Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 880/2012
th
% Judgment delivered on: 5 December, 2013
RAKESH JAIN ..... Petitioner
Through: Mr.Arun Bhardwaj, Senior
Advocate with Mr. Pawan S. Bindra,
Mr. Amit Bhardwaj, Mr. Karan Yadav and
Mr. Karan Bhardwaj, Advocates.
Versus
SURESH KUMAR KOHLI AND ANR. ..... Respondents
Through: Mr.Prag Chawla, Mr. Sourabh
Shokeen and Mr.Sudeep Sudan,
Advocates.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J.
1. Vide the present petition, petitioner seeks setting aside of the
impugned order dated 08.06.2012 passed in Execution Petition No.
51/2012 passed by Additional Rent Controller, whereby objections filed
by the petitioner under Section 47 read with Order 21Rule 26 (1) have
been rejected.
2. He also seeks setting aside of the order dated 30.11.2011 passed by
the ld. ARC (Central), Tis Hazari Courts, Delhi in Eviction Petition No.
304/2010, whereby the petition filed by the respondent no. 1 under Section
41(1) (e) read with Section 25-B of DRC Act was allowed.
CM (M) 880/2012 Page 1 of 18
3. Facts of the case, in brief, are that petitioner’s father and respondent
no. 2 took shop no. 3, property no. 2656, Ajmal Khan Road, Karol Bagh,
New Delhi on rent from father of respondent no. 1, i.e., Sh. Bhagat Raj
Kohli vide lease deed dated 02.12.1975 for carrying out a business. On
attaining majority, petitioner was inducted as a partner in the family
business vide a partnership deed dated 02.04.1979, which was being run at
the tenanted premises.
4. It is submitted that the above noted rent agreement was on month to
month basis. Notice dated 25.04.2009 was sent to Sh. Ishwar Chand Jain
and Sh. Ramesh Chand Jain, i.e., respondent no. 2 under Section 106 of
Transfer of Property Act, 1882 whereby the tenancy was terminated w.e.f
31.05.2009 in respect of the premises in question.
5. Ishwar Chand Jain, father of the petitioner died on 08.03.2010
leaving behind two legal heirs, i.e., the petitioner and Ramesh Chand Jain,
i.e., respondent no. 2. Thereafter, respondent no. 1 filed a petition under
Section 14 (1) (e) of the Delhi Rent Control Act seeking eviction from the
tenanted premises on the ground of bona fide requirement, which has been
allowed vide order dated 31.11.2011 passed by ld. ARC (Central), Tis
Hazari Courts, New Delhi in Eviction Petition 304/2010.
6. Case of the petitioner is that he was not made a party clandestinely
in the said Eviction Petition and he came to know about this fact in the
month of June, 2012 when the order of eviction was passed in Execution
Proceedings. Thereafter, petitioner filed his objections under Section 47
of the CPC read with Order 21 Rule 26 (1) in the Execution Proceedings.
Same has been dismissed vide order dated 08.06.2012 passed by ld. ARC.
CM (M) 880/2012 Page 2 of 18
7. Mr. Arun Bhardwaj, ld. Sr. Counsel appeared on behalf of the
petitioner and submitted that the petitioner was not aware of the pendency
of the execution proceedings pertaining to the suit property. Neither he
was ever made a party to the same despite being a tenant and legal heir of
the erstwhile tenant Late Ishwar Chand Jain being in joint possession of
the suit premises, nor he was ever served with any notice pertaining to the
eviction proceedings of the suit property either at his residence or at the
premises of suit property in question.
8. Ld. Sr. Counsel further submitted that the petitioner was inducted as
a partner in family business which was being run at the tenanted premises
vide partnership deed dated 02.04.1979 wherein Bhagat Raj Kohli,
erstwhile landlord, i.e., father of respondent no. 2 was the witness.
Therefore, said Bhagat Raj Kohli accepted the tenancy of the petitioner in
the said premises.
