIN J. – Dr. (Mrs.) C.L. Sury was lessee of house No. 72, Babar Road, New Delhi under the
respondent Dan Singh Bawa. The agreed rent was Rs. 37.82 per month. She died in October, 1967.
2. On April 22, 1968 the landlord brought an application against the present appellant Kenneth
Solomon for recovery of possession of the tenancy premises. The eviction was claimed under Proviso
(b) to Sub-section (1) of Section 14 of the Delhi Rent Control Act, 1958 (‘the Act’) on the allegations
that the tenant had left no heir and had in her lifetime parted with the possession of the premises in
dispute in favour of the appellant without the written consent of the landlord.
3. The appellant defended the claim. The plea raised was that the contractual tenancy in favour of
Dr. Sury had not been determined. The tenancy rights devoloved on him and another person under a
will dated March 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 Addl. 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 favour 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
favour 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 tenancy
rights by making a will would not amount to parting with possession of the premises within the
meaning of the provisions contained in proviso (b).
6. A will has to be construed like any other document. The duty of the court is to ascertain the
testator’s intention from the words used in the will. The will Ex. RW 1/1, no doubt, makes no specific
mention of the tenancy rights. It however has a residuary clause which reads:
“I hereby bequeath, give and devise all my moveable and immoveable properties,
whatsoever, however, and wheresoever situated at the time of my death including all the
monies which may be left over after paying my Funeral and Monument Expenses and for my
Dogs expenses to be equally divided by my Trustees among my two nephews:
1. Kenneth Solomon son of John Solomon at present residing at Chabiganj, Kashmeri
Gate, Delhi.
2. Pannel Richard Solomon son of John Solomon at present residing at Chabiganj,
Kashmeri Gate, Delhi”.
7. A lease, as defined by Section 105 of the Transfer of Property Act, is a transfer of a right to
enjoy immoveable property for a term or in perpetuity in consideration of a price paid or promised or
services or other things of value to be rendered periodically or on specified occasions to the transferor
by the transferee. The right of enjoyment contemplated by this Section is an interest in the
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immoveable property. The agreement of lease confers on the lessee the right to possess the
immoveable property which is the subject matter of the lease. It being an interest in the immoveable
property would be covered under the expression “all my moveable and immoveable properties” used
in the above quoted residuary clause of the will. The word ‘property’ includes all legal rights of a
person except his personal rights which constitute his status or personal condition. The tenancy rights
would definitely be included in the words “all my moveable and immoveable properties”. I have
examined the will carefully and I agree with the learned Tribunal that the will does not indicate any
intention of the testator to exclude the tenancy rights. On the other hand the residuary clause referred
to above shows that the intention was to give all her moveable and immoveable properties except the
properties for which a specific provision was made. The tenancy rights, therefore devolved on the
appellant under the will.
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 favour 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 sublet, 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 possession” has not been defined in the Act.
“Parted with” according to Chambers 20th Century Dictionary, New Edition, inter alia, means ‘to
relinquish’. Stroud’s Judicial Dictionary 4th edn. explains the terms ‘part with’ in these words “(2)
A lessee’s covenant not to “part with the possession of the demised premises or any part thereof” is
broken only if the lessee entirely exlcudes himself from the legal possession of part of the premises
(Stening v. Abrahams [(1931) 1 Ch. 470]”.
10. The expression “parted with possession”, therefore, means giving the legal possession
acquired under the lease to a person who was not a party to the lease agreement. Undoubtedly, there
must be vesting of possession of the tenancy premises by the tenant in another person by divesting
himself not only of physical possession but also of a right to possession.
11. “Will” as defined under section 2(h) of the Indian Succession Act means “the legal declaration
of the intention of the testator with respect to his property which he desires to be carried into effect
after his death. One characteristic of a will as distinguished from other kinds of instruments disposing
of property is its revocable nature. It is ambulatory until the death of the testator. It is dependent upon
the testator’s death for its vigour and effect. Till that event it is only an expression of intention to deal
with the property in a particular manner. But the moment the testator dies it has the effect of vesting
the property subject matter of the will in the devisee. At that point of time it would have the same
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effect as a transfer of possession by sale or mortgage. The process of parting with possession thus
starts on the execution of the will but matures only on the death of the testator. The tenancy rights
disposed under a will would vest in the devisee immediately on the death of the testor. This vesting, in
my judgment, would amount to parting with possession within the meaning of the provisions
contained in proviso (b).
12. In Nathu v. Devi Singh, [AIR 1966 Pun. 266] (at Delhi) a Division Bench afterexamining the
provisions contained in proviso (b) to sub-section (1) of Section 13 of the Delhi and Ajmer Rent
Control Act (38 of 1952), which provisions were similar to the provisions contained in proviso (b) to
sub-section (1) of Section 14 of the Act, held:
“What is 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 v. 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 Pratap Pandit [AIR 1980 Bom 69] 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 it anything but transfer
Even the restricted concept of “transfer” inter vivos in Section 5 of the T.P. Act contemplated
its becoming effective at some future date in a given case. Bequest does result in the passing
of the property from the testator to the legatee. It is no doubt different in its nature from the
sale, mortgage, lease or gift. It is none-the-less, a transfer in its generic sense.”
These decisions fully support my view.
15. “Transfer of property” according to the definition given in Section 5 of the Transfer of
Property Act means an act by which a living person conveys property in present or in future to one or
more other living persons or to himself, and one or more other living persons. True, these words
exclude transfer by will, for a will operates after the death of the testator. The act of making a will in
itself would not attract the provisions contained in proviso (b). No landlord can claim eviction, during
the lifetime of the tenant, on the ground that the tenant had made a will disposing the tenancy rights. It
is for the simple reason that it can be revoked at any time. By itself it does not vest the legal
possession in the devisee. However, there is no escape from the conclusion that by his voluntary act
the tenant parts with the possession of the tenancy premises though from the date of his death in case
the will remains unrevoked. Dr. Sury by her act of bequeathing the tenancy rights by means of the
will in favour of the petitioner and his brother had parted with possession within the meaning of
proviso (b). The landlord was, therefore, entitled to claim eviction. In conclusion, I find no merit in
the appeal and dismiss the same.
