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Allahabad High Court · body

2008 DIGILAW 1093 (ALL)

POOJA GUPTA v. PUSHKAR KUMAR

2008-05-21

DILIP GUPTA

body2008
DILIP GUPTA, J. ( 1 ) THE petitioner is opposite party No. 3 in the application filed by the landlord under section 21 (1) (a) of the U. P. Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the "act") for eviction of the opposite parties from the shop in dispute on the ground that the landlord bona fide required it. ( 2 ) OPPOSITE party Nos. 1 and 4 had put in appearance and file their written statement. The two daughters namely opposite party Nos. 2 and 3 were served by publication on 25. 1. 2007 but they did not file the written statement within the time specified. Opposite party No. 2 Smt. Deena Gupta filed an application seeking permission to file the written statement. This application was rejected by the Prescribed Authority on 26. 2. 2008. Subsequently opposite party No. 3 Smt. Pooja Gupta also filed an application seeking permission of the Prescribed Authority to file the written statement. This application was rejected by the order dated 17. 4. 2008. It is this order which has been impugned in the writ petition. ( 3 ) THE record of the writ petition indicate that Sri Surendra Kumar Gupta was the tenant of the shop in dispute and after his death his widow, two daughters and his son became joint tenants. Opposite party Nos. 1 and 4 have already filed a written statement and are contesting the case. The Prescribed authority has fixed todays date i. e. 21. 5. 2008 for judgment. ( 4 ) IN the application filed by opposite party No. 3, it has been stated that she had no knowledge of the pendency of the application and since she does not have good relations with her brother and when the aid opposite party came to the house in Moradabad during Holi festival, some relatives informed her about the pendency of the application. It has also been stated that the brother of the petitioner has entered into some arrangement with the landlord to cause harm to the said opposite party and, therefore, permission may be given to the opposite party to Hie the written statement. ( 5 ) THE widow, opposite party No. 1 has also filed a written statement and there is no averment in the application that the relationship of opposite party no. 3 with the widow are not cordial. ( 5 ) THE widow, opposite party No. 1 has also filed a written statement and there is no averment in the application that the relationship of opposite party no. 3 with the widow are not cordial. In such circumstances when opposite party No. 1 has filed a written statement and is contesting the case, the application filed by the opposite party No. 3 for accepting the written statement has rightly been rejected by the Prescribed Authority. ( 6 ) A three Bench decision of the Supreme Court in Harish Tandon v. Additional District Magistrate, Allahabad, U. P. and others, 1995 25 ALR (SC) 184, resolved the dispute between the earlier two Bench decisions in mohd. Azeem v. District Judge, Aligarh and others, 1985 11 ALR (SC) 358 and h. C. Pandey v. G. C. Paul, 1989 15 ALR (SC) 864 and observed that the heirs of the deceased tenant succeed to the tenancy as joint tenants. In Mohd azeem (supra) the Supreme Court had observed that the definition of tenant in the Act did not warrant the view that all the heirs will become a body of tenants to give rise to the concept of joint tenancy. In H. C. Pandey (supra), the supreme Court observed that the heirs succeed to the tenancy as joint tenants. It is on account of the aforesaid conflict between the two judgments that a Bench of three Judges was constituted. The Supreme Court elaborately examined the provisions of the Act and concluded : "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 devolved 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 tenant. " ( 7 ) IN Kishore Seth v. Satish Chandra Nigam and others, 2005 59 ALR 555, this Court observed : "i have considered the rival submission made on behalf of the parties and gave through all the decisions relied upon by them. " ( 7 ) IN Kishore Seth v. Satish Chandra Nigam and others, 2005 59 ALR 555, this Court observed : "i have considered the rival submission made on behalf of the parties and gave through all the decisions relied upon by them. It is admitted between the parties that late Ram Das, father of the petitioner, was original tenant and after his death, petitioner and his two-brothers inherited the tenancy and they became joint tenants. It is not well settled that heirs to the original tenant succeed single tenancy and in such cases, there is neither division of the premises in dispute nor the rent payable therefor. The position in