REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 3996 OF 2018
(Arising out of Special Leave Petition (C) No. 5489 OF 2014)
Suresh Kumar Kohli …. Appellant(s)
Versus
Rakesh Jain and Another …. Respondent(s)
JUDGMENT
R.K. Agrawal, J.
1) Leave granted.
2) The present appeal is directed against the final judgment
and order dated 05.12.2013 passed by the High Court of Delhi
in CM (M) No. 880 of 2012 whereby learned single Judge of the
High Court allowed the petition filed by the Respondent No. 1
herein against the judgment and order dated 08.06.2012
passed by the Additional Rent Controller in Ex Petition No. 51
of 2012 wherein the objections filed by the Respondent No. 1
Signature Not Verified
Digitally signed by
ASHA SUNDRIYAL
Date: 2018.04.19
17:26:44 IST
Reason:
herein under Section 47 read with Order XXI Rule 26(1) of the
1
Code of Civil Procedure, 1908 (in short ‘the Code’) were
rejected.
3) Brief facts:-
(a) Suresh Kumar Kohli-the appellant herein is the owner of
shop bearing No. 3, Building No. 2656, Ajmal Khan Road,
Karol Bagh, New Delhi (in short ‘the suit premises’). On
15.11.1975, his father, along with one another, let out the suit
premises on a monthly rental of Rs. 450/- to Late Shri Ishwar
Chand Jain, father of Respondent No. 1 herein, and Ramesh
Chand Jain-Respondent No. 2 herein. The tenants started a
family business under the name and style of M/s Rakesh Wool
Store. Shri Rakesh Jain – Respondent No. 1 herein was
inducted as a partner in the family business on 02.04.1979.
(b) On 25.04.2009, the owner sent a legal notice to
Respondent No. 2 herein and his father Late Shri Ishwar
Chand Jain terminating the tenancy with effect from
31.05.2009. Shri Ishwar Chand Jain died on 08.03.2010.
(c) Since the tenant failed to vacate the suit premises, the
appellant herein filed Eviction Petition bearing No.
E-304/2010 under Section 14(1)(e) read with Section 25-B of
2
the Delhi Rent (Control) Act, 1958 (hereinafter referred to as
‘the Act’) on the ground of bona fide need. The Additional Rent
Controller, New Delhi, vide judgment and order dated
30.11.2011, decreed the eviction petition in favour of the
appellant herein.
(d) Being aggrieved by the decree in favour of the appellant
herein, Respondent No. 2 herein preferred Rent Control
Revision being No. 212 of 2012 before the High Court.
Learned single Judge of the High Court, vide judgment and
order dated 08.05.2012, dismissed the revision. Aggrieved by
the above order, Respondent No. 2 herein preferred Review
Petition being No. 383 of 2012 before the High Court. Learned
single Judge of the High Court, vide judgment and order dated
17.08.2012, dismissed the review petition filed by Respondent
No. 2 herein.
(e) Meanwhile, Respondent No. 1 herein filed objections in
Execution Petition No. 51/2012 under Section 47 Order XXI
Rule 26(1) before the Additional Rent Controller, New Delhi
claiming that he being a necessary party as he inherited rights
in a joint family business and he was not aware of the
3
pendency of the eviction proceedings. The Additional Rent
Controller, vide judgment and order dated 08.06.2012,
rejected the objection petition filed by Respondent No. 1
herein.
(f) Aggrieved by the order dated 08.06.2012, Respondent No.
1 herein preferred CM (Main) No. 880 of 2012 before the High
Court. Learned single Judge of the High Court, vide judgment
and order dated 05.12.2013, allowed the petition filed by the
Respondent No. 1 herein.
(g) Aggrieved by the judgment and order dated 05.12.2013,
the appellant has preferred this appeal by way of special leave
before this Court.
4) Heard Mr. Dhruv Mehta, learned senior counsel for the
appellant and Mr. Huzefa Ahmadi, learned senior counsel for
the respondents and perused the records.
Point(s) for consideration:-
5) The only point for consideration before this Court is
whether in the light of present facts and circumstances of the
case, the status of the heirs and legal representatives of the
4
deceased tenant will be of joint tenants or of
tenants-in-common.
Rival submissions:-
6) Learned senior counsel appearing for the appellant
contended that the High Court failed to appreciate the fact
that Respondent No.2, apart from being a tenant in his own
right, was also one of the heirs and legal representative of the
deceased – Shri Ishwar Chand Jain and, thus, his estate and
interest was amply represented and the absence of
Respondent No.1 was not fatal to the maintainability of the
Eviction Petition filed by the appellant against the
tenant-Respondent No.2. Learned senior counsel further
contended that Respondent No.2 and his father late Shri
Ishwar Chand Jain were joint tenants when their tenancy was
determined, and therefore, eviction suit filed by the
landlord-appellant against one of the joint tenant was perfectly
valid and maintainable. The death of one of the joint tenant
after termination of the tenancy will have no effect as right of
5
the party crystallized on the date of service of the notice and
termination of the tenancy.
