B. K. MEHTA, J. ( 1 ) THE following two questions have been referred to for our opinion:- 1 Whether the decision of the Division Bench in Nanumal Rajumal v. Lilaram Vensimal and Anr. (1977) 18 Guj. L. R. 858 is a good law in view of the decision of the Supreme Court in Damadilal and Others v. Parashram and Others (1976) 4 SCC 855 ? ( 2 ) IF a statutory tenant has also an estate and is heritable and transferable would it require a notice for determination of that estate as prescribed under sec. 106 of the Transfer of Property Act ? 2 The above two questions arise in the following circumstances:-THE deceased father of the plaintiff-landlords who are the petitioners before us filed H. R. P. suit No. 5218 of 1965 out of which Civil Revision Application No. 348 of 1975 arises in the Small Cause Court at Ahmedabad against the defendant-tenants who are the respondents herein for possession of the residential premises bearing municipal census Nos. 2926 and 2926/1 situate in Zaveriwad Kalupur Ahmedabad which were taken on lease by the deceased Ratilal Shah the father of respondents No. 1 to 4 and husband of respondent No. 5 in 1943-44 A. D. at a monthly rent of Rs. 21/including municipal taxes on the sole ground that the tenants were in arrears of rent to the tune of Rs. 609/for the period commencing from 1-7-63 to 30-11-1965 and have failed to pay the rent in arrears within one month of the notice to quit. The original tenant Ratilal Shah died in the year 1956 while the original plaintiff died during the pendency of the suit on April 5 1966 with the result that the) present petitioners were brought on record of the suit as heirs and legal representatives. ( 3 ) THE Small Cause Court dismissed the suit by its judgment and order of November 10 1968 since it was of the view that the case of the tenants fell within the terms of sec. 12 (3) (b) of the Bombay Rents Hotel Lodging and Boarding House Rates Control Act 1947 (hereinafter called the Bombay Rent Act) since there was a dispute between the landlords and the tenants about the standard rent of the premises in question. 12 (3) (b) of the Bombay Rents Hotel Lodging and Boarding House Rates Control Act 1947 (hereinafter called the Bombay Rent Act) since there was a dispute between the landlords and the tenants about the standard rent of the premises in question. The trial Court also found that the respondent-tenants have paid all the rents then due at the time of the first hearing of the suit and therefore they were not tenants in default. The tenancy in question according to the trial Court was not terminated since the notice was not served in the manner prescribed under sec. 106 of the Transfer of Property Act and therefore also the suit was not competent for want of notice. ( 4 ) THE Appellate Bench of the Small Cause Court confirmed this view of the trial Court in Civil Appeal No. 200 of 1969 and affirmed the order dismissing the suit by its judgment and order of January 18 1974 The plaintiff-landlords have therefore challenged the said order in this revision application. ( 5 ) B. K. Mehta J. before whom this revision application was called out for hearing upheld the two contentions urged on behalf of the plaintifflandlords viz. (i) that there was no necessity of serving statutory notice as the contractual tenancy had been determined by afflux of time and the defendant-tenants were holding the premises in question as statutory tenants only; and (ii) the trial Court as well as the Appellate Court committed a legal error inasmuch as they held that on the facts of the case sec. 12 (3) (b) of the Bombay Rent Act was attracted and the tenants were not in arrears since they had paid all the rents then due before the first hearing of the suit obviously bacause no dispute regarding standard rent was raised and pending between the landlords and the tenants. However the suit of the plaintiff-landlords would not be competent in view of the decision of a Division Bench of this Court consisting of D. A. Desai and A. M. Ahmadi JJ in Nanumals case (supra) which in effect ruled that suit for possession by a landlord would be premature against the heirs of a deceased tenant in absence of an agreement between them or decision by a Civil Court in appropriate proceedings as to which one amongst them is a tenant of given premises. It was therefore contended on behalf of the plaintiff-landlords that the decision of the Division Bench in Nanumals case (supra) was no more a good law in view of the decision of the Supreme Court in Damadilals case (supra) which held that statutory as well as contractual tenancy are heritable and all the heirs of the original deceased tenant would inherit the tenancy as the case may be. Having regard to this contention which raised the validity of the view of the Division Bench of this Court and also because the matter required further consideration the two questions set out above have been referred to us. ( 6 ) AT the time of hearing of these referred questions before us the matter was allowed to be argued from all possible angles since a number of similar matters where the right of a landlord to file suit against the heirs of deceased tenant has been questioned on the ground of the suit being premature in view of the decision of this Court in Nanumals case (supra) and also because it affected the rights of all the heirs of a deceased-tenant to agitate the question of standard rent by making miscellaneous application without the determination of the question who is the tenant? Mr. A. H. Mehta the learned Advocate for the petitioner in CRA 1089/76 has argued the question from all possible angles because the entire Civil Revision Application has been referred to the Full Bench. We have therefore heard the learned Advocates as if the entire dispute covered by the Division Benchs judgment in Damadilals case (supra) is open at large. A number of authorities Indian as well as English has been cited before us in support of various contentions main as well as subsidiary urged at the time of hearing. We have also permitted the learned Advocate representing the landlords or tenants in other revision applications where the same question is involved to intervene. We will refer to these decisions while dealing with the different contentions in support of which they were cited. We have also permitted the learned Advocate representing the landlords or tenants in other revision applications where the same question is involved to intervene. We will refer to these decisions while dealing with the different contentions in support of which they were cited. Broadly stated 3 questions arise before us for consideration:-1 Whether the decision of the Division Bench in Nanumals case (supra) is good law after the decision of the Supreme Court in Damadilals case (supra) ?2 If yes to what extent the ratio of the said decision is diluted?3 Whether the decision of the Division Bench in Nanumals case requires reconsideration in any view of the matter ? ( 7 ) IN order to answer the first question we will shortly refer to what Division Bench of this Court has laid down in Nanumals case. The Nanumal filed a suit for obtaining vacant possession of a house property situated at village Adipur in Kutch district on the sole ground that the two defendants Lilaram and Thakumal who were sons of original tenant Vensimal were in arrears of rent for a period of more than six months and they were not ready and willing to pay the rent within one month of the service of the statutory notice. The trial Court granted a decree for possession as prayed for under sec. 12 (3) (a) of the Bombay Rent Act. Original defendant No. 2 preferred an appeal against this eviction decree which was allowed by the District Court on the ground that the statutory notice terminating the tenancy as required by sec. 106 of the Transfer of Property Act was not served on defendant No. 2 with the result that the impugned decree was bad in law. However the eviction decree had become final against original defendant No. 1 since he had not preferred any appeal against it. The plaintiff recovered the possession of the premises by executing the said decree during the pendency of the appeal by defendant No. 2. The appellate decree was therefore challenged in Civil Revision Application preferred by the plaintiff. However the eviction decree had become final against original defendant No. 1 since he had not preferred any appeal against it. The plaintiff recovered the possession of the premises by executing the said decree during the pendency of the appeal by defendant No. 2. The appellate decree was therefore challenged in Civil Revision Application preferred by the plaintiff. A contention was urged before the learned Single Judge on behalf of the plaintiff in revision that the District Court was in error in dismissing the suit on the ground of want of notice since the notice to one of the joint tenants would be a notice to all because on i the death of the original tenant his heirs having inherited the tenancy 8 were joint tenant. It was also urged in the alternative on behalf of the plaintiff that on the facts of the case since the notice was addressed to both though served on one would be a good notice in law since both the brothers were staying together. In the opinion of the learned Judge since the question was of considerable importance he directed the matter to be placed before a larger Bench. The Division Bench consisting of D. A. Desai and A. M. Ahmadi JJ examined the width and scope of sec. 5 (c) (i) before reaching the aforesaid conclusion. In its opinion the question of heritability of tenancy assumed considerable importance after the advent of the Rent Restrictions Acts to ward off the hardships and inconveniences to which an evicted tenant is exposed due to acute shortage of accommodation in urban and semi-urban areas and agglomerations. The Division Bench therefore considered what is the nature of right of a statutory tenant socalled and following a decision of the Supreme Court in Anand Nivas (Pvt.) Lrd. v. Anandji Kalsanji A. I. R. 1964 SC 414 (V G. L. R. 111 held that a statutory tenant is no tenant at all since he has no estate or interest in the premises occupied by him and he enjoys merely protection of the statute after determination of the contractual tenancy in so far as he cannot be turned out till he pays the standard rent and permitted increases and performs other conditions of tenancy. In the opinion of the Division Bench if the