D.P. Desai, J.
1. The dispute in this appeal relates to the claim of respondent-landlord (original plaintiff) to evict the appellants from business premises situated in Baroda. The premises consist of a shop; and admittedly one Chhotalal, father of appellant No. 1 was, at one point of time, the tenant thereof. As per the finding of the lower appellate Court, the tenancy of this Chhotalal was terminated by the landlord during Chhotalal's life time before instituting a suit against him. That was Civil Suit No. 1235 of 1956. That suit was compromised. However, the learned appellate Judge has found that Chhotalal was a statutory tenant on the day he died in March, 1960. This Chhotalal left behind him his widow Bai Hari and the only child Punjiben-appellant No. 1. As per the finding given by the Courts below, the widow and this daughter were staying with Chhotalal in Chhotalal's own house till his death. Chhotalal's widow carried on business in the rented premises till her death in February, 1964; and she left behind her appellant No. 1. As per the findings of the Courts below, both the appellants have been staying with Chhotalal during his life time and were staying with Haribai, the widow of Chhotalal till her death, in another premises belonging to Chhotalal. After the death of Chhotalal's widow, the plaintiff gave notice to the defendants on August 18, 1964 to quit. The defendants replied to the same on September 1,1964 and thereafter the suit from which present Second Appeal arises, was filed on October 20,1964 by the plaintiff-respondent alleging that Chhotalal and his widow as well as the defendants were staying in a different house belonging to Chhotalal and that Chhotalal was, before his death, doing the business of food grains in the suit premises. The further allegation was that after his death, Haribai was doing the business of food grains in these premises and as the suit premises were let out only for the purpose of business, the defendants had no right to continue in possession thereof after the death of Chhotalal and Haribai because they had no interest in the business carried on by Chhotalal and Haribai; and they were also not co-parceners in the family of Chhotalal and Haribai. According to the defendants, the suit premises were let out not for business purpose only, but also for residence and that in addition to doing business, Chhotalal, Haribai and the defendants were using the suit premises for residence. They also stated that they were interested in the business carried on by Chhotalal in the suit premises from the beginning and were also members of the family of Chhotalal. They contended that they were staying with Chhotalal and Haribai during their life time and after their death, they continued in the suit premises, having continued, the same business. It is on these grounds that they claimed protection of their possession under the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as 'the Act').
2. The trial Court found that both the defendants were staying with Chhotalal; and after his death with his widow Bai Hari till the death of Haribai and that they were helping Haribai in her business. In fact, the learned trial Judge stated that both of them were 'carrying on business with Haribai.' The further finding given by the learned trial Judge was that both the defendants, Chhotalal and Haribai were staying in their own house in Ranavas; and that defendant No. 2 had come to stay with defendant No. 1 after their marriage. It may be stated that appellant No. 2 (original defendant No. 2) is the husband of appellant No. 1 ( original defendant No. 1). The learned trial Judge also came to the conclusion that neither Chhotalal nor Haribai nor the defendants were staying in the rented premises i.e. the suit premises. According to the learned trial Judge, both the defendants had become lawful tenants of the suit premises in view of the aforesaid findings; and, therefore, they are not liable to be evicted. Therefore, he dismissed the suit with costs. Against that decree, the plaintiff appealed to the District Court, Baroda. The learned Assistant Judge, who heard that appeal, differed from the trial Court, allowed the appeal and passed a decree for eviction. Hence this Second appeal by the original defendants.
3. The findings of the appellate Court, so far as material for our purposes, are as under:
(1) Chhotalal had taken on rent the suit premises for the purpose of carrying on business and not for a mixed purpose of residence and business.
(2) Chhotalal was a statutory tenant because his tenancy was already terminated by the plaintiff before filing the earlier suit being Civil Suit No. 1235 of 1956.
(3) Defendant No. 1 being the daughter of Chhotalal was a member of Chhotalal's family within the meaning of Section 5(1l)(c) of the Act.
(4) There was no reliable evidence to hold that the defendants carried on business with the deceased Chhotalal in the suit premises at the time of his death.
