Ashok Chintaman Juker (supra), held that decree passed
in suit for eviction is binding on all members of original
tenant's family who are covered by tenancy and when the
deceased tenant had two sons, the impleadment of son who
was residing in the tenant premises would be sufficient for
execution of decree and the other son not residing in the
premises is not required to be impleaded, there being no
such interest of making him a party to the eviction
proceeding.
In view of the foregoing, the law appears to be settled by the
Supreme Court in umpteen number of decisions that in the
event of death of original tenant, the tenancy devolves on
the legal heirs as joint tenants, therefore, even when only
one of the legal heirs of the deceased tenant, who is in
possession of the property, is impleaded in execution
proceedings, the Executing Court should proceed with the
execution instead of directing the decree holder to implead
other legal heirs of the tenant.
16. At this juncture, it is informed by the learned counsel
appearing for the petitioner that one of the other legal heirs
resides in America (USA), therefore, if the trial Court's order
is complied the execution of the decree will be impossible
and, thus, the impugned order, if it is allowed to stand would
occasion failure of justice.
17. This Court is fully convinced with the submission made by
the learned counsel appearing for the petitioner that since in
view of the settled legal position, it would not be necessary
to implead all the legal heirs of the deceased tenant to be
joined in the execution proceedings, if the impugned order is
allowed to stand, it would occasion failure of justice,
therefore, it deserves to be quashed by this Court in
exercise of its power of superintendence under Article 227.
HIGH COURT OF CHHATTISGARH, BILASPUR
Judgment delivered on 02-12-2016
WP227 No. 301 of 2016
Anil Gupta V Thamman Singh
Hon'ble Shri Justice Prashant Kumar Mishra
Citation: AIR 2017 chhatis 1
1. Since the impugned orders in both the writ petitions have
been passed by the Executing Court, which is executing3
similar decree of eviction against the same tenant and the
issues are common, both the writ petitions are decided by
this Common order.
2. Petitioners/Decree Holders would call in question the
legality and validity of the order passed by the Executing
Court on 13.01.2016 whereby the Executing Court has
refused to proceed with the execution of decree for eviction
unless all the legal heirs of the deceased judgment-debtors
are brought on record.
3. The skeletal facts outlining the factual conspectus would be
briefly narrated so as to better comprehend the issues
seeking adjudication.
4. The predecessors of the petitioner late Shri Shiv Das Gupta
preferred a suit for eviction against Thamman Singh (since
deceased) and represented by his legal heirs for his eviction
from the suit premises. Civil suits No.125-A and 126-A of
2010 instituted on 21.11.1984 came to be decreed by the
trial Court on 15.09.2010 and thereafter, the First Appeal
bearing Civil Appeal Nos.20-A and 21-A of 2010 came to be
dismissed by the District Judge, Raipur on 26.04.2014. The
Second Appeal Nos. 201 and 202 of 2014 were also
dismissed by this Court vide judgment dated 24.02.2014.4
The decree has, thus, attained finality and is put to
execution by the decree holders.
5. While the execution proceeding was going on, the decree
holder moved an application under Section 151 of the Code
of Civil Procedure, 1908 (for short “the CPC”) for conducting
execution proceedings against the original tenant's son
namely Hardayal Singh for issuance of warrant of
possession or attachment warrant against him.
6. While considering the application, the trial Court has
observed that even though the provisions contained under
Order 22 Rules 3 & 4 of the CPC are not attracted in
execution proceedings yet the Court can direct the
landlord/decree holder under its inherent powers to implead
all the legal heirs. The said direction or observation has
been made on the reasoning that the legal heirs would be
responsible or liable to execute the decree to the extent of
their share in the suit property which they have received
from the deceased judgment-debtor, therefore, the decree
holder should inform about all the legal heirs of the
judgment debtor.
7. It is argued by Shri Sumesh Bajaj, learned counsel
appearing for the petitioners, that the legal heirs of the5
deceased tenant having acquired the tenancy as joint
tenants and not as tenants in common, the execution
application can proceed against one of the legal heirs, who
is in possession of the property and all the legal heirs of the
deceased-tenant are not required to be impleaded in the
execution proceedings. Shri Bajaj would place reliance on
H.C. Pandey v G.C. Paul1
, Harish Tandon v. Addl.
