JUDGMENT [ENTITY], J.
1. [CASE NUMBER] is directed against the judgment passed by the Chief Judge, City Small Causes Court, Hyderabad, in [CASE NUMBER].
2. One [ENTITY] was the original tenant, who took the premises bearing Nos. 3-4-154 and 3-4-155. Tobacco Bazar, Secunderabad, on a monthly rent of Rupees 100 from the landlord. [ENTITY] died on 29-1-1971, [ENTITY]'s concubine [ENTITY], who has living with [ENTITY], at the time of his death, requested the landlord to allow her to continue in the premises in question after the death of [ENTITY] on the same rent of Rs.100 per month from 1-2-1971 till she gets an alternative accommodation. The landlord agreed to take [ENTITY] as his tenant and permitted her to be in the occupation of the suit premises on the same rent of Rs.100 per month from 1-2-71. As she failed to pay the rents from 1-2-1971 terminating the tenancy of [ENTITY] and asked her to vacate the premises by January, 1973 and demanded her to pay rupees 2,200 towards arrears of rent. Thereafter the landlord filed eviction petition against [ENTITY] on the Ground of willful default in the payment of rents. He also took the ground of subletting alleging that [ENTITY] had sublet the premises to one [ENTITY], the nephew of the original tenant, [ENTITY].
3. [ENTITY] resisted the eviction petition. She denied the landlord's allegation that after the death of [ENTITY] she requested the landlord to allow her to be in the occupation of the premises in question on the rent of Rs.100 per month from 1-2-1971 till she gets an alternative accommodation and she asserted that she was not the tenant of the landlord. She also contended that [ENTITY], the nephew of [ENTITY] is tenant of the suit premises after the death of [ENTITY]. She, therefore contended that she did not commit any willful default nor any sub-letting.
4. [ENTITY] filed [CASE NUMBER] for impleading himself requesting the Rent Controller to implead him as respondent No. 2 in the [CASE NUMBER]. He claimed that the was the nephew of the original tenant, [ENTITY] and he was living with him at the time of his death and he should, therefore be treated as the heir of [ENTITY] and as the statutory tenant. The Rent Controller allowed his petition and impleaded him as second respondent in the above mentioned Eviction Petition as per the order dated 11-10-1974. [ENTITY] filed counter, resisting the eviction petition. He contended that he and the first respondent are entitled to occupy the premises under law as of right after the death of the tenant, [ENTITY]. He also contended that he was paying rents even during the lifetime of [ENTITY]. He further contended that he filed [CASE NUMBER] under [SECTION] of the [ACT], hereinafter called as the [ACT], alleging that he was the tenant of the landlord-petitioner's father and the petitioner interfered with his amenities of passage etc. But that petition was dismissed for default. He denied the allegation of the landlord that he was the sub-tenant of [ENTITY]. He also contended that he was paying rent till Aug., 1972 and later the landlord refused to receive the rents with ulterior motive.
5. The learned Rent Controller held that the second respondent's contention that he is the tenant is barred by res judicata in view of the decision in [CASE NUMBER] as the Rent Controller gave a finding in [CASE NUMBER] in [CASE NUMBER] that the second respondent is not the tenant and that finding binds the second respondent even though [CASE NUMBER] filed by him was dismissed for default. Even on merits the learned Rent Controller held that there is no relationship of landlord and tenant between them in respect of the premises occupied by him. But the learned Rent Controller held that the first respondent is the tenant of the petitioner-landlord. He rejected the petitioner's claim of sub-letting . He also held that the first respondent committed default in the payment of rents. On the basis of the finding that the first respondent committed willful default, the learned Rent Controller allowed the eviction petition and directed both the respondents [ENTITY] and [ENTITY] to vacate and deliver vacant possession of the premises within two months from the date of the order.
6. Aggrieved with the said order of eviction the second respondent preferred [CASE NUMBER] before the Chief Judge City Small Causes Court, who is the Appellate Authority. The first responded did not choose to prefer any appeal. Hence the second respondent appellant impleaded [ENTITY] in the appeal. But during the pendency of the appeal [ENTITY] died.
