1. This is one such case where the following observations made by Hon'ble the Supreme Court in the case of Shreenath and another v. Rajesh and others, reported in AIR 1998 SC 1827 would aptly apply:
“The seekers of justice many a time has to take a long circuitous routes, both on account of hierarchy of Courts and the procedural law. Such persons are and can be dragged till the last ladder of the said hierarchy for receiving justice but even here he only breaths fearness of receiving the fruits of that justice for which he has been aspiring to receive. To reach this stage is in itself an achievement and satisfaction as he, by then has passed through a long ardous journey of the procedural law with many hurdles replica of mountain terrain with ridges and furrows. When he is ready to take the bite of that fruit, he has to pass through the same terrain of the procedural law in the execution proceedings the morose is writ large on his face.”
2. This appeal under section 100 of the Code of Civil Procedure is filed by the third party obstructionist who moved two different applications Exh. 14 and 36 in the rent execution application No. 58 of 2005 which was filed by the decree holder for execution of the judgment and decree of recovery of possession of the suit premises.
3. As could be seen from the record of the case, respondent No.1 to 3 herein- original plaintiffs [herein after referred to as “the landlords”] filed rent suit No.332 of 1981 against respondent No. 4 herein praying for recovery of the the possession of the suit premises mainly on the ground that the respondent No.4 who was holding the property as tenant, after death of his father, made material alteration of permanent nature in the suit premises and committed breach of tenancy and made himself liable to vacate the suit premises. Said suit came to be dismissed by the learned Small Cause Court, Vadodara by judgment and decree dated 24.9.1985.
4. Landlords unsuccessfully carried the matter before learned appellate Judge by filing Regular Civil Appeal No. 258 of 1985 under section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 Act (herein after referred to as “the Act” for the sake of brevity) The first appellate court dismissed the appeal of the landlords by judgment and decree dated 31st July, 1995. The landlords then further carried the matter before this Court by filing Civil Revision Application No. 183 of 1996 and this court vide judgment and order dated 27.7.2005, allowed the said revision application, quashed and set aside the judgment and decree passed by the courts below and allowed the above said rent suit and held the landlords entitled to recover vacant and peaceful possession of the suit premises from the original defendant- respondent No.4 herein.
5. The landlords with the hope to get the fruits of the decree, faced the real difficulty now when the landlords filed execution proceedings being rent darkhast no. 58 of 2005 before the executing court to get the vacant and peaceful possession of the suit premises on the basis of the judgment and order passed by this court in above referred civil revision application.
6. In ordinary circumstances, a third party who is not a party to the main proceedings of the suit would wait to file its response to the application which may be made by the decree holder under Order 21, Rule 97 of the Code of Civil Procedure (herein after referred to as “the Code”) for removal of obstruction which may be caused or created by such third party. However, present is not the case where the third party waited for such occasion to arise. It appears that after the notice was issued in the execution proceedings to the decree debtor, along with the decree debtor, the appellants- third party also put forth his objections and obstructed to execution of decree. Appellant third party is the real brother of decree debtor and one of the sons of the original tenant who moved application at Exh. 14 on 9.1.2006 raising various objections against the execution of decree. The appellant third party also moved one more application at Exh. 36 praying to stay proceedings of execution till the landlords-decree holders move application under Order 21, rule 97 of the Code and get the obstruction removed after full-fledged trial in the darkhast proceedings.
7. Main objections of the appellant in the application Exh. 14 were to the effect that after the death of his father who was the original tenant, he with his brother, has acquired tenancy right in the suit premises, that by virtue of the provisions of section 5(11(c) of the Act, he has become the tenant of the suit premises and has been in occupation of the ground floor of the suit premises as tenant, that in absence of any agreement between the family members of the tenant and in absence of any order from the court, he had also acquired tenancy right with his brother. Therefore, without making him party in the suit for recovery of possession filed against his brother, decree passed in respect of the said suit by this court in civil revision application could not be executed against him as the said decree was not binding to him. He has also stated in the application that he has been independently holding the suit premises at ground floor for which separate electric connection as also separate ration card and separate gas connection has been obtained. As stated above, decree debtor also raised similar kind of objection in his application Exh. 21 and it is pertinent to note that one of the objections raised by the decree debtor is about no agreement between the family members for transmission of the tenancy after death of their father in the year 1965.
8. The above applications came to be heard and decided together by the executing court and the executing court, by taking note of documents on record, found that there were no independent tenancy rights in favour of the appellant in respect of the suit premises and also found that the appellant had knowledge about the judgment and order passed for the purpose of recovery of the possession of the suit premises and accordingly found no substance in the obstructions/objections raised by the appellant and dismissed the applications by judgment and order dated 10.4.2006.
