M.C. JAIN, Actg. C.J. - (1.) THE question which has been referred for consideration by the learned Single Judge is as to whether after the death of the tenant his widow and children are entitled to retain the premises for the purpose of carrying on the business which is being carried on by the tenant in the said premises? This question involves the interpretation of the definition of the expression "tenant" as contained in Section 3 (vii) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as 'the Act').
(2.) THE facts, in brief, are that Ram Swaroop had taken a shop on rent at Rs. 16/-per month from Smt. Naroti Bai, respondent herein. THE respondent filed a suit for eviction against Ram Swaroop on the ground of default in payment of rent and bonafide and reasonable personal necessity of premises for the use or occupation of the husband and son of the respondent. THE said suit was decreed by the Additional Munsiff, Ajmer by his judgment and decree dated 16.12.1981. Ram Swaroop filed an appeal against the said judgment and decree of the Munsiff in the Court of District Judge, Ajmer and the said appeal was transferred for disposal to the Additional District Judge, No. 1, Ajmer. During the pendency of the appeal Ram Swaroop died and his legal heirs, namely, his wife-Smt. Ramjeevani, his adopted son Radhey Shyam Pandit and Yogesh Pandit, the son of Radhey Shyam Pandit, filed an application under Order 22 Rule 3 C.P.C. for being brought on the record in the place of deceased appellant Ram Swaroop. THE said application was opposed by the plaintiff-respondent on the ground that the applications did not fall within the ambit of the definition of 'tenant' as contained in Sec. (3) (vii) of the Act. THE Additional District Judge by his order dated 13.12.1988, dismissed the said application for the reason that the applicants could not be regarded as tenants under section 3 (viii) of the Act and they could not invoke the protection of the provisions of the Act. THE Additional District Judge, therefore, held that the appeal had abated. Feeling aggrived by the said order dated 13.12.1988 passed by the Addl. District Judge legal representatives of Ram Swaroop have filed this revision in this Court. THE said revision was heard by a learned Single Judge, who by his order dated 23.08.1989, has referred the following question for consideration by the Full Bench : "(1) Whether after the death of the tenant, his widow and children have right to survive by continuing the business which has been conducted by the husband/father ? (2) Whether the meaning assigned by this Court to the definition of 'tenant' should be adopted in the future also?" THE learned Single Judge felt that these questions arise for consideration in a number of cases pending in this Court as well as in the subordinate courts and would also arise in future and, therefore, be felt that the same may be considered by a Full Bench of this Court. We have heard Shri B.P. Agrawal, the learned counsel for the petitioner and Shri R.M. Lodha, the learned counsel for the respondent. Before we deal with the submissions urged by the learned counsel, we may take note of the background in which the definition of the expression 'tenant' as contained in Section 3 (vii) of the Act came to be enacted. In the original enactment the expression 'tenant' was defined in section 3 (vii) in the following terms: "3 (vii) "tenant" means the person by whom the 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. By section 2 (6) of the Rajasthan Premises (Control of Rent and Eviction (Amendment) Act, 1952 the following words were added in the said definition or any person continuing in possession after the termination of a tenancy in his favour otherwise than under the provisions of the Act." In Anand Nivas Private Ltd. Vs. Anaddji Kalyanji's Pedhi (1) the Supreme Court while, dealing with the provisions of Bombay Rents, Hotels & Lodging Houses Rates Control Act 1947,dealt with the question whether a person who remains in occupation of the premises let to him after the determination of or expiry of the period of tenancy commonly, though in law not accurately, called a statutory tenant has any estate or interest in the premises occupied by him. The Supreme Court held that such a person is not a tenant at all and he has no estate or interest in the premises occupied by him. he has merely the protection of the statute in that he cannot be turned out so long as he pays the standard rent and permitted increases, if any, and performs the other conditions of the tenancy. His right to remain in possession after the determination of the contractual tenancy is personal and it is not capable of being transferred or assigned and it devolves on his death only in the manner provided by the statute.
(3.) IN J.C. Chatterjee Vs. Shri Sri Kishan Tandon (2), the Supreme court while dealing with the provisions of the Act, considered the definition of expression "tenant" as contained in Section 3 (vii) of the Act. IN that case the landlord filed the suit against the tenant, B N. Chatterji for eviction on the ground of bonafide personal necessity. The said suit was decreed by the trial court, but on appeal, it was dismissed by the District Judge. During the pendency of the Second Appeal of the plaintiff in this Court the tenant died and his widow and children were brought on record as legal representatives. This Court held that the protection granted by Section 13 of the Act was not available to the heirs of the tenant and therefore, it was not necessary to go into the question of bonafide and reasonable personal necessity of the land lord and the suit of the landlord was decreed. The Supreme Court affirmed the said judgment of this Court and following the earlier decision in Anand Nivas Vs. Anandji Kalyanji's case (supra) it was held that : "When B N. Chatterji died, he was only a statutory tenant with a personal right to remain in possession till eviction under the provisions of the Act, and the heirs were incapable of inheriting any estate or interest in the original tenancy. It was also not shown to us that they fell within any other part of the definition of 'tenant' reproduced above, Therefore, the heirs and legal representatives of the deceased B.N. Chatterji could not in their own right claim to be 'tenant; within the meaning of the Act". The effect of the aforesaid decision was that heirs and legal represen- tatives of the statutory tenant (as commonly called) after his death were completely deprived of the protection of the provisions of the Act after the death of the statutory tenant. With a view to remedy this situation and to give protection to the heirs and legal representatives of the statutory tenant after his death the Legislature intervened and enacted the Rajasthan Premises (Control of Rent & Eviction) (Amendment) Act, 1976, whereby the definition of expression 'tenant" contained in clause (vii) of Section 3 of the Act was amended and clause (vis) was substituted by the following clause: "(vii) "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 upto his death." After the aforesaid amendment had been introduced in the Act in 1976, the Supreme Court in Damadi Lal Vs. Parash Ram (3) while dealing with the provisions of the Madhya Pradesh Accommodation Control Act, 1961, has referred to the earlier decisions in Anand Nivas Vs. Anandji Kalyanji (supra) and J.C. Chatterjee Vs. Shri Sri Kishan Tandon (supra) and then held: "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 dear how it can be assumed that the position is the same in this country without any reference to the provisions of the relevant statute. Tenancy has its origin in contract. There is no dispute that a contractual tenant has an estate or property in the subject-matter of the tenancy and heritability 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 irremovability and not the estate he had in the premises in his occupation. It is not possible to claim that the sanctity of contract cannot be touched by legislation." ;