7) Learned senior counsel further contended that the High
Court erred in holding that Respondent No.1 was a necessary
party to the suit for eviction on the ground that the tenancy
between the parties is tenancy-in-common and not a joint
tenancy. He finally contended that the High Court erred in
law in applying the provisions of the Hindu Succession Act,
1956 while interpreting the status of Respondent No.1 qua the
suit shop after the death of his father who was the original
tenant in the suit premises. The Act, being a special Act and
the “tenant” having been defined in the said Act, the
provisions of the Rent Act will prevail over the provisions of the
Hindu Succession Act, 1956. In support of his plea, learned
senior counsel relied upon the following decisions of this
Court, viz., H.C. Pandey vs. G.C. Paul (1989) 3 SCC 77,
Mohd. Usman vs. (Mst.) Surayya Begum (1990) 2 RCR (Rent)
408, Mst. Surayya Begum vs. Mohd. Usman and Others
(1991) 3 SCC 114 and Harish Tandon vs. Addl. District
Magistrate, Allahabad, U.P. and Others (1995) 1 SCC 537.
6
8) On the other hand, learned senior counsel appearing for
the respondents contended that on a careful perusal of the
provisions of the Act and the definition of ‘Tenant’ given
thereunder read with Section 19 of the Hindu Succession Act,
1956, the intention of the legislature would not be to exclude
the former Act from the operation of the latter and the High
Court was right in placing reliance on Section 19 of the Hindu
Succession Act,1956 to hold that on the death of a tenant, his
legal heirs hold the tenancy estate as tenants-in-common and
not as joint tenant.
9) Learned senior counsel further submitted that the
present appeal deserves to be dismissed as the appellant has
acted in a clandestine manner to undermine the interest of
Respondent No. 1 in the suit premise and the High Court was
right in setting aside the order of the Additional Rent
Controller and directing the impleadment of Respondent No. 1
in the eviction petition. He finally contended that the findings
of the High Court in the present case should not be interfered
with as the same would lead to grave injustice to the
7
respondents. In support of his aforesaid pleas, learned senior
counsel has relied upon the following decisions of this Court,
viz., Boddu Venkatakrishna Rao and Others vs. Smt.
Boddu Satyavathi and Others AIR 1968 SC 751, Gian Devi
Anand vs. Jeevan Kumar and Others (1985) 2 SCC 683 and
Uttam vs. Saubhag Singh and Others (2016) 4 SCC 68.
Discussion:-
10) The issue at hand is what would be the status of the
succeeding legal representatives after the death of the
statutory tenant. In this regard, it would be worthy to discuss
the two capacities, viz., tenancy-in-common and joint tenancy,
and the rights that one holds in these two different capacities.
Fundamentally, the concepts of joint tenancy and
tenancy-in-common are different and distinct in form and
substance. The incidents regarding the co-tenancy and joint
tenancy are different: joint tenants have unity of title, unity of
commencement of title, unity of interest, unity of equal shares
in the joint estate, unity of possession and right of
survivorship.
8
11) Tenancy-in-common is a different concept. There is
unity of possession but no unity of title, i.e. the interests are
differently held and each co-tenant has different shares over
the estate. Thus, the tenancy rights, being proprietary rights,
by applying the principle of inheritance, the shares of heirs are
different and ownership of leasehold rights would be confined
to the respective shares of each heir and none will have title to
the entire leasehold property. Therefore, the estate shall be
divided among the co-tenants and each tenant in common has
an estate in the whole of single tenancy. Consequently, the
privity exists between the landlord and the tenant in common
in respect of such estate.
12) In Boddu Venkatakrishna Rao (supra), this Court has
held as under:-
“5. Let us now consider the position in law. The law has
been summarised in Mulla’s Transfer of Property Act (Fifth
Edition) at page 226. As early as 1896 it was held by the
Judicial Committee of the Privy Council in Jogeswar Narain
Deo v. Ram Chandra Dutt that
“The principle of joint tenancy appears to be unknown
to Hindu law except in the case of coparcenary between
the members of an undivided family.”
and that it was not right to import into the construction of a
Hindu will an extremely technical rule of English9
conveyancing. Many years later the principle was reiterated
in the case of Mt. Bahu Rani v. Rajendra Baksh Singh..”
13) In Gian Devi (supra), this Court has held as under:
“34. It may be noticed that the Legislature itself treats
commercial tenancy differently from residential tenancy in the
matter of eviction of the tenant in the Delhi Rent Act and also in
various other Rent Acts. All the grounds for eviction of a tenant
of residential premises are not made grounds for eviction of a
tenant in respect of commercial premises. Section 14(1)(d) of the
Delhi Rent Act provides that non-user of the residential
premises by the tenant for a period of six months immediately
before the filing of the application for the recovery of possession
of the premises will be a good ground for eviction, though in
case of a commercial premises no such provision is made.
