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Dattaram Shripat Khurase Vs. Harkisondas Laxmidas Ghaswalla - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 378 of 1972
Judge
Reported in(1979)81BOMLR175
AppellantDattaram Shripat Khurase
RespondentHarkisondas Laxmidas Ghaswalla
Excerpt:
bombay rents, hotel and lodging house rates control act (bom. lvii of 1947), section 5(11) (c)-civil procedure code (v of 1908), order ix -- abatement of suit--whether if the plaintiff foils to bring on record the legal heirs of one of the defendants who is a tenant of certain premises, the entire suit for eviction abates-whether it is proper to apply the concept of joint tenancy as generally understood for the purposes of application of the principles of survivorship in the case of a statutory tenant.;so far as the landlord is concerned, there is only one tenancy and merely because the tenants are more than one in number, there cannot be said to be more than one tenancy in respect of the suit premises.;mt. bohu rani v. rajendra baksh [1933] a.i.r. p.c. 72 : s.c. 35 bom. l.r. 490 kishori.....chandurkar, j.1. the question which arises in this petition is whether if the plaintiff fails to bring on record the legal heirs of one of the defendants who is a tenant of certain premises, the entire suit for eviction abates. the question arises on the following facts:2. a shop, in what is known as ghaswalla estate, old chawl, house no. 493 arthur road, bombay 7 belonging to the plaintiff-respondent no. 1, was originally tenanted by one shripat arjun khurase who admittedly died some time in the year 1946. after the death of the original tenant, his three sons and widow, defendants nos. 1 to 3 and defendant no. 4 respectively, were treated as monthly tenants in respect of the shop premises. alleging that the four defendants who were in occupation of the suit shop premises were in arrears.....
Judgment:

Chandurkar, J.

1. The question which arises in this petition is whether if the plaintiff fails to bring on record the legal heirs of one of the defendants who is a tenant of certain premises, the entire suit for eviction abates. The question arises on the following facts:

2. A shop, in what is known as Ghaswalla Estate, Old Chawl, House No. 493 Arthur Road, Bombay 7 belonging to the plaintiff-respondent No. 1, was originally tenanted by one Shripat Arjun Khurase who admittedly died some time in the year 1946. After the death of the original tenant, his three sons and widow, defendants Nos. 1 to 3 and defendant No. 4 respectively, were treated as monthly tenants in respect of the shop premises. Alleging that the four defendants who were in occupation of the suit shop premises were in arrears of rent for the period September 1, 1962 to March 31, 1963, a notice dated April 18, 1963 was issued terminating the tenancy of defendants Nos. 1 to 4. The defendants were also called upon to pay the arrears of rent for the above mentioned period at the rate of Rs. 11.78 per month along with an extra amount of Rs. 10 per month on account of insurance premium for the said shop. Defendants Nos. 1 to 4 were alleged to have failed to pay- the arrears of rent and, therefore, according to the plaintiff, they were liable to be ejected from the premises. The Court Receiver, who was alleged to be in actual possession of the premises, was joined as defendant No. 5. Thus the plaintiff prayed for a decree of ejectment. The suit came to be filed on March 31, 1965. It appears that two separate statements of defences came to be filed, one on behalf of defendants Nos. 2 and 3 and the other on behalf of defendants Nos. 1 and 4. The defences are identical and, according to the defendants, all arrears of rent had been paid by the Court Receiver long before the filing of the suit and that after the Receiver was discharged, defendants Nos. 1 and 3 had tendered rent from time to time to the plaintiff, but he refused to accept the same on the pretext that the accounts between him and the Court Receiver were not settled. It was stated that the defendants were always and at all times ready and willing to observe the terms and conditions of tenancy.

3. Defendant No. 3, however, died on November 4, 1968. An application for bringing the legal representatives of deceased defendant No, 3, however, was not made within the prescribed period of limitation. It appears to have been made on July 21, 1969. It is not necessary to go into the details of the plea taken by the plaintiff explaining the delay in making the application and it is sufficient to state for the purposes of the present petition that the trial Court took the view that the plaintiff had not satisfactorily explained the delay in making the application, The; application was therefore, rejected on the ground of limitation.

