C.S. Dharmadhikari, J.
1. Chandrakant Govindrao Shinde filed a suit for eviction against Balraj and others under sections 12(3)(a), 13-A 1 and 13(1)(g) of the Bombay Rent Act. It was contended by the landlord that a demand notice was served on Narsappa, the original tenant, on 7-10-1976 under section 12(2) of Rent Act since he was in arrears of rent from 1-10-1973 to 30-9-1976. Inspite of this demand notice, the tenant filed to pay the amount due within a period of one month and, therefore, he was entitled to the possession of the suit property under section 12(3)(a) of the Rent Act. It was also contended by him that he was serving in the Air Force as a Flight Engineer and has retired from service on 27-5-1970 and thereafter required the suit premises for his own occupation. In support of this claim he also produced a certificate under section 13-A1 of the Rent Act. He also claimed possession under section 13(1)(g) of the Act since her required the premises reasonably and bona fide for his own occupation.
2. The claim of the landlord was resisted by the defendants. It was contended by the defendants that after the demand notice was received in October 1976, the original tenant Narsappa died on 28-2-1977 and the suit is filed on 16-7-1977. Under section 5(11)(c) the petitioner, in Writ Petition No. 634 of 1983 Balraj became the tenant of the suit premises. Admittedly, no notice was served upon him before instituting the suit and, therefore, the landlord is not entitled to get possession of the premises. It was also contended that the landlord did not required suit premises bona fide and reasonably for him own occupation.
3. In view of these pleadings the trial Court framed the necessary issues. The parties adduced evidence in support of their rival contentions. After appreciating all the evidence on record, the trial Court came to the conclusion that the plaintiff is entitled to the possession of the suit property under section 13-A1 of the Rent Act. It was also proved that he needs the suit premises reasonably and bona fide for his own occupation. The learned Judge also found that greater hardship would be caused to the plaintiff if the decree for eviction is refused and no hardship would be caused to the defendants. The learned Judge also found that the tenant is a defaulter within the meaning of section 12(3)(a) of the Rent Act. Therefore, the learned Judge of the trial Court, by his judgment dated 7-2-1981 allowed the suit on all counts. He also passed a decree for an amount of Rs. 1,007/- towards the arrears of rent.
4. Being aggrieved by this judgment and decree, the defendants filed an appeal. It appears that during the pendency of the appeal, the landlord resumed possession of three rooms in the same building from other tenants viz. Hemade and Shrikhande. In view of this, the appeal Court came to the conclusion that the landlord is in possession of the premises which is more than enough to accommodate him and his family and, therefore, the premises in possession of the tenant are not reasonably and bona fide required by him any longer. He also found that even on the question of hardship, more hardship would be caused to the tenant than to the landlord if in these circumstances a decree of eviction is passed. The learned Judge also came to the conclusion that in view of the changed circumstances, unless a fresh certificate is obtained by the landlord under section 13A-1, a decree could not be passed under the said section. However, the learned Judge of the Appeal Court confirmed the finding recorded by the trial Court so far as the claim of the landlord under section 12(3)(a) is concerned. In substance, therefore, though on two counts the findings recorded by the trial Court, were reversed, the decree for eviction was confirmed and the appeal came to be dismissed. It is against the order of the Appeal Court that both parties have filed these present writ petitions. As these writ petitions arise out of the same judgment, they were heard together and are being disposed of by a common judgment. In Writ Petition No. 634 of 1983, which is filed by the original defendant No. 2, the decree passed by both the courts below under section 12(3)(a) is challenged. In Writ Petition No. 1603 of 1984 the landlord has challenged the findings recorded by the Appeal Court qua the claim based on section 13-A1 and 13(1)(a) of the Act and it is contended that the findings recorded on the said issues are vitiated by an error apparent on the face of the record.
