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11. Learned counsel appearing on behalf of respondent No.1 has contended before us that that the claim of the appellants that Dinshaw solely acquired the tenancy rights is false. In support of this contention, he submitted that as stated by the Trial Court there can be no bequest of tenancy rights and same did not devolve upon Disnhaw through the Wills of Bomanji and Daulatbai. Furthermore, the Will of Daulatbai was not probated and no right is asserted by such a Will. Even if reliance is placed on the Will of Daulatbai, it clearly states that only nursery business and not the tenancy is bequeathed to Dinshaw. That BMC and all the parties including Daulatbai and Dinshaw, always considered all the heirs of Bomanji to be joint heirs evident from the material on record. Furthermore, the City Civil Court in Suit No. 5451 of 1963 clearly recorded that undisputedly after Bomanji’s death his sons and Daulatbai became the tenants in the suit premises; Dinshaw from the death of Bomanji till 1977 asserted that all the sons of Bomanji were monthly tenants with respect to the property and in judicial proceedings leading to decree in favour of Dinshaw on that basis. The fact also attained finality in Suit No.5451 of 1963 and the same stand would be barred by principle of res judicata and the same has been noted by the High Court.

15. Learned counsel for respondent Nos. 2 to 5 and 13 to 14 have submitted that after the demise of Bomanji on September 27, 1946, his tenancy devolved upon his widow and five sons which was duly accepted by BMC. Thereafter, one of the five sons tried to usurp the entire tenancy in his favour and the same was the subject matter under challenge in Long Cause Suit No.1914 of 1983. However, during the interregnum, the High Court restrained original defendant No.1 from creating any third party rights. It was vehemently argued that the appellants’ case was absolutely misconceived and baseless as is evident from the observations of the City Civil Court that: (i) there could be no bequest of tenancy rights; and (ii) that an unprobated Will was only with respect to the florist business and not the tenancy rights in aggregate.

22. In the case of Gian Devi Anand vs. Jeevan Kumar & Ors.[4] four Judges of a five-Judge Constitution Bench held that the rule of heritability extends to statutory tenancy of commercial as well as residential premises in States where there is no explicit provision to the contrary and tenancy rights are to devolve according to the ordinary law of succession unless otherwise provided in the statute. This Court in Bhavarlal Labhchand Shah vs. Kanaiyalal Nathalal Intawala[5] referring to the Bomaby Rent Control Act, 1974 held that in a contractual tenancy, a tenant of a non-residential premises cannot bequeath under a Will his right to such tenancy in favour of a person who is a stranger to the family, being not a member of the family, carrying on business. With respect to residential tenancy, this Court left the question open and held:

“It is now well settled that on the death of the original tenant, subject to any provision to the contrary either negativing or limiting the succession, the tenancy rights devolve on the heirs of the deceased tenant. The incidence of the tenancy are the same as those enjoyed by the original tenant.” Furthermore in Parvinder Singh vs. Renu Gautam & Ors.[10], it has been held by this Court that:

“Tenancy is a heritable right unless a legal bar operating against heritability is shown to exist.”