V.S Deshpande, C.J (Oral):— This appeal raise some questions under the amended definition of “tenant” in Section 2(1) of the Delhi Rent control Act, 1958 (the Act). Section 2(1) read as below:

“ ‘tenant’ means any person by whom or on whose account or behalf the rent of any premises is, or, but for a special contract, would be payable and includes—

(i) a sub-tenant;

(ii) any person continuing in possession after the termination of his tenancy; and

(iii) in the event of the death of the person continuing in possession after the termination of his tenancy, subject to the order of succession and condition specified, respectively, in Explanation I and Explanation II to this clause, such of the aforesaid person's—

(a) spouse,

(b) son or daughter, or, where there are both son and daughter, both of them,

(c) parents,

(d) daughter-in-law, being the widow of his pre-deceased son,

as had been ordinarily living in the premises with such person as a member or members of his family up to the date of his death, but does not include,—

(A) Any person against whom an order or decree for eviction has been made, except where such decree or order for eviction is liable to be re-opened under the proviso to Section 3 of the Delhi Rent Control (Amendment) Act, 1976;

(B) any person to whom a licence, as defined by Section 52 of the Indian Easements Act, 1982 has been granted.

Explanation I.—The order of succession in the event of the death of the person continuing in possession after the termination of his tenancy shall be as follows:—

(a) firstly, his surviving spouse;

(b) secondly, his son or daughter, or both, if there is no surviving spouse, or if the surviving spouse did not ordinarily live with the deceased person as the member of is family up to the date of his death;

(c) thirdly, his parents, if there is no surviving spouse, son or daughter of the deceased person. Or if such surviving spouse, son or daughter or any of them. Did not orderly liver in the premises as a member of the family of the deceased person up to the date of his death; and

(d) fourthly, his daughter-in-law, being the widow of his pre-deceased son, if there is no surviving spouse, son, daughter or parents of the deceased person, or if such surviving spouse, son, daughter or parents, or any of them, did not ordinarily live in the premises as a member of the family of the deceased person up to the date of his death.

Explanation I.—If the person, who acquires, by succession, the right to continue in possession after the termination of the tenancy, was not financially dependent on the deceased person on the date of his death, such successor shall acquire such right for a limited period of one year; and, on the expiry of that period, or on his death, whichever is earlier, the right of such successor to continue in possession after the termination of the tenancy shall be come extinguished.

Explanation III.—For the removal of doubts, it is hereby declared that,—

(a) where, by reason of Explanation II, the right of any successor to continue in possession after the termination of the tenancy becomes extinguished, such extinguishment shall not affect of right of any other successor of the same category to continue in possession after the termination of the tenancy; but if there is no other successor of the same category, the right to continue in possession after the termination of the tenancy shall not on such extinguishment, pass on to any other successor, specified in any lower category or categories, as the case may be:

(b) the right of every successor, referred to in Explanation I, to continue in possession after the termination of the tenancy, shall be personal to him the shall not, on the death of such successor, devolve on any of his heirs.”

2. The first question is whether an ordinary civil suit for possession on the basis of title can be filed by a landlord alleging that the spouse of the deceased tenant whose tenancy had been terminated prior to his death was not financially dependent on the deceased tenant and, therefore, was not entitled to continue in possession for more than one year after the death of the tenant. The second question relates to the meaning to be attached to the expression “not financially dependent on the deceased person on the date of his death.”

3. The facts from which these questions arise are not disputed and may be briefly stated. On 2-11-1963 lease of the premises, situated at 20, Sunder Nagar was given by the present respondent, Mrs. Shanta sinha Chenoy, to Dr. (Late) Suraj Prakash. On 10-10-1969 notice under Section 106 of the Transfer of Property Act to terminate the tenancy was given by the landlady to the tenant. On 10-10-1971 the respondent filed a petition for eviction against the tenant before the Controller under clauses (h) and (j) of sub-section (1) of Section 14 of the Act On 6-6-1972 the tenant Dr. Suraj Prakash, died, while the eviction petition was pending. On 20-8-1972 an application was made by the respondent landlady for bringing the legal representatives of the deceased tenant on record on the principle embodied in Order XXII Rule 4 of the Civil Procedure Code. On 26-2-1973 the eviction petition was dismissed by the Additional Controller on the ground that after the death of the tenant the statutory protection enjoyed by him after the determination of his tenancy came to an end and such protection was personal to the tenant and did not extend to his legal representatives. The eviction petition was thus held to have abated.

