B.K. Mehta, J.
1. The following two questions have been referred to us for our opinion:
1. Whether the decision of the Division Bench in Nanumal Rajumal v. Lilaram Vensimal : (1977)18GLR858 is a, good law in view of the decision of the Supreme Court in Damadilal v. Parashram. (1976) 1 SCC 85V
2. If a statutory tenant has also an estate and is heritable and transferable, would it require a notice for determination of that estate as prescribed under Section 106 of the Transfer of Property Act?
2. The above two questions arise in the following circumstances:
The deceased father of the plaintiff land lords, who are the petitioners before us, filed H. R. P. suit No. 5218 of 1965 out of which Civil Revision Application No. 348 of 1975 arises, in the Small Cause Court at Ahmedabad against the defendant-tenants who are the respondents herein, for possession of the residential premises bearing municipal census Nos. 2926 and 2923/1 situate in Zaveriwad Kalupur, Ahmedabad, which were taken on lease by the deceased Rental Shah the father of respondents Nos. 1 to 4 and husband of respondent No.- 5 in 1943-44 A. D. at a monthly rent of Rs. 21/- including municipal taxes, on the sole ground that the tenants were in arrears of rent to the tune of Rs. 609/-, for the period commencing from 1-7-63 to 30-11-65, and have failed to pay the- rent in arrears within one month of the notice to quit. The original tenant Rental Shah died in the year 1956 while the original plaintiff died during the pungency of the suit on April 5, 1966 with the result that the present petitioners were brought on record of the suit as her and legal representatives.
3. The Small Cause Court dismissed the suit by its judgment and order of November 10, 1968 since it was of 'he view that the case of the tenants fell within the term of Section 12(3)(b) of the Bombay Rents Hotel and .Lodging House Rates Control Act, 1947 (hereinafter called 'the Bombay Rent Act') since there was a dispute. between the landlords and the tenants about the standard rent of the premises in question. The trial Court also found that the respondent-tenants have paid all the rents then due at the time of the first hearing of the suit and therefore they were not tenants in default. The tenancy in question, according to the trial Court, was not terminated since the notice was not served in the manner prescribed under Section 106 of the Transfuse of Property Act and, therefore, also the suit ;was not competent for want of notice.
4. The Appellate Bench of the Small Cause Court confirmed this view of the trial Court in Civil Appeal No. 200 of 1969 and affirmed the order dismissing the suit by its judgment and order of January 18, 1974. The plaintiff-landlords have, - therefore, challenged the said order in this revision application.
5. B. K. Mehta J., before whom this revision application was called out for hearing, upheld the two contentions urged on behalf of the plaintiff-landlords, viz. (i) that there was no necessity of serving statutory notice as the contractual tenancy had been determined by efflux of time and the defendant-tenants were holding the premises in question as statutory tenants only, and (ii) the trial Court as well as the Appellate Court committed, a legal error inasmuch as they need that on the facts of the case Section 12(3)(b) of the Bombay Rent Act was attracted and the tenants were not in arrears since they had 0aid all the rents then due before the first hearing of the suit, obviously because no dispute regarding standard rent was raised and pending between the landlords and the tenants. However, the suit of the plaintiff land lords would not be competent !n view of the decision of a Division Bench of this Court consisting of D. A. Desai and A. M. Ahmadi JJ. in Nanumal's case (supra), which in effect ruled that suit for possession by a landlord would be premature against the heirs of a deceased tenant in absence of an agreement between them or decision by a Civil Court in appropriate proceedings as to which one amongst them is a tenant of given premises. It was, therefore, contended on behalf of the Plaintiff-landlords that the decision of the Division Bench in Nanumalls, case (supra) was no more a good law in view of the decision of the Supreme Court in Damadilal's case (supra) which held that statutory as well as contractual tenancy are heritable and all the heirs of the original deceased tenant would inherit the tenancy as the case may be. Having regard to this contention which raised the validity of the view of the Division Bench of this Court and also because the matter required further consideration, the two questions set out above have been referred to us.
6. At the time of hearing of these referred questions before us, the mattere was allowed to be argued from all possible angles since a number of similar matters where the right of a land lord to file suit against the heirs of deceased tenant has been questioned on the ground of the suit being premature In view of the decision of this Court in Nanumal's case (supra), and also be cause it affected the rights of all the heirs of a dec6ased-tenant to agitate the question of standard rent by making miscellaneous application without the determination of the question: who is the tenant? Mr. AL M. Mehta, the learned Advocate for the petitioner in CRA 1089/76 has argued the question from all possible angles because the entire Civil Revision Application has been referred to the Full Bench. We have, therefore, heard the learned Advocates as if the entire dispute covered by the Division Bench's judgment in Damadilal's case (supra) is open at large. A number of authorities Indian as well as English has been cited before us in support of various contentions, main as well as subsidiary, urged at the time of hearing. We have also permitted the learned Advocates representing the landlords or tenants in other revision publications where the same question is involved to intervene. We will r efer to these decisions while dealing with the different contentions in support of which they were cited.
Broadly stated, 3 questions arise before us for consideration,
1. Whether the decision of -the Division Bench in Nanumal's case (supra) is good law after the decision of the supreme Court in Damadilal's case (supra)
2. If yes, to what extent the ratio of the said decision is diluted?
3. Whether the decision of the, Division Bench in Nanumal's case requires reconsideration in any view of the matter?
7. In order to answer the fizvt question, we will shortly refer to what the Division Bench of this Court has laid down in Nanumal's case. The Plaintiff Nanumal filed a suit for 'obtaining vacant possession of a house property situated at village Adipur in Kutch district on the sole ground that the two defendants Lilaram and Thakumal, who were sons of original tenant Vensimal, were in arrears of rent for a period more than six months and they were not ready and willing to pay the rent within one month of the service of the statutory notice. The trial Court granted a decree for possession as prayed for under Section 12(3)(a) of the Bombay Rent Act. Original defendant No. 2 preferred an appeal against this eviction decree which was allowed by the District Court on the ground that the statutory notice terminating the tenancy as required by Section 106 of the transfer of Property Act was not served on defendant No. 2 with the result that the impugned decree was bad in law. However, the eviction decree had become final against original defendant No. I since he had not preferred any appeal against it. The plaintiff recovered the possession of the premises by executing the said decree during the pungency of the appeal by defendant No. 2. The appellate decree was. therefore, challenged in Civil Revision Application preferred by the plaintiff. A contention was urged before the learned single Judge on behalf of the plaintiff in revision that the District Court was In error in dismissing the suit on the ground of want of notice since the notice to one of the joint tenants would be a notice to all, because, on the death of the original tenant his heirs having inherited the tenancy were joint tenants. It was also urged, in the alternative, on behalf of the, plaintiff that on the facts of the case, since the notice was addressed to both, though served on one, would be a good notice in law, since both the brothers were staying together. In the opinion of the learned Judge since the question was of considerable Importance, he directed the matter to be placed before a terser Bench. The Division Bench candating of D. A. Desat and A. X Ahmadi JJ. examined -the width and scope of Section 5(11)(c)(1) before reaching the aforesaid conclusions. In its opinion~ the question of habitability of tenancy assumed considerable importance after the advent of the Rent Restrictions Acts to ward off the hardships and inconveniences to which an evicted tenant is exposed due to acute shortage of accommodation in urban and semi-urban areas and agglomerations. The Division Benck therefor considered what is the nature of right of a statutory tenant so-called and following a decision of the Supreme Court in Anand Nivas Mvt) LUL v. Anandji Kalyanji, AIR 19.65 SC 414 held that a statutory tenant is no -tenant at all since he has no estate or interest in -the premises occupied by him and he enjoys merely protection of the state after determination of the contractual tenancy in so far as he. cannot be turned out till he pays the standard rent and permitted increases and performs other conditions of tenancy. In the opinion of the Division Bench if the protection granted to a statutory tenant is to be real and effective, he .should also be protected against the consequences arising after his deatb. Since a statutory tenancy is neither heritable nor transferable obviously because it is no estate and is merely a personal right, the personal law of inheritance and succession would not afford real protection to the heirs of the deceased statutory tenant In the opinion of the Division Bench, therefore, the Legislature enacted the aforesaid two clauses which respectively deal with the residential and business Premises. The Division Bench therefore, was required to consider the various iMP11cations and aspects of the transmission of the tenancy prescribed under Section 5(11)(c)(1) only' because it was concerned with the residential Premise. Broadly four contentions were urged before the Division Bench in this context. They are (i) Does transmission take place in favour of all the members of the family residing with the deceased statutory tenant within three months immediately preceding his death? if so, whether they would be Joint tenants or tenants in commonly (it) Whether on true construction and effect the words 'as may be decided in Jonaray .Kumar km im'M. va default of agreemenV1 under Section 5(11)(c)(1) of the Bombay Rent Act would imply agreement Inter so between the members only or they take within their sweep agreement between the landlord and such members? (III) If the persons, In whose favour transmission takes place, are more than one, whether they would be joint tenants or tenants in common? and (iv) If they are tenants in comm9n, whether it is obligatory on the landlord to serve a statutory notice either under Section 12 of the Bombay Rent Act or under Section 106 of the Transfer of Property Act on all such persons before initiating action. for judgment The Division Bench considered the relevant provisions contained in Section 5(11)(c) M and (ii) of the Bombay Rent Act and a number of authorities Indian as well as English were cited before it. It laid down the 'following propositions:
(a) Section 5(11)(e)(1) and (A) cover not only the cases of statutory tenants but also the contractual tenants.
