R.R.K.Trivedi - (1.) IN this petition counter and rejoinder affidavits have been exchanged and both the learned counsel for parties are agreed that the petition may be disposed of finally at this stage.
(2.) FACTS giving rise to this petition are not in dispute which are that ground-floor of house no. 119/449, Darshan Purwa, Kanpur city, was oocupied by one Parsan Pandey as tenant who died on 9-11-1984. He had no children or wife who could survive him. However, the petitioner who is his real nephew was residing with him since 1969 and also at the time of his death. On death of tenant, landlady respondent no 3, filed an application for release of the accommodation in dispute In her favour saying that the tenant has died leaving no heir who could be tenant of the building and there is vacancy and it may be released in her favour. The Rent Control and Eviction Officer by his order dated 25-6-1985 declared that the accommodation in dispute is vacant. However, petitioner .filed an objection on 27-9-1985 claiming that the accommodation has been declared vacant exparte against him without giving him opportunity. Re claimed tenancy rights on the basis of his continuous residing in the accommodation in dispute since 1969 and also on the date of death of his uncle who was the tenant. He claimed that as he is heir also, under the personal law applicable to him, of his uncle and he was residing at the time of bis death, he is legally tenant and the accommodation is not vacant. So as to release the same in favour of the landlady. The Rent Control and Eviction Officer by order dated 11-2-1987 accepted the objection of the petitioner and found him to be tenant and consequently rejected the application of respondent no. 3 for release. The order of the Rent Control and Eviction Offices was challenged in revision by the respondent no. 3 which has been allowed by the 13th Additional District Judge, Kanpur Nagar by order dated 14-8-1991. The revisional authority found that the petitioner is not tenant and there is vacancy after death of the tenant and the Rent Control and Eviction Officer has wrongly rejected the release application. The revisional authority after setting aside the order of the Rent Control and Eviction Officer has remanded the case. Aggrieved by the order of the revisional authority the petitioner has approached this Court under Article 226 of the Constitution. I have heard learned counsel for the parties and have also perused the impugned order and other materials on record. As already stated, there is no dispute about the facts found by the authorities below. The learned counsel for petitioner only submitted that as the petitioner is one of the heirs under Class II of Hindu Succession Act 1956 and was residing with the tenant at the time of his death. It Is sufficient for devolution of tenancy rights on him after death of his uncle. It has bees said that the word "heir" used in section 3 (a) (1) of the Hindu Succession Act does not mean that such heir should be entitled to Inherit property of the deceased tenant. He should only be one of the heirs who have been mentioned in clause (1) and clause (2) provided under Hindu Succession Act.
(3.) LEARNED counsel for petitioner has further placed reliance on section 27 of Hindu Succession Act and has submitted that if his father though alive was disqualified to inherit tenancy rights as he was not residing with the setting tenant he should be deemed to have died and the tenancy right shall devolve in petitioner LEARNED counsel for petitioner has placed reliance on cases. 1077 ARC 72, 1979 ARC 183, 1991 (1) ARC 404 and 1981 ARC (SOC) 655. Learned counsel for the respondents on the other hand, submitted that nephew cannot be heir and he has placed reliance on 1989 (1) ARC 364, 1979 ALJ 849. 1984 (2) ARC 634 and 1986 (1) ARC 402.;