9. It is pertinent to note that being aggrieved by the aforesaid judgment and order passed by the executing court, only the appellant carried the matter further by filing regular civil appeal no.48 of 2006 in the court of the learned Presiding Officer, FTC, Vadodara under section 96 of the Code of Civil Procedure. The learned Judge came to the conclusion that the appellant had full knowledge about the pending litigation for the purpose of recovery of possession of the suit premises by the landlords against his own brother since 1981. Still only when the darkhast proceedings came to be filed in the year 2005, the appellant objected to the execution proceedings on the ground that he was not made a party in the original suit filed by the landlords against his brother. The learned Judge therefore recorded that only intention on the part of the appellant was to delay any how such execution proceedings with a view to see that the landlords may not be able to get the fruits of decree. The learned appellate Judge also recorded that the person who rise from slumber after so many years having full knowledge about pending litigation in respect of the property which is occupied by him with his brother, such person cannot be permitted to raise objection and to linger the execution proceedings simply on the ground that he was not made party in the suit filed by the landlords in respect of the suit property. The learned Judge also found that the appellant had no independent right as tenant but he was jointly enjoying tenancy right with his brother and intentionally he remained silent for all these years. Accordingly, learned Judge dismissed the appeal filed by the appellant by his judgment and order dated 31.8.2006. It is this judgment and decree which is under challenge in this second appeal.
10. This Court passed following order on 5.9.2006:
“1. Issue notice to show cause to the otherside, returnable in eight weeks that why the Second Appeal be not admitted and finally disposed on the following proposed question;
Whether on the facts and in the circumstances of the case, the two courts below were justified in not making an inquiry into the statements and allegations made by the present appellant and whether the said courts were also right in holding that as the brother of the present appellant was a party to the earlier proceedings, knowledge of pendency of the proceedings could be attributed to the present appellant?”
11. I have heard the learned advocates for the parties.
12. Learned Advocate Mr. Hakim appearing for the appellant submitted that it is well settled position of law that the application of the third party in execution proceedings is always required to be treated as suit and all issues raised by such third party are required to be decided like original suit. In such case, the court is under obligation to independently frame the issues, to permit the parties to lead evidence and to give to such parties opportunity to prove the case and on the basis of the evidence, the learned Judge is required to decide the application as if it is a regular suit. He submitted that the important and crucial issues were raised by the appellant in his application before the executing court. However, none of the issues were either raised by the learned trial Judge or none of the evidence available on record was seriously considered by the learned trial judge. He pointed out that even the learned appellate Judge also did not raise any of the point for determination for deciding the issues raised by the appellant and the appellate court has cursorily decided the appeal as if it was a miscellaneous appeal and not a regular appeal. He made serious grievance about the way in which both the courts below dealt with the application of the appellant.
13. Mr. Hakim also pointed out that serious question of law as regards transmission of tenancy right under section 5(11) (c) of the Act was raised by and on behalf of the appellant before the courts below. He pointed out that the appellant could not have been treated like judgment debtor. The appellant was independent third party who was not bound by the judgment and decree passed in respect of the suit filed by the landlords. He submitted that after the death of the original tenant, father of the appellant, in the year 1965, though both the brothers continued to reside in the suit premises but in absence of an agreement or order passed by the court for transmission of tenancy right, the appellant and his brother both held independent tenancy rights in respect of the suit premises. Rights in tenancy were tenancy in common and not joint tenancy. He also submitted that the appellant was having separate electric connection, gas connection and he had his own independent existence in the suit premises distinct and separate from his elder brother. He submitted that when the landlords knew about this that the appellant was also occupying the suit premise as heir of the original tenant, it was incumbent upon the land lord to join the appellant in the suit. Landlord having not done so, the landlords have no any right to say that the appellant is also equally bound by the decree passed in respect of the suit premises. He further submitted that the decree passed in such suit was not binding and the appellant having independent right of tenancy, his objections against the execution application were required to be upheld. He submitted that the learned appellant Judge has also failed to exercise the jurisdiction by not deciding the important points which had arisen for his consideration in the appeal. He submitted that by not deciding such issues, the appellant has been put to great prejudice and his tenancy rights in respect of the suit premises have been taken away without considering all the issues raised by the appellant. He therefore submitted that since the objections raised by the appellants were not decided like a suit, the judgment and order passed by both the Courts below are required to be quashed and set aside and the matter is required to be remanded to the court of first instance to again decide the obstruction and objection applications of the applicant by framing issue, by permitting the applicant to lead the evidence and by directing the learned Judge to independently decide all the issues on the basis of the evidence which may be led by the appellant.
14. In support of his submissions, learned advocate Mr. Hakim has relied on the following decisions:
(1) Chandravati Co.Operative Housing Society Limited Maninagar versus Bhairavnath Education and Cultural Society Trust, 1992(O) GLHEL-HC 202118.
(2) Bai Anupa Ganpat & Others versus Nareshchandra Laljibhai Patel, 1983 GLH 48202.