7. The Appellate Authority did not accept the claim of appellant [ENTITY] that he was the tenant by the operation of law under [SECTION] of the Act after [ENTITY]'s death, even though he was [ENTITY]'s nephew and living with him as a member of his family , since he does not come under any of the categories of the persons mentioned in [SECTION] of the act. He, therefore held that [ENTITY] is not the tenant of the landlord and hence the appeal is not maintainable, the Appellate Authority felt it not necessary to examine the questions whether [ENTITY] had not sublet the premises to [ENTITY] or whether [ENTITY] committed willful default in payment of rents? The Appellate Authority, therefore, dismissed the appeal. Aggrieved with the judgment passed by the Appellate Authority in [CASE NUMBER] [ENTITY] preferred this revision.
8. After the dismissal of [CASE NUMBER] the landlord filed [CASE NUMBER] in [CASE NUMBER] before the Rent Controller, Secunderabad, against [ENTITY]. Then [ENTITY] filed [CASE NUMBER] under [SECTION] of the [ACT]. In that petition [ENTITY] contended that inasmuch as the Rent Controller and the Appellate Authority held that he was not the tenant, he cannot be evicted on the basis of the orders passed in [CASE NUMBER], confirmed by the judgment in [CASE NUMBER] and the Rent Controller has no jurisdiction to pass order of eviction against him and as such the [CASE NUMBER] is not maintainable and it should, therefore, be dismissed.
9. The landlord contended in his counter that [ENTITY], against whom the eviction order was passed and the same was confirmed by the Appellate Authority is not permitted to take the plea that the eviction petition is not maintainable since he got himself impleaded in the eviction petition even though the landlord did not implead him and hence he is bound by the eviction order and it is not open to him to take inconsistent plea that he is not the tenant and the Rent Controller has no jurisdiction to pass eviction order.
10. The Rent Controller took the view that [ENTITY] is not a third party but he got himself impleaded as party in [CASE NUMBER] as the second respondent and hence he is bound by the orders passed in [CASE NUMBER] and confirmed by the Appellate Authority in [CASE NUMBER]. He therefore, observed that the provisions of [SECTION] are not available to [ENTITY] and dismissed the [CASE NUMBER]. Aggrieved with that order [ENTITY] filed [CASE NUMBER].
11. The two revisions came for hearing before [ENTITY], J. The learned counsel appearing for the revision petitioner contended that the authorities below have no jurisdiction to order for eviction of the revision petitioner to order for eviction of the revision petitioner when they came to the conclusion that the revision petitioner was not the revision petitioner was not the tenant and when under the [ACT] the Rent Controller has jurisdiction to pass orders of eviction only against a tenant. The counsel appearing for the landlord, on the other hand, contended before the learned single Judge that since [ENTITY] got himself to be the tenant of the landlord, he is bound by the decision of the authorities below when the order for eviction is passed from the premises after holding that he was not the tenant. Brother [ENTITY], J. entertained a doubt whether the authorities below were correct in passing orders of eviction under the [ACT] when they gave a finding that the revision petitioner was not the tenant of the landlord and there was no assignment of tenancy, nor he was a sub-tenant of the landlord. The learned single Judge, therefore, felt that a question of importance is involved, and hence, it should be decided by a Bench, and thus he referred the matter to a Bench. Thus the matter came before us.
12. Sri [ENTITY] appearing for the revision petitioner contends that the authorities below did not consider the provisions of [SECTION] of the Act in their proper perspective and are erroneous in not taking [ENTITY] as the tenant by operation of law even though he is the heir of the original tenant, [ENTITY] and was living with him at the time of death in the premises and the definition of the tenant should not be restricted to the tenant, his surviving spouse or son or daughter of the deceased son who had been living with the tenant in the building as member of the tenant's family up to the death of the tenant, and a person continuing in possession after the termination of the tenancy in his favour.
