Jharkhand Building Control Act | Family Member Residing With And Dependent On Deceased Tenant Qualifies As Legal Heir: High Court
Bhavya Singh
3 Dec 2024 10:00 AM IST
The Jharkhand High Court has held that a family member who resided with and was dependent on a deceased tenant qualifies as a legal heir under the proviso to Section 5 of the Jharkhand Building (Lease, Rent, and Eviction Control) Act, 2011.
The court thus set aside orders by the trial and appellate courts that had rejected the substitution application of a nephew of the deceased plaintiff, emphasizing that the statutory provisions were overlooked, leading to a perverse finding.
Justice Subhash Chand, delivering the judgment, emphasized the relevance of the proviso to Section 5 of the Act, stating, “In the very proviso first of this Section 5 it has been provided that the successor who has ordinarily been living or carrying on business with the deceased tenant as a member of family up to the date of her/his death and was dependant of the deceased tenant also will come in category of inheritance to tenancy. Herein it is also pertinent to mention that the suit which was filed by the plaintiff-tenant was simple suit for injunction and in view of Section 2 (11) of Code of Civil Procedure legal representative have been defined.”
“From the cumulative reading of Section 2 (11) of C.P.C. and the proviso of Section 5 of the Jharkhand Building (Lease, Rent and Eviction Control) Act, 2011 the petitioner who has averred himself to be the nephew of the deceased plaintiff and this very fact is very well corroborated with the pleadings of the plaint where the original plaintiff herself has stated that in the tenanted property she had been residing along with her near relative since the lifetime of her husband and after the death of her husband she had also been residing along with her near relative. As such the petitioner is the legal heir of the deceased-plaintiff and tenancy also comes within the category of tenant in view of the proviso of Section 5 wherein the inheritance to tenancy has been provided,” Justice Chand added.
The petitioner, Md. Naseem Khan, sought to set aside an order passed during an Original Suit and a Civil Miscellaneous Appeal, both of which had dismissed his application for substitution as plaintiff after the death of the original plaintiff, Most Badrun Nisha. The plaintiff had filed a suit for a permanent injunction to prevent forcible eviction from a property where she had been residing with her husband and near relatives.
The petitioner submitted that Most Badrun Nisha's husband had been a tenant of the property since 1962, paying a rent of Rs. 10, and that he had resided in the property along with near blood relatives. After his death in 2017, his widow, the plaintiff, continued to live there with the petitioner, whom they had cared for since his childhood. The plaintiff had claimed that the defendants, including Anjuman Islamia, had no legal rights over the property and were threatening to evict her without following the due course of law, prompting her to file the suit.
After her death on February 22, 2023, the petitioner applied to be substituted as the plaintiff, claiming to be her nephew and dependent legal heir. However, the trial court rejected the application, and this decision was upheld by the appellate court, which held that the petitioner did not qualify as a legal heir under Section 5 of the Jharkhand Building (Lease, Rent, and Eviction Control) Act, 2011. The respondents argued that the tenancy had terminated as the plaintiff died issueless and contended that the trial and appellate courts rightly rejected the application.
The High Court disagreed with these findings, pointing out that the trial court had overlooked the proviso to Section 5 of the Act, which explicitly includes family members who resided with and were dependent on the deceased tenant as legal heirs.
Justice Chand noted, “From the perusal of the very impugned order passed by the learned trial court, it is found that while rejecting the application of the petitioner, the learned trial court has overlooked the proviso of Section 5 of Tenancy Act. Herein it would be relevant to give the statutory provision of Section 5 of Jharkhand Building (Lease, Rent and Eviction Control) Act, 2011.”
Consequently, the High Court allowed the Civil Miscellaneous Petition, setting aside the orders of the trial and appellate courts. It directed the trial court to permit the petitioner to incorporate the necessary amendments in the plaint and substitute himself as the legal heir of the deceased plaintiff. The court also set aside the order of abatement passed by the trial court.
Case Title: Md. Naseem Khan vs The President, Managing Committee Masjid Dumka and ors
LL Citation: 2024 LiveLaw (Jha) 182