District Magistrate, Allahabad U.P. and others2 and
Ashok Chintaman Juker and others v. Kishore
Pandurang, Mantri and another3
.
8. Per contra, Shri H.B. Agarwal, learned Senior Counsel
appearing with Ms. Nand Kumari Kashyap, learned counsel
appearing for the respondent, would submit that all the legal
heirs of the deceased judgment-debtor are required to be
brought on record for execution of the decree, therefore, the
impugned order does not suffer from any infirmity.
9. The moot question arising for determination in these
petitions is –
Whether the landlord is obliged to join all the
legal heirs of the deceased tenant for
continuing execution proceedings or
impleadment of only one of the legal heirs of
1 AIR 1989 SC 1470
2 (1995) 1 SCC 537
3 AIR 2001 SC 22516
the deceased tenant, who is in possession of
the property would be sufficient to execute
the decree ?
10. The issue has been dealt with by the Supreme Court in 'n'
number of decisions time and again and, as such, it is no
longer res integra.
11. Way back the Supreme Court in Gian Devi Anand v.
Jeevan Kumar and Others4 held that if the Rent Act in
question defines a tenant in substance to mean 'a tenant
who continues to remain in possession even after the
termination of the contractual tenancy till a decree for
eviction against him is passed', the tenant even after the
determination of the tenancy continues to have an estate or
interest in the tenanted premises and the tenancy rights
both in respect of residential premises and commercial
premises are heritable. The heirs of the deceased tenant in
the absence of any provision in the Rent Act to the contrary
will step into the position of the deceased tenant and all the
rights and obligations of the deceased tenant including the
protection afforded to the deceased tenant under the Act will
devolve on the heirs of the deceased tenant. As the
protection afforded by the Rent Act to a tenant after
determination of the tenancy and to his heirs on the death of
4 (1985) 2 SCC 6837
such tenant is a creation of the Act for the benefit of the
tenants, it is open to the Legislature which provides for such
protection to make appropriate provisions in the Act with
regard to the nature and extent of the benefit and protection
to be enjoyed and the manner in which the same is to be
enjoyed. If the Legislature makes any provision in the Act
limiting or restricting the benefit and the nature of the
protection to be enjoyed in a specified manner by any
particular class of heirs of the deceased tenant on any
condition laid down being fulfilled, the benefit of the
protection has necessarily to be enjoyed on the fulfillment of
the condition in the manner and to the extent stipulated in
the Act. The Legislature which by the Rent Act seeks to
confer the benefit on the tenants and to afford protection
against eviction, is perfectly competent to make appropriate
provision regulating the nature of protection and the manner
and extent of enjoyment of such tenancy rights after the
termination of contractual tenancy of the tenant including
the rights and the nature of protection of the heirs on the
death of the tenant. Such appropriate provision may be
made by the Legislature both with regard to the residential
tenancy and commercial tenancy. It is, however, entirely for
the Legislature to decide whether the Legislature will make8
such provision or not. In the absence of any provision
regulating the right of inheritance, and the manner and
extent thereof and in the absence of any condition being
stipulated with regard to the devolution of tenancy rights on
the heirs on the death of the tenant, the devolution of
tenancy rights must necessarily be in accordance with the
ordinary law of succession.
12. In H.C. Pandey (supra), the Supreme Court held that 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 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. 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 this Court that the
view taken in Ramesh Chand Bose AIR 1977 All 38 (supra)9
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.
13. Yet again in Harish Tandon (supra), the Supreme Court
has followed Gian Devi Anand (supra) and approved H.C.
Pandey (supra) to observe that in H.C. Pandey (supra), it
was rightly said by this Court that after the death of the
original tenant, subject to any provision to the contrary, the
tenancy rights devolve on the heirs of the deceased tenants
jointly. The incidence of the tenancy is the same as those
enjoyed by the original tenant. It is a single tenancy which
devolves on the heirs and there is no division of the
premises or of the rent payable therefor and the heirs
succeed to the tenancy as joint tenants.