(3) Amar Kumar Sen versus Gita Rani Das , 2005 (O) GLHEL-SC- 38036.
15. In reply to the above said submissions canvassed by the learned advocate Mr. Hakim for the appellant, learned advocate Mr. Ramnandan Singh appearing for the respondents original landlords submitted that this is nothing but a clever attempt made by the appellant to delay the execution application filed by the landlords.
He submitted that the landlords have been waiting to get the fruits of the decree after 2005 onwards though it is found by this court that the tenant had committed breach of tenancy by altering the structure of the suit premises. He further submitted that the appellant, for all purposes, was joint tenant with his brother and since the suit was filed against his brother and decree is passed in the said suit, such decree would bind the appellant equally. He submitted that the suit was filed in the year 1981 and since both the brothers are residing in the said premises and in fact jointly resided for number of years after 1965 and in joint family at the ground floor, it is not possible to believe that the appellant still never knew about the filing of the suit in the year 1981. He submitted that right from 1981 till 2005, the appellant while sitting on the fence, just watched the proceedings between the landlords and his brother. He submitted that it is only when this court allowed the revision application, the appellants rose from the slumber and come forward by filing application before the executing court that too when there was no application from the landlords under Order 21, Rule 97 of the Code. He submitted that though it may not be necessary to wait for application under Order 21, Rule 97 of the Code by the Land Lords still, such appellant who just watched the proceedings of civil suit till this Court passed final decree was not entitled to raise any sort of objections under the guise that he was not made a party in the suit. He submitted that it is nothing but a dishonest attempt on the part of the appellant who first allowed the proceedings to go on in respect of the suit premises which is held by him with his brother in joint family and then to suddenly come forward to raise objection with his brother. He submitted that in such a case, the conduct of the party is very material. He pointed out that this very appellant had all through out joined his brother in the matter of payment of rent to the landlords. He pointed out that this very appellant had never made any attempt independently to pay rent to the landlord. While drawing attention of this court to the rent receipts which are on record, he pointed out that this very appellant had signed the rent receipt which was in the name of his brother who is the judgment debtor. Mr. Ramnandan Singh further submitted that if the appellant had allowed the tenancy to be recognized in the name of his brother, in the facts of the case, question of tenancy in common would not at all arise even if there is no agreement between the family members. He submitted that the agreement for transmission of tenancy under section 5(11)(c) of the Act can be inferred and presumed on the basis of the conduct of the parties. It is not necessary that always the agreement has to be in writing. He submitted that if the parties have by their conduct made all the people concerned to believe that there was agreement of transmission of tenancy in favour of one of the heirs, it is not necessary that there has to be agreement in writing between such parties. In the present case, he submitted that though there was no order of the court for transmission of tenancy, still, this very appellant has by his conduct made all the parties concerned and even to the court to believe that there was transmission of tenancy in the name of his elder brother who was joined as party in the suit and against whom the decree for possession is passed. He therefore submitted that taking note of all the facts and circumstances, no separate notice was necessary to the appellant nor was he required to be joined in the suit and the decree passed against his brother who was for all purposes taken as tenant and who was permitted to represent the suit premises as tenant, was binding to the appellant. Mr. Singh has referred the finding recorded by the courts below. He pointed out the observations made by learned trial Judge in paragraph 18 so as to lay stress on the aspect of the appellant signing rent receipt which was issued in the name of his brother, judgment debtor. From the said observations, Mr. Singh pointed out that the court has considered not only this evidence on record to come to the conclusion that the appellant had acknowledged the transmission of tenancy in the name of his brother and has not held the tenancy right independently. From the judgment of the appellate court, Mr. Singh pointed out that the appellate court also took note of the conduct of the appellant and has independently come to the conclusion that the appellant remained in slumber for number of years, and allowed his brother to represent as tenant and only after he lost, objection came to be filed in the year 2005. Mr. Singh pointed out that such were the enough consideration made by both the courts below on the basis of the evidence on record to come to the conclusion that there was already a transmission of tenancy in the name of his brother and by implied agreement between the parties, it could be very well inferred that the appellant had acknowledged such tenancy in the name of his brother and even if the appellant had any right it was right of joint tenancy with his brother and, therefore, if the appellant was not joined in the suit, it would not make any difference and decree in respect of the suit premises would equally bind the appellant. He, therefore, he urged that since both the courts below have not committed any error, this court may not entertain the appeal as it does not raise any substantial question of law for consideration of this court. In support of his submissions, learned advocate Mr. Singh placed reliance on the following decisions:
(1) H.C. Pandey versus G.C. Paul, (1989) 3 SCC 77.
(2) Ashok Chintaman Juker and others versus Kishore Pandurang Mantri and another, (2001) 5 SCC 1.
