A.C Goyal, J.:— Facts giving rise to this second appeal under Section 100 C.P.C briefly narrated are that respondent plaintiff filed a civil suit against the original tenant Mohd. Adam Kureshi, on 1.8.1975, for eviction and arrears of rent with the averments that the tenant committed default in payment of rent from 1.2.1973 and the suit shop was required by the plaintiff. The defendant in his written statement while admitting his tenancy denied the ground of eviction. Issues were framed and after recording the evidence of the parties, decree of eviction vide judgement dated 10.9.1997 was passed on the ground that requirement of plaintiff was reasonable and bonafide and comparative hardship would be caused to the plaintiff in case decree of eviction is not passed.

2. First regular Appeal No. 40/97, filed by the original Mohd. Adam Kureshi was dismissed by learned Additional District Judge No. 1, Kota, vide impugned judgment dated 8.7.2002, on the ground that the appellant-tenant died during the pendency of appeal on 18.12.2001 and his legal heirs being not tenant, under the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (hereinafter referred to as the ‘Act’) are not entitled to any relief and thus this appeal was dismissed as abated. Hence, this second appeal by sons and daughters of the original tenant as his legal-heirs.

3. I have heard learned counsel for the parties. Before adverting to the submissions, it is necessary to reproduce the provisions with regard to definition of the tenant. Section 3(vii)(b) of the Act reads as under:—

(vii) “Tenant” means:—

(vii)(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 purposes ordinarily residing out for residential purposes ordinarily residing and in the case of premises purposes ordinary carrying on business with him in such premises as member of his family upto his death.

4. Learned counsel for the appellants submitted that the appellants are legal representatives of the deceased tenant as defined under Section 2(11) of the code of Civil Procedure, 1908. According Section 2(11) of the Code, “Legal representative” means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or issued in a representative character the person on whom the estate devolves on the death of the party so suing or sued. It was next submitted that on making an application on behalf of the legal representative of the deceased tenant, it was duty of the first appellate court to refer this question to be determined by the trial court as provided under Order XXII, Rr. 5 C.P.C According to him, the property can not kept in abeyance upon the death of the person and the moment the tenant dies his sons and daughters get interest in the suit property and thus the appellants were/are entitled to continue in possession of the suit shop as legal representatives of the deceased tenant. He relied upon Smt. Ramjeevni v. Smt. Narati Bai (1), wherein Full Bench of this Court held that clause (b)of definition of ‘tenant’ contained in sub-sec. (vii) of S. 3, of the Act means that the protection of the Act is available to the spouse, son and daughter of deceased statutory tenant and the said heirs are not required to fulfill the further condition laid down in the latter part of the said clause, viz. that in case of premises leased out for residential purposes they must have been ordinarily residing with the deceased statutory tenant in said premises upto his death and in the case of premises leased out for commercial or business purposes they must have been ordinarily carrying on business with the deceased statutory tenant in such premises upto his death. Two other judgments of this Court reported in Govind Narain v. Bodh Raj (2), and Smt. Kanchen Devi & Ors. v. Akbar Khan & Ors. (3), are based upon the Full Bench judgment of this Court in Smt. Ramjeevni's case (supra).

5. Per contra, learned counsel for th respondent submitted that it is not disputed that the appellants are the legal representatives of their deceased father according to their personal law but as far as their rights as “legal-representatives” of the original tenant are concerned, it would be governed by the definition of the “tenant” and to seek protection against eviction under the Act, it was necessary for the appellants to plead that they were ordinarily carrying on business with their father in the suit shop as members of his family upto his death. It was next contended that it was no where pleaded either by the tenant or by the present appellants that they were carrying on business with the deceased tenant in the suit shop as members of his family upto his death, hence question of enquiry did not arise at all. He placed reliance upon Tara Chand v. Ram Prasad (4), Counsel for the appellants also relied upon this judgement.

