INDUBEN ALIAS DHANBAI v. SAIYED MAHMAD JIYA — 1984 DIGILAW 226 (GUJ)

A. M. AHMADI, J. ( 1 ) THIS is a revision application by the tenants-in-common against whom a decree in ejectment has been passed under Section 13 (1) (e) of the Bombay Rents Hotels and Lodging House Rates Control Act 1947 (hereinafter called the Act ). A few facts may be stated for the disposal of this revision application. ( 2 ) THE premises in question were taken on lease by one Hiraji Gustabji under a lease deed dated 21st August 1951 Exhibit 98. That lease deed inter alia provided that the premises shall not be sub-let or transferred by the lessee to a third party. On 12th October 1963 the tenant Hiraji was served with a notice Exhibit 157 terminating the tenancy in respect of the demised premises. Soon after the issuance of that notice Hiraji expired on 16th October 1963 The legal representatives of the deceased sent a reply to the notice on 20th November 1963 Exhibit 100. It appears that thereafter the widow of the deceased Ratanbai entered into an agreement Exhibit 139 with the partners of Anupam Automobiles whereunder the latter where permitted to use the premises in question for the purpose of running a garage on the terms and conditions set out therein. On the landlord coming to know about the same he sewed Ratanbai and her daughter Indu alias Dhanbai with a notice Exhibit 103 dated 16th August 1967. A reply to the said notice was sent on 12th September 1967 Exhibit 108 claiming direct contractual tenancy. Since the possession of the premises was not delivered as per the notice Exhibit 103 the landlord instituted H. R. P. Suit M. 891 of 1968 in the Court of Small Causes at Ahmedabad claiming possession of the demised premises from all the legal heirs and representatives of deceased Hiraji Gustabji Baria. In that suit Anupam Automobiles the transferee or sub-tenant was impleaded as a co-defendant Ratanbai and Induben who were defendants 1a and 1b contested the suit by their written statement Exhibit 25. Defendant Anupam Automobiles adopted the written statement of Ratanbai by Purshis Exhibit 26. The other defendants filed two separate written statements Exhibits 36 and 59 wherein they denied the allegation that the premises were unlawfully transferred to Anupam Automobiles. Defendant Anupam Automobiles adopted the written statement of Ratanbai by Purshis Exhibit 26. The other defendants filed two separate written statements Exhibits 36 and 59 wherein they denied the allegation that the premises were unlawfully transferred to Anupam Automobiles. Defendants Ratanbai and her daughter Induben also denied the allegation that the suit premises had been sub-let or transferred or assigned to Anupam Automobiles with a view to profiteering. The learned trial Judge raised issues at Exhibit 90 and on the question of sub-letting argument or transfer he held in favour of the landlord and against the tenants He also came to the conclusion that the landlord did not require the suit premises reasonably and bonafide for personal occupation. Accordingly he passed a decree for eviction under Section 13 (1) (e) of the Act. ( 3 ) THE tenants Ratanbai and Induben feeling aggrieved by the decree passed by the learned trial Judge preferred Appeal No. 1 of 1974 before the Appellate Bench of the Court of Small Causes at Ahmedabad. In the said appeal the conclusion reached by the learned trial Judge that Ratanbai and Induben had sub-let the premises to Anupam Automobiles was questioned. The validity of the notice served on Ratanbai and Induben was also questioned and it was submitted that in the absence of the notice having been served on original defendants Nos. 3 4 3 5 the suit was not maintainable. The learned Judges constituting the Appellate Bench repelled all these submissions made on behalf of the tenants and came to the conclusion that the trial Court had rightly held that the premises were sub-let to Anupam Automobiles and the landlord was therefore entitled to a decree under Section 13 (1) (e) of the Act. The Appellate Bench alb came to the conclusion that the suit us maintainable even in the absence of a notice to defendants Nos. 3 4 and 5. In that view the learned Judges constituting the Appellate Bench dismissed the appeal with costs. The tenants have therefore preferred this revision application under Section 29 of the Act. ( 4 ) MR. The Appellate Bench alb came to the conclusion that the suit us maintainable even in the absence of a notice to defendants Nos. 3 4 and 5. In that view the learned Judges constituting the Appellate Bench dismissed the appeal with costs. The tenants have therefore preferred this revision application under Section 29 of the Act. ( 4 ) MR. R. N. Shah the learned advocate for the petitioner raised the following contentions at the hearing of this revision application: (1) Both the Courts below erred in concluding that the suit was maintainable even though admittedly the suit notice Exhibit 103 dated 16th August 1967 was not served on all the heirs and legal representatives of deceased Hiraji; Gustabji. (2) Both