4. At this stage it appears that a contention was raised on behalf of the defendants that as a result of the failure to bring on record the legal representatives of defendant No. 3, the entire suit must be held to have abated. The trial Court, however, took the view that such a contention was not within the scope of the Notice of Motion with which it was dealing and, therefore, declined to consider the question as to whether the entire suit had abated.

5. Thereafter defendant No. 1 made an application in November 1969 contending that the entire suit had abated and that since the heirs of one of the defendants, that is, defendant No. 3 were not before the Court, no effective decree could be passed. In reply to this application, the plaintiff took up the stand that after the termination of the tenancy, the defendants continued to be in possession only as statutory tenants having only a personal right of occupation and having no transferable interest. Therefore, according to the plaintiff, the heirs of defendant No. 3 could not inherit any interest in the tenancy of the suit premises and thus the right to sue survived against the remaining defendants who were only statutory tenants. It was argued before the trial Court that defendants Nos. 1 to 4 were joint tenants and on the death of defendant No. 3, his interest in tenancy rights would devolve by survivorship on defendants Nos. 1, 2 and 4 only. This contention, however, was not accepted by the trial Court. The trial Court took the view that the right of defendant No. 3 as a statutory tenant to remain in possession of the suit premises devolved on the heirs of defendant No. 3 and they would also be entitled to continue in the premises as tenants under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the 'Rent Act') and as such, the suit cannot be proceeded with only against the remaining statutory tenants without joining the heirs and legal representatives of the deceased statutory tenant. The trial Court held that on the death of the statutory tenant if the heirs and legal representatives stepped into his shoes and they also become statutory tenants, no effective decree could be passed in the absence of the heirs of defendant No. 3 and the tenancy being one and indivisible, any such decree would riot be binding on the heirs and legal representative of defendant No. 3. The trial Court, therefore, took the view that on account of the abatement of the suit against defendant No. 3, the suit must be held to have abated as a whole and the plaintiff's suit came to be dismissed.

6. The plaintiff's appeal against this order of dismissal of the suit was heard by the appeal Bench of the Small Cause Court at Bombay. The appeal Bench took the view that after the death of the original tenant, the heirs of the original defendant had inherited rights of tenancy as joint tenants and the estate being inherited was governed by the rule of devolution by survivorship. It took the view that on the death of one of the joint tenants, the tenancy rights passed on to the remaining tenants by survivorship and, therefore, even though defendant No. 3 died pending the suit, 'the whole bundle of tenancy rights passed on to the remaining defendants as survivors and not as tenants in common'. Thus according to the appeal Bench, the suit did not abate as a whole no the death of defendant No. 3.

7. It appears that it was argued before the appeal Bench that when the suit was filed, all the four defendants were not contractual tenants but were only statutory tenants and as such, deceased defendant No. 3 had no proprietary rights in the tenancy but had only personal right to occupy the premises and as such it was not necessary to bring his heirs on record. This contention was not accepted by the appeal Bench. The reason given was that

. . .even in case of such a tenant the right to occupy is there and if he Idles that right would devolve on his heirs and legal representatives.

The appeal Bench, however, further observed:

. . .This Is, of course, subject to what we have said on the point of passing of the tenancy by survivorship among the joint tenants.

Even the appeal Bench thus seems to have taken the view that in the case of death of one of the tenants, his heirs had a right to occupy the tenanted premises. It is, however, difficult to appreciate what the appeal Bench meant by saying that this was subject to the passing of tenancy by survivorship among the joint tenants. However, in view of the finding that the interest of the deceased tenant in the tenancy passed to the surviving tenants on the principle of survivorship, the appeal Bench set aside the order of abatement passed by the trial Court and directed the suit to proceed according to law. This order is challenged by defendant No. 1 in this petition.

