Delhi District Court
Vide This Order vs Gopal Das on 25 March, 2013
IN THE COURT OF SAURABH PRATAP SINGH LALER, ACJ/ARC(WEST),
TIS HAZARI, DELHI
Ex. No: 30/2012
Date of Order : 25.03.2013
GANGESHWARI DEVI ... DECREE HOLDER
VERSUS
SHAKUNTALA ...JUDGMENT DEBTOR
O R D E R
1. Vide this order, the court shall dispose of two application filed by JD in the present execution petition.
2. First application is an application under section 151 CPC read with rule 7 of DRC Rules with regard to abuse of process of law by the unauthorized person who has represented to be the attorney of the petitioner.
3. In the said application, the present execution petition has been objected to primarily on the ground that petitioner is not the owner of the suit premises and that she has never been landlady of the respondent and that the respondent used to pay rent to Mridul Vyas and after his death no person ever appeared on his behalf claiming to be landlord of the suit property. The present execution petition has been contested on the ground that the petitioner has told the son of SC NO. 337/2007 PAGE 1 OF 14 JD/respondent that she has never given any approval to Khem Singh son of Budha Ram to represent her for the eviction of the suit premises. It has also been stated by the respondent/JD that the petitioner/DH told her son that she has no connection with the property in question and that she has not instituted any eviction petition against respondent/JD.
4. No reply to the said application was filed by the DH.
5. The arguments were heard on the application on behalf of both the parties.
6. Perusal of record reveals that the petitioner had filed an eviction petition under section 14(1)(e) DRC Act against respondent/JD on 18.05.2009 and the said execution petition was decided in favour of petitioner/DH vide order dated 06.07.2009 and as per the said order the petitioner was directed to evict the tenanted premises. A review against the said order was also filed by the respondent/JD and the said review application was dismissed by the reasoned order on 07.04.2012.
7. Since 07.04.2012, no stay order has been received from any court regarding present execution petition.
8. Grounds which have been raised in the present application by the respondent/JD could have been raised by her only before the trial court either at the stage of passing of the judgment or at the stage of filing of review application by the JD in the court. This court being executing court cannot go SC NO. 337/2007 PAGE 2 OF 14 into the issue as regards whether Gangeshwari Devi is the owner of the premises or not and as to whether she has appointed Sh. Khem Singh as her attorney or not as order of eviction under section 14(1)(e) of DRC Act is passed by the court only after the court is satisfied that the petitioner is landlady and also the owner of the tenanted premises. The eviction order being passed in the present case under section 14(1) (e) of DRC Act itself means that the trial court after consideration of the petition formed an opinion that the petitioner was the landlady and the owner of the tenanted premises and that she required the tenanted premises for her bonafide need. Thus, this court being executing court cannot go behind the findings of trial court and observe otherwise. Moreover, in the present petition, though it has been stated by the JD that the petitioner/DH is neither the landlady nor owner of the tenanted premises, but the JD has failed to disclose as to who is the landlord of the JD and as to whom rent was paid by the JD after the death of Mridul Vyas in 1990. Further, though in the petition, it has been stated that the son of JD visited Gangeshwari Devi/petitioner/DH at Gwalior and that DH told the son of petitioner that she has no concern with the property in question and that she has not given any authority to Khem Singh to file Eviction Petition against the JD, still the respondent/JD failed to obtain anything in writing from Smt. Gangeshwari Devi or her affidavit in this regard. Merely stating that the Power of Attorney filed in the Eviction Petition is not proper and that the main petition as well as this execution petition has been filed without any authority by the purported GPA holder of DH, is not sufficient for this court to go behind the decree in question, even if, fraud is alleged by the JD.
SC NO. 337/2007 PAGE 3 OF 14
9. Thus, the said application is dismissed for want of merits.
10. Another application filed by respondent/JD is an application under section 151 CPC and in this application it has been contended by respondent/JD that after the death of her husband Prem Nath the tenancy has devolved upon her as well as other LRs of deceased Prem Nath, but the eviction petition has been filed solely against respondent/JD and not against the other LRs of deceased Prem Nath because of which the order of eviction was passed only against respondent/JD and not against the other cotenant, LRs of deceased Prem Nath and such an eviction order against one tenant is not binding on the other cotenants in view of judgment titled Indra Sharma Vs Gopal Das, 1984 (2) RCJ 504. Thus, it is prayed the the eviction proceeding be dropped against the respondent/JD.
