S. C. AGRAWAL, J. - (1.) THIS second appeal arising out of a suit for eviction was filed by the defendant Chandra Bhan Jain against whom a decree for eviction has been passed on the ground of sub-letting and parting with possesion of the premises under clause (e) of Sub-section (1) of Section 13 of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (hereinafter referred to as the Act' ).
(2.) DURING the pendency of this appeal, the appellant, Chandra Bhan Jain, died on 3rd September, 1986. On 28th November, 1986 an application was submitted under Order 22 Rules 3&4 C. P. C. for substitution of the regal representatives of the deceased appellant. The said application was submitted by the widow and the three daughters and two sons of the deceased appellant and his two brothers. The said application was allowed by order dated 12th March. 1987 and the legal representatives as mentioned in the application have been brought on record as appellants. The respondent raised an objection with regard to the maintainability of this appeal after the death of the appellant Chandra Bhan Jain in the application dated 26th July, 1986 submitted by him regarding early hearing of appeal and has submitted that the appeal relates to commercial premises which were not in the occupation of the legal representatives of the deceased appellant, Chandra Bhan Jain and that at the time of the death of appellant Chandra Bhan Jain, the premises were not in possession of Chandra Bhan and the Chandra Bhan and his family members have been living at Jaipur at C-20 Chandra Nagar, Jaipur and that none of the legal representatives of deceased Chandra Bhan Jain was at the time of the death of deceased Chandra Bhan carrying on business in the disputed premises. An application dated 23rd January, 1989, has been submitted on behalf of the appellants under Section 151 C. P. C. wherein it has been asserted that deceased Chandra Bhan was a member of the joint Hindu family consisting of his father and brothers and that the said joint family was having a number of firms which were being run and managed by the joint Hindu family. It has also been stated that before his death Chandra Bhan Jain was feeling some physical troubles and as such his son Sunil Kumar Jain had left his regular studies in the year 1986 and had been looking after the business of his father and had been looking after the firms including M/s. Jain Electric Store and he had been living at Alwar and at Jaipur and was giving substantial help to the firms of his father and was looking after the business of his father during his life time. In the said application it has also been submitted that since Sunil Kumar Jain had been looking the business of his father during his life time he became a 'tenant' within the meaning of the said terms as defined in Section 3 (vii) of the Act. The said application has been opposed by the respondent who has filed a reply wherein it has been stated that the legal representatives of deceased Chandra Bhan who have been brought on record in this appeal are not tenants under Section 3 (vii) of the Act because none of the said legal representatives had been carrying on business in the disputed premises with deceased as his family member upto his death. In the said reply it has been stated that as a matter of fact there exists no joint family as stated in the application of the appellants and that it was not correct to say that the members of the joint family as a whole before! the death of Chandra Bhan were also looking after and ordinarily carrying on the business with him in the premises in question. It has also been stated in the said reply that the sole appellant, Chandra Bhan, prior to his death at Jaipur had not been living in Alwar much less carrying on his business in the disputed premises and, therefore, the question of Sunil Kumar looking after the business of deceased Chandra Bhan at Alwar did not aries. In this connection, the respondent has referred to the averments contained in para 7 of the written statement filed by Prabhati Lal, the father of deceased appellant, Chandra Bhan in the suit for eviction relating to the premises situated below the disputed premises that has been filed by the respondent against him, wherein Prabhati Lal has stated that Sunil Kumar, son of Chandra Bhan, is carrying on business as Contractor at Jaipur and further that Chandra Bhan had been living separately and was carrying on his business separately for the last 15 years and had been staying at Jaipur. . I have heard Shri P. C. Jain, the learned counsel for the appellant and Shri R. M. Lodha, the learned counsel for the respondent. Earlier there was some conflict in the decisions of the Supreme Court on the question as to whether the interest of a statutory tenant, being the tenant v-ho continues in possession of the premises, after the termination of the contractual tenancy by virtue of the protection conferred by statute giving protection to the tenants is heritable. The said question has now been settled by the decision in Smt Gian Devi Anand vs. Jeevan Kumar (I) in that case, the