8. Mr. Jadhav appearing on behalf of defendant No. 1 has contended that when a tenant of the premises dies, his heirs take the estate as tenants-in-common and not as joint tenants and, therefore, according to the learned counsel, the entire reasoning of the appeal Bench that the principle of survivorship operated in the case of statutory tenants was misconceived. According to the learned counsel, if defendants Nos. 1 to 4 were the original tenants-in-common of the suit premises, after the death of defendant No. 3, his heirs would succeed to his interest in the tenancy and those heirs would have a right to be treated as statutory tenants jointly along with the other persons and inasmuch as the suit against defendant No. 3 has been held to be abated, if a decree of eviction is now passed in favour of the remaining defendants, that decree would be inconsistent with the decree of abatement and will result in inconsistent decrees coming into being. Thus, according to the learned counsel, the entire suit must be held to be abated. Mr. Jadhav has relied on a decision of the Privy Council in support of his contention that the joint tenancy in the sense in which the concept has been understood by the appeal Bench is unknown except in the case of joint family property. Such a principle, therefore, according to the learned counsel could not be invoked in the case of the relationship between several tenants inter se who, no doubt, hold certain tenanted premises jointly. It is not necessary to refer to the several authorities relied upon by Mr. Jadhav, but it is sufficient to mention two decisions, namely, Mt. Baku Rani v. Rajendra Baksh and Kishori Dubain v. Mundra Dubain ILR(1911) All. 665.

9. On behalf of the plaintiff, however, it was disputed by Mr. Thakkar that originally defendants Nos. 1 to 4 were all statutory tenants, but, according to the learned counsel, tenancy was one and indivisible and the right which defendant No. 3 had as a statutory tenant was a right to occupy the premises personally. According to the learned counsel, the heirs of defendant No. 3 had no right whatsoever and the tenancy qua the landlord being a joint tenancy, the surviving three defendants being parties to the suit, the question of abatement did not arise. Mr. Thakkar supported the view taken by the appeal Court that the rights of defendant No. 3 as a statutory tenant would pass to the other tenants after his death on the principle of survivorship. Alternatively it was contended that defendants Nos. 1 to 4 constituted a joint Hindu family and if the defendant No. 1 wanted to show that defendant No. 3 was not joint and that he could not represent the entire family as a karta, it was for the defendants to bring the material facts on record to show that defendant No. 1 could not represent the entire family as a karta. It was contended that defendant No. 1 being on record as karta, there was no question of the abatement of the entire suit.

10. It may be stated at this stage that originally when the petition was heard, there was no appearance on behalf of the plaintiff and since the question raised on behalf of the defendants appeared to pose some difficulty, I had requested Mr. Apte to assist the Court in this petition. In view of this, even after Mr. Thakkar had appeared in the proceedings, I had heard Mr. Apte who wanted to cite certain authorities.

11. Mr. Apte contended that the premises in dispute were business premises. Since the right of a statutory tenant under the Rent Act is a personal right, if the heirs of defendant No. 3 wanted to show that they had succeeded to certain rights, that could be done only via the provisions of Section 5(11) of the Rent Act and they were, therefore, bound to show by invoking the provisions of Section 5(11)(c) and by applying them mutatis mutandis that along with the surviving defendants the heirs of defendant No. 3 were also carrying on business. In support of the proposition that the right of a statutory tenant is personal, Mr. Apte has referred to the decision in Anand Nivas (P) Ltd. v. Anandji : [1964]4SCR892 , which, according to Mr. Apte was also followed by the Supreme Court in a later decision in J.C. Chatterjee v. S.K. Tandon : [1973]1SCR850

12. The real question which is, therefore, posed for consideration in this case is whether it is proper to apply the concept of joint tenancy as generally understood for the purposes of application of the principle of survivorship in the case of a statutory tenant.

13. In the instant case, the original tenant had died long back and it is clear on the averments in the plaint that the plaintiff himself had treated defendants Nos. 1 to 4 as persons who had tenancy rights. They were described as tenants in the plaint itself and though it is not clear on the averments in the plaint as to whether four separate notices of termination of tenancy were issued, the plaint in so many terms states that -The plaintiff, therefore, by his advocate's notice dated April 18, 1963 terminated the tenancy of the defendants No. 1 to 4 in respect of the said shop No. 1...

