Dalip K. Kapur, J.
(1) This is an appeal against a decision of the Rent Control Tribunal passed in appeal against an order under Section 15(1) of the Delhi Rent Control Act, 1958. The appellants are (1) Shrimali Nirmal Jerath, (2) Rajeev Jerath, minor son of Shrimati Nirmal Jeraih, and (3) Shrimati Gian Devi, widow of Madan Gopal Jerath, and the premises are situated in House No. 34-E, Kamla Nagar, Delhi. In the ejectment application, out of which this appeal has arisen, the appellants were the applicants and Shrimati Shakuntala Jerath was joined as one of the respondents. The facts of the case show that the properly qua which ejectment was sought was let out by the late Sham Sunder Jerath to the tenants. After his death his mother, Shrimati Gian Devi, Shrimati Nirmal Jerath and his minor son Rajeev Jerath instituted this ejectment petition. The other widow did not join them and was imp leaded as a respondent. The ejectment application was moved on various grounds including the non-payment of rent. The Additional Rent Controller passed an order on 5th January, 1971, under Section 15(1) of the Delhi Rent Control Act, 1958 slating that as there was a dispute between the parties concerning the persons who were entitled to get the rent, hence the tenants should be directed to deposit the arrears of rent at the rate of Rs. 35.00 per month with effect from 1st February, 1968, but the rent should not be paid to the petitioners or respondent No. 3, who were the four heirs of the late Sham Sunder Jerath. This controversy arose thus. Petitioner No. 1 i.e., Shrimati Nirmal Jerath claimed that she was the widow along with respondent No. 3, Shrimati Shakuntala Jerath and the other heirs were the son and mother of the late Sham Sunder Jerath. On the other hand, respondent No. 3 claimed that she was the sole widow and also that she had received the rent. The Additional Rent Controller decided this controversy by directing the amount to be paid into Court without being paid to any of the parties.
(2) An appeal was taken against this order to the Rent Control Tribunal. The Tribunal came to the conclusions that (a) as the rent had already been paid to Shrimati Shakuntala Devi according to the statement made hence no order should have been passed under section 15(1) of the Act as no rent was due and (b) it was held, that in any case, Shrimati Shakuntala Jerath had given a discharge concerning the rent and hence the tenants could not be expected to pay rent to different heirs and payment to one of the several heirs should be taken as discharge of the entire obligation to pay rent. in this respect, the Court based itself on a decision reported as Hiralal Nekai v. Agarchand Gorelal. The applicants for ejectment have appealed to this Court under section 39 of the Delhi Rent Control Act, 1958. Along with this appeal I have heard S. A. 0. No. 259 of 1971 which relates to other premises in the same building and involves the same question.
(3) The first question that requires consideration in this case is the legal position arising on the death of a landlord governed by Hindu Law. There are two possibilities in this case. Filstly, the late landlord, Sham Sunder Jerath died leaving only ore widow, Shrimati Shankuntala Jerath and of course his mother, Shrimati Gian Devi, who is the third appellant before me. The other possibility is that he died leaving two widows, a widow, mother and a minor son the two possibilities are that the deceased landlord left either four heirs or two heirs. In both situations, all the heirs would succeed to the property as tenants-in.common by virtue of section 19(b) of the Hindu Succession Act. 1956. The right of each one of these heirs, thereforee, whether they were four or two, would be to receive rent for the premises in question. The tenants could not obtain a discharge regarding the payment of rent of the premises without obtaining a discharge from all the possible heirs. The fact that the tenants have obtained a discharge from one of the several heirs does not operate as a discharge of the rent payable to the other heir or heirs. In this connection, it is necessary row to refer to the definition of landlord' in the Delhi Rent Control Act, 1958. The said definition is to be found in Section 2(e) of the Act. It reads as under : -
''landlord' means a person who for the lime being is receiving or is entitled to receive, the rent of any premises, whether on his own account or on account of or on behalf of, or for the benefit of, any other person or as a trustee, guardian or receiver for any other person or who would so receive the rent or be entitled to receive the rent if the premises were let to a tenant.'