6. I have considered the rival submissions. The facts of Tara Chand's case (supra) were that the original tenant Smt. Anandi died in September, 1966. She was tenant of the respondent landlord from 1.5.1964 The landlord instituted the suit for eviction against the husband as well as son of Smt. Anandi, after her death on the ground that both of them were not his tenants. The trial court dismissed that suit. During the pendency of the appeal the provisions of Section 3(vii)(b) of the Act were amended in the year 1976 by Act No. 14 of 1976. Thereafter both the appellants prayed vide an application that they were carrying on business with the original tenant, hence they were now the tenants. Both the trail court as well as the appellate court did not find this fact to be proved and passed decree of eviction against the appellants. The Hon'ble Supreme Court in para 16 of the judgment reported in Tara Chand's case (supra), held that on the death, the rights to succession to an estate of the deceased owner vested immediately on his/her than (sic then) nearest heirs and cannot be held in abeyance except when a nearer heir is then in the womb. The vested right cannot be divested except by a retrospective valid law. The appellants by virtue of intestate succession under Hindu Succession Act, being Class I heirs, succeeded to the heritable interest in the lease hold right of demised premises held by Smt. Anandi. They, thereby, stepped into the shoes of the tenant. They continued to remain in possession as on the date of the suit as statutory tenants. Thereby, they are entitled to the protection of their continuance as a statutory tenant under the Act. The Succession having been opened to the appellants and succeeded in September 1966 to the estate of the tenant without any hiatus and restriction on the heritable interest in the leasehold right held by the tenant Smt. Anandi, the Amendment Act being admittedly prospective in operation, does not apply to the facts of the case and does not have the effect of divesting their vested right in the leasehold held by the tenant. They are entitled to enjoy the tenancy rights without any restrictions or hedge put by the Amendment Act. We, thereby, hold that the Amendment Act does not apply to the facts of this case. But the appellants succeeded to the heritable interest in the leasehold right in the demised premises governed by the Act subject to the rights and limitations prescribed under the Act and also subject to the rights in favour of the respondent created under Section 13(1)(a) to (k) and other provisions of the Act. But in Para 8, it was held by Hon'ble the Supreme Court that in the amended definition of tenant, if one seeks to make avail of the benefit of statutory tenancy under the Act, he must establish to the satisfaction of the court that the serving spouse, son or daughter and other heir, in respect of premises leased out for commercial or business purposes, it must be established that the surviving spouse or son or daughter and the heir ordinarily had been carrying on the business during the lifetime of the tenant as member of the family in the demised premises and continued to do the business till date of the death of the tenant. In other words to avail of the statutory right under Section 3(vii)(b) there must continue to subsist the unity of action and continuity of membership of the family between the deceased tenant and the spouse etc. Thus, in view of the judgement of Hon'ble Apex Thus, in view of the judgement of Hon'ble Apex Court the three judgments relied upon by learned counsel for the appellants (all Supra) are not applicable to the facts of the present case. In the instant case, the original regnant died on 12.12.2001 i.e much after the amended definition of the tenant and thus as held by Hon'ble the Apex Court in para 3 of the judgment, the appellants can avail of the benefit of statutory tenancy under the Act only when it is established that they were ordinarily carrying on business with the deceased tenant in the suit shop as member of his family upto his death. This is not relevant that the present suit was filed in the year 1975.

7. The next submission with regard to enquiry has also got no force. According to Order XXII Rule 5 C.P.C enquiry as envisaged that where a question arises as to whether any person is or is not the legal representative of the deceased plaintiff or a deceased defendant such question shall be determined by the Court. It is also provided that where such question arises before an Appellate Court that Court may, before determining the question, direct any subordinate court to try the question and to return the records together with evidence. Learned counsel for the appellants relied upon Mahendra Kumar v. Lalchand (5), wherein it was held that Court was required to determine the question of legal representative, under Order XXII Rule 5 C.P.C in a case where such dispute arises. In the instant case question of any such enquiry never arose as the first appellate court categorically held that neither the appellants averred in their application filed under Order XXII Rule 4 C.P.C that all or any of them were ordinarily carrying on business with their father in the suit shop as member of his family upto his death, nor the original tenant pleaded any such fact in his written statement, rather the original tenant in his statement stated otherwise and thus the present appellants were not the tenants under the Act. I have gone through the record. The written statement was filed in February 1976 and there is no such pleading that he is doing business alongwith any of his family members. Rather in additional para 2 of the written statement it was specifically pleaded that the defendant himself carries on his business for his livelihood in the suit shop. The statement of the original tenant was recorded on 6.5.1994 While admitting himself as tenant for the last 28 to 30 years, it was deposed by him that he was carrying on his business in the suit shop for his livelihood. In cross-examination, on 5.7.1995, he pleaded that all his four sons were carrying on their separate business. All of them have got nine shops, out of nine shops, seven are on rent and in remaining two shops his sons carried on their business. It was further stated by him that he resides separately from his sons. No such plea was taken in first appeal filed by the original tenant that all his sons are carrying on their business with him in the suit shop and the most important aspect is that there is no such averments made by the present appellants in their application to implead them his legal heirs. In view of these facts, there was no question of conducting any enquiry on this point as to whether all the appellants or any of them were carrying on their business in the suit shop alongwith their father as member of his family upto his death. Thus the findings of the learned first appellate court can not be said to be perverse and no substantial question of law is involved in this appeal. Hence this second appeal is dismissed at the admission stage alongwith second stay application.