S.P. Mehrotra, J.@mdashThis writ petition has been filed under Article 226 of the Constitution of India by the petitioners, inter alia, praying for quashing the order dated 2472003 (Annexure5 to the writ petition) passed by learned Additional District Judge, Court No. 15, Agra on an application (Paper No. 85 Ga) filed in S.C.C. Revision No. 66 of 2000.
2. From the assertions made in the writ petition, it appears that the respondent No. 1 (respondent first set) as plaintiff filed a suit for ejectment, arrears of rent, damages etc. against the respondent Nos. 2 and 3 (respondent second set) and one Smt. Tulsa Devi (defendant Nos. 1, 2 and 3, respectively in the said suit) in respect of the shop, referred to hereinafter. The said Suit was registered as SCC Suit No. 265 of 1994.
3. It was, inter alia, alleged in the said suit that the respondent No. 1 (respondent first set) was the owner and landlord of Building Nos. 6/334 and 6/334/1 to 3 situated at Belanganj, Agra; and that the respondent No. 2 herein (defendant No. 1 in the said suit) was a tenant in a portion thereof consisting of one shop, bearing Municipal Nos. 6/334/3 (new) and 6/334/2(old) on a rental of Rs. 33 per month besides water tax. The said shop has hereinafter been referred to as �the disputed shop�.
4. It was, inter alia, further alleged in the said suit that the disputed shop was allotted to the respondent No. 2 herein (defendant No. 1) in the said suit) by allotment order No. 104/CH/RC/76 dated 28101976; and that the respondent No. 2 herein (defendant No. 1 in the said suit) was very irregular in payment of rent and water tax, and he had not paid the rent and water tax from 141994 inspite of repeated demands and requests of the respondent No. 1 herein (plaintiff in the said suit); and that after the commencement of the tenancy, the respondent No. 2 herein (defendant No. 1 in the said suit) started business in the said shop in the name and style of M/s. Chandra Machinery Store; and that recently on making enquiry it was revealed that the respondent No. 2 herein (defendant No. 1 in the said suit), much after the commencement of the tenancy, admitted the respondent No. 3 herein (defendant No. 2 in the said suit) as partner in the said business, namely, M/s. Chandra Machinery Store in or about April, 1977, and thereafter in or about August, 1980, admitted the said Smt. Tulsa Devi (defendant No. 3 in the said suit) as a partner in the said business without any right or authority or consent of the landlord; and that the respondent No. 3 herein (defendant No. 2 in the said suit) and the said Smt. Tulsa Devi (defendant No. 3 in the said suit) were not the members of the family of the respondent No. 2 herein (defendant No. 1 in the said suit) within the meaning of Section 3(g) of the U.P. Act No. XIII of 1972 Act (in short �the Act�); and that thus, the respondent No. 2 herein (defendant No. 1 in the said suit) sublet the disputed shop in contravention of Section 25 of the Act.
5. It was, inter alia, further alleged in the said suit that the respondent No. 1 herein (plaintiff in the said suit) sent registered notice of demand and to quit dated 1291994 posted on 1391994 through the counsel to the defendants in the said suit which was served upon the defendant Nos. 1 and 2 (respondent Nos. 2 and 3 herein) on 2091994 and upon the defendant No. 3 (the said Smt. Tulsa Devi) on 1991994 personally, but the defendant No. 1 (respondent No. 2 herein) neither paid arrears of rent and water tax nor vacated the disputed shop and sent an absolutely false and incorrect reply dated 4101994 through counsel.
6. Copy of the plaint of the said suit has been filed as Annexure1 to the writ petition.
7. It further appears that the said suit was contested by the defendants in the said suit, and the written statement was filed.
8. It further appears that the learned Judge, Small Cause Court, Agra by the judgment and order dated 492000 decreed the said suit for ejectment on the ground of subletting.
9. A perusal of the said judgment and order dated 492000 shows that as regards the ground of default in payment of arrears of rent, benefit of Section 20(4) of the Act was given to the defendants. As regards the question of subletting, it was held that the defendant Nos. 2 and 3 in the said suit (respondent No. 3 herein and the said Smt. Tulsa Devi) would be deemed to be subtenants of the defendant No. 1 (respondent No. 2 herein) in view of explanation (i) to Section 25 of the Act, and, therefore, ejectment decree was liable to be passed under Section 20(2)(e) of the Act.
