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S.C. Pandey, J.
Nisar Ahmad Qureshi
vs
Smt. Hazra Begam Wd/O Dr. I.A. Khan
DECIDED ON : 2 August, 1996
ACCOMMODATION CONTROL ACT - SECTION 23-A, 12(4) - TRANSFER OF PROPERTY - MEANING OF 'ACQUIRE' AND 'TRANSFER' - INTERPRETATION - ACQUISITION OF ACCOMMODATION BY WILL - WHETHER A 'TRANSFER' WITHIN THE MEANING OF THE ACT - HELD, NO.
Fact of the Case:
The applicant/tenant challenged the order of the Rent Controlling Authority, Bhopal, which dismissed his application for dismissal of the non-applicant/landlady's application for eviction under Section 23-A(b) of the M.P. Accommodation Control Act, 1961 (the Act). The landlady claimed to be the owner of the suit house by virtue of a will executed by her father-in-law in her favor, which became operative upon his death on 11-1-1992. The application for eviction was filed within one year from the date of operation of the will on 4-11-1992. The applicant relied on the proviso to Section 23-A of the Act, which prohibits a landlord from filing an application for eviction within one year from the date of transfer.
Finding of the Court:
The court held that the words 'acquire' and 'transfer' in the proviso to Section 23-A and Section 12(4) of the Act are not used in a very wide sense, but in a narrow sense. The court found that the transfer of property on account of death is not designed because normally a death is not designed. It occurs naturally according to circumstance. Nobody can help passing of his property after his death in other hands. Law of succession merely regulates it. The will is merely a device given to a person, if recognized by law, to express his last will and testament. By writing a will one may change a mode of succession provided by general law. To that extent, if will, if recognized, is law upto itself. However, the property changes from one hand to another under a will on account of death and not on account of the will alone. A will can be changed during the lifetime of a person as many a time as the propounder likes. After the death of the maker, it is immutable. Thus, death plays a most vital role. Court such acquisition by will be operative after death of person was intended to be covered by legislature in the words 'acquire' or 'transfer'? It appears to this Court that such was not the intention. These words were confined to getting of ownership solely on the volition of transferor and the transferee without interference by any natural event like death. The word 'transfer' was used in the sense of 'conveyance' as understood in English law. The acquirement here refers to change of title on account of design of living persons for themselves or on behalf of some other persons including the juristic persons. The proviso to Section 23-A or Section 12(4) of 'the Act' cannot apply to a transaction when it become operative on the death of a party. Such acquirement of an accommodation would not be a transfer within the meaning of proviso to Sections 23-A and 12(4) of 'the Act'.
Issues: Whether the acquisition of an accommodation by will is a 'transfer' within the meaning of the proviso to Section 23-A and Section 12(4) of the M.P. Accommodation Control Act, 1961.
Ratio Decidendi: The court interpreted the words 'acquire' and 'transfer' in the proviso to Section 23-A and Section 12(4) of the Act in a narrow sense, holding that they refer to the getting of ownership solely on the volition of the transferor and the transferee without interference by any natural event like death. The court found that the transfer of property on account of death is not designed and occurs naturally, and that the law of succession merely regulates it. The court also noted that a will is a device given to a person to express their last will and testament, but that the property changes from one hand to another under a will on account of death and not on account of the will alone. The court concluded that the acquisition of an accommodation by will is not a 'transfer' within the meaning of the proviso to Sections 23-A and 12(4) of the Act.
Final Decision: The court dismissed the revision petition filed by the applicant/tenant, upholding the order of the Rent Controlling Authority, Bhopal.
S.C. Pandey, J.
1. This is a revision Under Section 23-E of the M.P. Accommodation Control Act, 1961 (Henceforth, 'the Act'). It is directed against the order dated 24th of January, 1995, passed by the Rent Controlling Authority, Bhopal, in Case No. 89/RCA/92-93.
2. The claim of the non-applicant/landlady was for eviction of the applicant/tenant from the suit house, based on Section 23-A(b) of 'the Act' and the applicant tenant contested it on merits by denying the existence of the ground on which his eviction was sought.
3. During the cross-examination of the non-applicant, it was discovered by the applicant, that she claimed to be the landlady of the suit house by virtue of the will executed by her father-in-law in her favour. The will became operative upon his death from 11-1-1992. The application for eviction Under Section 23-A(b) of 'the Act' was filed within one year from the date of operation of will on 4-11-1992.
4. Thereupon, the applicant, relying on the proviso to Section 23-A of 'the Act', filed an application for dismissal of the application of the non-applicant, filed Under Section 23-A(b) of 'the Act', for the reason that under the proviso a landlord is prohibited from filing any application for eviction within one year from the date of transfer. It was claimed that the non-applicant acquired the suit house by transfer upon the death of her father-in-law on 11-1-1992. She could have filed the application for eviction on the grounds mentioned in Section 23-A of 'the Act' only after 11-1-1993 i.e. after expiry of one year from the date of transfer and acquisition. Thus, in sum, the application of the non-applicant for eviction of the applicant was liable to be dismissed, as premature.
5. The Rent Controlling Authority, Bhopal, repelled the contention of the applicant and dismissed the application by the order impugned. The applicant has now approached this Court by this revision.
6. Before embarking upon a discussion of legal controversy at hand, it is necessary to point out that proviso to Section 23-A of 'the Act' is similar to Section 12(4) thereof. For the sake of convenience both are being reproduced hereinafter. The relevant proviso of Section 23-A of 'the Act' reads as under :-
"Provided that where a person who is a landlord has acquired any accommodation or any interest therein by transfer, no application for eviction of tenant of such accommodation shall be maintainable at the instance of such person unless a period of one year has elapsed from the date of such acquisition."
Section 12(4) of 'the Act' is as follows :-
"Section 12(4) Where a landlord has acquired any accommodation by transfer, no suit for the eviction of tenant shall be maintainable under Sub-section (1) on the ground specified in Clause (e) or Clause (f) thereof, unless a period of one year has elapsed from the date of the acquisition."
7. The aforesaid sections of 'the Act', thus, bar filing of a suit or an application, as the case may be, within one year from the date of acquisition of an accommodation. Therefore, if we read Section 12(4) and proviso to Section 23-A (ibid) together, we shall find that the most important words are 'acquired any accommodation or any interest therein by way of transfer' in the proviso are comparable to 'acquired any accommodation by way of transfer'. The omission of words 'any interest therein' in Section 12(4) of 'the Act' would make only marginal difference and is not relevant for our purpose. We are here required to interpret the words 'acquired by way of transfer' in both the sections because they are pari materia.
8. Shri S. C. Jain, counsel for the applicant argued that the Court must give widest connotation to words 'acquired' and 'transfer'. The learned counsel argued that absence of any limitation in the proviso to Section 23-A (ibid) would not be the function of the Court to confine the words to any particular mode of transfer. He asserted that in whatever manner the property passes from one person to
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