Supreme Court has laid down as under:- "if the. Rent Act in question defines a tenant in substance to mean a tenant who continues to remain in possession even after the termination of the contractual tenancy till a decree for eviction against him is passed', the tenant even after the determination of the tenancy continues to have an estate or interest in the tenanted premises and the tenancy rights both in respect of residential premises and commercial premises are heritable. The heirs of the deceased tenant in the absence of any provision in the Rent Act to the contrary will step into the position of the deceased tenant and all the rights and obligations of the deceased tenant including the protection afforded to the deceased tenant under the Act will devolve on the heirs of the deceased tenant As the protection afforded by the Rent Act to a tenant after determination of the tenancy and to his heirs on the death of such tenant is a creation of the Act for the benefit of the tenants, it is open to the Legislature which provides for such protection to make appropriate provisions in the Act with regard to the nature and extent of the benefit and protection to he enjoyed and the manner in which the same is to be enjoyed. If the Legislature makes any provision in the Act limiting or restricting the benefit and the nature of the protection to be enjoyed in specified manner by any' particular class of heirs of the deceased tenant on any condition laid down being fulfilled, the benefit of the protection has necessarily to be enjoyed on. the fulfilment of the condition in the, manner and to the extent stipulated in the Act The Legislature which by the Rent Act seeks to confer the benefit on she tenants and to afford protection against eviction is perfectly competent to, make appropriate provision regulating the nature of protection and the manner and extent of enjoyment of such tenancy rights after the termination of contractual tenancy of the tenant including the rights and the nature of protection of the heirs on the death of the tenant Such appropriate provision may be made by the Legislature both with regard to the residential tenancy and Commercial tenancy It is, however, entirely for the Legislature to decide whether the Legislature will make such provision or not. In the absence of any provision regulating the right of inheritance, and the manner and extent thereof and in the absence of any condition being stipulated with regard to the devolution of tenancy rights on the heirs on the death of the tenant, the devolution of tenancy rights must necessarily be in accordance with the ordinary law of succession. "
(3.) IN view of the aforesaid decision of the Supreme Court it is necessary to examine as to whether the Act confers any protection to the heirs of the tenant after his death. Section 3 (vii) of the Act defines the expression "tenant" to mean as under :- "3 (vii)', Tenant" means - - (a) the person by whom or on whose account or behalf rent is, or but for a contract express or implied should be payable fur any premises to his landlord including the person who is continuing in its possession after the termination of his tenancy otherwise than a decree for eviction passed under the provision 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, daughters 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 a member of his family upto his death. " Clause (b) of the said definition deals with a situation where the original tenant dies and it makes a provision that if the premises are let out for residential purposes the surviving spouse, son, daughter and other heir of the deceased tenant in accordance with personal law applicable to him who was ordinarily residing in the said prenmises is to be treated as a tenant. In respect of premises let out for business or commercial purposes it is provided that the surviving spouse, son, daughter or other heir of the deceased tenant in accordance with the personal law applicable to him who was ordinarily carrying on business with him in such premises as a,member of his family upto his death is to be treated as the tenant. In the present case, we are concerned with premises which were leased out for commercial and business purpose It has, therefore/to be ascertained as to whether the surviving spouse son, daughter, or other heirs of deceased Chandra Bhan in accordance with personal law applicable to him had been ordinarily carrying on business within the suit premises as member of his family upto his death. At this stage it may be mentioned that one of the questions which arose for consideration before the courts below was as to whether, the defendant Chandra Bhan had. sublet or parted with possession of the suit premises in favour of Shikhar Chand. The first Appellate Court, namely, the Addl. District Judge No. 2, Alwar after taking into consideration the evidence on record has recorded a finding that Chandra Bhan was not using the suit premises and Shikhar Chand was using the same. The appellant cannot be permitted to assail the said finding of fact recorded by the Addl. District Judge. ;