Kania, J.:— This appeal raises an interesting question under s. 5(11)(c) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the “said Act”). The facts necessary for appreciation of the contentions raised in this appeal lie within a narrow compass. The dispute in the appeal relates to a house in E Ward, Kolhapur, bearing City Survey No. 692/1-2. This house belonged to one Suresh Vasudeo Dongarkar, who sold the same to the plaintiff, who is the respondent herein, on November 29, 1964. One Chintamani Mithari had rented the said house, which I propose to refer hereafter as “the said premises” from Suresh Dongarkar at a rent of Rs. 10 p.m He was what has come to be known as a statutory tenant in respect of the said premises. The said Chintamani died in or about 1962. In 1965 the plaintiff instituted a suit being Regular Civil Suit No. 310 of 1965 in the Court of the Joint Civil Judge, Junior Division, Kolhapur, against one Muktabai Nikam, the mother of the appellants before me. The case of the plaintiff was that Muktabai was the mistress of the said Chintamani and was living in the said premises with Chintamani. After the death of the said Chintamani, the defendant continued to stay in the said premises with her children. It was contended by the plaintiff that on the death of Chintamani, the possession of Muktabai, the defendant, became wrongful and that she was a trespasser. After serving a notice on the defendant, the plaintiff filed the said suit for possession of the said premises. The defendant, Muktabai, in her written-statement raised several contentions with all of which I am not concerned here. It was, inter alia, contended by her that she was the legally married wife of the deceased Chintamani and it was denied by her that she was a trespasser in the said premises. The learned Joint Civil Judge held that the plaintiff had failed to prove that the defendant was a trespasser in respect of the said premises, although he observed that there was no satisfactory evidence on record about the marriage between the defendant and Chintamani. It was held by him that even assuming that the defendant was a mistress of the said Chintamani, as she was staying with Chintamani in the said premises along with her children at the time of Chintamani's death, she was a “tenant” in respect of the said premises in view of the provisions of s. 5(11)(c) of the said Act. The plaintiff preferred an appeal in the district Court at Kolhapur being Civil Appeal No. 428 of 1966. This appeal was disposed of by the learned Extra Assistant Judge, Kolhapur. It was held by the learned Assistant Judge that the defendant had failed to prove that she was the legally wedded wife of the said Chintamani Mithari. It was held that she was a mistress in the exclusive keeping of the said Chintamani and could not be regarded as a tenant in respect of the said premises within the meaning of the said term in s. 5(11)(c) of the said Act. It was, however, made clear by the learned Assistant Judge that he did not express any opinion about the rights, if any, acquired by the illegitimate children of the said Chintamani, who were admittedly staying in the same premises along with their mother, the defendant. This shows that the learned Assistant Judge has not made any observations regarding the rights, if any, of the appellants, in their capacity as the illegitimate children of the deceased tenant, Chintamani, in the said premises. The learned Assistant Judge allowed the appeal and decreed the suit filed by the plaintiff. It is against this judgment and order that the defendant came up by way of this appeal to this Court.

2. It may be mentioned that during the pendency of this appeal, the defendant died and the appellants have come on record as her heirs and legal representatives. Is the arguments in the appeal turn mainly on the provisions of cl. (c) of sub-s. (11) of s. 5 of the said Act, it might be useful to set out the relevant provisions of sub-s. (11) as they stood at the material time. These provisions were as follows:

“‘tenant’ means any person by whom or on whose account rent is payable for any premises and includes—

(aa) …

(c) any member of the tenant's family residing with him at the time of his death as may be decided in default of agreement by the Court;”

3. The first question which I have to consider is whether in view of the fact that the defendant Muktabai has been found to be a mistress in the exclusive keeping of the said Chintamani, it could be said that she was a member of his family for the purpose of cl. (c) of sub-s. (11) of s. 5 of the said Act. It may be mentioned that the facts found, about which there is no dispute here, show that at the time when the said Chintamani died, the defendant was living with him along with their illegitimate children in the said premises.

