Judgment

M.K. MUKHERJEE, J.- 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.

Civil Appeal No. 2584 of 1980

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 sisters son Gopal and appointing the plaintiff-appellant, her brothers 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.

Civil Appeal No. 1859 of 1982

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 asserted 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. Sabnis (Dr) v. Vasant Pratap Pandit{AIR 1980 Bom 69 : (1979) 2 Rent LR 545 : 1977 Hindu LR 647} (which is impugned herein) the trial court dismissed the suit and in appeal the High Court affirmed the same.

4. To appreciate the contentions raised by Shri Soli J. Sorabjee, the learned counsel appearing in support of the appeals, it will be advantageous to first refer to Section 5(1 l)(c) of the Act which read as under :

"5. (11) tenant means any person by whom or on whose account rent is payable for any premises and includes -

(a) ...

(aa) ...

(b) ...

(bb) ...

(c)(i) in relation to any premises let for residence, when the tenant dies, ... any member of the tenants family residing with the tenant at the time of his death, or, in the absence of such member, any heir of the deceased tenant, as may be decided in default of agreement by the court;

(ii) in relation to any premises let for the purpose of education, business, trade or storage, when the tenant dies, ... any member of the tenants family using the premises for the purposes of education or carrying on business, trade or storage in the premises, with the tenant at the time of his death, or, in the absence of such member, any heir of the deceased tenant, as may be decided in default of agreement by the court.

* * *"

5. The other section which requires consideration is Section 15 and it reads, so far as i