this regard is well settled by several decisions of Supreme Court, including decision in harish Tandon case (supra) and H. C. Pandey case (supra ). " ( 8 ) IN Shikhar Chandra v. Additional District Judge, Jhansi/special Judge, (E. G. Act), Jhansi and others, 2005 3 ARC 437, this Court again relied upon the decision of the supreme Court in Harish Tandon (supra) and observed that orders passed against a joint tenant is binding upon the other joint tenants. " "lower Appellate Court also based its judgment on the fact that all the heirs of tenant who had died had not been impleaded. In view of Supreme court authority Harish Tandon v. Add. l. District Magistrate, 1995 25 ALR (SC) 184 and a. C. Juker v. K. P. Mantri, AIR 2001 SC 2251 , all the heirs of the deceased tenant inherit the tenancy as joint tenants and orders passed against one of the joint tenants is binding upon the other joint tenants. " ( 9 ) IN Smt. Usha Rani v. Prescribe Authority, Roorkee and others, 1998 34 ALR 202, this Court also made similar observations : ". . . . . . The law is now well settled that after the death of original tenant, his heirs/legal representatives become only joint tenants and not ten ant-in-common. In this connection reference may be had to the case of harish Tandon v. Addl. District Judge, Allahabad and others, 1995 25 ALR (SC) 184, wherein it was held by the Apex Court that after the death of the tenant, his heirs/legal representatives become only joint tenants and they do not inherit the tenancy rights, as tenants-in-common. In this connection reference may be had to the case of harish Tandon v. Addl. District Judge, Allahabad and others, 1995 25 ALR (SC) 184, wherein it was held by the Apex Court that after the death of the tenant, his heirs/legal representatives become only joint tenants and they do not inherit the tenancy rights, as tenants-in-common. It is a single tenancy which devolves on the heirs and there is no division of the premises or of the rent payable. The heirs/legal representatives, therefore, succeed to the tenancy as joint tenants. The result is that any action of any of the joint tenants binds the orders. In the case of Mohd. Parvez and others v. VIIth Addl. Chief metropolitan Magistrate/prescribed Authority, Kanpur and others, 1997 30 ALR 33, it was held that there is a presumption that a joint tenant represents the interest of all other joint tenants. In Smt. Anju Sharma v. Suresh Chand Jain and others, 1993 21 ALR 158, after the death of original tenant, suit for ejectment was filed against some of his heirs without impleading all the heirs. The decree for eviction was challenged by those who were not impleaded. Still in the circumstances it was held that the decree passed was binding on all the joint tenants, including those who were not impleaded. In the case of Sunil kumar v. Special Judge, Jaunpur and others, 1994 24 ALR 22 it was held that a person is not entitled for impleadment and contest the matter in appeal, if the matter was fully represented by some of the other joint-tenants before the Trial court. (Emphasis supplied) ( 10 ) IT is, therefore, clear that after the death of the original tenant, the tenancy rights devolve on the heirs jointly and any action of the joint tenant (s)binds the other joint tenant (s) even if they have not been impleaded. There is a presumption in law that a joint tenant represents the interest of all the other joint tenant (s) and a decree against a joint tenant would be binding on all the joint tenants even if they have not been impleaded. In the present case opposite party Nos. 1 and 4 have filed their written statements. There is a presumption in law that a joint tenant represents the interest of all the other joint tenant (s) and a decree against a joint tenant would be binding on all the joint tenants even if they have not been impleaded. In the present case opposite party Nos. 1 and 4 have filed their written statements. The allegation of the petitioner that her relation with her brother, opposite party No. 4 have not been accepted by the Prescribed Authority and it has been found that such an allegation has been made only for the purpose of delaying the disposal of the application. ( 11 ) THIS apart the petitioner has not even brought on record of the written statement by the opposite party No. 4, which would have at least indicated whether the said opposite party was effectively contesting the case or not. The mere averment made by the petitioner that the relationship with opposite party No. 4 was not cordial cannot be accepted. ( 12 ) THERE is, therefore, infirmity in the order dated 17. 4. 2008 passed by the Prescribed Authority. The writ petition is, accordingly, dismissed. Petition Dismissed. .