KENNETH SOLOMAN V DAN SINGH BAWA, AIR 1986 DEL 1
FACTS
- The dispute related to the tenancy rights of the tenant, which he had bequeathed in favour of his heirs.
- On his death, the beneficiaries under his Will took possession of the tenanted premises as the contract of lease was still subsisting.
- The landlord filed a suit for eviction on the ground, that this transfer of the premises amounted to a violation of the provisions of the Delhi Rent Control Act, 1958, as the tenant had ‘parted with possession’ of the premises in dispute without the permission of the landlord.
ISSUE
- Whether a person parts with possession of the property through a devise of will, and not whether such parting amounts to transfer within the meaning of S.5, TPA?
HELD
- Will is 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 the Will as distinguished from other kinds of instruments disposing of property is its revocable nature as it is ambulatory until the death of the testator.
- Till the death of the testator, it is barely an expression of intention to deal with the property in a specific manner, but the moment the testator dies, it has the effect of vesting the property, that is the subject matter of the bequest on the beneficiary.
- At that point of time, it would have the same 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 testator.
- Holding that a violation of the lease agreement had taken place by bequeathing tenancy rights, the legatee under the Will was directed to vacate the premises.