4. On 25-10-1972 Suit No. 456 of 1972 was filed by the landlady for injunction and damages against the legal representatives of the tenant on the ground that they were not entitled to inherit the statutory protection which had been enjoyed by the deceased tenant whose tenancy had been previously terminated. The basis of the suit was that the relationship between the landlady and the tenant came to an end when the tenant died. The legal representatives of the tenant had no relationship of tenancy with the landlady. After the dismissal of the eviction petition as having been abated the suit was amended and the relief for possession was also claimed against the legal representatives of the deceased tenant. The suit was decreed by Prithvi Raj J. who held that the legal representatives of the tenant did not inherit the tenancy or the statutory protection and the landlady was entitled to evict them. In respect of the present appellant the learned Judge held that she was not financially dependent on the tenant on the date of the latter's death. Hence this appeal.

5. Question 1;

The law as to the meaning of a “tenant” under the Act has undergone changes from time to time. This has been fully considered in the Full Bench decision of this court in Haji Mohammed Din & Another… v. Shri Narain Dass…, AIR 1979 Delhi 186(1). Briefly, in respect of the definition of “tenant” in Section 2(1), as it stood before the amendment made on 1st December, 1975, the law laid down by the Supreme Court in Anand Nivas Pvt. Ltd. v. Anandji Kalyanji Pedhi, AIR 1965 SC 414(2), and J.C Chatterijee v. Sri Kishan Tandon, AIR 1972 SC 2526(3), was held to apply. The result was that at that time it was thought that the status of a tenant after the termination of his tenancy by a notice to quit given under Section 106 of the Transfer of Property Act became that of a statutory tenant whose possession was protected only by the Rent control Act. He was not a contractual tenant but only a person who could not be evicted except on compliance with the relevant provisions of the Act. It followed that the protection given by the Act was personal to such a statutory tenant and was not inherited by his legal representatives but it came to an end on the death of the tenant. Suit No. 456 of 1972 by the present respondent was filed when this was the state of law.

6. The legislature perhaps thought that this view worked some hardship to the legal representatives of the tenant. With a view to give relief to the legal representatives of a tenant whose tenancy had been determined prior to his death, the definition of “tenant” in Section 2(1) was amended. The amended Section 2(1) has been reproduced above. Briefly, the relief given is that the most preferable legal representative who was living with the family of the tenant at the time of his death and who was financially dependent on his death would be regarded as the successor of the tenant enjoying the statutory protection with had been enjoyed by the tenant prior to the death of the tenant. On the country, if such a heir was not financially dependent on the tenant on the death of the tenant, the such a successor would acquire the right to continue in possession of the leased premises only for a period of one year and on the expiry of the period this right to continue in possession would come to an end.

7. The next stage of the development of the meaning of “tenant” was the decision of the Supreme Court in Damadilal v. Parshram, AIR 1976 SC 2229(4). But the Full Bench of this court in Haji Mohammed Din's case (supra), held that the decision in Damadilal did not apply to the construction of the word “tenant” in the Delhi Rent control Act inasmuch as that decision was given on a construction of the definition of “tenant” in the Madhya Pradesh Accommodation Control Act, 1961. The said definition in the Madhya Pradesh Act was analogous to the old definition of “tenant” in the Delhi Act. But the amended definition of “tenant in the Delhi Act was substantially different. Since the decision in Damadilal came after the amendment of Section 2(1) of the Delhi Rent control Act, in could not be applied to the amended section and since the said amendment was retrospective in character the decision in Damadilal could not apply to the definition of “tenant” in the Delhi Act at any time.

8. The last stage in the development of the law came with the seven-Judge Bench decision of the Supreme Court in V. Dhanpal Chettier v. Yasodai Ammal, 1979 (2) RCR 352(5). After reviewing the case law under the different Rent control Acts, the seven-Judge Bench of the Supreme Court held on 23-8-1979 that the determination of the contractual tenancy under the Transfer of Property Act was not a condition precedent for a landlord taking proceedings for the eviction of his tenant under the rent control legislation, which may be in force in the particular State or Union Territory in India. The landlord has only to allege the facts constituting the cause of action under the relevant Rent control Act and to prove it before the Tribunal or the court under the relevant Act to get an order of eviction of the tenant.