protection granted to a statutory tenant is to be real and effective he should also be protected against the consequences arising after his death. Since a statutory tenancy is neither heritable nor transferable obviously because it is no estate and is merely a personal right the personal law of inheritance and succession would afford real protection to the heirs of the deceased statutory tenant. In the opinion of the Division Bench therefore the Legislature enacted the aforesaid two clauses which respectively deal with the residential and business premises. The Division Bench therefore was required to consider the various implications and aspects of the transmission of the tenancy prescribed under sec. 5 (11) (c) (i) only because it was concerned with the residential premises. Broadly four contentions were urged before the Division Bench in this context. They are (i) Does transmission take place in favour of all the members of the family residing with the deceased statutory tenant within three months immediately preceding his death ? If so whether they would be joint tenants or tenants in common? (ii) Whether on true construction and effect the words as may be decided in default of agreement under sec. S (11) (c) (i) of the Bombay Rent Act would imply agreement inter se between the members only or they take within their sweep agreement between the landlord and such members ? (iii) If the persons in whose favour transmission takes place are more than one whether they would be joint tenants or tenants in common ? and (iv) If they are tenants in common whether it is obligatory on the landlord to serve a statutory notice either under sec. 12 of the Bombay Rent Act or under sec. 106 of the Transfer of Property Act on all such persons before initiating action for ejectment ? The Division Bench considered the relevant provisions contained in sec. 5 (11) (c) (i) and (ii) of the Bombay Rent Act and a number of authorities Indian as well as English were cited before it. It laid down the following propositions:- (A) Section 5 (11) (c) (i) and (ii) cover not only the cases of statutory tenants but also the contractual tenants. 5 (11) (c) (i) and (ii) of the Bombay Rent Act and a number of authorities Indian as well as English were cited before it. It laid down the following propositions:- (A) Section 5 (11) (c) (i) and (ii) cover not only the cases of statutory tenants but also the contractual tenants. (B) Under the aforesaid two clauses that individual member agreed upon all the members residing with the deceased tenant at the time of his death and in case of failure of such agreement the individual member as determined by the Court would be a tenant. (C) In the event of the death of a tenant in possession of protected premises under the Bombay Rent Act it would be for the members of the tenants family who are qualified for transmission to communicate the name of a member as an agreed tenant. (D) In default of communication as stated in (c) above it is obligatory on the part of the landlord to call upon the members of the family of the deceased tenant residing with him to agree upon one individual from amongst themselves and name him as a tenant and if such a nomination is not made within reasonable time the landlord has to get it determined by the Court by appropriate proceedings. (E) Untill such agreement as contemplated in (c) or (d) above as the case may be or determination by the Court as contemplated in (d) above as to who would be a tenant no proceedings can be taken by the landlord against the members of the family of the deceased tenant under the Bombay Rent Act since they would be premature till this question about who is a tenant is decided by agreement or decision of the Court. The Division Bench rendered its aforesaid decision on January 26 1977 ( 8 ) HOWEVER the decision of the Supreme Court in Damadilals case which was pronounced on May 7 1976 was unfortunately not pointed out to the Division Bench of this Court though the three Judges Bench of the Supreme Court in Damadilals case could not persuade itself to accept as a general proposition of law enunciated in Anand Nivass case (supra) while rejecting the English view that the statutory tenant has a personal right of protection only and has no estate and therefore it is not heritable. In the present revision it was urged before the learned Single Judge that since the view of the Supreme Court in Anand Nivass case that the statutory tenancy is not an estate and therefore not heritable does not hold good in view of this latter decision of the Supreme Court in Damadilals case the decision of this Court in Nanumals case which is founded on the view in Anand Nivass case requires to be reconsidered from all the angles of the problem and the learned Single Judge therefore placed the matter before the Honourable Chief Justice for referring to a larger Bench. We have therefore to consider as to what the Supreme Court decision decided in Damadilals case. 9 In Damadilals case a three Judges Bench of the Supreme Court was concerned with a question whether the heirs of original deceasedtenants could be brought on record in their place and could prosecute the proceedings before the Rent Court. The plaintiff-landlords had prayed for eviction of the original defendant-tenants from the non-residential premises on two grounds (i) default in payment of rent and (ii) bona fide requirement of the plaintiffs after determining the tenancy. The trial Court dismissed the suit holding against the plaintiffs on both the grounds. The first Appellate Court reversed the finding of the trial Court on the question of bona fide requirement though it affirmed its finding on the ground of default in payment of rent. A decree for eviction was therefore passed. The original defendant-tenants preferred a second appeal to the High Court. During the pendency of the appeal both the defendants died with the result that a contention was urged on behalf of the landlord that the appeal abated since the right of a statutory tenant under the Madhya Pradesh Accommodation Act was merely a personal right which was not heritable and could not have devolved upon their heirs. The High Court negatived this contention and allowed he appeal restoring the judgment of the trial Court which had dismissed the suit. In appeal at the instance of the plaintiff-landlords one of the contentions inter alia regarding abatement of the appeal was reiterated. Gupta J. . The High Court negatived this contention and allowed he appeal restoring the judgment of the trial Court which had dismissed the suit. In appeal at the instance of the plaintiff-landlords one of the contentions inter alia regarding abatement of the appeal was reiterated. Gupta J. . speaking for the Court referred to the earlier decision of the Supreme Court in Anand Nivass ease (supra) and observed as under in paragraph 11 of his judgment:-"we find it difficult to appreciate how in this country we can proceed on the basis that a tenant whose contractual tenancy has determined but who is protected against eviction by the statute has no right of property but only a personal right to remain in occupation without ascertaining what his rights are under the statute. The concept of a statutory tenant having no estate or property in the premises which he occupies is derived from the provisions of the English Rent Acts. But it is not clear how it can be assumed that the position is the same in this country without any reference to the provisions of the relevant Stature. Tenancy has its origin in contract. There is no dispute that a contractual tenant has an estate or property in the subject-matter of the tenancy and heritability is an incident of the tenancy. It cannot be assumed however that with the determination of the tenancy the estate must necessarily disappear and the statute can only preserve his status of irremovability and not the estate he had in the premises in his occupation. It is not possible to claim that the sanctity of contract cannot be touched by legislation. It is therefore necessary to examine the provisions of the Madhya Pradesh Accommodation Control Act 1961 to find out whether the respondents precedessors-in-interest retained a heritable interest in the disputed premises even after the termination of their tenancy. (Emphasis supplied by us)"the Supreme Court thereafter referred to the relevant provision of the definition of word tenant contained in sec. It is therefore necessary to examine the provisions of the Madhya Pradesh Accommodation Control Act 1961 to find out whether the respondents precedessors-in-interest retained a heritable interest in the disputed premises even after the termination of their tenancy. (Emphasis supplied by us)"the Supreme Court thereafter referred to the relevant provision of the definition of word tenant contained in sec. 2 (i) of the Madhya Pradesh Accommodation Control Act 1961 which read as under:-" a person by whom or on whose account or behalf the rent of any accommodation is or but for a contract express or implied would be payable for any accommodation and includes any person occupying the accommodation as a sub-tenant and also any person continuing in possession after the termination of his tenancy whether before or after the commencement of this Act; but shall not include any person against whom any order or decree for eviction has been made". The Supreme Court found that the definition placed a person in possession after his tenancy has been determined at par with a contractual tenant and unless the context indicated the intention otherwise under the Act the incidence of both the tenancies contractual and statutory socalled must be considered to be the same. In the context of the definition the Supreme Court was of the opinion that a tenant could not be held to have a personal right merely to retain his interest in the premises. Section 14 of the Madhya Pradesh Accommodation Control Act 1961 was relied upon in support of its view since the Court did not find anything to suggest that it did not apply to all tenants as defined in sec. 2 (i ). In the opinion of the Supreme Court in England the statutory tenants right to sublet is derived form the specific provisions of the Act conceding this right to him while under the Madhya Pradesh Accommodation Control Act 1961 and similar other Indian statutes the right flows from the status as a tenant. 