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2009 DIGILAW 2142 (ALL)

KUSUMLATA v. REGHUV ANSH KUMAR

2009-05-07

S.K.GUPTA

body2009
JUDGMENT S.K. GUPTA, J.--This revision is directed against the order dated 22.4.2008 passed by Additional District Judge, Court No.2, Ghaziabad in S.C.C. Suit No. 18 of 2004 whereby Hie preliminary issues raised by the applicant have been decided against the revisionist. 2. Plaintiff-opposite party (in short 'landlord') filed Suit No. 18 of 2004 for arrears of rent and ejectment against the following defendants namely firm M/s. Shyam Lal Raghuvansh Kumar through Anil Kumar son of Late Manohar Lal, Kusumlata, wife of Manohar Lal, Anil Kumar son of Manohar Lal and Suresh Chand son of Late Banarasi Das. It was alleged in the plaint that the rent receipts were issued in the name of the firm M/s. Shyam Lal Raghuvansh Kumar of which the defendant Nos. 2 and 3 namely Kusumlata and Anil Kumar were the partners. It was further stated in Paragraph 9 of the plaint that Smt. Kusumlata and Anil Kumar partners of the firm have let out the said shop to Suresh (defendant No.2 in Suit No. 18 of 2004). 3. The revisionist-opposite party filed a written statement and denied the allegations made in the plaint, it was further denied that the firm was never a tenant, in fact Manohar Lal, father of Anil Kumar was the tenant and after his death his legal heirs became the tenant imd they are in actual occupation of the business. It was further alleged that the suit is bad on account of non-impleadment of all the legal heirs of late Manohar Lal, as the tenancy devolved upon all the legal heirs and further no notice under section 106 of the Transfer of Property Act (in short "the Act") was served upon all the legal heirs of late Manohar Lal. That on the basis of the pleadings of the parties the Trial Court framed two preliminary issues viz. 1. Whether the suit bad for mis-joinder of parties? 2. Whether the suit is bad for non-joinder of parties? 4. The Trial Court decided the issued against the evisionist, hence the present revision. 5. That on the basis of the pleadings of the parties the Trial Court framed two preliminary issues viz. 1. Whether the suit bad for mis-joinder of parties? 2. Whether the suit is bad for non-joinder of parties? 4. The Trial Court decided the issued against the evisionist, hence the present revision. 5. Learned Counsel for the revisionist has submitted that Late Manohar Lal, husband of revisionist No.1 and the father of rev sionist No.2, was the tenant of the shop, therefore in view of section 3-A (2) of U.P. Act No. 13 of 1972 (in short 'The Act, 1972'), after the death of Manohar Lal all legal heirs of Manohar Lal will become the tenants of the premises, therefore, notice under section 106 of the Act should have been issued against all the legal heirs and all of them should have been impleaded as parties in the suit. 6. On the other hand learned Counsel for the landlord has submitted that in fact the firm Mis. Shyam Lal Raghuvansh Kumar was the tenant of the disputed premises and Smt. Kusumlata and Anil Kumar were the partners of the firm and they have been impleaded as parties in the suit. It is further submitted that even if it is assumed that Manohar Lal was the original tenant, the tenancy rights would be inherited by his legal heirs as joint tenants, as such, it was not necessary to implead the other legal heirs i.e., maternal daughters of Manohar Lal as parties in the suit. 7. Heard Sri Pankaj Agarwal, learned Counsel for the revisionist and Sri Sumit Daga appearing for the landlord and perused the record. 8. The suit has been filed for arrears of rent and ejectment against the defendants. According to the plaint, rent receipts were issued in the name of the firm M/s. Shyam Lal Raghuvansh Kumar through its partner Anil Kumar. Smt. Kusumlata and Anil Kumar defendant Nos. 2 and 3 have been shown as the partners of the firm. It appears that Sri Manohar Lal, father of Anil Kumar expired in the year 1999 and thereafter Anil Kumar ana Smt. Kusumlata continued as partners in the firm. Smt. Kusumlata and Anil Kumar defendant Nos. 2 and 3 have been shown as the partners of the firm. It appears that Sri Manohar Lal, father of Anil Kumar expired in the year 1999 and thereafter Anil Kumar ana Smt. Kusumlata continued as partners in the firm. It has been submitted by the revisionist that after the death of Manohar Lal all his legal heirs had become the tenants as per section 3-A (2) U.P. Act No. XIII of 1972 (in short 'Act 1972') which read as follows : Section 3-A (2) of the Act, 1972 "In this Act, unless, the context otherwise requires :- (a) "Tenant, in relation to a building, means a person by whom its rent is payable, and on the tenant's death. (i).................................. (ii) In the case of non-residential building, his heirs: 9. Therefore, in view of the aforesaid section 3-A (2) of the Act, 1972, it has been submitted by the learned Counsel for the revisionists that it was incumbent upon the plaintiff to have impleaded all the legal heirs including the married daughters of Manohar Lal and the notice under section 106 of the Act should have been issued to all the legal heirs. Sri Pankaj Agarwal, learned Counsel for the revisionists has placed reliance on the decision of Gauri Shanker Gupta v. Anita Mishra and another.1 The facts of the case of Gauri Shanker Gupta (supra) in my opinion are clearly distinguishable and has no bearing to the present case. In the said case the original tenant had expired during the pendency of the suit and the impleadment application was filed by one of the legal heirs. In the present case it has been stated in the plaint that the firm was the tenant of the disputed premises and not Manohar Lal, moreover Manohar Lal died long before the filing of the suit and the said firm was impleaded as defendant No.1 through one of his partner Anil Kumar and the other partner was also impleaded as defendant No.2. Therefore, in the present suit, all the legal heirs of Manohar Lal including married daughters were not at all the necessary or proper parties. 