Sunil Kumar Singh vs Special Judge, Jaunpur and others

This writ petition is directed against the order dated 2271993 passed by Special Judge, Jaunpur, respondent No. 1 rejecting the application filed by the petitioner for filing objections and adducing the evidence in appeal.

The facts, in brief, are that the landlord filed an application for release of the shop in dispute under Section 21(1)(a) and (b) of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as ''the Act'') on the allegation that the shop in dispute is in a dilapidated condition and required demolition and new construction and after its reconstruction, it is needed to establish his son in business. The application was filed against the tenant Shambhu Nath and heirs of Santu Ram and Ram Kadam.

Mirza Mohammad Qamil Beg was the landlord of the disputed shop and it was given on rent to Santu Ram and his two sons, Shambhu Nath and Ram Kadam. They started carrying on the business in the name of firm M/s Ram Kadam Shambhu Nath. In the application filed by the landlord, the petitioner was impleaded as oppositeparty No. 7. He was then minor and was shown under the guardianship of his elder brother Hari Narain. A written statement purporting to be on behalf of all the oppositeparties was filed A true copy of the written statement has been annexed as Annexure ''2'' to this petition. Both the parties led evidence in the case.

The Prescribed Authority, after taking into consideration the evidence on record, came to the conclusion that the disputed premises was in a dilapidated condition and required demolition and reconstruction. He further found that the need of the landlord to establish his son in business was bonafide. He allowed the application by his order dated 531987. Shambhu Nath. one of the oppositeparties, filed Appeal No. 2 of 1987 before the Special Judge against the order of the Prescribed Atthority. In the said appeal he impleaded the landlord and other cotenants as proforma respondents.

It appears, during the pendency of the appeal the appellant amended the memorandum of appeal by indicating the age of the petitioner as 19 years as during the perdency of the appeal, he bad attained majority.

On 2441993 the petitioner moved an application for filing an objection and permitting him to lead evidence in the case on the ground that during the pendency of the case before the Prescribed Authority, he was minor and his brother was shown as guardian, who was neither appointed as guardian nor contested the case and, therefore, his rights were affected and he should be permitted to file objection and lead evidence in the case. Respondent No. 1 rejected this application by his order dated 2271993 taking the view that the petitioner was joint tenant and he was fully represented during the pendency of the case before the Prescribed Authority and he is not entitled to any further opportunity to lead evi�dence in the case. The petitioner has challenged this order in this writ petition.

Learned counsel for the petitioner contended that Ram Kadam was one of the cotenants along with Santu Ram and Shambhu Nath and after his death his widow, five sons and two daughters inherited his rights and they are all tenantsincommon and each one of them has independent rights to contest the case. He was though impleaded as one of the oppositeParties in the case but was shown as minor under the guardianship of his brother Hari Narain but who, in fact, never contested the case and as such an opportunity should be given to contest the case after he had attained the majority.

Learned counsel for the petitioner placed reliance upon several decisions in support of his contention that after the death of one of the cotenants the heirs of the deceaed tenant get the rights and status of tenantincommon. These cases are Vishnawati v. Bhagwat Vithu Chowdhery 1969 ALJ 1131, Smr. Shafiqa v, Maqsood Ahmad Khan and others 1969 ALJ 1116, Ramesh Chand Base v. Gopeshwar Prasad Sharma, AIR 1977 Allahabad38 Budhsen v. Sheel Chandra Agarwal and others, AIR 1978 Allahabad 88 and Ganpat Roy v. Additional District Magistrate and others 1992(2) Allahabad Rent Cases 494. He has drawn distinction between joint tenants and tenantsincommon. In case there is a joint tenancy the action or steps taken by one of the joint tenants may bind the other cotenant but where there is a tenancyincommon, each cotenant has his own distinct rights,

The phrases "joint tenants'' and "tenantsincommon" have been used in English Law and the same has been adopted in India.

In the Text book of Woodfall on Landlord and Tenant, 27th Ed., at page 60 it is stated ;

"Joint tenants have unity of title, unity of commencement of title, unity of interest, so as in law to have equal shares in the joint estate, unity of possession as well of every part as of the wohle, and right of survivorship."

(page 62) "Tenants in common need have only unity of possession ; they may have unequal shares, and there is no right of survi�vorship. Each tenant in common could at common law make a lease in respect of his own share alone, the interest of each being separate and distinct, and if tenants in common all joined in one lease it operated as a lease by each of his res�pective share, and a confirmation by each as to the shares of the others."

In Mulla''s Treatise on the Transfer of Property Act the distinc�tion has been drawn as follows :

"A joint tenancy connotes unity of title, possession, interest and commencement of title ; in a tenancy in common, there may be unity of possession and commencement of title, but the other two features would be absent."

