D.A. Desai, J.
1. This revision application by the original landlord-plaintiff is directed against the dismissal of the suit for possession ordered by the learned District Judge, Kutch at Bhuj in Regular Civil Appeal No. 75 of 1975 preferred by the original defendant No. 2 in Regular Civil Suit No. 159 of 1973 filed by the plaintiff-landlord for recovery of possession which was decreed by the learned trial Judge.
2. A few facts may be stated. Plaintiff Nanumal Rijumal filed a suit for recovering possession of a house bearing CAX-43 situated at Adipur in Kutch District on the only ground that the two defendants Lilaram Vensimal and Thakumal, Vensimal, the sons of deceased Vensimal Tilumal, were tenants of the demised premises and were in arrears of rent and were not ready and willing to pay the rent. The summons was served upon both the defendants and they appeared through one Advocate, but they failed to file any written statement. The learned trial Judge held that the defendants were in arrears of rent for more than six months and they were not ready and willing to pay the rent and the suit would be governed by Section 12(3)(a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Bombay Act No. LVII of 1947) (Rent Act for short) and accordingly passed a decree for possession in favour of the landlord. Original defendant No. 2 preferred the appeal against the decree for eviction and this appeal was allowed by the learned District Judge holding that the notice terminating the tenancy as required by Section 106 of the Transfer of Property Act was not served on defendent No. 2 and, therefore, decree for eviction could not be made against him. It may be mentioned that original defendant No. 1 had not challenged the decree and the decree against him has become final. It may also be mentioned that during the pendency of the appeal the decree-holder landlord successfully executed the decree and dispossessed the successful defendant No. 2 in appeal. The landlord challenged the correctness of the decision of the learned District Judge in this civil revision application under Section 29 of the Rent Act.
3. When this application came up for hearing before our learned brother Surti, J., Mr. A.K. Mankad, learned advocate who appeared for the petitioner, urged that on the death of a tenant, the heirs who in her the tenancy inherited the same as joint tenants and a notice to one of them would be notice to all and, therefore, the learned District Judge was in error in holding that notice to all the heirs would be necessary as they inherited as tenants in common. It was also contended that even if notice to all the was necessary, in the facts and circumstances of this case, there were two heirs of the deceased tenant, and as both of them were staying together in one and the same house and that the notice was required to be served in the manner prescribed by Section 106 of the Transfer of Property Act and a notice addressed to both and served on one of them would be notice to all. When these contentions were being examined by the learned single Judge, his attention was drawn to some authorities and then he expressed an opinion that 'it is obligatory in law for any landlord to give to the tenants in common individual separate notice to quit as held by the Delhi High Court. If such a notice is not given to all the tenants in common who succeed in regard to the tenancy rights of the deceased tenant, the possibility of any landlord purchasing one of the tenants in common by any device cannot be ruled out, particularly when the Courts should be conscious of the fact that there is acute shortage of accommodation throughout the State.' Having thus observed, our learned brother felt that the question raised before him is of considerable importance and the matter should be placed before a larger Bench. That is how this matter has come up before us.
4. We must frankly confess that the matter has gone beyond the initial reference and questions of considerable importance and magnitude arising under Section 5(11; (c) (i) of the Rent Act, Section 19 of the Hindu Succession Act, Sections 106 and 111 of the Transfer of Property Act were canvassed before us. In order to focus the attention on vital points which necessitated a reference to the larger Bench and in order to have a pinpointed discussion, at one stage, we framed certain points for discussion and granted time to the learned advocates and then resumed the hearing. It would be advantageous to deal with the points as framed by us. We believe that in order to properly dispose of the question raised before our learned brother which necessitated a reference to a larger Bench, it would be necessary to examine the problem in depth and, therefore, we formulated the following points for discussion:
(i) Does Section 5(11)(c)(i) postulate all members of the tenant's family residing with the tenant at the time of his death, or within three months immediately preceding his death, to be recognised as tenants by the landlord?
(ii) What is the effect, meaning and connotation of the clause 'as may be decided in default of agreement by the Court' in Section 5(11)(c)(i)? Does it imply agreement inter se between these members of the family who were residing with the tenant at the time of his death or at any time within three months before his death? Does it imply that only one member is entitled to be recognized as tenant whom landlord can be asked to recognize as tenant pursuant to the agreement between those who could claim transmission of tenancy, or, in absence of such agreement, Court should determine who is to be tenant in relation to the premises vis-a-vis the landlord?
(iii) If more than ones person are entitled to be recognized as tenants on the death of a tenant who was in possession under Section 5(11)(c)(i), are such persons by transmission of tenancy joint tenants or tenants-in-common? What is the effect of the finding that they are either joint tenants or tenants-in-common on the question of serving notice terminating the tenancy as required by Section 106 of the Transfer of Property Act or in respect of the notice as envisaged by Section 12 (2) of the Rent Act?
(iv) It the transmission takes place in favour of more than one person, is it obligatory upon the landlord who desires to file a suit for possession on any of the grounds under the Rent Act including the ground of non-payment of rent to serve a notice either terminating the tenancy under Section 106 of the Transfer of Property Act or as contemplated by Section 12(2) on all such persons who could claim transmission of tenancy under Section 5(11)(c)(i)?