(b) Under the aforesaid two clauses, that individual member agreed upon by all the members residing with the deceased tenant at the time of his death, and in case of failure - of such agreement the individual member as determined by the Court would be a tenant.
(c) In the event of the death of a tenant in possession of protected premises under the Bombay Rent Act, it would be for the members of the tenant's family who are qualified for transmission to communicated the name of a member as an. agreed tenant.
(d) In default of communication, as stated in (c) above, it Is obligatory on the part of the landlord to call upon the members of the family of the deceased tenant residing with him to agree upon one individual from amongst thems lyes and name him as a tenant and if such a nomination is not made within reasonable time, the landlord has to get it determined by the Court by appropriate proceedings.
(e) Until such agreement as contem-, plated in (c) or (d) above as the case may be or determination by the Court as contemplated in (d) above, as towo would be a tenant, no proceedings,, can be taken ,by the landlord against' the members of -the family of the decease-ed tenant under the Bombay Rent Ad% since they would be premature till this question about, who is a tenant is decided by agreement or decision of the Court.
The Division Bench rendered its aforesaid decision on January 28, 1977.
8. However, the decluon of the Supreme Court in Damadilal's case which was pronounced on May 7, 1976 was unfortunately not pointed out to the Division Bench of this Court, though the three Judges' Bench of the Supreme Court in Damadilal's case could not persuade itself to accept as a leneral proposition of law enunciated in Anand Nivas's case (supra) while rejecting the English view that the statutory tenant has a personal right of protection only and has no estate and therefore, it is not heritable. in the present revision it was urgedfore the learned single Judge that since the view of the Supreme Court in Anand Nivas's case that the statutory tenancy is not an estate and, therefore, not heritable does not hold good in view of this latter decision of the Supreme Court in Damadiiql's case, the decision of this Court in Nanumars me which is founded on the view in Anand Nivas's case requires to be reconsidered from all the angles of the problem and the learned single Judge,--dure, placed the matter before the Honourable Chief justice for referring to & larger Bench- We have therefore, to consider as to what the Supreme Court decision decided in Damadilal's cuese.
9. In Damadilal's case a three Judges! Bench of the Supreme Court was concerned with a question, whether the heirs of original deceased-tenants could be brought on record in their place and could prosecute the proceedings before the- Rent Court. The plaintiff-landlords had prayed for eviction of the original defendant-tenants from the non-residential premises on two grounds: (i) default in payment of rent, and (ii) bona fide req of the plaintiffs after determining tenancy. The trial court dismissed the sultholding againat the plaintiffs onboth the grounds. The first Appellate Court reversed the finding of the tr lal Court an the question of bona fide require Ment though it affirmed its finding on the ground of default In payment of A deem for eviction was, therefore, passed. The original defendant tenants preferred a second appeal, to the High Court. During the pendency of the appeal, both the defendants died with the result that a contention was urged on behalf of the landlords that the appeal abated since the right of a statutory tenant under the Madhya Pradesh Accommodation Act was merely a personal right which was not heritable and could not have devolved upon their heirs. The High Court negative this contention and allowed the appeal restoring the judgment of the trial Court which had dismissed the suit. In appeal, at the instance of the plaintiff-landlords, one of the contentions, inter alia, regarding abatement of the appeal was reiterated. Gupta, J., sealing for the Court, referred to the earlier decision of the Supreme Court in Anand Nivas's case (supra) and observed as under in paragraph I I of his judgment -
'We find it difficult to appreciate how in this country we can proceed on the basis that a tenant whose contractual. tenancy has determined but who is protected against eviction by the statute, has no right of property but only a personal right to remain in occupation, without ascertaining what his rights are under the statute. The concept of a statutory tenant having no estate or property in the premises which he. occupies is derived from the provisions' of the English Rent Acts. But it is not clear how it can be assumed that the position is the same in this country without any reference to the previsions of the relevant statute. ,Tenancy has its original in contract. There is no dispute that a contractual tenant has an estate or property in the subject-matter of the tenancy, and habitability is an incident of the tenancy. It cannot be assumed, however, that with the determination of the tenancy the estate must necessarily disappear and the statute can only preserve his status of irrevocability and not the estate he had in the premises. in his occup It is not possible to claim that the 'sanctity' of contract cannot be touched by legislation, It,is therefore necessary to examine the provisions of the Madhya Pradesh Accommodation Control Act, 1961 to find out whether the respondents' predecessors in interest retained a heritable interest in the disputed premises even after the termination of their tenancy.'
The Supreme Court thereafter referred to the relevant provision of the definition of word 'tenant?' contained in Section 2 (i) of the Madhya Pradesh Accommodation Control Act, 1961, which read as under.
'a person by whom or on whose account or behalf the rent of any accommodation is, or but for a contract express or implied, would be payable for any accommodation and includes my person occupying the accommodation as, a sub-tenant and also any person continuing in possession after the termination of his tenancy whether before or after the commencement of this Act but shall not include any person against whom any order or -decree for eviction has been made.'
The Supreme Court fount that the definition placed a personl in possession after his tenancy has been determined at par with a cqntractual tenant and unless the context indicated the intention otherwise under the Act, the incidence of both the tenancles--contractual 'and statutory so-called. must be considered to be the same. In the context of the definition, the Supreme Court was of the opinion that a tenant could not be help to have a personal right merely to retain his interest in the premise& Section 14 of Madhya Pradesh Aceommodation Control Act, 1961, was relied upon in support of its view since the Court -did not find anything to suggest that it did not apply to all tenants as defined in Section 2 (i). In the opinion of the Supreme Court, in England, the statutory tenant's right to sublet is derived from the specific Provisions Of the Act conceding this right to him while under the Madhya Pradesh Accommodation Control Act, 1961, and similar other Indian statutes, the right flows from the status as a tenant. A Special Bench decision of the Calcutta High court in Krishna Prasad Bose V. SarAJubala Dasi (1961) 65 Cal WN 293, where Bachawat J. spoke for the Court while considering a similar question in the context of West Bengal Premises Item Control (Temporary ProvW'7 Act, 1950, was referred to In Damadijails case. and the following passage made therein Was q110ted with Approval:
'The Rent Control and Tenancy Axft create a special world of their only They speak of life after death. The statutory tenancy arises phoenix-like out of the ashes of the contractual tenancy. The contractual tenant may the bat the Statutory tenant may live Wig thereafter. The statutory ten dent is an ex-tenant and- yet 'he is a tenant.'
The Supreme Court, therefore, was ol the opinion that the concept of statutory tenancy under the English Rent Act and under the Indian statutes like the Madhya Pradesh Accommoctation Control Act, 1961, rested on different foundations. It, therefore ruled that the original deceased-tenants had heritable Interest In the prernises and- their heirs must, therefore, be brought on record for purposes of prosecution of the appeal. The following prepositions emerge from the decision of the Supreme Comrt 'Daniadilals case,
(a) A tenant whose tenancy is determined can continue in possession of the premises under the protection of a rent statute and can be conveniently described as a statutory tenant.
(b) The estate or interest which a contractual tenant has under thetractual tenancy does not disappear with its termination.
(c) A Rent statute not only protects a statutory tenant against the removability but may also protect and preserve his estate or interest W the premises.
(d) Inasmuch as the Madhya Pradesh Accommodation Control' Act, 1961 treats a person continuing in possession after determination of his tenancy as a tenant till a decree or an order of evietion has been made, the incidence of such a tenancy is the same as that of a contractual tenancy unless the other provisions indicate otherwise.
(e) The right of a statutory tenant in England to sublet flows from the relevant Acts while in Indian . statutes similar to Vadbya Pradesh Accommodation Control Act, 1961 it flows from its status as a tenant.