9. He further submitted that the family business of the petitioner has
been running under the name and style of M/s. ‘Rakesh Wool Store’ at the
tenanted premises since 02.12.1975. The father of the petitioner and his
elder brother (respondent no.2) were the founding partners of the
partnership firm at the tenanted premises. Thereafter, the petitioner was
inducted as a partner in the family business, which has been running at the
tenanted premises vide partnership dated 02.04.1979. He further
submitted that respondent no. 1 was aware and had full knowledge that the
petitioner was a necessary and a proper party being tenant and in
occupation and possession of the tenanted premises.
CM (M) 880/2012 Page 3 of 18
10. Ld. Sr. Counsel further submitted that the respondent no. 1 wilfully
and intentionally not made the petitioner as a party in the Eviction Petition
with an intention to take away his legal right to file application for leave to
defend.
11. On the other hand, Mr. Prag Chawla, ld. Counsel appearing on
behalf of respondent no. 1 submitted that the admitted case of the
petitioner is that the father of the petitioner and respondent no. 2 were
tenants in the suit premises; and after the death of Ishwar Chand Jain, the
petitioner and respondent no. 2, being sons, became joint tenants.
12. He further submitted that the joint tenant is neither a necessary party
nor a proper party, therefore, he was rightly not made a party in the
Eviction Petition. Therefore, ld. Trial court has rightly passed the order
dated 08.06.2012 as under:
“The objector has claimed himself tenant in the suit
premises and filed photocopy of partnership deed and two
recent receipts showing him as a partner in “M/s. Rakesh
Wool Store”. According to the objector himself he and his
brother who is JD in present execution petition, developed
strain relations. The question arises whether the objector is
working as a partner in the partnership firm “Rakesh Wool
Store” in the suit premises or not. The objector has filed
photocopy of rent receipts for the month of December, 1993
and January 1994, if the objector was in use and occupation
of shop in question and working as partner, then why he has
not filed any other documents to show his possession in the
suit premises. The father of the objector was a tenant in suit
premises and after his death he and JD became joint tenants.
It is well settled law that if a joint tenant does not occupy the
tenanted premises for a long time and never made any
attempt to pay the rent of the tenanted premises to the
CM (M) 880/2012 Page 4 of 18
landlord then it amounts that he has surrendered his tenancy
right. Even otherwise, the eviction petition was filed by the
petitioner / DH on the ground of bona fide requirement and
court had to see what triable issue were raised by the tenant
to contest the eviction petition. The JD who is brother of the
objector had already raised several objections but the same
were found without any substance and eviction order was
passed, I am of the view that as the objector already
surrendered his tenancy, therefore, he has no right to be
heard in the present matter and he is not a necessary party.
Accordingly, the objections of the objector u/s 47 r/w Order
21 Rule 26 (1) are dismissed.”
13. To strengthen his arguments ld. Counsel for the respondent no. 1
has relied upon a case decided by a Coordinate Bench of this Court in
Smt. Narender Kaur v. Mahesh Chand and Sons (HUF) R.C.Rev.
29/2012 , wherein it is held as under:
“The contention of the learned counsel for the petitioner that
the eviction petition was not maintainable due to non-
joinder of legal heirs of Sharnagat Singh, who was the son
of original tenant, is unsustainable. It is settled legal
position that it is not necessary for the landlord to implead
all the legal heirs of the deceased tenant. It is sufficient if the
landlord files an eviction petition against any one of the
joint tenants and all the joint tenants are equally bound by
the order in the eviction petition filed against one of the
tenants.”
14. Further relied upon a case of Rajender Kumar Sharma v. Leela
Wati & Ors. 155 (2008) Delhi Law Times 383 wherein it is held as under:
“It is also settled law that when original tenant dies, the
legal heirs inherit the tenancy as joint tenants and
occupation of one of the tenant is occupation of all the joint
tenants. It is not necessary for landlord to implead all legal
heirs of the deceased tenant, whether they are living in the
CM (M) 880/2012 Page 5 of 18
property or not. It is sufficient for the landlord to implead
only those persons who are living in the property, as party.