the Courts below erred in concluding that the premises were sublet to Messrs. Anupam Automobiles without the consent of the landlord. (3) Both the Courts below erred in holding that since the premises were let and used for business purposes no question regarding transmission of tenancy rights under Section 5 (11) (c) (ii) of the Act arose since neither Ratanbai nor Induben was carrying on business with the deceased at the time of his death. (4) No decree in ejectment could be passed against the heirs and legal representatives of deceased Hiraji Gustabji until the Court decided the question of transmission of tenancy under the aforesaid provision of the Act; and (5) Similarly no decree in ejectment must be passed until a similar decision us reached regarding the transmission of tenancy on the demise of Ratanbai pendente lite. ( 5 ) IT is an established fact that the premises were let to Hiraji Gustabji Baria of Baria Automobiles under the lease deed Exhibit 98 dated 21st August 1951. The duration of that lease us of less than one year. During the lifetime of Hiraji the tenancy was terminated by the notice Exhibit 157 dated 12th October 1963 Soon after this notice us issued Hiraji died on 16th October 1963 His legal representatives were Ratanbai his widow; Induben his daughter; and Dhanbai and Hirabai his two sisters. Admittedly after his demise a reply was sent to the notice Exhibit 100 on 20th November 1963 but thereafter the land-lord did not institute any proceedings against the legal representatives of the deceased. Admittedly after his demise a reply was sent to the notice Exhibit 100 on 20th November 1963 but thereafter the land-lord did not institute any proceedings against the legal representatives of the deceased. ( 6 ) ON 5th May 1966 Ratanbai entered into an agreement called Agency agreement with the partners of Messrs Anupam Automobiles whereby the latter were appointed agents to carry on the business of automobile repairs etc. . in the demised premises. On learning about the same the land-lord served Ratanbai and Induben with a notice Exhibit 103 dated 16th August 1967 terminating the tenancy. A reply to this notice was sent by Exhibit 108 on 12th September 1967 The landlord then instituted the suit in question on the ground that the premises were sub-let or assigned for consideration in breach of the term of tenancy; that the premises were required for personal use and occupation by the landlord and that the tenants had fallen in arrears of rent ( 7 ) IT is evident from the above facts that no notice was served on the two sisters of the deceased Hiraji before the institution of the suit. The notice Exhibit 103 dated 16th August 1967 us sewed on Ratanbai and Induben only. The question then is whether the suit was not maintainable on account of the two sisters having not been served with the notice terminating their tenancy rights in respect of the premises in question. In view of the decision of the Supreme Court in B. Dhanpal Chettiar v. Yesodai Ammal AIR 1979 SC 1745 it is now well-settled that in order to secure a decree or order for eviction against a tenant under any State Rent Control Act it is not necessary to give notice under Section 106 of the Transfer of Property Act. Their Lordships of the Supreme Court have clearly stated that determination of a lease in accordance with the provisions of the Transfer of Property Act is unnecessary and a mere surplusage because the landlord cannot get eviction even after such detemination since the tenant is entitled to the protection of the Rent Control Act even after the determination of the tenancy. In view of this authoritative pronouncement of the Supreme Court I must hold that there is no substance in the first contention urged by Mr. R. N. Shah. In view of this authoritative pronouncement of the Supreme Court I must hold that there is no substance in the first contention urged by Mr. R. N. Shah. ( 8 ) THE next question is whether the Courts below committed an error in coming to the conclusion that the landlord was entitled to a decree under Section 13 (1) (e) of the Act. That provision lays down that a landlord shall be entitled to recover possession of any premises if the Court is satisfied that the tenant has since the coming into operation of the Act unlawfully sub-let the whole or part of the premises or assigned or transferred in any other manner his interest therein. As pointed out earlier under the lease deed Exhibit 98 creation of sub-tenancy was prohibited. On the efflux of time the tenant Hiraji continued in occupation of the premises on the same terms and conditions. On his demise the tenancy rights of the deceased Hiraji devolved on his legal representatives namely his widow daughter and two sisters. His widow entered into an agreement Exhibit 139 dated 5th May 1966 with the partners of Messrs. Anupam Automobiles. The terms of this agreement Exhibit 139 may be perused at this stage. ( 9 ) THE agreement is entitled Agency Agreement. Ratanbai the widow of the deceased Hiraji is the party of the first