5. Section 5(11)(c)(i) of the Rent Act defines 'tenant' inter alia as under:
(11) 'tenant' means any person by whom or on whose account rent is payable for any premises includes--
xx xx xx xx
(c)(i) in relation to premises let for residence, any member of the tenant's family residing with the tenant at the time of, or within three months immediately preceding, the death of the tenant as may be decided in default of agreement by the Court, and
xx xx xx xx.
The status of tenant is indicated by the liability to pay rent. The first part of the definition is a short and precise definition which provides an indicator for landlord-tenant relationship. The tenant would be one by whom or on whose account rent is payable for any premises. Even if the rent is paid by a person other than a person who is a tenant, if it is shown it is paid on behalf of the first-mentioned person, the first-mentioned person is the tenant. A lease is a transfer of interest in immoveable property for consideration, the essential and salient feature being to enjoy exclusive possession of the property taken from the lessor and the right to enjoy the property with exclusive possession vesting in the lessee. Till lease was a creature of contract, the relations between the lessor and the lessee will be governed by contract. Such contract can be oral or in writing. If it is in writing, it must also satisfy the requirement of the Stamp Act and the Registration Act depending upon its duration. There are various types of leases. Section 106 of the Transfer of Property Act provides for certain presumptions in respect of duration of leases where there was not a specific contract. If the lease is for manufacturing or agricultural purposes, it was presumed to be from year to year and if it was a lease of immoveable property for any other purpose, it was presumed to be from month to month. This presumption could be displaced by a contract to the contrary or by local law or usage to the contrary. Section Ill provides for determination of lease. In the course of discussion, a feeble attempt was made to urge that the lease would ipso facto determine on the death of the lessee which would have excluded any consideration of its heritance. In other words, the attempt was to urge that a lease of immoveable property cannot enure beyond the life-time of the lessee. This is too wide a proposition because a lease for a fixed period or a permanent lease would always be heritable, the first for the unexpired portion of the duration of the lease, and, in the second case, the right of re-entry itself is done away with because that is the essential feature of the permanent tenancy. Undoubtedly, even a permanent tenancy can be surrendered, but the essential feature of permanent tenancy is that, on the happening of no known event, landlord has a right of re-entry. To illustrate, even if there is failure to pay rent, the landlord of a permanent tenant has merely a right to recover rent. There is no right of re-entry. Such lease would be heritable. There is also a view which may be examined in an appropriate case that even a tenancy month to month is heritable. In the days when Rent Restriction Acts did not occupy the field leases ordinarily, other than agricultural leases, were governed by the provisions of the Transfer of Property Act relating to leases. In those days the assertion that a monthly tenancy is heritable would not have raised dust of controversy because, even when inherited, the lessee can be made to vacate by a notice to quit. The heritability of the tenancy assumed considerable importance after the advent of Rent Restriction Acts. As an aftermath of the two wars in the first half of the present century and consequent urbanization process progressively picking up speed, there arose an acute shortage of accommodation in urban and semi-urban areas and agglomeration, and harsh law of demand and supply made its presence felt when the greed of the landlord for charging higher rent bad to be curbed by restricting the power to enhance the rent and simultaneously also to fetter the unlimited right of re-entry enjoyed by the landlord, it became necessary to grant protection to tenants. Rent Restriction Acts were enacted and put into operation. Once a Rent Restriction Act came into operation and in its Wake restricted the application of the provisions of the Transfer of Property Act concerning leases, the concept of statutory tenancy came into vogue. By judicial interpretations, it is accepted that a person remaining in occupation of the premises let to him after the determination or expiry of the period of tenancy under the protection of the Rent Restriction Act, is commonly called a statutory tenant. In other words, the origin of the statutory tenancy is in the ashes of contractual tenancy. Once the concept of statutory tenant came into vogue, what it connotes and denotes becomes necessary to be stated with precision and accuracy. A person remaining in occupation of the premises let to him after the determination of or expiry of the period of the tenancy is commonly though in law not accurately called 'a statutory tenant. Such a person is not a tenant at all; he has no estate or interest in the premises occupied by him. He has merely the protection of the statute, in that he cannot be turned out so long as he pays the standard rent and permitted increases, if any, and performs the other conditions of the tenancy.' (vide Anand Nivas Private Ltd. v. Ananji Kalyanji's Pedhi and Ors. : 4SCR892 . In other words, statutory tenant has the status of irremovability enjoyed by him under the Rent Restrictions Act.
6. If such is the position of a statutory tenant, the protection would vanish into thin air the moment such a tenant dies. The Legislature was faced with two problems: Whether such tenancy should be treated as an estate and made heritable according to the personal law of the party who is a tenant or some statutory protection should be afforded. If statutory tenancy would not fall within the expression estate' or 'heritable estate', the personal law of the party in respect of inheritance or succession would hardly help. The Legislature stepped in and enacted Section 5(11)(c)(i) and (ii). They are in identical terms. We are more concerned in this case with Section (5)(11)(c)(i). Where the premises in question are let for residence, any member of the tenant's family residing with the tenant at the time of, or within three month immediately preceding, the death of the tenant as may be decided in default of agreement by the Court, would be a tenant of the premises.