10. It may be mentioned that during the course of argument Shri Dilip Gupta, learned counsel for the petitioner has produced a photostat copy of the certified copy of the said judgment and order dated 492000 passed by the learned Judge, Small Cause Court, Agra, and the same is taken on record.
11. It further appears that thereafter, the defendant Nos. 1, 2 and 3 in the said suit filed a Revision under Section 25 of the Provincial Small Cause Courts Act, which was registered as SCC Revision No. 66 of 2000.
12. It further appears that during the pendency of the said Revision, the said Smt. Tulsa Devi died on 712001 leaving behind her sons (defendant Nos. 1 and 2 in the suit respondent Nos. 2 and 3 herein) and five married daughters (petitioners herein).
13. It further appears from the assertions made in paragraph 7 of the writ petition that the defendant Nos. 1 and 2 in the said suit (respondent Nos. 2 and 3 herein) claimed themselves to be the only legal representatives of the said Smt. Tulsa Devi and got her name expunged from the array of parties in the Revision by an order dated 2342001.
14. It further appears that thereafter, the petitioners, who claimed themselves to be the married daughters of the said Smt. Tulsa Devi, filed an application dated 1252003 (Paper No. 85 Ga) in the said SCC Revision No. 66 of 2000; interalia, praying for being impleaded as Revisionist Nos. 3/1 to 3/5 in the said Revision. The said application was supported by an affidavit of Smt. Shakuntala Devi Jain (petitioner No. 1 herein). Copies of the said application dated 1252003 (Paper No. 85 Ga) and affidavit filed on behalf of the petitioners have been filed as Annexure2 to the writ petition.
15. It further appears that a reply dated 1572003 alongwith counteraffidavit was filed on behalf of the respondent No. 1 herein (plaintiff/opposite party in the said Revision) against the said application and affidavit filed on behalf of the petitioners. Copy of the said reply alongwith counteraffidavit filed on behalf of the respondent No. 1 herein (plaintiff/opposite party in the said Revision) has been filed as Annexure3 to the writ petition.
16. It further appears that a rejoinder affidavit was filed on behalf of the petitioners, copy whereof has been filed as Annexure4 to the writ petition.
17. It further appears that by the order dated 2472003 (Annexure5 to the writ petition) passed by the learned Additional District Judge, Court No. 15, Agra, the said application for impleadment (Paper No. 85 Ga) filed on behalf of the petitioners was rejected.
18. Thereafter, the petitioners have filed the present writ petition seeking the reliefs mentioned above.
19. I have heard Shri P.K. Jain, learned counsel for the petitioners and Shri Dilip Gupta, learned counsel for the caveator/respondent No. 1, and perused the record.
20. It has been submitted by Shri Jain that Section 3(a) of the Act provides that in case of death of a tenant of a nonresidential building, his heirs would inherit the tenancy rights. It is further submitted by Shri Jain that the present case relates to a shop i.e. nonresidential building and, therefore, all the heirs of the deceased, Smt. Tulsa Devi, inherited the rights of the said Smt. Tulsa Devi in view of the provisions of Section 3(a) of the Act.
21. It is further submitted by Shri Jain that the rights of the petitioners were also involved in the Revision, and, therefore, they were entitled to be impleaded as Revisionists in the said Revision.
22. In reply, Shri Dilip Gupta, learned counsel for the caveator/respondent No. 1 submits that in view of the decision of the Supreme Court in Harish Tandon v. Additional District Magistrate, Allahabad U.P. and others, 1996(2) JCLR 297 (SC) : 1995(1) ARC 220 (SC), the heirs of a tenant inherit the tenancy rights as joint tenants, and not as tenants in common. Therefore, the submission proceeds, if some of the heirs are already on record, there is no occasion to implead the remaining heirs, as all the heirs are joint tenants.
23. It is further submitted by Shri Gupta that the case of the respondent No. 1 (plaintiff in the said suit) was that the said Smt. Tulsa Devi was a subtenant of the respondent No. 2 herein (defendant No. 1 in the said suit) and, therefore, it was not necessary to bring the heirs and legal representatives of the said Smt. Tulsa Devi, a subtenant, on record, particularly when some of the heirs and legal representatives of the said Smt. Tulsa Devi were already on record.
24. Shri Dilip Gupta, learned counsel for the caveator/respondent No. 1 has further placed reliance on the following decisions:
(1) Ram Bihari Lal Srivastava v. Smt. Purna Devi and others, 1986 (UP) RCC 187 (LB).