11. No reply to the said application was filed by the DH, however DH relied upon a judgment of Supreme Court of India in this regard titled Harish Tondon Vs. Addl. District Magistrate, Allahabad, U.P., AIR, 1995, SC
676.
12. The court has gone through the record and found that in the judgment title Indra Sharma Vs Gopal Das, 1984 (2) RCJ 504, it has been observed that section 19 of Hindu Succession Act makes it clear 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 a joint tenants, thus where the tenancy rights SC NO. 337/2007 PAGE 4 OF 14 devolve upon the legal heirs of deceased tenant, they inherit the tenancy as co tenant and not as joint tenant, they have unity of possession but not unity of title and eviction order against one tenant is not binding on the other co tenants. The Hon'ble Delhi High Court in this regard relied upon another judgment of Hon'ble Delhi High Court tile Vidyawanti Vs. Takan Dass, 1974 RCR 47.
13. From the said judgment, it seems that the eviction which has been passed in the present case against judgment debtor Shakuntala is not binding upon her sons who had also inherited the tenancy from their deceased father.
14. However, there are subsequent judgments of the Hon'ble Supreme Court of India which laid down different law in the said judgment discussed hereunder: H.C. Pandey v. Sri G.C. Paul, (SC) 1989(1) R.C.R.(Rent) 493 wherein it has been observed 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 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. In the present case it appears that the respondent acted on behalf of the tenants, SC NO. 337/2007 PAGE 5 OF 14 that he paid rent on behalf of all and he accepted notice also on behalf of all. In the circumstances, the notice was served on the respondent was sufficient. It seems to us that the view taken in Ramesh Chand Bose (supra) is erroneous where the High Court lays down that the heirs of the deceased tenant succeed as tenants in common. In our opinion, the notice under S. 106 of the Transfer of Property Act served by the appellant on the respondent is a valid notice and therefore the suit must succeed." Ashok Chintaman Juker v. Kishore Pandurang Mantri, (SC) 2001(1) R.C.R.(Rent) 581 wherein it has been observed as under: "14. This Court in the case of H.C. Pandey v. G.C. Paul, AIR 1989 SC 1470 taking note of settled position 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, held that it is a single tenancy which devolves on the heirs. There is no division of the premises or of the rent payable thereafter and 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. This Court further held that the respondent acted on behalf of the tenants; he paid rent on behalf of his father and he accepted notice on behalf of all; in the circumstances the notice served under section 106 of the Transfer of Property Act on the respondent was sufficient and it was a valid notice.
15. In the case of Textile Association (India) Bombay Unit v. Balmohan Gopal Kurup and another, 1991(2) RCR (Rent) 344 (SC) :
AIR 1990 SC 2053, this Court on the facts and circumstances stated therein took the view that the exparte decree obtained against mother SC NO. 337/2007 PAGE 6 OF 14 and brother was not binding against the respondent therein.