7. The first question raised is whether if more then one person of the tenant's family were shown to be residing with the tenant at the time of his death, or within three months immediately preceding, i.e. prior to the date of death, all such members of the tenant's family would be entitled to the status of tenant qua the premises and qua the landlord. The answer to the question has to be found in the language of Section 5(1 l)(c)(i). It starts by saying 'any member of the tenant's family' meaning thereby singular is used. It was said that this singular expression would not provide an aid to interpretation of the section because the Court should bear in mind Section 13(b) of the Bombay General Clauses Act which provides that words in the singular shall include the plural and vice versa. After referring to this provision, it was said that the Legislature could not be imputed an intention to grant protection to only one member of the tenant's family and, therefore, on a proper interpretation, it must be held that all members of the tenant's family who were residing with the tenant at the relevant time would be entitled to the status of a tenant. This interpretation does not stand the scrutiny in view of the other expression as may be decided in default of agreement by the Court' in the same sub-section. If all members of the tenant's family who were residing with the tenant at the relevant time were entitled to the transmission of tenancy in their favour, there was no purpose in providing a decision by the Court in the event of a dispute. The dispute among the members of the tenant's family may arise where one or the other claims to the transmission of tenancy to the exclusion of others. In such an eventuality, a dispute may arise among members of the tenant's family each of whom claims the transmission of tenancy and if the law precludes transmission of such tenancy to all of them, a dispute is bound to come into existence and this dispute the Legislature wanted to be resolved either by agreement or in default by the Court. If all members of the tenant's family residing with the tenant at the elevance time were entitled to the transmission of tenancy by a legislative enactment, no situation would arise about a dispute amongst themselves about transmission of tenancy. No agreement amongst them is necessary because each one of them is entitled on satisfying the qualifying clause that he or she was a member of the tenant's family and was residing with the tenant at the relevant time and thereby by operation of law a transmission of agency takes place. The expression 'any member' and the succeeding expression 'in default of agreement by the Court' prima facie indicate that the singular in this case would not include the plural. We must bear in mind that the provision of the General Clauses Act can be invoked where the contrary is not indicated because it always provides that provision contained therein may be given effect to unless there is something repugnant in the context. In this context, against importing plural in place of the singular used by the Legislature, the centra-indication is to be found in the sub-section itself when it provides for an agreement between the parties which postulates more than one party and which provides for resolution of the dispute by agreement amongst contending parties or resolution of the dispute by the Court.
8. Apart from the question of the legislative intendment being gathered from the language employed in Sub-section 5(11)(c)(i), other construction would lead to fearful confusion and absurd consequence. To illustrate, a tenant died leaving five sons and five daughters. He died intestate in the sense that he did not make any will. He also died leaving his widow. If the word 'any' were to include 'all' in Section 5(11)(c)(i) of the Rent Act as was suggested and if all the children and widow were staying with the deceased tenant at the time of the death, all the eleven persons including some minors could claim transmission of tenancy under Section 5(11)(c)(i). There is no inter se dispute because there is no dispute about the claim of all. Interposition of the Court would be avoided because the Court can impose itself in the event of a default of agreement between persons claiming transmission of tenancy. Should the landlord in case he wants to proceed against all such persons who claim transmission of tenancy and therefore, the status of tenant, serve notice upon all of them? It is difficult to contemplate such a situation. Of course, if that construction were to appeal to us, undoubtedly a question will have to be answered straightaway whether they will acquire transmission of tenancy as joint tenants or tenants-in-common because if at all it is to be held that they were ever to be held as tenants-in-common as envisaged by Section 19 (b) of the Hindu Succession Act, 1956, each one of such tenant-in-common in the event of his or her death, would further bring in those members of the family residing with him or her as claiming transmission of his or her tenancy. Where would it lead the landlord we are unable to foresee. This position has been examined in depth in Dealex Proper-ties Ltd. v. Brooks. (1966) 1 Q.B. 542. The section which was the subject-matter of construction is pan materia with Section 5(11)(c)(i). The section of the English Act provided that when the tenant leaves no such widow or is a woman, such member of the tenant's family so residing with him as aforesaid as will be decided 'in default of agreement' by the County Court provided that in the second case the member of the family was residing with the tenant for not less than six months immediately before the death. The tenant in that case died leaving behind him a son and daughter, both of whom were residing with him at the time of his death. Thereafter rent receipts were issued in the name of the son until about his death in 1962, An action was brought by the plaintiff-landlord against the daughter and the County Court gave judgment for the daughter on the ground that the son had been accepted as a contractual tenant by the landlords and the status of irremovability consequently enjoyed by him passed to the daughter in 1962 under Section 12 (1) (g) of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920. When the matter came up before the Court of Appeal, a long discussion took place about the question whether the word 'member' in the section meant one member or all members of the tenant's family residing with him. And Harman, L.J., in his judgment observed as under:
We have had a long discussion about this question, and I do not think I can usefully spend any more time over it beyond saying that in my opinion 'member' there means one member, and that the context does not admit construing 'member' as 'members'. To my mind a fearful confusion ensues once it is supposed that there can be a plurality of 'members' who may agree together, and so have a sort of tontine which will last for so long as the survivor of them is in existence. I think that under the Rent Acts a tenant must be a single person because it is a Status of irremovability which belongs to him, and I do not think to anyone but him.
