JUDGMENT Hon’ble V.K. Shukla, J.—Rafey son of Mohd. Shafi, resident of 48A/5, Mohalla Chak, Tehsil Sadar, District Allahabad has filed present writ petition for quashing the order dated 25.9.2004 and 7.3.2008 (Annexures 6 and 8) respectively, by means of which objection taken by him under Order XXI, Rule 97/101, C.P.C. has been rejected by the Executing Court and has been affirmed in Revision. 2. Brief background of the case is that Badruddin was the tenant of the shop bearing Municipal No. 58 S.C. Basu Road, Chak, Allahabad. Petitioner claims that he was brought up by his Mamoo and his parents were hand to mouth. Petitioner claims that Badruddin (Mamoo) executed will on 5.1.2001 in favour of petitioner son of Smt. Tahrun Nisha and Riyaz Ullah son of Sakirun Nisha wife of Sageer Ullah. Petitioner has specially mentioned that Sakirun Nisha had expired long long ago and whereabout of her son Riyaz Ullah are also not available. Petitioner claims that Badruddin died on 3.2.2001 and thereafter, tenancy rights have devolved upon the petitioner and he has been paying rent of the shop in dispute besides electricity charges. Petitioner has stated that collusive suit was sought against Mst. Rehana Khatoon for the said premises in question and ex parte order was passed on 29.5.2002 for ejectment of Rehana Khatoon from the shop in dispute. Based on the ex parte decree dated 29.5.2002, Execution Case No. 22 of 2002 (Qayamuddin v. Smt. Rehana Khatoon) has been initiated. Petitioner submits that as his rights were going to be effected as such he has moved application under Order XXI, Rule 97/101, C.P.C. obstructing execution of ex parte judgment and decree dated 29.5.2002. Qua the said application moved, objections were filed to which Rejoinder Affidavit was also filed. Executing Court on 25.4.2007 rejected the said application. Petitioner preferred Revision and same has also been rejected. At this juncture present writ petition has been filed. 3. Sri B.B. Paul, learned Counsel for the petitioner contended with vehemence that in the present case valid will in question is there in favour of Rafey executed by late Badruddin and as such on the basis of the collusive decree obtained by landlord he could not be evicted and as such view taken by both the Courts below are liable to be set aside. 4. 4. After respective arguments have been advanced, factual position, which is emerging in the present case is that Badruddin was tenant of the shop bearing Municipal No. 58 S.C. Basu Road, Chak, Allahabad. Petitioner claims that will was executed in his favour on 5.1.2001 and petitioner was staying with his Mamoo, and was brought up by him, and once Badruddin died on 3.2.2001, tenancy of the shop would devolve upon him. 5. In order to appreciate respective arguments advance, Section 3(a) which defines tenant is being looked into. Section 3(a) “tenant”, in relation to a building, means a person by whom its rent is payable, and on the tenant’s death, (i) in the case of residential building, such only of his heirs as normally resided with him in the building at the time of his death; (ii) in the case of a non-residential building, his heirs; The word family has been defined under Section 3(g) of the Act, is being extracted below : Section 3(g) “Family”, in relation to a landlord or tenant of a building, means, his or her— (i) spouse; (ii) male lineal descendants; (iii) such parents, grandparents and any unmarried or wid owed or divorced or judicially separated daughter or daughter of a male lineal descendant, as may have been normally residing with him or her, and includes, in relation to a landlord, any female having a legal right of residence in that building. Section 11. Prohibition of letting without allotment order.—Save as hereinafter provided, no person shall let any building except in pursuance of an allotment order issued under Section 16. Section 12. Deemed vacancy of building in certain cases.—(1) A landlord or tenant of a building shall be deemed to have ceased to occupy the building or a part thereof if, (a) he has substantially removed his effects therefrom; or (b) he has allowed it to be occupied by any person who is not a member of his family; or (c) in the case of a residential building, he as well as members of his family have taken up residence, not being temporary residence, elsewhere. (2) In the case of non-residential building, where a tenant carrying on business in the building admits a person who is not a member of his family as a partner or a new partner, as the case may be, the tenant shall be deemed to have ceased to occupy the building. (3) In the case of a residential building, if the tenant or any member of his family builds or otherwise acquires in a vacant state or gets vacated a residential building in the same city, municipality, notified area or town area in which the building under tenancy is situate, he shall be deemed to have ceased to occupy the building under his tenancy : Provided that if the tenant or any member of his family had built any such residential building before the date of commencement of this Act, then such tenant shall be deemed to have ceased to occupy the building under his tenancy upon the expiration of a period of one year from the said date. Explanation.