part while the partners of Anupam Automobiles are the party of the second part. In the introductory part of the agreement it is stated that since the party of the first part is not able to devote complete attention to the business carried on in the name and style of Baria Automobiles she is in need of a person conversant with such business and has therefore appointed the party of the second part as her agent for carrying on the business in the demised premises on the terms and conditions set out therein. The relevant terms and conditions are that the tenancy rights and goodwill as well as the stock-in-trade shall continue to be of the party of the first part and the party of the second part is not given any right by virtue of appointment as agent in the business assets of the party of the first part. The relevant terms and conditions are that the tenancy rights and goodwill as well as the stock-in-trade shall continue to be of the party of the first part and the party of the second part is not given any right by virtue of appointment as agent in the business assets of the party of the first part. The party of the second part has to assist the party of the first part in the business to be carried on in the demised premises. The duration of the agency agreement is stipulated to be of three years commencing from 1 May 1966 It further provides that the party of the second part will develop the business as an agent but will not incur any debts or borrow any money by way of loan or deposit in the name of Baria Automobiles. The party of the second part has been granted permission to make use of the machinery and tools for business purposes but the agreement states that the ownership thereof shall continue to be of the party of the first part. At the same time the party of the second part has been granted permission to purchase new machinery for the development of the business which under the agreement shall remain to be of the exclusive ownership of the party of the second part and the party of the first part shall have no right title or interest therein. On the termination of the agency agreement the party of the second part shall be entitled to remove the said machinery. So far as the monetary arrangement is concerned the agreement provides that the party of the second part shall pay to the party of the first part a sum of Rs. 300/- per month out of the profits earned from the business conducted in the demised premises and the party of the second part shall be entitled to the profit in excess thereof. It further provides that even if there is no profit the party of the second part will be under an obligation to pay a sum of Rs. 300/- per month to the party of the first part if necessary out of their own money. The liability to pay the rent in respect of the premises is however cast on the party of the first part. 300/- per month to the party of the first part if necessary out of their own money. The liability to pay the rent in respect of the premises is however cast on the party of the first part. The agreement provides that even though the party of the first part is entitled to Rs. 300/- per month only if any income-tax liability arises on account of the profit made by the party of the second part the latter will reimburse the party of the first part to that extent. It is lastly provided that Ratanbai being an aged widow her daughter Dhanbai (which is the other name of Induben) shall be entitled to attend to and give directions in respect of the business to be conducted in the demised premises. From the above terms it becomes clear that while on the one hand the party of the first part claims to have retained the tenancy rights in respect of the demised premises the party of the second part is placed in charge of the business with the obligation to pay a sum of Rs. 300/- per month to the party of the first part regardless of whether the party of the second part makes profit or incurs losses. In other words the party of the first part has granted permission to use and occupy the premises as well as the machinery and tools of Baria Automobiles to the party of the second part on the latter under-taking to pay a sum of Rs. 300/- per month to the former regardless of whether it makes profit or incurs losses. ( 10 ) THE other documentary evidence on record germane to the question of sub-letting is the Commissioners report Exhibit 117 which shows the existence of the signboard of Anupam Automobiles on the premises in question. Exhibit 102 is the decision of the Appellate Officer of the Ahmedabad Municipal Corporation which discloses that Messrs. Anupam Automobiles were occupying the suit premises at the time when the Appellate Officer paid a visit to the garage. In the property tax bill issued by the Municipal Corporation Exhibit 109 Anupam Automobiles has been shown to be the occupant of the premises. The name of Anupam Automobiles is also registered under the Shops and Establishments Act. The sales tax number is also in the name of the firm. In the property tax bill issued by the Municipal