16. In the case on hand, as noted earlier, on the death of the original tenant Chintaman the rent bills in respect of the premises in question were issued in the name of his elder son Kesrinath and on his death the rent bills were issued in the name of his widow Smt. Kishori Kesrinath Juker. It is not the case of the appellant No. 1 that there was any division of the premises in question or that rent was being paid to the landlord separately by him. Indeed the appellant No. 1 took the plea that he was paying the rent through Smt. Kishori Kesrinath Juker. Thus the tenancy being one, all the members of the family of the original tenant residing with him at the time of his death, succeeded to the tenancy together. In the circumstances the conclusion is inescapable that Smt. Kishori Kesrinath Juker who was impleaded as a tenant in the suit filed by the landlord represented all the tenants and the decree passed in the suit is binding on all the members of the family covered by the tenancy. In the circumstances the decree passed in terms of the compromise entered between the landlord and Smt. Kishori Kesrinath Juker can neither be said to be invalid nor inexecutable against any person who claims to be a member of the family residing with the original tenant, and therefore, a `tenant' as defined in Section 5(11)(c). The position that follows is that the appellants have no right to resist on the ground that the decree is not binding on them. Further, the trial court and the appellate court concurrently held that the appellant No. 1 has not been residing in the premises since 1962 i.e. when his elder brother Kesrinath was alive. Therefore, when the suit was filed in the year 1992 there was no necessity for the landlord to implead appellant No. 1 or members of his family in the suit since he (landlord) had no cause of action for seeking a decree of recovery of possession from them. In that view of the matter the decree under execution does not suffer from any illegality or SC NO. 337/2007 PAGE 7 OF 14 infirmity. Viewed from any angle the appellants have no justification on the facts as well as in law to resist execution of the decree for possession of the premises by the landlord. The Executing Court rightly rejected the objection filed by the appellants against execution of the decree and the appellate court and the High Court rightly confirmed the said order. This appeal being devoid of merit is dismissed with costs which is assessed at Rs. 10,000/.
Triveni Giri v. 4th Additional Distt. Judge, Bulandshahr, (Allahabad) 2007 (1) R.C.R.(Rent) 130 wherein it has been observed as under: "7. The tenancy was inherited by the heirs of Madan Lal as cotenants. It is settled law that the order passed against one cotenant is binding upon the other cotenant and such a decree would bind all the co tenants........."
Sh. Inder Pal Khanna v. Commander Bhupidner Singh Rekhi(rtd.), (Delhi) 2008(8) A.D.(Delhi) 328 wherein it has been observed as under: "2. A petition under Section 14(1)(e) read with Section 25(B) of DRC Act was filed by the respondent against the petitioner and his brother, Rajkumar Khanna for eviction from property no. C16, First Floor, Nizamuddin, East Delhi. The property was initially rented out to Mr. Dwarka Das Khanna, father of the petitioner for residential purpose and after his death, petitioner along with his brother, Rajkumar Khanna were living in the property. The landlord had in detail given his bonafide necessity. Notice of the eviction petition was sent to the petitioner who filed his application for leave to defend on 26th November, 2005.
3. The Trial Court found from the record that petitioner was served on SC NO. 337/2007 PAGE 8 OF 14 23rd September, 2005 through his brother, Rajkumar Khanna, i.e., respondent no. 2. The application for leave to defend was filed much beyond the period prescribed under the law. The present petitioner took the plea that he had gone to USA on 26.7.2005 and had returned to India on 11.12.2005. Immediately on his return to India, he had come to know about the demise of his close friend Mannu Bhai Patel so he went to Gurgaon and resided there. He returned to Delhi on 17.11.2005 and was informed about this petition by his brother, Sh. Rajkumar Khanna on 18.11.2005. He was not served with the summons personally. He, however, contacted his lawyer and filed an application for leave to contest within the limitation from the date of his knowledge.
4. The respondent no. 2, brother of the petitioner was served personally on 23.9.2005 through process server. Respondent no. 2 had also filed an application for leave to defend on 24.10.2005 much beyond the period provided under the Act. Since respondent no. 2 has not challenged the order of ARC, the facts relating to him are not relevant except that the Trial Court had come to conclusion that respondent no. 2 was served personally through process server on 23.9.2005.
5. The trial Court came to conclusion that petitioner (respondent no. 1 below) was served through respondent no. 2 on 23.9.2005. This was a valid service of summons on respondent no.1. He was supposed to file an application for leave to defend within 15 days of service of summons. The application was filed much beyond the stipulated period. The provisions of Limitation Act were not applicable to Delhi Rent Control Act therefore there was no question of condonation of delay in filing the application and rejected the application for contest to leave and passed a decree of eviction.
6. In the revision, the petitioner had assailed the order of the Trial Court on the ground that service on respondent no. 1 was required to be done SC NO. 337/2007 PAGE 9 OF 14 individually and separately in terms of Section 25(B) of Delhi Rent Control Act and service through brother was not a valid service. The other point raised is that service under Section 25(B) of Delhi Rent Control Act was required to be done through ordinary process as well as through registered post and service of summons merely through ordinary process was not a complete service. The third ground taken is that the landlord had failed to implead remaining LRs of Dwarka Das Khanna, therefore, the eviction petition was not maintainable and this vitiated the entire proceedings.