9. The seven-Judge Bench decision has now to be applied to the construction of the new definition of “tenant” in Section 2(1) of the Act. While the amendment of Section 2(1) made on 1st December, 1975 took into account the then existing law, the seven-Judge Bench decision of the Supreme Court has to some extent displaced the assumption on which the amendment had proceeded. The assumption underlying the amendment was that the contractual tenancy of a tenant had to be terminated by a notice to quit before proceedings for eviction could be filed under any of the provisos to sub-section(1) of Section 14 of the Act. It is for that reason that the expression “after the termination of his tenancy” occurs in Section 2(1) (ii) as also in explanation II to section 2(1). It would appear to us that this expression refers to the termination of the tenancy of the tenant in accordance with the provisions of the Transfer of Property Act. That is to say, it applies to the termination of the contractual tenancy. In view of the decision of the seven-Judge of the seven-Judge Bench as applied to the amended Section 2(1), we would simply have to ignore these words whenever they occur in the definition of “tenant” in Section 2(1). For, the law now applicable to Section 2(1) is that even without termination of the contractual tenancy in accordance with the provisions of the Transfer of Property Act, a proceeding for eviction of a tenant can be filed by the landlord.

10. It is in the light of this legal development that a particular landlord has to choose the forum and the proceeding for the eviction of the concerned legal representative or legal representatives of the deceased tenant. On the one hand, if the tenant has left a legal heir who was living with him at the time of his death and who was financially dependent on him on the date of his death, then such legal heir would inherit the tenancy or the statutory protection conferred on the tenant by the Act. For the purpose of the Act no distinction need be made between a contractual tenancy and the protection against eviction enjoyed by the tenant. Whether the tenancy has been terminated under the Transfer of Property Act or not is not material because whether it was terminated or not, the landlord was in the same position in respect of the eviction of the tenant. For, in either case he has to prove his cause of action against the tenant under the particular provision of the Act which entitled the landlord to evict the tenant. Broadly speaking, there are two-fold remedies which are available to the landlord against the legal representatives of the tenant. If the legal representative who continues in occupation of the penises was living with the landlord at the time of his death and was also financially dependent on the date of his death; then such a legal representative would inherit the tenancy or the statutory protection of the tenant and would be a tenant for the purpose of the Act. Proceeding for eviction against such a person can be filed by the landlord only under the Act and, therefore, before the Controller. During the relationship between the landlord and the tenant the landlord would have to take recourse to the proceeding under the Act and would have to prove one of the causes of action which would entitle him to evict the tenant under the Act. It is the order of the Controller upholding the contention of the landlord which would secure the eviction of the tenant in favour of the landlord. On the contrary, if the landlord fails to prove the facts constituting the cause of action, the eviction petition would stand dismissed and the leased premises would continue to be held by the legal representatives of the tenant who are in the same position as the deceased tenant was. Such a successor of the deceased tenant can be evicted by the landlord precisely in the same way as the deceased tenant would be evicted and no other a manner and in no other forum. On the other hand, if the landlord avers that the particular heirs of the deceased tenant who is continuing in possession after the death of the tenant was not ordinarily living in the premises with the tenant as a member of his family up to the time of the death of the tenant and/or was not financially dependent on the deceased tenant on the date of the death of the tenant then such a successor under Explanation II to Section 2(1) acquired a right to continue in possession of the demised premises only for a period of one year and on the expiry of that period or on his death whichever is earlier the right of such a successor to continue in possession become extinguished. On the averment of such facts, there would be no relationship of landlord and tenant between the owner of the premises and a person who is in unlawful possession of the premises because he has not inherited the tenancy or the statutory protection of the deceased tenant. The proceeding for the eviction of such a person would be a proceeding for the eviction of a trespasser. The forum for eviction would, therefore, be a civil court and a suit for possession on the ground of title against a trespasser would have to be filed by the landlord on these facts. Such a proceeding would not be under the Act but would be outside it. It is true that for success of such a suit the landlord would have to prove the facts showing that the person in possession is not entitled to the tenancy or the statutory protection which could be inherited from the tenant in terms of the amended definition of tenant in Section 2(1) of the Act. But the decision of the averment made by the landlord would have to be by the civil court because the averments amounted to saying that the person to be evicted is not a tenant at all.