Diplock, L.J., in the judgment observed as under:
I need do no more than say that in my view the expression such member of the tenant's family so residing as aforesaid as may be decided in default of agreement by the county court' is to be read in the singular, and that the status of irremovability or the statutory tenancy cannot be acquired upon a Section 12(1)(g) succession by more than one member of the family. Any other construction leads to absurd consequences.
Co-ownership of property is quite well-known, but ordinarily the tenant is one person. Joint lessees are not unknown to law, but ordinarily tenancy is one and indivisible, though that facet has eroded to some extent by the provisions of the Rent Restriction Act, of which Section 13 permits the Court to order eviction from a part of the premises retaining a part with the tenant. But ordinarily there will be one tenant. The tenant who died was one tenant and the transmission of tenancy must take place in favour of one person. A literal grammatical construction of the sub-section leads to that conclusion and this view avoids fearful confusion and absurd consequence as apprehended in Dealex Properties Ltd. Case (supra). Our attention in this connection was drawn to Miss Goal Rustomji Lala v. Jal Rustomji Lala 73 Bom. L.R. 600, wherein the learned single Judge of the Bombay High Court, dealing with Section 5(11)(c)(i) in its application to the State of. Maharashtra which is in pari materia with the sub-section in its application to the State of Gujarat has observed that: 'The Court must declare only one person as a tenant after considering the claims of all those persons who say that they are members of the tenant's family and were residing with him at the time of his death.'
9. The sub-section envisages a dispute amongst none other but amongst members of the tenant's family residing with him at the relevant time. Dispute may have two facets; one, who were residing with the tenant at the time of the death of the tenant; and two, whether those residing with the deceased tenant could be said to be members of the deceased tenant's family. If there are more than one person answering both the descriptions, a question is bound to arise who is entitled to transmission of tenancy? The Legislature intended that when more than one member of the tenant's family was staying with the tenant at the relevant time, all such persons can claim transmission of tenancy; but all of them are not entitled to transmission of tenancy. It is for them first to agree among themselves who from amongst those qualifying for transmission of tenancy should-claim it. The expression 'in default of agreement' clearly envisages first a prior agreement between persons who can claim transmission of tenancy if they agree among themselves. All that they have to do is to inform the landlord as to in whose favour the tenancy has been transmitted and the landlord has nothing more to do but to accept him as tenant. The landlord has then to deal with him as tenant. In the event of a dispute, the Court steps in. An application can be made to the Court and the Court keeping in view the relevant consideration may determine who should be the tenant. In other words, in whose favour the tenancy is transmitted, meaning thereby that who would acquire the status of irremovability. The intention of the Legislature in first envisaging an agreement among persons, all of whom are qualified for transmission of tenancy though not all of them are entitled to it but only one of them is entitled to it, and further providing that, in case of a dispute, a decision of a Court which clearly rules out the possibility of the tenancy being transmitted in favour of more than one member of the tenant's family. Therefore, it appears to us unquestionably clear that Section 5(11)(c)(i) postulates only one amongst many members of the tenant's family, where such is the case, residing with him at the time of his death, or within three months immediately preceding his death would be recognized as person in whose favour the transmission of tenancy has taken place. In the event of a dispute, on the application of any one, the Court may determine it and if they do not go to Court, it would be equally open to the landlord by an appropriate application to take them to the Court and get the point determined. But, once a tenant in possession dies and the transmission of tenancy is claimed, before the landlord can take any action against one or more of them as tenant alleging that default is committed by them all as tenant, it is absolutely necessary that either by agreement amongst qualified persons or in default of agreement by a determination of the Court, it should be first decided as to who is that person, or who is that member, from amongst the various members of the tenant's family in whose favour the transmission of tenancy has taken place. Before determining this aspect, no further action can be taken.
10. It was said with some feeling that this construction of Section 5(11) (c) (i) may create more problem than it seeks to solve and may be harmful to the interest of those members of the tenant's family in whose favour transmission of tenancy has not taken place. It was said that if such members who did not get the status of irremovability because only one could acquire that status, they would be either at the mercy of the person who acquires the status or at the mercy of the landlord. The second apprehension is not justified. The landlord would not be able to proceed against them if they are staying with that member of the tenant's family in whose favour the transmission of tenancy has taken place, because the landlord must proceed against the tenant. The landlord cannot keep aside the tenant and proceed against the rest because he would have no cause of action against them. There is some justification for the first apprehension. If there are more than one member of the tenant's family residing with him at the relevant time and if only one acquires the status of tenant what about the rest. The rest may be at the mercy of one who has either by agreement or by Court's determination acquired transmission of tenancy. That is a distinct possibility which cannot be ruled out. Such a person having acquired the transmission of tenancy by the consent of all may be have in good faith or to use the words in Gool Rustomji's case (supra). 'The Court should make the choice in such a way that the person selected to be the tenant is likely to act in the interest of the family, like the Karta of a Hindu joint family or the paterfamilias.' A similar view was taken by A.A. Dave, J. (as he then was) in Sudhakar Kashiram alias Kashinath Bhavsar and Another v. Nagindas Atmaram 1973 All India Rent Control Journal 61 : XIII G.L.R. 536. What would be their inter se rights is really a complex problem and we do not propose to dwell upon it at this stage. It may be decided in an appropaite case. But the possible worry on account of an apprehended misbehaviour on the part of the person who acquires transmission of tenancy would not impinge upon the construction of the subsection.