Now, it is, no doubt, true that so far as the landlord is concerned, there is only one tenancy and merely because the tenants are more than one in number, there cannot be said to be more than one tenancy in respect of the suit premises as between the tenants on the one side and the landlord on the other. As between the tenants themselves, there is unity of possession giving right to each one of the defendant-tenants to occupy and use the tenanted premises. The concept of one tenancy vis-a-vis the landlord appears now to be a settled position in law. This question was considered by a Full Bench of the Lahore High Court in Moti Lal v. Kartar Singh AIR[1930] Lah. 515, in which dealing with a joint occupancy and tenancy in respect of land, it is pointed out that the tenants as between themselves hold their shares independently of each other and on the death of any one of them, his share passes to his own heir or heirs but as against the landlord, they or their heirs taken together constitute a single tenant. This decision was considered by this Court in Ramubai v. Jiyaram Sharma : AIR1964Bom96 where the question was as to whether a notice to quit given to one of the joint tenants was a valid notice to all or whether the notice to quit had to be served on all the joint tenants. The facts in that case were that the tenanted premises were occupied by tenant Bhagwanbhai against whom the landlords started proceedings for permission! to terminate the tenancy before the Rent Controller. Bhagwanbhai died during the pendency of those proceedings and the widow, the sons and the married daughters of Bhagwanbhai were brought on record. The necessary permission having been granted by the Rent Controller, a notice addressed to all the eleven defendants was issued calling upon them to vacate the premises. This notice was not served on one of the married daughters of deceased Bhagwanbhai. The plaintiff, therefore, issued a second notice which was also addressed to all the eleven defendants, but it was served on some of the defendants.. In the suit for ejectment, the main defence was that the tenancy of the joint tenants had not been terminated according to law. The contention was that under the Hindu Succession Act, 1956, the heirs of the deceased took the property as tenants in common and not as joint tenants and that each of the defendants, inherited the property, namely, the leasehold property in his or her own right as a tenant-in-common. Thus, according to the defendants in that case, since they did not inherit the leasehold interest as joint tenants, each of them had separate interest in the property which would devolve in case a succession of such interest arises to his heir or heirs. There was thus no right of survivorship inter se amongst the heirs in respect of the leasehold interest and each one of the heirs was entitled to individual notice if that leasehold interest is to be terminated according to law. The contention was that the leasehold interest of the defendants Nos. 1 to 10 was terminated by the first notice with effect from August 4, 1961 while the second notice served on defendant No. 11 terminated the tenancy with effect from September 4, 1961. Therefore, according to the defendants, the lease was not properly terminated. It was contended on behalf of the plaintiffs that the concept of holding property either as joint tenants or as tenants-in-common had nothing to do with the relation of tenant as a whole. The question which was, therefore, posed for consideration of this Court was whether when a lease is given to more than one person, it can be held that they are joint tenants. Referring to the decision, in Moti Lal's case cited supra and to the decision in White v. Tyndall (1883)13 A.C. 263 and United Dairies Ld. v. Public Trustee [1923] 1 K.B. 469 where it was held that each of the tenants had a share in every part of the estate and it would be true to say that there was a privity of estate between him and the landlord in the whole of the leased property and, therefore, each was liable to perform the covenant contained in the lease in its entirety, this Court observed as follows (p. 651):.If that be the true position with respect to totality of the rights under the leasehold and there is unity of enjoyment and possession in respect of leasehold property vis-a-vis the landlord, it is difficult to see why notice to one of these joint tenants could not be considered as a valid notice to all provided such a notice was given.

