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Ganga Pershad and anr. Vs. Tribeni Devi and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 91 of 1973
Judge
Reported in12(1976)DLT150
ActsTransfer of Property Act, 1882 - Sections 106; Hindu Succession Act, 1956 - Sections 19
AppellantGanga Pershad and anr.
RespondentTribeni Devi and ors.
Advocates: D.L. Malhotra and; Arun Kumar, Advs
Cases Referred(See Joginder Narain Deo v. Ram Chandra Dutt).
Excerpt:
- - it is further submitted that notice on tribeni devi is sufficient as the notice is addressed to his sons as well. as regards the minors it is urged that notice to the widow will be taken to be on behalf of the minor sons as well. the supreme court held that notice to one of the joint tenants is a good notice. a division bench of calcutta high court held that the service of notice was good service......tribunal that the widow and three sons are co-tenants is erroneous in law. he says that they are joint tenants. it is further submitted that notice on tribeni devi is sufficient as the notice is addressed to his sons as well. in a word it is contended that a notice to one of the heirs is a valid notice to all. (10) admittedly sukh ram was the tenant of the landlords. he has died. admittedly he has left a widow and three sons. it is said that he has left daughters also. but i will not go into that question. (11) admittedly notice was served on the major son kalu. as regards the minors it is urged that notice to the widow will be taken to be on behalf of the minor sons as well. but the widow did not represent the interest of kalu ram. she represented her own interest. it is a question of.....
Judgment:

Avadh Behari, J.

(1) This is an Appeal against the order of the Rent Control Tribunal dated January 31, 1973.

(2) The facts are these. Ganga Prasad and Hardwari Lal are the landlords and owners of a house No. 2790 situated in Gali Rajputana, Subzi Mandi, Delhi. In one room there was a tentant. He was Sukh Ram. He is now dead.

(3) In 1970 the landlords brought a petition for eviction against Sukh Ram's widow, his major son and two minor sons. Ejectment was claimed on a number of grounds. It is not necessary to refer to those grounds.

(4) The Additional Rent Controller ordered eviction of the tenant on the ground that the premises were required bona fide by the landlords for themselves and for the members of their families. This order was made on July 21, 1972. The Additional Controller gave them six months time to vacate the premises.

(5) The widow and the sons appealed to the Rent Control Tribunal. The Tribunal allowed the appeal. It set aside the eviction order. Now there is an appeal to this court.

(6) The Tribunal affirmed the finding of the Additional Controller that the premises were required bona fide by the landlord. But it differed from him on the question of the validity of notice to quit. The Additional Controller had held that there was a valid notice of termination of tenancy. The Tribunal on the other hand came to a contrary conclusion. It held that the notice was not sufficient.

(7) Before the eviction petition was brought the landlords served a notice dated September 6, 1969 on Tribeni Devi widow of Sukh Ram. She received the notice. This notice mentions the name of Kalu Ram, the major son, Vishnu and Ramesh the minor sons. It requires them to vacate the premises. The service of notice on Tribeni Devi was held to be proved by the Tribunal.

(8) The Tribunal held that the widow and the three sons were cotenants. thereforee, each of them was entitled to a notice. Since the notice was admittedly served on one of them, namely, Tribeni Devi, the notice was held to be insufficient.

(9) The counsel for the landlords has contended that the view of the Tribunal that the widow and three sons are co-tenants is erroneous in law. He says that they are joint tenants. It is further submitted that notice on Tribeni Devi is sufficient as the notice is addressed to his sons as well. In a word it is contended that a notice to one of the heirs is a valid notice to all.

(10) Admittedly Sukh Ram was the tenant of the landlords. He has died. Admittedly he has left a widow and three sons. It is said that he has left daughters also. But I will not go into that question.

(11) Admittedly notice was served on the major son Kalu. As regards the minors it is urged that notice to the widow will be taken to be on behalf of the minor sons as well. But the widow did not represent the interest of Kalu Ram. She represented her own interest. It is a question of fact in each case whether one of the co-tenants is authorised by the other co-tenants to represent them.

