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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.”

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.