11. When, therefore, the suit by the present landlady was filed against the present appellant No. 1, who is the legal representative of the deceased tenant, Dr. Surjan Prakash, no objection was taken to the jurisdiction of the civil court entertaining the suit. The reasons were two-fold. Firstly, the decision of the Additional Controller, Mr. Aggarwal, given on 26-2-1973 was building on both these parties. He had held that the proceedings for eviction against the present appellant would not be continued by the present respondent before the Controller inasmuch as the present appellant did not inherit the tenancy or the statutory protection of Dr. Suraj Prakash, whose tenancy had been determined under the Transfer of Property Act before his death. Secondly, the law laid down by the Supreme Court in Anand Nivas Pvt. Ltd. And J.C Chatterjee, referred to above, was that after the determination of the contractual tenancy the tenant continued in possession of the demised premises by virtue of the statutory protection given to him by the Rent control Act and that such a protection was personal to the tenant and could not be inherited by his heirs.

12. We notice that the suit for injunction and damages in the first instance and for possession after amendment was filed by the present respondent landlady against the present appellant on 25-10-1972 While the tenant, Dr. Suraj Prakash had died on 6-6-1972. Since the present appellant had the right to continue in possession of the demised premises for one year after the death of the tenant even if she was not financially dependent on the deceased tenant, normally such a suit in respect of relief of possession in particular, would have been regarded as premature. But we must take note of the fact that this view can be taken by us now with the benefit of hindsight provided by the amendment of Section 2(1) made on 1st December, 1975. This hindsight was not available when the suit was filed and hence neither was any objection taken to the jurisdiction of the civil court to entertaining the suit nor could it be said at that time that the suit was premature. The reason simply was that on 1st December, 1975 Section 2(1) had not been amended and neither of these two questions could be raised by the present appellant in defending the suit. This is why among the issues framed by the learned single Judge no such issue has arisen.

13. Mr. G.R chopra, learned counsel for the first, appellant, however, argued that in the light of the seven-Judge Bench decision of the Supreme Court he can argue a new point of law, namely that the termination of the tenancy can occur only when the controller passes an order of eviction in favour of the landlady and against the tenant. For this proposition he sought to rely on the expression “after the termination of his tenancy” used at a couple of places in Section 2(1). In our view, this expression must refer to the termination of the tenancy prior to the passing of the order of eviction by which the tenancy or the statutory protection comes to an end. For, even on the decision of the seven-Judge Bench of the Supreme Court, the tenant is entitled to continue in possession till the cause of action is established by the landlady under the provisions of the Act. On the proof of the facts entitling the landlady to evict the tenant the order of eviction would be passed and the tenancy-cum-statutory protection of the tenant would come to an end. This is one meaning of determination of tenancy which is inherent in every rent control legislation. But the expression “after the termination of his tenancy” used in Section 2(1) was enacted by the legislature when the law known to the legislature was that the termination of the contractual tenancy had to be made even before the proceeding for eviction under the Act could be launched. Since we are of the view that the use of the expression “termination of tenancy” in Section 2(1) refers to the termination of the tenancy under the Transfer of Property Act, we are unable to agree that it refers to the termination of tenancy-cum-statutory protection which is brought about by the order of eviction passed by the Controller. Moreover, even such termination of tenancy which is brought about by the order of eviction passed by the Controlled would come about only in a proceeding between the landlord and tenant. That is to say, when a landlord files a petition for eviction against a tenant under the provisions of the Act, then only it can be said that the order of eviction passed by the Controller would bring to an end the tenancy-cum-statutory protection of the tenant. But when, on the order hand, right from the inception the landlord's case is that he is seeking to evict a person who is not a tenant at all, the proceeding for eviction will have to be a suit based on title and filed in civil court. When the very basis of such a suit is the total absence of any relationship of landlord and tenant, no question can arise of the termination of tenancy by the order of eviction. The decree for possession which is passed by the civil court is not based on the termination of the landlord and tenant relationship. It is based on the finding that the premises belonged to the landlady and the defendant against whom a decree for possession is based have no right to stay in possession because they have no title to the premises in such a suit. The success of the suit is based on the very finding that the person against whom the decree is passed is not entitled to the benefit of inheriting the tenancy or the statutory protection of the deceased tenant. Of course, if the landlord fails to prove his case and the civil court finds that the person in possession had succeeded to the tenancy-cum-statutory protection of the deceased-tenant, then the suit will be dismissed with the necessary implication that the suit could not have been filed in the civil court at all inasmuch as the exclusive jurisdiction to entertain a petition for eviction by a landlord against a tenant would be vested in the Controller and the proceeding should have been under the Delhi Rent control Act and not outside it.