There may be a case where landlord is not aware of all the
legal heirs of deceased tenant and impleading only those
LRs who are in occupation of the property is sufficient for
the purpose of filing Eviction Petition. An eviction petition
against one of the joint tenants is an Eviction Petition
against all the joint tenants and all joint tenants are bound
by order of the Rent Controller as joint tenancy is one
tenancy and is not a tenancy split into different legal heirs.
Thus, the plea of the tenants on this count must fail.”
15. Also relied upon a case of Kanji Manji v. The Trustees of the Port
of Bombay 1963 AIR 468 wherein it is held as under:
“The argument about notice need not detain us long. By the
deed of assignment dated February 28, 1947, the tenants
took the premises as joint tenants. The exact words of-the
assignment were that........ the Assignors do and each of
them both hereby assign and assure with the Assignees as
Joint Tenants......... The deed of assignment was approved
and accepted by the Trustees of the Port of Bombay, and
Rupji Jeraj and the appellant must be regarded as joint
tenants. The trial Judge therefore, rightly held them to be so.
Once it is held that the tenancy was joint, a notice to one of
the joint tenants was sufficient, and the suit for the same
reason was also good. Mr. B. Sen, in arguing the 'case of the
appellant, did not seek to urge the opposite. In our opinion,
the notice and the frame of the suit were, therefore, proper,
and this argument has no merit.”
16. I heard ld. Counsels for the parties.
17. Tenancy rights are property rights, therefore, the same has been the
subject of inheritance and rent control laws. Fundamentally, the legal
relationship of the landlord and tenant are regulated and controlled by the
specific statue such as the Rent Control Act. If the tenant or landlord dies
CM (M) 880/2012 Page 6 of 18
intestate, the rights and obligations of the landlord and tenant,
respectively, shall be governed by the provisions of Rent Control Act
being a special statute. Moreover, if the special statute does not provide
the method and manner in which the right of survivorship or devolution
with respect to the legal heirs of landlord or tenant, as the case may be;
naturally, then the provisions of Succession Act would be applicable,
depending on the religion of the landlord or tenant.
18. In the present case, On 02.12.1975, Late Sh. Bhagat Raj Kohli
(landlord) entered into a lease agreement with Late Ishwar Chand Jain and
respondent no 2, namely, Ramesh Chand Jain, who is the son of Late
Ishwar Chand Jain. Subsequent to the death of original landlord, the
respondent no.1 Suresh Kumar Kohli stepped into the shoes of the
landlord by virtue of the application of succession laws; and the lease deed
was not changed or renewed; and the tenancy in respect of the property
has been continued.
19. On 25.04.2009, a notice under section 106 of the Transfer of
Property Act, 1882 was sent to Late Ishwar Chand Jain and Ramesh
Chand Jain by the then landlord Suresh Kumar Kohli, respondent no.1
herein. Thereafter, on 08.03.2010, one of the statutory tenants, namely,
Ishwar Chand Jain died intestate leaving behind two legal heirs: Petitioner
and Respondent no.2.
20. Being the nature of tenancy relationship as narrated above, the
Respondent no.1, son of the original landlord initiated eviction
proceedings against the respondent no. 2 under Section 14(1) (e) r/w
Section 25-B of the Delhi Rent Control Act, 1958. Thereafter, the
CM (M) 880/2012 Page 7 of 18
eviction order was passed against one of the statutory tenant.
Consequently, the execution proceedings had been initiated against the
tenants. Meanwhile, the petitioner filed an objection under section 47
r/w order 21 rule 26(1) of Civil Procedure Code, 1908; and the same has
been dismissed vide the impugned order. While rejecting the objection,
the court held that the petitioner being a joint tenant is not a necessary
party in the eviction proceedings. It was also observed that the tenancy
qua the father of the petitioner had been devolved upon the legal heirs as
joint tenancy. The Rent Controller held as under:-
“The objector has claimed himself tenant in the suit
premises and filed photocopy of partnership deed and
two rent receipts showing him as a partner in “M/s.