2 (i ). In the opinion of the Supreme Court in England the statutory tenants right to sublet is derived form the specific provisions of the Act conceding this right to him while under the Madhya Pradesh Accommodation Control Act 1961 and similar other Indian statutes the right flows from the status as a tenant. A Special Bench decision of the Calcutta High Court in Krishna Prasad Bose v. Sarajubala Dasi 65 Cal WN 293 where Bachawat J spoke for the Court while considering a similar question in the context of West Bengal Premises Rent Control (Temporary Provisions) Act 1950 was referred to in Damadilals case and the following passage made therein was quoted with approval:-"the Rent Control and Tenancy Acts create a special world of their own. They speak of life after death. The statutory tenancy arises phoenix-like out of the ashes of the contractual tenancy. The contractual tenant may die but the statutory tenant may live long thereafter. The statutory tenant is an ex-tenant and yet he is a tenant"the Supreme Court therefore was of the opinion that the concept of statutory tenancy under the English Rent Act and under the Indian of statutes like the Madhya Pradesh Accommodation Control Act 1961 rested on different foundations. It therefore ruled that the original deceased-tenants had heritable interest in the premises and their heirs must therefore be brought on record for purposes of prosecution of the appeal. The following propositions emerge from the decision of the Supreme Court in Damadilals case:- (A) A tenant whose tenancy is determined can continue in possession of the premises under the protection of a rent statute and can be conveniently described as a statutory tenant. (B) The estate or interest which a contractual tenant has under the contractual tenancy does not disappear with its termination. (a) A Rent statute not only protects a statutory tenant against the removability but may also protect and preserve his estate or interest in the premises. (D) Inasmuch as the Madhya Pradesh Accommodation Control Act 1961 treats a person continuing in possession after determination of his tenancy as a tenant till a decree or an order of eviction has been made the incidence of such a tenancy is the same as that of a contractual tenancy unless the other provisions indicate otherwise. (D) Inasmuch as the Madhya Pradesh Accommodation Control Act 1961 treats a person continuing in possession after determination of his tenancy as a tenant till a decree or an order of eviction has been made the incidence of such a tenancy is the same as that of a contractual tenancy unless the other provisions indicate otherwise. (A) The right of a statutory tenant in England to sublet flows from the relevant Acts while in Indian statutes similar to Madhya Pradesh Accommodation Control Act 1961 it flows from its status as a tenant. ( 9 ) THE pertinent question which therefore arises is whether the principle enunciated in the decision of Anand Nivass case (supra) is modified or varied. In Anand Nivass case (supra) the Supreme Court was concerned with the question whether a tenant whose tenancy has been terminated has any right to sublet the premises under the Bombay Rent Act as amended in 1959 ? The majority view of the Court was expressed by Shah J who spoke for himself and on behalf of Hidayatullah J while the third Judge Sarkar J delivered a dissenting opinion. It was observed in the majority view that a person on his contractual tenancy being determined is entitled to retain his possession as long as he observes and performs the conditions of tenancy not inconsistent with the Act and pays standard rent and permitted increases. Such a person has no interest in the property and consequently therefore. no estate which he can sublet assign or transfer. In the dissenting opinion Sarkar J held that the word tenant as defined in the Bombay Rent Act took within its sweep contractual as well as statutory tenant and the latter has the same power to sublet as the former since the Bombay Rent Act has undoubtedly created a right in such a tenant to continue in occupation of the property which he can always transfer. ( 10 ) BEFORE we deal with the question which we have posed hereinabove whether the ratio of Anand Nivass case (supra) is varied or modified we may shortly refer to another judgment of a Division Bench of two Judges of the Supreme Court in Jagdish Chander Chatterjee and Others v. Shri Sri Kishan and Another (1972) 2 SCC 461 which applied the principle laid down in Anand Nivass case The question which arose for consideration in Jagdish Chanders case (supra) was whether on death of a statutory tenant his heirs succeeded to the tenancy so as to claim protection of the Rajasthan Premises (Control of Rent and Eviction) Act 1950 In that case during the pendency of second appeal at the instance of the landlord against the judgment of the first Appellate Court reversing the judgment of the trial Court and dismissing the suit for eviction on the ground of bona fide requirement of the landlord the tenant died. His heirs and legal representatives were brought on record. It was contended on behalf of the landlord in second appeal that the protection given by the Rajasthan Premises (Control of Rent and Eviction) Act 1950 was personal to the statutory tenant and on his death it was no longer necessary for the landlord to show that he required the premises bona fide and reasonably and was entitled to eviction decree on showing that the contractual tenancy was validly determined. Palekar J. speaking for the Court referred to the definition of word tenant given in sec. 3 (vii) of the Rajasthan Act which provided as under:-" Unless there is anything repugnant in the subject or contexttenant means the person by whom rent is. or but for a contract express or implied would be payable for any premises and includes any person holding or occupying the premises as a sub-tenant or any person continuing in possession after the termination of a tenancy in his favour otherwise than under the provisions of the Act". or but for a contract express or implied would be payable for any premises and includes any person holding or occupying the premises as a sub-tenant or any person continuing in possession after the termination of a tenancy in his favour otherwise than under the provisions of the Act". THE Supreme Court held that when the original tenant died he was only a statutory tenant with merely a personal right to remain in possession till the eviction decree is passed under the provisions of the Rajasthan Rent Act and the heirs were incapable of inheriting any estate or interest in the original tenancy since there was none and as they were not within the definition of word tenant under the said Act they could not in their own right claim the protection of the said Act. ( 11 ) IT has been strenuously urged on behalf of the petitioner-landlords that the basic view pronounced in Anand Nivass case (supra) about the status of a statutory tenant rests on the assumption that on determination of a contractual tenancy a person continuing in possession has only a personal right of irremovability protected under sec. 12 (1) of the Bombay Rent Act because it recognises his right to remain in possession so long as he pays and is ready and willing to pay the standard rent and permitted increases and performs the other conditions of the tenancy. He has no right to enforce the terms and conditions of the original tenancy after it is determined. This view about the status of a statutory tenant under the English Act namely Increase of Rent and Mortgage Interest (Restriction) Act 1920 and pronounced in Solomon v. Orwell (1954) 1 All ER 874 was assumed to be valid and good under the Indian statutes without considering as to what is the position under the relevant provisions of a given statute. In submission of the learned Advocate for the plaintiff-landlords in order to determine whether a statutory tenant has estate or interest in the premises one has to refer to the provisions of the relevant statute governing a given case as held by the Supreme Court in Damadilals case. It was emphasised by the learned Advocate for the plaintiff-landlords that the material portion of the definition of word tenant in sec. It was emphasised by the learned Advocate for the plaintiff-landlords that the material portion of the definition of word tenant in sec. 5 (11) of the Bombay Rent Act as in force in Gujarat is in pari materia with the definition in the Madhya Pradesh Accommodation Control Act 1961 since every person remaining after determination of the lease in possession of the premises is included in the definition of the term tenant in the Bombay Rent Act as was the position under the Madhya Pradesh Accommodation Control Act with which the Supreme Court was concerned in Damadilals case. ( 12 ) WE are of the opinion that reading of the decision in Anand Nivass case by the learned Advocate for the plaintiff-landlords is not wholly justified. The majority opinion referred to the definition of word tenant in sec. 5 (11) and after analysing the main enactment as well as each of the clauses of the said section held that having regard to the plurality of its meaning the sense in which the expression is used in different sections and even clauses must be ascertained from the context of the scheme of the Act the language of the provision and the object intended to be served thereby. We are further of the opinion that the definition of the word tenant under the Bombay Rent Act as is in force in Gujarat is materially different from that under the Madhya Pradesh Accommodation Control Act and similar other statutes. The majority opinion in Anand Nivass case has analysed this plurality of the meaning of word tenant in the following terms:-"the expression tenant in the different clauses is defined to mean a contractual tenant or a statutory tenant or with In the principal definition the expression tenant means only a person who is a contractual tenant because rent is payable by a contractual tenant and not by a statutory tenant. By cl. (a) sub-tenants and other persons who have derived title under a tenant before the commencement of the Ordinance III of 1959 would be regarded as tenants. These would be sub-lessees transferees or assignees of contractual tenants. Similarly by cl. By cl. (a) sub-tenants and other persons who have derived title under a tenant before the commencement of the Ordinance III of 1959 would be regarded as tenants. These would be sub-lessees transferees or assignees of contractual