5. Shri Abhyankar, learned Counsel appearing for the tenant-original defendant No. 2, has contended before me that in the present case admittedly Narsappa was the original tenant. The demand notice under section 12(2) of the Act was served upon him on 7-10-1976 for arrears of rent for the period from 1-10-1973 to 30-9-1976. Narsappa died on 28-2-1977 and thereafter defendant No. 2, who was the son of Narsappa and was residing with him, became tenant of the suit premises under section 5(11)(c) of the Rent Act. On the date the suit is filed i.e. 16-7-1977, defendant No. 2, the present petitioner, was a tenant in his own right. Admittedly, no notice was served upon him under section 12(2) of the Act and therefore, the suit against him was not maintainable. According to Shri Abhyankar, the provisions of section 12(2) are specific in terms. The said section contemplates that a suit for recovery of possession cannot be instituted by a landlord against a tenant on the ground of non-payment of rent until the expiration of one month next after the notice in writing has been served upon the tenant in the manner provided in section 106 of the Transfer of Property Act. Admittedly, no such notice was served upon the defendant and therefore, the suit itself was not maintainable.
6. The argument is no doubt ingenious, but I find it difficult to accept the same for more than one reason. In the present case, it is an admitted position that after the notice of demand was served on 7-10-1976, Narsappa, the original tenant did not pay the arrears of rent till his death i.e. till 28-2-1977. Therefore, obviously eviction proceedings could have been taken against him under section 12(3)(a) of the Rent Act. After Narsappa died in February 1977, his heirs became the tenants of the suit premises under section 5(11)(c) of the Act. It is contended by the petitioner, original defendant No. 2, that he alone became the tenant of the suit premises. However, it is an admitted position that till the suit was filed in July 1977, the arrears were not paid even by this defendant or the heirs of the original tenant. It is neither alleged nor proved that after the death of Narsappa in February 1977, the landlord had waive notice of demand. Therefore, obviously there is no waiver of the notice. In this view of the matter, the suit could have been filed under section 12(3)(a) of the Act against the original tenant and this position is not disputed by Shri Abhyankar. It is not disputed by Shri Abhyankar that if Narsappa had died after the institution of the suit, then a decree could have been passed under section 12(3)(a) against his heirs also. But since he died before the institution of the suit itself, in the absence of a specific notice to the present defendants under section 12(2) of the Act, the suit is not maintainable because now the tenancy, which is sought to be terminated, is that of the present defendants, who had no notice, nor had an opportunity to tender the arrears of rent. As already observed, this argument is ingenious, but is without substance. In Jam . v. Sadashiv Sitaram, : AIR1967Bom43 this Court had an occasion to consider the provisions of section 5(11)(c) of the Act. This is what the Division Bench observed in para 5 of its judgment :---
'It is not possible from the language of the relevant provision to infer that the legislature intended to dump someone into the premises with new rights. 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 member 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.'
7. Thereafter in para 14 of the judgment, the Division Bench made a reference to an earlier decision of this Court in Parwatibai Namdeo v. Jagannath 59 Bom.L.R. 1029 and observed:
'In Parwatibai v. Jagannath the contractual tenant was a defaulter in the payment of rent. After his death, his wife continued in possession. The landlord applied to the Rent Controller for permission to serve upon her a notice to quite on grounds of arrears of rent and her being a habitual defaulter. The controller rejected the application but in appeal the landlord succeeded. The tenant approached the High Court under Article 227 of the Constitution. It was contended by the widow that her tenancy was independent and the default of her husband could not prejudice her. The Court held that the tenancy which the widow acquired was the same and not different; in other words the tenancy was a continuous one.' ... ...
In Jam Manufacturing's Co.'s case the Division Bench held that once the right to evict the tenant accrues to the landlord, the same can be availed of after the death of the tenant against the members of his family giving with him in the same premises. The statute does not confer any independent right on the 'new' tenant. In substance, what is held by the Division Bench is that the successor steps into the shoes of the tenant from the stage where he left off, obviously with the same rights and liabilities.
8. The Supreme Court had also an occasion to consider a somewhat similar question in Mrs. Manorama S. Masurekar v. Mrs. Dhanlaxmi G. Shah, : 1SCR135 . In para 5 the Supreme Court observed :---
'The landlord is vested with the right to recover possession of the premises if the rent is in arrears for a period of six months of more, 'the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in sub-section (2),' and the other conditions of sub-section (3) are satisfied. This rights cannot be defeated by showing that the tenant was ready and willing to pay the arrears of rent after the default, but before the institution of the suit.........'
