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3. Defendant No. 1 Ramraj was staying with the deceased Brindavan in the suit room at the time of the latter's death. The suit of the plaintiffs was for a declaration that they are the tenants of the suit room because they are the heirs of the original tenant Brindavan. Initially, they had not claimed possession but a mere injunction as a consequential relief. But, subsequently, they amended the plaint to claim possession of the suit room from defendant No. 1. Defendants Nos. 2 and 3 were joined as parties to the suit so that, as the previous and the present landlords, the decree that might be passed in the suit should be binding on them. The plaintiffs contended that defendant No. 1 had no right to stay in the suit room because they alone as the heirs of the deceased Brindavan were entitled to inherit the tenancy right. They also had made an allegation that not only defendant No. 1 but they also were in possession of the suit room at the time of the death of Brindavan.

10. The point that arises is the one we have mentioned in the beginning of this judgment. But if we are called upon to record our views on the point, which finds place in the referring judgment of the learned single Judge, namely, whether the powers under Section 5(11)(c) of the Rent Act can be exercised by the Court only in respect of a statutory tenancy and not in respect of a contractual tenancy, we see no reason why the powers could not be used in respect of a contractual tenancy. There is nothing in the language of Section 5 or otherwise in the Rent Act to indicate that the provisions in Section 5(11)(c) will apply only in respect of a statutory tenancy. It is also not that the occasion to invoke the provisions of Section 5(11)(c) can arise only in the case of statutory tenancy. A contingency can arise even in the case of a contractual tenancy to invoke the provisions of the section. Take for example the case of a contractual tenant who dies before the tenancy comes to an end. Suppose a distant relative of the tenant is residing with him at the time of his death. He may not be quite sure of his position visa-vis the premises and does not know whether he would be acceptable to the landlord as tenant. He may even suspect the landlord to play some mischief in order to oust him from the premises. In order to make his position safe and clear, he applies to the Court under the Rent Act for a declaration that he is a tenant within the meaning of Section 5(11)(c) of the Rent Act. Can the Court refuse to go into that question on the ground that the tenancy is contractual and has not been terminated? We do not think that the Court can refuse to go into that question. A contingency can thus arise even in the case of a contractual tenancy for a Court to invoke the provisions of Section 5(11)(c) of the Rent Act. There is nothing in the language of Section 5 or in the other provisions of the Rent Act to show that the provisions in Section 5(11)(c) will be applicable only in the case of a statutory tenancy. If we are, therefore, required to express our opinion on the question mentioned by the learned single Judge in his referring judgment, we hold that the powers under Section 5(11)(c) can be exercised by the Court not only in respect of a statutory tenancy but also in respect of a contractual tenancy. However, that question does not fall for our consideration in the present case.

The view taken in the above decision is also thus to the effect that the provisions of Section 5(11)(c) of the Rent Act are not meant to supersede the rights of inheritance to the tenancy vesting in the heirs on the death of the tenant, under the personal law of the party.

18. In Gool Rustomji v. Jal Rustomji, the above question never arose and was not decided. There is, therefore, no conflict of views between Bhasme J. on the one hand and K.K. Desai J. and Tulzapurkar J. on the other. In that case, the petitioner and respondent No. 1 were sister and brother being daughter and son of one Rustomji Lala. Rustomji Lala was the tenant of the flat in suit. Under a will made by Rustomji, he gave the suit flat to the petitioner. It appears that the petitioner and respondent No. 1 were both residing with Rustomji at the time of his death. The petitioner made an application in the Court of Small Causes against the landlord for a declaration that she alone was the tenant. An ex parte declaration in her favour was made. Subsequently, respondent No. 1 made an application, alleging that he was residing with the deceased tenant at the time of his death and he was also a member of the tenant's family and, therefore, he was entitled to a declaration under Section 5(11)(c) of the Rent Act that he was the tenant in respect of the flat. The petitioner objected to that application and mainly contended that under the will, she alone had the right to be declared a tenant in respect of the suit flat. She also contended that respondent No. 1 was not residing with the deceased tenant as a member of the family. The trial Court recorded a finding that respondent No. 1 was residing with the deceased tenant as a member of his family. It was true that the deceased tenant had made a will and bequeathed the contractual tenancy right to the petitioner. The trial Court found both the petitioner and respondent No. 1 to be equally qualified to become tenants under Section 5(11)(c) of the Rent Act. Accordingly, it made a declaration to that effect. The petitioner, feeling aggrieved by that decision, approached the division Bench of the Court of Small Causes by filing a revisional application. But that was summarily rejected. The petitioner thereafter aproached the High Court.

22. The next submission of Mr. Bandiwadekar is that, in fact, the plaintiffs have filed the present suit under the provisions of the Rent Act and all that they are seeking is a declaration as tenants under Section 5(11)(c) of the Rent Act. In this connection, he has pointed out that the claim in suit has been valued at Rs. 180 which is the rent for twelve months and the plaintiffs have paid Court-fee on this amount. They have not valued their claim of title of tenancy. They have also alleged in the plaint that they were members of the family of Brindavan and they were residing with him at the time of his death. Both these facts had been pleaded only for the purposes of Section 5(11)(c). Thirdly, they had joined the landlords as parties to the suit, which would have been otherwise not necessary if they were simply to file a suit on title. Fourthly, if the suit had been filed as a regular suit, then against the decree of the lower appellate Court, a second appeal would have been filed in the High Court. The plaintiffs had filed a Special Civil Application, treating their original suit as having been filed under the provisions of the Rent Act. Mr. Bandiwadekar referred to certain decisions to make out his point.