14. Following H.C. Pandey (supra), the Supreme Court in
Ashok Chintaman Juker (supra), held that decree passed
in suit for eviction is binding on all members of original
tenant's family who are covered by tenancy and when the
deceased tenant had two sons, the impleadment of son who
was residing in the tenant premises would be sufficient for
execution of decree and the other son not residing in the
premises is not required to be impleaded, there being no
such interest of making him a party to the eviction
proceeding. It is held thus at para 16 :
16. In the case on hand, as noted earlier, on
the death of the original tenant Chintaman the
rent bills in respect of the premises in question
were issued in the name of his elder son
Kesrinath and on his death the rent bills were
issued in the name of his widow Smt. Kishori
Kesrinath Juker. It is not the case of the
appellant No.1 that there was any division of
the premises in question or that rent was
being paid to the landlord separately by him.
Indeed the appellant No.1 took the plea that
he was paying the rent through Smt. Kishori
Kesrinath Juker. Thus the tenancy being one,
all the members of the family of the original
tenant residing with him at the time of his
death, succeeded to the tenancy together. In
the circumstances the conclusion is
inescapable that Smt. Kishori Kesrinath Juker
who was impleaded as a tenant in the suit
filed by the landlord represented all the
tenants and the decree passed in the suit is
binding on all the members of the family
covered by the tenancy. In the circumstances
the decree passed in terms of the compromise
entered between the landlord and Smt. Kishori
Kesrinath Juker can neither be said to be
invalid nor inexecutable against any person
who claims to be a member of the family
residing with the original tenant, and therefore,
a 'tenant' as defined in Section 5 (11) (c). The
position that follows is that the appellants
have no right to resist on the ground that the
decree is not binding on them. Further, the
trial court and the appellate court concurrently
held that the appellant No.1 has not been
residing in the premises since 1962 i.e. when
his elder brother Kesrinath was alive.
Therefore, when the suit was filed in the year
1992 there was no necessity for the landlord
to implead appellant No.1 or members of his
family in the suit since he (landlord) had no
cause of action for seeking a decree of
recovery of possession from them. In that
view of the matter the decree under execution
does not suffer from any illegality or infirmity.
Viewed from any angle the appellants have no
justification on the facts as well as in law to
resist execution of the decree for possession
of the premises by the landlord. The
Executing Court rightly rejected the objection
filed by the appellants against execution of the
decree and the appellate court and the High
Court rightly confirmed the said order. This
appeal being devoid of merit is dismissed with
costs which is assessed at Rs.10,000/-.12
15. In view of the foregoing, the law appears to be settled by the
Supreme Court in umpteen number of decisions that in the
event of death of original tenant, the tenancy devolves on
the legal heirs as joint tenants, therefore, even when only
one of the legal heirs of the deceased tenant, who is in
possession of the property, is impleaded in execution
proceedings, the Executing Court should proceed with the
execution instead of directing the decree holder to implead
other legal heirs of the tenant.
16. At this juncture, it is informed by the learned counsel
appearing for the petitioner that one of the other legal heirs
resides in America (USA), therefore, if the trial Court's order
is complied the execution of the decree will be impossible
and, thus, the impugned order, if it is allowed to stand would
occasion failure of justice.
17. This Court is fully convinced with the submission made by
the learned counsel appearing for the petitioner that since in
view of the settled legal position, it would not be necessary
to implead all the legal heirs of the deceased tenant to be
joined in the execution proceedings, if the impugned order is
allowed to stand, it would occasion failure of justice,
therefore, it deserves to be quashed by this Court in
exercise of its power of superintendence under Article 22713
as held by the Supreme Court in Surya Dev Rai v. Ram
Chander Rai5
, Shalini Shyam Shetty v. Rajendra
Shankar Patil6
and Sameer Suresh Gupta through PA
Holder Vs. Rahul Kumar Agarwal7
.
18. Accordingly, both the impugned orders are set aside and
the Executing Court is directed to proceed with the
execution of decree against the present legal heir Hardayal
Singh.
19. As an upshot, both the petitions are allowed. No order as to
costs.
Sd/-
Judge
Prashant Kumar Mishra
Gowri
5 (2003) 6 SCC 675
6 (2010) 8 SCC 329
7 (2013) 9 SCC 374
No comments:
Post a Comment