(12) On the death of Sukh Ram his heirs inherited the tenancy as cotenants and not as joint tenants. They have unity of possession but not unity of title. The interest of the lessee vested in them.

(13) A person who obtains a share of a leasehold either by assignment or by inheritance becomes a co-tenant in the whole tenures ; and so far as the relations between him and the landlord are concerned he cannot be held to hold any estate in severalty. Each such person becomes a tenant-in-common of the whole estate by reason of the rule of the indivisibility of the estate without the landlord's consent, and has privity of estate with the landlord in respect of the whole estate. Each tenant is liable to the landlord for the whole rent.

(14) The estate of the lessee is an estate of inheritance, and the interest of the lessee after his death vests in his heirs, executors of devisees. This is not so expressly stated in the Transfer of Property Act for that Act does not deal with subject of succession. The Hindu Succession Act deals with it (see section 19(b). This is the legal position on the death of the lessee. (See Mulla-Transfer of Property Act 6th editions, page 645).

(15) The heirs of Sukh R am are co-tenants. They were not joint tenants. This is the answer given to this question by section 19(b) of the Hindu Succession Act, 1956. A Division Bench of this Court has taken this view: See Smt. Vidyawanti v. Tokan Das. I am bound by the Division Bench. It follows, the refore, that the interest of Kalu at least had not been determined. The Tribunal, I think, was right in holding that since the landlords had not served notice of termination of tenancy on all the heirs the ejectment petition was not maintainable.

(16) The counsel for the landlords has referred me to a number of rulings. First he cited Kanji Manji v. The Trustees of the Port of Bombay. That was admittedly a case of joint tenancy. Two persons were the tenants of Port Trust under a deed of assignment. Notice was served on one of them The other had died. The Supreme Court held that notice to one of the joint tenants is a good notice. It was not necessary to serve notice on the heirs of the deceased.

(17) The counsel then referred to Smt. Vishnawati v. Bhagwat Vithu Chowdhry. That was a decision on different facts. There the widow was found to have been recorgnised as a tenant. Notice was served on her. A learned single Judge held that this was sufficient notice. But in the present case it has not been shown that the landlords had recognised the widow as their tenant. They themselves mentioned in the notice that the sons of Sukh Ram are also their tenants.

(18) The counsel then cited Smt. Shafique and others v. Maqsood Ahmed Khan and others. The Tribunal has been mainly relied on this ruling in coming to the conclusion that the heirs of Sukh Ram became tenants in common and each of them was the owner of a specific interest in property. Notice to one of then did not have the effect of determining the interest of the other heirs also. This ruling was sought to be distinguished by the appellants' counsel on the ground that it relates to Muslims and is based on their personal law. I do not agree with this distinction. The case has not been decided on that ground. The learned Judge proceeded on the general principle of law. He held that in the case of tenants- in-common each one of them was entitled to a notice. On the death of the tenant his heirs took interest as tenants-in-common and not as joint tenants,

(19) Lastly the counsel submitted that the heirs of Sukh Ram formed a joint Hindu family. They were living in commensality. Notice to one is notice to all the coparceners. He cited Rajoni Bibi and others v. Haftsonnisa Bibi in support of the submission. In that case it was held that there were joint tenants. They were living in commensality. Notice was addressed to all of them. But it was handed over to one of them who acknowledged it. A Division Bench of Calcutta High Court held that the service of notice was good service. In my opinion this ruling has no application. That the heirs were living in commensality has neither been pleaded nor proved in this case. The case was not fought on this ground.

(20) The principle of joint tenancy is restricted in Hindu Law to the relations between the coparceners. It has no application outside the coparcenary. It does not apply to the relations between the coparceners and their landlord. Courts in the country strongly lean against joint tenancy. The principle of joint tenancy appears to be unknown to Hindu Law except in the case of coparcenary between the members of undivided family. (See Joginder Narain Deo v. Ram Chandra Dutt).

(21) It must be noted that Rajoni Bibi's case (supra) was decided in 1899. This was before the Hindu Succession Act, 1956. Now the Act of 1956 has to be followed.

(22) In the result, I would dismiss the appeal. I, however, leave the parties to bear their own costs.


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