16. Having heard the learned advocates for the parties and having perused the record, following important aspects are first required to be considered:
(1) Suit premises which was originally comprising of two rooms at the ground floor was held by the father of the appellant and respondent no.4 as tenant. He died in the year 1965.
(2) The appellant and respondent No.4 then continued to occupy the suit premises jointly initially at the ground floor. Subsequently since the construction of permanent nature was put up on the original suit premises, the landlords filed the suit and ultimately decree came to be passed but till the suit was filed in the year 1981, the rent was being paid by the respondent No.4- elder brother of the appellant and the payment of such rent was acknowledged by the appellant without tendering separate payment for the occupation of the part of the premises by him. The original rent receipts issued by the landlord were in the name of respondent no.4 and signed below by the appellant herein. Thus, his elder brother was representing the suit premises as tenant and being head of the family, he was paying rent and the appellant was jointly holing his tenancy rights with his elder brother.
(3) After 1965 till the suit was filed and thereafter also till this court passed the judgment and order, at no point of time, the appellant raised any objection or filed any proceedings for separate tenancy right or for transmission or even tendered any amount for holding portion of the premises to make even the landlord to believe that he was also equally entitled to hold the premises independently as tenant being the heir of the original tenant.
(4) In fact, from the date of the suit by the landlords for almost 24 years, the appellant remained silent and it is not possible to believe that the appellant never knew about pendency of proceedings in three Courts. Such knowledge on the part of the appellant could be inferred and presumed because such premises was of only two rooms with one more room constructed on the upper floor and in such small premises, if the appellant was residing with his family members and family members of the respondent no.4, he like any prudent man would have knowledge about the proceedings going on in respect of such small premises.
(5) The appellant has also not stated in his application before the executing court that he had made any attempt to pay rent to the landlord.
17. Above aspects of the matter coupled with the facts and circumstances of the case and available evidence on record if could be closely scanned and scrutinized, it is not difficult to arrive at the conclusion that it was a case of implied understanding and agreement between the family members namely appellant and respondent no.4 that the respondent no.4 would represent the suit premises as head of the family and would discharge the obligations to make payment of the rent as tenant after death of father. If at all the appellant had some right to stand, it was right of only joint tenancy with respondent No.4.
18. I am therefore of the view that even if there was no express agreement between the family members, since implied agreement and understanding between the appellant and respondent no.4 for transmission of tenancy in the name of the respondent No.4 could be inferred,it would not make any difference and the judgment and decree passed in respect of the suit premises would equally bind the appellant and the appellant had no legal ground to raise the objection against such decree.
19. The judgment cited by learned advocate Shri Hakim at bar would not be of any help in the facts of the case. In the case of Chandravati Co-operative Housing Society (supra), this Court has held that though the remedy of instituting a separate suit challenging the legality and validity of decree is available to a third party over and above the remedy of filing obstruction application under Order 21 Rule 97 of the Civil Procedure Code, the Executing Court is under obligation to decide the obstruction application of such third party as if it is a suit. The Court in the said case was concerned whether the proceeding initiated under Order 21 Rule 97 of the CPC was required to be stayed under the provisions of Section 10 of the Code. However, the principle of law laid down is that the rights of third party are required to be adjudicated upon in the proceedings initiated under Order 21 Rule 97 of the CPC. There is no dispute about this principle of law and I am bound to follow the principle of law laid down in this judgment.
20. In the case of Bai Anupa Ganpat (supra), relied on by Shri Hakim, this Court has held that person who was not a party to the suit for eviction, to such party, the decree passed in the suit was not binding. There is also no dispute about the principle laid down in the said case and I am bound to follow the said principle of law.
21. Learned advocate Shri Hakim has placed reliance on the judgment of the Hon'ble Apex Court in the case of Amar Kumar Sen (supra), wherein the question of non-service of notice to the respondent in whose favour tenancy rights were transferred in respect of the business premises, was under consideration. The issue was not decided on merits by the Hon'ble Supreme Court on the ground that such point was not raised before any of the courts below and there was no evidence on record that respondent Nos.1 to 3 had ever surrendered their tenancy rights in favour of respondent No.4 or not. This judgment will be of no help to the appellant in the facts of the case.
