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4. At this stage it appears that a contention was raised on behalf of the defendants that as a result of the failure to bring on record the legal representatives of defendant No. 3, the entire suit must be held to have abated. The trial Court, however, took the view that such a contention was not within the scope of the Notice of Motion with which it was dealing and, therefore, declined to consider the question as to whether the entire suit had abated.

5. Thereafter defendant No. 1 made an application in November 1969 contending that the entire suit had abated and that since the heirs of one of the defendants, that is, defendant No. 3 were not before the Court, no effective decree could be passed. In reply to this application, the plaintiff took up the stand that after the termination of the tenancy, the defendants continued to be in possession only as statutory tenants having only a personal right of occupation and having no transferable interest. Therefore, according to the plaintiff, the heirs of defendant No. 3 could not inherit any interest in the tenancy of the suit premises and thus the right to sue survived against the remaining defendants who were only statutory tenants. It was argued before the trial Court that defendants Nos. 1 to 4 were joint tenants and on the death of defendant No. 3, his interest in tenancy rights would devolve by survivorship on defendants Nos. 1, 2 and 4 only. This contention, however, was not accepted by the trial Court. The trial Court took the view that the right of defendant No. 3 as a statutory tenant to remain in possession of the suit premises devolved on the heirs of defendant No. 3 and they would also be entitled to continue in the premises as tenants under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the "Rent Act") and as such, the suit cannot be proceeded with only against the remaining statutory tenants without joining the heirs and legal representatives of the deceased statutory tenant. The trial Court held that on the death of the statutory tenant if the heirs and legal representatives stepped into his shoes and they also become statutory tenants, no effective decree could be passed in the absence of the heirs of defendant No. 3 and the tenancy being one and indivisible, any such decree would riot be binding on the heirs and legal representative of defendant No. 3. The trial Court, therefore, took the view that on account of the abatement of the suit against defendant No. 3, the suit must be held to have abated as a whole and the plaintiff's suit came to be dismissed.

17. The appeal Bench was, therefore, clearly in error in holding that the tenancy rights devolved by survivorship on the remaining tenants, namely, defendants Nos. 1, 2 and 4 after the death of defendant No. 3.

18. It is too late in the day to dispute the proposition that the interest of a statutory tenant passes on to his heirs apart from the fact that this position is, expressly provided for by the definition of 'tenant' in Section 5(11)(c) of the Rent Act which refers to a member of the tenant's family residing with him at the time of his death as being included in the definition of a tenant. It has been so held by this Court in Jam Manufacturing Co. v. Sadashiv (1965) 68 Bom. L.R. 152. A division Bench of this Court has in that case clearly held that to the limited extent stated in Section 5(11)(c) of the Rent Act, the tenancy of a statutory tenant is transmissible and heritable. The division Bench has in that case observed (p. 154):

21. The two division Bench decisions referred to above thus clearly take the view that the interest of a statutory tenant is transmissible, it is heritable and the heirs of the deceased tenant under the personal law are entitled to succeed to the tenancy rights in preference to the person who claims the right of a statutory tenant by virtue of the provisions in Section 5(11)(c) of the Rent Act. If that be the position of the law, then the heirs of defendant No. 3, who had been treated as a co-tenant along with the other three defendants, would succeed to his rights as of the co-tenant after the death of defendant No. 3. Consequently, all the heirs taken together along with the three remaining tenants would share the tenancy rights and all of them would be treated as tenants holding a common tenancy vis-a-vis the landlord. As long as a decree for eviction is not passed against them, they will be entitled to continue in possession of the tenanted premises. Unfortunately for the plaintiffs, the suit against the heirs of defendant No. 3 has been dismissed as having abated because they had failed to bring the legal representatives of defendant No. 3 on record within the prescribed period of limitation. There is thus a decree of dismissal in respect of such of the tenancy rights as had devolved on the heirs of defendant No. 3 by inheritance. If those rights are now intact, it is difficult to see how a suit for possession of the entire tenanted premises could be successfully decreed in favour of the plaintiffs by continuing the suit only against the remaining defendants. Clearly two contradictory decrees would come into being which is not permissible under the law.

24. The question as to whether the provisions of Section 5(11)(c) are attracted in the case of business premises was also! considered by another division Bench of this Court in Shantabai v. Ganpat . It was held by the division Bench in that case that a member of the tenant's family residing with him at the time of his death would be entitled to the protection of the Rent Act in relation to any premises including business premises of which the deceased was a tenant at the time of his death. It was pointed out that in Section 5(11)(c) there was no indication that the protection granted by that provision was limited to those premises in which the tenant and members of his family were residing at the time of the tenant's death and if one were to hold that Section 5(11)(c) has reference to the premises which were occupied by the tenant in which the members of the tenant's family were residing with him at the time of his death, then one would be introducing words in, the section which do not exist and this was not permissible. Thus the division Bench has taken the view that the definition of a tenant applies equally in respect of the business premises. In view of the decision earlier referred to, that the personal law of the tenant is not ruled out for the purposes of deciding as to on whom the tenancy rights have devolved and in view of the decision in Shantabai's case, it is clear that the tenancy in respect of business premises will also devolve on the heirs of the statutory tenant according to the personal law.