Rakesh Wool Store”. According to the objector himself
he and his brother who is JD in present execution
petition, developed strain relations. The question arises
whether the objector is working as a partner in the
partnership firm “M/s. Rakesh Wool Store” in the suit
premises or not. The objector has filed photocopy of
rent receipts for the month of December, 1993 and
January, 1994. If the objector was in use and
occupation of shop in question and working as partner,
then why he has not filed any other documents to show
his possession in the suit premises . The father of the
objector was a tenant in suit premises and after his
death he and JD became joint tenants . It is well settled
law that if a joint tenant does not occupy the tenanted
premises for a long time and never made any attempt to
pay the rent of the tenanted premises to the landlord then
it amounts that he has surrendered his tenancy right.”
21. The pivotal question to be considered in this case is whether the
tenancy qua the father of the petitioner devolves upon the legal heirs as
CM (M) 880/2012 Page 8 of 18
joint tenancy or tenancy in common? If so, the effect of the tenancy rights
on the estate of the Petitioner?
22. It is significant to note that the notice under Section 106 of the
Transfer of Property Act, 1882 has been addressed to both the statutory
tenants; and it is clear that the landlord was determined to terminate the
tenancy. However, the notice has not been complied; therefore, eviction
proceedings had been started. I may note that the eviction proceedings
have been started with the notice under Section 106 of the Transfer of
Property Act, 1882; and in the present case the proceedings concluded
with respondent no. 2, excluding one of the legal heirs of a statutory
tenant.
23. In this context, the general provisions relating to Hindu succession
envisaged in the Hindu Succession Act, 1956 has significance. Section
19(b) of the said Act provides as under:
“if two or more heirs succeed together to the property of an
intestate, they shall take the property , as tenants in common
and not as joint–tenants”.
24. Significantly, the Supreme Court in Kanji Manji (Supra) has
discussed the rights of a joint tenant; and held that the joint lease was
executed by assignment in favour of two persons. In order to terminate the
tenancy, the notice had been sent to the tenants. Thereafter, suit was filed
against the tenants. Meanwhile, it was found that one of the tenants had
died much earlier. Therefore, the name was deleted from the array of
parties. The Supreme Court on these facts held that the notice to terminate
the tenancy as well as frame of the suit was good and observed that “once
CM (M) 880/2012 Page 9 of 18
it is held that the tenancy was joint, a notice to one of the joint tenants was
sufficient and the suit for some reason was also good. It is clear that the
tenancy in question was joint tenancy.
25. However, in the present case, in view of Section 19(b) of the Hindu
Succession Act, 1956, there can be no dispute that the tenancy in the
present case is not joint tenancy but tenants-in-common as the tenancy
devolved by inheritance. Ruling of the Supreme Court in Kanji Manji’s
case, therefore, has no applicability.
26. In regard to joint tenancy, this Court in Inderpal Khanna (Sh.) v.
Commander Bhupinder Singh Rekhi (Rtd.) 2008 VIII AD (DELHI) 328
has held as under:
“Where out of many, only one or two LR of deceased tenant
are in occupation of premises, an eviction petition by
landlord against those who are in occupation of the premises
is a valid petition. It is not necessary for the landlord to
implead all the legal heirs of the deceased tenant or to
implead even those who are not in occupation and possession
of the premises. In the present case, since only two brothers
were in possession of the premises, his impleading only two
brothers as defendants was good enough and receipt of
personal summons by one of the brother, who was joint
tenant was valid service of summons on both the joint tenants
in the eyes of law. Service of one of the joint tenant has to be
considered service on the other joint tenant because in joint
tenancy, the tenancy remains one. It is not separate tenancy
and right of each of the joint tenants is in whole of the
premises.”