It was also pointed out in Ramubai's case that the phrase 'tenants-in-common' or 'joint tenants' used in Section 19 of the Hindu Succession Act or in other texts when considering the rights of owners of property inter se cannot be confused with the right to hold land as joint tenant in the sense of joint lessees or co-lessees or co-tenants of property and that the word 'tenant' in Section 19 was not used in the sense of lessees. It was pointed out that it is an incident of ownership that has been referred to in Section 19 and that incident in the case of persons holding as tenants-in-common is that the devolution in the case of each of these tenants-in-common would be according to the personal law while in the case of persons holding as joint tenants, it will be by survivorship. In Ramubai's case, this Court observed that it is preferable to refer to rights of more than one person holding under the leasehold vis-a-vis the landlord as co-tenants or co-lessees. Thus it was pointed out that if understood in that sense, there will be no difficulty in holding that all the co-lessees or co-tenants held as joint tenants in the sense that they had a single relationship with the landlord and they were not different tenants vis-a-vis the landlord.

14. With respect I agree with the decision in Ramubai's case that the correct way and proper terminology of describing persons who are in number more than one holding as tenants of property would be 'co-tenants' or 'co-lessees' and when they are said to hold the tenanted premises as joint tenants, it is intended to indicate that they have a single tenancy relationship with the landlord and they are not different tenants vis-a-vis the landlord. Thus the question of applicability of the principle of survivorship, which is typical of the concept of devolution of property under the Hindu law or even under the Hindu Succession Act will be wholly inapplicable in the case of a statutory tenancy like the one with which we are dealing.

15. As pointed out by the Privy Council in Mt. Baku Rani v. Rajendra Baksh, the principle of joint tenancy is unknown to Hindu law except in the case of joint property of an undivided Hindu family governed by the Mitakshara Law which under that law passes by survivorship.

16. The same view was taken by the division Bench of the Allahabad High Court earlier in Kishori Dubain's case cited supra, where after referring to the earlier decisions of the Privy Council, it was pointed out that the principle of joint tenancies is unknown to Hindu law except in the case of coparcenery between the members of an undivided family. Thus the concept of joint tenancy and property going by the principle of survivorship to the surviving joint tenant which is, typical of coparcenery property governed by the principles of Hindu law cannot be made applicable in the case of a tenancy right.

17. The appeal Bench was, therefore, clearly in error in holding that the tenancy rights devolved by survivorship on the remaining tenants, namely, defendants Nos. 1, 2 and 4 after the death of defendant No. 3.

18. It is too late in the day to dispute the proposition that the interest of a statutory tenant passes on to his heirs apart from the fact that this position is, expressly provided for by the definition of 'tenant' in Section 5(11)(c) of the Rent Act which refers to a member of the tenant's family residing with him at the time of his death as being included in the definition of a tenant. It has been so held by this Court in Jam Manufacturing Co. v. Sadashiv (1965) 68 Bom. L.R. 152. A division Bench of this Court has in that case clearly held that to the limited extent stated in Section 5(11)(c) of the Rent Act, the tenancy of a statutory tenant is transmissible and heritable. The division Bench has in that case observed (p. 154):.The protection is given to the members of the family of the tenant, because they would have been in most cases entitled to succeed to his interest and would have continued there, had he been a contractual tenant and also to avoid hardship to them. The Legislature, therefore, partly adopted the principle of transmissibility by death intestate of the tenant to such members, of his family as were living with him, that is, created partial right by succession. In short, it put the successors in place of the tenant, If that is correct, then the conclusion is that the successor steps into the shoes of the tenant from the stage where he left off.

Later after referring to certain English decisions, the division Bench observed (p. 157):

English decisions are no doubt entitled to great respect but they do not bind us. The principle underlying Section 5(11)(c) appears to us to be one of succession or inheritance, for the right can only avail a member of the family of the deceased tenant and provided he or she lived with him. The right of the statutory tenant is treated as strictly personal right, and hence the difficulty of arriving at a satisfactory solution of the problem. Moreover, the section applies to contractual tenancies also. It seems to us, that it would produce more just result and avoid procedural delays if it is held, that the Legislature which created the 'statutory tenant also willed that, to the limited extent stated in Section 5(11) (c), his tenancy is transmissible, and heritable.