4. Having come to these findings and having possibly accepted the finding of the trial Court that Chhotalal, Haribai and the defendants were staying in the premises belonging to Chhotalal, the learned appellate Judge, following the decision of Parubai v. Baldevdas 5 G.L.R. 563, came to the conclusion that the possession of the defendants in respect of the suit premises was not protected because sec, 5(1 l)(c) was not applicable to the business premises and was applicable only to residential premises. He, therefore, passed a decree in appeal as stated above.
5. The decision in Parubai's case (supra) was not followed- by a Division Bench of this Court in Heirs of deceased Mohanlal v. Muktabai 12 G.L.R., page 272. Therefore, it can be said that the dictum laid down in Parubai 's case (supra) is no longer a good law. The facts in the case before the Division Bench in 12 G.L.R. 272 were that the premises were let out to one Darji Mohanlal Lavji who was using them for his tailoring business. His tenancy was terminated during his life time and thereafter, the landlord had filed a suit for possession against the said tenant. The suit with regard to possession came to be dismissed. Mohanlal, the tenant, died on June 1,1964; and the landlord filed another suit against the heirs of Mohanlal being Civil Suit No. 455 of 1965 for eviction from the rented premises which were being used for tailoring business. One of the contentions raised by the defendants was that they were carrying on business in the suit premises during the life time of Mohanlal and carried it on after his death also. The trial Court came to the conclusion that the defendants were tenants in respect of the suit premised and that the plaintiff failed to prove that the premises were required for her bona fide personal requirement. Therefore, the suit was dismissed. Thereupon the plaintiff went in appeal to the District Court; and the learned Assistant Judge who heard that appeal came to the conclusion that the defendants were not tenants as defined in Section 5(11)(c); and therefore, they were not protected. On this ground, the appeal was allowed and a decree for eviction was passed. Against that decree in appeal; a Civil Revision Application was filed; and that application ultimately came to be referred to the Division Bench. The Division Bench found from the findings given by the Courts below that deceased Mohanlal was a tenant of the suit premises and was carrying on business of tailoring therein; that his tenancy was terminated in the year 1956 and thereafter he remained in possession as statutory tenant; that he died on June 1, 1964; that the provisions of the Amending Act of 1965 came into force in June 1965; and that the suit in that case was filed on November 5, 1965. 'Having taken these facts into consideration, the Division Bench proceeded to consider the unamended provisions of Section 5(1 l)(c)
6. The Division Bench came to the conclusion that the aforesaid provision was enacted in order to protect the members of the family of the tenant residing with him and that the said provision laid down the manner of devolution of the statutory tenancy. It further held that on the death of the statutory tenant, the statutory tenancy devolves on any member of the tenant's family residing with him at the time or within three months immediately preceding his death. Then, the following observations were made by the Division Bench with regard to the scope and content of Section 5( 11 )(c)
In many cases, maintenance of members of tenant's family residing with him depends on the income derived from the business and in order that such members of the tenant's family may not be thrown on the street but continue to maintain themselves by carrying on business in the premises, the Legislature seems to have enacted the provisions of Section 5(1 l)(c) of the Act. For the reasons aforesaid 'the true construction of the provisions 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 months immediately preceding his death is a tenant within the meaning of the said provisions irrespective of the purpose for which the premises were let. On the death of a statutory tenant any member of his family residing with him at the time of, or within three months immediately preceding his death is entitled to become a tenant.
With regard to Parubai's case (supra) laying down that the provisions of Section 5(1l)(c) cannot possibly apply to the case of premises, which were used by the tenant as business premises, the Division Bench stated that it was difficult to agree with that reasoning. In that connection, it further observed:
A plain reading of the provisions of Clause (c) of Section 5(11) of the Act indicates that the words 'residing with him' control the expression 'any member of the family and the said words do not refer to the nature of the premises which are let out. The main part of the definition of the word 'tenant' refers to any premises. Sub-clauses (a), (aa) and (b) also apply to all premises. There are no words in the provisions of Section 5(1l)(c) of the Act which limit the application of the clause to residential premises. The Legislature intended to give protection to the member of the tenant's family residing with him, possibly, with a view to permit continuance of the business which in many cases is the only or main source of maintenance for such person. Thus there is obviously a nexus between the requirement of residence of the tenant's family with the tenant at the time of his death or immediately three months prior to it and the creation of statutory tenancy in respect of business premises in favour of such member. The factum of residence provides a nexus between the deceased and the members of the family who are entitled to the benefit of the protection under the Act.