Corporation Exhibit 109 Anupam Automobiles has been shown to be the occupant of the premises. The name of Anupam Automobiles is also registered under the Shops and Establishments Act. The sales tax number is also in the name of the firm. In addition to the above documentary evidence it appears that after the death of Hiraji his sister Hirabai had filed an Administration Suit in the City Civil Court Ahmedabad being Civil Suit No. 101 of 1965 which terminated in a compromise decree whereunder accounts were to be taken by the Administrator. Clause a of the decree refers to the garage premises and provides that the Administrator will take accounts in respect of the income including rental income received from the garage after the death of Hiraji. ( 11 ) ON an overall review of the aforesaid documentary evidence both the Courts below came to the conclusion that the agency agreement was merely a camouflage and the real transaction between the parties was that of subtenancy. On the assessment of the oral evidence on record in the light of this documentary evidence both the Courts recorded a finding of fact that the possession of the garage premises had been handed over to Messrs. Anupam Automobiles and neither Ratanbai nor her daughter Induben alias Dhanbai took any interest whatsoever in the said business. It was also noticed that the sales tax number in respect of the business carried on in the said premises stood exclusively in the name of Anupam Automobiles. The totality of these facts clearly established that the Courts below were right in concluding that the transaction was not one of agency as the document purported to convey but in fact the premises in question were sub-let to Messrs. Anupam Automobiles on the latter agreeing to pay a sum of Rs. 300/- per month by way of rent. This finding of fact recorded by both the Courts below cannot be said to be against the weight of evidence and therefore there is no question of this Court interfering with the same in a revision application. Anupam Automobiles on the latter agreeing to pay a sum of Rs. 300/- per month by way of rent. This finding of fact recorded by both the Courts below cannot be said to be against the weight of evidence and therefore there is no question of this Court interfering with the same in a revision application. ( 12 ) APART from the question whether this Court would interfere with the finding of fact recorded on the question of sub-tenancy by the two Courts below the totality of circumstances clearly conveys that both the Courts were right in reaching the conclusion that the premises had been sub-let to Messrs. Anupam Automobiles. In the first place under the agreement Exhibit 139 M/s Anupam Automobiles has been placed in charge of the garage premises. The machinery as well as the tools therein have also been placed at the disposal of that firm. The evidence further shows that in addition that firm purchased machinery worth about Rs. 20 0 for carrying on business in the said premises. When the Court Commissioner visited the site the signboard of Anupam Automobiles was found on the garage. When the Municipal Officer visited the site Messrs. Anupam Auto-mobiles were found to be in exclusive possession of the garage premises. For the purposes of property tax also in the Municipal bill the name of Messrs. Anupam Automobiles is shown to be the occupant of the premises. The sales tax number is in the name of Anupam Automobiles. The name of the said firm is also found in the certificate of registration issued under the Shops and Establishments Act. The liability for losses is exclusively of Messrs. Anupam Auto-mobiles. Even if there are losses that firm is bound to pay a sum of Rs. 300/- per month to Ratanbai under the agreement Exhibit 139. In other words Ratanbai is least concerned whether Anupam Automobiles makes profit or incurs losses in the business carried on in the demised premises. All that she is concerned is with the payment of Rs. 300/- per month from Anupam Automobiles. Even the liability for income-tax in excess of the payment of Rs. 3600/- per annum that is Rs. 300/- per month if arising under the agreement Exhibit 139 on Ratanbai has to be reimbursed by Messrs. Anupam Automobiles. All that she is concerned is with the payment of Rs. 300/- per month from Anupam Automobiles. Even the liability for income-tax in excess of the payment of Rs. 3600/- per annum that is Rs. 300/- per month if arising under the agreement Exhibit 139 on Ratanbai has to be reimbursed by Messrs. Anupam Automobiles. It is therefore clear from the totality of evidence both oral and documentary that the real nature of the transaction was of sub-letting and the nomenclature of agency agreement given to Exhibit 139 was merely to camouflage the real nature of the transaction. Therefore even on the appreciation of the evidence I come to the conclusion that both the Courts below were right in holding that the premises had been sub-let to Messrs. Anupam Automobiles under the agreement Exhibit 139. ( 13 ) THE next three points raised by Mr. Shah may now