In the Division Bench case of Budh Sen (supra) it was held that the basic distinction between ''joint tenant'' and ''tenantsincommon'' is that in the case of joint tenant, there is unity of title & possession, while in the case of ''tenantsincommon'', though there is unity of possession, there is no unity of title.

This distinction has always created complex problems in relation�ship between the landlord and tenant. The concept of ''joint tenant'' and ''tenantsincommon'' is also obliterating either by interpretation by the courts in various set of circumstances or by the statutes. A joint tenancy may be at the commencement but at a subsequent stage on account of succession, sale or mortgage of the leased property by a joint terant, the status of such a joint tenant becomes ''tenantsincommon'' qua the successors or assignees. Where a lease is taken by two persons jointly, they are joint tenants but when one of the joint tenants dies leaving behind his heirs, the right of such joint tenant is taken by his heirs and unity of title is destroyed and ''tenancyincommon'' comes into existence. There is severance of title In Halsbury''s Laws of England IVth Edition Vol. 39 paragraph 535 indicates the various circumstances when unity of joint tenants is destroyed.

"The unity of title is destroyed when one joint tenant assigns or mortgages his share to a third person. If there are only two joint tenants, this creates a tenancy in common in equity bet�ween the assignee and the other joint tenant ; if there are more than two, it creates a tenancy in common in equity between the assignee and the other joint tenants ; although, as between the other joint tenants, the joint tenancy conti�nues. The effect is the same where one joint tenant becomes bankrupt."

The joint tenancy or tenancyincommon is relationship amongst the tenants themselves but how far this affects the rights of the landlord has to be examined. If two persons take a lease, they are joint tenants but if one of the cotenants dies and his heirs inherit the lease rights, tenancyincommon arises because severance of shares which destroys the unity of title but as regards the landlord, the tenancy is one. The rights and liabilities of the landlord and tenant shall be based on one single tenancy whether it is a joint tenancn or tenancyincommon.

This aspect was considered in various English and Indian deci�sions. Lord Halsbury in Williams white v. Tyndali 1888 (13 AC 263) observed :

"It is true that the parties to whom the demise is made or to hold it as tenantsincommon, but what they covenant to do is to pay one rent, not two rents, and not each to pay half a rent, but one rent."

"As between themselves their rights may be specified, they may hold the tenancy in well denned shares capable of separate enjoy�ment or transmission to the respective heirs of each, as it it were his separate property. But qua the landlord they consti�tute one person each constituent part of which possesses certain common rights in the whole and it is liable to dis�charge common obligations in their entirely."

In United Dairies Ltd. v. public Trustee (1923) 1 KB 469 the question was as to whether the landlord was entitled to realise the entire amount of damages from one of the tenantsincommon holding specified shares on account of damage caused by their failure to carry out the covenant by not getting the property in proper state of repair, Greer, J. held that inasmuch as each of the tenants had a share of every part of the estate, there was a privity of estate between him and the land�lord in the whole of the leased property, and, therefore, each was liable to perform the covenant contained in the lease in its entirety and the land�lord was entitled to realise the full amount of damages from either of the two tenantsincommon. Similar view was expressed in Holloway v. Barkeley (1826) 6/B and C2.

A Full Bench decision in Moti Lal and others v. Kattar Singh and others, AIR 1930 Lahore 515, the question was that if one of the tenantsincommon dies without leaving any heir, the rights revert to the landlord or devolve on the other two tenantsincommon who had specified share. It was held that ''.

"While dealing with ordinary tenancies one frequently comes across cases in which two or more persons hold a demise under one lease. In such a case it is well settled that in the absence of a clear provision to the contrary, the entire body of tenants constitutes a single tenant, qua the landlord, for certain pur�poses. As between themselves their rights may be specified, they might hold the tenancy in well defined shares capable of separate enjoyment or transmission to the respective heirs of each, as if it were his separate property. But qua the landlord they constitute one persona each constituent part of which possesses certain common rights in the whole, and it is liable to discharge common obligations in their entirety."

This aspect was again considered in Mst. Ramubai v. Jiya Ram Sharma, AIR 1964 Bombay96 wherein the Court held that where a person obtains lease of certain shop premises in his own right and leaves behind him several heirs, the succeeding heirs hold under the lease hold visavis the landlords as cotenants or colessees. They hold as joint tenants in the sense that they have a single tenancy relationship with the landlord and they are not different tenants visavis the landlord.