Similarly, Section 14(1)(e) which makes bona fide requirement
of the landlord of the premises let out to the tenant for
residential purposes a ground for eviction of the tenant, is not
made applicable to commercial premises. A tenant of any
commercial premises has necessarily to use the premises for
business purposes. Business carried on by a tenant of any
commercial premises may be and often is, his only occupation
and the source of livelihood of the tenant and his family. Out of
the income earned by the tenant from his business in the
commercial premises, the tenant maintains himself and his
family; and the tenant, if he is residing in a tenanted house,
may also be paying his rent out of the said income. Even if a
tenant is evicted from his residential premises, he may with the
earnings out of the business be in a position to arrange for
some other accommodation for his residence with his family.
When, however, a tenant is thrown out of the commercial
premises, his business which enables him to maintain himself
and his family comes to a standstill. It is common knowledge
that it is much more difficult to find suitable business premises
than to find suitable premises for residence. It is no secret that
for securing com- mercial accommodation, large sums of money
by way of salami, even though not legally payable, may have to
be paid and rents of commercial premises are usually very high.
Besides, a business which has been carried on for years at a
particular place has its own goodwill and other distinct
advantages. The death of the person who happens to be the
tenant of the commercial premises and who was running the
business out of the income of which the family used to be
10
maintained, is itself a great loss to the members of the family to
whom the death, naturally, comes as a great blow. Usually, on
the death of the person who runs the business and maintains
his family out of the income of the business, the other members
of the family who suffer the bereavement have necessarily to
carry on the business for the maintenance and support of the
family. A running business is indeed a very valuable asset and
often a great source of comfort to the family as the business
keeps the family going. So long as the contractual tenancy of a
tenant who carries on the business continues, there can be no
question of the heirs of the deceased tenant not only inheriting
the tenancy but also inheriting the business and they are
entitled to run and enjoy the same. We have earlier held that
mere termination of the contractual tenancy does not bring
about any change in the status of the tenant and the tenant by
virtue of the definition of the “tenant” in the Act and the other
Rent Acts continues to enjoy the same status and position,
unless there be any provisions in the Rent Acts which indicate
to the contrary. The mere fact that in the Act no provision has
been made with regard to the heirs of tenants in respect of
commercial tenancies on the death of the tenant after
termination of the tenancy, as has been done in the case of
heirs of the tenants of residential premises, does not indicate
that the Legislature intended that the heirs of the tenants of
commercial premises will cease to enjoy the protection afforded
to the tenant under the Act. The Legislature could never have
possibly intended that with the death of a tenant of the
commercial premises, the business carried on by the tenant,
however flourishing it may be and even if the same constituted
the source of livelihood of the members of the family, must
necessarily come to an end on the death of the tenant, only
because the tenant died after the contractual tenancy had been
terminated. It could never have been the intention of the
Legislature that the entire family of a tenant depending upon
the business carried on by the tenant will be completely
stranded and the business carried on for years in the premises
which had been let out to the tenant must stop functioning at
the premises which the heirs of the deceased tenant must
necessarily vacate, as they are afforded no protection under the
Act. We are of the opinion that in case of commercial premises
governed by the Delhi Act, the Legislature has not thought it fit
in the light of the situation at Delhi to place any kind of
restriction on the ordinary law of inheritance with regard to
succession. It may also be borne in mind that in case of
commercial premises the heirs of the deceased tenant not only
11
succeed to the tenancy rights in the premises but they succeed
to the business as a whole. It might have been open to the
Legislature to limit or restrict the right of inheritance with
regard to the tenancy as the Legislature had done in the case of
the tenancies with regard to the residential houses but it would
not have been open to the Legislature to alter under the Rent
Act, the law of succession regarding the business which is a
valuable heritable right and which must necessarily devolve on
all the heirs in accordance with law. The absence of any
provision restricting the heritability of the tenancy in respect of
the commercial premises only establishes that commercial
tenancies notwithstanding the determination of the contractual
tenancies will devolve on the heirs in accordance with law and
the heirs who step into the position of the deceased tenant will
continue to enjoy the protection afforded by the Act and they
can only be evicted in accordance with the provisions of the Act.
There is another significant consideration which, in our
opinion, lends support to the view that we are taking.
Commercial premises are let out not only to individuals but also
to Companies, Corporations and other statutory bodies having a
juristic personality. In fact, tenancies in respect of commercial
premises are usually taken by Companies and Corporations.