It is not disputed that if the interpretation given by the Division Bench with regard to the content of Section 5(1 l)(c) is to be applied, present appeal must succeed. However, Mr. M.C. Shah, appearing for the respondent-landlord has contended that a further question arises in the instant case with regard to the interpretation of Section 5(1 l)(c) which did not arise before the Division Bench because in that case the question was of giving protection to the members of the family of a contractual tenant who had become a statutory tenant during his life time and who had died. In order to understand this contention, which has raised an interesting question, correctly, we may style the protection given to a member of such tenant's family residing with him at the time of his death or within the prescribed period before his death, as the first transmission of protection available under the Act. The contractual tenant whose tenancy was terminated became entitled to the protection of the Act as a statutory tenant which protection, it is now settled, was personal in character, and did not amount to an interest in the rented premises so as to enable his heirs at law to inherit the same. On the death of such a contractual tenant who had become a statutory tenant during his life time, the question of protecting possession of member of his family residing with him as contemplated by Section 5(11)(c) arose; and the possession of such members of the family was protected by the provisions of Clause (c) of Section 5(11). This would be the first transmission of protection of statutory tenancy as put by Mr. M.C. Shah in the course of his arguments. But for this provision, it is clear that the heirs or members of the statutory tenant's family would not be entitled to the protection of the Act. Now, Mr. Shah's contention was that this transmission of protection under the terms of Section 5(1 l)(c) can take place only once and not more than once. In his submission this question never arose before the Division Bench because there, the Division Bench was dealing with the first transmission only. In the present case, runs the argument, the first transmission took place in favour of Haribai, widow of Chhotalal and on her death there is no question of the second transmission in view of the interpretation of Section 5(1 l)(c) submitted to this Court relying upon an English decision. Therefore, it is urged that there is no question of granting any protection to the present appellants under the notion of second transmission of protection from Haribai to the present appellants.
7. Mr. Oza for the appellants contested that this was not a case of second transmission, because, in his submission, even at the time of the death of Chhotalal, the original tenant, Haribai and Punjiben, the daughter of Chhotalal were staying with him, and therefore, the first transmission of protection would take place in favour of both of them. In the alternative, he submitted that the language of Section 5(1 l)(c) shows that the transmission of protection can take place as many times as possible so long as the conditions of that section were satisfied. It will not be necessary in the present case in view of the conclusion to which I have come as regards the interpretation of Section 5(1 l)(c) to proceed on the basis that the first transmission took place in favour of Haribai and Punjiben, appellant No. 1 as submitted by Mr. Oza. For the time being we may assume in favour of Mr. Shah for the respondent landlord that on Chhotalal's death the first transmission of protection of tenancy took place in favour of Haribai and that at present the occasion is of recognizing protection by way of a second transmission. Therefore, the question is whether Section 5(1 l)(c) contemplates only one transmission of protection as contended on behalf of the landlord-respondent or it contemplates a number of transmissions so long as the last person whose possession is protected satisfied the definition of a tenant contained in Section 5(11). For this purpose, we may reproduce Section 5(11) as it existed prior to its amendment by Gujarat Act No. 15 of 1965, because it is common ground before me that this case has to be decided on the unamended Clause (c) of Section 5(11) as it existed prior to the aforesaid Gujarat Act:
5. In this Act unless there is anything repugnant to the subject or context:
(11) 'tenant' means any person by whom or on whose account rent is payable for any premises and includes;-
(a) such sub-tenants and other persons as have derived title under a tenant before the commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Ordinance, 1959,
(aa) any person to whom interest in premises has been transferred under the proviso to Sub-section (1) of Section 15;
(b) any person remaining, after the determination of the lease, in possession, with or without the assent of the landlord of the premises leased to such person or his predecessors who has derived title before the commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Ordinance, 1959.
(c) any member of the tenant's family residing with him at the time of, or within three months immediately preceding his death as may be decided in default of agreement by the Court.
