S. H. SHETH, J. ( 1 ) THE plaintiff filed the present suit against the defendant under the Bombay Rent Act for recovering possession of the suit premises on four grounds. The defendant had been in arrears of rent. The plaintiff required the suit premises reasonably and bona tide for her own occupation The suit premises were not used by the defendant for more than six months prior to the institution of the suit without any reasonable cause for the purpose for which they were let. The defendant had acquired suitable accommodation for her residence. The defendant denied the plaintiffs claim. Before the learned trial Judge ground of arrears of rent was not pressed. The learned trial judge on merits negatived three other g rounds and dismissed the plaintiffs suit. ( 2 ) THE plaintiff appealed against the decree to the appellate Court. Before the appellate Court the plaintiff pressed two grounds and sought decree for possession against the defendant. The ground relating to nonuser of the suit premises available to the plaintiff under sec. 13 (1) (k) of the Bombay Rent Act was canvassed by the plaintiff but was negatived by the appellate Court. He also pressed for obtaining decree for possession the ground of the defendant hiving acquired suitable accommodation within the meaning of sec. 13 (1) (L) of the Bombay Rent Act. The appellate Court upheld this ground and passed in favour of the plaintiff decree for possession. ( 3 ) IT is that decree which is challenged by the defendant in this civil revision application. ( 4 ) MR. R. N. Shah who appears on behalf of the defendant has challenged the finding recorded by the appellate Court against the defendant. He has also pressed into service the contention that the appeal had abated. In order to appreciate the contention which Mr. Shah has raised it is necessary to note a few facts about which there is no dispute. Kamlaben was the original tenant. The suit was filed against her. The appeal before the lower appellate Court was filed against her. During the pendency of the appeal Kamlaben died on 29th October 1972. Her husband Ratilal and son Jaswantlal were brought on the record as her heirs and legal representatives. Kamlaben was the original tenant. The suit was filed against her. The appeal before the lower appellate Court was filed against her. During the pendency of the appeal Kamlaben died on 29th October 1972. Her husband Ratilal and son Jaswantlal were brought on the record as her heirs and legal representatives. Later on her husband died on 2nd December 1975 and Jaswantlal who was on record as the heir of Kamlaben was described as the heir of Ratilal. Therefore the appeal proceeded against Jaswantlal alone. It was contended on behalf of the defendant that there were other persons upon whom tenancy rights had devolved and that since they were not brought on record the appeal had abated. According to Mr. Shah therefore no decree for possession could have been passed against the defendant. ( 5 ) IT is not in dispute that Kamlaben died and was survived by Ratilal who subsequently died and her son Jaswantlal and widow and three minor sons of Kamlabens predeceased son. This widow and three minor grandchildren of Kamlaben were not brought on record when Kamlaben died. They were also not brought on record when Ratilal died. ( 6 ) IN the context of these facts I am required to find out on whom the tenancy rights devolved upon the death of Kamlaben. Sec. 5 (11) (c) (i) of the Bombay Rent Act provides as follows:" "tenant" means any person by whom or on whose account rent is payable for any premises and includes 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. . . " the devolution of interest of tenant in leasehold premises let for residence is therefore governed by the criterion of who was residing with the tenant at the time of his death or within three months immediately preceding his death. ( 7 ) MR. Nanavaty who appears on behalf of the plaintiff has argued that no one was residing in the suit premises when Kamalaben and Ratilal died. According to him tenancy rights devolved upon that person who was residing with the deceased tenant in the suit premises at the time of his death or within three months immediately preceding his death. Nanavaty who appears on behalf of the plaintiff has argued that no one was residing in the suit premises when Kamalaben and Ratilal died. According to him tenancy rights devolved upon that person who was residing with the deceased tenant in the suit premises at the time of his death or within three months immediately preceding his death. I do not find in this section anything to show that residence with the tenant in the suit premises at the time of the death of the tenant is the requirement to be satisfied in order to be eligible for devolution of interest in the suit premises. ( 8 ) MR. Nanavaty has argued that the expression in relation to premises let for residence necessarily