When the tenant is a Company or a Corporation or anybody
with juristic personality, question of the death of the tenant will
not arise. Despite the termination of the tenancy, the Company
or the Corporation or such juristic personalities, however, will
go on enjoying the protection afforded to the tenant under the
Act. It can hardly be conceived that the Legislature would
intend to deny to one class of tenants, namely, individuals the
protection which will be enjoyed by the other class, namely, the
Corporations and Companies and other bodies with juristic
personality under the Act. If it be held that commercial
tenancies after the termination of the contractual tenancy of the
tenant are not heritable on the death of the tenant and the
heirs of the tenant are not entitled to enjoy the protection under
the Act, an irreparable mischief which the Legislature could
never have intended is likely to be caused. Any time after the
creation of the contractual tenancy, the landlord may determine
the contractual tenancy, allowing the tenant to continue to
remain in possession of the premises, hoping for an early death
of the tenant, so that on the death of a tenant he can
immediately proceed to institute the proceeding for recovery and
recover possession of the premises as a matter of course,
because the heirs would not have any right to remain in
occupation and would not enjoy the protection of the Act. This
12
could never have been intended by the Legislature while
framing the Rent Acts for affording protection to the tenant
against eviction that the landlord would be entitled to recover
possession, even if no grounds for eviction as prescribed in the
Rent Acts are made out.
35. In our opinion, the view expressed by this Court in Ganapat
Ladha case and the observations made therein which we have
earlier quoted, do not lay down the correct law. The said
decision does not properly construe the definition of the
“tenant” as given in Section 5(11)(b) of the Act and does not
consider the status of the tenant, as defined in the Act, even
after termination of the commercial tenancy. In our judgment in
Damadilal case this Court has correctly appreciated the status
and the legal position of a tenant who continues to remain in
possession after termination of the contractual tenancy. We
have quoted at length the view of this Court and the reasons in
support thereof. The view expressed by a seven Judge Bench of
this Court in Dhanapal Chettiar case and the observations made
therein which we have earlier quoted, lend support to the
decision of this Court in Damadilal case. These decisions
correctly lay down that the termination of the contractual
tenancy by the landlord does not bring about a change in the
status of the tenant who continues to remain in possession
after the termination of the tenancy by virtue of the provisions
of the Rent Act. A proper interpretation of the definition of
tenant in the light of the provisions made in the Rent Acts
makes it clear that the tenant continues to enjoy an estate or
interest in the tenanted premises despite the termination of the
contractual tenancy.”
14) This Court, in H.C. Pandey (supra), has held as under:-
“4. 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. It is a single tenancy which devolves on the heirs.
There is no division of the premises or of the rent payable
thereof. That is the position as between the landlord and the
heirs of the deceased tenant. In other words, the heirs
succeed to the tenancy as joint tenants….”
13
15) In Mohd. Usman (supra), the High Court of Delhi has
held as under:-
“5. I find no force in the contention raised by the
learned counsel for respondent No.1. The provision
regarding inheritance of tenancy in respect of
Mahomedans and Hindus is not different. The Supreme
Court in Gian Devi Anand’s case (Supra) has no doubt
observed that tenancy right which is inheritable devolves
on the heirs under the ordinary law of succession. It only
means that only those heirs who would be entitled to
inherit the property of a deceased tenant under the
ordinary law of succession would be entitled to inherit
even the right of tenancy after the death of the tenant.
This position is amply clear from the fact that even under
Section 19 of the Hindu Succession Act 1956 which
prescribes the mode of succession of two or more heirs
provides that if two or more heirs succeed together to the
property of an intestate they shall take the property as
tenants in common and not as joint tenants and in-spite
of this the Supreme Court in H.C. Pandey’s case (supra)
has observed that the heirs of a deceased tenant succeed
to the right of tenancy as joint tenants. The Supreme
Court in H.C. Pandey’s case (supra) has observed as
follows:-
“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. It is a single tenancy which
devolves on the heirs. There is no division of the
premises or of the rent payable there. That is the
position as between the landlord and the heirs of
the deceased tenant. In other words, the heirs
succeed to the tenancy as joint tenants. In the
present case it appears that the respondent acted
on behalf of the tenants, that he paid rent on
behalf of all and he accepted notice also on behalf
of all. In the circumstances, the notice was served14
on the respondent was sufficient. It seems to us
that the view taken in Ramesh Chand Bose (AIR
1977 Allahabad 38) (supra) is erroneous where the
High Court lays down that the heirs of the
deceased tenant succeed as tenants in common. In
the Transfer of Property Act notice served by the
appellant on the respondent is a valid notice and
therefore the suit must succeed.”