7. It is undisputed fact that the petitioner is an LR of Dwarka Das Khanna, the original tenant. It is settled law that on death of the tenant, the tenancy devolves upon legal heirs as a joint tenancy. LRs are joint tenants and not tenants in common. Once the tenancy is a joint tenancy, notice to one of the joint tenant is sufficient to terminate the tenancy and the suit cannot be held to be bad for non joinder of the other joint tenants or all the legal heirs of the deceased tenant. This issue was settled by Supreme Court in Kanji Manji v. Trustees of the Port of Bombay, AIR 1963 SC 468., wherein the Supreme Court observed that where the tenancy was a joint tenancy, notice to one of the joint tenant was sufficient and the suit against one of the joint tenant not impleading rest of the joint tenants was good and the suit cannot be dismissed on this ground. The plea of the petitioner that the petitioner was separately required to be served personally is therefore not tenable. The petitioner was not a tenant in common. He had inherited a joint tenancy along with his brother and other legal heirs.
8. This Court in 1990 (3) Delhi Lawyer 163 Mohd. Usman v. Surayya Begum, has observed as under :
"In the light of the above observations of the Supreme Court there can be SC NO. 337/2007 PAGE 10 OF 14 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."
Harish Tandon v. Additional District Magistrate, Allahabad, (SC) 1995(1) R.C.R.(Rent) 217 wherein it has been observed by full bench of Hon'ble Apex court as under: "23. The attention of the learned Judges constituting the Bench in the case of H.C. Pandey v. G.C. Paul, 1989(1) RCR 493 was not drawn to the view expressed in the case of Mohd, Azeem v. District Judge, Aligarh (supra). 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 tenant 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 subsection (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 SC NO. 337/2007 PAGE 11 OF 14 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 to inter se, is their concern. Similarly, so far as ground (b) of subsection (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 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 SC NO. 337/2007 PAGE 12 OF 14 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.
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.
25. In the case of Smt. Gian Devi Anand v. Jeevan Kumar and others, 1985 (Suppl.) SCR 1, the Constitution Bench of this Court in connection with Delhi Rent Control Act, 1958 said :
"The heirs of the deceased tenant in the absence of any provision in the Rent Act to the contrary will step into the position of the deceased tenant and all the rights and obligations of the deceased tenant including the protection afforded to the deceased tenant under the Act will devolve on the heirs of the deceased tenant. As the protection afforded by the Rent Act to a tenant after determination of the tenancy and to his heirs on the death of such tenant is a creation of the Act for the benefit of the tenants, it is open to the Legislature which provides for such protection to make appropriate provisions in the Act with regard to the nature and extent of SC NO. 337/2007 PAGE 13 OF 14 the benefit and protection to be enjoyed and the manner in which the same is to be enjoyed. If the Legislature makes any provision in the Act limiting or restricting the benefit and the nature of the protection to be enjoyed in a specified manner by any particular class of heirs of the deceased tenant on any condition laid down being fulfilled, the benefit of the protection has necessarily to be enjoyed on the fulfilment of the condition in the manner and to the extent stipulated in the Act."
15. In view of the aforesaid judgment of Hon'ble Apex court, our High Court and even other High Courts, 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 and it is a single tenancy which devolves on the heirs. There is no division of the premises or of the rent payable therefor. In other words, the heirs succeed to the tenancy as joint tenants and not as tenants in common.
16. Thus, the aforesaid application filed by the Judgment debtor claiming that the eviction petition is not maintainable qua the other LRs of deceased tenant Prem Nath is without merits in the view of the observations of Hon'ble Apex Court. Accordingly, application is dismissed.
Announced in the open court On this 25th day of March, 2012 (Saurabh Pratap Singh Laler) ACJ/ARC(West) Tis Hazari, Delhi SC NO. 337/2007 PAGE 14 OF 14