1. 2004 (54) ALR 81. 10. Learned Counsel for the landlord has referred the following cases in support of his contention that on the death of original tenant, tenancy rights are inherited by legal heirs as joint tenant :- 1. 1. 2004 (54) ALR 81. 10. Learned Counsel for the landlord has referred the following cases in support of his contention that on the death of original tenant, tenancy rights are inherited by legal heirs as joint tenant :- 1. Harish Tandon v. Additional District Magistrate and others;1 2. Ashok Chintaman Juker and others v. Kishore Pandurang Mantri and another;2 3. H.C. Pandey v. G.C. Paul;3 4. Anokhe Lal v. Radhamohan Bansal and others;4 5. Krishna Kityal (Smt.) v. Kamlesh Gupta.5 1. 1995 (25) ALR 184 (SC). 2. 2002 (47) ALR 37 (SC). 3. 1989 (15) ALR 864. 4. AIR 1997 SC 257 =1997 SCFBRC 38. 5. 2008 (2) ARC 603. 11. Even if it assumed that the firm was not a party but Manohar Lal was the original tenant, after the death of Manohar Lal the tenancy rights would be inherited by his legal heirs as joint tenants and not as tenants-in-common. The Apex Court in Harish Tandon v. Additional District Magistrate and others (supra) has observed in Paragraphs 23 and 24 as follows :- "23. The attention of the learned Judges constituting the bench in the case of S.C. Pandey v. G.C. Paul (supra), was not drawn to the view expressed in the case of Mohd. Azeem v. District Judge, Aligarh (supra). There appears to be a 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 nold that after the death of 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 sale 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 a landlord can institute a suit for eviction. Take a case where the original tenant who was paying the rent ideas leaving behind four sons. Take a case where the original tenant who was paying the rent ideas 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 sub-section (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 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 sloe shall be liable to be evicted. There is no scope for such division of liability too pay the rent which was being paid by the original tenant, amount the heirs as against the landlord what the heirs do inter se, is their concern. Similarly, so far as clause (b) of sub-section (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 tile 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 deceased tenant had done so. 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 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 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 tendencies 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 cue 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. 12. Thus the Apex Court in the above noted case has held that on the death of tenant his heirs succeeds the tenancy tight as joint tenant and not tenants-in-common. They cannot be treated to be independent with each other. 12. Thus the Apex Court in the above noted case has held that on the death of tenant his heirs succeeds the tenancy tight as joint tenant and not tenants-in-common. They cannot be treated to be independent with each other. It is a single tenancy which devolves upon the heirs and there is no division of the premises or the rent payable therefor and the heirs succeeds to the tenancy as joint tenants. 13. Recently this Court is the case of Krishna Kityal (Smt.) v. Kamlesh Gupta (Smt.) and another,1 after considering the various decisions on this point has held that on the death of original tenant the tenancy rights are inherited by heirs as joint tenants. 1. 2008 (2) ARC 603. 14. The learned Counsel for the revisionist has disputed the fact that the firm was a tenant of the premises. According to him, Manohar Lal was the original tenant and not the firm of the disputed premises although he has admitted that the rent receipts were issued in favour of the firm M/s. Shyam Lal Raghuvansh Kumar. At this stage it will not be proper for this Court to make any observation to the effect as to who was the original tenant. However, in the plaint filed by the plaintiff-opposite party, firm has been impleaded as a tenant through its partners. It is for the Trial Court to adjudicate upon the said disputed question of fact. 15. In view of the above, the arguments of the learned Counsel for the revisionists that all the legal heirs of deceased Manohar Lal should have been made parties in the suit does not have any merit. The argument is spun around thin air. The revisionist has not laid down any foundation to his arguments and it is difficult to uphold the contention of the petitioner. No fault can be found with the approach adopted by the Court. The argument of the revisionist has no substance and is wholly untenable and erroneous. 16. I do not see any illegality and infirmity in the order passed by the Court below. 17. No other point has been pressed by the revisionists before me. 18. In the result present revision is accordingly dismissed. However, it is expected that the Court below will proceed with the matter expeditiously. Civil Revision Dismissed.