6. In the light of the above observations of the Supreme
Court there can be no doubt that even if one of the legal
heirs is not a party to proceedings for eviction filed by the
landlord against the legal heirs of the original tenant, that
heir who has been left out cannot later on come forward and
agitate his or her right in the tenancy. In the present case, I
find that Surayya Begum who claims to be living in the same
disputed premises alongwith other legal heirs after the death
of Khalil Raza has chosen to file her objections after the
whole round of litigation is over and after the other legal
heirs have lost right upto the Supreme Court. It is thus clear
that these objections are filed only to defeat the decree and
delay the execution of the decree. In my view, therefore, even
if Surayya Begum was not a party to the previous litigation
between the parties she has no right to object to the
execution of the decree and the Additional Rent Controller
ought to have dismissed the objections on that ground alone.
7. In the circumstances, the petition is allowed. The
order of the Additional Rent Controller Delhi dated 2 nd
September, 1989 is set aside. The objections filed by
respondent No.1 are dismissed. Respondent No.1 Mst.
Surayya Begum is however given on month’s time to vacate
the premises. No costs.”
16) Further, in Surayya Begum (Mst) (supra), this Court
has held as under:-
“7. The learned advocates representing the decree holders in
these two appeals have argued that when the tenancy rights
devolve on the heirs of a tenant on his death, the incidence
of tenancy remains the same as earlier enjoyed by the
original tenant and it is a single tenancy which devolves on
them. There is no division of the premises or of the rent
payable, and the position as between the landlord and the15
tenant continues unaltered. Relying on Kanji Manji v.
Trustees of the Port of Bombay and borrowing from the
judgment in H.C. Pandey case it was urged that the heirs
succeed to the tenancy as joint tenants. The learned counsel
for the appellants have replied by pointing out that as the
aforesaid two decisions were distinguished by this Court in
the latter case of Textile Association, it was not open to the
landlords to support the impugned judgments by relying
upon the earlier two cases.
8. So far as Section 19 of the Hindu Succession Act is
concerned, when it directs that the heirs of a Hindu dying
intestate shall take his property as tenants-in-common, it is
dealing with the rights of the heirs inter se amongst them,
and not with their relationship with a stranger having a
superior or distinctly separate right therein. The relationship
between the stranger and the heirs of a deceased tenant is
not the subject matter of the section. Similar is the situation
when the tenant is a Mohammedan. However, it is not
necessary for us to elaborate this aspect in the present
appeals. The main dispute between the parties, as it appears
from their respective stands in the courts below, is whether
the heirs of the original tenants who were parties to the
proceeding, represented the objector heirs also. According to
the decree holder in Miss Renu Sharma’s case their interest
was adequately represented by their mother and brothers
and they are as much bound by the decree as the named
judgment debtors. In Surayya Begum’s case respondent 1
has denied the appellant’s claim of being one of the
daughters of Khalil Raza, and has been contending that the
full estate of Khalil Raza which devolved upon his heirs on
his death was completely represented by respondents 2 to 9.
In other words, even if the appellant is held to be a daughter
of Khalil Raza the further question as to whether her interest
was represented by the other members of the family will
have to be answered.”
17) In Harish Tandon (supra), this Court has held as
under:-
“20. The Act with which we are concerned is a statute which
purports to regulate the relationship between the landlord and
the tenant and in many respects contains provisions for
achieving that object which are different from the Transfer of
16
Property Act. As such it was open to the framers of the Act to
look to the interest of the tenant as well as the landlord and to
prescribe conditions under which the tenant can continue to
occupy a building and having contravened any of the conditions
prescribed shall be deemed to have ceased to occupy the
building.
21. On the question as to whether any contravention by Ganpat
Roy, one of the heirs of Sheobux Roy, will be a ground for
eviction from the whole premises, the High Court was of the
opinion that after the death of Sheobux Roy, his five sons
became tenants in common and not joint tenants of the
premises because of which contravention by one of the tenants
shall not be a ground for eviction, so far the other co-tenants
are concerned. In support of this finding, reliance was placed by
the High Court on a judgment of this Court in Mohd. Azeem v.
Distt. Judge. From the facts of that case it appears that the
original tenant had died in 1969 leaving behind a widow, three
sons and a daughter. In connection with sub-section (3) of
Section 12, after making reference to the Full Bench judgment
of Allahabad High Court it was said:
“The Full Bench proceeded on the basis that the heirs
become joint tenants and answered the main problem by
saying that if any member of the family of such joint tenants
built or acquired a house in vacant state the tenancy would
be deemed to have ceased. In framing these questions for
reference and in answering the referred questions, the
definition of ‘tenant’ was lost sight of. All the heirs as
normally reside with the deceased tenant in the building at
the time of his death become tenants. The definition does not
warrant the view that all the heirs will become a body of
tenants to give rise to the concept of joint tenancy. Each heir
satisfying the further qualification in Section 3(a)(1) of the
Act in his own right becomes a tenant and when we come to
Section 12(3) of the Act, the words ‘the tenant or any
member of his family’ will refer to the heir who has become a
tenant under the statutory definition and members of his
family.”