13. Sri [ENTITY], appearing for the landlord, on the other hand, contends that the landlord filed the eviction petition against [ENTITY] but not against [ENTITY]. But [ENTITY] got himself impleaded as the 2nd respondent in the eviction petition [CASE NUMBER] after obtaining orders on 11-10-1074 in [CASE NUMBER]. He, therefore, contends that he is boundby the orders of eviction passed by the authorities below and the Authorities below were justified under law in ordering for eviction of [ENTITY] from the premises after holding that the is not a tenant and hence it is not open to [ENTITY] to take inconsistent stand in the execution petition and plead that he is not the tenant and that the Rent Controller had no jurisdiction to pass orders of eviction against him .
14. Before we deal with the several contentions raised by both the sides, we would like to consider the scope and effect of the provisions of [SECTION] of the Act, which give the definition of the tenant. [SECTION] of the Act reads as follows:-
"Tenant" means any person by whom or n whose account rent is payable for building an includes the surviving spouse, or nay son or daughter, of deceased tenant who had been living with the tenant in the building as member of the tenant's family up to the death of the tenant and a person continuing in possession after the termination of the tenancy in his favour, but does not include a person placed in occupation of a building, by its tenant or a person to whom the collection of rents or fees in a public market, cartstand or slaughter house or of rents for shops has been framed out or leased by a local authority".
15. This definition would make it clear that (1) a person by whom rent is payable or on whose account rent is payable for a building is treated as a tenant.(2) if such a tenant dies, his surviving spouse or his son or daughter who had been living with him in the building as a family member up to his death; and (3) if the tenant continues to be in possession even after the termination of the tenancy in his favour, he can also be treated as tenant.
16. [ENTITY], J., had an occasion to consider the ambit of the definition of the word 'tenant' in [SECTION] of the Act in [PRECEDENT], . In that case one [ENTITY] was the tenant. HE died unmarried. His brother [ENTITY], the father of the petitioners 2 to 4 survived him. The petitioners 2 to 4 survived him. The petitioners were living in the house along with their uncle [ENTITY], the deceased till his death as members of joint Hindu Family. After the death of [ENTITY] the petitioners tendered rent, but the landlord refused to receive the same. Thereafter, the rent was sent by money order, but it was also refused. Once again the petitioners remitted the rents due for the months of February and Mar. 1977 but they were also refused. The petitioners issued a registered notice on 22-4-1974 calling upon the landlord to specify the Bank with his account number in which the rents can be deposited by them. But the landlord did not give any reply. Hence the petitioners filed an application before the Rent Controller under [SECTION] of the Act. The landlord and tenant between them either by agreement or by operation of law and that the petitioners were not t he tenant within the meaning of [SECTION] of the Act after the death of the tenant [ENTITY].
The Rent Controller as well as the Appellate Authority upheld contention of the landlord and refused to treat the petitioners as tenants, as the tenants fall within the meaning of [SECTION] of the Act and refused to grant permission under [SECTION] of the Act to deposit the rents in the court. The petitioners were, therefore, aggrieved with the concurrent, findings of the Authorities below and referred a revision. It is in that context that the learned single Judge examined the ambit of the definition of the word tenant given under [SECTION] of the Act and held that the petitioners do not fall within the persons mentioned in the definition of [SECTION] of the Act and observed as follows(at p.278):-
"The definition which extends the tenancy which is otherwise extinguished on death includes only three classes of persons, viz., surviving spouse, son or daughter. Even for these three classes of persons, further limitation is placed for their becoming a statutory tenant. It is that they should be living with the tenant as members of his family at the time of his death. So a member of the household or friend merely living with the tenant at the time of the death of the tenant cannot be held to be a tenant within the meaning of the definition of "tenant".
17. Sri [ENTITY], the learned counsel for the petitioner, contends that t he leasehold rights are heritable and as such [ENTITY] who was the legal representative of the deceased-tenant, can be treated as a statutory tenant. In support of his contention he relied upon the decision of the Supreme Court in [PRECEDENT].
18. As against this contention Shri [ENTITY] contends that in the earlier decisions of the Supreme Court in [PRECEDENT], , and [PRECEDENT], it was held that the leasehold rights are not heritable and hence any legal representative of the deceased tenants is not entitled to be treated as a statutory tenant and it is only those persons, who are specifically mentioned in the definition of the tenant given in [SECTION] of the Act that are entitled to claim as statutory tenant.