14. Mr. C.N Murthy, learned counsel for the respondent, contended that the respondent landlady took a calculated risk of standing or falling with the averment made in the plaint that the legal representatives of the deceased tenant had not inherited the tenancy-cum-statutory protection of the deceased tenant. If the landlady would have been unable to prove her case the suit would have been dismissed. On the hand, if she was able to prove her case as she was before the learned single Judge, then she was entitled to a decree for possession.

15. For the above reasons, out answer to the first question is that a civil suit is competent against the legal representatives of the deceased-tenant if the landlady can prove her allegation that the legal representatives concerned did not inherit the tenancy-cum-statutory protection of the deceased tenant and was not, therefore, entitled to remain in possession of the demised premises for more than one year after the death of the tenant. Since the respondent landlady has proved this case before the learned single Judge the suit filed by her against the appellant-defendant was competent.

16. Question 2:

The intention of the legislature is using the expression “not financially dependent on the deceased person on the date of his death” seems to be to make a distinction between a legal heir of the tenant who is in a position to maintain himself or herself without financial help from the deceased tenant and another heir who may not be in a position to do so himself or herself without any financial help from the deceased tenant on the date of his death. The means by which such a heir could maintain himself or herself may be of different kinds. They may be a liquid fund or they may be see label assets. What is to be seen is whether substantially speaking the heir was financially in a position to maintain himself or herself without any help from the tenant in case in was necessary for the heir to do so on the date of the death of the tenant. It may be that in actual fact till the tenant died the occasion for the heir to maintain himself or herself by his or her own means has not arisen. But that by itself could not mean that the heir was, in law, dependent financially on the tenant. It is the law and not the fact which has to prevail.

17. In the present case the financial means of the appellant-defendant were within her special knowledge. The burden of proof was, therefore, on her to show what her means were. Unfortunately, she was not well advised in the deposition which appellant No. 1 gave before the learned single Judge on this aspect of the case. In her examination-in-thief she said that she did not have any means of her own and was totally dependent on the tenant on the date of his death. In cross-examination she had to admit the she had borrowed a loan of Rs 2 lakhs with the help of which she constructed a house in 1971 and had let it out to the Australian High Commission for Rs 2500 per month. By the time Dr. Suraj Prakash died in June, 1972 the appellant had already paid off about Rs 60,000 out of the loan and had to pay Rs 1,40,000 or so of the loan. Assuming that the house was worth only Rs 2 lakhs which was the amount spent by her its much as Rs 60,000 had been paid off cut of the loan, even if the only assets possessed by the appellant is assumed to be this house the worth of the asset on the date of the death of the tenant was at least Rs 60,000, that is to say, the value of the house minus the liability of the repayment of the debt. It is also in evidence that Dr. (late) Suraj Prakash used to pay some amount to his wife, appellant No. 1 by way of salary, since she was a qualified Homeopathy practitioner. But she did not choose to come out truly as how much salary was paid to her by Dr. Suraj Praskash. The conduct of the appellant No. 1 was far from candid. An unfavorable view of her veracity, therefore, emerges from the way she has deposed about her income. In those circumstances, the finding of the learned single Judge that the appellant could not be said to be financially dependent on the deceased tenant on the date of his death is based on sufficient evidence and on good reasons. We see no reason to differ from it.

18. Out answer to the second question, therefore, is that the respondent plaintiff has succeeded in proving that the appellant-defendant was not financially dependent on the deceased tenant on the date of his death.

In view of our answers to the two questions raised above, the appeal is dismissed with costs.