A question was raised in that case that having regard to the provisions of Section 5(11)(c) of the Rent Act, the general law of inheritance was modified. The division Bench declined to go into that question and left the matter open with the following observations (p. 158):

It is possible to argue that succession to the tenancy governed by the Rent Act is limited to those who fall within Section 5(11)(c), this being a special provision and that, to this extent, the general law is modified. However, that is a different matter.

19. Though the matter rested there for the purposes of that decision, the question posed by the division Bench came up for consideration recently before another division Bench in Rajaram v. Ramraj (1977) Second Appeal No. 452 of 1977 decided by Deshmukh and Sapre JJ., on July 1, 1977, now reported in [1977] M. L.J. 792 : 80 Bom. L.R. 12. The question posed there was (p. 793):.whether the provisions of section 5(11)(c) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (briefly, 'the Rent Act') are meant to supersede the right of inheritance to the tenancy vesting in the heirs on the death of the tenant, under the personal law of the party.

20. The division Bench held that the provisions of Section 5(11)(c) of the Rent Act are not meant to supersede the right of inheritance to the tenancy vesting in the heirs on the death of the tenant under the personal law of the party and that the provisions of Section 5(11)(c) must yield to the superior right of inheritance to the tenancy vesting in the heirs on the death of the tenant under the personal law of the party. That second appeal arose out of a suit filed by the plaintiffs who claimed to be the sons of the deceased tenant. The suit was for a declaration that they were the tenants of the suit room because they were the heirs of the original tenant. The contesting defendant in that suit was a person who was saying with the deceased tenant at the time of the latter's death. According to the contesting defendant, he alone was in possession of the suit room at the time of the death of the original tenant and he alone was the tenant of the suit room as defined in Section 5(11)(c) of the Rent Act. The division Bench held that the suit was based on title and that defendant No. 1 had no right, title or interest in the suit room and was liable to be evicted.

21. The two division Bench decisions referred to above thus clearly take the view that the interest of a statutory tenant is transmissible, it is heritable and the heirs of the deceased tenant under the personal law are entitled to succeed to the tenancy rights in preference to the person who claims the right of a statutory tenant by virtue of the provisions in Section 5(11)(c) of the Rent Act. If that be the position of the law, then the heirs of defendant No. 3, who had been treated as a co-tenant along with the other three defendants, would succeed to his rights as of the co-tenant after the death of defendant No. 3. Consequently, all the heirs taken together along with the three remaining tenants would share the tenancy rights and all of them would be treated as tenants holding a common tenancy vis-a-vis the landlord. As long as a decree for eviction is not passed against them, they will be entitled to continue in possession of the tenanted premises. Unfortunately for the plaintiffs, the suit against the heirs of defendant No. 3 has been dismissed as having abated because they had failed to bring the legal representatives of defendant No. 3 on record within the prescribed period of limitation. There is thus a decree of dismissal in respect of such of the tenancy rights as had devolved on the heirs of defendant No. 3 by inheritance. If those rights are now intact, it is difficult to see how a suit for possession of the entire tenanted premises could be successfully decreed in favour of the plaintiffs by continuing the suit only against the remaining defendants. Clearly two contradictory decrees would come into being which is not permissible under the law.

22. It is, no doubt, true, as argued by Mr. Apte, that the Supreme Court in Anand Nivas's case has held that the rights of a statutory tenant are personal rights, but at the same time the Supreme Court has not ruled out devolution of the tenant's rights in case of the death of the statutory tenant. On the other hand, the Supreme Court has pointed out in Anand Nivas's case that the rights of a statutory tenant devolve on his death only in the manner provided by the statute. The question whether the rights Devolve according to the personal law or not was not considered by the Supreme Court and so far as I am concerned, the division Bench decision of Deshmukh and Sapre JJ. is binding on me. Therefore, merely on the ground that the rights of a statutory tenant are personal, it will not be open to the landlords' to invoke the principle of survivorship which, as I have earlier pointed out, is wholly inapplicable in the case of leasehold rights held by a statutory tenant.

