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 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 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

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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

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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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