JUDGMENT

VENKATARAMIAH, J. :— The question for consideration in this special leave petition is whether a person occupying a non-residential premises as a tenant after the contractual period is over can bequeath his right to occupy the property as a tenant under a will in favour of a legatee who is not a member of his family carrying on business, trade or storage with him in the said premises at the time of his death under the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Act 57 of 1947) (hereinafter referred to as the Act) as in force in the State of Gujarat.

2. The respondent who is the landlord of a building situated at Baroda had leased it out in favour of one Bai Maniben Dhirajlal Shah on a monthly rent of Rs. 22/-. Maniben was carrying on business in the said shop premises and before her death she bequeathed her tenancy right in the said shop by a will in favour of the petitioner. After her death the will was probated. The petitioner who had got into possession of the premises in question claimed that Maniben had a tenancy right under the Act which was heritable and as such she could validly bequeath the tenancy right in his. favour. it was however admitted by the petitioner that she was not a contractual tenant but her right to tenancy was only a right protected by the Act. The landlord instituted a suit in Rent Suit No. 47 of 1975 on the file of the Small Cause Court at Baroda for recovering vacant possession of the said building contending that the petitioner was not a tenant and could not continue any longer in it. By way of defence the petitioner set up the will referred to above and asserted that he had become a tenant thereunder and could not be evicted from the premises. The Small Cause Court agreeing with the petitioner that he had acquired the tenancy right under the will dismissed the suit. The landlord filed an appeal before. the Extra Assistant Judge, Baroda, against the decree dismissing the suit. The Extra Assistant Judge, Baroda, allowed the appeal holding that the tenancy right could not have been bequeathed under the will in favour of a third party like the petitioner who was not a member of the tenants family doing business with the tenant before her death and he directed the petitioner to deliver possession of the premises to the landlord. Aggrieved by the judgment of the Extra Assistant Judge, Baroda, the petitioner filed a revision petition before the High Court of Gujarat in Civil Revision Application No. 1500 of 1978. The learned single Judge of the High Court who first heard the Civil Revision Application felt that Maniben who was entitled to the protection of the Act even after the determination of the lease had an interest in the premises which could be bequeathed by her in favour of any person of her choice under a will irrespective of the fact whether the legatee was a member of her family carrying on business, trade or storage in the said premises along with her at the time of her death. He however referred the matter to a larger Bench since substantial issues of law had arisen for consideration. Ultimately the case was heard by a Full Bench of the Gujarat High Court. The Full Bench by its judgment dated September 24, 1985 held that the petitioner could not acquire under the will any interest in the tenancy in question and that the decision of the Extra Assistant Judge, Baroda did not call for any interference. Aggrieved by the judgment of the Full Bench of the High Court the petitioner has filed this special leave petition under Art. 136 of the Constitution.

3. After we heard the learned counsel for the petitioner we came to the conclusion that there was no infirmity in the judgment of the High Court but we were however of the view that we should set out our reasons in support of our decision having regard to the contentions very strenuously urged before us by the learned counsel for the petitioner.

4. The expression tenant has been defined in sub-sec. (11) of