11. It was then said that once it is held that a contractual tenancy is heritable and the tenant dying was a contracual tenant, his contractual tenancy would be inherited, not according to the method of succession to the tenancy as envisaged by Section 5(11)(c)(i); but as an estate of a deceased person according to the personal law to which the deceased belonged. In this connection, the reference was made to Section 19 of the the Hindu Succession Act. Section 19(b) provides that:
19. If two or more heirs succeed together to the property of an intestate, they shall take the property.--
(a) x x x x
(b) as tenants-in-common and not as joint tenants.
To be frank, these expressions 'tenants-in-common' and 'joint tenants' were not used in the sense as commonly understood. These are the terms used in English common law denoting some incident of ownership. These are terms not used to denote lessees of property. Joint tenants in respect of the property jointly owned take by survivorship in the event of death of one of them and in the case of 'tenant-in-common', the heir of the dying tenant would succeed to the interest of the deceased tenant-in-common. No was suming for the time being that contractual tenancy itself was property and was thus heirtable, it being property, it was said it would be inherited according to the personal law of inheritable of the deceased tenant. Section 8 provides that the property of a male Hindu dying intestate would devolve according to the provisions of the Chapter in which the section is placed. If the deceased tenant was a contractual tenant, the estate in the tenancy will devolve according to the Hindu Succession Act in this case. It was further said that it is quite conceivable that one who inherits the estate in the tenancy rights or the leasehold rights under the Hindu Succession Act may not qualify for transmission of tenancy under Section 5(11) (c) (i) of the Rent Act on the ground that such heir was not residing with the deceased tenant at the time of his death. In order to acquire tenancy by transmission under Section 5(11) (c) (i), the essential pre-requisite is that person so claiming transmission of tenancy must be the member of the tenant's family and must be residing with the tenant at the relevant time. Now, one succeeding to the estate of the deceased tenant including his leasehold rights may be an heir under the Hindu Succession Act and may not be staying with the deceased tenant at the time of his death and yet, he would succeed to the leasehold rights. It was said that this situation would not arise in the case of a statutory tenant because that is a status of irremovability personal to the deceased and transmitted under the legislative enactment which but for the legislative enactment, such a section as Section 5(11)(c)(i) would have come to an end. It was, therefore, said that Section 5(11)(c)(i) only applies to statutory tenants and not to contractual tenancy. If it were, it was said, to apply to contractual tenants, the Court must visualise the consequence of its decision, which again would be fearful. To illustrate, it was said that a tenant died leaving a son and a father. The son was away, residing somewhere else, doing his own business. The father was staying with the son who was the tenant at the time of the death. If the tenant was a contractual tenant, the father, though a member of the tenant's family and residing with him, would not 'the entitled to the transmission of tenancy because the leasehold right would be inherited by the son under the Hindu Succession Act. After pointing out this pignant situation that may arise, it was urged with some vehemence that Court should confine the applicability of Section 5(11)(c)(i) to such cases only where the deceased tenant was a statutory tenant.
12. The expression 'tenant' is defined, as stated earlier, first to mean any person by whom or on whose account rent is payable for any premises and then includes various persons by expanding the definition. The tenant would include a contractual tenant. There is nothing in the definition of the word 'tenant' which would confine it merely to a statutory tenant or which would exclude contractual tenant. One cannot be a contractual tenant and a statutory tenant simultaneously. One ends where other begins. It is on the determination of the contractual tenancy that the statutory tenancy comes into existence which is nothing but a status of irremovability. In the definition of 'tenant', we find nothing which would cut down its meaning or confine it to statutory tenant only. Is it then permissible on a possibility of some piquant situation arising as hereinbefore discussed by putting a literal construction on the definition of tenant as including a contractual tenant to call in aid a rule of construction which says that one should not put such construction on the provision of a statute so as to lead to absurdity and then restrict the definition to statutory tenant only? On the contrary by adopting a proper canon of interpretation, the piquant situation can be easily avoided. But, .Mr. Mankad told us that the question whether the word 'tenant' for the purpose of Section 5(11)(c)(i) includes contractual tenant or statutory tenant is no more res Integra. In Thakorelal Amratlal Vaidya, holder of Power of Attorney of Maharajkumar Indrajitsinhji Vijaysinhji of Rajpipla v. Gujarat Revenue Tribunal and Ors. 4 G.L.R. 841, Bhagwati J. (as he then was) speaking for the Division Bench, has clearly stated that the contractual tenancy under the Transfer of Property Act is heritable not because of Section 111 of the Transfer of Property Act but because it constitutes an estate or interest in the land which passes on to the heirs by the operation of the law of succession. It was urged that this decision is impliedly affirmed in Anand Nivas Private Ltd's case (supra). After setting out the definition of 'tenant' as enacted in Section 5(11) it was observed that the expression 'tenant' in the different clauses of Section 5(11) is defined to mean contractual tenant or a statutory tenant or both. This observation does mean that whenever the word 'tenant' is used in the enactment, it means both contractual and statutory tenant. In what sense the expression is used in a given section would depend upon the context in which the expression is used, otherwise it was not possible to reach the conclusion to which the Supreme Court