tenants. Similarly by cl. (aa) persons to whom interest in premises has been transferred in virtue of a notification issued by the State Government permitting in any area the transfer of interest in premises held under such leases or class of leases and to such extent as may be specified in notification would be transferees of contractual tenants. Clause (b) contemplates a tenant holding over and a statutory tenant alike; it takes in a person remaining in occupation with or without the assent of the landlord when the premises were let to him or to his predecessor before the commencement of the Ordinance. Clause (c) includes in the definition the members of the family of a tenant statutory or contractual residing with him at the time of his death as may be decided in default by agreement by the Court. Having regard to the plurality of its meaning the sense in which the expression is used in different sections and even clauses must be ascertained from the context of the scheme of the Act the language of the provision and the object intended to be served thereby". IT is no doubt true that the meaning of word tenant in the main enactment/and in clauses (a) (aa) and (b) of sec. 5 (11) of the Bombay Rent Act appears to be akin to that given in the Madhya Pradesh Act. However the intended definition of the word tenant so as to take within its sweep the transmitted tenancy in favour any member of the family of the deceased-tenant residing with him at the time of his death as provided in clause (c) of sec. 5 (11) of the Bombay Rent Act is not to be found in the corresponding definition in the Madhya Pradesh Act. What is the effect of clause (c) will be required to be considered which we shall do at the appropriate place. 5 (11) of the Bombay Rent Act is not to be found in the corresponding definition in the Madhya Pradesh Act. What is the effect of clause (c) will be required to be considered which we shall do at the appropriate place. Suffice it to say for the present discussion that the definition of the word tenant under the Bombay Rent Act and the Madhya Pradesh Accommodation Control Act cannot be said to be in pari materia as contended by the learned Advocate for the plaintifflandlords so that it can be urged that the ratio of Damadilals case has completely reversed the position settled by Anand Nivass case. The obvious reason for our disagreement is that the question whether a statutory tenant socalled has the estate or interest which is heritable or transferable can be resolved only by reference to the provisions of a given statute as held in Damadilals case (supra) and cannot be answered merely on the basis of the principles so far deduced from the legal position as established in English law. It must be however conceded in fairness to the learned Advocate for the plaintiff-landlords that it cannot be ruled out of hand whether the statutory tenancy is heritable or not without reference to the relevant statute. The Division Bench of this Court in Nanumals case (supra) therefore erred in so far as it proceeded as if it is a settled legal position that the statutory tenancy is not heritable without reference to the relevant provisions of the Bombay Rent Act. ( 13 ) THE effect of the decision of Damadilals case came up for consideration before a Full Bench of the Delhi High Court in Haji Mohammed Din and Another v. Shri Narain Dass 1979 (1) All India Rent Control Journal 129 in the context of the following facts. The appellants before the Delhi High Court were heirs of the tenants of the premises let out for non-residential purposes. The tenancies were terminated before the deaths of the original tenants. The decrees for eviction were passed against the heirs on the ground that they were not tenants under the Delhi Rent Control Act since the protection under the said Rent Act was not available to the heirs of the statutory tenants whose personal rights were inheritable following the decision of the Supreme Court in Anand Nivass case and J. C. Chatterjees case (supra ). The benefit of the amended definition of the word tenant was not available to the appellants since it was effective from 1 December 1975 One of the questions referred to the Full Bench was whether the decision in Damadilals case would assist the cause of the appellant in preference to the majority decision in Anand Nivass case and J. C. Chaterjees case (supra) while construing the unamended definition of the word Tenant under the Delhi Rent Control Act 1958 The definition of word tenant was amended by sec. 2 of the Delhi Rent Control (Amendment) Act 1976 which was brought into force from December 1 1975 so as to include inter alia such of the heirs as mentioned in clause (iii) of the said section subject to the order of succession and conditions specified in Explanations 1 and 2 respectively. The unamended definition of word tenant under the principal Act was in pari materia with that of the Madhya Pradesh Accommodation Control Act The Full Bench was of the opinion that the decision of the Damadilals case was preferable to the previous decision in Anand Nivass case because in the first place the definitions in the Bombay Rent Act and the Madhya Pradesh Accommodation Control Act were not quite the same; secondly the decision in Damadilals case is to be preferred because it is the latest in point of time which was rendered after consideration of the decision is Anand Nivass case (supra ). The Full Bench therefore held that the unamended Delhi Rent Control Act would have conferred upon an extenant the status of a tenant who is on par with that of a contractual tenant and consequently the interest of such a person to remain in occupation after his tenancy is terminated is heritable. The amended definition however in the opinion of the Full Bench of the Delhi High Court ex-facie introduced an element of limited heritability in relation to a certain class of tenancies and it therefore answered that after the death of the person continuing in possession after the determination of his tenancy the legal representatives had the limited right of inheritance as given in the definition of tenant in sec. 2 (1) as retrospectively amended by the amending Act of 1976. 2 (1) as retrospectively amended by the amending Act of 1976. ( 14 ) WE are in respectful agreement with the view of the Full Bench of the Delhi High Court that the definitions in the Bombay Rent Control Act and the Madhya Pradesh Accommodation Control Act were not in pari materia and therefore the ratio of the decision in Damadilals case would not completely reverse the position settled by Anand Nivass case and we will be required to consider whether the statutory tenancy is heritable like the contractual tenancy by all the heirs of a deceased tenant or by limited class as was the position before the Full Bench in Haji Mohammed Din and Others v. Shri Narain Dasss case (supra ). ( 15 ) THIS question shall have to be answered by reference to the provisions contained in the Bombay Rent Act. Before we proceed to consider the relevant provisions of the Bombay Rent Act for this purpose we must refer to the latest decision of seven Judges Bench of the Supreme Court in V. Dhanpal Chettier v. Yasodai Ammal 1979 (2) All India Rent Control Journal 358 (AIR 1979 S. C. 1745) rendered on August 23 1979 under which the appeal at the instance of tenant was required to be heard by a larger Bench of the Supreme Court consisting of seven Judges in order to resolve the cleavage of opinion between various High Courts in India as also between several decisions of the Supreme Court on the question whether there is any legal obligation to determine the tenancy by a notice as provided under sec. 106 of the Transfer of Property Act for the purposes of obtaining a decree for eviction against a tenant under any State Rent Control Act. 106 of the Transfer of Property Act for the purposes of obtaining a decree for eviction against a tenant under any State Rent Control Act. Untwalia J. speaking on behalf of the unanimous Court ruled that such a notice determining the tenancy is neither compulsory nor obligatory and once the liability to be evicted is incurred by a tenant he cannot turn round and say that the contractual lease has not been determined because the jural relationship of a lesser and a lessee will come to an end only on passing of an order or a decree of eviction and till then a tenant continues to be a tenant under the extended definition of the said term in the various State Rent Acts even though the contractual tenancy might have been determined by a notice under sec. 106 of the Transfer of Property Act. A question might well arise in view of the far reaching consequences of this decision of the Supreme Court in Dhanpals case (supra) whether the well known and recognized distinction between a contractual tenancy and a statutory tenancy has been completely erased. It may be profitable therefore to advert to the various permises of the reasoning which has impressed the seven Judges Bench of the Supreme Court in Dhanpals case (supra ). The following premises have been emphasised by the Full Bench to reach to the conclusion it did:- (A) No notice as envisaged under sec. III (g) of the Transfer of Property Act which provides for forfeiture of the tenancy is legally obligatory when the forfeiture takes place under State Rent Acts of a right of a tenant to continue in occupation of the property save and except where a specific provision is made in that behalf for eviction on the ground of arrears of rent such as the one under the Bombay Rent Act or the West Bengal Rent Act. (B) Whereas the right of a lessor to obtain possession under the Transfer of Property Act can arise only on the determination of the tenancy as provided under sec. 111 thereof the right to possession of a lessor under the State Rent Act can only arise when the grounds on which a tenant can be evicted are established. Consequently therefore notice for determination of contractual tenancy is obligatory under sec. III (h) if a tenancy is not determined otherwise as provided under sec. 111 thereof the right to possession of a lessor under the State Rent Act can only arise when the grounds on which a tenant can be evicted are established. Consequently therefore notice for determination of contractual tenancy is obligatory under sec. III (h) if a tenancy is not determined otherwise as provided under sec. III (a) to (g ). However the question of determination of a tenancy by notice would not