10. The pertinent question which, therefore, arises is, whether the principle enunciated in the decision of Anand 'Nivas's case (supra) is modified or varied. In Anand Nivas's case (supra), the Supreme Court was concerned with the question, whether a tenant whose Unancy has been twuldnated has any right to sublet the predlises under the Bombay Rent Act as amended in 19591 The mAjority view of the Court was expressed by Shah J. who spoke for himself and on behalf of Hidayatullah 5. While the third Judge Sarkar J. delivered a dissenting opinion. It was observed in the majority view that a person on his contractual tenancy being determined is entitled to retain his possession as long as he observes and performs the conditions of tenancy not m-consistent with the_ Act and pays standard rent and permitted increases. Such a person has no interest in the property and consequently, there fprei no estate which he can sublet, assign or transfer. In the dimntmg opinion Sarkar J. held that the word 'tenant' as defined in the Bombay Rent Act took within its sweep contractual as wen as statutory tenant and the latter has the same power to sublet as the former since the Bombay Rent Act has undoubtedly created a right In such a tenant to continue in occupation of the property which he can always transfer.
11. Before we deal with the question, which we have posed hereinabove, whether the ratio of Anand Nivas's case (supra) is varied or modified, we may shortly refer to another judgment of a Division Bench of two Judges of the Supreme Court in Jagdish Chander Chatterjee v. Sri Kishan (1972) 2 SCC 461, which applied the principle laid down in Anand Nivas's case. The question which arose for consideration in Jagdish Chander's case (Nupra) was whether on death of a statutory tenant his heirs succeeded to the tenancy so as to claim protection of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. In that case, during the pendency of second appeal at the instance of the landlord against the judgment of the first. Appellate Court reversing the judgment of the trial Court and dismissing the suit for eviction on the ground of bona fide requirement of the landlord, the tenant died. His heirs and legal representatives were brought on record. It was contended on behalf of the landlord -in second appeal that the protection given by the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 was personal to the statutory tenant and on his death, it was no longer necessary the landlord to show that he required the premises bona fide and reasonably and was entitled to eviction decree on showing that the contractual tenancy was validly determined. Palekar, J., speaking for the Court. referred to the definition of word 'tenazir given in Section 3 (vii) of the Rajasthan Act which provided as under:-
'Unless there is anything repugnant in the subject or context - 'tenant' means the person by whom rent is, or but for a contract express or implied would be payable for any premises and Includes any person holding or occupying the premises as a sub-tenant or any person continuing in possession after the termination of a tenancy In his favour otherwise than under the provisions of the Act.'
The Supreme Court held that when the original tenant died, he was only a statutory tenant with merely a personal right to remain in possession till the eviction decree is passed under the provisions of the Rajasthan Rent Act and the heirs were incapable of inheriting any estate or interest in the original tenancy since there was none, and as they were not within the definition of word 'tenant' under the said Act, they could not, in their own right, claim the protection. of the said Act.
12. It has been strenuously urged an behalf of the petitioner-landlords that the basic view pronounced in Anand Nivas's case (supra) about the status a statutory tenant rests on the assumption that on determination of a contractual tenancy, a person continuing in possession has only a personal right of irrevocability protected under Section 12 of the Bombay Rent Act, because it recognizes his right to remain in possession so long as he pays and is ready and willing to pay the standard rent and permitted increases and performs the other conditions of the tenancy. He has no right to enforce the terms and conditions of the original tenancy after it is determined. This view about the status of a statutory tenant under the English Act, namely, Increase of Rent and Mortagage Interest (Restriction) Act, 1920 and pronounced In Solomon v. Orwell (1954) 1 All ER 874 was assumed to be valid and good under the Indian statutes without considering as to what is the position under the relevant provisions of a given statute. In submission of the learned Advocate for the plaintiff-landlords, in order to determine whether a statutory tenant has estate or interest in the premises one has to refer to the provisions of the relevant statute governing a given case, as held by the Supreme -Court in Damadilal's case. It was emphasised by the learned Advocate for the plaintiff landlords that the material portion of the definition of word 'tenant' in Section 5(11) of the, Bombay, Rent Act, as in force in Gujarat, is in primavera with the definition in the Madhya Pradesh Accommodation Control Act, 1961, since every person remaining after determination of the lease in possession of the redness is included in the definition of the term 'tenant' in the Bombay Rent Act as was the position under the Madhya Pradesh Accommodation Control Act with which the Supreme Court was concerned in Damadilal's case.
13. We are of the opinion that reading of the decision in Anand Nivas's case by the learned Advocate for the plaintiff-landlords is not wholly justified. The majority opinion referred to the definition of word 'tenant' in Section 5(11) and after analyzing the -chain enactment as well as each of the clauses of the said section held that having regard to the plurality of its meaning the sense in which the expression is used in different sections and even clauses must be ascertained from the context of the scheme -of the Act, the language of the provision and the object intended to be served thereby. We are further of the opinion that the definition of the word 'tenant' under the Bombay Rent Act as is in force in Gujarat, is materially different from that under the Madhya Pradesh Accommodation Control Act and , similar other statutes. The majority opinion in Anand Nivas's case has analyses this plurality of the meaning of word 'tenant' in the following terms:
'The expression 'tenant' in the different clauses is defined to mean a contractual tenant or a statutory ~tenant or both. In the principal definition the expression 'tenant' means only a person who is a contractual tenant because rent Is payable by a contractual tenant and not by a statutory, tenant. By clause (a) sub-tenants and other persons who have derived title under a tenant before the commencement of the Ordinance III of 1959 would be regarded as tenants. These would be subleases, transferees or assignees of contractual tenants. Similarly by clause (aa) persons to Whom interest in premises has been transferred in virtue of a , notification issued by the State Government permitting in any area the transfer of interest in premises held under such leases or class of leases and to such extent as may be specified in notification, would be transferees of contractual tenants. Clause (b) contemplates a tenant holding over and a statutory tenant alike; it takes in a person remaining in occupation with or without the assent of the landlord, when the premises were lit to him or to his predecessor before the commencement of the Ordinance. Clause (c) includes in the definition the members of the family of a tenant, statutory or contractual residing with him at the time of his death, as may be decided in default by agreement by the Court. Having- regard to the plurality of its meaning, the sense in which the expression is used in different sections, and even clauses, must be ascertained from the context of the scheme of the Act, the language of the provision and the object intended to be served thereby.
It is no doubt true that the meaning of word 'tenant' in the main enactment and in clauses (a), (aa) and (b) Section 5(11) of the Bombay Rent Act appears to be akin to that given in the Madhya Pradesh Act. However, the intended definition of the word 'tenant' so as to take within its sweep the transmitted tenancy in favour Of any member of the family of the 'deceased-tenant residing with him at the time of his death as provided in clause (c) of Section 5(11) of the Bombay Rent Act, is not to be found in the corresponding definition in the Madhya Pradesh Act What is the effect Of clause (c) will be required to be considered, which 'we shall do at the appropriate place. Suffice if to say for the present discussion that the definition Of the word 'tenant' under the Bombay Rent Act and the Madhya Pradesh accommodation Control Act cannot be said to be in primavera as contended by the learned Advocate for the Plaintiff-undress so that it can be urged that the ratio -of Damadilal's case has completely reversed the position settled by Anand Nivas's case. The obvious reason for our disagreement is that the _question whether a statutory tenant socalled has the estate or interest which is heritable or transferable can be resolved only by reference' to the provisions of a given statute as held ,n Damadilal's case (supra) and cannot be ancwered merely on the basis of tiie principles so far deduced from the legal position as established in English law. It must be, however, conceded in fairness to the learned Advocate for the plaintiff-landlords that it cannot be ruled out of hand, whether the statutory tenancy is heritable or not without reference to the relevant statute. The Division Bench of this Court in Nanumal's case (supra), therefore, erred in so far as it proceeded as if it is a settled legal position that the statutory tenancy is not heritable without refe-w rence to the relevant provisions of the Bombay Rent Act.