19. In [PRECEDENT], (supra) the Supreme Court dealt with [ACT] as amended in 1959. The question there was whether a tenant whose tenancy had been terminated had any right to sub-let the premises. Their Lordships, [ENTITY], and [ENTITY], JJ., held that the statutory tenant meaning a tenant whose tenancy was determined but who continues in possession has no power of sub-letting. Their Lordships observed that a person remaining in occupation of the premises let to him after the determination of or expiry of the period of the tenancy is commonly, though in law not accurately, called a statutory tenant. Such a person is not tenant at all; he has no estate or interest in the premises occupied by him. HE has merely the protection of the statute in that the cannot be turned out so long as he pays the standard rent and permitted increases, if any, and performs the other conditions of the tenancy.
His right to remain in possession after the determination of the contractual tenancy is personal; it is not capable of being transferred or assigned, and devolves on his death only in the manner provided by the statute. The right of a lessee from a landlord on the other hand is an estate or interest in the premises and in the absence of a contract to the contrary is transferable and the premises and in the absence of a contract to the contrary is transferable and the premises may be sublet by him. But with the determination of the lease, unless the tenant acquired the right of a tenant holding over, by acceptance of rent or by assent to his continuing in possession by the landlord the terms and conditions of the lease are extinguished and the rights of such a person remaining in possession are governed by the statute alone. His Lordship Sri [ENTITY], J., rendered dissenting judgment.
20. In [PRECEDENT] (supra) the Supreme Court dealt with [ACT]. The question for decision was whether on the death of a statutory tenant his heirs succeed to the tenancy so as to claim protection of the Act. In this case it was held t hat after the termination of contractual tenancy, a statutory tenant enjoys only a personal right to continue in possession and on his death his heirs do not inherit any estate or interest in the original tenancy.
21. Both the cases proceed on the basis that, a tenant whose tenancy had been determined but who continues in possession is described as a statutory tenant having no estate or interest in the premises except a personal right to remain in occupation and the tenancy rights are not heritable.
22. In [ENTITY]'s case supra [ENTITY] and [ENTITY] were members of a Hindu Joint Family and they brought a suit for ejectment on July, 31, 1962, against their tenants, [ENTITY] and [ENTITY] on the grounds mentioned in [SECTION] of the [ACT], which provides under clause (a) for the eviction of a tenant if the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent has been served on him by the Landlord in the prescribed manner and under clause (f) that the accommodation let for non-residential purposes is required bona fide by the landlord for the purpose of continuing or starting his business or that of nay of his major sons or unmarried daughters if he is the owner thereof or that of any of his major sons or unmarried daughters if he is the owner thereof or for any person for whose benefit the accommodation is held that the landlord or such person has no other reasonably suitable non-residential accommodation of his own in his occupation in the city or town concerned.
23. The plaintiff's case under [SECTION] was that the defendants-t enacts had defaulted in paying rent for the period Oct. 1, 197\61 to May 31, 1962 and did not also pay or tender the amount in arrears within two months of the service of the notice of demand. The plaintiff's case under cl.(f) was that the accommodation was required bona fide by t he plaintiff's for the purpose of starting their own business. Before the suit was instituted t he plaintiffs had determined the tenancy from May 31, 1962 by a notice dated May 7,1962. The house in dispute was let out to the defendants on a monthly rent of Rs. 275/- for the purpose of their business. The trial Court by its judgment and decree dated Nov.11, 1974 dismissed the suit for eviction. The plaintiffs were therefore, aggrieved with the decision of the Rent Controller and preferred appeal. The Appellate Authority reversed the decision of the trial court and decreed the suit. The defendants were therefore aggrieved with the decision of the Appellate Court and preferred the second appeal in the High Court.