However, this Court in the case of H.C. Pandey v. G.C. Paul in
connection with the same Act said:
“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. It is a single tenancy which devolves on the heirs.
17
There is no division of the premises or of the rent payable
therefor. That is the position as between the landlord and
the heirs of the deceased tenant. In other words, the heirs
succeed to the tenancy as joint tenants.”
22. The attention of the learned Judges constituting the Bench
in the case of H.C. Pandey v. G.C. Paul was not drawn to the
view expressed in the case of Mohd. Azeem v. Distt. Judge.
There appears to be an apparent conflict between the two
judgments. It was on that account that the present appeal was
referred to a Bench of three Judges. According to us, it is
difficult to hold that after the death of the original tenant his
heirs become tenants-in-common and each one of the heirs
shall be deemed to be an independent tenant in his own right.
This can be examined with reference to Section 20(2) which
contains the grounds on which a tenant can be evicted. Clause
(a) of Section 20(2) says that if the tenant is in arrears of rent
for not less than four months and has failed to pay the same to
the landlord within one month from the date of service upon
him of a notice of demand, then that shall be a ground on
which the landlord can institute a suit for eviction. Take a case
where the original tenant who was paying the rent dies leaving
behind four sons. It need not be pointed out that after the death
of the original tenant, his heirs must be paying the rent jointly
through one of his sons. Now if there is a default as provided in
clause (a) of sub-section (2) of Section 20 in respect of the
payment of rent, each of the sons will take a stand that he has
not committed such default and it is only the other sons who
have failed to pay the rent. If the concept of heirs becoming
independent tenants is to be introduced, there should be a
provision under the Act to the effect that each of the heirs shall
pay the proportionate rent and in default thereto such heir or
heirs alone shall be liable to be evicted. There is no scope for
such division of liability to pay the rent which was being paid by
the original tenant, among the heirs as against the landlord
what the heirs do inter se, is their concern. Similarly, so far as
ground (b) of sub-section (2) of Section 20, which says that if
the tenant has wilfully caused or permitted to be caused
substantial damage to the building, then the tenant shall be
liable to be evicted; again, if one of the sons of the original
deceased tenant wilfully causes substantial damage to the
building, the landlord cannot get possession of the premises
from the heirs of the deceased tenant since the damage was not
caused by all of them. Same will be the position in respect of
clause (c) which is another ground for eviction, i.e., the tenant
has without the permission in writing of the landlord made or
18
permitted to be made, any such construction or structural
alteration in the building which is likely to diminish its value or
utility or to disfigure it. Even if the said ground is established
by the landlord, he cannot get possession of the building in
which construction or structural alterations have been made
diminishing its value and utility, unless he establishes that all
the heirs of the deceased tenant had done so. Clause (d) of
sub-section (2) of Section 20 prescribes another ground for
eviction — that if the tenant has without the consent in writing
of the landlord, used it for a purpose other than the purpose for
which he was admitted to the tenancy of the building or has
been convicted under any law for the time being in force of an
offence of using the building or allowing it to be used for illegal
or immoral purposes; the landlord cannot get possession of the
building unless he establishes the said ground individually
against all the heirs. We are of the view that if it is held that
after the death of the original tenant, each of his heirs becomes
independent tenant, then as a corollary it has also to be held
that after the death of the original tenant, the otherwise single
tenancy stands split up into several tenancies and the landlord
can get possession of the building only if he establishes one or
the other ground mentioned in sub-section (2) of Section 20
against each of the heirs of original tenant. One of the
well-settled rules of interpretation of statute is that it should be
interpreted in a manner which does not lead to an absurd
situation.”
18) Further, in Uttam (supra), this Court has held as
under:-
“9. Also of some importance are Sections 19 and 30 of the said
Act which read as follows:
“19. Mode of succession of two or more heirs.—If two
or more heirs succeed together to the property of an
intestate, they shall take the property—
(a) save as otherwise expressly provided in this Act,
per capita and not per stirpes; and
(b) as tenants-in-common and not as joint tenants.
* * *
30. Testamentary succession.—Any Hindu may dispose
of by will or other testamentary disposition any property,
19
which is capable of being so disposed of by him or by her, in
accordance with the provisions of the Indian Succession Act,
1925 (39 of 1925), or any other law for the time being in
force and applicable to Hindus.
Explanation.—The interest of a male Hindu in a
Mitakshara coparcenary property or the interest of a member
of a tarwad, tavazhi, illom, kutumba or kavaru in the
property of the tarwad, tavazhi, illom, kutumba or kavaru
shall, notwithstanding anything contained in this Act, or in
any other law for the time being in force, be deemed to be
property capable of being disposed of by him or by her within
the meaning of this section.”
