JUDGMENT : 1. - S.B. Civil Second Appeal No. 163/88, under section 1(X) of the Code of Civil Procedure (the Code), was filed by Purshottam Swaroop defendant-tenant against the judgment and decree dated 7.11.1988 passed by the learned Additional District Judge No. 3, Kota in Civil Appeal No. 24/88 arising out of Suit No. 201/82 of the Court of the learned Additional Munsif No. 1 (North), Kota. Before the appeal came up for admission, the appellant-Purshottam Swaroop (the deceased) died and the present applicant Shyarn Sunder son of Mohan Lal filed an application under Order 22 Rules 3 and 11 read with Section 151 of the Code stating that the deceased had left behind two brothers namely Girraj and Mohan Lal besides the applicant who is the son of the deceased's brother Mohan Lal, as the only legal representatives and further that the deceased had executed a will dated 30.11.1988 in his favour. It has also been stated that the applicant had been carrying on business in the shop in dispute along with the deceased since before the deceased suffered the paralytic attack about three years before his death and that even during the illness of the deceased, the applicant had been looking after the business in the shop in dispute and that he carried on business in the shop with the deceased till the time of the death of the latter, as the member of his family, and claimed that by virtue of the above said will he was the only legal representative of the deceased in respect of the shop in dispute and prayed that he be brought on record as the appellant in place of the deceased. The decree, holder-respondents have opposed this application. In the reply, it has been adulated that the deceased has died and also that he had left behind his two brothers and that the applicant is the son of one of the two brothers of the deceased, but it has been stated that neither the applicant nor any of the two brothers of the deceased carried on business in the shop in dispute with the deceased as his family member upto his death and, as such, none of them acquired any right and, consequently, the appeal stood abated. 2. 2. I have heard the learned counsel for the parties and have also perused the coltents of the application which has been supported by an affidavit. 3. Shri Gupta, the learned counsel for the applicant, has stated that the applicant is the heir of the deceased not only because he is son of one of the two brothers of the deceased but also because a will had been executed by the deceased in his favour in respect of the tenancy rights of the shop in dispute and further that the applicant had been carrying on business long with the deceased till the time of his death as a member of his family as has also been mentioned in the will (photo-state copy of which has been filed on record). It has thus been contended that the applicant has, therefore, become tenant within the meaning of sub-clause (b) of Clause (vii) of Section 3 of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (the Rent Act) and the right to sue survives in his favour. 4. The word 'tenant' has been defined in Clause (vii) of section 3 of the Rent Act. The relevant provision thereof reads as under:- "(vii) "tenant" means (a)..... (b) in the event of death of the person as is referred to in sub-clause (a), his surviving spouse, son, daughter and other heir in accordance with the personal law applicable to him who had been, in the case of premises leased out for residential purpose, ordinarily residing and in the case of premises leased out for commercial or business purposes, ordinarily carrying on business with him in such premises member of his family upto his death." 5. The bare reading of the above said provision shows that before a person can be said to have become tenant in place of the deceased-tenant in respect of the premises leased out for commercial or business purposes, he must show firstly; that he is one of the heirs of the deceased and secondly; that he was ordinarily carrying on business with the deceased in the commercial premises as a member of his family up to his death. It is not disputed before me that the deceased was a Hindu and was governed by Hindu Law. It is not disputed before me that the deceased was a Hindu and was governed by Hindu Law. Clauses (f) and (g) of sub-section 1 of section 3 of the Hindu Succession Act (the Act) read as under: "(f) "heir" means any person, male or female, who is entitled to succeed to the property of an intestate under this Act; (g) "intestate" a person is deemed to die intestate in respect of property of which he or she has not made a testamentary disposition capable of taking effect." The above said provisions clearly show that an heir is a person who is entitled to succeed to the property of the deceased in absence of any will or testament executed by a deceased male Hindu. In other words, a person who claims entitled to succeed to the property of a deceased male Hindu only on the basis of the will cannot be said to be an heir of such deceased. The applicant, therefore, cannot be said to be the heir of the deceased by virtue of the will stated to have been executed in his favour by the deceased although he may be one of the legal representatives of the deceased because of the said will. Next thing is to be seen is whether the applicant is entitled to succeed to the property of the deceased in absence of the above said will. Section 8 of the Act provides that the property of a male Hindu dying intestate shall devolve firstly upon the heirs, being the relatives specified in class-I of the Schedule; and secondly, if there is no heir of class-I, then upon the heirs, being the relatives specified in class-II of the Schedule and Section 9 of the Act provides that among the heirs specified in the Schedule those in class-I shall take simultaneously and to the exclusion of all other heirs, those in the first entry in class-II shall be preferred to those in the second entry; those in the second entry shall be preferred to those in the third entry and so on in succession. It is the case of the applicant himself that his father and father's brother are the two brothers left behind by the deceased. It is the case of the applicant himself that his father and father's brother are the two brothers left behind by the deceased. The applicant's father and father's brother are in the second class of the relations of the deceased and the Schedule shows that the brother of the deceased come in the second entry and the applicant being the nephew comes in the fourth entry. In absence of the above said will, therefore, the applicant is not entitled to succeed to the property of the deceased who has left behind two brothers including the father of the applicant. 6. In these circumstances, even if it be taken that the applicant had been carrying on business in the shop in dispute along with the deceased till the time of his death as the family member of the deceased, he being not an heir of the deceased according to the personal law of the deceased cannot be said to have become the tenant within the meaning of sub-clause (b) of clause (vii) of section 3 of the Rent Act. 7. Shri Gupta has contended that the applicant being the nephew of the deceased is one of the relatives mentioned in the Schedule of the Act and no differentiation can be made amongst the relations of the deceased in regard to the tenancy rights. He has placed reliance on the decision of this Court in case Rain Prasad v. Tara Chand & anr., I have gone through the said ruling. The only point raised in the said case was as to whether the heirs of class-I namely the widow, son and daughter become tenant in absence of their having worked with the deceased in the commercial premises up to the time of his death and the court had held that before any one of them could claim to become the tenant within the meaning of clause (b) quoted above, it must be shown that he or she also worked with the deceased as his family member in the commercial premises in dispute. This authority is, therefore, of no assistance to the applicant. 8. In view of my above discussion, I hold that after the death of the deceased, the applicant has not become the tenant within the meaning of the Rent Act and no right to sue survive in his favour. This authority is, therefore, of no assistance to the applicant. 8. In view of my above discussion, I hold that after the death of the deceased, the applicant has not become the tenant within the meaning of the Rent Act and no right to sue survive in his favour. His application for being brought on record, therefore, cannot be allowed and is, consequently, dismissed. 9. In the result, the appeal has abated and is dismissed as such.Appeal Dismissed As Abated. *******