Kishan Kumar vs Baldev Singh and others

Bal Raj Tuli, J.—The Landlord, Krishan Kumar, filed a petition u/s 13 of the East Punjab Urban Rent Restriction Act, 1949 for the ejectment of his tenants, Baldev Raj Singh and Kishan Chand, on various grounds mentioned in that petition. Sant Ram was also made a respondent on the ground that a portion of the demised premises had been sublet to him. Krishan Kumar was then a minor but has since attained majority and has filed this revision petition himself.

It is stated in the petition for ejectment that Baldev Raj Singh and Kishan Chand were tenants of the petitioner and had taken the premises on lease per rent-deed dated April 28, 1961 agreeing to pay Rs. 45/- per mensem. The said tenants were permitted to raise constructions which they were entitled to remove at the time of vacating the premises. One of the grounds for ejectment mentioned in the petition was as under :--

The respondents Nos. 1 and 2 have partitioned the said premises between themselves since about eight months. The northern portion shown red in the plan has fallen to the share of respondent No. 1 and the southern green portion has fallen to the share of respondent No. 2 and each of them has started separate business, though originally the premises were taken by respondents Nos. 1 and 2 for their joint business of saw mills which was started in the name of Guru Amar Dass Saw Mills. All changes had been made by the respondents Nos. 1 and 2 illegally and unauthorisedly without the permission of the petitioner.

In answer to this plea, the said respondents, in their written statement, denied that they had partitioned the premises between themselves and that the alleged northern portion had fallen to the share of respondent No. 1 and the southern portion to the share of respondent No. 2, and that they had started separate business therein. It was also denied that they had originally taken the said property for their joint business of saw mills. It was however, asserted that they continued as joint tenants under the petitioner as before and, in any case, any internal arrangement regarding the user of the demised premises between them did not constitute and breach of the terms of the rent-deed nor did it require any permission of the landlord nor furnished any ground for the ejectment of the tenants.

The learned Rent Controller, by his order dated December 28, 1967, dismissed the petition on the ground that the ejectment of the tenants could not be ordered on any of the grounds mentioned in the petition. Against that order, Krishan Kumar filed an appeal which was accepted by the learned appellate Authority on February 2, 1969. The learned. Appellate Authority held that grounds mentioned at (c), (d) and (f) of para 2 of the petition did disclose a cause of action against the tenants and the sub-tenant. He affirmed the order of the Rent Controller with regard to grounds (b) and (e). Ground (a) related to the non-payment of rent which was given up after the tenants tendered the rent due on the first date of hearing of the petition. The case was remanded to the Rent Controller with a direction to dispose of the ejectment petition in the light of the observations made in the appellate order.

After remand, the Rent Controller dismissed the petition on May 6, 1971, holding that grounds (c), (d) and (f) of para 2 of the petition had not been established. Against that order, Krishan Kumar filed an appeal before the Appellate Authority Gurdaspur. During the pendency of that appeal, Kishan Chand died and an application was made for bringing on record his legal representatives. That application was contested by Baldev Raj Singh on the ground that the tanancy of Kishan Chand deceased had come to an end on account of his death and it was not necessary to implead his heirs and legal representatives as respondents to the appeal. It was further submitted that the possession of the heirs and legal representatives of Kishan Chand of the demised premises after his death was not as tenants. He asserted that he was in possession of the tenanted property as a tenant but the legal representatives of Kishan Chand deceased had assumed joint possession of the said property along with him even without his consent but their possession was not in the capacity of tenants. The application of the petitioner was dismissed by the learned Appellate Authority, Gurdaspur, on Junary 6, 1973, on the ground that the legal representatives of Kishan Chand could not be be brought on the record and that the appeal had to be considered as having abated so far as Kishan Chand deceased teant was concerned. The present revision petition is directed against that order of the learned Appellate Authority.

The basis of the order of the learned Appellate Authority is that the contractual tenancy of Baldev Raj Singh and Kishan Chand was for a period of eleven months under rent-deed dated April 28, 1961, Exhibit A.W. 5/1, and after the expiry of that period these tenants became statutory tenants and ceased to be contractual tenants. Statutory tenancy is not heritable and, therefore, the legal representatives of a statutory tenant cannot be brought on the record after his death. Even if that so, in my opinion, there was no justification in holding that the appeal qua Kishan Chand deceased had a bated and the application for bringing on record the legal representatives of Kishan Chand deceased shouldhave been allowed by the learned Appellate Authority for the reasons stated hereafter.