The question of relationship of joint tenants or tenantsincommon, qua the landlord was considered in the Tata Iron Steel Company Limited v. Abdul Ahad and others 1970 Patna 338. Hon''ble Untwalia, J. aptly summed up the law in the following words :

"When the liability of the tenants, when there are more than one is joint then the tenants are called joint tenants and the tenancy is called joint tenancy. But when it is several, it is difficult to describe the tenants as tenantsincommon qua the land�lord."

18A. This legal principle was accepted by the Supreme Court in H.C.Pandey v. G. C. Paul, AIR 1989 SC 1470 :

"It is now well settled that on the death of the original tenant, sub�ject to any provision to the contrary either negativing or limiting the succession, the tenancy rights devolve on the heirs of the deceased tenants. The incidence 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 therefor. 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."

It is based on the principle that relationship between the landlord on the one hand and joint tenant or tenantincommon on the other is founded on one single tenancy.

If the abovenoted legal position is not accepted then in many cases, there will be startling situations and perplex problems. In case the tenant dies and one of the heirs causes damage to the property, the other heir claiming that he is only a cotenant has not damaged the property and, therefore, not liable for any legal consequences. Similarly one of the heirs may sublet a portion of the property and the other heir of the deceasedtenant may contend that he is a tenantincommon and is not liable for any legal consequences which may flow from committing breach of any provision of law or terms of contract by the other heir who had inherited the tenancy. Had the terent beer alive, he could have cot taken such plea but after his death, his hairs on the ground that they are cotenants and their liabilities should be determined on the basis of principle of tenancy in common can raise such a plea to defeat the rights of the landlord. The tenancy is one and the lights and the liabilities between the landlord and the tenants will be determined by such single tenancy.

Learned counsel for the petitioner placed reliance upon the decision of Supreme Court in Mohmmad Azim v. District Judge, Aligarh and others, AIR 1985 SC 1118 where the Supreme Court, while interpreting Section 12(3) of the Act, held that if one of the tenants had built another house, there will be no deemed vacancy. Their Lordships of the Supreme Court were construing the provisions of Section 12(3) of the Act in the context of the legislative intent and public policy embedded under the provisions of Section 12(3) of the Act. It was held that where there is an expanding family and several sons come of age are married and many children are born to them and some of the sons take another accommoda�tion, there will be no deemed vacancy.

The English law of ''tenancyincommon'' as applied in India is now to be considered in the light of (1) statutory provisions, (2) Doctrine of representation and (3) conduct of cotenants.

In the case of H. C. Pandey (Supra) it was held that if one of the cotenants acted on behalf of the tenants, he paid rent on behalf of all and accepted notice also on behalf of all, the notice served on such tenant, was sufficient as against other cotenants who inherited, the tenancy rights from their deceased father. This principle was enunciated on the basis that if one of the cotenants is acting on behalf of all and he had been acting as such since before, that shows that he is representing all the cotenants and subsequently one of the cotenants cannot emerge out and claim independent rights simply on the basis that he had inherited the tenancy rights and the action of one, does not bind on the other. The question of service of notice to one of such cotenants has always been a matter of conflicting decisions but in the proceedings in a suit in which one of the cotenants, has by mistake, not impleaded one of the cotenants as a party or such cotenant inspite of the knowledge of the suit does not get himself impleaded, the Court can still look into the circumstances and find out as to whether the party already impleaded in the suit has suffi�ciently represented the interest of other cotenants and hold that the other cotenant was fully represented in the case.

In Daya Ram and others v. Shyam Sundari and others AIR 1965 SC 1049, the Supreme Court, while dealing with the question whether suit should abate as some of the legal representatives were not brought on record, it was held that if impleaded legal representative sufficiently represent the estate of the deceased and decision obtained with them on record will bind not merely those implexded but the entire estate including those not brought on record. The Supreme Court observed :

"In a case where the person brought on record is a legal representa�tive which would be consonant with justice and principle that in absence of fraud or collusion the bringing on record of such a legal representative is sufficient to prevent the suit or the appeal from abating."

There is no reason that same principle may not be made applic�able where the suit is filed against a cotenant and he contest the suit and in the suit without disclosing that there are other legal heirs who are also to be brought on record. The suit or proceeding is initiated against a tenant in respect of a building and there is no reason that such cotenant, who is interested in the matter, should not come forward to contest the suit. If one of the cotenants claiming the rights in the tenancy sits quietly and watch the proceedings as an eagle on crag but descends subsequently when the case is decided against the joint tenant, the court can look into his conduct and find out as to whether the tenant, who was party in the case sufficiently represented the interest of the entire body of the terants.