24. During the pendency of the second appeal in the High Court both the tenants died. [ENTITY] died on or about Jan. 27, 1966 and his legal r representatives were brought on record and substituted in his place without objection, [ENTITY] died on March 2, 1967 and his heirs applied for being brought on record in his place as appellants. The plaintiffs made an application praying for an order that the appeal had abated as a consequence of the death of both the defendants. In this application the plaintiffs contended that [ENTITY] and [ENTITY] were "merely statutory tenants and their right to resist ejectment on the basis of [ACT] was merely a personal right", which was not heritable and had "not devolved upon their heirs". By its order dated July, 26 1967 the High Court allowed the application for substitution made by [ENTITY]'s heirs overruling the plaintiff's objection. Ultimately on Nov. 6, 1967 the High Court allowed the appeal setting aside the decree of the lower Appellate Court and restoring the decree of the trial court dismissing the suit. The plaintiffs once again preferred appeal before the Supreme Court against the decision of the High Court.
25. Before the Supreme Court Mr. [ENTITY] for the plaintiffs-appellants raised three contentions, out of which the first contention is relevant for the purpose o these revisions. That contention was that [ENTITY] and [ENTITY] both of whom were statutory tenants had no heritable interest in the demised premises and on their death, the right to prosecute the appeal in the High Court did not survive to their heirs and legal representatives. In support of his contention Mr. [ENTITY] relied upon the decisions of the Supreme Court in [PRECEDENT] (supra) and [PRECEDENT] (supra).
26. Their Lordships considered the decisions in these two cases and ultimately observed as follows :-
"We find it difficult to appreciate how in this country we can proceed on the basis that a t 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 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 [ACT]. 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 statute. 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 [ACT] to find out whether the respondent predecessors-in-interest retained aheritable interest in the disputed premises even after the termination of their tenancy".
27. Their Lordships further held as follows (at p. 2236 of [PRECEDENT]
"The concept of statutory tenancy under the [ACT] and under the Indian statutes like the one we are concerned with in this appeal rests on different foundations. It must, therefore, be held that the predecessors-in-interest of the present respondents had a heritable interest in the premises and consequently the respondents had the right to prosecute the appeal in the High Court. Mr. [ENTITY]'s first submission thus fails".
28. Their Lordships, therefore, deprecated the difference between the contractual tenancy and the statutory tenancy with regard to the heritability of the tenancy, when the tenancy has its origin. In contract, According to their Lordships 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 disappeared the statute can only preserve his status of irremovability and not the estate which he had in the premises in his occupation.
29. Thus the legal position on this aspect is clear, where a tenant dies, his legal heir is entitled to claim tenancy rights by operation of law in respect of the premises for which the deceased was the tenant, even though he does not come under any of the categories of persons enumerated in [SECTION] of the [ACT]. This right is conferred on a statutory tenant by virtue of the incident of heritability just as it is available in the case of a a contractual tenant.
30. Sri [ENTITY] contends that their Lordships of the Supreme Court rendered this decision with reference to [SECTION] of the [ACT] read with [SECTION] of the same Act and hence it has no application to the case on hand.
31. We find it difficult to accept this contention in view of the proposition of law laid down by their Lordships in this case. In that case as stated above the main controversy was the question of heritability of the tenancy after the death of the deceased tenant. In the earlier decisions in [PRECEDENT] (supra) and [PRECEDENT] (supra) their Lordships unequivocally held that the tenancy under rent Acts is not at all heritable and with the determination of the tenancy the estate disappears and the statute can preserve only his state of irremovability. But in [ENTITY] v. Parashram (supra) their Lordships declined to follow the view taken in [PRECEDENT] (supra) and [PRECEDENT] (supra) with regard to the heritability. Their Lordships, on the other had, positively laid down that just as the contractual tenant, the statutory tenant also has an estate or property in the subject matter of the tenancy and the heritability is an incident of the tenancy.
Thus there is a conflict of view taken in [PRECEDENT] (supra) and [PRECEDENT] (supra) and the case in [PRECEDENT] (supra). It is now well settled that [SECTION] gives a constitutional status to the theory of the precedents in respect of the law declared by the supreme Court, which us essential for proper administration justice. Where there conflict between the two decisions of the Supreme Court given by judges of equal strength, the decision of the later Bench would be binding. If that be so, the decision, in [ENTITY]'s case (supra) will prevail over the ruling in [ENTITY]'s case (supra) which was rendered by a Bench of two Judges, the ruling in [ENTITY]'s case prevails.
