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Showing contexts for: tenancy devolving in Smt. Krishna Devi vs Sh. Bhim Sain on 31 July, 2014Matching Fragments
25. I have heard the arguments at Bar and perused the record.
26. Issuewise findings are as follows.
27. Issue no. 2 The issue is whether the plaintiff proves that she is entitled to a preliminary decree of partition qua the tenanted shop in question. This issue can be dealt with from a purely legal perspective. The law is well settled that on the death of a tenant, it is a single indivisible tenancy that devolves upon his heirs. No amount of evidence and astute drafting of pleadings would suffice to overwhelm this settled legal position. If any citation is needed, then the decision reported as Delhi Cloth Market Trust Committee Vs. Sheila Devi, 2001 Rajdhani Law Reporter 63 can be referred to in this regard. In this case, Delhi High Court, relying on an Apex Court decision of Harish Tandon Vs. Addl. D.M., AIR 1995 SC 676, held that a deceased tenant's legal heirs inherit a single, indivisible tenancy. The relevant observations in this regard are as follows:
It appears to us in the case of H.C. Pandey Vs. G.C. Paul (AIR 1989 SC 1470) 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 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.
18. Therefore, the respondent is not right when she contends that she acquired separate independent rights on her father's death.
She was, at best, one of the joint owners of a single indivisible tenancy. It was not and could not be a case of Babu Ram's tenancy converting upon his death in 1972 into eight separate tenancies.
28. The bottomline, therefore, is that in the face of this settled legal position plaintiff Smt. Krishna Devi cannot seek partition of the tenanted shop, of which her fatherinlaw late Birbal Singh was the original tenant. And any amount of evidence from her side will not be enough to surmount this law of the land. The tenancy that devolved upon the heirs of late Birbal Singh, upon his demise, was single and indivisible. The tenancy, being single and indivisible, therefore couldn't and cannot be subjected to divisions. Consequently, the relief of partition of the tenanted shop, as sought for by plaintiff Smt. Krishna Devi, cannot be granted. This issue thus stands decided against the plaintiff.
32. The second limb of this issue is whether the plaintiff is entitled to a declaration that she is a 'joint tenant' in the tenanted shop. At the outset, I must state that declaratory relief is a discretionary one and this is quite evident from a bare reading of section 34, Specific Relief Act, 1963.
33. This Court is conscious of the Apex Court verdict as to heritability of a nonresidential tenancy (Gian Devi Anand Vs. Jeevan Kaur, AIR 1985 SC 796). And therefore, on the demise of Birbal Singh in November, 1988, the tenancy right in the shop would have devolved upon all his legal heirs. But, it ought to be also borne in mind that the law also provides for implied surrender of tenancy {Section 111 (f), Transfer of Property Act}. The Apex Court in Pushpa Rani Vs. Bhagwanti Devi, AIR 1994 SC 774 accepted a contention based on implied surrender and also, inter alia, held that this principle does not clash with the principle of heritability of nonresidential tenancy. The relevant observations are as under: