JUDGMENT : 1. In this second appeal the principal point raised by Mr. R.M. Lodha, counsel for the appellant is that the first appellate Court was not justified in dismissing the suit inspite of the finding on additional issue that the defendants were not carrying on business with the deceased tenant. The plaintiff is landlord and the defendants are husband and son of tenant. 2. According to plaintiff's allegation Mst. Anandi took the shop on rent for 11 months at the rate of Rs. 18/- per month and executed the rent deed. The rent deed period expired. Mst. Anandi expired in 1966. 3. Mst. Anandi's husband and son are defendants, and they have got no right to continue as tenant. But the shop is not being vacated. 4. In the written statement it was pleaded that Anandi was not tenant. It was Tarachand who was tenant. It was alleged that the rent deed is forged. After framing of the issue and recording of the evidence, the trial Court found that Anandi was tenant but holding over. The trial Court then held that the legal representatives of Anandi became tenants but holding over and since all of them were not made parties the suit was liable to be dismissed. It was also held that notice under Section 106 of the Transfer of Property Act was not served and therefore, also the suit was liable to be dismissed. 5. In first appeal an additional issue was framed, and it was remitted for evidence and report on the finding. The issue was related to the question whether the defendants used to carry on the business and were in occupation of the disputed property during the life time of Mst. Anandi, as such the defendants become tenants under the meaning of Amended Ordinance of 1975. 6. The evidence was recorded and issue was decided against the defendants. The defendant in his statement clearly deposed that he or his father never engaged in business with Mst. Anandi. 7. After the finding was received the first appellate Court overlooked the amendment of definition of tenant. The first appellate Court held that so far as heirs in the first degree are concerned, they are automatic tenants. 8. In this appeal Mr. Anandi. 7. After the finding was received the first appellate Court overlooked the amendment of definition of tenant. The first appellate Court held that so far as heirs in the first degree are concerned, they are automatic tenants. 8. In this appeal Mr. Lodha has challenged the finding of the first appellate Court on the ground that the amended definition of tenant requires proof of the defendants carrying on commercial activities with the deceased tenant, during his or her life time or till his or her death and this applies to heirs of first degree as well as second degree. 9. Mr. Saxena appearing for the defendant-respondents submitted that the definition of tenant in Section 3, sub-clause (viii)(b) makes it clear that so far as surviving spouse, son, daughter and other heir are concerned, it is not necessary to prove that they were ordinarily carrying on business with the deceased tenant in such premises upto his death. According to him the grammatical construction put to clause (b) would mean that other heirs only are qualified for being eligible if the latter qualification of ordinarily carrying on business is proved but the earlier heirs in the degree of surviving spouse, son and daughter are not qualified. 10. I have heard learned counsel for the parties at length and given thoughtful consideration to the contentions of the learned counsel for the parties. 11. Mr. Saxena could not substantiate his contention from any decision of High Court or Hon'ble Supreme Court and he could not show any standard book of grammar for interpreting sub-clause (b) in the manner he has tried to do so. 12. 11. Mr. Saxena could not substantiate his contention from any decision of High Court or Hon'ble Supreme Court and he could not show any standard book of grammar for interpreting sub-clause (b) in the manner he has tried to do so. 12. In my opinion the plain language of sub-clause (b) deserves to be interpreted in ordinary manner.Section 3, sub-clause (vii)(a)(b) reads as under:- "(vii) "tenant" means : (a) the person by whom or on whose account or behalf rent is, or, but for a contract express or implied would be payable for any premises to his landlord including the person who is continuing in its possession after the termination of his tenancy otherwise than by a decree for eviction passed under the provisions of this Act; and (b) in the event of death of the person as is referred to in sub-clause (a), his surviving spouse, son, daughter and other heir in accordance with the personal law applicable to him who had been, in the case of premises leased out for residential purpose, ordinarily residing and in the case of premises leased out for commercial or business purposes, ordinarily carrying on business with him in such premises as member of his family upto his death." Surviving spouse, son, daughter and other heirs in accordance with the personal law come in the same category and no distinction has been shown to be made in the language of sub-clause (b). It is difficult to spell out by any principle of grammar of otherwise a distinction between surviving spouse, son, daughter and other heirs. Even otherwise it would be difficult to understand or appreciate that the Legislature wanted to draw a distinction between father, mother, daughter-in-law as heirs on one hand and sons and daughters on the other hand. Moreover, if the Legislature intended to do so, a distinction could have been shown in exclusive terminology and could not have been left out on the basis of the grammatical construction which cannot appear to be non-existent in the present case. 13. It should be noted that clause (viii) was introduced on 29th September, 1975 by an Ordinance and then by an Amending Act No. 14 of 1976. 