4. Reference can usefully be made in this connection to the decision of the Court of Appeal in Hawes v. Evenden . [1953] 2 All E.R 737.. In that case the defendant had lived with the tenant of a dwelling-house to which the Rent Restrictions Acts applied, as his mistress, for some twelve or thirteen years prior to his death. They had two children, one of whom had been adopted by foster parents, while the second child was living with her parents at the tenant's death and thereafter continued to live with the defendant at the same house. After the tenant's death the landlord claimed possession of the house from the defendant, who contended that she was entitled to the protection of s. 12(1)(g) of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920, as a member of the deceased tenant's family. The question really was whether the defendant could be regarded as a member of the deceased tenant's family residing with him at the time of his death. It was held that since the evidence justified a finding that the tenant, the defendant and their children all lived together as a family, the defendant was a member of the deceased tenant's family within s. 12(1)(g) and was therefore, entitled to the protection of the sub-section. It appears from the judgment of the Court of Appeal delivered by Somervell L.J, that the correct test to be applied to such a case is the test laid down by Cohen L.J in Brock v. Wollams,1a at p. 718, the said test being:

“…Would an ordinary man, addressing his mind to the question, whether Mrs. Wollams (defendant) was a member of the family or not, have answered ‘Yes’ or ‘No’?” (p. 738).

5. It has been made clear in the judgment that the principle laid down therein applies to a case where it is found that the defendant was living with the deceased tenant as his mistress along with their child or children. In view of this decision, it would appear that there is no reason why the defendant who was living with the said Chintamani along with their children in the said premises at the time of Chintamani's death should not be regarded as a member of his family for the purposes of s. 5(11)(c) of the said Act. It is true that the above decision is of an English Court, but I see no reason to take a different view in this connection regarding the provisions of cl. (c) of sub-s. (11) of s. 5 of the said Act.

6. It was submitted by Mr. Abhyankar, learned counsel for the respondent, that only a legally wedded wife of the deceased tenant could be considered to be a member of the family for the purpose of s. 5(11)(c) of the said Act. The question, however, as pointed out by the Court of Appeal, is not so much about the legal status of the wife, but whether she would have been regarded by an ordinary man or a layman, as a member of the deceased tenant's family at the time when he died. It will also be useful to bear in mind, as pointed out by the learned Civil Judge, that under the Hindu Digest, which was in force in Kolhapur, the position is that even a mistress would be a member of a joint Hindu family. In view of this, I fail to see why the defendant could not be regarded as a member of the family of the deceased Chintamani residing with him at the time of his death.

7. Although in respect of the question as to whether the defendant could be regarded as a member of the family of the deceased Chintamani I have taken the view that the decision of the learned Assistant Judge is erroneous, it was contended by Mr. Abhyankar that there were several other grounds by reason of which the defendant could not claim the protection of s. 5(11)(c) of the said Act. It was pointed out by Mr. Abhyankar that the facts found on the record show that apart from the defendant, who was his mistress, and his illegitimate children by the defendant, Chintamani had left surviving him his legally wedded wife and legitimate children. It was submitted by him that in view of this, the only persons who were entitled to claim tenancy under s. 5(11)(c) of the said Act were the lawfully wedded wife and the legitimate children of the said Chintamani and not the defendant. It was pointed out by Mr. Abhyankar that under the opening words of sub-s. (11) of s. 5 of the said Act, a tenant means a person by whom or on whose account rent is payable. It was submitted by him that in the case of a contractual tenancy on the death of the tenant even the heirs of the deceased tenant who were not staying with the deceased tenant in the premises would yet be persons by whom or on whose account rent is payable and would, therefore, be tenants under sub-s. (11) of s. 5 of the said Act. It was further urged by him that the same position would prevail even in the case of the death of a statutory tenant viz. a tenant who was continuing in possession after the termination of his contractual tenancy. In my view, these contentions of Mr. Abhyankar, even if they are accepted, do not make any difference in the case before me. The question which has to be considered here is whether the defendant Muktabai, was a tenant in respect of the said premises or a mere trespasser. It is not very material to consider as to whether the legally wedded wife and the legitimate children of Chintamani would also be tenants in respect of the said premises. It was urged by Mr. Abhyankar that if there were any legitimate heirs of a tenant, persons claiming under cl. (c) of sub-s. (11) of s. 5 of the said Act merely as members of the tenant's family residing with him at the time of his death would be necessarily excluded in view of the fact that cl. (c) occurs in the inclusive part of the definition of the term “tenant” in sub-s. (11). In my view, there is no substance in this contention. The provisions of sub-s. (11) show that “tenant” means a person by whom or on whose account rent is payable for any premises; and also included in the definition of the term “tenant” is a member of the tenant's family residing with him at the time of his death as may be decided in default of agreement by the Court.

