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2015 DIGILAW 2641 (ALL)

Mohd. Rashid v. Km. Ranjana Mishra

2015-08-27

ASHWANI KUMAR MISHRA

body2015
JUDGMENT Ashwani Kumar Mishra, J. Plaintiffs-appellants have instituted a suit for injunction on the ground that the property in dispute, which was a shop, had been let out to the father of the defendants-respondents, who died, and that consequent upon death of tenant, the tenancy was continued with eldest son of the deceased occupying the premises and after having remained in possession for a period of almost one year, the tenancy was surrendered by the eldest son after accepting a sum of Rs.25,000/-. The surrender deed is also alleged to have been executed. It was stated that even thereafter, the other members of the family, particularly defendant no.2 (respondent no.1 in the present appeal) was again trying to get in possession over the suit property, and therefore, the suit for injunction was instituted. 2. The suit was contested by the defendant no.2 with the allegation that the tenancy upon the death of original tenant developed upon all heirs, who became joint tenants, and therefore, it was not open for defendant no.1 (respondent no.2 in the present appeal) alone to surrender the tenancy. A case of will was also set up by the defendant no.2, on the basis of which it was also stated that she became entitled to inherit the tenancy exclusively. A counter claim also filed by the defendant no.2 seeking restitution of possession over the disputed shop on the ground that eviction was unlawfully made, and therefore, restitution was also sought. 3. Parties led oral and documentary evidence in support of their claim. Trial court decreed plaintiffs-appellants' suit with the finding that once the tenancy had been surrendered by eldest son, the other members of the family would be bound by such act of the eldest son. 4. Aggrieved against the judgment and decree of the trial court, defendant no.2 preferred an appeal under section 96 of the Code of Civil Procedure. The lower appellate court has allowed the appeal by holding that once the original tenant has died, the tenancy would devolve upon all members of the family and it was not open for one of the family members to surrender the tenancy without there being consent of other members. The lower appellate court relied upon the decision of the Hon'ble Supreme Court in the case of Harish Tandon vs. Addl. The lower appellate court relied upon the decision of the Hon'ble Supreme Court in the case of Harish Tandon vs. Addl. District Magistarate, Allahabad, U.P. reported in (1995) 1 SCC 537 : 1995 (1) ARC 221 to hold that consequent upon death of the original tenant, all heirs became joint tenant and in such circumstances, it was not open for the defendant no.1 to have executed surrender deed without consent of others. The suit was ultimately dismissed by the lower appellate court and the counter claim was allowed with the finding that the defendant no.2 was entitled to restitution of possession as she had not been legally evicted from the premises and the surrender of tenancy by one of the members of family would not be binding upon other members of the family. However, claim of exclusive tenancy pursuant to will in favour of defendant no.2 was rejected, holding that tenancy cannot be bequeathed. 5. Aggrieved by the judgment and decree of the lower appellate court, plaintiffs-appellants have filed the instant second appeal. 6. Learned counsel appearing for the plaintiffs-appellants submits that after death of the deceased tenant, the tenancy was inherited only by the eldest son, who continued to remain in occupation of shop and after about a year, he surrendered the tenancy after accepting a sum of Rs.25,000/-. The surrender deed was also executed. According to learned counsel, such act on behalf of eldest son of the deceased tenant would bind other members of the family. Reliance has been placed upon para 21-23 of the judgment of the Harish Tandon (supra), in order to contend that the view taken by the lower appellate court is perverse. 7. The judgment of the lower appellate court, on the other hand, is defended by the learned counsel appearing for the defendants-respondents, who submits that an act of surrender would be binding upon other members of the family only with their consent and once it was demonstrated that consent of other members was not there, the lower appellate court was correct in holding that the alleged surrender of tenancy would not bind other members of the family. Learned counsel further submits that continuation of tenancy of defendant no.1, who is said to have executed surrender deed, was on behalf of all other members of the family and it cannot be said that defendant no.1 had an independent right to surrender the tenancy on behalf of other members. 8. Having considered the submissions advanced by learned counsel for the parties, this Court finds that the factum of all members of the family becoming joint tenants of the shop is not in dispute. Once that be so, all defendants had acquired tenancy right in the premises. So far as the claim setup by the plaintiffs-appellants with regard to tenancy having been surrendered through surrender deed is concerned, the lower appellate court has found that the alleged surrender deed had not been proved. This has been so held as the executors and the signatories, particularly defendant no.1 has not been produced as a witness to support the same. So far as a second deed is concerned, it has been observed by the lower appellate court that the entire surrender deed was not produced before the court below and only the second page of the same was filed. In such view of the matter, the lower appellate court has returned a finding that there was no document or evidence of surrender of tenancy by defendant no.1. This finding of the lower appellate court is based upon consideration of oral and documentary evidence, which cannot be said to be erroneous and perverse. 