(1.)The appellants had leave under Article 136 to appeal against the judgment and decree of the High court of Rajasthan at Jaipur bench in Second Appeal No. 240 of 1978 dated 5/07/1985 reversing the decrees of the courts beigsy and decreeing the suit for ejectment of the appellants from the demised shop in Jaipur. The facts lie in a short compass: that Smt Anandi, wife of appellant 1 and the mother of appellant 2, Nand Kishore had lease of the demised premises for II months from 1/05/1964 on payment of monthly rent of Rs. 18. 00 which expired on 31/03/1965. The respondent landlord terminated the lease by a notice under S. 106 of Transfer of Property Act but she remained in possession and enjoyment of the shop carrying on small kirana business. She died in September 1966. The demised premises are governed by the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (Act 26 of 1950 for short the 'act'). S. 13 (1 thereof, postulates that "notwithstanding anything contained in any law or a contract, no court shall pass any decree or make any order in favour of the landlord, whether in execution of a decree or otherwise evicting the tenant so long as he is ready and willing to pay rent thereof to the full extent allowable by the Act" unless the landlord proves to the satisfaction of the court any one of the grounds enumerated in clauses (a) to (k) thereof. The action for ejectment was initiated by the respondent on the premise that on the death of the tenant, the appellants have no right to continue in occupation of the demised premises. The findings recorded by all the courts are that Smt Anandi was the tenant. The appellants during her lifetime, had not carried on the business with her till date of her death. The trial court dismissed the suit on the ground that Smt Anandi paid and the respondent accepted the rent after determination of the lease. So she was a tenant holding over. During the pendency, of the appeal, the Act was amended through Rajasthan Premises (Control of Rent and Eviction) Ordinance 26 of 1975 which was replaced by Act 14 of 1976 (for short the 'amendment Act'). Therein the definition of Tenant was amended by S. 3 (ii) of the Amendment Act introducing to S. 3 clause (vii) , thus:
"3.(W) "tenant" means -
(A) the person by whom or on whose account or behalf rent is, or, but for a contract express or implied, would be payable for any premises to his landlord including the person who is continuing in its possession after the termination of his tenancy otherwise than by a decree for eviction passed under the provisions of this Act; and
(B) in the event of death of the person as is referred to in sub clause (a) , his surviving spouse, son, daughter and other heir in accordance with the personal law applicable to him who had been, in the case of premises leased out for residential purposes, ordinarily residing and in the case of premises leased out for commercial or business purposes, ordinarily carrying on business with him in such premises as member of his family up to his death. "
(2.)Consequently, the appellants amended the written statement adding therein paragraphs 16 and 17 contending that they have been jointly carrying on the business in the demised premises along with Smt Anandi and, therefore, they are entitled to the continuance of the tenancy. The amendment was allowed by the appellate court and it called for a finding from the trial court in that regard. After giving an opportunity to both the parties to adduce evidence afresh the court recorded the finding in the negative. On its receipt and consideration thereof the appellate court affirmed the Finding but confirmed the decree of the trial court on other grounds. The High court held that as the appellants had not carried on the business with the tenant during her lifetime as family business they were not entitled the benefit of the amended definition of the tenant. Accordingly decreed the suit.
(3.)The contention of the learned counsel for the appellants is that the leasehold right is an heritable estate and on death of the tenant in September 1966, the succession thereto was opened and the appellants, being Class I heirs under the Hindu Succession Act, 1956 inherited by intestate succession the leasehold estate in the tenancy rights held by Smt Anandi. The said right received express recognition under the Amendment Act which is not in derogation to the personal law. The High court, thereby, committed manifest error of law. Shri Dalveer Bhandari, learned counsel for the respondent, on thorough preparation of the case, has vehemently resisted the contention. He also circulated written arguments. According to him preceding the Amendment Act the commercial or business tenancy was not heritable as held in J. C. Chaterjee v. Sri Kishan 1 by the High courts of Rajasthan, Punjab and Haryanaand Delhi. For the first time the right to succession has been created under the Amendment Act. The finding recorded by all the courts is that during the lifetime and till the date of death of the tenant, Smt Anandi, the appellants did not carry on business with her as family business in the demised premises. On determination of tenancy the appellants became trespassers. Thereby the appellants became disentitled to remain in possession of the demised premises. It is seen that S. 13 (1 of the Act engrafts non obstante clause, namely "notwithstanding any thing contained in any law or contract, no court shall pass any decree of eviction against the tenant so long as the tenant is ready and willing to pay rent therefor to the full extent allowable by the Act" unless one or other ground or grounds specified in clauses (a) to (k) of Ss. (1 of S. 13 are established. Admittedly, the settled legal position preceding the Amendment Act, prevailing in the State of Rajasthan was that the leasehold rights of the tenanted premises for commercial or business purposes governed by the Act is not heritable. It is a personal right to the tenant. A reading of the amendment to the definition of 'tenant in Section 3 sub-clause (vii) (b) makes the legislative intent manifest that from the date the Amendment Act came into force, on the death of the tenant, his surviving spouse, son, daughter and other heir, in accordance with personal law as applicable to him, who had been, in the case of the premises leased out of residential purposes, ordinarily residing and, in the case of premises leased out for commercial or business purposes, ordinarily had been carrying on business with him/her in such premises as members of his/her family up to his/her death would be the tenant. Therefore, under the amended definition of tenant, if one seeks to make avail of the benefit of statutory tenancy under the Act, he must establish to the satisfaction of the court that the surviving spouse, son or daughter and other heir, in case of residential premises, he/she/they ordinarily had been residing in the premises alongwith the tenant and continued to do so till date of death of the tenant. Similarly, in respect of premises leased out for commercial or business purposes it must be established that the surviving spouse or son or daughter and the heir as the case may be ordinarily had been carrying on the business during the lifetime of the tenant as members of the family in the demised premises and continued to do the business till date of the death of the tenant. In other words to avail of the statutory right under S. 3 (vii) (b) there must continue to subsist the unity of action and continuity of membership of the family between the deceased tenant and the spouse etc. The break in either of the links snaps off the right denuding the continuity of the statutory tenancy.