CM (M) 880/2012 Page 10 of 18
27. Thereafter, this Court in case titled as Narender Kaur v. Mahesh
Chand and Sons (HUF) R.C. Rev. 29/2012 dated 17.08.2012 has held as
under:
“The contention of the ld. Counsel for the petitioner that the
eviction petition was not maintainable due to non-joinder of
legal heirs of Sharnagat Singh, who was the son of original
tenant, is unsustainable. It is settled legal position that it is
not necessary for the landlord to implead all the legal heirs
of the deceased tenant. It is sufficient if the landlord files an
eviction petition against any one of the joint tenants and all
the joint tenants are equally bound by the order in the
eviction petition filed against one of the tenants.”
28. No doubt, the above mentioned dictums clearly stipulate that the
notice/ proceedings to one joint tenant are applicable to all joint tenants. It
is clear that the tenancy rights arising from the joint tenancy are restricted
to the above limitation. The perusal of above dictums does not propose or
prescribe the parameters for determining the tenor of the tenancy which is
a basic factor for determining the rights and obligations of a tenant or
landlord; as the case may be. However, the courts, construed the tenancy
as ‘joint tenancy’; and on the same premise the rights of the tenant had
been determined. In my considered view the right vested in Section 19 of
the Hindu Succession Act 1956, has not been discussed; or distinguished
in the given facts.
29. In this context it is legally significant to note the dictum in Mohd.
Usman v. Mst. Surayya Begum 1993 (3) Delhi Lawyers 163 wherein it is
held as under:
CM (M) 880/2012 Page 11 of 18
“I find no force in the contention raised by the learned
counsel for respondent no. 1. The provision regarding
inheritance of tenancy in respect of Mahomedans and Hindus
is not different. The Supreme Court in GianDevi Anand’s
Case (Supra) has no doubt observed that tenancy right which
is inheritable devolves on the heirs under the ordinary law of
succession. It only means that only those heirs who would be
entitled to inherit the property of a deceased-tenant under the
oridnary law of succession would be entitled to inherit even
the right of tenancy after the death of the tenant. This positon
is amply clear from the fact that even under Section 19 of the
Hindu Succession Act, 1956 which prescribes the mode of
succession of two or more heiers proves that if two or more
heirs succeed together to the property of an intestate they
shall take the property as tenants in common and not as joint
tenants and in spite of this the Supreme Court in H.C.
Pandey’s Case (Supra) has observed that the heirs of a
deceased tenant succeed to the right of tenancy as joint
tenants”
30. It is pertinent to note that in Mohd. Usman v. Mst. Surayya Begum
1993 (3) Delhi Lawyers 163 (Supra) this Court specifically noted the
relevant provision of law pertaining to the tenancy as has been
contemplated in the Hindu Succession Act, 1956; and reached to a
different conclusion which prima facie appears in contradiction with the
statute mentioned above. In Mohd. Usman( Supra) , this court relied upon
the dictum of H.C. Pandey v. G.C. Paul 1989 3 SCC 77 and held that the
tenancy in question was ‘joint tenancy’. It appears to me that the court
has taken the guidance in the nature of a dictum as has been laid down in
H.C. Pandey v. G.C. Paul, 1989 SC 1470 . Therefore, the observations
and reports in H.C. Pandey (Supra) are important which reads as under:
“It is now well settled that on the death of the original tenant,
subject to any provision to the contrary either negativing or
CM (M) 880/2012 Page 12 of 18
limiting the succession, the tenancy rights devolve on the
heirs of the deceased tenant. The incidences of the tenancy
are the same as those enjoyed by the original tenant. It is a
single tenancy which devolves on the heirs. There is no
division of the premises or of the rent payable therefore. That
is the position as between the landlord and the heirs of the
deceased tenant. In other words, the heirs succeed to the
tenancy as joint tenants. In the present case it appears that
the respondent acted on behalf of the tenants, that he paid
rent on behalf of all and he accepted notice also on behalf of
all. In the circumstances, the notice served on the respondent
was sufficient. It seems to us that the view taken in Ramesh
Chand Bone (supra) is erroneous where the High Court lays
down that the heirs of the deceased tenant succeed as tenants
in common. In our opinion, the notice under Section 106 of
the Transfer of Property Act served by the appellant on the
respondent is a valid notice and therefore the suit must
succeed.”