23. It is also not possible to accept the argument advanced by Mr. Apte that Section 5(11)(c) refers to a person residing with the tenant and that the suit premises being business premises, unless the heirs of defendant No. 3 are in a position to show that by the application of the provisions of Section 5(11)(c) mutatis mutandis they were also carrying on business in the suit premises, there was no hurdle in the way of the plaintiffs to get 4 decree for possession even in the absence of the heirs of defendant No. 3.

24. The question as to whether the provisions of Section 5(11)(c) are attracted in the case of business premises was also! considered by another division Bench of this Court in Shantabai v. Ganpat : AIR1976Bom288 . It was held by the division Bench in that case that a member of the tenant's family residing with him at the time of his death would be entitled to the protection of the Rent Act in relation to any premises including business premises of which the deceased was a tenant at the time of his death. It was pointed out that in Section 5(11)(c) there was no indication that the protection granted by that provision was limited to those premises in which the tenant and members of his family were residing at the time of the tenant's death and if one were to hold that Section 5(11)(c) has reference to the premises which were occupied by the tenant in which the members of the tenant's family were residing with him at the time of his death, then one would be introducing words in, the section which do not exist and this was not permissible. Thus the division Bench has taken the view that the definition of a tenant applies equally in respect of the business premises. In view of the decision earlier referred to, that the personal law of the tenant is not ruled out for the purposes of deciding as to on whom the tenancy rights have devolved and in view of the decision in Shantabai's case, it is clear that the tenancy in respect of business premises will also devolve on the heirs of the statutory tenant according to the personal law.

25. There is also a statement made by the constituted attorney of the plaintiff in his affidavit dated March 20, 1970 that after the termination of the tenancy, all the defendants continued in possession only as statutory tenants, though it is stated that they had only personal right of occupation and had no transferable interest. This statement becomes important because the possession of defendant No. 3 is admitted. It is that right to possession as a tenant which has been inherited by the heirs of defendant No. 3. On this ground also, therefore, it will not be possible now to pass a decree in respect of the same premises with regard to which the suit has been dismissed already as against the heirs of defendant No. 3.

26. Some reliance was sought to be placed by Mr. Apte on two decisions of the Supreme Court in Daya Ram v. Shyam Sundari : [1965]1SCR231 , and Mohd. Sulaiman v. Mohd. Ismail : [1966]1SCR937 , for the proposition that if the estate of the deceased is sufficiently represented, then the suit will not abate. In Daya Ram's case the Supreme Court pointed out that 'where the person brought on record is a legal representative it would be consonant with justice and principle that in the absence of fraud or collusion the bringing on record of such a legal representative is sufficient to prevent the suit or the appeal from abating' and where the impleaded legal representative sufficiently represents the estate of the deceased, the decision obtained with them on record will bind not only those impleaded but the entire estate including those not brought on record. In Mohd. Sulaiman's case the same principle has been laid down and it was observed that where on account of a bona fide error, the plaintiff seeking relief institutes his suit against a person who is not representing the estate of a deceased person against whom the plaintiff has a claim either at all or even partially, in the absence of fraud or collusion or other ground, which taint the decree, a decree passed against the persons impleaded as heirs binds the estate, even though other persons interested in the estate are not brought on the record. It is difficult to see how the ratio of any one of these decisions can be successfully invoked on behalf of the plaintiff on the facts of the present case. If defendant No. 3 was a co-tenant along with the other defendants and his rights were inherited by his heirs, it was not competent for the other defendants to represent the estate of defendant No. 3. It would have been a different matter if one or some of the heirs of defendant No. 3 were brought on record and some were not and there was no fraud or collusion in not bringing them on record. It would have been only then that the ratio of the above mentioned two decisions could have been invoked on behalf of the plaintiff. As a matter of fact the estate of defendant No. 3 is riot represented at all and there was, therefore, no question of the suit proceeding as against his interest.

27. In the view which I have taken, it appears to me inevitable to hold that the plaintiff's suit has abated as a whole as against all the defendants and the order of the appeal Bench holding that the suit had not abated is liable to be quashed. Rule is thus made absolute with costs.


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