reached in that case, namely, that Clause (a) of Section 5(11) envisages sub-lessees, transferees or assignees from contractual tenants only. This thinking in some extent was influenced by the decision in Moodic v. Hosegood 1952 Appeal Cases 61. The question posed in that case, was whether the expression 'tenant' in Section 12(1) (g) which is in pan materia with Section 5(11) (c)(i) includes a contractual tenant or does it refer only to a statutory tenant. Having posed the question in proper perspective and after overruling the decision in Thynne v. Salmon (1948) 1 J.B. 482 : (1948) I All England Reports 49, it was, in terms, held that the word 'tenant' in Section 12(1) (g) of the English Act includes both 'contractual tenant' and 'statutory tenant'. Having reached this conclusion, the dilemma just posed above clearly started them into face, viz, that, if a contractual tenant dies, the tenancy will be inherited by the heir at law and, if a statutory tenants dies, the tenancy will be transmitted in favour of one who would qualify under Section 12(1) (g) of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920. The House of Lords proceeded to resolve the dilemma as under:
My Lords, in my view, the widow of a tenant, whether contractual or 'statutory', who was residing with her husband at the date of his death is entitled to the protection given by the Acts. If a contractual tenancy is still subsisting at her husband's death, and devolves upon someone other than the widow, it is not destroyed, but the rights and obligations which would ordinarily devolve upon the successor in title of the contractual tenant are suspended, so long as the widow retains possession of the dwelling house.
And the way in which this dispute is resolved has also been adopted in Gool Rustomji's case (supra). A contrary view appears to have been taken in an unreported decision of the Bombay High Court in Minoo G. Patel v. Jamshedji, Civil Revision Application No. 1556 of 1963 decided by K.K. Desai, J. (as he then was) on 9th February 1966. With utmost respect, this resolution of the problem creates more problems than it seeks to resolve. There will be not much of a difficulty in England because transmission of tenancy takes place only once. In other words, once a person continues in possession on transmission of the tenancy to him on the death of the tenant in possession, on his death no further transmission takes place. There is nothing in Section 5(11)(c)(i) to cut down transmission of tenancy on one occasion only. Once the person who acquires transmission of tenancy, on his death, again the question would be to whom the tenancy would be transmitted under Section 5(11)(c)(i). There is a decision of our High Court in Punjiben d/o Rana Chhotalal Nanabhai and Anr. v. Mohanlal Mansukhbhai Gandhi : (1974)15GLR107 , which supports this view. D.P. Desai, J., has in terms, observed that:
There is nothing in the provisions of Section 5(11)(c)(i) to restrict the transmission of protection to only one occasion, that is, once only after the protection given to the contractual tenant is over.
Again, one who continues in possession by transmission of tenancy would be a statutory tenant, but the suspended rights of heirs at law who inherit the tenancy would be held in abeyance indefinitely. It is difficult to conceive that the landlord should be faced with a problem where the statutory tenant desires to surrender tenancy, and, before the landlord takes the possession, it is to be decided in whose favour the inheritance remains suspended. A situation may be conceived where suspension may be ad infinitum. Such a situation the Legislature could be never expected to intend. Therefore, it is necessary to ascertain what is the effect of enactment of Section 5(1 l)(c)(i). on the general law of succession so far as it relates to the devolution of leasehold rights.
13. Rent Restrictions Act generally including the Bombay Rent Act were enacted for the purpose of controlling the rents and repairs of certain premises and of evictions due to the tendency of landlords to take advantage of the extreme scarcity of premises, compared to the demand for them. The Act intended, therefore, to restrict the rights which the landlord possessed either for charging excessive rents or for evicting tenants. A tenant stood in need of protection against eviction by the landlords. So long as he had the necessary protection under the terms of the contract between him and the landlord, he could not be evicted till his tenancy was determined according to law and, therefore, there was no necessity of providing any further protection under the Act against his eviction so long as his tenancy continued to exist under the contract, (vide Bhaiya Punjalal Bhagwandin v. Dave Bhagwatprasad Prabhuprasad and Ors. : 3SCR312 ). On the determination of the contractual tenancy, the landlord could exercise the right of re-entry and in order to grant protection to the tenant, the Rent Restriction Act was enacted. It conferred the 'status of irremovability' and the landlord's right of re-entry was restricted to those grounds set out in the Act. In absence of a ground, the Legislature thought of granting further protection to the members of the tenant's family who were residing with the tenant at the time of his death. Now, statutory tenancy generally conceived as a personal status of irremovability could not have been inherited though the contractual tenancy could have been inherited; but even if such contractual tenancy could have been inherited, could be put an end to. Therefore, the Legislature stepped in to grant protection. Protection was not to be granted as if the tenant's leasehold rights were to be inherited as the property of the deceased irrespective of necessity to use and occupy the property in respect of which the deceased enjoyed leasehold rights. The scarcity of accommodation was kept in view by the Legislature when it created a special mode of succession to tenancy right which shorn of all embellishments is nothing but a right to possession and occupy the property, stay in or use it for the purpose for which it is taken on the obligation of paying rent. The protection was to be granted to those who were in need of premises and not to those who were not in need of the premises and get may inherit the leasehold rights. The Legislature, therefore, stepped in and provided a special mode of succession to the tenancy rights