Learned counsel for the petitioner placed reliance upon Textile Association (India) Bombay Unit v. Balmohan Gopalkurup and another AIR 1990 SC 2053 where a landlord filed a suit for eviction on the ground of bonafide requirement and default in payment of arrears of rent. The suit was decreed ex parte. The other cotenant filed a suit stating that he was not impleaded as a party in the suit and such decree was not binding. It was held that it was an ex parte decree for eviction obtained against his brother and mother without impleading him in the suit, the decree passed in such suit was not binding against him. The case of H. C. Pandey (supra) was distinguished. It was not the case where the suit was con�tested.

There may be circumstances when the court from the conduct of a cotenant, may infer that such tenant has impliedly surrendered the tenancy. In Smt. Ram Devi v. Bholey Nath and others 1992 AWC 250 (SC), an application under Section 21 of U. P. Act No. 13 of 1972 was filed by the landlord for eviction of the tenants from a shop on the ground of bona�fide need but in those proceedings he did not implead the married daughters of the deceasedtenant. The Prescribed Authority and the appellate autho�rity found as a fact that the landlord required the premises bonafide to start the business. The High Court, allowed the writ petition, set aside those orders on the sole ground that the married daughters of the original tenant were not impleaded who were necessary parties in the case. It was held that the married daughters impliedly surrendered their tenancy rights inherited under the Act after the demise of their father as they evidenced no interest to assert their rights. Their non impleadment did not vitiate the proceedings nor maintainability of the proceedings for ejectment itself.

In Pravin Kumar and others v. Vlhh Additional District Judge* Meerut and others reported in 1993(2) HVD (Allahabad) 320 facts were that a suit was filed against the tenants on the ground of default. The suit was decreed by judge Small Causes Court, The defendants filed a revi�sion before the District Judge which was dismissed and that order was upheld in the Writ petition. One of the cotenants filed a suit for injunction restraining the landlord from evicting her on the ground that she had also inherited the tenancy rights but was not impleaded in the suit filed by the landlord nor her tenancy was terminated under Section 1C6 of the Transfer of Property Act. It was held that the plaintiffs had, in fact, inherited the tenancy rights and their status was that of a tenantincommon but if there was no positive evidence of her participation in business run in that shops payment of rent or some other action on her part from which the court could be satisfied that such cotenant has asserted tenancy rights, the court can treat is as implied surrender and cannot challenge the decree passed against other cotenants which had become final.

From the narration of cases referred to above, it is clear that there may be circumstances under which the Court even finds that though a per�son can claim independent cotenancy rights on the principle of tenancy in common, still the action of other cotenants may bind him.

In the instant case the application under Section 21(1)(a) and (b) of the Act was filed on the ground that the accommodation in question was in a dilapidated condition and the same was required by the landlord to establish his son in the business. In the disputed premises the business was being carried on in the name of M/s Ram Kadam Shambhu Nath, Santu Ram and his two sons Shambhu Nath and Ram Kadam were tenants. Santu Ram died. His rights were inherited by his two sons Shambhu Nath and Ram Kadam. Ram Kadam also died and his widow, five sons and two daughters were impleaded as oppositeparties in the application filed by the landlord. The petitioner was admittedly minor and his brother Hari Narain was shown as guardian. Writtenstatement was filed purport�ing to be on behalf of all the oppositeparties in the case but sighed by Shambhu Nath alone. Evidence was adduced on behalf of the oppositeparties and the case was contested tooth and nail and after hearing counsel for the parties, the Prescribed Authority allowed the application on 531967. Against the said decision only Shambhu Nath filed Appeal No. 2 of 1987 before the Special Judge, Jaunpur. In the said appeal he has impleaded other cotenants as proforma respondents. During the pendency of the appeal, he amended the memorandum of appeal by showing the petitioner as major.

It is only thereafter on 2441993, the petitioner filed an applica�tion that he may be permitted to file a writtenstatement and to lead the evidence in the case afresh on the ground that the Court had not passed any order for appointment of his guardian and he was not represented in the case. In the application, it was no where stated that Shambhu Nath, who had filed the appeal, had also not contested the case and sufficiently looked after the interest of the entire body of the tenants. The Prescribed Authority has dealt with all the evidence led on behalf of the tenants. The writtenstatement was filed purporting to be on behalf of all the tenants. In these circumstances, the respondent No. 1 rightly rejected the application of respondent No. 2. It may further be noted that none of other tenants has filed appeal against the order of the Prescribed Authority dated 531987. The appeal is pending for the last six years and it is, in fact, to delay the disposal of the hearing of the appeal, the application has been filed.

This writ petition is devoid of any merit and it is accordingly dismissed.

(Petition dismissed.)