Ranjana Dhawan & Ors. v. Sanket Behari Mittal & Anr

1. The present petition arises out of an eviction petition filed under Section 14(1)(e) of the Delhi Rent Control Act in respect of premises NO. 1548, Kucha Seth, Dariba Kalan, Chandni Chowk, Delhi-110006. The petition was filed by the Landlord - Sanket Behari Mittal against Shri Kishan Chand - the Tenant, and his son, Sh. Dhiraj Kumar. During the pendency of the petition, the Landlord was informed that Shri Kishan Chand had passed away, and accordingly on 5th July, 2017, a statement was made in the Court to the effect that Shri Kishan Chand’s name may be deleted. The said statement is recorded by the ld. ARC and the same reads as under: “I am counsel for the petitioner in the present case. I do not want to implead the other alleged legal heirs of late Sh. Kishan Chand, as disclosed by respondent NO. 2 through his application except respondent no. 2, who 2020:DHC:1099 is already impleaded as party in the present petition since all the legal heirs of late Sh. Kishan Chand have impliedly surrendered their tenancy rights in the premises in question. Further, I want to delete the name of Sh. Kishan Chand from the array of parties in view of the judgment titled as "Krishan Kumar Alag. Vs. Jambu Prasad Jam (deceased), through LR Anand Kumar Jain" reported as 161 (2009) DLT 511.”

2. The petition was filed sometime in April, 2017 and at the inception itself, in July, 2017, Shri Kishan Chand was deleted. Leave to defend was granted. The matter has subsequently proceeded for framing of issues and the evidence on behalf of the parties has been recorded and concluded.

3. On 24th September, 2018, the four sisters of the only surviving Respondent i.e. Sh. Dhiraj Kumar, who are the daughters of late Shri Kishan Chand moved an application seeking impleadment in the eviction petition on the ground that they have inherited the tenancy from their father. The second ground seeking impleadment was that they came to know of the pendency of the eviction petition on the day of rakshabandhan, and they have also contributed to the rent for the property. The said application was rejected by the Trial Court vide the impugned order dated 4th February, 2019 on the ground that the son of Shri Kishan Chand was on record as Respondent no 2, and in case of the tenancy being a joint tenancy, since one of the legal representatives is on record, no further impleadment was required.

4. Mr. Lalit Bhardwaj, ld. counsel appearing for the sisters, who are the Petitioners herein, submits that Sh. Kishan Chand had passed away prior to the filing of the petition and since the petition was filed against a dead person, the same was not maintainable. It is further submitted that at the inception itself the landlord ought to have impleaded all the LRs of Shri Kishan Chand, and thus the impleadment has been erroneously dismissed by the Trial Court. The ld. ARC rejected the application for impleadment on 9th October, 2018. The Petitioners then filed an appeal before the ld. RCT. By the impugned order dated 4th February, 2019, the RCT has dismissed the appeal. Reliance is also placed on a judgement of this Court in Krishan Kumar Alag v. Jambu Prasad Jain Decd the LR Anand, 161(2009) DLT 511, to submit that if the tenant has died, no petition would have been maintainable against the dead tenant.

5. On the other hand, ld. counsel appearing for the Landlord submits that the law is quite settled since the 1960s - that the LRs of late Shri Kishan Chand would only be joint tenants and impleadment of one of the LRs is sufficient for the petition to be held to be mentionable. He relies upon the following judgments:

(i) Kanji Manji v The Trustees of the Port of Bombay AIR 1963 SC

(ii) Mohd. Usman v Mst. Surayya Begum 1990 (3) DELHI LAWYER

(iii) H. C. Pandey v G.C. Paul AIR 1989 SC 1470

6. Ld. counsel appearing for Respondent No. 2 - the brother of the Petitioners, who is the original Respondent in the eviction petition, Shri Dhiraj Kumar submits that he has already contested the matter on merits.

7. Vide order dated 16th April, 2019, the proceedings before the ld. ARC were stayed by this Court. Parties have been heard in this matter and the judgements cited have been perused. A perusal of the order dated 5th July, 2017 shows that at the inception itself, the landlord had deleted the name of Shri Kishan Chand, who had passed away. At that stage, the eviction petition already had the son of Shri Kishan Chand as Respondent no.2. Thus, the eviction petition continued to proceed against the said Respondent, the son of Shri Kishan Chand. The petition was filed in 2017 and the application for impleadment has been moved on 24th September, 2018. There is no doubt that the issues have been framed, evidence has been adduced and the matter is listed for final arguments.

8. The law on this aspect is quite clear as has been settled in various judgements cited on behalf of the Landlord. In 1963, the Supreme Court in Kanji Manji v The Trustees of the Port of Bombay (supra) has held that once the tenancy is a joint tenancy, notice to one of the joint tenants is sufficient. The Supreme Court held: “7. 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 doth 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 Rupi 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.” In H. C. Pandey v G.C. Paul (supra) the above view has been reiterated by the Supreme Court as under: “4. It is now well settled that on the death of the original tenant, subject to any provision to the contrary either negativing or limiting the succession, the tenancy rights devolve on the heirs of the deceased tenant. 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 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. 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 was served was sufficient. It seems to us that the view taken in Ramesh Chand Bose (AIR 1977 All 38) (supra) is erroneous where the High Court lays down that heirs of the deceased tenant succeed as tenants in common. In our opinion, the notice under S. 106 of the Transfer of Property Act served by the appellant on the respondent is a valid notice and therefore the suit must succeed.”

9. This view has also been followed by this Court in Mohd. Usman v Mst. Surayya Begum (supra) wherein a ld. single Judge of this Court, after referring to the decision of the Supreme Court in H. C. Pandey v G.C. Paul (supra) has observed as under:-

10. In Kishan Kumar Alag (supra) the same view has been reiterated.