13. It should be noted that clause (viii) was introduced on 29th September, 1975 by an Ordinance and then by an Amending Act No. 14 of 1976. This becomes necessary because in the absence of it the view taken was that on the death of a tenant a heir would not become tenant for the purpose of getting benefit of Rajasthan Premises (Control of Rent and Eviction) Act, 1950. This background makes it all the more necessary that the Legislature would have, if it wanted to permit spouse, son and daughter to become tenant without any further requirement in the residential premises and doing business in the commercial premises, would have done so with explicit, express and clear and categorical language. In the absence of any such explicit clear and categorical definition sought to be introduced by the Legislature, this Court cannot by process of interpretation make a distinction as suggested by Mr. Saxena, the suggestion which has found favour with the lower Court. 14. I have therefore, no hesitation in holding that the further pre-requisite qualification or condition that in commercial premises the person who claims to be a tenant of the deceased tenant on account of being surviving spouse, son and daughter and other legal heir is required to further show that he was carrying on business with the deceased tenant in these premises as part of his family upto his death. The requirement of carrying on the business as member of his family further shows that the commercial activities by the defendants should be in the capacity of family business with the deceased tenant and not as partner or any other capacity. I have therefore, no hesitation in reversing the finding of the first appellate Court on this point. 15. It would also be relevant to notice that the Hon'ble Supreme Court while deciding the Delhi Rent Control Act case in Smt. Gian Devi Anand v. Jeevan Kumar and others, AIR 1985 SC 796 , observed that statutory tenancy is normally heritable but when there is specific statute in respect of it then the statute has to be given effect to.Paras 36 and 37 reads as under : "36. Accordingly, we hold that if the Rent Act in question defines a tenant in substance to mean a tenant who continues to remain in possession even after the termination of the contractual tenancy till a decree for eviction against him is passed, the tenant even after the determination of the tenancy continues to have an estate or interest in the tenanted premises and the tenancy rights both in respect of residential premises and commercial premises are heritable. The heirs of the deceased tenant in the absence of any provision in the Rent Act to the contrary will step into the position of the deceased tenant and all the rights and obligations of the deceased tenant including the protection afforded to be deceased tenant under the Act will devolve on the heirs of the deceased tenant. As the protection afforded by the Rent Act to a tenant after determination of the tenancy and to his heirs on the death of such tenant is a creation of the Act for the benefit of the tenants, it is open to the Legislature which provides for such protection to make appropriate provisions in the Act with regard to the nature and extent of the benefit and protection to be enjoyed, and the manner in which the same is to be enjoyed. If the Legislature makes any provision in the Act limiting or restricting the benefit and the nature of the protection to be enjoyed in a specified manner by any particular class of heirs of the deceased tenant on any condition laid down being fulfilled, the benefit of the protection has necessarily to be enjoyed on the fulfilment of the condition in the manner and to the extent stipulated in the Act. The Legislature which by the Rent Act seeks to confer the benefit on the tenants and to afford protection against eviction is perfectly competent to make appropriate provision regulating the nature of protection and the manner and extent of enjoyment of such tenancy rights after the termination of contractual tenancy of the tenant including the rights and the nature of protection of the heirs on the death of the tenant. Such appropriate provision may be made by the Legislature both with regard to the residential tenancy and commercial tenancy. It is, however, entirely for the Legislature to decide whether the Legislature will make such provision or not. Such appropriate provision may be made by the Legislature both with regard to the residential tenancy and commercial tenancy. It is, however, entirely for the Legislature to decide whether the Legislature will make such provision or not. In the absence of any provision regulating the right of inheritance, and the manner and extent there of and in the absence of any condition being stipulated with regard to the devolution of tenancy rights on the heirs on the death of the tenant, the devolution of tenancy rights must necessarily be in accordance with the ordinary law of succession. "37. In the Delhi Act, the Legislature has brought it fit to make provisions regulating the right to inherit the tenancy rights in respect of residential premises. The relevant provisions are contained in Section 2(1)(iii) of the Act. With regard to the commercial premises, the Legislature in the Act under consideration has thought it fit not to make any such provision. It may be noticed that in some Rent Acts provisions regulating heritability of commercial premises have also been made whereas in some Rent Acts no such provision either in respect of residential tenancies or commercial tenancies has been made. As in the present Act, there is no provision regulating the rights of the heirs to inherit the tenancy rights of the tenant in respect of the tenanted premises which is commercial premises, the tenancy right which is heritable devolves on the heirs under the ordinary law of succession. The tenancy right of Wasti Ram, therefore, devolves on all the heirs of Wasti Ram on his death." 