Mr. Shah relied heavily upon Summers v. Donohue 1945(1) King's Bench Division, 376, which was a case in which the provisions of Section 15(1 )(g) of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920, came up for interpretation. The relevant portion of that section may be reproduced
12(1) For the purposes of this act, except where the context otherwise requires: (g)... the expression 'tenant' includes the widow of a tenant dying intestate who was residing with him at the time of his death, or, where a tenant dying intestate leaves no widow or is a woman, such member of the tenant's family to residing as aforesaid as may be decided in default of agreement by the county Court.
It may be observed that the words 'dying intestate' occurring in toe aforesaid provision were repealed by the Increase of Rent and Mortgage Interest (Restrictions) Act, 1935. In that case, the defendant's father became a tenant of the suit premises in 1916; and after his death his widow continued in possession. She died in 1944 and the defendant who was her only relative living with her in the house remained in possession. The county Court gave a finding that the father of the defendant was a statutory tenant in the year 1927 at the time of his death. This finding was accepted by the appellate Court. Therefore, as submitted by Mr. Shah, the first transmission took place in favour of the widow; and the widow continued to enjoy the protection of the Act from 1927 to 1944 till her death as a statutory tenant. The question was whether the defendant can also say that she was a tenant within the meaning of Section 12(1)(g) On interpretation of the aforesaid provision, the King's Bench Division made the following observations at Page 381:
Where the words 'a tenant' occur twice over in the definition part of the section, I think they refer to the same person, and only to one person, that is to say to the original contractual or statutory tenant who has died, and that it is not right to continue that in a succession of defendants, so that under the second part of the definitive of portion of the sub-section 'a tenant can include one who has become an artificial tenant by inheritance from the original tenant under the earlier part of the definition.
It was therefore, held that the defendant did not come within the definition of a tenant and therefore, was liable to be evicted. According to Mr. Shah, the provisions of Section 5(11 )(c) of our Act are in pan materia with provisions of Section 12(1)(g) of the English Act and therefore, the principle laid down by this English decision should be followed by this Court.
8. We must adopt a cautious approach in following English decisions relating to interpretation of terms used in English statutes where the mode and manner of living is so fundamentally different from that obtaining in our country. Again, it cannot be said for the purpose of answering the question raised in this proceeding that the provisions of Section 5(1 l)(c) of our Act are in pan materia with the provisions of Section 12(1)(g) of the English' Act. If we examine the provisions of Section 5(11) a little closely, most material difference in language would be illustrated by the employment of the words means any person by whom or on whose account rent is payable for any premises and includes.' This definitive part of the word 'tenant' is of wide amplitude, and is not to be found in the English statute.
9. Now, the question which at once arises is whether in the present case, after the law recognised protection in favour of Bai Hari, she became a tenant within the opening portion of the definition of Section 5(11) as a person by whom or on whose account rent was payable for the suit premises It is obvious that in order to claim protection of the Act, Bai Hari was under an obligation to pay rent of the suit premises. Therefore, rent was payable by her or on her account in respect of the suit premises. If that is the position, it can be said that since Bai Hari wanted to avail of the protection of the Act under Section 5(1 l)(c) on the death of her husband, she came under an obligation to pay rent, and therefore, in her turn became a tenant falling within the first part of the definition of the word tenant as she was a person by whom or on whose account rent was payable. When she dies, therefore, the question of second transmission would again arise, because she died as a statutory tenant of the rented premises. On her death, appellant No. 1 who, as per the findings of the Courts below, was residing with her, would be entitled to the protection of the Act. When she seeks that protection, there is an obligation upon her to pay rent and the she would become a tenant under the main part of 'definition clause, With the result that on her death in future, there If, 'if at all, of a third transmission of protection.
