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Transmission of Tenancy of Pagdi Building

Tenancy rights have always been considered as a valuable property right, often leading to disputes on the death of a tenant and dispute & confusion as to who qualifies as a member of the tenant’s family to be entitled to inherit the tenancy rights of premises from the deceased tenant.

In Maharashtra, tenancy rights are regulated under the Maharashtra Rent Control Act, 1999, which repealed the Bombay Rents, Hotel and Lodging Houses Rates Control Act, 1947. Rent control legislation has been primarily undertaken to save tenants from the harassment tactics of landlords and to curb the harassment of the landlords and normalize their relations with the tenants.

Upon the death of the tenant, the question arises of who shall inherit the tenancy rights of the tenanted premises? Which member of the family shall qualify as the successor to the tenancy rights?

Section 7 (15) (d) of the 1999 act states that a member of a tenant’s family, who has been residing with the deceased tenant at the time of his/her death shall qualify first from the family as the successor to inherit the tenancy.

It is therefore clear that the right to tenancy on the death of a tenant is extended to the members of the family who were particularly participants in the benefits of the tenancy, and were residing with the deceased tenant in the tenanted premises, or continuously operating the premises for commercial purposes, as the case may be. Only when such a member or members are not available and other legal heirs come into the picture, and the court would then decide in such cases as to who is to be treated as the tenant.

Therefore, succession to tenancy rights under the 1999 act is a clear departure from the general rules of succession laws, as heirs who would normally qualify as successors under the succession laws may not qualify as heirs to the tenancy rights under the 1999 act.

Bombay High Court & even SC has held that:

Testamentary succession is not possible, as the statutory tenancy rights are personal to the tenant and hence a tenant cannot bequeath his tenancy rights by a testamentary document.

Priority is always to be given to the family member who resided along with the deceased tenant. “If the word ‘heir’ is to be interpreted to include a ‘legatee’, even a stranger may have to be inducted as a tenant, as there would be no embargo upon a stranger being a legatee”.

The word ‘heir’ would be confined to only members of the family, and introducing a restrictive meaning would not be accepted.

The word “family” of the deceased tenant did not part with the ordinary meaning of the word “family” as held in common parlance, and included family as consisting of father, mother, sons, daughters and all such blood relations and other relations arising from lawful marriages.

The act protects only those who were really blood relations of the family. The definition of “resides” as per the judgment was construed to be something that is more than a temporary stay. The character of residence is adopted, and such residence must be permanent in nature.

The Rent Act does not recognize members of a joint family or the joint family itself, to be a tenant within the meaning of the Rent Act. Section 5(11) of the Rent Act defines "tenant" as any "person by whom or by whose account, the rent is payable to the landlord". Sub-clause (c) of sub-section 5(11) further expands this definition to mean any member of the tenant's family residing with the tenant at the time of his death. The joint family is thus not included in the definition of "tenant" under the Rent Act and by extension, cannot include members of such a joint family.

A tenant had to necessarily mean a single person and not a joint family, either as a unit or any of its members individually.

After the death of the original tenant, tenancy rights cannot be inherited by any member of the family of the deceased by claiming to be in a joint family set-up.

“From a plain reading of the rules, it is difficult to accept the contention that the provisions recognise that every member of the joint family or the joint family itself becomes a tenant under the Bombay Rent Act.”

A tenant necessarily has to be a person (spouse, children, parents or children-in-law) and not otherwise, and certainly not a joint family as a unit. The legislature has avoided including in any such incident a joint family to be a tenant within the meaning of the rules,”

Conclusion

Thus, succession to tenancy rights is based on possession and enjoyment of tenancy rights of a family member who has resided with the deceased tenant. Therefore the ‘heir’ who wishes to claim tenancy rights of the deceased tenant must prove that he/she was permanently residing with the deceased tenant at the time of his/her death. Only such an “heir” will get priority over all other members of the family with respect to the inheritance of such tenancy rights over the premises.

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