22. Reliance on the judgment of full Bench of this Court in the case of Babubhai @ Jayantilal Kalyanbhai & others (supra) by Shri Hakim is to point out that the tenancy rights ought to be enjoyed by members of the family for benefit of all heirs inheriting such rights and all heirs enjoyed such tenancy rights in common and there is no concept of joint tenancy and unless there is agreement between the members of the family, all heirs hold tenancy in common and they can get their distinct rights. This Court held in para 26 of the said judgment as under:-
“26. A subsidiary question also arises in this connection, whether the agreement envisaged in Section 5(11)(1)(i) or (ii) is an agreement amongst the qualifying members only or is an agreement between such members and the landlord. The Division Bench of this Court in Nanumal's case ruled that the agreement can be only amongst the qualifying members, and the landlord has no voice in the matter. In Salter v. Lask (1925) 1 KB 584, the Court was concerned with similar words in Section 12(1)(g) of the Rent and Mortgage Interest (Restrictions) Act, 1920, which inter alia, provided that the expression "tenant" would include such member of the tenant's family residing with him/her at the time of his/her death as may be decided in default of the agreement by the county Court, Salter J. opined that this gives power to the members of the family of a deceased to decide amongst themselves as to who shall become the statutory tenant, and if they fail to agree, then there is a power in the county Court to make a selection. It is axiomatic to say that this agreement may be express or implied. In Sudhakar Kashiram v. Nagindas Atmaram (1972) 13 Guj LR 536 this Court has taken the view that the landlord has no right to choose a member of the tenant's family and accept rent from him and the decree of eviction obtained against such members is not binding on minors or other members. We are, therefore, of the opinion that the agreement contemplated under Section 5(11)(c)(i) and (ii) is an agreement amongst the qualifying members only and such nomination is independent of the landlord concerned or may be even against his wish. Since we are of the view that there is no restriction or qualification in Section 5(11) (c)(i) or (ii) so as to restrict the transmitted tenancy rights on death of a tenant to one member of his family residing with him or carrying on business with him, as the case may be, a question would naturally arise as to what is the position of other members of the family of a deceased tenant residing or not residing with him at the time of his death but inheriting his tenancy rights. In Williams v. Williams (1970) 1 WLR 1530, one Mrs. Williams, who was a tenant of the flat in question died leaving behind her husband and son who were residing with her at the flat. Each of them claimed tenancy rights in the flat. The county Court Judge granted the declaration that the husband Robert Williams would be the statutory tenant and the son Edward Williams should hand over the possession at a certain date. The son Edward Williams appealed on the ground that the trial Court was wrong in law in finding in favour of his father on the ground of hardships as a relevant factor in deciding who should be the tenant by succession, and in any case evidence on record was insufficient to decide that issue, Lord Denning M.R., while dismissing the appeal, refused to interfere with the decision of the county Court and made a very significant observation as under :
"This valuable controlled tenancy ought to be held for the benefit of them both."
The learned single Judge of the Bombay High Court in an unreported decision in Minoo J. Patel v. J.B. Aga, Civil Revision Application No. 1556 of 1963 decided on 9-2- 1966 held that it would be extremely difficult to hold that by reason of the provision in S.5(11)(c) the rights of the heirs of a contractual tenant were sought to he extinguished, and that in spite of the provisions of Section 5(11)(c) it required to be held that the rights of heirs of a deceased tenant must be preferred to the rights of mere members of the tenant's family as referred to in S.5(11) (c). A question, therefore, arises that in view of the matter which we are taking, following the decisions of the Supreme Court in Damadilal's case as well as Dhanpal's case (supra), that the recognized distinction so far existing between a contractual tenancy and a statutory tenancy so-called has almost reached the vanishing point and the incidents of both the tenancies are almost at par, whether it can be urged successfully that by reason of the provision of Section 5(11)(c) the rights of the heirs inheriting tenancy rights on the demise of a tenant are extinguished, and the same would devolve on that limited qualified class of persons as prescribed therein. We are of the opinion that it would be difficult to hold that their rights are extinguished in spite of the provision contained in S.5(11) (c). A number of complicated problems may arise, if such a view is taken, as rightly held by the learned single Judge of the Bombay High Court in Minoo J. Patel's case (supra). Having regard to the overall consideration, we are of the opinion that as held by Lord Denning M.R. in Williams' case (supra) that this valuable controlled tenancy rights ought to be held by any of the members of the family of a deceased tenant as may be nominated by agreement between the members residing with him or, in default, as may in determined by the Court, for the benefit of all the heirs inhering tenancy rights. It is no doubt true that for purposes of Rent Act only those members of the family of a tenant can be nominated by agreement or determined by Court as tenants who may be residing or carrying on business etc. with a deceased tenants such persons may be successor tenants but they will hold the tenancy rights which have statutorily involved upon them for the benefit of all other members residing with the deceased tenant, and/or the heirs inheriting tenancy rights in our opinion, a landlord, for purposes of the Bombay Rent Act has to look to such successor tenants only and not to other family members and/or heirs of a deceased tenant legally entitled to the tenancy rights under the general law. A further question is likely to arise as to what procedure should be followed if there is a default of agreement amongst the qualified members as prescribed in S.5(11)(c) of the Bombay Rent Act. The Division Bench of this Court, in Nanumal's case (supra), has ruled that if such qualified members fail to agree or communicate their agreed decision, it would be open to the landlord to ask them to suggest the name to whom he' should transmit the tenancy. If they fail to communicate their decision within reasonable time, the landlord has to move the Court for declaration as to who should be treated as a transmitted tenant. But before this decision is made by the Court, no further action can be taken by the landlord