be dealt with together. The lease deed Exhibit 98 dated 21st August 1951 shows that the initial letting was for business purposes. The tenant Hiraji Gustabji Baria passed away on 16th October 1963 leaving behind him his wife Ratanbai daughter Induben and two sisters Hirabai and Dhanbai. These legal heirs of the deceased quarrelled over the estate left by Hiraji and a Civil Suit No. 101 of 1965 was instituted by Hirabai for administration of the property. As pointed out earlier that suit was compromised by and between the parties and clause 3 thereof provided for rendition of accounts in respect of the income/rent received from the garage premises after the death of Hiraji. In other words the legal representatives of the deceased treated the interest of Hiraji in the garage premises as one of the properties left by the deceased. The deceased was carrying on business in the premises during his lifetime in the name and style of Baria Automobiles. After his death admittedly there was no agreement between the parties for transmission of the tenancy under Section 5 (11) (c) (ii) of the Act. The question then is whether on proof of sub-letting the Courts below were entitled to pass a decree in ejectment without deciding the question of transmission of tenancy under the said provision? After his death admittedly there was no agreement between the parties for transmission of the tenancy under Section 5 (11) (c) (ii) of the Act. The question then is whether on proof of sub-letting the Courts below were entitled to pass a decree in ejectment without deciding the question of transmission of tenancy under the said provision? It is also an admitted fact that during the pendency of the litigation Ratanbai passed away and her interest in the property devolved on her legal representatives The question once again is whether the Courts below were right in passing a decree in ejectment without deciding the question of transmission of tenancy under the aforesaid provision of law? Both the courts below have come to the conclusion that there is no question of transmission of tenancy under the aforesaid provision of the Art since at the date of the demise of Hiraji none of his family members was carrying on business with him in the demised premises. So far as Ratanbai is concerned during her lifetime she had sub-let the premises to Messrs. Anupam Automobiles and therefore the question of any family member of Ratanbai carrying on business in the demised premises did not arise at all in order to appreciate the contentions urged before me by Mr. Shah it would be necessary to reliance to the relevant provision on which ( 14 ) SECTION 5 (11) defines a tenant. It is an inclusive definition. Shah it would be necessary to reliance to the relevant provision on which ( 14 ) SECTION 5 (11) defines a tenant. It is an inclusive definition. Since there is no dispute that the premises in question were let for business purposes the relevant governing provision will be sub-clause (ii) of clause (c) of sub-section (11) of Section 5 of the Act which may be reproduced at this stage:"5 In this Act unless there is anything repugnant to the subject or context - xxx xxx (11) `tenant means any person by whom or on whose account rent is payable for any premises and includes (C) (i) xxx xxx xxx (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;in order to invoke this inclusive clause must be shown that some member of Hirajis family was carrying on business with Hiraji in the said premises at the time of the latter death. Such a family member or family members as the case may be who continue to carry on the business in the said premises after the death of the tenant can claim to be a tenant under this sub-clause. If there are two or more family members claiming tenancy under this sub-clause the Court may be required to determine the question of transmission of tenancy in the event of there being no agreement between such family members on whom the tenancy should devolve. The question of transmission of tenancy could not arise if as a matter of fact it is found that no member of the tenants family was carrying on business with the tenant at the time of the latters demise. In that case the special provision under the Act would not come into operation and the right of the tenant in the demised premises which jurisprudentially is property would devolve by inheritance on his legal representatives. Such legal representatives would be tenants-in-common. In that case the special provision under the Act would not come into operation and the right of the tenant in the demised premises which jurisprudentially is property would devolve by inheritance on his legal representatives. Such legal representatives would be tenants-in-common. That was clearly the understanding of the legal representatives of the deceased when they entered into a compromise in Civil Suit No. 101 of 1965. That apart in law therefore a tenancy can be transmitted under Section 5 (11) (c) (ii) only if the sine qua non namely that one or more members of the tenants family were