arise under State Rent Acts which either in one language or the other has provided that a tenant can be evicted only on the grounds prescribed therein. (C) The jural relationship between a landlord and a tenant as defined in the Rent Act would come to an end only when an order or a decree of eviction is made and not on determination of a tenancy by a notice since according to the definition of word tenant under the State Rent Acts a person continuing in possession even after determination of the tenancy is included in the meaning of the word tenant. (D) The determination of a lease in accordance with the Transfer of Property Act is unnecessary and mere surplusage. (E) If protective umbrella is extended by State Rent Acts against the eviction to a tenant who is ready and willing to pay the amount of standard rent and permitted increases and his observing and performing the other conditions of tenancy consistent with the Act it is wholly unnecessary to import the contractual law engrafted in the Transfer of Property Act to the landlords seeking eviction under the Rent Acts. ( 16 ) THE following passages from Dhanapals case highlight the above premises :-"we only observe here that when the State Rent Acts provide under what circumstances and on what grounds a tenant can be evicted it does not provide that a tenant forfeits his right to continue in occupation of the property and makes himself self liable to be evicted on fulfilment of those conditions. Only in those State Acts where a specific provision has been made for the giving of any notice requiring the tenant either to pay the arrears of rent within the specified period or to do any other thing such as the Bombay Rent Act or the West Bengal Rent Act no notice in accordance with clause (g) is necessary. . . . . . . . . . . WITHOUT adverting to the effect and the details of waiver of forteiture waiver of notice of quit relief against forfeiture for non-payment of rent etc. as provided for in secs. 112 to 114a of the Transfer of Property Act suffice it to say that under the said Act no ground of eviction of a tenant has to be made out once a contractual tenancy is put to an end by Service of a valid notice under sec. 106 of the Transfer of property Act. Until and unless the lease is determined the lessee is entitled to continue in possession. Once it is determined it becomes open to the lessor to enforce his right of recovery of possession of the property against him In such a situation it was plain and clear that if the lease of the immovable property did not stand determined under any of the clauses (a) to (g) of sec. 111 a notice to determine it under sec. 106 was necessary. But when under the various State Rent Acts either in one language or the other it has been provided that a tenant can be evicted on the grounds mentioned in certain section of the said Acts then how does the questions of determination of a tenancy by notice arise ? If the State Rent Act requires the giving of a particular type of notice in order to get a particular kind of relief such a notice will have to be given. Or it may be that a landlord will be well advised by way of abundant precaution and in order to lend additional support to his case to give a notice to his tenant intimating that he intended to file a suit against him for his eviction on the ground mentioned in the notice. But that is not to say that such a notice is compulsory or obligatory or that it must fulfil all the technical requirements of sec. 106 of the Transfer of Property Act. Once the liability to be evicted is incurred by tenant he cannot turn round and say that the contractual lease has not been determined. But that is not to say that such a notice is compulsory or obligatory or that it must fulfil all the technical requirements of sec. 106 of the Transfer of Property Act. Once the liability to be evicted is incurred by tenant he cannot turn round and say that the contractual lease has not been determined. The action of the landlord in instituting a suit for eviction on the ground mentioned in any State Rent Act will be tantamount to an expression of his intention that he does not want the tenant to continue as his lessee and the jural relationship of lessor and lessee will come to an end on the passing of an order or a decree for eviction. Untill then under the extended definition of the word tenant under State various State Rent Act the tenant continues to be a tenant even though. the contractual tenancy has been determined by giving of a valid notice under sec. 106 of the Transfer of Property Act. In many cases the distinction between a contractual tenant and a statutory tenant was alluded to for the purpose of elucidating some particular aspects which cropped up in a particular case. That led to the criticism of that expression in some of the decisions. Without detaining ourselves on this aspect of the matter by any elaborate discussion in our opinion it will suffice to say that the various State Rent Control Acts make a serious encroachment in the field of freedom of contract. It does not permit the landlord to snap his relationship with the tenant merely by his act of serving a notice to quit on him. Inspite of the notice the law says that he continues to be a tenant and he does so enjoying all the rights of a lessee and is at the same time denied to be under all the liabilities such as payment of rent etc in accordance with the law. (Emphasis supplied by us)" ( 17 ) THE Supreme Court thereafter referred to the various State Rent Control Acts such as Tamil Nadu Rent Act Bombay Rent Control Act Kerala Lease and Rent Control Act East Punjab Urban Rent Restriction Act and Madhya Pradesh and Andhra Pradesh State Rent Acts etc. The observation made by the Supreme Court to the provisions of the Bombay Rent Act is illuminating. The observation made by the Supreme Court to the provisions of the Bombay Rent Act is illuminating. Untwalia J. observed as under while adverting to the provisions of the Bombay Rent Act. "adverting to the provisions of the Bombay Rents Hotel and Lodging House Rents Control Act 1941 it would be found from the definition of sec. 5 that any person remaining in the building after the determination of the lease is a tenant within the meaning of clause (11 ). Sec. 12 of the Bombay Act says that the landlord shall not be entitled to the recovery of possession of any premises so long as the conditions mentioned in sub-sec. (1) are fulfilled nor any suit for recovery of possession shall be instituted by a landlord against a tenant on th_ happening of the events mentioned in sub sec. (2) untill the expiration of one month next after the notice is served on the tenant in the manner provided in sec. 106 of the Transfer of Property Act as required by the said sub-section. Sec 13 provides that a landlord may recover possession on certain grounds. Is it not plain then that on the happenings of the events or on the fulfilment of the conditions mentioned in secs. 12 and 13 etc. the landlord becomes entitled to recover possession from the tenant otherwise not. It will bear repetition to say that under the Transfer of Property Act in order to entitle the landlord to recover possession determination of the lease is necessary as during its continuance he could not recover possession while under the State Rent Act the landlord becomes entitled to recover possession only on the fulfilment of the rigour of law provided therein. Otherwise not. He cannot recover possession merely by determination of tenancy Nor can he be stopped from doing so on the ground that he has not terminated the contractual tenancy. Under the State Rent Control Acts the concept of the contractual tenancy has lost much of its significance and force. (Emphasis supplied by us)" ( 18 ) THE Supreme Court thereafter referred to its different decisions under the different Acts where it has taken a view that determination of contractual tenancy is a prerequisite for initiating eviction proceedings under State Rent Control Act. (Emphasis supplied by us)" ( 18 ) THE Supreme Court thereafter referred to its different decisions under the different Acts where it has taken a view that determination of contractual tenancy is a prerequisite for initiating eviction proceedings under State Rent Control Act. Before referring to the different decisions the Full Bench of the Supreme Court referred pertinently to the decision of a Constitution Bench of the Supreme Court in Rai Brij Raj Krishna and Another v. S. K Shaw and Brothers 1951 0 SCR 145 where the Constitution Bench in a slightly different context dealt with sec. 11 of the Bihar Rent Act and observed as under:-"sec. 11 is a self-contained section and it is wholly unnecessary to go outside the Act for determining whether a tenant is liable to be evicted or not and under that conditions he can be evicted. It clearly provides that a tenant is not liable to be evicted except on certain conditions and one of the conditions laid down for the eviction of a month to month tenant is non-payment of rent The Act thus sets up a complete machinery for the investigation of those matters upon which the jurisdiction of the Controller to order eviction of a tenant depends and it expressly makes his order final and subject only to the decision of the Commissioner". IN that context it referred to the decision of the Supreme Court in Bhaiya Punjalal Bhagwandin v. Dave Bhagwatprasad Prabhuprasad (1963) 3 SCR 312 AIR 1963 SC 120 (IV G. L. R. 413 (S C.)) which was a case from this Court under the Bombay Rent Control Act. The passage from the judgment of Raghubar Dayal J who spoke for the Division Bench ruled that to remove the bar on the landlords right to evict a tenant it was necessary for him to serve with a notice determining his tenancy and also serving him with a notice under sub-sec. (2) of sec. 12 of the Bombay Rent Act. Untwalia J. speaking for the Court in Dhanpals case (supra) with reference to this ruling of Raghubar Dayal J. observed as under. "as we have pointed out above this was necessary under the Transfer of Property Act as mere termination of the lease entitled the landlord to recover possession. (2) of sec. 12 of the Bombay Rent Act. Untwalia J. speaking for the Court in Dhanpals case (supra) with reference to this ruling of Raghubar Dayal J. observed as under. "as we have pointed out above this was necessary under the Transfer of Property Act as mere termination of the lease entitled the landlord to recover possession. But