10. Before analysing the provisions of the Act, it is necessary to
refer to some of the judgments of this Court which have dealt,
in particular, with Section 6 before its amendment in 2005, and
with Section 8. In Gurupad Khandappa Magdum v. Hirabai
Khandappa Magdum, the effect of the old Section 6 was gone
into in some detail by this Court. A Hindu widow claimed
partition and separate possession of a 7/24th share in joint
family property which consisted of her husband, herself and
their two sons. If a partition were to take place during her
husband’s lifetime between himself and his two sons, the widow
would have got a 1/4th share in such joint family property. The
deceased husband’s 1/4th share would then devolve, upon his
death, on six sharers, the plaintiff and her five children, each
having a 1/24th share therein. Adding 1/4th and 1/24th, the
plaintiff claimed a 7/24th share in the joint family property.
This Court held: (SCC pp. 386-87, paras 6-7)
14. On application of the principles contained in the aforesaid
decisions, it becomes clear that, on the death of Jagannath
Singh in 1973, the proviso to Section 6 would apply inasmuch
as Jagannath Singh had left behind his widow, who was a Class
I female heir. Equally, upon the application of Explanation 1 to
the said Section, a partition must be said to have been effected
by operation of law immediately before his death. This being the
case, it is clear that the plaintiff would be entitled to a share on
this partition taking place in 1973. We were informed, however,
that the plaintiff was born only in 1977, and that, for this
reason, (his birth being after his grandfather’s death) obviously
no such share could be allotted to him. Also, his case in the
suit filed by him is not that he is entitled to this share but that
he is entitled to a 1/8th share on dividing the joint family
property between 8 co-sharers in 1998. What has therefore to
be seen is whether the application of Section 8, in 1973, on the
death of Jagannath Singh would make the joint family property
20
in the hands of the father, uncles and the plaintiff no longer
joint family property after the devolution of Jagannath Singh’s
share, by application of Section 8, among his Class I heirs? This
question would have to be answered with reference to some of
the judgments of this Court.
15. In CWT v. Chander Sen, a partial partition having taken
place in 1961 between a father and his son, their business was
divided and thereafter carried on by a partnership firm
consisting of the two of them. The father died in 1965, leaving
behind him his son and two grandsons, and a credit balance in
the account of the firm. This Court had to answer as to whether
credit balance left in the account of the firm could be said to be
joint family property after the father’s share had been
distributed among his Class I heirs in accordance with Section
8 of the Act. This Court examined the legal position and
ultimately approved of the view of four High Courts, namely,
Allahabad, Madras, Madhya Pradesh and Andhra Pradesh,
while stating that the Gujarat High Court view contrary to these
High Courts, would not be correct in law. After setting out the
various views of the five High Courts mentioned, this Court
held:
“21. It is necessary to bear in mind the Preamble to the
Hindu Succession Act, 1956. The Preamble states that it was
an Act to amend and codify the law relating to intestate
succession among Hindus.
22. In view of the Preamble to the Act i.e. that to modify
where necessary and to codify the law, in our opinion it is
not possible when Schedule indicates heirs in Class I and
only includes son and does not include son’s son but does
include son of a predeceased son, to say that when son
inherits the property in the situation contemplated by
Section 8 he takes it as karta of his own undivided family.
The Gujarat High Court view noted above, if accepted, would
mean that though the son of a predeceased son and not the
son of a son who is intended to be excluded under Section 8
to inherit, the latter would by applying the old Hindu law get
a right by birth of the said property contrary to the scheme
outlined in Section 8. Furthermore as noted by the Andhra
Pradesh High Court that the Act makes it clear by Section 4
that one should look to the Act in case of doubt and not to
the pre-existing Hindu law. It would be difficult to hold today
the property which devolved on a Hindu under Section 8 of
the Hindu Succession Act would be HUF in his hand
vis-à-vis his own son; that would amount to creating two
classes among the heirs mentioned in Class I, the male heirs
21
in whose hands it will be joint Hindu family property and
vis-à-vis son and female heirs with respect to whom no such
concept could be applied or contemplated. It may be
mentioned that heirs in Class I of Schedule under Section 8
of the Act included widow, mother, daughter of predeceased
son, etc.
23. Before we conclude we may state that we have noted
the observations of Mulla’s Commentary on Hindu Law, 15th
Edn. dealing with Section 6 of the Hindu Succession Act at
pp. 924-26 as well as Mayne Hindu Law, 12th Edn., pp.
918-19.
24. The express words of Section 8 of the Hindu
Succession Act, 1956 cannot be ignored and must prevail.
The Preamble to the Act reiterates that the Act is, inter alia,
to ‘amend’ the law, with that background the express
language which excludes son’s son but includes son of a
predeceased son cannot be ignored.
25. In the aforesaid light the views expressed by the
Allahabad High Court, the Madras High Court 8, the Madhya
Pradesh High Court, and the Andhra Pradesh High Court,
appear to us to be correct. With respect we are unable to
agree with the views of the Gujarat High Court noted
hereinbefore.”
