VASANT PRATAP PANDIT BANOO PIROJSHA JUNGAWALLA Vs. ANANT TRIMBAK SABNIS:ARDESHIR K IRANI ALIAS ARDESHIR K BASTANI

JUDGEMENT

(1.) The principal question that arises for consideration in these two appeals, preferred against the judgments of the High Court of Bombay, is whether tenancy rights under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as 'the Act') can be devised by a will. Ancillary thereto arises the question whether the words 'assign' and 'transfer' in section 15 of the Act include 'bequest'. Facts relevant for the purpose of disposal of the appeals are as under.

(2.) One Tara Bai, who was the tenant of the disputed premises, died issueless. She left behind a will bequeathing her properties, including tenancy right in the said premises, to her sister's son Gopal and appointing the plaintiff-appellant, her brother's son, as executor thereof. The defendant-respondent, who happens to be the grandson of a sister of the legatee, and his wife were staying with Tara Bai in the disputed premises. After her death, the appellant called upon the respondent to vacate the premises and on his refusal instituted a suit for eviction in the City Civil Court, Bombay. The respondent resisted the suit principally on the ground, that the bequest of the tenancy rights amounted to 'transfer' and it was impermissible under section 15 of the Act. Consequently, the respondent urged, the appellant could not claim his eviction. Negativing the contention of the respondent the trial Court decreed the suit and aggrieved thereby the respondent preferred an appeal in the High Court. While allowing the appeal and dismissing the suit by the impugned judgment, the High Court held that the word 'heir' appearing in section 5(11)(c) of the Act did not include 'legatee' and that the words 'assign' and 'transfer' appearing in section 15 of the Act were used in a generic sense to include bequest. Resultantly, the High Court concluded that the appellant had no right to file the suit.

(3.) Claiming herself to be the sole legatee of her father, under the probated Will dated 6-10-1961, in respect of his tenancy rights in the disputed premises, the plaintiff-appellant filed a suit for eviction of her brother and his wife therefrom in the City Civil Court, Bombay. In contesting the suit the defendant-respondents denied that the tenancy rights in respect of the suit premises had vested in the appellant by operation of law and inserted that as members of the family of the deceased residing with him at the time of his death, they were entitled to remain in possession. Relying upon the earlier judgment of the Bombay High Court in the case of (Anant T. Samis (Dr.) v. Vasant Pratap Pandit)1, A.I.R. 1980 Bom. 69 (which is impugned herein) the trial Court dismissed the suit and in appeal the High Court affirmed the same.