J.B. Mehta, J.
1. The original plaintiff whose suit has been dismissed by the learned Single Judge by confirming the trial Court's decree has come in this appeal.
2. There is no dispute that the deceased contractual tenant Rana Chhotabhai Nanabhai, though his tenancy was duly terminated before his death on March 9, 1960, he was at the date of his death continuing in the suit premises as a statutory tenant. There is also no dispute that the deceased was doing grocery business in the suit shop and that he had left his widow Haribai and his daughter Punjiben as his heirs and all these persons - widow Haribai, daughter Punjiben and daughter's husband Manilal Chhaganlal were all residing with the deceased at the time of his death. The case of the plaintiff was that after the death of the tenant Chhotalal Naranbhai, statutory tenancy was continued only by widow Haribai. Haribai died on February 11, 1964. The plaintiff gave notice, Ex. 27, on August 18, 1964. The defendant daughter and the daughter's husband in their reply, Ex. 30, dated September 1, 1964 claimed protection as statutory tenant. The plaintiff's suit was on the basis of title for evicting the defendants as being in unauthorised possession. The learned Single Judge having held that they were not in unauthorised possession but under Section 5(11)(c) in their own rights on the death of the statutory tenant Chhotalal, the suit for eviction must fail. That is why the plaintiff has come in this appeal.
3. The legal position is now well settled as to the true interpretation of Section 5(11)(c) which was in force at the relevant time. Section 5(11)(c) provides that a tenant means any person by whom or on whose account rent is payable for any premises and includes-
(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 month immediately preceding, the death of the tenant as may be decided in default of agreement by the Court, and
In Heirs of deceased Mohanlal v. Muktabai 12 G.L.R. 272 at page 276, a Division Bench, consisting of A.D. Desai, J. and my learned Brother, interpreted this relevant Clause in Section 5(11)(c) in this inclusive definition of the term 'tenant'. It was pointed out that all the various clauses of Section 5(11) make no reference whatever to the nature of the premises but only to the classes of the persons who are entitled to become tenants. Clause (c) of Section 5(11) provides that any member of the tenant's family residing with him at the time or within three month immediately preceding his death as may be decided in default of agreement by the Court, is a tenant. The words, 'residing with him' control the expression 'any member of the tenant's family' and the said words did not refer to the nature of the leased premises. Because in this relevant definition as it stood before 1965, there were no words of limitation such as 'in respect of premises let for residence' so as to restrict this benevolent clause only to residential premises, and as various Subclauses (a),(aa),(b) clearly indicated that they applied to all the premises, in absence of any words of limitation in this relevant Sub-clause (c), it could not be held that the benefit of this provision was to accrue only in respect of residential premises. It was pointed out that the legislature enacted Section 5(1 l)(c) for the purpose of protecting members of the tenant's family residing at the time of or within three month immediately preceding his death. The protection is not to any and every member of his family but only to such member of the tenant's family who was residing with him at the time of, or within three month immediately preceding his death. It was, therefore, held that this provision laid down the manner of devolution of statutory tenancy and it devolved on the death of the statutory tenant on any member of the tenant's family residing with him at the time of, or within three month immediately preceding his death. It was also pointed out that in many cases, maintenance of members of tenant's family residing with him depended on the income derived from the business and in order that such members of the tenant's family might not be thrown on the street, but continued to maintain themselves by carrying business in the premises, the legislature appeared to have enacted the provisions of Section 5(11)(c) of the Act. Therefore, it was in terms held that the true construction of Section 5 (1 l)(c) of the Act is that any member of the tenant's family residing with him at the time of, or within three month immediately preceding his death was a tenant within the meaning of the said provisions irrespective of the purpose for which the premises were let. The ratio was categorical that on the death of the statutory tenant any member of his family residing with him at the time of, or within three month immediately preceding his death was entitled to become a tenant. In Sudalaimuthu v. Palaniyandavan : 1SCR450 , in similar context of such tenancy legislation, where the benefit was to accrue to the members of the family, it was in terms held relying on Webster's New World Dictionary that 'family' would include a group of people related by blood or marriage, relatives. A person can, therefore, be regarded as being the member of his wife's family and not merely of his father's family. The term 'family' was not to be construed in the narrow sense to mean only a member of a Hindu Joint Family but even to include a son-in-law as member of the family, keeping in mind the salutary principle that the definition of the tenant in such tenancy legislation was applicable irrespective of the personal laws governing the parties. A similar wider interpretation must be given even to the present definition as is pointed out by the Division Bench because the legislature has enacted Section 5(1 l)(c) for the purpose of protecting members of the tenant's family residing with him at the time of, or within 3 month immediately preceding his death. The tenant's definition is also applicable to all persons, not only to the widow and the daughter but also to daughter's husband, or the son-in-law as held by their Lordships in the aforesaid decision.