or the leasehold rights to the extent of irremovability from possession to those who were in need of it but limiting it to the number of the tenant's family but no inter se rank was decided. A member of the tenant's family and residing with the tenant which would imply that he was in need of a tenement was being protected by Section 5(11)(c)(i). A member of the tenant's family who was carrying on business with the and who would be thrown out of the business premises which are was sought to be protected by Section 5(11)(c)(ii) of the Rent let In other words, for the purpose of residence or for the purpose of Kniness in the premises, such person was dependent on the tenant. On death of the tenant, he was not to be made orphan and he was lot an outsider in the sense that he must be a member of the family To such class of persons, the tenancy rights would, no loosely devolve not in the trick sense of succession the sense of right to occupy and possession on the obligation of rent and enjoy protection against eviction except on the grounds in the protective Acts. If property the next generation of tenants who staying in tenanted premises. To them, the protection eSed. This status would not be estate for the purpose of that was the intention of the learned it would only mean that even in the case of contractual transmission of tenancy rights or status of irremovability place or devolve according to the special legislation would of the law of inheritance to the enacted in Section devolution of estate under personal law of parties. There is no question of suspension of any devolution of estate. This status is no more a subject of inheritance. The transmission takes place according to the special legislation in respect of the special protection created by special legislation. If there is such a person who qualifies for the special protection under Section 5(11)(c)(i) of the Rent Act, necessarily excludes one who can claim under the general law of inheritance. If there is no such person, the law of inheritance would come into operation and would take its own course. That is not the problem before us. That can be resolved if such a claim is made. But there is no doubt in our mind that till such qualified class of persons as envisaged in Section 5(11)(c)(i) is available, any one of them in the manner provided in Section 5(11)(c)(i) of the Rent Act will be entitled to the transmission of tenancy and, on his death any one of his family staying with him would be further entitled to the transmitted tenancy in the same manner. That in our opinion and with respect to the learned single Judge, appears to be the solution of the problem.
14. In the view that we have taken, it is not possible to subscribe to the view taken by the Delhi High Court in Ganga Pershad v. Smt. Tribeni Devi 1976 All India Rent Control Journal p. 83 on which reliance was placed by the learned single Judge. The Delhi view proceeds on the footing that the statutory tenancy on transmission can devolve on more than one person. That view would not commend to us. In fact, it would run counter to the view taken by us. Therefore, with greatest respect, we are not in a position to subscribe to that view.
15. It would thus become clear that Section 5(11)(c)(i) postulates that only one member from among the members of the tenant's family residing with him at the relevant time would be entitled to the transmis sion of tenancy on the death of the tenant; the person to be selected from amongst qualified persons or in default of agreement amongst the quali fied class of persons by the Court, that is the meaning which we would assign to the expression 'as may be decided in default of agreement by the Court'. It must be held that the agreement must be between the members of the tenant's family qualified by residence at the time of death or with in three month prior thereto to transmission of tenancy and that to such an agreement, landlord is not a necessary party. The proper procedure to be followed in the event of the death of the tenant in possession of the premises protected-under the Rent Restriction Act is firstly for such members of the tenant's family who are qualified for transmission of tenancy to agree amongst themselves to select only one person and to communicate the name of that person to the landlord whom the landlord must accept as a tenant. If such member of the tenant's family fail to agree or to communicate the decision or fail to communicate anything, it would be open to the landlord to ask them to suggest the name to whom the tenancy should stand transmitted If, within a reasonable time, they fail to communicate the decision, it would amount to a default of agreement among such class of persons and it would be even open to the landlord to move the Court for a declaration as to the person to whom the tenancy shall stand transmitted. But, there is no room for doubt that only one member would be entitled to be recognized as tenant and to whom tenancy would stand transmitted. In this view of the matter, it is not necessary to consider the two other aspects, viz. if more than one person are entitled to be recognized as tenant under Section 5(11) (c) (i), whether they would be joint tenants or tenants-in-common and in the event of they being declared as tenants-in-common, each one of them would be entitled to notice.
16. As the whole matter is referred to us, we must turn to the facts of this case. It is an admitted position that Vensimal Tilumal was the tenant of the suit-premises. Vensimal Tilumal died somewhere in 1970. Defendants Nos. 1 and 2 are the sons of deceased Vensimal. The petitioner-landlord proceeded to serve notice Ex. 35 dated 3rd December 1972 to terminate the tenancy on the ground that the tenants have committed defaults in payment of rent. This notice Ex. 35 was addressed to both the defendants but was served upon defendant No. 1 alone Landlord filed the suit on 9th August 1973. Defendants appeared but did not file any written statement. The trial Court decreed the suit for posses sion and arrears of rent. The appellate Court set aside the decree on the ground that both the defendants Nos. 1 and 2 had inherited the tenancy under Section 5(11)(c)(i) and that they inherited the same as tenants-in-common and each one of them was entitled to separate notice and as no separate notice was served on defendant No. 2, the suit was bad and accordingly the suit was dismissed.