14. The effect of the decision of Damadilal's case came up, for conside.-ation before a Full Bench of the Delhi High Court in Haji--Mohammed Din v. Narain Dass (1979) 1 Ren CJ 129 in the context of the following facts. The appellants before the Delhi High Court were heirs of the tenants of the premises let out for non-residential purposes. The tenancies were terminated before the deaths of the original tenants. The decrees for eviction were passed against the heirs on the ground that they were not tenants under the Delhi Rent Control Act sifice the protection under the said Rent At was not available to the heirs of the statutory tenants whose personal rights were inheritable, following the decision 0! the Supreme Court in Anand Nivas's case and J. C. Chatterjee's case (supra). The benefit of the amended definition of the word 'tenant' was not available to the appellants since it was effective from 1st - December 1973. One of the -questions referred to the Full Bench was, whether the decision in Damadlal's case would assist the cause of the appellants in preference to the majority decision in anand Nivas's case and J. C. Chatterjee's case (suVra) while construing the unlamented definition of the word 'tenant' under the Delhi Rent Control Act, 1958. The definition of word 'tenant' was amended by Section 2 of the Delhi Rent Control (Amendment) Act, 1976 whichwas brought into force from Dece-nl3r 1075 so as to include, inLer alia, such of the heirs as mentioned in clause Oil of the said section subject to the order of succession and conditions specified in Explanations I and 2 respectively. The unamended definition of word'tenant' under the principal Act was in part materia with that of the Madhya Pradesh Accommodation Control Act. The Full Bench was of the opinion that the decision of Damadilal's case was preferable to the previous decision in Anand Nivas's case, because, in the first place, the definitions in the Bombay Rent Act and the Madhya Pradesh Acommodation Control Act were not quite the same; secondly, the decision in amadilal's case is to , be preferred because it is the latest in point of time which was rendered after considera tion of the decision in Anand Nivas's case (supra)The Full Bench, therefore, held that the unamended Delhi Rent Control Act would have confer red upon an ex-tenant, the status of a tenant who is on par with that of a contractual tenant and consequently the interest of such a person to remain in occupation after his tenar.cy is terminated is heritable. The amended deflition, however, in the opinion of the Full Bench of the Delhi High Court,ex facie introduced an element of limit ed heritability* in relation to a certaln class of tenancies and it,therefore, answered that - 'after the death of the person continuing in possession after the determination of his tenancy,the legal representatives had the limited right of inheritance as given inthe definition of 'tenant' in S. 2(1) as rctrospectively amended by the amend ing Act of 1976.'
15. We are in respectful agreement with the view of the Full Bench of the Delhi High Court that the definitions in the Bombay Rent Control Act and the Madhya Pradesh Accommodation Control Act were not in pari materia and, therefore, the ratio of the decision in Damadilal's case would not completely reverse the position settled by Anand Nivas's case and we will be required to consider whether the statutory tenancy Is heritable like the cOL-1tractual tenancy by all the heirs of 9 deceased tenant or by limited class as was the position before. the Full Bench in Haji Mohammed Din v. Shri Narain Dass's case, (supra).
16. This question shall have to be answered by reference to the provisions contained in the Bombay Rent Act. Before we proceed to consider the relevant provisions of the Bombay Rent Act for this purpose, we must refer to the latest decision of seven Judge's Bench of the Supreme Court in V. Dhanpal Chettiar v. Yasoda Animal, (1979) 2 RCJ 358, rendered on August 23, 1979 under which the appeal at the instance of tenant was required to be heard by a larger Bench of the Supreme Court consisting of seven Judges in order to resolve the cleavage of opinion between various High Courts in India as also between several decisions of the Supreme Court on the question whether there is any legal obligation to determine the tenancy by a notice as provided under S. 106 of the Transfer of Property Act for the purposes of obtaining a decree for eviction against a tenant under any State Rent Control Act. Untwalia, J., speaking on behalf of the unanimous Court ruled that such a notice determining the tenancy is neither compulsory nor obligatory and once the liability to be evicted is incurred by a tenant, he cannot turn round and say that the contractual lease has not been determined because the jural relationship of a lessor and a lessee will come to an end only on passing of an order or a decree of eviction and till then a t6nant continues to be a tenant under the extended definition of the said term iij the various State Rent Acts even though the contractual tenancy might have beell determined by a notice under S. 136 of the Transfer of Property Act. A question might well arise in view of the far-reaching consequences of this decision of the Supreme Court in Dhanpal's case (supra) whetfer the wellknown and recognized distinction btween a contractual tenancy and a statutory tenancy has been completely erased. It may be profitable, therefore, to advert to the various premises of the reasoning which has impressed the seven Judizes' Bench of the Supreme Court in Dhanpal's case (supra). Vie following premises have been emphasised by, the Full Berich to reach the conclusion it did:
(a) No notice as ervisaqed under S. Ill (g) of the Transfer of Property Act, which provides f6r forfeiture of the tenancy, is legally obligatory when the forfeiture takes plaze under State Rent Acts of a right of a tenant to continue in occupation of the property, save and except where a specific provision is made in that behalf for eviction on the ground of arrears of rent such as the one under the Bombay Rent Act or the West Bengal Rent Act.
(b) Whereas the right of a lessor to obtain possession under the Transfer of Property Act can arise only on the. determination of the tenancy as provided under S. Ill thereof, the right to possession of a lessor under the State Rent Act can only arise when the grounds on which a teuant can be evicted are established. Consequently, therefore. notice for determination ef contractual tenancy is obligatory under S. 111(h) if a tenancy ' .9 not determined otherwise as provided under Section ill (a) to (g). However, the ques tion of determination of a tenancy by notice would not arise under State Rev-it Acts hich either in one language or the other has provided that a tenait can be evicted only on the grounds prescribed therein.
(c) The jural relationship between a landlord and a tenant as defined in the Rent Act would come to an end only when an order or a decreet of eviction is made and not on determination of a tenancy by a notice since according to the definition of word 'tenant' under the State Rent Acts a person continuing in possession even after determination of the tenancy Ts included in the meaning of the word 'tenant'.
(d) The determination of a lease In accordance with the Transfer of Property Act is unnecessary and mere surplusage.
(e) If protective umbrella is exten.5ed by State Rent Acts against the eviction to a tenant who is ready and willing to pay the' mounts of standard rent and permitted increases - and his observing and performing the other conditions of tenancy consistent with the Act, it is wholly unnecessary to import the contractual law engrafted in the Transfer of Property Act I to the landlords seeking eviction under the Rent Acts.
17. The following passages from Dhanpal's case highlight the above premises a .We only observe here that when the State Rent Acts provide under what circumstances and on what grounds a tenant can be evicted, it does not provide that a tenant forfeits his right to continue in occupation of the Property and makes himself liable to be evicted on fulfillment of the conditions. Only in . those State Acts where a specific provision has been made for the giving of any notice requiring the tenant either to pay the arrears of rent within the specified period or to do any other thing, such as the Bombay Rent Act or the West Bengal Rent Act, no notice in accordance with clause (g) is necessary ......
Without adverting to the effect and the details of waiver of forfeiture, waiver of notice of quit, relief against forfeiture for non-payment of rent etc. as provided for in Ss. 112 and 114-A of the Transfer of Property Act, suffice it to say that under the said Act no ground of eviction of a tenant has to be made out once a contractual tenancy 14 put to an end by service of a valid notice under S. 106 of the Transfer of Property Act. Until and unless the lease is -determined, the lessee is entitled to continue in possession. Once it Is determined it becomes open to the lessor to enforce his right of recovery of possession of the property against him. In such a situation it was plain and clear that if the lease of the immovable property did not stand determined under any'-of the cls. (a) to (g) of S. 111, a notice to determine it under S. 106 was necessary. But when under the various State Rent. Aqts, either in one language or the other, it has been provided that a tenant can be evicted on the grounds mentioned in certain section of the said Acts, then how does the questions of determination of a tenancy by notice -arise? If the State Rent Act requires the giving of a particular type of notice in order to get a particular kind of relief, such a notice will have to be given. Or, it may be, that a landlord will be well advised by way of abundant precaution and in order to lend additional support to his case, to give a notice to 'his , tenant Intimating that he intended to file a suit against him for his eviction on the ground mentioned in the riot ice. Blit that is not to say that such a notice is compulsory or obligatory or that it must fulfill all the technical requireinents of S. 106 of the Transfer of Property Act. Once the liability to be evicted is incurred by tenant, he cannot turn round and say that the contractual lease has not been determined. The action of the landlord in instituting a suit for eviction on the ground mentioned in any State Rent Act will be tantamount to an expression of his intention that he daft not want the tenant to continue as his lessee and the Journal relationship of lesser and lessee will come to an end on the passing of an order or a decree for eviction. Until then, under the extended definition of the word 'tenant' - under the various State Rent Act, the tenant continues to be a tenant even though the contractual tenancy has been determined by giving of a valid notice under S. 106 of the Transfer of Property Act, In many cases the distinction between a contractual tenant and a statutory tenant was alluded to for the purpose of elucidating some particular aspects which cropped up in a particular case. That led to the criticism of that expression in some of the decisions. Without detaining ourselves on this aspect of the matter by any elaborate discussion, in our opinion, it will suffice to say that the various State Rent Control Acts make a serious encroachment in the field of freedom of contract. It clues not permit the landlord to snap his relationship with the tenant merely by his' act of serving a notice to quit ~n' him. In spite of the notice, the law says that he continues to be a tenw,t and he does so enjoying all the rights &f; a lessee and is at the same time denied to be under all the liabilities such as payment of rent etc. in accordance with the law.'