(2) Makrand Dubey v. Prescribed Authority (IIIrd Upper C.J.M., Etawah) and others, 2000(1) ARC 241.
(3) Suresh Chandra Jain v. IIIrd Additional District Judge, Mathura and others, 1999(1) ARC 116 (SC).
25. I have considered the submissions made by the learned counsel for the parties.
Section 3(a) of the Act provides as follows:
�3(a) �tenant�, in relation to a building, means a person by whom its rent is payable, and on the tenant''s death
[(1) in the case of a residential building, such only of his heirs as normally resided with him in the building at the time of his death;
(2) in the case of a nonresidential building, his heirs];
[Explanation. An occupant of a room in a hotel or a lodging house shall not be deemed to be a tenant]�
26. In view of the provisions of the said Section 3(a), it is evident that if a tenant of a nonresidential building dies, the tenancy rights devolve on his heirs.
27. In Harish Tandon case (supra), their Lordships of the Supreme Court laid down as follows (paragraphs 7, 23, 24 and 27 of the said ARC):
�(7) In view of Explanation (i) of Section 25, where the tenant is deemed to have ceased to occupy the building under subsection (2) of Section 12 aforesaid, he shall be deemed to have sublet that building or part thereof. Once a tenant carrying on business in a nonresidential building, admits a person who is not a member of his family as a partner, the said tenant shall be deemed to have ceased to occupy the building and by operation of the Explanation (i) of Section 25, it shall be deemed that such tenant has sublet that building or part thereof, which shall be a ground for eviction of such tenant because of Section 20(2)(e) which specifically says that a suit for eviction of a tenant from building after determination of his tenancy may be instituted on the ground �that the tenant has sublet, in contravention of the provisions of Section 25, or as the case may be, of the old Act the whole or any part of the building.�
(23) The attention of the learned Judges constituting the Bench in the case of H.C. Pandey v. G.C. Paul (supra), was not drawn to the view expressed in the case of Mohd. Azeem v. District Judge, Aligarh (supra). There appears to be an apparent conflict between the two judgments. It was on that account that the present appeal was referred to a Bench of three Judges. According to us, it is difficult to hold that after the death of the original tenant his heirs become tenant in common and each one of the heirs shall be deemed to be an independent tenant in his own right. This can be examined with reference to Section 20(2) which contains the ground on which a tenant can be evicted. Clause (a) of Section 20(2) says that if the tenant is in arrears of rent for not less than four months, and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand, then that shall be ground on which the landlord can institute a suit for eviction. Take a case where the original tenant who was paying the rent dies leaving behind four sons. It need not be pointed out that after the death of the original tenant, his heirs must be paying the rent jointly through one of his sons. Now if there is a default as provided in Clause (a) of subsection (2) of Section 20 in respect of the payment of rent, each of the sons will take a stand that he has not committed such default and it is only the other sons who have failed to pay the rent. If the concept of heirs becoming independent tenants is to be introduced, there should be a provision under the Act to the effect that each of the heirs shall pay the proportionate rent and in default thereto such heir or heirs alone shall be liable to be evicted. There is no scope for such division of liability to pay the rent which was being paid by the original tenant, among the heirs as against the landlord what the heirs do inter se, is their concern. Similarly, so far as ground (b) of subsection (2) of Section 20, which says that if the tenant has wilfully caused or permitted to be caused substantial damage to the building, then the tenant shall be liable to be evicted; again, if one of the sons of the original deceased tenant wilfully causes substantial damage to the building, the landlord cannot get possession of the premises from the heirs of the deceased tenant since the damage was not caused by all of them. Same will be the position in respect of Clause (c) which is another ground for eviction, i.e. the tenant has without the permission in writing of the landlord made or permitted to be made, any such construction or structural alteration in the building which is likely to diminish its value or utility or to disfigure it. Even if the said ground is established by the landlord, he cannot get possession of the building in which construction or structural alterations have been made diminishing its value and utility, unless he establishes that all the heirs of deceased tenant had done so. Clause (d) of subsection (2) of Section 20 prescribes another ground for eviction that if the tenant has without the consent in writing of the landlord, used it for a purpose other than the purpose for which he was admitted to the tenancy of the building or has been convicted under any law for the time being in force of an offence of using the building or allowing it to be used for illegal or immoral purposes; the landlord cannot get possession of the building unless he establishes the said ground individually against all the heirs. We are of the view that if it is held that after the death of the original tenant, each of his heirs becomes independent tenant, then as a corollary it has also to be held that after the death of the original tenant, the otherwise single tenancy stands split up into several tenancies and the landlord can get possession of the building only if he established one or the other ground mentioned in subsection (2) of Section 20 against each of the heirs of original tenant. One of the well settled rules of interpretation of statute is that it should be interpreted in a manner which does not lead to an absurd situation.