17. Mr. Mankad urged that as the defendants had not filed any written statement, no contention was put forth by them and, therefore it was not open to the appellate Court to entertain any contention on their behalf. It was further urged that notice as envisaged under Section 106 of the Transfer of Property Ace being subject to contract to the contrary the tenant having not raised any dispute about the notice they are deemed to have waived notice. In support of the last submission, reliance was placed upon three decisions of the Delhi High Court reported in Ram Pratap v. M/s Birla Cotton Spinning and Weaving Mills Ltd. : AIR1973Delhi124 , Batoo Mai v. Rameshwar Nath and Ors. : AIR1971Delhi98 and Muni Lal v. Nand Lal : AIR1971Delhi300 . In our opinion the question whether notice was waived was entirely beside the point, 'similarly i the circumstances of this case, failure to file the written statement would have hardly any consequence. Vensimal was the tenant. Admittedly he died leaving two sons, both of whom were said to be residing with him The first step which ought to have been taken was as to who out of them would be entitled to the transmission of tenancy. Only thereat the landlord could proceed against him. That step having not been taken the whole suit for possession was misconceived The plaintiff-land filed a suit against both the sons of deceased tenant Vensimal Even in this suit, no attempt was made by the landlord to get it determined the Court at to who out of the two was entitled to transmission of the tenancy and, therefore, to incur liability to pay rent. They themselves had no agreement amongst themselves and the absence of agreement could be said to be default in agreement. In that event, it was the primary duty of the landlord to get determined transmission of tenany in favour of one or the other and then evict him. Therefore, any action before taking proper proceedings as contemplated by Section 5(11)(c)(i) is premature and must fail.
18. Mr. Mankad, however, contended that defendant No. 1 was served with a notice and he has not replied. He said that defendant No. 2 did not file any written statement. He said he filed the appeal which was beyond the period of time and the appeal was admitted after the delay was condoned. We accept all this. But, it has hardly any relevance Unless the Court has said that the tenancy stands transmitted to defendant No. 2 his liability to pay rent would not arise and before filing any suit for eviction on the ground of non-payment of rent, a notice under Section 12 (2) is a 'must'.
19. An attempt was made by Mr. Mankad to urge relying upon the decision in Bhaiya Punjalal v. Dave Bhagwatprasad (supra) that in the case of a statutory tenant, no notice was necessary before filing the suit for eviction. That was not the ratio in Bhaiya Punjalal's case. Before a suit against a statutory tenant on any of the grounds mentioned in Section 13 can be instituted the notice terminating tenancy is not necessary because in case of a statutory tenant, the tenancy would stand terminated on decree of eviction and physical taking of possession. But, if a suit is required to be filed against a statutory tenant on the ground that he has committed default in payment of rent, it is incumbent upon the landlord to serve notice under Section 12 (2) because it is only on the failure to comply with the requisition made in the notice or by failing to establish his reaoiness and willingness to pay the rent in the manner prescribed by law that a landlord may be entitled to a decree for eviction. Therefore, even before Section 12(2) notice is served on any one in possession of the premises, it must be shown that he is a tenant and if such a person was one who was staying with the deceased tenant at the time of his death, it must be shown that the tenancy is transmitted to him. Before this point is determined notice under Section 12(2) could not be served upon all or any of the members of the tenants family residing with him and failure to comply with such notice could not be visited with a decree for eviction. Once it is decided that the tenancy is transmitted in favour of one amongst a class of persons entitled to transmission of tenancy, the landlord can deal with him but it is not open to the landlord to deal with every one or with all members of the tenants family, treating each one of them as tenant, and contending that they are joint tenants and notice to any one of them will be notice to all of them. That contention is thoroughly unsustainable and must be negatived.
20. Incidentally, on the question of waiver, we may only observe that a right may be waived. One can waive something which one can enjoy but refuse to enjoy and waive it. But, before waiver can be pleaded, it must be shown that which is sought to be waived is capable of enjoyment. It should have been shown that defendant No. 1 was one to whom the tenancy stood transmitted and he waived notice which he was entitled to and we should like to make it very clear that in respect of notice under Section 12 (2), there is no question of waiver. It is a fetter on landlord's right of re-entry which he must remove before invoking the judicial process for obtaining possession. There is no question of waiver in respect of such a notice. Therefore, the contention that the notice was waived is without merit.
In view of the discussion, we agree with the learned District Judge in the conclusion reached by him that the plaintiff's suit for possession must fail, though for entirely different reasons. Accordingly, this civil revision application fails; but, in the facts of this case, there will be no order as to costs.
21. We were told by Mr. R.A. Mehta, learned Advocate for the 'respondent, that clearly by a subterfuge by stating facts in a manner not reflecting the situation, the landlord has taken possession from defendant No. 2 by executing the decree made by the trial Court in his favour. Mr. Mehta also told us that the defendant No. 2 has applied for restoration of possession because the decree was set aside in the first appellate Court and the proceedings are stayed at the instance of the landlord-petitioner in this Court. That stay is vacated. Original defendant No. 2 is wrongly kept out of possession since long. Therefore, the trial Court should take up the restoration application and should dispose it of within four weeks from to-day. If there is any transfer of possession pendente lite, that should not come in the way of the Court to dispose of the restoration application; but, in any case, that must be decided within 30 days from to-day.