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)

J U D G M E N T

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

herein under Section 47 read with Order XXI Rule 26(1) of the

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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

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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

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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

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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

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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.

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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

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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.

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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  English

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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

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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

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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

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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….”

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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 served

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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  2nd 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 the

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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

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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.

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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

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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,

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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

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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 Court8, 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

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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

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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.

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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.  

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