4. Mr. Shah, however, canvassed a narrow construction of Section 5(11)(c) by relying on the decision of the Court of Appeal in Summers v. Donahue, 1945 (1) K.B. 376. The Court of Appeal had to construe a totally different definition of the term 'tenant' in the definitive part of Section 12(1)(g) of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920 which in both places where it occurred only referred to the original contractual or statutory tenant on whose death his widow or other members of his family may continue in possession as a statutory tenant. It was because of the relevant words therein which occurred twice over in the definition part of the section, which had referred to the same person and only to one person, that is to say, to the original contractual or statutory tenant who had died, that, that the Court of Appeal was inclined to interpret this language in restricted manner by holding that it could not cover widow or other member of the tenant's family so as to give them right to continue tenancy on the death of such widow or other member of the family. The Court of Appeal took this narrow interpretation on the basis that a succession of descendants was not contemplated under the second part of the definition, so that the tenant may include one who had become an artificial tenant by inheritance of the right of original tenant under the earlier part of the definition. There is no such difficulty in the present Section 5(1 l)(c) which the Division Bench had in terms interpreted as laying down that on the death of the statutory tenant any member of his family residing with him at the time of, or within three month immediately preceding his death, is entitled to become a tenant. In Murlidhar of U.P. : 1SCR575 , a similar definition of Section 3 of UP Rent Control Act defining tenant had been interpreted. Their LordshinV laid emphasis on the fact that such rent restriction statute protecting tenants were measures based on public policy. They were intended to protect weaker sections of the community with a view to ultimately protecting the interest of the community in general by creating emulative power. Although the section. Wrimarily in tenants only, that protection was based on public policy and such a right could not even be waived. When, therefore, the legislature in the cortex of such measure based on public policy widens protection by such inclusive definition include on death of statutory tenant, members of the residing with him at the time of, or within three month preceding his death, by giving them statutory right of wide amplitude of provision could not that the benefit must have been contemplated not or descendants but for only one person alone. That would be totally the whole object of this amendment. Some persons may be unfortunate as to lose this protection on this narrow construction by successive deaths in the family. That is not the sound construction of a measure based on public policy especially when there are no such restrictive words in the context of this statute.
5. The legislature was really recognising the juridical possession of the members of the family who were residing with the tenant at the time of or within 3 months of his death and devloving statutory tenancy on those persons. If the statutory right has devloved even on the death of the statutory tenant, the said right would further devlove on the death of that statutory in his turn to one in whom the legislature recognises juridical possession in such a measure to protect the community. Therefore, there is no basis for the narrow construction canvassed for by Mr. Shah. In that view of the matter there was no foundation for the present suit on the basis that the defendants were in unauthorised possession as they were in possession in their own right under Section 5(1 l)(c) when the tenancy of the deceased had devloved on them. In the present case even on the narrower footing the defendants were entitled to be protected because both the defendants were residing admittedly with him at the time of the death of the statutory tenant Chhotalal, and so, the devolution of the statutory tenancy under Section 5(1 l)(c) was on these persons including widow Haribai and the defendants. Therefore, on the death of Haribai, both the defendants were continuing under the original devolution of statutory tenancy and not under a fresh devolution on the death of Haribai, which even is really intended by our legislature as earlier pointed out by us.
6. In that view of the matter, this appeal must fail and is dismissed with costs.