and any action before taking proper proceedings as contemplated by S.5(11)(c)(i) would be premature and must fail, and unless the Court determines as to who is a transmitted tenant, no liability to pay rent would arise and consequently, therefore, a statutory notice as contemplated under S.12, which is a condition precedent to initiate the eviction proceedings on the ground of arrears of rent, can be served since it is the primary duty of the landlord to get this question of transmission of tenancy determined one way or the other. We are afraid that there is no warrant for the above view which the Division Bench of this Court in Nanumal's case has taken. The support, which the Division Bench in Nanumal's case has found for its view for the requirement of a statutory notice under S.12 as a condition precedent to the initiation of eviction proceedings, is, with respect, not well founded. The obligation, of determination of the question of successor tenant is not only on the landlord. It may be, in a given case, on a person claiming the tenancy rights as successor under S.5(11)(c). We appreciate that if the question of successor tenant arises and is determined before the initiation of the eviction suit or any other proceedings, it would be, in the interest of a landlord or a tenant, as the case may be, since this decision at a late stage in a proceeding or suit under the Rent Act may require, in a given case, to support the proceedings afresh if the plaintiff or the applicant is ultimately held to be not a success or tenant. However, this is not tantamount to saying that no proceeding can be initiated without determination of the question of successor tenant, in the first instance, and all such proceedings initiated without that question being determined, would be premature. We do not find either in the Bombay Rent Act or the Rules framed thereunder any provision, which would oblige a landlord or a tenant to get the question of successor tenant determined before initiating suit or proceeding under the Bombay Rent Act. In Taylor v. Villoughby (1953) 2 All ER 642, the Court of Appeal was concerned with such a situation. The facts in that case were that at the time of the death of a statutory tenant of a dwelling house within the tenant Restrictions Acts his son and his step- daughter were residing with him. No agreement could be reached between them as to who was entitled to succeed to the tenancy of the house under S.12(1)(g) of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920. The landlord having given a rent book to the step daughter and accepted rent from her, she commenced ejectment proceedings against the son on the ground that he was a trespasser. The county Court Judge regarded himself as bound by the provisions of the Increase of Rent and Mortgage Interest (Restrictions) Rules, 1920, and dismissed the action and directed the parties to apply for the determination of their dispute under Rule 19. The Court of Appeal held that the Judge was not bound by the rules to dismiss the action, and it would have been better if the action had been allowed to stand over to give the parties an opportunity of applying under the relevant rule with liberty to both the parties to apply to restore the action, if no application was made by any of the parties. Sir Raymond Evershed M.R. in his opinion observed as under :
"....On the whole, therefore, it seems to me that what was in the Judge's mind can be better achieved, and should have been achieved not by dismissal of the action, but by standing it over to give either party an opportunity of making an application under the rules.........I contemplate that the proceedings will then the treated as standing over and either party will be at liberty to apply under the rules, or in this action to amend the pleadings, or for any other purpose that they like. But, to make it clear, I think that each of the parties should be given express liberty to apply to restore the action, so that, if neither party makes a move under the rules of 1920, either of them may apply to restore............
......I suggest that the order be discharged and this action be treated as standing over. If neither party takes the necessary steps under the rules the matter can come before the Judge, and he may require as a term of any further adjournment an undertaking from one or other that he or she will proceed under the rules. These are matters, however, which, I think, should be left to the learned Judge."
The other two Judges Birkett L.J. and Romer L.J. agreed with the course suggested. We are, therefore, of the opinion that if in a suit or a proceeding under the Rent Act, a question arises as to who is the successor tenant under Section 5(11)(c), the Court concerned should stay the suit or the proceeding, as the case may be, and direct the parties to get the question as to who is the successor tenant determined by appropriate proceedings. If both the parties before the Court agree that that question may be determined in the suit or the proceeding itself, the Court can equally decide that question. This course may expose a landlord or a tenant in a given case to support the proceedings afresh if the Court determines that the successor tenant is a person other than the party to that suit or proceeding, because of the want of proper statutory notice, the course rules by the Division Bench of this Court in Naumal's case (supra) in so far as it went in holding that no action can be taken till the question as to who is the successor tenant is determined and all the proceedings before such a determination are premature and must, therefore, fail, would lead to fearful and most inconvenient consequences where not only the landlord will not be able to initiate the proceedings but a member of the family of the deceased tenant can continue in occupation without paying the rent. It will also subject a successor tenant legally entitle to remain in occupation to the liability of payment of contractual rent which may be more than the standard rent if there is no agreement in a given case between the qualified persons residing with the deceased tenant because no proceedings can be initiated without determination of the question of successor tenant, in our opinion, the course prescribed by the Division Bench in Nanumal's case is not only unwarranted under the Act and the Rules but would be detrimental to the interest of the causes of the landlords as well as tenants. In that view of the matter, therefore, the view of the Division Bench of this Court in Nanumal's case that all the proceedings under the Rent Act would be premature till the question about who is the rightful successor tenant is determined by the appropriate proceedings is not correct, and the course of action which we have set out above commends itself to us as appropriate and legal course which Courts should adopt when a question as to who is a rightful successor tenant arises before them in the proceedings under the Rent Act.”