carrying on business in the demised premises with the tenant at the time of the latters death is established. If this basic fact is not established as in the present case as held by both the Courts below there would be no question of tansmission of tenancy under the aforesaid sub-clause on which reliance is placed. As pointed out earlier at the time of Ratanbais death the business already stood transferred to Messrs. Anupam Automobiles and therefore there was no question of any of her legal representatives carrying on business with her in the demised premises at the date of in her demise. In either case therefore since the basic fact required for invoking the relevant sub-clause is not established the position in law is that the legal representatives of the deceased tenant would inherit the property that is the tenancy rights in the property as mere tenancy-in-common and not even joint tenants That being so in the instant case since both the Courts below have come to the conclusion on a Ending of fact that none of the legal representatives of Hiraji was carrying on business with him at the time of his damage in the suit property there was no question of transmission of tenancy under sub-clause (ii) of clause (c) of sub-section (11) of Section 5 of the Act. So also there was no question of transmission of tenancy under that provision on the demise of Ratanbai since Ratanbai had sub-let the presses to Messrs. Anupam Automobiles. Therefore in either case there was no question of invocation of the aforesaid sub-clause so far as transmission of tenancy thereunder was concerned. So also there was no question of transmission of tenancy under that provision on the demise of Ratanbai since Ratanbai had sub-let the presses to Messrs. Anupam Automobiles. Therefore in either case there was no question of invocation of the aforesaid sub-clause so far as transmission of tenancy thereunder was concerned. If that sub-clause was not attracted under the ordinary law on the demise of Hiraji succession opened and hi legal representatives became entitled to his estate including his tenancy rights in the property in question as mere tenants-in-common. So also on the demise of Ratanbai her legal representatives became entitled to whatever interest she had in the demised premises which she had sub-let to Messrs. Anupam Auto-mobiles. In either case therefore there was no question of transmission of tenancy under Section 5 (11) (c) (ii) of the ht. There was therefore no question of the Court deciding on whom the tenancy would devolve in absence of agreement in that behalf between the legal representatives of the deceased tenant. I am therefore in agreement with both the Courts below that the aforesaid sub-clause us not attracted on the facts and the circumstances of this case. ( 15 ) THE Supreme Court in Damadilal v. Parashram A. I. R. 1976 S. C. 2229 observed that a contractual tenant has an estate or property in the subject matter of the tenancy. Under the Act even after the contractual tenancy is determined the tenant is entitled to continue in possession unless his tenancy comes to an end by a decree or order for eviction passed by a competent Court. The incidents of tenancy subsist even after its determination by virtue of the protection extended by the Act and a statutory tenancy must therefore be the same unless there is a provision in the Act conveying a contrary intention. The Supreme Court therefore came to the conclusion that a statutory tenant so called who continues in possession of the protection even on the determination of the contractual tenancy by Act has the protection extended by the virtue has a heritable interest in the demised premises. After this decision of the Supreme Court the distinction between co contractual tenancy and statutory tenancy stood almost obliterated. After this decision of the Supreme Court the distinction between co contractual tenancy and statutory tenancy stood almost obliterated. Before this decision was rendered by the Supreme Court the field was held by the decision of the Supreme Court in Anand Nivas Private Ltd. v. Anandji Kalyanji Pedhi A. I. R. 1965 S. C. 414 After the decision of the Supreme Court in Damadilals case a Full Bench of this Court in Babubhai v. Bharatkumar (1980) 21 G. L. R. 103 reviewed the decision rendered by a Division Bench in Nanumal Rajmal v. Lilaram Vensimal (1977) 18 G. L. R. 858 which in turn was based on the decision in the case of Anand Nivas (Supra ). The Full Bench came to the conclusion that under the Act the distinction between a contractual tenancy and a statutory tenancy was done away with and the content of the tenancy right would remain the same irrespective of the fact whether the contractual tenancy subsisted or stood terminated. Proceeding further the Full Bench in paragraph 23 of the judgment observed as under: 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. Mr. Shah the learned advocate for the petitioner therefore argued that in view of this position in law emerging in the decisions of the Supreme Court in Damadilals