It is pertinent to note that it was a case where the original tenant had died after the service of notice under section 12(2) of the Act, but before the institution of the suit. The husband of Manoramabai was the tenant of the suit flat. Rent was in arrears for a period of more than six months. On December 22, 1956 the landlord served a notice on the tenant demanding the rent. The tenant neglected to pay rent within one month of the notice. On January 11, 1957 he died. On February 4, 1957 the appellant (Manoramabai) sent the arrears of rent to the landlord by money order, but the landlord refused to accept the payment. Thereafter on February 5, 1957 a suit was instituted for eviction. Therefore, a contention was raised that since the amount is paid by the widow of the tenant before the institution of the suit, decree could not have been passed under section 12(3)(a) of the Act. While repelling this contention, the Supreme Court observed that the landlord is vested with a right to recover possession of the premises if the rent is in arrears for a period of six months and is not paid within one month after service of the notice. Thus, it is clear that the death of the original tenant in the meanwhile made no difference.
9. A Division Bench of this Court had an occasion to consider the question about the right of a successor-in-interest of the original landlord to recover possession on the ground of breaches committed when the original landlord was in the field, in Radhabai Baburao Shelar v. Trimbak Madhavrao Shirole, : AIR1983Bom303 . While holding that the right to recover possession under section 13(1)(a) and (b) can be exercised by the successor-in-interest, either by operation of law or by act of parties, of the original landlord even if the breaches were committed by the tenant period to the date of transfer of interest. This is what the Division Bench has observed in para 9 of the judgment :---
'....The acceptance of the submission of the petitioners would also lead to another anomaly. The tenant would commit the breach and before the landlord institutes the suit to recover possession the tenant may unfortunately die and the remedy of the landlord against his successor would be defeated, by claiming that if right to recover is limited only to person who was landlord on the date of commission of breach, then it could be enforced only against person who was tenant on such date. It is obvious that such a situation would lead to absurdity. It is clear that the right to recover possession is not attached to an individual or is not a personal right but is a right which goes along with the estate. ..... .....'
Thus, from these observations of the Division Bench as well as of the Supreme Court, it is clear that after the expiry of one month from the service of the notice under section 12(2) of the Act, a right accrues to the landlord to seek possession of the suit premises under section 12(3)(a) of the Act. This is a vested right. Further as observed by this Court in Jam Manufacturing's Co's. case, the Legislature 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. Thus, the successor clearly steps into the shoes of the tenant from the stage where he left off. As the right was already vested in the landlord to seek possession of the suit premises under section 12(3)(a) of the Act, even prior to the death of Narsappa, it will have to be held that the heirs of Narsappa, who were defendants to the suit, stepped into his shoes, which means that he got the same rights and incurred the same liabilities. This being the position in law, in my opinion, even after his death the landlord was entitled to recover possession of the suit property under section 12(3)(a) of the Rent Act from his heirs, who claim to be tenants. The right accrue or vested in the landlord is not defeated by the death of Narsappa, the original tenant, since the defendants stepped in his shoes and inherited the same rights and liabilities. Therefore, it is not possible for me to accept the contention raised by Shri Abhyankar. Once it is held that no fresh notice was necessary to the heirs of the tenant before instituting the suit under section 12(3)(a) of the Rent Act, then the decree passed by both the courts below on that count must stand confirmed. This was the only contention raised in Writ Petition No. 634/83. Hence the said writ petition deserves to be dismissed. Therefore, Rule is discharged in Writ Petition No. 634 of 1983.
10. Once the decree is confirmed under section 12(3)(a) of the Rent Act, then it is not necessary to deal with the other contentions raised and argued before me in Writ Petition No. 1603 of 1984 by the landlord. Any decision in this behalf will be obviously academic and, therefore, I do not propose to deal with the various other contentions raised and argued before me by Shri Dalvi. In the result, therefore, Rule is discharged in both the writ petitions, with no order as to costs.
11. The defendants-judgment debtors will be granted one year's time to vacate the premises i.e. on or before 31st July, 1985 if they give an undertaking to this Court on usual terms within a period of one month. It is made clear that in case of breach of the undertaking, without prejudice to the action under the Contempt of Court Act or to execute the decree, this Court will be at liberty to enforce such undertaking with the help of such force as is necessary.