S.K. JHA, J.

(1.) This is a plaintiff landlords appeal against a judgment of affirmance. The suit was one for eviction under Section 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (hereinafter to be referred to as the Act). Both the trial Court and the lower appellate Court having dismissed the appellants suit, the present appeal has been filed.

(2.) This appeal must succeed on two pure questions of law. The original defendant Shri Mithileshwar Singh was admittedly the tenant of the premises in question under the appellant. He died during the pendency of the suit and was substituted by his heirs who are the present respondents. The grounds on which his eviction had been sought were two-fold --default in the payment of rent and bona fide personal necessity of the appellant for use of the premises in question. The subject-matter of tenancy is a house bearing holding No. 22 within the Patna Municipal Corporation. Mithileshwar Singh aforesaid was a monthly tenant and used to pay rent at the rate of Rs. 20/- per month. The appellant alleged default in payment of rent from September. 1965 to January, 1966 and it was further asserted that the landlord required the house in good faith for personal necessity. The tenancy of Mithileshwar Singh was duly terminated by sending a registered notice to quit which was served on him on 13-12-1965. A further prayer was made in the suit for recovery of a sum of Rs. 100/-as arrears of rent. The defence, inter alia, was that although the tenant was paying admittedly rent at the rate of Rs. 20/- per month, as a matter of fact, rent legally payable was only at the rate of Rs. 14/7/3 per month with effect from 1-7-1951 which was the amount fixed as fair rent for the house by the House Controller. Therefore, all payments made in excess of the fair rent fixed with effect from 1-7-1951 upto the month of August, 1965 were adjustable from the rents to be paid in future. Hence, in spite of the fact that no payment of rent was made from September, 1965 to January, 1966, the tenant was not a defaulter. It was next contended that the notice to quit under Section 106 of the Transfer of Property Act was not validly served and lastly that the plaintiff landlord did not require the house for personal necessity.

(3.) The concurrent findings of fact of both the Courts below are these. Fair rent was fixed at the rate of Rs. 14/7/3 per month with effect from 1-7-1951 by the Controller. Therefore, any amount paid in excess was liable to be adjusted in favour of the tenant. The lower appellate Court treating the claim for adjustment as a plea of set off allowed the respondents to pay a court-fee on such excess amount, to the refund of which they were found entitled, thereby declaring the respondents as non-defaulters. It was further held that notice to quit determining the tenancy was duly and validly served on the original defendant. Lastly it was found that the house in which the plaintiff was residing along with his family members had six rooms whereas the number of members was eight or nine and that, therefore, it could not be said that the house was bona fide required for personal necessity.

(4.) The finding with, regard to the determination of tenancy on valid service of notice to quit being in favour of the appellant, the only other two points, on which his suit has failed, are, firstly, that since the tenant had paid rent at a rate in excess of the fair rent fixed, the tenant was entitled to have the rent due from September, 1965 to January, 1966 set off rendering him not a defaulter within the meaning of Section 11 of the Act and secondly, that bona fide personal requirement had not been proved. I think both the points have been decided against the appellant on a wrong view of law. Section 8 (3) of the Act reads thus :--

"In every case in which the Control ler determines or re-determines the fair rent of a building, he shall appoint a date with effect from which the fair rent so determined or re-determined shall take effect....."

Section 8 (2) says--

"When the fair rent of a building has been determined or redetermined, any sum in excess or short of such fair rent paid, whether before or after the date appointed by the Controller under Sub-section (3), in respect of occupation for any period after such date, shall in case of excess, be refunded to the person by whom it was paid or at the option of such person, be otherwise adjusted and, in case of shortage, be realised by the landlord as arrears of rent from the tenant....."

It will be seen from a plain reading of the two provisions aforesaid that two modes have been prescribed for reimbursing the tenant, who has paid any money in excess of the fair rent fixed by the Controller. One is a right to have the excess so paid refunded to him. This may be so done by a suit or any other remedy available at law. The other mode is that if the tenant so opts he may show his willingness by notice to the landlord to have such excess adjusted from out of the future rent payable by him. If the opt :.on of adjustment has not been exercised by the tenant, it will be futile for him to urge that merely because some excess, to which he is entitled either for a refund or adjustment, is lying in the hands of the landlord, he will be immune from payment of the rent and future rent. If he hazards to traverse such a path, he will have to thank himself for being still a defaulter in the eye of law. Dealing with provisions, more or less, akin to Section 8 (2) of the Act, a Bench of the Madras High Court has held in the case of In re Navaneethammal, (AIR 1951 Mad 343 [LQ/MadHC/1950/147] ). that to invoke such statutory provisions the tenant should exercise the option and call upon the landlord in time to make the adjustment. The mere fact that the landlord had with him an advance rent does not mean that the tenant has not committed default within the meaning of the Act. This view I respectfully endorse. To the same effect is a subsequent single Judge decision of the Madras High Court in N. Panduranga Rao v. D. Gopala Rao, (AIR 1952 Mad 827 [LQ/MadHC/1951/216] ) where Subba Rao, J., as he then was, held as follows : "if the tenant has not paid or tendered the rent due by him within the time prescribed therein, he is liable to be evicted. The Section does not compel a landlord to adjust the excess amounts in his hands towards any arrears of rent, if the said amounts were not paid by the tenant towards the rent of any particular month. It is true that on the, date when a tenant authorises the landlord to adjust the amounts with him towards the rent of any particular month, or months the amount will be deemed to have been paid on that date towards rent. But till that adjustment is made and the amount is so appropriated, any amounts in excess of the rent due with the landlord will only be payments made in suspense. The fact that such excess came into the hands of the landlord by reason of the Rent Controllers order fixing the fair rent does not really affect the question." I must, therefore, hold that on the admitted facts and the finding of the Courts below the original tenant defendant must be held to be a defaulter within the meaning of Section 11 (1) (d) of the Act

(5.) So far as the other point on which the appellant has been made to lose is concerned, it remains merely of an academic importance, in view of what I have held on the first point. Even so, the question involved being an interesting one from the legal point of view, I think it worthwhile to deal with this aspect of the matter also. As I have already stated, the tenant Mithileshwar Singh, who was the original defendant, died during the pendency of the suit. The question that arises then is as to what is the status in law of the present respondents, in this action. The law in this behalf has been laid down by the Supreme Court in the case of J. C. Chatterjee v. Shri Sri Kishan Tandon, (AIR 1972 SC 2526 [LQ/SC/1972/359] ). It has been held that a person remaining in occupation of the premises let out to him after the determination of, or expiry of the period of 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. The 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. On the death of a statutory tenant pending eviction suit his heirs and legal representatives brought on record cannot claim the status of tenant as no rent is payable by them. The only contentions that they can put forward are those appropriate to their representative character and not one which was personal to the deceased. The defence of want of bona fide requirement by the landlord is personal to the statutory tenant and on his death the same is not open to his legal representatives. In this view of the matter, it was not open to the present respondents, who were not tenants at all, to put up a plea that the landlord appellant did not require the house in good faith for personal necessity. Such a defence not being available to them, the Courts below have clearly committed an error of law in going into that question.

(6.) For the reasons stated above, I am constrained to hold that this appeal is bound to succeed. I accordingly allow this appeal and decree the appellants suit with costs in respect of the two Courts below, as no one appeared on behalf of the respondents at the time of hearing of this appeal.