18. The Supreme Court thereafter referred to the various State Rent Control Acts such as Tamil Nadu Rent Act, Bombay Rent Control Act, Kerala Lease and Rent Control Act, East PunL jab Urban Rent Restriction Act an,1 Madhya Pradesh and Andhra Pradesh State Rents Acts etc. The observation made by the Supreme Court to the provisions of the Bombay Rent Act is illuminating. Untwalia, I., observed as under while adverting to the provisions of the Bombay Rent Act -, Adverting to the provisions of tFe Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, if would be found from the definition of S. 5 that any person remaining in the building after the determination of the lease is a tenant within the meaning of clause (11), Section 12 of the Bombay Act says that the landlord shall not be entitled to the recovery of possession of any premises so long as the conditions mentioned in sub-s. (1) are fulfilled nor any suit for recovery of possessionshall be instituted by a landlord against a tenant on the happening of the events mentioned in sub-s. (2) until the expiration of one month next after the notice is served on the tenant in the manner provided in S. 106 of the T. P. Act, as required by the said sub-section. Section 13 provides that a landlord may recover possession in certain grounds. Is it not plain -then that on the happenings of the events or on the fulfilment of the conditions mentioned in Ss. 12 and 13 etc. the landlord becomes entitled to, recover possession from the tenant, otherwise not. it will bear repetition to say that under the Transfer of Property Act in order to entitle the landlord to recover possession determination of the lease is necessary as during its continuance he jeould not recover possession, wh4e under the State Rent Act the landlord becomes entitled to recover possession only on the fulfilment of the rigour of law provided therein. Otherwise not. He cannot recover possession merely by determination of tenancy. Nor can he be stopped from doing go ' on the ground that he has not terminated the contractual tenancy, Under the State Rent Control Acts the concept of the contractual tenancy has lost much of its significance and force.'
19. 'The Supreme Court thereafter referred to its different decisions under the different Acts where It has taken a view that determination of contractual tenancy is a pre-requisite for initiating eviction proceedings under the State Rent Control Act. Before referring to the different decisions, the Full Bench of the Supreme Court referred pertinently to the decision of a Constitution Bench of the Supreme Court in Rai Brij Raj Krishna v. S. K. Shaw & Bros., 1951 SCR 145 where the ConsVtution Bench in a slightly different context dealt with S. 11 of'the Bihar Rent Act and observed as undera 'Section 11 is a self-contained section, and it is wholly unnecessary to go outside the Act for determininit whether a tenant is liable to be evi*-4ed or not, and under what conditioull he can be evicted. It clearly provides that a tenant is not liable to be evict~-ed except on certain conditions, and one of,the conditions laid down for the eviction of a *rnonth to month tenant is non-payment of rent The Act ths sets up a complete machinery for the investigation of those matters upon which the jurisdiction of the Controller to order eviction of a tenant depends, and it expressly makes his order final and subject pnly to the decision of the Commissioner.' In that context It referred to the decl-sion of the Supreme Court in Bhaiya Punjalal hagwandin v. Dave Bhagwatprasad Prabhuprasad : 3SCR312 , which was a case from this Court under the Bombay Rent Control Act. The passage frora the judgment of Raghubar Dayal, J. who sl5oke for the Division Bench, ruled that to remove the bar on the landlord's right to evict a tenant, it was necessary for him to serve with a notice determining his tenancy and also serving him with a.notice under sub-s. (2) of S. 12 of the Bombay Rent Act. Untwalia, J., speaking for the Court in Dhanpars case (supra) with reference to this ruling of Raghubar Dayal, J., observed as under:-
'As we have pointed out above, -this was necessary under the Transfer of Property Act as mere termination of Me lease entitled the landlord to recoV~IL possession.' But under the Rent Control Acts it becomes an unnecessary technicality to insist that the landlorJ must determine the contractual tenancy. It is of no practical use after so many restrictions of his right to evict the tenant have been put. The restrictei area under the various State Rent Ades has don away to a laMe extent 'with the requirement of the law of contract and the Transfer of'Property Act. It this be so why unnecessarily illogically and justifiably a formality of terminating the contractual lease should be insisted upon In Bhaiya Punjalaits case, if ve may say so with very great respect, the principle of law laii down by this Court in Rai Brij Raj Krishna's case .(supra) and by the Purijab High Court in the Hem Chand's case (ILR (1955) Punj 33) was wrongly distinguished ............
The difference in the wordings of Section 11 of the Bihar Act and S. 12 of the Bombay Act does not justify the conclusion that the provisions of the Transfer of Property Act have not been overridden by S. 12 of the Bombay Act reading it with S. 13 ete, This was the ground given for distinguishing Hem Chand's case also by erroneously pointing out -the distinction between See. 13(1) of the Delhi and Ajmer Merwara Rent Control Act, 1952 and the Bombay Act. In our considered judgment Bhaiya Punjalal's case was not correctly decided.'
20. The Full Bench thereafter referred its another decision in Vora Abbasbhai Ali Mohomed v. Haji Gulamnabf Haji Safibhai : 5SCR157 , which was also a case from this Court under the Bombay Rent Act, where Shah, J. speaking for the Court referred to S. 5(11)(b) and observed that the said clause did nat grant a right to evict a contractual tenant without determination of the contractual tenancy since the protection from eviction is claimable by a tenant even after determination of the contractual tenancy so long as he paid or was ready and willing to pay the standard rent and permitted increases, and observed and performed the other conditions of tenancy which may be consistent with the provisions of the Act. The Full Bench, in that view of the matter, made a significant observattion as under:
'In our view if 'protection from eviction is claimable by the tenant even after determination of the contractual tenancy' then why import the cofitractual law engrafted in the Transfer of Property Act for seeking eviction of the tenant?'
21. The Full Bench thereafter rule,1 that the Constitution Bench in Mangilal v. Suganchand Rathi, : 5SCR239 . did not decide corectly when it held that a notice is essential for bringing to an end the relationship of landlord and tenant under the Madhya Pradesh Rent Act, 1955. The Full Bench thereafter dissented and distinguished its decision in Manujendra Dutt v. rurendu Prosid Rny Chowdhry. : 1SCR475 , which, was a case arising under the Calcutta Thika Tenancy Act, 1949 and observed that it is not ccrrect to say that S. 106 of the Transfer of Propert7 Act providing for the termination of lease either by the lessor or lessee by giving requisite notice is an extra protection against eviction. The Full Bench thereafter made the following impor-i tant observation in that context:
'The purpose of this provision Is merely to terminate the contract which the overriding Rent ~ic-ts
Tit to be terminated.'
22. The Full Bench thereafter referred to its decision in P. Venkateswara Rao v. Chidamana Vankata Ramana, (19.76) 3 SCR 551 where the Court was concerned with the question, whether notice to quit was necessary for seeking an order of eviction under the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1950. The Division Bench of the Andhra Pradesh High Court followed its earlier decisiori in Ullipamma v. S. Mohan Rao, (1969-1 APLJ 351) for taking the view that a notice under Section 106 of the Trans~ fer of Property Act was not necessary, The earlier decision of the Andhra Pradesh High Court in Ullipamma's case (supra) was approved by the Supreme Court not because there was a sp&cial; provision under the Andhra Pri--! desh Act but because Rfa tenant continuing in possession after the termination of the contractual tenancy and until an efriction order is passed again3t him continues on Ahe same terms and conditions as before and he cannot be evicted unless a ground is made out for his eviction according to the State Reat Act'. The rull Bench thereafter referred to its latest decision in Sardarilal Vishwanw'.1 V. Pritarn Singh : 1SCR111 where a Division Bench of the Supreme Court has taken the view that since the contractual tunancy was determined by efflux of time no notice for terminating it is required before initi-iting the eviction proceedings under the Rent Act. The Full Bench made a very pertinent observation in this behalf to suggest that there is practically no difference between a contractual tenancy and a statutory tenancy when one considers the question under the R-1t Control Acts. The said observation reads as under :
'If we were to agree with the view that determination of lease in accordance with the Transfer of Property Act is a condition, precedent to the starting of 'a proceeding under the State Rent Act for eviction of the tenant, we .could have- said so with respect that the view expressed in the above passage is quite correct because there was no question of determination of the lease again once it was determined by efflux of time. But on the first assumption we have taken a different view of the matter and have come to the conclusion that deternination of a lease in accordance with the Transfer of Property Act is unnecessAry and a mere surplusage because the landlord cann-A get eviction of the tenant' even after such determination, The -tenant continues to be so even thereafter.'