17. In Bhanwar Singh v. Puran, this Court followed Chander
Sen case and the various judgments following Chander Sen
case. This Court held:
“12. The Act brought about a sea change in the matter of
inheritance and succession amongst Hindus. Section 4 of
the Act contains a non obstante provision in terms whereof
any text, rule or interpretation of Hindu law or any custom
or usage as part of that law in force immediately before the
commencement of the Act, ceased to have effect with respect
to any matter for which provision is made therein save as
otherwise expressly provided.
13. Section 6 of the Act, as it stood at the relevant time,
provided for devolution of interest in the coparcenary
property. Section 8 lays down the general rules of succession
that the property of a male dying intestate devolves
according to the provisions of the Chapter as specified in
Class I of the Schedule. In the Schedule appended to the Act,
natural sons and daughters are placed as Class I heirs but a
grandson, so long as father is alive, has not been included.
Section 19 of the Act provides that in the event of succession
22
by two or more heirs, they will take the property per capita
and not per stirpes, as also tenants-in-common and not as
joint tenants.
14. Indisputably, Bhima left behind Sant Ram and three
daughters. In terms of Section 8 of the Act, therefore, the
properties of Bhima devolved upon Sant Ram and his three
sisters. Each had 1/4th share in the property. Apart from
the legal position, factually the same was also reflected in
the record-of-rights. A partition had taken place amongst the
heirs of Bhima.
15. Although the learned first appellate court proceeded
to consider the effect of Section 6 of the Act, in our opinion,
the same was not applicable in the facts and circumstances
of the case. In any event, it had rightly been held that even
in such a case, having regard to Section 8 as also Section 19
of the Act, the properties ceased to be joint family property
and all the heirs and legal representatives of Bhima would
succeed to his interest as tenants-in-common and not as
joint tenants. In a case of this nature, the joint coparcenary
did not continue.”
19) From a perusal of lease deed dated 15.11.1975, we find
that the suit premises was let out jointly to late Shri Ishwar
Chand Jain and Shri Ramesh Chand Jain, son of late Shri
Ishwar Chand Jain. Thus, both of them were joint tenants
and upon the death of Shri Ishwar Chand Jain, Respondent
No. 1 inherited the tenancy as joint tenant only. Further, in
view of a catena of decisions of this Court on the subject as
well as the principles laid down in H.C. Pandey (supra), we
are of the opinion that the High Court erred in holding that the
decisions relied upon by learned senior counsel for the
appellant are not applicable to the facts of the present case on
23
the premise that in the given case itself the validity and
binding nature of the notice given to one of the legal
representatives of the deceased tenant under Section 106 of
the Transfer of property Act, 1882 on other legal
representatives was determined only on the basis of the fact
that they hold the tenancy as joint tenants and notice given to
one means notice given to all.
Conclusion:-
20) We are of the view that in the light of H.C. Pandey
(supra), the situation is very clear that when original tenant
dies, the legal heirs inherit the tenancy as joint tenants and
occupation of one of the tenant is occupation of all the joint
tenants. It is not necessary for landlord to implead all legal
heirs of the deceased tenant, whether they are occupying the
property or not. It is sufficient for the landlord to implead
either of those persons who are occupying the property, as
party. There may be a case where landlord is not aware of all
the legal heirs of deceased tenant and impleading only those
24
heirs who are in occupation of the property is sufficient for the
purpose of filing of eviction petition. An eviction petition
against one of the joint tenant is sufficient against all the joint
tenants and all joint tenants are bound by the order of the
Rent Controller as joint tenancy is one tenancy and is not a
tenancy split into different legal heirs. Thus, the plea of the
tenants on this count must fail.
21) Even otherwise, the intervention at this belated stage of
execution proceedings, in the fact and circumstances of the
case, seems to be a deliberate attempt to nullify the decree
passed in favour of the appellant herein as when Respondent
No.1 filed objections under Section 47 Order XXI of the Code,
he claimed to be in possession of the suit premises, however,
he failed to produce any evidence except two rent receipts for
the months of December, 1993 and January 1994 that too
when the Respondent No. 1 in his objection petition filed in
the execution proceedings of the eviction decree has himself
admitted that the there exists a dispute between him and
Respondent No. 2 and they had parted their ways.
25
22) In light of the above discussion, the judgment and order
dated 05.12.2013 passed by learned single Judge of the High
Court is set aside. The judgment and order dated 30.11.2011
passed by the Additional Rent Controller is hereby restored.
The appeal is allowed.
……………….………………………J.
(R.K. AGRAWAL)
…….…………………………………J.
.
(ABHAY MANOHAR SAPRE)
NEW DELHI;
APRIL 19, 2018.
26
