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(11) "tenant" means any person by whom or on whose account rent is payable for any premises includes--

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(c)(i) 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, and xx xx xx xx.

The status of tenant is indicated by the liability to pay rent. The first part of the definition is a short and precise definition which provides an indicator for landlord-tenant relationship. The tenant would be one by whom or on whose account rent is payable for any premises. Even if the rent is paid by a person other than a person who is a tenant, if it is shown it is paid on behalf of the first-mentioned person, the first-mentioned person is the tenant. A lease is a transfer of interest in immoveable property for consideration, the essential and salient feature being to enjoy exclusive possession of the property taken from the lessor and the right to enjoy the property with exclusive possession vesting in the lessee. Till lease was a creature of contract, the relations between the lessor and the lessee will be governed by contract. Such contract can be oral or in writing. If it is in writing, it must also satisfy the requirement of the Stamp Act and the Registration Act depending upon its duration. There are various types of leases. Section 106 of the Transfer of Property Act provides for certain presumptions in respect of duration of leases where there was not a specific contract. If the lease is for manufacturing or agricultural purposes, it was presumed to be from year to year and if it was a lease of immoveable property for any other purpose, it was presumed to be from month to month. This presumption could be displaced by a contract to the contrary or by local law or usage to the contrary. Section Ill provides for determination of lease. In the course of discussion, a feeble attempt was made to urge that the lease would ipso facto determine on the death of the lessee which would have excluded any consideration of its heritance. In other words, the attempt was to urge that a lease of immoveable property cannot enure beyond the life-time of the lessee. This is too wide a proposition because a lease for a fixed period or a permanent lease would always be heritable, the first for the unexpired portion of the duration of the lease, and, in the second case, the right of re-entry itself is done away with because that is the essential feature of the permanent tenancy. Undoubtedly, even a permanent tenancy can be surrendered, but the essential feature of permanent tenancy is that, on the happening of no known event, landlord has a right of re-entry. To illustrate, even if there is failure to pay rent, the landlord of a permanent tenant has merely a right to recover rent. There is no right of re-entry. Such lease would be heritable. There is also a view which may be examined in an appropriate case that even a tenancy month to month is heritable. In the days when Rent Restriction Acts did not occupy the field leases ordinarily, other than agricultural leases, were governed by the provisions of the Transfer of Property Act relating to leases. In those days the assertion that a monthly tenancy is heritable would not have raised dust of controversy because, even when inherited, the lessee can be made to vacate by a notice to quit. The heritability of the tenancy assumed considerable importance after the advent of Rent Restriction Acts. As an aftermath of the two wars in the first half of the present century and consequent urbanization process progressively picking up speed, there arose an acute shortage of accommodation in urban and semi-urban areas and agglomeration, and harsh law of demand and supply made its presence felt when the greed of the landlord for charging higher rent bad to be curbed by restricting the power to enhance the rent and simultaneously also to fetter the unlimited right of re-entry enjoyed by the landlord, it became necessary to grant protection to tenants. Rent Restriction Acts were enacted and put into operation. Once a Rent Restriction Act came into operation and in its Wake restricted the application of the provisions of the Transfer of Property Act concerning leases, the concept of statutory tenancy came into vogue. By judicial interpretations, it is accepted that a person remaining in occupation of the premises let to him after the determination or expiry of the period of tenancy under the protection of the Rent Restriction Act, is commonly called a statutory tenant. In other words, the origin of the statutory tenancy is in the ashes of contractual tenancy. Once the concept of statutory tenant came into vogue, what it connotes and denotes becomes necessary to be stated with precision and accuracy. A person remaining in occupation of the premises let to him after the determination of or expiry of the period of the tenancy is commonly though in law not accurately called 'a statutory tenant. Such a person is not a tenant at all; 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." (vide Anand Nivas Private Ltd. v. Ananji Kalyanji's Pedhi and Ors. . In other words, statutory tenant has the status of irremovability enjoyed by him under the Rent Restrictions Act.