10. Mr. Shah lifted that the first part of the definition in Section 5(11) only refers to a tenant by whom rent is payable, under the contract and it does not refer to a case in which rent becomes payable by virtue of the fact that the person claiming protection is entitled to the same under Clauses (a) to (c) of Section 5(11). There is nothing in the language of Section 5(11) show that the first part of that provision is restricted only tenant by whom or on whose account rent is payable and tenant., There is an obligation to pay rent on both a at tenant, the obligation on the latter being dependent upon his claiming protection of the Act and continuing in '-then urged that there is no provision in the Act the statutory tenant to pay rent and that the 'word 'payable has element of an absolute compulsion under the law riot depend; upon volition of the party. This contention cannot be a 'person gets protection under the Act as a statutory tenant, the protection is continued so long as he pays or is ready and willing to pay the amount of standard rent and permitted increases if any and observes and performs other conditions of the tenancy (vide Section 12 of the Act). Therefore, if he claims the status of a statutory tenant and becomes one, the obligation to pay rent arises.
11. There is a fundamental difference between the; phraseology of the English Act and our Act in so far as the question raised in this proceeding is concerned. The English Act took no account of the obligation to pay rent in defining the word 'tenant' and gave only an inclusive definition restricting it to two types of persons, viz. a widow or if there is no widow, or the tenant is a woman, such member of the tenant; s family residing with the deceased tenant at the time of his or her death, as may be decided upon in default of agreement by the county; Court. The English definition thus recognized only two types of statutory tenant whereas our definition includes all persons by whom or on whose account rent was payable for any premises and then brings in different categories of persons as tenants for the purpose of definition as mentioned, Clauses (a) to (c). This difference in language is determinative of the question posed before me and it is, therefore, not possible to follow the interpretation of the English Act in the aforesaid decision.
12. Therefore, whenever there-is a claim to protection under Section 5(11)(c) of the Act, the Court must ask itself whether the deceased tenant was a tenant within the meaning of Section 5(11) in the sense that he was a person by whom or on whose account, rent was payable. If the Court comes to the conclusion that he was a tenant, the Court should determine whether the conditions stipulated by Clause (c) exist in a given case, if the conditions of that clause are satisfied then notwithstanding the fact that the transmission of protection takes place at second, third or fourth or further stages, the protection holds good. In the context and the object for which the Act was enacted, it would be artificial construction of Section 5(1 l)(c) to hold that the transmission of protection contemplated thereby takes place only once. To interpret the provisions' in this manner, would, instead of advancing the object of the, defeat it. According to the preamble of the present Act, it is an Act to amend and consolidate the law relating to the control of rents and repairs of certain premises and of rates' of hotels houses and of evictions. The earlier. Act No. 7 of 1944 which was in force before this Act came into force, spoke about the object, of the Act being 'to regulate the supply of accommodation whether residential or non-residential... and in particular to provide for controlling the rents or rates... and for preventing in certain cases eviction from the accommodation supplied....' The object of the Act being to e protection to tenants who are ready and willing to pay rent and the definition of the word 'tenant' being given in wide terms any restricted interpretation of Clause (c) of Section 5(11) would, in my Defeat teas advance it. We must read the plain, words of Section (11)(c); and if we read them as such, there is nothing therein restrict the transmission of protection to only one occasion, that is only after the protection given to the contractual tenant is over.
13. Mr. Shah also urged that the decision of the Division Bench of this Court in heirs of deceased Mohanlal (supra) does not lay down the correct proposition of law and therefore, the matter should be referred to a larger bench. He urged that the construction put of Section 5(1 l)(c) of the Act is artificial and that even if the words contained in Section 5(1 l)(c) were of wide meaning, they should be interpreted in a restrictive manner. For this purpose he assumed that the Legislature only wanted to provide protection in case of residential premises by the unamended Clause (c) of Section 5(11) of the Act. It is not possible to agree with this contention. The Division Bench has shown, that the protection is applicable even to business premises provided the conditions of Section 5(1 l)(c) are satisfied.
14. If this is the position, it is clear that the appeal must succeed, because no other contention was raised on behalf of the respondent. Cross-objections have been filed on behalf of the respondent, but no submission has been made thereon by Mr. Shah. Therefore, they will stand dismissed.
15. In the result, the appeal is allowed; and the decree passed by the lower appellate Court is set aside. Plaintiff's suit for possession is ordered to be dismissed with costs throughout. The cross-objections filed in this appeal are ordered to be dismissed with no order as to costs.
16. Looking to the general importance of the question raised and the English decision cited at the bar in this appeal, leave to file an appeal under the Letters Patent is granted at the oral request of Mr. Shah for the respondent.