One of the points requiring determination is Whether Baldev Raj Singh and Kishan Chand deceased took the premises on lease as joint tenants or as tenants-in-common. If the finding is that they had taken a joint lease, then, after the death of Kishan Chand, the entire leas vested in Baldev Raj Singh and the legal representatives of Kishan Chand acquied no right therein. This proposition of law has been clearly laid down by their Lordships of the Supreme Court in Kanji Manji Vs. The Trustees of The Port of Bombay, In that case, a joint lease had been taken by Rupji, Jeraji and a suit was brought for their ejectment after issuing a notice to them requiring them to vacate the promises and deliver vacant and peaceful possession of the land to the Trustees. Rupji jereji had died before the issue of the notice of ejectment and the filing of the suit. The suit was filed against both but later the plaint was amended by striking out the name of Rupji Jeraji as he had died much earlier. A plea was taken by Kanji Manji that the notice of ejectment was invalid inasmuch as it had been served only upon one of the leasees, i.e. himself and not upon the heirs and legal representatives of Rupji Jeraji. He also contended that the suit was bad for non-joinder of the heirs and legal representatives of Rupji Jeraji who were necessary parties. It was found by the learned trial Court that Rupjjt Jeraji and Kanji Manji had taken the premises as joint tenants. Their Lordships observed :--

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.

A Division Bench of the Delhi High Court, in Vidyawanti v. Takan Dass 1974 RCR 47, (at page. 53) has observed :--

The concept of joint tenancy is a peculiarity of the English common law. As observed by the Privy Council in Jozeswar Narain Deo v. Ram Chandra Dutt, ILR 23 Cal 670 at 679, the principle of joint tenancy appears to be unknown to Hindu Law, except in the case of co-pancenary between the members of an undivided family. This analogy with English Law, though important, has since been established as was recognised by the Federal Court in the matter of the AIR 1941 72 (Federal Court) . But joint tenancy was restricted in Hindu law to the relations between the coparceners. It had no application out side the coparceanary. Therefore, in India, the Courts strongly leaned against joint tenancy. As pointed out by Mulla in his Commentary on the Transfer of Property Act, 6th Edition, pages 638-639--

Joint tenants have a unity of title--

Tenants incommon have unity of possession but not unity of title.

Therefore, if one of the joint tenants dies, the other joint tenant lakes his interest by survivorship. On the contrary, if one of the co-tenants dies, his interest will pass to his own legal heirs and will not go to the other co-tenants by way of survivorship.

I have pointed out above that in the petition for ejectment the landlord stated that Baldev Raj Singh and Kishan Chand had taken the premises on lease for a joint business and that they had partitioned the property and each of them had started a separate business in the portion falling to his share on partition. The tenants, on the other hand, maintained in their written statement that the tenancy was joint to begin-with and continued to be so. One of the grounds for ejectment mentioned in the petition was that the sons of Kishan Chand deceased had started using a part of the premises fallen to his share for their business which amounted to subletting. In the reply filed to the application of the petitioner for bringing on record the legal representatives of Kishan Chand deceased, Baldev Raj Singh asserted that his legal representatives had come into possession of the demised premises without his consent. It is thus evident that it is necessary to determine whether the heirs and legal representatives of Kishan Chand deceased have any right to remain in possession of the demised premises after the death of their father. The matter assumes importance because, apart from joint tenancy, both Baldev Raj Singh and Kishan Chand had become statutory tenants after the expiry of the contractual period of eleven months of tenancy. The tenancy being indivisible, statutory protection afforded to that tenancy continues even when one of the two statutory tenants is dead. For that purpose, the heirs of Kishan Chand deceased shall have to be brought on the record as legal representatives of the deceased statutory tenant along with the surviving statutory tenant. The rights of two or more persons holding a demise under one lease were considered by a Full Bench of the Lahore High Court in Moti Lal v. Kartar Singh 3 ILR (1930) 22 Lah 427. The relevant observations are at pages 434 to 437 and are reproduced below :--

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 purposes. 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. It is for instance, settled law that where a single lease is given to two persons as tenants-in-common, each of them is liable to pay to the landlord the entire rent, and not only his own one half of it. A lease of this kind was considered by the House of Lords in William White v. Tyndall (1883) 13 A.C. 263, 270, where Lord Halsbury in holding that each of the tenants was liable to pay the whole rent observed:

If this is the correct legal position 1 cannot see how, in a tenancy of this kind, on the extinction of the line of one of the co-tenants, the landlord should be allowed to intervene and deprive the other co-tenant of his estate in the whole of the leasehold, which he undoubtedly possessed before, and which he had done nothing to forfeit. If such were the case, it would be competent to the landlord, in the event of one of the co-tenants dying without heirs, to force a stranger into the holding against the wishes of the surviving co-tenants and thus make it impossible for him to remain in peaceful "enjoyment of the tenancy. I have no doubt in my mind that the correct view is that on the happening of such a contingency the suriving co tenant is competent to continue in possession of the entire leasehold and, on his death, to pass it to his own heirs, and that it is only when his line also has died out that the tenancy will be extinguished and will lapse to the landlord.

The judgment of their Lordships of the Supreme Court in Jagdish Chander Chatterjee and Others Vs. Shri Kishan and Another, , is very instructive on the point which is for decision before me and being the decision Of the highest authority, I shall take the liberty of quoting extensively from the judgment. That case arose Out of a suit filed by the landlord against a statutory tenant under Rajasthan Premises (Control of Rent and Eviction) Act (17 of 1950). The statutory tenant was one B.N. Chatterji against to whom the order of ejectment was made by the learned Munsif. His appeal was accepted by the learned District Judge, Ajmer, and the suit of the landlord was dismissed. Thereupon, the landlord filed a second appeal in the Rajasthan High Court and during the pendency of that appeal, the tenant B.N. Chatterji died and his widow and children were brought on record as his heirs and legal representatives. His widow also died and her heirs already on the record were her legal representatives. When the appeal came before a learned Single Judge of the High Court for hearing, the landlord-appellant sought the permission of the Court to urge the following point :--

That the respondent (original tenant B.N. Chatterji) died after the filing of this appeal. That the deceased after the determination of the tenancy was only a statutory tenant and under the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, the protection granted by section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act is not available to the heirs of the tenant. As such, even if it be held that the landlord has failed to prove the reasonable and bona fide requirement, which the appellant does not concede, the appellant is entitled to a decree in pursuance of the decision of a division bench of this High Court passed on 7th April, 1966 in Special Appeal No. 3 of 1965.

The learned Judge allowed the point to be urged and came to the Conclusion that it was not necessary to go into the question of bona fide and reasonable necessity of the landlord as that was only a protection provided to the statutory tenant personally u/s 13 of the Act of 1950. Since the tenancy had been duly terminated by notice and there was no other bar to the passing of the decree in favour of the landlord the learned Judge set aside the order of the District Judge and restored the decree passed by the Munsif. The heirs of B.N. Chatterji filed an appeal in the Supreme Court and it was contended on their behalf that they were entitled in their own right to urge that the landlord did not requite the premises reasonably and bona fide. On the other hand, if they were not tenants, it was no longer open to pass a decree of eviction against them and, if necessary, the plaintiff should be referred to a separate suit. These pleas were repelled and some of the observations set out below are very significant as they concern the position and rights of a statutory tenant and his heirs and legal representatives after his death B.N. Chatterji was held to be a statutory tenants after the termination of the contractual tenancy in his favour and it was observed (paras 9 to 11):--

It is now settled that after the termination of the contractual tenancy the statutory tenant has only a personal right to continue in possession till evicted in accordance with the provisions of the Act. It is pointed out by this Court in Anand Nivas (Private) Ltd. Vs. Anandji Kalyanji Pedhi and Others,

A person remaining in occupation of the premises let to him after the determination of or expiry of the period of the tenancy is commonly though in law not accurately, called a "statutory tenant". Such a person is not a tenant at all; he has no estate or interest in the premises occupied by him. He has merely the protection of the statute, in that he cannot be turned out so long as he pays the standard rent and permitted increases, if any, and performs the other conditions of the tenancy. His right to remain in possession after the determination of the contractual tenancy is personal it is not capable of being transferred or assigned, and devolves on his death only in the manner provided by the statute.