(24) It appears to us, in the case of H.C. Pandey v. G.C. Paul (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 are 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.
(27) It was then submitted that although Swarup Kailash, the soninlaw of Ganpat Roy may not be held to be a member of the family within the meaning of the definition given in Section 3(g), nonetheless he shall be deemed to be a member of the family as the expression ''family'' is generally understood, and by admitting a soninlaw or daughterinlaw as a partner, it shall not amount to subletting within the meaning of the Act. It was pointed out that Section 3 opens with the words �In this Act, unless she context otherwise requires� and as such the definition of the family should not be strictly construed as given in Section 3(g) and in the context of the present case a wider interpretation to the expression ''family'' should be given so as to include even the sonsinlaw and daughtersinlaw. In this connection, reliance was placed on the judgment of this Court in the case of Pushpa Devi and others v. Milkhi Ram, 1990(2) SCC 134. As has already been pointed out that in the Act with which we are concerned, wherever the expression ''member of the family'' has been used, it is consistent with the definition of ''family'' given in Section 3(g) and there is no scope for interpreting that expression in a different manner in connection with subsection (2) of Section 12 of the Act. Once the finding of the High Court that after the death of Sheobux Roy, his sons became tenants in common instead of joint tenants, is reversed for the reasons mentioned above, the result will be that it has to be held that because of the admission of Swarup Kailash, the soninlaw of Ganpat Roy, as a partner in the business, there has been a deemed vacancy of the premises within the meaning of subsections (2) and (4) of Section 12 and it shall amount to subletting within the meaning of Section 25, Explanation (i), which is a ground for eviction under subsection (2)(e) of Section 20 of the Act. The judgment in Mohd. Azeem''s case, does not lay down the correct law and on the other hand we hold that H.C. Pandey''s case (supra), lays down the correct law.� (Emphasis supplied)
28. In view of the aforesaid decision, it is evident that in case a tenant is carrying on business in a nonresidential building admits a person who is not a member of his family as a partner, the said tenant shall be deemed to have ceased to occupy the building within the meaning of subsections (2) and (4) of Section 12 of the Act, and by operation of Explanation (i) to Section 25 of the Act, it would be deemed that such tenant has sublet that building or part thereof, which would be a ground for eviction of such tenant because of Section 20(2)(e) of the Act.
29. It is further evident from the said decision that on the death of a tenant, his heirs inherit the tenancy rights as joint tenants and not as tenants in common. It follows, therefore, that if on the death of a tenant, some of his heirs are already on record, it is not required that the other heirs of such tenant be also brought on record.
30. Hence, even if Section 3(a) of the Act which applies to �tenant� is held to be applicable to �subtenants�, as contended by the learned counsel for the petitioners, still on the death of a subtenant, devolution of his rights on his heirs would be as joint tenants and not as tenants in common, and, therefore, it will not be necessary to bring all the heirs of such subtenant on record, and the presence of some of the heirs on the record would be sufficient.
31. In the present case, the case of the respondent No. 1 herein (plaintiff in the said suit) was that the said Smt. Tulsa Devi, who was not a member of the family of the respondent No. 2 herein (defendant No. 1 in the said suit), was admitted as a partner, and, therefore, she was subtenant in view of Explanation (i) to Section 25 of the Act. The respondent No. 2 herein (defendant No. 1 in the said suit) and the respondent No. 3 herein (defendant No. 2 in the said suit) are the sons of the said Smt. Tulsa Devi. On the death of the said Smt. Tulsa Devi, the said sons, namely, respondent Nos. 2 and 3 herein inherited the rights of the said Smt. Tulsa Devi alongwith the married daughters (petitioners herein), in case Section 3(a) is held to be applicable to a subtenant also. Such devolution of the rights of the said Smt. Tulsa Devi on her said heirs was evidently as joint tenants. The respondent Nos. 2 and 3 herein (defendant Nos. 1 and 2 in the said suit) were already on record in the said Revision as Revisionist Nos. 1 and 2. The devolution of the rights of Smt. Tulsa Devi on her rights being as joint tenants, the presence of the respondent Nos. 2 and 3 herein as Revisionist Nos. 1 and 2 in the said Revision was sufficient, and it was not necessary to bring other heirs of the said Smt. Tulsa Devi, namely, the married daughters (petitioners herein) on the record. Therefore, in my opinion, the learned Additional District Judge, Court No. 15, Agra did not commit any illegality in passing the impugned order dated 2472003.