16. The tenancy right of Wasti Ram, therefore, devolves on all the heirs of Wasti Ram on his death." 16. The relevant provision of Delhi Rent Control Act mentioned in para 37 has been extracted in para 25, where tenant means as under : "tenant" means any person by whom or on whose account or behalf the rent of any premises is, or, but for a special contract would be, payable and includes:- (ii) any person continuing in possession after the termination of his tenancy; and (iii) in the event of the death of the person continuing in possession after the termination of his tenancy, subject to the order of succession and conditions specified respectively in Explanation 1 and Explanation II to this clause, such of the aforesaid persons (a) spouse (b) son or daughter, or, where there are both son and daughter, both of them, (c) parents, (d) daughter-in-law, being the widow of his pre-deceased son, as had been ordinarily living in the premises with such person as a member or members of his family upto the date of his death." 17. It would be seen from the above definition that so far as commercial premises are concerned, in the Delhi Rent Control Act it was conspicuously silent. 18. It was in these circumstances that the Hon'ble Supreme Court says that when the Act is mentioning qualification of residing as family member for being treated as tenant for heirs and no provision has been made at all showing when the heirs of a deceased tenant would become tenant under this law in commercial premises and the only inference is that the Legislature wanted not to prescribe any such condition or qualification. It further held that in the absence of specific law in cases of statutory tenant it is heritable. 19. In the above judgment their Lordships have taken a different view than that was taken in Ganpat Lodha v. Shashikant Vishnu Shinde, AIR 1978 SC 955 . It further held that in the absence of specific law in cases of statutory tenant it is heritable. 19. In the above judgment their Lordships have taken a different view than that was taken in Ganpat Lodha v. Shashikant Vishnu Shinde, AIR 1978 SC 955 . It would be seen that the above judgment proceeds to interpret the provisions of Delhi Tenancy Law and it is on that basis that in the absence of any requirement of a tenant's heir doing business with the deceased tenant before his death in those terms for being entitled to protection as tenant, their Lordships observed that as there was such requirement for residential promises and no such requirement for commercial premises, the only inference can be that the Legislature has thought it fit to allow the statutory tenant suits in commercial premises to enjoy the rights of the tenant without insistence of doing business with the tenant before his death. 20. So far as the Rajasthan Act is concerned, I have reproduced above the relevant provisions and statutory requirement of commercial and residential premises, but in both conditions have been laid down which are conditions precedent for holding that when the tenants heirs can also be treated as tenants. 21. Mr. Saxena has not challenged the finding of the trial Court and the first appellate Court on the additional issue wherein it has been held that the defendants have failed to prove that they were doing business in the premises with the deceased as members of his family before her death. 22. It is in these circumstances that the finding and judgment of the first appellate Court cannot be sustained. So far as the requirement of notice under Section 106 of the Transfer of Property Act is concerned it is now established law that where the Rent Control Legislation provides a condition for eviction of tenant the requirement of notice under Section 106 T.P. Act is not necessary. 23. This was held to be so in V. Dhanpal Chettiar v. Yesodai Ammal, AIR 1979 SC 1745 . It has been clearly held that notice under Section 106 of the T.P. Act is not necessary in cases governed by the State Rent Control Act and giving of such notice is unnecessary and a mere surplusage. 24. No other point has been pressed by either side for adjudication in this appeal. 25. It has been clearly held that notice under Section 106 of the T.P. Act is not necessary in cases governed by the State Rent Control Act and giving of such notice is unnecessary and a mere surplusage. 24. No other point has been pressed by either side for adjudication in this appeal. 25. Since I have accepted the contention of Mr. R.M. Lodha on the important deciding point regarding definition of tenant under the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 and the judgment of the first appellate Court is based only on that ground and on that ground which I relied, there is no escape but to accept this appeal. 26. Consequently, the appeal is accepted and the suit of the plaintiff is decreed for eviction of the premises in dispute. The parties should bear their own costs. 27. The plaintiff would also get a decree for damages for use and occupation of the premises in dispute at the rate of Rs. 18/- per month from the date of Ist September, 1966 till they vacate the premises in pursuance of this decree for eviction. Mr. Saxena submits that the part of the amount has been deposited and if it is so, that amount would be adjusted in the decree at the time of execution, if it becomes necessary.Order accordingly.