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16. Respondent Nos. 2 to 5 and 13 to 14 also submitted that it is admitted by Daulatbai that she along with her five sons became monthly tenants of the suit premises. Upon show cause notices being issued by BMC to all the legal heirs of Bomanji, the aforesaid position came to be reiterated by the latter. It is alleged that this reiteration, in itself, buttressed the point that they were joint-tenants in possession of the suit premises. That the falsity of the claim of the appellants is crystal clear in light of the fact that they along with the respondents filed Suit No.5451 of 1963 challenging the eviction notices served by BMC. Furthermore, the City Civil Court by judgment dated October 11, 1977 also observed that after the demise of Bomanji, the appellants and respondents therein had become the tenants of the suit property, a fact which attained finality as the same was never challenged. It was also submitted that the plea of adverse possession argued before the High Court had failed to cut any ice with the Division Bench in that no issues were framed and no evidence was led by the appellants.

27. Presently, the tenancies are owned by BMC and allegedly by means of a Will, were bequeathed to Daulatbai as a residuary legatee in 1946, such transfer appears to be permissible in light of the Constitution Bench decision. However, as the legal position regarding the permissibility of bequeathing a tenancy by Will in 1946 was not decided, we will rely on the admissions of the parties in regard to the same. The BMC by means of letter dated September 19, 1961 treated all the heirs of Bomanji as joint tenants; and the heirs of Bomanji by means of letter dated October 25, 1961 also claimed themselves to be joint tenants; Daulatbai in her letter dated February 3, 1962 also claimed joint tenancy along with her sons and sought transfer of the rent receipts only in the name of her son Dinshaw. By letter dated November 11, 1962 once again all the heirs of Bomanji’s including Daulatbai claimed themselves to be joint tenants in the eviction suit being Suit No. 5451 of 1963. We also find that Daulatbai regarded herself to be a joint tenant with the other sons.

29. In light of the above, we find that the tenancy which was jointly held by her and her sons as admitted by them and recognized by the Trial Court in its judgment dated July 11, 1977, in Suit No. 5451 of 1963, is devolved upon her sons on her death by virtue of their being joint tenants and her heirs under the Indian Succession Act. The original plaintiffs and defendant No.2 always treated and recognized the tenancy as a joint tenancy and the same was also recognized by BMC to be so. This fact attained finality when the finding of the Trial Court in Suit No. 5451 of 1963 that it was “no longer in dispute that after the demise of Bomanji, the Plaintiffs became the tenants in respect of the Suit Properties”, was not challenged by any of the parties to the dispute. Moreover, there is nothing on record to show that the other sons or the original plaintiffs denied their stake in the same.

30. Regarding the purported “consent letter” dated October 25, 1961 and the subsequent transfer of tenancy to Dinshaw on September 18, 1981, as admitted by the BMC, we find the same to be illegal and lacking bona fide. In our opinion, in 1961 when the joint tenants were served with an eviction notice, then for the sake of convenience only the “purported” letter of consent dated October 25, 1961 was issued. This letter does not have any validity in law and does not amount to surrender or relinquishment of rights of the original plaintiffs in the suit premises. In a subsequent letter dated February 3, 1962 addressed by Daulatbai to the BMC, Daulatbai sought the transfer of rent receipts only, in the name of Dinshaw. The existence of the said letter is also admitted by the appellants and in the same letter Daulatbai has stated that the tenancy is a joint tenancy. Moreover, the “consent letter” stands passively revoked in light of the pleadings in Suit No. 5451 of 1963 where the heirs of Bomanji including Dinshaw have claimed themselves to be joint tenants in the suit premises and a specific finding of the Trial Court in the said suit is not challenged by any of the parties. We have further noted that Dinshaw with the other three sons Ardeshir, Jehangir and Homi also made a joint representation on August 4, 1975 before the BMC against the eviction notices on the basis of joint tenancy devolving upon them after the death of Bomanji. In light of the aforsesaid discussion, we are of the opinion that the appellants cannot take a stand contrary to what has been pleaded earlier in any legal proceedings. Furthermore, it must be noted any consent given was expressly revoked by letter dated December 22, 1980 addressed on behalf of the plaintiffs and admittedly received by BMC on February 2, 1981. The said letter also acted as a notice under Section 527 of the BMC Act. Thus, the tenancy rights were never transferred exclusively in the name of Dinshaw.