31. In H.C. Pandey (Supra) , the Apex Court has examined significant
question regarding the validity of the notice that had been sent u/s 106 of
Transfer of Property Act, 1882; and held that the notice to one joint tenant
is a valid notice which is sufficient to determine the tenancy. In H.C.
Pandey (Supra) , the rights under the provisions of Section 19 of Hindu
Succession Act, 1956 was not the subject matter, consequently, the view
proceeded on the basis that the heirs of the original tenant are joint tenants.
32. I note, in the present case, the notice has been sent to both the
statutory tenants. Moreover, the tenancy in question is remaining as
tenancy in common. Therefore, the dictum in H.C. Pandey (Supra) , is not
applicable in the present case, which specifically points out to the aspect
of the tenor of the tenancy and the rights arising from the same.
CM (M) 880/2012 Page 13 of 18
33. Pertinently, the case laws, mentioned above, are related to the
tenancy rights arising from the original tenant wherein the original tenant
dies, thereupon, the legal heirs were agitating for the rights. However, in
the present case, originally, the respondent no.2 was the statutory tenant
along with his late father Ishwar Chand Jain. Subsequent to the death of
Ishwar Chand Jain, the respondent no.2 acquires dual rights in respect of
the tenanted premise as a statutory tenant and a legal heir. In fact, initially,
the tenancy rights had been parted among the father Ishwar Chand Jain
and son, respondent no.2.
34. However, the son of original landlord filed the eviction petition
without arraying the petitioner as a party. Though, the respondent no.2 has
taken an objection regarding the non-joinder of a necessary party, the rent
controller has rejected the same and came to a specific finding as under:
“ The respondent contended that originally Late Sh. Ishwar
Chand Jain, father of the respondent and the respondent was
tenant in respect of the tenanted premises but after the death of
Late Sh. Ishwar Chand Jain, the tenancy devolves upon the
respondent and the other legal heir of Late Sh.Ishwar Chand
Jain namely Sh. Rakesh Jain but Sh. Rakesh jain was not
made party by the petitioner therefore, the petition is bad for
nonjoinder of necessary party. On the other hand the
petitioner stated that other legal heir of Late Sh. Ishwar Chand
Jain is not in use and occupation of the tenanted premises and
never paid rent to the petitioner and as such the petition is
maintainable. It is admitted case of the respondent that
respondent and his father were the original tenants in respect
of the suit premises. It is well settled law that after death of a
tenant all his legal heirs only become joint tenants and not
cotenants. Thus both the sons become joint tenants whereas
the respondent is also a tenant in his own capacity. Sh. Rakesh
Jain merely a joint tenant. A landlord is not required to
CM (M) 880/2012 Page 14 of 18
implead all the joint tenants in an eviction petition. It was held
in Inderpal Khanna Vs. Commander Bhupinder Singh Rekhi,
2008 VIII AD (Delhi) 328 that “It is settled law that on death
of tenant, tenancy devolves upon legal heirs as a joint tenancy.
LRs are joint tenants and not tenants in common. Where out of
many, only one or two LR of deceased tenant are in occupation
of premises, an eviction petition by landlord against those who
are in occupation of the premises is a valid petition. It is not
necessary for landlord to implead all the legal heirs of the
deceased tenant or to implead even those who are not in
occupation and possession of the premises.”
35. Thereafter, the petitioner has filed objections under Section 47 of
the CPC r/w Order 21 Rule 26(1) and sought permission to stay the
operation of the order of the rent controller. It is significant to note that the
petitioner has taken a specific plea regarding the legal status that has been
devolving by virtue of law of inheritance and the same reads as under:
“That the Objector was not aware of the pendency of the
eviction proceedings pertaining to the suit property, as neither
was he ever made a party to the same despite being a tenant and
the legal heir of the erstwhile tenant Late Mr. Ishwar Chand
Jain being in joint possession of the suit premises, nor was he
ever served with any papers/documents pertaining to the
eviction proceedings of the suit property either at his residence
House No. 5/56, Dev Nagar, Karol Bagh, Delhi or at the suit
property bearing No.2656, Ajmal Khan Road, Karol Bagh,
New Delhi.”
