Hon’ble Pankaj Mithal, J.—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 12.9.2006.

The aforesaid revisional judgment and order is impugned in the present writ petition.

2. 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.

3. 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.

4. 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.

5. 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.

6. In Ratan Lal v. Additional 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.

7. In another decision of this Court Shri Devendra Kumar v. 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.

8. In Rais Ahmad Siddiqui v. Officer Authorised and another, 2000 (1) ARC 474, this Court relying upon another decision in the case of Abhinandan Prasad Jain v. 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.

9. In Arun Kumar Singh and others v. District Judge Kanpu