23. As stated above, not only the provision of Section 51(11)(c) of the Act is very clear but as interpreted by various judgments that if original tenant is survived by more than one heirs, all would naturally continue to be tenants in common unless transmission of tenancy right under the agreement between the family members or by virtue of Court's order is made. But, question, whether in the facts of the particular case, there is transmission or not, is to be decided on the basis of the evidence available on record. At this stage, two judgments of the Hon'ble Supreme Court on which reliance is placed by learned advocate Mr. Ramnandan Singh are required to be referred. One in the case of S.C.Pandey (supra). In that case, whether separate notice to each of the heirs inheriting tenancy rights was required or not was the issue. The Hon'ble Supreme Court in the said case has held in para 4 as under:-
“4. It is now well settled that on the death of the original tenant, subject to any provision to the contrary either negativing or limiting the succession, the tenancy rights devolve on the heirs of the deceased tenant. The incidence of the tenancy are the same as those enjoyed by the original tenant. It is a single tenancy which devolves on the heirs. There is no division of the premises or of the rent payable therefor. That is the position as between the landlord and the heirs of the deceased tenant. In other words, the heirs succeed to the tenancy as joint tenants. In the present case it appears that the respondent acted on behalf of the tenants, that he paid rent on behalf of all and he accepted notice also on behalf of all. In the circumstances, the notice was served on the respondent was sufficient. It seems to us that the view taken in Ramesh Chand Bose (AIR 1977 All 38) (supra) is erroneous where the High Court lays down that the heirs of the deceased tenant succeed as tenants in common. In our opinion, the notice under S. 106 of the Transfer of Property Act served by the appellant on the respondent is a valid notice and therefore the suit must succeed.
24. The judgment in the case of S.C.Pandey came to be then considered in later judgment of the Hon'ble Supreme Court in the case of Ashok Chintaman Juker and others Vs. Kishore Pandurang Mantri and another reported in (2001)5 SCC 1, which was a case arising under this very provisions of the Act and the issue was also similar. In that case, the original tenant of the suit premises died leaving behind two sons. Out of the two sons, rent receipts were being issued in the name of one son and after his death, rent receipt came to be issued in the name of his widow. The landlord filed suit for eviction against that son's widow, wherein consent decree was passed and on a petition filed by the landlord for execution of the said decree, warrant of possession was issued. However, another son lodged objection before the Executing Court. It was his case that at the relevant time, he was minor and since he was not impleaded as party in the suit, consent decree was not binding to him. On the basis of such facts, the Hon'ble Supreme Court in the said case has held in para para 10, 11 and 16 as under:-
“10. In sub-section (11) of Section 5 of the Act the expression 'tenant' means any person by whom or on whose account rent is payable for any premises and include (a) such sub- tenants and other persons as have derived title under a tenant before the coming into operation of this Act; (b) any person remaining, after the determination of the lease, in possession, with or without the assent of the landlord, of the premises leased to such person or his predecessor who has derived title before the coming into operation of this Act; (c) any member of the tenant's family residing with him at the time of his death as may be decided in default of agreement by the Court. The language of the provision indicates that the definition of the term is an inclusive one and wide in its amplitude. In the present case we are concerned with Clause (c) of sub- section (11) of Section 5 which provides that 'tenant' includes any member of the tenant's family residing with him at the time of his death as may be decided in default of agreement by the Court. There are two requisites which must be fulfilled before a person is entitled to be called 'tenant' under sub-clause (c); first he must be a member of the tenant's family and secondly, he must have been residing with the tenant at the time of his death. Besides fulfilling these conditions he must have been agreed upon to be a tenant by the members of the tenant's family; in default of such agreement the decision of the Court shall be binding on such members. The further question that arises of consideration is whether a member of the family of the original tenant who claims to have been residing with the tenant at the time of his death can resist execution of a decree passed against a member of the tenant's family who undisputedly was accepted by the landlord as a tenant on the death of the original tenant.
11. The question that arises for consideration in such cases is whether the tenancy is joint or separate. In the former case notice on any one of the tenants is valid and a suit impleading one of them as a defendant is maintainable. A decree passed in such a suit is binding on all the tenants. Determination of the question depends on the facts and circumstances of the case. No inflexible rule or straightjacket formula can be laid down for the purpose. Therefore, the case in hand is to be decided in the facts and circumstances thereof.