—For the purposes of this sub-section— (a) a person shall be deemed to have otherwise acquired a building, if he is occupying a public building for residential purposes as a tenant, allottee or licensee; (b) the expression "any member of family”, in relation to a tenant, shall not include a person who has neither been normally residing with nor is wholly dependent on such tenant. (3-A) If the tenant of a residential building holding a transferable post under any Government or local authority or a public sector corporation under any other employer has been transferred to some other city, municipality, notified area or town area, then such tenant shall be deemed to have ceased to occupy such building with effect from the thirtieth day of June following the date of such transfer or from the date of allotment to him of any residential accommodation (whether any accommodation be allotted under this Act or any official accommodation is provided by the employer) in the city, municipality, notified area or town area to which he has been so transferred, whichever is later. (3-B) If the tenant of a residential building is engaged in any profession, trade, calling or employment in any city, municipality, notified area or town area in which the said building is situated and such engagement ceases for any reason whatsoever and he is landlord of any other building in any other city, municipality, notified area or town area, then such tenant shall be deemed to have ceased to occupy the first mentioned building with effect from the date on which he obtains vacant possession of the last mentioned building whether as a result of proceedings under Section 21 or otherwise. (4) Any building or part which a landlord or tenant has ceased to occupy within the meaning of sub-section (1) or sub-section (2), or sub-section (3), sub-section (3-A), shall, for the purposes of this Chapter, be deemed to be vacant. (5) A tenant or, as the case may be, a member of his family, referred to in sub-section (3) shall have a right, as landlord of any residential building referred to in the said sub-section which may have been let out by him before the commencement of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976 to apply under clause (a) of sub-section (1) of Section 21 for the eviction of his tenant from such building, notwithstanding that such building is one to which the remaining provisions of this Act do not apply. Section 13. Restriction on occupation of building without allotment or release.—Where a landlord or tenant cease to occupy a building or part thereof, no person shall occupy it in any capacity on his behalf or otherwise than under an order of allotment or release under Section 16 and if a person so purports to occupy it, he shall without prejudice to the provisions of Section 31, be deemed to be an unauthorized occupant of such building or part.” Section 15 casts obligation on the landlord or the tenant to intimate vacancy to District Magistrate. Section 16 deals with allotment and release of vacant building. Section 20 puts a bar of suit for eviction of tenant except on specified grounds enumerated therein. 6. Section 16 deals with allotment and release of vacant building. Section 20 puts a bar of suit for eviction of tenant except on specified grounds enumerated therein. 6. Hon’ble Apex Court in context of provisions of U.P. Act No. 13 of 1972 quoted above in the case of Jas Pal Singh v. Additional District Judge, Bulandshahr and others, AIR 1984 SC 1880 has clearly taken view that in respect of shop in question, tenancy rights cannot be devised by executing will. Relevant para 9 is being extracted below : "From a survey of these provisions it will be clear that if a tenant parts with possession of the premises in his possession, the same would be treated as vacant. There are restrictions in the case of a residential building that the tenant will live only with the members of his family and after he has allowed the same to be occupied by any person who is not a member of his family, the tenant shall be deemed to have ceased to occupy the building. In the case of a non-residential building, when a tenant is carrying on business in the building, admits a person who is not a member of his family as a partner or a new partner, as the case may be, the tenant shall be deemed to have ceased to occupy the building. If a tenant sublets the premises, he is liable to ejectment. Obviously, therefore, there are restrictions placed by the Act on the right of the tenant to transfer or sublet the tenancy rights and he can keep possession of the building or premises for himself and for the purpose of his family, for his business and for the business of his family members. He obviously cannot be allowed to transfer a tenancy right. A fortiori, the scheme of the Act does not warrant the transfer of the tenancy right to be effective after his lifetime. Thus, the appellant was neither a tenant of the disputed shop nor he was an heir of Naubat Singh, the original tenant. Besides, on a plain reading of the will it is evident that the will has been executed in respect of other properties including his business but not in respect of the tenancy rights. Thus, the appellant was neither a tenant of the disputed shop nor he was an heir of Naubat Singh, the original tenant. Besides, on a plain reading of the will it is evident that the will has been executed in respect of other properties including his business but not in respect of the tenancy rights. The High Court also recorded a finding to the effect that there was no will in respect of the tenancy rights of the disputed shop." 7. This Court in the case of Ishwar Chand v. Additional District Magistrate (Civil Supply) RCEO, Kanpur Nagar and another, 2000 All CJ 656, has clearly taken the view that tenancy rights cannot be transferred by will in favour of any person. 