23. The passages which we have set out above pointedly indicate that under State Rent Control Acts the concept of contractual tenancy has lost much of its significance and force, and that the restricted area under the various State Rent Acts has done away to a large extent with the requirement of the law of contract and Transfer of Property Act. The sum total of these observLAtions is that having regard to the definition of word 'tenant' where a person continuing in occupation after deterrnination of contractual tenancy with or without the assent of the landlord, a person continuing in occupation accordingly is entitled to continue in occupation on the same terms and conditions as before till an order of eviction is made against him under the relevant provisions of a State Rent Act. In oar opinion, so far as the restricted area under the State Rent Acts is concerned, the distinction between a contractual tenancy and a statutory tenancy is done away with and the extent of the tenancy under the State Rent Control Acts would be the same irres~ective of tbe fact whether the contractual tenancy subsists or is terminated. If that is so, and we do not feel doubt in view of what we have extracted above from the Full Bench decision of the Supreme Court in Dhanpal's case (supra), there is some estate or interest in a tenancy under the Bombay Rent Control Act which will be heritable on the demise of the original tenant. If that is so, the conclusion is inescapable that all the heirs of an original deceased te.n ant would be entitled to succeed to that estate or interest which is protected by the Rent Act till the jural relationship of landlord and tenant is snapped by an order or decree of eviction made under the relevant provisions governing the question of eviction. We are of the opinion that the decision of the Division Bench of this Court in Nanumal's case (supra) would be required to be reconsidered in view of the above conclusion which we have reached having regard to the decision of the Full Bench of the Supreme Court in Dhan~ pal's case (supra). The entire approach of the Division Bench of this Court in Nanumal's case (supra) was conditioned as a result of the legal position then prevailing under the decision of the Supreme Court in Anand Nivas's case (supra). The decision of the Division Bench of this Court in Nanumal's case proceeded on the legal position which was then prevailing that the statutory tenancy was not ' heritable and, therefore, the Legislature had to step in to provide for the void that may arise in the field of the rights of the heirs to continue in possession after the demise of a statutory tenant. The Division Bench of this Court, therefore, observed that since the protection under the Rent Control Act cannot- be extendpd to all the heirs inheriting the leasehold rights irrespective of their need, the Legislature stepped in and provided a special mode of succession to the tenancy rights or to lease hold rights to those who were In need of it. by limiting it to the members of the tenant's family residing with him without deciding the rank inter se. The basis of the protection under Section 5(11)(c) of the Bombay Rent Act, according to the Division Bench of this Court. was, whether the person claiming right is dependent on the deceased statutory tenant and to such classes of persons the tenancy rights would devolve not in the strict sense of succession but in the sense of right to occupy and to possession on the obligation of paying rent and enjoy protection against eviction except on the grounds mentioned in the protective Acts. The special mode of devolution enacted In Section 5(11)(c) to the exclusion of general law of inheritance applies also in ease of contractual tenancy, Till qualified class of persons as envisaged in S~Iction 5 (11) (c) is available, any one iA them in the manner' provided therein would be entitled to transmission of tenancy and on his death any one of his family staying with him would be furtber entitled to transmitted tenancy in the same way. We are afraid that this exposition of law and the preniises thereof would not hold the field in view of the aforesaid decision of the Supreme Court in Damadilal's case read with that In Dhanpal's case. It theie does- not exist a well recognized distinction between a contractual tenancy and a statutory tenancy governed by the ' Rent Control Legislations, and if the difference is erased to such an extent that no apparent distinction is visible and that is the position indeed, in view of the two decWons of the Supreme Court the iew of Division Benchin- Normmal's case that there is -a special mode of succession under Section 5(11)(c) of the Bomb Rent Act be affirmed since the very premise of the decision of the Full Bench of the Supreme Court in Dhanpal's case is that the law of contract and transfer of property should not be incorporated in that restricted area where the Rent Acts operate particularly having regard to the definition of word 'tenant' in almost all the Rent Acts that a person continuing in occupation with or without the assent of landlord after determination of the contractual tenancy is for all Intents and purposes a tenant entitled to all the rights and subject to all the obligaVions under. the relevant Rent Act.
24. The next question which would, therfore, arise Is that if all the heirs of,a deceased tenant especially a statutory tenant, are entitled to inherit the tenancy rights, whether the provision contained in Section 5(11)(c) of the Bombay Rent Act providing for transmission of such rights only to the members of the family residing with the tenant, warrants the view. which we are inclined to take, that all the heirs of a deceased tenant would be entitled to inherit the tenancy rights since thi Division Bench of this Court tn Nanumal's case has ruled that on the recognized principle of. interpretation of statutes the said provision should be so construed that only one person is entitled to be nominated by agreement or declared by Court as tenant though the Division Bench did recognize and express its anxiety that this view was fraught with some dangers inasmuch as the quaMed members other than one nominated or declared as tenant would be at the mercy of the latter 2nd in a given case the rights inter se of such persons shall have to be decided. The Division Bench of this Court, in reaching this conclusion, referred to a decision of the Court . of Appeal in England in Dealex Properties Ltd. v, Brooks, (1966) 1 QB 5,42 where the Court of Appeal was concerned with a provision contained in Section 12(1)(g) of the Rent and Mortgage Interest (Restrictions) Act, 1920. The facts in that case were that the respondent Brooks was a statutory tenant when he died in 1947. His son and daughter continued to occupy the house sharing the expenses including that of rent. The rent book was in the name of the son from 1947 till 1963. The daughter had replied to the landlord's agent in 1961 that her brother had taken over the tenancy after their father's death. The landlord served the notice to quit on the daughter and claimed possession of the house on the demise of the son in 1963. The Court of, Appeal held that the proper Inference from the proved facts was that the tenancy rights of Brooks devolved on his son who became the tenant of the house and, therefore, there could be no further- devolution of the rights after his death. Section 12, was an interpretation section and not a definition provision. Sub-section (1) (9) interpreted the word 'tenant' as underl
'The expression 'tenant' includes the widow of a tenant 'dying_j!1testa~e' w - ho was residing with him at the time of his death or, where a tenant dying in testate leaves no such widow or is a woman, such member of the tenant's family so residing as aforesaid as kraY be decided in default of agreement bythe country court.' The words 'dYing intestate' in subsection (1) (g) were repealed by the Increase of Rent and Mortgage Interest (Restrictions) Act, 1935. The wof I 'such' was inserted in the said subsection by the Housing Repairs and Rents Act, 1944. A contention was urged before the Court of Appeal that the Court should construe the word Otmember' &c; 'members' as prescribed under the Interpretation Act, 1889 unless the statute evinced a contrary lan tention. Harman L. J. ruled out this contention and refused, to read singular as plural as it would lead to fearful consequences. He emphasised in support of his views that words 'dying . in testate' would indicate that it would be one person only. It is again only one person who can be widowed I and the member of the family who can in herit seems, therefore, to be only one person. Diplock L. J. dismissed the con tention that the words 'such member'' are to be read in plural and the status of irremovability cannot be acquired under S. 12(1)(g) succession by more than one member of the family since. any other construction would lead to absurd consequences. In our opinion,the application by the Division Bench in Nanumal's case of the construction placed by the Court of Appeal on ' the provision contained in Section 12(1)
(g) of the Increase of Rent and Mort gage Interest (Restrictions) Act, 1920 in Dealex Properties Ltd.*s case (supra) appears, with , respect to be on assumption that the provision of S. 5(11)(c) and Section 12(1)(g) are in pari materia. Section 5(11)(c) reads as under -,
'5. In this Act unless there Is anything repugnant to the subject or context-
(11) Iftenant' means ... and includes-
(c) (i) in relation to premises let for residence, any member of the tenant's famili 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
(ii) in relation to premises let for business, trade or storage, any member of the tenant's family carrying on business, trade or storage with the tenant in the said premises at the time of the death of the tenant as may continue, after his death. to carry on the business trade or storage, as the case may be, in the said premises and as may be decided in default of agreement by the Court.'
25. The Legislature has in its %Asdom thought fit to confer the status of a tenant, and consequently the right of irremovability on !!ny, member of the. family'of a deceased tenant. T6 word. tiany' is a word which excludes limitation or qualifleation and is as wide as, possible6 In Stroud's Judicial Dictionary, Fourth Edition, 1, at page 145 the following meanings givdn for word '4&ny; are illuminating:
'(1) x x X x X
(2) 'Any' is a word which excludet, limitation or qualification (per Fry J.,J. Duck v. Bates (1-883) 12 ~ QBD 79); 'as wide as possible' (per Chitty.J., Beckett V. Sutton (1882) 51- LJ Ch 433)
X X . x X (3) So, under a devise to three persons as tenants in common in tail, and in default of such issue 'of any of them', over; cross remainders were implied, and 'any', in effect read 'all' (Waston Eq. 1410, citing Powell v. Howells (1868) 3 QB 654 - see now 2 Jarm, 8th Ed. 669; see Holmes v. Meynell, (1681) T. -Raym. 452). But see also Re Fowles (1968) QWN where it was held that a bequest to 'any. hospital in Queensland... controlled by the Methodist Church!' could be lirnited*to any one or'more and need not be divided among every hospital 'so controlled.,
(4) x x x x x (5) But its generality may be'.restri6ed by the subject matter or the context. Thus 'any ACTION' (County Courts Act 1856 (c. 108). Section 36, meant any county court action (Re Copp (1881) 6 QBD 607). So, under Bankruptcy Rules 1870. Rule 295 'any CREDITOR' might oppose registration of resolutions; but that meant 'any creditor who had previously proved his debt' (Ex, p. Bagster (1883) 24 Ch, D 477; C. P. Wells v. Greenhill, (1822) 6 B. & Ald. 869); see now Bankruptcy Act 1914 (c. 59) Section 86 and Ex. P. Ditton (1879) 11 Ch D - 56. So 'Other person' (R. S. C. Order 42, iuie 327 now Order 48, Rule) meant by the cmtext, any officer of a Judgment-debtor corporation (Irwell I v. Eden (1887) 18 QBD 588~; and by a context 'any person might mean any eligible person (Tobacco Pipe Makers v. Woodrole (1825) 7 B. & C 835); see also Metropolitan Board,of Works v. London & North Western Railway (1880) 14 Ch D 521). So under Charities Producer Act 1812 (c. 1011 'any two or more persons' to present a petition meant persons having an interest (Re Bedford Charity 2 Swanst 518); see R. v. ComTvtroller General of Patents (1899) 1 QB 909).'