under the Rent Control Acts it becomes an unnecessary technicality to insist that the landlord must determine the contractual tenancy. It is of no practical use after so many restrictions of his right to evict the tenant have been put. The restricted area under the various State Rent Acts has done away to a large extent with the requirement of the law of contract and the Transfer of Property Act. If this be so why unnecessarily illogically and unjustifiably a formality of terminating the contractual lease should be insisted upon ? In Bhaiya Punjalals case if we may say so with very great respect the principle of law laid down by this Court in Rai Brij Raj Krishnas case (supra) and by the Punjab High Court in the Hem Chands case (AIR 1955 1955 Pun. 36) was wrongly distinguished. . . . . . . . . . . . . . . THE difference in the wordings of sec. 11 of the Bihar Act and sec. 12 of the Bombay Act does not justify the conclusion that the provisions of the Transfer of Property Act have not been overridden by sec. 12 of the Bombay Act reading it with sec. 13 etc. This was the ground given for distinguishing Hem Chands case also by erroneously pointing out the distinction between sec. 13 (1) of the Delhi and the Ajmer Merwara Rent Control Act 1952 and the Bombay Act. In our considered judgment Bhaiya Punjalals case was not correctly decided". ( 19 ) THE Full Bench thereafter referred its another decision in Vora Abbasbhai Ali Mohomed v. Haji Gulamnabi Haji Safibhai (1964) SCR 157 = AIR 1964 SC 1341 (V G. L. R. (S. C.)) which was also a case from this Court under the Bombay Rent Act where Shah J speaking for the Court referred to sec. ( 19 ) THE Full Bench thereafter referred its another decision in Vora Abbasbhai Ali Mohomed v. Haji Gulamnabi Haji Safibhai (1964) SCR 157 = AIR 1964 SC 1341 (V G. L. R. (S. C.)) which was also a case from this Court under the Bombay Rent Act where Shah J speaking for the Court referred to sec. 5 (11) (b) and observed that the said clause did not grant a right to evict a contractual tenant without determination of the Contractual tenancy since the protection from eviction is claimable by a tenant even after determination of the contractual tenancy so long as he paid or was ready and willing to pay the standard rent and permitted increases and observed and performed the other conditions of tenancy which may be consistent with the provisions of the Act. The Full Bench in that view of the matter made a significant observation as under:-"in our view if protection from eviction is claimable by the tenant even after determination of the contractual tenancy then why import the contractual law engrafted in The Transfer of Property Act for seeking eviction of the tenant "? ( 20 ) THE Full Bench thereafter ruled that the Constitution Bench in Mangilal v. Suganchand Rathi (1964) 5 SCR 239 = AIR 1965 SC 101 did not decide correctly when it held that a notice is essential for bringing to an end the relationship of landlord and tenant under the Madhya Pradesh Rent Act 1955 The Full Bench thereafter dissented and distinguished its decision in Manujendra Dutt v. Purendu Prosad Roy Chowdhry and others (1967) 1 SCR 475 which was a case arising under the Calcutta Thika Tenancy Act 1949 and observed that it is not correct to say that sec. 106 of the Transfer of Property Act providing for the termination of lease either by the lessor or lessee by giving requisite notice is an extra protection against eviction. The Full Bench thereafter made the following important observation in that context :-"the purpose of this provision is merely to terminate the contract which the overriding Rent Ads do not permit to be terminated. The Full Bench thereafter made the following important observation in that context :-"the purpose of this provision is merely to terminate the contract which the overriding Rent Ads do not permit to be terminated. (Emphasis supplied by us)" ( 21 ) THE Full Bench thereafter referred to its decision in Puwasda Venkateswara Rao v. Chidamana Vankata Ramana (1976) 3 SCR 551 where the Court was concerned with the question whether notice to quit was necessary for seeking an order of eviction under the Andhra Pradesh Building (Lease Rent and Eviction) Control Act 1950 The Division Bench of the Andhra Pradesh High Court followed its earlier decision in Ullipamma and Others v. S. Mohan Rao and Others for taking the view that a notice under sec. 106 of the Transfer of Property Act was not necessary. The earlier decision of the Andhra Pradesh High Court in Ullipammas case (supra) was approved by the Supreme Court not because there was a special provision under the Andhra Pradesh Act but because a tenant continuing in possession after the termination of the contractual tenancy and untill an eviction order is passed against him continues on the same terms and I conditions as before and he cannot be evicted unless a ground is made out for his eviction according to the state Rent Act. (Emphasis supplied by us ). The Full Bench thereafter referred to its latest decision in Sardarilal Vishwanath and Others v. Pritam Singh (1979) 1 SCR 111 where a Division Bench of the Supreme Court has taken the view that since the contractual tenancy was determined by efflux of time no notice for terminating it is requited before initiating the eviction proceedings under the Rent Act. The Full Bench made a very pertinent observation in this behalf to suggest that there is practically no difference between a contractual tenancy and a statutory tenancy when one considers the question under the Rent Control Acts. The said observation reads as under. The Full Bench made a very pertinent observation in this behalf to suggest that there is practically no difference between a contractual tenancy and a statutory tenancy when one considers the question under the Rent Control Acts. The said observation reads as under. " If we were to agree with the view that determination of lease in accordance with the Transfer of Property Act is a condition precedent to the starting of a proceeding under the State Rent Act for eviction of the tenant we could have said so with respect that the view expressed in the above passage is quite correct because there was no question of determination of the lease again once it was determined by efflux of time. But on the first assumption we have taken a different view of the matter and have come to the conclusion that determination of a lease in accordance with the Transfer of Property Act is unnecessary and a mere surplusage because the landlord cannot set eviction of the tenant even after such determination The tenant continues to be so even thereafter". ( 22 ) THE passages which we have set out above pointedly indicate that under State Rent Control Acts the concept of contractual tenancy has lost much of its significance and force and that the restricted area under the various State Rent Acts has done away to a large extent with the requirement of the Law of Contract and Transfer of Property Act. The sum total of these observations is that having regard to the definition of word tenant where a person continuing in occupation after determination of contractual tenancy with or without the assent of the landlord a person continuing in occupation accordingly is entitled to continue in occupation on the same terms and conditions as before till an order of eviction is made against him under the relevant provisions of a State Rent Act. In our opinion so far as the restricted area under the State Rent Acts is concerned the distinction between a contractual tenancy and a statutory tenancy is done away with and the extent of the tenancy under the State Rent Control Acts would be the same irrespective of the fact whether the contractual tenancy subsists or is terminated. In our opinion so far as the restricted area under the State Rent Acts is concerned the distinction between a contractual tenancy and a statutory tenancy is done away with and the extent of the tenancy under the State Rent Control Acts would be the same irrespective of the fact whether the contractual tenancy subsists or is terminated. If that is so and we do not feel doubt in view of what we have extracted above from the Full Bench decision of the Supreme Court in Dhanpals case (supra) there is some estate or interest in a tenancy under the Bombay Rent Control Act which will be heritable on the demise of the original tenant. If that is so the conclusion is inescapable that all the heirs of an original deceased tenant would be entitled to succeed to that estate or interest which is protected by the Rent Act till the jural relationship of landlord and tenant is snapped by an order or decree of eviction made under the relevant provisions governing the question of eviction. We are of the opinion that the decision of the Division Bench of this Court in Nanumals case (supra) would be required to be reconsidered in view of the above conclusion which we have reached having regard to the decision of the Full Bench of the Supreme Court in Dhanpuls case (supra ). The entire approach of the Division Bench of this Court in Nanumals case (supra) was conditioned as a result of the legal position then prevailing under the decision of the Supreme Court in Anand Nivass case (supra ). The decision of the Division Bench of this Court in Nanumals case proceeded on the legal position which was then prevailing that the statutory tenancy was not heritable and therefore the Legislature had to step in to provide for the void that may arise in the field of the rights of the heirs to continue in possession after the demise of a statutory tenant. The Division Bench of this Court therefore observed that since the protection under the Rent Control Act cannot be extendid to all the heirs inheriting the lease hold rights irrespective of their need the Legislature stepped in and provided a special mode of succession to the tenancy rights or to lease bold rights to those who were in need of it by limiting it to the members of the tenants family residing with him without deciding the rank inter se. The basis of the protection under sec. 5 (c) of the Bombay Rent Act according to the Division Bench of this Court was whether the person claiming right is dependent on the deceased statutory tenant and to such classes of persons the tenancy rights would devolve not in the strict sense of succession but in the sense of right to occupy and to possession on the obligation of paying rent and enjoy protection against