implies residence with the deceased tenant in the suit premises. I am unable to uphold that argument. The expression in relation to premises let for residence merely shows that sub-clause (1) of Clause (c) is applicable to residential premises and does not go to the extent of saying that the person who claims interest in the suit premises upon the death of the original tenant must be residing with the tenant in the suit premises. The tenant may be residing anywherein the suit premises or elsewhere. In respect of the suit premises devolution of interest can be claimed by that person who had been residing with the tenant at the time of his death or within three months immediately preceding his death irrespective of where the tenant had been residing. Therefore if the deceased tenant and the person who claims devolutionary interest under sec. 5 (11) (c) (i) had not been residing in the suit premises but were residing together elsewhere it does not come in the way of the person claiming devolutionary interest to make good his claim. In such a case possession can be sought not under any other provision of law but under sec. 13 (1) (k) that is to say on the ground that the tenant or his successor in interest had not been using the premises without any reasonable cause for Va period of six months immediately prior to the institution of the suit for the purpose for which they were let. ( 9 ) MR. 13 (1) (k) that is to say on the ground that the tenant or his successor in interest had not been using the premises without any reasonable cause for Va period of six months immediately prior to the institution of the suit for the purpose for which they were let. ( 9 ) MR. Nanavaty has further argued that at the time of her death Kamlaben had not been residing in the suit premises but had been residing with her son Jaswantlal in some other premises which he was occupying Shahibaug house and the widow and her three minor children had been residing there not with Kamlaben but with Jaswantlal because Kamlaben herself was dependent of Jaswantlal there. So far as Ratilal is concerned Mr. Nanavaty has argued that at the time of his death he was residing with his son Jaswantlal in Aparna Society as his dependent and that therefore the widow and her three minor children could not be said to be residing with Ratilal but could be said to have been residing only with Jaswantlal. According to him therefore no devolutionary interest accrued to the widow and her three minor children in respect of the suit premises. The test which Mr. Nanavaty has asked me to apply is not in my opinion a correct test. The test to determine the devolution of interest in leasehold premises as contemplated by sec. 5 (11) (c) (i) is the residence anywhere of the person claiming such interest with the deceased tenant at the time of his death or within the period specified in that section and not necessarily in the suit premises. If the deceased tenant had been residing with someone else at some other place person residing with him continues to be his dependent and does not become the dependent of someone else. ( 10 ) IN that view of the matter upon the death of Kamlaben tenancy rights devolved not only upon Ratilal and Jaswantlal but also upon the widow of Kamlabens predeceased son and three minor children of that widow. They were not joined as parties to the appeal after the death of Kamlaben or after the death of Ratilal. It may be stated that the heirs and legal representatives of Kamlaben and Ratilal in the facts and circumstances of this case are the same under sec. 5 (11) (c) (i) of the Bombay Rent Act. They were not joined as parties to the appeal after the death of Kamlaben or after the death of Ratilal. It may be stated that the heirs and legal representatives of Kamlaben and Ratilal in the facts and circumstances of this case are the same under sec. 5 (11) (c) (i) of the Bombay Rent Act. Decree for possession therefore could not have been sought by the plaintiff against Jaswantlal along. To pass such a decree is to pass an ineffective decree. It could not have been passed. Suit could have proceeded against all heirs and legal representatives of Kamalaben and subsequently of Ratilal. It could not have proceeded against one of the persons upon whom the interest in the suit premises had devolved. In my opinion therefore the Appellate Bench was in error in holding that appeal could proceed against Jaswantlal alone. The appeal in my opinion could not have proceeded in absence of the widow of Kamalabens predeceased son and her three minor children. Therefore the appeal had abated. No decree for possession under the circumstances could have been passed. ( 11 ) IN the result the civil revision application is allowed. Decree for possession is set aside and the appeal decided by the lower appellate Court is dismissed as having abated Rule is made absolute with no order as to costs. Application allowed. .