8. Quite apart from this, in the present case, Chintamani was admittedly a statutory tenant. As appears from the decision of the Supreme Court in Anand Nivas (P.) Ltd. v. Anandji . [1965] A.I.R S.C 414., it is the well settled position in law that a person remaining in occupation of the premises let to him after the determination or expiry of the period of the tenancy is commonly, though in law not accurately, called a statutory tenant. Such a person is not a 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 he 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. A statutory tenant has no interest in the premises occupied by him and he has no estate to assign or transfer. In the present case, it is undisputed that the lawfully wedded wife and the legitimate children of Chintamani were not living in the said premises at all, but in another house. Chintamani, as already pointed out, was a statutory tenant, his contractual tenancy having been determined prior to his death. In view of this, it appears to me that the heirs and legal representatives of Chintamani as such can claim no rights to be the tenants of the said premises under s. 5 (11) of the said Act and it was only a member of Chintamani's family residing with him at the time of his death in the said premises as may be decided in default of agreement by the Court who can claim to be the tenant of the said premises.

9. Insupport of his contention that the wife and the legitimate children of Chintamani were the only persons entitled to the tenancy rights in respect of the said premises, Mr. Abhyankar has referred to certain decisions, to which I might now refer. He first drew my attention to the decision of Bhasme, J. in Miss Gool Rustomji Lala v. Jal Rustomji Lala* . 1971 73 Bom. L.R 600.. In that case the dispute regarding the tenancy rights was between a brother and sister, who were the son and daughter respectively of the deceased Rustomji Lala who was the contractual tenant of the premises in question. The daughter (petitioner) claimed that under the will made by the deceased tenant, the tenancy rights in the suit flat were given to her. It was submitted in that case by Mr. Abhyankar, who appeared for the daughter, that once it was held that the daughter had become the tenant under the first part of s. 5(11)(c) then it was not necessary to consider the various other clauses. Rejecting this submission it was observed by Bhasme, J. that

“…If the expression ‘tenant’ means only a person who acquires the tenancy rights of the deceased tenant, either as a heir or under the Will, then the other clauses will become redundant. It is true that as a person who gets the contractual tenancy rights under the Will the petitioner (daughter) may claim to be the tenant within the meaning of the first part of s. 5(11). But that by itself will not take away the rights which can be claimed by the various other persons under the clauses which follow.” (p. 602).

10. In the first place, this decision relates to the case of a contractual tenancy and not a case where the deceased was a mere statutory tenant as in the case before me. Moreover, the observations, which I have set out above, far from supporting the contention of Mr. Abhyankar, tend to negative the same in so far as they clearly show that Bhasme, J. was of the view that even in respect of a contractual tenancy although such tenancy might devolve on an heir or a legatee of the deceased tenant under the opening part of s. 5(11) of the said Act, the rights claimed by other persons under the clauses which follow the opening part of sub-s. (11) would not be taken away.

11. Reliance was next placed by Mr. Abhyankar on an unreported decision of K.K Desai, J. (as he then was) in Minoo, J. Patel v. Jamshedji B. Aga . 1966 Civil Revision Application No. 1556 of 1963, decided by K.K Desai, J., on February 9, 1966 Unrep... My attention was drawn by him to the observations in this decision which run as follows:

“…It would be extremely difficult to hold that by reason of the provisions in section 5(11)(c) rights of heirs of a deceased contractual tenant were sought to be extinguished. In spite of the provisions in section 5(11)(c), it would require to be held that the rights of heirs of a deceased tenant must be preferred to the rights of mere members of the tenant's family as referred to in section 5(11)(c). It is not possible that mere members of a tenant's family would be declared to be tenants under that section so as to defeat the rights of the heirs of a deceased tenant in the contractual tenancy. Having regard to the above situation, it appears to me that the question of tenancy as under section 5(11)(c) in favour of mere members of a tenant's family can arise only when the contractual tenancy is found to have been terminated before the death of a tenant and the heirs entitled to continue in occupation are unable to settle their disputes regarding their claim to be held as tenants.”