If the connotation of word 'anv' defles limitation or qualification unless its generality is restricted bf the subject matter or the context, its import would be as wide as possible and it is only the subject matter or the context which can impose limitation or qualification on the meaning of the said word. We are unable to find in the subject mat ter or the context in this part of the definition any qualification or limitation other than the prescribed period of residence with the deceased tenant of a residential premises or the require ment of the conduct. pf business etc. of the tenant so far as non-residential pre mises are concerned. We would, there fore, not be,justified in spelling out thV restrictive meaning of the word 'any' a I s has been done by the Division Bench in Nanumal's case (supra). If the import of word 'any' cannot be re stricted, the necessary consequence is that there can be more than one memer who can be nominated by the agreement amongst the qualifying members or appointed by Court in de fault of such agreement.
26. A subsidiary question also arises in this connection, whether the agreement envisaged in Section 5(11) , (c) (i) or (ii) is an agreement amongst the qualifying members only or is an agreement between such members and the landlord. The Division Bench of this Court in Nanumal's case ruled that the agreement can be oniy amongst the qualifying members, and the landlord has no voice in the matter. In Salter v. Lask (1925) 1 KB 584, the Court was concerned with similar words in Section 12(1)(g) of the Rent and Mortgage interest (Restrictions) Act, 1920, which. inter alia, provided that the expression 'tenant' would include such mpmber of the tenant's family residing with him/her at the time of his/her death as may be decided in default of the agreement by the county Court. Salter J. opined that this gives power to the members of the family of a deceased to decide amongst themselves as to who shall become the statutory tenant, and if they fail to agree, then th-re is a power in the county Cour to make a selection. It is axiomatic to say that this agreement may be express or implied. In Sudhakar Kishirlm v. Nagindas Atmaram (1972) 11 Guj LR 516 this Court has taken the view th4t the landlord has no right to choose a Trember of the tenant's family and accept 'rent from him and the decree of eviction obtained against such members is not binding on minors or other members. We are, therefore, of the opinion that the agreement contemplated under Section 5(11)(c) (i) and (ii) is an agreement amongst the qualifying members only and such nomination is independent of the landlord concerned or may be even against his wish. Since we are of the view that there is no restriction or qualification in Section 5(11)(c) (i) or (ii) so as to restrict the transmitted tenancy rights on death of a tenant to one member of his family residing with him or carrying on business with-him, as the case may be, a question would naturally arise as to what is the position of other members of the family of a deceased tenant residing or not residing with him at the time of his death but inheriting his tenancy rights. In Williams v. Williams (1970) 1 WLR 1530, one Mrs. Williams, who was a tenant of the flat in question died leaving behind her husband and son who were residing with her at the flat. Each of them claidied tenancy rights in the flat. The county Court Juage granted the declaration that the husband Robert Williams would be the statutory -tenant and the son Edward Williams should hand over the possession at a certain date. The son Edward Williams appealed on the ground thAt the trial Court was wrong in law in finding in favour of his father on the ground of hardships as a relevant factor in deciding who should be the tenant by . succession, , and in any case evidence on record was insufficient to decide that issue. Lord Denning M. R., while dismissing the a0eal, refused to interfere with the decfsion of the county CouTt and made a very significant observation as under:
'This valuable controlled tenancy ought to be held for the benefit of them both.'
The learned single judge of the Bombay High Court in an unreported decision in Minoo J. Patel v. J. b. Aga, Civil Revision Application, No. 1,556 of lq63 decided on 9-2-1966 held that' it would be extremely difficult to hold that by reason of the provision in S. 5(11)(c) the rights of the heirs of rl contractual tenant were sought to be extinguished, and , that in spite of the T,ro-,-Isions of Section 5(11)(C) it 'vrequired to be held that the rights of heirs of a deceased tenant must be preferred to the rights. of mere members of the tenant's family as referred, to in S. 5(11)(c). A question, therefore, arises that in view of the matter which we are taking, . following the decisions of the Supreme Court in Damadilal's case as well as Dhanpal's case (supra), that the recognized distinction so far existing between a contractual tenancy and a' statutory tenancy so-called -has almost reached the vanishing point and the incidents of both the tenancies are almost at par, whether it can be urged successfully that by reason of the provision of Section 5(11)(c) the rights ol the heirs inheriting tenancy rights on the demise of a tenant are extinguished, and the same would devolve on that limited qualified class of persons as prescribed therein. We are of the opinion that it would be difficult to hold that their rights are extinguished in spite of, the Provision contained in S. 5(11)(c). A number of complicated problems ~imay arise, if such 9 view is taken, as rightlY held by the learned single Judge of the Bombay High Court in Minoo J. Patel's case (supra). Having regard to the overall consideration, we are of the opinion that as held by Lord Denning M.R. in Williams' case (s,.4ra) that this.- valuable controlled tenancy rights ought to be held by any of the rnembers of the family of a deceased tenant. as may be nominated by ag~F ement between the members residing with him or, in default, as may ~3e determined by the Court, for The benefit of ail the heirs inheriting tenancy rights. It is no doubt true that for purposes of Rent Act only those members of the family of a tenant can be nominated by agreement or determined by Court as tenants who may be residing or carrying on business etc. with a d-ceased tenant. Such persons mav be st~ccessor tenants but they will hold the tenancy rights which have statutorily do-volved upon them for the benefit of all other members residing with the deceased tenant, and/or the heirs inh-riting tenancy rights. in our or)inion, a landlord, for purposes of the Bombay Rent Act has to look to such successor tenants only and not to other family members and/or heirs of a deceased tenant legally entitled to the tenancy riqhts under the preneral law. A further question is likely to arise . as to what procedure' should be followed if. there is a default of agreement amongst thL- qualified members as prescribed in, S. 5(11)(c) of the Bombay Rent Act. The' Division Bench of this Court, in , Nanumal's case (supra). has ruled that if such qualified members fail to agree* or communicate their agreed decision, it would bL- open to the landlord to ask them to suggest the name to whom he should transmit the tenancy. If they fail to communicate their decision within reasonable time, t)ie landlord has to move the Court for declaration as to who should be treated as a transmitted tenant. But before this decision is made by the Court, no further action can be taken by the landlord and any action before taking* proper proceedings as contemplated by S. 5(11)(c) would be premature and must fail, and unless the Court determines as to who is a transmitted tenant, no liability to pay rent would arise and. consequently, therefore, a tatutory notice as contemplated under S. 12, which is a condition precedent to initiate the Vvictioh proceedings on the ground of .arrears of rent, can be served since it is. the primary duty of the landlord to get this question of transmission of tenancy determined one way or the other. 'We Eire afraid that there is no warrant for the above view which Ahe Division Bench of this Court in Nanumal's case has taken. The support, which the Division Bench in Nanumal's case has found for its view for the requirement of a statutory notice under S. 12 as a condition precedent to the initiation of eviction' proceedings, is, with- respect, not well founded. The obligation, of ',,determination of the question of suc-. ~cessor tenant is not only on the landlord. It may be, i a given case, on a person . claiming the' tenancy rights as successor under S. 5(11)(c). We apPreciate that if the question of successor tenant arises and is determined before the initiation of the eviction suit or any other proceedings, it would be, in the interest of a landlord or a tenant,- as the case may be, since this decision at a late stage in a proceeding or suit under the Rent Act may require, in a given case, to support the proceedings afresh if the plaintiff or the appli7ant is ultimately held to be not a succes-or tenant. However, this is not tantamount to saying that no proceed lap can be Initiated without determinatim of the question of successor tenant, in the first instance, and 'all such -proceedings initiated without that question being determined, would be premature. We do not find either in the Bombay Rent Act or the Rules framed thereunder any provision, which would oblige a.landlord or a tenant to get the question of successor tenant determined before initiating suit or proceeding under the Bombay Rent Act. in Taylor v. Willoughby (1953) 2 All 'ER 642, the Court of Appeal was conterned with such a situation. The facts in that case were that* at tbe time of thq death of a statutory tenant of a dwelling house within the Rent Restrictions Acts his son and his step-daughter were residing with him. No agreement could be reached between them as to who was entitled to succeed to the tenancy of the house under S. 12(1)(g) of the Increase of Rent and Mortgage Interest (Restrictions~ Act, 1920. The, landlord having given, a rent book to the - step daughter and accepted rent from her, she commenced ejectment proceedings against the son on the ground that he was a trespasser. The county Court Judge regarded himself as bound by the provisions of the Increase of Rent and Mortgage Interest (Restrictions) Rules, 3920, and dismissed the action and 'irected the parties. to apply for the determination of their dispute under Rule 19. The Court of Appeal held that' the Judge was not bound by the -tules to dismi~s the action, and it woul I have been better if the action had been allowed to stand. over to give the parties an orportunity of applying under the relevant rule with liberty to both the parties to apply to restore the action, If no application was made by any of the parties. Sir Raymond Evershed M. R. in his opinion observed as under:...... On the' whole% therefore, it sepins to me that what was in the Judge's mind can be better- achieved, anti should have been achieved. not by a dismissal of the action. but by stanitnel it over to give either party an op~-pnrtunity of making an application under the rules I contemplate that the proceedings will then the treated as standing over and either party will be at liberty to anply under the rules, or in thig action to amend - the pleadings, or for; any other purpose that they like. But, to make it clear, I think that eacli of the parties should be given express liberty to apply to restore the action, so that, if neither Party makes a move under the rules of 1920, either of them may apply to restore ............
