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(a) x x x x

(b) as tenants-in-common and not as joint tenants.

To be frank, these expressions "tenants-in-common" and "joint tenants" were not used in the sense as commonly understood. These are the terms used in English common law denoting some incident of ownership. These are terms not used to denote lessees of property. Joint tenants in respect of the property jointly owned take by survivorship in the event of death of one of them and in the case of "tenant-in-common", the heir of the dying tenant would succeed to the interest of the deceased tenant-in-common. No was suming for the time being that contractual tenancy itself was property and was thus heirtable, it being property, it was said it would be inherited according to the personal law of inheritable of the deceased tenant. Section 8 provides that the property of a male Hindu dying intestate would devolve according to the provisions of the Chapter in which the section is placed. If the deceased tenant was a contractual tenant, the estate in the tenancy will devolve according to the Hindu Succession Act in this case. It was further said that it is quite conceivable that one who inherits the estate in the tenancy rights or the leasehold rights under the Hindu Succession Act may not qualify for transmission of tenancy under Section 5(11) (c) (i) of the Rent Act on the ground that such heir was not residing with the deceased tenant at the time of his death. In order to acquire tenancy by transmission under Section 5(11) (c) (i), the essential pre-requisite is that person so claiming transmission of tenancy must be the member of the tenant's family and must be residing with the tenant at the relevant time. Now, one succeeding to the estate of the deceased tenant including his leasehold rights may be an heir under the Hindu Succession Act and may not be staying with the deceased tenant at the time of his death and yet, he would succeed to the leasehold rights. It was said that this situation would not arise in the case of a statutory tenant because that is a status of irremovability personal to the deceased and transmitted under the legislative enactment which but for the legislative enactment, such a section as Section 5(11)(c)(i) would have come to an end. It was, therefore, said that Section 5(11)(c)(i) only applies to statutory tenants and not to contractual tenancy. If it were, it was said, to apply to contractual tenants, the Court must visualise the consequence of its decision, which again would be fearful. To illustrate, it was said that a tenant died leaving a son and a father. The son was away, residing somewhere else, doing his own business. The father was staying with the son who was the tenant at the time of the death. If the tenant was a contractual tenant, the father, though a member of the tenant's family and residing with him, would not 'the entitled to the transmission of tenancy because the leasehold right would be inherited by the son under the Hindu Succession Act. After pointing out this pignant situation that may arise, it was urged with some vehemence that Court should confine the applicability of Section 5(11)(c)(i) to such cases only where the deceased tenant was a statutory tenant.

My Lords, in my view, the widow of a tenant, whether contractual or 'statutory', who was residing with her husband at the date of his death is entitled to the protection given by the Acts. If a contractual tenancy is still subsisting at her husband's death, and devolves upon someone other than the widow, it is not destroyed, but the rights and obligations which would ordinarily devolve upon the successor in title of the contractual tenant are suspended, so long as the widow retains possession of the dwelling house.

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.

14. In the view that we have taken, it is not possible to subscribe to the view taken by the Delhi High Court in Ganga Pershad v. Smt. Tribeni Devi 1976 All India Rent Control Journal p. 83 on which reliance was placed by the learned single Judge. The Delhi view proceeds on the footing that the statutory tenancy on transmission can devolve on more than one person. That view would not commend to us. In fact, it would run counter to the view taken by us. Therefore, with greatest respect, we are not in a position to subscribe to that view.