S.H. Sheth, J.
1. The plaintiff filed the present suit against the defendant under the Bombay Rent Act for recovering possession of the suit premises on four grounds. The defendant had been in arrears of rent. The plaintiff required the suit premises reasonably and bona fide for her own occupation. The suit premises were not used by the defendant for more than six months prior to the institution of the suit without any reasonable cause for the purpose for which they were let. The defendant had acquired suitable accommodation for her residence. The defendant denied the plaintiff's claim. Before the learned trial Judge, ground of arrears of rent was not pressed. The learned trial Judge, on merits, negatived three other grounds and dismissed the plaintiff's suit.
2. The plaintiff appealed against the decree to the appellate Court. Before the appellate Court, the plaintiff pressed two grounds and sought decree for possession against the defendant. The ground relating to non-user of the suit premises available to the plaintiff under Section 13(1)(k) of the Bombay Rent Act was canvassed by the plaintiff but was negatived by the appellate Court. He also pressed for obtaining decree for possession the ground of the defendant having acquired suitable accommodation within the meaning of Section 13(1)(L) of the Bombay Rent Act. The appellate Court upheld this ground and passed in favour of the plaintiff decree for possession.
3. It is that decree which is challenged by the defendant in this civil revision application.
4. Mr. R.N. Shah who appears on behalf of the defendant has challenged the finding recorded by the appellate Court against the defendant. He has also pressed into service the contention that the appeal had abated. In order to appreciate the contention which Mr. Shah has raised, it is necessary to note a few facts about which there is no dispute. Kamlaben was the original tenant. The suit was filed against her. The appeal before the lower appellate Court was filed against her. During the pendency of the appeal, Kamlaben died on 29th October 1972. Her husband Ratilal and son Jaswantlal were brought on the record as her heirs and legal representatives. Later on, her husband died on 2nd December 1975 and Jaswantlal who was on record as the heir of Kamlaben was described as the heir of Ratilal. Therefore, the appeal proceeded against Jaswantlal alone. It was contended on behalf of the defendant that there were other persons upon whom tenancy rights had devolved and that since they were not brought on record, the appeal had abated. According to Mr. Shah, therefore, no decree for possession could have been passed against the defendant.
5. It is not in dispute that Kamlaben died and was survived by Ratilal, who subsequently died, and her son Jaswantlal and widow and three minor sons of Kamlaben's pre-deceased son. This widow and three minor grandchildren of Kamlaben were not brought on record when Kamlaben died. They were also not brought on record when Ratilal died.
6. In the context of these facts, I am required to find out on whom the tenancy rights devolved upon the death of Kamlaben. Section 5(11)(c)(i) of the Bombay Rent Act provides as follows:
'tenant' means any person by whom or on whose account rent is payable for any premises and includes...in relation to premises let for residence, any member of the tenant's family residing with the tenant at the time of, or within three months immediately preceding, the death of the tenant as may be decided in default of agreement by the Court....
The 'devolution of interest of tenant in leasehold premises let for residence is, therefore, governed by the criterion of who was residing with the tenant at the timi of his death or within three months immediately preceding his death.
7. Mr. Nanavaty who appears on behalf of the plaintiff has argued that no one was residing in the suit premises when Kamalaben and Ratilal died. According to him, tenancy rights devolved upon that person who was residing with the deceased tenant in the suit premises at the time of his death or within three months immediately preceding his death. I do not find in this section anything to show that residence with the tenant in the suit premises at the time of the death of the tenant is the requirement to be satisfied in order to be eligible for devolution of interest in the suit premises.
8. Mr. Nanavaty has argued that the expression 'in relation to premises let for residence' necessarily implies 'residence' with the deceased tenant in the suit premises. I am unable to uphold that argument. The expression 'in relation to premises let for residence' merely shows that Sub-clause (1) of Clause (c) is applicable to residential premises and does not go to the extent of saying that the person who claims interest in the suit premises upon the death of the original tenant must be residing with the tenant in the suit premises. The tenant may be residing any wherein the suit premises or elsewhere. In respect of the suit premises, devolution of interest can be claimed by that person who had been residing with the tenant at the time of his death or within three months immediately preceding his death irrespective of where the tenant had been residing. Therefore, if the deceased tenant and the person who claims devolutionary interest under Section 5(11)(c)(i) had not been residing in the suit premises but were redding together elsewhere, it does not come in the way of the person claiming devolutionary interest to make good his claim. In such a case, possession can be sought, not under any other provision of law, but under Section 13(1)(k), that is to say, on the ground that the tenant or his successor-in-interest had not been using the premises without any reasonable cause for a period of six months immediately prior to the institution of the suit for the purpose for which they were let.
9. Mr. Nanavaty has further argued that at the lime of her death, Kamlaben had not been residing in the suit premises but had been residing with her son Jaswantlal in some other premises which he was occupying Shahibang house - and the widow and her three minor children had been residing there, not with Kamlaben but, with Jaswantlal because Kamlaben herself was dependent of Jaswantlal there. So far as Ratilal is concerned, Mr. Nanavaty has argued that at the time of his death, he was residing with his son Jaswantlal in Aparna Society as his dependent and that, therefore, the widow and her three minor children could not be said to be residing with Ratilal but could be said to have been residing only with Jaswintlil. According to him, therefore, no devolutionary interest accrued to the widow and her three minor children in respect of the suit premises. The test which Mr. Nanavaty has asked me to apply is not, in my opinion, a correct test. The test to determine the devolution of interest in leasehold premises as contemplated by Section 5(11)(c)(i) is the residence anywhere of the person claiming such interest with the deceased tenant at the time of his death or within the period specified in that section and not necessarily in the suit premises. If the deceased tenant had been residing with someone else at some other place, person residing with him continues to be his dependent and does not become the dependent of someone else.
10. In that view of the matter, upon the death of Kamlaben, tenancy rights devolved, not only upon Ratilal and Jaswantlal, but also upon the widow of Kamlaben's pre-deceased son and three minor children of that widow. They were not joined as parties to the appeal after the death of Kamlaben or after the death of Ratilal. It may be stated that the heirs and legal representatives of Kamlaben and Ratilal, in the facts and circumstances of this case, are the same under Section 5(11)(c)(i) of the Bombay Rent Act. Decree for possession, therefore, could not have been sought by the plaintiff against Jaswaatlal alona. To pass such a decree is to pass an ineffective decree. It could not have been passed. Suit could have proceeded against all heirs and legal representatives of Kamalaben and subsequently of Ratilal. It could not have proceeded against one of the parsons upon whom the interest in the suit premises had devolved. In my opinion, therefore, the Appellate Bench was in error in holding that appeal could proceed against Jaswantlal alone. The appeal, in my opinion, could v not have proceeded in absence of the widow of Kamalaben's predeceased (sic) son and her three minor children. Therefore, the appeal had abated. No decree for possession under the circumstances could have been passed.
In the result, the civil revision application is allowed. Decree for possession is set aside and the appeal decided by the lower appellate Court is dismissed as having abated Rule is made absolute with no order as to costs.