8. From the side of the petitioner, reliance has been placed on the case of Sangappa Kalyanappa Bangi (dead) tthrough L.Rs. v. Land Tribunal, Jamkhandi and others, (1998) 7 SCC 294 . Relevant paragraph 5, 6 and 7 are being extracted below : "5. This case gives rise to a difficult and doubtful question whether a devise under a Will would amount to an assignment of interest in the lands and, therefore, invalid under the provisions of Section 21 of the Land Reforms Act. What is prohibited under Section 21 of the Act is that there cannot be any sub-division or sub-letting of the land held by a tenant or assignment of any interest thereunder. Exceptions thereto are when the tenant dies, the surviving members of the joint family and if he is not a member of the joint family, his heirs shall be entitled to partition and sub-divide the land leased subject to certain conditions. Section 24 of the Act declares that when a tenant dies, the landlord is deemed to continue the tenancy to the heirs of such tenant on the same terms and conditions on which the tenant was holding at the time of his death. We have to read Section 21 with Section 24 to understand the full purport of the provisions. Section 24 is enacted only for the purpose of making it clear that the tenancy continues notwithstanding the death of the tenant and such tenancy is held by the heirs of such tenant on the same terms and conditions on which he had held prior to his death. Section 24 is enacted only for the purpose of making it clear that the tenancy continues notwithstanding the death of the tenant and such tenancy is held by the heirs of such tenant on the same terms and conditions on which he had held prior to his death. The heirs who can take the property are those who are referable to in Section 21. If he is member of the joint family then the surviving members of the joint family and if he is not such a member of a joint family, his heirs would be entitled to partition. Again as to who his heirs are will have to be determined not with reference to the Act, but with reference to the personal law on the matter. The assignment of any interest in the tenanted land will not be valid. A devise or a bequest under a Will cannot be stated to fall outside the scope of the said provision inasmuch as such assignment disposes of or deals with the lease. When there is a disposition of rights under a Will though operates posthumously is nevertheless a recognition of the right of the legatee thereunder as to his rights of the tenanted land. In that event, there is an assignment of the tenanted land, but that right will come into effect after the death of the testator. Therefore, though it can be said in general terms that the devise simpliciter will not amount to an assignment, in a special case of this nature interpretation will have to be otherwise. 6. If we bear in mind the purpose behind Section 21, it becomes clear that the object of the law is not to allow strangers to the family of the tenant to come upon the land. The tenanted land is not allowed to be sub-let, i.e. to pass to the hands of a stranger nor any kind of assignment taking place in respect of the lease held. If the tenant could assign his interest, strangers can come upon the land, and therefore, the expression ‘assignment’ will have to be given such meaning as to promote the object of the enactment. Therefore, the deceased tenant can assign his rights only to the heirs noticed in the provision and such heirs could only be the spouse or any descendants or who is related to the deceased tenant by legitimate kinship. Therefore, the deceased tenant can assign his rights only to the heirs noticed in the provision and such heirs could only be the spouse or any descendants or who is related to the deceased tenant by legitimate kinship. We must take into consideration that when it is possible for the tenant to pass the property to those who may not necessarily be the heirs under the ordinary law and who become heirs only by reason of a bequest under a Will in which event, he would be a stranger to the family and imported on the land thus to the detriment of the landlord. In that event, it must be taken that a devise under a Will also amount to an assignment and, therefore, not valid for the purpose of Section 21 of the Act. If Section 24 is read along with Section 21, it would only mean that the land can pass by succession to the heirs of a deceased tenant, but subject to the conditions prescribed in Section 21 of the Act. Therefore, we are of the view that the broad statement made by the High Court in the two decisions in (1977) 1 Kant LJ 146 (short notes item 160) and Dhareppa v. State of Karnataka, (1979) 1 Kant LJ 18, would not promote the object and purpose of the law. Therefore, the better view appears to us is as stated by the High Court in Timmakka Kom Venkanna Naik v. The Land Tribunal, (1987) 2 Kant LJ 337.” 