32. Besides the decision of the Supreme Court in [ENTITY]'s case we have the decision of the Division Bench of this Court, Which is also helpful to the case on hand. The division Bench of this court in [CASE NUMBER] dated 24-4-1970 held that an application for eviction was maintainable against the legal representative of the deceased tenant through it does not come within the categories of persons mentioned in [SECTION] of the [ACT] as [SECTION] of the [ACT] permits that an eviction petition can be filed against the legal representative of the tenant.
33. The legal representative is not defined by the [ACT]. It is, therefore, clear that even though [ENTITY] was not the tenant, he is in the occupation of the premises as the nephew of the deceased tenant-[ENTITY]. Hence he claims to be the legal representative of the deceased-tenant, [ENTITY]. Obviously he does not come under the categories of persons mentioned in [SECTION] of the [ACT]. But their cannot be any doubt that as the nephew of the deceased tenant, he would come under the legal representative in the [ACT]. The division Bench of this court in the above Civil Revision Petition held that where the [ACT] in silent the definition of legal representative given in the [ACT] applies. The above cited ruling of the Divisional Bench also makes it clear that an eviction petition is maintainable against the legal representative of the deceased tenant even though he does not come under the category of persons mentioned in [SECTION] of the [ACT].
34. Thus it is clear that inasmuch as [ENTITY] is the legal representative of the deceased tenant ([ENTITY]) he was rightly impleaded as the second respondent in the eviction petition. Even the decision of the Supreme Court in [ENTITY]'s case (supra) laid down that a legal heir can be brought on record in an eviction petition and he is entitled to claim tenancy rights of the deceased-tenant by virtue of the heritability.
35. In view of this legal position, the contention of Sri [ENTITY] that the revision petitioner is entitled to claim tenancy rights from the deceased-tenant on the ground of heritability, is well founded. The revision petitioner is therefore, entitled to resist the eviction petition and his appeal is, therefore, maintainable.
36. As we have followed the decision of the Supreme Court in [ENTITY]'s case (supra), we have to hold that the decision of the single Judge in [PRECEDENT] (supra) of this Court is no more a good law.
37. Since the tenancy is heritable as laid down by the Supreme Court in [ENTITY]'s case (supra) and the revision petitioner has been in occupation of the premises, which were taken by the deceased-tenant under the agreement of tenancy, he is entitled to claim tenancy rights in respect of that premises as the heir of the deceased tenant. As the petitioner is a statutory tenant. As the petitioner is a statutory tenant, it is open to the landlord to evict the petitioner under any one of the grounds mentioned in [SECTION] of the [ACT] and it is again open to the revision petitioner to resist it. The eviction petition was filed on the ground of willful default. The revision petitioner contends that he has not committed willful default in the payment of rents. Neither the Rent Controller nor the Appellate Authority gave a decision whether the petitioner committed willful default or not, though the petitioner adduced evidence and filed documents in support of his contention that he is not a defaulter. The Appellate Authority dismissed the appeal only on the ground that the appeal is not a maintainable. As we held that the appeal only on t he ground that the appeal is not maintainable. As we held that the appeal is maintainable, we have that the appeal is maintainable, we have to remand the matter to the Appellate Authority for disposal on merits. We, therefore, set aside the judgment of the Appellate Authority and remand the matter to the Appellate Authority. We direct the Appellate Authority to restore the appeal on its file an dispose of it in accordance with law.
[CASE NUMBER]:
38. In view of the order of remand, the [CASE NUMBER] is allowed, but without costs. [CASE NUMBER]:
39. As the orders of the Rent Controller as confirmed by the Appellate Authority are set aside and the matter is remanded to the Appellate Authority with the direction that the appeal should be restored to his file and it should be disposed of on merits, no orders need be passed in this revision petition. It is , therefore, dismissed. No costs.
40. Order accordingly.