It will be noticed that the definition says that the landlord is the person who is receiving or is entitled to receive rent on his own account or on account or on behalf of others. Now, Shrimati Shakuntala Jerath as a widow of the late landlord had a right to receive rent for these premises en her own account but she could not receive rent on behalf of any of the other heirs without any authority of some kind from them. It, thereforee, follows that in law she could only give a discharge for the rent receivable by herself and not for the rent receivable by the other heirs of the deceased land.
(4) I have been referred to the position of tenants-in-common both under the Rent Control Act as well as under other laws. I shall first refer to a judgment of the Punjab High Court, which has been cited on behalf of the respondents in this appeal relating a case very much like the present. The said is reported as Kishan Dev v. Babu Nand Kishore. In that case, it was held that the payment of rent to one of two joint landlords disentitled the other joint landlord from evicting the tenant en the ground on non-payment of rent. The facts of the case were that the landlords in that case were Krishan and his mother, Shrimati Champa. They were both heirs of Prahalad Rai. The son claimed the rent from the tenant, but in the mean-time, the rent was received by the mother. It was held by the Court that the definition of landlord in the East Punjab Act showed that both the mother and the son were landlords and, thereforee, both were entitled to receive rent. On the facts, it was held that they could receive the rent on behalf of each other, as no circumstances existed which prohibited one landlord from receiving rent on behalf of the other. The Court held that for eleven years the rent had been so received by the mother for herself and her son and, thereforee, 'it was concluded that the receipt of rent by the mother was not only on her own behalf but also on behalf of her son. In the present case, if there were circumstances showing that Shrimati Shakuntala Jerath had received the money on her own behalf as well as on behalf of the other heirs, I would have followed this authority; but, the case of Shrimati Shakuntala Jerath herself is that she has not received rent on behalf of the other heirs and even that these heirs are not heirs at all. thereforee, it is not possible for me to hold that the receipt of rent by Shrimati Shakuntala Jerath is on behalf of herself and also on behalf of the other heirs.
(5) I now come to the next decision cited in this behalf and which has also been relied upon by the Court below, which is Hiralal Nekai v.Agarchand Gorelal. It was there held that if the tenant had paid rent to one of the co-owners it was neither just or equitable that the tenant should be asked to pay rent over again to the other co-owners. I am unable to hold that a rule of equity operates in the circumstances like the present. I am unable to agree with the decision relied upon. If two persons own a property in common, obviously, both are entitled to receive rent. If the law as laid down in this case were to be accepted as correct, then the debtor could force his joint creditors to litigation by merely paying one out of several joint creditors. I am unable to accept that the law envisages that a discharge can be obtained by a debtor by merely paying one of several co-creditors. In order to obtain such a discharge the debtor must be able to show that the creditor who has received payment was acting as an agent of the other creditors. I thereforee, find myself unable to agree with this judgment and cannot find that it lays down the correct law.
(6) I now refer to some other judgments relating to the legal position of tenants-in-common emerging from cases where particular property belonged to co-owners or co-sharers. In Ram Autar Kumari v. Chulam Dastquir, the question for decision was whether payment to one of the several co-mortgagees discharged the obligation qua the others. It was held by the Court that such a payment did not operate as a discharge. several authorities were cited, all of which related to the rules applicable to Mohammaden Law. I may quote the following passage:-
'WHERE the mortgagee rights have devolved upon a number of persons by inheritance under the Mohammaden Law, the various co-heirs are interested in the property according to their Quranic shares and constitute tenants-in-common. In Maniw Ali v. Mahmnd-un-nissa, it was held by Stanley C. J., and Benerji J, that where the obliges are tenants-in.common, the discharge by one of the obliges cannot be setup as a defense against the other obligee or obliges suing for his or their shares of the debt.'
I cannot see any difference between the present position of Hindu heir under the Hindu Succession Act and an heir under Mohammaden law. In both cases the heirs hold the property they inherit as teianis-in-common. It is only in the case of a coparcener that the property is held jointly and managed by a Karta. But the present case is not one of coparcener property, the heirs in question being two widows, a mother and a minor son. This is obviously a case in which succession to take place as tenants-in-common.