eviction except on the grounds mentioned in the protective Acts. The special mode of devolution enacted in sec. 5 (11) (c) to the exclusion of general law of inheritance applies also in case of contractual tenancy. Till qualified class of persons as envisaged in sec. 5 (c) is available any one of them in the manner provided therein would be entitled to transmission of tenancy and on his death any one of his family staying with him would be further entitled to transmitted tenancy in the same way. We are afraid that this exposition of law and the premises thereof would not hold the field in view of the aforesaid decision of the Supreme Court in Damadelals case read with that in Dhanpals case. If there does not exist a well recognized distinction between a contractual tenancy and a statutory tenancy governed by the Rent Control Legislations and if the difference is erased to such an extent that no apparent distinction is visible and that is the position indeed in view of the two decisions of the Supreme Court the view of the Division Bench in Nanumals case that there is a special mode of succession under sec. 5 (11) (c) of the Bombay Rent Act cannot be affirmed since the very premise of the decision of the Full Bench of the Supreme Court in Dhanpals case is that the law of contract and transfer of properly should not be incorporated in that restricted area where the Rent Acts operate particularly bating regard to the definition of word tenant in almost all the Rent Acts that a person continuing in occupation with or without the assent of landlord after determination of the contractual tenancy is for all intents and purposes a tenant entitled to all the rights and subject to all the obligations under the relevant Rent Act. ( 23 ) THE next question which would therefore arise is that if all the heirs of a deceased tenant especially a statutory tenant are entitled to inherit the tenancy rights whether the provision contained in sec. 5 (11) (c) of the Bombay Rent Act providing for transmission of such rights only to the members of the family residing with the tenant warrants the view which we are inclined to take that all the heirs of a deceased tenant would be entiled to inherit the tenancy rights since the Division Bench of this Court in Nanumals case has ruled that on the recognized principle of interpretation of statutes the said provision should be so construed that only one person is entitled to be nominated by agreement or declared by Court as tenant though the Division Bench did recognize and express its anxiety that this view was fraught with some dangers inasmuch as the qualified members other than one nominated or declared as tenant would be at the mercy of the latter and in a given case the rights inter se of such persons shall have to be decided. The Division Bench of this Court in reaching this conclusion referred to a decision of the Court of Appeal in England in Dealer Properties Ltd. v. Brooks (1966) 1 Q. B. 542 where the Court of Appeal was concerned with a provision contained in sec. 12 (1) (g) of the Rent and Mortgage Interest (Restrictions) Act 1920 The facts in that case were that the respondent Brooks was a statutory tenant when he died in 1947. His son and daughter continued to occupy the house sharing the expenses including that of rent. 12 (1) (g) of the Rent and Mortgage Interest (Restrictions) Act 1920 The facts in that case were that the respondent Brooks was a statutory tenant when he died in 1947. His son and daughter continued to occupy the house sharing the expenses including that of rent. The rent book was in the name of the son from 1947 till 1963. The daughter had replied to the landlords agent in 1961 that her brother had taken over the tenancy after their fathers death. The landlord served the notice to quit on the daughter and claimed possession of the house on the demise of the son in 1963. The Court of Appeal held that the proper inference from the proved facts was that the tenancy rights of Brooks devolved on his son who became the tenant of the house and therefore there could be no further devolution of the rights after his death. Sec. 12 was an interpretation section and not a definition provision. Sub-sec. (1) (g) interpreted the word tenant as under:-"the expression tenant includes the widow of a tenant dying intestate who was residing with him at the time of his death or where a tenant dying intestate leaves no such widow or is a woman such member of the tenants family so residing as aforesaid as may be decided in default of agreement by the county court". (emphasis supplied by us)THE words dying intestate in sub-sec. 1 (g) were repealed by the Increase of Rent and Mortgage Interest (Restrictions) Act 1935 The word such was inserted in the said sub-section by the Housing Repairs and Rents Act 1944 A contention was urged before the Court of Appeal that the Court should constru e the word member as members as prescribed under the Interpretation Act 1889 unless the statute evinced a contrary intention. Harman L. J. ruled out this contention and refused to read singular as plural as it would lead to fearful consequences. He emphasised in support of his views that words dying intestate would indicate that it would be one person only. It is again only one person who can be widowed and the member of the family who can inherit seems therefore to be only one person. Diplock L. J. dismissed the contention that the words such member are to be read in plural and the status of irremovability cannot be acquired under sec. It is again only one person who can be widowed and the member of the family who can inherit seems therefore to be only one person. Diplock L. J. dismissed the contention that the words such member are to be read in plural and the status of irremovability cannot be acquired under sec. 12 (1) (g) succession by more than one member of the family since any other construction would lead to absurd consequences. In our opinion the application by the Division Bench in Nanumals case of the construction placed by the Court of Appeal on the provision contained in scc. 12 (1) (g) of the Increase of Rent and mortgages Interest (Restrictions) Act 1920 in Dealex Properties Ltds case (supra) appears with respect to be on assumption that the provision of sec. 5 (11) (c) and sec. 12 (1) (g) are in pari materia. Sec. 5 (11) (c) reads as under:-"5 In this Act unless there is anything repugnant to the subject or context (11) tenant means. . . . . . . . and includes (c) (i) in relation to premises let for residence any member of the tenants 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 (ii) in relation to premises let for business trade or storage any member of the tenants family carrying on business trade or storage with the tenant in the said premises at the time of the death of the tenant as may continue after his death to carry on the business trade or storage as the case may be in the said premises and as may be decided in default of agreement by the Court. (emphasis supplied by us) ( 24 ) THE Legislature has in its wisdom thought fit to confer the status of a tenant and consequently the right of irremovability on any member of the family of a deceased tenant. The word any is a word which excludes limitation or qualification and is as wide as possible. In Strouds Judicial Dictionary Fourth Edition 1 at page 145 the following meanings given for word any are illuminating. The word any is a word which excludes limitation or qualification and is as wide as possible. In Strouds Judicial Dictionary Fourth Edition 1 at page 145 the following meanings given for word any are illuminating. (1) x x x x x x x x (2) Any is a word which excludes limitation or qualification (per Fry L. J. Duck v. Bates 12 Q. B. D. 79); as wide as possible (per Chitty J. Beckett v. Sutton 51 L. J. Ch. 433) (3) So under a devise to three persons as tenants in common in tail and in default of such issue of any of them over; cross remainders were implied and any in effect read all (Waston Eq. 1410 citing Powell v. Howells L. R. 3 Q. B. 654 now 2 Jarm 8 ed. 669 see Holmes v. Meynell Raym. T. 452 ). But see also Re Fowles (1968) Q. W. N. where it was held that a bequest to Any hospital in Queensland. . . controlled by the Methodist Church could be limited to any one or more and need not be divided among every hospital so controlled. (4) x x x x x x x x x (5) But its generality may be restricted by the subject matter or the context. Thus any ACTION (County Courts Act 1856 (c. 108) sec. 36 meant any county court action (Re Copp. 6 Q. B. D. 607 ). So under Bankruptcy Rules 1870 r. 295 any CREDltor might oppose registration of resolutions; but that meant any creditor who had previously proved his debt (Ex p. Bagster 24 Ch. D. 477 cp. Wells v. Greenhill. 5 B. and Ald. 869); see now Bankruptcy Act 1914 (c. 59) sec. 80 and Ex. p. Ditton 11 Ch. D 56. So other person (R. S. C. Ord. 42 r. 32; now Ord 48 r.) meant by the context any officer of a judgment debtor corporation (Irwell v. Eden. 18 Q. B. D. 588); and by a context any person might mean any eligible person (Tobacco Pipe Makers v. Woodroffe 7 B. and C. 838; see also Metropolitan Board of Works v. London and North Western Railway 14 Ch. D. 521 ). So under Charities Producer Act 1812 (c. 101) any two or more persons to present a petition meant persons having an interest (Re Bedford Charity 2 Swanst. D. 521 ). So under Charities Producer Act 1812 (c. 101) any two or more persons to present a petition meant persons having an interest (Re Bedford Charity 2 Swanst. 518); see R. v. comptroller of Patents (1899) 1 Q. B. 909)". IF the connotation of word `any defies limitation or qualification unless its generality is restricted by the subject matter or the context its in port would be as wide as possible and it is only the subject matter or the context which can impose limitation or qualification of the meaning of the said word. We are unable to find in the subject matter or the context in this part of the definition any qualification or limitation other than the prescribed period of residence with the deceased tenant of a residential premises or the requirement of the conduct of business etc. of the tenant so far as non-residential premises are concerned. We would therefore not be justified in spelling out the restrictive meaning of the word any as has been done by the Division Bench in Nanumals Case (supra) If the import of word any cannot be restricted the necessary consequence is that there can be more than one member who can be nominated by the agreement amongst the qualifying members or appointed by Court in default of such agreement. ( 25 ) A subsidiary question also arises in this connection whether the agreement envisaged in sec. 5 (11) (c) (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 Nanumals 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 K. B. 584. the Court was concerned with similar words in sec. 