...... I suggest that the order be dis-charged and this action be treated as standing over. If neither party takes the necessary steps under the rules the matter can come before the Judge, and he may require as a term of any fur ther adjournment an undertaking from one or other that he or she will 'proceed under the rules. These are matters, however, which, I think, should be left to the learned Judge.'
The other two Judges Birkett L.J. and Romer L. J. agreed with the course suggested. We are, therefore, of the opinion that if in a suit or a proceeding under the Rent Act, a question arises as to who is the successor tenant under Section 5(11)(c), the Court concerned should stay the suit or the pi~oceeding, as the case may be, and direct the parties to get the question as to who is the successor tenant deterzmined by appropriate proceedings. If both the parties before the Court agree that that question may be determined in the suit or the proceeding itself, the Court can equally decide that question, This course may expose a landlord or a tenant in a given case to support the proceedings afresh if the Court determines that the successor tenant is a person other than the party to that suit or proceeding, because of the want of proper statutory notice. the course rules by th Division Bench of this Court in NZIumal's case (supra) in so far as it went in holding that no action can be taken till the question as to who is the successor tenant is determined and all the proceedings before such a determination are premature and must, therefore, fail, would lead to fearful and most inconvenient consequences where not 'only the landlord will not be able to initiate the proceedings but a member of the family of the deceased tenant can continue in occupation without paying the rent. It will also subject a successor tenant legally entitle to remain in occupation to the liability of payment of c-n+ractual rent which may be more than the standard rent if ihere is no agreement in a given case between the qualified persons residing with the deceased tenant because no proceedings- can be initiated without deterniination of the questionof successor tenant. In our opinion, the course prescribed by the Division Bench in Nanumars case is not only unwarranted under the Act and the Rules but would be detrimental to the interest of the causes of the landlords as well as tenants. In that view of the matter, therefore, the view of the Division Bench of ~ this Court in Nanumal's case that all the ~ proceedings under the Rent Act would be premature till the question about who is the . rightful buccessor tenant is determined by the appropriate proceedings is not correct, and the course of action which we have set out above commends itself' to us as appropriate and legal course which Courts should adopt when. a question as to who Is *a rightful successor tenant arises before them in the piroceedinp under the Rent Act.
27. There are two subsidiary questions which no~v remain to be considered, viz. if there can be more than one successor tenant~, either by agreement or by decision of the Court, what is the nature of s~ch tenancy - hether it is joint tenancy or tenancy in common and whether or not the tenancy right cart be transmitted. on more than one occasion. So far as the nature of tenancy is concerned, we are inclined, having, regard to the object and purpose of the Bombay Rent Act and also on principle and authority, to prefer the view that if therb are more than orre successor tenant. either by agreement or by decision of the Court, they hold the tenancy rights as tenants in common rather than as joint tenants.It is axiomatic to say that, a joint tenancy connotes, unity of title, interest and possession and commencement of tltle~ while the tenancy in common, on the other hand, implies only the unity of possession and unity of commence Iment of title, without any unity of 1title or Interest It is no doubt truo that the rule of EngTish law is to pre sume that a transfer to more than one pefson creates a joint tenancy with a right of survivorship unless t ' here are words of severance. Howerer, this principle of Joint tenancy is unknown to India barring under Hindu Law in case of coparcenary between members of undivided Hindu farmly (vide: Joge shwar Narain v. Ram Chund. I Dutt (1896) 23 Ind App 37 (PC). This position in law is affirmed by the Suiprerne Court in Venkatakrishna v. Satyavathi : 66ITR473(SC) . It is also an accepted position in law that -even if, the transferees are members of a coparcenary, they will take as tenants in common unless a contrary intention appears from the instrument of transfer or the grant (vide: Bai Diwali v. Patel Bechardas (1902) ILR ~6 Bom. 445. In Mahomed Jusab Abdulla v.'Fatinabai Ju.sab Abdulla AIR 1948 Bom. 53, Chagla, J. held. that in India the Court must strongly lean against holding any particular bequest or grant as a joint bequest or a joint grant, and the presumption must always be in favour-Qf a tenancy-in-common rather Ahan a joint tenancy. The Court can always come to a different conclusion 'if that presumption, is displaced ~ by clear and cogent material to the contrary. We . arp, therefore, of the opfiiion that in a case of more. than one successor tenant either by agreement or by decision of the Court the nature of tenancy would,bp tenancy-in-common unless contrary 'intention appears to displace that presumption by ciear and cogent evidence.1
28. That takes us to the second subisidiary question, whether there can be successor totenancy rightson morethan one occasion, There Is a decision of this Court in Kunjiben V. Mohanlai (1974) 15 Guj 14R 107 where- D. P. Desai, J. has observed that there are no restrictive words in Section 5(11)(c)(1) to suggest that the pro .tection afforded under the said sub-section to the members of, a family residing, with the diceased tenant is only on one occasion or that there cannot be further succession to the tenancy rights, The Division Bench in Nanumalls case (supra) also. was of. the view that there is nothing in Section 5(11)(c)(1) to cut down transmission of tenancy on one occasion only -and that once the' person who, acquires ftansmissim of tenancy, M his death again the -question would be to whom the -tenancy 'would be transmitted under S. 5(11)(c)(1), because a person who continues in pw session by transmission of tenancy would be a statutory tenant and on his death the question of succession to his rights would arise. We are inclined to' agree with this view of the Dividoni Bench In Nanurhal's case particularly because the distinction between a conractual tenancy and a statutory tenancy has disappeared in view of the decision of the seven Judges' Bench of the 'Supreme Court in Dhanpal's case (supra). If a person continuing in possession with or without the assent of the landlord after the determination of the -tenancy is a tenant for all intents and purposes his tenancy rights would be arY estate which would be heritabl@ by his heirs and, therefore, the submission that there can be succession only once to the rights of such a tenant whose tenancy has been determinated, does not commend to us and we resL)ectfu'lly agree with this view of the Division -Bench of this Court in Nanumal's case.
29. In that view of the matter.therefore, we reframe the questions referred to us as under:
(1) Whether the decision of the Divi:sion Bench in Nanumal Rajumal v. Lilaram Vensimal : (1977)18GLR858 is a good law in view of the decision of the Supreme Court in Damadilal v. Parashrarn : AIR1976SC2229 and alsp in view of the decision in V. Dhanpal Chettier v. Yasodai Animal (1979) 2 Ren CJ 358 ?
(2) If a statutory tenant has also an estate and the statutory tenancy is heritable and transferable, would it require to be determined by a notice under Section 106 of the Transfer of Property Act?
30. Our answers to these two questions are as under:
(1) The decision of the Division Bench In . Nanumal's case is no longer a good law in view of the aforesaid fw'd decisions of the Supreme ' Court.
(2) No notice is required under Section 106 of the Transfer of Property Act to determine the staLutory tenancy in view of the decision of the Supreme Court in Dhanpal's case (supra).
31. The matter will~ therefore, go back to the learned single Judge for disposal of the revision application in view of our opinion in this reference. The costs will be costs in the cause.
32. Answered accordingly.