These observations have been made with reference to the provisions of the Bombay Rents Hotel & Lodging House Rates (Control) Act, 1947. But they equally apply to the provisions of the Act with which we are concerned. The protection given to B.N. Chatterji was personal to him and if that protection is withdrawn either because there is a change in the statute or because the person who is to be personally Protected is no longer living, the question arises as to what is the position of the legal representatives of the deceased statutory tenant qua the landlord in a proceeding of the nature with which we are concerned. It is obvious that the appellant landlord''s right to proceed with the appeal with a view to obtain possession of his premises did survide under Order 22 Rule 4 lead with rule 11, Civil Procedure Code. Where the right to sue and prosecute the appeal survives, the appellant is bound to cause the legal representatives of the deceased respondent to be made a party and proceed with the appeal. Therefore, the heirs and legal representatives of the aforesaid B.N. Chatterji were rightly brought on record and the appeal had to proceed.

Under sub-clause (ii) of rule 4 of Order 22, CPC any person so made a party as a legal representative of the deceased respondent was entitled to make any defence appropriate to his character as legal representative of the deceased respondent. In other words, the heirs and the legal representatives could urge all contentions which the deceased could have urged except only those which were personal to the deceased. Indeed this does not prevent the legal representatives from setting up also their own independent title, in which case there could be no objection to the court impleading them not merely as the legal representatives of the deceased but also in their personal capacity avoiding thereby a separate suit for a decision on the independent title.

In para 12, the following further observations occur :--

When B.N. Chatterji died, he was only a statutory tenant with a personalrightto remain in possession till eviction under the pro-vis ions of the Act, and the heirs were incapable of inheriting any estate or interest in the orginal tenancy. It was also not shown to us that they fell within any other part of the definition of ''tenant'' reproduced above. Therefore, the heirs and legal representatives of the deceased B.N. Chatterji could not in their own right claim to be ''tenant'' within the meaning of the Act. Therefore, the only contentions that they could but forward in the appeal were; the contentions appropriate to their representative character and not one which was personal to the deceased. The contention based on the ground of bona fide requirement by the landlord was personal to the statutory tenant and on his death the same is not open to his legal representatives unless there is any thing in the provisions of the Act which makes the legal representatives statutory tenants to the same extent as the deceased. It is not the case that there is any other provision of the Act which gives protection to the legal representatives of the deceased statutory tenant.

There is no doubt that those observations were made in the context of a suit filed in the Court of the Munsif but it has to be remembered that the suit was filed under the Rajasthan Premises (Control of Rent and Eviction) Act, which is a Rent Control Act like the East Punjab Urban Rent Restriction Act. The forum provided in the two Acts may be different but the principles governing the statutory tenants under the Rent Control Acts are the same. Their Lordships applied the observations made with regard to the statutory tenants under the Bombay Act to the statutory tenants under the Rajasthan Act and similarly those observations were made applicable to the statutory tenants under the Punjab Act. The legal representatives of a statutory tenant are not brought on the record as statutory tenants but as legal representatives of the deceased statutory tenant because the right of the landlord proceed with the appeal with a view to obtain possession of his premises from the deceased statutory tenant survived under Order 22 rule 4 read with rule 11 of the Code of Civil Procedure. Even if the proceedings under the East Punjab Urban Rent Restriction Act are not strictly governed by the provisions of the Code of Civil Procedure, u/s 141 of that Code the said provisions can be made applicable to the proceedings before the Rent Controller and the Appellate Authority under the Rent Restriction Act, as they are civil proceedings. It cannot, therefore, be said that the provisions of Order 22 are not applicable to the petition before the Rent Controller or the appeal before the Appellate Authority under that Act. The observations made by their Lordships were in respect of a statutory tenant who had died during the pendency of an appeal. In the case before me there were two statutory tenants who had taken a joint lease and, therefore it is all the more necessary to implead the heirs and legal representatives of a deceased statutory tenant as parties to the appeal in place of the deceased to determine their rights to continue in possession of the demised premises after his death. Such a course is dearly permissible in View of the weighty observations made by their Lordships of the Supreme Court in the judgment referred to above.

For the reasons given obove, I accept this petition, set aside the order of the learned Appellate Authority and allow the application under Order 22 rule 4 Code of Civil Procedure, filed by the petitioner before it. The learned Appellate Authority is directed to decide the appeal after bringing on record the legal representatives of Kishan Chand deceased. Since the matter involved was not free from difficulty, make no order as to costs. The parties, through their counsel, are directed to appear before the Appellate Authority, Gurdaspur, on March 25, 1974.