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12 This argument has been refuted in rejoinder. It is submitted that the Court has to take a practical and reasonable view; it has always been the case of the tenant that „Jain Provision Store‟ is the tenant and Anita was never in occupation of the suit premises; her absence in all practicability would not affect the case of the tenant either. Reliance has also been placed upon 2008 VIII AD (Delhi) 328 Inder Pal Khanna Vs. Commander Bhupinder Singh Rekhi (Rtd.) to substantiate a submission that non-joining of Anita even otherwise does not affect the case of the petitioner as on the death of the original tenant, the tenancy would devolve upon all the legal heirs as a joint tenancy and even if one is not impleaded, it would not affect the case of the landlady.

13 Arguments have been heard of learned counsel for the parties and the record has been perused.

14 The second submission of learned counsel for the respondents which is on the maintainability of the petition shall be answered first. It is a well settled law that on the death of the tenant, the tenancy would devolve upon the legal heirs as a joint tenancy; legal heirs are joint tenants and not tenants in common. In Inder Pal Khanna (Supra) a Bench of this Court had noted that in such a situation notice to any one of the joint tenants is sufficient and suit cannot be held to be bad for non-joininder of the joint tenants who are arrayed as parties only in their capacity as legal heirs of the deceased tenant; the Apex Court in Kanji Manji Vs. Trustess of the Port of Bombay AIR 1963 SC 468 had noted this position; it has noted that notice to one of the joint tenants is sufficient and suit against one of the joint tenant not impleading the others was good and the suit could not be dismissed on this ground alone. In 1990 (3) Delhi Lawyer 163 Mohd. Usman Vs. Surayya Begum, a Bench of this Court had noted with approval the ratio of the case of Kanji Manji (Supra) and observed as follows:-

18 In this back ground, the respective contentions of the parties have to be appreciated.

19 It is not in dispute that the premises were originally owned by Shyam Lal Kapoor, the father of Shakuntala Lall and others; after his death the property had devolved upon the petitioners; this position is in fact admitted by the tenant. The contention of the tenant in fact is that the rent used to be collected by Shyam Lal Kapoor and he was issuing rent receipts for the said purpose; Ex. PW-1/RW-1 & Ex. PW-1/RW-2 (rent receipts) which depicted the payment of rent for the months of September and December, 1969 had been adduced in evidence to substantiate this submission. Ex. PW-1/R3 was a letter written by Shyam Lal Kapoor to „M/s Jain Provision Store‟; this document had not been assailed in the cross-examination; it is dated 17.09.1965 written by Shyam Lal Kapoor in the name of „Jain Provision Store‟ asking for a money order of Rs.300/- as rent; these documents were relied upon by the court below to return a finding that „Jain Provision Store‟ was in existence in these premises from the very inception of the tenancy which was from the year 1957. The Court had also noted that although the landlady PW-1 had testified that the respondents Surji Ram Jain had attorned as a tenant and attornment letter had been issued yet this letter had not been produced on record for which an adverse inference had been drawn against the landlady and rightly so. The partnership deed Ex. RW-1/1 is a document dated 17.06.1970 executed between Suraj Kala Jain (widow of Surji Ram Jain) and Ram Krishan Gupta; business was under the name and style of „Jain Provision Store‟, 65-B, Khan Market. Para 5 of this deed has categorized the profits of the partnership; the first party (Suraj Kala Jain) would be entitled to 75% of the profits and the second party (Ram Krishan Gupta) would get 25% of the remaining profits; clause 13 had stipulated that the goodwill of the firm and the tenancy rights in the above premises would always remain with the first party and the second party would not acquire or claim any right in the same. There were three partnership deeds which had been brought on record by the respondents first of which dated 17.06.1970 and was to take effect from 01.04.1970. This document clearly satisfied the role of Ram Krishan Aggarwal as a Manager. In the eviction petition, the landlady had specifically averred the name of the sub-tenant i.e. Ram Krishan Gupta but no details could be furnished by the landlady as to when this sub-tenancy was created. Admittedly the landlady is a non-resident Indian and was not living in India; it is also an admitted fact that the present eviction petition has been filed in the year 1997. The tenancy had been created in favour of the husband of the respondent from the year 1957. Surji Ram Jain had died in 1964 and after his death his legal representatives who comprised his widow, three daughters and two sons had inherited the tenancy; it had not devolved upon any single person. The law on this point is also very clear; commercial tenancy as also a residential tenancy would devolve upon all the legal representatives of the deceased as has been held by the Apex Court in the case of Gian Devi Anand Vs. Jeevan Kumar and Others (1985) 2 SCC 683.