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 tenants 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. the Court was concerned with similar words in sec. 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 tenants 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. L. R. 536 this Court has taken the view that the landlord has no right to choose a member of the tenants family and accept rent for him and the decree of eviction obtained against such members is not binding on minors or other members. We are there fore of the opinion that the agreement contemplated under sec. 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 sec. 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 W. L. R. 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. 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 the 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 sec. 5 (11) (c) the rights of the heirs of a contractual tenant were sought to be extinguished and that inspite of the provisions of sec. 5 (11) (c) it was required to be held that the rights of heirs of a deceased tenant must be preferred to the rights of mere members of the tenants family as referred to in sec. 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 Damadilals case as well as Dhanpals case (supra) that the recognized distinction so far existing between a contractual tenancy and a statutory tenancy socalled 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 sec. 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 inspite of the provision contained in sec. 5 (11) (c ). We are of the opinion that it would be difficult to hold that their rights are extinguished inspite of the provision contained in sec. 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. Patels 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 be determined by the Court for the benefit of all the heirs inheriting 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 tenantsuch persons may be successor tenants but they will hold the tenancy rights which have statutorily devolved upon them for the benefit of all other members residing with tfie 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 sec. 5 (11) (c) of the Bombay Rent Act. The Division Bench of this Court in Nanumals 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. 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 sec. 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 sec. 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 Nanumals case has taken the support which the Division Bench in Nanumals case has found for its view for the requirement of a statutory police under sec. 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 sec. 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 proceedings 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 successor tenant. However this is not tantamount to saying that no proceedings 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. However this is not tantamount to saying that no proceedings 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 Toylor v. Willoughby (1953) 2 All E. R. 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 Rent 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 sec. 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 in the action had been allowed to standover 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 Judges mind can be better achieved and should have been achieved not by a dismissal of the action but by standing it over to give either party an opportunity of making an application under the rules. . . . . . . . "on the whole therefore it seems to me that what was in the Judges mind can be better achieved and should have been achieved not by a 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 be 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 matter 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 sec. 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. 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 ruled by the Division Bench of this Court in Nanumals 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 there fore 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 entitled 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 Nanumals 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 Nanumals 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 commands 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. ( 26 ) THERE are two subsidiary questions which now remain to be considered viz. if there can be more than one successor tenant either by agreement or by decision of the Court what is the nature of such tenancywhether it is joint tenancy or tenancy in common and whether or not the tenancy right can be transmitted on more than one occasion. So far as the nature of tenancy is concerned we are inclined having regard to the object and purpose of the Bombay Rent Act and also on principle and authority to prefer the view that if there are more than one successor tenant either by agreement or by decision of the Court they hold the tenancy rights as tenants in common rather than as joint tenants. It is axiomatic to say that a joint tenancy connotes unity of title interest and possession and commencement of title while the tenancy in common on the other hand implies only the unity of possession and unity of commencement of title without any unity of title or interest. It is no doubt true that the rule of English law is to presume that a transfer to more than one person creates a joint tenancy with a right of survivorship unless there are words of severance. However this principle of joint tenancy is unknown to India barring under Hindu law in case of co-parcenary between members of undivided Hindu family (vide:- Jogeshwar Narain v. Ram Chund Dutt (1896) 23 I. A. 27 ). This position in law is affirmed by the Supreme Court in Venkatakrishna v. Styavathi AIR 1968 SC 751 . It is also an accepted position in law that even if the transferees are members of a coparcenary they will take as tenants in common unless a contrary intention appears from the instrument of transfer or the grant (vide:- Bai Diwali v. Patel Bechardas (1902) 26 Bom 445. In Mehomed Jusub Abdulla v. Fatmabai Jusab Abdulla AIR 1948 Bom. 53 Chagla J. held that in India the Court must strongly lean against holding any particular bequest or grant as a joint bequest or a joint grant and the presumption must always be in favour of a tenancy-in-common rather than a joint tenancy. The Court can always come to a different conclusion if that presumption is displaced by clear and cogent material to the contrary. The Court can always come to a different conclusion if that presumption is displaced by clear and cogent material to the contrary. We are therefore of the opinion that in a case of more than one successor tenant either by agreement or by decision of the Court the nature of tenancy would be tenancy-in-common unless contrary intention appears to displace that presumption by clear and cogent evidence. ( 27 ) THAT takes us to the second subsidiary question whether there can be successsor to tenancy rights on more than one occasion. There is a decision of this Court in Kunjiben v. Mohanlal (1974) 15 Guj. L. R. 107 where D. P. Desai J. has observed that there are no restrictive words in sec. 5 to suggest that the protection afforded under the said sub-section to the members of a family residing with the deceased tenant is only on one occasion or that there cannot be further succession to the tenancy rights. The Division Bench in Nanumals case (supra) also was of the view that there is nothing in sec. 5 (11) (c) (i) to cut down transmission of tenancy on one occasion only and that once the person who acquires transmission of tenancy on his death again the question would be to whom the tenancy would be transmitted under sec. 5 (11) (c) (i) because a person who continues in possession by transmission of tenancy would be a statutory tenant and on his death the question of succession to his rights would arise. We are inclined to agree with this view of the Division Bench in Nanumals case particularly because the distinction between a contractual tenancy and a statutory tenancy has disappeared in view of the decision of the seven Judges Bench of the Supreme Court in Dhanpals case (supra ). If a person continuing in possession with or without the assent of the landlord after the determination of the tenancy is a tenant for all intents and purposes his tenancy rights would be an estate which would be heritable by his heirs and therefore the submission that there can be succession only once to the rights of such a tenant whose tenancy has been determinated does not commend to us and we respectfully agree with this view of the Division Bench of this Court in Nanumals case. ( 28 ) IN that view of the matter therefore we reframe the questions referred to us as under:- (1) Whether the decision of the Division Bench in Nanumal Rajumal v. Lilaram Vensimal and Anr. (1977) 18 Guj. L R 858 is a good law in view of the decision of the Supreme Court in Damadilal and Others v. Parashram and Ors. (1976) 4 SCC 855 and also in view of the decision in V. Dhanplal Chettier v. Yasodai Ammal 1979 (2) All India Rent Control Journal 358 ? (2) If a statutory tenant has also an estate and the statutory tenancy is heritable and transferable would it require to be determined by a notice under sec. 106 of the Transfer of Property Act ? ( 29 ) OUR answers to these two questions are as under:- (1) The decision of the Division Bench in Nanumals case is no longer a good law in view of the aforesaid two decisions of the Supreme Court. (2) No notice is required under sec. 106 of the Transfer of Property Act to determine the statutory tenancy in view of the decision of the Supreme Court in Dhanpals case (supra ). ( 30 ) THE matter will therefore go back to the learned Single Judge for disposal of the revision application in view of our opinion in this reference. The costs will be costs in the cause. Answer accordingly. .