(7) The position of the heirs of Shri Shyam Sunder Jerath, thus, is that they have succeeded as tenants-in-common to the property formerly held by him. Both parties have relied on a decision reported as Mst. Ramabai v. Jiyaram Sharma In that case it was explained that the term tenants-in-common used to describe owners was not used in the sense of tenants but only in the sense of joint owners of property holding defined shares. The real difference between tenants-in-common and joint tenants is that joint tenants succeed each other as successors, whereas in the case of a tenancy-in-common, each one of the co-sharers holds his share in the property in common. It is unnecessary in this case to elaborate on the definition of tenancy-in-common and joint tenancy because it is well recognised that a tenancy-in-common is the normal manner in which persons succeed to property. In the case of a tenancy-in-common ]the owners are jointly owners of the whole, but their shares are defined and are separate and transferable to others without severing the tenancy-in-common. I have already held that the payment of the rent to one co-owner holding as crowner and not as a joint owner does not extinguish the liability of the other co-owners. It also follows that one or more of these co-owners cannot individually or even jointly with others claim the entire rent. It is only the entire body of the co-sharers who can claim the entire rent. Mr. Bansal, learned counsel for the respondents has urged that the eviction petition itself is not maintainable at the instance of only some of the co-sharers. On the other hand, Mr. Chawla, learned counsel for the appellants contends that the petition is maintainable because all the co-owners are before the Court three of these as applicants and one as a respondent.
(8) I do not wish to make any observation on this question at this stage because I propose to remand the case back to the Rent Controller to pass an order under Section 15(1) of the Act only after finding that the application for ejectment is maintainable. This question should be decided as a preliminary point.
(9) Mr. Chawla, learned counsel for the appellants submits that an order Section 15(1) should be passed in any case. I have already held that the payment to one of several co-owners does not extinguish the liability to pay the other owners. He submits that the tenant should not get the benefit of any dispute between the landlords in this respect. He also points out that an order under Section 15(1) is mandatory whenever an application for ejectment on the ground of non-payment of rent is instituted.
(10) I have given this matter my earnest thought. I find that an order has to be passed under Section 15(1) of the Act whenever an application for ejectment is brought on the ground of non-payment of rent.. If there is no dispute concerning the relationship of landlord and tenant, such an order can be passed without any ascertainment of the relationship. In normal cases there is no such contest. But what is to happen if there is a dispute concerning this relationship? If there is no relationship, obviously no order under Section 15(1) can be passed. I have had occasion myself to deal with this question earlier and I than held that if there was no relationship of landlord and tenant, then the Rent Controller has non Jurisdiction to pass any order under Section 15(1). However, in such cases, the Controller has on the preliminary question of jurisdiction to discover whether the relationship of landlord and tenant does exist. It is one step further if the contest is that the application has not been brought by all the owners. If all the landlords do not join in moving an application for ejectment, it will be obviously necessary to first determine whether the application is maintainable. The effect of the passing of an order under Section 15(1) of the Act is to make the tenant liable to ejectment in case of failure to make a deposit. When the very maintainability of the application is in question, it is very desirable that such a question should be ascertained and determined before an order under Section 15(1) is passed. Mr. Chawla submits that this means holding that Section 15(1) of the Act is not mandatory. I do not agree. An order under Section 15(1) of the Act has to be passed. This does not mean that such an order should be passed before deciding any other question. If for any reason, the application for ejectment is found to be not a proper application, the application will have to be rejected. If it is found that it is a proper application then an order under Section 15(1) can be passed at that stage. I, thereforee, feel that in the interests of justice, the question of maintainability should be decided before an order under Section 15(1) is passed.
(11) In view of this conclusion, I accept this appeal and set aside the decision of the Tribunal and remand the case back to the Controller to pass an order under Section 15(1) of the Act after deciding whether the application for ejectment is maintainable in the circumstances of the present case. If the conclusion of the Controller is that the application is not maintainable, he shall reject the application. If he holds that the application is maintainable then he shall proceed to pass an order under Section 15(1) of the Act. There will be no order as to costs.