12. In my view, these observations, which do not constitute the ratio of the case, are not of much assistance in the case before me, because they relate expressly to the question of a contractual tenancy and the observations themselves show that in the case of a statutory tenancy the position might be different. Moreover, I share the hesitation expressed by Bhasme, J. in accepting the view that even when there is a contractual tenancy the mere fact that there is an heir or a person entitled under a will to the tenancy rights of the deceased tenant would exclude the claim of the members of the family of the deceased tenant residing with him as members of his family at the time of his death to the tenancy rights under s. 5(11)(c).

13. My attention was next drawn by Mr. Abhyankar to the decision of Tulzapurkar, J. in Mehroo S. Cooper v. Dina, J.S Fanibanda . 1964 First Appeal No. 164 of 1963, decided by Tulzapurkar, J., on August 19, 1964 Unrep... It has been held there that merely because a special definition of the term “tenant” is given in s. 5(11)(c) of the said Act it cannot be said that the rights of the heirs under the law of inheritance are abrogated. This decision, in my view, has no application to the case before me. In the first place, it relates to the case of a contractual tenancy whereas in the case before me, the deceased tenant Chintamani was merely a statutory tenant. Moreover, as I have already pointed out earlier, I am not concerned with the question as to whether the rights of the heirs of Chintamani under the law of inheritance are abrogated but merely with the question as to whether the defendant had any tenancy rights in the said premises or was a mere trespasser.

14. It was next submitted by Mr. Abhyankar that even as far as the defendant and her children are concerned, in view of the fact that there was no determination by the competent Court under the said Act as to which of them was the tenant, it could not be said that the defendant was the tenant in respect of the said premises and she could not claim any right as such. In the first place, such a contention has not been raised in any of the Courts below and, in my view, it cannot be raised at this stage. Moreover, the provisions of cl. (c) show that if the members of the deceased tenant's family residing with him at the time of his death are unable to decide by agreement as to which of them should be regarded as the tenant within the meaning of the said term in sub-s. (11) of s. 5 of the said Act, that question has to be determined by the Court. This, however, cannot mean that apart from the person who is determined to be the tenant, the other members of the deceased tenant's family who were living with him at the time of his death as members of his family would become trespassers in the said premises. Although one of them may be recognised to be the tenant, the others would be certainly entitled to stay in the said premises.

15. Finally it was pointed out by Mr. Abhyankar that it appears from the affidavit of the plaintiff filed in Civil Application No. 1349 of 1969 in this second appeal, for stay of execution, that the plaintiff has already obtained possession of the said premises and has demolished the same in pursuance of certain municipal notices. It was submitted by him that in view of this the appeal was futile, as possession of the said premises could not be restored to the appellants therein.

16. In my view, these considerations are not relevant for purposes of the decision of this appeal. What I have really to consider is whether the plaintiff was entitled to a decree for possession in the suit filed by him against the defendant and whether the decree passed by the learned Assistant Judge in Civil Appeal No. 428 of 1966 is justified. As I have already pointed out earlier, I have come to the conclusion that the learned Assistant Judge was in error in having passed the said decree and the suit of the plaintiff was liable to be dismissed. The question as to whether the appellants are entitled to have the possession restored to them is not one which I need consider at this stage. Such a question can be considered as and when an application is made by the appellants for restoration of possession.

17. In the result, the appeal is allowed, the order and decree passed by the learned Assistant Judge are set aside and the suit filed by the plaintiff is dismissed. Looking to all the facts and circumstances of the case, there will be no order as to costs throughout.

18. Appeal allowed.