Allahabad High Court
Pradeep Jain vs Judge Small Cause Court Meerut on 7 November, 2012
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 7 Case :- WRIT - A No. - 40174 of 2000 Petitioner :- Pradeep Jain Respondent :- Judge Small Cause Court Meerut Petitioner Counsel :- V.K.Goel,Ajai Rajendra Respondent Counsel :- C.S.C.,Shiv Sagar Singh,Vijai Kumar Gupta Hon'ble Sudhir Agarwal,J.
1. The only argument advanced by learned counsel for the petitioner is that petitioner inherited tenancy along with other family members after death of his father Sri Prakash Chandra Jain, who was initial tenant in premises in question namely House No.195, Top Khana Bazar, Meerut Cantt. but unless notice is served on all the tenants including petitioner separately, mere actual service of notice upon defendant no.5 i.e. Sri Subhash Chandra Jain, son of Late Prakash Chandra Jain, it cannot be said that service would be deemed sufficient against petitioner being a co-tenant. He submitted that here proceeding was in the Court of Small Cause and therefore, in view of Section 17 of Provincial Small Cause Courts Act, 1887 (hereinafter referred to as "Act, 1887"), provisions of Code of Civil Procedure are applicable and applying Order V, Rule 11 C.P.C., service upon all the defendants was a condition precedent.
2. However, I find no force in the submission. A perusal of order impugned in the writ petition shows that there were six legal heirs of late Prakash Chand Jain, initial tenant, who succeeded tenancy rights after his death in respect to the accommodation in question and this included petitioner also who was impleaded as respondent-defendant no.4. Notices were issued to all defendants but it appears that some of the defendants were reported to have refused service including petitioner whereafter service was effected by pasting of notice on accommodation in question. The Court also directed for service of notice by publication which was published in a daily newspaper "Dhawa Reporter". It is in addition thereto Courts below found that respondent no.5 was actually served and that service was admitted.
3. The Courts below, in the above circumstances, have admitted service of notice upon all the defendants sufficient and in absence of anything to discredit or dislodge the aforesaid service on the mere affidavit, petitioner tried to dispute service which has not been believed by both the Courts below. Besides other, the Courts have also followed general principle that in the matter of dispute between landlord and tenants, where, after death of initial tenant, tenancy rights are devolved in all legal heirs, they are co tenants. Service of notice of proceedings upon a co-tenant shall be service upon all the co-tenants and neither it is necessary to implead all the co-tenants nor in the matter of service, if one is served, proceedings will be bad for non service of notice upon the others.
4. Law on this subject is no more res integra having been settled in catena of decisions. When an accommodation is under tenancy of an individual, on his death, the tenancy rights devolve on all the legal heirs of principal tenant and they would hold the tenancy as "joint tenants". The meaning of "joint tenancy" means all the legal heirs would constitute a single unit of tenancy. This is what has been held by the Apex Court in Kanji Manji Vs. Trustees of the Port of Bombay, AIR 1963 SC 468. Again in H.C.Pandey Vs. G.C.Paul (supra) the Court in para 4 of the judgment 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. There is no division of the premises or of the rent payable therefore. 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."
5. There appears to be an otherwise view taken in another decision in Mohd. Azeem Vs. District Judge, Aligarh and others, 1985 (2) ARC 85 (SC) holding that death of tenant would result in conferring tenancy rights as "tenants in common" to the legal heirs. The matter was considered by a Larger Bench of Three Judges of Apex Court in Harish Tandon (supra) and the Court affirmed the view taken in H.C.Pandey (supra) and said in para 24:
"It appears to us, in the case of H.C.Pandey v. G.C. Paul (supra), it was rightly said by this Court that after the death of the original tenant, subject to any provision to the contrary, the tenancy rights devolve on the heirs of the deceased tenants jointly. 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 and there is no division of the premises or of the rent payable therefor and the heirs succeed to the tenancy as joint tenants."
6. In para 27 of the judgment in Harish Tandon (supra) the Court clearly overruled its earlier decision in Mohd. Azeem's case (supra) and affirmed it view in H.C.Pandey (supra). In taking above view, the Court referred and followed a Constitution Bench judgment in Smt. Gian Devi Anand Vs. Jeevan Kumar & Ors., 1985 SC FBRC 229. To the same effect is the decision of this Court in Sardar Gurdeep Singh (supra). Recently this Court (myself) has followed the above authorities in Dr. Abdul Rahman Vs. IIIrd Addl. District Judge & Others in Writ Petition (Rent Control) No.2355 of 1983 decided on 7.12.2011.
7. In view thereof I find no reason to interfere.
8. Dismissed.
9. Interim order, if any, stands vacated.
Order Date :- 7.11.2012 KA