36. The rent controller has considered the objections and specifically
held as under:-
3.The objector has claimed himself tenant in the suit premises
and filed photocopy of partnership deed and two rent receipts
showing him as a partner in “M/s Rakesh Wool Store”.
According to the objector himself he and his brother who is JD
in present execution petition, developed strain relations. The
CM (M) 880/2012 Page 15 of 18
question arises whether the objection is working as a partner in
the partnership firm “M/s Rakesh Wool Store” in the suit
premises or not. The objector has filed photocopy of rent
receipts for the month of December 1993 and January 1994, if
the objector was in use and occupation of shop in question and
working as partner, then why he has not filed any other
documents to show his possession in the suit premises. The
father of the objector was a tenant in suit premises and after his
death he and JD became the joint tenants. It is well settled law
that if a joint tenant does not occupy the tenanted premised for a
long time and never made any attempt to pay the rent to the
tenanted premises to the landlord then it amounts that he has
surrendered his tenancy right.
37. The case laws, namely, in Mohd. Usman( Supra) and H.C. Pandey
(Supra) have been drawing a different line of reasoning in respect of the
succession of tenancy rights, where it appears that the concept of tenants –
in- common had not been discussed or considered.
38. Fundamentally, the concepts of joint tenancy and tenancy-in-
common are different and distinct in form and substance. Therefore, the
focal point for consideration is whether the petitioner, being a co- tenant,
is having any right to get adjudicated in respect of the tenancy in question?
The basic question which arises for consideration is whether the petitioner,
being a legal heir of the deceased father, is a co-tenant or a joint tenant?
In this context, it is important to note that the incidents regarding the co-
tenancy and joint tenancy are different: joint tenants have unity of title,
unity of commencement of title, unity of interest, unity of equal shares in
the joint estate, unity of possession and right of survivorship.
39. ‘Tenancy-in-common’ is a different concept. There is unity of
possession but no unity of title, i.e., the interests are differently held and
CM (M) 880/2012 Page 16 of 18
each co-tenant has different shares over the estate. Thus, the tenancy
rights, being property rights, by applying the principle of inheritance, the
shares of heirs, are different, and ownership of lease hold rights would be
confined to the respective shares of each heir; and none will have title to
the entire lease hold property. Therefore, the estate shall be divided among
the co-tenants, and each tenant in common has an estate in the whole of
single tenancy. Consequently, the privity exists between the landlord and
the tenant in common in respect of such estate.
40. Therefore in view of above discussion it is emerged that the tenancy
between the Petitioner and Respondent no. 1 is a tenancy-in-common; not
joint tenancy. Therefore, I have no hesitation to hold that the tenancy
rights had been devolved upon the Petitioner and Respondent no. 2 as
tenants in common; and not as joint tenants.
41. Thus, the right of the petitioner being a tenant in common qua the
landlord has not been adjudicated; therefore, the tenancy remains alive. It
is settled law that the tenancy cannot be terminated in piecemeal. The
rights of the petitioner as a tenant in common need to be adjudicated for
the effective termination of the tenancy.
42. Accordingly, the instant petition is allowed.
43. Consequently, the orders of Rent Controller in E-304/2010 as well
as Execution Petition No. 51/2012 are set aside; and it is directed that the
petitioner be impeded as a party in suit no. E-304/2010, in the court of
ARC (Central), Tis Hazari, Delhi.
CM (M) 880/2012 Page 17 of 18
CM.Nos. 13333/2012 (Stay) & 20067/2012 (for Interim
directions)
With the disposal of the petition itself, instant applications have
become infructuous and disposed of as such.
SURESH KAIT, J
DECEMBER 05, 2013
jg
CM (M) 880/2012 Page 18 of 18