16. In the case on hand, as noted earlier, on the death of the original tenant Chintaman the rent bills in respect of the premises in question were issued in the name of his elder son Kesrinath and on his death the rent bills were issued in the name of his widow Smt. Kishori Kesrinath Juker. It is not the case of the appellant No. 1 that there was any division of the premises in question or that rent was being paid to the landlord separately by him. Indeed the appellant No. 1 took the plea that he was paying the rent through Smt. Kishori Kesrinath Juker. Thus the tenancy being one, all the members of the family of the original tenant residing with him at the time of his death, succeeded to the tenancy together. In the circumstances the conclusion is inescapable that Smt. Kishori Kesrinath Juker who was impleaded as a tenant in the suit filed by the landlord represented all the tenants and the decree passed in the suit is binding on all the members of the family covered by the tenancy. In the circumstances the decree passed in terms of the compromise entered between the landlord and Smt. Kishori Kesrinath Juker can neither be said to be invalid nor inexecutable against any person who claims to be a member of the family residing with the original tenant, and therefore, a 'tenant' as defined in Section 5(11) (c). The position that follows is that the appellants have no right to resist on the ground that the decree is not binding on them. Further, the trial Court and the appellate Court concurrently held that the appellant No. 1 has not been residing in the premises since 1962 i.e. when his elder brother Kesrinath was alive. Therefore, when the suit was filed in the year 1992 there was no necessity for the landlord to implead appellant No. 1 or members of his family in the suit since he (landlord) had no cause of action for seeking a decree of recovery of possession from them. In that view of the matter the decree under execution does not suffer from any illegality or infirmity. Viewed from any angle the appellants have no justification on the facts as well as in law to resist execution of the decree for possession of the premises by the landlord. The Executing Court rightly rejected the objection filed by the appellants against execution of the decree and the appellate Court and the High Court rightly confirmed the said order. This appeal being devoid of merit is dismissed with costs which is assessed at Rs. 10,000/-.”
25. I have already discussed above that both the Courts, as a matter of fact, have found that not only the appellant had knowledge about the pending litigation between the landlord and respondent No.4- elder brother right from 1981 till 2005 i.e. about 24 years but he had also for all the purposes taken his elder brother to be the tenant to represent all family members in respect of the suit premises with the landlord. I have also discussed that the Courts below have considered the documentary evidences which are on record in the nature of rent receipts where, rent receipts were issued in the name of respondent No.4- elder brother and the appellant had signed below the rent receipt. Thus, all throughout, he acknowledged and agreed for taking and believing his elder brother as tenant of the suit premises. I have also discussed that the Courts below have also considered the fact that there is no evidence that the appellant had ever made payment of rent in respect of the portion of the suit premises held by him. In fact, in his application, he has not stated about any such payment made by him. Therefore, on the basis of the evidence available on record and as held by both the Courts below, I have reached to a conclusion that for all purposes, there was implied agreement between the appellant and respondent No.4-elder brother and the family members on the aspect of transmission of the tenancy in respect of the suit premises. When the Courts below as also this Court on the basis of the evidence on record could come to the conclusion that there was implied agreement for transmission of the tenancy right in favour of respondent No.4, simply because there was no agreement in writing between the family members for transmission of tenancy right, it cannot be said that there was no transmission of the tenancy.
26. In view of the above, I do not find that any substantial question of law has arisen in this appeal for consideration of this Court. Accordingly, this appeal is required to be dismissed. Hence, the appeal is dismissed.
27. At this stage, learned advocate Mr. Hakim requests to suspend this judgment and order and to grant status quo in respect of the suit premises held by the appellant by pointing out that the appellant was already protected by earlier order dated 5.9.200, as quoted below :
“Order on Civil Application No. 10301 of 2006
2. Rule be made returnable in eight weeks.
3. Till next date of hearing, the appellant shall not be evicted from the suit premises in Execution Application No.58 of 2005, provided that within a period of 10 days from today, the appellant deposits costs awarded by the two courts and the damages equivalent to the rent to which the original plaintiff – decree holder would be entitled and also furnishes an undertaking and solvent security in sum of Rs.25,000.00 (Rupees Twenty Five Thousand only), that if the appeal is dismissed then without raising any further objection, the appellant shall handover the peaceful possession of the property to the respondents.
4. Let a copy of this order be served to the respondents along with the notice and the Executing Court be also informed about this order.”
28. This appeal was never admitted and remained pending at the notice stage right from 2006. However, when the appellant has remained under protection till date, it would be in the interest of justice to extend such protection in respect of the suit premises to enable the appellant to carry this matter to a higher forum. Accordingly, both the parties are directed to maintain the status- quo in respect of the suit premises held by the appellant for a period of four weeks from today.
(C.L. Soni,J.) an vyas