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21. The pivotal question to be considered in this case is whether the tenancy qua the father of the petitioner devolves upon the legal heirs as joint tenancy or tenancy in common? If so, the effect of the tenancy rights on the estate of the Petitioner?

22. It is significant to note that the notice under Section 106 of the Transfer of Property Act, 1882 has been addressed to both the statutory tenants; and it is clear that the landlord was determined to terminate the tenancy. However, the notice has not been complied; therefore, eviction proceedings had been started. I may note that the eviction proceedings have been started with the notice under Section 106 of the Transfer of Property Act, 1882; and in the present case the proceedings concluded with respondent no. 2, excluding one of the legal heirs of a statutory tenant.

25. However, in the present case, in view of Section 19(b) of the Hindu Succession Act, 1956, there can be no dispute that the tenancy in the present case is not joint tenancy but tenants-in-common as the tenancy devolved by inheritance. Ruling of the Supreme Court in Kanji Manji's case, therefore, has no applicability.

26. In regard to joint tenancy, this Court in Inderpal Khanna (Sh.) v. Commander Bhupinder Singh Rekhi (Rtd.) 2008 VIII AD (DELHI) 328 has held as under:

"Where out of many, only one or two LR of deceased tenant are in occupation of premises, an eviction petition by landlord against those who are in occupation of the premises is a valid petition. It is not necessary for the landlord to implead all the legal heirs of the deceased tenant or to implead even those who are not in occupation and possession of the premises. In the present case, since only two brothers were in possession of the premises, his impleading only two brothers as defendants was good enough and receipt of personal summons by one of the brother, who was joint tenant was valid service of summons on both the joint tenants in the eyes of law. Service of one of the joint tenant has to be considered service on the other joint tenant because in joint tenancy, the tenancy remains one. It is not separate tenancy and right of each of the joint tenants is in whole of the premises."
"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 incidences 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. In the circumstances, the notice served on the respondent was sufficient. It seems to us that the view taken in Ramesh Chand Bone (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 Section 106 of the Transfer of Property Act served by the appellant on the respondent is a valid notice and therefore the suit must succeed."

34. However, the son of original landlord filed the eviction petition without arraying the petitioner as a party. Though, the respondent no.2 has taken an objection regarding the non-joinder of a necessary party, the rent controller has rejected the same and came to a specific finding as under:

" The respondent contended that originally Late Sh. Ishwar Chand Jain, father of the respondent and the respondent was tenant in respect of the tenanted premises but after the death of Late Sh. Ishwar Chand Jain, the tenancy devolves upon the respondent and the other legal heir of Late Sh.Ishwar Chand Jain namely Sh. Rakesh Jain but Sh. Rakesh jain was not made party by the petitioner therefore, the petition is bad for nonjoinder of necessary party. On the other hand the petitioner stated that other legal heir of Late Sh. Ishwar Chand Jain is not in use and occupation of the tenanted premises and never paid rent to the petitioner and as such the petition is maintainable. It is admitted case of the respondent that respondent and his father were the original tenants in respect of the suit premises. It is well settled law that after death of a tenant all his legal heirs only become joint tenants and not cotenants. Thus both the sons become joint tenants whereas the respondent is also a tenant in his own capacity. Sh. Rakesh Jain merely a joint tenant. A landlord is not required to implead all the joint tenants in an eviction petition. It was held in Inderpal Khanna Vs. Commander Bhupinder Singh Rekhi, 2008 VIII AD (Delhi) 328 that "It is settled law that on death of tenant, tenancy devolves upon legal heirs as a joint tenancy. LRs are joint tenants and not tenants in common. Where out of many, only one or two LR of deceased tenant are in occupation of premises, an eviction petition by landlord against those who are in occupation of the premises is a valid petition. It is not necessary for landlord to implead all the legal heirs of the deceased tenant or to implead even those who are not in occupation and possession of the premises."