7. However, Shri Kulkarni drew our attention to a decision of this Court in Angurbala Mullick v. Debabrata Mullick, 1951 SCR 1125 : ( AIR 1951 SC 293 ), to contend that an heir need not necessarily be natural descendant or one who is related by legitimate kinship, but others also and therefore if any interest in a property is devised to them, the same would not amount to assignment barred under Section 21 of the Act. It is no doubt true that the meaning attributed to an heir could be as suggested by the learned Counsel for the appellants so as to include the descendant and other persons related by legitimate kinship or otherwise who may be covered by a Will, but the true question to be decided in this case is if there is a devise of that nature is hit by Section 21 of the Act or not. The object and purpose of Section 21 being to confine the rights of tenancy only to those known under law as heirs and therefore, assignment to strangers is barred. Thus it can be seen that a broad definition of an heir would not be much help. Hence, the learned Counsel for the appellant cannot derive any assistance from the said decision." 9. Said judgment also negates the contention of petitioner, as therein also Section 21 of Karnataka Land Reforms Act prohibits sub-division and sub-letting of the land held by tenant or assignment of any interest thereunder. Purpose was not to allow strangers to the family of tenant to come upon the land. Tenant can assign his rights only to the heirs noticed in the provision and such heirs could only be spouse or any descendants or one related to the deceased tenant by legitimate kinship. When it is possible for the tenant to pass the property to those who may not necessarily be heirs under the ordinary law and who become heirs only was of bequest under a will, in such event he would be stranger to the family. Will would amount to assignment and be not valid for purposes of Section 21 of the Act. The object and purpose of Section 21 being to confine the rights of tenancy only to those who are known under law as heirs and thus assignment to strangers are barred. 10. Similarly under U.P. Act No. XIII of 1972, Section 12, there would be deemed vacancy, in respect of commercial establishment, if tenant has allowed it to be occupied by any person who is not member of his family and in contingency where he admits any one as partner who is not member of his family. 10. Similarly under U.P. Act No. XIII of 1972, Section 12, there would be deemed vacancy, in respect of commercial establishment, if tenant has allowed it to be occupied by any person who is not member of his family and in contingency where he admits any one as partner who is not member of his family. This particular provision puts fetter on the tenant for transferring and sub-letting the tenanted premises except for member of his family and in case it is done consequences are also specific by fiction i.e. he shall cease to occupy the building ejectment. Tenancy of commercial establishment on tenants death would pass on to his heirs, and such heirs would be as are noticed in the provision i.e. under Section 3(g) of U.P. Act No. XIII of 1972. Any other person who does not fall within the definition of family, for the purposes of U.P. Act No. XIII of 1972, would be stranger to the family. The object and purpose of Section 3(a), 3(g), 12 is to confine the right of tenancy only to those known under law as heirs, and assignment to strangers is completely barred. 11. On the touchstone of provisions quoted and noted above facts of present case is being adverted too. Petitioner is claiming that he is sisters son of Late Badruddin. Sisters son is not at all covered under the definition of family as defined under Section 3(g) of U.P. Act XIII of 1972, as he is neither spouse, nor male lineal descendants nor falling in any other category mentioned in the said clause. Once petitioner, is not falling within the definition of family viz-a-viz the provisions of U.P. Act XIII of 1972, Badruddin tenant by no stretch of imagination was competent to transfer tenancy right, in favour of petitioner, and petitioner has to be treated as stranger for the purposes of this Act. 12. Reliance has been placed by petitioner on the judgment in the case of Mohammad Ali v. ADJ, 2006 ALJ 347, for the preposition that need of Bhanja can be considered. Said proceedings were at the behest of landlord, and therein no such issue was involved, as to whether tenant can transfer tenancy by way of will. 12. Reliance has been placed by petitioner on the judgment in the case of Mohammad Ali v. ADJ, 2006 ALJ 347, for the preposition that need of Bhanja can be considered. Said proceedings were at the behest of landlord, and therein no such issue was involved, as to whether tenant can transfer tenancy by way of will. The said case has been decided on its own fact within the parameters of Section 21(1)(a) of U.P. Act No. XIII of 1972, and will not at all come to the rescue of petitioner. Rights, obligations and failure to discharge obligations, consequences of both qua landlord and tenant are clearly demarcated under U.P. Act XIII of 1972. Assignment of property, in favour of person who is not member of the family as defined under Section 3(g), is not permissible, and would be violating the provisions of the Act, as discussed already in earlier part of the judgment. 13. In the present case, totally false case has been set by petitioner that Badruddin has died and during his life he was divorced his wife Rehana Khatoon. Said theory has been found untruthful as no divorce proceeding whatsoever has been substantiated on record, rather to the contrary documentary evidence has come that after his death, she inherited property and also disposed of the same. In view of this, once positive finding of fact had been has been recorded that petitioner is not legal heir of late Badruddin within the scope of ambit of U.P. Act No. 13 of 1972 then both the Court below have committed no material illegality in passing the orders impugned. 14. Consequently, present writ petition is dismissed. ————