9. This Court in exercise of its jurisdiction under section 100 of the Code would not be justified in interfering with such findings returned by the lower appellate court on the basis of facts adjudicated. Reverting to the submissions advanced on behalf of plaintiffs-appellants before this Court, I am of the opinion that though an act by one of the members of the family would normally bind other tenants, but the same would not be or ought not to be the case where any specific right is sought to be surrendered. Surrendering of right on behalf of all other members must be shown to be with their consent, but in the facts of the present case, the act of surrender of tenancy by one of the members has been contested/objected from the very initial stage. Surrendering of right on behalf of all other members must be shown to be with their consent, but in the facts of the present case, the act of surrender of tenancy by one of the members has been contested/objected from the very initial stage. In such circumstances, it cannot be said that the tenancy has been surrendered with the consent of all other family members. Once that be so, the lower appellate court was absolutely justified in dismissing the suit and decreeing the counter claim. The finding of the lower appellate court that the defendants had not been evicted in accordance with law is also made out in the facts of the case, and therefore, the decree for restitution of possession is not liable to be interfered with. So far as the decision of the Apex Court in the case of Harish Tandon (supra) is concerned, proposition of law, which has been laid down by the Hon'ble Supreme Court after noticing the conflict in earlier judgment, is contained in para 23 of the judgment, which is reproduced: - "23. The attention of the learned Judges constituting the Bench in the case of H.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 an 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 hold that after the death of the 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 same 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 the landlord can institute a suit for eviction. Take a case where the original tenant who was paying the rent dies leaving behind four sons. Take a case where the original tenant who was paying the rent dies leaving behind four sons. It need not be pointed out that after the death of the 302 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 alone shall be liable to be evicted. There is no scope for such division of liability to pay the rent which was being paid by the original tenant, among the heirs as against the landlord what the heirs do inter se, is their concern. Similarly, so far as ground (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 the 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 the deceased tenant had done so. Clause (d) of subsection (2) of Section 20 against each of the heirs of original tenant. Clause (d) of subsection (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." 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 tenancies 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." 10. After noticing the provisions and scheme of U.P. Act No.13 of 1972, it was held that upon death of a tenant, his heirs become joint tenant and not the tenants in common so as to have an independent right and claim independent tenancy. It is only in case of a default committed by any of the joint tenant that his action would bind other heirs. However, while dealing with a case of clause (d) of sub-section (2) of section 20 it was observed that single tenancy would stand split up into several tenancies and landlord can get possession only if one or the other ground mentioned therein is established against each of the heirs. 11. However, while dealing with a case of clause (d) of sub-section (2) of section 20 it was observed that single tenancy would stand split up into several tenancies and landlord can get possession only if one or the other ground mentioned therein is established against each of the heirs. 11. In view of the aforesaid proposition of law laid down by the Hon'ble Supreme Court, the right of all the heirs of deceased tenant would jointly devolve upon them and such right therefore cannot be surrendered by any one of the heirs without consent of other heirs. Rent Control Act is a welfare legislation and object of it is to secure the rights of heir of deceased tenant and it would be unfair to concede right in any one of them to the detriment of interest of other heirs, especially when there is no act of default or surrender of tenancy on their past. The act of surrendering of tenancy has been objected from the very initial stage. In such view of the matter the argument advanced by learned counsel for the plaintiffs-appellants that surrendering of tenancy by one of the members i.e. defendant no.1, would bind all other members, is not liable to be accepted. No substantial questions of law arises for consideration in the present appeal. 12. The second appeal fails and is dismissed accordingly.