case as well as Dhanpals case referred to and relied upon by the Full Bench in Babubhai v. Bharatkumar there is no room for doubt that on the demise of a statutory tenant his interest in the demised property would devolve on his legal representatives. If one or more of the legal representatives were associated with the tenant and were carrying on business with him in the demised premises at the date of his death they would at best be entitled to transmission of the tenancy in favour of anyone of them by agreement and in default of agreement by a decision of the Court under Section 5 (11) (c) (ii) of the Act But if the fundamental fact of their carrying on business in the demised premises with the deceased tenant is not established then in law there can be no question of transmission of the tennancy under Section 5 (11) (c) (ii) of the Act. ( 16 ) MR. Shah then placed strong reliance on a decision of the Madras High Court in Jaithun Beevi v. Begum Dustasir 1981 (2) All India Rent Control Journal 402. In that case also the learned Single Judge of the Madras High Court held that to clothe the legal representatives with the right as a statutory tenant. they must be in the case of a nonresidential building continuously associated with the original statutory tenant for the purpose of carrying on the business of the original tenant upto the death of the tenant and should have continued to carry on such business thereafter. I fail to understand how this observation of the learned Single Judge advances the case of the petitioner. ( 17 ) MR. Shah then relied on Head-note (ii) of this decision wherein it is stated that (Unless Ending is given one way or the other regarding relationship of tenant and landlord the authorities constituted under the Act cannot proceed further to pass orders under any of the Sections mentioned in the Act and argued that unless the Court decides the question of transmission of tenancy under Section 5 (11) (c) (ii) no decree in ejectment could be passed against the legal representatives of the deceased. That is with respect begging the question. Unless it is shown that the basic fact for invocation of sub-clause (ii) of clause (c) of sub-section (11) of Section 5 of the Act is established there can be no question of transmission of tenancy under that provision. That is with respect begging the question. Unless it is shown that the basic fact for invocation of sub-clause (ii) of clause (c) of sub-section (11) of Section 5 of the Act is established there can be no question of transmission of tenancy under that provision. As stated earlier unless the basic fact namely that one or snore of legal representatives of the tenant was at the date of his death carrying on business in the demised premises with the tenant is established there can be no question of transmission of tenancy under the said sub-clause. In that case all the legal representatives of the deceased would be tenants-in-common and their tenancy would be governed under Section 5 (11) (b) of the Act. ( 18 ) THE position in law therefore is that on the facts and in the circumstances of this case the (Courts below were right in holding that the question of transmission of tenancy under Section 5 (11) (c) (ii) of the Act did not arise in this case. Mr. Shah then argued that Ratanbai was a contractual tenant but I do not see how assuming the submission is correct that helps the petitioners case. Whether a contractual tenant or a statutory tenant her legal representatives can claim interest in the tenanted property as tenants-in-common only and since they were all impleaded as parties to the suit the suit was clearly maintainable and on proof of sub-tenancy they were liable to be evicted in law. In the present case therefore the question whether Hiraji was a contractual tenant at the date of his death or whether Ratanbai was accepted as a contractual tenant recedes in the background once it is proved that Section 5 (11) (c) (ii) of the Act is not attracted and at best the legal representatives of the deceased can inherit the tenancy as tenants-in-common under the ordinary law. By the decision of the Full Bench in Babubhais Case (Supra) all that is held is that even the legal representatives of a statutory tenant can inherit the tenancy as tenants-in-common since the distinction between a contractual tenant as a statutory tenant has since obliterated. In any view of the matter therefore the decree for eviction must be sustained. By the decision of the Full Bench in Babubhais Case (Supra) all that is held is that even the legal representatives of a statutory tenant can inherit the tenancy as tenants-in-common since the distinction between a contractual tenant as a statutory tenant has since obliterated. In any view of the matter therefore the decree for eviction must be sustained. ( 19 ) THESE were all the submissions made at the hearing of this revision application and as I do not find substance in any of them the revision application fails and is dismissed. Rule discharged with no order as to costs. Rule discharged. .