32. There is another aspect of the matter. The said Smt. Tulsa Devi was alleged to be subtenant in the disputed shop. The learned Judge, Small Cause Court in his judgment and order dated 492000 held the said Smt. Tulsa Devi as subtenant of the respondent No. 2 herein (defendant No. 1 in the said suit). It is well settled that a subtenant has no independent right, and his rights come to an end with the determination of the tenancy of the tenantinchief. A subtenant is not a necessary party in an ejectment suit. A decree for possession passed in a suit for ejectment against a tenant is binding on the subtenant and is executable against the subtenant whether the subtenant was a party to the suit or not.
33. In Ram Bihari Lal Srivastava case (supra) it was laid down as under (paragraphs 5, 6 and 7 of the said (UP) RCC):
�(5) It is well settled that where the tenancy of the tenantinchief is terminated, the tenancy of the subtenant also comes to an end. (See Timmappa Ruppaya v. Rama Venkanna Naik, 1897 ILR 21 Bom 311 and Sheikh Yusuf v. Jyotish Chandra, AIR 1932 Cal 241, in which it has also been held that an ejectment decree passed against a tenant is binding on the subtenant and he can be evicted in execution of that decree).
(6) The Supreme Court in the case of M/s. Importers and Manufactures Ltd. v. Pheroze Framroze Taraporewala, AIR 1953 SC 73, has observed as under:
�.......Under the ordinary law a decree for possession passed against a tenant in a suit for ejectment is binding on a person claiming title under or through that tenant and is executable against such person whether or not he was or was not a party to the suit. The nonjoinder of such a person does not render the decree any the less binding on him. It is in this sense, therefore, that he is not a necessary party to an ejectment suit against the tenant....�
(7) That being so, the petitioner, who claims through opposite party No. 2 against whom, as observed earlier, a decree for eviction has become final, has to be evicted from the premises in question. This is also the legislative intention, as any violation of the statutory prohibition against subletting contained in U.P. Act XIII of 1972 which has replaced U.P. Act No. III of 1947 containing similar prohibition, has to result in the eviction of the tenant, and, with him, the subtenant.� (Emphasis supplied)
34. In view of this decision, it is evident that in case an ejectment decree is passed against the tenant, the same is binding on the subtenant, and the subtenant can be evicted in execution of that decree.
35. In Suresh Chandra Jain case (supra), their Lordships of the Supreme Court laid down as follows (paragraphs 5 and 6 of the said ARC):
�(5) It was urged on behalf of the appellant that the subtenants had no independent right and the High Court committed grave illegality in allowing the writ petition by directing the Executing Court to decide the objection of subtenants.
(6) We have heard learned Counsel for the respondents and we find the argument raised is well substantiated. From the facts narrated above, it is clear that so far as the tenant Sardar Pritam Singh was concerned, the decree for ejectment against him attained finality. The subtenant did not have any independent right or to raise any objection before the Executing Court. The subtenants were legally bound by the orders passed against the main tenant particularly when the ejectment decree against the main tenant became final and his objection before the Executing Court was rejected by the Additional District Judge and upheld by the High Court. Further we find that the subtenant in their objection have not pleaded any right independent to the rights of main tenant. They merely reiterated the objections of the main tenant, namely, that the ejectment decree passed by the Small Causes Court is nullity and that they were not parties to eviction suit. Under such circumstances the High Court was not right in allowing the writ petition filed by the subtenants. We, accordingly set aside the order and judgment of the High Court dated 1741997 and restore that of the Additional District Judge, Mathura dated 1721986. The appeal is allowed but there will be no order as to cost.� (Emphasis supplied)
36. In view of this decision, it is evident that a subtenant is bound by the order passed against the main tenant, and the subtenant has no independent right.
37. In Makrand Dubey case (supra), a learned Single Judge of this Court held that a subtenant was not a necessary party in a release case against tenant under Section 21 of the Act.
38. In view of the aforesaid legal position also, the impugned order dated 2472003 does not suffer from any illegality or infirmity.
39. In view of the aforesaid discussion, I am of the opinion, that this writ petition lacks merit, and the same is liable to be dismissed. The writ petition is accordingly dismissed.
