Can A Rented Property Be Bequeathed Through A Will In Maharashtra?

After a tenant passes away, tenancy rights in a property can result in litigation and disagreements. It is often questioned that can tenancy property be bequeathed in the testamentary succession i.e. through writing a Will? Tenancy property can not be bequeathed through a Will. But it can be inherited, only if it is permitted under the Rent Control Laws. Every State has their own laws with respect to the rent and have different provisions. In this article, we will discuss the succession of tenancy property or the rights of the legal heirs of a tenant in the State of Maharashtra.

Section 7(15)(d) of the Maharashtra Rent Control Act, 1999 (hereinafter referred to as “Act”) defines tenant as follows:

7(15) \"tenant\" means any person by whom or on whose account rent is payable for any

premises and includes:

(d) in relation to any premises, when the tenant dies, whether the death occurred before or

after the commencement of this Act, any member of the tenant's family, who,-

(i) where they are let for residence, is residing, or

(ii) where they are let for education, business, trade or storage, is using the premises for any such purpose, with the tenant at the time of his death, or, in the absence of such a member, any heir of the deceased tenant, as may be decided, in the absence of agreement, by the court.

Explanation

The provisions of this clause for transmission of tenancy shall not be restricted to the death of the original tenant, but shall apply even on the death of any subsequent tenant, who becomes tenant under these provisions on the death of the last preceding tenant.

Now, the uncertainty surrounding the issue of who qualifies as a member of the tenant's family and is entitled to tenancy rights in a premises following the death of the tenant as the successor to the tenancy rights is at the heart of the majority of such conflicts.

It is quite evident from the bare perusal of the law that the right to tenancy after the death of the first tenant extends to family members who were specifically enjoying the benefits of the tenancy and were living with the deceased tenant in the rented premises or constantly using the premises for commercial purposes,  often excluding legal heirs who would otherwise be entitled to the same. Because heirs who would typically qualify as successors under the succession laws may not qualify as heirs to the tenancy rights under the Act, succession to tenancy rights under the Act is a clear divergence from the ordinary norms of succession laws.

The court must then decide in such circumstances who is to be recognised as the tenant because other legal heirs will only become involved if such a member or members are unavailable. 

Case laws

In the case of Vasant Pratap Pandit v. Anant Trimbak Sabnis (1994), the Supreme Court held that testamentary succession is not possible because the statutory tenancy rights are personal to the tenant and therefore a tenant cannot bequeath his tenancy rights by a testamentary document. This case dealt with the provisions of the Bombay Rents, Hotel and Lodging Houses Rates Control Act, 1947.

Then the Bombay High Court ruled in Jaysen Jayant Rele & Ors v. Shantaram Ganpat Gujar & Ors (2002) that the use of the word \"family\"  of the deceased tenant included father, mother, sons, daughters, and all other such blood relations as well as other relations arising from lawful marriages.

Further in the case of Urmi Deepak Kadia v. State of Maharashtra (2015), the Court addressed the issue of the apparent divergence of Section 7(15)(d) of this Act from the provisions of the Hindu Succession Act, 1956, as legal heirs who would qualify as successors under the Hindu Succession Act, 1956 may not necessarily qualify as legal heirs to the tenancy rights under this Act and held that there is no conflict since the areas covered by both the acts differ.

In the case of Vasant Sadashiv Joshi v. Yashwant Shankar Barve (2020), the Bombay High Court ruled in a decision that a Joint Hindu Family cannot inherit tenancy rights as a group, and an individual cannot assert an independent right or inheritance of tenancy in a property simply by virtue of being a member of a Joint Hindu Family.

Given the numerous eviction lawsuits concerning the issue of tenancy rights being passed down through inheritance that are currently pending in Maharashtra, the observations made by the courts in these several rulings are of utmost importance.

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(Disclaimer: This article is only published for informative purposes and is not to be treated as legal advice. The observations made by the Courts vary with circumstances and facts of each case.)