6. If such is the position of a statutory tenant, the protection would vanish into thin air the moment such a tenant dies. The Legislature was faced with two problems: Whether such tenancy should be treated as an estate and made heritable according to the personal law of the party who is a tenant or some statutory protection should be afforded. If statutory tenancy would not fall within the expression estate' or 'heritable estate', the personal law of the party in respect of inheritance or succession would hardly help. The Legislature stepped in and enacted Section 5(11)(c)(i) and (ii). They are in identical terms. We are more concerned in this case with Section (5)(11)(c)(i). Where the premises in question are let for residence, any member of the tenant's family residing with the tenant at the time of, or within three month immediately preceding, the death of the tenant as may be decided in default of agreement by the Court, would be a tenant of the premises.

12. The expression "tenant" is defined, as stated earlier, first to mean any person by whom or on whose account rent is payable for any premises and then includes various persons by expanding the definition. The tenant would include a contractual tenant. There is nothing in the definition of the word 'tenant' which would confine it merely to a statutory tenant or which would exclude contractual tenant. One cannot be a contractual tenant and a statutory tenant simultaneously. One ends where other begins. It is on the determination of the contractual tenancy that the statutory tenancy comes into existence which is nothing but a status of irremovability. In the definition of 'tenant', we find nothing which would cut down its meaning or confine it to statutory tenant only. Is it then permissible on a possibility of some piquant situation arising as hereinbefore discussed by putting a literal construction on the definition of tenant as including a contractual tenant to call in aid a rule of construction which says that one should not put such construction on the provision of a statute so as to lead to absurdity and then restrict the definition to statutory tenant only? On the contrary by adopting a proper canon of interpretation, the piquant situation can be easily avoided. But, .Mr. Mankad told us that the question whether the word 'tenant' for the purpose of Section 5(11)(c)(i) includes contractual tenant or statutory tenant is no more res Integra. In Thakorelal Amratlal Vaidya, holder of Power of Attorney of Maharajkumar Indrajitsinhji Vijaysinhji of Rajpipla v. Gujarat Revenue Tribunal and Ors. 4 G.L.R. 841, Bhagwati J. (as he then was) speaking for the Division Bench, has clearly stated that the contractual tenancy under the Transfer of Property Act is heritable not because of Section 111 of the Transfer of Property Act but because it constitutes an estate or interest in the land which passes on to the heirs by the operation of the law of succession. It was urged that this decision is impliedly affirmed in Anand Nivas Private Ltd's case (supra). After setting out the definition of 'tenant' as enacted in Section 5(11) it was observed that the expression 'tenant' in the different clauses of Section 5(11) is defined to mean contractual tenant or a statutory tenant or both. This observation does mean that whenever the word 'tenant' is used in the enactment, it means both contractual and statutory tenant. In what sense the expression is used in a given section would depend upon the context in which the expression is used, otherwise it was not possible to reach the conclusion to which the Supreme Court reached in that case, namely, that Clause (a) of Section 5(11) envisages sub-lessees, transferees or assignees from contractual tenants only. This thinking in some extent was influenced by the decision in Moodic v. Hosegood 1952 Appeal Cases 61. The question posed in that case, was whether the expression 'tenant' in Section 12(1) (g) which is in pan materia with Section 5(11) (c)(i) includes a contractual tenant or does it refer only to a statutory tenant. Having posed the question in proper perspective and after overruling the decision in Thynne v. Salmon (1948) 1 J.B. 482 : (1948) I All England Reports 49, it was, in terms, held that the word 'tenant' in Section 12(1) (g) of the English Act includes both 'contractual tenant' and 'statutory tenant'. Having reached this conclusion, the dilemma just posed above clearly started them into face, viz, that, if a contractual tenant dies, the tenancy will be inherited by the heir at law and, if a statutory tenants dies, the tenancy will be transmitted in favour of one who would qualify under Section 12(1) (g) of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920. The House of Lords proceeded to resolve the dilemma as under:

