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22. It is contended on behalf of Dina/Respondent Nos. 1 and 2 that she is a joint tenant/cotenant with Mehroo ever since her father's death in 1954 and as a member of the family also residing with the deceased at the time of death of the deceased, the tenancy has devolved upon her as much upon Mehroo, as has been held in various judgments under Section 5(11)(c) of the Act in like circumstances. In fact, it has been argued on her behalf that she would be entitled as a joint tenant upon Mehroo herself applying for and obtaining the letters of administration to the estate of her deceased father, inter alia, for half share in the tenancy rights along with her sister Dina as reflected in her Petition for Letters of Administration which came to be granted.

39. This judgment need not detain us long in view of the change in law thereafter in the case of C.J. Ghadiali and Ors. v. Z.B. Wadiwalla 1981 M.L.J. 876. The change in the law pursuant to the amendment in 1978 in Section 5(11)(c) of the Bombay Rent Act has resulted in an observation that the right of the heir is eclipsed by the provisions of Section 5(11)(c) in cases where the tenancy continues. Consequently, a member of the tenant's family residing with the deceased tenant at the time of the death of the deceased tenant becomes a tenant. If there is more than one such member, the determination of the tenancy would be, by agreement between the parties, and failing it by an order of the Court. That elementary position in law has been reiterated in a number of subsequent judgments since in the case of Seeta Shrikrishna Sharma v. Vijaya A. Rao and Anr. reported in 1988 Mah.R.C.J. 480. In the case of H.C. Pandey v. G.C. Paul 1989 M.L.J. 461 (S.C.), it has been held by the Apex Court that on the death of the original tenant subject to a statutory provision to the contrary negativing or limiting the succession, the tenancy rights devolve on the heirs of the deceased tenant who succeeds to the tenancy as a joint tenant. In the case of Anant T. Sabnis v. Vasant Pratap Pandit 1994 M.L.J. 1450 (S.C.), the right of a family member is given precedence over the rights of the heirs of the deceased tenant. This is taken to be the provision to the contrary negativing and limiting the succession upon the death of the original tenant. This provision is contained in Section 5(11)(c) of the Bombay Rent Act. It is held in that judgment that certain heirs are unable to succeed to such a tenancy and to that extent, a departure is made from the general law of succession. The heirs, who cannot succeed, are the heirs, who are not residing with the tenant at the time of his death. All the family members residing with such tenant at the time of his death, would get precedence over such heirs who would get a right to be a tenant only if any family member of the deceased tenant residing with at the time of his death remained. It is observed in this judgment by the Apex Court that Section 5(11)(c) should be construed widely to include the family members of the deceased tenant who would be entitled to the estate either by virtue of a will or by intestate succession.

41. In the case of Ashok Chintaman Juker and Ors. v. Kishore Pandurang Mantri and Anr. , it has been held that members of family of the original tenant succeeded to tenancy together. Consequently, a decree passed against one tenant operated against all the other members of the family covered by the tenancy. It has been observed in Para11 of that judgment that "The question that arises for consideration in such cases is whether the tenancy is joint or separate." It is held that when the tenancy is joint, notice to any one of the tenants is valid and the decree passed in such a suit is binding upon all the tenants. Placing reliance upon the case on Pandey v. Paul (supra), it is held that tenancy rights devolve on the heirs of the deceased tenant as a single tenancy since there is no division of the premises and the rents payable thereafter. Hence, it is held that the heirs succeed to the tenancy as the joint tenants and consequently, when the suit was filed against one of them by the landlord, the Defendant represented all the tenants.