Petitioner is a tenant of the accommodation consisting of two rooms and one small Kothri situate on ground floor of house No.11/84, Suter Ganj, Kanpur Nagar. Respondent No.1 landlord filed small causes suit for her eviction form the said shop. The suit was dismissed by the small causes court. The revision preferred by the respondent No.1 was allowed vide judgment and order dated 12.09.06.
The aforesaid revisional judgment and order is impugned in the present writ petition.
Petitioner Smt. Parwati Devi is said to have died on 5.1.2014. On her death one Navin Chourasiya , son of late Dinesh Kumar Chourasiya has applied for being substituted as her heir. He alleges that petitioner had executed a Will on 26.6.2013 and as she was living with him in the last days of her life, she has bequeathed her tenancy rights in the shop in dispute to him. On the basis of the above Will he alleges that he is in possession and is entitle to pursue the writ petition as the heir of petitioner.
The application has been opposed by the respondent No.1 by filing a counter affidavit to the same. It has been contended that by virtue of the Will dated 26.6.2013 the tenancy cannot be transferred. The applicant is not the heir of the deceased. He is not her grandson and is a complete stranger.
I have heard Sri S.K. Mishra, learned counsel appearing for the applicant and Sri Pramod Kumar Srivastava, learned counsel for the respondent No.1.
In the above facts and circumstances and in view of the rival submissions of the counsel for the parties the only question before the court is whether the applicant Navin Chourasiya can be recognized as the heir of the deceased Parwati Devi on the basis of her Will dated 26.6.2013 and can be substituted in her place.
There is no dispute that the shop in question is governed by the provisions of U.P. Act No.13 of 1972 (hereinafter referred to as the Act). The said Act in Section 3(a)(2) of the Act defines the tenant in relation to a building to mean a person by whom its rent is payable and on the tenant's death his heirs in respect of non-residential building.
In view of the definition of the tenant as contained in Section 3(a)(2) of the Act, only the heirs of the deceased tenant would be recognized as the tenants of the non-residential buildings entitle to be substituted.
In Ratan Lal Vs. Addl. District Judge, Bulandshahr and others 1979 ARC 251 this court in considering the definition of a tenant as given in Section 3(a)(2) of the Act held that the nephew of a tenant will not inherit the tenancy rights as heir and shall not be a tenant.
In another decision of this court Shri Devendra Kumar Vs. IIIrd Additional District Judge, Meerut and another 1980 ARC 519 this court had a occasion to consider the meaning of the word 'heir' in connection with the definition of a tenant used in Section 3(a)(2) of the Act. The court held that it is clearly discernable from the analysis of the various provisions of the Act that testamentary heirs are not intended to be included within the meaning of the term 'heir' as used in Section 3(a)(2) of the Act. It means, any person other than the natural heir of the deceased is not an heir for the purposes of the above Act and as such is not entitle to be substituted. The testamentary heirs that is those who claim on the basis of the Will stand excluded from the purview of the word 'heir' as used in Section 3(a)(2) of the Act.
In Rais Ahmad Siddiqui Vs. Officer Authorised and another 2000 (1) ARC 474 this court relying upon another decision in the case of Abhinandan Prasad Jain Vs. District Judge, Saharanpur and others, 1982 (1) ARC 708 held that tenancy rights cannot be transferred by executing a Will and even a person residing or occupying the tenanted premises on the death of tenant will not get tenancy right if he is not an heir. The tenancy rights cannot be bequeathed.
In Arun Kumar Singh and others Vs. District Judge Kanpur Nagar and others 2005(1) ARC 597 relying upon Asha Vaish and others Vs. VIIth Additional District Judge, Allahabad and others, 1997 (2) ARC 69, it was held that Section 3(a)(2) of the Act contemplates only natural heirs liable to be determined according to the personal law applicable to the party.
Above all even the Supreme Court in Jaspal Singh Vs. Additional District Judge, Bulandshahr and others 1985(1) ARC lays down that a person cannot claim to be a tenant on the strength of a Will executed by the deceased tenant. The Supreme Court on consideration of the definition as contained in Section 3(a)(2) of the Act held that a person can succeed to tenancy only if he is an heir. The scheme of the Act does not warrant transfer of the tenancy right to a person who is neither a tenant nor an heir of the deceased tenant.
It is thus apparent from the above discussions that tenancy cannot be bequeathed and only the natural heir of the deceased tenant can succeed him as the heir. No person other than the natural heir not even the testamentary heir has any right to succeed the tenancy to be substituted.
In Kedar Nath Jain (Shri) Vs. IIIrd A.D.J., Meerut and others 2007 (3) ARC 855 this court held that the definition of the family under Section 3(g) of the Act includes even a grandson or any other person who is entitle to inherit the tenancy. In the said case the grandson was a partner in the firm of his grandfather and a finding was returned that he was paying rent of the shop and as such it was held that he had inherited the tenancy to the exclusion of his father who was alive.
The facts of the above case were quiet different from those of the present one.
In the instant case, the applicant is not the grandson. The Will of the petitioner appended with the substitution application clearly states that she has no son and only daughters. Therefore, the applicant cannot be the grandson. He was not occupying the shop in his independent capacity as a tenant or as partner with the deceased petitioner. Therefore, he cannot claim any benefit on the basis of the above authority so as to inherit the tenancy.
In view of the aforesaid facts and circumstances, as the applicant Navin Chourasiya is not the natural heir of the deceased tenant but is claiming tenancy on the basis of a Will, he cannot be recognized as a tenant or the heir of the deceased entitle to be substituted in place of petitioner.
Accordingly, Substitution Application No.115024 of 2014 is rejected.
As the sole petitioner is dead and there is no one to succeed her as an heir, the petition stands abated and is dismissed.
Order Date :- 27.8.2014 Piyush