13. Rent Restrictions Act generally including the Bombay Rent Act were enacted for the purpose of controlling the rents and repairs of certain premises and of evictions due to the tendency of landlords to take advantage of the extreme scarcity of premises, compared to the demand for them. The Act intended, therefore, to restrict the rights which the landlord possessed either for charging excessive rents or for evicting tenants. A tenant stood in need of protection against eviction by the landlords. So long as he had the necessary protection under the terms of the contract between him and the landlord, he could not be evicted till his tenancy was determined according to law and, therefore, there was no necessity of providing any further protection under the Act against his eviction so long as his tenancy continued to exist under the contract, (vide Bhaiya Punjalal Bhagwandin v. Dave Bhagwatprasad Prabhuprasad and Ors. ). On the determination of the contractual tenancy, the landlord could exercise the right of re-entry and in order to grant protection to the tenant, the Rent Restriction Act was enacted. It conferred the 'status of irremovability' and the landlord's right of re-entry was restricted to those grounds set out in the Act. In absence of a ground, the Legislature thought of granting further protection to the members of the tenant's family who were residing with the tenant at the time of his death. Now, statutory tenancy generally conceived as a personal status of irremovability could not have been inherited though the contractual tenancy could have been inherited; but even if such contractual tenancy could have been inherited, could be put an end to. Therefore, the Legislature stepped in to grant protection. Protection was not to be granted as if the tenant's leasehold rights were to be inherited as the property of the deceased irrespective of necessity to use and occupy the property in respect of which the deceased enjoyed leasehold rights. The scarcity of accommodation was kept in view by the Legislature when it created a special mode of succession to tenancy right which shorn of all embellishments is nothing but a right to possession and occupy the property, stay in or use it for the purpose for which it is taken on the obligation of paying rent. The protection was to be granted to those who were in need of premises and not to those who were not in need of the premises and get may inherit the leasehold rights. The Legislature, therefore, stepped in and provided a special mode of succession to the tenancy rights or the leasehold rights to the extent of irremovability from possession to those who were in need of it but limiting it to the number of the tenant's family but no inter se rank was decided. A member of the tenant's family and residing with the tenant which would imply that he was in need of a tenement was being protected by Section 5(11)(c)(i). A member of the tenant's family who was carrying on business with the and who would be thrown out of the business premises which are was sought to be protected by Section 5(11)(c)(ii) of the Rent let In other words, for the purpose of residence or for the purpose of Kniness in the premises, such person was dependent on the tenant. On death of the tenant, he was not to be made orphan and he was lot an outsider in the sense that he must be a member of the family To such class of persons, the tenancy rights would, no loosely devolve not in the trick sense of succession the sense of right to occupy and possession on the obligation of rent and enjoy protection against eviction except on the grounds in the protective Acts. If property the next generation of tenants who staying in tenanted premises. To them, the protection eSed. This status would not be estate for the purpose of that was the intention of the learned it would only mean that even in the case of contractual transmission of tenancy rights or status of irremovability place or devolve according to the special legislation would of the law of inheritance to the enacted in Section devolution of estate under personal law of parties. There is no question of suspension of any devolution of estate. This status is no more a subject of inheritance. The transmission takes place according to the special legislation in respect of the special protection created by special legislation. If there is such a person who qualifies for the special protection under Section 5(11)(c)(i) of the Rent Act, necessarily excludes one who can claim under the general law of inheritance. If there is no such person, the law of inheritance would come into operation and would take its own course. That is not the problem before us. That can be resolved if such a claim is made. But there is no doubt in our mind that till such qualified class of persons as envisaged in Section 5(11)(c)(i) is available, any one of them in the manner provided in Section 5(11)(c)(i) of the Rent Act will be entitled to the transmission of tenancy and, on his death any one of his family staying with him would be further entitled to the transmitted tenancy in the same manner. That in our opinion and with respect to the learned single Judge, appears to be the solution of the problem.